In the Victorian Supreme Court, 16 cases were filed last year, compared with 21 cases in 2020 and 25 in 2014.
Defamation reforms
Defamation laws changed in most states and territories in July 2021, and again in July last year.
A number of the reforms made it harder for plaintiffs to bring, and win, a lawsuit.
This may have resulted in a drop in the number of cases filed in those jurisdictions, but other factors including the high cost of litigation are also likely to be relevant.
Western Australia has been a hold-out and has not passed any of the changes to defamation law that might have contributed to falling case numbers across the majority of the country.
It has also seen a downturn in cases: 15 cases were filed in the WA Supreme Court last year compared with 28 to 30 cases in the preceding three years. However, new filings were relatively stable between 2016 and 2019, averaging 16 cases per year.
Costly losses
Among the other factors that may be discouraging would-be plaintiffs are the astronomical cost of litigation and high-profile court losses.
Two of the largest defamation cases in recent years, brought by former Special Air Service soldier Ben Roberts-Smith against The Age and The Sydney Morning Herald, and former federal Liberal staffer Bruce Lehrmann against Network Ten, were dismissed by the Federal Court. Both resulted in costs orders in the millions.
But appeal judgments are pending in both cases, and Roberts-Smith has sought to expand his appeal to introduce evidence of a “secret recording” involving Age and Herald investigative journalist Nick McKenzie.
Australia mirrors UK
University of Sydney Professor David Rolph, a defamation law expert, said it was “not surprising that from time to time there might be a downturn in defamation filings”.
Defamation has been consistently popular across Australia over the long-term but “there are periods where it is more intensely litigated than others”, he said.
“One observation that might be made, though, is from around 2020-2021 in jurisdictions that introduced stage one of the reforms … there has been a decided decline.
“This mirrors the decline in new claims in the UK after they introduced their 2013 Defamation Act.
“Many of the reforms in [the UK law] were introduced in Australia, such as serious harm and the public interest defence. After reforms are introduced, it is to be expected that there will be a downturn in new filings.
“One way to illustrate this is that filings in Western Australia, which to date has introduced none of the reforms, have remained consistently high, albeit with a significant drop-off in the last year.”
As to the potential impact of recent court losses, Rolph said that “when prominent plaintiffs fail, that itself can have a chilling effect on other prominent plaintiffs suing for defamation”.
Serious harm
Under the serious harm requirement, a plaintiff must show an allegedly defamatory publication “has caused, or is likely to cause, serious harm” to their reputation to bring a claim.
This was designed to discourage lower-level lawsuits, sometimes referred to as “backyard” claims.
“Harm to reputation was previously presumed, which made it very easy for virtually anyone to sue for defamation,” Rolph said.
Adding this new obstacle “may deter some claimants”, he said.
A new procedural hurdle
Rolph said a new requirement that a person suing for defamation issue a concerns notice before filing proceedings may also “act as a barrier”.
A concerns notice sets out the allegedly defamatory statements at the heart of their claim. During a trial, a plaintiff “can’t rely on a statement they haven’t put in their concerns notice”.
“The effect of this is to increase the costs of pre-trial steps because specialist practitioners would need to be engaged to draft concerns notices.”
Western Australia
Dr Michael Douglas, a Perth-based barrister and former academic, said it was unsurprising defamation filings in WA had been “pretty consistent” because “the law has stayed the same over here”.
But he said many of the filed cases would not proceed to a trial. Parties to defamation disputes in both the WA Supreme and District Courts were “sent straight to mediation”, even when they are “in intractable positions”, he said.
Douglas said the serious harm threshold effectively “took away the rights of the ‘non-rich’” because it was designed to discourage lower-level cases.
He said the “missing piece in the law reform conversation” was “lower cost options”, similar to tribunals, to help ordinary people obtain remedies more quickly and cost effectively when their reputations were damaged.
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