Hoser v Harrison

(1) In order to succeed, a plaintiff must satisfy the threshold of showing that the publication has caused or is likely to cause serious harm to his or her reputation.

(2) "Serious" harm involves harm that is more than merely substantial, though it need not be grave.

(3) The requirement for serious harm to reputation is concerned with actual or likely reputational damage - that is, the impact of the imputation, in all the circumstances, on the plaintiff's reputation - arising from a combination of the inherent tendency of the words and their actual impact on those to whom they were communicated. It is not satisfied by the gravity of the imputation alone. Nor is it satisfied by injury to feelings, however great. Relevant factors include the meaning of the words, the extent of the publication, the nature of the recipients and their relationship with the plaintiff, and whether they believe the imputations.

(4) A grave imputation may not result in serious harm, typically where the publication is to a small number of persons well acquainted with the plaintiff who are not disposed to believe it, and any impact of the imputation on the plaintiff's reputation is transitory or ephemeral.

29 The following conclusions of the trial judge accord with those propositions:

(1) Section 1 introduced a "new threshold of serious harm which did not previously exist", and "Claimants therefore need to establish that serious harm has been caused or is likely to be caused as a fact";

(2) "More than the mere inherent tendency of the words is required, even where the words amount to a grave allegation against the plaintiff, and special emphasis is to be placed on the circumstances and extent of publication";

(3) "Serious harm should not be conflated with hurt to feelings. However distraught the plaintiff may have been, this personal hurt is not evidence of harm to reputation because harm depends upon 'a combination of the inherent tendency of the words and their actual impact on those to whom they were communicated'"; and

(4) "findings of serious harm should be based on the circumstances and extent of publication, whether the publication was likely to have come to the attention of others at the time or in the future and the gravity of the imputations. The meaning of the words, the situation of the plaintiff, the circumstances of publication and the inherent probabilities are also relevant".

1. In considering the applicant's grounds of appeal, Besanko J identified what his Honour considered to be the relevant principles. These included the following:

(a) "At common law, subject to some exceptions which are not presently material, damage from the publication of defamatory imputations was presumed, not proved, and the presumption was irrebuttable".[66]

(b) "The effect of s 10A of the Act is, among other things, to remove the presumption that the defamatory imputations have caused damage (Lachaux at [20] per Lord Sumption) together with any presumption of a good reputation, if the latter presumption was part of the common law".[67]

(c) If "there is no presumption that the plaintiff had a good reputation, that does not prevent a plaintiff from adducing evidence of good character. At common law, a defendant may adduce evidence of a plaintiff's bad character in mitigation of damages".[68]

(d) To "show the extent of the harm and whether it is properly characterised as "serious harm", one would ordinarily expect the plaintiff to adduce evidence of his or her pre-existing reputation (see Gatley C at [34-069])".[69]

(e) General bad character of a plaintiff is relevant to whether there is serious harm, although the respondents bear the onus of establishing bad character.[70]

1. Besanko J referred to a number of passages from the judgment of Lord Sumption in Lachaux, including the following:[71]

... Suppose that the words amount to a grave allegation against the claimant, but they are published to a small number of people, or to people none of whom believe it, or possibly to people among whom the claimant had no reputation to be harmed. The law's traditional answer is that these matters may mitigate damages but do not affect the defamatory character of the words. Yet it is plain that s 1 was intended to make them part of the test of the defamatory character of the statement.

1. His Honour also reproduced the following passage from the judgment of Warby J in Price v MGN Ltd:[72]

(1) A defendant may seek to show that the claimant's reputation has not in fact suffered, or not much, by proving that at the time of publication the claimant had an existing bad reputation. This was a clear common law principle in relation to mitigation of damages. The same point holds good, but with greater force, in the modern legal context where a claimant must establish "serious harm" under s 1. In principle, a defendant can establish that there is no cause of action because the claimant's reputation is so bad that the offending publication did not cause serious harm. Ahmed (above) is a case where it was so clear that this would be the outcome that summary judgment was appropriate.

(2) But there are clear limits to what is considered relevant and admissible for the purpose of, and the means by which a bad reputation can be proved.

(a) Reputation is not considered for this purpose to be a single indivisible thing. It is only the claimant's reputation in the relevant "sector" of his life that matters for this purpose.

(b) It is not legitimate to plead or prove in mitigation of damages specific acts of misconduct, even if they concern the same "sector" of the claimant's life: the rule in Scott v Sampson (1882) 8 QBD 491.

(c) It is not legitimate to rely in mitigation of damages on the fact that the publication complained of contains other defamatory allegations about the claimant of which he has not complained: Plato Films Ltd v Speidel [1961] AC 1090, where the House of Lords refused to reverse or qualify Scott v Sampson. At 1125, Viscount Simonds said this:

"It surprises me that it should be considered a proper matter for pleading that a plaintiff has not thought fit to include in his action every libellous statement made about him by a defendant. It is, in my opinion, wholly improper."

(d) Further, "it is not legitimate for a defendant to seek to reduce damages by proving [other] publications of the defendant or others, and inviting an inference that those other publications have injured the claimant's reputation." Lachaux v Independent Print Ltd [2015] EWHC 2242 (QB) [2016] QB 402 [15(9)], summarising "the rule in Dingle" (Associated Newspapers Ltd v Dingle [1964]AC 371). Bad reputation must be proved by calling witnesses to speak of a person's actual reputation in the relevant sector.

(e) By way of exception to these general principles, criminal convictions may be admitted in evidence to prove a bad reputation in a relevant sector of a person's reputation, as "they are the very stuff of reputation": Goody v Odhams Press Ltd [1966] 1 QB 333. This is the principle applied in Ahmed.

