Peros v Blackburn

Case [2024] FCA 177

FEDERAL COURT OF AUSTRALIA

Peros v Blackburn [2024] FCA 177

File number: QUD 405 of 2023
Judgment of: DERRINGTON J
Date of judgment: 5 March 2024
Catchwords: DEFAMATION – application for hearing of separate question on whether claimant suffered serious harm – where application made under r 30.01 of the Federal Court Rules 2011 (Cth) – factors relevant to appropriateness of separate hearing – application refused
Legislation:

Evidence Act 1995 (Cth)

Federal Court of Australia Act 1976 (Cth)

Judiciary Act 1903 (Cth)

Federal Court Rules 2011 (Cth)

Defamation Act 2005 (Qld)

Defamation Act 2013 (UK)
Cases cited:

Amersi v Leslie [2023] EWHC 1368 (KB)

Australian Broadcasting Corporation v Chau Chak Wing (2019) 271 FCR 632

Banks v Cadwalladr [2023] 3 WLR 167

Channel Seven Sydney Pty Ltd v Mahommed (2010) 278 ALR 232

Dingle v Associated Newspapers Ltd [1964] AC 371

Hun v AljazeeraInternational (Malaysia) SDN BHD [2023] FCA 1103

Lachaux v Independent Print Ltd [2018] QB 594

Lachaux v Independent Print Ltd [2020] AC 612

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

Selkirk v Hocking [2023] FCA 432

Sivananthan v Vasikaran [2023] EMLR 7

Whittington v Newman [2024] NSWCA 27
Division: General Division
Registry: Queensland
National Practice Area: Other Federal Jurisdiction
Number of paragraphs: 80
Date of hearing: 20 February 2024
Counsel for the Applicant: Mr R Potter SC
Solicitor for the Applicant: Rostron Carlyle Rojas Lawyers
Counsel for the Respondent: Mr P McCafferty KC with Mr A O’Brien
Solicitor for the Respondent: Shand Taylor Lawyers

ORDERS

QUD 405 of 2023
BETWEEN:

JOHN PEROS

Applicant
AND:

VICKI BLACKBURN

Respondent

ORDER MADE BY:

DERRINGTON J

DATE OF ORDER:

5 MARCH 2024

THE COURT ORDERS THAT:

1.The application filed on 19 December 2023 be dismissed.

2.The parties be heard on the question of costs.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

DERRINGTON J:

Introduction

  1. By an interlocutory application filed on 19 December 2023, Ms Vicki Blackburn, the respondent in defamation proceedings, seeks an order pursuant to r 30.01 of the Federal Court Rules 2011 (Cth) (the Rules) or, alternatively, s 10A(5) of the Defamation Act 2005 (Qld) (Defamation Act), for a separate determination of the question of whether each of three alleged defamatory publications caused, or are likely to have caused, serious harm to the reputation of the claimant, Mr John Peros. 

  2. There is uncertainty in the authorities as to whether the ambulatory effect of s 79 of the Judiciary Act 1903 (Cth) includes s 10A(5) of the Defamation Act and, therefore, whether it is a process available to this Court. It is unnecessary in these proceedings to determine that issue as Ms Blackburn elected to proceed under r 30.01, which relevantly provides that a party may apply to the Court for an order that a question arising in the proceedings be heard separately from any other questions.

  3. However, it should be acknowledged that the outcome of this case may well have been entirely…

Continue reading Peros v Blackburn

Sign in free to access the full text

Details
AGLC
Peros v Blackburn [2024] FCA 177
Case
[2024] FCA 177
Decision Date

CaseChat Overview and Summary

In the case of Peros v Blackburn, the Federal Court was asked to decide whether a separate hearing on the question of whether the plaintiff, Peros, suffered serious harm due to defamatory publications should be held. The defendant, Blackburn, applied under rule 30.01 of the Federal Court Rules 2011 (Cth) for a separate determination of this issue. The case revolves around posts made by Blackburn on a Facebook group titled "Justice for Shandee", which was dedicated to her deceased daughter. Peros, who was acquitted of Shandee's murder, claims that Blackburn's posts defamed him and caused him serious harm. The legal issues before the court included whether the application for a separate hearing was appropriate and whether the nature and scope of the evidence relevant to the issue of serious harm were clear enough to justify such a hearing.

The court found that the application for a separate hearing was not appropriate. The reasoning behind this decision was multifaceted. Firstly, the court noted that there was insufficient clarity about the nature and scope of the evidence that might be relevant to the determination of serious harm, which made it difficult to assess whether a separate hearing would be appropriate. Additionally, the potential for overlapping evidence and the risk of inconsistent findings if different judges were to hear the separate question and the subsequent trial further complicated the matter. The court also highlighted that the proposed separate hearing would not resolve whether the alleged imputations were conveyed or defamatory, which was a significant concern given Blackburn's defence of contextual truth. The court concluded that the circumstances did not lend themselves to the use of the rule 30.01 process for determining serious harm.

