Who Can Sue for Defamation in Australia?

Who Can Sue for Defamation in Australia?

In Australian defamation law, a fundamental requirement is that the plaintiff must have the legal capacity to sue.

This concept refers to the right of an individual or entity to bring proceedings before a court.

Defamation protects a person’s reputation. It is personal in nature and arises when false or damaging statements cause serious harm.

However, not every person or organisation has the legal standing to initiate a claim.

The rules governing who can sue are tightly defined, and failing to meet them may result in a claim being struck out at an early stage.

Understanding whether you have the legal capacity to sue is a crucial first step in pursuing defamation proceedings.

This determination will affect whether you can obtain damages, an apology, or an injunction to prevent ongoing reputational harm.

What Is Legal Capacity to Sue in Defamation?

Legal capacity refers to the recognised ability under the law to bring a claim for defamation in your own name.

In this context, the plaintiff must be the subject of the defamatory matter and be alive when the cause of action arises.

Because the tort of defamation is personal, it cannot be assigned to another person, though any damages recovered may be.

This principle has been long established in common law, including in authorities such as May v Lane (1894) 64 LJ QB 236 and Dawson v Great Northern Railway [1904] 1 KB 277, where courts affirmed that the cause of action belongs solely to the defamed person.

At its core, defamation law protects living individuals’ reputations and, in limited cases, eligible corporations or partnerships.

It does not extend this protection to the reputations of deceased persons or institutions that do not meet specific legal criteria.

Why Capacity Matters in Defamation Proceedings

Capacity is not a procedural technicality — it is a substantive legal threshold.

If a person or entity does not have the capacity to sue, the court will dismiss the case.

This can have serious cost consequences and delay any effort to vindicate one’s reputation.

For example, companies must navigate complex criteria to establish standing. Under section 9 of the Defamation Act 2005 (Qld) and its interstate equivalents, most corporations are prohibited from suing unless they fall within the definition of an “excluded corporation.”

This includes not-for-profits and businesses with fewer than 10 employees. Even then, under section 10A, the plaintiff must demonstrate that the publication caused or is likely to cause serious harm to its reputation.

Similarly, an undischarged bankrupt may bring a claim for defamation, as reputation is a personal right and does not vest in the trustee in bankruptcy (see Sands v State of South Australia [2015] SASCFC 36 at [138]–[139]), which says:

In the present case, the cause of action in defamation was indivisible. It is properly characterised as being in respect of personal injury or wrong done to the bankrupt. It remained with Mr Sands.

In any event, the defamatory imputations were that there were reasonable grounds to suspect Mr Sands of murder and that he had so conducted himself as to warrant that suspicion. This related entirely to his personal life and had no connection to any business conducted or employment undertaken by him. The mere fact that he claimed economic loss in consequence of the loss of his reputation was incapable of rendering the claim as being other than in respect of personal injury or wrong done to him.

However, depending on the nature of the claim, claims for other causes of action may pass to the trustee.

In short, the threshold question of capacity determines whether you can proceed to assert your legal rights — without it, the matter cannot progress.

Who May or May Not Initiate a Defamation Claim

The following

Our Queensland defamation lawyers explain this in more detail and give breakdowns of who can sue for defamation and who cannot sue for defamation.

Bankrupt Plaintiffs and Defamation Claims

Bankruptcy can raise complex litigation issues, especially concerning personal causes of action such as defamation.

Individuals who have suffered reputational harm may question whether bankruptcy affects their right to sue.

The law in Australia clearly distinguishes between personal rights (which remain with the individual) and proprietary rights (which vest in the trustee).

Understanding this distinction is essential for any bankrupt person contemplating a defamation claim.

Can a Bankrupt Sue for Defamation?

Yes, a bankrupt can sue for defamation.

The right to bring an action for defamation survives bankruptcy because reputation is considered a strictly personal asset.

It is not treated as part of the bankrupt estate and does not vest in the trustee in bankruptcy. This principle was reaffirmed in Sands v State of South Australia [2015] SASCFC 36, where the court acknowledged that defamation claims remain with the bankrupt and cannot be pursued by the trustee.

The law recognises that a person’s reputation is inherently personal and not transferable. Therefore, even if the defamatory publication occurred before the bankruptcy, the individual retains the right to initiate proceedings.

This is supported by section 60(4) of the Bankruptcy Act 1966 (Cth), which says:

(4)  Notwithstanding anything contained in this section, a bankrupt may continue, in his or her own name, an action commenced by him or her before he or she became a bankrupt in respect of:
(a)  any personal injury or wrong done to the bankrupt, his or her spouse or   de   facto   partner, or a member of his or her family; or
(b)  the death of his or her spouse or de facto partner or of a member of his or her family.

This expressly permits a bankrupt to commence proceedings for damages in respect of personal wrongs, including defamation.

The Role of the Trustee in Bankruptcy

When a person is declared bankrupt, most of their property and legal claims vest in the trustee in bankruptcy under section 58(1) of the Bankruptcy Act 1966 (Cth), which says:

(1)  Subject to this Act, where a debtor becomes a bankrupt:
(a)  the property of the bankrupt, not being after-acquired property, vests forthwith in the Official Trustee or, if, at the time when the debtor becomes a bankrupt, a registered trustee becomes the trustee of the estate of the bankrupt by virtue of section 156A, in that registered trustee; and
(b)  after – acquired property of the bankrupt vests, as soon as it is acquired by, or devolves on, the bankrupt, in the Official Trustee or, if a registered trustee is the trustee of the estate of the bankrupt, in that registered trustee.

However, this does not include causes of action for defamation, as such claims do not relate to property recoverable by the trustee.

Consequently, the trustee has no legal standing to sue for defamation on behalf of the estate, even if the defamation contributed to the bankruptcy.

There are some exceptions in relation to specific torts, such as slander of title or slander of goods, which may affect the bankrupt’s estate and thus fall within the trustee’s authority.

