New South Wales Consolidated Acts

DEFAMATION ACT 2005 - SECT 10A

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).