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Selkirk v Hocking

Selkirk v Hocking

Case [2023] FCA 432 9 May 2023

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FEDERAL COURT OF AUSTRALIA
Selkirk v Hocking [2023] FCA 432

File number(s): VID 429 of 2022

Judgment of: O’CALLAGHAN J

Date of judgment: 9 May 2023

Catchwords: DEFAMATION – application brought by respondents pursuant to s 10A(4) of the Defamation Act 2005 (Vic) for an order that the “serious harm element” of the cause of action for defamation brought against them by the applicant be determined before the trial of the proceeding commences – where unclear whether ss 10A(5) and (6) of the Defamation Act 2005 (Vic) is picked up by s 79(1) of the Judiciary Act 1903 (Cth) – where order to be made instead that certain questions, including the serious harm element question, be heard separately from any other questions pursuant to s 37P of the Federal Court of Australia Act 1976 (Cth) and r 30.01 of the Federal Court Rules 2011 (Cth)

Legislation:
Federal Court of Australia Act 1976 (Cth) ss 37M, 37N, 37P, 39, 43

Judiciary Act 1903 (Cth) s 79

Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) s 9(3)

Federal Court Rules 2011 (Cth) r 30.01

Crimes Act 1900 (NSW) ss 192E, 193C, 254

Defamation Act 2005 (NSW) ss 21, 22, 40

Defamation Act 2005 (Vic) ss 10A, 29, 29A, 30

Evidence Act 1995 (NSW) s 191

Justice Legislation Amendment (Supporting Victims and Other Matters) Act 2020 (Vic) s 21

Explanatory Memorandum, Justice Legislation Amendment (Supporting Victims and Other Matters) Bill 2020 (Vic) cl 21

Victoria, Parliamentary Debates, Legislative Assembly, 14 October 2020

Cases cited:
Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 560

Chartbrook Ltd v Persimmon Home Ltd [2009] 1 AC 1101

Crosby v Kelly (2012) 203 FCR 451

Federated Engine-Drivers and Firemen’s Association of Australasia v The Broken Hill Proprietary Company Limited (1911) 12 CLR 398

Hayson v The Age Company Pty Ltd (No 3) (2020) 280 FCR 139

Newman v Whittington [2022] NSWSC 249

Rader v Haines [2022] NSWCA 198

Rana v Google Inc (2017) 254 FCR 1

Rizeq v Western Australia (2017) 262 CLR 1

Selkirk v Director of Public Prosecutions [2020] NSWSC 1590

Solomons v District Court (NSW) (2002) 211 CLR 119

Tepko Pty Ltd v Water Board (2001) 206 CLR 1

TVW Enterprises Ltd v Duffy (No 3) (1985) 8 FCR 93

Wing v Fairfax Media Publications Pty Ltd (2017) 255 FCR 61

Division: General Division

Registry: Victoria

National Practice Area: Other Federal Jurisdiction

Date of hearing: 20 April 2023

Number of paragraphs: 47

Counsel for the Applicant: The applicant appeared in person

Counsel for the Fifth and Sixth Respondents: Mr JA Castelan

Solicitor for the Fifth and Sixth Respondents: MST Lawyers

ORDERS

VID 429 of 2022

BETWEEN:
SIMONE SELKIRK

Applicant

AND:
SEAN HOCKING

First Respondent

NAMEBRIGHT.COM INC

Second Respondent

NATHAN HOWARD (and others named in the Schedule)

Third Respondent

ORDER MADE BY:

O’CALLAGHAN J

DATE OF ORDER:

9 MAY 2023

THE COURT ORDERS THAT:
1.The proceeding be listed for a case management hearing on a date to be fixed.
2.The costs of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Selkirk v Hocking

Details

AGLC: Selkirk v Hocking [2023] FCA 432
Case: [2023] FCA 432
Decision Date: 9 May 2023

CaseChat Overview and Summary

The application in Selkirk v Hocking was brought by the respondents against the applicant, Selkirk, who had initiated defamation proceedings against the respondents. The respondents sought an order that the "serious harm element" of the defamation cause of action be determined prior to the trial. This request was made under section 10A(4) of the Defamation Act 2005 (Vic). A critical issue before the court was whether sections 10A(5) and (6) of the Defamation Act 2005 (Vic) are incorporated by section 79(1) of the Judiciary Act 1903 (Cth). If so, it would require the serious harm element to be decided before the trial. If not, the court needed to determine how best to manage the proceedings to ensure fairness and efficiency. The court considered that instead of determining the serious harm element separately, it would be more appropriate to order that certain questions, including the serious harm element, be heard separately from any other questions. This decision was made in accordance with section 37P of the Federal Court of Australia Act 1976 (Cth) and rule 30.01 of the Federal Court Rules 2011 (Cth). Consequently, the court ordered a case management hearing to be listed for a future date to be fixed and reserved the costs of the application for later determination.

