Bauer Media Pty Ltd v Wilson (No 2)

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2017 0109

BAUER MEDIA PTY LTD (ACN 053 273 546) and BAUER MEDIA AUSTRALIA PTY LTD (ACN 160 041 681)	Applicants
v
REBEL MELANIE ELIZABETH WILSON [No 2]		Respondent

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JUDGES:	TATE, BEACH and ASHLEY JJA
WHERE HELD:	MELBOURNE
DATES OF HEARING:	18 and 19 April 2018
DATE OF JUDGMENT:	14 June 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 154
JUDGMENT APPEALED FROM:	[2017] VSC 521 (John Dixon J)

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DEFAMATION – Appeal – Damages – Damages for non-economic loss – Aggravated damages – Publications seriously defamatory – Serious circumstances of aggravation – Multiple matters of aggravation – Judge’s assessment of non-economic loss damages of $650,000 – Successful challenge on appeal to some of judge’s findings of aggravation – Plaintiff’s damages for non-economic loss reassessed at $600,000.

DEFAMATION – Appeal – Damages – Statutory cap on damages for non-economic loss – Whether only the aggravated damages component of damages for non-economic loss may be awarded in a sum in excess of the maximum prescribed in s 35(1) – Whether statutory cap acts as cut-off – Whether statutory cap fixes top end of range of damages that may be awarded for non-economic loss – Defamation Act 2005 ss 34 and 35 – Judge’s construction that the cap can be exceeded whenever an award of aggravated damages is warranted, correct.

DEFAMATION – Appeal – Damages – Damages for economic loss – Claim for special damages – Loss of valuable opportunity – Real review of the evidence – Plaintiff failed to establish relevant opportunity – Plaintiff failed to establish articles caused loss of opportunity – Relevance of grapevine – Judge erred in overestimation of spread and impact of grapevine effect – Judge’s award of damages for economic loss set aside.

DEFAMATION – Appeal – Damages – Damages for general decline in business – Andrews damages – Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225, Ratcliffe v Evans [1892] 2 QB 524, Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519, discussed – Claim for Andrews damages not made out.

STATUTES – Appeal – Construction of s 35 of Defamation Act 2005 – Plain words of statute – Whether plain words should be displaced by other considerations – Plain words not displaced – Defamation Act 2005 ss 1, 3, 6, 23, 34, 35, 37 and 38.

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APPEARANCES:	Counsel	Solicitors
For the Applicants	Mr M F Wheelahan QC with Mr S Mukerjea	Johnson Winter & Slattery
For the Respondent	Dr M J Collins QC with Ms R L Enbom	Corrs Chambers Westgarth

TATE JA
BEACH JA
ASHLEY JA:

TABLE OF CONTENTS

*The defamatory publications*.....................................................................................	5
*Plaintiff’s imputations and Bauer’s ultimate defences*.........................................	6
*The trial*.........................................................................................................................	11
*Grounds of appeal*........................................................................................................	14
*Relevant background*...................................................................................................	16
*AGGRAVATED DAMAGES*.......................................................................................	24
*The plaintiff’s claim for aggravated damages*.........................................................	24
*Aggravating circumstances: the judge’s findings*...................................................	27
*The aggravated damages findings about which Bauer makes complaint*...........	36
*Bauer’s pursuit of the defence of justification*.........................................................	37
*Bauer’s pursuit of the defence of triviality*..............................................................	43
*Bauer’s submissions about meaning*.........................................................................	44
*Bauer’s motive to ensure the plaintiff was ‘worried all the way to verdict’*......	45
*Bauer’s failure to apologise*........................................................................................	46
*Bauer’s opening and closing addresses*.....................................................................	47
*The false answer to interrogatory 13*........................................................................	48
*Bauer’s adoption of an unjustified approach to the disclosure of confidential information*....................................................................................................................	50
*Aggravated damages: conclusion*..............................................................................	51
*THE CONSTRUCTION OF S 35 OF THE ACT*.......................................................	54
*The statutory scheme*...................................................................................................	54
*The judge’s construction of s 35*.................................................................................	59
*Does s 35(1) fix the top end of a range?*.....................................................................	65
*Does s 35(2) require that aggravated damages be separately awarded?*.............	80
*Should the plain words of s 35 be displaced by other considerations?*................	86
*The construction of s 35: conclusion*..........................................................................	91
*THE REASSESSMENT OF THE PLAINTIFF’S DAMAGES FOR NON-ECONOMIC LOSS*.......................................................................................................	92
*The parties’ submissions*.............................................................................................	93
*The reassessment*..........................................................................................................	93
*THE SPECIAL DAMAGE CLAIM*.............................................................................	95
*A real review — findings of primary fact and findings of inferential fact*.........	96
*Grounds of appeal*........................................................................................................	103
*Submissions for Bauer*.................................................................................................	103
*Submissions for Ms Wilson*........................................................................................	110
*Resolution*.....................................................................................................................	115
*The special damage claim: conclusion*.....................................................................	181
*ANDREWS DAMAGES*...............................................................................................	182
*Andrews damages: conclusion*..................................................................................	196
*CONCLUSION*..............................................................................................................	196
Annexure A1 – Woman’s Day Print Article – ‘Just who is the REAL Rebel?’
Annexure A2 – Woman’s Day Online Article – ‘Separating fact from fiction: Will the real Rebel Wilson please stand up?’
Annexure A3 – First Women’s Weekly Online Article – ‘The truth about Rebel Wilson.’
Annexure A4 – Second Women’s Weekly Online Article – ‘Rebel Wilson’s real name and age revealed.’
Annexure A5 – First New Weekly Online Article – ‘Rebel Wilson cries “tall poppy syndrome” over age claims.’
Annexure A6 – Second New Weekly Online Article – ‘Official records reveal Rebel Wilson’s real age…’
Annexure A7 – First OK Magazine Online Article – ‘Rebel Wilson a fake?’
Annexure A8 – Second OK Magazine Online Article – ‘Rebel really is 35.’
Annexure B – Jury Questions and Answers

Ms Rebel Wilson (‘Ms Wilson’ or ‘the plaintiff’) is a well-known professional actor. Bauer Media Pty Ltd and Bauer Media Australia Pty Ltd (collectively, ‘Bauer’ or ‘the defendant’) is the publisher of the Woman’s Day print magazine in Australia, and of information appearing on a number of online websites including the Woman’s Day website, Women’s Weekly website, New Weekly website and OK Magazine website (‘the websites’).

On 13 September 2017, following a 19-day defamation trial, a judge of the Trial Division entered judgment for the plaintiff, against Bauer, in the amount of $4,749,920.60 (made up of damages for non-economic loss, including aggravated damages, of $650,000 and damages for economic loss of $3,917,472 and damages in the nature of interest in the sum of $182,448.61).[1] Bauer now seeks leave to appeal against this judgment.
[1]Wilson v Bauer Media Pty Ltd [2017] VSC 521 (‘Reasons’).

The proposed grounds of appeal all relate to the assessment of the plaintiff’s damages. There is no challenge to the jury’s verdict that Ms Wilson was defamed. There is no complaint made about the way in which the judge conducted what was a complex and demanding trial or about the separate and multiple rulings he made concerning the admissibility of evidence, and the like. There is no challenge to many of the judge’s findings that there were circumstances that supported his conclusion that an award of aggravated damages was warranted. These unchallenged findings include Bauer’s failure to properly investigate the defamatory allegations made by a source that required both anonymity and payment; Bauer’s publication of defamatory imputations that it knew to be false in order to maximise its commercial opportunities and as part of a campaign to ‘take down’ Ms Wilson; the failure to call as a witness anyone involved in the editorial process to explain the decision made to publish; and the sending of a series of insulting and harassing messages to Ms Wilson’s family. Furthermore, Bauer does not challenge the finding that, in respect of one publication, it was actuated by malice.

We set out in detail below the background circumstances and the issues in contest. In brief summary, our conclusions on each of the principal issues are as follows:

Aggravated Damages

(1) We consider that the judge, in determining that an award of aggravated damages was warranted, erred in making a number of findings as to circumstances of aggravation, and that a reassessment of the plaintiff’s damages was thus required. Upon a reassessment, we would substitute, for the judge’s assessment of $650,000 for non-economic loss, an assessment of $600,000.

Construction of s 35 of the Defamation Act

(2) We consider that the judge’s construction of s 35 of the Defamation Act 2005 (‘the Act’) was correct. We have concluded that a judge has the power to exceed the statutory cap imposed by s 35(1), with respect to non-economic loss, whenever an award of aggravated damages is warranted.

Special damage claim

(3) In respect of Ms Wilson’s claim for special damage, which the judge found to be proven and awarded A$3,917,472,[2] we have undertaken the necessary real review of the evidence. We have concluded, for a considerable number of reasons, that the evidence adduced by Ms Wilson did not enable inferences to be drawn, on the balance of probabilities, that:
[2]All later references to dollars, without more, are expressed in Australian dollars unless the contrary is specifically stated.

(a) the valuable opportunity for which she contended had existed and had been lost;

(b) assuming such opportunity had been established, that the grapevine effect in the United States, in respect of articles published in Australia, was a cause of that lost opportunity;

(c) there was, in particular, a loss of an opportunity to earn US$15 million from Ms Wilson being cast in lead or co-lead roles in three feature Hollywood films during the period from mid-2015 to the end of 2016, as his Honour found.

(4) For the above reasons, we have concluded that Ms Wilson has not made out her special damage claim.

Andrews damages

(5) We have concluded that Ms Wilson’s alternative claim for Andrews damages, in respect of a general decline in business, fails.

For the reasons that follow, leave to appeal ought be granted and the appeal allowed.[3]
[3]For convenience, in what follows we refer simply to ‘the appeal’ (rather than the application for leave to appeal) and the proposed grounds of appeal simply as grounds of appeal.

The defamatory publications

On 18, 19 and 20 May 2015, Bauer published an article in the print edition of Woman’s Day magazine and seven further articles on the websites (‘the articles’). The articles were to the effect that Ms Wilson was a serial liar who had told lies about her real name, age, aspects of her upbringing and events in her life. The articles were headed and published as follows:

·‘Just who is the REAL Rebel?’ published on 18 May 2015 (‘the Woman’s Day print article’);
·‘Separating fact from fiction: Will the real Rebel Wilson please stand up?’ published from 18 May 2015 to 14 May 2016 (‘the Woman’s Day online article’);
·‘The truth about Rebel Wilson’ published from 18 May 2015 to 14 May 2016 (‘the first Women’s Weekly online article’);
·‘Rebel Wilson’s real name and age revealed’ published from 18 May 2015 to 14 May 2016 (‘the second Women’s Weekly online article’);
·‘Rebel Wilson cries “tall poppy syndrome” over age lie claims’ published from 19 May 2015 to 14 May 2016 (‘the first New Weekly online article’);
·‘Official records reveal Rebel Wilson’s real age’ published from 20 May 2015 to 14 May 2016 (‘the second New Weekly online article’);
·‘Rebel Wilson a fake?’ published from 19 May 2015 to 14 May 2016 (‘the first OK Magazine online article’); and
·‘Rebel really is 35’ published from 20 May 2015 to 14 May 2016 (‘the second OK Magazine online article’).

