Peros v Nationwide News Pty Ltd & Ors [2024] QSC 80

Supreme Court of Queensland|2024-06-10|Before: Applegarth J

The application of Pfeiffer to notice before action provisions

[119] The learned authors of Private International Law in Australia distil the position in relation to notice before action provisions as follows:33

R Mortensen, R Garnett & M Keyes, Private International Law in Australia (5th Ed) 2023 LexisNexis at [11.51] citing Hamilton.

"A statutory provision that requires a claimant to give notice to the other party before commencing proceedings is best classified as procedural, since it is a means to expedite the resolution of claims. A substantive classification should, however, be adopted where the consequence of non-compliance with a notice provision would result in the extinguishment of the plaintiff's claim."

[120] The fact that a provision states that a proceeding "must not be commenced" before a certain step is taken cannot itself determine that the provision is substantive rather than procedural. Otherwise, every notice requirement would be substantive: a result inconsistent with Hamilton and not one for which the defendants contend.

[121] The task is one of characterisation of the particular provision in the context of a statutory scheme. The essential issue is whether it is a provision that affects the mode or conduct of proceedings taken to enforce a right. If it is, the provision is procedural. Such a provision differs from the provisions of a statutory scheme that is intended to wholly replace a common law cause of action, or, alternatively, schemes that create a brand new cause of action that have not been recognised at common law.34

[122] In Hamilton, Spigelman CJ explained the meaning of "enforceability" in the sense used by the joint judgment in Pfeiffer. The notice provision was not concerned with a new right of action created by statute. It was unlike a limitation provision that "bars the remedy" at a certain time after which the right is not enforceable. The PIPA provisions were said to correspond to the category referred to by Dixon J in Maxwell v Murphy,35 a case about the procedural/substantive distinction with respect to retrospectivity. Dixon J referred to "rights ... which have an existence and a purpose although the remedy be suspended or wanting". Spigelman CJ stated that such a provision may not fall within the scope of matter affecting "enforceability" as that word is used in Pfeiffer.36 He continued:37

"The formulation found in each of s 9 and s 36, requiring that steps be taken 'before starting a proceeding in a court', is capable of constituting a condition precedent that can be characterised as substantive. That would be the correct conclusion if that formulation were employed in a legislative scheme that creates a new right or, as a matter of construction, entirely substitutes a legislative scheme for pre-existing common law rights."

[123] The Chief Justice surveyed legislation in New South Wales and Queensland that contained provisions prohibiting the commencement of proceedings. They included Kinzett v McCourt,38 in which it was observed that the use of the words "no action shall be commenced" was suggestive in that case of a procedural requirement rather

34 Alvear v Chetwynd Park Pty Ltd [2014] VSC 214 at 10 [36]- [37] citing Hamilton at 59 [61] and

Wickham Freight Lines Pty Ltd v Ferguson [2013] NSWCA 66; (2013) 83 NSWLR 162 at 168 [16], [18].

than an essential pre-condition.39 Kinzett relied on Harding v Lithgow Municipal Council,40 in which Dixon J considered a notice before action provision that was said to do no more than impose a condition upon the assertion or enforcement of a right by judicial process. Such a condition "is a procedural matter not going to the validity of the title to enforce the liability, but only to the mode of enforcing it, or the fulfillment of a preliminary procedural condition".41

[124] The judgment of Spigelman CJ also considered and followed two decisions of the Queensland Court of Appeal concerning notice provisions in statutes governing proceedings for damages for personal injury. The first was Johnson v Hill,42 which concerned the notice requirements of the Motor Accident Insurance Act 1994 (Qld) that were similar to certain provisions of PIPA. Davies JA (with whom McMurdo P and Douglas J agreed) concluded that the relevant provision that required a notice to be given before bringing an action "is a provision with respect to the mode of enforcement of the cause of action or to the fulfillment of a preliminary procedural condition rather than to the validity of the title to enforce it".43
[125] The second Queensland authority considered was Young v Keong,44 in which the court had to consider the characterisation of the same notice requirement of the Motor Accident Insurance Act. McPherson JA stated that the underlying policy of such provisions is "broadly stated, to force the claimant toward negotiating a settlement of the claim before bringing an action 'in a court' for those damages". The object was to encourage the speedy resolution of such claims and the principal purpose or effect of those provisions was said to be "procedural or forensic".45 Williams J (as Williams JA then was) likewise concluded that it was "clear that the Queensland legislation requiring the giving of notice before action is a procedural requirement and therefore governed exclusively by the laws of the forum".46
[126] In Hamilton, Spigelman CJ rejected a submission that Part 1 of PIPA affected enforceability and, accordingly, constituted a matter of substance. His Honour concluded that its provisions as a whole and the scheme of Division 1 of Part 1 in particular, could not be characterised as either creating a new right or substituting a legislative scheme for common law rights.47
[127] PIPA had modified the common law in a number of respects, both procedural and substantive, but did not substitute a new regime. The particular provisions under consideration in Hamilton were, as noted, "clearly designed to encourage the earliest possible settlement of disputes prior to the institution of legal proceedings".48 The provisions of PIPA in general covered a wide range. Some of them would be clearly classified as substantive for the purposes of choice of law disputes and others would equally clearly be classified as procedural. All of them were individually significant, as was their cumulative effect. However, Spigelman

