Federal Court of Australia

Peros v Blackburn [2024] FCA 177

ORDERS

THE COURT ORDERS THAT:

1.    The application filed on 19 December 2023 be dismissed.

2.    The parties be heard on the question of costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

DERRINGTON J:

Introduction

1    By an interlocutory application filed on 19 December 2023, Ms Vicki Blackburn, the respondent in defamation proceedings, seeks an order pursuant to r 30.01 of the Federal Court Rules 2011 (Cth) (the Rules) or, alternatively, s 10A(5) of the Defamation Act 2005 (Qld) (Defamation Act), for a separate determination of the question of whether each of three alleged defamatory publications caused, or are likely to have caused, serious harm to the reputation of the claimant, Mr John Peros.

2    There is uncertainty in the authorities as to whether the ambulatory effect of s 79 of the Judiciary Act 1903 (Cth) includes s 10A(5) of the Defamation Act and, therefore, whether it is a process available to this Court. It is unnecessary in these proceedings to determine that issue as Ms Blackburn elected to proceed under r 30.01, which relevantly provides that a party may apply to the Court for an order that a question arising in the proceedings be heard separately from any other questions.

3    However, it should be acknowledged that the outcome of this case may well have been entirely different had it been determined under s 10A(5) of the Defamation Act. That is not only because under r 30.01 of the Rules, Ms Blackburn, as the applicant for relief, bears the onus of establishing that it is appropriate for the question to be heard separately. It is also because the judicially created limitations imposed on r 30.01 have confined its operation to very stark and clearly defined issues. Conversely, the process under s 10A(5) is obviously intended to include much more widely disputed issues.

4    Whilst the two procedures might be regarded as raising or involving similar issues, it is apparent that, by the insertion of ss 10A(5) and (6) into the Defamation Act, the State legislature has indicated a clear preference that the issue of serious harm to the claimant’s reputation be determined ahead of the trial if an application is made for that to occur. When that occurs, s 10A(5) requires the judicial officer to determine the question of serious harm in advance of the trial, unless satisfied that there are “special circumstances” justifying the postponement of that question. In this way, it might be said that there is effectively a reversal of the onus that is found in r 30.01.

5    Contrary to some passing suggestions in the authorities: see Hun v Aljazeera International (Malaysia) SDN BHD [2023] FCA 1103 [35] (Hun v Aljazeera International), citing Selkirk v Hocking [2023] FCA 432 [39] (Selkirk v Hocking): r 30.01 of the Rules and s 10A(5) of the Defamation Act should not be considered as providing for the same or similar process. Although the “special circumstances” enumerated in s 10A(6) can be described as procedural or case management considerations which also fall to be considered under r 30.01, that does not give rise to an equivalence between the two provisions. The operation of the two sections shows that they are the complete antithesis to each other — for an application to succeed under r 30.01, the applicant must show that it is appropriate to determine the separate question, whilst an application made under s 10A(5) will lead to the determination of the separate question unless there is a demonstrated reason why that should not occur in the circumstances of the case. In this latter respect, the legislature must be taken as appreciating that the determination of serious harm will often be a factually contested matter which may involve the testing of the evidence adduced by the respective parties. Therefore, its utility ought not be circumscribed by judicially imposed limits as has occurred in relation to r 30.01.

6    If it is the case that ss 10A(5) and (6) of the Defamation Act are not picked up and included in this Court’s jurisdiction, an amendment to the Rules is required to create an analogous procedure for defamation proceedings in this Court. As the following reasons reveal, the circumstances of this case provide a good example of where an application made under r 30.01 of the Rules fails, but an order under s 10A(5) of the Defamation Act might well have been made.

Background

7    Mr Peros has brought a defamation claim against Ms Blackburn in this Court. He relies upon certain publications alleged to have occurred within a “Facebook Group”, of which Ms Blackburn is the administrator. The Facebook Group is entitled “Justice for Shandee”.

8    The reference to “Shandee” is a reference to Ms Blackburn’s daughter, Shandee Blackburn, who was murdered on 9 February 2013.

9    Mr Peros was charged with Shandee Blackburn’s murder, but, following a trial in the Supreme Court of Queensland in April 2017, he was acquitted.

10    An extended coronial hearing into the death of Shandee Blackburn occurred in 2019 and, in August 2020, the Central Coroner of the Coroner’s Court of Queensland issued his decision and reasons in relation to it (hereinafter referred to as the “Coroner’s report”). He found that Shandee Blackburn died due to injuries sustained in an incident involving violence with Mr Peros who used a bladed instrument.

11    In so finding, the Coroner did not make any statements or findings that Mr Peros is guilty of any offence, nor civilly liable for anything. Mr Peros, who had previously been in a personal relationship with Shandee Blackburn denied, and still denies, any involvement in her death.

12    The findings contained in the Coroner’s report were widely published in the press and media. Following the delivery of the report, a podcast was produced by a journalist and the publisher of “The Australian” newspaper. That podcast and various content relating to it was also widely published. Mr Peros has since issued defamation proceedings in both the Supreme Court of Queensland and this Court in relation to it.

13    In his statement of claim against Ms Blackburn in the present proceedings, Mr Peros relies upon certain posts and comments which appeared on the Facebook Group, “Justice for Shandee”, in late 2022. As a matter of context, the alleged publications by Ms Blackburn occurred well after the publication of the Coroner’s report, the podcast, and the media reports.

14    The first matter complained of relates to a post on the Facebook Group which contained a link to a news article published by The Australian entitled, “Coroner-labelled stabber sues victim’s sister for ‘murderer’ claim”.

