A ‘non-colourable assertion’ – litigating “pure” defamation claims in the Federal Court
Ever since the decision of Crosby v Kelly, the Federal Court has become, in many respects, the jurisdiction du jour for defamation litigants throughout Australia. A pathway once seen as somewhat of a novel avenue for litigants to take advantage of the efficiencies of the Federal Court docket system has now become so mainstream that it has spawned a:
- ‘sub-area’ within the Federal Court’s ‘National Practice Areas’;
- dedicated Federal Court Practice Note (DEF-1); and
- regular series in the Gazette of Law and Journalism dedicated to examining and summarising the latest cases, stoushes and controversies from the jurisdiction.
But how did we get here? And how do we go there? This article seeks to both answer these questions and to proffer some views as to why a litigant may, or may not, want to seek to characterise their defamation claim as one which the Federal Court can hear.
The jurisdictional ‘hook’: finding a reader in Canberra or Darwin
In Crosby v Kelly, the Full Court of the Federal Court determined, for the first time, that the Federal Court had jurisdiction to hear ‘pure’ defamation claims (that is, defamation claims that do not also claim relief pursuant to some other cause of action that attracts federal jurisdiction) so long as a claimant asserts that the publication the subject of the proceedings was “published” (in the sense of having been read, or, in the case of an online publication, downloaded and read) in the Australian Capital Territory or Northern Territory.
Once such an assertion is made, s 9(3) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) operates to confer the Federal Court with jurisdiction to hear the claim. This is because s 9(3) operates to confer upon the Federal Court the jurisdiction to hear any matter which the Supreme Court of the Australian Capital Territory or the Supreme Court of the Northern Territory has jurisdiction to hear. In this sense, so long as a claimant could assert, in their Statement of Claim, that the publication the claimant sues upon was published to at least one recipient in the ACT or NT, the ACT (or NT) Supreme Court (and therefore the Federal Court) can hear the matter.
Therefore, the vast majority of ‘pure’ defamation claims brought in the Federal Court will be brought by claimants who assert that the publication sued upon was read by someone in the ACT or NT. While this may be an uncontroversial pleading for a mass-media publication, care must be taken before making such an assertion in a claim based upon limited publication (including a mass-media publication published in only one jurisdiction, or a claim based on emails or text messages) or a social media publication.
Justice Lee had cause to consider this issue in Oliver v Nine Network Australia Pty Ltd  FCA 583 (Oliver). Oliver was a case considering a report on the Channel 9 nightly news, broadcast in Sydney, about the applicant. The report itself was about a criminal case heard in the Downing Centre Local Court, in which the applicant, a British tourist, punched the Australia Rugby Sevens captain James Stannard and was subsequently charged with assault. The applicant was ultimately acquitted of the charge. Although the case (and the report) had garnered considerable media interest in Sydney, there was ultimately no evidence led during the trial that anyone in the ACT or the NT had viewed the report.
Although the respondents did not challenge the Federal Court’s jurisdiction to hear the claim, Lee J was nevertheless required to consider whether the Court indeed had jurisdiction, given that the publication was, in essence, a publication limited to viewers within NSW. Ultimately, Lee J held that, as the original Statement of Claim asserted that the report was published within the ACT and NT through the respondent’s website and social media channels, this assertion meant that the applicant’s claim attracted Federal jurisdiction. Crucially, Lee J also held that, once attached to a matter, the jurisdiction is not lost, even if, as was the case in Oliver, the factual basis upon which the jurisdiction is asserted is either abandoned or not made out at trial: .
In so deciding, however, Lee J did refer to a characterisation by Allsop J (as he then was), writing extra-judicially, of the requirement for assertions of a fact which would trigger the Federal Court’s jurisdiction to hear a matter to be ‘non-colourable’. That is, while the assertion of a fact which would bestow Federal jurisdiction on a matter would lead to that jurisdiction being, in effect, permanently attached to that matter, that attachment is only guaranteed so long as that assertion is ‘non-colourable’ – in the sense of having been properly made. On the other hand, if it were found that the assertion of such a ‘jurisdictional’ fact was ‘colourable’, (being an assertion made for an improper purpose or with a lack of bona fides), it would appear that no such guarantee of Federal jurisdiction can be afforded.
The consequences of this position are clear. If a claimant wishes to have her defamation claim determined by the Federal Court, care must be taken to ensure that any allegation of publication in either the ACT or NT that is to be included in a Statement of Claim is made only after consideration given by the pleader to the bona fides of that assertion. In practice, this should cause no difficulty, given the certification and ethical requirements to which practitioners are subject: see eg r 64, Legal Profession Uniform Conduct (Barristers) Rules 2015, obligation only plead or allege matters which have a proper basis.
However, only where specific attention is given to this position can the drafter of a proposed pleading be sure about whether the Federal Court is the appropriate jurisdiction within which to bring a ‘pure’ defamation claim. For example, where a publication is a social media publication which has been circulated only within a specific community (which may not include anyone who was physically in the ACT or NT when they may have read that publication), there would be an open question as to whether any assertion that the publication was indeed published (in the sense of having been downloaded and read) to anyone within the ACT or NT is, in that context, actually a ‘colourable’ one.
On the other hand, as Lee J noted at , in the case of a true mass-media publication, an assertion of publication in the ACT or NT is unlikely to often be a matter of controversy, particularly where, as is commonly pleaded, an assertion of publication within the ACT or NT is one sought to be made by inference (on the basis that, if publication is sufficiently widespread, it is open to the Court to infer, without specific evidence, that at least someone in either of the Territories read it).