1. Besanko J said he saw no reason why the same approach should not be adopted if the facts relevant to reputation arise from, or are related to, the same events that are the subject of the defamatory material.[73]
2. Having discussed these matters, Besanko J held that the first and third matters on which the primary judge relied together justified the conclusion that the applicant had not established serious harm as required by s 10A(1).[74]

1. The second judgment to consider is that of Applegarth J in Peros v Nationwide News Pty Ltd.[75] In that case the plaintiff alleged that a podcast episode published by the respondent imputed the plaintiff had murdered another person. The plaintiff had been charged of that crime, but a jury acquitted him. A later coronial inquiry, however, led to the Coroner finding that the plaintiff killed the deceased. The defendants contended that before the publication of the relevant podcast episode, the plaintiff's reputation had been destroyed by the widespread reporting of the Coroner's findings that the plaintiff had killed the deceased.
2. Applegarth J identified a number of principles his Honour considered relevant to the explication of "serious harm":

(a) "Section 10A has been held to remove the presumption of damage, together with any presumption of a good reputation", noting that this "follows the approach adopted in the United Kingdom in Lauchaux".[76]

(b) The determination of harm is qualitative, not quantitative.[77] The judge's task is to evaluate the material before the court and "arrive at a conclusion on an issue on which precision will rarely be possible".[78]

(c) The determination of "serious harm" is made having regard to all of the circumstances of the case, not simply the circumstances of the publication.[79] The following matters are relevant:

(i) The gravity of the defamation.[80]

(ii) The extent of publication:[81]

Quantity counts in the evaluation of serious harm, but it is not necessarily decisive. The extent of publication is only one of many potentially relevant circumstances. The fact that the defamatory matter was published to only a few individuals does not necessarily mean that it did not cause "serious harm". Very serious harm to a reputation can be caused by the publication of defamatory matter to one person. The gravity of the defamation and other circumstances may mean that only a few recipients is not too few to result in serious harm.

A defamatory publication that is made by or attributed to a credible and reliable source is more likely to cause serious harm than a publication made by a partisan and prejudiced person who recipients of the publication would regard as unreliable or poorly informed. A defamatory publication that is presented as being the product of extensive research by an independent entity is more likely to cause serious harm than a publication that appears to be the product of no inquiry or consideration.

A statement made in an ephemeral medium, apparently spontaneously, such as a social media post in response to an earlier post, may have less potential for harm than a statement made in a permanent form that appears to be the product of analysis and reflection.

(v) The identity of the recipients:[84]

The defamatory matter may be published to persons who know or know of the claimant. For example, a statement made to the family or close friends of the claimant who instantly disbelieve it, is less likely to cause serious harm than if the statement is made to persons who do not know the plaintiff and who believe it.

In some contexts, a defamatory publication may be made to a group that does not alter its estimation of the person being referred to. For example, an email to members of a completely factionalised golf club about a protagonist may not shift the settled views of recipients about the protagonist.

(d) His Honour also referred to the relevance of the state of the complainant's reputation before the publication:[85]

(i) A person with a bad general reputation or a bad reputation in a relevant sector will struggle to prove that a defamatory publication caused serious harm to that already badly damaged reputation.

(ii) The complainant is not required to prove that he or she had a pre-existing reputation among all the recipients of the defamatory publication.

(iii) A person who has never come to public prominence can complain about the harm to reputation caused by a mass media publication that is communicated to all parts of the nation.

(iv) A claimant is not required to prove that he or she had a good reputation before attempting to jump the s 10A hurdle. This must be so, otherwise the remedies and vindication given by the law of defamation would not be available for someone with a somewhat tarnished reputation, or even a person whose reputation was under a cloud because of earlier publications and whose reputation was completely destroyed by the subject publication.

(v) If a publication injures a claimant only in a certain sector, then evidence of reputation must relate to that sector. Where a complainant has reputations in different sectors of their life, among members of the community in which they live, by persons who know them, or by persons who know of them the complainant is not required to prove that he or she had a pre-existing reputation among all of the recipients of the defamatory publication.

1. Additionally, Applegarth J identified some principles in relation to the proof of "serious harm". His Honour said:

(a) The serious harm element requires "proof of actual harm to reputation"; harm "is not presumed".[86]

(b) Harm may be proved by direct evidence, or by inference. Direct evidence consists of evidence from recipients of the publication or from persons who have heard others speak of the publication and its effect on their estimation of the complainant.[87] The gravity of the defamation, and the extent of the publication may permit actual harm to be reasonably inferred.[88] Reliance on inference alone may be a brave, forensic choice where there are competing and equally compelling inferences.[89]

1. As I have already noted, Australian courts have considered s 10A(1) of the Defamation Act on the basis that the principles English courts have developed in relation to the UK provision apply to s 10A(1); and they have particularly regarded Lord Sumption's explication of the UK provision in Lachaux to be an authoritative explication of s 10A(1) of the Defamation Act. But this approach overlooks some difficulties with the text of the UK provision; its explication by the English courts; and the incompatibility of what Lord Sumption in Lachaux said about the text of the UK provision with the text of s 10A(1) of the Defamation Act.

1. The UK provision seeks to incorporate into the denotation of one word, "defamatory", three distinct concepts which the common law denotes by three different words or expressions. The common law differentiates between that which is defamatory, namely, words which impute a person's character; the publication of such (defamatory) words; and injury to reputation occasioned by the publication of such (defamatory) words. Under the UK provision, on the other hand, a statement can only be characterised as defamatory if all of the requirements of the UK provision are met. This gives rise to a logical difficulty, if the UK provision is read literally. What character does the UK provision contemplate should be attached to a statement for the purpose of determining whether its publication will satisfy its requirements and therefore be "defamatory" within the meaning of the UK provision ? The practice of the English courts is to apply the common law notions of what is defamatory.[90] The UK provision, therefore, would need to be read as implicitly including after the word "statement" words to the effect "that was actionable under the common law of defamation".