CJ observed that "significance" is not the sole touchstone of whether a particular statutory requirement can be classified as part of the substantive law. Procedural matters are capable of having a significant effect.49

[128] The Chief Justice went on to consider certain provisions in PIPA that allowed legal proceedings to continue where there had been a failure to comply with a requirement. These included if the respondent either stated that the claimant satisfied a notice requirement or was presumed (after a prescribed period had passed) to be satisfied that such a notice had been given. A respondent might waive compliance with the requirement for a notice. The court had power to declare that a claimant had remedied any non-compliance. It also had a general discretion to authorise the claimant to proceed despite non-compliance. A court might order a party who had failed to comply to take such action to remedy the default within a specified time. Also, it might order a stay in situations in which a claimant had commenced proceedings without having first complied with Part 1.

[129] The discretion to grant leave to proceed in certain circumstances was "not equivalent to the power to extend time in a limitation act".50 This was a point of distinction with the position in Pfeiffer which rejected an argument that the effect of a power to extend limitation periods led to the conclusion that a limitation provision should be regarded as a matter of procedure.

[130] The provisions to which Spigelman CJ pointed also supported the proposition in the context of the relevant provisions of PIPA that, as a matter of statutory interpretation, a proceeding that was commenced despite the provision of a compliant notice was not necessarily a nullity. Doubt already had been expressed about certain earlier authorities that had ruled that when a notice of claim had not been given, the proceedings are a nullity. The better view is that they are not.51
[131] On the issue of characterisation, following authorities that included Johnson v Hill and Young v Keong, and applying the principles in Pfeiffer, Spigelman CJ concluded the relevant provisions of PIPA were procedural. They were designed to encourage early settlement prior to the institution of legal proceedings. They were not part of a legislative scheme that created a new right or entirely substituted a legislative scheme for pre-existing common law rights. The notice provision in Division 1 concerned the "regulation of the mode or conduct of court proceedings" and constituted part of the "mechanism or machinery of litigation".52
[132] Handley JA reached the same conclusion. The relevant provisions were procedural because they appointed or regulated the manner in which rights and liabilities fixed by reference to past facts, matters or events were to be enforced, or their enjoyment was to be secured by judicial remedy.53

[133] The judgments in Hamilton support the conclusion that s 12B concerns the regulation of the mode or conduct of court proceedings and is therefore procedural.

The judgment of Spigelman CJ, in addition, supports the conclusion that the provisions do not affect "enforceability" in the sense that term was used in Pfeiffer.

[134] The term "enforceability" in the sense it was used in Pfeiffer requires consideration of the scheme of the legislation, or more precisely the purpose of the particular provision or provisions under consideration. The relevant notice provision in Hamilton (like s 12B of the Queensland Defamation Act) was in a part of the statute that was designed to encourage the earliest possible settlement of disputes prior to the commencement of legal proceedings.

[135] The existence of a statutory prohibition on "commencing a proceeding" unless a notice has been given may be capable in some statutory contexts of constituting a substantive provision. Whether it does or not depends on the nature and terms of the legislative scheme. The notice provision in s 12B (like the notice provision considered in Hamilton) is not part of a scheme that creates a new right. It regulates the enforcement of a pre-existing common law right.

[136] At a certain level, any procedural provision that regulates the commencement or conduct of court proceedings may be said to condition or affect the enforceability of the rights or duties of the parties. However, Pfeiffer does not state that such an effect on the mode of enforcing rights makes such a provision substantive. On the contrary, provisions that are directed to governing or regulating the mode or conduct of court proceedings are procedural.

[137] The judgment of Spigelman CJ in Hamilton also signals the need for caution in concluding that a provision that has a significant effect on the outcome of litigation should be classified as part of the substantive law for the purpose of a choice of law dispute. Many procedural matters are capable of having a significant effect on outcome. Provisions governing pleadings and disclosure and laws of evidence are examples. A provision that a proceeding may not be commenced or may not be continued unless and until the parties participate in a mediation would be another example. Under such a rule, a failure to engage in a mediation may have significant effects on the enforceability of rights, particularly if the proceeding is stayed due to a failure to comply with the requirement. Such a provision would, however, probably be characterised as a procedural one governing the mode or conduct of court proceedings and as constituting part of the machinery of litigation.

