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[2018] VSCA 154
Court of Appeal (Vic)
2018-06-14
Dixon J, Tate JA, Beach JA, Ashley JA
Original judgment source is linked above.
DEFAMATION - Appeal - Damages - Damages for non-economic loss - Aggravated damages - Publications seriously defamatory - Serious circumstances of aggravation - Multiple matters of aggravation - Judge's assessment of non-economic loss damages of $650,000 - Successful challenge on appeal to some of judge's findings of aggravation - Plaintiff's damages for non-economic loss reassessed at $600,000.
DEFAMATION - Appeal - Damages - Statutory cap on damages for non-economic loss - Whether only the aggravated damages component of damages for non-economic loss may be awarded in a sum in excess of the maximum prescribed in s 35(1) - Whether statutory cap acts as cut-off - Whether statutory cap fixes top end of range of damages that may be awarded for non-economic loss - Defamation Act 2005 ss 34 and 35 - Judge's construction that the cap can be exceeded whenever an award of aggravated damages is warranted, correct.
DEFAMATION - Appeal - Damages - Damages for economic loss - Claim for special damages - Loss of valuable opportunity - Real review of the evidence - Plaintiff failed to establish relevant opportunity - Plaintiff failed to establish articles caused loss of opportunity - Relevance of grapevine - Judge erred in overestimation of spread and impact of grapevine effect - Judge's award of damages for economic loss set aside.
DEFAMATION - Appeal - Damages - Damages for general decline in business - Andrews damages - Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225, Ratcliffe v Evans [1892] 2 QB 524, Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519, discussed - Claim for Andrews damages not made out.
Plaintiff's imputations and Bauer's ultimate defences
Aggravating circumstances: the judge's findings
The aggravated damages findings about which Bauer makes complaint
Bauer's pursuit of the defence of justification
Bauer's motive to ensure the plaintiff was 'worried all the way to verdict'
Bauer's adoption of an unjustified approach to the disclosure of confidential information
Does s 35(2) require that aggravated damages be separately awarded?
Should the plain words of s 35 be displaced by other considerations?
THE REASSESSMENT OF THE PLAINTIFF'S DAMAGES FOR NON-ECONOMIC LOSS
A real review - findings of primary fact and findings of inferential fact
Annexure A1 - Woman's Day Print Article - 'Just who is the REAL Rebel?'
Annexure A2 - Woman's Day Online Article - 'Separating fact from fiction: Will the real Rebel Wilson please stand up?'
Annexure A3 - First Women's Weekly Online Article - 'The truth about Rebel Wilson.'
Annexure A4 - Second Women's Weekly Online Article - 'Rebel Wilson's real name and age revealed.'
Annexure A5 - First New Weekly Online Article - 'Rebel Wilson cries "tall poppy syndrome" over age claims.'
Annexure A6 - Second New Weekly Online Article - 'Official records reveal Rebel Wilson's real age...'
Annexure A7 - First OK Magazine Online Article - 'Rebel Wilson a fake?'
Annexure A8 - Second OK Magazine Online Article - 'Rebel really is 35.'
1 Ms Rebel Wilson ('Ms Wilson' or 'the plaintiff') is a well-known professional actor. Bauer Media Pty Ltd and Bauer Media Australia Pty Ltd (collectively, 'Bauer' or 'the defendant') is the publisher 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, Women's Weekly website, New Weekly website and OK Magazine website ('the websites').
2 On 13 September 2017, following a 19-day defamation trial, a judge of the Trial Division entered judgment for the plaintiff, against Bauer, in the amount of $4,749,920.60 (made up of damages for non-economic loss, including aggravated damages, of $650,000 and damages for economic loss of $3,917,472 and damages in the nature of interest in the sum of $182,448.61).[1] Bauer now seeks leave to appeal against this judgment.
3 The proposed grounds of appeal all relate to the assessment of the plaintiff's damages. There is no challenge to the jury's verdict that Ms Wilson was defamed. There is no complaint made about the way in which the judge conducted what was a complex and demanding trial or about the separate and multiple rulings he made concerning the admissibility of evidence, and the like. There is no challenge to many of the judge's findings that there were circumstances that supported his conclusion that an award of aggravated damages was warranted. These unchallenged findings include Bauer's failure to properly investigate the defamatory allegations made by a source that required both anonymity and payment; Bauer's publication of defamatory imputations that it knew to be false in order to maximise its commercial opportunities and as part of a campaign to 'take down' Ms Wilson; the failure to call as a witness anyone involved in the editorial process to explain the decision made to publish; and the sending of a series of insulting and harassing messages to Ms Wilson's family. Furthermore, Bauer does not challenge the finding that, in respect of one publication, it was actuated by malice.
4 We set out in detail below the background circumstances and the issues in contest. In brief summary, our conclusions on each of the principal issues are as follows:
(1) We consider that the judge, in determining that an award of aggravated damages was warranted, erred in making a number of findings as to circumstances of aggravation, and that a reassessment of the plaintiff's damages was thus required. Upon a reassessment, we would substitute, for the judge's assessment of $650,000 for non-economic loss, an assessment of $600,000.
Construction of s 35 of the Defamation Act
(2) We consider that the judge's construction of s 35 of the Defamation Act 2005 ('the Act') was correct. We have concluded that a judge has the power to exceed the statutory cap imposed by s 35(1), with respect to non-economic loss, whenever an award of aggravated damages is warranted.
(3) In respect of Ms Wilson's claim for special damage, which the judge found to be proven and awarded A$3,917,472,[2] we have undertaken the necessary real review of the evidence. We have concluded, for a considerable number of reasons, that the evidence adduced by Ms Wilson did not enable inferences to be drawn, on the balance of probabilities, that:
(a) the valuable opportunity for which she contended had existed and had been lost;
(b) assuming such opportunity had been established, that the grapevine effect in the United States, in respect of articles published in Australia, was a cause of that lost opportunity;
(c) there was, in particular, a loss of an opportunity to earn US$15 million from Ms Wilson being cast in lead or co-lead roles in three feature Hollywood films during the period from mid-2015 to the end of 2016, as his Honour found.
(4) For the above reasons, we have concluded that Ms Wilson has not made out her special damage claim.
(5) We have concluded that Ms Wilson's alternative claim for Andrews damages, in respect of a general decline in business, fails.
5 For the reasons that follow, leave to appeal ought be granted and the appeal allowed.[3]
6 On 18, 19 and 20 May 2015, Bauer published an article in the print edition of Woman's Day magazine and seven further articles on the websites ('the articles'). The articles were 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. The articles were headed and published as follows:
The full text of each article, as tendered at trial, is set out in Annexures A1 to A8 of these reasons.
Plaintiff's imputations and Bauer's ultimate defences
7 In respect of six of the articles (the Woman's Day print article, the Woman's Day online article, the first New Weekly online article, the second New Weekly online article, the first OK Magazine online article and the second OK Magazine online article), the plaintiff pleaded, and relied upon at trial, a single defamatory imputation. While there were similarities between these single imputations, they were not all identical or expressed in exactly the same terms. In respect of the other two articles (the first Women's Weekly online article and the second Women's Weekly online article), the plaintiff pleaded and relied upon two separate pairs of imputations.
8 The plaintiff's imputation in relation to the Woman's Day print article was in the following terms:
Ms Wilson is a serial liar who has invented fantastic stories in order to make it in Hollywood in that she has:
(a) 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;
(b) lied about her name by using the fake name 'Rebel Wilson' when, in fact, her real name is Melanie Elizabeth Bownds;
(c) 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;
(d) 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;
(e) 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;
(f) lied about her background by stating publicly that she had lived in Zimbabwe for a year when, in fact, she had not done so;
(g) lied when stating publicly that she had been inside a cage with a leopard when, in fact, she had not;
(h) lied when stating publicly that she got caught in a shoot-out when, in fact, she had not; and
(i) lied when stating publicly that she had contracted malaria whilst she was in Africa when, in fact, she had not contracted the illness.
9 In the final form of its defence,[4] Bauer denied the plaintiff's meaning and denied that the article was defamatory of the plaintiff. In the alternative, Bauer pleaded that, if the first Woman's Day print article was defamatory of the plaintiff in the meaning alleged by her, then it was true in substance and in fact, or substantially true.[5]
10 In addition to relying upon the defence of truth, Bauer pleaded a defence of partial justification seeking, in the alternative, to justify the more limited imputation that:
The plaintiff was a serial liar who had invented fantastic stories in order to make it in Hollywood in that she has -
(a) 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;
(b) lied about her name by using the fake name 'Rebel Wilson' when, in fact, her real name is Melanie Elizabeth Bownds; and
(c) 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.
11 As a further alternative defence, Bauer contended that the Woman's Day print article was published in circumstances 'that the plaintiff was unlikely to sustain any harm', a triviality defence.[6]
12 The plaintiff's imputation in relation to the Woman's Day online article was in the same terms as the plaintiff's imputation for the Woman's Day print article, except that para (d) was omitted.
13 Again, Bauer denied the plaintiff's meaning and denied that the article was defamatory of the plaintiff. In the alternative, Bauer, again, pleaded the justification defence, the partial justification defence and the triviality defence that it pleaded in respect of the Woman's Day print article.
14 In respect of the first Women's Weekly online article, the plaintiff pleaded two imputations:
(a) the plaintiff 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;
(b) the plaintiff is so untrustworthy that nothing she says about herself can be taken to be true unless it has been independently corroborated.
15 In its defence, Bauer again denied the plaintiff's meanings and denied that the article was defamatory of the plaintiff. In the alternative, Bauer pleaded a justification defence to the first of the plaintiff's meanings, a triviality defence and qualified privilege.[7] In answer to the qualified privilege defence, the plaintiff pleaded that in publishing the first Women's Weekly online article, Bauer was actuated by malice.
16 In relation to the second Women's Weekly online article, the plaintiff's imputations were pleaded in the following terms:
(a) [the plaintiff] 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;
(b) [the plaintiff] 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.
17 In its defence, Bauer again denied the plaintiff's meanings and denied that the article was defamatory of the plaintiff. In the alternative, Bauer again relied upon a defence of justification and a triviality defence.
18 The plaintiff's imputation in relation to the first New Weekly online article was in the following terms:
The plaintiff, 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.
19 In its defence, Bauer denied the plaintiff's meaning and denied that the article was defamatory of her. Again, it relied upon the defence of triviality. With respect to justification, however, rather than seeking to justify the plaintiff's meaning, Bauer pleaded and sought to justify an alternative meaning that 'having been caught lying about her name, age and childhood, the plaintiff accused the magazine that revealed the truth about her of suffering from tall poppy syndrome'.[8]
20 The plaintiff's imputation in relation to the second New Weekly online article was:
The plaintiff had 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.
21 Again, Bauer denied the plaintiff's meaning and denied that the article was defamatory of the plaintiff. Justification and triviality defences were again pleaded.
22 The plaintiff's imputation in relation to the first OK Magazine online article was in the following terms:
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:
(a) lied publicly about her age by stating that she is 29 years old when, in fact, she is 36 years old;
(b) lied about her name by using the fake name 'Rebel Wilson' when, in fact, her real name is Melanie Elizabeth Bownds;
(c) 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;
(d) lied about her background by stating publicly that her parents are professional dog exhibitors when, in fact, they are not;
(e) 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.
23 As it had with earlier articles, Bauer denied the plaintiff's meaning and denied that this article was defamatory of the plaintiff. In the alternative it pleaded justification and triviality defences. In addition it pleaded, in the alternative, a partial justification defence asserting the truth of the more limited imputation that:
The plaintiff was a serial liar who had told shocking lies in order to make it as an actress and comedian in that she has:
(a) lied publicly about her age by claiming to be 29 years old when, in fact, she is 36 years old; and
(b) lied about her name by using the fake name 'Rebel Wilson' when, in fact, her real name is Melanie Elizabeth Bownds.
24 The plaintiff's imputation in relation to the second OK Magazine online article was:
The plaintiff has lied about her age in order to maximise her chances of being offered acting roles in Hollywood.
25 Bauer, again, denied the plaintiff's meaning and denied that the article was defamatory of the plaintiff. In the alternative, it pleaded justification and triviality defences.
26 At trial, the plaintiff gave evidence over seven days. During the course of the trial, the plaintiff called:
28 During the course of the trial, a large number of documents were tendered, including the articles, letters, emails, tweets, the plaintiff's birth certificate, photographs of the plaintiff doing various things at various stages in her life, answers to interrogatories, text messages, contracts, audio visual recordings and tax returns.
29 At the conclusion of the evidence, the plaintiff applied to the judge to have the partial justification defences (pleaded in respect of the Woman's Day print article, the Woman's Day online article and the first OK Magazine online article) and the triviality defences (pleaded in respect of all articles) taken away from the jury. In support of those applications, the plaintiff submitted that the triviality defences were not open and contrary to authority.[9] As to the defences of partial justification, the plaintiff submitted that these defences were, at their highest, only relevant to the issue of damages - an issue for the judge, not the jury.[10]
30 In response to the plaintiff's applications, the judge permitted the defences of triviality to go to the jury, but reserved the plaintiff leave to move for judgment on those defences following, and notwithstanding, the jury's verdict.[11] The judge, however, accepted the plaintiff's submission about the partial justification defences and those defences were taken from the jury.[12]
31 In response to the judge taking Bauer's partial justification defences from the jury, Bauer sought to amend its defence in respect of the Woman's Day print article, the Woman's Day online article and the first OK Magazine online article so as to (for the first time) justify the imputations pleaded by the plaintiff in respect of those articles. The judge granted Bauer leave to make those amendments.[13] In her final address, senior counsel who appeared for Bauer,[14] made submissions that proof of the truth that the plaintiff lied about her name, age and background[15] established the truth of the single imputation relied upon by the plaintiff in the Woman's Day print article, the Woman's Day online article and the first OK Magazine article.
32 Consistently with s 22 of the Act, the question of whether Bauer had published defamatory material about the plaintiff and the defendant's defences were determined by the jury, leaving the judge to determine the amount of damages (if any). In order to obtain the jury's verdict, the jury was asked a series of questions in relation to each of the articles.
33 In summary, the jury accepted all of the plaintiff's imputations and, where it was disputed, that the articles were defamatory of the plaintiff. All of the defences were rejected. Bauer's assertions that the plaintiff told Ms Overington that she was 29 years old and was distantly related to Walt Disney were not accepted, and the jury accepted that Bauer was motivated by malice in publishing the first Women's Weekly online article.[16] The full text of the questions, annotated with the jury's answers, is set out in Annexure B of these reasons.
34 In assessing the plaintiff's damages, the judge concluded that the plaintiff had established an entitlement to aggravated damages.[17] The judge concluded that an entitlement to an award of aggravated damages meant that the plaintiff's damages for non-economic loss were not restricted by the cap contained in s 35 of the Act.[18] The judge assessed the plaintiff's damages as follows:
35 The jury returned its verdict on liability on day 17 of the trial. Nothing that occurred in the trial up to that point is the subject of any criticism of the judge. Bauer does not dispute the jury's verdict or make any complaint about the way in which the judge conducted this complex and difficult trial. As we have already observed, Bauer's grounds of appeal relate only to damages. Specifically, its grounds of appeal are as follows:
2. Further to ground 1 above, the trial judge erred in finding that -
(a) no responsible analysis could have informed advice that any of the articles was substantially true [346];
(b) no responsible analysis could have resulted in advice to the effect that a defence of triviality might lie with respect to any of the articles [346];
(c) after the plaintiff had been cross-examined and other relevant witnesses had been called it must have been apparent to the applicants that the plaintiff was not a serial liar [348];
(d) the applicants pressed defences when they could not have been responsibly advised to do so [350];
(e) the applicants' motive was to ensure that the plaintiff was worried all the way to verdict by the possibility of an adverse outcome [350];
(f) the applicants' failure to apologise to the plaintiff was not bona fide in circumstances where an apology and correction were self-evidently called for [343], [344], [385(a)];
(g) the applicants' opening address was relevant to the aggravation of harm to the respondent [352], [353];
(h) the applicants' closing address to the jury warranted an award of aggravated damages in that it unreasonably caused increased subjective harm to the respondent [359];
C. Damages for non-economic loss manifestly excessive:
36 The plaintiff was born on 2 March 1980. Her mother, Sue Bownds, a school teacher, gave evidence at trial that: she wanted to call her first daughter 'Rebel' after a girl she had once taught and who had sung at her wedding, Rebel Bissaker; when her daughter was born she called her Rebel Elise Bownds; her daughter was meant to be 'Rebel' and as far as she was concerned 'Rebel' was her name for the first 6 weeks, however she later bent to pressure from her late husband and parents who did not consider 'Rebel' to be a suitable name and she put the name 'Melanie Elizabeth' on the birth certificate; and the name 'Melanie' came from a singer called Melanie Safka.
37 The plaintiff's evidence at trial was that: when she was growing up she knew that her mother had wanted to name her 'Rebel' and that Rebel was supposed to be her name; 'Rebel' became a nickname but her family mainly called her 'Melanie' and 'Mel' and she was called 'Melanie' at school; and from 1998, at the age of 18, she adopted the name 'Rebel' full-time, and adopted the surname Wilson which was a family name on her mother's side. She explained in evidence the reasons why she did so. Mrs Bownds gave evidence that the plaintiff's grandmother was a 'Wilson', that she had wanted to be an actress but was not allowed to do so, and that this was 'a bit like me not calling Rebel Rebel' after bending to pressure. In 2002, the plaintiff changed her name legally and since then her full legal name has been Rebel Melanie Elizabeth Wilson.
38 The plaintiff has three siblings: Liberty, Ryan, and Annaliese. Mrs Bownds gave evidence that Liberty was named after the Liberty Shop in London and to continue a theme after calling her first daughter 'Rebel', Annaliese was named after a street in the street directory, and Ryan was named by her late husband. Annaliese gave evidence that she started to be called by the nickname 'Annarchi' when she was 12 years old. Ryan gave evidence that he adopted, and started to be called by, the nickname 'Ryot' when he was about 12 years old. They, and other family members, explained how they got those nicknames and some of them gave evidence that the nicknames were part of a theme. Ryan, who is a professional poker player, is known as 'Ryot' when playing poker and was known as 'Ryot' in the 2011 television program called The Amazing Race.
39 The plaintiff grew up in the north-western suburbs of Sydney (Castle Hill and Kenthurst). She attended Castle Hill state primary school and she and her sisters each attended the Tara Anglican Girls School in Parramatta, NSW. Her brother attended the Kings School in Parramatta.
40 The plaintiff's parents bred and showed dogs. They owned a pet business which they ran out of a yellow caravan. Each weekend, the family would take the caravan to dog shows and sell pet products from the caravan.
41 After finishing secondary school, the plaintiff lived in South Africa as a Rotary Youth Ambassador for one year. Evidence was given about things that happened in South Africa, including her contracting malaria, patting a lion and a leopard inside a cage and getting caught in cross-fire. At the end of the one-year program, in 1998, the plaintiff returned to Sydney to study law and arts degrees. She also enrolled in the Australian Theatre for Young People where she started to build her acting career.
42 On 25 September 2002, the Sydney Morning Herald published an article on its website authored by Lisa Pryor titled, 'Rebel off to New York to hone comic craft' ('the Pryor article'). The Pryor article said that the plaintiff was 19 years old when she first saw a professionally produced play and that 'in the three short years since' she had written two plays of her own.
43 Over the period from 1998 to 2009, the plaintiff built her acting career in Australia. She wrote a play called The Westie Monologues about young women growing up in western Sydney. She wrote and appeared in a SBS television series called Bogan Pride and appeared in a SBS television series called Fat Pizza. She appeared in a television series on Channel Ten called The Wedge. Each of these productions had a comedic aspect.
44 In 2009, the plaintiff finished her law degree and was offered a contract on a television series called Winners and Losers. She declined the role because she thought that if she took it then she would probably never go to America. She decided that if there was ever a chance of her becoming a successful actress then it was time to try her luck in America. She sold everything she owned and had enough money to stay for six months. She relocated to Los Angeles to pursue her acting career in Hollywood.
45 The plaintiff gave evidence that when she moved to America she stopped disclosing her age. When she was asked her age, her standard response was 'a lady never tells'.
46 Towards the end of her six-month period in America, the plaintiff secured a small role in a film called Bridesmaids. The film was a great success. She then secured more roles, including in the film Pitch Perfect which was filmed in 2011 and released on 28 September 2012 and which went on to become a world-wide hit. It was that film that shot her to fame and the balance between her chasing work and work chasing her was becoming more even. Following the film's release, she was offered about 10 new screen roles, and then about another 18 new screen roles during 2013 and 2014.
47 On 29 July 2013, the plaintiff participated in an interview with Carina Chocano, a journalist for Elle magazine. At trial, the plaintiff said that she had done thousands of interviews throughout her career and could not specifically recall participating in this interview. On 20 September 2013, she received by email from her publicists a copy of a published article authored by Ms Chocano titled, 'Rebel Rising'. She gave evidence that she had no memory of receiving the email or reading the article, but that she had found it amongst her emails when preparing her discovery in this proceeding. The article stated that the plaintiff 'was named after a singer who performed at her parents' wedding, and as her mother was partial to "theming" her puppy litters, Wilson's younger siblings - Liberty, Annarchi, and Ryot - got the same treatment'.
48 As we have already observed, in October 2014, the plaintiff participated in an interview with Ms Overington. Ms Overington was a journalist then employed by Bauer, for the Women's Weekly magazine. Ms Overington gave evidence that she first saw Ms Wilson sitting in the make-up chair getting her hair and make-up done in preparation for a photo shoot and she walked over to her and the following occurred:
So my feeling was I needed to establish rapport very quickly. So I remember it very clearly that my opening question was, 'This is an extraordinary story. You are 29, you have parents who were dog handlers and you've got this huge Hollywood career and your name is actually Rebel? This sounds amazing to me'.
49 Ms Overington gave evidence that the plaintiff responded, 'yes' and then launched into a story about how she got her name. Whether Ms Overington spoke to Ms Wilson while she was having her hair and make-up done was the subject of dispute at trial. There was no dispute, however, that Ms Overington did conduct a formal interview with the plaintiff later in the day.
50 Ms Overington gave evidence that, during her interview with the plaintiff, Ms Wilson said that: 'Rebel' was not that unusual a name; she had been named after a little girl who sang at her parents' wedding; her siblings had really unusual names, there was Ryot and there was Annarchi and there was Liberty, and that her parents had given them all these unusual names; and she had not used the name 'Rebel' at school because she had attended an exclusive Anglican girls school called Tara and unusual names would not sit well there, so she used her middle name, 'Melanie'.
51 In February 2015, Bauer published an article about the plaintiff, written by Ms Overington, in the Women's Weekly magazine, titled 'Our Hollywood Powerhouse'.
52 On 10 December 2014, the plaintiff was interviewed on US television by David Letterman on The Late Show. During the interview, the plaintiff said that: she came from 'Sydney, the western suburbs which is kind of like the real ghetto area'; that she was named 'Rebel' after a little girl who sang at her parents' wedding; that she was named 'Rebel' and her siblings were named 'Liberty', 'Annarchi' and 'Ryot' because her mother was a dog-shower and bred dogs and liked themed names; and that, because her name was 'Rebel' she was lucky that she became an actress.
53 The plaintiff's evidence at trial was that: her interview with Mr Letterman was a comedic performance and she explained how the content is prepared with the talk show; her use of the word 'ghetto' during the interview was a joke; and she used the word 'ghetto' as a synonym for 'westie' or 'bogan' or 'the western suburbs of Sydney' because Americans would not understand those concepts.