15    It is a response to that post made by another Facebook user on 3 October 2022 which is the first matter of which Mr Peros complains. It read:

Of course he is, that’s exactly what a murdering sociopath would do…my love and support is with you Vicki and Shannah. (love heart emoji)

16    It is said that the defamatory imputations from the post are that Mr Peros is a murderer, in that he murdered Shandee Blackburn, and that he is a dangerous sociopath, in that he feels no regard for the wellbeing of the family of Shandee Blackburn.

17    The second matter complained of is another response to that post made by a Facebook user on 3 October 2022 in the Facebook Group. It stated:

What a complete & utter control freak & narcissist. Has no empathy for others. This family has lost a sister & daughter, on what planet is this acceptable!

18    It is alleged that the imputations from the second matter complained of are that Mr Peros has a personality disorder, in that he is a narcissist and a control freak with an excessive need to control other people, that he is socially abnormal, in that he has no empathy for others, that he is apathetic towards the feelings of others, in that he only cares for himself, that he has no empathy for the relatives of Shandee Blackburn, whom he murdered, and that he is a murderer, in that he murdered Shandee Blackburn.

19    The third matter complained of is a response to a post made by Ms Blackburn in the Facebook Group on 10 December 2022. It made reference to Mr Peros’ barrister and added:

How he sleeps at night knowing he has kept a murderer on the street is beyond me.

20    The imputations alleged in respect of that post are that Mr Peros is a murderer, that he is such a dangerous criminal that he ought to be imprisoned, and that he ought to be in jail, in that he murdered Shandee Blackburn.

21    In respect of each matter complained of, Mr Peros alleges that he suffered serious harm by reason of the publication. In respect of each he makes a similar plea. The plea in relation to the first matter complained of reads:

By reason of the publication of the First Matter Complained Of, the Applicant has suffered, continues to suffer, and in the alternative, is likely to suffer, serious harm of the following nature:

(a)    hatred, contempt and ridicule;

(b)    injury and harm to his personal and professional reputation and life;

(c)    loss of future employment opportunities; and

(d)    distress, embarrassment and ostracization.

Particulars

The seriousness of the harm and/or likely serious harm to the Applicant’s reputation is attributable to:

(a)    the gravity, falsity and seriousness of the imputations conveyed by the First Matter Complained Of;

(b)    the First Matter Complained Of having been published in circumstances where the Applicant had, prior to its publication, been acquitted of the murder of Shandee Blackburn;

(c)    the grapevine effect, taking into account:

(i)    the number of ‘members’ of the Facebook Group; and

(ii)    that the Facebook Group is ‘public’ and freely accessible and viewable by members of the general public.

(Emphasis in original).

22    The allegations of the occasioning of serious harm in relation to the second and third matters complained of do not include the allegation in particular (c)(ii).

23    Mr Peros claims damages to, amongst other things, provide reparation for the damage to his reputation consequent upon the publication of the alleged defamatory statements.

24    Ms Blackburn denies many of the allegations in the statement of claim. As to the issue of serious harm, she denies that any of the first, second or third matters complained of caused Mr Peros serious harm. She does so on the basis that he had no reputation to lose, and one of the particulars relied upon is the Coroner’s report and its findings.

25    Further, by way of justification under s 25 of the Defamation Act, Ms Blackburn alleges that the imputation that Mr Peros is a murderer, in that he murdered Shandee Blackburn, is substantially true. She also asserts that other of the imputations are contextually true.

26    By the interlocutory application filed on 19 December 2023, Ms Blackburn seeks the determination of a separate question ahead of the full trial of this action. The question is identified in the following terms:

Whether the publication of each of the matters complained of (as pleaded in the statement of claim filed 22 September 2023), caused or are likely to cause serious harm to the applicant’s reputation.

The principles relating to r 30.01

27    The principles governing the application of r 30.01 were generally not in dispute. They were articulated in the submissions of Mr Potter SC, counsel for Mr Peros, as follows:

a.    as a matter of principle and policy, cases should be heard once with all issues heard and determined together and the attraction to separate an issue is usually more ‘chimerical’ than real and should only be embarked upon when their utility, economy and fairness are beyond question; [citing Tepko Pty Limited v Water Board (2001) 206 CLR 1, 178 ALR 634 at [168]-[170] per Kirby and Callinan JJ]

b.    therefore it is an exceptional measure and should only be entertained in ‘reasonably stark’ cases. [citing Triguboff v Fairfax Media Publications Pty Ltd [2018] FCA 845 at [29]]

(Emphasis in original and citations included in text).

28    Further, as Mr Potter SC submitted, there are certain factors which generally militate against making an order. They are:

a.    where there could be intertwined issues of fact or law between the separated question and the balance of the proceedings; [citing Reading Australia Pty Ltd v Australian Mutual Provident Society (1990) 240 FCR 276 at [8](g)]

b.    where there could be an overlap between the evidence on the separate question and the trial (assuming the separate question does not resolve the proceedings); [ibid]

[c].    [w]here the proceedings could become fragmented or delayed by an appeal in one part whilst the remainder proceeds. [citing Tepko Pty Limited v Water Board (2001) 206 CLR 1 at [170]; Murdoch v Private Media (No 5) [2023] FCA 440 per Wigney J at [42]]

(Citations included in text).

29    McEvoy J made similar observations in relation to the principles on which r 30.01 operates in Hun v Aljazeera International at [34] and [36]:

As the respondents properly accept, the assessment of whether to order that a particular question arising in a proceeding be heard separately from any other question pursuant to r 30.01 is discretionary. A variety of factors will bear upon the exercise of the discretion. Amongst others, it is important not to utilise the separate question procedure where questions are not “ripe” for separate determination. Also, the prospect that the separate determination of a question might give rise to significant contested factual issues at the time of the hearing of the separate question and at trial, and if there is an overlap between the evidence to be adduced on the hearing of the separate question and at trial, are both factors which tell against the making of such an order: see Reading Australia Pty Ltd v Australian Mutual Provident Society (1999) 217 ALR 495; [1999] FCA 718 at [8] (Branson J). The separate question procedure should always be adopted with caution because it can be fraught with difficulties: Save the Ridge Inc v Commonwealth (2005) 147 FCR 97 at 103 [15] (Black CJ and Moore J).