The full text of each article, as tendered at trial, is set out in Annexures A1 to A8 of these reasons.

Plaintiff’s imputations and Bauer’s ultimate defences

In respect of six of the articles (the Woman’s Day print article, the Woman’s Day online article, the first New Weekly online article, the second New Weekly online article, the first OK Magazine online article and the second OK Magazine online article), the plaintiff pleaded, and relied upon at trial, a single defamatory imputation. While there were similarities between these single imputations, they were not all identical or expressed in exactly the same terms. In respect of the other two articles (the first Women’s Weekly online article and the second Women’s Weekly online article), the plaintiff pleaded and relied upon two separate pairs of imputations.

The plaintiff’s imputation in relation to the Woman’s Day print article was in the following terms:

Ms Wilson is a serial liar who has invented fantastic stories in order to make it in Hollywood in that she has:
(a)lied publicly about her age by claiming to be 29 years old when, in fact, she was born in 1979 and is, therefore, 36 years old;
(b)lied about her name by using the fake name ‘Rebel Wilson’ when, in fact, her real name is Melanie Elizabeth Bownds;
(c)lied about her background by stating publicly that she was raised by parents who trained dogs when, in fact, her parents had not trained dogs;
(d)lied about her background by stating publicly that, as a child, she travelled around Australia in a caravan with her family to attend dog shows when, in fact, she had not done so;
(e)lied about her background by stating publicly that, as a child, her family home was in a disadvantaged suburb of Sydney when, in fact, her home was in an upper-middle-class part of Sydney;
(f)lied about her background by stating publicly that she had lived in Zimbabwe for a year when, in fact, she had not done so;
(g)lied when stating publicly that she had been inside a cage with a leopard when, in fact, she had not;
(h)lied when stating publicly that she got caught in a shoot-out when, in fact, she had not; and
(i)lied when stating publicly that she had contracted malaria whilst she was in Africa when, in fact, she had not contracted the illness.

In the final form of its defence,[4] Bauer denied the plaintiff’s meaning and denied that the article was defamatory of the plaintiff. In the alternative, Bauer pleaded that, if the first Woman’s Day print article was defamatory of the plaintiff in the meaning alleged by her, then it was true in substance and in fact, or substantially true.[5]
[4]The second further amended defence filed on 9 June 2017.
[5]In pleading justification or truth defences, Bauer relied upon justification/truth at common law and under s 25 of the Act.

In addition to relying upon the defence of truth, Bauer pleaded a defence of partial justification seeking, in the alternative, to justify the more limited imputation that:

The plaintiff was a serial liar who had invented fantastic stories in order to make it in Hollywood in that she has –
(a)lied publicly about her age by claiming to be 29 years old when, in fact, she was born in 1979 and is, therefore, 36 years old;
(b)lied about her name by using the fake name ‘Rebel Wilson’ when, in fact, her real name is Melanie Elizabeth Bownds; and
(c)lied about her background by stating publicly that, as a child, her family home was in a disadvantaged suburb of Sydney when, in fact, her home was in an upper middle class part of Sydney.

As a further alternative defence, Bauer contended that the Woman’s Day print article was published in circumstances ‘that the plaintiff was unlikely to sustain any harm’, a triviality defence.[6]
[6]See s 33 of the Act.

The plaintiff’s imputation in relation to the Woman’s Day online article was in the same terms as the plaintiff’s imputation for the Woman’s Day print article, except that para (d) was omitted.

Again, Bauer denied the plaintiff’s meaning and denied that the article was defamatory of the plaintiff. In the alternative, Bauer, again, pleaded the justification defence, the partial justification defence and the triviality defence that it pleaded in respect of the Woman’s Day print article.

In respect of the first Women’s Weekly online article, the plaintiff pleaded two imputations:

(a)the plaintiff lied to a reporter from Women’s Weekly and others about her age by telling them that she is 29 years old when, in fact, she is 36 or 37 years old;
(b)the plaintiff is so untrustworthy that nothing she says about herself can be taken to be true unless it has been independently corroborated.

In its defence, Bauer again denied the plaintiff’s meanings and denied that the article was defamatory of the plaintiff. In the alternative, Bauer pleaded a justification defence to the first of the plaintiff’s meanings, a triviality defence and qualified privilege.[7] In answer to the qualified privilege defence, the plaintiff pleaded that in publishing the first Women’s Weekly online article, Bauer was actuated by malice.
[7]Both at common law and pursuant to s 30(1) of the Act.

In relation to the second Women’s Weekly online article, the plaintiff’s imputations were pleaded in the following terms:

(a)[the plaintiff] lied about her age by publicly stating that she is 29 years old when, in fact, she was born in 1980 and is, therefore, 35 years old;
(b)[the plaintiff] lied when she told David Letterman that she grew up in a disadvantaged part of New South Wales when, in fact, she grew up in the respectable Sydney suburb of Cherrybrook.

In its defence, Bauer again denied the plaintiff’s meanings and denied that the article was defamatory of the plaintiff. In the alternative, Bauer again relied upon a defence of justification and a triviality defence.

The plaintiff’s imputation in relation to the first New Weekly online article was in the following terms:

The plaintiff, having been caught lying publicly about her name, age and childhood, threw a fit and accused the magazine that revealed the truth about her of suffering from tall poppy syndrome.

In its defence, Bauer denied the plaintiff’s meaning and denied that the article was defamatory of her. Again, it relied upon the defence of triviality. With respect to justification, however, rather than seeking to justify the plaintiff’s meaning, Bauer pleaded and sought to justify an alternative meaning that ‘having been caught lying about her name, age and childhood, the plaintiff accused the magazine that revealed the truth about her of suffering from tall poppy syndrome’.[8]
[8]See David Syme & Co Ltd v Hore-Lacy (2000) 1 VR 667; Setka v Abbott (2014) 44 VR 352.

The plaintiff’s imputation in relation to the second New Weekly online article was:

The plaintiff had been lying about her age by stating publicly that she is 29 years old when, in fact, she was born in 1980 and is, therefore, 35 years old.

Again, Bauer denied the plaintiff’s meaning and denied that the article was defamatory of the plaintiff. Justification and triviality defences were again pleaded.

The plaintiff’s imputation in relation to the first OK Magazine online article was in the following terms:

Ms Wilson is a serial liar who has told shocking lies in order to make it as an actress and comedian in that she has:
(a)lied publicly about her age by stating that she is 29 years old when, in fact, she is 36 years old;
(b)lied about her name by using the fake name ‘Rebel Wilson’ when, in fact, her real name is Melanie Elizabeth Bownds;
(c)lied about her background by stating publicly that she grew up in the western suburbs of Sydney when, in fact, she did not grow up in that area;
(d)lied about her background by stating publicly that her parents are professional dog exhibitors when, in fact, they are not;
(e)lied by stating publicly that she had an epiphany to be an actress while she was recovering from malaria in Africa when, in fact, that had not occurred.

As it had with earlier articles, Bauer denied the plaintiff’s meaning and denied that this article was defamatory of the plaintiff. In the alternative it pleaded justification and triviality defences. In addition it pleaded, in the alternative, a partial justification defence asserting the truth of the more limited imputation that:

The plaintiff was a serial liar who had told shocking lies in order to make it as an actress and comedian in that she has:
(a)lied publicly about her age by claiming to be 29 years old when, in fact, she is 36 years old; and
(b)lied about her name by using the fake name ‘Rebel Wilson’ when, in fact, her real name is Melanie Elizabeth Bownds.

The plaintiff’s imputation in relation to the second OK Magazine online article was:

The plaintiff has lied about her age in order to maximise her chances of being offered acting roles in Hollywood.

Bauer, again, denied the plaintiff’s meaning and denied that the article was defamatory of the plaintiff. In the alternative, it pleaded justification and triviality defences.

The trial

At trial, the plaintiff gave evidence over seven days. During the course of the trial, the plaintiff called:

·her siblings, Annaliese (Annarchi), Liberty and Ryan (Ryot);
·her mother, Mrs Sue Bownds;
·Rebel Lee Bissaker, who sang at the plaintiff’s parents’ wedding;
·Jacinta Waters, the plaintiff’s agent and manager since 2010;
·Sharon Jackson, a talent agent who has acted for the plaintiff since 2009;
·Kate Jenkinson, a witness as to reputation only;
·Zarah Zaidi, an old school friend who gave evidence that while the plaintiff’s name at school was Melanie, after they left school she started calling the plaintiff Rebel;
·Hugh Sheridan, who gave evidence that he did not know the plaintiff’s siblings Annarchi and Ryot by any other name;
·Neradine Tisaj, a witness to the plaintiff’s interview with the journalist, Caroline Overington in October 2014; and
·Peter Principato, a Los Angeles talent manager who gave expert evidence in support of the plaintiff’s claim for economic loss.

The defendant called three witnesses:

·Ms Overington, the author of the first Women’s Weekly online article;
·Shari Nementzik, the author of the Woman’s Day print article; and
·Gavin Anesbury, the hairstylist for the plaintiff’s interview with Ms Overington in October 2014.

During the course of the trial, a large number of documents were tendered, including the articles, letters, emails, tweets, the plaintiff’s birth certificate, photographs of the plaintiff doing various things at various stages in her life, answers to interrogatories, text messages, contracts, audio visual recordings and tax returns.

At the conclusion of the evidence, the plaintiff applied to the judge to have the partial justification defences (pleaded in respect of the Woman’s Day print article, the Woman’s Day online article and the first OK Magazine online article) and the triviality defences (pleaded in respect of all articles) taken away from the jury. In support of those applications, the plaintiff submitted that the triviality defences were not open and contrary to authority.[9] As to the defences of partial justification, the plaintiff submitted that these defences were, at their highest, only relevant to the issue of damages — an issue for the judge, not the jury.[10]
[9]Reference was made by the plaintiff to the decisions of Szanto v Melville [2011] VSC 574 and Cunliffe v Woods [2012] VSC 254.
[10]See s 22 of the Act.

In response to the plaintiff’s applications, the judge permitted the defences of triviality to go to the jury, but reserved the plaintiff leave to move for judgment on those defences following, and notwithstanding, the jury’s verdict.[11] The judge, however, accepted the plaintiff’s submission about the partial justification defences and those defences were taken from the jury.[12]
[11]Wilson v Bauer Media [Ruling No 6] [2017] VSC 356 (‘Ruling No 6’).
[12]Ibid.

In response to the judge taking Bauer’s partial justification defences from the jury, Bauer sought to amend its defence in respect of the Woman’s Day print article, the Woman’s Day online article and the first OK Magazine online article so as to (for the first time) justify the imputations pleaded by the plaintiff in respect of those articles. The judge granted Bauer leave to make those amendments.[13] In her final address, senior counsel who appeared for Bauer,[14] made submissions that proof of the truth that the plaintiff lied about her name, age and background[15] established the truth of the single imputation relied upon by the plaintiff in the Woman’s Day print article, the Woman’s Day online article and the first OK Magazine article.
[13]Ibid.
[14]Not counsel who appeared in this Court.
[15]See paras (a), (b) and (e) of the plaintiff’s imputation in relation to the Woman’s Day print article.

