Can an old, English Court of Appeal case still hold sway over rulings made in Australian legal proceedings?
Defamation Law in Australia
Table of Contents
Defamation law has essentially been the same throughout Australia since 1 January 2006 (the Northern Territory enacted laws shortly after).
Consequently, defamation lawyers are usually able to assist with defamation actions anywhere in Australia.
What is Defamation?
Defamation occurs where one person (a ‘Defendant’) communicates, by words, photograph, video, illustrations or other means, material which has the effect or tendency of damaging the reputation of another person (a ‘Plaintiff’).
A Plaintiff will complain that a Defendant has published written or spoken material that contains ‘defamatory imputations’ about the Plaintiff to a third person and that the publication damages or harms the Plaintiff’s reputation. If that has occurred, a Plaintiff will usually have a claim for defamation against the Defendant.
In order to be defamatory, the matter published must injure the Plaintiff’s reputation, which may be established by evidence that the matter has:
- Lowered the Plaintiff in the estimation of others;1
- Exposed the Plaintiff to hatred, ridicule or contempt;2 or
- Caused the Plaintiff to be shunned or avoided.3
Previous legislation (now repealed) defined “defamatory matter” as:
- Any imputation concerning any person, or any member of the person’s family, whether living or dead, by which the reputation of that person is likely to be injured, or by which the person is likely to be injured in the person’s profession or trade, or by which other persons are likely to be induced to shun or avoid or ridicule or despise the person is called “defamatory”, and the matter of the imputation is called “defamatory matter”.
- An imputation may be expressed either directly or by insinuation or irony.
Brief Overview of the Elements of Defamation
Whilst it will be discussed in detail further below, we provide a quick guide here regarding a Plaintiff’s obligations and how a Defendant may defeat a defamation claim.
A Plaintiff’s obligations in a defamation matter include establishing:
- that something has been published (usually verbally or in writing);
- that the publication is about the Plaintiff;
- that the publication is heard or seen by at least one third-party (not the person making the publication or the Plaintiff);
- the identity of the person who made the statement; and
- that the statement damages the good reputation of the Plaintiff.
If a Plaintiff is able to establish the above elements, the Defendant will need to establish a defence, including, for example:
- Truth, substantial truth or contextual truth;
- Honest opinion or fair comment;
- Triviality (the publication was unlikely to cause any harm);
- Consent to publish (whether express or implied consent);
- Innocent dissemination or publication of public documents (the Defendant was not the first distributor of the publication)
- Privilege (for example, if the publication was made in a court document);
- Fair report of information from certain hearings, court proceedings or parliament, etc.;
- Qualified privilege (the person told had an interest in it and it was reasonable to do so); and
- Being an internet service provider (or internet content host).
The above is not a full list of defences.
Presumptions of False Publications in Defamation Matters
In defamation proceedings, publications are presumed to be false until proven otherwise.
That means that a Plaintiff could bring a claim against a Defendant for calling them a convicted paedophile, even if the Plaintiff has in fact been convicted of paedophilia.
A Defendant would have a pretty easy defence in such a matter, being truth, but the point is that the court presumes that the publication is false until the Defendant raises (and proves) that the publication was in fact true, substantially true, or contextually true, or another defence is raised.
In the above scenario, it might also be hard for a Plaintiff to prove that “the statement damages the good reputation of the Plaintiff” in any event (which is an obligation of the Plaintiff).
Matters that are so obviously baseless rarely come before the court because lawyers will not agree to represent someone with a baseless claim, and due to the technical legal complexities of defamation matters, self-represented litigants (someone not represented by a lawyer) are incapable of navigating the court process without insurmountable difficulty.
The difficulty of defamation lies both in evidence, but mostly, in the court documents themselves; pleading in defamation matters is perhaps more difficult than any other type of litigation matter.
Consequently, a Plaintiff or Defendant without competent legal representation will likely face numerous interlocutory applications, be ordered to pay some or all of the other party’s legal costs, and (assuming they can’t afford lawyers) would be bankrupted, which usually ends the proceedings.
In any defamation matter, it is usually necessary to identify the ‘imputations’ of a publication.
Imputations may appear from the words in the publication itself, but in most cases, a Plaintiff will need to identify and plead the defamatory ‘stings’ that the publication has caused.