The court found that while the respondents' application raised valid procedural concerns, the most appropriate course was to manage the questions separately as permitted by the Federal Court's rules. The court held that the serious harm element, along with other specified questions, should be addressed in a separate hearing, ensuring a clear and efficient trial process. This approach allowed the court to maintain procedural fairness and avoid any potential prejudice to the parties. By making this order, the court facilitated a more structured and effective handling of the defamation proceedings. The costs of the application were reserved for later determination, ensuring that the financial implications were addressed in due course. The court's decision thus provided a balanced resolution to the procedural issues raised by the respondents, setting the stage for the forthcoming case management hearing.

Orders

Orders of the court

1. The proceeding be listed for a case management hearing on a date to be fixed.

2. The costs of the application of the fifth and sixth respondents pursuant to s 10A(4) of the Defamation Act 2005 (Vic) be reserved.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Actions

Citations

Selkirk v Hocking [2023] FCA 432

Most Recent Citation

Cooper v Nine Entertainment Co Pty Ltd [2023] FCA 726

Cases Citing This Decision

MG v PJ [2025] QCA 99
Citation 1 (Para 6)

…del Provisions) and Other Legislation Amendment Bill 2021 (Qld), page 7. [74][2024] QSC 192 at [89]. See also Selkirk v Hocking [2023] FCA 432 at [3].…
Stevens v Birtic [2024] QDC 160
Citation 2 (Para 6)

…s introduced to “weed out trivial or frivolous defamation claims” and to facilitate the early resolution of such matters: Selkirk v Hocking [2023] FCA 432 at [3]. The provision, in effect, places the onus on the applicant to prove, at the outset, that the publication has caused or is likely to cause serious harm…
Russell v S3@Raw Pty Ltd (No 3) [2024] FCA 991
Citation 3 (Para 29)

…ion was introduced to “weed out trivial or frivolous defamation claims” and to facilitate the early resolution of such matters: Selkirk v Hocking [2023] FCA 432 at [3]. The provision, in effect, places the onus on the applicant to prove, at the outset, that the publication has caused or is likely to cause serious…
Selkirk v Wyatt [2024] FCAFC 48
Citation 4 (Para 11)

…substance arguably agreed that she had on many other occasions engaged in the same (dishonest) conduct the subject of the article ( Selkirk v Hocking [2023] FCA 432 at [45] per O’Callaghan J).…
Peros v Blackburn [2024] FCA 177
Citation 5 (Para 5)

…he authorities: see Hun v Aljazeera International (Malaysia) SDN BHD [2023] FCA 1103 [35] ( Hun v Aljazeera International ), citing Selkirk v Hocking [2023] FCA 432 [39] ( Selkirk v Hocking ): r 30.01 of the Rules and s 10A(5) of the Defamation Act should not be considered as providing for the same or similar pro…
Hun v Aljazeera International (Malaysia) SDN BHD [2023] FCA 1103
Citation 6 (Para 9)

…separate determination of the serious harm question, there is, at the very least, a serious question about whether this is so: see Selkirk v Hocking [2023] FCA 432 at [23]-[35] (O’Callaghan J) and the cases there cited. It is noteworthy in this regard that senior counsel for the Al Jazeera respondents did not su…
Selkirk v Hocking (No 2) [2023] FCA 1085
Citation 7 (Para 3)

…Following publication of my reasons in Selkirk v Hocking [2023] FCA 432, on 20 June 2023, Senior National Judicial Registrar Legge made the following order: 1.A hearing for the determination of the following preliminary questions be set down for 4-5 September 2023 ( Preliminary Questions Hearing ): a.Whether the…
Qu v Wilks [2023] VSCA 198
Citation 8 (Para 2)

…rm a concluded view about the proper construction of the expression ‘special circumstances’ in s 10A(5) of the Act. [59][2023] FCA 432 (‘ Selkirk ’). [60]Ibid [39]. [61]Ibid [40].…
Cooper v Nine Entertainment Co Pty Ltd [2023] FCA 726
Citation 9 (Para 13)

