Wilson v Bauer Media Pty Ltd

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 damages....................................................................................... 108

The plaintiff................................................................................................................................ 108
Other witnesses......................................................................................................................... 110
Seriousness of the imputations............................................................................................... 111
Extent of publication................................................................................................................ 113
Aggravation after publication................................................................................................. 114
Mitigation................................................................................................................................... 122

Assessment of general damages.................................................................................................. 124

Conclusion and judgment............................................................................................................ 133

HIS HONOUR:

Introduction

The plaintiff, Ms Rebel Wilson, is a well-known Australian-born actress and comedian presently residing in the United States. The defendants, Bauer Media Pty Ltd and Bauer Media Australia Pty Ltd, are variously the publishers 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, Woman’s Weekly website, New Weekly website and OK Magazine website (‘the websites’).

On 18, 19 and 20 May 2015 the defendants published one article in the print edition of Woman’s Day magazine and seven further articles on the websites 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. Ms Wilson issued this proceeding alleging that she had suffered injury to her feelings, credit and reputation, had been humiliated, embarrassed and suffered loss and damage, including special damages. The defendants denied her claims and defences of justification, triviality, and qualified privilege were variously raised.

The proceeding was tried before a jury of six. The jury’s verdict, which was taken on 15 June 2017 established that each of the defendants’ publications conveyed defamatory imputations in the terms alleged by the plaintiff. The jury did not accept defences that were put to it. The defences of qualified privilege taken to one of the publications require further discussion that will follow on setting out the jury’s verdict for the record and to inform my reasons in respect of damages.

The trial continued on after the jury’s verdict was taken with further evidence limited to the issue of the assessment of damages and submissions from the parties.

In these reasons, I have first set out the jury’s verdict that identifies the articles, the imputations found, and how the defences were dealt with. I then determined the remaining qualified privilege defences to complete the liability aspects of the court’s judgment. Turning to damages, I first explained why I have concluded that the statutory cap under s 35 of the Defamation Act 2005 (Vic) (‘Act’) was inapplicable and set out my reasons for finding that the circumstances of publication aggravated the plaintiff’s damage. Next, I considered whether the plaintiff’s claim for economic loss (special) damages is to be assessed on the basis of a lost opportunity or, alternatively, as Andrews[1] damages incorporated into the award of general damages.
[1]Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225 (‘Andrews’).

I concluded that the plaintiff proved that the defendants’ publications caused the loss of a chance of new screen roles in the period following the release of

Pitch Perfect 2
until the end of 2016 and I have valued that lost opportunity at AU$3,917,472 and assessed the plaintiff’s special damages in that sum.

My reasons then return to the evidence and submissions relevant to general damages, which I have assessed, including aggravated damages, at AU$650,000.

The jury verdict

Woman’s Day print article ‘Just who is the REAL Rebel’ published on 18 May 2015

The jury found that the Woman’s Day print article conveyed the following meaning, or a meaning not substantially different:
That Ms Wilson is a serial liar who has invented fantastic stories in order to make it in Hollywood in that she has:
(i)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;
(ii)lied about her name by using the fake name ‘Rebel Wilson’ when, in fact, her real name is Melanie Elizabeth Bownds;
(iii)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;
(iv)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;
(v)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;
(vi)lied about her background by stating publicly that she had lived in Zimbabwe for a year when, in fact, she had not done so;
(vii)lied when stating publicly that she had been inside a cage with a leopard when, in fact, she had not;
(viii)lied when stating publicly that she got caught in a shoot-out when, in fact, she had not; and
(ix)lied when stating publicly that she had contracted malaria whilst she was in Africa when, in fact, she had not contracted the illness.

The defendants did not contest the defamatory nature of that meaning. The jury found that defences of substantial truth as to the above meaning and triviality were not established.

Woman’s Day online article ‘Separating fact from fiction: Will the real Rebel Wilson please stand up’ published from 18 May 2015 to 14 May 2016

The jury found that the Woman’s Day online article conveyed the following meaning, or a meaning not substantially different:
Ms Wilson is a serial liar who has invented fantastic stories in order to make it in Hollywood in that she has:
(i)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;
(ii)lied about her name by using the fake name ‘Rebel Wilson’ when, in fact, her real name is Melanie Elizabeth Bownds;
(iii)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;
(iv)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;
(v)lied about her background by stating publicly that she had lived in Zimbabwe for a year when, in fact, she had not done so;
(vi)lied when stating publicly that she had been inside a cage with a leopard when, in fact, she had not;
(vii)lied when stating publicly that she got caught in a shoot-out when, in fact, she had not; and
(viii)lied when stating publicly that she had contracted malaria whilst she was in Africa when, in fact, she had not contracted the illness.

The defendants did not contest the defamatory nature of that meaning. The jury found that defences of substantial truth as to the above meaning and triviality were not established.

First Women’s Weekly online article ‘The truth about Rebel Wilson’ published from 18 May 2015 to 14 May 2016

First, the jury found that the First Women’s Weekly online article conveyed the following meaning, or a meaning not substantially different:
Ms Wilson 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.

The jury found that in that meaning the First Women’s Weekly online article was defamatory of the plaintiff and rejected defences of substantial truth and triviality.
Secondly, the jury found that the First Women’s Weekly online article conveyed the following meaning, or a meaning not substantially different:
The plaintiff is so untrustworthy that nothing she says about herself can be taken to be true unless it has been independently corroborated.

The defendants did not contest the defamatory nature of that meaning. The jury found that the defence of triviality was not established in regard to that meaning.

The jury also rejected the defence of qualified privilege with respect to this article. Finally, the jury found that Bauer Media was motivated by malice in publishing the article. The jury’s answers in that regard were as follows:

(a)Has Bauer Media established that each of the following factual assertions contained in the article written by Caroline Overington and published in the Australian Women’s Weekly magazine in February 2015, titled, “Our new Hollywood powerhouse” (Earlier Article) (Tab 17 of Jury Book), was based on statements made by Ms Wilson to Ms Overington during an interview conducted on 30 October 2014:
i. the plaintiff was 29 years old? Answer: NO
ii. the plaintiff’s real name was ‘Rebel Wilson’? Answer: YES
iii.the plaintiff’s siblings were named Liberty, Annarchi and Ryot? Answer: YES
iv.the plaintiff had been named after a girl who sang at her parents’ wedding? Answer: YES
v.the plaintiff was not the only person named ‘Rebel’ in Australia? Answer: YES

vi. the plaintiff’s parents were dog breeders? Answer: YES
vii.the plaintiff attended Tara Anglican private girls school? Answer: YES

viii. the plaintiff was distantly related to Walt Disney? Answer: NO
(b)Has Bauer Media established that the publication of the Woman’s Day print article (Tab 1 of Jury Book) and/or the Mamamia article dated 18 May 2015 authored by Alex Greig (Tab 3 of Jury Book) called into question the accuracy or veracity of the Earlier Article?
Answer: YES
(c)Has Bauer Media established that the subject of the First Women’s Weekly article was a review of the contents of the Earlier Article and a clarification or confirmation as to whether or not those contents were accurate (Subject)?
Answer: NO

(d)Has Bauer Media established that the readers of the First Women’s Weekly article had an interest in having information on the Subject?
Answer: NO

(e)If ‘no’ to (d), has Bauer Media established that at the time that it published the First Women’s Weekly Article, it believed, on reasonable grounds, that the recipients of the First Women’s Weekly Article had an interest in having information on the Subject?
Answer: NO

(f)Has Bauer Media established that it published the First Women’s Weekly article in the course of giving the readers of the First Women’s Weekly article information on the Subject?
Answer: NO

(g)Has Bauer Media established that its conduct in publishing the First Women’s Weekly article was reasonable in the circumstances?
Answer: NO

Has Ms Wilson established that Bauer Media was motivated by malice in publishing the First Women’s Weekly article? Answer: YES

Second Women’s Weekly online article ‘Rebel Wilson’s real name and age revealed’ published from 18 May 2015 to 14 May 2016

First, the jury found that the Second Women’s Weekly online article conveyed the following meaning, or a meaning not substantially different:
Ms Wilson 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.

The jury found that in that meaning the Second Women’s Weekly article was defamatory of the plaintiff and rejected defences of substantial truth and triviality.
Secondly, the jury found that the Second Women’s Weekly online article conveyed the following meaning, or a meaning not substantially different:
Ms Wilson 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.

The jury found that in that meaning the Second Women’s Weekly article was defamatory of the plaintiff and rejected defences of substantial truth and triviality.

First New Weekly online article ‘Rebel Wilson cries “Tall Poppy Syndrome” over age lie claims’ published from 19 May 2015 to 14 May 2016

The jury found that the First New Weekly online article conveyed the following meaning, or a meaning not substantially different:
Ms Wilson, 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.

The defendants did not contest the defamatory nature of that meaning. The jury found that defences of substantial truth as to the above meaning and triviality were not established.
Having found the above meaning to have been conveyed, the jury found that the alternate meaning alleged by the defendants (‘That having been caught lying about her name, age and childhood, Ms Wilson accused the magazine that revealed the truth about her of suffering from tall poppy syndrome’) was not applicable.

Second New Weekly online article ‘Official records reveal Rebel Wilson’s real age’ published from 20 May 2015 to 14 May 2016

The jury found that the Second New Weekly online article conveyed the following meaning, or a meaning not substantially different:
Ms Wilson has 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.

The jury found that in that meaning the Second New Weekly online article was defamatory of the plaintiff and rejected defences of substantial truth and triviality.

First OK Magazine online article ‘Rebel Wilson a fake?’ published from 19 May 2015 to 14 May 2016

The jury found that the First OK Magazine online article conveyed the following meaning, or a meaning not substantially different:
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:
(i)lied publicly about her age by stating that she is 29 years old when, in fact, she is 36 years old;
(ii)lied about her name by using the fake name ‘Rebel Wilson’ when, in fact, her real name is Melanie Elizabeth Bownds;
(iii)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;
(iv)lied about her background by stating publicly that her parents are professional dog exhibitors when, in fact, they are not;
(v)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.

