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Category: Procedural rulings

Parties: Anant Khare (Plaintiff/Respondent)
Veronica Young (Defendant/Applicant

Representation: Counsel:
R Rasmussen (Plaintiff/Respondent)
J E McKenzie (Defendant/Applicant)
Solicitors:
Kalantzis Lawyers (Plaintiff/Respondent)
Progressive Legal (Defendant/Applicant)

File Number(s): 2026/00099055

Publication restriction: Nil.

JUDGMENT

1. HIS HONOUR: Pursuant to s 10A(4) of the Defamation Act 2005 (NSW) (“the Act”) and by way of Notice of Motion filed 28 May 2026 (“Motion”), Ms Young seeks an order for a separate determination of the serious harm element of the cause of action for defamation brought by Mr Khare in advance of the final hearing.

2. For the reasons that follow, I will grant the relief sought and order that the question of serious harm be listed for hearing for a two-day separate hearing and determination of that issue on a date to be fixed suitable to the parties and the Court.

Background

3. I will briefly summarise Mr Khare’s case to frame the dispute. The plaintiff and defendant were both (at the relevant time) lot owners within a strata complex, and both were serving on the committee for that complex.

4. Mr Khare pleads seven publications of allegedly defamatory matter. Each is an email to a small number of recipients who are all, in some way, related to the strata complex. Mr Khare relies also upon the “grapevine effect” to extend the breadth of publication.

5. Without intending to be exhaustive, the publications are said to convey imputations that Mr Khare misappropriated funds owned by the owner’s corporation of the strata complex and he bullies other members of the committee. Each publication is a separate cause of action but issues of harm, and the measure of damages generally, may sometimes be permissibly aggregated: Amersi v Leslie [2023] EWCA Civ 168 at [54]-[56]; Peros v Nationwide News Pty Ltd (No 3) [2024] QSC 192 (“Peros (No 3)”) at [75]. As I say, I intend that only as a high-level summary of the rather large number of imputations presently envisaged to be pleaded.

6. No defence has yet been filed. However, from the affidavit of Mr Ian Aldridge, solicitor, affirmed 28 May 2026, which was read by Ms Young on the Motion (“Alridge Affidavit”) and its annexures, it is clear that several defences are likely to be advanced, including qualified privilege, contextual truth and justification. Ms Young, by Motion, seeks that the question of serious harm be determined in advance of the hearing of this matter. Mr Khare resists the grant of that relief and says that special circumstances are established.

Applicable Principles and the Cases for the Parties

7. Applications for early and separate determination of serious harm has been the subject of judicial consideration both in this Court and variously elsewhere. I considered such an application in Moore v Martin [2026] NSWSC 493 (“Moore v Martin”), and a detailed consideration of the principles arising out of the case law is available there.

8. As was accepted by the plaintiff, if a party to proceedings resists an application for early and separate determination of serious harm, then that party bears the onus of establishing special circumstances: the Act s 10A(5). Those factors non-exhaustively include those provided for by dint of s 10A(6). As has been observed, those are “run-of the mill case managements considerations”: Selkirk v Hocking [2023] FCA 432 at [39] (O’Callaghan J).

9. Mr Khare’s position was that special circumstances are demonstrated through the absence of a filed defence in this matter. He submitted that because the pleadings were not closed, there was no ability for the Court to assess the overlap of issue and the costs implications for the parties that might constitute special circumstances: the Act s 10A(6)(a) and (c). Reliance was placed on Burvill v Cowie [2026] NSWDC 177 (Wass SC DCJ) (“Burvill v Cowie”).

10. Serious harm determinations are capable of being dispositive of proceedings (s 10A(4)(b)). I accept that, as was submitted, the special circumstances bar should not be set so high as to deprive a plaintiff from the opportunity of making good their case at trial. However, with respect, that consideration is irrelevant to a determination of whether to grant a separate serious harm hearing. As was rightly accepted by Ms Young, for the purposes of a separate s 10A hearing, a plaintiff’s case is, as it were, taken ‘at its highest’ save as to serious harm, of course without prejudice to a defendant’s right to agitate other issues about capacity to convey, and defences on the merits at trial if the serious harm threshold is crossed at the separate hearing. A plaintiff cannot point to the potential for early determination of the whole case against them as creating special circumstances, because that is the quiddity of the s 10A reform in the first place.

11. Because of this consideration, I do not consider that pleadings are not yet closed is of itself a special circumstance. In most cases the defence itself is not really relevant to the serious harm element at all, given that s 10(4) authorises a degree of ‘cut through’ in order to deal with a singular issue which, like damage in an action on the case, is “of the gist”.

12. I do not accept that Mr Khare is not able to establish special circumstances as he is unaware of the case he is to meet. Any separate hearing on the serious harm element is his case to make, not meet. Defences like imputation not conveyed, justification and the various species of privilege are not relevant to the question of whether the publication of the defamatory matters complained of caused, or are likely to cause, serious reputational harm. To the extent necessary, which in my view is minimal, while not complete and not binding, the correspondence between the parties makes clear, even if at a level of abstraction, the defences intended to be raised if the matter proceeds to trial if Mr Khare establishes the serious harm element at the separate trial. That is to say that Mr Khare is not entirely in the dark.

13. Further, Mr Khare bears the onus on the Motion. No evidence was read to establish special circumstances. While of course he was under no obligation to call evidence, the decision to not do so is a forensic one which may have attendant consequences. Relying on an absence of evidence on a motion where one bears the onus is a difficult position to sustain. Estimates from Mr Khare as to the length of the separate hearing were given from the Bar table and sharply disputed by Ms Young, who, relying upon the Aldridge Affidavit, offered sworn evidence in support of her position. For my part, I do not think that a serious harm hearing in this matter is likely to exceed a day or two.

