Although the Federal Court's new practice note envisages a process very similar to that in State Courts, there are some small but potentially useful differences.
The Federal Court has responded to the growth in defamation cases by creating its first practice note specifically on how it will manage future defamation actions. Defamation Practice Note (DEF-1) contains key details how it will manage defamation claims including how to start them, what to expect at case management hearings, and a key reminder on costs. Whether you are pursuing or defending a defamation claim, you need to understand and comply with these new procedures as early as possible.
Wait, which Court?
All States and Territories have Defamations Acts which are now substantially uniform, meaning that you can start defamations actions in an appropriate State and Territory Court. However, the Federal Court can also deal with defamation disputes within federal jurisdiction, including defamation cases that may arise under a law of the Parliament.
In 2012, the Federal Court confirmed its jurisdiction to hear a wide range of defamation disputes, particularly those involving online publications, in Crosby v Kelly (2012) 203 FCR 451. That begun its rise as an umpire of major and high-profile defamation cases, such as Wing v Fairfax Media Publications Pty Ltd (2017) FCR 6, Rana v Google Inc [2017] FCAFC 156, Rush v Nationwide News Pty Ltd (No 7) [2019] FCA 496 and David v Sarah Hanson-Young v Leyonhjelm (No 4) [2019] FCA 1981.
In many cases, you may have a choice whether to sue for defamation in State or Federal Court but there may be forensic advantages in some cases to commencing proceedings in the Federal Court, such as an ability to seek preliminary discovery which might not be expressly provided for by a State Court or because it provides the plaintiff with the best prospects of a judge only trial. Additionally, the Federal Court's docket system enables litigants to keep the same judge throughout the proceeding, and (we think) more likely to get one with specialist knowledge of defamation.
Making Defamation Practice Note (DEF-1) work for you
So, will is increase the growth in the Federal Court's defamation load?
The Federal Court will continue to provide an important forum for defamation disputes. Applicants and Respondents alike should take heed of the latest Federal Court guidance to ensure that the progress of case conferences go smoothly.
Of course not all defamation claims are filed in the Federal Court and processes in State courts can be drastically different throughout the country. A potential claimant should take specific advice before commencing proceedings or risk losing key strategic advantages. Even where proceedings are being defended and a party might not have a choice of Court, it is still worth seeking out a lawyer who has extensive specialist defamation experience in the relevant jurisdiction and who can bring a comprehensive understanding of the Court rules in that jurisdiction alongside the nuances of defamation law to guide the path to an outcome.
