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Wilson v Bauer Media Pty Ltd

Wilson v Bauer Media Pty Ltd

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Case Copied 13 September 2017 78 min read

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

MAJOR TORTS LIST

S CI 2016 01842

REBEL MELANIE ELIZABETH WILSON	Plaintiff
v
BAUER MEDIA PTY LTD & ANOTHER	Defendant

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JUDGE:	JOHN DIXON J
WHERE HELD:	MELBOURNE
DATES OF HEARING (BEFORE JURY):	22–26, 29–31 MAY, 1, 2, 5-9, 13 JUNE 2017
JURY VERDICT:	15 JUNE 2017
DATES OF HEARING (DAMAGES)	21, 22 JUNE 2017
DATE OF JUDGMENT:	13 SEPTEMBER 2017 (Revised 15 September 2017 by addition of paragraphs 394 & 395)
CASE MAY BE CITED AS:	WILSON v BAUER MEDIA PTY LTD
MEDIUM NEUTRAL CITATION:	[2017] VSC 521

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DEFAMATION – Defences – Qualified privilege – Extent of questions for jury – Statutory qualified privilege - Issue of reasonableness under s 30(1)(c) left to jury – Common law qualified privilege –Correcting the record in respect of celebrity entertainment news - Whether community of interest – Privilege defeated by jury finding of malice - Defamation Act 2005 (Vic), ss 22, 24, 30.

DEFAMATION – Damages – Statutory cap – Whether applicable where circumstances of publication aggravated the plaintiff’s damage – Interpretation of statutory provision – Whether defendant aggravated the plaintiff’s damage in circumstances of publication -Defamation Act 2005 (Vic), s 35.

DEFAMATION – Damages – Trial by jury – Eight publications stating plaintiff was a serial liar and had lied about her name, age and other aspects of her personal life and background – Defences of justification, triviality and qualified privilege not made out –Seriousness of imputations – Mass media and internet distribution – Grapevine effect - Whether aggravated damages warranted by conduct in publication and since publication – Mitigating factors - Defamation Act 2005 (Vic), ss 34, 38, 39.

DEFAMATION – Damages – Special loss claimed – Plaintiff a successful Hollywood actress – Whether plaintiff lost opportunity for further film roles – Causation – Circumstantial case – Grapevine effect and special damages considered – Remoteness - Assessment of existence of the chance – Assessment of the value of the lost opportunity – Andrews damages.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Dr M Collins QC, with Ms R Enbom and Mr J C Hooper	Corrs Chambers Westgarth
For the Defendant	Ms G Schoff QC, with Mr S Mukerjea	Johnson Winter & Slattery

TABLE OF CONTENTS

Introduction......................................................................................................................................... 1

The jury verdict.................................................................................................................................. 2

Qualified privilege defence.............................................................................................................. 8

The claim for general damages...................................................................................................... 22

General principles....................................................................................................................... 22
Section 35 – The cap.................................................................................................................... 26
Aggravation of damage - Principles........................................................................................ 36
Aggravation in publication....................................................................................................... 37

Special loss claim.............................................................................................................................. 50

Nature of claim and preliminary issues.................................................................................. 50
The locus of the financial loss................................................................................................... 51
Principles applying.................................................................................................................... 58
Issues of proof.................................................................................................................... 60
Issues for resolution.......................................................................................................... 65

Evidence of special loss............................................................................................................. 66
The plaintiff........................................................................................................................ 66
Peter Principato................................................................................................................. 68
Sharon Jackson................................................................................................................... 74
Defendants’ failure to lead expert evidence.................................................................. 76

Was there an opportunity?........................................................................................................ 78
Opportunity lost?........................................................................................................................ 79
Causation...................................................................................................................................... 80
Grapevine effect................................................................................................................. 82
Absence of damage........................................................................................................... 88
Conclusion on causation issues...................................................................................... 97

Remoteness.................................................................................................................................. 99
The value of the lost chance.................................................................................................... 102

Evidence relevant to general…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] VSC 521
Decision Date: 13 SEPTEMBER 2017 (Revised 15 September 2017 by addition of paragraphs 394 & 395)

CaseChat Overview and Summary

The plaintiff, Wilson, sought damages against Bauer Media Pty Ltd for defamatory statements made about her in publications by the defendant. The defamatory statements were published in various articles and claimed that Wilson was a serial liar and had lied about her name, age, and other aspects of her personal life and background. The case was heard in the Supreme Court of Victoria. The primary legal issues were whether the defendant's publications were defamatory, whether any of the defences raised by the defendant were available, and if so, the quantum of damages to be awarded to the plaintiff.

The court examined whether the defamatory statements were true, trivial, or privileged. It found that the defences of justification, triviality, and qualified privilege were not made out. The court considered the extent to which the publications had caused harm to the plaintiff's reputation and whether aggravated damages were warranted by the conduct of the defendant both during and after publication. The court also had to determine whether the statutory cap on damages applied, given the circumstances of publication.

The court concluded that the publications were defamatory and not protected by any of the defences. It found that the seriousness of the imputations, the mass media and internet distribution, and the grapevine effect warranted aggravated damages. The court assessed the plaintiff's special damages claim, considering whether she had lost opportunities for further film roles due to the publications. The court held that the chance of further roles existed and quantified the damages accordingly.

The court awarded the plaintiff damages, including aggravated damages and special loss damages, and rejected the application of the statutory cap on damages. The court held that the circumstances of publication did not aggravate the plaintiff's damage in a manner that would activate the statutory cap. The court also considered mitigating factors in assessing the overall damages.

Orders