The trustee may be entitled to pursue the claim in those limited circumstances.

However, only the bankrupt can be the plaintiff in a defamation claim that affects the person’s reputation rather than their property.

What Happens to Defamation Damages in Bankruptcy?

Damages awarded to a bankrupt from a defamation claim remain the bankrupt’s personal property and do not form part of the bankrupt’s estate.

However, care must be taken if the defamation claim includes other heads of damages that relate to economic loss or other proprietary rights.

In such cases, a court may examine whether those particular components should vest in the trustee.

As a general rule, though, damages solely for defamation — including general damages and aggravated damages — remain with the bankrupt.

It is also important to note that where damages are successfully recovered by a bankrupt, any proceeds retained by the individual may later affect their discharge or be subject to recovery in insolvency administration, depending on how the funds are handled.

In conclusion, bankruptcy does not extinguish your right to protect your reputation.

If you are an undischarged bankrupt and have been defamed, you may still bring proceedings in your personal name and retain the benefit of any damages awarded.

However, It is critical to properly distinguish the nature of the claim and the form of damages sought to ensure compliance with the Bankruptcy Act and avoid disputes with the trustee over ownership of proceeds.

Can Companies Sue for Defamation?

In Australia, not all companies have the right to sue for defamation. While individuals may sue to protect their personal reputation, corporate plaintiffs must satisfy specific statutory thresholds under defamation legislation.

Section 9 of the Defamation Act 2005 restricts a corporation’s capacity to bring defamation proceedings, reflecting a deliberate policy decision to protect public debate from the chilling effect of litigation by powerful entities.  It says:

(1) A corporation has no cause of action for defamation in relation to the publication of defamatory matter about the corporation unless it was an excluded corporation at the time of the publication.
(2) A corporation is an excluded corporation if—
(a) the objects for which it is formed do not include obtaining financial gain for its members or corporators; or
(b) it has fewer than 10 employees and is not an associated entity of another corporation;
and the corporation is not a public body.

Corporations can only sue in limited circumstances, usually where they are small businesses or non-profit entities.

These restrictions are critical to understand before commencing legal proceedings on behalf of a company.

Read more here – Sending a Concerns Notice – Complete Guide

Corporations Under Section 9 of the Defamation Act 2005

Section 9 of the Defamation Act 2005 (Qld) provides that corporations generally do not have a cause of action for defamation.

This exclusion applies to all corporations, whether incorporated in Australia or overseas, and regardless of whether they are public or private.

However, there is an exception for “excluded corporations”. If a company qualifies as an excluded corporation under the Act, it retains the right to bring an action for defamation, but only if it can prove that the publication caused or is likely to cause serious harm to its reputation (section 10A).

Read more about serious harm – Serious Harm Threshold in Defamation

The section recognises that while individuals can suffer personal damage from defamation, large trading corporations typically have alternative remedies available, such as injurious falsehood, and a greater capacity to manage reputational damage through public relations or litigation.

Read more here – Further Particulars Notice in Defamation

What Is an “Excluded Corporation” and Why It Matters

An “excluded corporation” is a business entity that falls into one of two categories:

1. Non-profit corporations – formed for purposes not involving the financial gain of their members or corporators; or
2. Small businesses – employing fewer than 10 persons and not being an associated entity of another corporation.

If a company does not meet one of these two criteria, it will be barred from suing for defamation, regardless of how damaging the publication may be.

This determines the “excluded” status, a threshold issue in corporate defamation.

Non-Profit and Small Business Exception

The first category includes not-for-profit organisations, such as charities and associations, whose purpose is not to generate financial return for members.

These organisations may still bring a claim for defamation, particularly where the publication affects their ability to fulfil their mission or fundraise.

The second category relates to small businesses.

If a company employs fewer than 10 people and is not controlled by or associated with a larger corporate group (as defined by section 50AAA of the Corporations Act 2001 (Cth)), it may be able to sue.

This exception ensures that small businesses, which often rely heavily on community trust and reputation, are not unfairly disadvantaged.

In Redeemer Baptist School Ltd v Graeme Francis Glossop and 5 Ors [2006] NSWSC 1201, the Court considered these provisions. It highlighted the importance of examining the true nature and control of the business when assessing eligibility under section 9.

Employee Threshold and Control Requirements

The legislation adopts a broad definition of “employee” to prevent circumvention.

It includes not only traditional employees but also independent contractors and other individuals engaged in day-to-day operations, provided they are under the corporation’s control and direction.

Importantly, part-time workers are counted on a pro rata basis.

This means that even casual or contract workers may be included in the employee headcount if they are integrated into the business’s operations.

The number of employees is assessed at the time of publication, so timing can be critical in these matters.

The test is functional rather than formal. It focuses on control and operational engagement, not the legal structure of the work arrangement.

As stated in Heartcheck Australia Pty Ltd v Channel Seven Sydney Pty Ltd [2007] NSWSC 555 at [7], substance prevails over form in assessing eligibility under section 9(2)(b). In that case Michael Grove J says:

Heartcheck sought to rely on s9(2)(b). It was not suggested that s9(2)(a) could be applicable. On the interlocutory hearing evidence as to the nature of the engagement of persons in Heartcheck’s operations was not presented but submissions were made on the basis, without concession on the part of Channel 7, that there were fewer than ten among the large number of medical practitioners and others who were “employed” in the sense of s 9 (2)(b). Were it necessary to express a conclusion, I would be of the same view as Nicholas J in Redeemer Baptist School v Glossop [2006] NSWSC 1201 that the relevant issue is whether or not, as a matter of fact, the number of persons whose services the corporation used in its business were fewer than ten. Section9(2(b) has two requirements, the second being that Heartcheck was not “related to another corporation”.

Proving Serious Harm and Economic Loss for Corporate Plaintiffs

Even where a corporation qualifies as an excluded corporation, it must still prove that the defamatory publication caused, or is likely to cause, serious harm to its reputation.

