Interlocutory Proceedings

Introduction

Defamation matters are notorious for involving protracted legal proceedings. The reason that defamation law attracts this description is because defamation Court proceedings usually involve one or a number of interlocutory proceedings.  Interlocutory proceedings are Court proceedings before the trial of the matter and in defamation matters, are usually for the following reasons:

1. To apply for an injunction to cease publications of defamatory matter;
2. To strike out parts of the Plaintiff’s Statement of Claim;
3. To obtain further and better particulars;
4. An application to dispense with a jury;
5. To apply for a Summary Judgment; and
6. An application disputing jurisdiction.

According to the common law, which is judge made law and the applicable Court Rules, costs follow the event. This means that the usual order of the Court is that the losing party pays the costs of all other parties. Costs in interlocutory proceedings can be surprisingly high. Solicitor and barrister fees for just one interlocutory application for one party can be in the range of $20-30,000 depending on the seniority of the barrister and the solicitors instructed.

Applications for Injunctions

Applications for injunctions are usually made at the very start of proceedings, after a Concerns Notice has been issued to the Defendant/s. The orders sought are usually for removal of defamatory publications from the internet and to cease making further defamatory publications. Urgent injunctions can also be applied for, for example, to stop the broadcast of a proposed television program.

Injunctions can also be applied for after a trial of the matter, for the permanent restraint of publication of further defamatory material or for the removal of the original publication from the public’s view. For example, this can include removing a news article from the internet. Such injunctions are rare and only granted if there is a likelihood of repeated defamation.

Injunctions in defamation cases are rarely granted and the Court exercises great care in exercising its power such that it only grants injunctions in the clearest of cases¹.

What is Required to be Shown to the Court for the Grant of an Interlocutory Injunction?

The statutory power to grant injunctions in each State or Territory of Australia differs, however, the elements required to be shown to the Court in issuing an injunction remain the same as they are found in the common law. Injunctions are said to be a form of equitable relief as the principles upon which they are granted come from the area of law known as Equity, which is a part of the common law.

In Queensland, the relevant legislation which gives the Court power to grant an injunction is Section 9 of the Civil Proceedings Act 2011 (Qld). In Queensland, you may apply to the Magistrates Court, District Court, or Supreme Court for an injunction. It is likely that the Court in which you applied for an injunction is the Court in which you will file the proceedings for defamation. That is determined by the likely damages award and the monetary jurisdiction of a particular Court. 

In order to satisfy the Court that it should grant an interlocutory injunction, the aggrieved applicant must show the following²:

1. There is a prima facie case, a serious question to be tried, or there is a reasonably arguable case on both the facts and the law;
2. The applicant is likely to suffer harm where damages will not be adequate; and
3. That granting the injunction is favoured in the circumstances.

Other Factors the Court Takes into Account

The Court also considers whether granting an injunction will have the effect of restraining the discussion in the press on matters of public interest or concern³.

The pre-eminent case on the granting of interlocutory injunctions in defamation cases in Australia is the High Court case of Australian Broadcasting Corporation v O’Neill⁴. In that case the ABC proposed to broadcast a documentary film entitled The Fisherman. The documentary it sought to expose and prove true that O’Neill was responsible for the abduction and murder of the Beaumont Children in South Australia in 1966 which is one of Australia’s most notorious, unsolved crimes. O’Neill was a prisoner serving a life sentence in Tasmania for the previous murder of a child and subsequent to being charged for that murder he had confessed to police to murdering a second child. O’Neill applied for an interlocutory injunction from the Supreme Court of Tasmania and succeeded. The ABC appealed to the Supreme Court but failed. The ABC then appealed to the High Court of Australia which removed the injunction such that the program was able to be broadcast. In coming to its decision, the High Court found that the Supreme Court of Tasmania had failed to take proper account of the significance of freedom of speech and the possibility that, if publication occurred and was found to involve actual defamation, only nominal damages might be awarded.

In Chappell v TCN Channel Nine Pty Ltd⁵, Justice Hunt granted an interlocutory injunction as the publication concerned private matters rather than matters of public interest. In that case, Channel Nine was seeking to broadcast a television program concerning allegations of sexual misconduct. The Court also found that the defences proposed by Channel Nine were not likely to succeed.

In Marsden v Amalgamated Television Services Pty Ltd⁶, the aggrieved failed in his application for an injunction restraining the broadcast of a television program in which his sex life was detailed. In their reasoning the Court held that there would be no further injury to him as he had made his sexual preferences and the way in which he satisfied them, public.

Defence Not Likely to Succeed

In Doe-v-Dowling⁷, the Court decided to grant a continuing injunction after an urgent interlocutory injunction had been granted by the Court, as the defences put forward by the Defendant were “hardly viable”. That case involved the publication of various articles on a number of websites in relation to alleged misconduct by the Chief Executive Officer of Channel Seven in Australia, Tim Worner. The articles named women that Worner had allegedly had affairs with. Not only were the applicant women able to obtain an urgent interlocutory injunction, but they also obtained an order supressing their names in the proceedings. The Court also made a suppression order to stop the Defendant from publishing further articles using the defence of fair report of Court proceedings. In this case, the Plaintiffs acknowledged that, where it is clear there is a triable defence, that will ordinarily be fatal to an application for an interlocutory injunction⁸.