[138] Hamilton should not be taken too far. I do not treat it as authority for the proposition that only legislation that creates a new right or which entirely substitutes a legislative scheme is substantive in nature, or that any provision that modifies the enforcement of a common law right is procedural. The task in each case is one of characterisation in a particular statutory context. Hamilton does, however, provide the closely analogous context of a pre-proceeding notice provision in a part of a statute that seeks to encourage the settlement of pre-existing rights before the commencement of litigation.

[139] The defendants seek to distinguish Hamilton and some of the authorities upon which it relied, such as Harding v Lithgow Municipal Council, on the basis that the provisions in those cases gave the court a power to forgive non-compliance, whereas there is no similar provision to dispense with compliance with s 12B.
[140] I am not persuaded that this is a compelling point of distinction. The existence of a discretion to grant leave to proceed notwithstanding non-compliance with a notice provision did not form part of the reasoning of Handley JA (with whom Tobias JA agreed). That feature was not essential to the conclusion reached by Spigelman CJ. The Chief Justice found the possibility that a proceeding might continue notwithstanding a failure to comply with a notice provision was different to the power to extend the limitation period in the Limitation of Actions Act. In addition, the provisions noted by Spigelman CJ suggested that, as a matter of statutory interpretation, the requirement of notice and the requirement for a compulsory conference were not an essential pre-condition to the validity of proceedings. On this basis, and contrary to earlier authorities, the provisions were not substantive but were procedural.

[141] I am not persuaded that a statutory provision that prohibits the commencement of a proceeding unless a compliant notice has been given, and which also contains provisions permitting a court to address a case of non-compliance, is materially different for present purposes from one that simply prohibits the commencement of a proceeding unless there has been a notice. The substance of the prohibition in both cases is the same. Unless and until there is a dispensation with compliance, the prohibition has the same effect.

[142] The fact that the Queensland Act does not confer a general power for the court to excuse non-compliance with s 12B54 is not, in my view, a sufficient basis to distinguish Hamilton. It is unnecessary to decide whether, for example, a defendant may waive or be taken to have waived compliance with s 12B. Similarly, it is unnecessary to decide whether a proceeding that is commenced without compliance with s 12B is a nullity. In some statutory contexts, a failure to comply with a procedural condition will invalidate the proceeding. The proceeding will be a nullity. In other circumstances, failure to comply with a procedural provision will be an irregularity that may be waived. The issue is one of statutory interpretation and is not resolved by characterising the provision as mandatory or directory. The fact that the Defamation Act does not regulate when compliance s 12B(1) is taken to be waived does not preclude the conclusion that a defendant might waive non-compliance with s 12B. The present issue is not whether a proceeding commenced without complying with s 12B is a nullity, although Hamilton would suggest that it is not.

[143] The present issue is whether s 12B is a substantive law or a procedural law for the purposes of a choice of law dispute. The absence of an express provision by which the court may dispense with compliance with s 12B is not a basis upon which to distinguish Hamilton.

[144] The next basis upon which the defendants seek to distinguish Hamilton and contend that s 12B is a substantive law is that failure to provide a compliant notice has implications for a discreet statutory defence in relation to an offer to make amends.

[145] The enactment of ss 12A and 12B prompted consequential amendments to the applicable period after which an offer to make amends cannot be made (s 14) and the wording of s 18 concerning the effect of a failure to accept a reasonable offer to

Section 12B(3) provides for leave where delay would result in proceedings being started outside a limitation period.

make amends. Prior to the 2021 amendments, s 14 provided that an offer to make amends could not be made if:

(a) 28 days had lapsed since the publisher was given a concerns notice; or

(b) a defence had been served.

[146] The enactment of ss 12A and 12B prompted an amendment to s 14 about the applicable period after which an offer to make amends cannot be made. The "applicable period" is either a period of 14 days since the publisher is given a further particulars notice about a concerns notice or, in any other case, 28 days "since the publisher was given a concerns notice by the aggrieved person". It remains the case that an offer to make amends cannot be made if a defence has been served. The difference is that, as a result of the amendments, an offer to make amends cannot be made if the "applicable period" as defined in s 14(2) has expired.

[147] Incidentally, this does not prevent a publisher from making "an offer to make amends" in a case in which a concerns notice has not been given. In such a case there is no "applicable period".

