The Intersection of Ademption and Guardianship: A Detailed Exploration

In guardianship law in Western Australia, the intersection of the principle of ademption and the provisions of guardianship and administration sometimes give rise to complex legal issues.

Ademption: An Overview

Ademption is a legal principle that, in essence, stipulates that a specific gift in a will ceases to exist, or is 'adeemed', if the asset or property is disposed of prior to the death of the testator.

This results in the intended beneficiary neither receiving the specific item nor any substitution. However, exceptions to this principle exist in instances of fraud or if the disposal lacked appropriate legal authority.

The Case "ISH [2021] WASAT 169" in Context

ISH [2021] WASAT 169 is a case wherein the principle of ademption was central to the Tribunal's deliberation.

The issue involved potential sale of a house that had been bequeathed in a will purportedly executed in 2007. The crux of the matter was the appropriate treatment of the sale proceeds: should these be merged with the general estate or held separately to uphold the intended bequest?

Interplay with Guardianship and Administration Act 1990 (WA)

The Guardianship and Administration Act 1990 (WA) (the GA Act) proved instrumental in this case.

Section 72 and certain parts of Schedule 2 of the GA Act provide the Tribunal with wide-ranging discretionary powers to maintain the nature or quality of any property within an estate.

This includes directing that the sale proceeds of an asset be placed in a separate bank account.

The Implication in "ISH [2021] WASAT 169"

In ISH [2021] WASAT 169, these provisions were invoked to safeguard the proceeds from the sale of the represented person's house from being amalgamated with the general estate.

This potential amalgamation may have impaired the applicant's claim to these proceeds, thereby potentially contravening the testator's intent.

The Tribunal's handling of the law of ademption in an earlier case, JEB [2016] WASAT 65, underscored a degree of uncertainty in the law's status in Western Australia.

However, in ISH [2021] WASAT 169, the Tribunal circumvented this uncertainty by utilising the extensive powers granted under the GA Act to issue the directions sought by the applicant.

The Best Interest Principle

The Tribunal also reiterated its obligation to act in the best interests of the represented person, which encompasses the consideration of the person's expressed or inferred wishes.

Enshrined under section 4(7) of the GA Act, this principle underscores the importance of acknowledging the autonomy and preferences of the represented person.

Key Take-Aways

• The Tribunal's handling of ademption involves the intricate balance of rigid legal principles and the discretionary powers under the GA Act.

• This approach illustrates a pragmatic response to the complexities that arise in guardianship and administration matters.

The 'Monumental' Costs of Large-Scale Litigation: Insights from the Santos-Fluor Dispute

A recent case in the Supreme Court of Queensland between Santos Limited and Fluor Australia Pty Ltd (Santos Limited v Fluor Australia Pty Ltd & Anor [2023] QSC 77) provides a clear picture of the financial scale associated with large-scale litigation.

The case centres around a dispute over alleged overpayments made by Santos to Fluor during a coal-seam gas project construction between 2011 and 2014.

Santos alleges overpayments to Fluor. Before initiating proceedings, Santos conducted a year-long investigation into these alleged overpayments​.

The court referred questions arising on pleadings to 3 referees. Hearings were heard before the referees between November 2021 and August 2022. The referees submitted a draft report on 7 March 2023 and allowed parties to make further written and oral submissions in April 2023​.

The sheer magnitude of this litigation is evident in the resources invested. Santos reported expending over 120,000 solicitor hours, $36.5 million in expert fees, $21 million in counsel fees, and $2.5 million in other costs. The scale of the litigation extended beyond financials, with the parties disclosing over 5.7 million documents, 14 experts producing 81 expert reports, and 90 lay witnesses providing 178 witness statements.

The Judge noted that the parties are “engaged in litigation on a monumental scale”, marked by numerous interlocutory disputes and appeals.

The Defendants applied to stay the conduct of the reference (to the Referees) until further order, presumably until the hearing and determination of the substantive application. In his reasons given for dismissing the application, the Judge stated that the costs associated with finalising the referee report were likely to be "relatively insignificant in the scheme of this litigation."

The Santos-Fluor dispute underscores the complexity and cost that can be associated with litigating large resource and infrastructure projects. As this case continues to unfold, it serves as a stark reminder of the potential financial implications of such large-scale disputes.

