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.

"Plan Continuation Bias": A template letter to provide clients

Plan Continuation Bias is a cognitive bias, a psychological phenomenon that impacts our decision-making process.

It is the inherent tendency to continue with an initial plan or strategy, even in the face of new information or changing circumstances that suggest the plan may no longer be the best course of action.

This bias has been observed in numerous fields, from aviation and healthcare to finance and law, and it can significantly impact the outcomes of our decisions.

In its essence, Plan Continuation Bias is about being overly committed to an initial plan, to the extent that it can lead to ignoring important new information or overlooking better options.

It is fueled by a human preference for consistency and a resistance to change, especially when we have invested time, energy, and resources into a particular plan or strategy.

The origins of Plan Continuation Bias lie in our brain's natural desire for cognitive ease. Our brains favour routines and predictability as they help us navigate the world efficiently.

However, this efficiency can become a liability when the circumstances change, and our brains, favouring the initial plan, may fail to adapt quickly enough.

There are a number of reasons why people might fall victim to plan continuation bias, including:

1. It can be difficult to admit that we were wrong or that our original plan was not the best one.

2. We may have already invested a lot of time, effort, or money into the plan, and we don't want to give up on it now.

3. We may simply be afraid of change or the unknown.

In the context of legal proceedings, Plan Continuation Bias can become particularly problematic.

Lawyers and their clients might become overly committed to an initial legal strategy, finding it difficult to pivot or adapt when new evidence is introduced or when the landscape of the case changes. This can lead to missed opportunities for negotiation, settlement, or other advantageous pathways.

Understanding and recognizing Plan Continuation Bias can help us make better decisions, particularly in complex and dynamic situations such as legal cases. It encourages us to remain flexible, to regularly reassess our strategies, and to remain open to new information and perspectives.

The following template letter, designed for use at the beginning of a legal retainer, outlines the concept of Plan Continuation Bias and suggests ways in which lawyers and clients can work together to mitigate its potential impact on their case.

By being aware of this bias, we can strive to make the most effective decisions, always keeping the client's best interests at the forefront.

Template letter

Dear [Client's Name],

I am writing to you at the onset of your retainer of my law practice, to discuss a common cognitive phenomenon which impacts the decision-making process during the course of legal cases: Plan Continuation Bias.

Plan Continuation Bias is a cognitive bias that has been recognised across multiple disciplines, including psychology and behavioural economics.

It is the tendency for individuals or groups to continue with a set plan or course of action, even when new information or changed circumstances suggest that the original plan is no longer optimal or even viable.

This bias can emerge in any decision-making context, including in legal proceedings.

In the legal arena, Plan Continuation Bias may manifest in various ways. For example, we may become attached to our initial legal strategy and find it challenging to adapt when new evidence arises or circumstances change. In the context of settlement negotiations, we may become entrenched in our initial expectations about what a fair settlement would look like and could overlook potentially beneficial opportunities for compromise.

As we embark on this journey together, it is crucial that we are aware of and actively work to counteract Plan Continuation Bias. Here are a few steps we can take:

1. Embrace Flexibility: Let's remain open to reconsidering our strategy as the case progresses. While it is important to have a plan, we should not become so attached to it that we overlook better options or fail to adapt to changing circumstances.

2. Regular Reassessment: Throughout the case, let's make it a point to reassess our strategic decisions at regular intervals. This will ensure that we are not blindly following a preset plan and are incorporating new information as it becomes available.

3. Open Communication: Always feel free to share your thoughts, concerns, and new information you may come across. Open and honest communication can help us avoid becoming too anchored to our initial expectations.

4. Objective Analysis: We will make every effort to objectively analyze the strengths and weaknesses of our case, as well as the risks and benefits associated with various strategies. This includes regularly reassessing our position in any settlement negotiations.

5. Engage in "Devil's Advocacy": Occasionally, we will need to play the "devil's advocate" to challenge our assumptions and explore different perspectives. This can help us avoid falling into the trap of Plan Continuation Bias.

Our shared goal is to ensure the best possible outcome for your case. I believe that by being aware of, and actively working to mitigate, Plan Continuation Bias, we can make more effective decisions that align with this goal. I look forward to our collaboration in this endeavour.

If you have any questions or require further clarification on this or any other aspect of your case, please do not hesitate to let me know.