[148] Prior to its amendment, when there was no requirement to give a concerns notice, s 18 formulated the "failure to accept reasonable offer to make amends" defence by reference to a different state of affairs. The first element of the defence in s 18(1)(a) was that "the publisher made the offer as soon as practicable after becoming aware that the matter is or may be defamatory".

[149] The introduction of a compulsory concerns notice before commencing proceedings led to a consequential amendment to s 18. Section 18(1) provides that if an offer to make amends is made but is not accepted, it is a defence in relation to the matter if, among other things, the publisher made the offer "as soon as reasonably practicable after the publisher was given a concerns notice in respect of the matter (and, in any event, within the applicable period for an offer to make amends)".55
[150] In my view, this consequential amendment does not require s 12B to be characterised as substantive rather than procedural. Instead, it involves the reformulation of a statutory defence to take account of a procedural change.

[151] Since its enactment in 2005, Part 3 of the Queensland Act has provided a statutory scheme for the resolution of disputes without litigation. It continues to provide for concerns notices, offers to make amends, their timing, and the effect of a failure to accept a reasonable offer to make amends. The enactment of ss 12A and 12B, with consequential amendments to ss 14 and 18, might be said to deprive, in certain circumstances, a defendant of a defence under s 18 in a case in which a concerns notice has not been given. However, those circumstances are exceptional. Unless a defendant is untroubled by a failure to provide a concerns notice (for example because it has no desire to make any offer of amends and wishes to contest the proceeding), then in any proceedings to which s 12B applies, the failure to give a concerns notice will lead to the proceeding being dismissed or struck out on the defendant's application. No occasion will arise at a trial of the proceeding to consider a defence under s18 because the proceeding will be halted at an early stage. On the other hand, the untroubled defendant who has no intention to make an

offer to make amends, and does not make one, can hardly complain about being deprived of a s18 defence. It was content to not be given a concerns notice.

[152] In a rare case, such as this, in which a concerns notice is not required, because s 12B does not apply to a proceeding that is commenced in a jurisdiction that does not require a concerns notice, and no concerns notice is given, a defence under s 18 will not be available. But this is because, as a matter of statutory construction, s 12B does not apply to such a proceeding. The non-availability of a s18 defence is a consequence of s 12B simply not applying in such a case. The s18 defence was not intended to apply to such a rare case.

[153] In summary, the consequential amendment to s 18 is insufficient to transform the procedural character of s 12B.

[154] The requirement in s 12B(1)(b) that the imputations relied on in the proceeding that is filed were particularised in the concerns notice is distinctly procedural. It does not prohibit amendment after the proceedings are commenced.56 It does not alter or replace the cause of action in defamation. The pleading requirement in s 12B(1)(b) does not alter the cause of action: it remains one based on the publication of defamatory matter rather than a cause of action based on the publication of an imputation. Section 12B(1)(b) regulates a proceeding that is commenced so that its pleaded imputations reflect (at least initially) those that were notified in a concerns notice. It regulates proceedings by a kind of "no surprises" rule.

[155] A defendant is encouraged to consider making an offer of amends on the basis of imputations that are notified in a concerns notice, knowing that if the matter does not resolve, the pleaded imputations will be those notified, not entirely different ones.

Conclusion on the characterisation of s 12B

[156] Applying the principles that emerge from Pfeiffer and Hamilton, the amendments to Part 3, particularly the enactment of ss 12A and 12B and consequential amendments to ss 14 and 18, do not affect the "enforceability" of the cause of action for defamation in the sense discussed by the joint judgment in Pfeiffer. Like the notice provisions considered in Hamilton and other cases, the provisions encourage the resolution of claims without resort to litigation. Section 12B is not part of a scheme that extinguishes or modifies a pre-existing common law right to sue for defamation. Section 12B regulates the commencement and conduct of defamation litigation as part of provisions that are clearly designed to encourage early settlement prior to the institution of proceedings.

[157] It is always possible to characterise a provision that affects or conditions the enforcement of a common law right as substantive. Any pre-proceeding notice provision may be said to alter or modify the right to sue. Yet, as Hamilton and the authorities that it followed illustrate, this does not necessarily render the relevant provision substantive.

[158] In this matter, the characterisation issue is resolved by considering s 12B in its statutory context as part of procedural provisions that encourage the resolution of

56 Newman v Whittington [2022] NSWSC 1725 at [28]- [30].

claims based on pre-existing common law rights. Section 12B is, in the words of Mason CJ in McKain, "directed to governing or regulating the mode or conduct of court proceedings". The provisions relate to the conduct of litigation. Like any similar procedural provision that affects the process by which rights are enforced, it may be said to affect the enforceability of rights. However, consistent with the approach in Hamilton and other intermediate appellate court decisions that I should follow, s 12B is a procedural provision that does not affect "enforceability" in the sense that that term was used in Pfeiffer.

