Hossain v Ali & Ors (Ruling)
[2022] VCC 2195
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Defamation List
Case No. CI-22-00509
| Mohammed Hossain | Plaintiff |
| v | |
| Md Yousuf Ali | First Defendant |
| and | |
| Nusrat Islam | Second Defendant |
| and | |
| Kazi Md Mizanur Rahman | Third Defendant |
| and | |
| Mohammad Hassan | Fourth Defendant |
| and | |
| Imtiaz Chowdhury | Fifth Defendant |
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JUDGE: | Her Honour Judge Clayton | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 November 2022 | |
DATE OF RULING: | 13 December 2022 | |
CASE MAY BE CITED AS: | Hossain v Ali & Ors (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 2195 | |
RULING
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Subject:DEFAMATION
Catchwords: Serious harm – Application by defendants for serious harm element to be determined prior to trial – Plaintiff opposes application on basis there are special circumstances justifying the postponement of the determination to trial
Legislation Cited: Defamation Act 2005
Cases Cited:Rader v Haines [2022] NSWCA 198 – Scott v Bodley [2022] NSWDC 459 – Spirits international BV v Federal treasury Enterprises Sojusplodoimport [2011] FCAFC 69 – Wilks v Qu (Ruling) [2022] VCC 620 – High Quality Jewellers Pty Ltd & Ors v Ramaihi (Ruling) [2022] VCC 1924 – Sims v Jooste (No 2) [2016] WASCA 83 – Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 – Newman v Whittington [2022] NSWSC 249 – Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217 – Zimmerman v Perkiss [2022] NSWDC 448 – Radar v Haines [2022] NSWCA 198 – Georges v Georges [2022] NSWDC 558 – Nyasulu v Naikelekele [2022] NSWDC 507 – Murphy v Victoria & Anor (2014) 45 VR 119 – Wells Fargo Bank Northwest National Association v Victoria Aircraft Leasing Ltd (No 2) [2004] VSC 341 – DST Bluedoor Pty Ltd v AMP Services Ltd [2020] VSC 254 – Tepko Pty Ltd v Water Board (2001) 206 CLR 1 – Hyder Consulting (Vic) Pty Ltd v CGU Insurance Ltd [2001] VSC 449 – Wardley Australia Ltd v Western Australia (1992) 175 CLR 514 – Jacobson v Ross [1995] 1 VR 337 – Dunstan v Simmie and Co Pty Ltd [1978] VR 669.
Hansard:Victoria, Parliamentary Debates, Legislative Assembly, 14 October 2020, 2662 (The Hon J Hennessy, MP, Attorney-General).
Explanatory
Memorandum: Explanatory Memorandum, Justice Legislation Amendment (Supporting Victims and Other Matters) Bill 2020 (Vic).
Background Paper: Council of Attorneys-General Review of the Model Defamation Provisions Background Paper (December 2019).
Ruling:Plaintiff’s application granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Castelan | Matrix Legal |
| For the Defendants | Mr A Anderson | Gadens |
HER HONOUR:
1The plaintiff, a member of Victoria’s Bangladeshi community, brings these proceedings against five defendants for five publications directed at Bangladeshi community members. The second, fourth and fifth publications are reproductions of the first publication. The third publication includes many of the same allegations as the first publication, as well as additional allegations.
2Recent changes to the Defamation Act 2005 introduced a new element to the tort of defamation. A plaintiff must now establish they have suffered ‘serious harm’ to their reputation rather than damage to reputation being assumed
3The defendants have applied for the Court to determine the serious harm element prior to trial. The plaintiff opposes that application.
The matters complained of and the imputations
4The first matter complained of (‘the first publication’), is an email sent by the first defendant to the approximately 1200 members of the Victorian Bangladeshi Community Foundation (‘VBCF’) on 7 September 2021.[1] The first defendant is the president of the VBCF. The plaintiff is a vice-president of the VBCF.
[1] Affidavit of Mohammed Mosharaf Hossain dated 18 October 2022.
5The second matter complained of (‘the second publication’) is a republication of the first publication on a Facebook messenger group called ‘200+ Member Group’. The second defendant is the administrator of that Facebook Messenger group. The 200+ Member Group has about 178 members.
6The fourth matter complained of (‘the fourth publication’) is a republication of the first publication on a Facebook page ‘Bangladeshi Broadsheet’ which has around 2000 followers. The fourth defendant is the administrator or operator of the Facebook page.