…

The need to exercise caution in determining particular questions separately from other questions reflects the law’s long experience that the attraction of trials of issues rather than of cases in their totality “are often more chimerical than real” and that separate trials should only be embarked upon when their utility, economy and fairness to the parties are beyond question: see Tepko Pty Ltd v Water Board (2001) 206 CLR 1 at 55 [168]-[170] (Kirby and Callinan JJ) and AWB v Cole (No 2) (2006) 253 FCR 288 at 298 [38] (Young J).

(Emphasis in original).

30    Whilst those principles might be properly discerned from the authorities, reference to the wording of r 30.01(1) shows that the power of the Court is generally untrammelled. That means that it must be exercised judicially and for the purposes for which it was granted. In that consideration the Court must necessarily take into account ss 37M and 37N of the Federal Court of Australia Act 1976 (Cth) and the overarching purpose of disposing of proceedings as cheaply and efficiently as possible.

31    The references to the perceived benefits of the determination of a separate question being “more chimerical than real”, ought not be allowed to pass without comment. Experience shows that it is possible for the procedure provided for by r 30.01 to go horribly wrong, with the parties and courts regretting ever embarking upon it. However, it is only those occasions where the process falters that judgments about it are written. The numerous cases where the determination of a separate question has had the effect of resolving the proceedings are not the subject of judicial consideration. As far as is known, there is no analytical study which concludes that the process of determining separate questions is more likely to result in detriment than benefit. Certainly, in the commercial courts, where parties are motivated to have their matter resolved as quickly and as efficiently as possible, the process under r 30.01 is regularly used to determine pivotal issues which regularly has the consequence of resolving the whole proceedings.

32    With respect to those who hold a different view, the courts should not be timid in utilising the process under r 30.01. Appropriate and, perhaps, intensive case management might be used to ensure positive outcomes and prevent the procedure from being rendered inutile.

Whether there should be a determination of a separate question

33    As the principles relating to r 30.01 indicate, the exercise of the discretion to order the hearing of a separate question involves a multifactorial consideration of the circumstances of the particular case. In general terms, the import of each factor turns on the degree to which the process of determining the separate question will potentially reduce costs, is convenient, and will not adversely impact the conduct of a full trial if that needs to occur.

Savings of costs

34    On one view, the bifurcation of the proceedings to answer the proposed separate question ahead of a full trial in this case may result in substantial costs savings. Regardless of how the matter is viewed, any full trial of the proceedings will be substantial. Ms Blackburn’s pleas of truth and contextual truth have the consequence that a pivotal question at the hearing will be whether Mr Peros did, in fact, and on the balance of probabilities, murder Shandee Blackburn. A perusal of the Coroner’s report discloses that the evidence in relation to that issue might be substantial. It may be that a four week hearing will be needed. Conversely, a determination of the separate question of whether Mr Peros suffered serious harm could take a relatively short period of time and be achieved at minimal expense.

35    On any view, if Ms Blackburn were to succeed on the separate question hearing, the matter would be brought to an end. That would necessarily entail significant savings of the costs required to conduct a full trial. If Mr Peros succeeded at proving serious harm, on the other hand, the costs of the exercise would have to have been incurred in any event with the consequence, that, prima facie, little wastage might occur. However, whether that is in fact so is greatly dependant on the circumstances of this particular case.

36    Necessarily, the length of time for the hearing of the separate question will be affected by the evidence which each party calls and the issues which are live between them. It may also depend upon the degree to which the evidence on which each party relies is admissible. Mr McCafferty KC, counsel for Ms Blackburn, sought to emphasise that the onus lies on Mr Peros to prove that he has suffered serious harm, such that Ms Blackburn may not seek to adduce any evidence at any hearing of the separate question. It was not clear, however, that this would be the case. Indeed, on the application before the Court, substantial submissions were made as to the admissibility of prior publications about Mr Peros including the Coroner’s report and articles appearing in the media and press. Those publications were received into evidence for the purposes of the application for a separate hearing, but subject to a limitation under s 136 of the Evidence Act 1995 (Cth). A substantial debate exists as to whether such matters are admissible for the purposes of ascertaining whether Mr Peros suffered serious harm to his reputation, and that is discussed further below.

37    For present purposes, it suffices to observe that it is problematic that the scope of the material on which the parties will rely for the separate question is unclear. An initial question concerns the scope of the alleged defamatory publications. It was alleged in the statement of claim that there were approximately 6,127 members in the Facebook Group, and that estimation has since grown to 6,448, such that the posts in question might have reached each one of them. However, that is far from clear and the manner in which Mr Peros will attempt to establish the scope of publication is unknown, though his pleading shows that he relies, to some extent, on the “grapevine effect”. It is also more than possible that there will be contested evidence relating to the scope of persons who might have received the posts in question and the number of persons who may have read them. Again, the nature and extent of the evidence which each party might adduce on those questions is uncertain.

