Defamation and the Federal Court: a Rush to Expand Jurisdiction

Few civil cases have prompted a nationwide media circus quite like Geoffrey Rush’s 2018 defamation claim against Nationwide News. With accusations of inappropriate behaviour against one of Australia’s most recognizable faces and media coverage focusing on the evidence of a reluctant complainant, the case both embodies and confirms the arrival of the #MeToo movement in Australia in many ways.

Meanwhile, in nerdier circles like the Thomson Reuters Cases Team, this case has generated particular interest for playing out in the Federal Court of Australia. The biggest in a recent string of high-profile cases to filter through the Federal Court, the Rush case has further promoted the court as a forum of choice for members of Australia’s cultural and political elite pursuing claims in defamation.

This is notable because the court’s jurisdiction in this area is actually quite novel. The Federal Court existed for more than 35 years before determining its first “pure” defamation case in 2012 and, based on recent statements from the bench, its general civil jurisdiction may be set to expand even further. In this article, we examine the legal basis of the Federal Court’s new appetite for defamation claims, along with some of the perceived advantages of litigating there over State and Territory courts.

Defamation: a stately beast

Much like its American counterpart, Australia’s Constitution was designed to bestow a limited number of specific powers upon the Commonwealth while leaving the States with full powers over all that remains. Defamation falls within the latter category, which is why our defamation laws have traditionally been handled by the States and Territories [1] rather than the Commonwealth.

Nature of Federal Court jurisdiction

The Constitution not only limits the Commonwealth’s legislative powers, but also limits the matters over which its courts may exercise jurisdiction. Unlike the courts of the States, the Federal Court has no inherent jurisdiction established through letters patent.  It is a pure creature of statute, its original jurisdiction generally constrained to matters arising under Commonwealth laws and other distinctly Commonwealth-flavoured matters set out in the Judiciary Act 1903 (Cth), s 39B. Predictably, there is no mention of defamation.

Importantly, however, where a dispute involves some element of Federal jurisdiction, the Federal Court is empowered to hear and determine the whole of that dispute, including aspects arising under State and common law [2]. This is intended to prevent multiple proceedings in different jurisdictions arising from the same matter or controversy. As a result, the Federal Court has historically been happy to hear defamation cases provided that the dispute involved some Commonwealth-based matter or angle, often a claim for misleading or deceptive conduct [3].

Winds of change began to blow in 2006, when his Honour Rares J wrote extrajudicially that the Federal Court might be able to hear “pure” defamation matters – that is, defamation matters involving no additional element – where the implied constitutional freedom of communication on political or government matters is raised, or where there is an interstate or other intra-national publication.

Six years later, in Crosby v Kelly [4], the court showed that its jurisdiction could be even broader than Rares J had contemplated [5].

Foundation case: Crosby

Crosby concerned matters published on Twitter. The respondent, despite being a sitting Member of Parliament, did not plead parliamentary privilege or implied freedom of political communication as a defence, removing more straightforward avenues of enlivening the court’s jurisdiction contemplated by Rares J.

Instead, the Full Court relied on ACT cross-vesting legislation, providing that the Federal Court “has and may exercise original and appellate jurisdiction in respect of ACT matters” [6], along with corresponding Commonwealth cross-vesting legislation authorising the Federal Court to exercise conferred jurisdiction over ACT and Northern Territory matters [7].

Consequently, and as the Full Court has subsequently reconfirmed [8], any matter justiciable in the ACT (or the Northern Territory, based on its equivalent legislation [9]) may now be litigated in the Federal Court. This applies to all non-criminal matters, not just to defamation.

As most matters published online may be viewed in the ACT or Northern Territory, this Full Court decision has opened the door for internet-based defamation proceedings in particular to flow through the Federal Court rather than State and Territory courts.

Why do plaintiffs want to be in the Federal Court?

The Federal Court is primarily attractive to plaintiffs who would prefer their dispute to be heard by a judge alone rather than risk a jury. Although the Federal Court may apply State and territory defamation laws, most of which allow for trial by jury at either party’s election, the Federal Court of Australia Act 1976 (Cth), ss 39 and 40 provide that civil trials in the Federal Court will not involve juries unless “the ends of justice appear to render it expedient to do so”. Section 109 of the Constitution provides that Commonwealth legislation prevails in the event of such inconsistencies [10]. It is, therefore, very difficult for a defendant to access a jury in the Federal Court.