…isions are not picked up by s 79 of the Judiciary Act 1903 (Cth). Reliance is placed on part of the reasoning of O’Callaghan J in Selkirk v Hocking [2023] FCA 432. I granted leave to the respondents to provide a supplementary written submission in response to this new contention, which they did and thereafter Dr…
Woolf v Brandt (No 2) [2023] NSWDC 184
Citation 10 (Para 53)

…based on the apparent success of s 1 of the UK legislation, but even this modest reform has been criticised in some quarters: Selkirk v Hocking [2023] FCA 432.…

See all citing cases →

Cases Cited

Rader v Haines [2022] NSWCA 198
Citation 1 (Para 9)

…were conveyed in the first place, because under s 10A “serious harm” is an additional element of the cause of action. See Rader v Haines [2022] NSWCA 198 at [17] (Brereton JA, with whom Macfarlan JA and Basten AJA agreed).…
Newman v Whittington [2022] NSWSC 249
Citation 2 (Para 5)

…of the cause of action that the relevant publication has caused or is likely to cause serious harm to his or her reputation. See Newman v Whittington [2022] NSWSC 249 at [47] (Sackar J). As his Honour also said at [69], “s 10A … has the effect of abolishing the common law rule that upon publication of a defamation,…
Selkirk v Director of Public Prosecutions [2020] NSWSC 1590
Citation 3 (Para 17)

…The applicant appealed. See Selkirk v Director of Public Prosecutions [2020] NSWSC 1590 (Campbell J). The appeal was allowed on a ground that may fairly be said to be “technical”, and which did not diminish the admissions of dishonesty made by the applicant in the statement of agreed facts.…
Hayson v The Age Company Pty Ltd (No 3) [2020] FCA 1163
Citation 4 (Para 29)

…As Bromwich J explained in Hayson v The Age Company Pty Ltd (No 3) (2020) 280 FCR 139 at 145 [28]-[29]: The regime[] under … [s] 79 of the Judiciary Act [is] a convenient and flexible equivalent to the Commonwealth Parliament re-enacting the same words as used by State or Territory legislatures, but without the need…
Wing v Fairfax Media Publications Pty Ltd [2017] FCAFC 191
Citation 5 (Para 1)

…In Wing v Fairfax Media Publications Pty Ltd (2017) 255 FCR 61, Allsop CJ and Besanko J held that there was a direct inconsistency between ss 39 and 40 of the Federal Court of Australia Act 1976 (Cth) and ss 21 and 22 of the Defamation Act 2005 (NSW) ( NSW Defamation Act ). As their Honours explained at 70-71 [24]-[…
Rana v Google Inc [2017] FCAFC 156
Citation 6

…LR 398 Hayson v The Age Company Pty Ltd (No 3) (2020) 280 FCR 139 Newman v Whittington [2022] NSWSC 249 Rader v Haines [2022] NSWCA 198 Rana v Google Inc (2017) 254 FCR 1 Rizeq v Western Australia (2017) 262 CLR 1 Selkirk v Director of Public Prosecutions [2020] NSWSC 1590 Solomons v District Court (NSW) (2002) 211 CLR 119…
Rizeq v Western Australia [2017] HCA 23
Citation 7 (Para 1)

…nstitution (ss 106, 107 and 108) and not by reason of the operation of s 79 of the Judiciary Act ( Rizeq v The State of Western Australia (2017) 91 ALJR 707 at [25] per Kiefel CJ; at [40]-[41] per Bell, Gageler, Keane, Nettle and Gordon JJ). Under this analysis, ss 21 and 22 of the Defamation Act would not operate ac…
Rizeq v The State of Western Australia [2017] HCATrans 11
Citation 8 (Para 1)

…ause State laws are preserved by the Constitution (ss 106, 107 and 108) and not by reason of the operation of s 79 of the Judiciary Act ( Rizeq v The State of Western Australia (2017) 91 ALJR 707 at [25] per Kiefel CJ; at [40]-[41] per Bell, Gageler, Keane, Nettle and Gordon JJ). Under this analysis, ss 21 and 22 of the Defamation Act would no…
Hockey v Fairfax Media Publications Pty Ltd (No 2) [2015] FCA 750
Citation 9 (Para 5)

…that s 40 of the Defamation Act would be picked up without issue: Hockey v Fairfax Media Publications Pty Ltd (No 2) (2015) 237 FCR 127 at [34]-[39]. I therefore reject the respondents’ argument that s 40 does not apply to the determination of an application for indemnity costs for defamation proceedings brought und…
Crosby v Kelly [2012] FCAFC 96
Citation 10 (Para 21)