The defendants did not contest the defamatory nature of that meaning. The jury found that defences of substantial truth as to the above meaning and triviality were not established.

Second OK Magazine online article ‘Rebel really is 35’ published from 20 May 2015 to 14 May 2016

The jury found that the Second OK Magazine online article conveyed the following meaning, or a meaning not substantially different:
Ms Wilson has lied about her age in order to maximise her chances of being offered acting roles in Hollywood.

The jury found that in that meaning the Second OK Magazine online article was defamatory of the plaintiff and rejected defences of substantial truth and triviality.

The defendants pleaded qualified privilege at both common law and under s 30 of the Act to the publication of the First Woman’s Weekly online article. The parties initially requested that, by agreement, I put the defence to the jury for its determination. This request raised a number of issues as I will presently explain. Following discussion and at the request of the parties, I put only the defence in its statutory formulation to the jury. Following the verdict, the defendants sought my ruling on the common law defence. The other issue that remains for my determination is damages.[2] Ms Wilson claimed both general damages (including aggravated damages) and special damages for economic loss. I will deal firstly with the remaining ground of defence.
[2]Defamation Act 2005 (Vic), s 22(3).

Qualified privilege defence

There are differences in the formulation of the defence dependent on whether its source is common law or statutory and s 24 of the Act preserves for defendants the benefit of common law defences. Those differences can present challenges in formulating jury directions that are comprehensible, without being unnecessarily complex.

The statutory defence is established if the defendant proves that:[3]

(a)the recipient has an interest or apparent interest in having information on some subject; and
(b)the matter is published to the recipient in the course of giving to the recipient information on that subject; and
(c)the conduct of the defendant in publishing that matter is reasonable in the circumstances.

The section further elucidates the concept of an apparent interest and the factors that may be taken into account in assessing reasonableness.[4] In the present case each of those elements was in contest.

[3]Ibid.

[4]Ibid s 30(2) and (3).

The High Court explained the essence of qualified privilege at common law in Papaconstuntinos v Holmes a Court:[5]

The defence of qualified privilege at common law has been held to require that both the maker and the recipient of a defamatory statement have an interest in what is conveyed. This is often referred to as a reciprocity of interest, although "community of interest" has been considered a more accurate term because it does not suggest as necessary a perfect correspondence of interest. The interest spoken of may also be founded in a duty to speak and to listen to what is conveyed.

[5](2012) 249 CLR 534, 541 [8] (citations omitted).

The publisher of a statement must establish that he or she had a duty or interest to make the statement and the audience had a reciprocal duty or interest to receive it.[6] The connection between the imputation and the privileged occasion must be significant.[7] For the privilege to attach to the occasion of publication, as a matter of public policy it must be in the general interest of the whole community that the type of material in question be published in the type of circumstances in question, notwithstanding that it is defamatory of a third party.[8] That a statement is volunteered does not prevent the occasion of publication from being privileged but, ordinarily, a statement is privileged only where there is a pressing need to protect the interest of the defendant or a third party, or where the defendant has a duty to make a statement.[9] The defence of qualified privilege does not give officious and interfering persons a wide licence to defame.[10] The assessment of the public interest is made by reference to the type of communication that constitutes the publication rather than its content.[11]
[6]Toogood v Spyring (1834) 149 ER 1044; Adam v Ward [1917] AC 309, 334; Bashford v Information Australia (Newsletter) Pty Ltd (2004) 218 CLR 366, 373 [9], 416-7 [136]-[137]; Roberts v Bass (2002) 212 CLR 1; Bennette v Cohen [2009] NSWCA 60; Cush v Dillon (2011) 243 CLR 298, 305 [11]; Papaconstuntinos v Holmes a Court (2012) 249 CLR 534, 541 [8].
[7]Bashford v Information Australia (Newsletter) Pty Ltd (2004) 218 CLR 366; Bennette v Cohen [2009] NSWCA 60; Ayan v Islamic Co-ordinating Council of Victoria Pty Ltd [2009] VSC 119.
[8]Aktas v Westpac Banking Corporation Ltd (2010) 241 CLR 79; Cush v Dillon (2011) 243 CLR 298; Papaconstuntinos v Holmes a Court (2012) 249 CLR 534.
[9]See generally Papaconstuntinos v Holmes a Court (2012) 249 CLR 534.
[10]Bashford v Information Australia (Newsletter) Pty Ltd (2004) 218 CLR 366; Bennette v Cohen [2009] NSWCA 60.
[11]Bennette v Cohen [2009] NSWCA 60; Guise v Kouvelis (1947) 74 CLR 102; Andreyevich v Kosovich and Publicity Press (1947) 47 SR (NSW) 357.

That central concept of reciprocity of duty and interest is stated in the cases at a high level of abstraction,[12] and appellate courts have stressed that it must be applied by close scrutiny of the facts of the case, the situation of the parties and the relationships and circumstances leading up to and surrounding the publication.[13]
[12]Bashford v Information Australia (Newsletter) Pty Ltd (2004) 218 CLR 366, 373 [10].
[13]Ibid; see also Guise v Kouvelis (1947) 74 CLR 102, 116-117.

Bauer Media faced a primary difficulty with its common law defence in that its publication was to the general public over the internet. As Campbell JA observed in Bennette v Cohen,[14] the requirement of the public interest is that the duty or interest of both maker and recipient is such that it is in the public interest that a person should be free to make that type of statement in the type of circumstances where the particular statement in question was made.
[14][2009] NSWCA 60, [207].

In Harbour Radio Pty Ltd v Trad,[15] the issue was the nature of the reciprocity of interest where there has been a public reply to public criticism. Citing Lange v Australian Broadcasting Corporation,[16] the plurality (Gummow, Hayne and Bell JJ), observed that it is only in exceptional cases that the common law has recognised an interest or duty to publish defamatory matter to the general public. Returning to Lange, the reasons for limiting the privilege to exceptional circumstances was explained by that court:[17]

[A]part from a few exceptional cases, the common law categories of qualified privilege protect only occasions where defamatory matter is published to a limited number of recipients. If a publication is made to a large audience, a claim of qualified privilege at common law is rejected unless, exceptionally, the members of the audience all have an interest in knowing the truth.

[15](2012) 247 CLR 31.

[16](1997) 189 CLR 520 (‘Lange’).

[17]Ibid 572.

These considerations are not peculiar to the common law formulation of the defence as is clear from s 30(3) of the Act. Prima facie, there were good reasons not to put the qualified privilege defence in both formulations to the jury.

Further, when defamation proceedings are tried before a jury, s 22 of the Act requires that the jury is to determine whether the defendant has published defamatory matter about the plaintiff and, if so, whether any defence raised by the defendant has been established. At common law, a qualified privilege defence was determined by the judge, often on the basis of a special verdict taken by the jury to resolve factual disputes. The impact of the statute on this procedure has not been fully worked through.

In extending the common law of qualified privilege to protect publication to mass audiences concerning governmental and political matters, the High Court in Lange imposed as a condition of the extended privilege that the publisher's conduct be reasonable in the circumstances. In Herald & Weekly Times Ltd v Popovic,[18] Gillard AJA (Winneke ACJ agreeing) stated, in the context of a Lange defence, that ‘reasonableness’ was a question for the judge. His Honour did so on the basis that, at common law, it has always been for the judge to determine whether an occasion of publication is privileged, while the jury is called upon to determine any disputed facts relevant to that question. I note that the primary judge, accepting without argument that the issue of reasonableness was a question of fact for the jury, left the question to the jury, who answered it in the affirmative. On the motions for judgment, the primary judge concluded that it was not open to the jury to so conclude and the defence did not apply. There was no ground of appeal raised in respect of that procedure leading to a threshold question which was resolved by the court determining the appeal on the basis of what occurred at trial.
[18](2003) 9 VR 1, 11 [12] (Winneke ACJ), 28 [106]-[112] (Gillard AJA).

However, Gillard AJA stated, relevantly:[19]

In my opinion, the cases in New South Wales concerning the question of the reasonableness of publication provide a guide to matters which are relevant to the question but one should be careful not to raise these relevant matters to principles of law. The defendant must prove that the publication was reasonable in the circumstances. That is the element of proof. That, in my view, is a question for the trial judge.
If there are any disputed facts which bear upon that question, then those disputed facts are to be resolved by the jury if the trial is by jury.
In my opinion, "a disputed fact" is not whether the publication was reasonable in the circumstances. That is a matter for the judge. By disputed facts I mean any facts which are relevant to that issue and which have been the subject of dispute between the parties. In a trial by jury, the resolution of those facts should be the subject of specific questions to the jury.
It follows that in my opinion the course adopted at trial was contrary to law. The question of the reasonableness of the publication was a question that the trial judge had to determine, together with the question whether the communication did concern political or government matters.

[19]Ibid 29-30 [116]-[119].

In Belbin v Lower Murray Urban and Rural Water Corporation,[20] Kaye J cited, inter alia, those observations in a trial that followed the enactment of the national uniform legislation where the defendant pleaded qualified privilege both at common law and under s 30 of the Act. Although the Act provided by s 22(2) that the jury is to determine whether any defence raised by the defendant have been established, his Honour concluded that the long established common law practice continued to apply in respect of the qualified privilege defence under s 30 because of s 22(5)(b) that states that nothing in s 22 requires or permits a jury to determine any issue that, at general law, is an issue to be determined by the judicial officer.
[20][2012] VSC 535 (upheld on appeal although there was no ground of appeal concerning s 22(2)).

Kaye J said:[21]

It has been long established that, at common law, it is for the judge, and not the jury, to decide whether the matter complained of was published on an occasion of qualified privilege. In such a case, the jury, and not the judge, determines any disputed questions of fact, but the decision, as to whether the matter was published on a privileged occasion, is a question for the judge as a matter of law. Section 22(2) of the Act provides that the jury is to determine whether any defence raised by the defendant has been established. However s 22(5)(b) provides that nothing in s 22 requires or permits a jury to determine any issue that, at general law, is an issue to be determined by the judicial officer. Thus, it was accepted that is for me as the trial judge, and not the jury, to determine whether the defendant has established its defence of qualified privilege, both at common law and pursuant to s 30 of the Act, subject, of course, to the jury to determining any disputed issues of fact in relation to those defences.

