Persons Under a Legal Disability in Defamation

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A person under a legal disability is said to be non sui juris, which means that they do not have the capacity to act on their own behalf and as such cannot sue or be sued. Lawyers use the term ‘a person under a legal disability’ to refer to people who are non sui juris. The term ‘legal capacity’ is also used. A person under a legal disability is said not to have ‘legal capacity’. However, as members of communities, defamatory statements, whether made by persons under a legal disability, can still harm a person’s reputation.

It may also be the case, that a person under a legal disability wishes to commence court proceedings for defamation as opposed to a possible action for discrimination. This could arise in the context of education and schooling, in workplaces or as a consumer of services. Defamation law is now virtually the same throughout Australia since the introduction of the national, uniform defamation laws in 2006. This article takes a national approach and addresses the law in all States and Territories of Australia. For ease of reference the national, uniform defamation laws are referred to as the Defamation Act 2005 in this article.

Presumption of Capacity

It may be the case that the person you wish to sue is not clearly incapacitated or sometimes is and sometimes is not. An adult is presumed to have legal capacity unless it can be shown otherwise1. Therefore, it would be up to the Defendant to raise the issue of incapacity in his or her Defence, after having been served with a Claim and Statement of Claim. Persons under a legal disability are entitled to extend limitation periods for bringing actions, although that will not be discussed in this article.

Justice and Human Rights

It is accepted that the Court systems in Australia are in place to facilitate justice between litigants. It would not be just to sue a party under a legal disability, unless the person was able to properly defend themselves. Nor would it be just to deny a person under a legal disability access to justice. Section 15(1) of the Human Rights Act 2019 (Qld) provides that “[e]very person has the right to recognition as a person before the law.” Section 15(3) provides that “Every person is equal before the law and is entitled to the equal protection of the law without discrimination.” Similar provisions are in the human rights legislation in the Australian Capital Territory and Victoria. The other States and Territories are yet to enact legislation providing human rights.


A person under the age of 18 is said to be a ‘person under a legal disability’ and as such cannot sue or be sued in their own right because they have not attained the ‘age of majority’2. However, a minor can commence legal proceedings if they have a ‘litigation guardian’ appointed3 who are also called ‘tutors’ in New South Wales. It is quite common for minors to commence Court proceedings for personal injuries. A minor will be liable for the commission of a tort, which defamation is, if the minor was capable of intending the act4. Section 36 of the Defamation Act 2005, inter alia, provides that in awarding damages, the Court is to disregard the state of mind of the defendant at the time of the publication of defamatory matter, except to the extent that the state of mind affects the harm sustained by the Plaintiff.

Disabled, Mentally Ill, and Mentally Incompetent Persons

 Disabled, mentally ill, and mentally incompetent persons are said to be acting under a legal incapacity or impaired legal capacity. Each persons’ condition and abilities will be different. In Queensland, a person under a legal incapacity can start or defend a proceeding if a litigation guardian has been appointed for the person and the litigation guardian instructs a solicitor to act for him or her5. In the ACT, a person under a legal incapacity would need to appoint a legal guardian in order to commence legal proceedings6. In South Australia, proceedings can be commenced by and against a person under a legal incapacity by making the persons’ litigation guardian the party7. In Tasmania, a person under a disability may commence and defend proceedings by litigation guardian8. The position in the Northern Territory9 is the same as Queensland, Tasmania, and South Australia. In Western Australia, Order 70 of the Rules of the Supreme Court 1971 (WA) provides that a person under a legal disability cannot commence proceedings except by their ‘next friend’ and cannot defend proceedings, except by the person’s guardian also called ‘ad litem’.

The fact that a disabled person is under a guardianship or administration order is evidence of that person’s incapacity to understand the nature of a tort and have intention to commit a tort, however, the Courts will consider the possibility of a suit against a disabled person and inquire as to their capacity10.

It should also be considered whether the person under a legal incapacity has the ability to give evidence at a trial of the matter. Legislation in all States and Territories provide differing provisions about the giving of evidence and fitness to stand trial which will not be examined in this article. A Plaintiff should seriously consider this aspect of their defamation case and take the advice of their legal counsel with respect to this point.


A bankrupt can be sued for defamation11, however, the Plaintiff cannot be a creditor of the bankrupt’s estate for the damages awarded unless he or she has signed judgment before the date of the bankruptcy12. If a bankrupt has published defamatory matter before or during the bankruptcy, the claim can be pursued by the Plaintiff once the bankrupt is discharged from bankruptcy because the claim is not a debt provable in the bankruptcy at the date of bankruptcy13. An action that is commenced by a person who subsequently becomes bankrupt is stayed until the trustee in bankruptcy elects to continue the action14.

Intoxicated Persons

The same principles that apply to a person with a mental disability apply to an intoxicated person15. The Court will enquire as to whether the intoxicated person had any period of lucidity and, generally, capacity to understand the nature of what they were doing. These same principles apply to intoxication by way of drugs as well as alcohol. Therefore, it is not a blanket defence to a defamation claim to plead that you were drunk at the time of publishing defamatory material. The Court would consider all of the circumstances of the case such as events leading up to the publication, whether earlier publications had occurred, whether there was a pattern of behaviour, and whether the intoxicated person is capable of managing his or her own affairs.


In most jurisdictions, a person who has been convicted of a crime and is serving a sentence in prison for it, is not subject to any limitations regarding capacity to sue or be sued in tort16. However, in Queensland, a prisoner who is serving a sentence of 3 or more years may not bring a tort action of a property nature or for the recovery of any debt or damages, including damages for personal injury17. This does not, however, protect them from being sued for defamation.

Deceased Persons

Pursuant to Section 10 of the Defamation Act 2005, a defamation action cannot be made on behalf of the estate of a deceased person, nor can one be continued against the estate if the Plaintiff has died since publishing defamatory matter. When the national, uniform defamation laws were introduced Tasmania did not adopt this provision. Therefore, in Tasmania a cause of action for defamation survives against the estate18.


Access to justice is not denied to a person under a legal disability and likewise the ability to sue a person under a legal disability has been limited in order to accord justice as a human right. A skilled lawyer is able to provide the right advice when it comes to persons under a legal disability and defamation.

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