Judge says Quaden Bayles has 'arguable' case he was defamed by Miranda Devine

Unless columnist Miranda Devine acknowledges that she has received the court documents sent by email, the documents will need to be physically served on her in New York.

The confidential settlement for Quaden Bayles and his mother Yarraka has been approved. Source: AAP

Nine-year-old Quaden Bayles has an arguable case that he was defamed by Miranda Devine, a judge has said while approving moves to serve court documents on the New York-based columnist.

But, in the absence of Devine acknowledging she'd been served the documents by email, the federal court judge said she couldn't allow the boy's lawyers to avoid entering a drawn-out process to have the papers physically handed to the News Corp employee.

A video by Quaden's mother, Yarraka Bayles, made global headlines in February after her inconsolable son cried about being bullied at school and urged her to "give me a knife, I'm going to kill myself".

The clip was met with an outpouring of support but the Bayles say Devine later retweeted comments that suggested it was all a scam and that the Indigenous Brisbane boy born with a common form of dwarfism was actually an adult actor.

When one of Devine's 71,000 followers replied "it's a crime if it is a scam. Child abuse. How could anyone parent do this?", the News Corp columnist tweeted, "Yep. Exactly. On the case", Justice Anna Katzmann was told on Friday.

In a judgment on Monday determining preliminary issues, Justice Katzmann said the Bayles had a prima facie case against Devine.

Quaden Bayles with his mother Yarraka prior to the NRL Indigenous All-Stars vs Maori Kiwis match at on the Gold Coast, Saturday, 22 February, 2020. Source: AAP

While the Bayles' legal representative had led "quite unsatisfactory" evidence about where the tweets had been viewed, the judge was prepared to infer they were downloaded and read in Australia by "some people".

The defamatory meanings alleged in the claim were "reasonably arguable" and if proved, were undoubtedly likely to lead to a finding that an ordinary reasonable person had thought less of the applicants.

But Justice Katzmann knocked back an attempt to have the court rule it was not practicable to serve US-based Devine personally - a bureaucratic process that can take months.

Daily Telegraph columnist Miranda Devine in 2018. Source: AAP

The court had heard claims that Quaden was severely ill and therefore the court should find special circumstances and accept Devine had received the documents to her personal and work email accounts.

Evidence supporting the claims was scarce, Justice Katzmann said.

But she would "happily revisit" the issue if presented with adequate evidence, she said.

Although Devine formerly wrote for The Daily Telegraph and is contracted by a sister company in New York, a lawyer for the Sydney paper indicated to the court on Friday he was not authorised to accept service on the columnist's behalf.