[21]Ibid [44].

In New South Wales, McClellan CJ at CL reached the same conclusion in Davis v Nationwide News.[22] However, in Daniels v New South Wales (No 6),[23] McCallum J doubted that the authorities cited in Davis permitted the conclusion for which that case stands. Daniels included a s 30 defence to a publication of a report by the plaintiff’s principal as to his teaching required by the Department of Education. Neither of these cases discussed the Victorian cases that I have noted. Her Honour’s conclusion was that, in the case before her had it not resolved, the question whether the conduct of a publisher in publishing allegedly defamatory matter was reasonable in the circumstances was a question of fact not entailing a normative judgment of a kind more appropriately determined by the judge. It was not a question which, at general law, is required to be determined by the judge. McCallum J concluded about the nature of the question:[24]

Shorn of statutory intrusion, the general law appears to hold that, in addition to questions of law, some questions that involve “important considerations of public and social policy traditionally refined and determined by the judge” (if they are not also questions of law) should be decided by the judge. But I do not think the element of reasonableness in s 30(1)(c) of the 2005 Act necessarily bears that characterisation. As recorded in the judgment of Evatt J in Bedford (citing Greer LJ in Watt v Longsdon), some questions of degree are left to the determination of a jury, such as the question in negligence cases of what the reasonably careful man would do.

[22](2008) 71 NSWLR 606.

[23][2015] NSWSC 1074, [28] (‘Daniels’).

[24]Ibid [29].

There is a tension between Gillard AJA’s conclusion that the question of reasonableness of publication was, at common law a question for the judge and the conclusion reached by McCallum J in Daniels concerning the requirement of s 30(1)(c) of the Act.[25]
[25]Note the observations of Rares J in Gregg v Fairfax Media Publications Pty Ltd [2016] FCA 1470, [14].

The parties agreed a set of jury questions that identified the particular specific questions of fact on which the ultimate question of whether the occasion of publication was privileged would rest. Those questions included a question whether Bauer Media established that its conduct in publishing the First Women’s Weekly online article was reasonable in the circumstances. In my view, the present case was one where the element of reasonableness in s 30(1)(c) of the Act did not bear characterisation as a question for the judge as was the case in Popovic and seemed in this case to be a quintessential jury question. I saw no risk that a jury verdict might be compromised if the question was left and both sides invited me to do so.

Given the myriad of circumstances in which a s 30 defence can be taken, I am inclined to agree with McCallum J that the characterisation of the element of reasonableness in s 30 broadly for the purposes of s 22(2) of the Act will depend on the circumstances. I do not suggest and should not be taken to be saying by what was done in this case that it will always be the case that such a question can properly be left to the jury. A judge will need to evaluate the pleadings and the conduct of the trial, and the issues of fact and law that are involved, on a case by case basis. As Popovic demonstrates, in many cases whether an occasion of qualified privilege existed should be determined by the judge.

It follows from the jury’s findings that the s 30 defence was rejected by them, but in any event the jury’s finding of malice (see paragraph [10]) was fatal to the qualified privilege defence in relation to the First Women’s Weekly online article whether at common law,[26] or pursuant to s 30 of the Act.[27]
[26]Roberts v Bass (2002) 212 CLR 1, 30 [75]ff.
[27]Defamation Act 2005 (Vic), s 30(4).

To the extent that there are aspects of those defences that ought to be considered by me, I make the following observations. The jury’s responses to questions 3.6(c), 3.6(d) and 3.6(f), in the context of the statutory defence are relevant in demonstrating that the requisite factual basis for a correspondence of duty and interest required for the common law defence was not established. First, I agree with the jury’s conclusion on each of the questions. Secondly, in case it later be thought that the statutory defence should have been determined by me rather than the jury, taking into account the jury’s response to the earlier parts of question 3.6 and for the reasons that follow concerning the common law defence, I conclude that Bauer Media’s conduct was not reasonable in the circumstances, the jury’s response to Q. 3.6(g) was correct, and Bauer Media did not establish the defence under s 30 of the Act.

In Lower Murray Urban and Rural Water Corporation v Di Masi,[28] the Court of Appeal concluded that the subjective intent or purpose of the publisher is relevant to the consideration of reasonableness under s 30. The Court of Appeal approved the primary judge’s observation that:[29]

although knowledge by a defendant, that allegations contained in matter published by it are untrue, is, almost invariably, conclusive evidence of malice, it is not the equivalent of malice. Rather, to prove malice, a plaintiff must satisfy a jury that the dominant motive of the defendant was an improper motive, which was ulterior to any duty or interest of the defendant in publishing it. Thus, if the concept of reasonableness, for the purposes of s 30(1)(c), includes a consideration of subjective matters, such as the state of knowledge and understanding of a publisher of the information contained in the matter published, there would be no inconsistency between s 30(1)(c) – which requires the defendant to prove that its conduct in publishing the material was reasonable – and s 30(4), which places the onus of proof of malice on the plaintiff.

[28](2014) 43 VR 348, 381 [87].

[29]Ibid 379 [80], quoting Belbin v Lower Murray Urban and Rural Water Corporation [2012] VSC 535, [162] (Kaye J) (citation omitted).

The plaintiff’s case, evident from the outset in its pleaded claim for aggravated damages, was that Bauer Media published the Woman's Day print article and uploaded the other articles to the websites over three consecutive days at the time of the world-wide release of the film Pitch Perfect 2, in which the plaintiff had a lead role. Having been released several weeks earlier in Australia when it outperformed Mad Max Fury Road at the box office, it was obvious to any observer of the entertainment industry including Bauer Media editorial staff that the plaintiff’s media profile would significantly amplify public interest in Bauer Media’s articles. The plaintiff’s case to the jury was that Bauer Media’s purpose or intention was to profit commercially by attracting public and media attention to its publications within Australia and internationally by the timing of its articles and by their sensational nature, and the articles in fact attracted such attention. Alternatively, the plaintiff contended the defendants well knew at the time of publication that the natural and probable consequence of the publication of the articles would be to attract such attention, which would be beneficial for its commercial interests.

For reasons that later appear, I have concluded, consistently with the jury’s finding and the way the case was put to it, that Bauer Media’s subjective intent or purpose in publishing the articles was unreasonable. Bauer Media ran a campaign against the plaintiff that was calculated by it to generate commercial benefit for it. It knew that the imputations were false and understood the probability of rapid and massive spread over the internet and it kept the story going after Ms Wilson’s tweet response. These inferences were properly open and not refuted by Bauer Media. The history of the gestation of the Woman’s Day print article, discussed elsewhere, provided a reasonable basis for the inferences contended for by the plaintiff, as did the circumstances of publication of the Women’s Weekly online article.

At trial, Ms Nementzik and Ms Overington, from junior positions in the defendants’ hierarchy, attempted to refute the pleaded propositions about Bauer Media’s motive and intentions in publishing the articles. Each suggested that each magazine or website was operated independently of the other and in apparent competition, but neither witnesses could, or did, assert authority to speak on behalf of Bauer Media to refute the inferences properly raised by the plaintiff as open on the evidence as to its purpose or intention. No more senior Bauer Media executive in a position of control of any individual publication gave evidence. There was no evidence of any impediment to such persons giving evidence. Bauer Media’s general counsel, Mr Goss, was present in court throughout the trial.

The unexplained absence of Bauer Media executives who exercised actual control over publication of individual articles and more senior executives with overall management of the Bauer Media stable of publications permitted the jury, as it does me, to more comfortably infer from the evidence tendered by the plaintiff that the temporal relationship between publication of the articles, on the one hand, and the success of Pitch Perfect 2 and the attendant interest of readers in the plaintiff was not coincidental. The intended purpose was to improve the financial return to Bauer Media by way of a campaign against Ms Wilson.

Of particular relevance to the qualified privilege defence was the indecent haste with which Bauer Media implemented what Ms Overington saw as the duty to correct the record and the interest of readers of the website in seeing the record constituted by the print magazine corrected. This circumstance also lent weight to the inference that Bauer Media’s purpose and intention was unreasonable. The February 2015 Women’s Weekly print article has been in circulation for months, probably long forgotten in the whirlwind of the celebrity media cycle. The immediacy, content, and tone of Ms Overington’s ‘correction’ on the Women’s Weekly online website rather than in the next print edition of the Women’s Weekly comfortably supported the motivation inference sought by the plaintiff. I was not persuaded to accept Ms Overington’s stated purpose for writing the article as Bauer Media’s intention in publishing it, and it cannot be reasoned that the jury did either.

Turning now to the common law defence, it was common ground that the Woman’s Day print article and/or the Mamamia article dated 18 May 2015 authored by Alex Greig called into question the accuracy or veracity of Ms Overington’s article published in the February 2015 print edition of the Women’s Weekly. Relevantly, the subject matter was whether statements in the February 2015 Women’s Weekly print article were accurate or true and whether clarification or confirmation on that subject was required in the light of the content of the Woman’s Day print article and/or the Mamamia article.

The evidence did not prove that the readers of the Women’s Weekly online article had any interest in having information on that subject matter. The statutory defence depended on Bauer Media establishing that, at the time of the publication, it believed on reasonable grounds that the readers of the Women’s Weekly online article had an interest in having information on the subject of a review of the contents of Ms Overington’s February 2015 Women’s Weekly print article and clarification or confirmation of whether the contents of that earlier article were accurate. That belief would also inform the issue of community of interest in information on the subject matter for the purposes of the common law defence.

