A recent decision of the District Court of New South Wales is one of the first cases where an Australian Court has considered the interpretation and application of a ‘serious harm’ element. Although the UK Defamation Act applied to the publication in question, the Court’s discussion of the English caselaw will likely have relevance to interpretation and application of the ‘serious harm’ element introduced by the MDAPs.

 INTRODUCTION

On 1 July 2021, new defamation laws came into effect which enacted the Model Defamation Amendment Provisions 2020 (“MDAPs” – for more information on the MDAPs, click here).

One of the amendments introduced was a new ‘serious harm’ element to the cause of action for defamation.  This ‘serious harm’ element requires a plaintiff to prove that the publication has caused, or is likely to cause, serious harm to a person’s reputation.  While the test is worded differently from its UK counterpart, contained in s 1(1) of the Defamation Act 2013 (UK) (UK Act),[1] there are some similarities between the two provisions and Australian Courts will likely look to the UK authorities to apply the MDAPs provision.

Following the enactment of the MDAPs in some jurisdictions in July 2021, Australian defamation practitioners have been keenly awaiting judicial consideration of the “serious harm” element introduced by the MDAPs.  A recent decision of the New South Wales District Court is noteworthy because it is one of the first cases where an Australian Court has considered the interpretation and application of a ‘serious harm’ element, notwithstanding that it was the UK Act provision which applied in this case.

BACKGROUND

Rader v Haines [2021] NSWDC 610 concerned an email sent by the plaintiff’s parents-in-law in Australia to the plaintiff’s parents, who live in England.  The email contained various allegations about the plaintiff including apparent reasons why the plaintiff’s relationship with the defendants’ daughter waned, including (among other things) that the plaintiff had stalked her, inflicted violence upon her and stole her car.

The fact that publication of the email occurred only in England was significant because liability for publication must be determined in accordance with the law of the place where the defamation was committed.  The parties agreed and Gibson DCJ proceeded on the basis that the applicable law for liability was therefore the UK Act and not the Defamation Act 2005 (NSW).  The Court did however apply Australian law to evidentiary and procedural issues.

The central issue in the proceedings was whether the email caused or was likely to cause ‘serious harm’ to the reputation of the plaintiff.  This article is limited to the Court’s consideration of that issue.

SERIOUS HARM AND LACHAUX

Section 1(1) of the UK Act’s ‘serious harm’ provision provides:

“1(1) A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant.”

In interpreting s 1(1) of the UK Act, Gibson J considered and applied the United Kingdom Supreme Court’s decision in Lachaux.[2]  In the Lachaux series of judgments:

• At firt instance, Warby J found that s 1(1) requires a plaintiff to “prove as a fact on the balance of probabilities that serious reputation harm has been caused…”.[3] The fact that a statement may be inherently injurious is not sufficient.  Justice Warby’s decision was appealed.
• On appeal, the Court of Appeal, comprising Davis LJ (with whom Sharp and McFarlane JJ agreed), disagreed with Warby J’s interpretation of s 1(1). Instead, Davis LJ concluded that s 1(1) only required a tendency to cause serious harm, meaning an inference of serious harm can be drawn when a statement simply bears a serious defamatory meaning.[4]  The Court of Appeal’s decision was appealed to the High Court.
• The High Court, comprising Lord Sumption (with whom Kerr, Wilson, Hodge and Briggs LJJ agreed), rejected the Court of Appeal’s interpretation, in favour of Warby J’s decision, and determined the language of s 1(1) “requires its application to be determined by reference to the actual facts about its impact and not just to the meaning of the words”.[5]

SERIOUS HARM MUST BE ESTABLISHED AS A FACT

It is clear from Lachaux that under English law, 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”.

When assessing and determining whether a plaintiff has established, as a fact, ‘serious harm’, English Courts will consider a combination of:

• the meaning of the words used in the publication;
• the impact which those words had on those to whom they were communicated; and
• the likely future impact of those words.

Serious harm should not be conflated with hurt to a plaintiff’s feelings.  A plaintiff’s personal hurt is not evidence of harm to reputation, because harm depends upon “a combination of the inherent tendency of the words and their actual impact on those to whom they were communicated” (Lachaux at [14]).

The extent of publication however, a matter which historically has been relevant to mitigation of damage, is relevant to the assessment and determination of ‘serious harm’.

AT WHAT TIME IS THE HARM ASSESSED?

Judge Gibson’s judgment includes some discussion of temporal considerations when assessing serious harm.  Her Honour considered whether the time for assessment of the harm is the date of publication, the date of commencement of proceedings, the date of the trial or some combination of each?

Her Honour considered that the best approach is to pursue the trajectory of the harm from the first evidence of it until its end, and to consider that in the context of the harm still extant both at the time of commencement of the proceedings and at trial, with some recognition for potential harm in the future.

EVIDENCE AND FINDINGS ON SERIOUS HARM

Her Honour first considered the extent of publication, finding that the email was sent to and read by only two individuals (the plaintiff’s parents, who lived in England) and that no one beyond the plaintiff’s parents’ closest friends and family would have had any information about its contents.

