Understanding Excluded Corporations in Australian Defamation Law

Introduction: The Deep Cycle Systems Case

A Queensland District Court decision has provided valuable guidance on what constitutes an "excluded corporation" under Australian defamation law. In Deep Cycle Systems Pty Ltd v Fischer [2025] QDC 25, a lithium battery manufacturer sued for defamation over publications made between August and December 2023. The defendant successfully applied for a separate determination of whether the plaintiff was an excluded corporation under section 9 of the Defamation Act 2005 (Qld). The court ultimately found that the plaintiff failed to establish it was an excluded corporation, meaning it could not maintain its defamation action.

The Statutory Framework

Under section 9(1) of the Defamation Act 2005, a corporation has no cause of action for defamation in relation to the publication of defamatory matter unless it was an "excluded corporation" at the time of publication. This provision exists across all Australian jurisdictions as part of the uniform defamation legislation.

To qualify as an excluded corporation under section 9(2), a corporation must satisfy two requirements:

  1. It employs fewer than 10 persons; and

  2. It is not an associated entity of another corporation.

Both elements must be established on the balance of probabilities at the time of the relevant publications.

The Employee Test: A Broader Definition

The definition of "employee" in section 9(6) extends beyond traditional common law employment concepts. As noted in Aaren Pty Ltd trading as Price Beat Travel v Arya [2020] NSWDC 657, following observations in Born Brands Pty Ltd v Nine Network Australia Pty Ltd (2014) 88 NSWLR 421, the relationship between the corporation and its employees need not be direct.

In Deep Cycle Systems, the court considered various categories of workers:

  • Direct employees under contract

  • Freelance engineers

  • Family members working voluntarily

  • Dealers and distributors

  • Potential overseas workers

The court found that dealers who could be terminated for failing to meet "minimum dealer requirements" fell within the broad definition of employees. However, mere volunteers, such as family members working without payment, were not considered employees.

The Associated Entity Test

The second limb requires corporations to prove they are not an "associated entity" of another corporation. This term takes its meaning from section 50AAA of the Corporations Act 2001 (Cth).

Under section 50AAA(7), the test is satisfied where:

  • A third entity controls both the principal and the associate; and

  • The operations, resources or affairs of the principal and the associate are both material to the third entity.

The Materiality and Nexus Requirement

Following Fair Work Ombudsman v Priority Matters Pty Ltd & Anor [2016] FCCA 1474, there must be a nexus between the associated entities in their respective operations, resources or affairs that are jointly material to the third entity. It is not sufficient that each entity is separately material to the controlling entity.

"Material" is understood to mean "of substantial import or much consequence" or "important or having an important effect." The determination of materiality depends on issues of fact and degree.

Key Indicators of Association

In Deep Cycle Systems, the court found the corporations were associated entities based on several factors:

  1. Shared financial resources: Use of a single credit card for both companies' expenses with only annual reconciliation

  2. Inter-company loans: Significant loans between the entities and to the controlling director

  3. Shared physical assets: Vehicles and equipment used by both companies

  4. Cross-promotional activities: Use of one company's marketing channels to advertise the other's products

  5. Financial interdependency: Movement of money between entities suggesting joint income generation

The court emphasized that while separate business operations and accounting systems are relevant, they do not necessarily prevent a finding of association where other factors demonstrate material interdependency.

Practical Implications

For corporations contemplating defamation proceedings, establishing excluded corporation status requires careful attention to:

  1. Accurate employee counting: Include all workers falling within the expanded definition, including contractors, dealers, and others under the corporation's direction or control

  2. Documentary evidence: Maintain clear records of employment arrangements and corporate structures

  3. Financial separation: Ensure genuine independence between related entities, particularly in financial dealings

  4. Credibility: The court will carefully scrutinize evidence, particularly where witnesses have made admittedly false statements about business arrangements

Conclusion

The Deep Cycle Systems decision reinforces that the excluded corporation provisions are interpreted strictly. Corporations must satisfy both limbs of the test with credible evidence. The broad definition of "employee" and the practical approach to determining "associated entity" status mean that many corporations that might consider themselves small or independent may still be unable to sue for defamation.

Legal practitioners should carefully assess their corporate clients' structures and operations before commencing defamation proceedings, as failure to establish excluded corporation status will result in the proceedings being dismissed, potentially with adverse costs consequences.