Introduction
With the public’s increasing use of electronic publication through social media sites such as Facebook, YouTube, Twitter and Instagram, it can be confusing as to which jurisdiction to commence a defamation claim in. What if you have an international reputation to maintain in your field of vocation or profession? What if you are a celebrity? What happens if there has been mass media coverage by an international media outlet that has caused people in overseas countries to read a defamatory publication about you? Whilst the question of which jurisdiction to sue in is obviously of great concern for international celebrities, research has shown that most claims are brought by regular people1. This article seeks to inform the reader about these jurisdictional matters, with a focus on Australian defamation proceedings.
National Uniform Defamation Laws
Defamation law has been evolving since ancient times, even since before the publication of the Bible in which it describes God giving Moses a decree that there be no false witness against one’s neighbour. There have been numerous legislative reforms in Australia since settlement as well as attempts by various States to codify the law on defamation. With ever changing technology, more international travel, and communication arising from diversity of cultures in different countries, defamation law has had to adapt.
In light of these changes to society, in July 2004 the Commonwealth Government of Australia proposed a national defamation law bill. The draft national defamation law bill was circulated to the Attorneys-General of each State and Territory of Australia. Ultimately, it was decided amongst the Attorneys-General that Commonwealth legislation may be subject to a constitutional challenge as Australia’s Constitution does not enshrine the right to freedom of speech nor the protection of reputation, unlike in the United States of America where they have a Bill of Rights and the First Amendment to the Constitution provides the right of free speech.
Following the agreement of the Attorneys-General of each State and Territory of Australia, national, uniform defamation laws were introduced in the form of the Defamation Act 2005 taking effect in most jurisdictions on 1 January 2006, with the Australian Capital Territory (ACT) and the Northern Territory introducing the model uniform laws slightly later. The ACT introduced the model national, uniform defamation laws into its Civil Law (Wrongs) Act 2002 (ACT) by way of amendment to that Act.
The intention of the States and Territories of Australia was to have the same or substantially the same defamation laws throughout the nation.
Jurisdiction of the Federal Court of Australia
A question which has arisen amongst lawyers and particularly defamation law practitioners is whether the Federal Court of Australia should have jurisdiction in defamation matters and whether that was contemplated by the legislators when they wrote the national, uniform defamation laws.
The Federal Court of Australia has already held that there is an inconsistency between the Federal Court of Australia Act 1976 (Cth) and the Defamation Act 2005 (NSW) in respect of whether a defamation matter should be heard by a judge sitting alone or a judge with a jury2, in the context that jury trials are rarely ordered in the Federal Court. However, the Council of Attorneys-General has not raised the question of whether the Federal Court of Australia should have jurisdiction in defamation matters in its discussion paper “Review of Model Defamation Provisions” issued in February 2019.
Justice Rares of the Federal Court of Australia gave a speech at a media law conference in 20063 stating that in his personal view the Federal Court of Australia has jurisdiction to hear ‘pure’ defamation matters. He also stated that “[m]ass media publications may be actionable in the Federal Court because the Uniform Acts contain a choice of law provision in section 11…”.
The Federal Court of Australia has been silent about whether it has jurisdiction to hear defamation matters and in response to their silence on the matter, lawyers have continued to file defamation matters in the Federal Court and the Federal Court has continued to hear and determine them. One notable case involves the international actor, Geoffrey Rush. Unfortunately, in the final judgment of his case, in which he was successful in obtaining a multi-million-dollar award of damages, the Court did not discuss jurisdiction.
In Crosby v Kelly4, the Plaintiff in a defamation case effectively used a ‘back-door’ method of having his case heard in the Federal Court by relying on the ability to transfer proceedings from the ACT Supreme Court to the Federal Court of Australia under Section 9(3) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth).
In Ra v Nationwide News Pty Ltd5, a Sydney brothel owner was suing for defamation. She argued that her role as an employer was brought into question by the alleged defamatory matter and thus, it was a Federal matter over which the Court had jurisdiction, in her claims that the Trade Practices Act 1974 (Cth) had been breached by the publisher.
Multiple Publication Rule, Choice of Law and Jurisdiction
The multiple publication rule is a common law rule which says that there is a separate cause of action for each instance of publication of defamatory matter. Prior to the introduction of the national, uniform defamation laws, each individual imputation arising from the publication of defamatory matter was a separate cause of action. Thus, if the recipients of the publications in these two situations were in different jurisdictions, a question of which jurisdiction to sue in would arise.
The common law also provides that the relevant jurisdiction to sue in is the place of the commission of the tort6. That is also known in Latin as lex loci delicti.