For companies, this typically requires evidence of serious financial loss under section 10A(2), which says:

(2) For the purposes of subsection (1), harm to the reputation of an excluded corporation is not serious harm unless it has caused, or is likely to cause, the corporation serious financial loss.

Courts have held that damage to trading reputation or goodwill can satisfy this test, even where the loss is not immediate.

In Commissioner of Taxation v Sydney Refractive Surgery Centre Pty Ltd [2008] FCAFC 190, it was accepted that injury to a company’s reputation may impair its ability to earn income by discouraging others from doing business with it. Ryan, Edmonds & Gordon JJ saying at [13]:

A corporation’s reputation is part of what enables it to earn money; an injury to that reputation diminishes its capacity to earn because it reduces the corporation’s ability to induce others to do business with it, as Judge Posner observed. An award of damages for that injury is therefore no different from an award for the loss of an arm or any other injury impairing earning capacity.

Where there is no evidence of direct loss, plaintiffs may alternatively rely on loss of a capital asset or diminution of goodwill.

However, corporations cannot claim for injury to feelings or distress — such damages are reserved for individuals.

Can a Director or Officer Sue for Corporate Defamation?

An individual director, officer, or employee of a corporation may bring a defamation claim if the publication refers to them personally.

This is possible even if the same publication also defames the company.

In Bargold Pty Ltd v Mirror Newspapers Ltd [1981] 1 NSWLR 9, the Court noted that an imputation concerning a corporate officer may also reflect on the company, particularly where the individual is the “alter ego” of the business.

However, the reverse is not true—a company cannot sue for defamatory statements made solely about its officers or employees unless the statements are directly related to the company’s business or governance.

In summary, companies in Queensland and across Australia face significant legal barriers to pursuing defamation claims.

Only certain small businesses and non-profits may bring an action; even then, the plaintiff must demonstrate serious harm or financial loss.

If your company believes it has been defamed, a careful legal assessment of your status under section 9 is essential before proceeding.

Defamation and Deceased Persons

The law of defamation in Australia is concerned with protecting the personal reputation of the living.

While it is natural for relatives or associates to feel aggrieved by false and damaging statements made about a deceased person, the law imposes a strict limitation: there is no cause of action for defamation in respect of a deceased person.

This position can often be distressing for families and loved ones.

However, Australian courts and legislation have consistently maintained that the tort of defamation is a personal cause of action that does not survive death and cannot be pursued by others on behalf of the deceased.

Can You Sue for Defamation on Behalf of a Deceased Person?

The short answer is no — neither the estate of a deceased person nor any other person may commence or continue defamation proceedings for defamatory matter published about the deceased, whether the publication occurred before or after death.

This is expressly stated in section 10 of the Defamation Act 2005, which applies across most Australian jurisdictions, and says:

(1) A person (including a personal representative of a deceased person) can not assert, continue or enforce a cause of action for defamation in relation to—
(a) the publication of defamatory matter about a deceased person (whether published before or after his or her death); or
(b) the publication of defamatory matter by a person who has died since publishing the matter.
(2) Subsection (1) does not prevent a court, if it considers it in the interests of justice to do so, from determining the question of costs for proceedings discontinued because of the subsection.

At common law, the principle is clear that a cause of action in defamation is extinguished upon the death of the person defamed, and it does not vest in the estate’s personal representative.

This was affirmed in Price v Ikin [2004] NSWSC 706 and in earlier authorities which treat defamation as a personal tort that abates upon death. In that case, Master Macready says at [20], citing Levine J in Stead v Foster (Unreported, NSWSC, 4 September 1998):

I am satisfied upon the authorities above that in this case the action abated upon the death of the plaintiff. As a defamation action, it is incapable of being revived by the remaining parties or the executrix of the deceased plaintiff.

The law does not recognise any right of family members to protect the reputation of the deceased, even if they are themselves indirectly affected.

That said, if the defamatory material also defames a living person, such as a surviving spouse or child, that individual may bring their own claim if they are identifiable in the publication.

The Legal Position in Tasmania vs Other States

Tasmania is the only Australian jurisdiction that diverges from this general rule. Unlike the other states and territories, Tasmania did not adopt section 10 of the Defamation Act 2005. As a result, actions for defamation may survive death in Tasmania.

Under section 27 of the Administration and Probate Act 1935 (Tas), a cause of action may survive for the benefit of the deceased’s estate. It says:

(1)  Subject to the provisions of this section on the death of any person after the commencement of this section all causes of action–
(a) subsisting against him shall survive against his estate; and
(b) vested in him shall survive for the benefit of his estate.

This means that a personal representative may be able to sue in defamation to protect the deceased’s reputation in Tasmania, subject to statutory limitations.

However, such proceedings are rare and depend heavily on the wording and timing of the defamatory publication.

In contrast, all other jurisdictions — including Queensland — have adopted the model provision that bars defamation claims relating solely to the reputation of the deceased. This reflects the common law position and prioritises certainty and finality in defamation litigation.

What Happens to Ongoing Defamation Proceedings After Death?

If a party to defamation proceedings dies during the litigation, the outcome depends on whether that party is the plaintiff or the defendant.

• If the plaintiff (the person alleging defamation) dies, the proceedings are automatically discontinued because the cause of action does not survive. This is consistent with the general common law rule that defamation actions abate on death (see Calwell v Ipec Australia Ltd [1975] HCA 47).
• If the defendant dies, the proceedings likewise cannot continue. In both scenarios, no damages can be awarded, and no verdict entered. This rule has the potential to cause hardship, particularly where a claim is well-advanced or where substantial reputational damage has occurred.

One minor procedural exception is that a court may still make an order for costs if proceedings are discontinued due to death and section 10(1) applies — under section 10(2) of the Defamation Act 2005, which says:

(2) Subsection (1) does not prevent a court, if it considers it in the interests of justice to do so, from determining the question of costs for proceedings discontinued because of the subsection.