As a result of this decision, the court dismissed Blackburn's application for a separate hearing on the issue of serious harm. The court also ordered that the parties be heard on the question of costs. This decision underscores the importance of carefully considering the appropriateness of separate hearings in defamation cases, particularly when the issues involved are complex and the evidence is not clearly delineated.

Orders

Orders of the court

1. The application filed on 19 December 2023 be dismissed.

2. The parties be heard on the question of costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

If it is the case that ss 10A(5) and (6) of the Defamation Act are not picked up and included in this Court’s jurisdiction, an amendment to the Rules is required to create an analogous procedure for defamation proceedings in this Court. As the following reasons reveal, the circumstances of this case provide a good example of where an application made under r 30.01 of the Rules fails, but an order under s 10A(5) of the Defamation Act might well have been made. Background Mr Peros has brought a defamation claim against Ms Blackburn in this Court. He relies upon certain publications alleged to have occurred within a “Facebook Group”, of which Ms Blackburn is the administrator. The Facebook Group is entitled “Justice for Shandee”. The reference to “Shandee” is a reference to Ms Blackburn’s daughter, Shandee Blackburn, who was murdered on 9 February 2013. Mr Peros was charged with Shandee Blackburn’s murder, but, following a trial in the Supreme Court of Queensland in April 2017, he was acquitted. An extended coronial hearing into the death of Shandee Blackburn occurred in 2019 and, in August 2020, the Central Coroner of the Coroner’s Court of Queensland issued his decision and reasons in relation to it (hereinafter referred to as the “Coroner’s report”). He found that Shandee Blackburn died due to injuries sustained in an incident involving violence with Mr Peros who used a bladed instrument. In so finding, the Coroner did not make any statements or findings that Mr Peros is guilty of any offence, nor civilly liable for anything. Mr Peros, who had previously been in a personal relationship with Shandee Blackburn denied, and still denies, any involvement in her death. The findings contained in the Coroner’s report were widely published in the press and media. Following the delivery of the report, a podcast was produced by a journalist and the publisher of “The Australian” newspaper. That podcast and various content relating to it was also widely published. Mr Peros has since issued defamation proceedings in both the Supreme Court of Queensland and this Court in relation to it. In his statement of claim against Ms Blackburn in the present proceedings, Mr Peros relies upon certain posts and comments which appeared on the Facebook Group, “Justice for Shandee”, in late 2022. As a matter of context, the alleged publications by Ms Blackburn occurred well after the publication of the Coroner’s report, the podcast, and the media reports. The first matter complained of relates to a post on the Facebook Group which contained a link to a news article published by The Australian entitled, “Coroner-labelled stabber sues victim’s sister for ‘murderer’ claim”. It is a response to that post made by another Facebook user on 3 October 2022 which is the first matter of which Mr Peros complains. It read:Of course he is, that’s exactly what a murdering sociopath would do…my love and support is with you Vicki and Shannah. (love heart emoji)

Evidence

Evidence Before The Court

Overall, it is difficult to assess the strength of Mr Peros’ claim that he has suffered serious harm to his reputation. On the one hand, the gravity of the imputations and the potential substantial number of recipients might give rise to an inference which satisfies the test. On the other hand, that may be insufficient were the Coroner’s report to be admissible, or if other evidence is available which reflects badly on Mr Peros. It is not possible to conclude whether Mr Peros has a strong case in terms of serious harm, even if he might overcome the initial evidential threshold.Overlapping evidence and inconsistent findings In the determination of whether the r 30.01 process should be pursued, matters of convenience and the orderly conducting of hearings are important considerations. One obvious issue is the potential for overlapping evidence or the possibility for evidence to be repeated and witnesses being required to give the same evidence twice. Those consequences have regularly provided a bar to the use of the r 30.01 procedure. Conversely, it is unlikely that they would provide any similar hindrance to the early determination of serious harm under s 10A(5) of the Defamation Act, given that the existence of some relevant overlap is expected to occur. Even on a cursory consideration, any assessment of serious harm is likely to involve evidence which is also relevant to the making of the defamatory statements, the imputations which arise, the possible defences, and the assessment of damages. It follows that this element of potential inconvenience is probably to be tolerated more in the process under s 10A(5) than in that provided for under r 30.01. For present purposes, the scope of the separate question and the evidence which may be called is insufficiently clear to permit the conclusion that procedural inconvenience will not arise. Indeed, it is likely that evidence which may be adduced on the separate question hearing will need to be adduced at the trial if it occurs. Much of the evidence will be relevant to several other issues and, especially, to the question of damages. This also militates against the use of the r 30.01 procedure. Where there is a risk of overlapping evidence there is a potential for further difficulties to arise if the judge who has determined the separate question does not also hear the subsequent trial. In Hun v Aljazeera International, McEvoy J made the following observation (at [56]) in relation to this issue:As the applicant contends, it is likely that any evidence going to serious harm would also be relevant to the assessment of damages. Depending on findings made on the hearing of the separate question it may be that it would become necessary for another Judge of the Court to hear the trial of the proceeding and the further evidence from the same people in relation to damages. Plainly this would be undesirable. The Court would be inconvenienced, as would the relevant witnesses. Of course, in any case where a separate issue is determined ahead of a trial, there is a risk of inconsistent findings were a different judge to hear the trial of the matter. That is a significant issue for the purposes of r 30.01, which has been judicially interpreted to be appropriate only for short, sharp questions of limited scope. Conversely, it is not usually appropriate to use it to determine contested factual issues where the determining judge is required to make credit findings, which will then bar that judge from hearing the matter further. For that reason, where the resolution of the separate question might require the determination of contested facts by cross-examination, an application for a separate hearing pursuant to r 30.01 is generally refused.

