"What's the harm in that?" Australian courts consider the newly introduced "serious harm" test in defamation law

The latest round of defamation reforms in 2021 introduced a new element: that of "serious harm". The underlying rationale was making a plaintiff prove this would deter the making of trivial claims. But left unanswered were two basic issues: Is this a separate element? And when must (or can) it be established?

Two important decisions handed down recently have answered these questions about the operation of "serious harm" under section 10A of the Uniform Defamation Laws, using the analogous provision in the United Kingdom's Defamation Act 2013 (UK) and its Supreme Court decision in Lachaux v Independent Print Ltd and another [2019] UKSC27; [2020] AC 612.

The beginnings of the "serious harm" test

The serious harm element under section 10A of the Defamation Act 2005 (NSW) (and equivalent jurisdictions) was introduced as part of the amendments from Stage 1 of a two-stage review of the Model Defamation Provisions. These amendments came into effect on 1 July 2021 and have been adopted by all States and Territories, except for Western Australia and the Northern Territory.

While the serious harm element has replaced the triviality defence with respect to publications made after1 July 2021, the triviality defence will continue in application for any pre-1 July 2021 publications.

Examining "serious harm" in the Australian defamation context

The decision in Newman v Whittington [2022] NSWSC 249 confirms that plaintiffs must prove on the balance of probabilities that the relevant publication "has caused, or is likely to cause, serious harm" to their reputation, abolishing the common law rule that damage was to be presumed and not proved.

His Honour noted that the "obvious genesis" of the serious harm element came from the equivalent provision found in section 1 of the United Kingdom's Defamation Act 2013 (UK), with there being "no material difference" between the two.

In this regard, while not binding on any Australian court, Justice Sackar found the UK decision in Lachaux "considerably assisted" in the task of defining serious harm, thereby endorsing the decision as a "powerful and persuasive analysis of the analogous United Kingdom provision". While acknowledging some differences in the common law development between the UK and Australia, his Honour adopted much of the reasoning in Lachaux:

• The plaintiff bore the onus of proving, on the balance of probabilities, that the harm caused (or likely to cause) by the publication was or will be serious.
• The common law rule that damage was to be presumed and not proved had been abolished.

Further, while not expressly adopted, his Honour endorsed the UK application of "serious harm" of being determined by reference to the actual facts of a publication's impact, not simply the meaning of the words.

In Newman, the pleadings asserted that serious harm was to be inferred from the "inherent seriousness of the defamatory imputations" and from the plaintiff's reputation as a family mediator.

Justice Sackar struck the pleadings out in their present form as that they did not clearly articulate an arguable case, so there was no evidential assessment of  whether serious harm had been established. However, his Honour granted leave for the plaintiff to replead her claims of serious harm given the "novelty of the point".

Justice Sackar noted that in determining serious harm, the Court in Lachaux considered evidence from the plaintiff and other witness, including the scale of the publications and readership figures.

Can the serious harm test knock out defamation actions before trial?

Potentially!

Parties can make an application for the serious harm element to be determined before the trial for the proceeding commences (section 10A(5)). The first such application was recently determined by the County Court of Victoria in Wilks v Qu [2022] VCC 620; Judge Clayton granted it so that the question of serious harm, along with the meaning of the publications, were determined before trial.

He referred to Newman, where Justice Sackar noted that the "issue [of serious harm] would normally be determined before trial unless special circumstances suggest otherwise". Judge Clayton found that section 10A(5) "imposes a presumption that the [serious harm] element will be heard prior to trial and the considerations ordinarily pertinent to the trial of a separate question are not applicable". Accordingly, the only relevant considerations, or exception, is whether the threshold question of "special circumstances" under section 10A(6) had been met to justify postponement of the serious harm determination.

So what exactly are "special circumstances"? Section 10A(6) provides some guidance: cost implications, the court's resources, and whether the determination of serious harm is linked to other issues during a trial.

Judge Clayton found that, while not to be determined in a section 10A(5) application, at least some consideration of serious harm was required in determining matters that might constitute special circumstances. For example, in claims where serious harm is highly likely to be established on its face, the costs for a preliminary hearing might constitute special circumstances, as there would be no particular benefit of the hearing, or it would be waste of the Court's time and resources.

Regarding cost implications in this case, he found there were three possible scenarios:

1. If the serious harm element is not made out on any of the publications, the entire case will fall away, saving both parties from the substantial costs of a trial.
2. If the serious harm element is made out on all the publications, then the cost saving will likely be marginal compared with the additional costs involved in having two hearings.
3. If the serious harm element is made out on some of the publications but not all of them, this could result in a significant reduction in the length and complexity of the trial.

In respect of the court's resources, he found that relevant factors included "the stage of the proceedings, the proximity of the trial date, and the availability of judicial officers". In this case the Court's resources did not amount to special circumstances, as the application had been made at the earliest opportunity before the close of pleadings and the matter was not close to trial.

As for the link between the determination of serious harm and other issues during a trial, Justice Clayton found that the issues raised in determining serious harm would be confined to the meanings of the imputations and the cause of harm suffered, and that the issues for determination at the trial will be the defences raised, the extent of harm suffered, and the assessment of damages. Accordingly, the issues raised in determining serious harm were not "so inextricably linked to other issues that disentanglement is impossible or undesirable" that would amount to special circumstances.

Judge Clayton also considered other factors regarding special circumstances, including trauma of witnesses, the fact that no defence had been filed, and that the extent of harm was not yet known. The application was ultimately granted, and the question of serious harm, along with the publications' meanings, was to be determined as preliminary issues on affidavit evidence, with the right to cross-examination on notice.