If someone publishes “Jim Smith is a disgraceful individual”, the publication is relatively self-explanatory; the imputation would likely be that Jim Smith is a disgraceful individual (i.e. identical to the publication’s words).
But if someone published “Jim Smith is not to be trusted around children”, then there is a bit more ambiguity about what the defamatory ‘stings’ are.
The defamatory imputations may include (depending on the context):
- Jim is a paedophile;
- Jim is not someone people should be associated with;
- Jim is an undesirable person;
- Jim is not a trustworthy person;
- Jim is an inappropriate person to be around children; and/or
- Something else.
Imputations are defamatory if they create or tend to create a bad opinion of any person to whom they could be shown to refer.
The purpose of having to define the defamatory ‘stings’ is to give sufficient particulars for a Defendant to know the case against them so that they may respond to it.
If it is a bit farfetched in the context of the publication to allege that the publication amounts to the Defendant suggesting Jim Smith is a paedophile, that particular imputation may not be included in the claim.
Without particularising the imputations, the Defendant would otherwise have to prepare to negate every possible imputation (no matter how farfetched).
Where can Defamation occur?
Defamation on the Internet & Social Media
The rising trend for where defamation occurs is on the internet, including social media. This is a massively growing trend of defamation, because comments made on social media can be devastating to a person’s reputation.
Defamation in the Workplace
Comments made in the workplace are also very damaging to a person’s reputation as it can create issues in career advancements and can even result in an employee being terminated.
Defamation against Businesses
Businesses also suffer from defamation, although companies with more than 10 full-time equivalent employees may have to rely on the more difficult ‘injurious falsehood’ claim as the legislative regime does not intend to protect larger companies. Many cases of defamation in business occur when people write negative reviews about a business or otherwise bad mouth a business.
Defamation in Mass Media
Mass media defamation, in particular television, radio and newspaper, is particularly harmful given the ease at which a large population can see or hear the publication against a Plaintiff.
Defamation in a Family or Friends Setting
Family members can defame each other, although one particular difficulty is whether a person’s reputation is actually damaged. If your friends and family know you, just because a statement is made, it does not necessarily mean that your friends and family will believe it.
When does Defamation occur?
Defamation typically occurs when a person hears or sees the publication, but there are some technicalities around precisely ‘when’ the publication occurs.
In the case of Dow Jones & Company Inc v Gutnick (2002) 210 CLR 575, the High Court held that generally, defamation occurs at the place where the material is made available in comprehensive form.
In that case, it was a publication on the internet, and the defamation occurred when material was downloaded and read via the web browser. It was at that time and place where the material was downloaded that any damage to reputation may occur.
In delayed television, radio and newsprint, it may be possible for defamation to occur prior to the broadcast of the program, or the paper actually being printed, as people (for example, the editor) would have likely seen the publication (or a draft of the publication) before the general public.
Usually, however, defamation will be pleaded as having occurred during a broadcast of the program as that is when the vast majority of people would have seen the publication.
Forms of Defamation
The common law previously recognised two forms of defamation:
- Libel; and
These forms of defamation have been abolished for many decades now and replaced with legislative regimes. However, it is important to remember that defamation has always arisen (and continues to arise) in both the visual and audible form.
The term ‘libel’ describes defamatory matter in permanent form (e.g. writing or pictures).
The term ‘slander’ describes defamatory matter in temporary form (e.g. spoken words) without lawful justification or excuse.
Slander is not a crime at common law but may constitute Criminal Defamation in some legislative states (for example, section 365 of the Criminal Code 1899 in Queensland and section 529 of the Crimes Act 1900 in New South Wales).
Elements of Defamation for Plaintiffs (In More Detail)
Element 1: Something Has Been Published
The first element a Plaintiff must establish is that something has been published.
How something is published is interpreted very widely. The two common ways are:
Written words, for example, in a:
- Letter or email;
- Newspaper, magazine or book;
- Google Review;
- Comment on Facebook, Youtube, Instagram or somewhere else;
- Published transcript of a speech; and
- Any other platform where written words can be published.
Spoken words, for example:
- In person;
- On the Radio or television;
- In podcasts;
- In a video (including, for example, on Youtube); and
- Any other platform where spoken words can be published.
Element 2: The Publication is About the Plaintiff
One of the legal requirements for a Plaintiff to bring an action in defamation is that the alleged defamatory statement must refer (whether expressly or by inference) to the Plaintiff.