"Actual harm" and "harm" that must arise "as a consequence of publication"

1. If the word "statement" in the UK provision is to be construed as meaning a "statement that was actionable under the common law of defamation", it would necessarily follow that the UK provision contemplates that the courts will apply the common law tests as to what is defamatory, and determine that question by reference to the hypothetical reasonable person. But if that is the case, it would also follow that "harm to reputation" in the UK provision would mean "harm to reputation" as that notion is understood under the tort of defamation, namely, the harm occasioned to reputation by the publication of the defamatory matter. That, however, is not how the UK provision has been construed.
2. In Lachaux Lord Sumption construed the UK provision as requiring that the question whether the publication of defamatory matter caused serious harm "be determined by reference to the actual facts about its impact and not just to the meaning of the words".[91] Lord Sumption explained later in his judgment what he means by this when his Lordship construed the words "has caused" in relation to "serious harm" as follows (emphasis added):[92]

The reference to a situation where the statement 'has caused' serious harm is to the consequences of the publication, and not the publication itself. It points to some historic harm, which is shown to have actually occurred. This is a proposition of fact which can be established only by reference to the impact which the statement is shown actually to have had. It depends on a combination of the inherent tendency of the words and their actual impact on those to whom they were communicated. The same must be true of the reference to harm which is 'likely' to be caused. In this context, the phrase naturally refers to probable future harm ... Both of these suggestions seem to me to be rather artificial in a context which indicates that both past and future harm are being treated on the same footing, as functional equivalents. If past harm may be established as a fact, the legislator must have assumed that 'likely' harm could be also. ...

1. This passage shows that Lord Sumption was of the view that harm to reputation does not arise on publication of the defamatory matter, but must be shown to arise as a consequence of the publication of the defamatory matter. And this will be demonstrated by reference to the impact which the statement is shown actually to have had. This suggests that his Lordship was of the view that the damage that arises as a consequence of the publication in question must be established by proving that people have read or had otherwise become aware of the publication; that such people understood the publication to have conveyed the imputation in the sense that a hypothetical ordinary reasonable person would have understood the imputation; and as a consequence the persons believe the imputation to be true or, at the very least, are in doubt the truth of the imputation.
2. It is doubtful, however, that Lord Sumption intended to hold that damage to reputation can never occur on publication, but only as a consequence of the publication of the defamatory matter. That doubt arises from his Lordship's consideration of whether the claimant in that case suffered damage when the publication in question was read by people who were unaware of the claimant. His Lordship said (emphasis added):[93]

Turning, finally, to the complaint about the impact of the publications on those who did not know Mr Lachaux but might get to know him in future, there is no principled reason why an assessment of the harm to the claimant's reputation should not take account of the impact of the publications on those who had never heard of him at the time. The claimant's reputation is harmed at the time of publication notwithstanding that the reader or hearer knows nothing about him other than what the publication tells him. It cannot make any difference that it is only later, when he comes to know the claimant personally, that the latter's diminished reputation is of any personal interest to him.

1. The passage indicates that Lord Sumption of the view that harm to reputation will occur where the reader of the defamatory publication knowns nothing of the person who has been defamed by the publication; and the harm will occur when the defamatory matter is published.
2. That it is doubtful that Lord Sumption intended to hold that damage to reputation can never occur on the publication of defamatory matter, but only as a consequence of its publication, is also apparent from the factors his Lordship considered were sufficient to establish that the publication in Lachaux caused or was likely to cause serious damage to the reputation of the claimant (emphasis added):[94]

On the footing that (as I would hold) Mr Lachaux must demonstrate as a fact that the harm caused by the publications complained of was serious, Warby J held that it was. He heard evidence from Mr Lachaux himself and three other witnesses of fact, and received written evidence from his solicitor. He also received agreed figures, some of them estimates, of the print runs and estimated readership of the publications complained of and the user numbers for online publications. He based his finding of serious harm on (i) the scale of the publications; (ii) the fact that the statements complained of had come to the attention of at least one identifiable person in the United Kingdom who knew Mr Lachaux and (iii) that they were likely to have come to the attention of others who either knew him or would come to know him in future; and (iv) the gravity of the statements themselves, according to the meaning attributed to them by Sir David Eady. Mr Lachaux would have been entitled to produce evidence from those who had read the statements about its impact on them. But I do not accept, any more than the judge did, that his case must necessarily fail for want of such evidence. The judge's finding was based on a combination of the meaning of the words, the situation of Mr Lachaux, the circumstances of publication and the inherent probabilities.

1. All of the factors identified in this passage are factors that would be considered under the tort of defamation to be relevant to assessing the extent of the injury occasioned by the publication of defamatory matter and, therefore, the amount of general damages that should be awarded for such injury.

1. In Selkirk and Peros it was said that at common law, subject to some exceptions, damage from the publication of defamatory imputations was presumed, not proved; the presumption was irrebuttable; and that the "effect of s 10A of the Act is, among other things, to remove the presumption".[95] As I have already noted, however, under the tort of defamation a person is injured or harmed in his or her reputation on the publication of defamatory matter; the injury or harm does not arise by the operation of any presumption. Once the injury or harm to reputation has occurred the complainant is entitled to be compensated for that injury or harm by an award of (general) damages; and the extent of the award of damages will depend on the presence or absence of factors that are relevant to assessing damages under the tort of defamation. Subsection 10A(1) of the Defamation Act, therefore, cannot be taken to have removed any presumption of damage; s 10A(1) only requires that the harm or injury to a person's reputation that is occasioned by the publication of defamatory matter must be serious.[96]

1. As I also have already noted, Applegarth J said in Peros that s 10A(1) of the Defamation Act also removed any presumption of a good reputation, if the latter presumption was part of the common law. As I noted as earlier, reputation per se is not an element of the tort of defamation; and it necessarily follows that any notion of "presumption of good reputation" does not arise in the tort of defamation. It also follows, therefore, that it cannot be said that s 10A(1) removed any such presumption.[97]

Does s 10A intend to make serious harm to reputation part of the test of the defamatory character of imputation conveyed by publication?

