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28 Nov 2019

Federal Court sets new ground rules for hearing defamation disputes

By Ian Bloemendal, Luke Furness

Although the Federal Court's new practice note envisages a process very similar to that in State Courts, there are some small but potentially useful differences.

The Federal Court has responded to the growth in defamation cases by creating its first practice note specifically on how it will manage future defamation actions. Defamation Practice Note (DEF-1) contains key details how it will manage defamation claims including how to start them, what to expect at case management hearings, and a key reminder on costs. Whether you are pursuing or defending a defamation claim, you need to understand and comply with these new procedures as early as possible.

Wait, which Court?

All States and Territories have Defamations Acts which are now substantially uniform, meaning that you can start defamations actions in an appropriate State and Territory Court. However, the Federal Court can also deal with defamation disputes within federal jurisdiction, including defamation cases that may arise under a law of the Parliament.

In 2012, the Federal Court confirmed its jurisdiction to hear a wide range of defamation disputes, particularly those involving online publications, in Crosby v Kelly (2012) 203 FCR 451. That begun its rise as an umpire of major and high-profile defamation cases, such as Wing v Fairfax Media Publications Pty Ltd (2017) FCR 6, Rana v Google Inc [2017] FCAFC 156, Rush v Nationwide News Pty Ltd (No 7) [2019] FCA 496 and David v Sarah Hanson-Young v Leyonhjelm (No 4) [2019] FCA 1981.

In many cases, you may have a choice whether to sue for defamation in State or Federal Court but there may be forensic advantages in some cases to commencing proceedings in the Federal Court, such as an ability to seek preliminary discovery which might not be expressly provided for by a State Court or because it provides the plaintiff with the best prospects of a judge only trial. Additionally, the Federal Court's docket system enables litigants to keep the same judge throughout the proceeding, and (we think) more likely to get one with specialist knowledge of defamation.

Making Defamation Practice Note (DEF-1) work for you

Start with the correct form of pleading

The Court expects any defamation proceeding to be commenced by filing an originating application supported by a statement of claim, rather than by a concise statement.

Provide the impugned publications in proper form ASAP

The Applicant must give the Court and the Respondent(s) a copy of the actual impugned publication in the form as close as possible to how it was actually published, as soon as practicable after the commencement of the proceeding and, in any event, at least seven days before the first case management hearing This means delivering high quality copies of printed matter in actual size and in original colour (with numbered paragraphs), or audio or video files in digital or audio form, including the surrounding context. It may also require transcription or media communications experts. Annexures and transcripts will need each paragraph numbered for ease of common reference.

Watch your drafting

Applicants must plead the alleged defamatory statements in a way that avoids disputes. In particular, the manner in which the impugned matter allegedly concerns the Applicant or gives rise to defamatory imputations must be clear. Stick to the facts. Sensationalist or broad argumentative claims are open to challenge, particularly in defamation disputes.

Have your defence ready before the first case management hearing

The Court expects the application and statement of claim to be served on the Respondent(s) expeditiously (eg. within 3 business days) and the Defence to be filed before the first case management hearing takes place.

Respond to the claim properly

Respondents must make key decisions on their defence early (eg. whether to admit publication and scope (and if not, why not), identification and whether the alleged imputations arise and/or are defamatory. In addition any affirmative defences must be identified, such as truth, qualified privilege, innocent dissemination etc.

Admitted publications require facts concerning the extent of publication to be promptly disclosed

Where a Respondent admits publication of matter, the Court expects them to provide a statement indicating the extent of publication to be included in the Defence or alternatively provided within 4 weeks after filing the Defence (and preferably before the first case management hearing):

  • print newspaper: the number of editions of the newspaper sold and the estimated readership for that newspaper at the relevant time;
  • digital newspaper: the number of visits to the page or pages hosting the impugned matter;
  • website: the number of visits to the impugned item on the website;
  • publications by social media: the number of persons who follow the relevant social media account, the number of persons who interacted with the post via likes, shares, comments or views, and the number of persons who accessed the article via a hyperlink;
  • ·newspaper posters: the number and location of the posters;
  • radio publications: data concerning the estimated listening audience for the publication; and
  • publication by TV: data indicating the estimated viewing audience for the program, etc.

Have a plan for the judge

The Court has confirmed that case management of defamation disputes will have a strong emphasis on the quick, efficient and as inexpensive as practicable disposition of each matter. This means that the Court will look to the parties to reduce the issues in contest and undertake no greater factual investigation than the justice of the case requires. Further, parties should expect interlocutory applications to be kept to a minimum.

Judges increasingly expect parties to be well prepared before the first hearing. The Court expects parties to federal defamation disputes to be ready at the first case management hearing to provide appropriately tailored case management orders (by consent or otherwise), to identify any objections to a pleading which may require determination, together with the basis for those objections and to confirm estimated trial length, available dates and whether expedition or truncation is required. The Court will want the parties to be ready with a timetable that efficiently addresses the necessary interlocutory steps in the proceeding so that a final hearing date may be set.

Expect oral evidence

The Practice Note provides a cautionary reminder of r 40.08 of the Federal Court Rules which empowers the Court to reduce an award of costs where damages less than $100,000 are awarded or where the case was more suitable for another Court (such as a State Magistrates or District Court or Tribunal).

Watch out for costs reductions

Respondents must make key decisions on their defence early (eg. whether to admit publication and scope (and if not, why not), identification and whether the alleged imputations arise and/or are defamatory. In addition any affirmative defences must be identified, such as truth, qualified privilege, innocent dissemination etc.

Comply with this guidance

Judges increasingly expect parties to strictly comply with Court practice notes. In addition to the matters canvassed above, DEF-1 contains additional technical guidance that warrants review.

So, will is increase the growth in the Federal Court's defamation load?

The Federal Court will continue to provide an important forum for defamation disputes. Applicants and Respondents alike should take heed of the latest Federal Court guidance to ensure that the progress of case conferences go smoothly.

Of course not all defamation claims are filed in the Federal Court and processes in State courts can be drastically different throughout the country. A potential claimant should take specific advice before commencing proceedings or risk losing key strategic advantages. Even where proceedings are being defended and a party might not have a choice of Court, it is still worth seeking out a lawyer who has extensive specialist defamation experience in the relevant jurisdiction and who can bring a comprehensive understanding of the Court rules in that jurisdiction alongside the nuances of defamation law to guide the path to an outcome.

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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.