Understanding serious harm in defamation law – key lessons from recent cases

In our July 2022 article “Serious harm” in defamation law – we explained the introduction of a new mandatory “serious harm” element under the Defamation Act 2005 (NSW) (Act). At the time of that article, there had only been one case in New South Wales to consider the serious harm element.

Since then, several case law developments have occurred. This article examines recent cases in New South Wales and explains the lessons they provide about serious harm in defamation law.   

As a result of the new serious harm threshold, defamation actions are harder than ever to prosecute. Indeed, the policy intention of preventing frivolous “back fence” disputes where the costs exceed damages appears to be materialising with several claims dismissed for failure to reach the high serious harm threshold.  

The recent cases show that it is necessary to assess the available evidence of serious harm to reputation before issuing a concerns notice to avoid dismissal of claims, adverse costs consequences and wasted time and expense.

New South Wales cases

Recent cases highlight some of the factors which the Court will consider when assessing serious harm in defamation claims. The evidentiary and procedural factors appearing most often in the case law developments include:

• causation

• period of accessibility of publication

• audience

• whether the audience believes the imputations to be true

• procedural issues such as pleading/particularisation errors and defective concerns notices, as well as separate determinations on serious harm.

Causation of imputations

Claimants must establish a causal link between the alleged imputations of defamatory publications and serious harm to reputation. This must be done by reference to actual, factual matters. Hurt and embarrassment alone are insufficient to establish serious harm, no matter how substantial. 

Additionally, the gravity of imputations is only one aspect of determining whether the serious harm threshold is met. As stated by the Court of Appeal in the recent case of Rader v Haines [2022] NSWCA 198, “the gravest imputation will cause no harm if it has no impact”.

Duration of accessibility of publication

In addition to its relevance to the extent of publication, the length of time that a publication is accessible to an audience will be relevant to assessing serious harm. Generally speaking, the longer a defamatory publication is accessible to be viewed, the more likely it is that serious harm to reputation will be caused.

Whilst each case will be assessed on its individual facts, the duration of time that a publication is accessible to an audience will be informative (though not always conclusive) of the extent of harm to reputation. Claimants relying on publications that were only accessible for a short period of time or that have been removed following service of a concerns notice should take pause and seek advice before commencing proceedings.

Audience of publication

The make-up of the audience of the publication will also be relevant to assessing the serious harm element of defamation actions. A publication only viewed by an aggrieved person’s close family members may not be sufficient to cause serious harm to the aggrieved person’s reputation. This is especially true in circumstances where the aggrieved person’s close family members do not actually believe the imputations conveyed by the publication.

For example, in Rader v Haines [2022] NSWCA 198, the Court of Appeal found that a publication viewed only by a claimant’s parents did not cause serious harm to the claimant’s reputation in circumstances where the claimant’s relationship with his parents was not ultimately damaged by the publication. In doing so, the Court of Appeal opined that “a grave allegation may not occasion serious harm if the audience is small or do not believe it.” 

Additionally, in Zimmerman v Perkiss [2022] NSWDC 448, the District Court considered a direct Facebook message between two parties to be “the kind of publication for which the Second Reading Speech (Legislative Assembly), 29 July 2020 indicated that the s 10A procedure was intended”. In other words, direct private communications may (depending on the circumstances) constitute the kind of communication giving rise to frivolous disputes that the legislature is aiming to prevent by the introduction of the new serious harm element and which the Courts are strictly applying.

However, in other cases it has been held that the gravity of the imputations and extent to which the audience of the publication believe the imputations may cause serious harm to reputation regardless of the size of the audience. The classes of audience members likely to be persuasive for determinations of serious harm may include a claimant’s colleagues, associates, clients and employers.

Procedural matters

In addition to the relevant factual matters discussed above, the recent case law developments in New South Wales also make it clear that procedural shortfalls will result in claims being dismissed. 

The new serious harm element brought with it a requirement to specifically particularise serious harm in concerns notices prior to commencing court proceedings. A failure to do so will result in any claims commenced after service of the defective concerns notice being unmaintainable.

In M1 v R1 & Ors [2022] NSWDC 409, Gibson DCJ of the District Court of NSW confirmed that (among other things):

• particulars of serious harm in concerns notices should be drafted “with a level of conciseness akin to a pleading”

• the powers for the Court to order revision of defective concerns notices in s 12B(1)(a)-(c) of the Act are limited and do not extend to “inadequate particulars of serious harm”

• the Court does not have the power to grant retrospective perfection or rectification of concerns notices which fail to particularlise serious harm. Rather, the claimant must issue a new concerns notice and wait the statutory twenty-eight day period prior to commencing any proceedings in defamation.

This means that any proceedings commenced in reliance on defective concerns notices should also be discontinued or dismissed, often with adverse costs consequences for the claimant.

Further, particulars of serious harm from concerns notices ought to be reproduced in statements of claim by reference to actual facts and matters proving serious harm to reputation. Inadequate pleadings and particulars in proceedings often cause unnecessary delay and expense by requiring amended pleadings and may even result in claims being dismissed.

Finally, the Act allows serious harm to be determined by the Judge (not jury) at any time prior to or during final hearing, including on the pleadings or evidence alone. The recent District Court of NSW case of Scott v Bodley [2022] NSWDC 459 informs us that:

• Structure and case management tools for separate determinations on serious harm are “extremely flexible”. Applications may be brought by either party or on the judicial officer’s own application.

• Determination of serious harm should happen as soon as possible, unless there are “special circumstances” warranting deferral, such as court resources or a significant amount of evidence tied to other issues. Additionally, cases where serious harm is highly likely to be established may be a waste of court time and resources, thus possibly constituting special circumstances.

• A ruling on serious harm may be brought as a summary dismissal application.

• Whilst there is no requirement for rulings on pleaded imputations to occur to determine whether the serious harm threshold is met, any such rulings must be on the basis of the imputations as they go to final hearing.

• A defence need not be filed prior to, or as a pre-condition to, a separate determination of serious harm, meaning that an assessment of serious harm may be made on a concerns notice and statement of claim alone.

• It is not necessary to formulate a clearly severable question to apply for a separate determination of serious harm prior to final hearings on liability and quantum.

• A short hearing on serious harm is less of a strain on judicial resources than a full hearing on all issues including liability, which often requires multiple days of court time and resources.

Given the above, we consider it likely that the majority of defamation claims will be determined in the early stages by dismissal following separate determinations on the question of serious harm. Strategically, defendants will likely seek to dismiss claims at an early stage before being required to incur significant costs for evidence on liability and hearing preparation.

Takeaway

Defamation is a specialist practice area with strict procedural requirements and a high threshold for establishing serious harm to reputation. The Court’s willingness to enforce these high standards and the risks of dismissal for claimants are evident from recent cases in New South Wales.

For claimants to have the best chance of meeting the serious harm threshold and succeeding in their claim, it is important to:

• obtain specialised legal advice on serious harm as soon as possible, prior to issuing concerns notices

• ensure concerns notices properly and sufficiently particularise the actual facts which demonstrate serious harm to reputation

• consider the prospects of a defamation claim against the legal/commercial risks, time and expense of doing so.

Even if there is doubt about the availability or strength of evidence for establishing the high threshold of serious harm to reputation, there may be other actions available. Legal advice is best sought sooner rather than later so decisions can be made on an informed basis.

Please contact Adam Cutri or David de Mestre for a confidential discussion about defamation or reputational protection.

Authors: Adam Cutri & David de Mestre