Joinder & Scandalous Affidavits in Defamation Cases: Insights from Souraki Azad -v- Jose [2023] WASC 160

In defamation, issues about the: (a) joinder of parties and (b) scandalous affidavits, commonly arise. Both arose in the recent case of Souraki Azad -v- Jose [2023] WASC 160.

Joinder

The joinder process allows for additional parties to be included in an ongoing lawsuit.

Souraki Azad -v- Jose

In Souraki Azad -v- Jose, the plaintiff and defendant were medical doctors.

The plaintiff sought to join the Australian Health Practitioner Regulation Agency (AHPRA) to his defamation case.

The plaintiff accused AHPRA of conspiring against him, thus playing a role in the defamation.

The Court, following the principles established in John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36; (2000) 203 CLR 503 [58] and the Rules of the Supreme Court 1971 (WA) Order 18 rule 3(2), scrutinized the plaintiff's application. What was required was a solid basis in the pleadings for the joinder of AHPRA.

Legal Principles

One of the key factors the court considered was whether the plaintiff had a 'colour of right' to the final relief - a principle established by Gleeson CJ in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63; (2001) 208 CLR 199 [18].

The 'colour of right' implies that the plaintiff must demonstrate a reasonable likelihood of entitlement to the relief they seek.

In this case, the court found no evidence that the plaintiff had a recognised basis in law to sustain final relief against AHPRA.

The court also scrutinized the balance of convenience, as well as the public interest, in this case.

The joinder application did not succeed.

Precision in Joinder Applications

Another noteworthy aspect of this case was the court’s attention to the precision and clarity in joinder applications. This vagueness in the application served as one of the justifications for dismissing the joinder application.

Scandalous Affidavits

When an affidavit crosses the line into scandalous territory, it can complicate proceedings and impact the fairness of the trial.

In Souraki Azad -v- Jose [2023] WASC 160, the plaintiff, Dr. Azad, filed a series of affidavits that were contested by both the defendant and AHPRA.

The affidavits contained serious, unsupported allegations of criminal wrongdoing by various persons, including representatives of the Medical Board and AHPRA, and included inappropriate images of children. Their counsel argued that these were scandalous, irrelevant, and oppressive, necessitating their removal from the court file.

Legal Framework: Order 37 Rule 7 RSC

The objections to the scandalous affidavits were grounded on Order 37 rule 7 of the Rules of the Supreme Court (RSC), which allows the court to strike out scandalous, irrelevant, or otherwise oppressive matter from an affidavit.

Court's Approach in Souraki Azad -v- Jose

In evaluating the scandalous nature of the affidavits, the court recognized the gravity of ordering the removal of affidavit material from the court file, stating it was an 'extreme step' that should be taken with great caution.

Despite the scandalous nature of the affidavits, the court decided to restrict access to these affidavits to the court and parties involved, rather than removing them entirely from the file.

This was an interim solution, with the option to revisit the removal application as the action progressed.

Reasonableness in Statutory Qualified Privilege: Insights from "Lorbek v King [2023] VSCA 111

Defamation law is an area of legal practice that seeks to protect individuals from harmful statements. In some instances, a defence known as statutory qualified privilege can be invoked to shield a defendant from liability, provided certain conditions are met.

A key element in this defence is the notion of "reasonableness."

In this blog post, I examine the concept of reasonableness in the context of statutory qualified privilege, with a focus on the case of Lorbek v King [2023] VSCA 111 to provide a deeper understanding of its practical application.

Understanding Reasonableness in Statutory Qualified Privilege

The defence of statutory qualified privilege, as set out in section 30 of the Defamation Act 2005, requires the defendant to establish that their conduct was reasonable in the circumstances.

This includes demonstrating that their conclusion followed logically, fairly, and reasonably from the information obtained and that the manner and extent of the publication did not exceed what was reasonably required in the circumstances.

The Case

In Lorbek v King [2023] VSCA 111, the plaintiffs were associated with Lorbek Luxury Cars (LLC). They lodged a case against the defendant, PK, for defamation based on four posts PK made on various platforms.

The plaintiffs lost initially.

The plaintiffs appealed the initial judgment to the Victorian Court of Appeal on several grounds, asserting that the initial judge had erred in their conclusion regarding the qualified privilege defence, the issue of malice, and the assessment of damages.