38    The pleading of serious harm in this case is in general terms, as are the grounds on which the allegations are denied. It is not possible to discern from the pleadings how Mr Peros will seek to establish that he has suffered, continues to suffer, or is likely to suffer serious harm in the manners referred to and it is not clear how Ms Blackburn will seek to deny the existence of serious harm, assuming she seeks to do so. Necessarily, the latter will depend, to a degree, on the evidence which Mr Peros adduces. However, it appeared from the material filed for the purposes of this application, that Ms Blackburn anticipated that the publication of the Coroner’s report, and the subsequent reporting on it across the media, would render it impossible for Mr Peros to establish that he has suffered serious harm to his reputation. On its face, that is not an unreasonable proposition and this was presumably the rationale for Ms Blackburn seeking to adduce evidence of those matters for the purpose of the present application.

39    It follows that there is great difficulty in identifying the nature and scope of the evidence which might be called at any hearing of the separate question and that militates against proceeding down that path. There is a risk that any hearing will become a substantial matter extending over a number of days, and such a matter is not of the type generally contemplated by r 30.01. Such circumstances give rise to the spectre that pursuing the hearing of the separate question might increase costs rather than reduce them.

Proving or disproving serious harm

40    At this point it is useful to address an issue which was debated before the Court, being the manner in which serious harm to reputation might be proved or disproved.

41    By s 10A(1) of the Defamation Act, it is an element of a cause of action for defamation that the publication of a defamatory matter about a person has caused, or is likely to cause, serious harm to the reputation of that person. In the course of the hearing, contested submissions were made about how Mr Peros might go about establishing that. In particular, the existence of the Coroner’s report and the subsequent media publicity were initially identified as being hindrances to him. It became evident, however, that there may be difficulties in utilising that material on the question of serious harm as a result of the application of the principle from the decision of Dingle v Associated Newspapers Ltd [1964] AC 371 (Dingle). That principle provides that a defendant cannot rely, in relation to the mitigation of damages, on the fact that similar defamatory statements have been published about the same claimant by other persons: see Lachaux v Independent Print Ltd [2020] AC 612, 627 [22] (Lachaux). It was submitted that the same applies in relation to the establishing of serious harm.

42    Nevertheless, Mr Peros carries the onus of establishing that his reputation has suffered serious harm and, in doing so, he must establish the required degree of causation between the publications complained of and what he claims is the resulting damage. On this topic, Mr McCafferty KC referred to Amersi v Leslie [2023] EWHC 1368 (KB), a decision of Nicklin J in the Media & Communications List. There (at [143] – [163]), his Honour dealt with the progenitor provision of s 10A(1) of the Defamation Act (Qld), being s 1(1) of the Defamation Act 2013 (UK). His Honour identified (at [144]) that serious harm can only be established by reference to “the impact which the statement is shown actually to have had”, and that “[i]t depends on a combination of the inherent tendency of the words and their actual impact on those to whom they were communicated”: Lachaux at 623 [14]. He further observed (at [145]) that the assessment of serious harm was not a “numbers game”, such that publication to a relatively small number of persons may cause very serious harm and whether serious harm has been caused is a matter of evidence. His Honour further accepted (at [146]) that, in cases of mass publication, it was not necessary for a claimant to seek out those who substantially thought less of them because of the defamatory matter, and whether “tangible evidence” of serious harm to reputation is required will depend upon the circumstances.

43    In the course of his Honour’s reasons, Nicklin J cited from the decision of Collins Rice J in Sivananthan v Vasikaran [2023] EMLR 7, where her Honour referred to the causation requirement of the serious harm element. Her Honour said at 252 [45] and 255 [56] – [57]:

Section 1(1) uses the language of causation prominently (‘caused or is likely to cause’). The ‘serious harm’ component of libel therefore contains an important causation element, as with any other tort or civil wrong. The starting point is that defendants are responsible only for harm to a claimant’s reputation caused by the effect of each statement they publish in the minds of the readership of that statement. A claimant therefore has to establish a causal link between each item he sues on and serious harm to his reputation, actual or likely.

…

The fourth is a point which also arose on the facts in Lee v Brown. Where a libel claimant selects some publications as examples of a wider campaign of allegations by a defendant, that claimant may face a daunting problem of causation. If a defendant has undertaken a protracted course of conduct publicising allegations, a corresponding improbability arises that any member of that public later re-encountering them in published form will be impacted as an effect of that specific publication. The serious harm test is about the impact of an individual publication by a defendant on its readership. If the readership already knows everything about the defendant’s view of the claimant contained in the publication from the defendant’s own history and course of conduct, it is correspondingly unlikely that the publication will have material impact. There are other torts addressed to campaigns and courses of conduct (such as harassment), but libel is concerned with the effects of individual publications.

The fifth point is related, but distinct. If publication is not only in the context of a well-known dispute between the parties, but to an audience already either partisan or resolutely neutral as between them, then again a claimant may have to work harder to make their case on causation. In a polarised context, it may be less probable that anyone’s mind will have been changed either way by the publication. If no-one’s mind is changed, then establishing the causation of reputational harm is a problem.

44    From this, the submission was made on behalf of Ms Blackburn that establishing serious harm was an exercise in causation and the onus lay on the claimant to establish as a matter of fact that the publication complained of caused serious harm to them. It was further submitted that the Dingle principle was irrelevant to the causative question, and that the Court would be required to take into account the broader context of the publications about Mr Peros, which would presumably include the Coroner’s report and the resultant media reporting. Thus, it was said that the Court could assess those circumstances and it would easily reach the conclusion that by the time the statements alleged in Mr Peros’ statement of claim were made, he had no reputation that could be seriously harmed.