Consistently with s 22 of the Act, the question of whether Bauer had published defamatory material about the plaintiff and the defendant’s defences were determined by the jury, leaving the judge to determine the amount of damages (if any). In order to obtain the jury’s verdict, the jury was asked a series of questions in relation to each of the articles.

In summary, the jury accepted all of the plaintiff’s imputations and, where it was disputed, that the articles were defamatory of the plaintiff. All of the defences were rejected. Bauer’s assertions that the plaintiff told Ms Overington that she was 29 years old and was distantly related to Walt Disney were not accepted, and the jury accepted that Bauer was motivated by malice in publishing the first Women’s Weekly online article.[16] The full text of the questions, annotated with the jury’s answers, is set out in Annexure B of these reasons.
[16]Malice only being relevant to the defence of qualified privilege in relation to the first Women’s Weekly online article, the jury was not asked any question about malice in relation to the other seven articles.

In assessing the plaintiff’s damages, the judge concluded that the plaintiff had established an entitlement to aggravated damages.[17] The judge concluded that an entitlement to an award of aggravated damages meant that the plaintiff’s damages for non-economic loss were not restricted by the cap contained in s 35 of the Act.[18] The judge assessed the plaintiff’s damages as follows:

·damages for non-economic loss — $650,000; and
·damages for economic loss — $3,917,472.
[17]Reasons [90].
[18]Ibid [80].

Grounds of appeal

The jury returned its verdict on liability on day 17 of the trial. Nothing that occurred in the trial up to that point is the subject of any criticism of the judge. Bauer does not dispute the jury’s verdict or make any complaint about the way in which the judge conducted this complex and difficult trial. As we have already observed, Bauer’s grounds of appeal relate only to damages. Specifically, its grounds of appeal are as follows:

A. Aggravation of damage:
1.The trial judge erred at [350], [379], and [385(b)] in finding that the applicants’ conduct in making submissions as to meaning, and pursuing defences of justification, or ‘truth simpliciter’, and triviality at trial was unjustified and lacking bona fides.

2. Further to ground 1 above, the trial judge erred in finding that –
(a)no responsible analysis could have informed advice that any of the articles was substantially true [346];
(b)no responsible analysis could have resulted in advice to the effect that a defence of triviality might lie with respect to any of the articles [346];
(c)after the plaintiff had been cross-examined and other relevant witnesses had been called it must have been apparent to the applicants that the plaintiff was not a serial liar [348];
(d)the applicants pressed defences when they could not have been responsibly advised to do so [350];
(e)the applicants’ motive was to ensure that the plaintiff was worried all the way to verdict by the possibility of an adverse outcome [350];
(f)the applicants’ failure to apologise to the plaintiff was not bona fide in circumstances where an apology and correction were self-evidently called for [343], [344], [385(a)];
(g)the applicants’ opening address was relevant to the aggravation of harm to the respondent [352], [353];
(h)the applicants’ closing address to the jury warranted an award of aggravated damages in that it unreasonably caused increased subjective harm to the respondent [359];

3.The trial judge erred in finding that the applicants’ general counsel made a denial in answer to an interrogatory that was knowingly false [360].
4.The trial judge erred at [385(c)] and [362] in finding that the applicants adopted an unjustified approach to the disclosure of confidential information regarding the remuneration that the respondent received for films that was unreasonable and lacking in bona fides.
5.Alternatively, the trial judge failed to give adequate reasons in relation to the findings the subject of grounds 1–4 above.

B. Defamation Act 2005, s 35:
6.The trial judge erred in his construction of s 35 of the Defamation Act 2005 (Vic) in holding at [80] that the plaintiff’s entitlement to general damages for non-economic loss was freed from the statutory cap.

C. Damages for non-economic loss manifestly excessive:
7.The trial judge’s award of damages for non-economic loss in an amount of $650,000, including aggravated damages, was manifestly excessive.

D. Consequential ground:
8.In consequence of the matters referred to in [grounds 1 to 7], the trial judge’s assessment of damages for non-economic loss was affected by error and should be set aside.

E. Special damages:
9.The trial judge erred at [216], [220], [222], [294] and [296] in finding that the plaintiff had established, on the balance of probabilities, the loss of an opportunity to earn US$15 million from being cast in lead or co-lead roles in three feature films during the period from mid-2015 to the end of 2016 (loss period).
10.The trial judge erred at [279] and [281] in finding that the publication of the applicants’ articles was a cause of the plaintiff’s lost opportunity.
11.The trial judge erred at [294]–[309] in his valuation of the plaintiff’s lost opportunity, alternatively, failed to give adequate reasons therefor.

Relevant background[19]

[19]The following is taken largely from the parties’ agreed summary filed in this Court.

The plaintiff was born on 2 March 1980. Her mother, Sue Bownds, a school teacher, gave evidence at trial that: she wanted to call her first daughter ‘Rebel’ after a girl she had once taught and who had sung at her wedding, Rebel Bissaker; when her daughter was born she called her Rebel Elise Bownds; her daughter was meant to be ‘Rebel’ and as far as she was concerned ‘Rebel’ was her name for the first 6 weeks, however she later bent to pressure from her late husband and parents who did not consider ‘Rebel’ to be a suitable name and she put the name ‘Melanie Elizabeth’ on the birth certificate; and the name ‘Melanie’ came from a singer called Melanie Safka.

The plaintiff’s evidence at trial was that: when she was growing up she knew that her mother had wanted to name her ‘Rebel’ and that Rebel was supposed to be her name; ‘Rebel’ became a nickname but her family mainly called her ‘Melanie’ and ‘Mel’ and she was called ‘Melanie’ at school; and from 1998, at the age of 18, she adopted the name ‘Rebel’ full-time, and adopted the surname Wilson which was a family name on her mother’s side. She explained in evidence the reasons why she did so. Mrs Bownds gave evidence that the plaintiff’s grandmother was a ‘Wilson’, that she had wanted to be an actress but was not allowed to do so, and that this was ‘a bit like me not calling Rebel Rebel’ after bending to pressure. In 2002, the plaintiff changed her name legally and since then her full legal name has been Rebel Melanie Elizabeth Wilson.

The plaintiff has three siblings: Liberty, Ryan, and Annaliese. Mrs Bownds gave evidence that Liberty was named after the Liberty Shop in London and to continue a theme after calling her first daughter ‘Rebel’, Annaliese was named after a street in the street directory, and Ryan was named by her late husband. Annaliese gave evidence that she started to be called by the nickname ‘Annarchi’ when she was 12 years old. Ryan gave evidence that he adopted, and started to be called by, the nickname ‘Ryot’ when he was about 12 years old. They, and other family members, explained how they got those nicknames and some of them gave evidence that the nicknames were part of a theme. Ryan, who is a professional poker player, is known as ‘Ryot’ when playing poker and was known as ‘Ryot’ in the 2011 television program called The Amazing Race.

The plaintiff grew up in the north-western suburbs of Sydney (Castle Hill and Kenthurst). She attended Castle Hill state primary school and she and her sisters each attended the Tara Anglican Girls School in Parramatta, NSW. Her brother attended the Kings School in Parramatta.

The plaintiff’s parents bred and showed dogs. They owned a pet business which they ran out of a yellow caravan. Each weekend, the family would take the caravan to dog shows and sell pet products from the caravan.

After finishing secondary school, the plaintiff lived in South Africa as a Rotary Youth Ambassador for one year. Evidence was given about things that happened in South Africa, including her contracting malaria, patting a lion and a leopard inside a cage and getting caught in cross-fire. At the end of the one-year program, in 1998, the plaintiff returned to Sydney to study law and arts degrees. She also enrolled in the Australian Theatre for Young People where she started to build her acting career.

On 25 September 2002, the Sydney Morning Herald published an article on its website authored by Lisa Pryor titled, ‘Rebel off to New York to hone comic craft’ (‘the Pryor article’). The Pryor article said that the plaintiff was 19 years old when she first saw a professionally produced play and that ‘in the three short years since’ she had written two plays of her own.

Over the period from 1998 to 2009, the plaintiff built her acting career in Australia. She wrote a play called The Westie Monologues about young women growing up in western Sydney. She wrote and appeared in a SBS television series called Bogan Pride and appeared in a SBS television series called Fat Pizza. She appeared in a television series on Channel Ten called The Wedge. Each of these productions had a comedic aspect.

In 2009, the plaintiff finished her law degree and was offered a contract on a television series called Winners and Losers. She declined the role because she thought that if she took it then she would probably never go to America. She decided that if there was ever a chance of her becoming a successful actress then it was time to try her luck in America. She sold everything she owned and had enough money to stay for six months. She relocated to Los Angeles to pursue her acting career in Hollywood.

The plaintiff gave evidence that when she moved to America she stopped disclosing her age. When she was asked her age, her standard response was ‘a lady never tells’.

Towards the end of her six-month period in America, the plaintiff secured a small role in a film called Bridesmaids. The film was a great success. She then secured more roles, including in the film Pitch Perfect which was filmed in 2011 and released on 28 September 2012 and which went on to become a world-wide hit. It was that film that shot her to fame and the balance between her chasing work and work chasing her was becoming more even. Following the film’s release, she was offered about 10 new screen roles, and then about another 18 new screen roles during 2013 and 2014.

On 29 July 2013, the plaintiff participated in an interview with Carina Chocano, a journalist for Elle magazine. At trial, the plaintiff said that she had done thousands of interviews throughout her career and could not specifically recall participating in this interview. On 20 September 2013, she received by email from her publicists a copy of a published article authored by Ms Chocano titled, ‘Rebel Rising’. She gave evidence that she had no memory of receiving the email or reading the article, but that she had found it amongst her emails when preparing her discovery in this proceeding. The article stated that the plaintiff ‘was named after a singer who performed at her parents’ wedding, and as her mother was partial to “theming” her puppy litters, Wilson’s younger siblings — Liberty, Annarchi, and Ryot — got the same treatment’.

As we have already observed, in October 2014, the plaintiff participated in an interview with Ms Overington. Ms Overington was a journalist then employed by Bauer, for the Women’s Weekly magazine. Ms Overington gave evidence that she first saw Ms Wilson sitting in the make-up chair getting her hair and make-up done in preparation for a photo shoot and she walked over to her and the following occurred:

So my feeling was I needed to establish rapport very quickly. So I remember it very clearly that my opening question was, ‘This is an extraordinary story. You are 29, you have parents who were dog handlers and you’ve got this huge Hollywood career and your name is actually Rebel? This sounds amazing to me’.

Ms Overington gave evidence that the plaintiff responded, ‘yes’ and then launched into a story about how she got her name. Whether Ms Overington spoke to Ms Wilson while she was having her hair and make-up done was the subject of dispute at trial. There was no dispute, however, that Ms Overington did conduct a formal interview with the plaintiff later in the day.

