Preliminary trials of defamation's serious harm threshold: a seriously different approach to separate trials

In fulfilling their role of resolving cases justly and expeditiously, courts can order the separate trial of issues. However, courts have long been reluctant to do so, consistently noting the risks involved in this procedure. For this reason, the general judicial approach towards separate trials is one of caution, with a high bar needing to be met before one is ordered. Now, the recently introduced serious harm threshold in Australian defamation law significantly departs from this general approach. It imposes a presumption that serious harm, as a new element in the defamation cause of action, will be determined in a separate hearing prior to the full trial. This reform aims to promote the cost-effective and resource- and time-efficient resolution of defamation disputes. However, as with any separate trial, preliminary serious harm hearings carry risks which could undermine the purpose of the reform. This article seeks to elucidate both the benefits and risks involved in separate serious harm trials. It argues that the responsibility for ensuring that the reform’s goals are achieved lies with judicial officers to effectively exercise their discretionary powers to decide whether a separate trial should be granted, refused, or ordered. In doing so, it will distil important considerations that courts must bear in mind when deciding whether a separate serious harm trial is appropriate.