ByLawyers News and Updates

Defamation – VIC

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The long-awaited second stage of the uniform defamation law reform has effect in Victoria from 11 September.

These reforms have already commenced on 1 July in the ACT and NSW. Other states are expected to follow in due course.

The 2024 amendments include:

Exemption from liability in defamation as publishers for digital intermediaries

The legislation now provides an exemption from liability in defamation for digital intermediaries providing caching, conduit, or storage services, provided the intermediary did not:

  1. initiate the steps required to publish the matter;
  2. select any of the recipients of the matter;
  3. encourage the poster of the defamatory material to publish the matter;
  4. edit the content of the matter whether before or after it was published; or
  5. promote the matter whether before or after it was published.

The section applies regardless of whether the digital intermediary knew or ought reasonably to have known the digital material was defamatory.

Exemption from liability under defamation law for search engine providers

Like digital intermediaries, search engine providers are not liable for defamatory material comprising search results if the provider’s role is limited to providing an automated process for the search engine user to generate search results or hyperlinks, provided the search results or hyperlinks are not promoted or prioritised by the search engine provider receiving a payment or another benefit by or on behalf of a third party.

The provision applies regardless of whether the search engine provider knew or ought reasonably to have known the digital matter was defamatory.

Early determination of digital intermediary exemptions

The court must determine whether a defendant has a digital intermediary exemption and whether the exemption is established as soon as practicable before the trial commences unless there are good reasons to postpone the determination. In doing so, the court can make any orders it considers appropriate, including dismissing the proceedings, if satisfied the digital intermediary exemption is established.

Content of offer to make amends

The digital intermediary exemptions from liability as publishers include changes to offers to make amends, in that an offer in the case of digital matter may include an offer to prevent access to the defamatory material, instead of, or in addition to, other offers to make amends.

Orders for preliminary discovery in defamation cases about posters of digital matter

Defamation litigants can take advantage of pre-litigation or preliminary discovery to assist in identifying the poster of defamatory material or the physical or digital address of the poster, to allow concerns notices and court proceedings to be served.

Defence for publications involving digital intermediaries

This new defence is available if a digital intermediary has provided an accessible complaints mechanism for an aggrieved person to use and they use it to make a complaint.

The digital intermediary must have taken reasonable steps to prevent access to the defamatory material, either before the complaint was received, or within seven days of the complaint .

The complaints mechanism must be an easily accessible address, location or other mechanism available for the plaintiff to use to complain to the defendant about the publication of the digital matter concerned.

Defence available to content moderators

The defence of digital intermediary is available to defendants who moderate content by taking steps to detect or identify and remove, block, disable, or otherwise prevent access to content that may be defamatory, or that breaches the terms or conditions of the online service.

Orders against non-party digital intermediaries

If a plaintiff secures judgement, or an injunction, against a defendant in proceedings the court may order a non-party digital intermediary to take access prevention steps, or other steps the court considers necessary to prevent or limit the continued publication or re-publication of the matter complained of.

Such an order may require access prevention steps to be taken in relation to all or only some of the users of an online service.

The new section does not limit other powers of the court to grant injunctions or make other orders for access prevention.

Service of notices and other documents

The amendments expand the existing options for serving notices and documents to include messaging or other electronic communication to an electronic address or location indicated by the recipient.

Extension of the defence of absolute privilege under uniform defamation law

Concerns were raised in the Stage 2 review of the uniform defamation law about liability in defamation for someone reporting a person to the police for suspected wrongdoing, and then being sued by that person in defamation if the police dismiss the complaint for lack of evidence or absence of culpability on the part of the person reported.

These concerns were addressed by amending the absolute defence provisions of the uniform defamation law to provide that defamatory matter published to a police officer while the officer is acting in an official capacity is covered by the defence of absolute privilege.

Publication updates

The By Lawyers Defamation and Protecting Reputation publication has been updated accordingly.

 

General Protections List – FED

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A National General Protections List operates in the Federal Court of Australia from 1 September 2024. The list will run as a pilot project for an initial period of eight months.

