In February 2022, the Supreme Court of New South Wales became the first Australian superior Court to consider the Australian ‘serious harm’ element to the cause of action for defamation, which was introduced by the Model Defamation Amendment Provisions in July 2021. The Court held that section 10A of the Defamation Act 2005 (NSW) removes the common law presumption of damage and makes serious harm a necessary element of the cause of action. Thus, in every case to which the section applies, a plaintiff must prove serious harm as a fact.

Introduction

The ‘serious harm’ element to the cause of action for defamation came into effect on 1 July 2021 in New South Wales, Victoria, South Australia, Queensland and the Australian Capital Territory as part of the Model Defamation Amendment Provisions 2020 (MDAPs) (for more information on the MDAPs, click here). It came into effect in Tasmania on 12 November 2021. It has not so far been adopted in Western Australia or the Northern Territory. It requires a plaintiff to prove that the allegedly defamatory publication has caused, or is likely to cause, serious harm to a person’s reputation.

In November 2021, the District Court of New South Wales’ decision of Rader v Haines[1] considered the application of a ‘serious harm’ element, although in that case the United Kingdom’s Defamation Act 2013 (UK Defamation Act) applied to the publication in question. Judge Gibson applied Lachaux v Independent Print[2]  (Lachaux), a UK Supreme Court decision by Sumption LJ (with whom Kerr, Wilson, Hodge and Briggs LJJ agreed), which determined that for ‘serious harm’ to be made out under section 1 of the UK’s Defamation Act, a plaintiff must establish, as a fact, that the publication in question ‘caused or is likely to cause’ harm to their reputation that is ‘serious’.

Our article on Rader v Haines suggested that the Lachaux principles would likely inform how Australian courts approached the ‘serious harm’ element introduced by the MDAPs. That is what occurred in the recent decision of the Supreme Court of New South Wales in Newman v Whittington.[3]   In Newman v Whittington, Sackar J held:

• section 10A of the Defamation Act 2005 (NSW) (Act) requires that a plaintiff must prove serious harm as a necessary element of the cause of action of defamation;
• section 10A, like its UK counterpart, has the effect of abolishing the common law rule that upon publication of a defamation, damage is to be presumed; and
• therefore, the plaintiff is obliged to prove serious harm as a fact in every case.

Background

The plaintiff in Newman v Whittington was a family law legal practitioner, and a citizen and resident of Australia. The defendant was the founder of a charity called ‘Project Rescue Children’ and a citizen of Australia, albeit residing overseas. Each sued the other for defamation:

• The plaintiff contended that the defendant defamed her in a series of blogs and other social media posts between December 2019 and October 2021. The plaintiff pleaded imputations, amongst others, that the defendant is a fraud and ‘has for years attacked any women protecting their kids from paedophiles’.
• The defendant, in turn, alleged that the plaintiff defamed him in a book she authored titled ‘The Child Snatchers’ and specifically, in a chapter called ‘The Lebanon Debacle’.

This particular judgment concerned a notice of motion filed by the defendant, whereby he raised objections to a number of paragraphs within the plaintiff’s proposed third amended statement of claim (Proposed Pleading). The Proposed Pleading identified 27 matters complained of between 29 December 2019 and 21 October 2021. Each was disseminated via the internet. The Court divided the defendant’s objections into 4 categories. The first 3 categories are summarised below:

• First category – matters with insufficient particularisation regarding the downloading of that material from the internet. The Court did not grant leave to proceed with these matters, on the basis the plaintiff was either unable to indicate who (if anyone) downloaded the publications or provide any specificity as to which jurisdictions they were downloaded in.
• Second category – matters with insufficient particularisation of the downloading of that material from the internet, but with some particularisation of an audience. An example was material posted on a Facebook page called ‘Child Abduction Recovery’. The Court did not grant leave to proceed with these matters, given the plaintiff was again unable to identify anyone in the viewing audience who may have accessed or downloaded these matters.
• Third category – matters alleged to have had a total audience in the thousands, but where the plaintiff was unable to say where many of those persons were, save for a limited number of persons whose particular jurisdiction was identified after they ‘liked’ particular matters. The Court granted leave to proceed with all the matters in this category which contained sufficient particulars of the jurisdiction where it was downloaded.

