When does a defamation trial have a jury?

A defamation trial in Australia can be heard by a judge alone or by a judge and jury, depending on where the case is brought and what the parties choose. Whether there is a jury affects how the case is prepared, how long the trial takes, how much it costs and how the result can be appealed.

This article explains who can ask for a jury, when a court will refuse one, how the work is divided between judge and jury since the 2021 reforms, which jurisdictions have no juries at all, and why fewer defamation cases are now tried by juries.

The right to elect a jury

Under s 21(1) of the Defamation Act 2005 (NSW), and the equivalent provisions in Victoria, Queensland, Tasmania and Western Australia, either the plaintiff or the defendant may elect for the proceedings to be tried by jury unless the court orders otherwise.¹ The default position is therefore trial by judge alone, with either side able to opt in. If one party elects a jury, the trial proceeds by jury for both parties unless the court orders otherwise.

The election must be made at the time and in the manner prescribed by the rules of the court in which the case is to be tried, and in NSW must be accompanied by the prescribed jury fee.¹ In NSW the party must first serve a notice of intention to elect before a hearing date is fixed, after which any other party has 21 days to apply for an order that the trial proceed without a jury; the election itself is then made by filing a notice of election.² In Queensland the election is made in the pleadings: the plaintiff elects in the statement of claim and the defendant in the defence, and a party who did not elect may apply before the trial date is set for an order for a jury trial.³

Since the 2021 amendments an election can be revoked only with the consent of all parties or, failing that, with the leave of the court, which may be granted only where revocation is in the interests of justice.¹ A party cannot therefore elect a jury for tactical reasons and quietly abandon it later.

In Queensland the jury provisions apply only in the Supreme Court and the District Court.⁴

When a court will refuse a jury

The words “unless the court orders otherwise” in s 21(1) give the court a general discretion to order trial by judge alone despite an election. In addition, s 21(1A) (numbered s 21(3) in Western Australia, which has not adopted the 2021 amendments) provides that a court may order that proceedings not be tried by jury if the trial requires a prolonged examination of records or involves any technical, scientific or other issue that cannot be conveniently considered and resolved by a jury.¹⁵

A clear Queensland example is Wagner v Harbour Radio Pty Ltd. The plaintiffs sued over 32 broadcasts carrying 98 pleaded imputations, and the defendants elected a jury. Applegarth J held that s 21(1) of the Defamation Act 2005 (Qld), which is in the same terms as the NSW provision, confers a general discretion to displace an election, separate from the specific power for cases involving records or technical evidence, and ordered trial by judge alone. On the uncontested estimate, the jury would have had to answer almost 800 questions before even turning to defences, and the truth defences turned on technical hydrology evidence about the Grantham flood.⁶

Against those practical burdens, courts weigh the traditional value of a jury. In Ra v Nationwide News Pty Ltd, a Federal Court case in which Rares J took the unusual step of directing a jury, his Honour said that one of a jury’s great virtues is that jurors represent the very audience to which the publication was addressed, and so are well placed to assess how ordinary reasonable people understand mass media publications.⁷ That observation about the value of a jury still stands, although the Full Court in Wing v Fairfax Media Publications Pty Ltd later held that the reasoning in Ra about applying the State jury provisions in the Federal Court was wrong, as Rares J, sitting on that Full Court, himself accepted.¹² The observation cuts both ways: it supports a jury where the central dispute is what a publication meant to ordinary readers, and it carries less weight where the real contest is about documents, technical evidence or points of law.

What the jury decides and what the judge decides

Section 22 of the Defamation Act divides the work. Where a case is tried by jury, the jury determines whether the defendant published defamatory matter about the plaintiff and, if so, whether any defence raised by the defendant has been established.⁸ That covers the questions of publication, identification, whether the pleaded imputations were conveyed, whether they are defamatory, and defences such as truth, honest opinion and qualified privilege.

If the jury finds for the plaintiff and no defence is established, the judge and not the jury determines the amount of damages and all unresolved questions of fact and law relating to that amount.⁸ Where the plaintiff sues on more than one cause of action the jury gives a single verdict covering all of them unless the judge orders otherwise.⁸ Section 22 does not permit a jury to decide any issue that at general law is for the judge, or that another provision of the Act allocates to the judge.⁸

The most significant of those other provisions is s 10A, inserted in 2021. Serious harm to reputation is now an element of the cause of action, and s 10A(3) provides that the judicial officer, and not the jury, is to determine whether the serious harm element is established.⁹ The judge may decide the point before the trial begins or during it, and if a party applies for an early determination the judge must decide it as soon as practicable before trial unless there are special circumstances justifying postponement.⁹ In a jury trial, then, the judge decides serious harm, the jury decides liability and defences, and the judge decides damages.