…As Robertson J (with whom Bennett J and Perram J agreed) explained in Crosby v Kelly (2012) 203 FCR 451 at 457-8 [29]-[35], s 9(3) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) has the effect of conferring upon the Federal Court original jurisdiction over a proceeding that would be within the jurisdict…
Channel Seven Sydney Pty Ltd v Fierravanti-Wells [2011] NSWCA 246
Citation 11 (Para 1)

…hich may be defeated only by an order properly made under ss 21(1) and 21(3) of the Defamation Act ( Channel Seven Sydney Pty Ltd v Fierravanti-Wells (2011) 81 NSWLR 315 at [50] per McColl JA (with whom Giles JA agreed); at [138] per Handley AJA). By contrast, under ss 39 and 40 of the Federal Court of Australia Act a…
Solomons v District Court of New South Wales [2002] HCA 47
Citation 12 (Para 25)

…statutory laws, like the Defamation Act, do not apply of their own force in the exercise of federal jurisdiction. See Solomons v District Court (NSW) (2002) 211 CLR 119 at 134 [21] (Gleeson CJ, Gaudron, Gummow, Hayne and Callinan JJ).…
Tepko Pty Ltd v Water Board [2001] HCA 19
Citation 13 (Para 12)

…The courts have long warned of the potential perils of hearing separate trials of issues. In Tepko Pty Ltd v Water Board (2001) 206 CLR 1 at 55 [168]-[170], for example, Kirby and Callinan JJ said: … The attractions of trials of issues rather than of cases in their totality, are often more chimerical than real. Com…
Australian Securities and Investments Commission v Edensor Nominees Pty Ltd [2001] HCA 1
Citation 14 (Para 1)

…cordance with “independently existing substantive laws” ( Australian Securities and Investments Commission v Edensor Nominees Pty Limited (2001) 204 CLR 559 at [55], [57] per Gleeson CJ, Gaudron and Gummow JJ). This includes any applicable statute law, including that of a State. This is because State laws are preserv…
Austral Pacific Group Ltd (In liq) v Airservices Australia [2000] HCA 39
Citation 15 (Para 1)

…GPAO (1999) 196 CLR 553 at [78]-[86] per Gleeson CJ and Gummow J, and Austral Pacific Group Limited (in liq) v Airservices Australia (2000) 203 CLR 136 at [17]- [28]). Under this approach, s 109 of the Constitution is not engaged because there is not otherwise an applicable State law. We do not need to choose betwee…
Northern Territory v GPAO [1999] HCA 8
Citation 16 (Para 29)

…which is to operate as surrogate law of the Commonwealth … to be measured beside other laws of the Commonwealth”: Northern Territory v GPAO (1999) 196 CLR 553 per Gleeson CJ and Gummow J at [80]. ……
Commonwealth v Mewett [1997] HCA 29
Citation 17 (Para 5)

…tate legislative scheme as surrogate Commonwealth law, if that would give an altered meaning to the legislation so severed: Commonwealth v Mewett (1997) 191 CLR 471 at 556; Solomons at [24]. Section 40 of the Defamation Act is part of an integrated scheme for defamation proceedings in New South Wales, forming part of…
Tetron International Pty Ltd v A.B. Luckman (Collector of Customs, Victoria) [1985] FCA 382
Citation 18 (Para 2)

…e of a trial on all issues, so the advantages of the use of the power to order such questions “are plain”. See TVW Enterprises Ltd v Duffy (No 3) (1985) 8 FCR 93 at 95 (Sweeney J).…
Federated Engine-Drivers and Firemen's Association of Australasia v Broken Hill Pty Co Ltd [1911] HCA 31
Citation 19 (Para 20)

…es that they have jurisdiction. See Federated Engine-Drivers and Firemen’s Association of Australasia v The Broken Hill Proprietary Company Limited (1911) 12 CLR 398 at 415 (Griffiths CJ).…
[2009] 1 AC 1101 [2009] 1 AC 1101
Citation 20 (Para 11)

…those words because the draftsperson presumably chose the words to be meaningful. As Lord Hoffmann put it in Chartbrook Ltd v Persimmon Home Ltd [2009] 1 AC 1101 at 1112-13 [17], “[t]he words used as labels are seldom arbitrary. They are usually chosen as a distillation of the meaning or purpose of a concept inten…
Australian Securities and Investments Commission v Edensor Nominees Pty Limited 390 F Supp 1165
Citation 21 (Para 1)

