Since the Federal Court of Australia decided that it has
jurisdiction to hear defamation matters in Crosby v
Kelly1 (Crosby), defamation practice in
Australia has developed to afford plaintiffs a number of early
strategic advantages.
Principally, a plaintiff in a defamation matter can—by
closely considering whether to file in the Federal Court or a
Superior Court of a State or Territory—effectively elect
whether they wish to have a trial by judge or jury.
This advantage is likely an unexpected consequence that flows
from the decision in Crosby, and is one which is increasingly being
taken up by plaintiffs who choose to file in the Federal Court.
This advantage is, in most cases, unable to be recouped elsewhere
by a defendant – the proposition of running a trial in front
of a group of jurors, whose values, beliefs and attitudes are
representative of the community at large, is a fundamentally
different proposition to presenting a case before a judge.