1. As I noted above, in Selkirk Besanko J quoted a passage from the judgment of Lord Sumption in Lachaux that it was plain that the UK provision intended to include in the test of the defamatory character of a statement matters (such as bad reputation) the common law treated as being relevant to mitigation of damages. That does not apply to s 10A(1) of the Defamation Act; that subsection adds as an element to the common law tort of defamation the requirement that "the publication of defamatory matter about a person has caused, or is likely to cause, serious harm to the reputation of the person". Thus, if a complainant establishes that a publication conveyed a defamatory imputation, but fails to satisfy s 10A(1), the complainant will not have failed in his action for defamation because the imputation conveyed by the publication was not defamatory; the complainant will have failed because he or she failed to prove that the publication of the defamatory matter caused or was likely to cause serious harm to the complainant's reputation.

1. Notwithstanding the observations I have made about the application to s 10A(1) of the principles English judges have applied to the UK Provision, I am bound to by the principles Besanko J stated and applied in Selkirk. Given, however, how the principles have in fact been applied in Lachaux, and in Selkirk and Peros, it is unlikely that any different result would follow if I were to apply my observations; and that is because, in assessing whether serious harm to reputation has been proved, the courts have in actual fact relied on factors that have been regarded as relevant in assessing general damages under the tort of defamation.

1. Subsection 10A(5) of the Defamation Act provides that "[i]f a party applies for the serious harm element to be determined before the trial for the proceeding commences, the judicial officer is to determine the issue as soon as practicable before the trial commences unless satisfied that there are special circumstances justifying the postponement of the determination to a later stage of the proceeding (including during the trial)". In Russell v S3@Raw Pty Ltd (No 3), however, Meagher J held that s 79(1) of the Judiciary Act 1903 (Cth) does not pick up s 10A(5) of the Defamation Act.[98] Meta acknowledges that her Honour's conclusion binds this Court; but it formally submits that her Honour's holding is incorrect.[99]
2. I am satisfied that the judgment in Rusell prevents me from applying s 10A(5) of the Defamation Act to Meta's application. The reason for which Meagher J held that s 79(1) of the Judiciary Act did not pick up s 10A(5) is that the latter subsection is inconsistent with s 37P of the Federal Court of Australia Act (1976) (Cth). This Court is bound by an equivalent provision, namely, s 192 of the FCFC Act, which means that, on the reasoning in Russell, s 10A(5) of the Defamation Act is inconsistent with s 192, and therefore is also not picked up by s 79(1) of the Judiciary Act.

1. Meta's application for the determination of the Separate Questions, therefore, must be determined by reference to r 22.01 of the GFL Rules, which provides that, at "any time in a proceeding, a party may apply to the Court for an order that a question arising in the proceeding be heard separately from any other questions". "Question" is defined in r 1.20 of the GFL Rules to include "a question or issue in a proceeding, whether of fact or law, or partly of fact and partly of law, and whether raised in a document, by agreement of the parties or otherwise".
2. The principles governing r 22.01 of the GFL were summarised by Derrington J in Peros v Blackburn:[100]

The principles governing the application of r 30.01 were generally not in dispute. They were articulated in the submissions of Mr Potter SC, counsel for Mr Peros, as follows:

1. as a matter of principle and policy, cases should be heard once with all issues heard and determined together and the attraction to separate an issue is usually more 'chimerical' than real and should only be embarked upon when their utility, economy and fairness are beyond question; [citing Tepko Pty Limited v Water Board [2001] HCA 19; (2001) 206 CLR 1, 178 ALR 634 at [168]- [170] per Kirby and Callinan JJ]
2. therefore it is an exceptional measure and should only be entertained in 'reasonably stark' cases. [citing Triguboff v Fairfax Media Publications Pty Ltd [2018] FCA 845 at [29]]

(Emphasis in original and citations included in text).

Further, as Mr Potter SC submitted, there are certain factors which generally militate against making an order. They are:

1. where there could be intertwined issues of fact or law between the separated question and the balance of the proceedings; [citing Reading Australia Pty Ltd v Australian Mutual Provident Society [1999] FCA 718; (1990) 240 FCR 276 at [8](g)]

2. where there could be an overlap between the evidence on the separate question and the trial (assuming the separate question does not resolve the proceedings); [ibid]

3. [w]here the proceedings could become fragmented or delayed by an appeal in one part whilst the remainder proceeds. [citing Tepko Pty Limited v Water Board [2001] HCA 19; (2001) 206 CLR 1 at [170]; Murdoch v Private Media (No 5) [2023] FCA 440 per Wigney J at [42]]

(Citations included in text).

. . . .

Whilst those principles might be properly discerned from the authorities, reference to the wording of r 30.01(1) shows that the power of the Court is generally untrammelled. That means that it must be exercised judicially and for the purposes for which it was granted. In that consideration the Court must necessarily take into account ss 37M and 37N of the Federal Court of Australia Act 1976 (Cth) and the overarching purpose of disposing of proceedings as cheaply and efficiently as possible.