7In an affidavit the plaintiff says the first publication was uploaded by the fourth defendant on the Bangladeshi Australian/Australian Bangali Facebook Page which has around 13,600 followers. The plaintiff does not make a claim against the fourth defendant in relation to publication of the first publication on the Bangladeshi Australian/Australian Bangali Facebook Page in his statement of claim. The plaintiff makes a claim against the first defendant for republication, but does not identify republication on the Bangladeshi Australian/Australian Bangali Facebook Page in his particulars.
8The fifth matter complained of (‘the fifth publication’) is a republication of the first publication on a Facebook Messenger group called ‘Wyndham Tigers’ which has 89 members. The fifth defendant is the operator of the Wyndham Tigers Facebook Messenger group.
9The third matter complained of (‘the third publication’) is an email sent by the third defendant to the VBCF Executive Committee members on 29 August 2021, before the first publication was sent. The third defendant is a member of the VBCF Executive Committee, as is the plaintiff, the first defendant and the second defendant. In total there are fourteen members of the executive committee.
10Although the first, second, fourth and fifth publications are the same, the plaintiff pleads slightly different imputations are conveyed by the second publication.
First, fourth and fifth publications imputations
11The plaintiff pleads the first, fourth and fifth publications convey meanings that he:
(a) intentionally lied to members of the VBCF by email and misled them;
(b) broke the law by engaging in workplace bullying;
(c) is not a fit and proper person to be a member of the VBCF by engaging in gender discrimination;
(d) is not a fit and proper person to be a member of the VBCF by engaging in misconduct;
(e) is not a fit and proper person to be a member of the VBCF by assaulting parties;
(f) should be shunned by members of the VBCF due to his conduct.
Second publication imputations
12The plaintiff pleads the second publication conveys meanings that:
(a) he lies;
(b) he defames;
(c) his behaviour and conduct is bullying, gender discriminative, assaultive, aggressive, non-cooperative also in breach of the VBCF constitution and threatening to the VBCF;
(d) he has destroyed the VBCF’s reputation;
(e) members of the VBCF should “not participate with” his activities.
Third publication imputations
13The plaintiff pleads the third publication conveys meanings that:
(a) he solely creates a “hostile and unsettling environment” for others (sic);
(b) he has “hinded” (sic) the VBCF “usual business activity” (sic);
(c) his conduct and attitude is of an “attacking, assaulting, aggressive, non-co-operative” (sic) nature;
(d) he has caused the VBCF to operate efficiently [nb presumably this should be inefficiently] due to his “continuous harassment” (sic);
(e) his dishonest, threatening, illogical behaviour (verbally and in writing) has caused others to be “demotivated” (sic);
(f) he has “severely damaged” (sic) the reputation of the VBCF;
(g) he has demonstrated “misleading, intimidating behaviour’ (sic) towards others;
(h) he makes “autocratic decisions” (sic), is “undermining” (sic) and implements a “personal agenda” (sic) based on his “self interest” (sic).
(i) he is manipulative and deceitful and uses “underhanded tactics” (sic);
(j) he victimises, harasses and bullies others;
(k) he is mentally abusive and creates “mental agony” (sic);
(l) he is gender discriminative, his attitudes “show how he acts against women empowerment” (sic). “He shouts very attackingly” (sic) to female council members.
(m) he intentionally creates chaos, targets a person and is unable to acknowledge his “misdeeds” (sic);
(n) he has several times “threatened legal action” (sic)
(o) he doesn’t support the VBCF he has defamed them and has set out “intentionally with a view” (sic) to destroy them;
(p) he has gained “unauthorised access of financial documents” he has gained them “illegally and he is engaged in conduct of prejudicial of the organisation which shows serious breach of the constitution” (sic);
(q) he is seeking to be elected by gaining favouritism by “misleading” others (sic);
(r) he has “double standards” and “bends the rules” (sic);
(s) he has “breached the VBCF Constitution and Oath” (sic);
(t) he has “failed to comply with Councils decision” (sic);
(u) he has “violated” Council decision and confidentiality (sic);
(v) (there is not imputation v pleaded)
(w) he has failed to “maintain COVID rule” (sic);
(x) he should be faced with “disciplinary action” and “drastic action” against him;
(y) he has been on a community estate committee “Moorookle Estate” and has had numerous complaints.
14There are problems with the imputations as pleaded, not least because many of them appear to be simply quotes from the publication, and it is not apparent what defamatory meaning is said to have been conveyed.
