Parties can make application for the serious harm element to be determined before trial under then new s.10A(5) of the Defamation Act (the Act), however, special circumstances exist under s.10A(6) which may justify postponing the serious harm determination
The case of Wilks v Qu  VCC 620 was the first such matter where an application was made to determine the serious harm element prior to trial. Judge Clayton granted the application on the basis that s.10A(5) “imposes a presumption that the [serious harm] element will be heard prior to trial and the considerations ordinarily pertinent to the trial of a separate question are not applicable.” Thus, the only relevant question was whether the threshold questions under s.10A(6) of the Act pertaining to “special circumstances” had been met to justify postponement of the serious harm determination.
Section 10A(6) of the Act makes reference to cost implication, the court’s resources and whether the determination of serious harm is linked to other issues during a trial being “special circumstances.”
Judge Clayton found that at least some consideration of serious harm was required when determining what might constitute special circumstances. For instance, if on the face of it serious harm is highly likely to be established, the cost of the preliminary hearing may constitute special circumstances, as it would be a waste of the court’s time and resources to have a preliminary hearing. He suggested there were three possible cost implications scenarios in this case, being:
- If the serious harm element is made out, then the cost saving will likely be marginal compared with the additional costs involved in having two hearings;
- If the serious harm element is not made out, the entire case will fall away, saving both parties substantial trial costs.
- If the serious harm element is made out partially, this could result in a significant reduction in the length and complexity of the trial.
Relevant factors to be considered with respect to the court’s resources included “the stage of the proceedings, the proximity of the trial date, and the availability of judicial officers.” Here, he found that the court’s resources did not amount to special circumstances, as the application had been made at the earliest opportunity before the close of pleading, and it was not close to the trial date.
With respect to the link between determining serious harm and other issues during the trial, Judge Clayton held that the issues raised in determining serious harm could be confined to the meanings of the imputations and the cause of harm, and the issues for the trial can be the matters raised in the defence(s), the extent of harm suffered and the assessment of damages. That is, here, the issues in determining serious harm were not inextricably linked to the other issues that they could not disentangled and determined as a preliminary point.
Other matters to consider was how early in the peace the application was made, that is, before a defence being filed, as well as trauma of the witnesses.
In this instance, Judge Clayton granted the application and allowed the serious harm determination to be determined as preliminary point on the papers (via submissions and affidavit evidence), with the right to cross examination being allowed on notice.
Should you have any defamation enquiries, please do not hesitate to contact Danielle Snell and Robert McGirr of Elit Lawyers on (03) 9098 8646.