Four stages, and a trial if it comes to that. Most matters finish at the second or third.

Stage one: assessment

Every matter starts with a fixed fee consultation. Before it, you send us the publication and anything else relevant. During it, a defamation lawyer works through the questions that decide whether the matter is worth pursuing or defending, and how.

For a prospective plaintiff that means looking at the publication, who it reached, whether it identified the person concerned, the defamatory imputations, the likely defences, the serious harm element where it applies and the time limit. For a prospective defendant it means looking at the same publication from the other direction: which imputations are really carried, which defences are open, how strong the complainant's position is and what an offer to make amends should contain.

The consultation ends with preliminary advice and a recommendation. Sometimes the recommendation is to do nothing, because the publication is too trivial, too old or too defensible to justify the cost. Sometimes it is to send a concerns notice straight away. Where further work is recommended, we scope it and give a costs estimate for that step before it begins.

Stage two: concerns notice

In every state and territory other than Western Australia, a plaintiff must give the publisher a concerns notice before proceedings can be commenced. The notice sets out where the publication can be found, the defamatory imputations it carries and the harm it has caused. The publisher then has 28 days to respond, usually by making an offer to make amends, and can ask for further particulars within that 28 day period if the notice is unclear. The complainant then has 14 days to provide them, and the publisher's time to make an offer runs for at least 14 days from receiving them.

For plaintiffs, drafting the notice is the most important piece of written work in the matter. The imputations it particularises are the only ones that can be sued on, and they frame every negotiation that follows. For defendants, the notice is the trigger for the 28 day period and the point at which the defences and the offer need to be assessed together.

Western Australia has not adopted the mandatory concerns notice regime, but a Western Australian publisher or complainant dealing with material published in another jurisdiction will usually be bound by that jurisdiction's requirements.

Concerns notices from the plaintiff's side and from the defendant's side are covered in more detail on those pages.

Stage three: offer to make amends and negotiation

Within the 28 day period the publisher can make an offer to make amends. The legislation requires the offer to include a reasonable correction and payment of the complainant's reasonable expenses, and it commonly also includes removal, an apology and sometimes compensation. If the offer is accepted the matter ends. If it is refused and the court later finds it was reasonable, it is a complete defence.

Alongside the statutory offer there is usually ordinary negotiation: correspondence between the lawyers, without prejudice offers, and sometimes a meeting. This is where most defamation matters are resolved. Both sides know that the costs of litigation are high, that a reasonable offer unreasonably refused carries indemnity costs consequences, and that the outcome of a trial on meaning, defences and serious harm is hard to predict. Those pressures produce settlements.

Outcomes at this stage are negotiated rather than ordered. They commonly involve some combination of removal, an undertaking not to republish, a correction or apology in an agreed form, a contribution to costs and, in some cases, a payment. The relative weight of each depends on the strength of the positions and what the plaintiff most needs. For many clients, the publication coming down quickly matters more than anything else.

Stage four: proceedings

If the matter does not resolve, proceedings are commenced in the appropriate court. The plaintiff files a statement of claim pleading the publication, the imputations and the harm. The defendant files a defence pleading the defences relied on and, where appropriate, disputing the imputations and the serious harm element. There may be interlocutory applications: on the imputations, on serious harm as a preliminary question, for preliminary discovery to identify an anonymous publisher, or occasionally for an injunction.

Proceedings do not mean a trial is inevitable. There are more opportunities to settle before trial, including through mediation, which most courts expect the parties to attempt. Offers of compromise under the court rules carry their own costs consequences and are used actively. Many matters that are commenced settle at or shortly after mediation, once the pleadings have clarified what is actually in dispute and the costs of a trial have come into focus.

Where a matter is genuinely about vindication, or where a defendant is confident in a defence and unwilling to pay anything, proceedings are the right path. We say so when that is our view. We also say so when it is not.

Stage five: trial and judgment

At trial the court decides whether the publication carried the pleaded imputations, whether they were defamatory, whether the serious harm element is satisfied where it applies, whether any defence is established and, if the plaintiff succeeds, what damages and other relief should follow. In New South Wales, Victoria, Queensland, Tasmania and Western Australia a jury can be requested to decide questions of meaning and defences, with the judge deciding damages. In South Australia, the territories and the Federal Court the judge decides everything.

Damages for non economic loss are capped. From 1 July 2026 the cap is $520,000, and it is reserved for the most serious cases. Aggravated damages are assessed separately and economic loss is not capped. Costs usually follow the event, meaning the losing party pays a proportion of the winner's costs, with indemnity costs where a reasonable offer was unreasonably refused. Judgments can be appealed, and appeals in defamation are not uncommon because questions of meaning and the application of defences are contestable.

Which court

Defamation proceedings can be brought in the Supreme Court of a state or territory, in the intermediate court where the jurisdiction has one, such as the District Court in New South Wales and Queensland or the County Court in Victoria, and in some cases in a lower court for smaller claims. The Federal Court also hears defamation matters where it has jurisdiction, most commonly because the material was published in the Australian Capital Territory, which is usually so for online material, or because the defamation claim is joined with a claim under a Commonwealth law. There are no juries in the Federal Court. Choice of court depends on the value of the claim, the likely defences, whether a jury is wanted, procedural differences and cost.

The law that applies to a publication is generally the law of the place where it was published, which for online material can be every place it was downloaded. Where a publication was read in more than one jurisdiction, the legislation applies the law of the jurisdiction with the closest connection to the harm. The differences matter most for Western Australia, where the serious harm element, the mandatory concerns notice and the public interest defence do not apply to publications governed by Western Australian law.

How long it takes

Honest answers about timing are approximate, because so much depends on how the other side responds. As a guide only:

• Assessment: the consultation is usually arranged within days of payment, subject to conflicts and availability.
• Concerns notice: drafting typically takes days once we have the material. The publisher then has 28 days to respond, which can be longer if further particulars are requested.
• Negotiation: often concluded within one to three months of the concerns notice where both sides engage.
• Proceedings to mediation: commonly six to twelve months after commencement, depending on the court and the interlocutory steps required.
• Proceedings to trial and judgment: commonly between one and two years, sometimes longer, with judgment reserved after trial.

Identifying an anonymous publisher adds time at the front of the process, and the limitation period continues to run while it happens. Matters involving media organisations tend to take longer at every stage.

How costs work

The initial enquiry is a fixed fee of $770 including GST. Beyond that, work is scoped and estimated stage by stage, so that before each step you know what it is intended to achieve and what it is expected to cost. We do not quote generic prices for later stages on this website because they vary too much with the publication, the other side and the forum to be meaningful. We do give a specific estimate for each recommended step before it begins.

Two features of defamation law affect the overall economics. First, costs can be recovered from the other side: a contribution to costs is a usual term of negotiated outcomes, and a successful party in court is ordinarily awarded a proportion of its costs. Second, the legislation requires the court to award indemnity costs against a party who unreasonably refused a reasonable settlement offer, unless the interests of justice require otherwise. That rule cuts both ways, and it is why the quality of offers made and the reasonableness of responses to them matter so much.

We do not act on a deferred or conditional fee basis in defamation matters. We do keep matters proportionate. If the cost of the next step is out of proportion to what it is likely to achieve, we will say so and discuss alternatives, including stopping.

Further reading

The articles below go into more depth on the topics covered on this page.

• Resolving a defamation dispute without going to court
• Which court hears a defamation case
• When does a defamation trial have a jury?
• What happens in defamation proceedings
• Costs in defamation proceedings
• Defamation law by state and territory