Application to Strike Out Parts of the Plaintiff’s Statement of Claim

To commence a Court claim for defamation, a Plaintiff must file two approved Court forms: a Claim and a Statement of Claim. The Claim briefly sets out a summary of the Plaintiff’s claim and the amount in damages that the Plaintiff is seeking. The Statement of Claim provides particulars of the claim and must set out the imputations said to arise from the defamatory matter. Often numerous imputations arise from just one defamatory publication. Defamation matters often involve multiple publications and, therefore, there are numerous imputations.

A Defendant may bring an Application to Strike Out parts of the Statement of Claim.  This is done on the basis that the Defendant is putting forward an argument that the imputations cannot be said to arise from the defamatory material. In other words, that the Plaintiff is not likely to succeed at a trial with such an argument. If the Defendant is successful then they are effectively limiting the issues for determination at a trial.

Application for Further and Better Particulars

An Application for Further and Better Particulars is an application for a Court Order for the Plaintiff to provide further and better particulars of the Statement of Claim or for the Defendant to provide further and better particulars of the Defence. The various State and Territory Court Rules set out how a pleading (a Claim, Statement of Claim, Defence, and/or Reply) must be pleaded, however, a party’s pleading must be sufficiently particularised to clearly set out the party’s position and not take the other party by surprise.

Applications for provision of further and better particulars are not made often because there are Court Rules which provide for how a letter can be sent requesting further and better particulars.

Application to Dispense with a Jury

Pursuant to the national, uniform defamation laws a party can elect to have a jury at the trial of the matter. A party may wish to have a jury rather than a judge sitting alone at the trial of a matter because juries are considered to be more representative of the ordinary, reasonable reader (or listener or viewer) which is the standard for testing whether a publication is defamatory or not.

In Wagner-v-Harbour Radio Pty Ltd⁹, the Defendants elected trial by jury, however, the Plaintiffs made an application to the Supreme Court of Queensland to dispense with the jury, on the basis that the matter was too complex for a jury to consider. They claimed that it involved 32 publications, 98 imputations, and consideration of scientific evidence from hydrologists. Justice Applegarth ordered that the trial go ahead with a judge sitting alone. He considered that the jury would have “an enormous task” and considered that having a jury would add to the cost and length of the trial.

Application for Summary Judgment

Applications for Summary Judgment are rare. What must be shown by the Defendant is that the Plaintiff has no prospects of success with a matter to the extent that the matter need not proceed to a trial. It is not easy to be successful with an Application for Summary Judgment. 

In International Financing & Investment Pty Ltd v Kent¹⁰, Justice Bredmeyer made the following comments in relation to an Application for Summary Judgment by the Defendant:

“…the Court may order summary judgment for a defendant if it is satisfied that the action is frivolous or vexatious or that the defendant has a good defence on the merits or the action should be disposed of summarily etc. I realise that the test is a high one. It is a jurisdiction which should be exercised with great care and should not be exercised unless it is clear that there is no question of the fact or law that needs to be tried. The procedure is reserved for actions which are absolutely hopeless or clearly frivolous and vexatious. The Court will not enter summary judgment against a plaintiff if the action raises for determination an important and difficult question of law or triable disputes about relevant issues of fact. I am satisfied on those high tests that the plaintiff has no case against the first defendant for defamation in terms of the imputations pleaded in para5 of the statement of claim.”

Application Disputing Jurisdiction

Prior to a trial of a matter, a Defendant may dispute the jurisdiction of the Court to hear a matter. This occurred in Crosby-v-Kelly¹¹, in a case in which the Plaintiff had filed its claim in the Supreme Court of the Australian Capital Territory and, pursuant to Section 9(3) of the Jurisdiction of Courts (Cross Vesting) Act 1987 (Cth), had the matter transferred to the Federal Court of Australia. In that case, the defamatory publications were interstate and, therefore, the Federal Court of Australia held that it had jurisdiction to hear the matter.

Costs

At common law and pursuant to the various State and Territory Court Rules, costs follow the event. That means that the losing party pays the costs of the other party. Usually, costs are awarded on a “standard basis” which means that they are calculated in accordance with the applicable Court Scale. The Court Scale costs are less than what solicitors and barristers actually charge so a successful party will not recover all of their costs. Indemnity Costs can be awarded by the Court, which means that the actual fees charged by a party’s solicitor and barrister must be paid, however, this is rare and is usually only ordered if there is some poor conduct on the part of the losing party.

Deciding which jurisdiction to file your defamation matter in is a complex question which should be decided upon following advice from your lawyer.