Practice makes perfect? Reviewing the new Federal Court Defamation Practice Note

We set out below some of the significant points from Practice Note DEF-1 (DEF-1) from a litigant's perspective.

Pleadings, First Case Management Hearing and Interlocutory Applications

DEF-1 provides that any defence is to be filed prior to the first case management hearing, within 28 days of service of the statement of claim ([4.5]). The parties are required to inform the Court of any objections to both the statement of claim and the defence at the first case management hearing ([4.8]). This means any objections to the form of the statement of claim will only be heard after the defence has already been filed in response to the (potentially deficient or defective) pleadings.

This contrasts the approach taken by courts in other jurisdictions.  For example, in both the New South Wales Supreme and District Courts, a date for the filing of a defence will generally be ordered after any objections to the statement of claim have been determined.  

DEF-1 also states that issues concerning:

• the capacity of the impugned matter to convey the pleaded meaning; 
• whether a pleaded meaning is capable of being defamatory; and
• whether the impugned matter is capable of identifying the applicant,

should not ordinarily be litigated as separate questions at the interlocutory stage, and instead should be included in the issues to be determined with at trial. When issues of this kind do need to be dealt with at the interlocutory stage, then, subject at all times to the discretion of the judge, they will ordinarily be dealt with as a pleadings adequacy issue, rather than as a separate question ([4.10]).

The deferral of determination of these issues until the trial represents a divergence from the usual practice in other courts.  For example, in the New South Wales Supreme Court parties ordinarily argue any capacity objections at the first listing date before the defamation list judge.  

This difference in approach reflects the fact that defamation trials in the Federal Court are usually determined by a judge alone, which has resulted in the Court questioning the utility of determining issues of capacity on an interlocutory basis prior to the trial (Murphy v Nationwide News Pty Ltd [2017] FCA 603 at [14]; Goodfellow v Fairfax Media Publications Pty Ltd [2017] FCA 1152 at [78]).  By contrast, parties in the New South Wales Supreme and District Court have the right to elect a trial by jury and these courts routinely deal with capacity objections at very early stages of proceedings.

Respondents to defamation proceedings in the Federal Court will be mindful of the risk they face of incurring time and costs in preparing a defence to imputations which may ultimately be found by the trial judge to not be conveyed by the matter complained of, particularly in cases where a truth defence is relied on.  DEF-1 emphasises the Court's desire for the quick, efficient and inexpensive disposition of each matter ([4.2]).  It remains to be seen whether the Court's preference for deferring issues such as capacity objections to the final hearing will be effective in fulfilling this objective.

DEF-1 also contains certain form requirements for the provision of copies of the matters complained of and the defence ([3.3]-[3.5], and [4.6]).

It further states that, if appropriate, a final hearing date may be set at the first case management hearing, and so the parties should come to the first case management hearing with appropriate timetables and any issues with dates ([4.8(d)] and [4.9].