In summary, Australian law does not allow you to sue for defamation on behalf of a deceased person, except potentially in Tasmania.

While defamatory statements about the dead may be offensive or upsetting, they do not create a legal cause of action under defamation law.

Where the publication also affects the reputation of a living individual, they may have a separate claim, but this must be assessed on its own merits.

If you are considering a claim involving a deceased individual, legal advice should be sought urgently to explore any related claims for injurious falsehood, breach of confidence, or claims relating to the living.

Elected Bodies and Politicians

In Australia, the law of defamation recognises and protects the personal reputations of individual politicians but not those of government bodies or elected institutions.

This distinction is grounded in constitutional principles and common law tradition.

While an individual member of parliament or local councillor may sue for defamation if personally attacked, the elected body as a whole cannot bring an action to protect its collective reputation.

This position reinforces democratic accountability and reflects the public interest in allowing open criticism of governments and elected officials, even if that criticism is harsh or unfair.

Can Government Bodies Sue for Defamation?

No — democratically elected government bodies cannot sue for defamation.

This rule applies to all levels of government, including local councils, state legislatures, and Commonwealth entities.

The rationale is that such bodies are accountable through the political process, not through the courts.

In Ballina Shire Council v Ringland (1994) 33 NSWLR 680 at 691, the Court confirmed that a local council — as a democratically elected institution — has no reputation in defamation law that the courts will protect.

The judgment explained that governments are subject to scrutiny, criticism, and opposition as part of democratic life, and that the law of defamation is not the vehicle for vindicating governmental reputation.

This position was adopted in Australia to preserve the constitutional implication of freedom of communication on government and political matters, as recognised by the High Court in Australian Capital Television Pty Ltd v Commonwealth (No 2) (1992) 177 CLR 106 and Nationwide News Pty Ltd v Wills (1992) 177 CLR 1.

The Lange Principle and Qualified Privilege for Politicians

While elected government bodies cannot sue for defamation, individual politicians—whether federal, state, or local—are entitled to bring claims to protect their personal reputations. Their position does not diminish their standing as individuals under defamation law.

However, any claim by a politician must contend with the constitutional defence of qualified privilege, as developed in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520.

Known as the “Lange principle”, this defence protects communications made to the public about government or political matters, even if they contain defamatory content, provided the publisher was not acting with malice and took reasonable steps to verify the truth.

The High Court in Lange held that the Australian Constitution contains an implied freedom of political communication, which may override the common law in appropriate cases.

This freedom is not a personal right but a limitation on legislative and executive power. It ensures that the public and media can freely discuss political figures and their conduct, even if the commentary is critical or controversial.

This means that politicians who sue for defamation must overcome a robust public interest defence, especially where the publication concerns their performance in public office.

Recent cases such as Hockey v Fairfax Media Publications Pty Ltd [2015] FCA 652, Dutton v Bazzi [2021] FCA 1474, and Barilaro v Google LLC [2022] FCA 650 have demonstrated how courts apply the Lange principle in practice, balancing reputational rights against the need for open political discourse.

Why Public Figures Aren’t Subject to a “Public Figure Test” in Australia

Unlike the United States, Australian defamation law does not apply a “public figure test” that imposes a higher burden on plaintiffs based on their status.

In New York Times Co v Sullivan 376 US 254 (1964), the U.S. Supreme Court established that public figures must prove actual malice — that is, knowledge of falsity or reckless disregard for the truth.

Australia has not adopted this approach, and there is no statutory or common law requirement that a plaintiff demonstrate a higher standard merely because they are a public figure.

Instead, Australian law uses defences such as qualified privilege, contextual truth, and honest opinion, which are available to all defendants, regardless of the plaintiff’s public status.

These defences, coupled with the Lange principle, provide substantial protection for speech about public figures, without shifting the burden onto the plaintiff to prove malice.

In summary, elected officials and politicians in Australia retain the personal right to sue for defamation, but the institutions they serve cannot.

This legal framework reflects a deliberate policy choice: to preserve democratic accountability and protect free political communication, while still allowing individuals to defend their reputations when wrongly attacked.

Any politician considering a defamation claim should obtain legal advice early to assess the risk of constitutional defences, the need to prove serious harm, and whether alternative remedies or reputational responses are more effective.

Foreign Nationals and Overseas Companies

In today’s global digital environment, defamatory material often crosses borders instantly, raising complex legal questions about where and whether a person or company can sue.

Foreign individuals and companies defamed in Australia, or whose reputations are harmed by publications accessible in Australia, may wonder whether they can pursue legal action in Australian courts.

The answer is that foreign nationals and overseas corporations can sue for defamation in Australia, but only in limited circumstances.

They must overcome several legal hurdles, including jurisdiction, reputational standing within the forum, and the statutory requirement to prove serious harm.

Can Foreigners Sue for Defamation in Australian Courts?

Yes — a foreign person or overseas company may bring a claim for defamation in an Australian court, provided the publication occurred in Australia or was accessible and downloaded in the jurisdiction.

Courts in Australia apply common law and statutory defamation principles to both residents and non-residents alike, subject to forum and procedural rules.

In Dow Jones and Company Inc v Gutnick [2002] HCA 56, the High Court confirmed that a person may sue for defamation in any jurisdiction where the defamatory material is published, which, in the case of internet publications, is where the material is downloaded and comprehended.