Neither of the Bauer Media witnesses was able to establish what was its belief about the reason for publication of the article. Ms Nementzik had no involvement with the Women’s Weekly online website. Ms Overington was the author of the relevant article, but she did not make publication decisions. Ms Overington was posted to the USA by Bauer Media for reasons that included promoting the profile of that website, presumably for Australian readers. She said her job included convincing celebrities to appear in the magazine. Ms Overington made it clear that while it was she who decided to write the article, it was not her decision to publish the article:

The title that they gave me was associate editor, which makes people think that you actually have some control or power over things, but you don't. I was just writing articles.

The absence of Bauer Media’s online editor at the time for the Women’s Weekly, Kerry Warren, who apparently had that power or control, was unexplained.

Once Ms Overington’s explanation was rejected, as it must be, there were two consequences that, independently of the finding of malice, were fatal to the qualified privilege defence. First, the motive or intention of Bauer Media in publishing Ms Overington’s article was not explained. Bauer Media did not establish its reasonable belief that readers of the online website had an interest in receiving information that corrected errors, and so corrected, the record constituted by the February 2015 Women’s Weekly print article (assuming that publication is a record in a relevant sense for the purposes of this argument). There was no evidence of the state of mind of the persons in control of, or directing, the publication of the article that identified Bauer Media’s state of mind. Bauer Media needed to prove the state of mind of its relevant actors most closely connected with the decision to publish each article.

Bauer Media presented its case in such a way that regard can only be had to inferences available from documentary evidence and from the unexplained absence of witnesses who might reasonably be expected to have assisted its case. I have analysed the former elsewhere in these reasons. As Bauer Media carried the burden of proof, the jury could infer that its editors and senior executives would not have assisted in rebutting the inference of motive or intention raised by the plaintiff.[30]
[30]Jones v Dunkel (1959) 101 CLR 298.

It was probable that Bauer Media had an improper motive to profit from the publications by exploiting the plaintiff’s reputation. Unanswered, the probable inference that Bauer Media’s dominant motive in publication was improper was not only open, it was accepted by the jury, and rightly so. For that reason, the occasion of publication cannot be privileged.

Secondly, I was persuaded that Ms Overington’s personal motivation was to protect her own reputation. She regarded her professional reputation as substantial or significant. Ms Overington stated that stories began to appear which suggested that the plaintiff had not been honest about some aspects of her background when she interviewed her for the February 2015 Women’s Weekly article. She identified an article on Mammamia.com and some of the other Bauer Media articles sued on in this proceeding. Her response is relevant to a number of issues. She said:

I was a bit shocked because obviously other things that were being said at around that time - this issue was getting a bit of traction in the US, so there were a number of tweets about whether Rebel had been dishonest or maybe exaggerated some other aspects of her life while she was getting ahead in Hollywood, and I felt a sense of discomfort and dismay, thinking if I have got all of this wrong in that article that we looked at before, I am going to have to correct it, and that is a difficult thing for a journalist to do … My instinct was to – I guess to contact the editor in chief of the magazine as quickly as I could and to acknowledge my error, that mistakes had appeared in our magazine that I then wanted to correct.

There was no evidence that Ms Overington had any contact with the editor in chief of the magazine or of any publication in subsequent editions of that magazine. Rather she contacted Ms Warren:
I contacted the online editor of the magazine and said, “I feel that we may, in this earlier issue, have been led astray. Some of these things are not true and we needed to correct that” and she said “Well quickly write a piece” and I said “Yes”.

Bauer Media made a forensic decision to rely, as its intention in publishing the article, on Ms Overington’s expressed motivation in writing it, which motivation I reject. She considered, necessarily making an assumption, that what she had read on Mammamia.com and in other Bauer Media publications was correct. Before she undertook any research, which she described as occurring once she was given the instruction to prepare an article, she accepted that she had been ‘led astray’ by the plaintiff and needed to acknowledge her error because she felt ‘a sense of discomfort and dismay’. I am satisfied, by reference to the whole of her evidence, that Ms Overington’s need to correct the record arose because the uncorrected record reflected poorly on her standing as a journalist. She was not primarily motivated to oblige any public interest in being fully and correctly informed about aspects of a celebrity’s life. I did not understand her to articulate any motive in those terms. Although she said that if one’s readers were misled, it was incumbent on the journalist to correct the record, the premise was assumed while the source of the obligation was not identified.

These is no public interest of the kind relied on. Were I to accept that Ms Overington wrote the article with the honest intention of protecting Women’s Weekly readers from being misled by ‘her mistakes’, I would not accept the proposition that must follow. The law does not recognise a social or moral duty in a publisher to protect the interest of readers in not being misled in their curiosity about celebrities when it was threatened by journalistic error. The interest of readers of the Women’s Weekly website in receiving correcting information about the relatively inconsequential circumstances of a celebrity published in a different medium is not of a nature that engenders a social or moral duty.[31]
[31]See generally the discussion in Harbour Radio Pty Ltd v Trad (2012) 247 CLR 31, 43-49 [20]-[35].

I cannot identify why, in the present circumstances, as a matter of public policy it must be in the general interest of the whole community that the Women’s Weekly online article was published, notwithstanding that it was defamatory of the plaintiff. It cannot be said that all members of the group constituted by the readers of the Women’s Weekly online article have an interest in knowing the truth, or in seeing the record corrected. There is no comparison between that subject matter and, for example, serious investigative journalism that might attract Lange privilege. I know of no basis, and none was suggested, for the proposition that such a duty can arise from an assumed interest of readers in the veracity or accuracy of celebrity or gossip journalism as was suggested in this case. Such publications are not records. At their best, they are ephemeral entertainment or titillation.

As the learned editors of Gatley on Libel and Slander state:[32]

What must be emphasised is that it is not enough that the communication was made with the honest purpose of protecting the interests of the recipient: the interest must be such that in the eyes of the law it creates a moral duty in the defendant to protect it. The cause of the privileged occasion is not merely the interest of the recipient; it is that interest plus the corresponding moral or social duty which arises in the circumstances of the case by reason of the nature of the interest.

[32]R Parkes et al (eds), Gatley on Libel and Slander (Sweet & Maxwell, 12^th ed, 2013) 577 [14.34].

In Marshall v Megna, Allsop P observed: [33]

The word "interest" is used in the broad popular sense, referring not to a matter of gossip or curiosity, but to a matter of substance beyond mere news value. The interest is to be definite, not vague or insubstantial, though it may be direct or indirect. It must be "of so tangible a nature that for the common convenience and welfare of society it is expedient to protect it": Howe v Lees [1910] HCA 67; 11 CLR 361 at 377 and 398; Andreyevich at 363-364.

[33]Marshall v Megna [2013] NSWCA 30, [6].

In general terms, a relevant interest could be where the provision of the information would assist the recipient to make an important decision or to decide upon a particular course of action.[34]
[34]Austin v Mirror Newspapers Ltd (1985) 3 NSWLR 354, 358-359.

The defendants contended that they were honestly motivated to publish because, adopting Ms Overington’s expressed motive, they wished to protect the interests of their readers by correcting the record. I do not accept that proposition either. Considering the evidence of Ms Overington in its totality, including her demeanour and presentation, I am satisfied Ms Overington’s dominant motive in writing the article was to reinforce her own reputation as a serious award-winning investigative journalist. Ms Overington honestly held that intention but I am unable to accept that her purpose was that of Bauer Media. Even if it was, that purpose cannot of itself create a privileged occasion that permitted the defendant to inflict damage on the plaintiff’s reputation. Assuming, which I do not, it to be the dominant motive of Bauer Media in publishing to protect and reinforce Ms Overington’s reputation as a journalist, it cannot be said that it was seeking to protect a legitimate interest in publishing as it did.

In so concluding I bear in mind that the High Court said in Papaconstuntinos v Holmes a Court:[35]

The modern emphasis in the formulation of the defence of qualified privilege is upon duties and interests rather than the state of mind of the defendant, the latter of which would include the defendant's motive. If the defendant has a legitimate interest which the defendant seeks to protect in making the defamatory statement, the occasion for the privilege arises. There is no case which holds that self-interest operates as a disqualification or requires something more, such as some compelling need or urgency, to justify a statement.

[35](2012) 249 CLR 534, 551 [38] (citation omitted).

I turn to the assessment of damages.

The claim for general damages
General principles

Some damage to the plaintiff’s reputation is presumed by law. The defendants did not dispute that the plaintiff also suffered some hurt to her feelings. The plaintiff gave further evidence of the damage to her reputation and the injury to her feelings that I will come to. It is convenient to commence by stating some well-established principles relevant to the assessment of general damages that were not in contest. In doing so, I will defer until later in these reasons a discussion of the principles in respect of the plaintiff’s claim to special damages.

(a)The purposes of an award of damages are to provide consolation for hurt to feelings, compensation for damage to reputation, and vindication of the plaintiff’s reputation.[36] The assessment of general damages is necessarily imprecise and, accordingly, damages are ‘at large’ in the sense that they cannot be arrived at through calculation or the application of a formula.[37]
(b)The sum awarded must demonstrate vindication of the plaintiff’s reputation. The level of damages ought to reflect ‘the high value which the law places upon reputation and, in particular, upon the reputation of those whose work and life depends upon their honesty, integrity and judgment’.[38]
(c)The gravity of the libel and the social standing of the parties are relevant to assessing the quantum of damages necessary to vindicate the plaintiff.[39] The award must be sufficient to convince a bystander of the baselessness of the charge.[40] At common law, it was legitimate to take into account not only what the plaintiff should receive but also what the defendant ought to pay.
(d)Section 34 of the Act requires that the court in determining the amount of damages to be awarded in any defamation proceedings is to ensure that there is an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded.
(e)The extent of publication and the seriousness of the defamatory sting are pertinent considerations.
(f)In determining the damage done to a plaintiff’s reputation, the court should also take into account the ‘grapevine’ effect arising from the publication of the defamatory material.[41] This phenomenon is no more than the realistic recognition by the law that, by the ordinary function of human nature, the dissemination of defamatory material is rarely confined to those to whom the matter is immediately published.[42] It is precisely because the ‘real’ damage cannot be ascertained and established that damages are at large. It is often impossible to track the scandal and to know what quarters the poison may reach.[43] The award of damages must be sufficient to ensure that, the damage having spread along the ‘grapevine’, and being apt to emerge ‘from its lurking place at some future date’, a bystander will be convinced ‘of the baselessness of the charge’.[44]
(g)It is well accepted that injury to feelings may constitute a significant part of the harm sustained by a plaintiff, and for which a plaintiff is to be compensated by damages.[45] Injured feelings include the hurt, anxiety, loss of self-esteem, sense of indignity and the sense of outrage felt by the plaintiff.[46]
(h)Aggravated damages are a form of compensatory damages and, where appropriate, form part of the general damages awarded to a successful plaintiff for non-economic loss, designed to reflect aggravation caused to a plaintiff’s hurt or injury by reason of some conduct of the defendant.[47] An award of aggravated damages may be made if a defendant has acted in a manner which demonstrates a lack of bona fides or engaged in conduct which is otherwise improper or unjustifiable.[48] Conduct with those characteristics will be such as to increase the harm which the defamation has caused or may be supposed to have caused to the plaintiff.[49] A damages award is not usually broken down into components for pure compensatory damages and aggravated compensatory damages.[50]
(i)At common law, in awarding aggravated damages, the court compensated the plaintiff for the loss actually suffered as a result of the defamation. In doing so, the court could adopt the highest level of damages open as compensatory damages.[51] The parties disagreed about whether this approach was now precluded by s 35 of the Act.