Justice Kirby of the High Court of Australia has stated that choice of law and jurisdiction are separate issues and that the High Court has repeatedly made this distinction7. An Australian Court can apply foreign law, or a State Court can apply the law of a different State. Jurisdiction refers to the authority of the Court to decide the matter and choice of law refers to which law the Court applies when making its decision.
The situation with respect to the multiple publication rule, choice of law and jurisdiction, has been altered by the Defamation Act 2005.
Section 8 provides that a Plaintiff has a single cause of action, regardless of the number of defamatory imputations that arise from the matter.
Section 11 provides for choice of law in defamation matters. It provides that the place of publication determines the substantive law to be applied. It also provides that if there are multiple publications of defamatory matter the law applicable will be that with which the harm caused by the publication has its closest connection. Section 11(3) provides that in determining jurisdiction the Court may take into account10:
- the place of residence of the Plaintiff;
- the extent of publication in each jurisdictional area;
- the extent of harm sustained by the Plaintiff in each jurisdictional area; and
- any other matter the Court considers relevant.
In Dow Jones & Company Inc v Gutnick8, a Victorian businessman was suing a Defendant who operated a website on which it published a business magazine called “Barron’s Online” and the “Wall Street Journal”. The Plaintiff, Gutnick, resided in Victoria, Australia, and argued that his reputation in that jurisdictional area had been harmed. The Defendant argued that the alleged defamatory material had been published in the United States of America and that was the appropriate forum of the defamation claim. The Court held that the correct jurisdiction was the one where the harm had been done and that the commission of the tort was where the defamatory material had been downloaded and read, not where it had been published. Justice Callinan stated the following9: “The most important event so far as defamation is concerned is the infliction of damage, and that occurs at the place (or the places) where the defamation is comprehended.”
Jurisdiction of State and Territory Courts
Although some Civil and Administrative Tribunals may hear defamation matters, those tribunals are designed for self-represented litigants where the damages claim a small amount. Therefore, the information below does not cover Civil and Administrative Tribunals.
Queensland
Magistrates Court – where the damages sought are up to $150,000.00
District Court – where the damages sought are between $150,000.00 and $750,000.00
Supreme Court – where the damages sought are above $750,000.00
New South Wales
Local Court – where the damages sought are up to $100,000.00
District Court – where the damages sought are between $100,000.00 and $750,000.00
Supreme Court– where the damages sought are above $750,000.00
Victoria
Magistrates Court– where the damages sought are up to $100,000.00
County Court- where the damages sought are between $100,000.00 and $200,000.00
Supreme Court – where the damages sought are over $200,000.00
Australian Capital Territory
Magistrates Court – where the damages sought are up to $250,000.00
Supreme Court – where the damages sought are above $250,000.00
Tasmania
Magistrates Court – up to and including $5,000 (minor civil claim), from $5,001 to $50,000 (civil claim), more than $50,000 if all parties agree.
Supreme Court – where the damages sought are above $50,000.00
South Australia
Magistrates Court – where the damages sought are up to $100,000.00
District Court – where the damages sought are above $100,000.00 (Costs cannot be recovered unless the amount awarded in damages is more than $25,000.00)
Supreme Court– where the damages sought are above $100,000.00 (Costs cannot be recovered unless the amount awarded in damages is more than $50,000.00)
Western Australia
Magistrates Court – where the damages sought are up to $75,000.00
District Court – where the damages sought are above $75,000.00 and below $750,000.00
Supreme Court– where the damages sought are above $750,000.00
Northern Territory
Local Court– where the damages sought are up to $100,000.00
Supreme Court– where the damages sought are over $100,000.00
Conclusion
Whilst the issue of which jurisdiction defamation proceedings can be brought in can seem complex to the lay person, this article has sought to simplify the answer to that question. Plaintiffs should seek and take the advice of their lawyer in deciding which jurisdiction to sue in or whether to commence court proceedings at all. There are a number of different alternative dispute resolution methods that can be used to resolve defamation claims, thus avoiding the question of which jurisdiction to commence Court proceedings in. However, it is without a doubt that more reform in the area of defamation law will be seen in the future, particularly in light of the fact that Section 49 of the Defamation Act 2005 (NSW) includes a provision which requires the relevant Minister to review the legislation five (5) years from the date of assent of the Act and the New South Wales Attorney-General is leading the Council of Attorneys-General in relation to reform of Australian defamation law. More legislative reform in the area of defamation law is highly likely in Australia as the history of defamation law reform has shown that it is an ever-evolving area.
