Defamation (Model Provisions) and Other Legislation Amendment Bill 2021 (Qld)

An Act to amend the Defamation Act 2005, the Heavy Vehicle National Law and Other Legislation Amendment Act 2019 and the Limitation of Actions Act 1974 for particular purposes The Parliament of Queensland enacts—

Part 1 Preliminary

1 Short title This Act may be cited as the Defamation (Model Provisions) and Other Legislation Amendment Act 2021.

2 Commencement This Act, other than part 3, commences on 1 July 2021.

Part 2 Amendment of Defamation Act 2005

3 Act amended This part amends the Defamation Act 2005.

4 Amendment of s 9 (Certain corporations do not have cause of action for defamation) (1) Section 9(2)(b)— omit, insert— (b) it has fewer than 10 employees and is not an associated entity of another corporation; (2) Section 9(4)— omit. (3) Section 9(6)— insert— employee, in relation to a corporation, includes any individual (whether or not an independent contractor) who is— (a) engaged in the day to day operations of the corporation other than as a volunteer; and (b) subject to the control and direction of the corporation.

5 Amendment of s 10 (No cause of action for defamation of, or against, deceased persons) Section 10— insert— (2) Subsection (1) does not prevent a court, if it considers it in the interests of justice to do so, from determining the question of costs for proceedings discontinued because of the subsection.

6 Insertion of new s 10A After section 10— insert—

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).