[36]Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44, 60 (Mason CJ, Deane, Dawson and Gaudron JJ); see also Coyne v Citizen Finance Ltd (1991) 172 CLR 211, 216 (Mason CJ, Deane J); Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327, 347 [60] (Hayne J).

[37]Aktas v Westpac Banking Corporation Ltd [2009] NSWCA 9, [89]-[91] (McClellan CJ at CL); Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327; Cassell & Co Ltd v Broome [1972] AC 1027, 1071 (Lord Hailsham of St Marylebone LC).

[38]Hockey v Fairfax Media Publications Pty Ltd (2015) 237 FCR 33, 113 [446]; Crampton v Nugawela (1996) 41 NSWLR 176, 195 (Mahoney A-CJ), applied in John Fairfax Publications Pty Ltd v O’Shane (No 2)[2005] NSWCA 291, [3] (Giles JA).

[39]Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44, 61 (Mason CJ, Deane, Dawson and Gaudron JJ).

[40]Crampton v Nugawela (1996) 41 NSWLR 176, 194 (Mahoney A-CJ).

[41]Ley v Hamilton (1935) 153 LT 384, 386 (Lord Atkin); Crampton v Nugawela (1996) 41 NSWLR 176, 193–5 (Mahoney A-CJ), 198 (Handley JA); Cassell & Co Ltd v Broome [1972] AC 1027, 1071 (Lord Hailsham of St Marylebone LC); Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388, 416 [88] (Gummow J); Prendergast v Roberts [2012] QSC 144, [31] (Mullins J).

[42]Belbin v Lower Murray Urban & Rural Water Corporation [2012] VSC 535, [217] (Kaye J).

[43]Ley v Hamilton (1935) 153 LT 384, 386 (Lord Atkin).

[44]Crampton v Nugawela (1996) 41 NSWLR 176, 194–5 (Mahoney ACJ).

[45]Belbin v Lower Murray Urban & Rural Water Corporation [2012] VSC 535, [242] (Kaye J).

[46]Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44, 71 (Brennan J).

[47]Rookes v Barnard [1964] AC 1129, 1221 (Lord Devlin); Broome v Cassell & Co Ltd [1972] AC 1027, 1085 (Lord Reid); Lower Murray Urban and Rural Water Corporation v Di Masi (2014) 43 VR 392, 392 [118] (Warren CJ, Tate and Beach JJA).

[48]Hockey v Fairfax Media Publications Pty Ltd (2015) 237 FCR 33, 114 [446] citing Triggell v Pheeney (1951) 82 CLR 497, 514.

[49]Hockey v Fairfax Media Publications Pty Ltd (2015) 237 FCR 33, 114 [446], citing Mirror Newspapers Ltd v Fitzpatrick[1984] 1 NSWLR 643, 653.

[50]Lower Murray Urban and Rural Water Corporation v Di Masi (2014) 43 VR 348, 392 [116] (Warren CJ, Tate and Beach JJA).

[51]Cassell & Co Ltd v Broome [1972] AC 1027, 1085 (Lord Reid).

Despite the common law drawing a distinction between general and special damages, the uniform national legislation drew a line between non-economic loss and economic loss in s 35 of the Act. There is not now, if there ever was, a bright line between these different characterisations of damage. As Hutley JA explained in Andrews:[52]

even though only general damages are claimed, the plaintiff can give evidence of some particularity about the state and nature of his business, and changes which he alleges have been wrought in it by the defamation of which he complains, but only for the purpose of enabling the jury properly to evaluate the general damages which he has claimed. The borderline as to what is admissible in proof of special damages and what is admissible in proof of general damages is, therefore, not a firm one. Material which would be admissible in proof of special damages and would tend to prove special damages may also be admitted in proof of general damages and, in the course of the trial, it may fall to the judge to see that this distinction between what is permissible as proof for one purpose and what for another is kept before the jury.

[52][1980] 2 NSWLR 225, 235.

The plaintiff submitted that Andrews damages are an alternative basis for compensation for economic loss to a claim for special damages and that general damages assessed on this basis are properly characterised as economic loss. The plaintiff submitted that evidence of lost earnings will be properly characterised as evidence of economic loss, not non-economic loss and accordingly Andrews damages fall outside the definition of the maximum damages amount for the purposes of s 35(1) of the Act, even in cases where the cap otherwise applies.

The defendants contested this submission, contending that although Andrews damages may be established by proof of a general loss of custom or goodwill which cannot be precisely quantified, such damages are awarded for injury to reputation. Damages awarded for injury to a commercial reputation are damages for non-economic loss and, accordingly, do not avoid the operation of the cap.[53] However, the defendants primary submission, considered later, is that the plaintiff is not entitled to Andrews damages because she has not proved that the defendant’s articles have caused her any general loss of business, custom or goodwill in her profession as an actress. I will return to this question in due course.
[53]Citing Ingram v Lawson (1840) 133 ER 84; Coyne v Citizen Finance Ltd (1991) 172 CLR 211, 231 (Toohey J, Dawson and McHugh JJ agreeing); Ayan v Islamic Co-ordinating Council of Victoria Pty Ltd [2009] VSC 119, [63].

Section 35 – The cap

The second area of dispute about principle concerned the statutory cap on damages for non-economic loss. Section 35 of the Act provides:

(1)Unless the court orders otherwise under subsection (2), the maximum amount of damages for non-economic loss that may be awarded in defamation proceedings is $250,000 or any other amount adjusted in accordance with this section from time to time (the maximum damages amount) that is applicable at the time damages are awarded.
(2)A court may order a defendant in defamation proceedings to pay damages for non-economic loss that exceed the maximum damages amount applicable at the time the order is made if, and only if, the court is satisfied that the circumstances of the publication of the defamatory matter to which the proceedings relate are such as to warrant an award of aggravated damages …

The maximum damages amount (the cap) was $381,000 at the time of trial.[54] The cap is now $389,500, having increased from 1 July 2017,[55] and this is the presently applicable cap.
[54]Since 1 July 2016 - Defamation Act 2005 (Vic), s 35; Government Gazette No G21, 26 May 2016.
[55]Government Gazette No G22, 25 May 2017.

The plaintiff submitted that the cap has no role to play when, as in this case, an award of aggravated damages is warranted by the circumstances of the publication. In this circumstance, the text of the statute required that the permissible quantum of general damages for consolation for hurt to feelings, compensation for damage to reputation, and vindication of the plaintiff’s reputation,[56] as aggravated, is at large and not capped in any respect.
[56]Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44, 60-61 (Mason CJ, Deane, Dawson and Gaudron JJ). See also Coyne v Citizen Finance Ltd (1991) 172 CLR 211, 216 (Mason CJ, Deane J); Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327, 347 [60] (Hayne J).

The defendants submitted that the statutory cap restricts the assessment of the plaintiff’s claim for ordinary compensatory damages for non-economic loss, irrespective of whether the court also makes an award of aggravated damages, but should the court be minded to make an award of aggravated damages, the cap may not restrict the assessment of the aggravated component of the award. In other words, the cap will continue to operate as a partial constraint. The defendants contended that s 35(2) grants the court a discretion to award damages for non-economic loss ‘that exceed’ the statutory cap in a single prescribed circumstance. That circumstance is where the court is satisfied that the circumstances of publication of the defamatory matter are such as to warrant an award of aggravated damages.

The issue for the court is the proper construction of the language of the Act.

The parties agreed that the task of statutory construction begins and ends with a consideration of the text itself, understood according to its plain or natural meaning, unless some ambiguity exists, read in light of its context and purpose.[57] Section 35 of the Interpretation of Legislation Act1984 (Vic) provides that, in the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act is to be preferred to a construction that would not promote that purpose or object.[58]
[57]Stingel v Clark (2006) 226 CLR 442, 458 (Gleeson CJ, Callinan, Heydon and Crennan JJ), 462 (Gummow J), 481 (Kirby J); Central Bayside General Practice Association Ltd v Commissioner of State Revenue (2006) 228 CLR 168, 197 (Kirby J).
[58]Mills v Meeking (1990) 169 CLR 214, 235 (Dawson J).

The parties also agreed that a general damages award is not usually broken down into components for pure compensatory damages and aggravated compensatory damages.[59] There should be one global sum.
[59]Lower Murray Urban and Rural Water Corporation v Di Masi (2014) 43 VR 348, 392 [116] (Warren CJ, Tate and Beach JJA).