The backstory to the lawsuit involved the sale of a vehicle, which had been owned by Porsche Centre Brighton (PCB), to LLC.

At various points, the vehicle was deemed unroadworthy due to issues with its front and rear rotors.

However, the judge found that LLC was not aware of these issues at the time they sold the vehicle to PK.

The posts by PK that were the subject of the lawsuit had been made on Law Answers and Google Reviews.

The court found that PK's Law Answers post had been published to the site's moderator, and the Google Reviews had been published to LLC's marketing manager and a small number of LLC's customers and potential customers. The judge inferred that these posts were read by individuals who had an interest in reading reviews from people who were dissatisfied with their experiences with LLC. However, the court did not find evidence to support a wider publication of these posts, leading to the conclusion that only a small number of people had read the reviews.

The Appeal

The Court of Appeal provided a comprehensive analysis of reasonableness in the context of statutory qualified privilege.

The Court of Appeal ultimately found that PK's conduct in publishing the impugned statements was reasonable in the circumstances.

Key Factors in Assessing Reasonableness

Lorbek v King [2023] VSCA 111 provides several valuable insights into the factors that are considered when assessing reasonableness in the context of statutory qualified privilege.

Some of these factors include:

1. The defendant's inquiries and investigations: The Court detailed PK's extensive investigations and the information he had received by the time of publication, which supported the reasonableness of PK's conduct.

2. Reliability of information sources: It was deemed reasonable for PK to rely on the information provided to him by reliable sources, including employees of relevant businesses and organizations.

3. Genuine and reasonably held beliefs: The Court accepted that PK held a genuine and reasonably held belief that LLC knew the vehicle was unroadworthy when it was sold, supporting the reasonableness of his conduct.

4. Assessment of credibility and reliability of witnesses: The judge's evaluation of the credibility and reliability of witnesses, such as Mr. Homann, played a significant role in determining the reasonableness of PK's conduct.

Instagram Defamation: A Closer Look at Issac Martin vs Fouad Najem

In a recent judgment involving social media defamation, Martin v Najem [2023] NSWDC, the District Court of New South Wales ruled in favour of the plaintiff, Issac Martin, in a case against Fouad Najem. The court ordered Najem to pay Martin $300,000 in damages for defamatory posts made on Instagram.

The Facts

Issac Martin, an individual better known by his Instagram handle @issac_eatsalot, brought a defamation case against Fouad Najem following a series of Instagram posts. The posts, as the court found, were part of a larger campaign by Najem to "attack and discredit the reputation of the plaintiff." The key allegations involved in this case were that Najem had falsely accused Martin of being a "paedophile" in his social media posts.

Interpretation of Social Media Posts

The judgment reflected the unique nature of social media as a medium for communication. The court concluded that the ordinary reasonable reader of social media is distinct from readers of traditional media, such as newspapers or biographies. The judge reasoned that the reader of social media must be considered in the context of the platform, taking into account the way posts are made and read.

Determination of Defamation

Despite the defendant's use of profanity and aggressive language, the court found that the allegations of paedophilia and racism were so profound that even casual social media users couldn't miss them. These allegations were deemed to have reached a significant audience, not just Najem's followers, but also those who might have seen the posts due to Instagram's algorithms, thus increasing their impact.

Serious Harm and Damages

The court held that the allegations made against Martin constituted serious harm. Citing Dhir v Saddler [2017] EWHC 3155 (QB), the judge ruled that the gravity of the imputations was key in establishing serious harm, rather than the extent of their publication.

The court accepted that allegations of paedophilia are among the most serious of claims, and that the plaintiff had suffered significant emotional harm, including feelings of outrage, humiliation, and helplessness, all of which factored into the damages awarded.

Aggravated Damages

Aggravated damages were awarded due to the specific elements of this case. The court noted that Najem's posts were part of a malicious campaign against Martin's business, and also personally insulting. The court noted Najem's intention to encourage others to abuse Martin and put him out of business. His failure to acknowledge any wrongdoing further contributed to the awarding of aggravated damages.

Understanding When a Lawyer Can Be Prevented from Acting in a Case

Legal professionals are bound by a set of ethical rules that guide their conduct in various scenarios. A situation that often presents a challenge is determining the circumstances under which a lawyer can be restrained from acting in a particular case.