54 On 25 January 2015, the Sydney Morning Herald published an article authored by Joel Meares concerning the plaintiff, titled, 'The confidence trick' ('the Meares article'), which contained the following passage: 'For the record, Wilson's biography on movie website IMDb puts her age at 28, but a quick look through the Fairfax archives suggests that she is actually 34.' The Meares article was published after an interview that the plaintiff had participated in with Mr Meares. The plaintiff gave evidence that she thought that the above passage in the article was 'a bit of a jab'. On 25 January 2015, she sent an email to Fiona King (who was involved in the arrangements in relation to the interview with Mr Meares) and asked for a copy of the photograph that accompanied the Meares article for her grandmother and said that she would try to forget about the silly age comment in the article.
55 On 28 January 2015, the plaintiff's principal US publicist, Jodi Gottlieb, sent an email to Ms King and Greg Hywood at Fairfax. The email stated that they had come across the Meares article and would like the comment about the plaintiff's age to be removed. The plaintiff was not a party to the email. She was asked in cross-examination whether she had discussed the Meares article with Ms Gottlieb. The plaintiff said that she may have and she may have provided Mr Hywood's email address to Ms Gottlieb but that she had no memory of doing so. She also explained that it was common place for publicists who represent actresses to ask for ages to be removed.
56 On 3 February 2015, a link to an article about the plaintiff on the website 'buzzfeed.com' was re-tweeted from the plaintiff's Twitter account ('the Buzzfeed tweet'). The Buzzfeed tweet contained a photograph of the plaintiff from the article, a reference to the website 'buzzfeed.com' and the statement '29 Times Rebel Wilson Was the Coolest Person on the Planet. Happy 29th birthday to a lady who has given us so many great one-liners'. The plaintiff gave evidence that she may have re-tweeted the Buzzfeed tweet or it could have been someone from her team of agents or publicists who had access to her Twitter account; but that if she did re-tweet it, 'I just liked that photo and if I re-tweeted it, I probably just looked at the headline and said, "They're calling me the coolest person on the planet. It is not every day someone calls you that, I'll just press the button and repeat it."'
57 On 8 February 2015, the plaintiff sent an email to Mr Hywood about the Pryor article. She had earlier been taken out for dinner by Mr Hywood and the head of Channel Nine in relation to her work as the spokesperson for a television streaming service called 'STAN'. Mr Hywood told the plaintiff that she was now part of the family and that if there was anything that he could do for her then she should reach out to him and he gave her his email address. She later emailed him about the Pryor article. The email stated that: her US publicity team had alerted her to the article; that people had been using the photograph from the Pryor article, which was not flattering; that people had been using the Pryor article to clarify her age; that the Pryor article incorrectly stated that she had attended the New York Film Academy; and asked if he could arrange for the article to be removed from the website. The plaintiff gave evidence that she did not follow up her email and did not know if the Pryor article was ever removed.
58 On 10 April 2015, the plaintiff participated in an interview with Stephanie Rafanelli, a journalist employed by The Guardian newspaper. The plaintiff subsequently responded to follow-up questions from The Guardian via Ms Gottlieb.
59 On 22 April 2015, Abigail Radnor of The Guardian sent an email to Lindsay Shane (copied to Ms Rafanelli and Ms Gottlieb) in which she told Ms Shane that they had Ms Wilson's age at 29 but that there were conflicting reports as to her age, and so she just wanted to check Ms Wilson's age with Ms Shane again. Ms Gottlieb responded: '29'. The plaintiff was not a party to the email chain and gave evidence that she first became aware of it when it was shown to her in preparation for the trial. She gave evidence that she had never spoken to Ms Gottlieb (who ceased to be her publicist around September 2016) about the email.
60 On 2 May 2015, The Guardian newspaper published an article about Ms Wilson, written by Ms Rafanelli, titled, 'Bigmouth strikes again'. The article contained the following references: 'The family were, she says, "bona fide bogans"'; Ms Wilson's family being a 'ghetto family' and her family house being in the 'ghetto'; her real name being Rebel; 'at 29, she is the eldest of four siblings....'; her mother having taken the same approach to naming her brood as she did to a litter of puppies; and Ms Wilson being named after a girl who sang at her parents' wedding.
61 On about 5 May 2015, Bauer started to work up a story on the plaintiff. They dug out old information that they had decided not to publish in 2012 and 2013.
62 On 7 May 2015, Pitch Perfect 2 was released in Australia. On 15 May 2015, the film was released in the United States and around the world. The film was a huge success. It became the number one film around the world.
63 Between 18 and 20 May 2015, Bauer published the eight articles about which the plaintiff made complaint in the proceeding below. The plaintiff, and other witnesses called by her, gave evidence that she was devastated by the articles. The articles had a physical and psychological impact on her. She suffered significant stress, developed a stress sore, eczema and a urinary tract infection. A doctor was called. She took sleeping tablets for about two weeks. During the trial, the plaintiff broke down several times. She was still raw two years on. She gave evidence that the articles ignited an 'international media firestorm' and that the sting of the articles spread instantaneously to the United States.
64 Evidence was given that after publication of the articles, the plaintiff was not offered, cast in and did not perform any lead or co-lead roles in films or television until the start of 2017 when she filmed Pitch Perfect 3. Ms Jackson gave evidence that she had 'closed' Ms Wilson's deal for Pitch Perfect 3 before Pitch Perfect 2 was released and before publication of the articles. The trial judge inferred[20] from the evidence that negotiations for the plaintiff's box office bonuses for Pitch Perfect 3 continued after the publication of the articles. The plaintiff gave evidence that a contract for Pitch Perfect 3, dated 'as of 17 September 2015', was signed in January 2017.
65 The plaintiff's agent, Ms Jackson, gave evidence that because Ms Wilson had not been offered any lead or co-lead roles in films or television, she talked to her about her developing films to star in. The plaintiff gave evidence that she tried to develop a number of films called Isn't it Romantic, Dirty Rotten Scoundrels, Private Benjamin and A Perfect Crime. She gave evidence that in about May 2017, Isn't it Romantic got the green light and that she hoped Dirty Rotten Scoundrels would get the green light later in 2017. We will return to the evidence concerning the plaintiff's career post-publication of the articles when we deal with the grounds of appeal relating to economic loss.
66 In her statement of claim, the plaintiff pleaded that Bauer's conduct with respect to the publication of the articles was 'unjustifiable or lacking in bona fides, entitling the plaintiff to an award of aggravated damages'. In so pleading, the plaintiff relied on the High Court's decisions in Triggell v Pheeney[21] and Carson v John Fairfax & Sons Ltd[22] which held that aggravated damages may be awarded in defamation proceedings if, in the publication of the matter complained of or in the defence of the proceeding, the defendant engages in conduct that is improper, unjustifiable or not bona fide and such conduct increases the plaintiff's injury.[23]
67 The plaintiff provided seven paragraphs of particulars of her claim for aggravated damages. These may be summarised as follows:
(1) Bauer published the articles without an honest belief in the truth of the imputations.
(2) Alternatively, Bauer published the articles, recklessly indifferent to the truth of the imputations.
(3) Bauer published the articles without making any or any adequate enquiries as to the truth of the imputations.
(4) Bauer did not contact the plaintiff prior to publication of any of the articles.
(5) The publication of the articles was timed to coincide with the release of Pitch Perfect 2, so as to maximise public attention to the articles, which attention was in fact attracted; alternatively, Bauer well knew that the natural and probable consequence of the publication would be to attract such attention.
(6) Despite being in possession of documents which showed that the plaintiff had not lied about her name, Bauer did not apologise or remove articles which misrepresented the position.
(7) A request for an apology, made after publication, did not give rise to any apology when one was 'self-evidently called for'.
68 In final address, the plaintiff submitted that there were additional bases upon which an award of aggravated damages should be made. The plaintiff submitted that, in its defence of the proceeding, Bauer had 'acted in an improper and unjustifiable manner that [was] lacking in bona fides and which [had] increased Ms Wilson's harm'. The plaintiff identified the 'key conduct' constituting these additional grounds as follows:
(1) Bauer and the relevant journalists (Ms Overington and Ms Nementzik) refused to apologise to the plaintiff when an apology was self-evidently called for. Moreover, in response to the plaintiff's concerns notice,[24] Bauer told the plaintiff that it would be in a position to defend an imputation that the plaintiff was a dishonest person.
(2) From the outset, Bauer pleaded and persisted with a variety of justification defences 'even though it must have been clear that they would fail'.
(3) Bauer's general counsel (Mr Goss) swore answers to interrogatories in which he falsely denied that the articles were published to coincide with Pitch Perfect 2.[25]
(4) Bauer failed to discover, until close to trial, a number of relevant internal emails and draft articles, including draft articles where there was no reference to the plaintiff's age - her age being inserted in a subsequent draft or edit by 'someone named Bronwyn Phillips, who was not called to give evidence'.
(5) On the eve of the trial, Bauer published another article about the plaintiff which suggested (falsely) that the plaintiff had participated in an interview about her love life.
(6) In opening Bauer's case, senior counsel for Bauer made a number of submissions that the articles would have 'brought a smile' to the face of readers, were not nasty, had a 'nice tone', and would not have done the plaintiff any harm.
(7) The plaintiff was subjected to three days of cross-examination, much of which was 'repetitive and pointless'. The cross-examination suggested that the plaintiff had lied on oath about a number of matters and had only brought proceedings in retaliation for a defamation complaint made by a Bauer employee, Ms Elizabeth Wilson.
(8) During the trial, Bauer unjustifiably resisted adopting an approach whereby the plaintiff's remuneration for films would only be described in open court in non-specific terms.
(9) After the close of evidence, Bauer made the 'incomprehensible' decision to amend its defence to plead truth simpliciter, which defence was 'comprehensively rejected by the jury'.
(10) The plaintiff's family members were 'unjustifiably and crudely cross-examined about the family's financial situation when the plaintiff was growing up and about the schools that they had attended.'
(11) In final address to the jury, Bauer 'launched an extraordinary full-frontal attack on Ms Wilson's credit', alleging that she had not been honest. This address was delivered in circumstances where it was 'clear to everyone' that the plaintiff had given 'honest, credible and emotional evidence over the course of about six days'.
Aggravating circumstances: the judge's findings
69 The judge commenced his analysis of the plaintiff's claim for aggravated damages by summarising the legal principles that govern the circumstances in which aggravated damages may be awarded and the principles relating to the assessment of them.[26] The judge's summary referred to the relevant authorities, including Triggell v Pheeney, Carson and Lower Murray Water. Specifically, the judge observed that aggravated damages may be awarded if, in the publication of the matter complained of or in the defence of the proceeding, a defendant engages in conduct that is improper, unjustifiable or not bona fide and such conduct increases the plaintiff's injury.[27] There was no dispute about these principles in this Court.
70 The judge dealt with circumstances of aggravation under the following headings in his judgment:
71 The judge made a number of findings about aggravating circumstances and conduct. In respect of some findings, it was plain that the judge regarded the particular matter as an aggravating circumstance entitling the plaintiff to an award of aggravated damages. In other instances, whether the judge relied upon a particular matter as supporting an award of aggravated damages is less clear.
72 The judge said that the circumstances of publication of the articles amounted to aggravation 'in at least three ways'.[28] The judge then made the following three findings:
(1) Bauer failed to properly investigate, before publishing, allegations that it regarded as defamatory and that were made by a source that required both anonymity and payment.
(2) Bauer knew that the imputations it conveyed by the articles were false, but it proceeded to publish them anyway.
(3) Bauer repeated the false imputations 'in the nature of a campaign against the plaintiff to maximise its commercial opportunities, [and] also to respond to and neutralise the plaintiff's response to its campaign'.[29]
In this Court, Bauer made no challenge to the correctness of these findings.
73 The judge then described Bauer's recklessness as to the consequences of publication as demonstrating 'a substantial degree of aggravation that increased the plaintiff's damage'.[30] He went on:
Bauer Media's conduct in publishing the articles not only aggravated the injury to the plaintiff's feelings, it was conduct that aggravated the injury to her reputation. The plaintiff is entitled to a substantial damages award for harm she has sustained in the particular circumstances.[31]
74 The judge then discussed the circumstances of the publication of the Woman's Day print article (written by Ms Nementzik).[32] Following that discussion, the judge said that:
The failure to call anyone involved in the editorial process to explain the decision that was made to publish Ms Nementzik's article is a factor that gravely aggravated Ms Wilson's damage.[33]
As with the judge's earlier findings, Bauer did not challenge this finding on appeal.
75 Next, the judge discussed the publication of the first Women's Weekly online article (written by Ms Overington).[34] In this discussion, the judge observed that:
76 The judge concluded this discussion by saying '[e]ach of these matters increased the harm suffered by Ms Wilson and warrants an award of aggravated damages'.[35] With respect, it is not entirely clear whether the judge was here referring to all of the matters set out in the six paragraphs that proceeded the statement just quoted,[36] or whether he was only referring to the matters described in the paragraph in which that statement appears.[37]
77 The judge then referred to what he described as 'a series of insulting and harassing messages' sent by Ms Overington to members of the plaintiff's family and others.[38] The judge concluded that these messages 'further aggravated Ms Wilson's damages'. There was no challenge by Bauer to this finding in this Court.
78 The judge concluded his analysis of aggravating circumstances in the publication of the articles by saying that he accepted the plaintiff's contention that Bauer published the articles 'as part of a campaign to "take down" the plaintiff, timed to coincide with the release of Pitch Perfect 2 in order to maximise [the benefit of the articles] for [Bauer's] commercial motives'.[39] Again, Bauer made no challenge to this conclusion in this Court.
79 The judge commenced his analysis of circumstances of aggravation after the publication of the articles with a recitation of part of the plaintiff's submissions.[40] The findings in [343], [344] and [346] are the subject of grounds 2(a), (b) and (f). In those paras, the judge said:
[343] The defendants removed the impugned articles from the internet on receiving the plaintiff's first complaint about the articles in May 2016 but Bauer Media and the relevant journalists have refused to apologise to Ms Wilson and correct the record, in circumstances where a correction of the record and an apology were self-evidently called for.
[344] On 10 May 2016, Ms Wilson sent a concerns notice to Bauer Media. She sought a published apology. On 24 May 2016, when Bauer Media's solicitors responded, not only did Bauer Media refuse to apologise, but it told Ms Wilson that it would prove that Ms Wilson was a dishonest person. A correction of the record and an apology were called for. Ms Wilson had no option but to seek public vindication through the legal system. Ms Wilson gave evidence that this response 'added to the hurt'.
...
[346] As the plaintiff submitted, no responsible analysis could have informed advice that any of the articles was substantially true. No responsible analysis could have resulted in advice to the effect that a defence of triviality might lie with respect to any of the articles. The defendants acknowledged that they had pursued unsuccessful justification and triviality defences in relation to each article, but submitted that their conduct in pursuing those defences was not improper, unjustifiable or lacking in bona fides. The defendants relied on the principle that mere persistence, or even vigorous persistence in a bona fide defence, in the absence of improper or unjustifiable conduct cannot be used to aggravate compensatory damages.[41] Whether that be so depended on how the defence was raised, pursued and why it failed. Compensation for continuing harm is a component of regular compensatory damages and at least one of the factors identified in Triggell v Pheeney.[42]
80 While [346] of the judge's reasons sets out a submission of the plaintiff and the judge's acceptance of that submission, in context, the better view of [343] and [344] may be that they are merely a recitation by the judge of other submissions made by the plaintiff (continuing the judge's recitation of the plaintiff's submission from [342]). Support for that view may be found in the judge's use of a phrase used more than once by the plaintiff's counsel at trial that a correction of the record and an apology 'were self-evidently called for'.[43]
81 Paragraphs [348] and [350] are the subject of challenge in grounds 1 and 2(c), (d) and (e). Those paragraphs provide:
[348] The defendants' justification defences remained somewhat fluid throughout the trial. After Ms Wilson had been cross-examined and other relevant witnesses had been called, Bauer Media further amended its defence to plead truth simpliciter to the Woman's Day print article. It must have been apparent to Bauer Media that Ms Wilson was not a serial liar. At the same time, the plaintiff submitted that the defence of triviality ought to be withdrawn from the jury while the defendants sought to maintain it. These issues were dealt with in Ruling No 6, and I need only note for present purposes that, for the reasons given, I permitted the defence of triviality to go to the jury for verdict, but reserved for the plaintiff leave to apply for judgment non obstante veredicto in the event that the jury found the triviality defence established in relation to any of the eight articles sued upon. The jury did not do so.
...
[350] 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.
82 In respect of Bauer's senior counsel's opening address, the judge said:
[352] 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.
[353] 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'.
83 The judge then dealt with the cross-examination of the plaintiff, describing it as 'in part repetitive' and including attacks on the plaintiff's integrity and character.[44] The judge referred to cross-examination of the plaintiff's family members, about the family's financial situation when the plaintiff was growing up and about schools that her siblings attended. The judge said:
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 Kings School or that they were private schools or that the children were lucky to have been educated there.[45]
84 Next, the judge dealt with Bauer's senior counsel's final address. The judge said:
[358] 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 [Bauer Media's][46] 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.
[359] 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 take-down' 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.
What the judge said at [359] is the subject of ground 2(h).
85 As to Bauer's answers to interrogatories sworn by Mr Goss, the judge said:
[360] 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.
The findings in this paragraph are the subject of ground 3.
86 As to the allegation that Bauer adopted an unjustified approach to the disclosure of confidential information regarding the plaintiff's remuneration, the judge said:
[361] 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,[47] accepting the defendant's submission.
[362] 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.
The judge's conclusions at [362] are the subject of ground 4.
87 Next, the judge went on to deal with submissions made by the plaintiff concerning Bauer's failure to discover documents and the publication of the article that occurred on the eve of trial that suggested that the plaintiff had participated in an interview about her love life.[48]
88 Under the heading 'Assessment of general damages', the judge said:
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.[49]
These paragraphs are not the subject of any challenge by Bauer in any of its grounds of appeal.
89 Finally, on the issue of aggravated damages, the judge concluded:
[385] 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.
[386] 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.
Sub-paragraphs (a)-(c) of [385] are the subject of grounds 1, 2(f) and 4.
The aggravated damages findings about which Bauer makes complaint
90 Before dealing with the findings of aggravation about which Bauer makes complaint, it is convenient to set out in summary form those findings about which no complaint is made by Bauer. Those matters were:
(1) Bauer's failure to properly investigate defamatory allegations made by a source that required both anonymity and payment.
(3) Publishing false imputations to maximise Bauer's commercial opportunities and as part of a campaign to 'take down' the plaintiff.
(4) Failing to call as a witness anyone involved in the editorial process to explain the decision made to publish the Woman's Day print article.
(5) Being actuated by malice in the publication of the first Women's Weekly online article.
(6) The sending of a series of insulting and harassing messages to the plaintiff's family.
91 In its grounds of appeal, Bauer complains about eight matters in respect of which it submits that the judge erred in concluding that Bauer's conduct was not bona fide, unjustifiable or improper and aggravated the plaintiff's damages. In short, those matters are:
(1) Bauer's pursuit of the defence of justification: grounds 1 and 2(a), (c), (d) and (e).
(2) Bauer's pursuit of the defence of triviality: grounds 1 and 2(b), (d) and (e).
(3) Making submissions as to meaning: grounds 1 and 2(d).
(7) Mr Goss' knowingly false answer to interrogatory 13 (the negative answer to the question, 'Did [Bauer] elect to publish the articles in May 2015 so that they coincided with the release of the film Pitch Perfect 2?'): ground 3.
(8) Bauer's adoption of 'an unjustified approach to the disclosure of confidential information regarding the remuneration that [Ms Wilson] received for films': ground 4.
92 In addition to making complaints about the judge's findings on each of these eight issues, Bauer contended, in the alternative, that the judge failed to give adequate reasons for his findings on these issues: ground 5.
Bauer's pursuit of the defence of justification
93 Central to the judge's finding that Bauer's pursuit of the defence of justification entitled the plaintiff to aggravated damages was the conclusion that 'no responsible analysis could have informed advice that any of the articles was substantially true'.[50] Bauer attacked this conclusion on two bases: first, by contending that the judge did not provide any reasoning in support of the conclusion; and second, by referring to the limited scope of the justification defence that was actually argued by Bauer's counsel at trial. Bauer also submitted that the justification defence was inextricably linked with issues concerning the meaning of the articles, and that there was no impropriety in Bauer's trial counsel pursuing legitimate arguments about meaning and justification that were open to be made on the evidence called at trial.
94 Bauer also attacked the judge's conclusions that, at the time Bauer amended its defence to plead truth simpliciter in respect of the Woman's Day print article, the Woman's Day online article and the first OK Magazine online article, 'it must have been apparent to Bauer that Ms Wilson was not a serial liar',[51] and that Bauer 'could not have been responsibly advised to [pursue its justification defences]'.[52]
95 The plaintiff, on the other hand, supported the trial judge's conclusions, primarily by reference to Bauer's state of knowledge as it was from the time of publication (May 2015) up to verdict. Thus, the plaintiff submitted that Bauer knew, at the time of publication of the articles, that the plaintiff was not a serial liar who had fabricated almost every aspect of her background in order to make it in Hollywood.
96 At one level, the trial judge's conclusion that the pursuit of the justification defence was improper is unimpeachable. The judge found that Bauer knowingly published false, defamatory imputations to maximise its commercial opportunities and as part of a campaign to 'take down' the plaintiff. Bauer no longer disputes this proposition. Plainly, the pursuit of a justification defence, by a litigant who knows that it published false and defamatory imputations to maximise its commercial opportunities, constitutes conduct that is unjustifiable, improper and not bona fide.
97 The impropriety of the pursuit of a justification defence in those circumstances is, however, a different issue from the issue of whether there was any impropriety in lawyers pursuing a justification defence at trial which was arguably based upon the evidence called at trial. The issue that arises is whether there was any impropriety in counsel at trial putting forward the defences and arguments that they did.
98 Bauer's arguments in support of its justification defences were encapsulated in that part of its senior counsel's final address which dealt with the issues of meaning and justification in relation to the Woman's Day print article. First, senior counsel for Bauer submitted to the jury that, in order for the Woman's Day print article to mean that the plaintiff was a serial liar, the jury would 'have to find that the article was saying of her that she told each and every one of those lies, or the vast majority of them'. Otherwise, it was submitted that the plaintiff had not established her meaning, which would result in a verdict for the defendant on that article.
99 Senior counsel for Bauer then went on to deal with the issue of justification. Counsel submitted:
If, however, you do believe that the article is calling Ms Wilson a serial liar, then although they are not the words that Ms Nementzik used, the defendant says, regrettably, that it is true that the plaintiff has told a series of lies or is a serial liar. I don't want you to be alarmed by that because that is not necessarily a grave matter. What is a lie? It involves stating as a fact something that you know to be false, but what might be considered a lie ranges from extreme acts of dishonesty - for instance, if you were to say something that you knew to be false when you were giving evidence in a court of law, that would be a serious lie and we all understand how grave an allegation that would be. On the other hand, there are trivial lies, little lies that we all tell from time to time, like the stories we tell children about Santa Claus or the Easter Bunny. We know the Easter Bunny doesn't exist, but we still tell someone that the Easter Bunny is coming, or that Santa Claus is coming. I just give you those examples to show you that a lie can range from something quite small - we've all heard the phrase white lies or trivial lies - to something that is really quite grave and serious.
