Some Plaintiffs are choosing to file their defamation proceedings in the Federal Court of Australia rather than a State or Territory Court such as the Magistrates Court, District Court or Supreme Court. In the recent and well publicised defamation case of Australia, actor Geoffrey Rush filed his proceedings in the Federal Court of Australia. In his case, he has an international reputation to maintain as an actor and the defamatory publications were posted to the internet. Where the publication of defamatory matter is widespread and uses the internet, it can often be unclear as to which jurisdiction to file the proceedings in.
Defamation Law in Australia
The national, uniform defamation laws provide, in part, guidance as to which jurisdiction a defamation claim should be filed in. Relevantly, Section 11(2) of the Defamation Act 2005 provides that to determine which jurisdiction to bring a cause of action where there are multiple publications in a number of different jurisdictions, the applicable law would be in the jurisdiction where the harm arose.
Section 11(3) relevantly provides that:
In determining the Australian jurisdictional area with which the harm occasioned by a publication of matter has its closest connection, a court may take into account-
(a) the place at the time of publication where the plaintiff was ordinarily resident or, in the case of a corporation that may assert a cause of action for defamation, the place where the corporation had its principal place of business at that time; and
(b) the extent of publication in each relevant Australian jurisdictional area; and
(c) the extent of harm sustained by the plaintiff in each relevant Australian jurisdictional area; and
(d) any other matter the court considers relevant.
Why File in the Federal Court of Australia?
Filing proceedings in the Federal Court of Australia can be seen to have benefits for Plaintiffs as evidence is given by way of affidavit material, rather than viva voce evidence, otherwise known as, oral evidence, as is given in State or Territory Courts. Giving evidence by way of affidavit material can enable a Plaintiff to consider their evidence and have their lawyer check the affidavit material prior to filing.
One of the disadvantages of having to file evidence by way of affidavit material is that it provides the Defendant with more time to consider the evidence, often months prior to the actual trial. Another disadvantage is that the judge and jury, if present, are not able to appreciate the nuances provided by such things as the demeanour of witnesses giving oral evidence on the witness stand in cross-examination. Judges and juries must consider aspects such as whether they believe the truth of the witness’s statements, whether they are vague or precise in their answers, and the overall, the credibility of the witness. Genuine feelings such as the hurt and embarrassment caused by the publication of defamatory matter can easily be ascertained if, for example, the Plaintiff starts crying when giving evidence in chief in the witness box. Such evidence can be instrumental in defamation cases where the aim is to achieve an award of damages by way of compensation.
As Justice Callinan discussed in Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd1, oral evidence provides genuineness that is lacking in written material that is thought out.
In the Federal Court of Australia, often trials tend to be shorter, and judgements are obtained quickly due to evidence given by way of affidavit material. Jurisdiction of the Federal Court of Australia is set out in the provisions of Section 5 and Section 19 of the Federal Court of Australia Act 1976 (Cth) read in conjunction with Section 39B of the Judiciary Act 1903 (Cth).
Justice Rares of the Federal Court of Australia stated that the Federal Court of Australia has jurisdiction to hear defamation matters where the publication and the defence concerns the constitutional freedom of communication on government and political matters, or the defamatory publications are made interstate or internationally2.
Jury trials in the Federal Court of Australia
Notably, jury trials are rare in the Federal Court of Australia. In defamation cases in most State and Territory Courts, either party to the proceedings can elect to have a trial by jury as per Section 21of the Defamation Act 2005. The first and only time that the Federal Court of Australia has had a trial by a jury was in the defamation case of Ra v Nationwide News Pty Ltd3. However, the matter subsequently settled prior to trial. Justice Rares stated that4: “[o]ne of the great virtues of having a jury try the substantial factual issues in a defamation action is that they represent the very audience to which the defamatory publication was addressed.”
Contact Harris Defamation
You should be advised by your lawyer as to which Court to file your defamation proceedings in. If you want more information about which Court to file your defamation claim in, contact our team at Harris Defamation.