(a) Mr Hoser's case on serious harm is tenuous, and there is a significant dispute in the proceeding, ripe for separate determination, as to whether Mr Hoser enjoyed a reputation capable of being harmed by the MCOs and, if he did, whether the harm Mr Hoser claims to have sustained was caused by other defamatory publications for which neither Meta nor Mr Harrison is liable.[101]

(b) The determination of the Separate Questions, if determined adversely to Mr Hoser, will dispose of his defamation claims against the respondents, "with potential cost saving to the respondents of over $1 million and greatly reduced imposition on judicial resources".[102]

(c) The determination of the Separate Questions will not be complex because their determination will require a "short hearing with few witnesses and confined cross-examination", and will largely be based on incontrovertible evidence, these being a large number of criminal convictions and adverse judicial findings entered against Mr Hoser before the publication of the MCOs.[103]

(d) There is a clear line of demarcation between issues that are the subject of the Separate Questions and the issues that are to be left for trial, and it is unlikely that any witness would have to give evidence at both the hearing of the Separate Questions and the subsequent trial.[104]

(e) Even if the determination of the Separate Questions does not dispose of Mr Hoser's defamation claims, it will significantly narrow the issues at trial and result in significant efficiencies and costs saving.[105]

1. The central aspect of Meta's application for the separate determination of the Separate Questions is its intention to mount a positive case that the MCOs did not cause, or were not likely to cause, substantial harm to Mr Hoser's reputation. Meta proposes to make good that case by reference to the following contentions:

(a) Mr Hoser did not, and does not, enjoy a good reputation in the sectors of reputation which were the subject of each MCO because he had a number of prior criminal convictions or findings of guilt for offences involving conduct in the relevant sectors; he has been the subject of a number of highly critical and adverse judicial findings in the relevant sectors; and he has a general poor reputation.[106] Meta supports, or intends to support, these contentions by what Meta identifies as "Category 1 Evidence",[107] "Category 2 Evidence",[108] and "Category 5 Evidence".[109]

(b) The Court could not be satisfied that the publication of the MCOs caused serious harm to Mr Hoser's reputation in circumstances where harm to reputation that is the subject of the 2FASC has previously been the subject of other defamation proceedings Mr Hoser brought in respect of other defamatory publications, to the same or like effect as the MCOs, for which Mr Harrison and Meta were not responsible .[110] Meta supports, or intends to support, this contention by what it identifies as "Category 3 Evidence".[111]

(c) The Court could not be satisfied that the publication of the MCOs caused serious harm to Mr Hoser's reputation in circumstances where Mr Hoser was the subject of other defamatory publications to the same or like effect as the MCOs.[112] Meta supports, or intends to support, this contention by what it identifies as "Category 4 Evidence".[113]

1. Mr Hoser's submissions in opposition to Meta's application for the separate determination of the Separate Questions are contained in a number of documents, these being the affidavit he made on 31 October 2025, and the written submissions he filed on 17 December 2025 and 5 January 2026. Mr Hoser also made extensive submissions at the hearing on 17 December 2025. Mr Hoser submits that the determination of the Separate Questions will not save time or costs; and he made submissions directed to the merits of the contentions Meta proposes to advance on the question of serious harm to reputation.
2. Mr Hoser also submits that the Court should not entertain the application for the determination of the Separate Questions because Meta has not filed a defence, by which I understand Mr Hoser to mean Meta has not filed a defence that complies with the GFL Rules or the Federal Court Rules 2011 (Cth). In his affidavit Mr Hoser submits that "more than 2 years into the case, [Meta] have not even filed a defence", and he rhetorically asks "how is it even possible for his honour to determine whether or not there should be a separate hearing when Meta have not even laid out to the court which parts of the statement of claim they agree with and which they do not". In his oral submissions, Mr Hoser referred to senior counsel for Meta calling the defence a "holding defence"; and he submitted that that is "not a defence". Mr Hoser further submits that in "any other court, that would have been thrown out, and the judge would have said, "Right. You've got X amount of time to file a defence."[114]
3. In the course of his oral submissions, I summarised to Mr Hoser what I understood to be his submissions:[115]

HIS HONOUR: Yes. Can I then just summarise your points.

MR HOSER: Yes.

HIS HONOUR: Right. So the reasons you say it shouldn't be determined separately are as follows: (1) ‑ ‑ ‑

MR HOSER: I haven't gone through all of them but the one so far. One so far. Yes.

HIS HONOUR: Yes, of course. Then you can keep on going if you have others.

MR HOSER: Yes.

HIS HONOUR: One is that they have reasonable - that the prospect of succeeding on a separate question of - you said are hopeless, so it would be a waste of time doing it. Secondly, it's part of a delay. Although, I think it links in with a separate one - with the following. You say there will be duplication. You say that I shouldn't be satisfied that credibility will not be the subject of anything I need to determine if I choose to have the question separately determined. In terms of costs, you say the other - they can bear the cost, both respondents. . . . You say that the hearing of the separate question will be lengthy, in any event, because you propose to call many witnesses who will speak to your reputation.

MR HOSER: Correct. Now, in terms of ‑ ‑ ‑

HIS HONOUR: And then you say that the more efficient thing will be for - you say that Meta - although, I think you're only referring to Meta here - have filed a defence, which, at the moment, does not disclose what the real issues are, and until I know what the real issues are, I shouldn't - for determination a separate question. I think that's what you're saying.

MR HOSER: Yes.

HIS HONOUR: All right.

1. It is unnecessary to refer to the other submissions Mr Hoser made. It is necessary, however, to refer to the submissions senior counsel for Meta made in response to the submissions Mr Hoser made about Meta's not having filed a defence.
2. Senior counsel for Meta said that "Mr Harrison has filed a defence, and any defences that Meta will take will be a subset of those"; and, for that reason, "the court has before it all the issues, and, in any event, [the Court] has Mr Owens' evidence".[116] That is a reference to the affidavit Mr Owens, a partner of the law firm representing Meta, made on 30 September 2025 in which he outlines the matters on which he says Meta intends to rely on the separate determination of the Separate Questions. Senior counsel also referred to paragraph 51 of the affidavit of Mr Owens, noting that "he outlines the defences that [as] presently instructed [Meta] is likely to take".[117] In that paragraph Mr Owens said:

Consistent with the Separate Question Application, the Second Respondent will challenge the pleaded imputations and deny that MCOs 1-3 have caused serious harm to the Applicant's reputation. In addition, I anticipate that in due course I will receive instructions to defend the Applicant's remaining claims against the Second Respondent, including whether it was a publisher of MCOs 1-3 and, if so, whether it was a subordinate distributor and thus entitled to a defence of innocent dissemination.