If you think this article is alleging that Ms Wilson is a serial liar, then we suggest that the lies that it is accusing her of, if that is what you think it means, are not at that extreme end of the scale, they're little trivial - more trivial types of lies. But because Ms Wilson has brought this case and because Bauer has to defend its publications, unfortunately we're in a position where we've had to prove that some of the things that Ms Wilson has said, and that are reported in that article, if the article suggests that she's told falsehoods about those matters, then we're saying it's true that she has because the article is substantially true.
100 Senior counsel for Bauer then identified, and made detailed submissions about, the three matters that she contended were lies, namely:
In making these submissions, counsel identified the evidence called at trial that supported Bauer's case that the plaintiff had told lies about these three matters. It was submitted that the relevant evidence included the fact that the plaintiff's mother had originally put the name 'Melanie Elizabeth' on the plaintiff's birth certificate; the evidence given by Ms Overington as to what the plaintiff said to her, in October 2014, while the plaintiff was having her hair and makeup done; and the evidence of what the plaintiff said to David Letterman, in December 2014, about coming from a 'real ghetto area'.
101 Plainly, the jury did not accept Bauer's arguments about justification. In defence of the propriety of trial counsel's arguments, however, Bauer observed in this Court that the judge, when charging the jury, said that they had had the 'benefit of excellent, well presented, clear and persuasive addresses from both sides ... that ought to provide you, as they have me, with considerable assistance in the resolution of the case'.
102 The judge's characterisation of the parties' final addresses, however, is not determinative of the question of whether there was a relevant impropriety. The judge was required to give a balanced charge so as to enable the jury to determine fairly the matters in dispute. Undoubtedly, the addresses of counsel were well presented. Counsel for Bauer had the more difficult task of addressing in circumstances where there was real strength in the plaintiff's case and real weakness in aspects of Bauer's case. The judge's comment about the parties' final addresses involved no more or less than one might expect in a hard-fought and complex jury trial.
103 While Bauer's arguments about justification at trial may have been weak and unpersuasive, they were not, of themselves, improper or unjustifiable. As we have said, care needs to be taken to separate the impropriety of a litigant in knowingly running a false defence and the conduct of a litigant's lawyers in pursuing arguments based upon evidence that was open to be accepted by the trier of fact (in this case, the jury). There is nothing in the material before us that suggests that Bauer's solicitors or counsel were aware of Bauer's improper purpose in the publication of the articles. Those acting for Bauer were bound to advance such arguments as were reasonably open to be accepted on the evidence, and no more. There is nothing in the material that suggests to us that Bauer's trial counsel or solicitors took some improper or unjustifiable step or approach (or were not acting bona fide) when they pursued the justification defences that they ran at trial.
104 Having heard all the evidence, the judge concluded that Bauer knowingly published false imputations about the plaintiff for its own commercial purposes. That conclusion is not challenged by Bauer in this appeal. The fact that the judge came to that conclusion at trial's end, however, did not require Bauer's solicitors and trial counsel to come to the same view. They were not constrained from coming to the view that the evidence of Ms Overington and Ms Nementzik was open to be accepted by the jury, and that accordingly Bauer's arguments in support of its defences were open to be accepted.
105 Moreover, additional care needs to be taken in this area to ensure that findings of impropriety are not based upon hindsight analyses. Whether a particular step in a proceeding was improper or unjustifiable or lacking in bona fides falls to be determined at the time the step is taken, rather than by reference to whether the jury did or did not 'comprehensively reject'[53] the losing party's case. In our view, the judge was wrong to criticise Bauer's pursuit of the amended truth simpliciter defences on the basis that, by the time of the amendment, it must have been apparent that the plaintiff was not a serial liar. The defence that was actually run at trial was more subtle than the justification of a bald assertion that the plaintiff was a serial liar.
106 The judge's conclusion that the pursuit of the justification defence aggravated the plaintiff's damages contains within it a finding that what was done by Bauer's solicitors and trial counsel was improper. To the extent that the judge accepted the plaintiff's submissions that it was improper for Bauer's counsel to advance the arguments they made at trial concerning justification, we disagree. While we would uphold the judge's conclusion that Bauer's pursuit of a justification defence, with its state of knowledge and purpose, was improper, unjustifiable and lacking in bona fides, we see no impropriety in its counsel doing their best to advance arguments that, on the evidence called at trial, were capable of being accepted by the jury. In this regard, it is of significance that when the judge permitted the final version of the justification defence to be pleaded,[54] the judge was of the view that it could not be said that the defence was 'foredoomed to fail'.[55]
107 Having reviewed the submissions made by Bauer's counsel at trial, we see no basis for the conclusion that there was any impropriety in pursuing the defence of justification that was advanced at trial, or putting the argument made in support of that defence. The argument was a limited one, and sought to answer the plaintiff's case with contentions that might have been accepted by the jury upon a consideration of the whole of the evidence. To the extent that the judge held otherwise, grounds 1 and 2(a), (c) and (d) must be upheld. As we have already observed, however, Bauer's pursuit of justification defences from the outset of the proceeding, with its state of knowledge and purpose (knowingly publishing false defamatory imputations for its own commercial purpose), was improper. That aspect of Bauer's pursuit of the defence of justification was (and remains) an appropriate basis for an award of aggravated damages.
108 The judge concluded that Bauer's pursuit of the defence of triviality was improper, unjustifiable and not bona fide because 'no responsible analysis could have resulted in advice to the effect that a defence of triviality might lie with respect to any of the articles'.[56] In contending that the judge erred on this issue, Bauer observed that the defence of triviality assumes that the words are defamatory, but directs attention to the degree of likely harm. This, it was submitted, was a 'quintessential jury issue'.
109 Bauer then attacked the judge's finding on two grounds: first, by contending that the judge's conclusion was not supported by sufficient reasons; and second, by reference to the argument made by its trial counsel in final address. In final address, senior counsel for Bauer submitted that the plaintiff was unlikely to sustain any harm because of the nature of the publications containing the articles, and because they were 'light entertainment' pieces. Counsel then submitted:
We say people don't take these things seriously and that your common experience, we suggest, must tell you that. We also say one has to look at what it is that are said to be the falsities that Ms Wilson has told. Here is a story that is suggesting that a Hollywood actress has claimed to be younger than she is. We think most people would think, 'well, don't they all do that?' Why would you think the less of Ms Wilson for claiming to be younger than she is? ...
110 Bauer's triviality defence might well have been thought by the judge to be weak and not very persuasive. We think, however, that his conclusion that the pursuit of it, by Bauer's solicitors and trial counsel, was unjustifiable, improper or lacked bona fides was erroneous. In our view, it was open to put to the jury that the various magazines or online publications in which the articles were published were not of a serious nature. This was a matter of argument on a topic about which reasonable minds might differ. Moreover, we are also of the view that the submissions made by Bauer's counsel in pursuit of the triviality defence were open to be put, notwithstanding Ms Overington's acceptance in cross-examination that the Women's Weekly was a 'serious journal'.
111 To the extent that the plaintiff submitted that the pursuit of justification and triviality defences at the same time was improper because those two defences could not stand together (it being suggested that it could never be trivial to publish of a person that he or she was a serial liar), we reject that submission. The pursuit of alternative defences at trial, while perhaps unwise in some circumstances, could not (without more) lead to a conclusion that a party's lawyers have behaved improperly or conducted a case (defence) that lacked bona fides or was unjustifiable.
112 In our view, there is also force in Bauer's submissions that the judge's conclusion about the triviality defence was not supported by sufficient reasons. The judge's conclusion about the triviality defence does not have attached to it any analysis of the limited way in which that defence was actually taken at trial. While ground 5 (inadequate reasons) could be upheld to this extent, it is not necessary to do so. This is because, having reviewed Bauer's conduct and pursuit of the triviality defence at trial, we have concluded that the judge erred in finding the pursuit of the triviality defence to be a basis for an award of aggravated damages. To that extent, grounds 1 and 2(b) and (d) must be upheld. We do not think that Bauer's pursuit of the triviality defence justified an award of aggravated damages.
113 In ground 1, Bauer complains that the judge found that its conduct in making submissions as to meaning was unjustified and lacking bona fides. Reference is made to Reasons [350], [379] and [385(b)].
114 In Reasons [350] and [379], there is no reference to Bauer's submissions about meaning. In Reasons [385(b)], the judge noted that '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'. This appears to be the only critical statement made by the judge about Bauer's position on, or submissions about, the meaning of the articles.
115 Nowhere in his Honour's reasons is there an express statement that there was any impropriety in Bauer pursuing its arguments about meaning. We do not read the judge's reasons for judgment as containing any assertion that the plaintiff was entitled to aggravated damages on the basis of any submission made about meaning. Moreover, we do not see anything in the judgment that suggests that the plaintiff's damages were aggravated or increased by any submissions made by Bauer about the meaning of the articles. For completeness, we should say that nothing in Bauer's submissions at trial about the mere meaning of the articles could have warranted an award of aggravated damages.
116 To the extent that grounds 1 and 2(d) complain that the judge awarded aggravated damages because of the arguments run by Bauer about the meaning of the articles, we would not uphold those grounds because it does not appear to us that the judge awarded aggravated damages on any such basis.
Bauer's motive to ensure the plaintiff was 'worried all the way to verdict'
117 As part of its submissions about the judge's findings as to the impropriety of pursuing its defences at trial, Bauer submitted that the judge's conclusion that Bauer's motive 'was to ensure that the plaintiff was worried all the way to verdict by the possibility of an adverse outcome'[57] was not supported by any evidence called at trial. This submission may be accepted. It is true that there was no actual evidence of Bauer's motive for defending the plaintiff's proceeding, having knowingly published false defamatory imputations as part of a campaign to 'take down' the plaintiff.
118 As was submitted by the plaintiff, however, the judge's finding of a motive to 'worry the plaintiff all the way to verdict' was not material to his ultimate findings on the issue of aggravated damages. The judge's finding of motive formed no part of the bases upon which he awarded aggravated damages. Moreover, we think that the impropriety of pursuing defences, having knowingly published false defamatory material as part of a campaign to 'take down' the plaintiff, was not made more serious by a conclusion that the defences were improperly pursued for the motive of ensuring that the plaintiff was worried all the way to verdict.
120 Bauer submitted that the judge was wrong to place any reliance upon the jury's verdict. The issue of whether there was any aggravation caused by Bauer's failure to apologise (like any other issue of alleged aggravation) fell to be determined by reference to what was proper, justifiable and bona fide at the time that the conduct sought to be impugned was committed. Additionally, Bauer submitted that if it was accepted that its defences were justified and bona fide, then the finding that the failure to apologise was not bona fide could not stand.
121 The defendant's submission that the relevant conduct fell to be judged at the time of its occurrence must be accepted. The mere fact that the jury verdict found for the plaintiff (comprehensively or otherwise) could not determine whether particular conduct was or was not justifiable at the time of its occurrence.
122 The question of whether Bauer's failure to apologise should found an award of aggravated damages is, however, not determined merely by reference to the way in which Bauer conducted its defences. As we have already said, the justifiability of a particular defence falls to be considered by reference, first to the circumstances of publication (including Bauer's knowledge of the falsity of the imputations conveyed, and its motive for publication), and second to the conduct of the trial (which includes whether Bauer's solicitors and counsel had a proper basis for particular submissions).
123 In the present case the lack of bona fides in Bauer failing to apologise and correct the false imputations conveyed by the articles falls to be determined by reference to the fact that Bauer knowingly published the false and defamatory imputations so as to maximise its commercial opportunities. By definition, after publishing in such circumstances, Bauer's continued failure to apologise and correct the record was not justifiable or bona fide. The failure to apologise at trial did not provide any additional basis upon which an award of aggravated damages might be made. It was the failure to apologise from the outset, having published with the knowledge and motive to which we have just referred, that was improper and justified an award of aggravated damages.
124 We would uphold ground 2(f) only to the extent that the judge concluded that the trial provided an additional and separate basis upon which to found an award of aggravated damages in respect of Bauer's failure to apologise. We would not, however, interfere with the judge's finding that the failure to apologise from the outset was a matter entitling the plaintiff to aggravated damages.[60]
125 In grounds 2(g) and (h), Bauer asserts that the judge erred in finding that Bauer's opening address was relevant to the aggravation of harm, and that Bauer's closing address warranted an award of aggravated damages in that it unreasonably caused increased subjective harm to the plaintiff. In support of these grounds, Bauer relied upon what the judge said at Reasons [352], [353] and [359].
126 The short answer to these grounds is that the judge did not make any award of aggravated damages based upon Bauer's opening or closing address. Specifically, his Honour made no criticism of Bauer's conduct in relation to its opening address at Reasons [352]-[353], or indeed in any other part of his reasons. At [359], the judge referred to Bauer's closing address and to the degree of vigour with which Bauer's counsel put Bauer's defence, before saying:
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.
127 However, at Reasons [385], the judge said that Bauer was entitled to defend the plaintiff's claim with vigour. This conclusion is not easily reconciled with what his Honour said at [359]. That said, in setting out the matters that he regarded as aggravating, the judge did not include either Bauer's opening address or its closing address. With reference to Bauer's closing address, the judge noted Bauer's attack on the plaintiff's credit, but then concluded that this attack was not unjustifiable or lacking in bona fides.[61]
128 There being no finding that Bauer's opening or closing address entitled the plaintiff to an award of aggravated damages, grounds 2(g) and 2(h) must be rejected.
129 In ground 3, Bauer contends that the judge 'erred in finding that [Bauer's] general counsel made a denial in answer to an interrogatory [interrogatory 13] that was knowingly false'. At [360] of his reasons, the judge concluded that, in its answers to interrogatories, Bauer, by its general counsel, Mr Goss, falsely denied that the articles were published to coincide with Pitch Perfect 2. The judge then said that he inferred that Mr Goss's denial was knowingly false.
130 It is not entirely clear from the judge's reasons whether his Honour concluded that Mr Goss knowingly swore a false answer or that Mr Goss had honestly sworn an answer that Bauer (and in particular those involved in the decision to publish) knew to be false. The argument in this Court proceeded on the basis that the judge found Mr Goss to have knowingly sworn the false answer. We are content to accept that approach.
131 Mr Goss, as an officer[62] of Bauer, swore Bauer's answers to interrogatories from knowledge, information and belief. In swearing Bauer's answers to interrogatories, Mr Goss was required to make all due and proper enquiries of Bauer's servants and agents. There is nothing in the evidence which suggests that Mr Goss knowingly swore a false answer to interrogatories.
132 Bauer's answer to interrogatory 13 was false. The answer cannot stand with the judge's conclusion about Bauer's knowledge and motive for publishing the articles. Those employees of Bauer who were involved in the decision to publish the articles would have known that the answer Mr Goss gave to interrogatory 13 was false. However, for present purposes, little further needs to be said on this topic. This is because, notwithstanding what the judge said at Reasons [360], at [386] the judge said that he was not persuaded that Bauer's answers to interrogatories amounted to aggravating conduct. While this conclusion does not lie easily with what his Honour said at [360], both counsel for the plaintiff and Bauer agreed in argument on the appeal that his Honour's reference to Bauer's answers to interrogatories at [386] could only be a reference to Bauer's false answer to interrogatory 13.
133 It is plain from what his Honour said at Reasons [386] that whatever finding the judge made about the falsity of Bauer's answer to interrogatory 13, it did not affect the ultimate award of damages. Because one reading of what his Honour said at Reasons [360] suggests that his Honour found that Mr Goss had perjured himself in answering interrogatory 13, we should say that any such finding did not have any evidentiary basis for it. To the extent that the judge made such a finding, we would set it aside as lacking any relevant evidentiary foundation.
134 We would thus uphold ground 3 for the limited purpose of setting aside any finding made by the judge that Mr Goss made a denial in an answer to an interrogatory that he knew to be false. The upholding of this ground, however, is not capable of affecting the judge's assessment of the plaintiff's damages.
Bauer's adoption of an unjustified approach to the disclosure of confidential information
135 In ground 4, Bauer contends that the judge erred in finding that Bauer 'adopted an unjustified approach to the disclosure of confidential information regarding the remuneration that [Ms Wilson] received for films that was unreasonable and lacking in bona fides'.
136 The plaintiff's claim for economic loss involved the consideration of documents that disclosed confidential information regarding the remuneration that the plaintiff received for various films. After hearing argument, in Ruling No 5, the judge determined the approach that would be taken at trial in relation to this confidential information. Ruling No 5 permitted the various confidential amounts to be referred to in open court, with publication of those amounts being prohibited under the provisions of the Open Courts Act 2013. In making Ruling No 5, the judge rejected a 'referencing process' that was suggested by the plaintiff.[63]
137 Having made a ruling that permitted Bauer's counsel to refer to confidential figures during the course of the trial, with the suppression of the publication of those figures, the judge concluded that Bauer's conduct in taking the position it did with respect to the plaintiff's confidential figures lacked bona fides.[64] The judge concluded that Bauer's cross-examination on economic loss issues would have been 'just as effective if a referencing process was used'.[65]
138 With respect, we think the judge's approach involves an impermissible hindsight analysis. We see no basis for which any finding of impropriety could be made in relation to Bauer's submissions about the handling of confidential figures. A conclusion formed later that Bauer's cross-examination would have been just as effective if a referencing system was used cannot, without more, form the basis of a finding of impropriety by Bauer or its lawyers.
140 Bauer has persuaded us that the findings made by the judge about the pursuit of the triviality defence and the adoption of an unjustified approach to the disclosure of confidential information must be set aside. In addition, we are persuaded that the judge's findings about the conduct of the justification defence at trial by trial counsel (although not the conduct of that defence from the outset), must be set aside.
141 A question arises as to whether the setting aside of any of the judge's findings in relation to aggravated damages requires the reassessment of the plaintiff's damages for non-economic loss. The judge made a number of findings (that were either unchallenged or not shown to be wrong) that Bauer's conduct seriously aggravated the plaintiff's injury. The question becomes whether the setting aside of a limited number of the judge's findings requires the reassessment of damages because the findings were material to the assessment and/or likely resulted in a larger award than might otherwise have been the case.
142 In our view the setting aside of the judge's findings about the pursuit of the triviality defence and Bauer's approach to the confidential figures, requires the plaintiff's damages for non-economic loss to be set aside and reassessed. The judge accepted that the 'improper' pursuit of the triviality defence and the unjustified approach to the confidential figures were matters that caused significant aggravation of the plaintiff's hurt:
(1) With respect to the triviality defence, the judge accepted the plaintiff's evidence that the conduct of that defence had caused her to feel 'kind of like they're getting the knife and just sticking it further into me', 'just devastating', 'insulting' and it being 'almost like they laugh it off'.[66]
(2) In relation to the 'unjustified approach to the disclosure of confidential information', the judge accepted the plaintiff's evidence that she interpreted that conduct as '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'.[67]
143 While the aggravation caused by the disclosure of the figures may have been relatively short-lived (during the trial), the aggravation caused by the pursuit of the triviality defence occurred from the time it was first pleaded - making it a matter of some material significance.
144 Consistently with earlier authorities,[68] the judge did not break down his award of damages for non-economic loss into amounts for pure compensatory damages and aggravated compensatory damages. Much less did he break down his award of aggravated damages by reference to particular aspects of Bauer's conduct. Nevertheless, the judge's acceptance of the plaintiff's evidence about the increased hurt caused by the running of the triviality defence and the approach taken to confidential figures leads us to conclude that the judge most likely awarded a greater sum for aggravated damages as a result of these matters, than he would have awarded had he concluded there was no impropriety in this conduct.
145 It follows that the setting aside of the judge's findings in relation to the triviality defence and the adoption of an unjustified approach to the disclosure of confidential information requires the plaintiff's damages for non-economic loss to be reassessed.
146 Both parties submitted that in the event the plaintiff succeeded with respect to any of her grounds of appeal and a reassessment of her damages was required, then rather than remitting the proceeding to the Trial Division, this Court should conduct the necessary reassessment.
147 In argument, Bauer conceded that there were a number of (now) unchallenged bases upon which the judge awarded aggravated damages. No argument was advanced by Bauer as to why this Court would not award aggravated damages on those bases upon which Bauer made no challenge before us. As mentioned, those bases were:
(1) Bauer's failure to properly investigate defamatory allegations made by a source that required both anonymity and payment.[69]
(2) Publishing imputations Bauer knew to be false.[70]
(3) Publishing false imputations to maximise Bauer's commercial opportunities and as part of a campaign to 'take down' the plaintiff.[71]
(4) Failing to call as a witness anyone involved in the editorial process to explain the decision made to publish the Woman's Day print article.[72]
(5) Being actuated by malice in the publication of the first Women's Weekly online article.[73]
(6) The sending of a series of insulting and harassing messages to the plaintiff's family.[74]
148 While these matters constitute bases for awarding the plaintiff aggravated damages, they are not the only relevant matters of aggravation. The pursuit of justification defences and the failure to apologise and correct from the time of publication were improper, in circumstances where Bauer knew the imputations were false but published anyway in order to maximise its commercial opportunities and as part of a campaign to take down the plaintiff. We will perform the reassessment of the plaintiff's damages having regard to these matters of aggravation.
149 We should observe for the sake of completeness that the reassessment of the plaintiff's non-economic loss damages will be made absent any finding that Mr Goss swore a knowingly false answer to interrogatories,[75] or that there was an excess of vigour with which Bauer's senior counsel put Bauer's defences.[76] Before performing this assessment, however, it is necessary to resolve the construction issue between the parties in relation to s 35 of the Act.
150 We turn now to the construction of s 35 of the Act.
151 The Act was introduced in Victoria as part of a uniform national scheme of defamation legislation throughout Australia.[77]
152 The purpose of the Act is directed at promoting legislative uniformity:
1 Purpose
The purpose of this Act is to enact in Victoria provisions to promote uniform laws of defamation in Australia.
153 The objects of the Act reflect its purpose and extend, relevantly, to ensuring that those whose reputation is harmed receive effective and fair remedies:
3 Objects of Act
The objects of this Act are -
(a) to enact provisions to promote uniform laws of defamation in Australia; and
(b) to ensure that the law of defamation does not place unreasonable limits on freedom of expression and, in particular, on the publication and discussion of matters of public interest and importance; and
(c) to provide effective and fair remedies for persons whose reputations are harmed by the publication of defamatory matter; and
(d) to promote speedy and non-litigious methods of resolving disputes about the publication of defamatory matter.
154 Section 6(2) provides that the Act does not affect the operation of the general law of defamation except to the extent that the Act otherwise provides expressly or by necessary implication. It is important in approaching the construction of s 35 to be aware that common law principles of defamation are unaffected unless the Act expressly or by necessary implication provides otherwise.
155 The remedies available under the Act are identified in div 3 of pt 4. Of most relevance are s 34 and s 35. Section 34 is directed at ensuring there is an appropriate relationship between the harm a plaintiff sustains and the damages awarded. It provides:
34 Damages to bear rational relationship to harm
In determining the amount of damages to be awarded in any defamation proceedings, the court is to ensure that there is an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded.
156 The Act does not adopt the common law distinction between general damages and special damages but distinguishes instead between damages for non-economic loss and damages for economic loss. This also is relevant when examining the operation of s 35.
157 Section 35(1) imposes a maximum amount on the damages that can be awarded for non-economic loss in a defamation proceeding. Section 35(2) permits the maximum specified for non-economic loss to be exceeded where an award of aggravated damages is warranted. Section 35 relevantly provides:
35 Damages for non-economic loss limited
(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.
158 At the time the judge made his award of damages, s 35(1) of the Act operated to limit the maximum amount of damages for non-economic loss that could be awarded in defamation proceedings to the sum of $389,500.[78]
159 Section 37 of the Act abolishes exemplary or punitive damages:
37 Exemplary or punitive damages cannot be awarded
A plaintiff cannot be awarded exemplary or punitive damages for defamation.