Best regards,

[Lawyer]

Navigating Uncertainty: The Role of Computational Irreducibility in Legal Practice

• This article explores the concept of "computational irreducibility" and its impact on legal practice.

• It draws parallels between legal cases and complex systems like chess, where outcomes are difficult to predict.

• It emphasises the importance of flexibility and preparedness in legal strategies due to inherent unpredictability.

"Computational irreducibility" is a concept from the field of cellular automata and more broadly from the study of complex systems, first introduced by scientist Stephen Wolfram in his book "A New Kind of Science."

In essence:

• Computational irreducibility suggests that for some processes, the only way to know the outcome is to perform the computation itself – there are no "shortcuts" or simpler ways to predict the result.

• This is in contrast to "computational reducibility," where one can predict outcomes without having to simulate or perform the entire process.

• In certain systems, despite knowing all the rules and initial conditions, the only way to predict the final outcome is to actually carry out the entire process. There's no shortcut, no formula that can give you the answer without going through each step.

For example, in a game of chess, despite the game's rules being quite simple, the number of potential games is SO LARGE, that there's no feasible way to predict the outcome of a game without actually playing it out – each game of chess is computationally irreducible.

The number of possible chess games is so large that it is difficult to comprehend. It has been estimated that there are more possible chess games than there are atoms in the universe. This is because there are so many different ways that the pieces can be moved and so many different possible outcomes.

There are 16 possible moves for the first move in chess. After the first move, there are 32 possible moves for the second move, and so on. This means that there are 16 * 32 * 32 * ... * 32 = 10^43 possible chess games after 64 moves!

I’ve been thinking about this concept "computational irreducibility" for years, and I began thinking about it again after seeing this YouTube video of a conversation between Lex Fridman and Stephen Wolfram:

Life in an illusion: The fabric of reality is constantly being rewritten | Stephen Wolfram

The whole clip is fascinating and worth watching (many times).

At 3:28 mins, Stephen Wolfram says:

… where everything in the world is full of computational irreducibility we never know what's going to happen next the only way we can figure out what's going to happen next is just let the system run and see what happens …

The concept of computational irreducibility has significant implications in fields like physics, computer science, and philosophy. For instance, if the universe is computationally irreducible, as Wolfram suggests, then it means that even with a complete understanding of physical laws, there may be no way to predict certain phenomena without simulating the entire history of the universe up to that point.

The concepts also applies in other, less scientific-based fields.

For me, the idea rings true in the legal profession.

When a client approaches us at the outset of a legal dispute, they often seek reassurance and clarity about how the case might unfold.

While we can provide them with our insights based on our experience and understanding of the law, the reality is that each legal case is a complex system, much like a game of chess.

We're dealing with a myriad of variables - evolving evidence, human emotions, changing laws, judicial discretion, and so much more.

This mindset becomes increasingly relevant as the world becomes more complex.

It's tempting to think that with enough expertise, we can predict the outcome of a case before it reaches trial. However, the concept of computational irreducibility reminds us that the only surefire way to see the result is to go through the process itself - every negotiation, every application, every piece of discovery, every testimony.

This doesn't mean we can't provide valuable advice or make educated predictions.

What it does highlight is the importance of preparing for a range of potential outcomes and staying agile in our strategies.

In the world of law, as in complex computational systems, “sometimes the journey is the only way to the destination” (Ralph Waldo Emerson).

Pre-Action Discovery in Defamation Cases: An Overview

When confronted with a potential defamation action, a critical stage that can significantly shape the trajectory of the case is pre-action discovery.

This process can involve obtaining relevant documents from the potential defendant, before formal proceedings are initiated.

It helps the plaintiff ascertain if there is a viable cause of action to pursue.

However, navigating the legal intricacies surrounding pre-action discovery in defamation cases can be challenging.

The Purpose of Pre-Action Discovery

The primary purpose of pre-action discovery is to assist a potential plaintiff who believes they may have a cause of action, but lacks specific details or evidence to substantiate their claim.

It can be particularly useful in defamation cases, where certain details may only be accessible to the potential defendant.

The Legal Framework

The Rules of the Supreme Court 1971 (WA) (RSC), specifically Order 26A rule 4, governs pre-action discovery in Western Australia for documents in the “custody, power or possession” of a potential defendant.

This rule provides that pre-action discovery can be ordered if the court is satisfied that the applicant may have a right to obtain relief from the court against a person, but can't ascertain certain details to initiate a proceeding.