This blog post sheds light on this subject using references from precedent cases and legislation.

A fundamental concept to understand is the duty of confidentiality. This principle, as outlined in the case of Prince Jefri Bolkiah v KPMG [1999] 2 AC 222, stipulates that a lawyer is obliged to protect any confidential information provided by a client.

A lack of recollection about an earlier matter does not exempt a lawyer from this duty. It has been suggested, as in Yunghanns v Elfic Ltd (Unreported, VSC, 3 July 1998), that this confidential information could even extend to the general knowledge a lawyer gains about a client during their professional relationship, although this is rare.

The courts also possess inherent jurisdiction to prevent a solicitor from acting in a case if doing so could undermine the administration of justice. This principle, illustrated in cases like D & J Constructions and Mallesons, is rooted in the concern that public confidence in the justice system could be damaged if a lawyer is perceived to switch sides easily.

Another factor is the fiduciary duty of loyalty a lawyer owes to a former client, even after the end of their professional relationship. However, there is conflicting legal opinion on whether this duty persists after the termination of the retainer. The primary concern here is to avoid any real risk of a breach of confidence or any action that could jeopardize the judicial process.

The 1882 case Mills v Day Dawn Block Gold Mining Co Ltd dealt with the issue of proving the existence of confidence. The court decided that if a dispute arises between a solicitor and a former client over whether confidential information was shared, it's inappropriate to demand to know what the confidence was, as it could expose the client to the very harm they're trying to avoid.

In summary, a court may prevent a lawyer from acting in a case if there's a risk of breaching confidentiality, undermining the administration of justice, or violating a potential continuing duty of loyalty. The nature of the relationship between the lawyer and the client, the type and scope of the confidential information, and the potential for misuse of such information are all factors that the court will consider.

Imputations of Suspicion and the Role of Denials in Defamation Law

Imputations of suspicion commonly arise in defamation law.

In "Duma v Fairfax Media Publications Pty Limited (No 3) [2023] FCA 47", the articles published by Fairfax claimed that Duma and his lawyer Simon Ketan conspired to create a shell vehicle for bribe payments. They also suggested that Duma conspired with Ketan to defraud tribal landowners and had acted corruptly in trying to move a naval base.

The court found that a news article conveyed defamatory imputations about the claimant, despite the respondents arguing to the contrary.

The respondents' contention was that the imputations were not conveyed, and the references to the claimant’s denials of wrongdoing played a significant role in their argument.

However, the Court disagreed, citing Lord Devlin's remarks in "Lewis v Daily Telegraph Ltd [1964] AC 234 at 277" which suggested that ordinary reasonable readers draw implications from text, particularly when they are derogatory. This shows that an ordinary reasonable reader is more likely to interpret an implication of guilt or wrongdoing, especially when the text suggests a suspicious or scandalous context.

One leading authority that the Court referred to was the High Court's decision in "Favell v Queensland Newspapers Pty Ltd [2005] HCA 52". Here, the High Court held that the mere statement of an investigation or charge may not impute guilt. However, when this is accompanied by an account of suspicious circumstances that point towards a likelihood of guilt, the position may be different. The Court in Duma referenced this decision to highlight that adding derogatory implications to a piece of information could indeed sway it from being a bare report to one that suggests wrongdoing.

Another case that sheds light on this issue is "Mirror Newspapers Limited v Harrison [1982] HCA 50". This case established that the mere report of an arrest or charge does not convey an imputation of guilt due to the presumption of innocence. However, as the Court in Duma pointed out, citing McColl JA's opinion in "John Fairfax Publications Pty Limited v Obeid [2005] NSWCA 60", this presumption may be limited in situations where defamatory statements are made in circumstances unrelated to or remote from the operation of the criminal justice system.

Importantly, the Court in Duma emphasized that even if an article does not assert directly that a person acted corruptly or received a bribe, it does not mean that such an imputation wasn't conveyed. This was supported by "Jones v Skelton [1963] 1 WLR 1362 at 1370; SR (NSW) 644 at 650 (PC)", where Lord Morris stated that the ordinary and natural meaning of words could include any implication or inference drawn by a reasonable reader.