Sometimes it is easy to identify a Plaintiff if their name is used, but this is not always the case, for example:
- John Anthony Smith of 123 Residential Street, Brisbane is a sexual predator;
- John Smith is a sexual predator;
- John is a sexual predator;
- The manager of ABC Printing is a sexual predator; and
- He is a sexual predator.
Clearly, in situations where a publication uses the full name and address of the Plaintiff, it is easier to prove that the Plaintiff has been referred to compared to a sentence stating “He is a sexual predator”.
However, it is very rare that someone is perfectly identified; people are likely to use a first name or nickname, or sometimes a name is not used at all.
Each defamatory publication should be considered in the circumstances. Is there a picture of John? Is the defamatory matter published in a forum where John Smith is the only John it could be referring to? Has John just been released from prison after overturning a conviction of rape? Has the publisher been criticising John Smith for other things or is known to have a vendetta against John?Surrounding circumstances will always play a major part of identifying a Plaintiff in a defamatory publication. A Plaintiff’s obligation is to satisfy the court on the balance of probabilities that the publication is about the Plaintiff.
Element 3: The Publication is Heard or Seen by a Third-Party
If a person insults or offends a person to their face, and a third party does not hear or see it, it cannot be defamatory.
Consequently, if Sally sends John an email that he is a paedophile, that is unlikely to give rise to a claim in defamation, unless a third party reads the email.
If a third-party did read the email (for example, Sally or John’s employer, or someone else that could access either email address), that would give rise to a defamation claim, even if Sally did not mean for anyone else to read the email.
The element only requires that a third-party did in fact read or hear the publication (another example would be a third person overhearing a conversation).
The only exception is that Sally would not be liable if John forwards the email to a third-party or deliberately shows it to someone.
There are two main contentious arguments about whether something has been seen or heard by another.
The first is evidence that a particular website page has been seen by a third-party. Whilst it is usually possible on most social media platforms, and pages on the internet, to determine if someone has visited the page, in some circumstances it may be necessary to find someone that can give evidence that they have seen the publication, or adduce evidence that people must have seen it (for example, commenting on the publication).The second is determining precisely what was in fact seen or heard by another. Some complexity comes when determining what the actual publication is made up of because a Plaintiff has the obligation to plead the entire alleged defamatory matter. For example, an entire newspaper article (whether online or otherwise) must be pleaded, not just the parts that are unfavourable. This is largely because matter that is contextually true is not defamatory.
Who is the Publisher?
The fastest growing area of defamation is undoubtedly internet publications. The internet is, however, surrounded by anonymity.
What a lot of people don’t know is that there are experts that specialise in finding the identity of a user on the internet, and they are very often successful.
It is also common for people to hear rumours that might tend to harm their reputation, but they are unable to identify the source of the rumour.
It is usually unnecessary to identify the first person who spread the rumour. Sometimes commencing proceedings against a Defendant who has restated a rumour will result in the Defendant offering up the person that told them the rumour in exchange for a more favourable settlement.
It is unfortunate that many people assume that publications that are anonymous do not allow for redress in defamation law, including compensation for the loss of reputation.
Defamation lawyers typically deal with people trying to outsmart a Plaintiff by being anonymous to avoid penalty, but this can often be overcome.
The Publication Damages the Good Reputation of the Plaintiff
It was stated by Lord Denning in Plato Films Ltd v Speidel:
“a man’s ‘character’, it is sometimes said, is what he in fact is, whereas his ‘reputation’ is what other people think he is.”
Defamation is not concerned with what a person’s character is. Rather, it is concerned with what other people think of the person.
There are often little differences between a person’s character and what others think of the person, or alternatively, the person’s character may give rise to a defence. Nonetheless, defamation law has drawn a distinction between character and reputation.
Defence of Truth (also known as the Defence of Justification)
The defence of truth is commonly referred to as justification or the defence of justification.
The Defendant bears the onus of establishing on the balance of probabilities that the defamatory imputations arising from the publication complained of are either true, or substantially true.
This is because the law of defamation assumes that the publication is false until a defence of Truth is raised and proven.
In practice, proving that a publication is true can be difficult because many defamatory statements made are unsupported by physical or objective evidence. For example, calling someone a paedophile who has not been charged or convicted of that offence would be exceptionally onerous, even if the person is a paedophile.