Threshold for Pre-Action Discovery

The threshold for pre-action discovery is set high to prevent abuse of process.

As established in the case of Kelbush Pty Ltd v Australia and New Zealand Banking Group Ltd [2016] WASCA 14, the applicant must show they may have a right to relief, not merely a suspicion or speculative claim.

The test is an objective one and requires more than a mere assertion, conjecture, or suspicion.

Case Law Guidance

Several key cases provide further guidance.

In Waller v Waller [2009] WASCA 61, it was held that there must be some tangible backing or objective foundation that takes the existence of the cause of action beyond a mere allegation, suspicion or assertion. The applicant 'must demonstrate more than mere assertion, conjecture or suspicion, but does not have to positively establish the existence of a cause of action. What the applicant must produce is evidence showing that he, she or it may have a cause of action'.

In McCarthy v Dolpag Pty Ltd [2000] WASCA 106, it was emphasised that being wrongly subjected to an order for pre-action discovery can be a serious invasion of privacy.

In Kelbush Pty Ltd v Australia and New Zealand Banking Group Ltd [2016] WASCA 14 it was held there must be evidence objectively indicating - beyond the mere assertion, conjecture or suspicion of the applicant - that all facts necessary to give rise to a right to curial relief may be able to be established.

Balancing Act

Courts have to perform a delicate balancing act in pre-action discovery applications.

They must weigh the potential invasion of privacy and the oppressive nature of the order against the applicant's need for information to substantiate their claim.

As such, courts exercise caution and restraint in ordering pre-action discovery.

A Closer Look: BWS v ARV (No 2) [2021] WASCA 62

In BWS v ARV (No 2) [2021] WASCA 62, the plaintiff provided several pieces of evidence to substantiate their claim that they might have a substantive case against the defendant. These included details about their relationship with the potential defendant, the nature of alleged defamatory statements, and the reasoning behind their belief that the potential defendant was the source of these statements.

The parties were formerly married and had been involved in acrimonious proceedings in the Family Court of Western Australia (paragraph 5). The plaintiff was also engaged in separate proceedings before the Islamic Religious Council of Singapore (IRCS) involving a trust dispute (paragraph 5).

The plaintiff provided evidence of specific statements made in the IRCS proceedings that they considered to be defamatory and damaging to their personal life and affairs (paragraph 7). These included allegations about the plaintiff's religious practice, responsibilities as a parent, professional conduct, and personal and financial management.

The plaintiff believed that these defamatory statements were based on comments made by the potential defendant to one or more of the other parties in the IRCS proceedings (paragraph 8). The plaintiff's affidavit detailed the reasons for this belief, including their previous marital relationship with the potential defendant and the lack of other potential sources for the information contained in the defamatory statements (paragraph 9).

The court noted that while the plaintiff was able to present a logically consistent argument supporting their belief that the potential defendant had provided the defamatory information to the other parties (paragraph 44), the evidence did not go beyond this belief to directly establish the nature and content of the alleged communications between the potential defendant and these parties (paragraph 51).

This left the court to consider whether the plaintiff's belief that the potential defendant may have published defamatory statements about them was sufficient to satisfy the jurisdictional requirement under Order 26A rule 4(1) of the Rules of the Supreme Court 1971 (WA) that the plaintiff may have a cause of action against the potential defendant (paragraph 52).

The court concluded that the plaintiff’s belief, while logically consistent, did not meet the threshold for pre-action discovery as set out in the Rules of the Supreme Court and interpreted in case law. The plaintiff was not able to provide the necessary evidence of the nature and content of the alleged communications between the defendant and the other parties in the IRCS proceedings. Therefore, the court determined that the plaintiff’s belief alone was not enough to establish that they may have a cause of action against the appellant for defamation.

Key Take-Aways

• Pre-action discovery can be a potent tool for potential plaintiffs in defamation cases. However, the need to protect individuals from unnecessary invasion of privacy means the threshold for obtaining such orders is high.

• Familiarity with the rules and case law governing pre-action discovery can ensure a more strategic approach to potential defamation actions.

Cases mentioned in this blog post:

• BWS v ARV (No 2) [2021] WASCA 62

• Kelbush Pty Ltd v Australia and New Zealand Banking Group Ltd [2016] WASCA 14

• Waller v Waller [2009] WASCA 61

• McCarthy v Dolpag Pty Ltd [2000] WASCA 106