The adoption of the National General Protections List follows the successful conduct of the Adverse Action List before registrars in the Victorian registry of the Federal Court since 2019.

The Fair Work Act’s general protections provisions in Part 3-1 of Chapter 3 cover:

The purpose of the new list is to allow registrars to conduct initial case management of proceedings filed under the general protections provisions in Part 3-1 of Chapter 3 of the Fair Work Act 2009 (Cth) with the intention of:

  • promoting consistency and efficiency in the case management of general protections proceedings;
  • ensuring that general protections proceedings are heard in the appropriate court, having regard to any points of principle and the quantum of claims;
  • ensuring that the resources of the court in relation to mediation are targeted towards the most appropriate proceedings; and
  • ensuring early and appropriate case management and timetabling of any interlocutory or procedural matters before the proceeding is allocated to a Docket Judge.

The first list will take place on 4 October 2024. It will be conducted virtually.

A registrar will conduct the list every Friday, with staggered start times to accommodate time differences between various states and territories. After initial case management or after mediation with a registrar, cases will be allocated to a Docket Judge.

On filing, the registry will list new general protections proceedings for a first case management hearing within 4-6 weeks of the application being accepted for filing. In advance of each list, parties will receive correspondence from the court with relevant listing information.

The commentary on General protections claims in the By Lawyers Employment Law guide has been updated accordingly.

Publication reviews – All states

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Publication reviews are part of By Lawyers’ commitment to quality and keeping our subscribers up to date with changes in practice and procedure.

Our publication reviews target commentaries, or precedents, or both. The purpose of the reviews is to update and ensure consistency in styles, formatting, hyperlinks, naming protocols and, if necessary, the substantive content.

The results of a review can include new, amended, or deleted commentary, commentary headings, and precedents.

Sometimes the title or location of a precedent will be altered.

Occasionally there are amendments to the sequence of folders, commentary headings, precedents, and hyperlinks on the matter plan.

Any changes applied will be reflected in an amended matter plan.

Practitioners using our guides will not always realise when a publication review has been conducted. However, sometimes the resulting changes will be apparent, and amendments or enhancements might take a moment to get used to.

Lately, our in-house team, in conjunction with our authors in the various jurisdictions around Australia, have been focussed on reviewing the Full Commentaries in the following publications:

Some of these are still a work in progress, so keep an eye out for any changes.

We love to help our subscribers, and we love feedback. If you have any questions or concerns about changes arising from a publication review, do not hesitate to let us know. We are always happy to discuss any change we have made, or consider others. If you can’t find a section of commentary or a precedent, send us an email and we will point you in the right direction.

And, if you like the changes we have made, please take a moment to let us know so we can continue helping you to enjoy practice more.

Our email is: askus@bylawyers.com.au

Defamation law – FED

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The long-awaited second stage of the uniform defamation law reform has effect in NSW and ACT from 1 July 2024 with all states except South Australia to follow.

The 2024 amendments include:

Exemption from liability as publishers for digital intermediaries

Division 2A of the various state Defamation Acts now provides an exemption from liability in defamation for digital intermediaries providing caching, conduit, or storage services, provided the intermediary did not:

  1. initiate the steps required to publish the matter;
  2. select any of the recipients of the matter;
  3. encourage the poster of the defamatory material to publish the matter;
  4. edit the content of the matter whether before or after it was published; or
  5. promote the matter whether before or after it was published.

The section applies regardless of whether the digital intermediary knew or ought reasonably to have known the digital material was defamatory.

Exemption from liability under defamation law for search engine providers

Like digital intermediaries, search engine providers are not liable for defamatory material comprising search results if the provider’s role is limited to providing an automated process for the search engine user to generate search results or hyperlinks, provided the search results or hyperlinks are not promoted or prioritised by the search engine provider receiving a payment or another benefit by or on behalf of a third party.

The provision applies regardless of whether the search engine provider knew or ought reasonably to have known the digital matter was defamatory.