It is a defence to the publication of defamatory matter if the Defendant proves that:
- Some of the imputations the Plaintiff complains about are substantially true; and
- The remaining imputations do not further harm the reputation of the Plaintiff because of the substantial truth of the contextual imputations.
For example, if a newspaper published that John Smith “stole from a number of convenience stores at Brisbane, Gold Coast, Logan, Sunshine Coast and Toowoomba” and John Smith sued the newspaper because he never stole anything from Toowoomba, a court may accept a defence of contextual truth because the untrue allegation (stealing from a convenience store in Toowoomba) would likely not have harmed the Plaintiff’s reputation any further.
Partial Justification applies when a Defendant can prove justification for some of the comments (or imputations of comments) but not others.
This is not a complete defence as it only applies to the imputations that can be justified.Another way to view the common law defence of partial justification is to think of it as reducing the damages the Plaintiff is entitled to.
Defence of Absolute Privilege
Absolute privilege confers a complete immunity in relation to the matter published on the privileged occasion, irrespective of the motive of the publisher.
The concept of absolute privilege is founded on the belief that an indefensible immunity for defamation is necessary in certain circumstances on the ground of public policy: Gibbons v Duffell (1932) 47 CLR 520.
Occasions of absolute privilege are statements made:
- During the course of proceedings of a parliamentary body;
- During the course of an Australian Court or Tribunal Hearing; and
- On an occasion that, if published in another Australian Jurisdiction, would constitute absolute privilege in that jurisdiction.
The Defendant must prove that the defamatory material alleged was in fact published in circumstances of absolute privilege.
The defence of Absolute Privilege is found in both the common law and in the uniform defamation legislation, but these defences differ slightly; the common law defence is not excluded by the uniform defamation legislation and is usually considered wider than the legislative regime and largely relies on public policy reasons to defeat a defamation claim.
Defence for Publication of Public Documents
This defence applies where the defamatory matter was:
- Contained in a Public Document (e.g. Legislation, Court Judgment, Deeds, Public Records);
- Published honestly for the advancement of Education or for the Information of the Public: section 28 Defamation Act 2005 (Qld).
Examples of a public document further defined include:
- A report, under the law of any country, authorised to be published by a parliamentary body; and
- Any document issued by the government (including Local Government) by an officer, employee or agency of the Government for the information of the public.
The Defendant can establish a defence if he or she proves that the defamatory matter was contained in a public document or a fair copy of a public document, or a fair summary of or fair extract from a public document. Additionally, the defence then contemplates circumstances where the Defendant originally publishes the public document, as well as the circumstances where the Defendant republishes public documents.
Defence of Fair Report of Proceedings of Public Concern
This defences applies where the defamatory matter was, or was contained in, a fair report of any proceedings of public concern.
A defence may also be established if the Defendant can prove that the matter was, or was contained in, an earlier published report of any proceedings of public concern, and the Defendant had no knowledge that would reasonably make them aware that the earlier published report was not fair.
The term ‘proceeding of public concern’ is defined very broadly to include any proceedings in public of a parliamentary body. For example, proceedings of public concern could include proceedings in Tribunals, Local Governments or in the Supreme, District and Magistrates Court.
The privilege afforded to reports extends to proceedings in courts of law, proceedings in parliament, proceedings of certain statutory bodies and boards of inquiry and proceedings of public meetings. The principal reason for the privilege is that members of the public unable to attend such proceedings in person have right to know what took place: Webb v Times Publishing Co Ltd  2 QB 535.
Defence of Qualified Privilege for Provision of Certain Information
This defence focuses on the particular facts of each case. The uniform legislation states that this defence applies if the:
- Person receiving the defamatory matter has an interest in having that information on a particular subject;
- Matter is published to that person in the course of that person being given information on that particular subject; and if the
- Conduct of the person publishing the matter is reasonable in the circumstances: section 30 Defamation Act.
