Defamation perspectives: separate ‘serious harm’ hearings and the Federal Court

Separate ‘serious harm’ hearings in defamation cases

In 2021, the law of defamation in most Australian states and territories was significantly amended to provide that, in a defamation action, the claimant must prove that the relevant publication caused, or is likely to cause, ‘serious harm’ to their reputation. The main rationale behind introducing the ‘serious harm’ threshold was to discourage claims where any compensation awarded would be dwarfed by the legal costs incurred. Under the Defamation Act 2005 (Qld), a defendant to a defamation action may apply to have the ‘serious harm’ element determined in an early hearing prior to the full trial.[1] Upon such an application being made, the court must determine the issue as soon as practicable, unless there are special circumstances justifying the postponement of the determination until the full trial. The practical effect of this is that, in cases where the ‘serious harm’ element is not satisfied, the proceedings may be dismissed more quickly and cheaply as it is no longer necessary to hold a full trial of all the issues in dispute.

However, the various Defamation Acts are state and territory (rather than federal) legislation. In exercising its jurisdiction to hear defamation disputes, the Federal Court therefore applies state or territory laws. The Federal Court is bound to the laws of the states and territories (including the laws relating to civil procedure), except where the laws of the Commonwealth provide otherwise.[2] The rules of the Federal Court contain a procedure for the hearing of separate questions prior to trial that is different to the procedure provided under the Defamation Acts.[3] As a result of this apparent procedural inconsistency, there is some controversy over whether the Federal Court is able to order separate hearings on the question of ‘serious harm’ using the mechanisms set out in the state defamation legislation. This controversy remains unresolved.[4]

The recent decision in Peros v Blackburn [2024] FCA 177 illustrates a potential pitfall for parties defending defamation actions who wish to seek a separate hearing on the question of ‘serious harm’ in order to resolve the proceeding at an earlier stage.

Case facts

The Court summarised the relevant background to the case as follows.

In 2013, Shandee Blackburn, the daughter of the respondent Vicki Blackburn (Ms Blackburn), was murdered. The applicant, John Peros, was charged with the murder, but was acquitted following a trial in the Supreme Court of Queensland in April 2017. An extended coronial inquest into Shandee’s death was held and, in August 2020, the Coroner found that Shandee had died due to injuries sustained in an incident involving violence with Mr Peros.

The findings of the Coroner were widely published in the media. The Coroner’s report, and the general circumstances of the case, were covered in great detail in a popular podcast produced by Hedley Thomas, a journalist for The Australian. Mr Peros is separately suing Mr Thomas for defamation in the Supreme Court of Queensland.

Mr Peros also brought a defamation action against Ms Blackburn in the Federal Court. The complaint concerns certain comments Ms Blackburn made in the Facebook group ‘Justice for Shandee’, which Mr Peros alleges defamed him by imputing that (among other things) he is a murderer.

Ms Blackburn applied to the Federal Court for a separate determination (prior to the full trial) of the question of whether her Facebook comments caused, or are likely to have caused, serious harm to the reputation of Mr Peros. The practical benefit for Ms Blackburn in seeking a separate hearing on the question of ‘serious harm’ was that if she was successful, the proceedings would likely be dismissed and she would be saved the time and expense of proceeding to a full trial.

Apparently due to the procedural controversy discussed above, Ms Blackburn’s application was pursued solely under the Federal Court Rules, rather than under the provisions of the defamation legislation. This distinction is important because, while judicial comment has previously been made that the processes for the hearing of separate questions under the defamation legislation and the Federal Court Rules are the same or at least similar, the Court found that the processes are ‘the complete antithesis to each other’. Under rule 30.01 of the Federal Court Rules, a person seeking a separate hearing must show that it is appropriate to determine the separate question, whereas under the Defamation Act 2005 (Qld) the separate question will be determined unless there is a demonstrated reason why that should not occur in the circumstances of the case.

Findings

Ultimately, the Court ruled against Ms Blackburn, finding that the circumstances of the case were not suitable for the determination of the ‘serious harm’ element as a separate question.

