Putting Down a Tumescent Tort with a Kiwi Approach
Distended Defamation… Unsplash
The past half-decade has seen a flurry of high-powered defamation matters between public figures, soldiers, senators, political operatives, barristers and even YouTubers grace the courts on a regular basis.[1]
However, defamation proceedings across Australia in 2024 were down 48% compared to 2020.[2] Despite this, defamation has developed a reputation as a bespoke area of litigation with high public interest.
To understand where defamation as a tort currently stands, we must first examine how defamation has expanded its scope with the advent of the internet. Furthermore, the issue of costs with defamation in recent years should be evaluated.
When looking at the faults, scope and reality of this practice area, the question arises: is there a better way to address the downsides of defamation litigation?
Prohibitive Cost
It is no secret that defamation is prohibitively expensive. This isn’t unprecedented; wealthy individuals litigating against those they believe have besmirched their reputation have a storied history.[5]
Regardless, a simple look at recent litigation reveals how the cost of defamation has swollen. The case of Al-Muderis (2025) cost an estimated $19 million.[6] Ben Roberts-Smith (2023) accrued costs of over $30 million, and the infamous Lehrman (2024) case cost over $3.6 million just for the respondent parties.[7] Such costs can be summarised with one word: absurd.
Admittedly, these cases were bolstered with Senior Counsel, experienced solicitors and a boatload of legal support. But the reality is that resisting such litigation is beyond all but the wealthiest individuals. Even then, when initiated, there is little incentive to stop accruing costs if an applicant who is able to afford the proceedings wishes to continue so, castrating the respondents financially.
The case of Munro v Wheeler (No 3) [2025] NSWDC 3 (‘Munro’) serves as an example that defamation, as it stands, is too costly for most people.[8] In Munro, the respondent, who was found not to have defamed the applicant, was driven to near financial ruin despite repeated attempts to resolve the matter outside of court.[9] The economic impact in Munro was so forceful that the respondent became a self-represented litigant due to the inability to pay legal costs.[10]
Defamation and the Internet
Defamation is not exactly geared to address the Internet. The issue of how social media has changed defamation has been discussed in this publication this year in the article ‘Courtroom Consequences of a Like’.[3] However, generally speaking, it has to be accepted that through the power of the now-standard mobile phone, any individual can publish defamatory material almost instantly.
Liability for defamatory statements online is wide-reaching. In the decision of Fairfax Media Publications Pty Ltd and Dylan Voller [2021] HCA 27 (‘Voller’), the High Court of Australia found that administrators of online pages where defamatory comments were made were in fact publishers liable for the publication of comments, and therefore liable for defamation action.[4] If you’ve ever wondered why comments are turned off on almost all news articles, the decision of Voller is why.
Voller, however, doesn’t exactly solve the fundamental issue that the ability to be anonymous on the internet makes finding the identity of anonymous defamers a costly and strenuous activity, which serves to ramp up costs. The scope of defamation, increasing with Voller, simply ramps up the costs for everyone, be that people initiating litigation or content publishers investing in moderators.
While, undoubtedly, defamation's scope can be wide-reaching with regard to online publication, this can be viewed as problematic when taking into account the significant costs that may be involved in bringing a matter before the Courts.
New Zealand and the Reshaping of a Tort
In a world where a defamatory statement could be launched in seconds by way of the Internet, the costs to simply litigate defamation are almost unthinkable.
The answer then comes: what could be the future for defamation? A clue may lie in New Zealand's approach to personal injury torts. New Zealand famously curtailed its personal injury law to introduce no-fault workers' compensation between 1967 and 1972. Instead of having vindictive fights dragged out in the courtroom, all compensation cases are brought through the Accident Compensation Corporation Scheme, which pays out workers from public coffers.[11] This change occurred following the release of the Woodhouse Report. 1967, which revealed that victims of workplace accidents were suffering due to the high costs posed by litigation, as well as the difficulty of proving negligence.[12] Furthermore, the Accident Compensation Corporation Scheme stipulates a maximum payout, therefore discouraging applicants from drawing out the process or running up costs when applying.[13] Consequently, personal injury as a practice area in New Zealand is effectively dead.