The Court also noted that denials of wrongdoing don't necessarily shield a publisher from conveying defamatory imputations, even if included in the publication. This was established by "Rivkin v Amalgamated Television Services Pty Ltd [2001] HCA 67" where it was held that readers don't have to give equal weight to every part of a publication, and the publisher's emphasis on certain aspects can significantly influence the reader's perception.

Consolidation of Cases: A Closer Look

Multiple cases with overlapping subjects and shared parties are not rare in the legal field.

The court system addresses such instances through the consolidation of cases.

Consolidation involves combining two or more separate legal actions into one proceeding.

This process is nuanced, and not all cases are suitable for consolidation.

To understand this topic better, let's review the case of Newbey v Smoothy [2023] WADC 45, where the plaintiff sought to consolidate two actions.

In Newbey v Smoothy, the plaintiff, Mrs Helen Newbey, attempted to consolidate action CIV 4983 of 2022 with CIV 1954 of 2020, under Rule O 83 r 1 of the Rules of the Supreme Court 1971 (WA). She also requested that CIV 1954 of 2020 be designated as the lead action. The defendants opposed this application.

In this case, the court decided against the consolidation of actions but allowed for the two actions to be heard together. The court emphasized the difference between consolidation and joint determination of actions, a case management technique referenced by Justice Lundberg in Walthamstow Pty Ltd v Caratti.

The decision to consolidate cases or hear them together depends on the circumstances of each case. It’s influenced by several key considerations, as described in cases such as Lois Nominees Pty Ltd v QBE Insurance (Australia) Ltd and A Goninan & Co Ltd v Atlas Steels (Aust) Pty Ltd.

The primary factor is whether consolidation would promote convenience, avoid multiple actions, and save time and expense.

Other considerations include the presence of common questions of law or fact, potential prejudice or unfairness to any of the parties, and if consolidation would facilitate a just resolution of the issues. Practical matters that may make consolidation inexpedient are also considered.

The court also highlighted the importance of promoting a just determination of litigation, efficiently disposing of the court's business, and making effective use of judicial and administrative resources, as outlined in Order 1 r 4B RSC, referencing Sino Iron Pty Ltd v Mineralogy Pty Ltd.

In Newbey, the court found common parties and similar transactions in both actions. There were likely overlapping issues of fact and law across both actions, based on the summary of the pleaded cases. However, the court concluded that consolidation could potentially be unfair to the defendants. Therefore, it decided to hear the cases together but not formally consolidate them.

Here are some of the key factors that courts often consider when deciding whether to consolidate cases, citing specific cases and paragraph numbers:

1. Promotion of Convenience and Efficiency: The court assesses whether consolidation would promote convenience, save time, and avoid multiple actions. This principle is derived from the cases Lois Nominees Pty Ltd v QBE Insurance (Australia) Ltd [1995] 2 VR 513, 518 (Ormiston J) and A Goninan & Co Ltd v Atlas Steels (Aust) Pty Ltd [2002] NSWSC 585, [12] (Palmer J).

2. Common Questions of Law or Fact: The presence of common questions of law or fact in the actions under consideration is a strong argument for consolidation. This was discussed in A Goninan & Co Ltd v Atlas Steels (Aust) Pty Ltd [2002] NSWSC 585, [12] (Palmer J).

3. Potential Prejudice or Unfairness: The court weighs whether consolidation would create potential prejudice or unfairness to any of the parties involved. This factor is referenced in A Goninan & Co Ltd v Atlas Steels (Aust) Pty Ltd [2002] NSWSC 585, [12] (Palmer J).

4. Just Resolution of Issues: The court considers whether consolidation would facilitate a just resolution of the issues at hand. This is referenced in Walthamstow Pty Ltd v Caratti [2018] WASC 321, [10] (Lundberg J).

5. Practical Impediments to Consolidation: The court assesses any practical matters that may make consolidation inexpedient. This is derived from the case A Goninan & Co Ltd v Atlas Steels (Aust) Pty Ltd [2002] NSWSC 585, [12] (Palmer J).

6. Effective Use of Judicial and Administrative Resources: The court also evaluates whether consolidation would enable more efficient use of judicial and administrative resources, as outlined in Order 1 r 4B RSC, referencing Sino Iron Pty Ltd v Mineralogy Pty Ltd [2018] WASC 51, [8] (Mitchell J).

