Defamation case dismissed in first application of the new serious harm test

Articles Written by Kevin Lynch (Partner), Katelyn Iacono (Associate)

Proceedings involving a one-to-one Facebook Messenger allegation of stolen scissors have been cut short by her Honour Judith Gibson DCJ in the first test of the serious harm element since it was introduced last year.

Zimmermann v Perkiss [2022] NSWDC 448

Serious harm - a key element of the 2021 reforms

The serious harm element was introduced into the New South Wales Defamation Act 2005 by an amendment on and from 1 July 2021. It forms part of the 2021 defamation law reforms which have been adopted in most States (2021 reforms) [1]. Under the new section 10A, 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.[2]

The serious harm element was introduced due to concerns raised by stakeholders that defamation law is increasingly being used for “trivial, spurious and vexatious backyard claims”[3] and that “the costs and stress of defending a defamation claim had become prohibitive for private individuals”.[4] The reform aimed to ensure that only a plaintiff who has suffered sufficient harm to reputation can sue for defamation, in order to better reflect the balance to be achieved between protecting an individual’s reputation and not unduly limiting freedom of expression.[5]

Importantly, the legislation provides that a judicial officer may determine if the serious harm element is established at any time before the trial commences or during the trial, and may dismiss the proceedings if the element is not established. On the application of a party, the Court is required to determine the serious harm element as soon as practicable, unless there are special circumstances.[6]

The 2021 reforms also repealed the “triviality” defence. That defence, which involved an assessment of “likelihood of harm” in the light and heat of a contested and costly trial, was rarely successful. Judicial interpretation favoured an objective prospective evaluation, focussing on the circumstances of publication rather than whether or not harm actually had ensued, which added to the elusiveness of the defence[7].

Since the introduction of the 2021 reforms, interest has been focussed not only on how the serious harm test will be applied, but also the point in proceedings that the assessment will be made. Defendant hopes that the element may be used as a threshold test early in the proceedings have been tempered by initial judicial consideration and the influence of the equivalent UK requirement.

Zimmermann v Perkiss has brought the new serious harm element to life.

Zimmermann v Perkiss

The publication in this case was a series of Facebook Messenger messages sent by the Defendant, Ms Kim Perkiss who worked at dog salon Perky Pooches, to the owner of nearby canine operation, Albion Bark Lodge, Ms Sarah McPherson. The messages related to the Plaintiff, Katie Zimmermann, who had recently left Perky Pooches’ employ to work at Albion Bark Lodge:

“Katie resigned due to organising the theft of company [Perky Pooches] possessions”;

“You should check references”;

“She went on stress leave due to not coping with being caught taking items from the business”;

“We could have had the police involved”;

“About $1000 worth of scissors taken”; and

“8 cameras don’t lie”.

It was not in contest that Ms Zimmermann had not stolen the scissors, a fact that had already been acknowledged by Perky Pooches’ owner, who apologised for any such allegation.

Ms Zimmermann pleaded a series of imputations that were not in issue in the serious harm hearing:

(a)As an employee, the Plaintiff stole, took or otherwise arranged for the theft of employer property;

(b)As an employee, the Plaintiff was captured on close circuit television footage stealing, taking or otherwise arranging for the theft of employer property;

(c)As an employee, the Plaintiff committed a criminal offence;

(d)As an employee, the Plaintiff took stress leave due to the above reasons; and

(e)As an employee, the Plaintiff is unreliable.

The evidence of the sole recipient of the Facebook Messenger messages, Ms McPherson, was key to the Court’s determination of the application. Critical to whether the Plaintiff’s reputation suffered serious harm was the impact that the messages had on Ms McPherson’s opinion of the Plaintiff. The Defendant submitted that any adverse effect was short lived, insignificant and did not cause serious harm.

The Judge concluded that Ms McPherson was concerned by the Facebook message, but demonstrated a “high regard for the plaintiff” and a suspicion that the Defendant was “lashing out because the plaintiff had gone to work for her instead”[8].

Her Honour found that the Plaintiff had “not suffered any harm in Ms McPherson’s eyes at all” and dismissed the proceedings[9].

Previous consideration of serious harm

Whilst this was Australia’s first substantive judicial decision on serious harm under the 2021 reforms, it was not Judge Gibson’s first consideration of a serious harm element[10].