The plaintiff developed her submission as follows:

(a)One of the objects of the Act is to provide effective and fair remedies for persons whose reputations are harmed by the publication of defamatory matter.[60]
(b)The proper construction of s 35 of the Act is that damages for non-economic loss are only capped in cases that do not warrant an award of aggravated damages; that is, in cases where the defendant has not acted in a manner which demonstrates a lack of bona fides or conduct that is otherwise improper or unjustifiable.
(c)Section 35(2) imposes no constraint upon a plaintiff’s entitlement to damages in circumstances where a publisher has engaged in conduct warranting an award of aggravated damages.
(d)The alternative contention—that the court may award general damages for non-economic loss up to the cap, and may only exceed the cap by an amount that represents the extent of any entitlement to aggravated damages—is not reflected in the text of s 35. Section 35(2) provides that the maximum damages amount may be exceeded ‘if, and only if’ such an award is warranted. It does not provide that the maximum damages amount may be exceeded ‘if, but only to the extent that’ such an award is warranted.
(e)Further, it is inconsistent with the established principle that an award of general damages is not to be broken down into components for pure compensatory damages and aggravated compensatory damages.
(f)In cases where it applies, the cap acts as a ‘cut-off’ amount and does not require the court to engage in a scaling exercise. The cap is not intended to be reserved for the most serious defamation imaginable. If damages are assessed at an amount that is above the cap, then the cap simply provides a cut-off.

[60]Defamation Act 2005 (Vic), s 3.

The defendants contended that:

(a)The construction for which the plaintiff contended was a strained construction of the language of the legislation for which there is no precedent and which would potentially lead to oppressive results that would frustrate the objectives of both the cap and the legislation more broadly.
(b)The language of the section shows a clear intention that only the aggravated damages component of general damages for non-economic loss may be awarded in a sum in excess of the cap. Aggravated damages are a form of compensatory damages for non-economic loss. The section gives the court a discretion to award damages for such non-economic loss that exceeds the cap where it proposes to award aggravated damages as part of its award for non-economic loss. There is an obvious nexus in the statutory text between the entitlement to aggravated damages and the discretion to then award damages in excess of the cap.
(c)The introduction of the statutory cap was one of the key pillars of the national uniform defamation legislation. Doing away with the cap in its entirety on ordinary compensatory damages whenever a court decides to also award aggravated compensatory damages would effectively frustrate the reforms effected by the Act, since aggravated damages are commonly awarded in defamation and the construction of s 35(2) contended for by the plaintiff would significantly undermine the utility of the cap. Had that been the intention of the section, the legislature could have so stated in clear and unambiguous terms.
(d)The plaintiff’s reliance on the object of the Act to provide effective and fair remedies for persons whose reputations are harmed by the publication of defamatory matter is misplaced. Other objectives of the Act include ensuring that the law of defamation does not place unreasonable limits on freedom of expression[61] and that damages awards bear an appropriate and rational relationship to the harm sustained by a plaintiff.[62]
(e)As part of national, uniform defamation laws, the Act is intended to redress a perceived imbalance between defamation damages awards and awards in personal injury cases. This legislative intention is evident from other sections of the Act. Section 35(1) also provides that the cap applies to all damages awarded in a single proceeding – rather than separately in relation to each publication or cause of action in a proceeding. Section 34 provides that, in assessing damages, the Court must ensure that its award bears an appropriate and rational relationship to the harm sustained by the plaintiff. Section 37 abolished exemplary damages in defamation cases. Section 38 provides for a range of factors to which the Court may have regard in mitigation of damages. Section 23 reinforces the statutory cap by providing that a plaintiff cannot, without leave, issue separate defamation proceedings against the same defendant in relation to the same or any other publication of the same or like matter.
(f)The framework of the Act in this respect would be too easily frustrated were the statutory cap on ordinary compensatory damages to be swept aside in every case in which an award of aggravated damages might be available, no matter how large or small the degree of aggravation involved.
(g)Any ambiguity in the meaning of s 35(2) is readily resolved by reference to the relevant extrinsic materials. The Second Reading speech for the Defamation Bill 2005 (Vic)[63] unambiguously divines the objective of section 35(2):
Consistent with the policy of capping general damages for personal injury claims as part of the tort law reforms implemented across jurisdictions in 2002 and 2003, the Defamation Bill caps damages awarded for non-economic loss in defamation actions at $250,000 …
However, under the bill, the courts will still retain the power to order aggravated damages for non-economic loss that may go over and above the statutory cap where the relevant court is satisfied that the circumstances of the publication of the defamatory matter warrants such an award. Courts will continue to be able to award full recovery of all economic loss.

(h)The Minister’s speech ought to put the proper construction of s 35 beyond doubt. The intention of s 35(2) is simply to permit aggravated damages to be awarded over and above the statutory cap. It is not the intention of the provision to permit the Court to make an award of ordinary compensatory damages which exceeds the cap in any case where an award of aggravated damages is also made.
[61]Ibid s 3(b).
[62]Ibid s 34.
[63]Victoria, Parliamentary Debates, Legislative Assembly, 7 September 2005, 635 (Rob Hulls, Attorney-General).

When the is cap inapplicable

In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT),[64] Hayne, Heydon, Crennan and Kiefel JJ commented as follows:

This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.

[64](2009) 239 CLR 27, 46-47 [47] (‘Alcan’).

More recently, on this subject, in Commissioner of Taxation v Consolidated Media Holdings Ltd,[65] after considering Alcan, and repeating that: ‘[t]his Court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text’, the joint judgment continued:

So must the task of statutory construction end. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text. Legislative history and extrinsic materials cannot displace the meaning of the statutory text. Nor is their examination an end in itself.[66]

[65](2012) 250 CLR 503, 519 [39] (French CJ, Hayne, Crennan, Bell and Gageler JJ) (citations omitted).

[66]Ibid.

An academic commentator, Dr David Rolph,[67] has suggested, correctly, that the introduction of capping of defamation damages reflected and followed two trends, then current. First, the common law had long been concerned with disparities between the levels of damages for non-economic loss in defamation and personal injuries cases, as apparently excessive defamation awards implicitly conveyed that the law was more concerned with protection of reputation than compensation for pain and suffering and other non-economic losses resulting from personal injuries. Secondly, an economic need was perceived soon after the turn of the century for the restriction of damages for non-economic loss in personal injury cases and, as part of tort law reforms, parliaments imposed statutory caps. In Victoria, in 2002, the maximum amount of damages that may be awarded to a personal injury claimant for non-economic loss was capped by s 28G of the Wrongs Act 1958 (Vic), in a sum indexed by reference to the CPI.[68]
[67]David Rolph ‘A critique of the national, uniform defamation laws’ (2008) 16 Torts Law Journal 207; David Rolph, Defamation Law, (Thomson Reuters, 2016) 15.110-15.130.
[68]Presently $577,050. Note that this cap was also part of a national legislative response: Civil Liability Act2002 (NSW) ss 16, 17; Civil Liability Act2003 (Qld) ss 61, 63; Civil Liability Act1936 (SA) s 52; Civil Liability Act 2002 (Tas) s 27; Civil Liability Act2002 (WA) ss 9, 10; Personal Injuries (Liabilities and Damages) Act2003 (NT) ss 27, 28.

The policy response implemented soon after in the uniform national defamation laws was to set a statutory cap at a lower level than was set for personal injuries. The legislative provisions in the Act, set out above, were modelled on the tort law reforms. So much is not only evident on comparison of the statutory provisions, it was said by the Minister in the second reading speech for the Bill, set out above. This legislative history reveals some insight into the context of the enactment of s 35, including the general purpose and policy of the provision, in particular the mischief it was seeking to remedy. In other respects the observations of the Minister on the second reading of the Bill appear at odds with the statutory text.

The statutory text is unambiguous. Section 35(2) postulates a condition for its application, being that the court be satisfied that the circumstances of the publication of the defamatory matter to which the proceedings relate are such as to warrant an award of aggravated damages. If and only if such circumstances are found, the court is no longer constrained by the statutory cap under s 35(1) and may order a defendant in defamation proceedings to pay damages for non-economic loss that exceed the maximum damages amount applicable at the time the order is made.

The expression ‘damages for non-economic loss’, like the expression ‘maximum damages amount’, does not refer to ‘an award of aggravated damages’. That expression refers to general damages that, as I have noted, are compensatory damages for non-economic loss that provide consolation for hurt to feelings, compensation for damage to reputation, and vindication of the plaintiff’s reputation and that may, in appropriate circumstances, be assessed to reflect aggravation caused to a plaintiff’s hurt or injury by reason of some conduct of the defendant.[69]
[69]Leaving for later consideration whether the expression may include Andrews damages.

Secondly, as that ruling records, I rejected the defence of partial justification and permitted the defendants to amend to plead truth simpliciter to the Woman’s Day print article. That amendment was sought in response to the rejection of the partial justification defence and in the context of the defendants being unable to articulate a proper basis for Hore-Lacy justification. The truth simpliciter defence was a bold tactic, not one that could be said to be foredoomed to fail but a defence that would necessarily tread a narrow path of reasoning that could not be said to not be open to the jury. It was a path of reasoning that the jury did not take. Justification was comprehensively rejected by the jury. No scope remained for partial justification to play any mitigatory role in the assessment of damages.

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.

The strategy pursued by the defendants is now exposed as high risk as it permitted the plaintiff to contend that it is difficult to imagine conduct that could aggravate damages to a greater extent that, on the eve of closing submissions, to plead and then seek to persist with a defence of truth simpliciter, and, in combination, to suggest that by publication in the mass media with extensive and foreseeable grapevine effect the plaintiff was unlikely to sustain any harm.

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.

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’.

Thirdly, Ms Wilson was cross-examined over the course of three days, although the course of the evidence was interrupted by legal argument. The defendants submitted that cross-examination was not improper, unjustifiable or lacking in bona fides. The defendants maintained that they limited cross-examination of the plaintiff to matters relevant to her credit, in relation to her answers to interrogatories, her affidavit of 10 April 2017, and her claimed relationship to Walt Disney. Those parts of the cross-examination was perfectly justifiable having regard to the issues.