7. Fair and Efficient Administration of Justice: The overarching goal is to promote a just determination of litigation and efficiently dispose of the court's business, as highlighted in Sino Iron Pty Ltd v Mineralogy Pty Ltd [2018] WASC 51, [8] (Mitchell J).

These factors are not exhaustive, and the court's decision ultimately depends on the specific circumstances of each case.

Sexual abuse victim successfully defends defamation case: Useful English case

A significant defamation case has recently been decided in England, Hay v Cresswell [2023] EWHC 882 (KB), which was handed down on 26 April 2023.

The case is likely to be persuasive in Australian courts, in many respects, including findings in relation to the credibility of the Defendant.

The case involved a sexual abuse victim, Nina Cresswell, who successfully defended a libel claim brought by the perpetrator, William Hay.

This case is noteworthy as it is the first reported case where a sexual abuse survivor naming their perpetrator has successfully relied on the public interest defence under section 4 of the Defamation Act 2013 (England and Wales).

Ms. Cresswell had met Mr. Hay in 2010, after which he sexually assaulted her.

The assault was reported to the police, but they did not treat her complaint as a crime, and so Mr. Hay was never arrested or charged.

A decade later, Ms. Cresswell decided to name him publicly in a blog, an email, and in social media posts, after which Mr. Hay sued her for libel.

The court held that the single meaning of the five publications by Ms. Cresswell was that Mr. Hay had violently sexually assaulted her. While there was limited evidence before the court, it found Ms. Cresswell's evidence more persuasive than Mr. Hay's, thus establishing the substantial truth of the allegations.

The court also noted that the public interest defence was applicable in this case.

The judge considered Ms. Cresswell's publications to be on a matter of public interest, and her belief that her publications were in the public interest was found to be reasonable given the circumstances​​.

However, this ruling does not provide a carte blanche for survivors to name perpetrators.

The primary question considered by the judge was one of truth versus falsity, and Ms. Cresswell still needed to be able to prove the truth of the allegation to the civil standard (balance of probabilities). If her allegation had been found to be deliberately false, her public interest defence would have failed​.

At [20] the Judge stated:

For the avoidance of doubt, I indicate that if I had concluded that the defendant's allegation was a deliberately false one (contrary to my primary finding above), I would not have found that she believed that publishing the statements in question was in the public interest or that such a belief, if it existed, was reasonably held.

The Judge, in this case, expressed some concerns about certain aspects of the Defendant's evidence:

1. The Judge did not accept the Defendant's claim that she had identified Mr. Hay to the Northumbria Police officers as her assailant on the morning of May 28, 2010, or that she had mentioned specific physical characteristics like tattoos or a septum ring. The Judge felt that even though the police investigation was superficial and inadequate, it was unlikely that the officers would have overlooked such details if they had been provided.

2. The Judge also questioned the Defendant's account that the police officers told her they had seen CCTV footage of her leaving the nightclub alone and wearing a leather jacket. The Defendant suggested that this was a further indication of the police investigation's deficiency, as she had left her jacket in the nightclub. However, the Judge found no reference to the police attending the nightclub in the incident log and doubted that the officers would have had the time to do so, isolate the relevant footage, and identify her in it. The Judge concluded that this aspect of the Defendant's account seemed aimed at bolstering her criticism of the police's response.

Despite these concerns, the Judge ultimately did not doubt the honesty of the Defendant's account in its essential aspects, which was supported by other evidence. The Judge recognized that an otherwise honest witness might be tempted to embellish their case, particularly in areas where they feel vulnerable. The Judge concluded that this is what had happened in this case.

The judgment shows that civil courts will not shy away from findings of truth even in the absence of a criminal investigation, caution, or conviction.

When to determine the "Serious Harm Element" in Defamation Cases: A potential issue in the Federal Court of Australia

An increasing number of defamation cases are being prosecuted in the Federal Court of Australia.

In this blog post, I look at a recent decision (9 May 2023) in which the Federal Court considered when, during the course of a case, the serious harm element should be considered and determined. The case of Selkirk v Hocking [2023] FCA 432 gives us an interesting perspective on the matter.

What is the Serious Harm Element?

In Victoria, the serious harm element arose from amendments made to the Defamation Act 2005 (Vic) (Defamation Act) in 2020. It introduced the “serious harm element” as a necessary factor in a defamation cause of action. (note: this factor is yet to apply in Western Australia).