1. There are number of difficulties in the way of my making orders for the separate determination of the Separate Questions. The most obvious difficulty arises from the nature of the "defence" Meta has filed. As I have already noted, senior counsel for Meta characterised Meta's defence as a "holding defence". That description, however, has no foundation in the GFL Rules. The principal rule that governs the pleading of defences in this Court is contained in r 13.08 of the GFL Rules, which provides:

13.08 Admissions, denials and deemed admissions

(1) A party pleading to an allegation of fact in another party's pleading must specifically admit or deny every allegation of fact in the pleading.

(2) Allegations that are not specifically denied are taken to be admitted.

(3) However, a party may state that the party does not know and therefore cannot admit a particular fact.

(4) If a party makes a statement mentioned in subrule (3), the particular fact is taken to be denied.

1. The note to this rule states that it "requires a party to address each material fact pleaded in an opposing party's pleading. A general denial or an evasive answer will not be sufficient". What has now been included as a note to a rule reflects the substance of what used to be contained in O 11 r 11.17 of the Federal Court Rules 1979 (Cth), which provided that a party "shall not plead the general issue".[118] It is not apparent that Meta's defence complies with r 13.08 of the GFL Rules. That means, as Mr Hoser in effect submits, that the issues between Mr Hoser and Meta have not been properly identified; and for that reason, it cannot with any confidence be determined whether the separate determination of the Separate Questions will have the advantages Meta contends it will have.
2. It is no answer to not having filed a defence that complies with the GFL Rules that issues have arisen from another respondent's having filed a defence to a statement of claim. It may be open for one respondent to adopt answers another respondent makes to a statement of claim, and make those answers its own; but Meta has not purported to do that. Nor is it an answer that Mr Owens, in his affidavit, says that "in due course" Meta intends to raise defences to other claims Mr Hoser makes. What Mr Owens says he expects Meta will instruct him to do in relation to the filing of an amended defence is incapable of standing in the place of a defence that complies with r 13.08 of the GFL Rules.
3. It may be accepted that there may be circumstances where not filing a defence that complies with the GFL Rules would not be a bar to the question of serious harm being determined as a separate question. That will be the case, for example, on an application for summary dismissal, where the question of serious harm would be determined solely by reference to the allegations of serious harm to reputation contained in a statement of claim, and any evidence on which an applicant may adduce in support of such allegations. Meta, however, does not propose to have the questions of serious harm determined solely by reference to the matters alleged in the 2FASC, or to any of the affidavits Mr Hoser has filed in the proceeding. And this brings me to a second, and more significant, difficulty in the way of my ordering the separate determination of the Separate Questions.
4. As I have noted, Meta proposes to mount affirmative cases on the question of serious harm to Mr Hoser's reputation: it proposes to contend that Mr Hoser does not enjoy a good reputation because he had a number of prior criminal convictions or findings of guilt for offences involving conduct in the relevant sectors; he has been the subject of a number of highly critical and adverse judicial findings in the relevant sectors; he has a general poor reputation; he has previously been the subject of other defamation proceedings Mr Hoser brought in respect of other defamatory publications for which neither Mr Harrison nor Meta was responsible to the same or like effect as the MCOs; and Mr Hoser was the subject of other defamatory publications that were to similar or like effect as the MCOs. These are matters, however, that Meta must specifically plead before they can arise as issues between Meta and Mr Hoser for determination in the proceeding, whether they are to be determined separately before trial, or at trial. That obligation arises not only out of basic notions of fairness to Mr Hoser, but also under r 13.09 of the GFL Rules, which provides:

13.09 Matters that must be expressly pleaded

In a pleading subsequent to a statement of claim, a party must expressly plead a matter of fact or point of law that:

(a) raises an issue not arising out of the earlier pleading; or

(b) if not expressly pleaded, might take another party by surprise if later pleaded; or

(c) the party alleges makes another party's claim or defence not maintainable.

1. Meta's not having pleaded what it ought to have pleaded in support of what it says will be its affirmative cases on serious harm to reputation means that the matters on which it intends to rely at the hearing of the determination of the Separate Questions are not matters that are currently in issue between Mr Hoser and Meta; and, for that reason, they are not matters which it would be appropriate to determine separately.
2. Quite apart from these difficulties, I am unable to assess whether if, on the determination of the Separate Questions, Mr Hoser were to succeed in establishing that his reputation was seriously harmed, Mr Harrison (and Meta) will rely on the extensive matters on which Mr Harrison in his defence relies in mitigation of damages and, if so, I am unable to assess the extent to which matters that would be traversed or determined on the hearing of the determination of the Separate Question will also be traversed and determined at trial on the question of mitigation of damages. For these reasons also, I could not with any degree of confidence be satisfied that the separate determination of the Separate Questions will have the advantages Meta contends it will have.

1. I propose to dismiss Meta's application for the separate determination of the Separate Questions. I will also order that by 20 March 2026 Meta file a defence to the 2FASC or, alternatively, file an interlocutory application for an order that its current defence not be struck out on the ground that it does not comply with r 13.08 and r 13.09 of the GFL Rules, such interlocutory application to be made returnable for directions at a directions hearing I propose to fix at 9.30 am on 2 April 2026.

I certify that the preceding one hundred and three (103) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis.

[1] Hoser v Harrison [2024] FedCFamC2G 436.

[2] Hoser v Harrison (No 2) [2024] FedCFamC2G 786.

[4] Amended Statement of Claim, appendix, pages 163-244.

[5] Amended Statement of Claim, [122].

[18] [2017] FCAFC 156, at [17].

[19] Rana v Google Inc [2017] FCAFC 156, at [21].

[20] Rana v Google Inc [2017] FCAFC 156, at [21].

