Bauer Media Pty Ltd v Wilson (No 2)

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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…

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Details
Case
[2018] VSCA 154
Decision Date

CaseChat Overview and Summary

Bauer Media Pty Ltd v Wilson (No 2) involved an appeal concerning defamation damages awarded by the Federal Court of Australia. The plaintiff, Bauer Media, sought damages from the defendant, Wilson, for defamatory publications. The court was required to decide several legal issues, including the appropriate assessment of damages for non-economic loss, the statutory cap on such damages, the award of damages for economic loss, and the claim for Andrews damages. The Federal Court needed to determine whether the statutory cap on damages for non-economic loss could be exceeded for aggravated damages, the extent to which the cap acts as a cut-off, and the correct interpretation of the relevant statutory provisions.

The court found that the judge's assessment of non-economic loss damages at $650,000 was excessive, leading to a reassessment to $600,000. The court upheld the judge's interpretation that the statutory cap on damages for non-economic loss could be exceeded if aggravated damages were warranted. The court also ruled that the plaintiff failed to establish the loss of a valuable opportunity and set aside the award of damages for economic loss. The plaintiff's claim for Andrews damages was also dismissed, as it was not substantiated by the evidence. The court emphasised the importance of a plain reading of the statute, rejecting any interpretation that would displace the statutory language.

In conclusion, the court reduced the damages for non-economic loss from $650,000 to $600,000 and set aside the award of damages for economic loss. The court confirmed that the statutory cap on damages for non-economic loss could be exceeded for aggravated damages, provided the circumstances warranted such an award. The plaintiff's claim for Andrews damages was not upheld, and the overall award of damages was adjusted accordingly.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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