While this article is not suggesting that Australia should summarily destroy defamation as a tort or pay out defamation actions from government funds, limiting guidelines placed around defamation would aim to curtail the significant litigation that Australian courts have seen play out in recent years. In other words, Australian audiences are seeing similar issues to what New Zealand found in the Woodhouse Report in defamation litigation with regard to costs and scope.
Limiting costs would also seek to constrain matters in debate, allowing for speedier resolution of defamatory claims. This would free judges to hear other cases, while limiting the ability of defamation matters to spiral both in costs and delays. Furthermore, the proposed limitation of costs would bring defamation actions back into the realm of accessibility for the average population. Likewise, capping damages at a lower level would also seek to cut costs, allowing for the resolution of defamation to instead circle around the making of orders for the revocation and disownment of the defamatory statements.
Disclaimer- Any views or considerations in this article are the views solely of the writer and do not represent any employers, the host of this content, or any other parties.
Edited by Lianne Tacardon
[1] Rush v Nationwide News Pty Ltd (No 7) [2019] FCA 496; Roberts-Smith v Fairfax Media Publications Pty Limited (No 41) [2023] FCA 555; Reynolds v Higgins [2025] WASC 345; Lehrmann v Network Ten Pty Limited (Trial Judgment) [2024] FCA 369; Edwards v Nine Network Australia Pty Limited (No 5) [2024] FCA 422; Mitchell v Jobst [2025] QDC 41.
[2] Michaela Whitbourn, ‘Why a multimillion-dollar legal boom is running out of steam’, Sydney Morning Herald (Web Page, 11 May 2025) <https://www.smh.com.au/national/nsw/why-a-multimillion-dollar-legal-boom-is-running-out-of-steam-20250411-p5lr2k.html>.
[3] Bianca Kelly, ‘Courtroom Consequences of a Like’, The Brief Online (Web Page, 29 August 2025) <https://www.muls.org/the-brief-online/courtroom-consequences-of-a-like>.
[4] Fairfax Media Publications Pty Ltd and Dylan Voller [2021] HCA 27.
[5] Merlin Holland, The Real Trial of Oscar Wilde: The first uncensored transcript of the trial of Oscar Wilde vs. John Douglas (Marquess of Queensberry), 1895 (Harper Collins, 2002).
[6] Kishor Napier-Raman and Madeleine Heffernan, ‘Al Muderis spent $19,000 on media advice. Then he ignored it’, Sydney Morning Herald (Web Page, 14 August 2025) <https://www.smh.com.au/cbd/al-muderis-spent-19-000-on-media-advice-then-he-ignored-it-20250813-p5mmnv.html>.
[7] Roberts-Smith v Fairfax Media Publications Pty Limited (No 41) [2023] FCA 555; Jamie McKinnell ‘Ben Roberts-Smith will pay defendants' legal costs in his failed defamation case’, ABC News (Web Page, 29 June 2023); Lehrmann v Network Ten Pty Limited (Costs) (No 2) [2024] FCA 706 at [7].
[8] Munro v Wheeler (No 3) [2025] NSWDC 3.
[9] Ibid; Harriet Alexander ‘ The dodgy vet, the pet detective and the million-dollar legal battle’, Sydney Morning Herald (Web Page, 25 March 2025) <https://www.smh.com.au/national/nsw/the-dodgy-vet-the-pet-detective-and-the-million-dollar-legal-battle-20250305-p5lh3p.html>
[10] Ibid; Munro v Wheeler (No 3) [2025] NSWDC 3.
[11] Accident Compensation Act 1972 (NZ); Accident Compensation Act 2001 (NZ).
[12] Aurthur Woodhouse, The Royal Commission into Compensation For Personal Injury in New Zealand (Report, December 1967), 49-55; Peter Schuck ‘Tort Reform, Kiwi-Style’ (2008) (Fall) Yale Law & Policy Review 187, 188-189.
[13] Accident Compensation Act 2001 s 46 (NZ).