Khare v Young

The Court held that the absence of a filed defence does not, of itself, constitute a 'special circumstance' justifying postponement of a separate serious harm determination under s 10A of the Defamation Act 2005 (NSW), departing from the approach in Burvill v Cowie. Campbell J emphasised that the s 10A regime is directed at early determination, including before issue is joined, and that a plaintiff resisting such an application bears the onus under s 10A(5) and should adduce evidence to discharge it rather than relying on the mere absence of pleadings. The Court also confirmed that at a separate serious harm hearing the plaintiff's case is taken at its highest on all issues except serious harm, and that any evidence a defendant wishes to lead on prior bad reputation must be adduced at the separate hearing as the determination is binding at the final hearing.