The plaintiff’s allegations of serious harm
15The plaintiff pleads he has suffered serious harm in that he has been severely injured in reputation and standing and has therefore suffered loss and damage.
16He pleads the following particulars:
(a) The plaintiff is of Bangladeshi descent and his main social circle is Victorian residents of Bangladeshi descent;
(b) the publications targeted the members of the VBCF and the Victorian Bangladeshi community;
(c) the plaintiff has been shunned by members of his community since the publications as the publication has spread via the Bangladeshi community by virtue of the grapevine effect;
(d) the plaintiff has suffered mental anguish and anxiety since the publications;
(e) the plaintiff has been contacted by members of his community about the publications;
(f) the plaintiff has held senior voluntary positions and his reputation has been damaged in that the publications impute he is not fit to hold this office;
(g) the plaintiff is also heavily involved with the various communities activities in Victoria;
(h) further and better particulars of serious harm will be provided after full and proper discovery and prior to trial.
17Only particular (c) of his particulars above appears to be a particular of serious harm. Mental anguish and anxiety are not relevant to the element of serious harm to reputation. The rest of the particulars pleaded are the background circumstances which demonstrate why serious harm has been or could be caused, but are not illustrative of the harm itself.
18In addition to his pleading, the plaintiff relies on the concerns notices sent to each defendant in which his solicitor claims the plaintiff has suffered serious harm ‘which includes anxiety, stress and personal fear and embarrassment and being shunned by members of the Bangladeshi community and being forced to leave his position in the VBCF. The publication went to hundreds of people we are instructed and will satisfy the new serious harm test accordingly as the publication was false and malicious and intended to harm our client.’[2] Anxiety, stress, personal fear and embarrassment are factors to be considered in assessing damages but are not evidence of harm to reputation. Malice and truth may be relevant to defences and damages but not to the element of serious harm.
[2] Affidavit of Mohammed Mosharaf Hossain affirmed 18 October 2022, exhibit MMH-1.
19The plaintiff says many people have made bad comments about him on social media, directly or indirectly, people have lost respect and trust in him and asked whether their children and spouses are safe if he stayed in the organisation (presumably the VBCF). As a result he has had to resign. He says people avoid him and his family, do not invite him to family events and that he has lost friends. He says the loss of respect and trust in his community has meant he cannot run his business. He has been unable to focus on his political career, though it is not clear whether this is because of his mental state or as a consequence of damage to his reputation. He says a ‘key director’, Nurul Khan, has said he will no longer work on future projects with him due to negative perceptions about him in ‘the society’.
20The plaintiff also relies on affidavit evidence of:
(a) Mohammed Abul Hossen who says many members of the Bangladeshi community are gossiping about and shunning the plaintiff;
(b) Kazi Hossain who says the plaintiff has been isolated and ignored by committee members that have formed a negative opinion of him and that community members were discussing that the plaintiff is ‘the culprit’ and intentionally trying to destroy the organisation.
(c) Tanvir Gaus who says many people in the community speak negatively of the plaintiff since the publications;
(d) Nurul Khan who says the plaintiff has been avoided by many members of the VBCF and the Bangladeshi community and that he is not welcomed and invited to as many Bangladeshi community events. Mr Khan says if he were starting a new project he might not involve the plaintiff as it would be reputationally risky, considering many people in the community have rejected the plaintiff;
(e) Mohammad Maruf Hossain who says many community members have started to shun the plaintiff and reject his invitations.
21Although the plaintiff says he has been unable to run his business due to the loss of his reputation, and has been unable to pursue his political career, he makes no claim for special damages or financial loss.
Separate determination of serious harm element
22Section 10A of the Defamation Act 2005 provides:
(1) It is an element (the "serious harm element" ) of a cause of action for defamation that the publication of defamatory matter about a person has caused, or is likely to cause, serious harm to the reputation of the person.
(2) For the purposes of subsection (1), harm to the reputation of an excluded corporation is not serious harm unless it has caused, or is likely to cause, the corporation serious financial loss.
(3) The judicial officer (and not the jury) in defamation proceedings is to determine whether the serious harm element is established.
(4) Without limiting subsection (3), the judicial officer may (whether on the application of a party or on the judicial officer's own motion)--
(a)determine whether the serious harm element is established at any time before the trial for the proceedings commences or during the trial, and
(b)make any orders the judicial officer considers appropriate concerning the determination of the issue (including dismissing the proceedings if satisfied the element is not established).
