Cost saver or chimera? Preliminary hearings on serious harm in defamation: Bottrill v Graham (No 2) [2025] NSWDC 221

Preliminary hearings to determine serious harm in defamation proceedings can be of clear benefit in minimising costs in defamation claims. However, defendants must act judiciously in applying for such hearings in all but the most trivial of claims. As illustrated in last year’s decision in Bottrill v Graham (No 2) [2025] NSWDC 221, a failed preliminary hearing will significantly add to, not reduce, the already high costs of defamation proceedings.

Early serious harm determinations

Under section 10A of the Defamation Act 2005 (NSW) (the Act)[1] a plaintiff must establish that a publication “has caused, or is likely to cause, serious harm to the reputation of the person”. The focus is reputational damage, rather than emotional harm and, ordinarily, evidence that the publication has caused, or is likely to cause, serious harm to reputation is required. Mere inference is normally insufficient.[2]

However, the Court may find an inference of serious harm to be sufficient where imputations are of the utmost gravity and/or where publication is extensive.[3] This can be concluded even in the absence of direct evidence of reputational harm. 

The parties can apply for the serious harm element to be determined before the commencement of the trial. If a party does so, the Court must hold such a preliminary hearing, unless there are ‘special circumstances’. In making this determination, the Court will have regard to: (a) the costs (b) the resources available to the court at that time; and (c) the “the extent to which establishing the serious harm element is linked to other issues for determination during the trial for the proceedings”.[4]

It can be seen that the procedural application of s 10A is more complex than the plaintiff merely appearing not to have suffered much damage. This was the case in Bottrill v Graham.

BOTTRILL V GRAHAM (No 2) [2025] NSWDC 221

In three podcasts streamed on X, the three defendants discussed the plaintiff’s alleged commission of paedophilia and murder. The plaintiff was a member of the Ordo Templi Orientis Australia (OTO) who had previously been subjected to similar accusations dismissed by the Victorian Civil and Administrative Tribunal.[5]

The second defendant filed an interlocutory application seeking an early determination of serious harm, on the basis that the plaintiff only had inferential evidence that was insufficient to establish serious harm to his reputation from the alleged defamatory statements in the podcasts.

The reliance on largely inferential evidence is normally insufficient unless the gravity of the imputations and reach of the publication is significant. The Court had regard to the serious nature of the allegations made, which were found to be capable of causing profound reputational damage.[6]

In terms of the reach of the publication, the podcasts had 7,300 views in total from being posted on X, which was not an insignificant audience. The Court also considered the ‘lifelong’ reputational damage caused by persisting online publications in the digital age.[7]

Considering the fact that similar imputations had already been published, the Court found their repetition to a new or broader audience may give rise to serious harm. The defendant’s contention that podcasts were confined to a niche audience that already had a poor opinion of the plaintiff was rejected, as there were listeners that were yet to become “hardened conspiracy theorists”.[8]

The first defendant had discussed their community activities and attempts to insert themselves into the “wider political mainstream”[9] which occurred around the time that these podcasts were published. This circumstance was relevant in finding that the podcast was reported on in the wider community rather than the defendants’ usual audience of “cookers”.

Despite the lack of detailed evidence of harm to reputation caused by the publication, the Court was able to infer that serious harm had been established, given the not insignificant extent of publication and the gravity of the allegations made.

Bottrill was not an isolated example

There are other instances where defendants have unsuccessfully sought to deal with serious harm at an early stage or were unsuccessful on a preliminary hearing on this issue.

In Russell v S3@Raw Pty Ltd (No 3) [2024] FCA 991, the third respondent sought to have the proceedings dismissed on the basis of insufficient particulars of serious harm. The Court refused to dismiss the proceedings and held it would not have ordered a preliminary determination of serious harm were this applied for in the alternative, on the basis that the respondent denied the imputations and pleaded truth to some of them, if they were conveyed. The Court found that the “prospect that truth of the allegations would need to be examined at this stage of the proceedings is a sufficient circumstance to justify postponement”.[10] In other words, it would defeat the purpose of an early determination of serious harm if, to do so, it would also be necessary to determine whether the imputations were conveyed and were true, as was the case in this matter.

In Hun v Aljazeera International (Malaysia) SDN BHD [2023] FCA 1103, the respondents brought an interlocutory application seeking orders for an early determination of serious harm. The Court decided there were relevant factors which made the early determination of serious harm inappropriate in this case; it was noted that the seriousness of the imputations (drug trafficking) would necessarily go to the issue of whether reputational harm was caused,[11] and the Court considered the nature and extent of the publication, which involved mass media publications.[12] Here it was decided that serious harm would be determined at trial. In Hun v Aljazeera International (Malaysia) SDN BHD (No 2) [2023] FCA 1546, the respondents were ordered to pay the applicant’s costs of the interlocutory application on a party and party basis.[13]

CONCLUSION AND TAKEAWAYS

As the Court held in Hun:

Defendants should consider the following in weighing up an early serious harm hearing:

1. Whether there are particulars of actual damage to reputation, which has been caused by the publication. It will be necessary for the plaintiff to prove a causal link between the publication and the serious harm. Apparent inability to do so weighs in favour of applying for a preliminary hearing, which can be an efficient means of removing weak or trivial claims at an early stages;
2. However, even in the absence of particulars or evidence, inferences may be drawn due to the wide reach of the publication. As the Court held in Hun, “it is difficult to see how it would ever be appropriate to deal with serious harm as a separate question where there are mass media publications which, at least arguably, convey imputations of the most serious kind”.[14]
3. In fact, even without evidence or widespread publication, the gravity of the imputations alone may be sufficient to establish serious harm. In theory, serious harm to reputation can be established with an audience of just one person: see Coker v Nwakanma [2021] EWHC 1011, endorsed in Whittington v Newman [2024] NSWCA 27. In Whitington, serious harm was established for matters published to 28,000 people, as the imputations of association with paedophiles and fraud were very grave, heightened by the fact that the plaintiff was a Family Dispute Resolution Practitioner, who reports incidents of child abuse.
4. Defendants should also be wary where there is complexity to the determination; for example, where issues of meaning or truth are intertwined with determination of serious harm. This may constitute a ‘special circumstance’ for the purposes of section 10(6) of the Act.
5. Understand that preliminary serious harm determinations may significantly increase costs exposure for defendants. There may be costs in arguing that no ‘special circumstances’ apply justifying the delay of such a hearing and, if such a hearing proceeds, cost exposure will likely increase, not decrease, if the Defendant is not successful at this hearing.

If you have any questions related to early serious harm determinations, or how defendants can minimise costs generally in defamation proceedings, please reach out to Nathan Buck, Partner at Kennedys, by email: Nathan.Buck@kennedyslaw.com.