When considering defamation litigation in Australia, choosing the correct court and properly framing the claim at the outset is critical. A recent Federal Court decision illustrates how jurisdictional errors — and attempts to correct them late in proceedings — can result in a claim being dismissed entirely, with significant cost consequences.
The key issue: Federal Court jurisdiction is limited
The Federal Court does not have general jurisdiction over defamation claims. A standalone defamation claim can only be heard where the alleged publication occurred in the Australian Capital Territory or the Northern Territory under the cross-vesting regime. If the alleged publication occurs in a state (for example, New South Wales, Victoria, or Western Australia), the Federal Court will generally have no jurisdiction.
This means that most defamation claims must be brought in the relevant State Supreme Court.
Attempting to “fix” jurisdiction with additional claims
In the case considered, the applicant filed defamation proceedings in the Federal Court concerning allegedly defamatory statements made at a private dinner in New South Wales. When the respondents challenged jurisdiction, the applicant attempted to amend the claim to add allegations under the Australian Consumer Law (ACL), with the apparent aim of creating federal jurisdiction.
The Court rejected this approach, finding the proposed ACL claim was not genuinely arguable and was instead an artificial attempt to manufacture jurisdiction. Because the ACL claim was found to be fundamentally defective, it could not support jurisdiction, and the entire proceeding was dismissed.
Why the defamation claim also failed
The Court also identified serious problems with the underlying defamation claim, including concerns about whether the pleaded material could satisfy the statutory “serious harm” threshold. The alleged defamatory statements arose from comments made at a private dinner with a limited audience, which raised doubts about whether the publication was capable of causing reputational harm at the level required by law.
Key procedural lessons for clients
This decision highlights several important risks in defamation litigation:
- Jurisdiction must be assessed before filing. Filing in the wrong court can result in dismissal without any hearing of the merits.
- You cannot manufacture jurisdiction. Adding unrelated federal claims late in proceedings to create jurisdiction is likely to fail and may be treated as an abuse of process.
- Timing matters. Defamation limitation periods are strict (generally one year), meaning a dismissed claim may be permanently lost if re-filing is no longer possible.
- Serious harm must be properly pleaded. Courts require clear factual evidence that reputational harm has occurred or is likely to occur — not just general allegations of distress or embarrassment.
- Cost consequences can be severe. Unsuccessful jurisdictional manoeuvres may lead to indemnity costs orders against the plaintiff.
Practical takeaway
For clients considering defamation proceedings, careful early assessment is essential. The correct forum, proper pleading of serious harm, and a genuine evidentiary foundation must all be in place before proceedings are commenced. Failure to do so can result in dismissal at an early stage, without the opportunity to have the substantive allegations heard.