(5) If a party applies for the serious harm element to be determined before the trial for the proceedings 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 proceedings (including during the trial).
(6) The matters a judicial officer may take into account in deciding whether there are special circumstances for the purposes of subsection (5) 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,
(c)the extent to which establishing the serious harm element is linked to other issues for determination during the trial for the proceedings.
(7) Without limiting subsection (5), the judicial officer may determine the serious harm element is not established on the pleadings without the need for further evidence if satisfied that the pleaded particulars are insufficient to establish the element.
(8) Nothing in this section limits the powers that a judicial officer may have apart from this section to dismiss defamation proceedings (whether before or after the trial commences).
23Serious harm must be established in every defamation action to which s10A of the Defamation Act 2005 applies.[3]
[3] Rader v Haines [2022] NSWCA 198.
24On the application of a party, the Court must determine the serious harm element prior to trial unless there are ‘special circumstances’.
25In Scott v Bodley, Gibson J sets out a list of factors to be considered in determining the structure for a hearing on serious harm.[4]
[4] Scott v Bodley [2022] NSWDC 459, [15].
26Factors relevant for this proceeding include:
(a) The timing of the application. It should be brought early, as the legislation envisages a hearing taking place as soon as possible, and certainly before the incursion of significant costs. In this case the application has been made at a suitably early stage of the proceeding. The legislation displaces the usual rule that all trial issues should be dealt with at the same time and separate determinations are generally undesirable.[5]
(b) Whether there are ‘special circumstances’ that warrant a deferral of the hearing. What might constitute special circumstances has been discussed in Wilks v Qu (Ruling), Scott v Bodley and High Quality Jewellers & Ors v Ramaihi (Ruling).[6] The application of special circumstances will be discussed further below.
(c) Whether imputations rulings are required. As noted by Gibson J, in the United Kingdom trials on preliminary issues such as serious harm generally include a ruling on imputations. The defendants deny the pleaded imputations in their respective defences and seek rulings on imputations.
[5] Spirits international BV v Federal treasury Enterprises Sojusplodoimport [2011] FCAFC 69, [148].
[6] Wilks v Qu (Ruling) [2022] VCC 620, [40]-[45]; Scott v Bodley [2022] NSWDC 459, [32]-[36]; High Quality Jewellers Pty Ltd & Ors v Ramaihi (Ruling) [2022] VCC 1924, [25]-[29].
Plaintiff’s submissions
27The plaintiff says a line should be drawn in relation to cases where serious harm should be determined before trial and that line is drawn at the level of damages the claim could attract.
28If a claim is likely to result in only modest damages, then the serious harm element ought to be heard early. In such a case there is a genuine likelihood that a trial could be avoided.
29However if the claim is likely to result in significant damages which exceed the costs of a trial, there is no benefit in determining the serious harm element prior to trial.
30The intention of the legislature was to save costs by ensuring that only cases where there was serious harm proceeded to a trial. Making and responding to an application for a serious harm hearing increases costs. Running a serious harm hearing increases costs. There is no benefit to parties or the court if the matter will proceed to trial in any event.
31In this case the plaintiff says the evidence supports a finding that damages are likely to be more than modest: the publication was not to a handful of people but to many hundreds, if not thousands; those who recieved the publication were all people within the plaintiff’s own relatively small community; the imputations are serious and include allegations of bullying, sexist behaviour, assault and dishonesty.
32The plaintiff says the evidence of Mr Khan, Mr Gaus, Mr Hossen, Mr Kazi Hossain and Mr Mohammad Maruf Hossain all demonstrate serious harm to his reputation. His own evidence of community shunning and impacts on his business and political aspirations demonstrate serious harm. He says he is highly likely to establish serious harm.
33These factors would lead to an award of damages that is likely to be more than modest. This is not the sort of trivial or frivolous matter at which the legislation was targeted.
34Further the plaintiff says there are other factors that should be considered:
(a) Witnesses who have to attend court to give evidence as to serious harm would, if serious harm is made out, probably have to attend again at trial to give evidence. It is difficult to get witnesses to court once, let alone twice and this places an unfair burden on the plaintiff;
(b) The hurt, distress and anguish caused to the plaintiff by this matter would be exacerbated by having to give evidence at the serious harm stage and again at trial;
(c) There is a real prospect that the question of serious harm is inextricably linked to other issues in the trial. For example if the defendants argue the plaintiff’s reputation has not suffered serious harm because people already have certain views about him, this would potentially require a canvassing of all the issues raised by qualified privilege and truth defences;
(d) Costs of running a serious harm hearing would be substantial, as such a hearing would likely take two or more days. A hearing would need to include evidence about the extent of publication, the gravity and impact of publication on recipients and the reputational damage to the plaintiff and a debate about the meaning of the words in the publications.
