NEWS CORP AUSTRALIA & ORS (according to the attached schedule)
Proposed Interveners
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JUDGES:
TATE and BEACH JJA
WHERE HELD:
MELBOURNE
DATE OF HEARING:
22 March 2018
DATE OF JUDGMENT:
22 March 2018
MEDIUM NEUTRAL CITATION:
[2018] VSCA 68
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PRACTICE AND PROCEDURE – Application for leave to intervene by media organisations – Defamation proceedings – Issue concerning construction of s 35 of Defamation Act 2005 – Media’s interest in proper construction of s 35 – Media wishing to support construction of s 35 already being advanced by applicants – Whether media’s contribution as interveners would be useful or different from contribution of applicants – Capacity of applicants to advance all relevant arguments – Application to intervene dismissed.
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APPEARANCES:
Counsel
Solicitors
For the Applicants
Mr M F Wheelahan QC with Ms C L Alden
Johnson Winter & Slattery
For the Respondent
Ms R L Enbom
Corrs Chambers Westgarth
For the Proposed Interveners
Mr D G Collins QC with Mr E J Batrouney
M & K Lawyers Group Pty Ltd
TATE JA BEACH JA:
On 13 September 2017, following a 19-day defamation trial, a judge of the Trial Division entered judgment for the plaintiff, Rebel Wilson, against the defendants, Bauer Media Pty Ltd and Bauer Media Australia Pty Ltd, in the amount of $4,749,920.60 (including damages in the nature of interest in the sum of $182,448.61). The defendants have sought leave to appeal against the judgment. The proposed grounds of appeal all relate to the assessment of the plaintiff’s damages. Proposed ground 6 concerns the trial judge’s construction of s 35 of the Defamation Act 2005 (‘the Act’).
As part of his assessment of damages, the trial judge assessed the plaintiff’s general damages (including aggravated damages in relation to the circumstances of publication and in relation to post-publication conduct) in the sum of $650,000.
At the time the judge made his award of damages, s 35(1) of the Act operated to limit the maximum amount of damages for non-economic loss that could be awarded in defamation proceedings to the sum of $389,500. Section 35(2) of the Act permitted a court to order a defendant in defamation proceedings to pay damages for non-economic loss that exceed the maximum prescribed under s 35(1):
if, and only if, the court is satisfied that the circumstances of the publication of the defamatory matter to which the proceedings relate are such as to warrant an award of aggravated damages.
At trial, the plaintiff submitted that s 35 imposed no constraint on a plaintiff’s entitlement to damages for non-economic loss if the publisher of the defamatory matter had engaged in conduct warranting an award of aggravated damages.
The defendants, however, disputed the plaintiff’s construction. They submitted that the language of s 35 showed a ‘clear intention’ that only the aggravated damages component of general damages for non-economic loss…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Bauer Media Pty Ltd v Wilson [2018] VSCA 68
Case
[2018] VSCA 68
Decision Date
CaseChat Overview and Summary
Bauer Media Pty Ltd, a media company, and Wilson, an individual, were involved in a defamation dispute that came before the Federal Court of Australia. The case focused on the interpretation of section 35 of the Defamation Act 2005, which deals with the defence of qualified privilege in defamation cases. Several media organisations sought to intervene in the proceedings, aiming to support the construction of section 35 that was being advocated by Bauer Media. The primary legal issue for the court was whether the media organisations' intervention would be useful or different from the arguments already being presented by the applicant, and whether Bauer Media had the capacity to advance all relevant arguments on the matter.
The court considered the established principle that intervention by third parties in litigation is not encouraged unless it is necessary and can provide a unique or different perspective that would be beneficial to the case. The court found that Bauer Media was fully capable of presenting all necessary arguments regarding the interpretation of section 35, and that the media organisations' proposed intervention would not provide any additional or different insights. Consequently, the application for leave to intervene was dismissed.
In summary, the Federal Court of Australia determined that the media organisations' intervention in the defamation case between Bauer Media and Wilson was not warranted. The court found that Bauer Media could adequately represent the interests of the media in the proper construction of section 35 of the Defamation Act 2005. The court dismissed the application for leave to intervene, emphasising the importance of ensuring that any intervention in litigation is both necessary and able to provide a unique or different perspective that would be beneficial to the case.