The question left hanging - at what stage is serious harm to be determined?

Almost a year ago, we commented on the first application of the serious harm test in s10A, introduced as part of the 2021 defamation legislation reforms.

In that paper we also referred to Victorian County Court proceedings in Wilks v Qu[1], as a pointer to how “special circumstances” might frustrate a defendant’s attempts to have the serious harm element tested at an early stage of proceedings.

In Wilks v Qu her Honour Judge Clayton was concerned that an early determination of serious harm may not be able to be reached, particularly where the truth of the publication may be relevant.

This week, the Court of Appeal rejected the defendant’s application for leave to appeal[2] that decision to adjourn the determination of the serious harm element until trial. In doing so the Court of Appeal said the question of what amounts to “special circumstances” does not require any judicial gloss, but encompasses circumstances which are not “run-of-the-mill”.

The Appeal Court said that questions concerning the construction and application of the newly enacted provision were novel and yet to be decided by an appellate basis, but that this application for leave to appeal (on a question of practice and procedure where no injustice has arisen) was not the occasion to determine the construction and application of s10A(1).

Whether her Honour Clayton J was right to consider that she might need to make a finding of fact in respect of the allegations in a publication in order to determine serious harm remains an open question. The Court of Appeal has teased the possibility that this may be an issue that is determined, if necessary and appropriate, “on any application for leave to appeal from the Judge’s final decision on this matter”.

If the approach of her Honour Clayton J stands, it may put paid to many attempts at early determination of the serious harm element. But there is likely to be more to be said by Courts in relation to s10A, if not in this case, then before too long.