35The plaintiff says ‘special circumstances’ are made out and the serious harm element ought to be determined at trial.
Defendants’ submissions
36The defendants say the starting point for any decision must be the legislation, which has put a new burden on plaintiffs. The imposition of an additional element to a tort is unusual and ought not be too readily displaced.
37The fact that material has been sent by email or on social media, does not mean it was downloaded and read. The evidence establishes only that a handful of people read the first publication and the fourth publication. There is no evidence that anyone read the second or fifth publications other than the appearance of three ‘thumbs up’ signs on the fifth publication. The third publication was to a small number of committee members.
38The defendants say the relevant consideration is not how many people may have received the first publication or were members of Facebook groups on which the second, fourth and fifth publications were posted, but how many people actually read the publication.[7]
[7][7] Sims v Jooste (No 2) [2016] WASCA 83.
39The defendants say the Court cannot be satisfied that serious harm is likely to be made out, nor that damages are unlikely to be modest as against each, or any, of the defendants. In particular, the second, third and fifth defendants say their publications were to small groups of people, all or nearly all of whom were members of the VBCF and who would also have received the first publication.
40The plaintiff has put on evidence from three people, Mr Nurul Khan, Mr Mohammad Maruf Hossain and Mr Mohammad Hossen, who saw the fourth publication. Each of these people had also seen the first publication. There is no evidence that anyone saw the fourth publication who had not also seen the first publication.
41Even if the plaintiff could establish serious harm, he has not demonstrated serious harm has been caused by each defendant’s publication. There is no evidence capable of satisfying the Court that it is so likely he will establish serious harm against every defendant as to make a pre-trial determination of the issue a waste of time and money.
42Serious harm must be established against each defendant and for each of the five causes of action pleaded. The plaintiff has sought to rely on general assertions of harm and sweeping statements and applied them to each defendant. The Court ought not be satisfied by the affidavit material which is largely bereft of probative and appropriately detailed evidence.
43The Court ought consider not just the burden on the plaintiff of having a preliminary determination, but the burden of a trial on the defendants, who will have to go through a full defamation trial in circumstances where there might be no serious harm caused by their publication. The burden is both financial and emotional which cannot necessarily be adequately assuaged by costs orders.[8]
[8] Aon Risk Services Australia Limited v Australian National University [2009] HCA 27.
44The potential that an early determination of serious harm would reduce the number of defendants at trial would significantly narrow the scope of the proceedings, reduce issues in dispute and reduce the length of the trial, which will save costs to all parties.
45The test proposed by the plaintiff – that the ‘line’ be drawn in relation to potential damages – is not reflected in the legislation. The legislation does not mention the damages likely to be awarded as a special circumstance, nor does it restrict those matters where serious harm must be determined prior to trial to trivial and frivolous matters.
46However even on the plaintiff’s own proposed test, his application would fail in relation to at least some of the defendants. For example the third defendant would incur very high costs in defending the claim, given that there are five defendants and a trial is likely to take at least 10 days. The costs the third defendant would incur could well exceed any damages he is ordered to pay the plaintiff for his publication to a handful of people. Similarly the second and fifth publications were to small numbers of people who had seen the first publication and costs of the second and fifth defendants may well exceed any award of damages.
Analysis
47The purpose of this new regime was set out in the Second Reading Speech to the amending legislation:
The Bill will introduce a new ‘serious harm threshold’ as an additional element of the cause of action for defamation. This will require plaintiffs to establish that the publication of allegedly defamatory matter has caused, or is likely to cause, serious harm to their reputation. This important reform will operate to prevent trivial or frivolous defamation claims at the outset, reducing the burden of unwarranted defamation litigation on businesses, individuals, and the courts.[9]
Victoria, Parliamentary Debates, Legislative Assembly, 14 October 2020, 2662 (The Hon J Hennessy, MP, Attorney-General)
48The legislative intention is also apparent from the Explanatory Memorandum:
The intention is to encourage the early resolution of defamation proceedings by enabling the issue of serious harm to be dealt with as a threshold issue.[10]
[10] Explanatory Memorandum, Justice Legislation Amendment (Supporting Victims and Other Matters) Bill 2020 (Vic), clause 21
49The reforms were introduced in part to discourage the bringing of cases likely to result in modest awards, where the costs were out of proportion to the damages[11] and to deal with proceedings sooner rather than later in appropriate cases, such as ‘the “neighbourly disputes” and “backyard defamation” claims whereby ordinary citizens sue each other for comments made on digital platforms.’[12]
[11] Newman v Whittington [2022] NSWSC 249, [30]-[46].