45    Conversely, Mr Potter SC submitted that the Dingle principle applied to the assessment of serious harm, such that the circumstances of the Coroner’s report and its publication, as well as the media reporting, could not be taken into account. In doing so, he relied on the decision of the Supreme Court of the United Kingdom in Lachaux and, in particular, the reasons of Lord Sumption (with whom the other Law Lords agreed). Lord Sumption (at 623 [14]) identified that a statement is not defamatory merely because of its inherent tendency to cause harm to reputation. Rather, following the introduction of s 1(1) of the Defamation Act 2013 (UK) it must have caused or is likely to cause harm which is serious. He added:

… The reference to a situation where the statement “has caused” serious harm is to the consequences of the publication, and not the publication itself. It points to some historic harm, which is shown to have actually occurred. This is a proposition of fact which can be established only by reference to the impact which the statement is shown actually to have had. It depends on a combination of the inherent tendency of the words and their actual impact on those to whom they were communicated. …

46    In this way, his Lordship observed (at 624 – 625 [17]) that the defamatory character of a statement no longer depends only on the meaning of the words and their inherent tendency to damage a reputation. The claimant must demonstrate, as a matter of fact, that the publication complained of has caused harm and that harm is serious. In the matter before the Supreme Court, the trial judge, Warby J had based his conclusions of serious harm on the scale of the publications, the fact that they had come to the attention of at least one person in the United Kingdom who knew the claimant, that they were likely to have come to the attention of similar persons, and the gravity of the statements themselves. Of this, Lord Sumption opined at 627 [21]:

But I do not accept, any more than the judge did, that his case must necessarily fail for want of such evidence. The judge’s finding was based on a combination of the meaning of the words, the situation of Mr Lachaux, the circumstances of publication and the inherent probabilities. There is no reason why inferences of fact as to the seriousness of the harm done to Mr Lachaux’s reputation should not be drawn from considerations of this kind. Warby J’s task was to evaluate the material before him, and arrive at a conclusion on an issue on which precision will rarely be possible.

47    At 627 – 628 [22] – [24] of Lord Sumption’s reasons, his Lordship dealt with, inter alia, whether the Dingle principle applied to the serious harm analysis. In relation to this his Lordship said at 627 – 628 [24]:

The effect of the Dingle rule is to treat evidence of damage to the claimant’s reputation done by earlier publications of the same matter as legally irrelevant to the question what damage was done by the particular publication complained of. It has been criticised, but it is well established. It has the pragmatic advantage of making it unnecessary to determine which of multiple publications of substantially the same statement occurred first, something which in the case of a newspaper would often be impossible to ascertain and might differ from one reader to the next. The practical impact of the Dingle rule in the modern law is limited by section 12 of the Defamation Act 1952, which allows a defendant to rely in mitigation of damage on certain recoveries or prospective recoveries from other parties for words to the same effect; and by the operation of the Civil Liability (Contribution) Act 1978. Section 1 of the Act is concerned with the threshold of harm and not with the measure or mitigation of general damage. But both raise a similar question of causation. It would be irrational to apply the Dingle rule in one context but not the other, and no one is inviting us to abrogate it. The judge was therefore entitled to apply it.

48    The correctness of Lord Sumption’s observations were not debated in the course of the application such that there is no need to reach any conclusion upon that topic. However, why an evidential rule of pragmatism or policy should necessarily apply to a fact-specific and contextual issue is not self-evident from his Lordship’s reasons. The application of the Dingle principle to the statutory obligation to demonstrate serious harm to reputation from the publication complained of is, necessarily, a judicial exegesis on the plain words of the section derived from a rule of evidence. Nevertheless, as such a rule it is only concerned with the way in which the claimant’s reputation at the time of publication is proved. It does not suggest that their reputation is not relevant. That reputation, or lack of it, may be established by other means, including the evidence of those who know the claimant and by what they believed about the claimant.

49    Mr Potter SC also referred to the recent decision of McEvoy J in Hun v Aljazeera International, which concerned two applications to have the serious harm element of the claimant’s defamation actions determined separately. Relevantly, the claimant, Mr To Hun, had brought two separate proceedings for defamation against Aljazeera International (Malaysia) SDN BHD and others, and Nationwide News Pty Ltd and another. In the first proceedings, Mr Hun sued the Aljazeera respondents on the basis of publications in Australia of certain material that, in broad terms, suggested that Mr Hun had been involved in dishonest and illegal conduct in Cambodia. The publications were alleged to have been through material on the company’s website and a documentary which it published on YouTube. In the second proceedings against Nationwide News and another, the respondents were sued on the basis of certain publications in The Australian newspaper and on its website of an article entitled, “Dictator’s Nephew and links to crime”.

50    The Aljazeera respondents brought their application under r 30.01 of the Rules for the same reason that Ms Blackburn pursued the present application in reliance on it, whilst the Nationwide News respondents sought to rely on both r 30.01 and s 10A(5) of the Defamation Act.

51    Mr Hun pleaded that the publication of the documentary caused serious harm to his reputation and his particulars included the extent of the publication, the viewing of it on the internet, the gravity and scandalous nature of the imputations, the ostracism of his children which was said to have occurred following the publication, and the non-renewal of his visa. A similar plea was made in relation to his defamation claim against Nationwide News. In support of their applications that the serious harm issue be determined first, the respondents submitted, in part, that there was substantial material in the public domain about Mr Hun including allegations of his involvement in drug trafficking and money laundering. It was said that, in such circumstances, the impact of the publications of which Mr Hun complained would be de minimis.

52    In relation to the issue of the assessment of serious harm, McEvoy J accepted (at [41] – [42]) that although the focus should be on the damage to reputation, the Court is to look at the totality of the circumstances, including the seriousness of the imputations conveyed and their inherent tendency to cause harm. In this context, he accepted Lord Sumption’s observations in Lachaux to the effect that what had to be shown was actual harm to the claimant’s reputation, but that this could be established from “a combination of the meaning of the words, the extent of publication, and the inherent probabilities”. His Honour also observed that the nature and extent of the publications in question was relevant to whether a separate determination of the issue of serious harm should occur. He opined at [43]:

It may be observed at a level of generality that it is difficult to see how it would ever be appropriate to deal with serious harm as a separate question where there are mass media publications which, at least arguably, convey imputations of the most serious kind.