Ms Overington gave evidence that, during her interview with the plaintiff, Ms Wilson said that: ‘Rebel’ was not that unusual a name; she had been named after a little girl who sang at her parents’ wedding; her siblings had really unusual names, there was Ryot and there was Annarchi and there was Liberty, and that her parents had given them all these unusual names; and she had not used the name ‘Rebel’ at school because she had attended an exclusive Anglican girls school called Tara and unusual names would not sit well there, so she used her middle name, ‘Melanie’.

In February 2015, Bauer published an article about the plaintiff, written by Ms Overington, in the Women’s Weekly magazine, titled ‘Our Hollywood Powerhouse’.

On 10 December 2014, the plaintiff was interviewed on US television by David Letterman on The Late Show. During the interview, the plaintiff said that: she came from ‘Sydney, the western suburbs which is kind of like the real ghetto area’; that she was named ‘Rebel’ after a little girl who sang at her parents’ wedding; that she was named ‘Rebel’ and her siblings were named ‘Liberty’, ‘Annarchi’ and ‘Ryot’ because her mother was a dog-shower and bred dogs and liked themed names; and that, because her name was ‘Rebel’ she was lucky that she became an actress.

The plaintiff’s evidence at trial was that: her interview with Mr Letterman was a comedic performance and she explained how the content is prepared with the talk show; her use of the word ‘ghetto’ during the interview was a joke; and she used the word ‘ghetto’ as a synonym for ‘westie’ or ‘bogan’ or ‘the western suburbs of Sydney’ because Americans would not understand those concepts.

On 25 January 2015, the Sydney Morning Herald published an article authored by Joel Meares concerning the plaintiff, titled, ‘The confidence trick’ (‘the Meares article’), which contained the following passage: ‘For the record, Wilson’s biography on movie website IMDb puts her age at 28, but a quick look through the Fairfax archives suggests that she is actually 34.’ The Meares article was published after an interview that the plaintiff had participated in with Mr Meares. The plaintiff gave evidence that she thought that the above passage in the article was ‘a bit of a jab’. On 25 January 2015, she sent an email to Fiona King (who was involved in the arrangements in relation to the interview with Mr Meares) and asked for a copy of the photograph that accompanied the Meares article for her grandmother and said that she would try to forget about the silly age comment in the article.

On 28 January 2015, the plaintiff’s principal US publicist, Jodi Gottlieb, sent an email to Ms King and Greg Hywood at Fairfax. The email stated that they had come across the Meares article and would like the comment about the plaintiff’s age to be removed. The plaintiff was not a party to the email. She was asked in cross-examination whether she had discussed the Meares article with Ms Gottlieb. The plaintiff said that she may have and she may have provided Mr Hywood’s email address to Ms Gottlieb but that she had no memory of doing so. She also explained that it was common place for publicists who represent actresses to ask for ages to be removed.

On 3 February 2015, a link to an article about the plaintiff on the website ‘buzzfeed.com’ was re-tweeted from the plaintiff’s Twitter account (‘the Buzzfeed tweet’). The Buzzfeed tweet contained a photograph of the plaintiff from the article, a reference to the website ‘buzzfeed.com’ and the statement ‘29 Times Rebel Wilson Was the Coolest Person on the Planet. Happy 29th birthday to a lady who has given us so many great one-liners’. The plaintiff gave evidence that she may have re-tweeted the Buzzfeed tweet or it could have been someone from her team of agents or publicists who had access to her Twitter account; but that if she did re-tweet it, ‘I just liked that photo and if I re-tweeted it, I probably just looked at the headline and said, “They're calling me the coolest person on the planet. It is not every day someone calls you that, I'll just press the button and repeat it.”’

On 8 February 2015, the plaintiff sent an email to Mr Hywood about the Pryor article. She had earlier been taken out for dinner by Mr Hywood and the head of Channel Nine in relation to her work as the spokesperson for a television streaming service called ‘STAN’. Mr Hywood told the plaintiff that she was now part of the family and that if there was anything that he could do for her then she should reach out to him and he gave her his email address. She later emailed him about the Pryor article. The email stated that: her US publicity team had alerted her to the article; that people had been using the photograph from the Pryor article, which was not flattering; that people had been using the Pryor article to clarify her age; that the Pryor article incorrectly stated that she had attended the New York Film Academy; and asked if he could arrange for the article to be removed from the website. The plaintiff gave evidence that she did not follow up her email and did not know if the Pryor article was ever removed.

On 10 April 2015, the plaintiff participated in an interview with Stephanie Rafanelli, a journalist employed by The Guardian newspaper. The plaintiff subsequently responded to follow-up questions from The Guardian via Ms Gottlieb.

On 22 April 2015, Abigail Radnor of The Guardian sent an email to Lindsay Shane (copied to Ms Rafanelli and Ms Gottlieb) in which she told Ms Shane that they had Ms Wilson’s age at 29 but that there were conflicting reports as to her age, and so she just wanted to check Ms Wilson’s age with Ms Shane again. Ms Gottlieb responded: ‘29’. The plaintiff was not a party to the email chain and gave evidence that she first became aware of it when it was shown to her in preparation for the trial. She gave evidence that she had never spoken to Ms Gottlieb (who ceased to be her publicist around September 2016) about the email.

On 2 May 2015, The Guardian newspaper published an article about Ms Wilson, written by Ms Rafanelli, titled, ‘Bigmouth strikes again’. The article contained the following references: ‘The family were, she says, “bona fide bogans”’; Ms Wilson’s family being a ‘ghetto family’ and her family house being in the ‘ghetto’; her real name being Rebel; ‘at 29, she is the eldest of four siblings….’; her mother having taken the same approach to naming her brood as she did to a litter of puppies; and Ms Wilson being named after a girl who sang at her parents’ wedding.

On about 5 May 2015, Bauer started to work up a story on the plaintiff. They dug out old information that they had decided not to publish in 2012 and 2013.

On 7 May 2015, Pitch Perfect 2 was released in Australia. On 15 May 2015, the film was released in the United States and around the world. The film was a huge success. It became the number one film around the world.

Between 18 and 20 May 2015, Bauer published the eight articles about which the plaintiff made complaint in the proceeding below. The plaintiff, and other witnesses called by her, gave evidence that she was devastated by the articles. The articles had a physical and psychological impact on her. She suffered significant stress, developed a stress sore, eczema and a urinary tract infection. A doctor was called. She took sleeping tablets for about two weeks. During the trial, the plaintiff broke down several times. She was still raw two years on. She gave evidence that the articles ignited an ‘international media firestorm’ and that the sting of the articles spread instantaneously to the United States.

Evidence was given that after publication of the articles, the plaintiff was not offered, cast in and did not perform any lead or co-lead roles in films or television until the start of 2017 when she filmed Pitch Perfect 3. Ms Jackson gave evidence that she had ‘closed’ Ms Wilson’s deal for Pitch Perfect 3 before Pitch Perfect 2 was released and before publication of the articles. The trial judge inferred[20] from the evidence that negotiations for the plaintiff’s box office bonuses for Pitch Perfect 3 continued after the publication of the articles. The plaintiff gave evidence that a contract for Pitch Perfect 3, dated ‘as of 17 September 2015’, was signed in January 2017.
[20]Reasons [254].

The plaintiff’s agent, Ms Jackson, gave evidence that because Ms Wilson had not been offered any lead or co-lead roles in films or television, she talked to her about her developing films to star in. The plaintiff gave evidence that she tried to develop a number of films called Isn’t it Romantic, Dirty Rotten Scoundrels, Private Benjamin and A Perfect Crime. She gave evidence that in about May 2017, Isn’t it Romantic got the green light and that she hoped Dirty Rotten Scoundrels would get the green light later in 2017. We will return to the evidence concerning the plaintiff’s career post-publication of the articles when we deal with the grounds of appeal relating to economic loss.

AGGRAVATED DAMAGES

The plaintiff’s claim for aggravated damages

In her statement of claim, the plaintiff pleaded that Bauer’s conduct with respect to the publication of the articles was ‘unjustifiable or lacking in bona fides, entitling the plaintiff to an award of aggravated damages’. In so pleading, the plaintiff relied on the High Court’s decisions in Triggell v Pheeney[21] and Carson v John Fairfax & Sons Ltd[22] which held that aggravated damages may be awarded in defamation proceedings if, in the publication of the matter complained of or in the defence of the proceeding, the defendant engages in conduct that is improper, unjustifiable or not bona fide and such conduct increases the plaintiff’s injury.[23]
[21](1951) 82 CLR 497, 514 (‘Triggell v Pheeney’).
[22](1993) 178 CLR 44, 71 (‘Carson’).
[23]See also, The Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1, 77 [383]-[384] (‘Popovic’); Lower Murray Urban & Rural Water Corporation v Di Masi (2014) 43 VR 348, 392 [118] (‘Lower Murray Water’).

The plaintiff provided seven paragraphs of particulars of her claim for aggravated damages. These may be summarised as follows:

(1)Bauer published the articles without an honest belief in the truth of the imputations.
(2)Alternatively, Bauer published the articles, recklessly indifferent to the truth of the imputations.
(3)Bauer published the articles without making any or any adequate enquiries as to the truth of the imputations.
(4)Bauer did not contact the plaintiff prior to publication of any of the articles.
(5)The publication of the articles was timed to coincide with the release of Pitch Perfect 2, so as to maximise public attention to the articles, which attention was in fact attracted; alternatively, Bauer well knew that the natural and probable consequence of the publication would be to attract such attention.
(6)Despite being in possession of documents which showed that the plaintiff had not lied about her name, Bauer did not apologise or remove articles which misrepresented the position.
(7)A request for an apology, made after publication, did not give rise to any apology when one was ‘self-evidently called for’.

In final address, the plaintiff submitted that there were additional bases upon which an award of aggravated damages should be made. The plaintiff submitted that, in its defence of the proceeding, Bauer had ‘acted in an improper and unjustifiable manner that [was] lacking in bona fides and which [had] increased Ms Wilson’s harm’. The plaintiff identified the ‘key conduct’ constituting these additional grounds as follows:

(1)Bauer and the relevant journalists (Ms Overington and Ms Nementzik) refused to apologise to the plaintiff when an apology was self-evidently called for. Moreover, in response to the plaintiff’s concerns notice,[24] Bauer told the plaintiff that it would be in a position to defend an imputation that the plaintiff was a dishonest person.
[24]See s 14 of the Act.
(2)From the outset, Bauer pleaded and persisted with a variety of justification defences ‘even though it must have been clear that they would fail’.
(3)Bauer’s general counsel (Mr Goss) swore answers to interrogatories in which he falsely denied that the articles were published to coincide with Pitch Perfect 2.[25]
(4)Bauer failed to discover, until close to trial, a number of relevant internal emails and draft articles, including draft articles where there was no reference to the plaintiff’s age — her age being inserted in a subsequent draft or edit by ‘someone named Bronwyn Phillips, who was not called to give evidence’.
(5)On the eve of the trial, Bauer published another article about the plaintiff which suggested (falsely) that the plaintiff had participated in an interview about her love life.
(6)In opening Bauer’s case, senior counsel for Bauer made a number of submissions that the articles would have ‘brought a smile’ to the face of readers, were not nasty, had a ‘nice tone’, and would not have done the plaintiff any harm.
(7)The plaintiff was subjected to three days of cross-examination, much of which was ‘repetitive and pointless’. The cross-examination suggested that the plaintiff had lied on oath about a number of matters and had only brought proceedings in retaliation for a defamation complaint made by a Bauer employee, Ms Elizabeth Wilson.
(8)During the trial, Bauer unjustifiably resisted adopting an approach whereby the plaintiff’s remuneration for films would only be described in open court in non-specific terms.
(9)After the close of evidence, Bauer made the ‘incomprehensible’ decision to amend its defence to plead truth simpliciter, which defence was ‘comprehensively rejected by the jury’.
(10)The plaintiff’s family members were ‘unjustifiably and crudely cross-examined about the family’s financial situation when the plaintiff was growing up and about the schools that they had attended.’
(11)In final address to the jury, Bauer ‘launched an extraordinary full-frontal attack on Ms Wilson’s credit’, alleging that she had not been honest. This address was delivered in circumstances where it was ‘clear to everyone’ that the plaintiff had given ‘honest, credible and emotional evidence over the course of about six days’.
[25]While the plaintiff’s submissions at trial referred to ‘answers to interrogatories’, in fact this complaint was limited to the negative answer given in interrogatory 13 to the question of whether Bauer published the articles so as to coincide with the release of Pitch Perfect 2.