[159] I respectfully follow the approach in Hamilton in characterising a similar notice before action provision in the present statutory context.

[160] I conclude that s 12B is properly characterised as a procedural provision.

Are there "special circumstances" to postpone determining the serious harm issue?

[161] The question of whether the serious harm element of the cause of action is established is a matter for a judge and not a jury to determine.57 A judge may make any orders the judge considers appropriate about determining that issue, including dismissing the proceedings if satisfied the element is not established.58
[162] If, as here, a party applies for the serious harm element to be determined before the trial commences, the judge 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 proceedings (including during the trial)".59
[163] The words "special circumstances" in s 10A(5) mean what they say.60 The section reflects a legislative policy that the serious harm issue normally will be determined before the trial.61
[164] Therefore, s 10A(5) displaces the position that normally applies in deciding whether to order the separate trial of an issue in advance of other issues under a provision like r 483 of the Uniform Civil Procedure Rules 1999.62 Section 10A(6) states that the matters a judicial officer may take into account in deciding whether there are special circumstances for the purposes of s 10A(6) include (but are not limited to) the following:

(a) the cost implications for the parties;

(b) the resources available to the court at the time; and

(c) the extent to which establishing the serious harm element is "linked to other issues for determination during the trial of the proceedings".

60 Qu v Wilks [2023] VSCA 198 at 12 [44].

61 Newman v Whittington [2022] NSWSC 249 at [35]; Qu v Wilks [2023] VSCA 198 at 12 [42]- [44].

62 As to the considerations which this Court applies under a rule like r 483, see the often-cited decision of Branson J in Reading Australia Pty Ltd v Australian Mutual Provident Society [1999] FCA 718; (1990) 240 FCR 276; (1999) 217 ALR 495; and Callide Power Management Pty Ltd v Callide Coalfields (Sales) Pty Ltd (No 3) [2015] QSC 295 at [44]- [46].

[165] As to (c), the fact that the nature and extent of the plaintiff's reputation and the extent of injury to it will be an issue at trial concerning the quantum of any damages awarded would rarely constitute "special circumstances" in a case in which liability is an issue because of substantive defences. Damages are an issue in most defamation proceedings in which liability is contested and sometimes entail issues concerning the aggravation of damages due to the conduct of the trial by the defendants. Therefore, the fact that the serious harm element of the cause of action may be "linked" to the assessment of quantum in the event of success on liability is unlikely to constitute "special circumstances" in a case such as this.

[166] The defendants submit, and the plaintiff does not contest, that if the matter proceeds to trial, having regard to the defences that will be advanced, including truth/justification, it is likely that the trial will occupy in excess of six weeks' hearing time.

[167] By contrast, the separate hearing of the serious harm issue is expected to take two to three days. The defendants will seek to tender documentary evidence of the criminal proceedings, the coronial proceeding, and the publicity surrounding them as set out in the affidavits that already have been filed by it in support of this application. The defendants anticipate, having regard to the plaintiff's particulars of serious harm, that the only evidence that would be tendered by the plaintiff will be a transcript of the podcast and evidence to establish the extent of its publication. The possibility exists of reputation witnesses being called by the plaintiff. However, the plaintiff accepts that the hearing is likely to take three days or less.

[168] The hearing of the serious harm element will entail consideration of legal issues, including:

(a) the "rule in Dingle's case";63

(b) the application of that rule to the determination of "serious harm";64

(c) whether the rule applies to "quasi judicial" findings;65

(d) the admissibility of evidence of the reporting of the Coroner's finding as evidence of bad reputation prior to and at the time of the thirteenth episode of the podcast;66 and

(e) the admissibility of evidence of the criminal proceedings against the plaintiff and the coronial proceedings and reporting of them as "directly relevant background material" to the publication of the podcast.67

63 Dingle v Associated Newspapers Ltd [1964] AC 371 ("Dingle").

64 See the leading authority of Lachaux v Independent Print Ltd [2015] EWHC 2242; [2016] QB 402; [2018] QB 594; [2020] AC 612; and the observations of Derrington J in Peros v Blackburn [2024] FCA 177 at [48].

65 See Channel Seven Sydney Pty Ltd v Mohammed [2010] NSWCA 335; (2010) 278 ALR 232 at 285 [253] in the different context of a judicial finding that is in the public domain, and the observations of Derrington J in Peros v Blackburn [2024] FCA 177 at [56].