In Rader v Hanes[11] her Honour considered the UK serious harm test[12] in relation to a publication of an email sent by the defendant to a recipient in England.  The UK provision provides that “a statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant.”[13]

In considering the provision, her Honour applied the UK High Court findings in Lachaux v Independent Print[14] which said that the consideration of serious harm goes beyond the meaning of the publication to a consideration of “the actual facts of the impact”[15].  The assessment therefore encompasses the meaning of the words as well as the impact (and likely future impact) on those to whom they are published.[16]

Judge Gibson surmised that “the best approach to take to the timing of the serious harm is to pursue the trajectory of the harm from the first evidence of it until its end”. In harbinger of her Honour’s decision in Zimmermann, Judge Gibson found that the UK serious harm threshold had not been met.[17]

The decision in Rader v Haines was upheld on appeal to the NSW Court of Appeal by Macfarlan JA, Brereton JA and Basten JA on 5 October 2022[1], just two days before the Zimmermann decision.[18]

His Honour Justice Sackar of the Supreme Court of NSW also drew upon the UK Lachaux decision when he considered the concept of serious harm in the recent decision of Newman v Whittington.[19] In that case, his Honour struck out the plaintiff’s pleadings as to serious harm on the grounds that they were poorly articulated, with leave to re-plead.

In commenting on the application of section 10A, Justice Sackar expressed a view that by reason of the very terms of section 10A, the serious harm threshold has the effect of abolishing the common law rule that damage is to be presumed upon the publication of a defamation. In Sackar J’s view, a plaintiff is therefore “obliged to prove serious harm as a fact in every case[20].

The judicial line of thinking as to when serious harm is to be assessed may give rise to “special circumstances” which may frustrate a defendant’s attempts to have the serious harm threshold tested at an early stage of proceedings.

In the recent County Court of Victoria proceedings in Wilks v Qu[21] the Court decided against proceeding with a recent scheduled hearing on serious harm, adjourning the question to trial. This course was adopted after affidavits for both parties were filed and her Honour Clayton J was concerned that a determination on serious harm may not be able to be reached, particularly where the truth of the publication may be relevant[22]. Clayton J gave consideration to the overarching obligations of the Civil Procedure Act 2010 to ensure the timely, cost effective, efficient and just disposition of the issues[23].

Key points

  • The decision in Zimmermann v Perkiss suggests that the serious harm element may serve its purpose in the early disposal of “backyard” claims over an alleged publication to a limited audience where it is clear that there is not sufficient harm to an individual’s reputation.
  • Judicial consideration of the serious harm requirements since the 2021 reforms confirm the need to inform the publisher of the serious harm caused (or likely to be caused) in a pre-trial concerns notice and adequately plead that element in any statement of claim.
  • Initial judicial views as to when serious harm is to be assessed and the role of evidence in that consideration may be an impediment to the serious harm being determined at an early stage in proceedings.
  • Zimmermann v Perkiss shows that in the right case, section 10A can serve its purpose in the efficient and early disposal of cases which would otherwise involve low damages and disproportionately high costs.

[1] New South Wales, Victoria, Queensland, South Australia, Tasmania and the Australian Capital Territory have enacted the Model Defamation Amendment provision 2020. References in this article are to the NSW legislation.

[2] Harm to the reputation of an excluded corporation (a non-public organisation which is formed not for financial gain or a non-associated entity with fewer than 10 employees) is not serious harm unless it has caused, or is likely to cause, the corporation “serious financial loss”.

[3] New South Wales, Parliamentary Debates, Legislative Assembly, 29 July 2020, 3.

[4] New South Wales, Parliamentary Debates, Legislative Assembly, 29 July 2020, 3.

[5] Council of Attorneys- Model Defamation Amendment Provisions 2020 (Consultation Draft) —Background paper, page 26.

[6] Section 10A(4)(b) and (c), and 104(5).

[7] See for example, Sarina v O’Shannassy [2021] FCA 1649.

[8] [2021] NSWDC 448 at [110].

[9] [2021] NSWDC 448 at [152].

[10] Her Honour, Judge Gibson has also policed the requirement in the 2021 reforms that a pre-litigation Concerns Notice outline serious harm. See Teh v Woodworth & Anor [2002] NWSW DC 411 and MI v WI & Ors [2022] NSWDC 409 in which the mandatory concerns notices were ruled invalid.

[11] [2021] NSWDC 610.

[12] The parties consented to the application of UK law.

[13] Section 1 of the Defamation Act 2013 (UK).

[14] [2019] UKSC 27.

[15] [2019] UKSC 27 at [14].

[16] [2019] UKSC 27 at [14].

[17] Rader v Haines [2021] NSWDC 610 at [131].

[18] See Rader v Haines [2022] NSWCA 198.

[19] [2022] NSWSC 249.

[20]Newman v Whittington [2022] NSWSC 249 [69].

[21] [2022] VCC 1503.

[22] Wilks v Qu [2022] VCC 1503 at [17].

[23] Wilks v Qu [2022] VCC 1503 at [12].

Important Disclaimer: The material contained in this article is comment of a general nature only and is not and nor is it intended to be advice on any specific professional matter. In that the effectiveness or accuracy of any professional advice depends upon the particular circumstances of each case, neither the firm nor any individual author accepts any responsibility whatsoever for any acts or omissions resulting from reliance upon the content of any articles. Before acting on the basis of any material contained in this publication, we recommend that you consult your professional adviser. Liability limited by a scheme approved under Professional Standards Legislation (Australia-wide except in Tasmania).

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