In that case, Mr Gutnick, an Australian businessman, successfully argued that publication occurred in Victoria when a defamatory article was downloaded there — despite the publisher being based in the United States. The majority of the Court said at [44]:

In defamation, the same considerations that require rejection of locating the tort by reference only to the publisher’s conduct, lead to the conclusion that, ordinarily, defamation is to be located at the place where the damage to reputation occurs. Ordinarily that will be where the material which is alleged to be defamatory is available in comprehensible form assuming, of course, that the person defamed has in that place a reputation which is thereby damaged. It is only when the material is in comprehensible form that the damage to reputation is done and it is damage to reputation which is the principal focus of defamation, not any quality of the defendant’s conduct. In the case of material on the World Wide Web, it is not available in comprehensible form until downloaded on to the computer of a person who has used a web browser to pull the material from the web server. It is where that person downloads the material that the damage to reputation may be done. Ordinarily then, that will be the place where the tort of defamation is committed.

This decision confirms that jurisdiction is determined by the place of publication, not the place of upload or the publisher’s residence.

As a result, a foreign plaintiff may sue in Australia if the defamatory material was read, received, or accessed within the country, even if they live or work elsewhere.

Challenges of Jurisdiction, Reputation, and Serious Harm

Despite the theoretical right to sue, foreign plaintiffs face practical and legal challenges:

1. Jurisdiction and Forum Conveniens.
2. Reputation Within Australia.
3. Proof of Serious Harm.

We will explore these in more detail below.

Jurisdiction and Forum Conveniens

Australian courts must be satisfied that the claim is properly brought within the jurisdiction.

If multiple jurisdictions are possible, the defendant may argue that another court, typically in the plaintiff’s home country, is the more appropriate forum.

Courts will weigh factors such as the parties’ locations, the extent of publication, applicable law, and the convenience of witnesses.

Reputation Within Australia

To succeed, the plaintiff must demonstrate that they had a reputation within Australia capable of being harmed.  This can be particularly difficult when the defamatory publications were on social media. Read more here – Social Media Defamation – Complete Guide

This means the person or company must have a recognisable presence, reputation, or standing in the community.

If the plaintiff is entirely unknown in Australia, the court may award nominal or no damages, even if defamation is established.

This was highlighted in Jameel v Dow Jones & Co Inc [2005] EWCA Civ 75, which cautioned against allowing “libel tourism” in cases involving minimal reputational damage.

Proof of Serious Harm

Under section 10A of the Defamation Act 2005, all plaintiffs — including foreigners — must now prove that the publication has caused, or is likely to cause, serious harm to their reputation.

For corporations, this equates to proving serious financial loss.

A foreign plaintiff must lead concrete evidence of actual or likely reputational damage within Australia, rather than relying on abstract harm or feelings of insult.

The court will consider the extent of publication within Australia, the plaintiff’s profile or activity in the jurisdiction, and the impact on their personal or commercial relationships.

Key Precedents on International Defamation Claims

Several key cases help clarify the position of foreign plaintiffs in Australian defamation law:

• Dow Jones and Company Inc v Gutnick [2002] HCA 56: The leading High Court decision on internet publication and jurisdiction. It confirmed that defamation proceedings may be brought in any jurisdiction where the material is downloaded and reputational damage occurs.
• Pisani v Lawson 133 ER 35: A foundational common law case recognising that a foreign plaintiff can bring defamation proceedings in an English (now common law) court.
• Jameel v Dow Jones & Co Inc [2005] EWCA Civ 75: This English case, while not binding, is influential. It emphasised the need for a real and substantial tort to be shown within the jurisdiction, and discouraged trivial or opportunistic claims with no local impact.

These cases collectively establish that foreign plaintiffs must show a real reputational interest within Australia, publication to a meaningful audience, and actual or likely serious harm.

While foreign nationals and overseas corporations can sue for defamation in Australia, doing so requires a clear connection to the jurisdiction.

Plaintiffs must show that the defamatory material was published here, that they have a recognisable reputation among an Australian audience, and that they suffered serious reputational or financial harm.

For individuals or companies with an international profile or where defamatory content is widely disseminated online, Australia may be a viable forum—but only with careful legal strategy and robust evidentiary preparation.

If you are a foreign national or business defamed in Australia, it is essential to seek legal advice on jurisdictional suitability, potential damages, and procedural considerations before commencing proceedings.

Group Defamation and Identifiability

In defamation law, it is well established that the defamatory material must refer to a specific person, either explicitly or by implication.

Where a statement targets a group, rather than a named individual, it becomes more complex.

While a group as a whole usually cannot sue unless it has legal personality (such as a company or incorporated association), individual members of the group may be able to sue, provided certain legal conditions are met.

The central issue in such claims is whether the publication reasonably identifies the individual plaintiff as the person defamed.

If so, the law permits that person to bring an action, even though others in the group are not named or involved.

Can a Member of a Group Bring a Defamation Claim?

Yes, an individual member of a group may bring a defamation claim if the defamatory matter can reasonably be understood to refer to them directly or indirectly, even if the statement was made about the group as a whole.

This is particularly relevant when a group is small or where the individual plays a prominent or well-known role.

The law recognises that defamatory imputations about a collective body may, in some cases, harm the reputations of identifiable members within that group.

For instance, if a publication states that “the partners of XYZ Law Firm are corrupt,” and there are only three partners, any one of them may be able to bring an action.

But if the statement referred to “lawyers in Australia” — a vastly large and indeterminate group — it would be difficult for an individual to claim that the statement identified them specifically.

Legal Tests for Identifying Individuals in Group Defamation

The key legal test is whether the words used in the publication reasonably lead an ordinary, reasonable reader to believe that the defamatory matter refers to the plaintiff.

This test has been developed through common law and focuses on identifiability.

Two key factors affect whether an individual can succeed:

1. Size of the Group
2. Specific Identification or Role Within the Group

We will explain these in more detail below:

Size of the Group

The smaller the group, the more likely it is that a reader would associate the defamatory remark with each individual member.

Courts have generally accepted that if a group contains a relatively small number of persons, and no specific person is named, a plaintiff may still be identified by inference.

Although there is no fixed number, courts have treated groups of up to 25 or fewer as capable of supporting individual claims depending on the context.

