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DEFAMATION ACT 2005 - SECT 10A
Serious harm element of cause of action for defamation
10A Serious harm element of cause of action for defamation
(1) It is an element (the
"serious harm element" ) of a cause of action for defamation that the
publication of defamatory matter about a person has caused, or is likely to
cause, serious harm to the reputation of the person.
(2) For the purposes of
subsection (1), harm to the reputation of an excluded corporation is not
serious harm unless it has caused, or is likely to cause, the corporation
serious financial loss.
(3) The judicial officer (and not the jury) in
defamation proceedings is to determine whether the serious harm element is
established.
(4) Without limiting subsection (3), the judicial officer may
(whether on the application of a party or on the judicial officer’s own
motion)- (a) determine whether the serious harm element is established at any
time before the trial for the proceedings commences or during the trial, and
(b) make any orders the judicial officer considers appropriate concerning the
determination of the issue (including dismissing the proceedings if satisfied
the element is not established).
(5) If a party applies for the
serious harm element to be determined before the trial for the proceedings
commences, the judicial officer is to determine the issue as soon as
practicable before the trial commences unless satisfied that there are special
circumstances justifying the postponement of the determination to a later
stage of the proceedings (including during the trial).
(6) The matters a
judicial officer may take into account in deciding whether there are special
circumstances for the purposes of subsection (5) include (but are not limited
to) the following- (a) the cost implications for the parties,
(b) the
resources available to the court at the time,
(c) the extent to which
establishing the serious harm element is linked to other issues for
determination during the trial for the proceedings.
(7) Without limiting
subsection (5), the judicial officer may determine the serious harm element is
not established on the pleadings without the need for further evidence if
satisfied that the pleaded particulars are insufficient to establish the
element.
(8) Nothing in this section limits the powers that a judicial
officer may have apart from this section to dismiss defamation proceedings
(whether before or after the trial commences).
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