Defamation in New South Wales – lots of cases and more judges

Supreme Court of New South Wales

London is sometimes, inaccurately, described as the “libel capital of the world” (it is, in fact, a libel backwater).  A more plausible candidate for the international title might be Sydney, capital of the Australian State of New South Wales.  Although the population of New South Wales is just over 7 million it appears to have similar numbers of libel cases to the whole of England and Wales with nearly eight times the population.

In 2010, the Courts of New South Wales have produced judgments in 36 cases in which the main claim was for defamation.   The High Court of Australia has considered an appeal in one New South Wales case. Awards of damages have been made in four cases (five if the High Court case is included).  These include an award of  Aus$268,000 (£160,000) to a surgeon for a “breast job libel” (Haertsch v Channel Nine Pty Ltd [2010] NSWSC 182) and an award totalling Aus$615,000 (£370,000) for multiple libels to two plaintiffs (Megna v Marshall [2010] NSWSC 686). The equivalent figures for England and Wales are 28 judgments in defamation cases and awards of damages in two.  There has been one Supreme Court defamation case.

The publisher of the “Gazette of Law and Journalism”, Richard Ackland , has an article in the Sydney Morning Herald this week entitled “Defamation could be the next gravy train”.  He draws attention to the fact the New South Wales Chief Judge at Common Law, Peter McClellan (who is no fan of jury trials) has removed Judith Gibson (who is a fan) as the judge in charge of the defamation list in the District Court.  He says that

“The jury-friendly judge has been sent packing to be replaced by two defamation list judges, Michael Bozic and Michael Elkaim – neither of whom are experienced in defamation law and practice”

However, Judge Gibson is now going to be one of a seven judge “Defamation Panel”.  At the same time, it appears that (in contrast to the position in England) the smaller, “non-media”, defamation cases are going to be allocated to the lower court:

“McClellan is keen to get as many defamation cases as possible out of the Supreme Court and into the District Court. Cases involving mass media publications are likely to be heard in the higher court, while all others most probably will be dealt with at the other end of town”.

Ackland reports that media lawyers are perplexed by these moves

“What does this ”resourcing” of the District Court defamation jurisdiction tell you? From one judge, suddenly we have nine on defamation watch. Is the District Court gearing up for an onslaught of defamation work? Are poor scribes, and authors of notes on bowling club notice boards, in for a terrible time?”

It appears that Sydney will continue to challenge for the position as the “international libel capital” for some time.