Aggravating circumstances: the judge’s findings

The judge commenced his analysis of the plaintiff’s claim for aggravated damages by summarising the legal principles that govern the circumstances in which aggravated damages may be awarded and the principles relating to the assessment of them.[26] The judge’s summary referred to the relevant authorities, including Triggell v Pheeney, Carson and Lower Murray Water. Specifically, the judge observed that aggravated damages may be awarded if, in the publication of the matter complained of or in the defence of the proceeding, a defendant engages in conduct that is improper, unjustifiable or not bona fide and such conduct increases the plaintiff’s injury.[27] There was no dispute about these principles in this Court.
[26]Reasons [84]–[88]. See also, Reasons [59(h)] and [346].
[27]Ibid.

The judge dealt with circumstances of aggravation under the following headings in his judgment:

·‘Aggravation in publication’: Reasons [90]–[135];
·‘Aggravation after publication’: Reasons [342]–[364]; and
·‘Assessment of general damages’: Reasons [370]–[386].

The judge made a number of findings about aggravating circumstances and conduct. In respect of some findings, it was plain that the judge regarded the particular matter as an aggravating circumstance entitling the plaintiff to an award of aggravated damages. In other instances, whether the judge relied upon a particular matter as supporting an award of aggravated damages is less clear.

The judge said that the circumstances of publication of the articles amounted to aggravation ‘in at least three ways’.[28] The judge then made the following three findings:

(1)Bauer failed to properly investigate, before publishing, allegations that it regarded as defamatory and that were made by a source that required both anonymity and payment.
(2)Bauer knew that the imputations it conveyed by the articles were false, but it proceeded to publish them anyway.
(3)Bauer repeated the false imputations ‘in the nature of a campaign against the plaintiff to maximise its commercial opportunities, [and] also to respond to and neutralise the plaintiff’s response to its campaign’.[29]

In this Court, Bauer made no challenge to the correctness of these findings.

[28]Ibid [90].

[29]Ibid.

The judge then described Bauer’s recklessness as to the consequences of publication as demonstrating ‘a substantial degree of aggravation that increased the plaintiff’s damage’.[30] He went on:

Bauer Media’s conduct in publishing the articles not only aggravated the injury to the plaintiff’s feelings, it was conduct that aggravated the injury to her reputation. The plaintiff is entitled to a substantial damages award for harm she has sustained in the particular circumstances.[31]

[30]Ibid [91].

[31]Ibid [93].

The judge then discussed the circumstances of the publication of the Woman’s Day print article (written by Ms Nementzik).[32] Following that discussion, the judge said that:

The failure to call anyone involved in the editorial process to explain the decision that was made to publish Ms Nementzik’s article is a factor that gravely aggravated Ms Wilson’s damage.[33]

As with the judge’s earlier findings, Bauer did not challenge this finding on appeal.

[32]Ibid [95]–[116].

[33]Ibid [117].

Next, the judge discussed the publication of the first Women’s Weekly online article (written by Ms Overington).[34] In this discussion, the judge observed that:

·Ms Overington ‘undertook limited research in preparing her article’;
·the jury found that the publication was motivated by malice;
·Ms Overington admitted that her article went too far by using the word ‘lies’;
·Ms Overington’s assertion that she needed to publish her article quickly so as to acknowledge possible errors made in her earlier article, ‘and to correct the record’, must have been rejected by the jury ‘and rightly so’ as there was ‘no basis for it’.

[34]Ibid [118]–[123].

The judge concluded this discussion by saying ‘[e]ach of these matters increased the harm suffered by Ms Wilson and warrants an award of aggravated damages’.[35] With respect, it is not entirely clear whether the judge was here referring to all of the matters set out in the six paragraphs that proceeded the statement just quoted,[36] or whether he was only referring to the matters described in the paragraph in which that statement appears.[37]
[35]Ibid [123].
[36]Ibid [118]–[123].
[37]Ibid [123].

The judge then referred to what he described as ‘a series of insulting and harassing messages’ sent by Ms Overington to members of the plaintiff’s family and others.[38] The judge concluded that these messages ‘further aggravated Ms Wilson’s damages’. There was no challenge by Bauer to this finding in this Court.
[38]Ibid [124].

The judge concluded his analysis of aggravating circumstances in the publication of the articles by saying that he accepted the plaintiff’s contention that Bauer published the articles ‘as part of a campaign to “take down” the plaintiff, timed to coincide with the release of Pitch Perfect 2 in order to maximise [the benefit of the articles] for [Bauer’s] commercial motives’.[39] Again, Bauer made no challenge to this conclusion in this Court.
[39]Ibid [126].

The judge commenced his analysis of circumstances of aggravation after the publication of the articles with a recitation of part of the plaintiff’s submissions.[40] The findings in [343], [344] and [346] are the subject of grounds 2(a), (b) and (f). In those paras, the judge said:
[40]Ibid [342].

[343]The defendants removed the impugned articles from the internet on receiving the plaintiff’s first complaint about the articles in May 2016 but Bauer Media and the relevant journalists have refused to apologise to Ms Wilson and correct the record, in circumstances where a correction of the record and an apology were self-evidently called for.
[344]On 10 May 2016, Ms Wilson sent a concerns notice to Bauer Media. She sought a published apology. On 24 May 2016, when Bauer Media’s solicitors responded, not only did Bauer Media refuse to apologise, but it told Ms Wilson that it would prove that Ms Wilson was a dishonest person. A correction of the record and an apology were called for. Ms Wilson had no option but to seek public vindication through the legal system. Ms Wilson gave evidence that this response ‘added to the hurt’.

…
[346]As the plaintiff submitted, no responsible analysis could have informed advice that any of the articles was substantially true. No responsible analysis could have resulted in advice to the effect that a defence of triviality might lie with respect to any of the articles. The defendants acknowledged that they had pursued unsuccessful justification and triviality defences in relation to each article, but submitted that their conduct in pursuing those defences was not improper, unjustifiable or lacking in bona fides. The defendants relied on the principle that mere persistence, or even vigorous persistence in a bona fide defence, in the absence of improper or unjustifiable conduct cannot be used to aggravate compensatory damages.[41] Whether that be so depended on how the defence was raised, pursued and why it failed. Compensation for continuing harm is a component of regular compensatory damages and at least one of the factors identified in Triggell v Pheeney.[42]

[41]Coyne v Citizen Finance Ltd (1991) 172 CLR 211, 237 (Toohey J).

[42](1951) 82 CLR 497, 514.

While [346] of the judge’s reasons sets out a submission of the plaintiff and the judge’s acceptance of that submission, in context, the better view of [343] and [344] may be that they are merely a recitation by the judge of other submissions made by the plaintiff (continuing the judge’s recitation of the plaintiff’s submission from [342]). Support for that view may be found in the judge’s use of a phrase used more than once by the plaintiff’s counsel at trial that a correction of the record and an apology ‘were self-evidently called for’.[43]
[43]Reasons [343].

Paragraphs [348] and [350] are the subject of challenge in grounds 1 and 2(c), (d) and (e). Those paragraphs provide:

[348]The defendants’ justification defences remained somewhat fluid throughout the trial. After Ms Wilson had been cross-examined and other relevant witnesses had been called, Bauer Media further amended its defence to plead truth simpliciter to the Woman’s Day print article. It must have been apparent to Bauer Media that Ms Wilson was not a serial liar. At the same time, the plaintiff submitted that the defence of triviality ought to be withdrawn from the jury while the defendants sought to maintain it. These issues were dealt with in Ruling No 6, and I need only note for present purposes that, for the reasons given, I permitted the defence of triviality to go to the jury for verdict, but reserved for the plaintiff leave to apply for judgment non obstante veredicto in the event that the jury found the triviality defence established in relation to any of the eight articles sued upon. The jury did not do so.
…
[350]I am satisfied that the defendants’ conduct in pursuing these defences was lacking in bona fides, in the sense that its purpose was not to pursue reasonable prospects of succeeding in a defence at trial. The distinction lies between counsel’s submission that the defences were technically open to the jury, which I accepted, and Bauer Media’s decision to press the defences when it could not have been responsibly advised to do so, as I now infer. The existence of a technical justification for pursuit of the defences does not overshadow the defendants’ motive that I am satisfied was to ensure that the plaintiff was worried all the way to verdict by the possibility of an adverse outcome. That motivation is a reasonable and probable inference having regard to the conduct of the proceeding as a whole, Bauer Media’s commercial imperatives, and its stated attitude to the plaintiff’s proceeding.

In respect of Bauer’s senior counsel’s opening address, the judge said:

[352] The defendants opened to the jury that:
(a)the articles would have ‘brought a smile’ to the faces of readers and that they would not have thought less of Ms Wilson because the articles were not nasty;
(b)they would hear from Ms Nementzik about how she sought to ensure that the articles had a ‘nice tone’;
(c)the articles do not mean what Ms Wilson says they mean and they are substantially true;

(d) the articles were not likely to cause any harm to Ms Wilson;
(e)Ms Wilson is currently enjoying the most successful period of her career and the articles have done her no harm; and
(f)Ms Wilson had not brought the proceedings because she believed that the articles have had a devastating and long-lasting effect on her professionally and personally, but were brought for quite a different reason and motivation.

[353]None of these propositions was accepted by the jury, and I do not accept any of them. I accept Ms Wilson’s evidence of the hurt that she felt on hearing those submissions. She described her response to one of the submissions as ‘kind of like they’re getting the knife and just sticking it further into me’. She described her reaction to another submission as ‘just devastating’, ‘insulting’ and it being ‘almost like they laugh it off’.

These paragraphs are the subject of ground 2(g).