[12] Council of Attorneys-General Review of the Model Defamation Provisions Background Paper (December 2019, p. 25).
50Preliminary serious harm determinations are in essence a case management tool to be utilised to achieve the overarching purpose of the Civil Procedure Act 2010 to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute.
51The purpose of the new regime is to reduce the number of claims going to trial, and in particular to remove the automatic right of plaintiffs to have a court determine whether or not they have been defamed. The legislation means even a plaintiff who has been defamed in undefendable circumstances will not have an entitlement to bring proceedings if they cannot meet this new serious harm threshold.
52The burden rests with the plaintiff to persuade the Court there are special circumstances to put off the determination to trial.
53Special circumstances are not exceptional circumstances[13] and the bar must not be set too high. Nor, however, are the considerations usually required in setting down a preliminary point pursuant to r47 of the County Court Civil Procedure Rules (‘the Rules’) directly relevant. The legislature has prescribed the only exception to the requirement to determine serious harm before trial is the existence of special circumstances.
What are special circumstances?
[13] Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217.
Do the costs of a separate hearing amount to special circumstances?
54Special circumstances might exist where serious harm is so likely to be established that having a preliminary hearing would waste costs.
55Special circumstances may exist where the costs of a preliminary hearing are likely to be particularly high due to some special feature of the case.
56However even where the costs of a serious harm hearing are high, and the serious harm hearing is likely to be long or complex, competing considerations such as the high likelihood that serious harm will not be established might be sufficient to warrant setting down serious harm for pre-trial determination.
57It is unlikely that there will be a ‘one-size-fits-all’ test for special circumstances as each case will necessarily turn on its own facts.
58Setting down a preliminary hearing will involve additional costs – both emotional and financial – for the plaintiff, and any of the defendants against whom serious harm is established. It will require the use of court resources. If the plaintiff establishes serious harm against all five defendants, the time and cost saving at trial of not having to establish this element will be minimal compared with the time and costs of a serious harm hearing.
59Not setting down a preliminary hearing will require five defendants to participate in a trial that will necessarily be longer and more complex than a trial against just one or two defendants. If the plaintiff does not establish serious harm against one of more of the defendants, the time and cost savings of a shorter, less complex trial, will be significant for all parties and will reduce the burden on the court.
60There are competing costs considerations as well as competing case management considerations.
61The second and fifth defendants can point to the limited number of potential recipients, and the fact that each recipient of their publication likely already received the first publication as factors that make it unlikely the plaintiff will establish serious harm. The third defendant can point to the handful of people who received his email and the lack of evidence that his email was the cause of any of the consequences the plaintiff claims, to argue serious harm is unlikely.
62In Zimmerman v Perkiss, even very serious allegations of theft did not cause serious harm to reputation.[14] The allegations were made to only one person, the plaintiff’s employer, who continued to employ and publicly praise the plaintiff.
[14] Zimmerman v Perkiss [2022] NSWDC 448.
63In Radar v Haines, very serious allegations made against the plaintiff did not cause serious harm, as the allegations were made to a small number of people who either did not believe them, or believed them only for a short time.[15]
[15] Radar v Haines [2022] NSWCA 198.
64In that case the following points emerged from an analysis of the corresponding provisions in the Defamation Act 2013 (UK):
(a) the harm that has been, or is likely to be, caused is generally measured by a combination of the inherent tendency of the words and their actual impact on those to whom they were communicated;
(b) relevant considerations include: the meaning of the words, the extent of the publication, the nature of the recipients and their relationship with the plaintiff, and whether the recipients believe the imputations;
(c) the harm is confined to reputation – injured feelings is not sufficient, no matter how great the injury to feelings is;
(d) serious harm involves harm that sits on a spectrum above ‘substantial’, though below ‘grave’. There can be harm which, though substantial, does not reach the level of ‘serious’ harm;
(e) it is the seriousness of the harm (i.e. the impact) of the publication which is in question; not the seriousness of the imputation. Thus 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 where any impact of the imputation on the plaintiff’s reputation is transitory or ephemeral;
(f) there may be serious harm without there being permanent harm;
(g) any ‘grapevine effect’ would be relevant in establishing serious harm.