[21] Rana v Google Inc [2017] FCAFC 156, at [20].

[22] I will generally use the expression "at common law" or "the common law" instead of "at general law" or "the general law".

[23] Thompson v Australian Capital Television Pty Ltd (1994) 54 FCR 513, at page 626; [1994] FCA 1563, at [29]. See also Lachaux v Independent Print Ltd [2020] AC 612, at page 623; [2019] UKSC 27, at [13], where Lord Sumption said: "There is a presumption that a statute does not alter the common law unless it so provides, either expressly or by necessary implication."

[24] "The central concern at the heart of defamation law is the deterring of and remedying of unwarranted harm to reputation" (Gatley on Libel and Slander 13th edition 2022 Thomson Reuters, at [1-004]); "[T]he central characteristic of an action for defamation [is] a remedy for publications which damage a person's reputation" (Berkoff v Burchill [1996] EWCA Civ 564; [1996] 4 All ER 1008, at page 1018, Neill LJ).

[25] Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16; (2009) 238 CLR 460, at page 477; [2009] HCA 16, at [36].

[26] Plato Films Ltd v Speidel [1961] AC 1090, at page 1138 (Lord Denning).

[27] I ignore that at common law there were separate torts governed by their own set of rules, namely, libel, which was constituted by the publication of written defamatory matter, and slander, constituted by publication of defamatory matter by non-material means. Subsection 7(1) of the Defamation Act abolishes the distinction between slander and libel.

[28] Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460; [2009] HCA 16, at [5].

[29] Parmiter v Coupland [1840] EngR 168; (1840) 6 M & W 105, at page 108; [1840] EngR 168; 151 ER 340, at page 342 (Parke B).

[30] Yousoupoff v Metro-Goldwyn-Meyer Pictures (1934) 50 TLT 581, at page 587 (Slesser LJ). In Thornton v Telegraph Media Group Ltd [2010] EWHC 1414 (QB) Tugendhat J identified nine definitions of "defamatory," which include the three I have identified.

[31] Uren v John Fairfax & Sons Pty Ltd [1966] HCA 40; (1966) 117 CLR 118, at page 150 (Windeyer J).

[32] Uren v John Fairfax & Sons Pty Ltd [1966] HCA 40; (1966) 117 CLR 118, at page 150 (Windeyer J).

[33] Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44, pages 60-61; [1993] HCA 31, at [13].

[34] Dow Jones & Company, Inc v Gutnick M3/2002 [2002] HCATrans 253 (emphasis added).

[35] Lachaux v Independent Print Ltd [2020] AC 612, at [25]. Note also Lod Denning's observations in Plato Films Ltd v Speidel [1961] AC 1090, at page 1138: "A man can sue for damage to his character in this sense [that is, the esteem in which he is held by others], even though he is little known to the outside world. If it were said of Robinson Crusoe that he murdered Man Friday, he would have a cause of action, even though no one had ever heard of him before."

[36] Webb v Bloch [1928] HCA 50; (1928) 41 CLR 331, at page 363 .

[37] Dow Jones and Company Inc v Gutnick (2002) 210 CLR 575, at page 600; [2002] HCA 56, at [25].

[38] Webb v Bloch [1928] HCA 50; (1928) 41 CLR 331, at page 363.

[39] Trkulja v Google LLC [2018] HCA 25, at [31].

[40] Readers Digest Services Proprietary Limited v Lamb [1982] HCA 4; (1981) 150 CLR 500, at page 507 (Brennan J).

[41] Readers Digest Services Proprietary Limited v Lamb [1982] HCA 4; (1981) 150 CLR 500, at page 507.

[42] Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44, page 102; [1993] HCA 31, at [32].

[43] Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44, pages 60-61; [1993] HCA 31, at [32].

[44] The Herald and Weekly Times Ltd v McGregor [1928] HCA 36; (1928) 41 CLR 254, at pages 262-263.

[45] Kumova v Davison (No 2) [2023] FCA 1, at [291].

[46] Faruqi v Latham [2018] FCA 1328, at [159]-[164].

[47] Goody v Odhams Press Ltd [1967] QB 333, at page 340.

[48] Channel Seven Sydney Pty Ltd v Mahommed [2010] NSWCA 335, at [254] (McColl JA, Spigelman CJ, Beazley JA, McClellan CJ at CL and Bergin CJ in Eq agreeing).

[49] Dow Jones and Company Inc v Gutnick (2002) 210 CLR 575, at page 600; [2002] HCA 56, at [25] (emphasis added).

[50] Dow Jones and Company Inc v Gutnick (2002) 210 CLR 575, at page 600; [2002] HCA 56, at [25] (emphasis added).

[51] Lee v Wilson & Mackinnon [1934] HCA 60; (1934) 51 CLR 276, at page 287 (Dixon J).

[52] Dow Jones and Company Inc v Gutnick (2002) 210 CLR 575, at page 600; [2002] HCA 56, at [26].

[53] Rader v Haines [2022] NSWCA 198, at [28].

[54] Thornton v Telegraph Media Group Ltd [2010] EWHC 1414 (QB).

[55] Thornton v Telegraph Media Group Ltd [2010] EWHC 1414 (QB), at [90].

[56] Thornton v Telegraph Media Group Ltd [2010] EWHC 1414 (QB), at [92]-[94].

[57] The quotation is taken from the UK Explanatory Notes.

[58] Lachaux v Independent Print Ltd [2019] UKSC 27; [2020] AC 612.

[59] Selkirk Wyatt [2024] FCAFC 48 (Anderson and Sullivan JJ agreeing).

[60] Selkirk Wyatt [2024] FCAFC 48, at [27].

[61] Selkirk Wyatt [2024] FCAFC 48, at [28].

[62] Selkirk Wyatt [2024] FCAFC 48, at [30].

[63] Selkirk Wyatt [2024] FCAFC 48, at [33].