Early determination of digital intermediary exemptions

The court must determine whether a defendant has a digital intermediary exemption and whether the exemption is established as soon as practicable before the trial commences unless there are good reasons to postpone the determination. In doing so, the court can make any orders it considers appropriate, including dismissing the proceedings, if satisfied the digital intermediary exemption is established.

Content of offer to make amends

The digital intermediary exemptions from liability as publishers include changes to offers to make amends, in that an offer in the case of digital matter may include an offer to prevent access to the defamatory material, instead of, or in addition to, other offers to make amends.

Orders for preliminary discovery about posters of digital matter

Defamation litigants can take advantage of pre-litigation or preliminary discovery to assist in identifying the poster of defamatory material or the physical or digital address of the poster, to allow concerns notices and court proceedings to be served.

Defence for publications involving digital intermediaries

This new defence is available if a digital intermediary has provided an accessible complaints mechanism for an aggrieved person to use and they use it to make a complaint.

The digital intermediary must have taken reasonable steps to prevent access to the defamatory material, either before the complaint was received, or within seven days of the complaint .

The complaints mechanism must be an easily accessible address, location or other mechanism available for the plaintiff to use to complain to the defendant about the publication of the digital matter concerned.

Defence available to content moderators

The defence of digital intermediary is available to defendants who moderate content by taking steps to detect or identify and remove, block, disable, or otherwise prevent access to content that may be defamatory, or that breaches the terms or conditions of the online service.

Orders against non-party digital intermediaries

If a plaintiff secures judgement, or an injunction, against a defendant in proceedings the court may order a non-party digital intermediary to take access prevention steps, or other steps the court considers necessary to prevent or limit the continued publication or re-publication of the matter complained of.

Such an order may require access prevention steps to be taken in relation to all or only some of the users of an online service.

The new section does not limit other powers of the court to grant injunctions or make other orders for access prevention.

Service of notices and other documents

The amendments expand the existing options for serving notices and documents to include messaging or other electronic communication to an electronic address or location indicated by the recipient.

Extension of the defence of absolute privilege

Concerns were raised in the Stage 2 review of the uniform defamation law about liability in defamation for someone reporting a person to the police for suspected wrongdoing, and then being sued by that person in defamation if the police dismiss the complaint for lack of evidence or absence of culpability on the part of the person reported.

These concerns were addressed by amending the absolute defence provisions of the uniform defamation law to provide that defamatory matter published to a police officer while the officer is acting in an official capacity is covered by the defence of absolute privilege.

Publication updates

The By Lawyers Defamation and Protecting Reputation publication has been updated accordingly.

Further updates to this publication for recent defamation cases are also imminent.

 

Pathway – NSW

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The launch of the NSW Personal Injury Commission’s Pathway portal for workers compensation claims brings the process for workers compensation disputes into line with that used for motor accident claims since June 2023.

Workers compensation claims go first to the insurer, then to internal review by the insurer, and then to the Personal Injury Commission (PIC), then if necessary to court.

From 12 June 2024 all applications to the Personal Injury Commission must be lodged via Pathway.

The Pathway portal will digitise the claims process, enabling practitioners to view documents electronically.

Service will also occur via the Pathway portal. Service of applications by the applicant on the respondent will no longer be necessary. Applications will be served by the Commission sending an email to the respondent, with an invitation for them to view the claim online. Respondents will receive a reply request in the same way.

The By Lawyers Workers Compensation (NSW) guide has been updated to reflect this new process.

The Personal Injury Commission website provides a link to Pathway and information for practitioners.

The Pathway portal is used to lodge workers compensation disputes involving:

  • weekly benefits, if the period is more than 12 weeks;
  • medical expenses;
  • domestic assistance;
  • compensation for property damage;
  • lump sum compensation when liability is disputed;
  • suitable duties following a work injury;
  • compensation for the death of a worker;
  • lump sum compensation when the degree of permanent impairment is disputed;
  • threshold for work injury damages when the degree of whole person impairment is disputed.

All relevant information and documents on which the applicant intends to rely need to be included and noted as attachments to the application.