The judge then dealt with the cross-examination of the plaintiff, describing it as ‘in part repetitive’ and including attacks on the plaintiff’s integrity and character.[44] The judge referred to cross-examination of the plaintiff’s family members, about the family’s financial situation when the plaintiff was growing up and about schools that her siblings attended. The judge said:

It was a mystery how this cross-examination might achieve any forensic penetration. It was apparent that Ms Wilson did not grow up in a wealthy family. Further, Ms Wilson had never denied that she attended Tara Anglican Girls’ School or that her brother attended The Kings School or that they were private schools or that the children were lucky to have been educated there.[45]

[44]Ibid [355].

[45]Ibid [357].

Next, the judge dealt with Bauer’s senior counsel’s final address. The judge said:

[358]Fourthly, in closing, Bauer Media strongly attacked Ms Wilson’s credit. They alleged that, among other matters, she had not been honest in giving her evidence. The plaintiff submitted that it was clear that Ms Wilson had given honest, credible and emotional evidence over the course of about six days. It may reasonably be assumed that the jury agreed with the plaintiff’s submission, but I did not consider [Bauer Media’s][46] closing submission to be improper, unjustifiable or lacking in bona fides. The defendant had attacked the plaintiff’s credit in cross-examination and there was a basis for the closing submissions.
[359]It was also suggested to the jury that the defendants’ closing address amounted to an ‘astonishing and hurtful smear’ to the plaintiff and her family, and a ‘cold-hearted and vicious take-down’ that was ‘disgraceful’. The defendants retorted that this submission was an significant overstatement of the substance, tenor and effect of the defendants’ closing address and the Court ought reject it. I am not minded to do so. The defendants’ counsel clearly were instructed to put their clients’ defence with considerable vigour and did so. Where the jury has comprehensively rejected the defences, the degree of vigour sought by Bauer Media exposed it as unreasonably causing increased subjective harm to the plaintiff.

What the judge said at [359] is the subject of ground 2(h).

[46]While the judge’s reasons contain the word ‘plaintiff’s’ at this point, all counsel who appeared before us accepted that, in context, the judge must have meant to say ‘Bauer Media’s’.

As to Bauer’s answers to interrogatories sworn by Mr Goss, the judge said:

[360]Fifthly, in answers to interrogatories, the defendants, by their general counsel, Mr Goss, falsely denied that the articles were published to coincide with Pitch Perfect 2. I infer that the denial was knowingly false and that Mr Goss, who was present in court, would not have assisted the defendants had he given evidence. The defendants called no witness with authority to speak about their intentions in this respect, despite Ms Nementzik accepting the obvious proposition that celebrity stories should be published when the celebrity is attracting a lot of hype. Documents confirmed that the timing was not coincidental. For reasons stated elsewhere in this judgment, I am satisfied that the timing was deliberate and part of a commercial strategy implemented in reckless disregard for Ms Wilson’s reputation.

The findings in this paragraph are the subject of ground 3.

As to the allegation that Bauer adopted an unjustified approach to the disclosure of confidential information regarding the plaintiff’s remuneration, the judge said:

[361]Sixthly, during the trial, Bauer Media opposed a procedure where Ms Wilson’s specific remuneration for identified films would not be revealed in open court. The plaintiff submitted that neither the cross-examiner nor the jury would have been impeded in any way in their functions if a system of references to the documents had been employed, but it was said by the defendant that such an approach would hamper cross-examination. In the result, I made a limited suppression order to protect the confidentiality of the financial information,[47] accepting the defendant’s submission.
[362]When Bauer Media, during the trial, revealed in open court the specific sums that Ms Wilson had been paid for Pitch Perfect 3 and Isn’t it Romantic, no forensic purpose was evident. The cross-examination that was conducted would have been just as effective if a referencing process was used. In fact, there was virtually no cross-examination in relation to the figures. If there was a proper basis for that submission when first made, it plainly evaporated in the heat of the trial. Of course, it is easy to be wise after the event.

The judge’s conclusions at [362] are the subject of ground 4.

[47]Wilson v Bauer Media [Ruling No 5] [2017] VSC 355 (‘Ruling No 5’).

Next, the judge went on to deal with submissions made by the plaintiff concerning Bauer’s failure to discover documents and the publication of the article that occurred on the eve of trial that suggested that the plaintiff had participated in an interview about her love life.[48]
[48]Reasons [364].

Under the heading ‘Assessment of general damages’, the judge said:

At no time did Bauer Media attempt to contact Ms Wilson, or her agents, managers or publicists, to give her an opportunity to reply to the allegations that lay at the heart of its defamatory attack. I reject as speculative the defendants’ submission that their failure to contact the plaintiff was not improper or unjustifiable, because even had they done so it was unlikely that the plaintiff would have responded given her pre-existing attitude towards the publications in question. Bauer Media knew that much of the information provided by its anonymous, paid source was false or contradicted by other information in the public domain. Bauer Media provided no explanation for publishing in May 2015 essentially the same story that it had decided not to publish in 2012 or 2013 because the information provided by the source was then considered too problematic from both a legal and journalistic perspective. Not only was its conduct unexplained by absent editors, but its motivation attracted false evidence as it sought to deny the obvious truth that it recklessly traded commercially on Ms Wilson’s reputation. Its conduct was not bona fide.
Further, Bauer Media was actuated by malice in publishing Ms Overington’s article, a finding that speaks for itself in the context of aggravated damages. This conduct, together with other conduct described above, was improper, unjustifiable and lacking in bona fides.[49]

These paragraphs are not the subject of any challenge by Bauer in any of its grounds of appeal.

[49]Ibid [382]–[383].

Finally, on the issue of aggravated damages, the judge concluded:

[385]Ms Wilson commenced this proceeding in May 2016 and for the 12 months that followed before the trial, and throughout the trial, Bauer Media defended the claim with vigour. While they were entitled to do so, there were a number of aspects of their conduct post-publication that I have accepted as significant aggravating features:
(a)The defendants’ failure to apologise or to publish retractions of the allegations made in the defamatory articles was linked to their stated intention to prove that the imputations were true. In the context of the explanation given in response to the concerns notice and ultimately the jury’s verdict, I am satisfied that the refusal to apologise or correct was not bona fide.
(b)The defendants’ maintenance of the defence of truth simpliciter to the Woman’s Day print article written by Shari Nementzik in circumstances where it ought to have been apparent that the plaintiff was not, as imputed, a serial liar. Further, the defence of only three grounds of lying as true left the defence tenuously balancing on the hope that the jury would reject the other six grounds of lying as inconsequential. The defendants also maintained the defence of triviality on the basis that articles mass-published to readers who did not know the plaintiff personally were not likely to cause the plaintiff any harm due to their light-hearted nature. Maintenance of these defences was unjustified and not bona fide and increased the hurt felt by the plaintiff.
(c)The defendants’ adoption of an unjustified approach to the disclosure of sensitive and confidential information regarding the remuneration she received for films which the plaintiff understood as an attempt to ‘hurt me even further’. As I have made clear above I considered their conduct in this regard to be unreasonable and lacking in bona fides.

[386]Three days of cross-examination were undoubtedly a difficult and stressful experience for the plaintiff, but I would not go so far as to find that it was improperly aggressive or offensive so as to amount to conduct that was unjustifiable or lacking in bona fides. Related to cross-examination was the defendants’ attack on the plaintiff’s credit in closing before the jury, including suggesting that she had been dishonest when giving her evidence and that the proceedings had been brought for a collateral purpose. In light of the jury’s verdict it is clear that they rejected those allegations, and rightly so. However, I was not persuaded that the defendants’ answers to interrogatories, discovery of documents concerning the interview with Ms Overington, and publication during the trial of a further article concerning the plaintiff’s personal life in Woman’s Day magazine amount to aggravating conduct. While I accept that these matters having been brought to the plaintiff’s attention caused her further upset, I do not consider that they constitute conduct that was improper, unjustifiable or lacking in bona fides.

Sub-paragraphs (a)–(c) of [385] are the subject of grounds 1, 2(f) and 4.
The aggravated damages findings about which Bauer makes complaint

Before dealing with the findings of aggravation about which Bauer makes complaint, it is convenient to set out in summary form those findings about which no complaint is made by Bauer. Those matters were:

(1)Bauer’s failure to properly investigate defamatory allegations made by a source that required both anonymity and payment.
(2)Publishing imputations Bauer knew to be false.
(3)Publishing false imputations to maximise Bauer’s commercial opportunities and as part of a campaign to ‘take down’ the plaintiff.
(4)Failing to call as a witness anyone involved in the editorial process to explain the decision made to publish the Woman’s Day print article.
(5)Being actuated by malice in the publication of the first Women’s Weekly online article.
(6)The sending of a series of insulting and harassing messages to the plaintiff’s family.

In its grounds of appeal, Bauer complains about eight matters in respect of which it submits that the judge erred in concluding that Bauer’s conduct was not bona fide, unjustifiable or improper and aggravated the plaintiff’s damages. In short, those matters are:

(1)Bauer’s pursuit of the defence of justification: grounds 1 and 2(a), (c), (d) and (e).
(2)Bauer’s pursuit of the defence of triviality: grounds 1 and 2(b), (d) and (e).
(3)Making submissions as to meaning: grounds 1 and 2(d).
(4)Bauer’s failure to apologise: ground 2(f).
(5)Bauer’s opening address: ground 2(g).
(6)Bauer’s closing address: ground 2(h).
(7)Mr Goss’ knowingly false answer to interrogatory 13 (the negative answer to the question, ‘Did [Bauer] elect to publish the articles in May 2015 so that they coincided with the release of the film Pitch Perfect 2?’): ground 3.
(8)Bauer’s adoption of ‘an unjustified approach to the disclosure of confidential information regarding the remuneration that [Ms Wilson] received for films’: ground 4.

In addition to making complaints about the judge’s findings on each of these eight issues, Bauer contended, in the alternative, that the judge failed to give adequate reasons for his findings on these issues: ground 5.

Bauer’s pursuit of the defence of justification

Central to the judge’s finding that Bauer’s pursuit of the defence of justification entitled the plaintiff to aggravated damages was the conclusion that ‘no responsible analysis could have informed advice that any of the articles was substantially true’.[50] Bauer attacked this conclusion on two bases: first, by contending that the judge did not provide any reasoning in support of the conclusion; and second, by referring to the limited scope of the justification defence that was actually argued by Bauer’s counsel at trial. Bauer also submitted that the justification defence was inextricably linked with issues concerning the meaning of the articles, and that there was no impropriety in Bauer’s trial counsel pursuing legitimate arguments about meaning and justification that were open to be made on the evidence called at trial.
[50]Ibid [346].

Bauer also attacked the judge’s conclusions that, at the time Bauer amended its defence to plead truth simpliciter in respect of the Woman’s Day print article, the Woman’s Day online article and the first OK Magazine online article, ‘it must have been apparent to Bauer that Ms Wilson was not a serial liar’,[51] and that Bauer ‘could not have been responsibly advised to [pursue its justification defences]’.[52]
[51]Ibid [348].
[52]Ibid [350].