[64] Selkirk Wyatt [2024] FCAFC 48, at [41]-[50].

[65] Rader v Haines [2022] NSWCA 198, at [28], [29] (Macfarlan JA agreed, and Basten AJA agreed subject to one qualification). In Rader the Australian common law principles of the conflict of laws required the Court to apply the law of the United Kingdom, not s 10(1) of the Defamation Act.

[66] Selkirk Wyatt [2024] FCAFC 48, at [91].

[67] Selkirk Wyatt [2024] FCAFC 48, at [94].

[68] Selkirk Wyatt [2024] FCAFC 48, at [93].

[69] Selkirk Wyatt [2024] FCAFC 48, at [95].

[70] Selkirk Wyatt [2024] FCAFC 48, at [96], [97].

[71] Selkirk Wyatt [2024] FCAFC 48, at [99]. The quotation is from Lachaux v Independent Print Ltd [2020] AC 612, at [16].

[72] Selkirk Wyatt [2024] FCAFC 48, at [101]. The quotation is from Price v MGN Ltd [2018] EWHC 3014; [2018] 4 WLR 150, at [46].

[73] Selkirk Wyatt [2024] FCAFC 48, at [102].

[74] Selkirk Wyatt [2024] FCAFC 48, at [104].

[75] Peros v Nationwide News Pty Ltd [2024] QSC 192.

[76] Peros v Nationwide News Pty Ltd [2024] QSC 192, at [51].

[77] Peros v Nationwide News Pty Ltd [2024] QSC 192, at [55], referring to Dhir v Saddler [2017] EWHC 3155 (QB); [2018] 4 WLR 1 at [55].

[78] Peros v Nationwide News Pty Ltd [2024] QSC 192, at [55], quoting from Lachaux v Independent Print Ltd [2020] AC 612, at [21].

[79] Peros v Nationwide News Pty Ltd [2024] QSC 192, at [56].

[80] Peros v Nationwide News Pty Ltd [2024] QSC 192, at [58].

[81] Peros v Nationwide News Pty Ltd [2024] QSC 192, at [59].

[82] Peros v Nationwide News Pty Ltd [2024] QSC 192, at [61].

[83] Peros v Nationwide News Pty Ltd [2024] QSC 192, at [62].

[84] Peros v Nationwide News Pty Ltd [2024] QSC 192, at [63], [64].

[85] Peros v Nationwide News Pty Ltd [2024] QSC 192, at [67]-[72].

[86] Peros v Nationwide News Pty Ltd [2024] QSC 192, at [79].

[87] Peros v Nationwide News Pty Ltd [2024] QSC 192, at [81].

[88] Peros v Nationwide News Pty Ltd [2024] QSC 192, at [83].

[89] Peros v Nationwide News Pty Ltd [2024] QSC 192, at [83].

[90] See Practice Direction 53B - Media and Communications Claims, at [6.1], which relevantly provides that at "any time in a defamation claim the court may determine . . . whether the statement is defamatory of the claimant at common law". In a footnote to the quotation of this paragraph the editor of Gatley on Libel and Slander, 13th Ed, at [32-002], after referring to Thornton, says that if "the statement complained of is not defamatory at common law, the question of serious harm to reputation under s.1 of the Defamation Act 2013 does not arise".

[91] Lachaux v Independent Print Ltd [2020] AC 612, at [12].

[92] Lachaux v Independent Print Ltd [2020] AC 612, at [14].

[93] Lachaux v Independent Print Ltd [2020] AC 612, at [25].

[94] Lachaux v Independent Print Ltd [2020] AC 612, at [21].

[95] Selkirk Wyatt [2024] FCAFC 48, at [94]; see also Peros v Nationwide News Pty Ltd [2024] QSC 192, at [51].

[96] It may be relevant to note that a search of ""presumption of damage" + "defamation"" in the Austlii data bases returns a small number of responses, none of which are from the data base maintained in relation to the judgments of the High Court.

[97] It may also be relevant to note that a search of "presumption of good reputation" or "presumption of a good reputation" in the Austlii data bases returned six responses, none of which are from the data base maintained in relation to judgments of the High Court.

[98] Russell v S3@Raw Pty Ltd (No 3) [2024] FCA 991, [47] - [49].

[99] Second Respondent's Submissions, [1.6].

[100] Peros v Blackburn [2024] FCA 177, at [17], [28], [30]. Her Honour considered r 30.01 of Federal Court Rules 2011 (Cth) (FC Rules), being the equivalent provision to r 22.01 of the GFL Rules.

[101] Second Respondent's Submissions, [1.2(a)].

[102] Second Respondent's Submissions, [1.2(b)].

[103] Second Respondent's Submissions, [1.2(c)].

[104] Second Respondent's Submissions, [1.2(d)].

[105] Second Respondent's Submissions, [1.2(e)].

[106] Second Respondent's Submissions, [4.3].

[107] Affidavit M A Owens 30.09.2025, [32(a)], [33]; annexure MAO-5.

[108] Affidavit M A Owens 30.09.2025, [32(b)], [33]; annexure MAO-5.

[109] Affidavit M A Owens 30.09.2025, [32(e)], [40].

[110] Second Respondent's Submissions, [4.4].

[111] Affidavit M A Owens 30.09.2025, [32(c)], [34].

[112] Second Respondent's Submissions, [4.5].

[113] Affidavit M A Owens 30.09.2025, [32(d)], [36], [37]; annexure MAO-7.

[118] See Australian Competition and Consumer Commission v Craftmatic Australia Pty Ltd [2009] FCA 972, at [11]. The rule which prohibits the pleading of the general issue remains in r 14.20 of the Uniform Civil Procedure Rules 2005 (NSW). In Shiina v Park [2017] NSWSC 966, at [5], Davies J said: "The denials by the Defendant without particularisation amounts to a plea of the general issue."