In determining whether the Defendant’s conduct was reasonable in the circumstances, the court may take into account a variety of factors, including:
- The extent to which the matter is of public interest;
- The extent to which the matter published relates to the performance of the public functions or activities of a person;
- The seriousness of any defamatory matter;
- The extent to which the matter distinguishes between suspicions, allegations and proven facts;
- Whether it was in the public’s interest for the matter to be published expeditiously;
- The nature of the business environment in which the defendant operates;
- The sources of the information for the matter published;
- The integrity of the sources of the information;
- Whether the matter published contained the person’s side of the story;
- If reasonable attempts were made by the Defendant to obtain and publish the person’s response; and
- Any other steps taken by the Defendant to verify the information published.
Examples where this defence could apply are:
- The giving of a reference; or
- The collection of Information by Police Officers when investigating a crime.
It is important to note that this defence cannot be used to justify ‘malice’, that is if the matter has been published with the desire to cause harm.
The High Court considered the common law defence of qualified privilege in the case of 2GB Harbour Radio Pty Ltd v Trad  HCA 44, a matter involving a radio station. In that case, at a protest held shortly after the Cronulla Riots, the Plaintiff spoke to audiences and said that there is ‘…a great deal of shame in the tabloid industry’ and ‘one talk-back radio station seems to be nothing other than a mouthpiece of the Howard government’. The 2GB Journalist that attended the rally spoke of the Plaintiff’s comments on the radio.
The Court found that the imputations that could be made from the 2GB broadcast about the Plaintiff was that the Plaintiff:
- Incites people to have racist attitudes and to commit acts of violence;
- Stirred up hatred against a 2GB reporter which caused him to have concerns about his own personal safety;
- Is widely perceived as a pest; and
- Attacks those people who once gave him a privileged position.
The Court found that the 2GB Journalist had a defence of qualified privilege for all of the above imputations except with respect to the imputations that the Plaintiff ‘is widely perceived as a pest’ and ‘attacks those people who once gave him a privileged position’.
The Court stated that:
‘Mr Trad had attacked 2GB by placing at least part of the blame for the Cronulla Riots upon the tabloid journalism practised by one particular talk-back radio station, namely 2GB. It was a relevant and reasonable response by 2GB to direct attention to the credibility of the attacker by imputing hypocrisy to Mr Trad as one who himself incited people to commit acts of violence and to have racist attitudes, and as one who at the peace rally had stirred up hatred against a 2GB reporter, causing him concern about his personal safety’.
Defence of Fair Comment
In order to establish a defence of fair comment, the Defendant bears the onus of proof in relation to:
- Whether that statement is a comment, rather than fact;
- Whether the statement relates to a matter of public interest; and
- Whether the factual substratum supporting the comment is substantially accurate.
This principle is further explained in the case of Gardiner v John Fairfax & Sons Pty Ltd by Jordan CJ:
A person exposes himself to comment if (inter alia) he invites the acceptance or approval by the public of his literary or artistic productions. This applies to authors, artists or sculptors who offer or display their work to the public, and to musicians, singers or actors who perform in public. In these cases, since the persons concerned have invited the public to interest itself in their work, they cannot be heard to say that its quality is not a matter of public interest. Any member of the public is therefore entitled freely to express his opinion of the work or of the performance whether by way of praise or blame: Thomas v Bradbury, Agnew & Co Ltd  2 KB 627 at 639 ; and so long as he restricts himself to statements of opinion he incurs no liability in defamation unless his statements are found to be unfair or malicious. The critic himself is as much exposed to comment for his criticism as is the author criticised.
In addition to the common law defence to ‘fair comment’, there is a statutory alternative, which is the defence of ‘Honest Opinion’, under the uniform legislative regime.Due to an overlap of the common law and uniform legislative regime, the next section on the Defence of Honest Option should be read in conjunction with the Defence of Fair Comment.
Defence of Honest Opinion
An Honest Opinion Defence must be able to clearly identify the opinion expressed. The defence is defeated only if the Plaintiff proves that the opinion was not honestly held by the defendant at the time the defamatory matter was published.
A statutory law defence of ‘honest opinion’ is provided in Section 31 of the Defamation Act 2005 (Qld), as follows:
a) The matter was an expression of opinion of the defendant rather than a statement of fact; and
b) The opinion related to a matter of public interest; and
c) The opinion is based on proper material.
The Defence of Honest Opinion and the Defence of Fair Comment should be raised only where the defamatory material could be said to contain comment. It must be clear on the face of certain material whether it consists of allegation of fact or of comment of a combination of the two. It must be accepted that a defence for fair comment and honest opinion can only be available in respect of expression of opinion: Mackie v John Fairfax & Sons Ltd  1 NSWR 641.