Her cross-examination was in part repetitive, and included the following attacks on her integrity and character:

(a)Ms Wilson had lied on oath about developing a stress sore and eczema in response to the articles;
(b)Ms Wilson only brought the proceeding as retaliation for a defamation complaint made by a Bauer Media employee, Elizabeth Wilson;
(c)Ms Wilson had deliberately ignored her discovery obligations by holding back film contracts that she knew would not assist her case;

(d) Ms Wilson had sworn false answers to interrogatories;
(e)Ms Wilson’s ‘nanny, Joyce’ had simply ‘spun’ a story to her about Walt Disney being a distant relative; and
(f)Ms Wilson’s approach was to tell journalists that she was 29 years old when she was not.

In response to a question about how she felt about the cross-examination, Ms Wilson said:

I guess, Your Honour, it's – not only were these so hurtful at the time, and I don't want to break down again, but the two weeks when these stories were the subject of a media firestorm, I mean I was so hurt and stressed and shocked at first that they would write this, and then now that it's come to court and they continue to just sling mud at me when they know I'm telling the truth, it's just – they know I'm not a liar and yet these people sit here day after day and just try to accuse me again and again of being a liar and it's just – I mean, it is shameful and I can't believe that they're still sitting here trying to fight this case and trying to fight me. They bully and intimidate me, and not only me, other people, and I can't even describe how hurtful it is. I can't put it into exact words.

Ms Wilson’s family members were cross-examined about the family’s financial situation when Ms Wilson was growing up, and about the schools that the siblings had attended. 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 King’s School or that they were private schools or that the children were lucky to have been educated there. Recent photographs of properties occupied decades ago were presented to witnesses in an attempt to show that the plaintiff grew up in middle class Sydney in suburbs that must have been mis-described in Ms Wilson’s comedic performance on the Dave Letterman Show when promoting A Night at the Museum 3.

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 the plaintiff’s 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.

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 takedown’ 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.

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.

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,[178] accepting the defendant’s submission.
[178]Wilson v Bauer Media (Ruling No 5) [2017] VSC 355.

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.

Ms Wilson interpreted such conduct as Bauer Media ‘trying to hurt me even further … I guess she was just trying to … get the press to write other negative stories about me by releasing the exact numbers’.

Finally, a number of further submissions going to post-publication aggravation were made by the plaintiff as follows:

(a)The defendants failed to discover several important documents until close to trial including the internal emails discussed above, and only discovered in the course of the trial the draft articles that revealed that Ms Overington had not included any reference to Ms Wilson’s age in the first draft of her article and that the age was inserted in the tenth draft or edit by someone named Bronwyn Phillips, who was not called to give evidence. The defendants submitted that the internal emails and Ms Overington’s first draft of her article were discovered in compliance with the court ordered timetable and the defendants responded promptly, during the trial, to requests for further material. I am not satisfied that these discovery issues revealed aggravating conduct on the part of the defendants.
(b)On the eve of trial, Bauer Media published in Woman’s Day an article about Ms Wilson that suggested that she had participated in an interview about her love life with the magazine. When asked about the article, Ms Wilson said:
I’ve been in these legal proceedings with these people for a year. Obviously, I’ve not spoken to any of them or anyone from their magazine and here they’re representing that I’ve revealed information to them. It is just disgusting. Obviously, I’ve been suspicious of them for years, and their journalists, I would never reveal or give an interview to these people.

Mitigation

The defendants relied in mitigation of damages on the plaintiff’s failure to bring these proceedings for almost a full year after the dates of publication, or to ever request that the articles be removed from the internet during the intervening period. The defendants submit that these failures amount to:

(a)a failure by the plaintiff to mitigate the alleged damage to her reputation, including any special damages alleged to flow from the damage to her reputation; and
(b)evidence that the plaintiff was not as hurt by the publication of the articles as she portrayed in her evidence – albeit the defendants accept that the Court should find some hurt and injury to the plaintiff’s feelings.

I do not accept these submissions. First, it can be observed that the plaintiff commenced the proceeding within the time limit, 12 months. Secondly, I accept the plaintiff’s explanation of the delay in bringing the proceeding. I have observed elsewhere in these reasons that immediately Ms Wilson became aware of the first article (the Woman’s Day online article published on 18 May 2015), she spoke to her US publicist, Jodi Gottleib. Ms Gottleib told her not to do anything in response lest she inflame the situation even more. That this advice was prescient was evident when the plaintiff tweeted twice. Ms Wilson’s tweets did inflame the situation and were referenced in the fourth, fifth, seventh and eighth articles, including a headline ‘Rebel Wilson cries “Tall Poppy Syndrome” over age lie claims’.

The plaintiff did not bring proceedings immediately because she appreciated that her publicist had been right. She hoped, for some time after May 2015, that the story would sink into the ether and be forgotten. I accept that the plaintiff was not immediately concerned with the effect the publications had on her career in the United States. It took some time for the plaintiff to appreciate why she was not receiving film offers. She suspected, as in fact eventuated, that proceedings against the defendants would cause much further public and media attention for her and her family and repetition of the defamatory matters that she complained of. The plaintiff and her family members persuaded me that the ‘story’ did not die down and the media continued to contact members of her family. I accept that the plaintiff concluded, on reasonable grounds, that she and her family would continue to be seen as fodder for the celebrity press and that, despite wishing to avoid litigation, she had no alternative but institute proceedings.

The plaintiff’s accepted that one of the reasons she sued - the ‘final straw’ – was that an Elizabeth Wilson, editor of House and Garden Magazine and in the employ of the defendants instituted a separate defamation proceeding against the plaintiff in the NSW Supreme Court that remained ongoing.[179] The circumstances in issue in that proceeding, to the extent that they were explained in this proceeding, were not inconsistent with the plaintiff’s motivation to bring these proceedings being to restore her reputation and bring an end to harassment of her family and not for any improper or ulterior motive.
[179]A report in the Sunday Herald Sun on 20 August 2017, while my judgment was reserved, suggested that the proceeding had been compromised.

Finally, and in so far as the publications have been found to have conveyed the same meaning or effect as each other, the defendants also rely upon s 38(1)(d) of the Act that provides as follows:

38 Factors in mitigation of damages
(1)Evidence is admissible on behalf of the defendant, in mitigation of damages for the publication of defamatory matter, that —
…
(d)the plaintiff has brought proceedings for damages for defamation in relation to any other publication of matter having the same meaning or effect as the defamatory matter; …

Assessment of general damages

At the height of the plaintiff’s career, an international career that she had worked to build over 17 years, Bauer Media launched a calculated, baseless and unjustifiable public attack on her reputation. By its articles, Bauer Media branded a hardworking and authentic Australian-born actress a serial liar who had fabricated almost every aspect of her back story, from her name, to her age, to her childhood and upbringing, in order to make it in Hollywood. She was held up to be a phony and a fake.

It was a sustained attack over three consecutive days and across four distinct titles, both in print and online media timed to coincide with and capitalise on the pinnacle of her career to date, the launch of Pitch Perfect 2, in which she had a starring role. Ms Wilson was devastated and shattered. She suffered emotionally and physically. I have accepted both the plaintiff’s evidence and the evidence of her family and friends about her personal distress and the injury to her feelings. Her hurt was substantially aggravated both by the circumstances of publication and by the continuing conduct of Bauer Media up to the verdict.

I accept without qualification that Ms Wilson had an extremely high reputation as an honest person, who had made it in Hollywood through sheer hard work and tireless dedication to pursuing opportunities to make and maintain a reputation as a quality actress. There were two particular aspects to her reputation that need to be emphasised. First, she was respected as an actor in the medium of family entertainment, particularly in comedic roles. Although opportunities may have presented to break out of comedy into drama and other categories of films, I am not persuaded to make any finding in that respect.

The second feature of her reputation was that she had demonstrated that she could carry or sell a film at the box office. In each aspect, her reputation was established and of considerable commercial value. So much was clear from the defendants desire to time their publications to cash in on her standing as a celebrity. Once these two features of her reputation are appreciated, the substantial and lingering extent of the damage that was inflicted on her by the defendants’ imputations becomes clear.

It was also clear from the evidence of Ms Jackson and Mr Principato that in Hollywood, so much turns by word of mouth. The negative impact of false imputations, like gossip, in such circles is likely to be substantial and long lasting.

The jury found that Ms Wilson was branded a serial liar in the Woman’s Day print edition article and on the magazine’s website. Defences of substantial truth and triviality were rejected by the jury. I reject, as did the jury, the defendants’ contention that the seriousness of the imputations found by the jury as conveyed was tempered in any significant respect by the lighthearted nature of the articles, or by the notion that for the plaintiff to lie about such things was, given that she was a Hollywood actress, not a serious matter at all. Ms Wilson’s reputation as an authentic, candid and honest down-to-earth Australian, was key to her identity and appeal and her reputation with moviegoers was central to her capacity to win lead or co-lead acting roles in which she would carry the movie.

She was also defamed in a similar way in six other online articles on three different platforms. Those articles all imputed a level of dishonesty ranging from being a serial liar to having lied to people about her age and where she grew up. Again, defences of substantial truth and triviality failed. However, although the imputations were to a substantially similar effect, what is important in the context of s 38 of the Act is that Bauer Media continued to publish those similar imputations as part of a campaign sparked, it would seem, by the plaintiff’s defensive response to earlier publications.

The third article, written by journalist Caroline Overington for the Woman’s Day website, merits special mention. Ms Overington is herself a well-known and respected Australian journalist who holds herself out as specialising in investigative journalism. The jury found that it conveyed that Ms Wilson is so untrustworthy that nothing she says about herself can be taken to be true unless it has been independently corroborated. Such a meaning is, self-evidently, very serious. Publically branding a person who has, over the course of their life, enjoyed a reputation for honesty and authenticity, as a serial liar and so untrustworthy that nothing she says about herself can be taken to be true unless it has been independently corroborated, was an extremely serious thing to put against the plaintiff not just without a legitimate basis, as the jury verdict made clear, but with malice. Bauer Media published material by an award-winning investigative journalist as part of its campaign against the plaintiff. Ms Nementzik explained that Ms Overington’s standing was very significant for her when material Ms Overington had written was used in her research.

