Accident or design? The Federal Court’s growth in defamation work

By Natalie Hickey, September 6, 2018

Before I came to the Bar, I once had a dilemma about which Court to commence a case in, and decided to deal with it by giving the Registrar of [unnamed court] a phone call. At the end of the call, he said to me, “We really want to win your work”.  These words have sat with me, because they remind me that courts are made up of people who, like everyone else, want to do interesting work.  People are also by nature competitive.  With that in mind, I’ve been looking at the growing trend of defamation cases appearing in the Federal Court with interest.

The story so far

When Joe Hockey sued Fairfax Media for its 2014 articles headed, “Treasurer for Sale“, the case was a landmark not only because he was a sitting member of Parliament suing for defamation.  It was also because he had chosen to bring a pure defamation case in the Federal Court of Australia, rather than a State Supreme Court.

I have previously written about the significance of the Federal Court being the forum for the Joe Hockey case here.  As I noted in that post, Federal Court Judge Steven Rares was plainly an enthusiast for increasing defamation work in the Federal Court.  He had earlier authored an article suggesting that the Federal Court had the jurisdiction to hear pure defamation cases. Such jurisdiction is not unfettered. It depends on the type of issues that may arise (e.g. political communication) or geography (e.g. Internet communications across states and territories).  These are matters covered by the Constitution, although some of them not expressly.

Justice Rares’ enthusiasm is finding fruition in a raft of high profile defamation cases now being heard by the Federal Court, with his Honour notably one of the presiding judges .

It is fashionable to sue for defamation in the Federal Court

How is this for a trend? –

• On 31 August 2018, Justice Rares (yes, the judge referred to above) struck out the justification defence of the ABC, Fairfax and journalist Nick McKenzie in relation to a Four Corners program that has allegedly defamed Dr Chau Chak Wing. For more on the case, here is a report by Michaela Whitbourn.
• The day before, on 30 August 2018, Justice Wigney struck out Mark Latham’s defence in a case brought by Osman Faruqi, a Sydney-based writer and public commentator, following a video uploaded on Mr Latham’s website called, “Mark Latham’s Outsiders: The Rise of Anti-White Racism and Terrorist Plots in Australia” which Mr Faruqi clams defamed him.  Amongst other things, he believes Mr Latham accused him in the video of knowingly assisting terrorist fanatics who want to kill innocent people in Australia.
• Justice Wigney is also the trial judge hearing Geoffrey Rush’s defamation claim against the publishers of the Daily Telegraph after it published articles concerning a complaint made to the Sydney Theatre Company alleging Mr Rush engaged in “inappropriate behaviour” during a performance or performances of the Shakespeare play “King Lear”.
• On 2 August 2018, Greens’ politician Sarah Hanson Young reportedly made good on her threat to sue fellow politician David Leyonhjelm for comments he made about her on a number of networks.

Michaela Whitburn has also separately written about the phenomenon of defamation cases appearing in the Federal Court.

What CAN WE LEARN about defamation cases in the Federal Court?

A review of reported defamation decisions in the Federal Court over the last few years indicates that:

• the presiding judges are mainly Justice White (who heard the Joe Hockey case), Justice Wigney and Justice Rares;
• plaintiffs, in addition to the above mentioned plaintiffs, include Chris Murphy (solicitor), Damien Goodfellow (senior police officer employed by the NSW Police Force), Eric Roozendaal (Treasurer in the NSW Labor Government);
• defendants are essentially large media organisations such as Fairfax, News Limited and the ABC (whilst the Latham case concerns one individual against another, the subject matter concerns a video posted on Mark Latham’s website); and
• the Federal Court is now developing its own jurisprudence in defamation law (i.e. precedents) and is increasingly referring to its own decisions in judgments rather than those of State courts.

Is the Federal Court an accidental recipient of defamation cases, or DOES IT WANT TO GROW THE AREA?

Defamation law does not have its own National Practice Area yet

There is a “watch and act” feel about the Federal Court’s approach.

The Federal Court is divided into National Practice Areas (NPAs) based on matter type. They include, amongst others, the Commercial and Corporations NPA, Employment and Industrial Relations NPA, Intellectual Property NPA, Native Title NPA and Tax NPA.

Defamation law is not a natural fit for these NPAs, nor does it have its own practice area.  Instead, it comes under an NPA with the rather unexciting title of, “Other Federal Jurisdiction”, which should really probably be called, “The Bits Left Over NPA”.   As the reader is informed on the Federal Court website: “[It] encompasses cases that do not readily fit into any of the Court’s … subject-matter NPAs”.  The Bits Left Over NPA also covers matters such as civil aviation matters and election-related disputes.

Justice White is in charge of the list, and recent matters listed are primarily defamation cases.

The case law suggests the Federal Court is keen to be an attractive forum for plaintiffs

The caselaw suggests there is a ‘pitch’ for potential plaintiffs in the three points set out below.

1 If you want to sue in the Federal Court, you can avoid a jury

Before his current litigation concerning a Four Corners program, Dr Chau Chak Wing had sued Fairfax Media for a 2015 article.  Fairfax Media wanted a jury.  In a unanimous decision plainly intended to be of general application, the Full Court of the Federal Court decided not to order one.

