Which court hears a defamation case: state courts, the Federal Court and choice of law

Defamation law in Australia is state and territory law. Each state and territory has its own Defamation Act (in the ACT the provisions sit in the Civil Law (Wrongs) Act 2002), and the courts of each jurisdiction hear claims about publications made within it. The Federal Court, which has no general defamation jurisdiction, has nevertheless become a common venue for high profile media cases where a federal jurisdictional hook exists.

This article explains which courts can hear a defamation claim, how the Federal Court gets jurisdiction, what law applies when something is published across state borders, and how cases are moved between courts. The choice affects whether there will be a jury, how quickly the case is heard and what a lower court can award.

State and territory courts

Every state and territory Supreme Court has unlimited civil jurisdiction and can hear a defamation claim of any size. In New South Wales, Queensland and Western Australia the District Court also hears defamation claims up to its monetary limit, and in Victoria the County Court does.

A claim for more than a lower court’s monetary limit must be brought in a higher court. In Queensland the District Court’s limit is $750,000.¹ An amending Act assented to on 22 October 2026 raises that limit to $1,500,000 for proceedings started after the amendment commences on 1 January 2027.² In New South Wales the District Court’s jurisdictional limit is $1,250,000.³ In Western Australia the District Court’s limit is $750,000.⁴ The County Court of Victoria has unlimited jurisdiction in civil matters.⁵

The position for Magistrates and Local Courts differs. The Local Court of New South Wales has no jurisdiction to hear defamation at all, however small the claim.⁶ The Magistrates Court of Western Australia likewise cannot hear a claim for libel or slander.⁷ In Queensland a Magistrates Court can hear a personal action for up to $150,000 and nothing in the Magistrates Courts Act 1921 excludes defamation, so a small claim can in principle be brought there, although in practice almost all Queensland defamation cases are started in the District or Supreme Court.⁸

Within the higher courts, the choice between Supreme and District (or County) Court is usually driven by the amount realistically in issue, the complexity of the case and the availability of hearing dates. The Supreme Court of New South Wales runs a dedicated Defamation List under Practice Note SC CL 4, in which a list judge manages all defamation proceedings and hears applications on nominated days.²¹ Court rules in several jurisdictions allow costs to be reduced where a claim is brought in a higher court than it needed to be, so the realistic value of the claim should be assessed carefully at the outset.

The Federal Court

The Federal Court is a court of limited jurisdiction. It can only hear a matter that the Constitution or a Commonwealth Act allows it to hear. Defamation is a creature of state law and there is no Commonwealth Defamation Act, so a plaintiff cannot choose the Federal Court simply because they prefer it. There has to be a federal hook.

The first common hook is a claim under a Commonwealth law brought alongside the defamation claim, for example a claim for misleading or deceptive conduct under the Australian Consumer Law. Where both claims arise from the same facts and form a single controversy, the Federal Court can hear the whole dispute in what is known as its accrued jurisdiction. The Court’s Defamation Practice Note describes its defamation work as covering disputes within federal jurisdiction, including cases arising under a law of the Commonwealth Parliament.⁹

The second is publication in the Australian Capital Territory. In Crosby v Kelly the Full Court of the Federal Court held that s 9(3) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth), read with s 19 of the Federal Court of Australia Act 1976 (Cth), confers jurisdiction on the Federal Court over matters within the jurisdiction of the ACT Supreme Court. The tweets in that case were alleged to have been published to followers in every state and territory, including the ACT, and that was enough.¹⁰ Because material published online to a national audience will usually have been read in Canberra, this decision opened the Federal Court to most cases involving online or national media publication. Section 9(3) also refers to the law of the Northern Territory, but the holding concerned the ACT.

Once the Federal Court has jurisdiction it applies the substantive defamation law of the relevant state or territory, identified by the choice of law rules described below, in the same way a state judge would.

Why plaintiffs and defendants use the Federal Court

Several of the most prominent defamation trials of recent years were heard in the Federal Court, including Rush v Nationwide News, Roberts-Smith v Fairfax Media Publications and Lehrmann v Network Ten.¹¹ Three features explain the trend.

The first is that the Federal Court sits without a jury. Under s 39 of the Federal Court of Australia Act 1976 (Cth) every civil trial is by a judge alone unless the Court orders otherwise, and under s 40 the Court may direct a jury trial only where the ends of justice appear to make that expedient.¹² In Wing v Fairfax Media Publications the Full Court held that the jury provisions in ss 21 and 22 of the Defamation Act 2005 (NSW) do not apply in the Federal Court because they are directly inconsistent with ss 39 and 40, and the application for a jury was refused.¹³ A party who prefers a judge’s fully reasoned decision on meaning and defences to a jury verdict is therefore drawn to the Federal Court.

The second is case management. The Defamation Practice Note sets a tight timetable: the first case management hearing is ordinarily about five to six weeks after filing, a defence is due within 28 days of service, a respondent who admits publication must give particulars of its extent, and the Court will refer the matter to mediation at an early stage save in exceptional circumstances.⁹ Evidence in chief is ordinarily given orally rather than by affidavit.⁹

The third is that the Federal Court is a national court. A plaintiff defamed by a publication read across Australia can sue in one place for the whole of the harm.