Principles relating to rule 30.01 of the Federal Court Rules

In summarising the principles relating to rule 30.01 of the Federal Court Rules, the Court noted that, as a matter of principle and policy, all issues in a case should be heard and determined together. The determination of separate questions is an exceptional measure, and should only occur when the utility, economy and fairness of such a hearing is beyond question. The Court further noted that certain factors often weigh against making an order for the hearing of a separate question. Those include where:

• issues of fact or law between the separate question and the remaining questions of the proceeding may be intertwined
• there could be an overlap between the evidence on the separate question and the evidence to be led at trial, potentially leading to duplication in evidence
• the proceedings could become fragmented or delayed by an appeal on the separate question while the remainder proceeds.

The Court observed that the rule therefore has a relatively limited application, ordinarily being applied only in ‘stark’ cases.

Circumstances of the case

In considering whether to grant the application and order a separate hearing, the Court noted that the question of whether ‘serious harm’ has been caused is a matter of evidence.

Here, the nature and scope of the evidence each party would rely upon in any separate hearing was not clear. For instance, it was unclear how Mr Peros would seek to establish the reach of the publication, which had been made in a Facebook group with some 6,000 members, and if and how Ms Blackburn would seek to contest such evidence. There was accordingly a risk that the hearing could be relatively lengthy and involve evidence over a number of days.

Further, while Ms Blackburn may have argued that the existence of the Coroner’s report and the subsequent media publicity in relation to Mr Peros would render it impossible for him to claim he had suffered serious harm to his reputation, there was a serious question as to whether that report (and the media publicity) would be admissible. This is because, in assessing damages for defamation, a defendant is not able to rely on the fact that similar defamatory statements have been made about the same claimant by other persons. Although it was argued that the Court would take into account the Coroner’s report and media publicity to determine whether any serious harm to Mr Peros’s reputation had been caused by Ms Blackburn’s later publications, the Court found that the admissibility of those reports would be open for debate at any separate hearing.

In light of these issues, the Court found that the issues in contest, the evidence that each party would adduce, and the admissibility of the evidence that may be called were all unknown. Consequentially, the extent to which a separate hearing would achieve any costs savings was not clear, and there was at least some risk of overlapping and inconsistent evidence (especially on the question of the damage Mr Peros had suffered as a result of the publications).

The Court therefore dismissed Ms Blackburn’s application, finding that the potential inconvenience to the proceeding as a whole meant a separate hearing under rule 30.01 should not be ordered.

Comments

The case clearly demonstrates the differences between the federal and state courts in approaching separate hearings on the question of ‘serious harm’. As Justice Derrington noted in this case, had this proceeding been brought in the Queensland courts, Ms Blackburn’s application may well have succeeded. The pro‑defendant reforms that established the ‘serious harm’ element are therefore somewhat eroded in the Federal Court, where there is still doubt over whether certain procedural aspects of those reforms can apply. As Justice Derrington stated, to the extent those procedural elements do not apply in the Federal Court, the Federal Court Rules clearly require reform to create a procedure for ‘serious harm’ hearings that is the same (or at least similar) to that found in the defamation legislation of the states and territories.

In terms of practical takeaways for parties, the case may explain one reason for the Federal Court becoming a more attractive forum for many high‑profile defamation litigants in recent years. This decision perhaps indicates that applicants in the Federal Court may more easily avoid facing separate hearings at an early stage of the proceeding to determine the question of ‘serious harm’.

At present, for respondents in the Federal Court who wish to seek a separate hearing, the case demonstrates that it is critical to clearly define the ‘metes and bounds’ of the proposed separate hearing, as the Court remains particularly concerned about the potential for overlaps in evidence between the separate hearing and the final trial. Before applying for a separate hearing in the Federal Court, a party must consider and clearly define the precise issues that will be contested at the separate hearing, the nature and scope of the evidence each party will adduce on these issues, and any issues of admissibility with this evidence. If these issues cannot be clearly and narrowly defined, pursuing a separate hearing may be a fruitless endeavour.

[1]           Defamation Act 2005 (Qld) section 10A(4)-(5).

[2]           Judiciary Act 1903 (Cth) s 79(1).

[3]           Federal Court Rules 2011 (Cth) rule 30.01.

[4]           See Selkirk v Hocking [2023] FCA 432.