Where in doubt, the State Superior Courts remain open and willing to accept your writ for filing.
No juries, no(t necessarily) discovery
Why, then, would a pure defamation claim be brought in the Federal Court?
Following Wing v Fairfax Media Publications Pty Ltd (2017) 255 FCR 61, the Full Court of the Federal Court confirmed that, because s 39 of the Federal Court of Australia Act 1976 (Cth) (mandating that civil trials will be heard in the Federal Court without juries) is inconsistent with s 21 of the Uniform Defamation Acts (which permit parties to apply for defamation claims to be heard by a jury in all jurisdictions except South Australia, the ACT and NT), s 109 of the Constitution operates to override the Uniform Defamation Acts in relation to defamation claims brought in the Federal Court. Therefore, no defamation disputes to be heard by the Federal Court will be heard by a jury. The availability of jury trials (specifically legislated for in s 21 of the Uniform Defamation Acts) was commonly seen as one of the pillars on which the Uniform Defamation Acts were based.
For many claimants, this may be the single most important reason why they may prefer to bring a claim in the Federal Court rather than in a State Superior Court. Particularly in relation to claimants who may not come to the Court with perfect reputations, there may remain a large risk that a jury, bestowed with the benefit of being able to reach their verdicts without an accompanying written judgment, may make unfavourable findings about such a claimant which infect aspects of a claim which may have otherwise been successful. However, as recent decisions regarding applications for jury trials in Victoria indicate, such considerations do sway in both directions.
One other procedural area in which the Federal Court departs substantially from the State Superior Courts is discovery. In direct contradistinction to the position in the Supreme Court of Victoria, pursuant to Part 10 of Central Practice Note CPN-1, discovery is not granted as of right in the Federal Court. In practice, discovery typically benefits defendants, who may have a right to be given documents from a claimant which add substance to their defences. The scope to shut a defendant out from this often fruitful avenue of intelligence-gathering may be another tactical reason why a claimant would prefer to bring proceedings in the Federal Court.
Serious claims only: the costs consequences of r 40.08 of the Federal Court Rules
Also in Oliver, Lee J considered the costs consequences of a claimant’s decision to bring less significant defamation claims in the Federal Court. Pursuant to r 40.08 of the Federal Court Rules 2011 (Cth), the Federal Court has the power to reduce the costs payable to a successful applicant where that applicant has been awarded a sum of less than $100,000 or where the proceeding “could more suitably have been brought in another court or tribuna”.
In practical terms, r 40.08 should not cause defamation claimants any further consternation than a decision about whether to file a defamation claim in the Magistrates’ Court, County Court or Supreme Court. Serious claims (where damages are likely to exceed the Magistrates’ Court $100,000 cap) should still be brought in one of the Superior Courts. A workable rule to follow might be that, if a claim is serious enough to warrant being commenced in the Supreme Court, it would also (subject to the ability for the claimant to make a non-colourable assertion of a fact that enlivens the Federal Court’s jurisdiction to hear the matter) be sufficiently serious to warrant filing in the Federal Court.
Learnings for everyone, everywhere
As journalist Janek Drevikovsky identified in February, the Federal Court is rapidly becoming a popular place to bring ‘pure’ defamation claims. Notwithstanding its popularity, care should continue to be taken to ensure that any allegation of publication within the ACT or NT, designed to enliven the Federal Court with jurisdiction to hear such a claim, is made with bona fides, and that any such claim is sufficiently serious to warrant commencement in that jurisdiction.
Attention should also be paid to the Federal Court’s Practice Note (DEF-1), regardless of where such a claim may ultimately be brought. Practices encouraged by that Practice Note, particularly those identified in paragraphs 3.3 and 3.4 (in relation to Statements of Claim) and 4.6 and 4.7 (in relation to Defences), should be considered best practice, in relation to any pleadings filed, in any defamation claim, in any Court in Australia.
 (2012) 203 FCR 451;  FCAFC 96.
 It should be noted that in Crosby v Kelly, the Full Federal Court also considered the other primary way in which the Federal Court can seize jurisdiction to hear a ‘pure’ defamation matter: which is that, where the pleadings in a matter raises the ‘implied freedom of political communication’ qualified privilege defence (a defence which, following Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, is bestowed upon publishers in Australia pursuant to the Constitution), the Federal Court would have jurisdiction pursuant to s 39B(1A)(b) of the Judiciary Act 1903 (Cth). Curiously, the respondent in Crosby v Kelly was directed to file a Defence before the Full Court considered the jurisdictional issues. That defence did not raise the Lange qualified privilege defence, and so the Full Court had no vehicle through which to make any determinations about this alternative pathway. In practical terms, this sequence of events also reveals how difficult it would be, practically, to enliven Federal Court jurisdiction through the Lange defence.
Further, the Federal Court (and the Federal Circuit Court, which does not have jurisdiction to hear ‘pure’ defamation claims in the way that the Federal Court does) also has jurisdiction to hear defamation claims where such claims are made in addition to claims which the Federal Court has direct legislative authority to hear, such as, most commonly, claims made pursuant to the Australian Consumer Law.
 Justice Allsop, ‘Federal jurisdiction and the jurisdiction of the Federal Court of Australia in 2002’ (2002) 23 Aust Bar Rev 29
 Gatto v Australian Broadcasting Corporation  VSC 420.
 Supreme Court (General Civil Procedure) Rules 2015 (Vic), Order 29
 In this sense, attention should also be given to r 63.24 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic), which creates costs penalties for a defamation claimant who recovers $50,000 or less in damages.