The test is ultimately one of reasonable inference, not rigid mathematics.

Specific Identification or Role Within the Group

Where the individual has a particular role or prominence within the group, even a statement about a larger group may be sufficient.

For example, if a person is a spokesperson, leader, or otherwise publicly associated with the group, and the publication reflects poorly on the group’s conduct, that person may be identified as the target of the defamatory meaning.

In such cases, the role and public association of the plaintiff with the group is critical.

The publication must lead the ordinary person to believe that the plaintiff was being implicated, even if not named.

This legal position has been endorsed and applied in Australia under common law principles.

While the case law is fact-specific, courts have consistently assessed the language, context, and group characteristics to determine whether the plaintiff is reasonably identified.

An individual who is defamed as part of a group may sue — but only if they can show that a reasonable person would have understood the defamatory statement to refer to them.

The smaller and more distinctive the group, the easier this will be.

Plaintiffs who hold a visible or prominent role within the group may also satisfy this requirement even where the group is larger.

If you believe you’ve been defamed as part of a group — whether professional, social, religious, or otherwise — legal advice should be sought promptly. Identifiability is often a threshold issue and may determine whether you can proceed with a defamation claim at all.

Defamation and Partnerships

In Australia, partnerships are commonly used business structures in industries ranging from legal and accounting firms to construction and medical practices.

When defamatory material is published about a partnership, either the business itself or the individual partners may seek to take action — but the legal standing to sue and the nature of damages available will depend on how the claim is framed.

Understanding who may sue — and what they can recover — is essential for protecting the commercial reputation of a partnership without overreaching legal entitlement.

Can a Business Partnership Sue for Defamation?

Yes, a business partnership may sue for defamation in its own name, provided that it is identifiable in the publication and the matter defames the partnership as a trading entity.

The ability to sue arises from the recognition that a partnership can suffer damage to its trading or business reputation, distinct from any harm caused to its individual partners.

In Todd v Swan Television and Radio Pty Ltd [2001] WASC 334 at [76], the Court said:

There is no doubt that a partnership has a personality which is capable of being defamed and in respect of which it can bring an action for libel … However the partners cannot sue jointly in respect of a defamation causing injury to an individual member of the firm.

In that case, the court recognised that a partnership may bring a claim where defamatory content relates to the business as a whole, rather than targeting individual partners.

However, a partnership cannot sue for injury to feelings or emotional distress, as it is not a natural person.

The cause of action is strictly limited to harm affecting the commercial interests of the business.

Difference Between Individual Partner Claims and Partnership Claims

There is a clear distinction between a defamation claim brought by the partnership and one brought by an individual partner.

If the defamatory material identifies and refers to a specific partner, that person may bring an action in their own right, alleging damage to their personal or professional reputation.

Conversely, if the defamatory matter concerns the firm or brand name of the partnership, or refers to the group collectively (such as “the doctors at XYZ Medical Practice“), the partnership may have standing to sue.

In Le Fanu v Malcolmson (1848) 1 HLC 637, the court accepted that a group of persons engaged in trade may bring a claim for defamation, provided the group — here, the partnership — is sufficiently identified and the publication imputes misconduct to the group in its business capacity.

It is also possible for both the partnership and individual partners to pursue claims arising from the same defamatory publication, provided each has been separately and sufficiently identified and harmed.

What Damages Can a Partnership Recover?

A partnership, being a non-natural entity, is restricted in the types of damages it may claim. Specifically, a partnership can seek damages for:

• Loss of commercial reputation.
• Loss of goodwill.
• Loss of customers or clients; and
• Other economic damage flowing from the defamatory publication.

However, a partnership cannot recover damages for hurt feelings, distress, or personal insult — these are reserved exclusively for individual plaintiffs.

As noted in Haythorn v Lawson (1827) 3 C&P 195, such damages are not available to legal entities like partnerships.

Where a partnership suffers reputational harm, the damages awarded will focus on quantifiable business loss, such as a drop in income, cancelled contracts, or loss of business opportunities.

Courts will consider factors such as the extent of publication, its impact on trading relationships, and any financial evidence of downturn following the defamatory material.

In summary, a business partnership can sue for defamation when a publication damages its commercial standing—but only for economic or reputational loss, not for emotional injury.

Individual partners, however, may bring their own claims if the defamatory matter refers to them personally.

If you believe your business partnership has been defamed — or if you are a partner targeted in a publication — legal advice should be sought without delay.

Defamation claims have strict time limits and careful pleading is required to establish both standing and the appropriate form of damages.

Unincorporated Associations and Their Limits in Defamation Law

In Australia, many community groups, sporting clubs, charities, and religious organisations operate as unincorporated associations.

These associations are commonly formed without legal formalities and may not be registered under any corporate structure.

While they often play an important role in the community, their ability to sue for defamation is extremely limited — and in most cases, they have no legal capacity to bring proceedings at all.

If your club, society, or group has been defamed, understanding whether it has legal standing is essential before considering litigation.

Can an Unincorporated Club or Association Sue for Defamation?

No — an unincorporated association cannot sue for defamation in its own name.

This is because it is not recognised as a legal person under Australian law.

Only individuals, corporations, partnerships, and other legal entities with separate legal personality can bring a defamation claim.

This principle was clearly established in Cother v John Fairfax & Sons Pty Ltd (1947) 64 WN (NSW) 154, where the court held that an unincorporated body lacks standing to sue, as it does not exist as a legal entity distinct from its members.

Without legal personality, the association has no rights, obligations, or capacity to hold property or litigate in its own name.

Therefore, even if the defamatory material refers directly to the association — for example, “XYZ Residents’ Group is corrupt” — the association itself cannot commence proceedings unless it is incorporated under the relevant state or territory law.