 

Electronic signing and witnessing

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A new guide to Electronic Signing and Witnessing has been added to the Reference Materials folder on all By Lawyers matter plans.

This helpful resource summarises the various legislation across all Australian jurisdictions for electronic transactions.

Electronic signing and witnessing

In Australia under federal, state, and territory legislation many transactions can be completed electronically.

Electronic signing and witnessing are available for many, but not all, transactions and documents encountered in every day practice. However, the availability of electronic signing and witnessing is considerably different in each jurisdiction.

The new guide summarises the applicable legislation in each jurisdiction, to assist practitioners understand when electronic signing and witnessing is permitted and how it can be done.

Legislation

The Commonwealth took the lead on legislation to enable electronic transactions at the turn of the millennium, and sought the cooperation of the states in enacting consistent laws across all jurisdictions, resulting in the following legislation:

Electronic Transactions Act 2001 (ACT)

Electronic Transactions Act 1999 (CTH)

Electronic Transactions Regulations 2020 (CTH)

Electronic Transactions Act 2000 (NSW)

Electronic Transactions Regulation 2017 (NSW)

Electronic Transactions (Queensland) Act 2001 (QLD)

Electronic Transactions (Northern Territory) Act 2000 (NT)

Electronic Transactions (Northern Territory) Regulations 2001 (NT)

Electronic Communications Act 2000 (SA)

Electronic Communications Regulations 2017 (SA)

Electronic Transactions Act 2000 (TAS)

Electronic Transactions Regulations 2021 (TAS)

Electronic Transactions (Victoria) Act 2000 (VIC)

Electronic Transactions (Victoria) Regulations 2020 (VIC)

Electronic Transactions Act 2011 (WA)

Electronic Transactions Regulations 2012 (WA)

Unfortunately, the approach taken by each state and territory to implementing this legislation differs to various degrees from both the Commonwealth’s and each other’s. Each jurisdiction has exempted certain statutes, transactions, and documents from the operation of their Act or some of its provisions.

This means that, while all jurisdictions have laws providing for electronic transactions and electronic signing, and some have laws for audio visual witnessing, the documents that can be electronically signed and the requirements for execution vary between the jurisdictions.

The new guide brings all of this information together for practitioners to easily reference in any matter they are working on.

New FWC Rules – FED

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The Fair Work Commission (FWC) rules regulate the work of the Fair Work Commission. They include the procedures and requirements for filing and serving applications and responses in the various types of employment disputes under the Fair Work Act 2009 (FWA) and other legislation.

There are new FWC rules from 27 March 2024. The Fair Work Commission Rules 2024 (Cth) have replaced the Fair Work Commission Rules 2013 (Cth).

The new FWC rules remake and update the 2013 version. In addition to updates for some amended legislation and procedure, the rules have been substantially rearranged and renumbered.

There are now separate chapters of the rules for matters under the FWA, matters under other legislation, and for appeals and reviews.

The chapter for FWA matters is divided into separate parts that accord with all the areas of possible applications under the Act:

  1. National Employment Standards;
  2. Modern awards;
  3. Enterprise agreements;
  4. Regulated labour hire arrangement orders;
  5. Transfer of business;
  6. Fixed term contracts;
  7. General protections, unfair dismissal and unlawful termination;
  8. Industrial action;
  9. Right of entry;
  10. Sexual harassment and bullying;
  11. Regulated workers; and
  12. Disputes under dispute procedures in awards, enterprise agreements et cetera.

The requirements for service of applications and responses are now all contained within Schedule 1 to the new rules.

The transitional provisions provide that the new FWC rules apply to new matters and to any step in a matter already on foot, however the FWC can order that the previous rules continue to apply to a matter already on foot.

The By Lawyers Employment Law guide has been updated accordingly.

Standard orders – VIC

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The County Court’s library of standard timetabling and other orders have been added to the relevant By Lawyers litigation matter plans.