Other perceived advantages include tighter case management by Federal Court judges generally, a shorter time frame between filing and judgment, and a greater reliance on affidavit evidence rather than oral evidence.

Recent developments: Rush and Oliver

A fairly modest trickle of case law has flowed from Crosby, particularly considering the breadth of the principle articulated in that case. Conversely, several cases in the Federal Court that could not be there if not for Crosby have failed to consider whether the threshold requirement from that case – that the relevant matter be justiciable in one of the major Territories – has even been satisfied. Among these is the recent case featuring actor Geoffrey Rush.

Over the course of seven judgments in the Rush proceedings, only New South Wales’ Defamation Act is ever referred to or considered. Although publication in the ACT is established[11], there is no consideration of whether the publication could have been actionable under ACT law, or whether any other basis for invoking the Federal Court’s jurisdiction has arisen. On the face of the judgments, at least, it is not clear how Wigney J was satisfied of the court’s jurisdiction to hear the case.

On the other end of the scale, however, is the recent judgment of his Honour Lee J in Oliver v Nine Network Australia Pty Ltd [12]. That case concerned the broadcast in New South Wales and online of a news story about a tourist acquitted of assault against the captain of the Australian rugby sevens team. The altercation was described in the broadcast as a “coward punch” attack.

Although both parties agreed the court had jurisdiction to hear the matter, Lee J observed that jurisdiction is not created by agreement between parties [13], and proceeded to spend a large part of the judgment contemplating the court’s civil jurisdiction generally.

After reviewing bases raised in Crosby and in the extrajudicial writings of Rares J, his Honour observed that “a federal matter arises if a right, duty or obligation in issue in the matter ‘owes its existence to federal law or depends upon federal law for its enforcement’ [14] including where the right claimed is in respect of a right or property that is the creation of federal law”. Controversially, his Honour went on to say it may be arguable that any claim made against a corporation may be a federal matter, as the corporation owes its existence and powers to the Corporations Act 2001 (Cth) [15].

Ultimately, and despite the plaintiff failing to prove actual publication outside New South Wales, Lee J held that the plaintiff’s bona fide allegation of publication in the ACT was sufficient to enliven the Federal Court’s jurisdiction, even if that allegation was later proven to be incorrect [16].

Where to now for defamation proceedings and the Federal Court?

Notwithstanding all the above, the Supreme Courts of the States and Territories are far from dead in the water where defamation is concerned. Notably, actors Rebel Wilson, Craig McLachlan and cricketer Chris Gayle have all elected to pursue their recent matters in Victoria and New South Wales, with New South Wales often referred to as the defamation capital of the world. Whether the State will hold onto this title in light of these developments remains to be seen.

Meanwhile, the last eight years have seen the Federal Court establish original jurisdiction for itself over all civil matters from the ACT and Northern Territory, and potentially over all claims made against a corporation. One can only wonder what the next few years will bring as the court continues to explore the full reach of its powers.

[1] Notwithstanding this, the States’ defamation laws were largely harmonised in 2005 under the auspices of the Commonwealth Attorney-General.

[2] Re Wakim; Ex parte McNally [1999] HCA 27; (1999) 198 CLR 511 at 584-588 [136]-[147].

[3] See e.g. Australian Ocean Line v Western Australian Newspapers (1983) 47 ALR 497.

[4]  (2012) 203 FCR 451 (‘Crosby’).

[5] Although this is not the first time such matters were considered by the court; see e.g. Ahmed v Harbour Radio Pty Ltd (2009) 180 FCR 313.

[6] Jurisdiction of Courts (Cross-vesting) Act 1993 (ACT), s 4(1).

[7] Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth), s 9(3).

[8] Rana v Google Inc [2017] FCAFC 156; (2017) 254 FCR 1 at 8 [24].

[9] Jurisdiction of Courts (Cross-vesting) Act 1987 (NT), s 4(1).

[10] See e.g. Wing v Fairfax Media Publications Pty Limited [2017] FCAFC 191.

[11] See Rush v Nationwide News Pty Ltd (No 7) [2019] FCA 496 at [695]-[701].

[12] [2019] FCA 583 (‘Oliver’).

[13] Oliver at [9].

[14] Quoting from LNC Industries Limited v BMW (Australia) Limited (1983) 151 CLR 575 at 581.

[15] Oliver at [16].

[16] Oliver at [18].

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