Defence of Innocent Dissemination
This defence applies where the defamatory publication was disseminated by an employee or agent of a subordinate distributor (i.e. not the author or first distributor of the matter).
In common law, the defence of innocent dissemination provides a defence for those persons who can provide evidence that any defamatory matter published by them was published in their capacity as, or as an employee or agent of, a subordinate distributor.
A defendant may rely upon innocent dissemination if she or he can establish the following principles as seen in Emmens v Pottle (1885) 16 QBD 354:
- He or she did not know that the matter published was defamatory;
- There was nothing in the matter that ought to have led or suspected him or her that the matter being published was defamatory; and
- That the lack of knowledge was not due to the defendant’s negligence.
In addition to the common law defence to innocent dissemination there is a statutory alternative under the Defamation Act 2005 (Qld). In statutory law the defence of innocent dissemination is very similar to the common law. In order to establish the statutory defence under section 32 of the Defamation Act 2005 (Qld) the Defendant must prove that:
(1) It is a defence to the publication of defamatory matter if the defendant proves that—
(a) the defendant published the matter merely in the capacity, or as an employee or agent, of a subordinate distributor; and
(b) the defendant neither knew, nor ought reasonably to have known, that the matter was defamatory; and
(c) the defendant’s lack of knowledge was not due to any negligence on the part of the defendant.
(2) For the purposes of sub-section (1) a person is a subordinate distributor of defamatory matter if the person—
(a) was not the first or primary distributor of the matter; and
(b) was not the author or originator of the matter; and
(c) did not have any capacity to exercise editorial control over the content of the matter (or over the publication of the matter) before it was first published.
Defence of Triviality
Defence of triviality is essentially a defence to an action where the circumstances of the publication of the defamatory material were such that the Plaintiff was unlikely to suffer any harm. A Defendant can avoid liability if she or he establishes a statutory defence of triviality.
The defence of triviality under section 33 of the Defamation Act 2005 (Qld) provides:
Damages in Defamation Claims
Compensation Limits in Defamation
The limit for damages for non-economic loss for defamation claims in Queensland is (at the time of writing this article) $389,500.00 unless the court considers that the defamatory matters are such as to warrant aggravated damages.
Economic loss (for example, losing employment or financial business losses) are unlimited, but will be proportionate to the actual loss incurred.
Compensation by way of damages operates in two ways:
- As vindication of the Plaintiff to the public; and
- As a consolation to the Plaintiff for a wrong done by ameliorating the Plaintiff’s hurt and feeling of distress and making reparation for the harm caused.
If the Plaintiff is a trading company, a different consideration applies. This is because a company cannot be injured in its feelings as it is not an individual. It can, however, suffer loss of income or damages of goodwill: Lewis Daily Telegraph (1964) AC 234 at 262.
Aggravated damages may also be awarded if the Plaintiff’s hurt has been increased by the conduct of the Defendant,4 including the Defendant conducting a defence where there was behaviour that was unjustifiable, improper or lacking in bona fides.5
Lord Hailsham LC in Cassell & Co Ltd v Broome  AC 1027 stated that:
‘In awarding ‘aggravated’ damages the natural indignation of the Court at the injury inflicted on the plaintiff is a perfectly legitimate motive in making a generous rather than a more moderate award to provide an adequate solatium’.
Mere negligence (e.g. the conduct of a journalist in checking a source or following up a lead) will not be enough to support a claim in aggravated damages: North Queensland Newspaper Co Ltd v Kendell (unreported).
Instead, gross negligence or “reckless disregard of an appreciable risk” is required.
The Court may take into consideration the following matters:
- Whether there was repetition of libel at trial;6
- Whether the Defendant had failed to make an apology;7
- The conduct of litigation (e.g. prolonging of proceedings before sudden withdrawal);
- Whether the publication was made with malicious intent;8 and
- The ‘grapevine’ effect.9
A failure to apologise or retract a publication where the failure amounts to conduct which is in some way unjustifiable, improper or lacking in bona fides may give rise to aggravated damages.
For example, in Packer v Australian Broadcasting Corporations (1993) 116 FLR 306 at 312, the Defendant rejected the Plaintiff’s request for an appropriate apology and instead made an incompetent or insensitive “apology”.