160 The Act guides against a plaintiff commencing multiple proceedings about the same defamatory matter. Section 38 provides for the mitigation of damages in various circumstances including where the plaintiff has already recovered damages for publications of defamatory matter with the same meaning or effect or where the plaintiff has brought separate proceedings in relation to such publications:[79]
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 -
...
(c) the plaintiff has already recovered damages for defamation in relation to any other publication of matter having the same meaning or effect as the defamatory matter; or
(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; or
(e) the plaintiff has received or agreed to receive compensation for defamation in relation to any other publication of matter having the same meaning or effect as the defamatory matter.
161 Where a plaintiff has already brought proceedings for damages in any jurisdiction, s 23 imposes a requirement for leave before further proceedings can be brought against the same defendant in relation to the same publication, or other publication, of the same or like defamatory matter:
If a person has brought defamation proceedings for damages (whether in this jurisdiction or elsewhere) against any person in relation to the publication of any matter, the person cannot bring further defamation proceedings for damages against the same defendant in relation to the same or any other publication of the same or like matter, except with the leave of the court in which the further proceedings are to be brought.
162 We also note that s 8 of the Act provides that the publication of defamatory matter gives rise to a single cause of action for a person even if the publication carries more than one defamatory imputation about that person. If more than one cause of action is made out, the judge may assess the damages in a single sum.[80]
163 The defamatory matter here was alleged to be published in 'Victoria and throughout Australia'.[81] This Court was urged by Bauer to treat the Act as the substantive law applicable to the proceeding with the consequence that, in the construction of the Act, reliance upon any 'explanatory memoranda or other documents laid before or otherwise presented to any House of the Parliament', including second reading speeches, pursuant to s 35(b)(iii) of the Interpretation of Legislation Act 1984 (Vic), should be confined to those laid before or presented to the Parliament of Victoria.[82] This issue is discussed below.[83]
164 It has already been observed[84] that the Act effects a bifurcation in defamation proceedings; it is the judge who has the responsibility to determine the amount of damages (if any) that should be awarded to a plaintiff if the jury has found that a defendant has published defamatory matter about the plaintiff and that no defence has been established.[85] It is also for the judge to determine all unresolved issues of fact and law relating to the determination of the amount of damages.[86]
The judge's construction of s 35
165 The judge approached the question of the construction of s 35 of the Act by first stating some well-established principles relevant to the assessment of general damages in a defamation proceeding, the purpose of general damages being 'to provide consolation for hurt to feelings, compensation for damage to reputation, and vindication of the plaintiff's reputation'.[87] Injury to feelings may constitute a significant part of the harm sustained by a plaintiff and include the hurt, anxiety, loss of self-esteem, sense of indignity and the sense of outrage felt by a plaintiff.[88] The extent of publication and the seriousness of the defamatory sting are relevant considerations.[89] The judge emphasised the need for the sum awarded to vindicate the plaintiff's reputation given the high value which the law places upon reputation.[90] The award must convince a bystander that the imputation is hollow.[91]
166 His Honour noted that, traditionally, it was accepted that the assessment of general damages is imprecise and 'damages are "at large" in the sense that they cannot be arrived at through calculation or the application of a formula',[92] observing that 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 ... [which 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.[93]
In Palmer Bruyn & Parker Pty Ltd v Parsons, Gummow J explained:
The expression 'grapevine effect' has been used as a metaphor to help explain the basis on which general damages may be recovered in defamation actions; the idea sought to be conveyed by the metaphor was expressed by Lord Atkin in Ley v Hamilton as follows:
It is precisely because the 'real' damage cannot be ascertained and established that the damages are at large. It is impossible to track the scandal, to know what quarters the poison may reach: it is impossible to weigh at all closely the compensation which will recompense a man or a woman for the insult offered or the pain of a false accusation.[94]
168 The plaintiff here relied upon the alleged spread of the defamatory sting of the articles to the United States on the basis of the grapevine effect.[95] His Honour emphasised that where the grapevine effect is relied upon, 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"'.[96]
169 The judge noted that aggravated damages may be awarded where the defendant's conduct has increased the hurt suffered by a plaintiff, for example, where a defendant has acted improperly, unjustifiably or in a manner that is lacking in bona fides. Aggravated damages are directed at providing compensation for the increased harm. Relevantly, his Honour noted that aggravated damages are a species of damages for non-economic loss:
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. 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. 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.[97]
170 The judge remarked that, conventionally, there is no separation in an award of general damages between the sum awarded for pure compensatory damages and the sum awarded for aggravated compensatory damages.[98]
172 The judge recorded the plaintiff's submission that the specification of the 'maximum damages amount' or statutory 'cap' operates as a cut-off whereby, if an award of aggravated damages is not warranted and damages for non-economic loss are assessed at an amount that is above the cap, damages are awarded only to the extent of the cap.[100] As mentioned above,[101] his Honour accepted the plaintiff's submission that s 35 imposes no constraint on a plaintiff's entitlement to damages for non-economic loss if the publisher of the defamatory matter has engaged in conduct warranting an award of aggravated damages.[102]
173 The judge recorded Bauer's opposing submission that the language of s 35 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 maximum prescribed in s 35(1).[103] Bauer had submitted that the introduction of the statutory cap was a key pillar of the national uniform defamation legislation, intended to redress a perceived imbalance between awards of damages in defamation proceedings and awards for personal injuries. If the cap could be avoided whenever a court decides to award aggravated damages, Bauer submitted this would effectively undermine the utility of the cap and frustrate the reforms.
174 Before his Honour (and on the appeal) Bauer relied on the second reading speech for the Defamation Bill in the Victorian Legislative Assembly[104] in which the then Attorney-General appeared to suggest that a judge would have the power to order damages above the statutory cap only in respect of aggravated damages. The Attorney-General said:
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 warrant such an award. Courts will continue to be able to award full recovery of all economic loss.[105]
175 The judge accepted that the legislative history of s 35 followed and reflected two trends. The first was the concern with disparities between the level of damages for non-economic loss in defamation and general damages in personal injuries cases; it was apprehended that the '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'.[106] The second trend was the economic need for the restriction of damages for non-economic loss in personal injury cases that led to the imposition of statutory caps under s 28G of the Wrongs Act 1958 as part of the tort law reforms.[107]
176 In rejecting Bauer's submissions, the judge held the construction of s 35 to be 'unambiguous' on its face.[108] His Honour observed that the High Court had stated that the task of statutory construction must begin with a consideration of the statutory text and '[s]o must the task of statutory construction end'.[109] A literal reading of the words of s 35 supports the view that when a court is satisfied that an award of aggravated damages is warranted it is free to assess damages for non-economic loss beyond the statutory cap, not only in respect of the component of the award that represents aggravated damages but in awarding damages for the whole of the non-economic loss.
177 His Honour noted that while legislative history and extrinsic materials may assist in fixing the meaning of the statutory text, the High Court has emphasised that these sources 'cannot displace the meaning of the statutory text'.[110] While the second-reading speech in the Victorian Parliament may have accurately described the legislative history, the 'observations of the Minister on the second reading of the Bill appear at odds with the statutory text'.[111] The judge said:
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.[112]
178 In other words, the statutory cap has no operation if, and only if, the court concludes that an award of aggravated damages is warranted:
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.
To so construe the statutory language does not strain it. Rather, it is to accord to it its plain or natural meaning. I reject the defendant's contention that this construction of s 35(2) would inappropriately undermine the utility of the cap. Clearly, from the context of the whole Act, the important relevant legislative command that addresses the mischief lawmakers had identified is found in s 34. The obligation to ensure that damages awards bear an appropriate and rational relationship to the harm sustained by a plaintiff is there proscribed.
The statutory language refers to aggravation only in the context of the condition that, if satisfied, disentitles the defendant from the benefit of the statutory cap. A court may exceed the cap 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.[113]
179 His Honour emphasised that whether aggravated damages are warranted is a matter within the control of the defendant.
180 Ground 6 specifically challenges the judge's conclusion that, here, the plaintiff's entitlement to general damages for non-economic loss is freed from the statutory cap:
Contrary to the defendants' contention, the plaintiff's entitlement to general damages for non-economic loss is freed from the statutory cap by the conduct of the defendant. While the relationship between an award of damages and the harm suffered by the plaintiff remains proscribed by s 34, the statutory cap serves the function of restricting the plaintiff's entitlement to the full measure of proper compensatory damages in certain cases. It is if, and only if, the circumstances of publication warrant an award of aggravated damages that the cap is not applicable and in such circumstances the defendant's conduct must have been malevolent, spiteful, lacking in bona fides, unjustifiable, or improper. The protection afforded to the defendant by the statutory cap, which can be properly understood as a restriction of a plaintiff's true entitlement to compensation for non-economic loss may be lost only in circumstances under the control or responsibility of the defendant.[114]
181 On the appeal the focus of the submissions was on the following three inter-related and overlapping issues:
(1) Does s 35(1) fix the top end of a 'range' of damages that may be awarded for non-economic loss?
(2) Does s 35(2) require that aggravated damages be separately awarded?
(3) Should the plain words of s 35 be displaced by other considerations?
Does s 35(1) fix the top end of a range?
182 On the appeal, Bauer submitted that the 'maximum damages amount' in s 35(1) fixes the top end of the 'range' of damages that may be awarded for non-economic loss in defamation proceedings rather than operating as a cut-off. It accepted that the judge was correct to identify the disparity between awards for damages for non-economic loss in defamation proceedings and personal injury cases as the mischief towards which the suite of provisions that regulate the award of damages in defamation proceedings was directed.[115] This was confirmed by the report of the Standing Council of Attorneys-General Working Group of State and Territory Officers which identified one of the key principles to be that:
The emphasis of defamation law should be on the speedy vindication of reputation and general damages for non-economic loss should be no greater than general damages available in personal injury actions.[116]
The damages which may be awarded for non-economic loss in defamation proceedings should be proportional to damages awarded for non-economic loss in other personal injury proceedings.[117]
184 Bauer submitted that the leading or primary provision is s 34 which, as set out above,[118] directs that there be an appropriate and rational relationship between the harm sustained by the plaintiff and the damages awarded. Initially Bauer submitted that the combination of s 34 and s 35(1) has the effect that the maximum damages amount fixes the upper limit of a range reflecting the most serious cases. Less serious examples of defamation take their place along the range. Bauer also pointed to the objective in s 3(c) of the Act of providing for effective and 'fair' remedies as supporting the understanding of the operation of a 'range' of awards, systematically reflecting the degree of harm suffered.
185 Understood in this way, the combination of s 34 and s 35(1) mark out a scale. The specification of a maximum damages amount in s 35(1) operates to ensure consistency of awards of damages in defamation proceedings across jurisdictions, with the maximum damages amount marking out the end of a scale rather than a cut-off point.
186 The objective of ensuring that awards for non-economic loss in defamation proceedings are consistent across jurisdictions was expressly adverted to by the then Victorian Attorney-General in the second reading speech when he said:
The value of the current cap is based on a general survey on the range of damages awarded in jurisdictions and is designed to provide an approximate median value for consistency across jurisdictions.[119]
187 Bauer submitted that it is a necessary element of the uniformity sought to be achieved by the Defamation Acts of the various jurisdictions throughout Australia that the outcomes will be forum neutral. Although not all the provisions are identical in each of the Defamation Acts throughout Australia, the substantive provisions are uniform and there is a statutory choice of law rule in s 11 of the Act which commands that the substantive law of the jurisdiction with the closest connection to the harm occasioned by a defamatory publication must be applied.[120] Uniformity of outcome is also sought to be achieved by having judges and not juries assess damages.[121] The object of consistency for awards of damages across jurisdictions means that damages are no longer truly 'at large' because s 34 and s 35(1) jointly create a scale or range applicable throughout Australia.
188 Bauer ultimately simplified its submission from the proposition that the maximum damages amount fixes the upper-limit of the range to a submission that the essential feature of the scale generated by s 34 and s 35(1) is no more than that the maximum damages amount is an indicator of what is appropriate and rational for a serious example of defamation. In response to the plaintiff's submission that for any example of defamation, no matter how serious, it is always theoretically possible to identify another worse case, Bauer submitted, relying upon R v Kilic,[122] that a court can recognise a serious example of defamation and characterise it as towards the upper end of the scale fixed by the maximum damages amount without being obliged to consider whether there might be another more grave example of defamation, a 'worse case'.[123] Bauer accepted that the maximum damages amount is not reserved for the most serious case imaginable and that it would be wrong to construe s 34 and s 35(1) as having that consequence.
189 Bauer contrasted the operation of s 35(1) with other Acts that create a simple cut-off in the manner of s 28G of the Wrongs Act or s 340 of the Workplace Injury Rehabilitation and Compensation Act 2013. These relevantly provide, respectively:
28G Fixing damages for non-economic loss
The maximum amount of damages that may be awarded to a claimant for non-economic loss is $577,050.[124]
340 Proceedings - limitations on awards
A court must not, in proceedings in accordance with this Division, award to a worker in respect of an injury -
(a) pecuniary loss damages -
(i) if the total pecuniary loss damages assessed, before the reduction (if any) under section 26(1) of the Wrongs Act 1958 and before the reduction (if any) under section 343(1), is less than $56,650 or that amount as varied in accordance with Division 1 of Part 13 as at the date of the award; or
(ii) in excess of $1,275,570 or that amount as varied in accordance with Division 1 of Part 13 as at the date of the award; or
(b) damages for pain and suffering -
(i) if the total damages for pain and suffering assessed, before the reduction (if any) under section 26(1) of the Wrongs Act 1958 and before the reduction (if any) under section 343(1), is less than $54,730 or that amount as varied in accordance with Division 1 of Part 13 as at the date of the award; or
(ii) in excess of $555,350 or that amount as varied in accordance with Division 1 of Part 13 as at the date of the award; ...
190 Neither the Wrongs Act nor the Workplace Injury Rehabilitation and Compensation Act contains a provision corresponding to s 34 of the Act, which, as mentioned, Bauer submitted is relevantly the leading or primary section governing the award of damages under the Act.[125] The absence of an analogous section to s 34, which requires a relationship of proportionality between the damages awarded and the harm suffered, makes it easier to infer that the statutory cap under the Wrongs Act and the Workplace Injury Rehabilitation and Compensation Act is simply a cut-off.
191 Conflicting approaches have been adopted with respect to the question of whether s 35(1) creates the outer limit of a range or operates as a cut-off. There have been four first-instance decisions of the Supreme Court of New South Wales where the judges have treated s 35(1) as establishing the upper-limit of a range.
192 In Attrill v Christie,[126] Bell J accepted that the defamation was serious because the plaintiff had been accused of criminal conduct deserving of imprisonment.[127] It was necessary for vindication of the plaintiff's reputation to be given central importance. The claim for aggravated damages was abandoned at the hearing. The defendant did not rely on any defence and the hearing proceeded as an assessment of damages. Her Honour relied upon the judgment of Hayne J in Rogers v Nationwide News Pty Ltd,[128] by reference to the relationship between s 46A(1) and s 46A(2) of the previous Act, the Defamation Act 1974 ('the 1974 NSW Act') to conclude that the maximum damages amount specified in s 35(1) fixes the upper limit of damages for non-economic loss (in cases which do not warrant an award of aggravated damages) and awards of damages for non-economic loss are to find their place within that range.
193 Section 46A(1) of the 1974 NSW Act was in the same terms as s 34 of the Act. Section 46A(2) differed from s 35(1) in that it obliged a court to take into account 'the general range' of damages awarded in personal injury cases for non-economic loss:
(1) In determining the amount of damages to be awarded in any proceedings for defamation, the court is to ensure that there is an appropriate and rational relationship between the relevant harm and the amount of damages awarded.
(2) In determining the amount of damages for non-economic loss to be awarded in any proceedings for defamation, the court is to take into consideration the general range of damages for non-economic loss in personal injury awards in the State (including awards made under, or in accordance with, any statute regulating the award of any such damages).[129]
194 Her Honour observed that the plaintiff had submitted that s 34 operated independently of s 35(1); that is, s 34 was directed at ensuring that a court assessed damages that bore an appropriate and rational relationship to the harm suffered without regard to the maximum damages amount specified in s 35(1). It was only after that assessment had been made that the maximum damages amount would apply to cut off the plaintiff's entitlement:
In [counsel for the plaintiff's] submission the maximum damages amount specified in s 35(1) of the Act serves to cap awards for non-economic loss but does not otherwise inform the determination of the appropriate sum. In his submission, the Court fixes a sum by reference to the purposes of damages ... ensuring the appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded, but without regard to the maximum damages amount. In his submission, if it had been intended that the maximum damages amount fix the upper limit of a range it is to be expected that it would have been stated to represent a most extreme case or the like.
In [counsel for the plaintiff's] submission the seriousness of this defamation was deserving of an award of general damages in an amount of or above the maximum damages amount. He sought to illustrate this by reference to a number of cases in which very substantial awards had been made. ...[130]
195 Her Honour rejected the plaintiff's approach, favouring instead the view that the maximum damages amount fixes the presumptive outer limit of an award of damages for non-economic loss with cases finding their place within that range depending on their level of seriousness. Her Honour expressly disavowed, as did Bauer, that the outer limit would be reserved for the worst case imaginable:
In [counsel for the defendant's] submission there is little to be gained by considering the range of awards for non-economic loss in defamation actions prior to the Act. He submitted that the maximum damages amount is to be taken as representing the presumptive outer limit of awards for non-economic loss. His submission drew on the judgment of Hayne J (with whose judgment on the question of damages Gleeson CJ and Gummow J concurred) in Rogers v Nationwide News Pty Ltd ... dealing with the relationship between subsections (1) and (2) of s 46A of the former Act:
[76] The second effect of s 46A(2) flows from both the reference to the 'general range' of damages allowed in personal injury cases and the inclusion, within the class of personal injury cases to be considered, of cases where the damages to be allowed are regulated by statute. Treating cases where the damages allowable are capped by statute as included within the 'general range' to be considered shows that those statutory limits imposed in cases of motor or workplace accident are not to be taken as being indirectly imposed as limits on the amount to be allowed in defamation. But the reference to the general range of damages does identify the highest sums awarded for the non-economic consequences of personal injury as what might be called a presumptive outer limit to awards for defamation. So much follows from the fact that rarely, if ever, will the harm done by a defamation be greater than the most serious form of physical injury which leads to permanent and serious disabilities. And if that represents the presumptive outer limit to awards for defamation, each particular award that is made must find a place within a range that is marked out in that way.
I approach the matter on the basis that the maximum damages amount provided by s 35 is to be understood as fixing the outer limit of damages for non-economic loss (in cases which do not warrant an award of aggravated damages) and by analogy with the approach explained by Hayne J awards for non-economic loss are to find a place within a range marked out in this way. This is not to say that an award of the maximum damages amount in a case not warranting an award of aggravated damages is to be reserved for the worst defamation imaginable.[131]
197 In our view, the remarks of Hayne J in Rogers do not support the approach adopted by Bell J in Attrill. The difference in statutory language between s 46A(2) of the 1974 NSW Act and s 35(2) of the Act is striking. Section 46A(2)[135] is premised upon there being a 'range' of damages for non-economic loss in personal injury awards. This reflects an assumption that comparisons are readily made between the spectrum of personal injuries, including their disabling effects, level of seriousness, and permanence, from de minimis to total and permanent disablement. By directing that a court, when making an award for damages for non-economic loss for defamation, is to take into consideration the general range of damages for non-economic loss for personal injuries, s 46A(2) implies that there could also be a ready comparison between personal injuries and defamation and that the range of damages awards for personal injuries would create a scale for awards for defamation. As Hayne J observed, s 46A(2) rests on a presumption that the harm suffered by being defamed is almost invariably a lesser injury than a physical injury that leads to permanent and serious disabilities.
198 In those circumstances it might follow that the highest award for personal injuries forms the presumptive outer limit of what a plaintiff in a defamation can expect and each award must take its place along the range, corresponding to an award in respect of a less severe personal injury. But the requirement in s 46A(2) to take into consideration the general range of damages for non-economic loss in personal injury awards is not repeated in s 35(1). (Nor is it reflected in the objects of the Act.)[136] While the legislative history may explain that s 35 was introduced to achieve some consistency with awards for general damages in personal injury cases, s 35(1) is not founded on an understanding that there will be a correspondence between levels of seriousness of personal injuries and defamation to reflect a scale or range.
199 In Victoria Kyrou J in Cripps v Vakras[137] took a different approach to that adopted by Bell J in Attrill. He construed s 35(1) as imposing a cut-off on damages in the same way as the relevant provisions of the Wrongs Act. In examining the operation of s 35(1) Kyrou J identified as a critical question:
[W]hether the cap is a mere 'cut-off' amount which otherwise does not affect the assessment of damages, or whether it requires damages to be assessed on a notional scale, with the amount of the cap reserved for the most serious cases of defamation.[138]
200 In the absence of authority from an appellate court, Kyrou J decided the issue according to principle by first referring to the statutory caps under s 28G of the Wrongs Act and s 134AB(22) of the Accident Compensation Act 1985, which have never been interpreted as creating a range or scale, and contrasting them, alongside s 35 of the Act, with other statutory provisions, for example, s 16 of the Civil Liability Act 2002 (NSW), which make express reference to both a 'most extreme case' and percentages of severity.
In Victoria, both the Accident Compensation Act 1985 ('1985 Act') and the Wrongs Act 1958 ('1958 Act') impose statutory caps for general damages. Section 134AB(22) of the 1985 Act provides that a court must not, in proceedings in accordance with that section, award to a worker in respect of an injury pecuniary loss damages in excess of $1,275,570. Similarly, the court cannot award damages for pain and suffering in excess of $555,530. Pursuant to s 134AB(23) of the 1985 Act, a jury must not be informed of the statutory maxima specified. Under s 28G of the 1958 Act, the maximum amount of damages that may be awarded to a claimant for non-economic loss is $371,380. These provisions have never been held to impose a scaling requirement. Judges or juries decide the appropriate amount of damages and if that amount exceeds the statutory cap, the amount of the damages is reduced to the amount of the cap.
The wording of s 35(1) of the Act is similar to the wording of s 134AB(22) of the 1985 Act and s 28G of the 1958 Act. The wording of these provisions should be contrasted with s 16 of the Civil Liability Act 2002 (NSW). That section provides that no damages may be awarded for non-economic loss unless the severity of the non-economic loss is at least 15% of a 'most extreme case'. The maximum amount of damages that may be awarded for non-economic loss is $350,000, but the maximum amount is to be awarded only in a most extreme case. Where the severity of the non-economic loss is equal to or greater than 15% of the most extreme case, damages are to be determined in accordance with the table in s 16(3) of that Act.
It is clear from s 16 of the Civil Liability Act 2002 (NSW) that, where a legislature wishes to impose a statutory cap which is intended to have a scaling effect, it is able to use clear and unambiguous language to achieve this result. Section 35(1) of the Act does not use such language. This supports the proposition that the Act does not intend the statutory cap to have a scaling effect.[139]
202 His Honour noted that a successful plaintiff has a basic entitlement to damages to be compensated for loss suffered, subject only to any qualifications imposed under statute:
It is a basic tenet of our legal system that a successful plaintiff is entitled to be awarded damages in such amount as they have been able to establish in accordance with the applicable legal principles. The statutory cap qualifies this basic tenet by requiring such amount to be reduced so that it does not exceed the cap.[140]
203 His Honour considered that the basic tenet of entitlement to compensation for loss ought not be further compromised by scaling successful plaintiffs at points along a range, under the statutory cap, in the absence of express statutory exceptions. He declined to follow Attrill on the basis that the reasoning in Rogers was inapplicable:
There is nothing in the language of the Act or the extrinsic material to which the Court has been referred that supports the proposition that s 35(1) of the Act is intended to have a scaling effect. Further, there is no reason in principle to interpret s 35(1) in that manner. ... the basic tenet to which I have there referred is qualified by the statutory cap. I can see no reason why the basic tenet should be further compromised by awarding to a successful plaintiff damages in an amount that is less than the amount to which they are entitled provided that the cap is not exceeded.