53    His Honour was here identifying that the separate hearing procedure in r 30.01 of the Rules was generally inappropriate to resolve the issues which would arise where serious harm is alleged to have occurred by reason of mass media publications of serious imputations. The rule contemplates that the trial of separate questions should be confined to reasonably stark cases and not those where there could be substantial contested facts which involve evidence which would need to be repeated at trial, or would require the same deponent to return at trial. The issues which arose before his Honour would not normally justify the adoption of the r 30.01 process.

54    In the scenario before McEvoy J, it was also considered that there was a potentially large viewership of the material complained of and there would likely be disputes about the evidence and what it disclosed. On that basis, his Honour concluded (at [48]) that the inquiry into serious harm would not be straightforward and would extend to the gravity of the imputations, their inherent tendency to cause harm to the claimant’s reputation, the extent of the publications including the extent of their spread on the “grapevine”, the identity of the persons to whom it was spread, the claimant’s personal circumstances, evidence of the actual impact of the publications, and the inherent probabilities involved.

55    In relation to the existence of historical material in the public domain which demonstrated that the claimant had a bad reputation at the time of publication, his Honour held that its admissibility at trial would be a contestable issue and he referred to the Dingle principle and its acceptance in Australia in Australian Broadcasting Corporation v Chau Chak Wing (2019) 271 FCR 632, 663 – 664 [94].

56    Returning to the present case, whether the Coroner’s report and the media reports, or either of them, are admissible of themselves to disprove serious harm is an open question. It is possible, even likely, that the Dingle principle does not necessarily apply to, or apply with the same force to, each of the items of evidence. Although the question was not fully ventilated before this Court, some doubt must exist as to whether, in the circumstances of this case, the Dingle principle would exclude reception of the Coroner’s report. In relation to that principle, it has been held that judicial findings which are in the public domain may be admissible: see Channel Seven Sydney Pty Ltd v Mahommed (2010) 278 ALR 232, 285 [253]. Though the Coroner’s report is not a judicial determination, on the essentially factual question of whether Mr Peros might have suffered serious harm to his reputation, it is not immediately self-evident that the publication of the findings of an organ of State which followed a process to which the rules of natural justice applied, and at which Mr Peros appeared, would be excluded in the same manner as the publications of media outlets are. The reasoning in Channel Seven Sydney Pty Ltd v Mahommed by no means excludes such material and, though the findings might not fit within the concept of “judicial findings”, it is difficult to detect any relevant distinction. Further, on the basis of Mr Peros’ submissions, a finding of a Royal Commission about a claimant concerning the specific incident which is the subject of the alleged defamation would be inadmissible to establish a lack of reputation. For present purposes, it remains an open question which will need to be determined following fulsome submissions.

57    The consequence of the foregoing is that the metes and bounds of the application of the Dingle principle in the present case are unclear. The particular issues in contest are unknown, the evidence which either party will adduce is unknown, and there is doubt about the admissibility of the evidence which may be called. These features militate against the use of the procedure provided by r 30.01 to resolve the question of whether Mr Peros has suffered serious harm.

58    Reference was also made by the parties to the decision in Selkirk v Hocking, where O’Callaghan J granted an application for a separate hearing of the question of serious harm. However, the known circumstances in that case did not involve the abovementioned difficulties. There, the publication in question was to a very limited audience of no more than three persons, and the claimant had admitted in separate proceedings that she had engaged on other occasions in the same dishonest conduct which was the subject of the alleged defamation. In other words, the scope of the issues surrounding the determination of whether the claimant had suffered serious harm was limited and obviously so. It ought to be noted that in the subsequent determination by O’Callaghan J in Selkirk v Hocking (No 2) [2023] FCA 1085 [21], reliance was placed on the observations of the United Kingdom Court of Appeal in Lachaux v Independent Print Ltd [2018] QB 594, 620 [79], where Davis LJ (with whom Sharp and McFarlane LJJ agreed) held:

Whether in any given case the imputation is of sufficient gravity as of itself to connote serious reputational harm (quite apart from the question of consequential or special damage) should therefore normally be capable—where the question of serious harm is in issue and is not appropriately to be left to trial—of being relatively speedily assessed at the meaning hearing. If it is, nevertheless, desired by a defendant to put in evidence at an interlocutory stage designed to show that there is no viable claim of serious harm the summary judgment procedure under CPR Pt 24 is available if the circumstances so justify. There may, for instance, be cases where the evidence shows that no serious reputational harm has been caused or is likely for reasons unrelated to the meaning conveyed by the defamatory statement complained of. One example could, for instance, perhaps be where the defendant considers that he has irrefutable evidence that the number of publishees was very limited, that there has been no grapevine percolation and that there is firm evidence that no one thought any the less of the claimant by reason of the publication. …

59    The difference in the circumstances in that case and the present highlight the difficulties which might be encountered were an attempt to be made to resolve the question of serious harm by use of the r 30.01 procedure.

A simple proof of serious harm

60    Mr Peros submitted that his case as to his having suffered serious harm was strong and that this was a reason for rejecting the holding of a separate hearing to determine the issue. One suspects that the reasoning for this submission is that, if it is concluded that serious harm exists, a full trial will need to occur in any event. Therefore, the stronger his case is on serious harm, the less appropriate it is to have a separate hearing. That reasoning is not without substance and is consistent with the further proposition that if Ms Blackburn has a prima facie strong case that no serious harm has been suffered, that would be a reason to order a separate hearing.