66 See Selkirk v Hocking (No 2) [2023] FCA 1085 at [24]- [26]; O'Hagan v Nationwide News Pty Ltd

67 As to which see Australian Broadcasting Corporation v Chau Chak Wing [2019] FCAFC 125; (2019) 271 FCR 632 at 658-659, 662-665 and the origins of the phrase "directly relevant background material" in Burstein v Times Newspapers Ltd [2000] EWCA Civ 338; [2001] 1 WLR 579.

[169] While I have had the benefit of submissions and an abundance of authorities on these points, it is unnecessary to explore them in this judgment. The parties do not invite me to decide them on this application which is about the timing of the determination of the serious harm issue.

Has the plaintiff demonstrated "special circumstances"?

[170] The plaintiff points out that a number of the issues that I have just noted have yet to be fully argued in an Australian court in the context of the serious harm element. He emphasises the complexity of determining the serious harm issue when "the majority of time will be devoted to the determination of the admissibility questions which are yet to be finally decided in Australia". His submissions note that any one of the points may become a topic for appeal. They also compare the plaintiff's resources to those of a media organisation like the first defendant that has the resources to pursue an issue on appeal. In that context, they remind me that _Fairfax Media Publications Pty Ltd v Voller_68 started as a separate determination of a discrete issue.

[171] The defendants respond that these matters, alone or in combination, do not constitute "special circumstances" that justify postponing the determination of the separate harm issue until the trial.

[173] The complexity of the legal issues, including questions of admissibility, will not be reduced by the time of any trial. The admissibility of evidence that is said to be relevant to the serious harm issue is best determined at the separate hearing of that issue rather than at a trial of all issues where the evidence may be relevant to other issues.

[174] In my view, the legal issues that I have identified and questions of admissibility of evidence in determining serious harm should not be postponed to a later stage of the proceedings, and should not be postponed for determination during the trial. The issues will not be any less complex at a later stage, and their agitation during a trial is likely to complicate rather than simplify matters.

[175] More generally, postponing the determination of the serious harm issue until trial is an unattractive course in terms of costs and convenience. By the time of the trial, the parties will have incurred substantial financial and emotional costs in preparing for a trial that is expected to last several weeks.

[176] If the separate harm issue is determined in accordance with the default position under s 10A(5) and is determined in the defendants' favour (and that determination is confirmed on any appeal), then there will be substantial savings of costs and time in avoiding the costs of a long trial on all issues. If, on the other hand, the substantial harm issue is determined in the plaintiff's favour (and that determination is confirmed on any appeal), then there will be one less issue (and an admittedly complex one) for the trial judge to deal with at the start of the trial or in the course of a demanding trial.

[177] If the serious harm determination, one way or the other, is reversed on appeal, the parties will also have the benefit of an early determination about an essential element of the cause of action in defamation. If that determination is in the plaintiff's favour, there will be one less issue at trial.

[178] The inequality of arms between the plaintiff and the first defendant was something that the plaintiff must have appreciated when he threatened to sue it and when he commenced this proceeding. Before the proceeding was filed, the solicitors for the defendants signalled that any proceeding would be defended, including by reliance upon substantive defences. The plaintiff must have known that he would face a long and expensive trial. He consented to a choice of law determination that means that he must prove the serious harm element in order to establish his cause of action.

[179] The plaintiff has not shown that there would be efficiencies in determining the serious harm issue at trial, along with all other issues, such as a reduction in the estimated time of two to three days to hear evidence and argument about the serious harm issue. Therefore, postponing the issue will not seemingly achieve any significant cost saving for a plaintiff who has fewer resources than a media defendant.

[180] The inequality of resources is something of a two-way street. If the defendants succeed on the serious harm issue, but the determination of that issue is postponed to the trial of all issues, then the defendants will presumably be awarded all or a substantial part of the costs of the proceedings, which by then will be the costs of preparing and conducting a trial that is expected to last several weeks. If, at that stage, the plaintiff lacks the resources to pay his own legal expenses associated with a trial of all issues and whatever costs he is ordered to pay the defendants, the defendants' success at the trial on the serious harm issue will be a hollow victory. Any costs order in its favour is likely to prove empty.

[181] Also, there is the possibility (and I put it no higher than that having not heard full argument on the serious harm issue) that the defendants will halt the proceeding after a determination of the serious harm issue in their favour. In that event, not postponing the determination of the serious harm issue will save witnesses from having to give evidence about the death of Shandee Blackburn, including the violent circumstances under which she was killed. The possibility of relieving the many witnesses who might be expected to give evidence at a trial of the distress and inconvenience of giving evidence is a factor that supports maintaining the default position.