Timing of Serious Harm Element

The fifth and sixth respondents in this case applied for the serious harm element to be determined before the trial commenced, as provided under s 10A(4) of the Defamation Act.

The Defamation Act's sub-sections 10A(1), (5) and (6) provide that a judicial officer should determine the serious harm element as soon as practicable before the trial unless there are special circumstances justifying postponement.

The factors that a judicial officer may consider when deciding on the presence of special circumstances include the:

• cost implications for the parties,

• resources available to the court, and

• extent to which establishing the serious harm element is linked to other issues determined during the trial.

Does this section apply to the Federal Court?

In Selkirk v Hocking, the court considered a complex jurisdictional issue.

This was whether ss 10A(5) and (6) of the Defamation Act are picked up by s 79(1) of the Judiciary Act 1903 (Cth).

This question arises because:

• once federal jurisdiction is engaged, as per Rana v Google Inc (2017) 254 FCR 1 at 7, the entire matter falls within the federal jurisdiction, and there's no concurrent federal and State jurisdiction being exercised;

• the court also needed to determine how the Defamation Act, as a state statutory law, applies in the exercise of federal jurisdiction (see Solomons v District Court (NSW) (2002) 211 CLR 119 at 134 [21]);

• section 79(1) of the Judiciary Act states that each State or Territory's laws, including those relating to procedure, evidence, and the competency of witnesses, should be binding on all Courts exercising federal jurisdiction, unless otherwise provided by the Constitution or Commonwealth laws.

A potential roadblock in the application of ss 10A(5) and (6) of the Defamation Act emerged concerning the Federal Court Act's ss 37M, 37N, and 37P, which define overarching purpose of civil practice and procedure provisions, require parties to act consistently with the overarching purpose, and grant the Court power to give directions about practice and procedure in a civil proceeding, respectively.

That is:

• is there an inconsistency between the Defamation Act and the Federal Court Act in relation to the timing of when the serious harm element is determined?

• it might be inconsistent with the “overarching purpose of civil practice” provisions of the Federal Court Act to, in effect, abide by what the Defamation Act says in relation to the timing of when the serious harm element gets dealt with during the course of a case.

The Judge stated at [41]:

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. Common experience demonstrates that savings in time and expense are often illusory, particularly when the parties have, as here, had the necessity of making full preparation and the factual matters relevant to one issue are relevant to others, and they all overlap.

The second and related comment is this. A party whose whole case is knocked out on a trial of a preliminary or single issue, may suspect, however unjustifiably, that an abbreviated course was adopted and a decision reached in the court’s, rather than the parties’, interests.

Thirdly, there is an additional potential for further appeals to which the course of the trial on separate issues may give rise. Indeed, that could occur here were this appeal to be allowed and a retrial had in which the remaining issues of causation and damages were decided. Single-issue trials should, in our opinion, only be embarked upon when their utility, economy, and fairness to the parties are beyond question.

How the Judge decided to deal with the application

The court decided to treat the application as brought under s 37P of the Federal Court Act and r 30.01 of the Federal Court Rules, and to order that the following questions be heard separately:

1. Whether the article conveyed one or more of the defamatory imputations alleged;

2. The extent of publication of the article; and

3. Whether, in light of the answers to (1) and (2), publication of defamatory matter about the applicant caused, or is likely to cause, serious harm to her reputation.

This approach, as noted by Sweeney J in TVW Enterprises Ltd v Duffy (No 3) (1985) 8 FCR 93 at 95, may determine the outcome of the proceeding and save the parties the expense of a trial on all issues. The advantages of ordering such questions separately are, as Sweeney J notes, "plain".

In the circumstances of Selkirk v Hocking, where the article was allegedly published to no more than three persons, and where the applicant has arguably agreed to having engaged in the same conduct that the article subjects her to, hearing these questions separately could be particularly beneficial.

Do sub-sections 10A(1), (5) and (6) of the Defamation Act apply in the Federal Court?

The Court in Selkirk v Hocking did not conclusively determine whether the application of ss 10A(5) and (6) of the Defamation Act gives rise to any potential statutory inconsistency standing in the way of the operation of s 79 of the Judiciary Act.

This issue was deemed sufficiently unclear that the Court decided not to resolve it at the time, opting instead for a case management hearing to be convened for further directions or orders.