Decision

Reasons for decision

Alternatively, if it were appropriate to order a separate determination of serious harm, it may be appropriate to follow the lead of O’Callaghan J in Selkirk v Hocking, where his Honour ordered a separate trial of two issues: the first being whether the alleged imputations were conveyed, and the second being whether the claimant suffered serious harm. Nevertheless, it must be noted that in the subsequent determination in the matter in Selkirk v Hocking (No 2), O’Callaghan J reflected (at [93]) that it was perhaps not appropriate to consider the existence of the imputations isolated from the defences which had been raised. The same point is relied upon in this case, and it is noted that one of Ms Blackburn’s defences is contextual truth under s 26 of the Defamation Act. On any separate hearing, that might necessitate a consideration of whether that defence is available in relation to each of the alleged imputations. That would necessarily widen the scope of the separate question procedure which further renders its use less palatable. Conclusion On the material presently before the Court, the circumstances of this case are not suitable for the determination of a separate question under r 30.01. Whilst the relevant question can be stated in broad terms, the nature and scope of the issues which would arise in such a hearing remain unclear. Though significant savings of costs would occur if the separate question was answered in favour of Ms Blackburn, it is not sufficiently evident that she will succeed. Further, even though the question needs to be decided at some point, it may be that the nature and scope of the issues involved will cause the hearing on the separate question to be substantial in itself, resulting in no savings of costs. Whilst it should not be accepted that the Coroner’s report would necessarily be excluded on the hearing of the separate question under the Dingle principle, there was sufficient doubt about its admissibility to warrant caution about proceeding on the assumption that it is. With the lack of a sufficient degree of certainty about the scope of the separate question and the admissibility of the evidence relevant to it, the potential inconvenience to the overall process renders the r 30.01 process an unsuitable tool for its resolution. In these circumstances, the application must be dismissed.

Ratio Decidendi

Legal Principle Established

In this case, where the nature and scope of the evidence which might be adduced and the degree to which it might be contested at any separate hearing is difficult to identify, the r 30.01 process is inapt. Other considerations A further indicium of inconvenience raised on behalf of Mr Peros was that the proposed separate hearing on serious harm would not involve any resolution of the meaning of any of the publications or whether the imputations alleged by Mr Peros can be sustained. In this respect, Mr Potter SC made reference to Hun v Aljazeera International, where McEvoy J observed (at [57]) that a court should not readily determine a separate question based on assumed facts, particularly where the parties will be free to dispute those facts at the ultimate trial. In that case, his Honour was not content for the Court to assume that the alleged meanings in the Aljazeera proceedings were conveyed where similar issues were in contest in the Nationwide News proceedings. Mr Potter SC therefore submitted that it would not be appropriate in the present case to regard the pleaded imputations as conveyed and defamatory for the purposes of determining serious harm when Ms Blackburn has reserved the right to contest at trial whether any of the three publications complained of conveyed the alleged imputations or, if they did, that they were defamatory. It was said that s 10A of the Defamation Act is concerned with serious harm flowing from the “defamatory matter”, which is intrinsically tied up with the question of meaning. However, Mr Potter SC seemed to suggest that there may be some question as to whether meaning is distinct from the imputations alleged. Whether that is true or not need not be determined. Even if serious harm is only to be ascertained as flowing from the defamatory matter as distinct from the imputations, the question of serious harm has been identified by the legislature as a threshold issue and, indeed, one to be determined ahead of the trial of the proceedings unless that process is shown to be inadequate to the required degree. On the other hand, if the concepts of defamatory matter, imputation and meaning are to be accorded a rough equivalence, it would follow that the substantial meaning of the publications would be determined at the serious harm hearing and would need not be revisited at the subsequent trial. Alternatively, if it were appropriate to order a separate determination of serious harm, it may be appropriate to follow the lead of O’Callaghan J in Selkirk v Hocking, where his Honour ordered a separate trial of two issues: the first being whether the alleged imputations were conveyed, and the second being whether the claimant suffered serious harm. Nevertheless, it must be noted that in the subsequent determination in the matter in Selkirk v Hocking (No 2), O’Callaghan J reflected (at [93]) that it was perhaps not appropriate to consider the existence of the imputations isolated from the defences which had been raised. The same point is relied upon in this case, and it is noted that one of Ms Blackburn’s defences is contextual truth under s 26 of the Defamation Act. On any separate hearing, that might necessitate a consideration of whether that defence is available in relation to each of the alleged imputations. That would necessarily widen the scope of the separate question procedure which further renders its use less palatable. Conclusion