Defamation – 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 eclipsed 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.  If this course of action is taken by a defendant, 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. On a practical level, in cases where the ‘serious harm’ element is not satisfied, the proceedings may be dismissed efficiently as it is no longer necessary to hold a full trial of all the issues in dispute.

The recent decision in Peros v Blackburn [2024] FCA 177 illustrates two things:

1. the differences between the federal and state courts in approaching separate hearings on the question of ‘serious harm’; and
2. 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 summary

We summarise the background of 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.

Seemingly, for procedural reasons, Ms Blackburn’s application was pursued solely under the Federal Court Rules, rather than under the provisions of the defamation legislation. This is an important point. 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.

In summarising the principles relating to rule 30.01 of the Federal Court Rules, the Court noted:

1.  that, as a matter of principle and policy, all issues in a case should be heard and determined together.
2. 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.
3. that certain factors often weigh against making an order for the hearing of a separate question. Those where:
   • the proceedings could become fragmented or delayed by an appeal on the seperate question while the remainder proceeds;
   • there could be an overlap between the evidence on the seperate question and the evidence led at trial, potentially leading to deuplication in evidence; and
   • issues of fact or law between the seperate question and the remaining questions of the proceeding may be intertwined.

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

Comments

The case clearly demonstrates the differences between the federal and state courts in approaching separate hearings on the question of ‘serious harm’. The Court acknowledged that Ms Blackburn’s application may well have succeeded if brought under Queensland’s defamation legislation. 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.

Practically speaking, the case demonstrates that for respondents in the Federal Court who wish to seek a separate hearing, it is critical to clearly define the parameters of the proposed separate hearing – parties ought to 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.

Winterkorn Legal Group regularly act for clients seeking to protect their reputation harmed by defamatory imputations and also clients facing allegations of defamation.  If you require any assistance with your defamation matter, please contact one of our experts on 1300 660 884.

Jarred Winterkorn | gagan singh