[182] While the possibility of more than one appeal in a proceeding (with potential delays in the listing of the trial) is a factor that is often taken into account in deciding whether to order a separate trial in the context of provisions like r 483, it is not always decisive in such a setting. There may be utility, and it may be in the interests of justice, in that different statutory or rule-base setting in having an issue, particularly a legal issue involving limited evidence, determined at an early stage, even at the risk of there being more than one appeal.
[183] The present statutory context is, however, different.69 The default position under s 10A(5) is for the separate and early determination of the serious harm issue. The court must be satisfied that there are special circumstances before it displaces that position. That may be contrasted with the usual position in civil proceedings of having all issues determined at trial, unless a case is made out for the separate and prior determination of a defined issue.

[184] The position stated in s 10A(5) has been enacted in circumstances in which the legislature must be taken to have into account the possibility of an appeal from such a determination, particularly if the determination results in a proceeding being dismissed because the serious harm issue is not established.

[185] Further, the trial of other liability issues and quantum in this matter is not imminent. A trial lasting several weeks will be listed when those issues are ready for trial. Provisional trial dates may be allocated for that purpose. The early determination of the serious harm issue will not necessarily delay the trial of other issues, even taking into account the possibility of an appeal in relation to that determination.

[186] Voller was a different case, but the question of law that was determined in the plaintiff's favour in that case, and upheld on appeal, provided the foundation for him to settle his claims against various media organisations without a trial.

[187] The possibility that the serious harm determination in this matter will be the subject of an appeal, irrespective of its outcome, is a fact that cannot be avoided.

[188] I turn to consider the matters mentioned in s 10A(6).

[189] The cost implications for the parties favour the default position under s 10A(5). The parties will face the costs of litigating the serious harm issue sooner or later.

[190] The court presently has the resources to hear the serious harm issue and has made arrangements for it to be listed for a hearing commencing on 29 July 2024 before me. This course avoids the resource implications of "double-handling" of the serious harm issue by another judge who has not had the benefit of the introduction to the factual and legal issues that I have had in hearing the present application.

[191] I do not anticipate being asked to make credit findings about the evidence of any witness at the hearing of the separate harm issue. In any event, I do not expect to be the trial judge.

[192] As in many cases in which serious harm arises as an issue, that issue may be said to be "linked" to the issue of damages. This is not a case, however, in which the only substantial issues are serious harm and the quantum of damages, and where there would be a basis to achieve efficiencies and cost savings in having a single trial in which evidence about reputation and evidence about harm to reputation are considered.

[193] The serious harm issue is not linked to the substantive defences that will arise for determination at a lengthy trial.

Just as it is different to the provision for a separate trial in the Federal Court, as discussed in Peros v Blackburn [2024] FCA 177 at [27]- [31].

[194] Therefore, the matters referred to in s 10A(6) do not support postponing the determination of the separate harm issue.

[195] Directing that the serious harm issue be determined as soon as practicable will enable any trial of other liability issues to focus on the substantive defences upon which the defendants intend to rely.

[196] Overall, the plaintiff has not satisfied me that there are special circumstances justifying the postponement of the determination of the separate harm issue to a later stage of the proceedings, and in particular, to postpone it for determination during the trial.

[197] The parties have indicated the availability of their counsel to appear at a serious harm hearing commencing on 29 July 2024. I will grant the order sought in paragraph 3 of the amended originating application and make agreed directions for the preparation of the hearing of the separate harm issue.

Disposition of the application and preliminary view on costs

(a) dismiss paragraphs 1 and 2 of the defendants' amended originating application;

(b) grant paragraph 3 of that application; and

(c) make directions to facilitate the determination of the separate harm issue.

[199] As to costs, the parties have had mixed success on the application. The plaintiff succeeded in resisting the defendants' s 12B application. The defendants succeeded in obtaining the order that they sought under s 12(5) over the plaintiff's opposition.

[200] My impression is that a substantial part of the costs associated with the material that was relevant to the application, particularly the affidavits and the authorities, are related to the part of the application concerning serious harm. Much of those costs would have been incurred in any event for the purpose of the determination of separate harm issue, and so were not incurred simply for the purposes of the s 10A(5) application. Still, substantial costs were incurred in preparing a contested application for an order under s 10A(5). The starting point under the rules is that the costs of the s 10A(5) application should follow the event.

[201] As to the costs of the s 12B application (the relief sought in paragraphs 1 and 2 of the amended originating application), the starting point is that those costs should follow the event. That would result in two separate costs orders and two separate assessments.