61    In support of the submission that Mr Peros has a strong claim that he has suffered serious harm, Mr Potter SC referred to the recent decision of the New South Wales Court of Appeal in Whittington v Newman [2024] NSWCA 27. There, the Court dealt with a submission that the question of serious harm could not be assessed by reference to the gravity of the imputations alone and that it was necessary to show an “actual impact demonstrated” for serious harm to have been caused. That was substantially rejected and the Court observed the following at [42] – [44]:

Let it be assumed, favourably to Mr Whittington, that the effect of s 10A is to introduce the same principles as apply in England. Even there, it is clear that actual or likely serious harm to reputation may be established by inference, at least where the imputation is grave. For example, in Coker v Nwakanma [2021] EWHC 1011, concerning a WhatsApp message accusing the plaintiff of raping the defendant’s sister which was published only to the defendant’s sister, the serious harm to reputation was resolved at trial as follows:

As to serious harm, I am also satisfied that based on the meaning alone, and without any necessary additional evidence, the test under section 1(1) of the 2013 Act is satisfied. Although I have found that the scope of the publication was limited to the Defendant’s sister, this is one of those cases where the nature of the language allows one to infer serious harm. Assessment of harm to reputation has never been just a ‘numbers game’ and very serious harm to reputation can be caused by publication to a relatively small number of publishees: at [33].

Professor Rolph observes that “[t]he archetypal case in which serious harm might be established purely by inference is where a grave or extreme imputation, such as paedophilia or terrorism, is disseminated through a mass media publication” but adds that “inferring serious harm without additional evidence is not limited to such cases”.

The Court of Appeal has repeatedly stated that serious harm to reputation may be inferred: see for recent examples Banks v Cadwalladr [2023] KB 524; [2023] EWCA Civ 219 at [55] and [67] and Amersi v Leslie [2023] EWCA Civ 1468 at [7].

62    In this respect, the Court followed the observations of Lord Sumption in Lachaux (at 627 [21]), and held at [48]:

… It will be necessary, for a plaintiff suing on a cause of action to which s 10A applies, to establish that the publication has caused or is likely to cause serious harm to the plaintiff’s reputation. That may be established by evidence, or by admission. Further, actual serious harm, or the likelihood of serious harm, to the plaintiff’s reputation, may also be established by inference from other facts, including the nature of the publication and the imputations it contains …

63    Here, the alleged defamatory material, or some of it, imputed that Mr Peros was a murderer. That is a particularly grave and extreme imputation. In circumstances where it was made to the Facebook Group which contained over 6,000 members, it could be inferred, in the absence of contrary evidence, that Mr Peros has suffered serious harm to his reputation. That would certainly be consistent with the approach in Whittington v Newman.

64    However, even if Mr Peros is able to shift the evidential burden by reliance on the gravity of the alleged imputations and the number of potential recipients, that does not foreclose the issue. As has been mentioned, Ms Blackburn may seek to rely on the Coroner’s report and subsequent reporting to dispel the inference that Mr Peros suffered serious harm. If admissible, the Coroner’s report may well be sufficient of itself to do that though, presently, the impact of the contents of that report have not been debated. In addition, it was submitted by Mr McCafferty KC that other evidence, such as the testimony of persons who know Mr Peros, might be called which might prevent the conclusion that serious harm has been suffered.

65    It was also submitted on behalf of Ms Blackburn that Mr Peros would have difficulties establishing serious harm in circumstances where the publications were made within the Facebook Group, which can be described as a “tribute” to Shandee Blackburn. It was suggested that those people had self-selected themselves as members of the group, which is “naturally an echo chamber for people who already have an adverse view” of Mr Peros. Whilst there is some force in that submission from an evidential point of view, it is necessary to keep in mind that whether the persons to whom the material complained of was published generally disliked the claimant is not a proper basis upon which to reject an inference of serious harm: Banks v Cadwalladr [2023] 3 WLR 167, 171 – 172 [7]. As Warby LJ said in that case at 183 [55]:

Where a defendant publishes a specific allegation of a seriously damaging kind in circumstances which would ordinarily lead to an inference of serious reputational harm the fact, if it be so, that those to whom that allegation is published are politically opposed to the claimant or dislike him or have a generally low opinion of him for some other reason is not a proper basis on which to reject that inference. …

66    On the other hand, if those persons had already made up their mind about Mr Peros’ involvement in Shandee Blackburn’s death, it may be that publication to them may not have harmed his reputation at all: see Sivananthan v Vasikaran at 255 [57].

67    Overall, it is difficult to assess the strength of Mr Peros’ claim that he has suffered serious harm to his reputation. On the one hand, the gravity of the imputations and the potential substantial number of recipients might give rise to an inference which satisfies the test. On the other hand, that may be insufficient were the Coroner’s report to be admissible, or if other evidence is available which reflects badly on Mr Peros. It is not possible to conclude whether Mr Peros has a strong case in terms of serious harm, even if he might overcome the initial evidential threshold.

Overlapping evidence and inconsistent findings

68    In the determination of whether the r 30.01 process should be pursued, matters of convenience and the orderly conducting of hearings are important considerations.

69    One obvious issue is the potential for overlapping evidence or the possibility for evidence to be repeated and witnesses being required to give the same evidence twice. Those consequences have regularly provided a bar to the use of the r 30.01 procedure. Conversely, it is unlikely that they would provide any similar hindrance to the early determination of serious harm under s 10A(5) of the Defamation Act, given that the existence of some relevant overlap is expected to occur. Even on a cursory consideration, any assessment of serious harm is likely to involve evidence which is also relevant to the making of the defamatory statements, the imputations which arise, the possible defences, and the assessment of damages. It follows that this element of potential inconvenience is probably to be tolerated more in the process under s 10A(5) than in that provided for under r 30.01.