Mitigation of Damages through Apology or Retraction
After an allegation of defamation is made (usually with a concerns notice), a Defendant may withdraw the publication and offer an immediate apology, and where appropriate, make an offer to compensate the Plaintiff.
Where an apology has been offered or made and the Plaintiff still proceeds, this is likely to mitigate (reduce) the damages awarded at any trial.Accordingly, an appropriate apology may be significant in limiting a damages award.
Calculation of Damages
If a Plaintiff is successful, the judge has the task of calculating the appropriate amount of damages.
The uniform legislation provides a guideline as to the extent to which the court must ensure that there is a rational and appropriate relationship between the harm sustained by the Plaintiff and the amount of damages awarded.
Any award of damages is to provide reparation for the harm done to the Plaintiff’s reputation, therefore reflecting the subjective effect of the defamation on the Plaintiff.
Generally, tortfeasors must take their victims ‘as they find them’. Accordingly, damages may be increased in the circumstances where the Plaintiff had a particularly good reputation: Bickel v John Fairfax & Sons Ltd (1981)10 or was particularly susceptible to criticism: Humphries v TWT Ltd (1993).11
Whilst you do not have to be a celebrity to bring a defamation claim, clearly those with a reputation receive higher awards (for example, Geoffrey Rush and Rebel Wilson).
Reputable business people have also been awarded sums in the hundreds of thousands, although typically non-economic loss (for being hurt) is less than $100,000 for most individuals and will usually depend on the severity of the comments (paedophile compared to idiot) and the audience (front page of the newspaper vs one family member).
Economic loss (losing a job, losing clients etc.) varies significantly, but will usually reflect the monetary loss suffered.
Time Limitation for Defamation Claims
The limitation to bring an action in defamation is not included in the uniform defamation laws, but rather, in each of the States’ and Territories’ respective legislation on limitation of action legislation.
There is, however, almost complete uniformity in Australia, with every State having a general limitation period of 12 months (with certain limited exceptions to extend that period).
For example, in Queensland, the Limitation of Actions Act 1974 provides the following relevant sections:
(2) A court must, if satisfied that it was not reasonable in the circumstances for the plaintiff to have commenced an action in relation to the matter complained of within 1 year from the date of publication, extend the limitation period mentioned in section 10AA to a period of up to 3 years from the date of the publication.
(3) A court may not order the extension of the limitation period for a cause of action for defamation other than in the circumstances specified in subsection (2).
(4) An order for the extension of a limitation period, and an application for an order for the extension of a limitation period, may be made under this section even though the limitation period has already ended.
An extension of time was granted in the case of Jamieson v Chiropractic Board of Australia on the grounds that the applicant was not computer-literate, and as a result, was not aware that the information was on the website from the upload date. The Court held that the date from which the limitation period ran was the date on which the applicant received advice from his solicitors. The Court further held that in those circumstances, it was sufficient for the applicant to proceed promptly to protect his rights.
In Houda v New South Wales (2012) NSWSC 1040, the Court found that an extension of time to file defamation proceedings should be allowed on the basis that it was reasonable for the Plaintiff to delay issuing the proceeding until the outcome of the criminal proceedings.
Contact Gibbs Wright Lawyers
If you consider that you have been defamed or you find yourself in a position where someone has alleged that you have defamed them, contact Gibbs Wright Lawyers today.
Gibbs Wright Litigation Lawyers are experienced in acting for defamation cases as well as an in-depth understanding of alternative dispute resolution requirements contained under the uniform defamation laws and how to progress your matter through the Court system if the matter cannot be resolved.
 Sim v Stretch  2 All ER 1237.
 Parmiter v Coupland (1840) 6M & W 105.
 Youssoupoff v Metro-Goldwyn-Mayer Pictures Ltd (1934) 50 TLR 581.
 Lamb v Cologno (1987) 164 CLR 1 al 8.
 Andrews v John Fairfax & Sons Ltd (1980).
 Australian Medical Association (WA) Inc v McEvoy (No 2) WASC 416.
 The Korean Times Pty Ltd v Un Dok Pak  NSWCA 365.
 Stevens v Boyle  SASC 232.
 Belbin v Lower Murray Urban and Rural Water Corp  VSC 535.
 2 NSWLR 474.
 120 ALR693 at 706.
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