The Federal Court is not always the better choice. Its costs are comparable to a Supreme Court, a defendant who wants a jury cannot have one, and the federal hook must be identified at the outset. If the only federal connection is tenuous, the point may be contested early.

Choice of law: which state’s law applies

Because each state and territory has its own Act, a court needs a rule for deciding whose law governs a publication that crossed borders. Section 11 of the Defamation Act 2005 (NSW), mirrored in the other jurisdictions, supplies it.

If the matter was published wholly within one Australian jurisdictional area, the substantive law of that area applies.¹⁴ If there was a multiple publication across more than one Australian jurisdictional area, the court applies the substantive law of the area with which the harm occasioned by the publication as a whole has its closest connection.¹⁴ In deciding closest connection the court may consider where the plaintiff ordinarily lived at the time of publication (or, for a corporation, where it had its principal place of business), the extent of publication in each area, the extent of harm in each area and any other relevant matter.¹⁴

For most people this means that the law of the state where they lived at the time of publication will govern a national or online publication about them, because that is where their reputation chiefly sits and where most of the harm occurs. This matters most where the laws differ, which since 2021 has principally been the case for Western Australia, where there is no serious harm element and no statutory public interest defence. A Western Australian plaintiff suing over a national publication will usually have WA substantive law applied even if the case is heard elsewhere.

The rule governs substantive law: the elements of the cause of action, the defences and the damages rules. Procedure, including whether a jury is available, is governed by the law of the court hearing the case, which is why Wing v Fairfax Media Publications turned on the Federal Court’s own statute rather than on s 21.

Where internet publication happens

The principal authority on where online defamation occurs is the High Court’s decision in Dow Jones & Company Inc v Gutnick. The Court held that defamation is ordinarily located at the place where the damage to reputation occurs, which for material on the web is where it is downloaded and read in comprehensible form by a person who uses a browser to pull the material from the web server.¹⁵ Mr Gutnick, a Victorian, was therefore entitled to sue in Victoria over an article uploaded to servers in New Jersey, and to confine his claim to the damage done to his reputation in Victoria.¹⁶

Two consequences follow. An Australian can sue in an Australian court over material published overseas, provided it was read here and the plaintiff has a reputation here. And a publication can be sued on in more than one place, although s 23 of the Defamation Act requires leave of the court before a plaintiff who has already sued one defendant brings further proceedings against that defendant or an associate over the same or like matter.¹⁷

Transfers between courts and inappropriate forums

A case started in one court is not necessarily heard there. The cross vesting scheme, enacted by complementary Commonwealth, state and territory Acts, allows a Supreme Court to transfer a proceeding to the Federal Court or to the Supreme Court of another state or territory. Under s 5 of the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW), a transfer to another Supreme Court must be ordered where the proceeding is related to one pending there, where the other court would have had jurisdiction apart from the scheme and the interests of justice favour transfer, or where it is otherwise in the interests of justice that the other court determine it.¹⁸ The transferee court treats steps already taken as if they had been taken before it.¹⁸

In practice the question is which court is the more appropriate forum, taking into account where the parties and witnesses are, where the publication was concentrated, which law applies under s 11 and whether a jury is sought. Transfer applications are common where a plaintiff has sued at home over a publication by a media organisation based elsewhere.

Separately, a defendant sued in Australia over a publication with foreign connections can seek a stay on the ground that the court is a clearly inappropriate forum, the test adopted by the High Court in Voth v Manildra Flour Mills.¹⁹ In Gutnick the High Court saw no error in the trial judge’s refusal to stay the Victorian proceeding.¹⁶

Differences between jurisdictions

In South Australia, Tasmania, the ACT and the Northern Territory, the Supreme Court is the usual venue. Juries are not available in defamation cases in South Australia, the ACT or the Northern Territory.²² In New South Wales, Victoria, Queensland, Tasmania and Western Australia either party may elect one under s 21 of the Defamation Act unless the court orders otherwise.²⁰ The Federal Court sits without a jury.¹²

Practical factors in choosing a forum

Where a plaintiff has a genuine choice, the following usually decide it: whether a jury is wanted, which points towards a state court in a jury jurisdiction, or a judge alone, which points towards the Federal Court or a state without civil juries; the size of the claim, which may rule out a District Court; the speed of the relevant list; the location of the parties and witnesses; which substantive law will apply under s 11, which cannot be changed by choosing a different court; and the costs scales of the court, which affect how much a successful party recovers.

For defendants the same factors run in reverse. A defendant who believes a jury would be sympathetic to a robust publication may elect one where that is possible. A defendant served in an inconvenient state may apply to transfer. And every defendant should check at the outset that the court actually has jurisdiction, because a Federal Court proceeding with no genuine federal element can be challenged.

Getting advice

The right court depends on where the material was published and read, where the parties are, the size of the claim and whether a jury is wanted. Those questions interact with the one year limitation period and the mandatory concerns notice process, so early advice before any filing is usually cheaper than correcting a wrong choice later.