The County Court requires practitioners to use the court’s orders that are published in booklets on the Court’s website unless good reason exists to alter those orders, or draft alternate ones. A different booklet of standard orders applies for each of the Common Law and Commercial divisions.

The orders cover all aspects of procedure in the court, including listing, timetabling, extensions of timetables, subpoenas, and costs. There are specific standard orders for each of the court’s various lists, such as the:

  • General List – personal injury,
  • General List – property damage,
  • Serious injury list – TAC proceedings,
  • Defamation list, and
  • Family property list – TFM claims.

The full library of these standard orders has been automated and added to Folder A. Going to Court in By Lawyers County Court – Acting for the plaintiff and County Court – Acting for the defendant guides.

A selection of these orders has also been added to the following By Lawyers guides, as appropriate:

The court forms for the Commercial List Order template and the Common Law Division Minutes of Proposed Consent Orders have also been added to the relevant matter plans. These are the forms into which the various orders are inserted as appropriate.

Additional commentary explaining the requirements and practicalities of using these orders has also been included in the relevant By Lawyers commentaries.

Civil rules – SA

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The Uniform Civil Rules 2020 have been amended with effect from 1 January 2024. These rules apply to all South Australian courts that deal with civil matters.

Amendments under the Uniform Civil (No 10) Amending Rules 2023 include the following:

Remote appearances

A  substituted r 15.4 allows the court to direct or permit a party or a lawyer to appear by audio or audio-visual link, if the court considers it is justified in the circumstances.

This requires:

  • an application in the prescribed form; or
  • an oral application at a prior hearing; or
  • ticking the remote appearance box on any form filed via the court’s electronic filing system; or
  • sending an email to the chambers of the judicial officer who will hear the matter.

The request must specify why the remote appearance is necessary.

If a request is granted the requesting party must pay any costs involved, and if they are uncontactable after 15 minutes of the appointed time it will be treated as a non-appearance.

An application for a witness to appear by audio link or by audio visual link must be made by an interlocutory application in the prescribed form supported by an affidavit in the prescribed form, or an oral application at a prior hearing.

Setting aside judgement by consent

A new rule 142.13 provides that a default monetary judgment can be set aside and the proceedings discontinued by consent by the parties filing the new form 126A Application and Consent to Set Aside Default Judgment and Discontinuance, provided there is no cross-claim, third party claim, or interested party.

Publication updates

The commentaries and matter plans in the By Lawyers Magistrates Court Civil guides- Acting for the Applicant and Acting for the Respondent have been updated in line with the amended civil rules.

Personal injury lists – VIC

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The Supreme Court has introduced new procedures for matters in the personal injury lists.

Changes have been made to first directions orders in the four specialist personal injury lists in the Common Law Division with the intention of increasing efficiency, and reducing delays and adjournments.

Personal injury lists

In the Supreme Court, personal injury claims are dealt with in four specialist lists:

  • Personal Injuries List
  • Dust Diseases List
  • Institutional Liability List
  • Civil Circuit List

New forms for consent orders

Parties submitting minutes of proposed consent orders in these lists must now use the revised First Directions forms available on the Court’s website and on the matter plan in the By Lawyers Personal Injury (VIC) publication.

The major changes to the standard orders include:

  • the ability for the parties to agree to extend or abridge, by consent, the time for interlocutory steps before the post-mediation directions hearing, or, in the case of expedited Dust Diseases List matters, the final directions hearing;
  • time for issuing subpoenas and serving supplementary reports and final particulars of special damages;
  • when supplementary medical and expert reports can be served close to trial; and
  • matters about which the court expects to be informed at the post-mediation directions hearing, including expert evidence.

Practice notes

The personal injury lists are each managed subject to their relevant Practice Note being:

First Directions Hearing

After the defence is filed, the court will contact the parties to arrange a First Directions Hearing.

The court expects a practitioner with conduct of the file, or a good working knowledge of it, to appear at all directions hearings.

The parties are encouraged to submit consent orders to avoid an appearance.

Publication updates

The commentary and matter plan in the by Lawyers Personal Injury (VIC) publication has been updated accordingly.

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