65The legislation requires the plaintiff, before initiating litigation, to carefully consider whether he can make out each element of the tort against each defendant he sues. He cannot rely on serious harm caused by one defendant to satisfy the element in his claims against other defendants for their separate publications.
66I am not satisfied that it is so likely he will make out serious harm against each defendant so as to make an early determination of that element a waste of time and money.
Should the quantum of damages be the test?
67It is theoretically possibly that a case could, before the advent of this legislation, attract significant damages where there was no serious harm, just as it is possible that a case where there is serious harm could attract only modest damages. But most of the time, the seriousness of the harm and the quantum of damages are likely to be linked.
68If an assessment of quantum was the test for deciding whether to set a serious harm hearing down for early determination, a court would have to consider the following factors: the classes of the recipients, the plaintiff’s relationship to the recipients, the nature and scope of the publications and the gravity of the imputations.
69The plaintiff says he is likely to be awarded significant damages because the publications contained serious allegations, they were made to people within his community, they were widely disseminated and resulted in him being shunned. I am not persuaded that the ‘test’ for the likely quantum of damages significantly differs from the considerations the Court must grapple with, in any event.
70This proposed test does not assist the plaintiff. Even if he is entitled to more than modest damages, I cannot be satisfied on the evidence that he would be entitled to more than modest damages against each of the defendants because of the differences in the scope, extent and recipients of their respective publications.
71It is not so likely that he will be awarded damages against each defendant that would exceed the costs of running a trial, as to make a preliminary determination of serious harm a waste of time and money.
The emotional and logistical difficulties of two hearings as special circumstances
72The legislation has increased the burden on plaintiffs by requiring them to put on evidence early to satisfy a court that their case is sufficiently serious to warrant a full trial. This necessarily entails the prospect that the plaintiff and other witnesses will have to give evidence twice. This is ‘a feature, not a bug’ of the new regime. Despite the additional burden it puts on plaintiffs, it would not ordinarily amount to special circumstances.
73In any event, the burden on a plaintiff of having to give evidence twice must also be weighed against the burden on a defendant of having to go to a trial where serious harm may not be made out.
74This is a factor in assessing the existence of special circumstances. In this case it weighs approximately equally for each side and does not establish special circumstances.
To what extent is the serious harm element linked to other issues for determination at trial?
75The plaintiff says there is a significant link if the defendants seek to call evidence that there was no serious harm because the plaintiff already had a bad reputation, as this will canvas the truth and potentially qualified privilege defences.
76It is possible there will be an overlap in the evidence to be called. It is not apparent that the extent to which issues in the serious harm element are linked to other issues in the trial is any greater than in any other defamation claim, which inevitably will involve some overlap.
77For this to constitute special circumstances, the degree to which the serious harm is linked to other issues in the case must be more than the normal case. It is not clear that this is so and even if there is a link to other issues, I am not persuaded that it outweighs other considerations.
Intention of legislature to lower costs and reduce litigation
78The legislature intended to drive down the number of what Abadee DCJ describes as ‘small defamation’ disputes – the ‘neighbourly disputes’ and ‘backyard defamation’ claims that ought to be dealt with by an amends process.[16]
[16] Georges v Georges [2022] NSWDC 558, [65].
79The plaintiff says this is not a ‘small defamation’ claim because of the seriousness of the allegations, the extent of the publication, his relationship with the recipients and the harm caused to his reputation.
80However the plaintiff has five distinct claims. Some are arguably the sort of ‘small defamation’ claims at which the legislation was targeted.
81This is not a case where the plaintiff has sued a number of defendants who all have liability for the same publication for which they are jointly and severally liable.
82Nor is this a case where the plaintiff is suing one defendant for multiple publications. I agree with the analysis of Gibson DCJ in Nyasulu v Naikelekele that, in such a case, there is no requirement for each publication to be shown to have separately caused serious harm.[17]
[17] Nyasulu v Naikelekele [2022] NSWDC 507, [25]; Georges v Georges [2022] NSWDC 558.
83The plaintiff has chosen to sue five defendants for five publications, four of which are in identical terms. He has separate causes of action against each defendant and therefore must make out each element of the tort against each defendant.
84Because of this, I am not persuaded that this is not the sort of case at which the legislation was aimed.
Are there special circumstances to warrant the deferral of the determination of the serious harm element to trial?
