Forum shopping undermining the "uniform" defamation law

Lindsey Cregan, Dominic Keenan and Helen Park
07 Sep 2023
Time to read: 4.5 minutes

We expect to see the Federal Court become even more attractive to defamation plaintiffs if they do not have to establish serious harm before trial. The Supreme Courts of Western Australia and the Northern Territory are also currently an attractive prospect, since under the law of those jurisdictions, serious harm has not been introduced, and the concerns notice process is not mandatory.

Choice of forum has long been a consideration for defamation plaintiffs in Australia, but has become more significant following the 2021 reforms to the uniform defamation legislation, which have not been universally implemented.

Since a focus of the reforms was to reduce trivial claims, additional barriers to bringing proceedings were introduced. Key amongst these were the introduction of a "serious harm" element for the cause of action (which may be determined before trial), and making the pre-litigation "concerns notice" process mandatory.

As things stand, defamation plaintiffs might be able to sidestep these barriers, depending on the jurisdiction in which they commence. A trio of recent cases demonstrate how (and why) that could be done, and the ramifications for defendants (Selkirk v Hocking [2023] FCA 432; Bartlett v Roffey [2023] WASC 3; and Reynolds v Sharaz [2023] WASC 327).

The uniform no longer applies

While defamation laws in Australia are nominally uniform, Western Australia and the Northern Territory are yet to adopt the most recent reforms to the uniform law.

Insofar as the 2021 reforms were aimed at reducing trivial claims, they introduced:

  • Concerns notice process: Prospective plaintiffs are now required to issue a "concerns notice" to the publisher identifying the allegedly defamatory material, the serious harm suffered, and the imputations of concern, before commencing proceedings. This is a mandatory step, and proceedings cannot be commenced without a valid concerns notice. The process is aimed at facilitating non-litigious resolution of claims.
  • Serious harm: The reforms introduce a new element to the defamation cause of action: the publication caused, or is likely to cause, serious harm to the reputation of the plaintiff. The new element has not yet received substantial consideration by superior courts.

In comparison to other countries, Australia's defamation laws are generally regarded as being very plaintiff-friendly. Fundamentally, these reforms, and others introduced in 2021 – such as the single publication rule and the public interest defence (intended to protect responsible journalism) – aim to make it more difficult for plaintiffs to commence proceedings, or to succeed in them.

A better bargain for defamation plaintiffs in the Federal Court?

The Federal Court of Australia has become the choice of forum for defamation claims. The Federal Court presents a number of advantages for plaintiffs including no jury trials, increased focus on affidavit evidence, efficient case management procedures and relatively fast determination of cases.

Defamation is regulated solely by State and Territory law; there is no Commonwealth defamation legislation. The Federal Court's jurisdiction to hear defamation claims can be enlivened in several ways:

  • a claim that includes issues to be decided under Commonwealth statutes (for example, a defamation claim combined with an Australian Consumer Law claim);
  • a claim that involves constitutional issues; or
  • where publication has occurred in the ACT or the NT.

The third category, which are pure defamation claims, in effect gives the Federal Court jurisdiction to hear any defamation claim involving Australia-wide publication, as there will be publication in the ACT or NT.

In exercising its jurisdiction in these claims, the Federal Court picks up the substantive law of the relevant State or Territory by section 79(1) of the Judiciary Act 1903 (Cth). State laws which are inconsistent with Commonwealth laws are not picked up. This is why parties cannot elect to have a jury trial in the Federal Court, despite provisions to that effect in the uniform Defamation Acts.

In Selkirk v Hocking, Justice O'Callaghan questioned whether the obligation on judicial officers to determine, on a party's application, the serious harm element before trial unless special circumstances applied is inconsistent with the Federal Court's case management powers as prescribed by the Federal Court of Australia Act 1976 (Cth). If inconsistent, that obligation would not be picked up by section 79 of the Judiciary Act, and so would not apply in the Federal Court. However, Justice O'Callaghan did not find it necessary to resolve the issue in Selkirk. However, it is a reminder that not all case management and procedural provisions in the Uniform Defamation Acts will necessarily apply in the Federal Court. So far, this has tended to work to plaintiffs' advantage.

A forum shopping trap: the applicable substantive law

In each State and Territory, the various defamation acts include a choice of law provision that provides where publication occurs in multiple States and/or Territories, the substantive law to be applied is the law of the area with which the harm caused by the publication has the closest connection. In assessing which State or Territory the harm has the closest connection with, courts will consider:

  • the place of residence of the plaintiff;
  • the extent of publication in each State and Territory;
  • the extent of harm sustained by the plaintiff in each State and Territory; and
  • any other matter considered relevant.

In Bartlett v Roffey [2023] WASC 3, the Western Australian Supreme Court granted a cross-vesting application in defamation proceedings, ordering that it was in the interests of justice that the proceedings be transferred to Victoria based on the preponderance of connecting factors to that State.

As these proceedings were commenced in Western Australia, which has not implemented the 2021 reforms, the plaintiff did not issue a concerns notice as it was not mandatory to do so. In transferring the proceedings to Victoria based on other connecting factors, the Court did not determine whether the applicable substantive law was that of Victoria, a factor raised by the defendant in favour of cross-vesting. However, the Court's provisional view was that the substantive law of Victoria was likely to apply to the matter. If the proceedings were dismissed due to the failure to issue a concerns notice, the plaintiff would need to undertake that step before commencing fresh proceedings. However, on the facts in Bartlett, the limitation period would have expired. The Court considered the resolution of the "fairly novel complexities" that would arise were Victorian defamation law applied would preferably be determined by that jurisdiction's superior court.

Less directly, the issue again arose in Reynolds v Sharaz [2023] WASC 327. The defendant argued, in support of his security for costs application, that the plaintiff's claim was weak because the applicable law was not that of Western Australia, but of the ACT, and the additional barriers to commencing a claim under that law had not been met. The Court did not find it necessary to resolve the question, but considered that while it was possible the applicable law would not be Western Australia's, on the evidence that prospect was not sufficiently strong to conclude the plaintiff's claim was weak such that awarding security against an individual was appropriate.

Key takeaways

These cases illustrate the complexity created by inconsistencies in the defamation laws of the States and Territories, as well as the scope for potentially exploiting those consistencies to one party's advantage. Following Selkirk v Hocking, we expect to see plaintiffs assert there is no right to have the serious harm test determined before trial in the Federal Court – a right more utilised by defendants. If so, the Federal Court would become even more attractive to defamation plaintiffs.

Elsewhere, plaintiffs may also seek to choose Western Australia or the Northern Territory as their forum to match the substantive law they assert is applicable to their claim. This is a way to avoid both the serious harm element, and the mandatory – and now highly technical – concerns notice process.

However, where publication occurs in multiple Australian jurisdictions, the applicable substantive law will be that of the jurisdiction with the closest connection to the harm caused by the publication. Plaintiffs will need to keep in mind the risk of facing a cross-vesting application or defence asserting a different substantive law, when formulating their claim with their eye on a particular forum and law.

Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.