The judgment indicates a clear intention by the Full Court to distinguish itself from State Courts. Importantly, the Full Court was unimpressed by the submission that it was not the natural court to hear defamation cases:

“The argument starts from the premise that the natural forum for the hearing of this proceeding is the Supreme Court of New South Wales, not this Court.  This argument is misconceived and must be rejected. There is no notion of natural forum between this Court and the Supreme Court of New South Wales and reference to the doctrine of forum non conveniens and cross-vesting legislation is a distraction and apt to mislead. This Court is a national court and it has jurisdiction in this matter.”

Having been shot down in flames on the “premise”, the primary argument in favour of a jury didn’t fare much better. That is, it was suggested that a jury was best placed to work out the “meaning” of the article, because a representative group of men and women were essentially more in tune with community standards.

In response, the Full Court noted that in the field of misleading or deceptive conduct and passing off, judges often have to interpret statements from the perspective of members of the community.  The subtext of the court was, ‘we can do just as good a job as a jury’ (some might dispute this, but that’s a debate for another day).

The case is important, and curious, because sections 21 and 22 of the Uniform Defamation Acts (state-based legislation) give parties the right to elect for a jury.  This is inconsistent with section 39 of the Federal Court of Australia Act which has a presumption against a jury in a civil case (although a judge may order otherwise).  Faced with this inconsistency, the Full Court said that the Federal legislation should prevail.

2 If you sue in the Federal Court, the process will be much more streamlined

In Murphy v Nationwide News Pty Limited [2017] FCA 603, White J had to consider an interlocutory issue in the Chris Murphy case. The publishers of the Sunday Telegraph wanted to avoid putting on a defence until its challenge to the Statement of Claim was heard.  In doing so, they referred to the “practice” of State and Territory Courts in defamation cases.

You may well be thinking, “Uh oh”. If you are in the camp that thinks it is not a good idea to tell a court what to do based on what another court does, then you may be right.  Once again pointing to the attraction of the Federal Court not having a jury, White J stated, “some caution should be applied before applying, inflexibly, the common law rules and practice which have been developed in jurisdictions in which trial by judge and jury is the norm.”

In Nationwide News Pty Limited v Rush [2018] FCAFC 70, the Full Court considered an appeal by Nationwide News from an interlocutory order made by Wigney J.  In dismissing the appeal, the Court was at pains to clarify that it was keen to streamline defamation cases using precisely the same procedures adopted for other types of claims in the Federal Court.  In doing so, Justice Lee observed that interlocutory disputation in defamation occurs to an extent which is uncharacteristic of other forms of litigation, particularly commercial litigation, and that this  “predilection for interlocutory disputation in this area of the law should not be encouraged”.

3 The Federal Court is giving short-shrift to big media tactical points, thereby making it an attractive forum for plaintiffs

This point is based more on “the vibe” than express statements of principle. In short, from a review of cases, arguments by media agencies seeking to pursue form over substance do not appear to fare particularly well.

Should STATE Courts be worried?

The answer is, not yet.

The NSW Supreme Court publishes statistics of its case load. In 2017, 54 defamation cases were filed in that court, which was down from 69 filed in the year before.  However, over a five year period, these statistics do vary.  There is insufficient data to suggest a trend.

By contrast, cases in the Federal Court are presently a mere trickle.

However, there may be a growing concern about quality over quantity.  At the end of the day, one wants to hear interesting, important cases.  Whilst a mere trickle at present, there can be little debate that defamation cases in the Federal Court are being reported in the front pages of the press.

PREDICTION: The larger question of jurisdiction looms

The jurisdiction of the Federal Court to hear pure defamation cases has not yet been tested.  Such jurisdiction may be contentious.  There is no obvious statute one can point to in support of it. Jurisdiction depends on an interpretation of caselaw based on the Constitution.

Whilst Justice Rares’ arguments might be right, he noted in his article that the Federal Court’s jurisdiction might need to be tested so that it’s ambit could be resolved.  Whilst he might be right to suggest this, in practice it can be a high stakes manoeuvre to test jurisdiction.  The subtext of such an application is that one is not happy with the current process. In other words, it might not be a popular move before the presiding judge.  The art of persuasion does not typically involve getting the decision-maker offside by suggesting you want someone else to hear your case.

It is therefore not surprising that no one has challenged the Federal Court’s jurisdiction to date.

Whether there comes such a time remains a wait and see.

ADDENDUM

Due to the power of Twitter, in the minutes since posting it has been pointed out to me that there has, indeed, been a challenge to jurisdiction in relation to a “garden variety” defamation matter, which was unsuccessful. I’ve had a quick look at the Full Court Federal Court judgment of Crosby v Kelly [2012] FCAFC 96 which led to the unsuccessful special leave application to which Angus refers.  Also see Rana v Google Inc [2017] FCAFC 156.

Bromwich J has reduced the complex analysis in these cases to a short point in Triguboff v Fairfax Media Publications Pty Ltd [2018] FCA 845:

90. In order to attract the jurisdiction of this Court in defamation proceedings, it would seem that it is sufficient to plead publication in the ACT or NT, provided that the claim is not colourable (that is, asserted without substance only to attract jurisdiction): see the discussion on this topic in Rana v Google at [15]-[22]. 

A further blog post unpacking these decisions will likely follow.