70    For present purposes, the scope of the separate question and the evidence which may be called is insufficiently clear to permit the conclusion that procedural inconvenience will not arise. Indeed, it is likely that evidence which may be adduced on the separate question hearing will need to be adduced at the trial if it occurs. Much of the evidence will be relevant to several other issues and, especially, to the question of damages. This also militates against the use of the r 30.01 procedure.

71    Where there is a risk of overlapping evidence there is a potential for further difficulties to arise if the judge who has determined the separate question does not also hear the subsequent trial. In Hun v Aljazeera International, McEvoy J made the following observation (at [56]) in relation to this issue:

As the applicant contends, it is likely that any evidence going to serious harm would also be relevant to the assessment of damages. Depending on findings made on the hearing of the separate question it may be that it would become necessary for another Judge of the Court to hear the trial of the proceeding and the further evidence from the same people in relation to damages. Plainly this would be undesirable. The Court would be inconvenienced, as would the relevant witnesses.

72    Of course, in any case where a separate issue is determined ahead of a trial, there is a risk of inconsistent findings were a different judge to hear the trial of the matter. That is a significant issue for the purposes of r 30.01, which has been judicially interpreted to be appropriate only for short, sharp questions of limited scope. Conversely, it is not usually appropriate to use it to determine contested factual issues where the determining judge is required to make credit findings, which will then bar that judge from hearing the matter further. For that reason, where the resolution of the separate question might require the determination of contested facts by cross-examination, an application for a separate hearing pursuant to r 30.01 is generally refused.

73    The same difficulty may not be such a militating consideration under s 10A(5) of the Defamation Act. The legislature has lent in favour of the early determination of whether serious harm has occurred and, it must be assumed, even when some significant resolution of disputed fact is required. Whilst it may follow that a different judge will be required to hear the trial of the matter because a credit finding is involved, that is merely a consequence of the operation of the legislation and that should not preclude the use of the separate hearing procedure where appropriate.

74    In this case, where the nature and scope of the evidence which might be adduced and the degree to which it might be contested at any separate hearing is difficult to identify, the r 30.01 process is inapt.

Other considerations

75    A further indicium of inconvenience raised on behalf of Mr Peros was that the proposed separate hearing on serious harm would not involve any resolution of the meaning of any of the publications or whether the imputations alleged by Mr Peros can be sustained. In this respect, Mr Potter SC made reference to Hun v Aljazeera International, where McEvoy J observed (at [57]) that a court should not readily determine a separate question based on assumed facts, particularly where the parties will be free to dispute those facts at the ultimate trial. In that case, his Honour was not content for the Court to assume that the alleged meanings in the Aljazeera proceedings were conveyed where similar issues were in contest in the Nationwide News proceedings. Mr Potter SC therefore submitted that it would not be appropriate in the present case to regard the pleaded imputations as conveyed and defamatory for the purposes of determining serious harm when Ms Blackburn has reserved the right to contest at trial whether any of the three publications complained of conveyed the alleged imputations or, if they did, that they were defamatory.

76    It was said that s 10A of the Defamation Act is concerned with serious harm flowing from the “defamatory matter”, which is intrinsically tied up with the question of meaning. However, Mr Potter SC seemed to suggest that there may be some question as to whether meaning is distinct from the imputations alleged. Whether that is true or not need not be determined. Even if serious harm is only to be ascertained as flowing from the defamatory matter as distinct from the imputations, the question of serious harm has been identified by the legislature as a threshold issue and, indeed, one to be determined ahead of the trial of the proceedings unless that process is shown to be inadequate to the required degree. On the other hand, if the concepts of defamatory matter, imputation and meaning are to be accorded a rough equivalence, it would follow that the substantial meaning of the publications would be determined at the serious harm hearing and would need not be revisited at the subsequent trial.

77    Alternatively, if it were appropriate to order a separate determination of serious harm, it may be appropriate to follow the lead of O’Callaghan J in Selkirk v Hocking, where his Honour ordered a separate trial of two issues: the first being whether the alleged imputations were conveyed, and the second being whether the claimant suffered serious harm. Nevertheless, it must be noted that in the subsequent determination in the matter in Selkirk v Hocking (No 2), O’Callaghan J reflected (at [93]) that it was perhaps not appropriate to consider the existence of the imputations isolated from the defences which had been raised. The same point is relied upon in this case, and it is noted that one of Ms Blackburn’s defences is contextual truth under s 26 of the Defamation Act. On any separate hearing, that might necessitate a consideration of whether that defence is available in relation to each of the alleged imputations. That would necessarily widen the scope of the separate question procedure which further renders its use less palatable.

Conclusion

78    On the material presently before the Court, the circumstances of this case are not suitable for the determination of a separate question under r 30.01. Whilst the relevant question can be stated in broad terms, the nature and scope of the issues which would arise in such a hearing remain unclear. Though significant savings of costs would occur if the separate question was answered in favour of Ms Blackburn, it is not sufficiently evident that she will succeed. Further, even though the question needs to be decided at some point, it may be that the nature and scope of the issues involved will cause the hearing on the separate question to be substantial in itself, resulting in no savings of costs. Whilst it should not be accepted that the Coroner’s report would necessarily be excluded on the hearing of the separate question under the Dingle principle, there was sufficient doubt about its admissibility to warrant caution about proceeding on the assumption that it is.

79    With the lack of a sufficient degree of certainty about the scope of the separate question and the admissibility of the evidence relevant to it, the potential inconvenience to the overall process renders the r 30.01 process an unsuitable tool for its resolution.

80    In these circumstances, the application must be dismissed.

Associate:    

Dated:    5 March 2024