Defamation Law Revew !

We have recently had a spate of defamation cases concerning what may be described as " national figures " and for the first time many of these are being heard in the Federal court.  Before 2012 the Federal court had not made a decision in a defamation case because these had been exclusively conducted in state courts.

There is a difference which might affect the outcome.  There are inconsistencies in state laws against defamation and where a case is heard in the Federal court there is a near guarantee of a judge only trial.    In the state court system either party usually have the option of having the case heard before a judge and jury.

Plaintiffs are able to start action in the Federal court by demonstrating that publication occurred in the Australian Capital Territory or Northern Territory which is usually the case when major media outlets are involved.  When the action is against a major newspaper group the outcome will be of interest to all sections of the media and will be widely reported.

In recent times defamation cases that attract public interest have included Geoffrey Rush bringing action against the Daily Telegraph, businessman Chau Chak Wing against Fairfax Media and former Federal treasurer Joe Hockey against Fairfax.

The Attorney General is conducting a shake-up of Federal laws to prevent plaintiffs from " forum shopping " to boost their chances of winning.  The issue being targeted is the discrepancies in state defamation laws and the need to bring them into consistency for the internet era.

Victorian barrister Mathew Collins QC who acted for Fairfax in the Hockey case endorsed the recommendation to remove the incentive for forum shopping.  "  It is highly desirable that there be uniformity between the different jurisdictions that can hear and determine defamation actions ", he said.

Other key proposals for this review include a " serious harm threshold " for claims, a single publication rule to ensure a one year window for claims, improved pathways to encourage settlement  without litigation, a new defence for responsible communication  of matters in the public interest and limited payment for successful claims.

Obviously this will require cooperation between the states and the Commonwealth to achieve the required degree of uniformity.  The draft recommendations will be open for pubic consultation until  January 24.