Western Australia has not enacted s 10A, so in WA there is no serious harm element for a judge to decide and the jury’s role is as it was before 2021.

Jurisdictions with no juries

South Australia abolished civil juries long ago: s 5 of the Juries Act 1927 (SA) provides that no civil trial is to be held before a jury.¹⁰ In the Australian Capital Territory, s 22 of the Supreme Court Act 1933 (ACT) requires every civil suit to be tried by the court without a jury.¹⁰ The Northern Territory allows juries in some civil cases but s 6A of the Juries Act 1962 (NT) provides that civil proceedings for defamation must be tried by the court without a jury.¹⁰

The Federal Court is in practice a judge alone court. Section 39 of the Federal Court of Australia Act 1976 (Cth) provides that every civil trial is by a judge without a jury unless the Court orders otherwise, and s 40 allows the Court to direct a jury only where the ends of justice appear to render it expedient.¹¹ In Wing v Fairfax Media Publications Pty Ltd the Full Court held that ss 21 and 22 of the Defamation Act do not apply in the Federal Court because they are directly inconsistent with ss 39 and 40, so a party cannot elect a jury there as of right; the respondents’ application for a jury was dismissed.¹² The Court’s Defamation Practice Note records that usually a judge sitting without a jury will determine all issues.¹³ Ra v Nationwide News remains a rare exception.

Jury size and verdicts

Civil juries are smaller than criminal juries. In Queensland the jury for a civil trial consists of four persons, and if the jury has not reached a unanimous verdict after six hours the court may, if the parties agree, take the verdict of three jurors.¹⁴ In New South Wales a civil jury in the Supreme or District Court also consists of four persons, although the Supreme Court may order a jury of twelve on application, and after four hours of deliberation the decision of three of four jurors is taken as the verdict.¹⁵ Victoria, Tasmania and Western Australia prescribe their own numbers under their jury legislation.

A jury does not give reasons. It answers the questions put to it, which in defamation cases are often lengthy written questions about each imputation and each defence. The absence of reasons matters on appeal: an appellate court generally will not disturb a jury’s finding merely because it would have decided differently, and asks instead whether the verdict was reasonably open on the evidence. A judge’s reasons, by contrast, can be examined for specific error.

Why fewer defamation trials have juries

Jury trials were once the norm in defamation. They now appear to be the minority, for several reasons. First, the Federal Court has become a common venue for substantial media cases, and juries are effectively unavailable there, as explained above.¹² Second, since 2021 the judge decides serious harm, often at an early stage, which means that many cases are resolved or reshaped by a judge before a jury could ever be empanelled.⁹ Third, courts have shown willingness to dispense with juries in complex cases under s 21, as in Wagner.⁶ Fourth, the parties’ own preferences have shifted: a judge gives reasons, is predictable about how imputations will be approached, and does not need to be managed through a long trial.

Juries remain a live option for cases that turn on a simple question of meaning or on an honest opinion or truth defence where community standards matter. Defendants in particular sometimes prefer a jury where the publication was robust but arguably fair.

Practical considerations

For either party, the decision whether to elect a jury turns on a handful of questions. Is the central dispute about what ordinary readers would understand, or about documents and technical witnesses? Is the client’s case better suited to a judge’s close reading, or does it depend on a broader community reaction? Would the extra length and cost of a jury trial be proportionate to what is at stake? Is there an advantage in having reasons for appeal, or in not having them?

Jury trials usually take longer because of empanelment, the need to present evidence in a way lay jurors can follow, and the time taken to settle and answer the jury questions. The party electing pays the jury fee, and in NSW the election may be met promptly with an application to dispense with the jury; that application must be resolved before a hearing date is fixed.² A party contemplating a jury should also consider that the judge will still decide serious harm and damages, so the jury determines liability only.

Differences between jurisdictions

Getting advice

Whether to seek or resist a jury depends on the issues in the case, the court in which it is brought and the way the other side has framed its pleadings. The election must be made at the right procedural moment and cannot easily be undone, so the question should be considered before proceedings are filed or defended.