Incorporation as a Precondition to Legal Action

To bring a defamation claim, a club or group must be legally incorporated, either:

• Under the Associations Incorporation Act of the relevant state or territory (for example, the Associations Incorporation Act 1981 (Qld)); or
• As a company limited by guarantee or other body corporate under the Corporations Act 2001 (Cth).

Once incorporated, the association gains legal personality, enabling it to hold property, enter contracts, and — importantly — sue or be sued in its own name.

However, even after incorporation, the association must still satisfy the additional requirements imposed by defamation legislation.

For instance, under section 9 of the Defamation Act 2005 (Qld), most corporations are prohibited from suing for defamation unless they are excluded corporations, such as:

• Not-for-profit associations; or
• Small businesses employing fewer than 10 people and not associated with a larger entity.

So, even an incorporated association must prove that it qualifies under one of these exemptions before pursuing a claim.

In practice, this means that local sporting clubs, volunteer-run charities, or unincorporated resident committees cannot sue for defamation, regardless of the seriousness of the imputation.

If defamation occurs, individual members may only bring personal claims if the publication also defames them personally and they are reasonably identifiable from the statement.

Unincorporated associations have no legal capacity to sue for defamation because they lack a separate legal identity.

To pursue legal action, a club or group must first be incorporated under the appropriate legislative scheme.

Even then, it must meet the eligibility requirements set out in the Defamation Act — most importantly, whether it is an excluded corporation under section 9.

If you represent or are involved in a community group or club that has suffered reputational damage, it is critical to assess:

1. Whether the group is incorporated.
2. Whether individual members are personally defamed and identifiable; and
3. Whether the association qualifies to sue under defamation law.

Legal advice should be sought promptly to explore available remedies and avoid incurring unnecessary costs in proceedings where standing is uncertain or lacking.

Key Takeaways – Who Can Sue for Defamation?

In defamation law, whether a person or entity has the legal capacity to sue is not just a technical issue—it is a threshold legal requirement.

Before initiating proceedings, potential plaintiffs must carefully consider whether they fall within a class of persons or bodies recognised by law as having standing to bring a defamation action.

The legal landscape is nuanced, and defamation claims are governed by statutory restrictions, common law principles, and evolving judicial interpretation.

A failure to correctly assess capacity at the outset may result in the dismissal of proceedings, adverse costs orders, or reputational and financial harm that outweighs the benefits of litigation.

Summary of Who Can and Cannot Sue for Defamation

Understanding who is eligible to sue is essential. Below is a summary of entities who can and cannot bring defamation proceedings in Australia:

Who Can Sue:

• Individuals: Any living natural person, regardless of age, nationality, or financial status.
• Bankrupt Individuals: A bankrupt may sue in their own right, as the cause of action for defamation does not vest in the trustee in bankruptcy (Sands v State of South Australia [2015] SASCFC 36 at [138]–[139]).
• Excluded Corporations: Corporations that are either:
  • Not-for-profit organisations; or
  • Small businesses with fewer than 10 employees and not associated with another corporation (Defamation Act 2005 (Qld), s 9).
• Partnerships: May sue in their own name where the defamatory publication concerns the trading or business reputation of the partnership (Todd v Swan Television and Radio Pty Ltd [2001] WASC 334).
• Foreign Individuals and Companies: May sue if the defamatory matter is published in Australia and they have a reputation within the jurisdiction (Dow Jones and Company Inc v Gutnick [2002] HCA 56).
• Politicians (as individuals): Can sue in their personal capacity, although their claims are subject to constitutional protections such as the Lange qualified privilege (Lange v Australian Broadcasting Corporation (1997) 189 CLR 520).

Who Cannot Sue:

• Deceased Persons: No cause of action survives death; neither estates nor family members may sue (Price v Ikin [2004] NSWSC 706).
• Government Bodies: Local councils, state and federal government agencies cannot sue for defamation (Ballina Shire Council v Ringland (1994) 33 NSWLR 680).
• Unincorporated Associations: Cannot sue in their own name unless incorporated under relevant legislation (Cother v John Fairfax & Sons Pty Ltd (1947) 64 WN (NSW) 154).
• Most Corporations: Large, for-profit trading corporations are excluded unless they qualify under s 9 of the Defamation Act 2005.

Strategic Considerations Before Initiating a Defamation Claim

Before bringing a defamation claim, plaintiffs should give careful thought to the strategic, reputational, and legal implications of litigation. Key considerations include:

1. Capacity to Sue: Establish whether the plaintiff has standing under the relevant law.
2. Proof of Serious Harm: Plaintiffs must demonstrate that the publication has caused or is likely to cause serious harm to their reputation (s 10A, Defamation Act 2005). For corporations, this means proving serious financial loss.
3. Identifiability: In cases of group or partnership defamation, consider whether the plaintiff is reasonably identifiable from the content.
4. Alternative Remedies: In some cases, a correction, right of reply, or public apology may be more cost-effective and reputationally sound than formal litigation.
5. Risk of Defences: Anticipate that the defendant may rely on defences such as truth, honest opinion, or qualified privilege, including the constitutional freedom of political communication.

Litigation should not be commenced lightly, especially in defamation, where the cost risks and reputational blowback can be significant.

In summary, while the Defamation Act 2005 harmonised the law across most jurisdictions, further refinements are expected to address emerging challenges in digital publication, online anonymity, and jurisdictional overlap.

Defamation law balances the right to protect reputation with the fundamental value of free expression.

Plaintiffs must satisfy strict requirements to commence and succeed in proceedings, beginning with the question of legal capacity.

If you believe you have been defamed, seeking legal advice early is essential.

A careful evaluation of standing, harm, defences, and strategic alternatives will give you the best foundation for protecting your name — or your business’s good standing — through lawful and proportionate means.

Frequently Asked Questions – Who Can Sue for Defamation?

Understanding who can bring a defamation claim is one of defamation law’s most important — and most misunderstood — aspects.

Not every person, business, or organisation has the legal capacity to sue.

