Russell v S3@Raw Pty Ltd (No 3)

The case before the court was an interlocutory application brought by the third respondent, S3@Raw Pty Ltd, against the applicant, Hayley Russell, in relation to defamation claims made by Russell against the first and third respondents. Russell, who was the manager of the first respondent's business, alleged that defamatory posts were published about her on Instagram by the third respondent, who is the sole director and secretary of the first respondent. Russell sought injunctive relief to remove the posts and restrain further publication, while the third respondent sought to dismiss the defamation claim and for the further amended statement of claim to be struck out.

The court had to decide whether section 10A(5) of the Defamation Act 2005 (Vic), which requires a judge to determine the serious harm element as soon as practicable before a trial, is consistent with the Federal Court of Australia Act 1976 (Cth) and the Federal Court Rules 2011 (Cth). The court also needed to determine whether the concerns notices provided by Russell were sufficient to establish serious harm and if the further amended statement of claim disclosed a reasonable cause of action.

The court found that section 10A(5) of the Defamation Act 2005 (Vic) does not conflict with the Federal Court of Australia Act 1976 (Cth) and the Federal Court Rules 2011 (Cth). The court reasoned that the concept of "special circumstances" under section 10A(5) does not necessarily require a separate pre-trial hearing on the question of serious harm. Instead, the court can consider run-of-the-mill case management issues in determining whether special circumstances exist. The court also found that the concerns notices provided by Russell were insufficient to establish serious harm and that the further amended statement of claim disclosed a reasonable cause of action.

In conclusion, the court dismissed the interlocutory application brought by the third respondent. The court held that there were special circumstances in the case that justified postponing the determination of serious harm until trial. The court also found that the further amended statement of claim should not be struck out as it disclosed a reasonable cause of action and the concerns notices were not sufficient to establish serious harm. The court ordered that the parties confer and provide agreed draft orders to progress the proceeding to trial or list a case management hearing if no agreement was reached.