The decision in Attrill was influenced by observations made by Hayne J in Rogers in relation to s 46A(2) of the Defamation Act 1974 (NSW). In my opinion, as s 46A(2) of the Defamation Act 1974 (NSW) does not have any counterpart in the Act, the reasoning in Rogers is inapplicable. Accordingly, I decline to follow Attrill.
For the above reasons, I will assess the damages to which the [plaintiffs] are entitled on the basis that the statutory cap is a mere cut-off amount.[141]
204 We consider there is much force in Kyrou J's analysis. We do not consider that the absence of a corresponding provision to s 34 in the Wrongs Act or the Accident Compensation Act makes a significant difference. The judge here accepted that s 34 has an on-going role in calculating an award of damages consistently with the construction he preferred.[142] We do accept, however, that s 134AB(22) of the Accident Compensation Act may be in a different category because s 134AB(23) provides that a jury is not to be informed of the statutory maxima and thus s 134AB(22) clearly operates as a cut-off.[143]
205 Cripps was followed in Sheales v The Age Co Pty Ltd by John Dixon J.[144] It was also followed in New South Wales by McCallum J in Carolan v Fairfax Media Publications Pty Ltd [No 6],[145] despite her Honour having previously considered the maximum damages amount in s 35(1) as fixing the upper limit of a range corresponding to 'the worst class of case, calling for an award of damages at or near the statutory cap'.[146] In Carolan her Honour noted that Kyrou J had expressly declined to follow Attrill. She considered 'it appropriate, for reasons of comity, to follow his Honour's approach' because 'the decision of Kyrou J concerns the current uniform legislation'.[147]
206 The issue was not raised for discussion in the Victorian Court of Appeal's decision of McDonald v Dods[148] which refused leave to appeal against the trial judge's award of damages of $150,000 (including aggravated damages) because the award 'fell well within the middle range for ... an award' for non-economic loss and '[g]iven the need for vindication ... [the Court considered that] his Honour's award was, if anything, light'.[149]
207 In 2017, the Full Court of the Supreme Court of South Australia, in Lesses v Maras [No 2],[150] accepted as common ground that s 33 of the Defamation Act 2005 (SA) (the equivalent of s 35(1) of the Act) does not create a range or scale. The Court said:
Section 33 prescribes the maximum amount of damages for non-economic loss that may be awarded in defamation proceedings (except when aggravated damages are warranted) at an annually prescribed amount which was $366,000 at the relevant time. It is common ground that this operates as a cap and not so as to require a court to scale the damages awarded against the maximum amount.[151]
208 In the recent case of Rayney v Western Australia [No 9][152] Chaney J considered that where an award of aggravated damages is warranted, the statutory cap on damages for non-economic loss does not apply. In reaching that conclusion he implicitly rejected the view that the maximum damages amount identified in s 35(1) fixes the upper limit of a range. Mr Rayney complained that words used by Detective Senior Sergeant Lee in a media conference bore the imputation that he had murdered his wife. There were circumstances of aggravation including that statements made at the press conference went beyond what was necessary to fulfil any proper purpose and DSS Lee's evidence in the trial involved gratuitous attacks on Mr Rayney's reputation and the assertion of a current belief in Mr Rayney's guilt. His Honour said:
I have reached the view that the circumstances of the publication of the defamatory matter are such as to warrant an award of aggravated damages, thus making the statutory cap on non-economic loss inapplicable.[153]
209 In our view, the combination of s 34 and s 35(1) does not create a range or scale with respect to the quantum of damages to be awarded for non-economic loss. In this respect, it is significant, as the plaintiff submitted, that s 35(1) specifies the maximum damages amount for individual defamation 'proceedings' rather than for individual defamatory matter, or for individual imputations, or for separate causes of action. If s 34 and s 35(1) create a range to govern the award of damages for non-economic loss it would be necessary for comparisons to be confidently drawn between defamation proceedings to identify where one proceeding sat relative to another with respect to the seriousness of the imputations and the level of harm suffered. However, the Legislature's choice of 'proceedings' as the reference point rather than imputations or causes of action has the consequence that the ability to draw comparisons is significantly impaired.
210 There is no assured way to draw comparisons between defamation proceedings given the vast array of circumstances that might give rise to them. The extent of the publication and the seriousness of the defamatory sting may also vary widely. The difficulty is reinforced under the Act, however, because of the provisions, described above, that guide against multiple proceedings for defamatory matter with a like effect by permitting the judge to assess a single sum where more than one cause of action is made out;[154] by requiring leave for further proceedings to be brought against the same defendant in relation to the same or like defamatory matter;[155] and by directing that damages are mitigated where a plaintiff has brought separate proceedings in relation to any other publication having the same meaning or effect as the defamatory matter.[156] This increases the likelihood that comparisons between proceedings will be more difficult to draw because in one proceeding there may be a plaintiff who is defamed by multiple publications, each with numerous and distinct imputations, but to like effect, and in another there may be a plaintiff who is defamed by one publication alone, perhaps with a single imputation. The degree of variation between individual defamation proceedings is likely to have increased by the measures under the Act seeking to avoid multiple proceedings. In turn, the increase in variation between proceedings is likely to decrease the comparisons that can be readily drawn between them. However, a 'scale' or 'range' is premised upon such comparisons.
211 While Bauer expressly eschewed comparisons with the principles of sentencing, the notion of a 'range', with respect to a sanction, is perhaps best understood in the context of the sentencing of criminal offenders. A maximum penalty provides a 'yardstick'[157] for the sentencing of a criminal offender and assists in establishing the range of appropriate sentences for a particular offender in the particular circumstances of the offence. However, identifying a maximum damages award in respect of a defamation 'proceeding' is quite unlike the specification of a maximum penalty for a criminal offence. The specification of a maximum penalty has utility because it is defined in respect of each offence. An analogy, in a defamation proceeding, would be specifying the maximum damages award in respect of each imputation or, perhaps, each cause of action. An analogous provision to s 35(1) of the Act, in the realm of sentencing, would be for the Sentencing Act 1991 to stipulate the maximum penalty to be imposed in respect of an indictment rather than in respect of an offence. This would be so whether the indictment contained one charge or multiple charges of criminal offences. This would clearly be inappropriate and absurd. It tells against adopting the language of a 'range' in the context of defamation proceedings brought under the Act.
212 Furthermore, treating s 35(1) as fixing the upper limit of a range may artificially deflate awards made for non-economic loss at the lower end of seriousness of defamation proceedings with the consequence that a principal purpose of such damages, namely, achieving vindication of a plaintiff's reputation, would not be met.
213 In our view, the submission of Bauer that the combination of s 34 and s 35(1) creates a 'range' or 'scale' should be rejected. The submissions are based upon an inadequate foundation and supported only by authorities that adopt an approach relevant to different statutory language including statutes that, by contrast with s 35(1), expressly rely upon assessments of percentages of severity to a 'most extreme case'. The submission is not supported by more recent authority. Furthermore, it is not a necessary implication of the specification of the maximum damages amount in s 35(1) that it fix the upper limit of a range. We are mindful of the statutory mandate in s 6(2) that the Act does not affect the general law of defamation (under which, as mentioned, general damages are at large)[158] except to the extent it provides otherwise expressly or by necessary implication.
214 In its oral submissions on the appeal, Bauer conceded that the proposition that the combination of s 34 and s 35(1) creates a 'range' was not necessary to its primary submission that s 35(2) only permits the maximum damages award to be exceeded with respect to any award of aggravated damages. However, it maintained that the proposition is correct and supported its submission that the judge's construction of s 35 is wrong. In all fairness, it must be accepted that the proposition that s 34 and s 35 jointly create a scale or range, while not strictly necessary to Bauer's construction on s 35(2), nevertheless lay at the heart of Bauer's submission on s 35(2) and formed the principal basis of those submissions.[159]
215 In our view, the proposition that the maximum damages amount identified in s 35(1) fixes the upper limit of a range is incorrect and we reject it.
216 We turn now to the issue of whether s 35(2) requires separate awards for aggravated damages.
Does s 35(2) require that aggravated damages be separately awarded?
217 Bauer submitted that s 35(2) assumes that there are separate awards made for damages for non-economic loss and for aggravated damages. Bauer accepted that conventionally general damages are awarded as a global sum whether or not they include aggravated damages and there is no breakdown identified between pure compensatory damages and aggravated compensatory damages.[160] However, it submitted, s 35(2) speaks of circumstances that warrant an 'award' of aggravated damages. It is only when the court considers that the circumstances are sufficient to justify an 'award' of aggravated damages that the maximum damages amount identified in s 35(1) can be exceeded. This implied, it was submitted, that the court would make an order for aggravated damages in a separate sum.
218 Bauer also relied on the second reading speech, mentioned above,[161] where reference is made to the power to 'order' aggravated damages that go over and above the statutory cap.
219 Bauer further pointed to the repeated use of the word 'awarded' in s 34, and in s 35(1), and the use of the word 'award' in s 35(2), as indicating that s 34 and s 35 are to operate harmoniously and are directed at orders of the court. It also emphasised that the use of the word 'awarded' is a deliberate legislative choice by comparison with 'assessed' and this Court should afford the word its proper effect and meaning. The Legislature is not inviting a court to make a proportional assessment of harm in the knowledge that, in any event, when it comes to the award of damages, the sum ordered will be cut off. It is rather that the award of damages itself is to reflect an appropriate and rational relationship with the harm sustained, lower awards reflecting lesser degrees of harm.
220 Bauer further submitted that s 35(2), read against the background of the identification of a maximum damages award in s 35(1), required that, if aggravated damages are to be awarded they have to be awarded by way of a separate sum because it is only if a separate award for aggravated damages is made that parties to litigation will be able to determine whether the judge has erred by exceeding the cap in respect of pure compensatory damages for non-economic loss. It relied on remarks made by Applegarth J in Cerutti v Crestside Pty Ltd[162] to submit that the award of aggravated damages in a separate sum is desirable in the event of an appeal. His Honour commented on the requirement under the Defamation Act 2005 (Qld) for judges, and not juries, to assess damages, judges being in a position in their reasons to explain why aggravated damages are warranted:
A judge may be better-suited than a jury to perform such a task, and, in giving reasons, is able to explain the extent to which damages are increased on account of conduct which warrants an award of aggravated damages. The separate assessment of aggravated damages may enable an appeal court to isolate that part of an award that is attributed to aggravated damages, and to adjust an award of damages if the defendant's conduct did not warrant an award of aggravated damages.[163]
221 However, his Honour went on to qualify what he had said:
However, the task of a trial judge should not be made more onerous than is necessary. A judge may assess a single amount which is appropriate to compensate for harm caused by the publication, and the additional harm to reputation or injured feelings caused by conduct which is improper, unjustifiable or lacking in bona fides.[164]
222 Applegarth J had earlier commented in respect of s 35(2) of the Defamation Act (Qld) that it did not oblige a judge to award aggravated damages as a separate sum:
An award of damages in excess of the statutory cap is permitted if the circumstances of publication are such as to warrant an award of aggravated damages. But this does not compel a judge to separately assess aggravated damages.[165]
223 Bauer's submission as to the desirability of transparency for appeal purposes clearly presupposes that Bauer's construction has already been accepted on independent grounds; in this sense, it begs the question. Moreover, even if Bauer's construction were to be accepted, the need for transparency could be met by a judge, in his or her reasons, making it plain that the non-aggravated compensatory damages for non-economic loss have been measured below the cap and aggravated damages either have or have not, depending on the circumstances, taken the final award of damages for non-economic loss above the cap.
224 We do not consider that the use of the expression 'an award of aggravated damages' assumes that aggravated damages will be identified as a separate sum. The conventional approach at common law of awarding a global sum recognises that, as Gillard AJA said, in Popovic:[166]
The amount awarded for aggravated damages is not a discrete head of damages. The tribunal determining the compensatory damages includes the amount for aggravated damages in the sum awarded.[167]
225 Aggravated damages are a form of compensatory damages, where the conduct of the defendant exacerbates or increases the subjective hurt of the plaintiff; they are 'given to compensate the plaintiff when the harm done ... by a wrongful act was aggravated by the manner in which the act was done'.[168] The award of compensatory damages, including aggravated damages, 'is the product of a mixture of inextricable considerations'.[169]
226 The language of s 35(2) does not mandate expressly, nor by necessary implication, that aggravated damages are to be awarded as a separate sum. We consider that to construe s 35(2) as assuming, or imposing a requirement, that aggravated damages will be so awarded is too large an intervention in the approach to compensatory damages to be introduced by a side-wind. It would set the approach at common law on its head. Section 6(2) of the Act cautions against its adoption. It would place a court in an arguably impossible situation where it is obliged to distinguish between the subjective hurt a plaintiff suffered from the publication of the defamatory matter, simpliciter, and the increased subjective hurt the plaintiff suffers by reason of the aggravating circumstances, and to place a distinct value upon each. A plaintiff might not be able to distinguish between the distress and anguish suffered in such an exact way.[170] Furthermore, as we emphasised above, whatever support can be found in the second reading speech in Victoria, the words used in extrinsic materials cannot displace the statutory text.
227 More importantly, we reject the submission that s 35(2) assumes that aggravated damages will be separately awarded because we consider that it largely depends on the proposition that the maximum damages amount fixes the upper limit of a range. Bauer submitted that if it is accepted that s 35(1) establishes the upper limit of a range, with the maximum damages amount corresponding generally with the most serious case, then the maximum damages amount will continue to be a controlling factor informing the court's assessment of damages even where a court exercises its discretion under s 35(2). This suggests that, on Bauer's view, as the maximum damages amount corresponds in general to the most serious case, a plaintiff could have no entitlement over and above the maximum, except in respect of any award of aggravated damages. The maximum damages amount would continue to be a relevant consideration because the plaintiff would receive all the compensation for non-economic loss he or she is entitled to receive, with the exception of any aggravated damages. So too for less serious cases; their place on the scale would exhaust their entitlement to pure compensatory damages leaving for separate consideration whether any award for aggravated damages is warranted. This understanding supports both the award of aggravated damages as a separate sum and the construction of s 35(2) favoured by Bauer, in effect, that a plaintiff's entitlement to pure compensatory damages is fixed by reference to the maximum damages amount, on a scale, and once fixed remains fixed even where the court goes on to exercise its discretion in s 35(2). This provides the critical connection between the submission that s 34 and s 35(1) jointly create a range and the construction of s 35(2) for which Bauer contends. Bauer submitted that the notion that the plaintiff has an entitlement to the 'full measure of proper compensatory damages'[171] is inapplicable under the Act, even where an award of aggravated damages is warranted. It follows, on this view, that the discretionary power conferred under s 35(2) to exceed the statutory cap could extend only to the award of aggravated damages.
228 However, we have rejected the proposition that the maximum damages amount in s 35(1) fixes the upper limit of a range, or scale, for the reasons we have given above. In the absence of that proposition, it is no longer clear why the maximum damages amount in s 35(1) continues to be a controlling factor even where a court exercises its discretion under s 35(2) to award damages in excess of the statutory cap. It is no longer apparent why a plaintiff must have his or her entitlement to damages for pure compensatory damages fixed for all purposes. In our view, on the language of s 35, the finding that an award of aggravated damages is warranted makes all the difference - as the judge concluded, it permits a court to make awards that exceed the statutory cap and to do so in respect of both pure compensatory damages and aggravated compensatory damages and to make an order in a global sum.
229 We also note that his Honour acknowledged that s 34 continues to have an on-going role, even where the discretion under s 35(2) is exercised, to guide the award of damages beyond the cap to ensure the total damages awarded are commensurate with the harm suffered.
230 We turn to examine the submissions made by Bauer to the effect that the plain words of s 35 should be displaced because a literal reading ignores the purpose of the legislation, the need for harmony between the sections, and leads to anomalies.
Should the plain words of s 35 be displaced by other considerations?
231 The plaintiff submitted that the language of s 35 is, as the judge recognised, unambiguous. Section 35 draws a distinction between two classes of case: the first are cases where no award of aggravated damages is warranted and the second is where there are circumstances that warrant an award of aggravated damages. In the first case, the maximum damages amount identified in s 35(1) imposes a statutory cap by way of cut-off and in the second case damages may exceed the cap 'if and only if' the court is satisfied that aggravated damages are warranted. On the plain words of s 35(2), where a court makes the appropriate finding, the statutory cap no longer applies. Section 35 does not state that the cap may be exceeded 'if, but only to the extent that' an award of aggravated damages is warranted. As the judge said, where the defendant engages in conduct that is improper, unjustified, or lacking in bona fides, it is disentitled to the benefit of the cap and these are matters under its control.[172]
232 Moreover, the plaintiff submitted that there is no need to have recourse to extrinsic materials because of the plain words of s 35(2). Nevertheless, if recourse is to be had to second reading speeches then, the plaintiff submitted, it is a consequence of the Act forming part of a national cooperative scheme of legislation that reliance upon the second reading speech in the Victorian Parliament alone will be an unreliable guide to legislative intent. Those speeches express different and variable understandings of how the Defamation Acts will operate and are inconclusive. By way of example, in the South Australian Parliament the then Attorney-General described the operation of s 33 (the equivalent of s 35 of the Act) in a manner that did not suggest that the cap could only be exceeded with respect to the award of aggravated damages, saying:
A court will not be permitted to order a defendant to pay damages that exceed the maximum damages amount under the proposed section unless it is satisfied that the circumstances of the publication of the matter to which the proceedings relate are such as to warrant an award of aggravated damages.[173]
233 As mentioned, Bauer submitted that the Act is a statute passed by the Victorian Parliament and the only extrinsic materials to which this Court should have regard are those of the Victorian Parliament, regardless of the status of the Act as part of a national cooperative scheme and regardless of the fact that the promotion of uniform laws of defamation is identified as the purpose of the Act in s 1, and an object of the Act in s 3(a). While we consider that there is much force in Bauer's submission, in our view it is unnecessary to resolve this issue as reliance on the extrinsic materials will not here resolve the competing constructions.
234 Bauer submitted that the literal meaning of s 35(2) should be rejected. It pointed to a distinction between statutory 'interpretation' and statutory 'construction' whereby, it was submitted,[174] interpretation involves just a consideration of the text alone, perhaps examining the words of s 35(2) in isolation, and determining the literal meaning, whereas construction requires consideration of the objects of the legislation, its context and purpose, and the need to ensure there is an appropriate synthesis or harmony between various sections. Bauer's submission with respect to the joint operation of s 34 and s 35 was an example of such a synthesis.
235 Bauer submitted that a literal reading of s 35(2) leads to anomalies.
236 For example, had the Act not introduced a statutory cap, a plaintiff who brought a successful proceeding for defamation might have been assessed for pure compensatory damages at, say, $500,000 but, given the intervention of the cap, the plaintiff is awarded only $389,500. One can imagine that the same plaintiff may be able to rely upon some modest circumstance of aggravation that would warrant an award of aggravated damages of, say, $10,000, by reason of, say, a careless choice of language in cross-examination that increases the hurt of the plaintiff. A literal reading of s 35(2) would have the result that, in the first situation, the plaintiff receives an award of only $389,500 but in the second situation, the same plaintiff would have an entitlement to $510,000. Such a consequence of the literal meaning of s 35(2) is argued to demonstrate that the literal meaning is absurd. The Legislature is not to be presumed to have intended arbitrary or capricious results.
237 Moreover, s 35(a) of the Interpretation of Legislation Act mandates that a court should prefer a construction that would promote the purpose or object underlying the legislation to one which does not. In Bauer's submission, the construction adopted by the judge does not promote the purpose of consistency of damages awards in defamation proceedings across jurisdictions which was identified in the second reading speech in Victoria as an express purpose of the legislation.[175]
239 It is instructive first to consider s 35(1) in isolation. Section 35(1) identifies the maximum amount of 'damages for non-economic loss' that may be awarded in defamation proceedings. In our view, it is inescapable that the expression 'damages for non-economic loss', in that context, and setting aside all consideration of s 35(2), must refer to both pure compensatory damages and aggravated compensatory damages. As the plaintiff submitted, it refers to damages other than damages for economic loss (special damages).[176] The loss to be compensated is non-economic loss, that is, the subjective hurt a plaintiff suffers and the damage to his or her reputation. As mentioned,[177] aggravated damages are directed at compensating the plaintiff for the exacerbation of the subjective hurt suffered by reason of the defendant's conduct. They are directed at compensating a plaintiff for a form of non-economic loss.
240 In other words, in the absence of s 35(2), compensatory damages, of both a pure and an aggravated form, would be subject to the statutory cap.
241 Section 35(2) contains two limbs; the first limb confers a discretionary power to award damages that exceed the cap and the second limb identifies the circumstances in which that power is enlivened. On the first limb, the question arises, which damages does a court have power to lift beyond the cap? The answer is 'damages for non-economic loss'; that is, a 'court may order a defendant in defamation proceedings to pay damages for non-economic loss that exceed the maximum amount' in certain circumstances. There is a presumption that words in a statute are used consistently to express the same meaning, especially when they occur within the same section of an Act. Applying that presumption, the expression 'damages for non-economic loss' in s 35(2) must mean the same thing as they mean in s 35(1), namely, that they include both pure compensatory damages and aggravated compensatory damages. As Hodges J famously said in Craig Williamson Pty Ltd v Barrowcliff:[178]
I think it is a fundamental rule of construction that any document should be construed as far as possible so as to give the same meaning to the same words wherever those words occur in that document, and that that applies especially to an Act of Parliament, and with especial force to words contained in the same section of an Act. There ought to be very strong reasons present before the Court holds that words in one part of a section have a different meaning from the same words appearing in another part of the same section.[179]
242 It follows that the discretionary power to award damages in excess of the cap applies to compensatory damages of both a pure and an aggravated form.
243 The judge was correct to construe s 35(2) as empowering a court to lift both pure compensatory damages and aggravated compensatory damages above the cap when the condition for the exercise of the discretionary power is enlivened. That condition is identified in the second limb of s 35(2), namely, if, and only if, an award of aggravated damages is warranted. The reference to 'aggravated damages' is singled out from the collective expression 'damages for non-economic loss' only as a means of specifying under what conditions the discretionary power can be exercised.
244 We further consider that the judge was correct to acknowledge that the direction under s 34, to ensure there is an appropriate and rational relationship between the harm sustained and the damages awarded, continues to apply even where the discretionary power is used to exceed the cap. Section 34 thus operates as an ever-present guide to ensure remedies are fair and effective in the context of achieving the objects of the Act with the aim of ensuring consistency of awards in defamation proceedings across jurisdictions and to correct any imbalance with awards of damages for personal injuries.
245 In our view the judge's construction provides for the harmonious operation of s 35(1) and s 35(2), and for that of s 34 and s 35.