It [the slander in Evans v Harries] consisted of words reflecting on an innkeeper in the conduct of his business spoken openly in the presence of divers persons, guests and customers of the inn—a floating and transitory class. The Court held that general evidence of the decline of business was rightly receivable. ‘How’, asked Martin B, ‘is a public-house keeper, whose only customers are persons passing by, to shew a damage resulting from the slander, unless he is allowed to give general evidence of a loss of custom?’ Macloughlin v Welsh was an instance of excommunication in open church. General proof was held to be rightly admitted that the plaintiff was shunned and his mill abandoned, though no loss of particular customers was shewn. Here the very nature of the slander rendered it necessary that such general proof should be allowed.[363]

[360]The proceeding in Ratcliffe v Evans was not for defamation but an action on the case for damage wilfully and intentionally done without just occasion or excuse, analogous to an action for slander of title. The pleading included an allegation of a defamatory statement or libel but the jury found that the words used did not reflect upon the plaintiff’s character and were not libellous and the verdict of the jury, in favour of the plaintiff, proceeded upon the view that the writing was a false statement purposely made about the manufactures of the plaintiff.

[361]Lord Esher MR, Bowen and Fry LJJ.

[362](1856) 1 H & N 251; 156 ER 1197.

[363]Ratcliffe v Evans [1892] 2 QB 524, 530-1 (citations omitted).

The authority of Ingram v Lawson and Ratcliffe v Evans was accepted by Mahoney JA in Andrews, who dissented in the result. His Honour sought to explain the basis on which Ratcliffe v Evans was decided and why it does not stand for the proposition that it will always be sufficient for a plaintiff to prove merely that he or she earned less after the defamatory matter was published than before:

A businessman who claims that the publication has affected his business ... is normally required to show that persons who would otherwise have done business with him have not done so, and that this resulted from the publication. But the customers of an innkeeper’s business are a ‘floating and transitory class’. Because of this, if the innkeeper were required to prove that particular customers or potential customers would have dealt with him and have not, and that the cause of their not doing so was the publication, he would be, in a practical sense, unable to do so; he would not know who would have dealt with him or be able to find them and, therefore, he could not call them to explain why. ... In Ratcliffe v Evans, the Court examined the application of these considerations to the various kinds of defamation and to similar wrongs. It pointed out that, where a general loss of business is what may be expected to ‘flow directly and in the ordinary course of business’ from what the defendant did, the allegation and proof of a general loss of business (which I take to mean a fall in fact in the amount of business done) may be sufficient to enable the inference to be drawn that there was a relevant loss, and that it was caused by the defamation.
But, in my opinion, these cases do not establish that, in every case, it is sufficient for a plaintiff to prove merely that the business that he did after the publication was less than he did before. The extent of the proof required will depend upon the kinds of consideration to which, in Ratcliffe v Evans, the Court referred. The extent to which they or similar considerations are not present, to that extent the ordinary proof of loss will be required. Thus, to prove that there has been an actual loss of business, prima facie, it is not sufficient to show merely that the plaintiff did less business after than before the publication. It must appear that there was available in the post-publication period relevant business which was available to be awarded to the plaintiff, and which was not awarded to him. In the case of an innkeeper whose business consists of a multitude of individual customers, it may be proper to infer that, in the absence of contrary evidence, the amount of business available after the publication was no less than that available before. That assumption will not be open where the nature of the plaintiff’s business is different.[364]

[364]Andrews [1980] 2 NSWLR 225, 259 [112]–[113] (citations omitted) (emphasis added).

His Honour went on to give his view of what was in issue in such cases as Ratcliffe v Evans and to the difficulties which might attend proof of loss in some cases:

In that case, the matter directly in issue was the kind of injury which could constitute special damage in defamation and other torts. ... The defendant’s submission in Ratcliffe v Evans arguendo was that special damage, for the purposes of that case, meant particular pecuniary loss, and that a general decline in business was not sufficient. The Court said that ‘the question we have to determine is, whether in such an action such general evidence of damage is admissible and sufficient’. After referring to the meanings given to ‘special damage’ in other branches of the law, the Court gave instances in which, in actions for slander not actionable per se, general loss of business had been seen as special damage sufficient to support the cause of action, and concluded that it should be sufficient in the instant case. In the course of considering the matter, the Court gave reasons why the allegation and proof of such a general loss of business should be sufficient to support the cause of action. It referred to the tendency of the law to allow a degree of generality in allegations against a wrong-doer; to the fact that a fall in business was the kind of result apt to flow from the wrong in question, and to the difficulties of proof, which, in some cases, would exist in proving loss more particularly. It was in the course of referring to these matters that the Court made the observation as to proof to which I have referred.[365]

[365]Ibid 260 [115] (citations omitted) (emphasis added).

Ms Wilson submitted that Andrews was approved by the High Court in Chakravarti v Advertiser Newspapers Ltd.[366] This consisted in a passing observation by Gaudron and Gummow JJ (with whom Brennan CJ and McHugh J agreed)[367] in the context of an award of damages for economic loss. Insofar as their Honours referred to Andrews, it was to the dissenting judgment of Mahoney JA and to the observations his Honour made on Ratcliffe v Evans[368] referred to above.[369] This supports the adoption of a cautious rather than liberal approach towards the proof required to support an award of Andrews damages.
[366](1998) 193 CLR 519 (‘Chakravarti’).
[367]Ibid 525 [1].
[368]Ibid 559 [98], n 118: ‘Ratcliffe v Evans [1892] 2 QB 524 at 533, per Bowen LJ. See also Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225 at 259, 260 per Mahoney JA’.
[369]See [556] and [557] above.

In Chakravarti two articles were published in a newspaper about evidence given to a Royal Commission with respect to the near collapse of the State Bank of South Australia (‘the Bank’). The first article reported on evidence from the former chairman of the Bank’s Board of Directors about unauthorised loans and allegations of criminal or civil misconduct by certain executives of the Bank. It named Mr Chakravarti as one of those executives. A second article contained extracts from the diaries of the former chairman. After he left the Bank, Mr Chakravarti obtained a position at Leal Boss Computer & Office Supplies Pty Ltd (‘Leal Boss’).[370] He was dismissed from Leal Boss two days after the first article was published.[371] He claimed to have lost that job as a result of the publication of the first article. He had been unable to find employment since.
[370]Mr Chakravarti resigned from Beneficial Finance Corporation Ltd, a wholly owned subsidiary of the Bank, in November 1990. In April 1992 he became Chief General Manager of Leal Boss.
[371]On 15 July 1992 the first defamatory article was published. On 17 July 1992 Mr Chakravarti was dismissed from Leal Boss without notice.

At first instance, Cox J found the articles to be defamatory, not being fair and accurate reports.[372] He described the evidence upon which Mr Chakravarti relied for his claim for economic loss as ‘slender’ and not independently supported. However, he said he was ‘disposed to accept it’:[373]

It is unrealistic to criticize the plaintiff for not calling someone from Leal Boss to say why they dismissed him. I think it likely that, if the articles had not been published but, for some reason, the plaintiff had not continued with Leal Boss, he would have obtained a good job, possibly even a better one, elsewhere, though I cannot be certain about that. The plaintiff has therefore made out his case of special damage.[374]

[372](1995) 181 LSJS 218.

[373]Ibid 240.

[374]Ibid. The award of damages for the plaintiff’s economic loss was $175,000.

The defendant appealed. One of the grounds of appeal was that the finding of economic loss was against the weight of the evidence. The Full Court[375] allowed the appeal and set aside the award for special damages holding that the element of causation had not been made out. [376]
[375]Chakravarti v Advertiser Newspapers Ltd (1996) 65 SASR 527 (Doyle CJ, Perry and Williams JJ).
[376]Ibid 551–2 (Perry J agreed with Doyle CJ that the claim for economic loss was not made out (at 557) as did Williams J (at 561) who said he did not consider that a nexus had been established between the defamatory matter and the termination of the plaintiff’s employment).

The High Court relevantly reversed the Full Court. It held that the finding of causation by Cox J was ‘clearly open’, that is, the publication of the articles caused a loss of earning capacity which was compensable by an award of damages. In doing so, Gaudron and Gummow JJ referred to Andrews damages as noted above.[377] Their Honours said:

It is necessary to say something with respect to ‘special damage’ for the purposes of the law of defamation. At common law and subject to exceptions ... slander is only actionable on proof of special damage. The special damage which must be proved is some form of pecuniary loss or loss capable of assessment in money terms. It clearly includes the loss or refusal of employment if sufficiently connected with the words spoken. Special damage may also be established by proof of general loss of business, at least if that is the likely consequence of the slander involved.[378]

[377]See [558] above.

[378]Chakravarti (1998) 193 CLR 519, 558–9 [98] (citations omitted) (emphasis added). Their Honours cited, as mentioned above, Ratcliffe v Evans [1892] 2 QB 524, 533 (Bowen CJ) and Andrews [1980] 2 NSWLR 225, 259, 260 (Mahoney JA). With respect to the characterisation of Andrews damages as compensation for special damage, this compares with the characterisation given by Hutley and Glass JJA in Andrews and by Kirby J in Chakravarti: see [551] and [554] above and n 381 below, respectively.

Their Honours examined the finding made at first instance and emphasised that the focus ought not to be on the termination from Leal Boss but on the loss of Mr Chakravarti’s earning capacity that produced actual pecuniary loss when he could not obtain regular employment :

It is necessary to return to the finding at first instance. That was a finding that, had the articles not been published and had Mr Chakravarti elected not to remain with Leal Boss, he would have been able to obtain comparable or better employment elsewhere. That is a finding of lost earning capacity or, perhaps, more accurately, a finding which supports a finding to that effect. Lost earning capacity, if it is or may be productive of actual loss, is loss which is capable of assessment in money terms. And it may fairly be described as special damage for the purpose of defamation law.
....
Although there might be room for argument whether the evidence would support a finding that the first article resulted in the termination of Mr Chakravarti’s services, that was not the finding made at first instance. ... [T]hat finding was simply that, but for the articles, Mr Chakravarti would have been able to obtain comparable or better employment elsewhere. That was a finding of fact and a finding that was clearly open on the evidence. When there is added to that finding the undisputed fact that Mr Chakravarti’s services were terminated and the evidence, which Cox J said he was disposed to accept, that Mr Chakravarti had not thereafter had regular employment, it was open to his Honour to conclude that the articles resulted in a loss of earning capacity productive of actual loss. To the extent that the Full Court reached a contrary view, it was in error. And once Cox J concluded that there had been actual loss, it was open to his Honour to quantify that aspect of Mr Chakravarti’s lost earning capacity in a sum reflecting the income he otherwise could and would have earned.[379]

[379]Chakravarti (1998) 193 CLR 519, 559–60 [99]–[101] (citations omitted).