85This application has been brought early. The Court can accommodate a serious harm hearing that might take two or three days without any great difficulty.
86This is a case where a serious harm hearing before trial could significantly reduce the length and complexity of the trial if serious harm is not made out against all defendants. The potential ‘up-side’ of a separate serious harm hearing is significant.
87As set out above, there are no matters that constitute special circumstances and as a result the serious harm element should be determined prior to trial.
88I note here, however, that my findings in relation to the existence of special circumstances may well have been different if the plaintiff had not chosen to sue five defendants in relation to five separate publications.
89The assessment I have had to make as to the prospects of serious harm being established and the consequent cost considerations that arise are not the same for each defendant.
90A significant factor in my assessment has been the likely length and complexity of a trial involving five defendants, and the prospects of serious harm being established against all five. In particular this has factored into my assessment of the relative costs and potential benefits of a preliminary hearing on serious harm. If the plaintiff fails to establish serious harm against any defendant, the costs of the serious harm hearing will likely be offset by the cost savings of a shorter and less complicated trial.
The meanings conveyed by the publication
91The defendants made an oral application that the meanings conveyed ought also be the subject of a preliminary hearing.
92The test for setting a matter down for determination of a preliminary point pursuant to r47.04 of the Rules is well established:[18]
(a) the power should be exercised with caution, and only in a clear case;[19]
(b) the attractions of trials of issues rather than of cases in their totality, ‘are often more chimerical than real,’ so that separate trials should ‘only be embarked upon when their utility, economy and fairness to the parties are beyond question;’[20]
(c) the advantages of trying separate questions for one party may unfairly disadvantage another party, including because the questions will be determined without the benefit of all the evidence relevant to the proceeding;[21]
(d) there should be no trial of a separate question on the basis of assumed facts unless the facts are agreed or can readily be determined judicially. Otherwise, the parties remain free to dispute the relevant facts at any later trial;[22] and
(e) as a general rule, it is inappropriate to order that a preliminary issue be isolated for determination unless the determination of the issue in favour of the plaintiff or defendant will put an end to the action, or where there is a clear line of demarcation between issues and the determination of one issue in isolation from the other issues in the case is likely to save inconvenience and expense.[23]
[18] Murphy v Victoria & Anor (2014) 45 VR 119, 126, [28].
[19]Wells Fargo Bank Northwest National Association v Victoria Aircraft Leasing Ltd (No 2) [2004] VSC 341, [181] and DST Bluedoor Pty Ltd v AMP Services Ltd [2020] VSC 254, [14].
[20] Tepko Pty Ltd v Water Board (2001) 206 CLR 1, 18, [52], [55], [168] and [170].
[21]Hyder Consulting (Vic) Pty Ltd v CGU Insurance Ltd [2001] VSC 449, [25]; Wardley Australia Ltd v Western Australia (1992) 175 CLR 514, 533-534.
[22] Jacobson v Ross [1995] 1 VR 337, 341-342.
[23] Dunstan v Simmie and Co Pty Ltd [1978] VR 669, 671.
93Recent decisions in relation to serious harm have proceeded on the basis of the imputations as pleaded.[24] The potential limitations of this approach have been noted.[25] Difficulties may arise if serious harm is established on the basis of imputations which are subsequently not found to have been conveyed.[26]
[24] Zimmerman v Perkiss [2022] NSWDC 448; Scott v Bodley [2022] NSWDC 459.
[25] Scott v Bodley [2022] NSWDC 459, [15.5]; Zimmerman v Perkiss [2022] NSWDC 448, [9]-[11].
[26] Zimmerman v Perkiss [2022] NSWDC 448, [10] citing citing Alsaifi v Trinity Mirror plc v Board of Directors and another [2017] EWHC 2873 (QB), [27] – [510].
94If the application for the matter to be listed for a separate serious harm determination had not been successful, I would not consider it appropriate to list the matter for a separate question to determine the imputations. I would not be satisfied that the utility, economy and fairness of trying a separate question was beyond question.
95However the matter will already proceed to a separate hearing on serious harm, and I have already noted the problems with the imputations which will, at least as against the third defendant, need to be repleaded. It is an appropriate use of court resources to determine the meanings conveyed by the publications at the same time as determining serious harm.
96For those reasons, the defendants’ application for the Court to determine the serious harm element prior to trial is granted. The matter will be listed for a hearing on the serious harm element and the meanings conveyed by the defamatory publication.
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