Wilson v Bauer Media (Ruling No 6)

Not Restricted

IN THE SUPREME COURT OF VICTORIA
AT MELBOURNE

COMMON LAW DIVISION

MAJOR TORTS LIST

S CI 2016 01842

REBEL MELANIE ELIZABETH WILSON	Plaintiff
v
BAUER MEDIA PTY LTD & ANOR	Defendants

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JUDGE:	JOHN DIXON J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	6, 7 June 2017
DATE OF RULING:	6, 7 July 2017 (Reasons 27 July 2017)
CASE MAY BE CITED AS:	Wilson v Bauer Media (Ruling No 6)
MEDIUM NEUTRAL CITATION:	[2017] VSC 356

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PLEADINGS — Defamation trial — Applications to have defences of triviality and partial justification removed from jury — Further proposed Hore-Lacy amendments — Defence of justification simpliciter — Defamation Act 2005, ss 22, 25, 33.

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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 Defendants	Ms G Schoff QC, with Mr S Mukerjea	Johnson Winter & Slattery

HIS HONOUR: 

1. In the course of the trial of this proceeding, I made several rulings, indicating that I would later publish my reasons for doing so.

1. First, I ruled that I would permit the statutory defence of triviality to go to the jury. Secondly, I ruled that the defence of partial justification, as it was exposed in this proceeding, was an issue for me when assessing damages, if and when that became a task for the court to undertake, and should not go to the jury. Thirdly, I refused certain amendments sought to the defence and allowed others.

1. These are, in a consolidated form, my reasons.

Triviality

1. The defendants pleaded a defence of triviality in respect of each of the eight publications complained of, and the plaintiff applied to have the defence withdrawn from the jury.

1. The defence of triviality is found in s 33 of the Defamation Act 2005:

It is a defence to the publication of defamatory matter if the defendant proves that the circumstances of publication were such that the plaintiff was unlikely to sustain any harm.

The term ‘harm’ is not defined in the Act.

1. The defendants’ triviality defences were to be put to the jury on the following basis:

(a)   The subject matter of the articles concerned the cultivation by the plaintiff of a particular public persona;

(b)   Readers of the articles were likely to be cognisant of the fact that actors routinely understate or embellish matters such as their age and background, and also routinely adopt stage names or pseudonyms, in order to cultivate a particular public profile, and more generally to effectively market themselves;

(c)    Readers of the articles were likely to be cognisant of the fact that female actors in Hollywood are routinely subjected to ageism in casting and, accordingly, commonly understate their age in order to enhance their prospects;

(d)  Accordingly, readers of the articles were likely to view any lies told by the plaintiff about her age and background as merely ‘white lies’ which are an accepted and uncontroversial aspect of the entertainment industry; and

(e)   Having regard…