Kirby J agreed that it was clearly open to Cox J to make the findings on causation that he did and that he regarded it ‘as overwhelmingly probable that the publication of the first article was a cause of the termination of the appellant’s employment and of the difficulty which he thereafter experienced in obtaining employment in the finance industry’.[380] His Honour’s only reference to Andrews damages was to note that at first instance Mr Chakravarti’s statement of claim included a specific claim for damages for economic loss which was properly particularised, by comparison with the claim in Andrews.[381]
[380]Ibid 600 [178]. This was based on an inference that could be drawn because the publication appeared in Adelaide’s daily newspaper; the difficulty Mr Chakravarti faced in finding employment; the absence of any other demonstrated cause; and the sudden circumstances of the dismissal.
[381]Ibid 600 [179], n 278. Kirby J considered that the damages for loss of employment and reduced prospects of re-employment were best seen not as special damages but as general damages resulting from the kind of injury Mr Chakravarti sustained.

It is clear that the High Court in Chakravarti did not endorse the proposition that an award of damages is available whenever the plaintiff can show that there has been a fall in the amount of business after the publication of the defamatory matter, or that a comparison between the business done before and after publication provides proof that a decline was due to the publication. Whether damages should be awarded will depend on the particular nature of the business and the extent to which more exact proof that the defamatory publication was responsible for a downturn in a plaintiff’s business is unavailable, because of the type of considerations identified in Ratcliffe v Evans. Each case will depend on its own facts.

Andrews damages have been awarded in Australia in other cases[382] but there has been no further analysis of Ingram v Lawson or Ratcliffe v Evans or the foundation for an award of damages for a general decline in business.
[382]For example, Ayan v Islamic Co-ordinating Council of Victoria Pty Ltd [2009] VSC 119 [53], [60]–[63]; Todd v Swan Television & Radio Broadcasters Pty Ltd (2001) 25 WAR 284, 295 [58]; Jools v Mirror Newspapers Ltd (1984) 56 ACTR 1, 8 (upheld on appeal Mirror Newspapers v Jools (1985) 5 FCR 507, 509–13); Konstantinidis v Foreign Media Pty Ltd [2004] NSWSC 835 [55]; Rowan v Cornwall [No 5] (2002) 82 SASR 152, 392–3 [680]–[682], 396–7 [697]–[702].

On the appeal, Ms Wilson submits that the articles directly ‘infected’ a critical aspect of her reputation and thereby effected a downturn in her work opportunities in film and television. She submits that the evidence was more substantial, by a considerable margin, than the evidence relied on in Andrews or Chakravarti. In respect of the contrast with Andrews, no doubt this is true because Ms Wilson made a claim for special damage. However, we have concluded, decisively, that Ms Wilson has failed to prove her economic loss. We consider the impact of this consequence later.[383]
[383]See [573] below.

Ms Wilson also relies on the approach taken to damages for a general decline in business adopted by the Privy Council in The Gleaner Co Ltd v Abrahams.[384] Mr Abrahams had been Minister of Tourism for Jamaica between 1980 and 1984. The defendants[385] published articles in two newspapers alleging that Mr Abrahams, when Minister of Tourism, had accepted bribes in return for giving work to American companies to promote tourism in Jamaica. He did not plead special damage but rather gave evidence in support of an award of general damages which took loss of earnings into account. Mr Abrahams’ evidence was that, after the publications, his tourism consultancy business collapsed and no one was willing to do business with him. Apart from his salary as a Member of Parliament, he ‘did not earn a shilling’ for five years after publication of the articles.[386]
[384][2004] 1 AC 628 (‘Abrahams’).
[385]The defendants, The Gleaner Co Ltd and Dr Dudley Stokes, were, respectively, the publishers and former editor of the two daily newspapers in Jamaica, the ‘Daily Gleaner’ and the ‘Star’.
[386]Abrahams [2004] 1 AC 628, 639 [26].

The Court of Appeal reduced the general damages awarded by the jury.[387] The defendants appealed to the Privy Council on the ground that the substituted amount was still manifestly excessive and appeared to contain, erroneously, a punitive element. The Privy Council dismissed the appeal. In the context of discussing the differences that exist between general damages in personal injury cases and general damages in defamation proceedings, and noting that the focus of the appeal was the substituted award and not the jury’s award, the Court made an obiter observation that there is a relaxation of the requirements for proving causation of loss of earnings as an aspect of general damages in defamation proceedings in return for moderation in the sum awarded:

[I]n an action for personal injury it is usually not difficult for the plaintiff to prove that his injury caused inability to work and consequent financial loss. Loss of earnings is therefore recoverable as special damage and ordinarily, in cases of grievous injury, constitutes by far the greater part of the award. Likewise, the expenses of care, nursing and so forth are recoverable as special damage. They do not constitute a factor in the assessment of general damages. In defamation cases, on the other hand, it is usually difficult to prove a direct causal link between the libel and loss of any particular earnings or any particular expenses. Nevertheless it is clear law that the jury are entitled to take these matters into account in the award of general damages. The strict requirements of proving causation are relaxed in return for moderation in the overall figure awarded. In the present case, in which Mr Abrahams was unable to find any remunerative employment for five years, loss of earnings must have played a significant part in the jury’s award.[388]

[387]The jury awarded J$80.7 million. The Court of Appeal reduced the award to J$35 million.

[388]Abrahams [2004] 1 AC 628, 647 [56] (emphasis added). As Lord Hoffmann said, on behalf of the Board: ‘[T]he only question is whether the damages were no more than was necessary adequately to compensate the plaintiff’: [2004] 1 AC 628, 652 [72].

The Privy Council in Abrahams did not consider Ratcliffe v Evans.

Bauer submits that to the extent that the advice of the Privy Council in Abrahams suggests that the ordinary principles and standard of proof for causation do not apply to claims for economic loss in defamation cases, it should not be followed. We agree. This is not to deny (and nor did Bauer submit that it should be denied) that due allowance is to be made in the evaluation of evidence for the type of evidence that might be expected to be available. That is, where a plaintiff makes a claim for a general decline in a business, rather than, or in the alternative to, a claim for special damages, it is relevant to consider whether any of the factors identified in Ratcliffe v Evans are appropriate. In particular, it is relevant to consider whether there are inherent difficulties in proof of causation because, for example, the customers make up a floating and transitory class. We consider that it is most likely only in this limited respect that it can be said that there is a relaxation of the strict requirements of proof of causation in applying the principles governing Andrews damages. Otherwise, with respect to the considerations referred to in Ratcliffe v Evans, to ‘[t]he extent to which they or similar considerations are not present, to that extent the ordinary proof of loss will be required’.[389] We take this to be supported by the authority of the High Court’s judgment in Chakravarti.
[389]Andrews [1980] 2 NSWLR 225, 259 [113]. See [556] above.

Applying those principles here, we reject the submission that Ms Wilson ought be awarded Andrews damages. We do so for a number of reasons.

First, we consider that the context in which the claim is made is significant. It is claimed as an alternative to special damages in circumstances where we have rejected each element of that claim. In particular, we have rejected the proposition that there was a valuable opportunity that Ms Wilson lost. We consider that the judge erroneously described the trajectory of success of Ms Wilson’s career and over-stated the effect of Ms Jackson’s evidence with respect to the likelihood of offers of lead or co-lead roles in feature Hollywood films from mid-2015 to the end of 2016.[390] We have also rejected the proposition that there was a causal connection between publication of the articles and Ms Wilson’s alleged loss. As explained above, Ms Wilson relied upon the grapevine effect in the United States, of the defamatory sting of the articles published in Australia, amongst Hollywood producers, film-makers, casting directors and studio executives. Yet there was no evidence that any member of those groups was either aware of the sting of the articles or, if aware, took an adverse view of Ms Wilson as a result.[391] Indeed, the plaintiff gave no evidence of the gist of the articles circulating in Hollywood at the relevant time. We consider the judge overestimated the scale and impact of the grapevine effect.[392] Even if valuable opportunities had existed, we consider that there was evidence of competing explanations for their loss of equal or greater persuasion.[393] Furthermore, we have concluded that Ms Wilson was unable to prove, to the standard of the balance of probabilities, that she had experienced a decline in business.[394] This conclusion alone is fatal to her claim for Andrews damages.[395]
[390]See, in particular, [456]–[462] above.
[391]See, in particular, [473]–[474], [487] above.
[392]See, in particular, [472]–[485] above.
[393]See, in particular, [526]–[529] above.
[394]See, in particular, [499]–[525] above.
[395]Furthermore, we have rejected the judge’s approach to quantification of the loss of any commercial opportunity.

In the face of the considered rejection of each of these elements, we do not see how the claim that Bauer’s publication of the articles is responsible for a general loss of the plaintiff’s business is tenable.

Second, we do not consider that the deficiencies we have identified in Ms Wilson’s claim for economic loss can be overlooked by reason that her position is analogous to the examples mentioned in Ratcliffe v Evans. Far from there being inherent difficulties of proof in establishing that business had declined, Ms Wilson could have adduced evidence, but did not, from members of her American publicity team or her other six Hollywood agents[396] (in addition to the evidence of Ms Jackson, whose evidence was frail)[397] to try to establish the spread of the grapevine effect in Hollywood and its adverse impact upon offers of lead or co-lead roles for which she was suitable. This group of potential witnesses are not analogous to the potential passengers of a ship alleged not to be seaworthy, as in Ingram v Lawson. Nor do they fit into the examples referred to in Ratcliffe v Evans, namely, the floating and transitory class of customers of an inn-keeper as in Evans v Harries, or the congregation in relation to a public excommunication in open church, as in Macloughlin v Welsh.[398] By contrast, the agents and publicists were identifiable and in a close business relationship with Ms Wilson.
[396]See [481] above.
[397]See [442]–[447], [507] above.
[398]10 Ir L Rep 19.

Third, it was not necessary for Ms Wilson to adduce evidence directly from Hollywood producers, film-makers, casting directors and studio executives associated with Paramount Pictures, Universal Pictures, MGM, 20^th Century Fox, Warner Bros or the many other film studios in Hollywood, or the United States, (who may bear some relationship to the floating class of customers of an inn-keeper). For reasons which we have explained, there may well have been no utility in doing so.[399] But there were other means of adducing evidence of a decline in business, or a reduction in expected offers of lead or co-lead roles in feature films, as mentioned above, which Ms Wilson chose not to adopt.
[399]See [515] above.

Fourth, as we have mentioned, some of the opinion evidence relied upon by Ms Wilson to support the decline in her business, that of Mr Principato, had a post hoc, ergo propter hoc character to it.[400] This is precisely the type of evidence that Mahoney JA in Andrews (as approved by the High Court) observed could not be relied upon.[401]
[400]As mentioned, ‘after this, therefore because of this’: the fallacy that succession in time implies a causal relationship. See [433] and n 278 above.
[401]See [556] above.

Andrews damages: conclusion

In conclusion, we consider that, in the circumstances, Ms Wilson’s claim for Andrews damages fails for all the reasons that her claim for special damages fails. Had we decided that the evidence supported a claim for Andrews damages, a number of other issues would have arisen that we now do not need to consider.

CONCLUSION

To the extent of and in accordance with the foregoing reasons, the application for leave to appeal will be granted and the appeal allowed. The judgment entered on 13 September 2017 will be set aside, and in lieu thereof there will be judgment for the plaintiff in the sum of $600,000. We will hear the parties on the issues of interest and costs.

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[2018] VSCA 154

14 June 2018