Serious harm

Alleged Harm

The fourth and final category of the defendant’s objections concerned the ‘serious harm’ element introduced into the Act by the new section 10A on and from 1 July 2021. The plaintiff asserted that the ‘serious harm’ element was established because:

• she considered it necessary to relocate her place of residence into a secure building, and did in fact do so due to an ongoing personal security threat;
• the inherent seriousness of the defamatory imputations and publication by the various imputations via Facebook meant that serious harm was to be inferred; and
• of her general reputation and reputation as a family law mediator within Australia.

Serious Harm Considerations

Justice Sackar observed that the “obvious genesis” of section 10A is to be found in section 1 of the UK Defamation Act and that “both sections are in different terms, albeit only slightly”: see [40] and [42]-[43]. Although neither country’s legislation defines the term ‘serious harm’, his Honour considered that the definitional task is “considerably assisted” by the “powerful and persuasive analysis of the analogous [UK] provision” in Lachaux.

The plaintiff in Lachaux was a French aerospace engineer who sued a number of newspapers for defamation. The engineer contended that the published allegations, which concerned the engineer’s behaviour towards his partner during the course of family law proceedings, were false and had defamed him. Justice Sackar recounted both parties’ submissions on ‘serious harm’ in those proceedings:

• The engineer contended that the common law presumption of general damage to a claimant’s reputation remained good law, and that the cause of action is made out if the matter complained of is inherently injurious and/or has a tendency to injure a claimant’s reputation.
• The publishers, on the other hand, submitted that section 1 of the UK Defamation Act introduced an additional condition to be satisfied before a statement could be regarded as defamatory, on top of the words being inherently injurious, being that a publication must be shown to produce serious harm in fact.

Justice Sackar noted that the Court in Lachaux ultimately accepted the publishers’ submissions in relation to serious harm. His Honour highlighted that the Court in Lachaux determined that the UK ‘serious harm’ provision introduced a “new threshold”, the onus of which fell onto a claimant to establish, as a fact, that the harm occasioned by a defamatory publication was serious. This also meant a publication, which previously would have been found to be defamatory due to its inherent tendency, would no longer be regarded as being defamatory unless it caused harm which, as a fact, was ‘serious’. The ‘serious harm’ provision accordingly meant that damage was no longer presumed, per the common law, and now had to be proved.

Notwithstanding the slight differences between the UK and Australian provisions (as to both their wording and their development and context), His Honour adopted much of Sumption LJ’s analysis of ‘serious harm’ from Lachaux, for the purpose of applying section 10A to the present proceedings.  His Honour observed at [68]-[69]:

“[68] Given the slight differences in the legislation I would respectfully adopt much of what Lord Sumption had to say, notwithstanding again some differences in the respective development of the common law in the two countries and of course without a European backdrop.

[69] That said it is clear that a plaintiff must prove serious harm as a necessary element of the cause of action in New South Wales since the introduction of s 10A. By parity of reasoning, I am of the view that s 10A, like its UK counterpart has the effect of abolishing the common law rule that upon the publication of a defamation, damage is to be presumed. The plaintiff is therefore obliged to prove serious harm as a fact in every case…”

His Honour noted that in Lachaux, on the hearing as to serious harm, the plaintiff and the other witnesses had given evidence and the Court had received evidence as to the extent of publication. By contrast, the present case was conducted only on the pleadings, and in such a case it was to be assumed that the factual assertions relevantly made by the plaintiff are true. Notwithstanding that assumption, His Honour concluded that the Proposed Pleading did not clearly articulate an arguable case especially by reference to events which took place before the matters complained of. His Honour ordered that the relevant paragraphs of the Proposed Pleading be struck out in their present form but granted the plaintiff leave to replead given the novelty of the legal point.

Key takeaways

Newman v Whittington is the first decision of an Australian superior Court to consider and interpret the ‘serious harm’ element introduced by the MDAPs. In this case, Sackar J of the Supreme Court of New South Wales held that:

• section 10A of the Act requires that a plaintiff must prove serious harm as a necessary element of the cause of action of defamation;
• section 10A, like its UK counterpart, has the effect of abolishing the common law rule that upon publication of a defamation, damage is to be presumed; and
• therefore, the plaintiff is obliged to prove serious harm as a fact in every case.

[1] [2021] NSWDC 610.

[2] [2019] UKSC 27.

[3] [2022] NSWSC 249.