246 In contrast, the use of the same expression 'damages for non-economic loss' in s 35(1) and s 35(2) creates a difficulty for Bauer. Bauer contends that the discretionary power to award damages in excess of the statutory cap can be exercised only with respect to aggravated damages. But, as the judge noted, the power to exceed the cap is not conferred with respect to aggravated damages but with respect to 'damages for non-economic loss'.[180] This means that Bauer must interpret 'damages for non-economic loss' in the first limb of s 35(2) as confined to aggravated damages alone. But not only is that implausible and at odds with the way the expression 'damages for non-economic loss' would generally be understood but it raises the question of how that expression is to be interpreted in s 35(1). Bauer has never suggested that the expression 'damages for non-economic loss' is to be understood in s 35(1) as referring only to aggravated damages. That would clearly be absurd because s 35(1) imposes the statutory cap and it was not in contest that the cap applies at least to pure compensatory damages (and not really in contest that in s 35(1) the expression 'damages for economic loss' refers to both pure and aggravated compensatory damages). Thus, on Bauer's view, the expression 'damages for non-economic loss' changes its meaning from s 35(1) to its use in s 35(2). This is not a consequence we would readily accept.
247 We consider that the judge's construction offers a more harmonious and intelligible construction of s 35 and its relationship to s 34 than that proffered by Bauer.
248 We have concluded that the judge was correct in his construction of s 35 of the Act. While we would grant leave with respect to ground 6, we would not uphold this ground.
249 We accept that when a court is satisfied that an award of aggravated damages is appropriate the court is entitled to make an order for damages for non-economic loss that exceeds the statutory cap in respect of both pure compensatory damages and aggravated compensatory damages. In other words, the statutory cap does not then constrain the court's assessment of damages for non-economic loss; when an award of aggravated damages is warranted, the statutory cap is inapplicable.
250 We consider that if the Legislature seeks to confine the extent to which the maximum damages amount can be exceeded to the award of aggravated damages alone, it ought consider re-drafting s 35(2) to insert as the closing words of s 35(2) 'but only to the extent that an award of aggravated damages is warranted' or some other appropriate express qualification.
251 Given the conclusions we have reached on the construction of s 35 and the judge's findings on aggravated damages, we turn now to the question of the reassessment of the plaintiff's damages for non-economic loss.[181]
THE REASSESSMENT OF THE PLAINTIFF'S DAMAGES FOR NON-ECONOMIC LOSS
252 In ground 7, Bauer contended that the judge's award of damages for non-economic loss in an amount of $650,000, including aggravated damages, was manifestly excessive. Having determined that a number of the judge's findings in relation to aggravated damages must be set aside, and that the plaintiff's damages for non-economic loss must therefore be reassessed, it is not necessary to deal with Bauer's complaint of manifest excess. Instead, ground 8 (seeking the setting aside of the judge's assessment of damages for non-economic loss) must be upheld and the plaintiff's damages for non-economic loss reassessed. As we have already said, we will perform the reassessment. We undertake that reassessment on the understanding that the statutory cap on damages for non-economic loss in s 35(1) is here inapplicable.
253 Bauer's submission on the reassessment was pithily encapsulated in its written case as follows:
If the court finds error in the trial judge's assessment of damages for non-economic loss, then the court should reassess damages, making its own findings, supported by its own reasons. If the court considers that it is not able to reassess, then the assessment of damages for non-economic loss should be remitted to the Trial Division.
254 The plaintiff's submission on the issue of reassessment was similarly encapsulated in her written case:
If the trial judge's award is set aside and if the court considers it appropriate for it to reassess the damages afresh, the court should have regard to Ms Wilson's written submissions below on damages.
255 In her written submissions made to the judge on damages for non-economic loss, the plaintiff submitted that general damages, including aggravated damages, should be assessed in the total sum of $1,200,000.[182]
256 To the extent that either party submitted that this Court must now make its own findings in respect of all of the relevant aspects of non-economic loss, without regard to the findings of the judge that neither side sought to impeach or that were not otherwise impeached by Bauer, we would reject that submission.
257 The judge found that Bauer's defamation of the plaintiff was very serious. In the judge's words, by its articles, Bauer 'branded ... [the plaintiff] 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'.[183] In the first Women's Weekly online article, Bauer conveyed that the plaintiff was so untrustworthy that nothing she said about herself could be taken to be true unless it was independently corroborated.[184] This was a most serious defamation which, having reviewed the evidence for ourselves, we accept had a devastating effect on the plaintiff.
258 While we have set aside some aspects of the judge's findings about aggravation, the most serious findings made by the judge remain (in particular, Bauer's publication of imputations it knew to be false for the purpose of maximising its own commercial opportunities and in order to 'take down' the plaintiff - a circumstance of aggravation that plainly caused Ms Wilson much distress and anguish). Notwithstanding the setting aside of some of the judge's conclusions on the issue of aggravation, we would endorse what the judge said in the course of his assessment of the plaintiff's damages for non-economic loss, when he described Bauer's attack on her as follows:
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.[185]
259 In assessing the plaintiff's damages for non-economic loss, the judge referred to 'the unprecedented extent of dissemination mak[ing] vindication of particular importance'.[186] With reference to the grapevine, the judge also accepted the plaintiff's description of the articles having caused 'a huge international media firestorm'.[187] We discuss the judge's findings about the grapevine as part of our consideration of Bauer's complaints about the judge's treatment of the plaintiff's claim for damages for economic loss. For the reasons we give in that part of our judgment,[188] we conclude that the grapevine effect was much less than the judge concluded was the case.[189] That said, having regard to the seriousness of the imputations published by Bauer, we agree with the judge that vindication was, in any event, of particular importance in this case.
260 Having reviewed all of the evidence, we would, in all the circumstances, reassess the plaintiff's damages for non-economic loss, including aggravated damages, in the sum of $600,000.
261 The judge found that the plaintiff had established $3,917,472 by way of special damage. Founded upon loss of a valuable opportunity, this amount represented the major part of the judgment entered in the plaintiff's favour. His Honour concluded that, in respect of a tort committed wholly in Australia, the grapevine effect of the articles in the United States was a cause of that loss, which loss was reasonably foreseeable.
262 The plaintiff abandoned, in counsel's final address, a claim of actual loss arising from termination of two contracts.
263 Both the claim which the judge found was established - and the claim which was later abandoned - depended upon inferential reasoning.
A real review - findings of primary fact and findings of inferential fact
264 In Robinson Helicopter Co Inc v McDermott,[190] the High Court said this:
The fact that the judge and the majority of the Court of Appeal came to different conclusions is in itself unremarkable. A court of appeal conducting an appeal by way of rehearing is bound to conduct a 'real review'[191] of the evidence given at first instance and of the judge's reasons for judgment to determine whether the judge has erred in fact or law. If the court of appeal concludes that the judge has erred in fact, it is required to make its own findings of fact and to formulate its own reasoning based on those findings.[192] But a court of appeal should not interfere with a judge's findings of fact unless they are demonstrated to be wrong by 'incontrovertible facts or uncontested testimony',[193] or they are 'glaringly improbable' or 'contrary to compelling inferences'.[194] In this case, they were not. The judge's findings of fact accorded to the weight of lay and expert evidence and to the range of permissible inferences.[195]
265 The plaintiff relied upon the passage just cited for the proposition, in essence, that no distinction is to be drawn by an intermediate appellate court when considering findings of primary fact made by a judge at first instance and findings of inferential fact made - that is, inferences drawn - by the judge. A finding of either kind, counsel submitted, was to be considered on the footing that it should only be set aside if, making due allowance for the advantages enjoyed by the trial judge, it was 'glaringly improbable' or 'contrary to compelling inferences'.
267 In seeking to further support his submission, counsel contended that, in respect of any finding, a judge may find significance in a look, a gesture, tone or emphasis which cannot be attributed to the witness 'in the mere reproduction in type'.[199] In the present case, there having been a long trial, there were moments - counsel instanced an answer by Ms Jackson, the plaintiff's principal United States agent, to a question asked by the judge at the very end of that witness's evidence - which were simply 'lost in type'. Counsel instanced also 'an appreciation for the nature and scale of the acting industry in Los Angeles', which, he submitted, made the evidence of Mr Principato, the Hollywood agent called for the plaintiff, that he did not know of the articles at any relevant time, 'irrelevant'.
268 Bauer's counsel submitted that the passage in Robinson [43] which we have cited should not be understood to have overturned a long-recognised distinction with respect to appellate review of findings of primary fact on the one hand, and inferences on the other. Indeed, counsel submitted, earlier authorities cited in that passage were authorities which established and maintained the distinction.
269 Counsel submitted that, since Robinson, there have been a number of decisions in this State which have recognised a continuing distinction between review of findings of primary fact and inferences. He cited Marriner v Australian Super Developments Pty Ltd,[200] Masters Home Improvement Australia Pty Ltd v North East Solution Pty Ltd,[201] Southern Colour (Vic) Pty Ltd v Parr[202] and ASIC v Geary.[203]
270 Counsel submitted also that two decisions of this Court, Melbourne City and Victorian Legal Services Commissioner v Cahill,[204] had stated the relevant legal principle too broadly. The correctness of the statement of principle in Melbourne City had been explicitly doubted by Basten JA of the New South Wales Court of Appeal in Springfield v Duncombe.[205]
271 Counsel further submitted that the plaintiff's submission which sought to support the judge's conclusions with respect to opportunity lost and causation, in reliance upon the advantages enjoyed by the trial judge, should be rejected. There was nothing in the reasons for judgment that indicated that any such matters were material to the critical inferences; and matters of impression concerning the aspects of the evidence upon which the plaintiff now relies did not bear upon the existence of the alleged lost opportunity or causation.
272 In our opinion, Bauer's counsel was correct in his submission that Robinson [43] did not depart from a long-recognised distinction with respect to appellate review of findings of primary fact and inferences. The authorities cited in support of Robinson [43] were authorities which established and maintained that distinction. It would, we think, be a large step to conclude that long-existing principle should be understood to have been set at nought by a single paragraph in a judgment which did not suggest that any new principle was being promulgated. Further, the phrases used by the Court in Robinson [43] - 'incontrovertible facts or uncontested testimony', 'glaringly improbable' and 'contrary to compelling inferences' - made use of language employed in earlier cases dealing with challenges to findings of primary fact.[206]
273 For completeness, we should add this: the phrase 'contrary to compelling inferences' in Robinson [43], drawn from earlier authorities, should not be understood, in our opinion, as suggesting that an intermediate court of appeal may only set aside an inference if the inference itself is contrary to compelling inferences. That is not the history of the phrase.
274 Some, not all, of the decisions in this Court subsequent to Robinson were reviewed in Southern Colour. There, this Court said:
On appeal, the Court is required to undertake a 'real review' of the evidence in respect of the findings made by the judge, and the reasons for the judge's conclusions. Where the finding, that is under review, depended on the acceptance or rejection by the trial judge of the evidence of a particular witness or witnesses, the appellate court should only set aside that finding if, after making due allowance for the advantages enjoyed by the trial judge, that finding is 'glaringly improbable' or 'contrary to compelling inferences'. On the other hand, in general, an appellate court is in as good a position as the trial judge to decide the proper inferences to be drawn from facts which are undisputed, or which have been established by the evidence. In deciding the proper inference to be drawn, the appellate court should, however, give respect and weight to the conclusion of the judge, but, having reached its own conclusion, it must give effect to it.[207]
275 Some, not all, of the decisions in this Court subsequent to Robinson were also reviewed in Geary. The Court said this:
The better view seems to be that Robinson Helicopter governs the approach that should be taken to appeals on questions of fact that involve challenges to findings of fact based substantially upon the credibility of witnesses who have testified during the trial. Once the primary facts have been established, however, the question whether particular inferences should be drawn from those established facts is a matter as to which an appellate court is generally in as good a position as a trial court to consider for itself. The strictness with which Robinson Helicopter approaches findings of primary fact is not applicable to purely inferential reasoning. [208]
276 In Geary, the Court went on to observe that in some cases the admixture of findings of primary facts and inferences might be such as to complicate the necessary analysis.[209] That possible complication was not a complication in the present case. The critical inferences which the plaintiff asked the judge to draw, and which the judge did draw, were starkly distinct from the oral and documentary evidence in the case.
277 We should briefly refer to the decisions cited by plaintiff's counsel in support of his submission.
278 Food & Beverage concerned findings of primary fact, and so did not assist the argument.[210]
279 Next, the question in Melbourne City[211] was whether a judge had erred by not recusing himself on the ground of apprehended bias. A challenge was raised to 'findings' made by the judge with respect to the perception of a fair-minded lay observer. The applicant accepted, and it was said by the Court to be common ground, that Robinson [43] applied. In that setting, the Court held that Melbourne City had 'failed to establish that the impugned findings of fact were demonstrably wrong, glaringly improbable or contrary to compelling inferences in the relevant sense'.[212] In short, the Court of Appeal considered the matter (1) on the common footing that Robinson [43] applied; and (2) on the footing that what were involved were findings of fact (whether primary or inferential).
280 The correctness of the approach in principle in Melbourne City was, as counsel for the defendant submitted, doubted by Basten JA in Springfield, if the approach was to be understood as applying the Robinson [43] test to inferences. But in truth, this Court simply approached the matter by acting upon a commonly agreed position.
281 We turn to CSR.[213] There was a challenge to findings by the trial judge that former workers had been exposed to a particular asbestos product in the course of their employment many years earlier. The judge had inferred that there had been such exposure, basing his conclusion, in part, upon a huge volume of documentary material, and, in part, a limited amount of oral evidence. This Court was not provided with the bulk of the substantial evidential material supplied to the judge. Nor was the Court asked to immerse itself in the same way in the factual detail. The Court said that plainly it was not in as good a position as the trial judge to determine what facts should be found so far as exposure to the relevant asbestos product was concerned. So much had been conceded by the parties.
282 Against that background, counsel for CSR conceded in this Court that there was a 'high bar' to a successful appellate challenge to findings of fact. This was particularly so in the present case, counsel acknowledged, as it concerned 'layer upon layer of inferences ... as opposed to a couple of threads'.[214] Further, counsel conceded that the task for the Court was as defined in Robinson [43].
283 It was in this entire context that the Court approached the challenge to the inferences drawn by the judge that there had been exposure to the particular product. The Court concluded that, having conducted the real review necessary so far as the material before it permitted, the inferences which the judge drew were cogent, logical and well open on the evidence before him.[215]
284 Whilst some of the language used by the Court when evaluating the inferences drawn by the judge fitted Robinson [43], it is quite apparent that the Court approached the task on the footing of concessions made by counsel for CSR. Moreover, the Court was faced with considering inferences which the judge had drawn in reliance upon a large quantity of material, only part of which was before the Court.
285 Finally, we should briefly refer to Cahill,[216] not relied upon by counsel for the plaintiff, but drawn to the Court's attention by the defendant. The Legal Services Commissioner challenged a finding that he had acted in reliance upon a particular statutory provision in deciding that a complaint did not require further investigation. He relied upon five pieces of evidence. This Court rejected the challenge. Kyrou JA stated that the best evidence of what the Commissioner decided was an internal memorandum which he had approved. It was capable of only one construction. The evidence relied upon by the Commissioner could not alter the meaning of the plain words of the memorandum. Having so concluded, Kyrou JA referred to Robinson [43], and then stated that the Commissioner had not established that the judge's factual finding was contrary to incontrovertible facts or uncontested testimony, glaringly improbable or contrary to compelling inferences. On the contrary, said Kyrou JA, 'the judge's factual finding was the only one that was open on the evidence'.[217]
286 On analysis, this was not really a case about inferences at all. There was a piece of concrete evidence which demanded the particular conclusion reached at first instance.
287 In all, there is nothing in the authorities cited for the plaintiff which, on full analysis, is opposed to the conclusions expressed by this Court, inter alia, in Southern Colour and Geary, and by Basten JA in the New South Wales Court of Appeal in Springfield.
288 So far as plaintiff's counsel sought to support findings made by the judge as to opportunity and causation by reference to a look, a gesture, tone or emphasis, we think that there was nothing to the submission. Such matters are capable of affecting a judge's evaluation of a witness's credibility and reliability. But in the present case, Ms Jackson's credibility was not in issue. The question was where her evidence led. This was affected by a number of considerations, which included her ignorance of the articles at any relevant time, and her synopsis of the plaintiff's acting career up to the time of the release of Pitch Perfect 2. That synopsis could be compared with the objective circumstances of the plaintiff's career trajectory. Then, as to Mr Principato, for reasons later discussed, the very apparent limitations in his evidence - some of which were recognised by the judge - could not have been mended by recourse to a look, a gesture, tone or emphasis.
289 Bauer seeks to challenge the special damages award. The following grounds are in point, which for convenience, we set out again:
290 The consequence of Bauer's challenge by grounds 9 and 10, if either was made out, would be that the loss of opportunity claim would fail in limine. The consequence of the challenge by ground 11, if only that ground was made out, would be that damages would fall to be re-assessed. Both sides submitted that, if only ground 11 was made good, the desirable course was that the Court reassess damages, rather than remit the matter for reassessment by a judge in the Trial Division.
291 In written and oral submissions referable to ground 9, it was submitted for Bauer that Ms Wilson had to demonstrate, on balance of probabilities, that in the period between May 2015 and December 2016 she had lost a substantial and not merely speculative opportunity to be cast in lead or co-lead roles which she could and would have taken, and that would have yielded a benefit. Counsel cited Badenach v Calvert[218] and Sellars v Adelaide Petroleum NL.[219]
292 Orally, counsel emphasised that the plaintiff's claim was not one of loss of a generic opportunity, but rather one which was quite specific. The general statement by the judge at Reasons [167], citing La Trobe Capital & Mortgage Corporation Ltd v Hay Property Consultants Pty Ltd[220] that a plaintiff is not required to prove that particular transactions would have been entered into is not universally applicable, and was not applicable in the present case. Here, a quite specific loss of opportunity was relied upon, its components being a Hollywood film within a particular timeframe, at a particular minimum remuneration, and in a lead or co-lead role.
293 Counsel submitted that the evidence did not support the inferences upon which the judge relied in the findings at Reasons [216], [220], [222] and [294]. That was so for a number of reasons. First, it was misleading to focus upon the apparent dip in income in calendar year 2016. It took no account of the time lag between a role being offered, a contract being entered into, filming, release of the film and receipt of income. In any event, the starting point was when a role was offered. To frame the loss period as the plaintiff did was arbitrary and thus ignored her involvement in Pitch Perfect 3, Isn't it Romantic and Dirty Rotten Scoundrels.
294 Second, historically, a substantial part of the plaintiff's income was from a small number of large contracts. This made her income susceptible to fluctuation.
295 Third, the plaintiff's income in calendar year 2016 was affected because, her engagement in Kung Fu Panda 3 and Trolls having been terminated in 2015, she did not receive large anticipated bonuses referable to box office receipts.
296 Overall, the more probable inference was that there was no dip in the plaintiff's income, or that any dip was causally unrelated to the publication of the articles. The judge erred at Reasons [273] in treating the matters to which he there referred as being relevant only to an assessment of the probability of the plaintiff's lost opportunity being realised. Further, he appeared to reverse the onus of proof.
297 Fourth, it was submitted that the evidence of Ms Jackson (as we have already noted, the plaintiff's principal US agent; and a partner in William Morris Endeavor, ('WME'), said to be the largest talent agency in the US)[221] and Mr Principato (another prominent Hollywood agent to whom we have also briefly referred) was unfavourable to the plaintiff's case. Ms Jackson had not referred to any specific roles for which she had submitted the plaintiff in the alleged loss period. Counsel described her evidence as being confined to supposition, assumption, belief, aspiration and hope - all expressed at a high level of generality. The witness had not been asked any question in examination-in-chief about a role for which she had pitched the plaintiff. The judge should have taken into account the absence of proof of matters which were within the plaintiff's powers to address when determining whether the plaintiff had proved her case. Instead, at Reasons [301], the judge had effectively required the defendant to prove that information about suitable roles was available to the plaintiff.
298 Also relevant to the evaluation of the failure to adduce evidence as to specific roles for which her services were pitched during the loss period, counsel submitted, was Ms Wilson's evidence that movies can fall apart at any time up to the day filming is due to commence; as also was her experience of being terminated from the productions of Kung Fu Panda 3 and Trolls, notwithstanding that she had already entered into contracts for those roles and had undertaken work pursuant to them, and had even appeared in a trailer for Kung Fu Panda 3.
299 Counsel submitted that Mr Principato had conferred with the plaintiff's lawyers in the United States and Australia before completing his two reports. He had every opportunity to turn his mind to identification of opportunities. In fact, he had identified only four films, and of those four, only two were mentioned in one of his written reports. For different reasons, three of the four films could effectively be put to one side. For instance, Ms Wilson had refused an offer of a role in one of those films before the articles were published. Further, there was no evidence that she had been submitted for a role in the fourth film, about which very little evidence was given.
300 Fifth, counsel addressed what was said for the plaintiff to be a fall-off in the trajectory of her career. He submitted that, when the circumstances were fully examined, there was no change in trajectory. In that connection, the plaintiff had obtained roles in Pitch Perfect 3, Isn't it Romantic and Dirty Rotten Scoundrels during the alleged loss period. As to Pitch Perfect 3, negotiations with respect to the plaintiff's participation had continued during that period. That film should not have been excluded. With respect to Isn't it Romantic and Dirty Rotten Scoundrels, the judge had erred by excluding these films on the basis that they were 'development projects'. The evidence of Mr Principato had been that the offers which he expected the plaintiff to receive during the loss period included projects which studios might have 'sitting on the shelf', which required 'star attachment' to make the project real and to activate the green light process.
301 Next, the trajectory for which the plaintiff had argued was that she would appear in major motion pictures at intervals of between two and two and a half years (in addition to more frequent smaller roles and other engagements). This trajectory fitted the chronology of her roles in Bridesmaids, Pitch Perfect and Pitch Perfect 2. Her roles in Pitch Perfect 3 and Isn't it Romantic fitted within that trajectory.
302 Further, the evidence of Ms Jackson about her hopes and expectations for the plaintiff's career was underpinned by the trajectory notion. Whilst Ms Jackson was of the view that the plaintiff could 'carry' a movie, that was not shown to be the opinion of film makers.
303 Further again, the notion of trajectory could not ignore that there had been 'speed humps' along the way. The plaintiff's engagements in Kung Fu Panda 3 and Trolls had been terminated, even after the plaintiff's involvement in those projects had continued for some time. Moreover, the fact that the plaintiff's engagement in those films had been terminated contributed to the apparent drop in the plaintiff's income in calendar year 2016, because she lost anticipated box office bonuses.
304 In all, it was submitted, the absence of probative evidence should have been indicative of the absence of the claimed opportunity, of which there were two kinds - offers of particular roles and development roles. There was no evidence to support loss of the first kind of opportunity, and the evidence was that the second of them had not been lost.
305 With respect to ground 10, relating to the causation issue, counsel submitted that the plaintiff had to prove that it was more probable than not that she would have received a valuable opportunity but for the defendant's conduct,[222] and that the probability was greater than competing hypotheses denying causation.[223] The plaintiff's case was circumstantial, requiring the judge to draw a series of inferences. The judge had erred in finding, at Reasons [279] and [281], that the more probable inference was that there was a causal relationship between the assumed opportunity and its not being realised.
306 There was, counsel submitted, insufficient evidence to support an inference that publication of the articles in Australia was a cause of the alleged loss of opportunity in relation to Hollywood films. There was no evidence that the articles ever came to the notice of film or television decision-makers. Ms Jackson and Mr Principato had no personal knowledge of the articles, and this supported an inference that the publications did not come to the attention of decision-makers.
307 Further, Mr Principato's assumption, based on temporal coincidence, was not accepted by the judge. All that was left was Ms Jackson's evidence that the absence of offers was 'a mystery'.
