Disgruntled litigants dissatisfied with their matter in the Family Court are now suing the opposing party in the State Courts for defamation arising out of the Family Court proceedings. The Plaintiffs in these matters quite often appear in person (with attendant costs for the other party who is now forced to defend these proceedings, and get legal representation) with no regard whatsoever to the Uniform Civil Procedure Rules or the provisions of the Defamation Act 2005 (Qld) and the defences available under it.

In a recent matter before the court in these circumstances, both the claim and statement of claim were struck out.

Pursuant to section 121(1) of the Family Law Act 1975 (Cth), we are prevented from identifying a party to Family Court proceedings and will, therefore, not provide sufficient details that the parties may be identified, but only enough information so that the principles may be clear.

The parties at the time had Family Court proceedings active and an order was made by a judge that both parties be interviewed for the purpose of a family report.

The Plaintiff thereafter sued the Defendant in a State Court, claiming compensation for defamation regarding the allegations made by the Defendant to the family report writer for the Family Court proceedings. A defence was filed stating that the statements were made on an occasion of absolute privilege in the course of proceedings in an Australian court. An application was lodged by the Defendant for the claim to be struck out as an abusive process with alternate remedies.

Section 27(2)(b) of the Defamation Act 2005 (Qld) provides:

“(1) It is a defence to the publication of defamatory matter if the defendant proves that it was published on an occasion of absolute privilege.

(2) Without limiting subsection (1), matter is published on an occasion of absolute privilege if … :

(b) the matter is published in the course of the proceedings of an Australian court or Australian tribunal, including (but not limited to)-

  1. the publication of matter in any document filed or lodged with, or otherwise submitted to, the court or tribunal (including any originating process), and
  2. the publication of matter while giving evidence before the court or tribunal, and
  3. the publication of matter in any judgment, order or other determination of the court or tribunal …”

Other States have similar legislation.

It was held by the Court that the statements were all subject to a claim of absolute privilege and that the Plaintiff therefore had no real prospects of succeeding on the claim. This simply means that the allegations could not be the subject of later defamation proceedings although it may be defamatory. On this basis, the claim was struck out and costs awarded against the Plaintiff.

In conclusion

Prospective litigants should, therefore, be careful that they do not take their differences to the State Courts when they do not have proper grounds and may even on occasion be penalised with indemnity costs if they are not careful.

The principles were set out as follows by the High Court in Mann v O’Neill (1997) 191 CLR 204, 211 to 212:

“It is well settled that absolute privilege attaches to all statements made in the course of judicial proceedings, whether made by parties, witnesses, legal representatives, members of the jury or by the judge. It extends to oral statements and to statements in originating process, in pleadings or in other documents produced in evidence or filed in the proceedings. It is said that it extends to any document published on an “occasion properly incidental [to judicial proceedings], and necessary for [them].”

The court also went on to say further:

“It is also settled law that absolute privilege attaches to statements made in the course of quasi–judicial proceedings, ie proceedings of tribunals recognised by law in which act “in a manner similar to that in which a court of justice acts.” Various considerations are relevant to the question whether proceedings are quasi–judicial. However, the overriding consideration is “whether there will emerge from the proceedings a determination that truth and justice of which is a matter of public concern.” The privilege extends to members of tribunals and to “advocates, litigants and witnesses and its scope is no less extensive in other respects than in the case of statements made in the course of judicial proceedings.”

One could seriously hope that this 'trend' will be stamped out by the courts, especially where the Uniform Civil Procedure Rules have not been complied with and the claim not properly particularised.