[202] I apprehend that it will be a difficult and complicated exercise to dissect the costs of solicitors and counsel in respect of each part of the application. I am not presently in a position, and am unlikely to be in a well-informed position, to make a single order as to costs taking into account the costs that were incurred on each issue. The number of paragraphs of written submissions, the number of authorities related to each issue and the amount of time taken at the hearing may not be a sure guide as to an appropriate allocation of costs.
[203] My determination of the s 12B issue is significant. Had I granted the defendants' application, the proceeding would have stopped in its tracks. The s 10A(5) application also has significant practical consequences and may result in significant cost savings.

[204] A substantial part of the costs incurred in relation to the s 10A(5) application, including legal research and the preparation of written submissions on points of law, will have utility at the hearing of the serious harm issue. It differs from an interlocutory application, such as a dispute over disclosure, where the interlocutory issues will not be revisited at a trial.

[205] In the circumstances, there might be something to be said for making the costs of at least the s 10A(5) application costs in the proceeding or reserving them to await the determination of the serious harm issue. However, given the practical challenges in dissecting costs between each aspect of the application, my preliminary view is that the costs of the application should be the parties' costs in the proceedings or be reserved.

[206] I encourage the parties to agree a suitable costs order, failing which I will hear them on the issue of costs on a date to be fixed.

Interpretation Act 1954

(Model Provisions) and Other Legislation Amendment Act 2021

Accident Insurance Act 1994

Injuries Proceedings Act 2002

Courts (Cross-vesting) Act 1987

Civil Procedure Rules 1999

Alvear v Chetwynd Park Pty Ltd [2014] VSC 214, cited Australian Broadcasting Corporation v Chau Chak Wing [2019] FCAFC 125; (2019) 271 FCR 632, cited

BHP Group Ltd v Implombata [2021] FCAFC 93; (2021) 286 FCR 625, cited Burstein v Times Newspapers Ltd [2000] EWCA Civ 338; [2001] 1 WLR 579, cited Callide Power Management Pty Ltd v Callide Coalfields (Sales) Pty Ltd (No 3) [2015] QSC 295, cited

Carey v Australian Broadcasting Corporation [2012] NSWCA 176; (2012) 84 NSWLR 90, cited

Channel Seven Sydney Pty Ltd v Mohammed [2010] NSWCA 335; (2010) 278 ALR 232, cited

Dingle v Associated Newspapers Ltd [1964] AC 371, cited DRJ v Commissioner of Victims Rights (No 2) [2020] NSWCA 242; (2020) 103 NSWLR 692, cited

Fairfax Media Publications Pty Ltd v Voller [2021] HCA 27; (2021) 273 CLR 346, cited

Georges v Georges [2022] NSWDC 558, cited

Hamilton v Merck And Co Inc [2006] NSWCA 55; (2006) 66 NSWLR 48, discussed

Harding v Lithgow Municipal Council [1937] HCA 46; (1937) 57 CLR 186, cited

Hoser v Herald and Weekly Times Pty Ltd (Ruling) [2022] VCC 2213, cited

John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36; (2000) 203 CLR 503, cited

Kinzett v McCourt [1999] NSWCA 7; (1999) 46 NSWLR 32, cited

Lachaux v Independent Print Ltd [2015] EWHC 2242; [2016] QB 402; [2018] QB 594; [2020] AC 612, cited

Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261, cited

McKain v R W Miller & Co (South Australia) Pty Ltd [1991] HCA 56; (1991) 174 CLR 1, cited

Newman v Whittington [2022] NSWSC 1725, cited

Newman v Whittington [2022] NSWSC 249, cited

Peros v Blackburn [2024] FCA 177, cited

Peros v Nationwide News Pty Ltd & Ors (No 2) [2024] QSC 83, cited

Qu v Wilks [2023] VSCA 198, cited

Randell v McLachlain [2022] NSWDC 506, cited Reading Australia Pty Ltd v Australian Mutual Provident Society [1999] FCA 718; (1990) 240 FCR 276, cited

Seaegg v The King [1932] HCA 47; (1932) 48 CLR 251, cited

Selkirk v Hocking (No 2) [2023] FCA 1085, cited

Solomons v District Court of NSW [2002] HCA 47; (2002) 211 CLR 119, cited

Teh v Woodworth & Anor [2022] NSWDC 411, cited

Wickham Freight Lines Pty Ltd v Ferguson [2013] NSWCA 66; (2013) 83 NSWLR 162, cited

Young v Keong [1998] QCA 100; [1999] 2 Qd R 335, cited

At 553, and see generally, DRJ v Commissioner of Victims Rights (No 2) [2020] NSWCA 242; (2020) 103 NSWLR 692 on the issues of extraterritorial competence and statutory interpretation.

(2020) 103 NSWLR 692

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (115 paragraphs)

Parties

Legislation Cited (8)

Cases Cited (51)