The nature of the aggravated defamation and the unprecedented extent of dissemination makes vindication of particular importance. A substantial damages award is called for. Only a very substantial sum in damages could convince the public that Ms Wilson is not a dishonest person and bestow vindication of her reputation in accordance with the jury’s verdict. Substantial vindication can only be achieved by recognizing that Ms Wilson’s reputation as an actress of integrity was wrongly damaged in a manner that affected her marketability in a huge, worldwide marketplace, being the market for Hollywood films of the type in which Ms Wilson appeared.

The need for a substantial damages award is reinforced by the circumstances of aggravation. For the reasons discussed above, this is not a case where aggravation should be viewed as limited to personal distress and hurt feelings. In particular, the nature of the aggravation in the circumstances of publication has increased very substantially the reputational damage inflicted. That is not to say that aggravating factors since the proceeding was commenced are irrelevant. The manner in which Bauer Media conducted its defence of this case – repeatedly seeking to cast the articles as trivial and not to be taken seriously – sought to communicate a broader message that celebrity journalism of the type illustrated in this case was legitimate and justified. The implication was that ‘having fun’ with a celebrity’s reputation is legitimate entertainment.

By its verdict, the jury comprehensively rejected that characterisation of the articles and also the notion that inflicting substantial damage on a celebrity’s reputation for entertainment purposes is legitimate fun. I accept that, unless substantial damages are awarded, there is a real risk that the public will not be convinced of the seriousness of the defamation, but will rather wrongly conclude that the articles were trivial or not that serious. These were extremely serious matters for the plaintiff. The vindication of Ms Wilson’s reputation cannot be left to speculation.

The defendants’ conduct in publication also increased the subjective hurt suffered by the plaintiff. Circumstances subsequent to publication where I have found the defendants’ conduct to have been lacking in bona fides, also found a basis for aggravated damages.

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.

The very significant extent of publication is set out above. Importantly, and in addition to the readership of the magazines or articles in Australia, Bauer Media’s defamatory attack spread along the grapevine instantaneously and into the United States, where Ms Wilson was living and working. The spread of the defamation was so substantial that the expression ‘grapevine’ seems quaint and inadequate. The internet has redefined the notion of publication. The spread of access to an article is incomparably beyond print and electronic mass media. The ongoing accessibility of publications through caching, indexing and search engines is also in a new dimension. The sting of the articles was discussed on American radio and television programs. The articles were discussed in the United States by people working in the entertainment industry. They were discussed on Twitter and on American based websites. In Ms Wilson’s words, the articles caused a ‘huge international media firestorm’.

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.

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.

Finally, I was invited to consider what were said to be comparable damages awards. It is unnecessary to provide the references. As Hayne J said in Rogers v Nationwide News Pty Ltd:[180]

Two of the three purposes served by an award of damages for defamation are to provide consolation to the person defamed for the personal distress and hurt which has been done, and reparation for the harm done to that person’s reputation. Necessarily, then, the amount awarded for defamation should reflect the effect which the particular defamation had on the individual plaintiff. It follows that the drawing of direct comparisons between particular cases is apt to mislead, just as the drawing of direct comparisons in personal injury cases can also mislead. Comparison assumes that there is sufficient identity between the effect which each defamation had on the particular plaintiff, whereas in fact circumstances alter cases. The amount allowed in each case should reflect the subjective effect of the defamation on the plaintiff. Unless that is recognised, the courts fall into “that form of the judicial process that Cardozo J deprecated, the mere matching of the colours of the case in hand against the colours of samples spread out upon a desk”. The consideration of other cases can yield no norm or standard derived from the amounts awarded in those other specific cases. Nonetheless, as Windeyer J said in relation to the assessment of damages for personal injuries:
Of course no two cases are exactly alike … One award is never really a precedent for another case. But we would I think be ignoring facts if we were to say that judges when asked to consider whether a particular verdict is beyond the bounds of reason — either excessive or inadequate — are unmindful of what was done in other cases, similar or dissimilar. If we were to say that, we would I consider deceive ourselves, as well as belie statements in judgments of high authority.

[180](2003) 216 CLR 327, 350 [69] (citations omitted; emphasis in original).

The combination of the seriousness of the imputations found by the jury, the extent of publication, the campaign of publications, the failure of all defences, the finding of malice, and the different, multiple aggravating factors both in publication and in the conduct of these proceedings makes this case unique.

If this were a case in which the cap applied, and it were confined to the Woman’s Day article, the plaintiff’s submission would have been that it merited an award of general damages for non-economic loss that exceeded $300,000, to reflect the seriousness of the imputation that the plaintiff was a serial liar; the enormous extent of the publication; and the gravity of its impact upon the plaintiff. Damages at that level would have been commensurate with the awards in cases such as Hardie v Herald & Weekly Times Pty Ltd,[181] Trkulja v Google Inc LLC (No 5)[182] and Trkulja v Yahoo! Inc LLC.[183] None of those cases involved awards of aggravated damages. Each was subject to the cap. When, however, the campaign of defamation comprising eight articles published over a three-day period, and the nature of the multiple aggravating factors are taken into account, it is clear that the award of general damages for non-economic loss must be substantially higher than in any of those cases.
[181][2016] VSCA 103.
[182][2012] VSC 533.
[183][2012] VSC 88.

I have mentioned above the common law’s concern about a degree of parity between awards for non-economic loss for personal injury and for defamation. The statutory policy response was the imposition of caps and since 2002, awards for non-economic loss for personal injury have been capped. The common law’s concern has become largely historical because appropriate relativity is regulated by the statutory caps. As I have noted, it is only in the case of defamation with aggravation in the circumstances of publication that caps on awards for non-economic loss are inapplicable. Comparison of present day non-economic loss awards for personal injury and the damages assessment in this proceeding is meaningless and will not be a comparison of awards assessed on a like basis. What remains is the statutory instruction provided by s 34 of the Act that there be an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded.

The plaintiff submitted for a separate award for each publication. Section 39 of the Act makes provision for the assessment of damages for multiple causes of action as a single sum. It is not mandatory. The plaintiff did not claim that each of the eight publications warranted identical awards of damages accepting that there was significant overlap in their content and themes. There is some mitigation to that extent under s 38(1)(d) of the Act. I accept the plaintiff’s characterisation of the first three articles as being the most serious (the print and online publications of Ms Nementzik’s article and the Caroline Overington article). The fourth to eighth articles were essentially reactive to the plaintiff’s response by tweeting, which I have found not to be a mitigatory matter. I have accepted the plaintiff’s evidence regarding the delay in her bringing these proceedings.

I have concluded that the plaintiff should be awarded general damages, including aggravated damages, in a single sum, principally as there was in effect an ongoing campaign over a period of days that repeated substantially the crux of the imputations in response to the plaintiff’s defensive tweets and became part of an ongoing feed into the grapevine effect on the internet and entertainment media. Although some aspects of aggravation can be separated out as applicable to individual publications, others cannot and the process of making several awards would become artificial. The defendant’s conduct is best viewed cumulatively bearing in mind that repetition of the defamatory imputations was a circumstance of aggravation.

Conclusion and judgment

In all of the circumstances, I assess the plaintiff’s general damages, including aggravated damages, in the sum of $650,000. I assess the plaintiff’s special damages in the sum of $3,917,472.

Following further submission from the parties, I award simple interest on the damages from the date of issue of the writ to judgment[184] at 3% per annum, which is agreed at $182,448.61. The issue principally in contest between the parties was the applicable interest rate. Ms Wilson submitted that under s 60 of the Supreme Court Act the applicable penalty interest rates (9.5% from 16 May 2016 - 31 January 2017 and 10% from 1 February 2017 onward) applied to the special damages award. She contended that the penalty interest rate is commonly reduced to 3% in respect of general damages awards only, and not in respect of special damages, on the rationale that a plaintiff is put out of the money that is the subject of the special damage claim while the impact of the libel that is the subject of the general damages assessment diminished over time. Bauer Media submitted that a defamation plaintiff who obtains a judgment for economic loss may be entitled to judgment interest on that loss at the prevailing commercial rate of interest and that the Penalty Interest Rates Act 1983 mandates the maximum rate that the court may apply under s 60.[185] Conceding that there was no evidence before the court as to prevailing commercial rates of interest, but that I might take notice of the current Reserve Bank of Australia Cash Target Rate of 1.5% per annum and prevailing commercial term deposit interest rates in the order of 2.5% per annum, Bauer Media submitted that interest on the entire judgment sum calculated at a rate of 3% per annum would be generous to the plaintiff.
[184]Section 60 of the Supreme Court Act 1986, s 60, Hardie v Herald & Weekly Times Pty Ltd [2016] VSCA 130, [6]-[7].
[185]Citing Wheeler v Page (1982) 31 SASR 1, 6; MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 657, 663-6; Chakravarti v Advertiser Newspapers Ltd (1998) 72 SASR 361, [92].

The cases cited by Bauer Media support the proposition that when, as here, damages are assessed at trial by reference to the dollar value at trial, pre-judgment interest must be adjusted by reducing the interest rate otherwise to be applied to reflect that part of the interest rate which includes the fear and expectation of inflation over the period between the date the cause of action arose and the entry of judgment. I have also concluded that not all of the value of the lost opportunity might have been received by the plaintiff by the time of issue of the writ, but it is not in the circumstances possible to clearly identify the period during which the plaintiff was put out of that income. Bauer Media did not contend that the plaintiff should not receive damages in the nature of interest for the period from the issue of proceedings to judgment. The court has a discretion as to the rate (subject to the maximum specified) and I am satisfied that for good reason, according to the justice of the case, and as Bauer Media submitted, interest on the adjusted value of the lost opportunity should be allowed at 3%.

I will hear the parties on the questions of costs.

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[2017] VSC 521

13 SEPTEMBER 2017 (Revised 15 September 2017 by addition of paragraphs 394 & 395)