Kim Gould, ‘Locating a “Threshold of Seriousness” in the Australian Tests of Defamation’

Abstract
This article addresses the question whether the Australian tests of defamation carry a seriousness threshold, akin to the Thornton threshold found in the English common law tests, notwithstanding differences between the two legal and constitutional environments. The question is important given that the statutory triviality defence has disappointed as the primary mechanism for weeding out ‘unworthy’ defamation claims. If left unchecked, such claims can threaten the proper balance between freedom of speech and the protection of reputation, not to mention unreasonably burden the administration of justice. It will be argued that the threshold is inherent in the Australian tests, but if additional support is required, then recourse may be made to the emerging Bleyer abuse of process jurisdiction, albeit not without some qualification. This article advances the ongoing defamation reform debate in Australia by highlighting the potential availability of a largely neglected filter and, in so doing, uncovers the proper basis for assessing the need for additional or alternate measures for enhancing the law’s response to unworthy defamation claims.

Kim Gould, Locating a “Threshold of Seriousness” in the Australian Tests of Defamation, Sydney Law Review – Volume 39, Number 3, September 2017.

First posted 2017-10-25 13:05:48

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