308 Counsel emphasised that Mr Principato was not only an agent, but also a producer. He was one of the 'Hollywood people' who would be expected to be on the grapevine, as the plaintiff put her case.
309 Counsel submitted that the 'huge international media firestorm' was a term which had not much content.
310 There were, counsel submitted, more probable non-compensable causes for the offers anticipated by Ms Jackson not being made.
311 First, the plaintiff's services had been dispensed with on two occasions on the footing that she was divisive.[224]
312 Second, Ms Jackson had begun to submit the plaintiff for dramatic roles, but she was known for comedic roles, as Mr Principato had stated in his evidence.
313 Third, there was no evidence that the plaintiff had played any lead or co-lead roles which 'carried' a film before publication of the articles.
314 Fourth, the response to Ms Jackson 'we're not there yet' was to be understood as meaning that studios did not share the view of the plaintiff and Ms Jackson that the plaintiff was ready to take on lead or dramatic roles.
315 Fifth, in comedic roles for which the plaintiff might have been suited, Ms Amy Schumer was a cheaper competitor.
316 Finally, 'chemistry' was said by Mr Principato to play a part in determining whether an actor was engaged to perform in a role. There were vagaries in the preference for one actor rather than another.
317 In response to a question from the Bench, concerning the plaintiff's reduced role in the film How to be Single, which seemed clearly attributable to the impact of the articles on the plaintiff, counsel submitted that there was no direct evidence of any consequence of that reduction in role.
318 Turning to ground 11, counsel submitted that the necessary steps to value the loss, assuming that an opportunity loss had been established, were to calculate the likely value of the lost chance if realised, and to assess the probability of the chance being realised. These were separate exercises.[225]
319 Counsel submitted that, where evidence was available, the Court must act upon it. To that extent, it was not necessary to engage in a degree of speculation or guesswork in order that the Court do its best to assess damages. In the present case, the plaintiff gave evidence that she received a net benefit of just under 50 per cent of gross earnings from an engagement. Additionally, there was actual evidence of income received in the loss period. These were actual amounts, which should not have been rolled into a 'holistic' assessment of a single discount factor. That conflated the two step process.
320 Thus, it was submitted, acting upon an assumed gross loss of $15 million, there should have been an initial discount in respect of expenses of a little more than 50 per cent, and then a discount for contingencies.
321 Counsel submitted that the judge had committed specific errors in his consideration of the 'holistic' assessment.
322 First, contingencies should have included each of the competing hypotheses as to causation.
323 Second, at Reasons [300], the judge reversed the onus, requiring the defendant to discharge an evidentiary burden that the loss claimed (not the loss proven) was traceable to extraneous causes, requiring the defendant to prove that information about specific roles that the plaintiff had applied for was able to be adduced by the plaintiff at trial.
324 Third, at Reasons [302], the judge accepted that a project might not proceed, or that the plaintiff might take a role for less than $5 million. But there was no explanation of the weight, or value, which his Honour attached to such contingencies. The evidence of the plaintiff and Ms Jackson meant that these matters called for a substantial discount.
325 Fourth, the plaintiff's actual earnings should have been deducted, not treated as a discount factor.
326 In all, counsel submitted, the broad holistic approach taken by the judge, approached as if in a contributory negligence setting, meant that he had failed to act upon specific evidence, explain what factors were brought to account and what weight they were given, and this culminated in an inadequate discount for contingencies.
327 It was submitted for the plaintiff that the defendant did not now contend that the judge had erred in law in his approach to the lost opportunity claim. The judge's methodology, set out at Reasons [175], was not challenged. Rather, the challenge was as to findings of fact - it being contended that the evidence did not support the inferences drawn by the judge. But, counsel submitted, there was a substantial body of evidence which left it open to the judge to find opportunity and causative loss of opportunity. Indeed, counsel submitted on a number of occasions, relevant inferences were not only open to the judge, but were overwhelming. In all, the special damage case was 'not only plausible and coherent, it was overwhelming'.
328 Counsel repeatedly emphasised a submission that, both with respect to the issue whether there was an opportunity, and the question whether the publications were a cause of the opportunity being lost, the defendant had 'vacated the field'. It was 'essentially vacated'. The defendant did not 'enter the evidentiary field'. 'No counter-factual was ever articulated or prosecuted at the trial'. Bauer had not called an expert witness. One would have expected to see an exchange of expert reports.
329 Counsel necessarily accepted that there had been cross-examination of the plaintiff, Ms Jackson, and Mr Principato bearing upon the existence of an opportunity, and bearing upon the question of causation. But he submitted that a number of matters had not been raised in cross-examination of the witnesses in respect of matters upon which Bauer sought to rely. He submitted that Ms Jackson was not cross-examined to suggest that the plaintiff was not ready for lead or co-lead roles, that it had not been put to Mr Principato that the plaintiff had lost roles to Ms Schumer because she commanded about half the remuneration which the plaintiff would be seeking, and that the relevance of 'chemistry' had not been put to either Ms Jackson or Mr Principato.
(1) The plaintiff had a vibrant and upward career trajectory, illustrated by offers of roles after the release and success of Bridesmaids and Pitch Perfect. Counsel referred to evidence of the plaintiff and Ms Jackson.
(2) Pitch Perfect 2 provided the springboard for a continuing upward trajectory in the plaintiff's career. She had been 'the world-wide face' of the movie. She had been very enthusiastically commended by important people in the Hollywood film-making industry for her role in that film, which became the highest-grossing musical comedy of all time. She had expected to be offered new screen roles. Ms Jackson and Mr Principato had also expected that the plaintiff would have received new offers.
(3) The articles had caused an international media firestorm. There had been reports on television and radio. Ms Overington had given evidence of the story gaining traction in the United States, of reading articles, and being aware of people discussing the issue. She had possibly heard the story on radio and television.
(4) Evidence of the existence of the firestorm was 'the relevant evidence' from which one could infer that the sting had spread far and wide, reaching those persons responsible for hiring in Hollywood. It was not for the plaintiff to track the route that the poison took.
(5) In fact, the plaintiff had not received film offers, so Ms Jackson had talked to the plaintiff about developing her own films. The plaintiff had tried to develop Isn't it Romantic, Dirty Rotten Scoundrels, Private Benjamin and A Perfect Crime. After her co-lead role in Pitch Perfect 2, she did not perform in any lead or co-lead role until the filming of Pitch Perfect 3 in January 2017. But that deal had been closed before the release of Pitch Perfect 2.
(6) The plaintiff could not identify any other reason why her career came to a 'grinding halt'. Nor could Ms Jackson or Mr Principato explain it.
(7) Whether or not the financial documents were probative of the plaintiff having lost opportunities was neither here nor there. The judge did not rely on the records as explaining the lost opportunity.
(8) Bauer's submission that the plaintiff called no evidence to prove that particular roles had been 'applied for' misunderstood the Hollywood film industry. Actors at the plaintiff's level did not apply for jobs. Rather, studios create projects for 'hot stars'.
(9) 'Given the trial judge's unchallenged finding that the sting had spread to the United States in a substantial way, it is inconceivable that it had not reached people within studios, especially those people whose jobs it was to identify which film stars they should be getting "into business" with'.
(10) It was likely that the sting of the articles made the plaintiff 'divisive'.
(11) Ms Jackson's evidence was not that she was only submitting the plaintiff for dramatic roles.
(12) There was no evidence that Ms Jackson was only putting the plaintiff forward for lead and co-lead roles.
(13) The judge, having had the advantage of seeing and hearing Ms Jackson give evidence (by video-link from California) was entitled to treat the response 'we're not there yet' as meaning 'no'; and to treat the witness's evidence of 'hope' as meaning 'expectation'.
(14) The actual loss claim arising out of the termination of the Trolls and Kung Fu Panda 3 roles had not been pursued because the evidence 'did not rise high enough for [the plaintiff] to confidently make a submission' that the articles were a cause of the termination. 'The sum of the evidence was [that the plaintiff] was terminated because she was divisive'. This evidence 'just did not avail either side'. Further, the plaintiff having been terminated, how could she 'rationally submit to the court that [either project] would have earnt those bonuses had she been in the role'. The plaintiff was entitled to, and did, elect 'to disclaim the full entitlement of her claim'.
(15) With respect to the causation issue, the plaintiff did all she could do. Defendants in defamation proceedings commonly assert that a plaintiff should have called more evidence. But it is notoriously difficult to do so. If a person's reputation has been damaged, 'people do not come along to support you in court cases'.
(16) The sting of the defamation was undermining the plaintiff's particular appeal.
331 With respect to quantification of the plaintiff's lost opportunity claim, counsel submitted that:
(1) The methodology adopted by the judge was not that contended for by the plaintiff in final address. But the plaintiff did not now complain about the methodology which the judge adopted. The plaintiff had not abandoned a claim based on the judge's assessment methodology. The defendant made no such challenge in this Court. (Here, counsel was evidently speaking about the judge's selection of three lost roles, rather than one, as the starting point for assessment of the value of the lost opportunity).
(2) In assessing quantum, the judge adopted an extremely conservative approach, discounting an initially low starting amount by 80 per cent.
(3) The judge did not reverse the onus of proof by requiring the defendant to show that loss was attributable to extraneous causes.
(3) If the matter came to reassessment - (a) the plaintiff and Camp Sugar Inc ('Camp Sugar'), the plaintiff's US corporate vehicle, were virtually synonymous. Its receipts were her earnings; (b) the Court should re-assess damages on a different basis (which would translate into a larger award); (c) expenses were about 20 per cent of gross earnings; and (d) tax payable in the United States should be ignored.
332 Subsequent to the oral hearing of the appeal, in an uninvited addendum to a matter in respect of which the parties had been given leave to file additional written submissions, the plaintiff made submissions as to the way in which this Court must approach a challenge to findings of inferential fact made by the judge. The defendant made submissions in response. We have already addressed the competing submissions at [264]-[288] above.
334 In our opinion, for the reasons which follow, the judge erred in concluding - (1) that the plaintiff had proved on balance of probabilities that the opportunity for which she contended had existed and had been lost; and (2) that the plaintiff had proved on balance of probabilities, assuming such opportunity had been established, that the grapevine effect in the United States, in respect of the articles published in Australia, was a cause of that lost opportunity. Those conclusions depended upon inferential reasoning, and in our respectful opinion the critical inferences which his Honour drew cannot be sustained. It follows that grounds 9 and 10 are made out. The defendant should have leave to appeal on those grounds, and they should be upheld. In the event, it is really an impossible exercise to consider ground 11. It would rest upon consideration of circumstances the fact and the detail of which, in our opinion, were not made out. We later express only the conclusion that, in more than one respect, criticism of the way in which his Honour assessed the quantum of lost opportunity damages was sound. The best course, in order to dispose of the ground, is that leave to appeal should be granted, but the appeal (while being allowed in respect of other grounds) will not be allowed on this ground.
335 In concluding that his Honour erred in drawing the critical inferences, we have applied our understanding of the role of a court such as this set out at [274] above. We add this. If, contrary to our understanding, it was correct to apply the 'glaringly improbable' or 'contrary to compelling inferences' test, then we would not be satisfied that the judge erred in inferring that the plaintiff had established the existence of an opportunity as relied upon in the alleged loss period. But we would be satisfied to that exacting standard that his Honour erred in drawing the inference as to causation which he did.
336 We mention at the outset of this analysis of the special damage claim, anticipating later consideration, an observation by the judge that, in defamation proceedings, a plaintiff's exposure to the potential of financial loss can, in certain circumstances, be compensated by an increase in 'general damages' - so-called 'Andrews damages'.[226] In the event, having found that the plaintiff was entitled to lost opportunity damages, his Honour did not consider the possible alternative of an award of Andrews damages.
337 We mention his Honour's reference to Andrews damages immediately because, in argument, Senior Counsel for the plaintiff, in answer to questions from the Bench, stated that if his client's lost opportunity claim failed in this Court, then she would seek Andrews damages. As will be seen, Bauer challenged the plaintiff's entitlement to such damages in the event that her lost opportunity claim failed; and also raised a question as to the possible quantum of any such damages in the event that they were otherwise established.
338 Central to consideration of grounds 9 to 11 are the judge's reasons in which his Honour identified evidence upon which he acted and exposed his reasoning process. In conducting the real review which is necessary, we will refer in most detail to those parts of what his Honour said which were put in issue by those grounds.
339 In the course of reference to his Honour's reasons, rather than leave our analysis quite separate, in aid of clarity we will interpolate our conclusions upon the matters which were agitated in this Court. That will involve, in part, adverting to evidence to which the judge did not refer.
340 His Honour first distinguished between actual loss of earnings and 'exposure to the potential loss',[227] and noted that the plaintiff was not now pursuing an actual loss claim. He then identified the plaintiff's claim as being one for lost opportunity damages, expressed as 'loss of earnings in an 18 month period from mid-2015 until the end of 2016 because she was not, but would have been, offered lead roles in unidentified movies in that period'.[228]
341 It was uncontroversial in this Court that the opportunity as thus described was correct, except that the plaintiff had extended it to co-lead roles. This broader formulation was correctly expressed by the judge at Reasons [177].
342 The claim, his Honour stated, was 'a total loss of earnings of no less than AUD$5.893 million, being a gross loss of AUD$6.771 million in relation to new screen roles, less income she earnt by taking on less remunerative work totalling AUD$877,138'.[229]
343 We pause to make three observations. First, his Honour's statement that an actual loss claim was not now being pursued[230] was accurate. But it was a bland way of dealing with a significant and late-made change to the plaintiff's case. Second, the quantum of the lost opportunity claim described by his Honour was the claim as it had been particularised by a letter dated 5 May 2017 (and so, very shortly before trial). It was based upon the asserted loss of one new screen role at basic remuneration of US$5 million. Third, in rejecting the claim as thus particularised and advanced in final address, and applying a different methodology, the judge (as we will explain) appears to have misunderstood the way in which the plaintiff then advanced her claim.[231]
344 His Honour accepted that, the tort upon which the plaintiff relied having been wholly committed in Australia, her lost opportunity claim relied upon proof of a causative and reasonably foreseeable grapevine effect in the United States.[232]
345 His Honour found that '[a] grapevine effect was entirely foreseeable, even if the precise course or track of the process of repetition cannot be identified'.[233] He pointed to evidence of the plaintiff
showing that the publication of the defamatory articles had occasioned a grapevine effect that extended to the USA ...[234]
the defendants led evidence to a like effect from Ms Overington who was in the USA at the time of publication.[235]
346 It is clear that defamatory imputations set out in the articles received media attention in the United States soon after they were first published. But whether this was a consequence of the grapevine effect, or of the online articles being accessed, and so republished, in the United States, or was a consequence of both, was left uncertain. Whether and to what extent 'hits' on the online publications originated in the United States (assuming that this could be reliably ascertained) was not the subject of evidence. Nor was there evidence - if, indeed, the matter was ascertainable - whether the source material for tweets in the United States was an article or articles read online in the United States.
347 This aspect of the matter was the subject of submissions for the defendant at trial, and to some extent in this Court. But we make it clear immediately that our conclusions do not rest upon any alleged difficulties in the plaintiff's case on this account.
348 The judge then addressed principles applicable to consideration of a lost opportunity damages claim. He stated:
the plaintiff must enable the court to quantify the alleged damage. I bear in mind that in calculating the plaintiff's entitlement to special damages, I must do the best I can based on the evidence, and with the degree of certainty which the circumstances require, but where precise evidence is available the court expects to have it.[236]
... Once the assessment involves the assessment of possibilities, the court's task is more difficult because on the evidence it is impossible to be precise, but its duty is to assess the damages, no matter how difficult the task and no matter that the task involves speculation.[237]
349 His Honour referred to a submission for the defendant that:
where the calculation of damages is uncertain for lack of evidence, difficulties in assessment should be resolved against the party who could or should have provided the evidence. There are limits to a court's obligation to do the best it can to calculate a plaintiff's loss; damages will not be awarded where the evidence does not enable the court to rise above mere speculation or guesswork; and if the plaintiff's evidence fails to provide any rational foundation for a proper estimate of damages the court should simply decline to undertake an assessment.[238]
350 The judge did not there indicate whether he accepted or rejected that submission, but at several points in his Reasons he indicated, in substance, that he rejected it.[239]
In commercial cases, a plaintiff is usually required to plead and particularise its loss of opportunity in a manner that informs the resolution of the issue of whether the plaintiff could have and would have taken the opportunity and received the benefit that it would have yielded[240]
That said, the plaintiff is not required to prove that any particular alternative transactions would have been entered into. The plaintiff can do no more than point to the fact that she was an actor with an agent touting her services at a time when she had been receiving particularly favourable publicity. Transactions were expected but none was offered.[241]
352 There are, in our opinion, two problems in the second passage just cited. First, we do not accept that the plaintiff could do no more than, in effect, she did. There was potentially significant evidence which she could have been expected to adduce, but which she did not adduce.[242] Second, his Honour's statement that 'the plaintiff is not required to prove that any particular alternative transaction would have been entered into', drawn from La Trobe,[243] was, with respect, too broad a proposition. La Trobe was a very different case, in which there was no issue that alternative borrowers were available in the event that the mortgagee had not lent money to a particular mortgagor in consequence of a negligent valuation. The plaintiff was not required to identify any particular potential borrower. But here, the question whether any opportunity as characterised by the plaintiff existed was a threshold issue. The failure, in essence, of the plaintiff to identify any suitable role in respect of which no offer to participate was made to her in the asserted loss period was relevant to - though not decisive of - the question whether an opportunity had been established.
The difficulties presented in the exercise of assessing special damages in circumstances where hypothetical past events are in issue does not preclude the court from undertaking that task, although the cases make clear that proof of causation and quantification of damage must be carefully distinguished and considered.[244]
354 With respect to proof of causation, his Honour said that:
In this case, the issue of causation depended upon what third parties - film production studios, producers, and the like - would have done, and accordingly it was appropriate that that issue should be decided as the loss of a chance.[245]
355 As to quantification of damage, his Honour said, by reference to Sellars v Adelaide Petroleum NL,[246] that damages for deprivation of a commercial opportunity, 'should be ascertained by reference to the court's assessment of the prospects of success of that opportunity had it been pursued'.[247] He referred also to Malec v JC Hutton Pty Ltd[248] and to a summation of the position by Kiefel J in Tabet v Gett[249] where her Honour said:
Different standards apply to proof of damage from those that are involved in the assessment of damages. Sellars v Adelaide Petroleum NL confirms that the general standard of proof is to be maintained with respect to the issue of causation and whether the plaintiff has suffered loss or damage. In relation to the assessment of damages, as was said in Malec v JC Hutton Pty Ltd, 'the hypothetical may be conjectured'. The court may adjust its award to reflect the degree of probability of a loss eventuating. This follows from the requirement that the courts must do the best they can in estimating damages; mere difficulty in that regard is not permitted to render an award uncertain or impossible.[250]
The issues to be resolved can be distilled into the following questions, each requiring an affirmative answer, and with the plaintiff bearing the onus of proof on the basis just discussed.
(a) Did the plaintiff have an opportunity in the 18 month period from mid-2015 to the end of 2016 ('the loss period') to earn income by acting in feature films in the USA?
(b) Was that opportunity lost or detrimentally affected during the loss period?
(c) Having particular regard to the 'grapevine effect', was the conduct of Bauer Media in publishing the articles in Australia a cause of the loss or damage to that opportunity?
(d) What was the value of the opportunity that was lost or damaged? More precisely expressed, what, having regard to the exigencies and vicissitudes exposed by the evidence, is the degree of probability that the plaintiff would have achieved the full value of the opportunity?
(e) If yes to the preceding issues, in what sum should the plaintiff's claim to special damages be allowed?
(f) Alternatively, if the plaintiff has failed to prove an entitlement to recover an assessed sum in special damages, has the plaintiff demonstrated a loss of business or custom flowing from the publication of the defamatory articles that ought to be taken into account in assessing her general damages?[251]
357 The language in which his Honour identified the opportunity was less specific than the opportunity for which the plaintiff contended, and apt to mislead in another respect. It was less specific because one aspect of the asserted opportunity was that the plaintiff would be cast in a lead or co-lead role. More importantly, it was apt to mislead because, as his Honour had earlier recognised at Reasons [139], the plaintiff's lost opportunity focussed upon the absence of offers of roles fitting a particular profile. The existence of opportunity had and lost would have been demonstrated if the plaintiff could have shown that some project fitting that profile had been 'taken off the shelf' of some studio in the asserted loss period, but that she had not been offered the suitable role. As we will explain there was an attempt to show that this situation had arisen, but the attempt failed. Other than that, it was not enough for the plaintiff to show, in effect, that somewhere 'on the shelves' of some film studio there was an idea or project which, if it ever came off the shelf, and perhaps with adaptation, may have fitted the profile which she delineated.
358 Subject to what we have said in the preceding paragraph, and subject to Reasons [175] making no reference to remoteness, we agree that the questions there identified by his Honour were those which arose for decision.
359 Having identified the questions for resolution, his Honour addressed '[e]vidence of special loss'.
360 Before proceeding to make certain evidentiary findings, his Honour stated that:
The plaintiff's case in respect of causation was based around inferences to be drawn from her career trajectory in the United States to date.[252]
361 Nonetheless, in then referring to parts of the evidence of the plaintiff, Ms Jackson and Mr Principato, his Honour recounted evidence and made findings which bore upon both opportunity and causation.
In mid-2010, [Ms Wilson] won a small role in the film Bridesmaids, for which she was paid about US$3,000. The film, released in 2011, was a success.
Following the release in the United States of Bridesmaids, in which the plaintiff had only a small role and at a time when the plaintiff was new to Hollywood, the plaintiff was offered, and accepted, roles in many new film and television programs, including, Pitch Perfect, for which she received US$65,000 remuneration plus royalties of, at least, US$100,000, Ice Age: Continental Drift, for which she received US$20,000 remuneration plus royalties of, at least, US$50,000, What to Expect When You're Expecting, for which she received US$35,000 remuneration plus royalties of, at least, US$40,000, Bachelorette, for which she received US$15,000 remuneration plus royalties of, at least, US$30,000, Struck by Lightning, for which she received US$12,000 remuneration plus royalties of, at least, US$10,000, and Small Apartments, for which she received US$5,000 remuneration.
Pitch Perfect, a musical comedy ensemble film, was released in September 2012 and was an instant worldwide hit. The plaintiff had the role of Fat Amy, a co-lead role.
Following the successful release of Pitch Perfect, and as a result of her increased fame from that role, the plaintiff's television show, Super Fun Night, was 'greenlighted' (it went on to run on the American ABC network for 17 episodes, for which she received about US$2 million). I accept that the plaintiff concentrated at this time on the opportunity presented by the development of her TV show concept. She was also signed to reprise her role as Fat Amy in Pitch Perfect 2 for which she received US$2 million remuneration plus bonuses of about US$2 million and royalties of at least US$100,000. The plaintiff also won and performed some lucrative film roles in movies - Pain & Gain, A Few Best Men and Night at the Museum 3. She hosted the MTV movie awards in 2013.
On 15 May 2015, Pitch Perfect 2 was released in the United States. The plaintiff had a lead role in the film. As elsewhere noted, it enjoyed a very successful pre-release in Australia in the week preceding its US release. During that time, the plaintiff was extensively touring promoting the film. The film was very successful. It generated more revenue than any other musical film in its first 3 days.
...
Shortly prior to the release of Pitch Perfect 2, the plaintiff negotiated an option that set the remuneration she would be paid in the event that there was to be a Pitch Perfect 3, although at that time the project was conceptual and speculative. A script was yet to be developed.