…mined. This Court hears and determines a matter such as the present matter in accordance with “independently existing substantive laws” ( Australian Securities and Investments Commission v Edensor Nominees Pty Limited (2001) 204 CLR 559 at [55], [57] per Gleeson CJ, Gaudron and Gummow JJ). This includes any applicable statute law, including that of a State. This is because State laws…

Legislation Cited

Defamation Act 2005 (TAS) 10A, 21, 22, 29, 29A, 30, 40
8 mentions (from Para 1)
Federal Court of Australia Act 1976 (Cth) 37M, 37N, 37P, 39, 43
6 mentions (from Para 1)
Crimes Act 1900 (ACT) 192E, 193C, 254
4 mentions (from Para 16)
Evidence Act 1995 (Cth) 191
2 mentions (from Para 15)
Federal Court Rules 2011 (Cth) 30.01
2 mentions (from Para 11)
Judiciary Act 1903 (Cth) 79
2 mentions (from Para 19)
Jurisdiction of Courts (Cross-vesting) Act 1987 (TAS) 9(3)
2 mentions (from Para 21)
Fair Work Act 2009 (Cth)
1 mention (from Para 5)
Justice Legislation Amendment (Supporting Victims and Other Matters) Act 2020 (Vic) 21
1 mention

File number(s):	VID 429 of 2022
Judgment of:	O’CALLAGHAN J
Date of judgment:	9 May 2023
Catchwords:	DEFAMATION – application brought by respondents pursuant to s 10A(4) of the Defamation Act 2005 (Vic) for an order that the “serious harm element” of the cause of action for defamation brought against them by the applicant be determined before the trial of the proceeding commences – where unclear whether ss 10A(5) and (6) of the Defamation Act 2005 (Vic) is picked up by s 79(1) of the Judiciary Act 1903 (Cth) – where order to be made instead that certain questions, including the serious harm element question, be heard separately from any other questions pursuant to s 37P of the Federal Court of Australia Act 1976 (Cth) and r 30.01 of the Federal Court Rules 2011 (Cth)
Legislation:	Federal Court of Australia Act 1976 (Cth) ss 37M, 37N, 37P, 39, 43 Judiciary Act 1903 (Cth) s 79 Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) s 9(3) Federal Court Rules 2011 (Cth) r 30.01 Crimes Act 1900 (NSW) ss 192E, 193C, 254 Defamation Act 2005 (NSW) ss 21, 22, 40 Defamation Act 2005 (Vic) ss 10A, 29, 29A, 30 Evidence Act 1995 (NSW) s 191 Justice Legislation Amendment (Supporting Victims and Other Matters) Act 2020 (Vic) s 21 Explanatory Memorandum, Justice Legislation Amendment (Supporting Victims and Other Matters) Bill 2020 (Vic) cl 21 Victoria, Parliamentary Debates, Legislative Assembly, 14 October 2020
Cases cited:	Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 560 Chartbrook Ltd v Persimmon Home Ltd [2009] 1 AC 1101 Crosby v Kelly (2012) 203 FCR 451 Federated Engine-Drivers and Firemen’s Association of Australasia v The Broken Hill Proprietary Company Limited (1911) 12 CLR 398 Hayson v The Age Company Pty Ltd (No 3) (2020) 280 FCR 139 Newman v Whittington [2022] NSWSC 249 Rader v Haines [2022] NSWCA 198 Rana v Google Inc (2017) 254 FCR 1 Rizeq v Western Australia (2017) 262 CLR 1 Selkirk v Director of Public Prosecutions [2020] NSWSC 1590 Solomons v District Court (NSW) (2002) 211 CLR 119 Tepko Pty Ltd v Water Board (2001) 206 CLR 1 TVW Enterprises Ltd v Duffy (No 3) (1985) 8 FCR 93 Wing v Fairfax Media Publications Pty Ltd (2017) 255 FCR 61
Division:	General Division
Registry:	Victoria
National Practice Area:	Other Federal Jurisdiction
Date of hearing:	20 April 2023
Number of paragraphs:	47
Counsel for the Applicant:	The applicant appeared in person
Counsel for the Fifth and Sixth Respondents:	Mr JA Castelan
Solicitor for the Fifth and Sixth Respondents:	MST Lawyers

ORDER MADE BY:	O’CALLAGHAN J
DATE OF ORDER:	9 MAY 2023