Life as a Graduate at Clayton Utz

Media and Defamation Law

Fabienne Sharbanee

Principal Associate, Bennett + Co

I have been in practice just over 20 years. I was admitted in 1999 and had my first dance with defamation law a few years later in 2002.

It was an appeal to the Full Court of the Supreme Court from an interlocutory decision that had resulted in our client’s claim being struck out (without leave to replead – so the claim was done and dusted, unless we got up on the appeal).

It was a pretty ‘sexy’ introduction to defamation – a high profile client (with associated media attention), counsel who I later learned were some of the best in town (1 now the 2nd most senior defamation judge sitting in the Supreme Court), an appeal to the Full Court with a bench of 3 (including the then Chief Justice). Not bad stuff 3 years out.

But the law was interesting too and the story – as with all defamation matters – was necessarily personal in nature. The outcome affected people and that was immediately apparent to me.

For me, that is where part of the attraction has always been – the stories are human stories, and the clients are people to whom you can relate (at some level) and not corporates.

I have almost always done plaintiff defamation work, which is why that perspective still works for me I guess. Defamation gives me the opportunity to do what so many of us chase as altruistic law students - to ‘do the right thing’ and ‘stand up for the little guy’. Defamation sparks my ‘you can’t do that!!!’ instinct.

But, as I say, I usually come at things from the perspective of a claimant. If you’re big on freedom of expression, free speech and freedom of the press, then you might be more suited to a similar role on the other side of the fence acting for the media, and other defamation defendants. The other aspects of defamation that appeal to me are the words and the procedure.

Defamation is all about words – what they mean, who they identify, how pervasive their reach may be. I’m a ‘grammar nazi’ and a ‘word-nerd’, so that suits me.

The dependability and process of civil procedure also makes sense to me and defamation is usually pretty heavy on interlocutory skirmishes and procedural hurdles, so that part of the sport of it can be fun and often challenging.

What does practising in media and defamation law really mean?

I’m a litigator. I do ‘court stuff’. I write a lot of letters and I prepare a lot of Court documents. I prepare quite a lot of Concerns Notices (s14 of the Defamation Act 2005).

I stare at news stories and Facebook posts, to decide if they damage reputation and if so, why. I sometimes ask the same questions after listening to radio or TV broadcasts repeatedly, and once, after reading a book.

I meet with clients. I go to Court, usually around once or twice a month, either to instruct Counsel at a contested interlocutory hearing or appear at a directions hearing or mediation conference.

I was junior counsel in 2 trials last year – 1 of them was a defamation trial. A handful of times, I have been asked to ‘legal’ a document before its published (known as ‘prepublication’ advice, and much more common to those advising the media).

Since that first case in 2002, I have been fortunate to work on cases for all sorts of people –sports people, government officials and various types of professionals accused of fraud, incompetence bullying and more, people wrongly accused of crimes, companies unjustifiably bad mouthed on Facebook (okay, it’s not always for the little guy), and one of my most memorable, a little old lady who was devastated to have been accused of infidelity in front of a crowd of people at her local sermarket.

I say ‘fortunate’ because there are not a lot of opportunities to work in media and defamation law, particularly in WA. Bennett + Co have a