What you need to know
- The Federal Court has issued its first Defamation Practice Note, outlining procedures to be followed in defamation proceedings commenced in the Federal Court.
What you need to do
- Ensure you are complying with the new Practice Note in both new and existing matters.
- In particular, you should bear in mind the requirements in the Practice Note relating to timing for filing a defence and making objections to the statement of claim, and the key differences in procedure between defamation proceedings in the Federal Court and other jurisdictions.
On 12 November 2019, Chief Justice Allsop issued the Federal Court of Australia Defamation Practice Note (DEF-1). This is the first Practice Note issued by the Federal Court in relation to defamation.
The Practice Note largely codifies existing practice in defamation proceedings in the Federal Court, which differs in some material respects to usual non-defamation Federal Court procedure, and procedure in defamation matters in other courts.
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].
Discovery and interrogatories
Requests for discovery should be made with consideration to Part 10 of the Central Practice Note.
DEF-1 states that the Court will not order a party to answer interrogatories unless satisfied that it is necessary for the resolution of the real issues in dispute ([6.2]), placing an onus on parties to establish why interrogatories should be ordered. This requirement closely mirrors the equivalent provision of the New South Wales Supreme Court Practice Note. The experience to date under that Practice Note has been that the Court regularly orders parties to answer interrogatories, provided it is satisfied of their necessity.
The requirement under [4.7] of DEF-1 for a respondent to file and serve on the applicant a statement indicating the extent of publication will obviate the need for the applicant to administer interrogatories requesting this information.
Evidence
Under DEF-1, evidence-in-chief will ordinarily be led orally and outlines of evidence are to be exchanged in advance of the hearing. Even if the parties agree that evidence-in-chief should be by way of affidavit, the Court may not accept such an agreement ([7.2]).
This contrasts with usual Federal Court procedure where written evidence-in-chief is the status quo, but aligns with typical defamation practice in the New South Wales Supreme and District Courts.
The wording of DEF-1 suggests the Court will be reluctant to accept written evidence-in-chief in defamation proceedings, though parties do sometimes agree in defamation proceedings to prepare at least some evidence-in-chief as affidavits (if, for example, a witness is not readily available, or is only giving evidence on a discrete point).
Notably, DEF-1 also emphasises that the purpose of outlines of evidence is only to provide notice of evidence and, without leave, they are not to be the subject of cross-examination or be tendered as a prior statement of the witness.
Other Comments
Under DEF-1, matters will be referred to mediation at an appropriate stage, with the referral to be addressed at the first case management hearing ([5.2]).
DEF-1 also emphasises that defamation matters in the Federal Court will usually be heard by a judge alone, rather than a jury. This is typical for matters heard in the Federal Court. However, as noted above, this is a significant point of difference from other jurisdictions, which has flow on effects to other aspects of the Court's case management of defamation proceedings.
Defamation Law Reform
The current review by the Council of Attorneys-General of the model defamation provisions touches on a number of issues relevant to DEF-1.
The review has raised the question of whether the Federal Court of Australia Act 1976 (Cth) should be amended to allow the hearing of matters by juries. As discussed above, the Federal Court's position on jury trials in defamation has created an inconsistency across various jurisdictions, with litigants in defamation claims encountering substantively different case management procedures depending on the court in which the action is commenced. The proposed reforms may assist in bridging the gap between the practice in different courts and reducing the ability for claimants to engage in forum shopping when commencing a defamation action.
Another proposed aspect of defamation law reform, which is not currently covered in DEF-1, is the introduction of a threshold seriousness of harm test. If such a test is introduced under new legislation, the current case management procedure set out in DEF-1 may need to be amended to provide respondents with the opportunity to apply to the Court at an early stage in proceedings for a ruling that the applicant's claim does not meet the necessary threshold of serious harm.
The Council of Attorneys General is currently working towards a timetable that aims to have Australian Parliaments enacting changes to defamation legislation by mid next year.
Authors: Robert Todd, Partner; Nick Perkins, Senior Associate; and Imogen Loxton, Lawyer.
