Selkirk v Wyatt [2024] FCAFC 48

Selkirk v Wyatt [2024] FCAFC 48

The appeal was dismissed because the appellant did not demonstrate appellable error in the primary judge's refusal to permit the late calling of three witnesses, the primary judge was entitled to proceed on the assumption that the pleaded imputations were conveyed when deciding serious harm, the fifth respondent's evidence was lay evidence rather than expert evidence, and the first and third matters relied on by the primary judge showed that the appellant had not established serious harm: her evidence did not connect employment difficulties or reputational consequences to publication of the article, and publication was very limited.

Jurisdiction
Australia
Judgment Date
15 April 2024
Procedural Posture
Defamation Appeal / Appeal From Orders Dismissing a Defamation Proceeding After Determination That the Serious Harm Element Under S 10 a of the Defamation Act 2005 (vic) Was Not Established
Outcome
Appeal dismissed; parties to be heard as to costs.
Legal Topics
['serious Harm Element' 'online Publication' 'preliminary Questions' 'reputation and Prior Bad Reputation' 'late Application to Call Witnesses' 'procedural Fairness' 'case Management Under S 37 M of the Federal Court of Australia Act 1976 (cth)']
['defamation' 'civil Procedure' 'evidence'] ['serious Harm Element' 'online Publication' 'preliminary Questions' 'reputation and Prior Bad Reputation' 'late Application to Call Witnesses' 'procedural Fairness' 'case Management Under S 37 M of the Federal Court of Australia Act 1976 (cth)']

Case Brief

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Procedural Posture

Defamation Appeal / Appeal From Orders Dismissing a Defamation Proceeding After Determination That the Serious Harm Element Under S 10 a of the Defamation Act 2005 (vic) Was Not Established

Legal Issues

  1. 1 ["Whether the primary judge erred in refusing the appellant's late application to call three proposed witnesses by video-link." "Whether the primary judge erred in relying on the appellant's acceptance that she had engaged in acts of deception when assessing serious harm." 'Whether the primary judge erred by not determining whether the article conveyed the pleaded defamatory imputations.' "Whether the fifth respondent's evidence about the MyLocalPages website was expert evidence admitted without procedural fairness." 'Whether the appellant established that publication of the MyLocalPages article caused, or was likely to cause, serious harm to her reputation under s 10A of the Defamation Act 2005 (Vic).']

Ratio Decidendi

The appeal was dismissed because the appellant did not demonstrate appellable error in the primary judge's refusal to permit the late calling of three witnesses, the primary judge was entitled to proceed on the assumption that the pleaded imputations were conveyed when deciding serious harm, the fifth respondent's evidence was lay evidence rather than expert evidence, and the first and third matters relied on by the primary judge showed that the appellant had not established serious harm: her evidence did not connect employment difficulties or reputational consequences to publication of the article, and publication was very limited.

Court Disposition

Appeal dismissed; parties to be heard as to costs.

Orders

  • ['The appeal be dismissed.' 'The parties be heard as to costs.']