14. Having said that, as with Peros (No 3) evidence that Ms Young may wish to lead in contradiction of Mr Khare case on reputational harm, such as evidence of prior bad reputation (if any) must be led at the separate hearing. When ordered under s 10(4) the separate hearing has the same legal effect as a separate hearing r 28.2 of the Uniform Civil Procedure Rules 2005 (NSW) and subject to any appeal by leave under s 103 of the Supreme Court Act 1970 (NSW), the decision is binding for all purposes at the final hearing. While a decision after the separate hearing the matter complained of caused serious reputational harm is qualitative rather than quantitative, once established it inures for the purpose of the proceedings and may not be challenged at the final hearing. The measure of damages is, however, another question which may only be determined after evidence has been received on all issues.

15. I appreciate that this decision is at variance in some respects with that of Wass SC DCJ in Burvill v Cowie. I agree with her Honour (at [52]) that where a defendant intends to adduce evidence of poor reputation, it is incumbent upon them to raise that issue at a serious harm hearing. Generally, it is not necessary to specifically plead to matters going only to damages. However, more generally, I do not agree that the absence of a defence would be, in every case, a “significant matter going to special circumstances” (Burvill v Cowie at [51]), although it may be in the particular circumstances of a given case (as it was evidently before her Honour).

16. The regime established by s 10A is one directed at early determination. That must, to my mind, include the time before issue is joined. The lifespan of a defamation proceeding, at least in theory, ought to be short. Pleadings are furnished, objections exchanged, and subject to other necessary interlocutory applications, a trial date is fixed. Despite what may be the fashion of the times, interlocutory applications should be kept to a minimum.

17. The absence of a defence may impair a plaintiff from assessing the concerns referred to in s 10A(6) of the Act. Whether it actually does is a question of fact and degree. I do not think it does in this case for the reasons I have advanced. However, in any event, the legislation requires not only the existence of special circumstances, but also that those circumstances justify the postponement of the serious harm determination. The mere fact that a witness may have to give evidence twice, which must have been within the contemplation of the legislature, does not in and of itself justify postponement. Likewise, the mere fact that a party may incur significant cost to run a separate serious harm determination does not in and of itself justify postponement. All these things are included in the calculus of the s 10A regime, which takes these risks into account. The bar of what constitutes special circumstances cannot be set so low as to deprive s 10A of its intended operation which is to identify cases for dismissal where the element of serious harm cannot be established. The purpose of the provision is only achieved when the default setting is one attuned to early determination of that element.

18. Even prior to the enactment of s 10A, separate and early determination of questions in matters of defamation were not entirely alien and recognised as appropriate. In Love v Mirror Newspapers Ltd [1980] 2 NSWLR 112 (“Love v Mirror Newspapers”), Hunt J, as his Honour then was, granted an application for a separate hearing on the issue of capacity to convey prior to the filing of a defence. This was in spite of the fact that the matter was to be heard by a jury (I note here, the uncertainty which was raised by Mr Khare about election for trial by jury, but I did not follow why it that was said to be a special circumstance: s 10A(3)).

19. In Love v Mirror Newspapers, Hunt J held that the absence of a defence was simply not determinative as to whether to grant a separate hearing, although in fairness, his Honour did consider it may be relevant to the exercise of the Court’s discretion (at 122). His Honour’s remarks on the relevance of closed pleadings (at 124) have, as expected, stood the test of time:

“The principal problem which arises in most other types of litigation, when a separate decision of one question is sought before the trial of other questions in the action, is the absence of any clear line of demarcation between the various issues of the pleadings. That problem does not, and cannot, apply to the separate decision in a defamation action of the question as to capacity of the matter complained of to convey the pleaded imputations. That is not a matter which arises on the pleadings as a separate issue at all.” (citations omitted).

20. There is an obvious analogy to the serious harm element. It is, like capacity to convey, a matter which arises necessarily in each and every case, and like capacity to convey, is a question to be decided to by the judge, not the jury. But more broadly, despite whatever disquiet may exist at common law about separate hearings (which is not as strong in relation to actions for defamation as Love v Mirror Newspapers makes clear), that cannot overcome the stated preference of Parliament for early and separate determinations when the issue is appropriately raised.

21. At a serious harm hearing, the plaintiff has the benefit of having their case taken at its highest in all respects but serious harm. If capacity to convey is not then raised the separate hearing will proceed on the assumption that the pleaded imputations are conveyed, without prejudice to ventilation of any such issue if serious harm is established That is a significant protection against unfair early disposal. Mr Khare will have the opportunity to make good his claim of serious harm at a separate hearing, but he has not here established special circumstances sufficient to deprive Ms Young of the opportunity to contest the matter in advance of other issue at trial.

Conclusion and Orders

22. As Mr Khare has failed to persuade me that special circumstances exist in this case. I will order a separate and early determination of the serious harm question be held, with an estimate of two days.

23. As to the issue of costs, I consider that the appropriate order is that costs of the Motion be costs in the separate serious harm hearing. That is to say, the successful party at the separate hearing will have the entitlement to recover their costs of this Motion.

24. My orders are:

25. Under s 10A(4) of the Defamation Act 2005 (NSW) the serious harm element of the plaintiff’s claim is to be set down for hearing and determined separately and in advance of the final hearing of this matter with an estimate of two days.

26. Parties have liberty to provide mutually available dates for the hearing of the serious harm question to the Chambers of Campbell J by email.

27. List the matter for further direction in the Defamation list at 9:30am on 31 July 2026 which will be vacated in chambers if the date for the separate hearing contemplated by Order 1 is fixed prior thereto.

28. Costs of the motion dated 28 May 2026 are costs in the separate hearing.

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Amendments

30 June 2026

Minor typographical errors corrected.