Her Honour then considered what harm was done by the email.  The evidence led by the plaintiff related to harm at or shortly after the time the email was sent.  The evidence was that there was tension between the plaintiff and his parents for a period of time as to whether the email allegations were true.  By the time the plaintiff commenced the proceedings however, her Honour observed “there could be no question of harm; [the plaintiff’s] parents were supporting him in his court proceedings” (at [132]).  Nor was there any evidence of harm at the date of the trial.  Judge Gibson also considered that there was no likelihood of harm in the future given the very limited nature of the publication.  Taken as a whole, the evidence suggested that the plaintiff’s reputation was not damaged in the eyes of his parents.

Next her Honour considered the plaintiff’s delay in commencing proceedings, citing McCarey v Associated Newspapers Ltd (No 2) [1965] 2 QB 86 at 96-97 as authority for the proposition that delay in complaint and commencement of proceedings may be regarded as an indication of lack of concern as to the seriousness of the damage.  Her Honour said that the evidence indicated the plaintiff had met and spoken with the defendants on many occasions during the year after publication and copied his correspondence with them to his solicitor.  Judge Gibson found that the plaintiff “had many opportunities to raise his concerns with them, either informally or through his solicitor” and although her Honour accepted that “the plaintiff was preoccupied” with various other pieces of litigation, her Honour did not regard this as an explanation for never having raised his concerns, even in conversation, with the defendants.

Having regard to the circumstances and extent of publication, whether the publication was likely to come to attention of others at the time or in the future, the gravity of the imputations and the situation of the plaintiff, her Honour concluded at [150] – [152] that this case concerned:

1. … an email sent to the two people who knew the plaintiff better than anyone, namely his parents, whose love and affection for him would have withstood any threat, serious or otherwise, to his reputation, particularly in circumstances where they already knew there were disputed allegations between the plaintiff and his wife, as well as what those allegations were. Those same two people also knew the defendants well, and knew that the reason they were not to be permitted unsupervised access was because of the likelihood that they could use that access to support their daughter in some way. They were not to be trusted.
2. Accepting the plaintiff’s evidence at its highest, a discord in his relationship with his parents for some weeks does not amount to “serious harm”, despite the seriousness of the imputations.
3. The plaintiff has accordingly failed to discharge the onus of proof of demonstrating serious harm.

KEY TAKEAWAYS & CONSIDERATIONS

New South Wales’ equivalent ‘serious harm’ threshold, at section 10A(1) of the Defamation Act 2005 (NSW) (NSW Act) reads as follows:

“It is an element… of a cause of action for defamation that the publication of defamatory matter about a person has caused, or is likely to cause, serious harm to the reputation of the person”.

While it remains to be seen how Australian Courts will assess and determine the ‘serious harm’ provision in the MDAPs, the similar wording of the UK Act and MDAP provision will likely mean the effect of the Australian provision to be similar to that of the UK’s and that the Lachaux principles discussed in Rader v Haines will be informative.  Those principles can be summarised (as per the above and in addition) as follows:

1. A plaintiff needs to establish that serious harm has been caused or is likely to be caused as a fact. More than the mere inherent tendency of the words to cause some harm to reputation is required.
2. When assessing and determining serious harm, UK Courts have regard to a combination of the meaning of the words used in the publication, the impact which those words had on those to whom they were communicated and the likely future impact of those words. It is uncertain whether the same approach will be taken to the Australian test in circumstances in which it separates the serious harm requirement from the test for what is defamatory.  Australian Courts will need to decide how much of the existing case law concerning defamatory meaning to carry across to the MDAPs provision.
3. Serious harm should not be conflated with hurt to feelings, meaning however distraught a plaintiff may be, such personal hurt is not evidence of ‘serious harm’. The extent of the publication and any delay on the part of the plaintiff in commencing proceedings are however relevant matters when assessing if the harm is “serious”.
4. In the UK, serious harm is to be assessed from the first evidence of it until its end, followed by considering this in the context of the harm still extant both at the time of commencement of proceedings and at trial, together with some recognition for the potential for future harm. It should be noted however that Australian ‘serious harm’ provisions specifically provide for early preliminary determination of whether the “serious harm” test is met.  The clear purpose of this provision is to ensure that those matters which do not meet the serious harm threshold are disposed of at an early stage before costs of the parties become too burdensome.  This is a departure from the UK position, where early determination of serious harm is not encouraged, and attempts to dispose early of matters on this basis have been unsuccessful.[6]

[1] The UK provision changed the test for what is “defamatory”.  The MDAPs provision does not do this.  Rather, it makes serious harm a prerequisite to a cause of action for defamation.

[2] Lachaux v Independent Print [2019] UKSC 27.

[3] Lachaux v Independent Print [2015] EWHC 2242 (QB), at [45] and [65].

[4] Lachaux v Independent Print [2017] EWCA Civ 1334, at [69]-[70].

[5] Lachaux v Independent Print [2019] UKSC 27, at [12].

[6] See Doyle v Smith [2018] EWHC 2935 at [117]-[120] and the cases cited therein.  See also Economou v De Freitas [2018] EWCA Civ 2591.