This FAQ section is designed to help individuals and small entities understand their rights and limitations when initiating defamation proceedings under Australian law.

Whether you’re an individual, a small business owner, part of a community group, or representing a company or estate, these FAQs will clarify the legal rules, highlight common pitfalls, and guide you on what steps to take before commencing legal action.

Each answer is grounded in Australian legislation and case law and written in plain English to provide clear, accurate guidance.

Can anyone sue for defamation in Australia?

No. Only persons or entities with recognised legal capacity can sue. This includes individuals, certain small or not-for-profit corporations, partnerships, and some foreign entities. You must also prove serious harm. Deceased persons, most corporations, and unincorporated associations cannot bring a claim. Legal advice should be sought to confirm your standing before commencing proceedings.

Can a bankrupt person sue for defamation?

Yes. A bankrupt retains the right to sue for defamation in their own name because personal reputation does not form part of the bankrupt estate. The damages awarded belong to the bankrupt, not the trustee. However, any financial claims linked to business or property interests may vest in the trustee, so distinctions should be made clearly.

Can a company sue for defamation in Australia?

Only if it qualifies as an “excluded corporation” under section 9 of the Defamation Act 2005, which includes non-profit entities or companies with fewer than 10 employees and no corporate associations, larger trading corporations cannot sue for defamation, although they may have alternative causes of action, such as injurious falsehood.

What is an ‘excluded corporation’?

An excluded corporation is either a not-for-profit organisation or a small company with fewer than 10 employees and not controlled by another corporation. Only these entities can sue for defamation under section 9 of the Defamation Act 2005. The number of employees is assessed at the time of publication and includes part-time staff on a pro rata basis.

Can a deceased person’s family sue for defamation?

No. Under section 10 of the Defamation Act 2005, no action can be brought on behalf of a deceased person, regardless of whether the defamation occurred before or after death. The cause of action does not survive and cannot be continued by family members or personal representatives. This rule applies in all states except Tasmania.

Can local councils or government bodies sue for defamation?

No. Democratically elected institutions such as councils or government departments have no standing to sue for defamation. Courts have held that such bodies are accountable through the political process, not the courts. However, individual politicians may sue in a personal capacity if the defamatory content identifies and harms them individually.

Can individual politicians sue for defamation?

Yes. Politicians may sue in their personal capacity if a publication defames them directly. However, their claims are subject to the defence of qualified privilege, particularly under the Lange principle, which protects political communication in the public interest. Courts will also consider whether the statement was made with malice or reasonable care. Read more here – Malice in Defamation Claims: A Comprehensive Guide.

Can a partnership sue for defamation?

Yes. A business partnership may sue for defamation if the publication damages the partnership’s business or trading reputation. The partnership cannot recover damages for hurt feelings or emotional distress. Only financial loss or reputational damage to the business itself can be compensated. Individual partners may also sue if they are personally defamed.

Can members of a group bring a defamation claim?

Yes, but only if the individual is reasonably identifiable from the defamatory content. The smaller and more distinct the group, the more likely a court will find that the person is identified. If the group is large or undefined, claims are unlikely to succeed unless specific individuals are associated with the statements.

Can foreign individuals sue for defamation in Australia?

Yes, provided the defamatory content was published or accessed in Australia and the person has a reputation within the jurisdiction. The plaintiff must also prove that serious harm has occurred. The court will scrutinise jurisdictional issues such as forum conveniens and reputation within the country before proceeding.

Can overseas companies sue for defamation in Australia?

Overseas companies may sue if they can show that the defamatory material was published in Australia and that they had a reputation here. As with local corporations, they must also prove serious financial loss under section 10A. Courts will consider the extent of publication and local impact before allowing the case to proceed.

Can unincorporated associations sue for defamation?

No. An unincorporated association has no legal personality and therefore cannot bring legal proceedings in its own name. The group must be incorporated under the appropriate state or territory legislation to sue for defamation. Individual members may only sue if they are personally defamed and identifiable from the publication.

Can someone sue if the defamation was part of a group statement?

Only if the individual was reasonably identified within the group. Courts assess factors such as the size of the group, the plaintiff’s role, and the wording of the publication. Where a group is small or the plaintiff has a prominent position, identification is more likely. Otherwise, claims involving general group references often fail.

Does the publication have to mention someone by name to be defamatory?

No. A person may be defamed even if they are not named, so long as the ordinary, reasonable reader would understand the defamatory content to refer to them. This applies especially in group or business contexts where identification is implied through role, position, or context.

What damages can a company or partnership claim in defamation?

A company or partnership can only claim damages for financial or reputational loss, not for emotional harm or personal distress. This includes loss of clients, revenue, goodwill, or future business opportunities. Courts require evidence of actual loss or a significant risk of loss to justify a financial award.

Can multiple people sue over the same defamatory publication?

Yes, if each person is individually identified and harmed by the publication. This may arise in group settings, partnerships, or within families. However, each plaintiff must meet the legal requirements individually and prove that the defamatory statement was understood to refer to them personally.

Does incorporation affect the right to sue for defamation?

Yes. Only incorporated associations have legal standing to sue. If a group is not incorporated, it cannot bring a claim in its own name. Incorporation gives the group legal personality and the capacity to hold property, enter into contracts, and pursue litigation, subject to further restrictions under defamation law.

Can a trustee sue for defamation on behalf of a bankrupt?

No. A bankruptcy trustee cannot sue for defamation on behalf of the bankrupt because the trustee’s personal reputation does not vest in the trustee. However, the trustee may pursue other claims related to property or commercial torts, such as slander of title or slander of goods, where appropriate.

Can a court award costs even if a defamation case is discontinued due to death?

Yes. While the cause of action for defamation does not survive death, courts may still determine costs if proceedings are discontinued because of section 10 of the Defamation Act 2005. This allows the court to fairly apportion legal expenses even where the main claim cannot proceed.