The plaintiff was barely offered and did not secure a lead or co-lead role in any new feature film, or a lead or co-lead role in any new television series ('new screen roles') on the back of the success of Pitch Perfect 2.
In the absence of offers of new screen roles the plaintiff worked hard to find alternative work for which she received significantly less remuneration than she would have received for new screen roles. She played a cameo in the film Absolutely Fabulous, took a stage role in a London revival of the musical Guys and Dolls, (remuneration of US$400,000), accepted small roles here and there, various television commercials, and guest appearances (The Big Music Quiz, AUD$200,000; The Little Mermaid concert, US$100,000). The plaintiff also developed projects in the hope of creating major roles for herself, examples being remakes with gender reversal of Dirty Rotten Scoundrels and Private Benjamin. However as Ms Jackson explained, development projects of that kind are entirely distinct from the kinds of high profile film roles that Ms Wilson had won and performed in Bridesmaids, Pitch Perfect and Pitch Perfect 2.
By the beginning of 2017, the plaintiff was back working in film. The Pitch Perfect 3 project to which she had been signed was eventually developed and was rehearsed and filmed between January and April 2017. It is anticipated that the movie will be released in about December 2017. The plaintiff was to begin rehearsing and filming Isn't it Romantic shortly after the completion of the trial. This movie was a project developed by the plaintiff. It is scheduled for release in February 2018.[253]
363 Certain aspects of the findings just noted, which made use of the notion of 'trajectory', painted a picture that was said for Bauer to be inaccurate and incomplete.
364 It was obviously necessary for his Honour, in determining the validity and any limits of utility of the plaintiff's 'trajectory' contention, to chart the plaintiff's career accurately in the lead-up to the release of Pitch Perfect 2.
365 His Honour found at Reasons [180] that, after the release of Bridesmaids, the plaintiff 'was offered, and accepted, roles in many new film and television programs'. He then referred to Pitch Perfect, Ice Age: Continental Drift, What to Expect When You're Expecting, Bachelorette, Struck By Lightning and Small Apartments, in each instance setting out remuneration received by the plaintiff.
366 The contract for Bridesmaids was entered into on 17 May 2010.[254] It gave the plaintiff a week's work, and remuneration was a little over US$3,000. The plaintiff gave evidence that she thought she was paid $3,500. The film was released in the United States in late April 2011. The plaintiff described the gap of 'just under a year' between filming and release as 'standard'.
367 The unexecuted contract for Small Apartments which was put into evidence is dated 'as of' 4 April 2011, the footer to the contract bears the date 5 April, and the plaintiff's start date is stated as 6 April. All those dates preceded the release of Bridesmaids and so the contract may have been irrelevant to post-Bridesmaids trajectory. The issue, however, is not quite clear, because the plaintiff gave evidence that the film was 'booked' after the release of Bridesmaids. The judge's relevant finding at Reasons [180] may be, but is not necessarily, erroneous.
368 In any event, under the Small Apartments contract, the plaintiff was guaranteed one day's work. Remuneration was set at the 'Minimum Weekly Compensation required under the Low Budget Agreement of the Screen Actors' Guild Codified Basic Agreement' plus 10 per cent. The plaintiff's evidence was that she might have received '$1,000 somewhere'. The judge found that she had received $5,000.[255]
369 The contract for Bachelorette was signed on 25 August 2011, and so post-dated the release of Bridesmaids. The plaintiff described her role as 'pretty sizeable'. The contract provided for remuneration of $2,864 plus 10 per cent per studio week, with engagement for not less than four weeks. The plaintiff gave evidence 'from memory' that she might have received about $30,000. The judge found that she had received $15,000 plus royalties of at least $30,000.
370 The contract for Struck by Lightning was dated 20 July 2011, and so post-dated the release of Bridesmaids. The plaintiff described her role as the lead character's best friend at high school. Under the contract, there was a guaranteed period of two weeks' work. Seven days' work was specifically identified. Payment was to be at the minimum weekly rate in accordance with the Screen Actors' Guild Low Budget Theatrical Agreement. The plaintiff was also entitled to a merchandising royalty in certain circumstances. Ms Wilson's evidence was she thought she had received about $10,000 for her work. The judge found that she had received $12,000 plus royalties of at least $10,000.
371 The contract referable to What to Expect When You're Expecting was made 20 July 2011 and signed by the plaintiff on 6 September 2011, and so post-dated the release of Bridesmaids. The remuneration payable was $2,864 plus 10 per cent per studio week. One week's pay was guaranteed. An additional amount might become payable in accordance with the Screen Actors' Guild Agreement. The plaintiff described her role as a 'comedic sidekick' in a 'pregnancy movie'. She had no lines, but could improvise lines. She gave no evidence as to the remuneration which she had received. The judge found that she had received $35,000 plus royalties of at least $40,000.
372 The contract referable to Ice Age 4 (also described as Ice Age: Continental Drift), in which the plaintiff performed a voiceover animation for 'Raz', 'a little kangaroo character', had a start date of 25 October 2011. The plaintiff said that her role was not 'a huge character, but it was fun to do'. The contract required the plaintiff to render voiceover services for no less than three days. The guaranteed payment for that work was $15,000. The contract also provided for overages at the daily rate of $5,000,[256] and that the plaintiff would receive a certain percentage of merchandising net receipts. The plaintiff gave no evidence as to remuneration received by her under that contract. The judge found that she had received $20,000 plus royalties of at least $50,000.
373 The contract for Pitch Perfect, dated 6 September 2011, provided for basic remuneration of $68,000. The plaintiff played 'Fat Amy', one of an all-female a cappella group, in this extremely successful musical comedy. The judge found that, in addition to basic compensation of $65,000,[257] the plaintiff had also received royalties of at least $100,000.
374 Without in any way seeking to minimise the roles in which the plaintiff was engaged after Bridesmaids and before the release of Pitch Perfect on 28 September 2012, it is the fact that the roles which the judge identified at Reasons [180] were, for the most part, subsidiary and at relatively low remuneration. Moreover, the judge may have been wrong to include the plaintiff's role in Small Apartments in the group of post Bridesmaids contracts. Further again, the overall remuneration which the judge found that the plaintiff received in respect of the various contracts always exceeded such evidence of remuneration as could be gleaned from the contracts, or as was given by the plaintiff, and in some instances made findings of receipt of remuneration of which neither the plaintiff nor anyone else had given evidence. The amounts mentioned by his Honour evidently had their origin in paragraph 4 of the plaintiff's solicitors' letter dated 15 September 2016 which provided 'further particulars of special damages'. Despite the fact that, as was common ground, those particulars did not become evidence in the trial,[258] his Honour appears to have treated them as being, in effect, conclusive evidence of amounts received by Ms Wilson. This is so notwithstanding that in some instances they were at odds with her evidence and not readily reconcilable with contracts which were put into evidence, and notwithstanding that in other instances there was no evidence at all of amounts paid to the plaintiff.
375 The next matter requiring mention is that his Honour stated, at Reasons [182], that the plaintiff's television show Super Fun Night having been 'greenlighted' after the release of Pitch Perfect, ran for 17 episodes for which the plaintiff received about $2 million.
376 The evidence showed that a 'Holding Agreement for Pilot with Series Option' for Super Fun Night - about 'girls who were kind of dorky who didn't like to go out and were forcing themselves to go out into the world' - was entered into on 17 August 2011 between the plaintiff and Bonanza Productions Inc. It showed also that the US television company ABC 'greenlighted' the program after the release of Pitch Perfect. It is also the fact that the program, which was written and produced by the plaintiff, and in which she also performed, ran for 17 episodes. What his Honour did not say, however, in the summation to which we have just referred, is that:
(1) the Holding Agreement contemplated potential continuance of the program, by exercise of annual options, for up to seven years;
(2) the program was scheduled so as to immediately follow a very successful program (Modern Family); and
(3) production ended after one season of 17 episodes in circumstances where, the plaintiff said, 'it launched really well and then the numbers just dwindled, so it was clear that - I wouldn't call it a success'.
377 Further, his Honour's conclusion that remuneration received was 'about $2 million' seems not to have been based on evidence given by the plaintiff. Neither was such an amount disclosed by tax returns and statements of revenue and expenses (conveniently, 'statements' and, individually 'statement') of Camp Sugar. The program ran between early October 2013 and, according to the witness Ms Kate Jenkinson, April or May 2014. Revenue for calendar year 2014 relevantly included amounts for writing, producing and acting in Super Fun Night, amounting in all to $274,708.20. Other than that, receipt of a small amount ($2,053.20) was noted in the 2016 statement. In the event, it appears that his Honour's conclusion that the plaintiff received about $2 million - an amount vastly in excess of the amount disclosed by the evidence - was based on the particulars of special damage to which we have referred, which were not evidence in the trial.
378 Then we should refer to his Honour's observation at Reasons [182] that, following the release of Pitch Perfect, the plaintiff 'won and performed some lucrative film roles in movies - Pain & Gain, A Few Best Men, and Night at the Museum 3'.
379 His Honour's reference to A Few Best Men as having followed the release of Pitch Perfect was erroneous. The contract for that film was signed on 21 January 2011, for an engagement which was to begin almost immediately.
380 So far as Pain & Gain is concerned, a contract dated 'as of 3/26/2012' (that is, 26 March 2012) was put into evidence. The contract recited that employment was to begin on '3/29/2012' (that is, 29 March 2012). A daily rate was guaranteed for an initial period of four days at $825 plus 10 per cent. There was then a further guaranteed period of seven weeks at $2,864 plus 10 per cent per week. The contract also made provision for a small merchandising and publishing royalty. It will be noted that the weekly rate was no different to that provided for in Bachelorette and What to Expect When You're Expecting, each of which contracts had been entered into more than a year earlier. The total amount received by the plaintiff under this contract was a little under $33,000.
381 We turn to Night at the Museum 3. An 'as of' contract dated 7 January 2014 was put into evidence. In all, it provided for guaranteed periods totalling four days' work. The producer could require the plaintiff to provide additional services. Fixed remuneration was $100,000. Any overages were to be paid at $25,000 per day. A merchandising royalty was also payable. The plaintiff gave no evidence as to remuneration received pursuant to that contract. Nothing at all was said in the particulars about Night at the Museum 3. The statement for 2014 did reveal, however, remuneration of about $302,000 attributable to the film.
382 We return to his Honour's description of the film roles in Pain & Gain and Night at the Museum 3 being 'very lucrative'. The description is relative. Ordinary wage earners in Australia would not regard the amount received by the plaintiff for Night at the Museum 3 as being anything other than substantial. The amount received by the plaintiff for her work in Pain & Gain was very much less, but still not small by the standards of the ordinary Australian wage earner. Nonetheless, the plaintiff's case was that, after Pitch Perfect, her trajectory was on a path leading to the conclusion that, after the successful release of Pitch Perfect 2, she would have expected offers of lead or co-lead roles at $5 million basic compensation or more. The question of trajectory must necessarily have focussed upon the case thus advanced.
383 The judge, with respect, wrongly included A Few Best Men in the post-Pitch Perfect catalogue of contracts, did not advert to the relative lack of success of Super Fun Night, much overstated the plaintiff's earnings from that production, and described the plaintiff's role in Pain & Gain as 'lucrative' when the remuneration which she received was akin to remuneration received by her for Bachelorette (contract, August 2011) and significantly less than remuneration which she received for Pitch Perfect (contract, September 2011).
384 To bring the position up to the time of the release of Pitch Perfect 2 in May 2015, we must refer to other projects for which the plaintiff was engaged.
385 The first of them, of course, was Pitch Perfect 2, the contract for which was signed as of 17 April 2014. Guaranteed compensation was $2.5 million. Bonuses were payable depending upon box office receipts. Receipts of a little over $4.5 million were disclosed by the statements for calendar years 2014 (about $2.5 million) and 2015 ($2 million in bonuses).
386 Then there was Grimsby,[259] described by the plaintiff as 'another comedy film', the majority of which she had filmed before moving on to film How to be Single. A contract dated as of 21 May 2014 was put into evidence. Guaranteed compensation was $200,000. The plaintiff gave no evidence of her earnings from her participation in that film. But the Camp Sugar statements for 2014 and 2015 disclosed receipts of almost $270,000 attributable to it.
387 Next, we refer to the animated film, Kung Fu Panda 3. The contract was dated as of 16 January 2013. The plaintiff was to provide voice recording services - as a female panda who was a love interest to the main panda - for a guaranteed period of no fewer than five days or ten half-days. Basic remuneration was to be $10,000 per full-day, and $5,000 per half-day. Basic compensation was not to be less than $50,000. If the picture was produced and released as a feature-length production, if the plaintiff's voice was used, and provided that the contract had not been terminated, then depending upon box office receipts, bonuses would be payable which could accumulate to $805,000.
388 The Camp Sugar statement for calendar year 2014 reveals receipt of $15,000 referable to Kung Fu Panda 3, and the statement for 2015 also shows receipt of $15,000. The plaintiff's services under that contract were terminated. It may be, in those circumstances, that the balance of the agreed basic compensation was not payable. The judge was not persuaded that the articles were a cause of the plaintiff's engagement being terminated.[260]
389 We must next mention the animated film Trolls. Dated as of 12 September 2014, the contract in this matter was based on the Kung Fu Panda 3 contract and was largely expressed in the same language. The daily and half-daily remuneration was the same. Bonuses could possibly accumulate to $1.075 million. Again, as later discussed, the plaintiff's services were terminated, and the judge was not satisfied that the articles were a cause of the termination.[261] The statement for calendar year 2014 evidences receipt of $5,000 referable to this project, and the statement for 2015 shows receipt of $45,000 - that is, totalling the agreed minimum basic compensation of $50,000.
390 We should also refer to the comedy film How to be Single. A contract dated as of 13 January 2015 was put into evidence. The nominated start date was 15 May 2015, but apparently filming commenced somewhat earlier. Agreed remuneration was $2 million on a 'flat deal' basis. An additional amount was to be payable if post-production services extended beyond eight days. Payment of bonuses depended on worldwide box office receipts. There was also a 'participation' payment. Camp Sugar's 2015 statement showed receipt of $2 million. No further amount was noted as having been received in the 2016 statement.
391 The plaintiff described the plot of this film as 'single ladies in New York City dealing with love and life'. As we have said, the movie was being filmed at the time of publication of the articles. The plaintiff gave evidence that the physical and emotional sequelae of the articles was such that a lot of the scenes which were shot in the week following publication were deleted from the movie. She said that her character 'kind of disappear[ed] for a bit ... and comes back at the end because those scenes were deleted'.
392 We should further mention the plaintiff's evidence that, as at the time of publication of the articles, she had no contracts for new film roles; that she had had nearly completed filming Grimsby; and that four to five weeks' filming of How to be Single remained. Thus, at the time of publication of the articles, the plaintiff, despite her success in Pitch Perfect, was only a few weeks away from completing movie contracts then on foot. This may be said to underline the uncertain nature of the film industry, and as well bear upon the 'dip' in income relied upon by the plaintiff.
393 We pause to analyse the situation we have just described in the period between the release of Pitch Perfect in September 2012 and the release, more than two and a half years later, of Pitch Perfect 2 in May 2015. These things may be said:
(1) The plaintiff was engaged to perform, in that period, in Pitch Perfect 2, Super Fun Night, Pain & Gain, Night at the Museum 3, Grimsby, Kung Fu Panda 3, Trolls and How to be Single. There were also commercials and one-night engagements.
(2) Basic remuneration and possible bonuses for Pitch Perfect 2 outstripped basic remuneration payable under any other of the contracts just mentioned. The basic remuneration in the case of the engagements for Kung Fu Panda 3 and Trolls was, in relative terms, very low.
(3) Bonuses contingently payable in respect of Pitch Perfect 2 far outstripped the bonuses that might have been earned in any other instance.
(4) In all, the disproportionate basic remuneration payable, and the bonuses which might become payable, in respect of Pitch Perfect 2 are sensibly explained by the film maker's desire to capitalise on the very successful Pitch Perfect by producing a sequel.
(5) The plaintiff put a very large amount of time and effort, as she said, into writing, producing and acting in Super Fun Night. The judge found that she did so, in effect, at the expense of taking other film roles. There is no reason to doubt that finding. But the program was not commercially successful. This was a speed hump in the plaintiff's career. The same may be said of the termination of her engagements in Kung Fu Panda 3 and Trolls, whether such termination occurred after publication of the articles (as his Honour found) or before publication.
(6) Except for her co-lead roles in Pitch Perfect 2 and How to be Single, none of the films in which the plaintiff was engaged to perform involved her in a lead role, still less a lead role in a major feature film.
(7) All of the screen roles had a comedic or musical/comedic aspect.
(8) The plaintiff's earnings, as disclosed by Camp Sugar's tax returns, increased in calendar 2014 and again in calendar year 2015. In 2014, receipts from Pitch Perfect 2 constituted $2.5 million out of total income of $3.9 million. In 2015, Pitch Perfect 2 contributed $2 million, How to be Single, $2 million, and a commercial for British Telecom, $1 million - that is, $5 million, out of total income of $5.7 million.
(9) The plaintiff was not far from completing such contracts as were then on foot. This was not a matter to which the judge referred in his reasons.
394 Next, it is correct to say that over the period of years now under consideration, the increase in the plaintiff's overall earnings was largely attributable to income derived from a few substantial contracts. Nonetheless, all of the engagements, including Pitch Perfect 2, were at basic remuneration far below the basic remuneration contended for by the plaintiff as a part of her lost opportunity claim.
395 Finally, in relation to his Honour's analysis of the trajectory of the plaintiff's career between the release of Bridesmaids and the release of Pitch Perfect 2, for reasons which we have attempted to explain at [360]-[393], we respectfully consider that his Honour's reasons were in some respects erroneous, in other respects incomplete, and in a number of instances relied upon material which was not in evidence. The overall impact of these matters was to give a picture of the plaintiff's career trajectory which significantly overstated its success, and ignored its hiccups.
396 We turn to the findings made by His Honour with respect to the negotiation of Pitch Perfect 3, excerpted at [362] above.
Shortly prior to the release of Pitch Perfect 2, the plaintiff negotiated an option that set the remuneration she would be paid in the event that there was to be a Pitch Perfect 3, although at that time the project was conceptual and speculative. A script was yet to be developed.
398 This was, with respect, incomplete. First, the evidence of the plaintiff was that, two days before the release of Pitch Perfect 2, because the studio wished to lock her into a deal for a third movie, 'a kind of really cool deal' was negotiated by which the basic remuneration she would receive for Pitch Perfect 3 was to be based on the box office performance of Pitch Perfect 2. She further said that, 'luckily', she had 'Pitch Perfect 3 already agreed to' before the publication of the articles. But she also said that in 2015, Pitch Perfect 3 'wasn't an existing project'; and that it did not become a project until 2017. She gave a little evidence with respect to 'as of' dates in contracts[262] and with respect to one aspect of the footer to the Pitch Perfect 3 contract.[263]
399 Second, the evidence of Ms Jackson was that she negotiated the Pitch Perfect 3 'deal' before Pitch Perfect 2 came out. The box office bonuses and box office bonus structure had been agreed before the release of Pitch Perfect 2. But, the witness said, when the contract was signed was 'another story', because lawyers sometimes take their time. Pausing, Ms Jackson's specific evidence focused upon the box office bonus arrangements, not basic compensation.
400 Third, there was an email chain embracing the period 2 April to 5 May 2015 which involved the studio, Ms Jackson and Warren Dern (the plaintiff's US attorney) with respect to Pitch Perfect 3. The general idea was that basic compensation would be determined by the box office performance of Pitch Perfect 2, and that box office bonuses would be determined by the box office performance of Pitch Perfect 3. The studio was pushing the position that, as basic compensation rose, box office bonuses should diminish. As at 5 May 2015, Mr Dern was proposing a counter proposal to the studio with respect to the scaling of basic remuneration. There, the matter rested, so far as documentation is concerned, before publication of the articles.
401 Fourth, the contract as executed fixed basic remuneration at an amount which was consistent with the method of quantification discussed in the email chain. But box office bonuses were structured in a considerably different way from that which had been under discussion in the period between 2 April and 5 May 2015. Moreover, the studio's idea that, as basic compensation rose, so box office bonuses should become somewhat smaller, had been abandoned.
402 It was, in our opinion, unsafe to conclude that an option which set remuneration for Pitch Perfect 3, then no more than a potential project, had been negotiated to finality before the release of Pitch Perfect 2. That leaves for later consideration the questions when the contract for Pitch Perfect 3 was (1) in substance, and (2) formally, concluded.
403 Next, it is the fact - it was a central feature relied upon in the case advanced for the plaintiff - that, as the judge said:
The plaintiff was barely offered and did not secure a lead or co-lead role in any new feature film, or a lead or co-lead role in any new television series ... on the back of the success of Pitch Perfect 2.[264]
404 The judge made findings at Reasons [187], which for convenience we set out again, about the plaintiff's response to the lack of offers of lead or co-lead roles:
In the absence of offers of new screen roles the plaintiff worked hard to find alternative work for which she received significantly less remuneration than she would have received for new screen roles. She played a cameo in the film Absolutely Fabulous, took a stage role in a London revival of the musical Guys and Dolls, (remuneration of US$400,000), accepted small roles here and there, various television commercials, and guest appearances (The Big Music Quiz, AUD$200,000; The Little Mermaid concert, US$100,000). The plaintiff also developed projects in the hope of creating major roles for herself, examples being remakes with gender reversal of Dirty Rotten Scoundrels and Private Benjamin. However as Ms Jackson explained, development projects of that kind are entirely distinct from the kinds of high profile film roles that Ms Wilson had won and performed in Bridesmaids, Pitch Perfect and Pitch Perfect 2.
406 First, it can readily be accepted that, in the absence of offers of new screen roles, the plaintiff worked hard to find alternative work.
407 Second, it is true that the plaintiff received a very small amount for playing a cameo role in the film Absolutely Fabulous: The Movie.
408 Third, the remuneration which the plaintiff received for her London stage performance in Guys & Dolls - a little over $400,000 for the period of eight weeks commencing 28 June 2016 - in fact compared favourably, both as to the gross amount payable and the weekly rate, with remuneration for work which the plaintiff had undertaken before the publication of the articles, excepting Pitch Perfect 2 and How to be Single. Whether the remuneration which the plaintiff earned for her role in Guys & Dolls was 'significantly less remuneration than [the plaintiff] would have received for new screen roles' depended upon a conclusion that the new screen roles would all have achieved remuneration levels at and above the remuneration received by the plaintiff for Pitch Perfect 2. This was no more than the plaintiff's case. So to conclude assumed, in effect, that but for the articles the plaintiff would have received and accepted offers of such roles in the relevant period, which was, of course, in dispute at trial.
409 Fourth, his Honour's reference to 'various television commercials' was accurate, but incomplete. The plaintiff's earnings from commercials and endorsements in 2015 and 2016 were very substantial. The statement for calendar year 2015 showed receipt of $1 million from British Telecom and $450,000 for promotion of a fashion label. The statement for calendar year 2016 showed receipt of $1.3 million from commercials (including $1 million from booking.com), and $519,000 for the fashion label promotion. It also disclosed significant earnings from personal appearances. Receipt of those very substantial amounts bears upon the questions of lost opportunity and causation which we discuss later.
410 Fifth, his Honour's reference to The Little Mermaid was accurate so far as it went. But there was more to the engagement than just the receipt of $100,000:
(1) Dated 2 May 2016, the other contracting party was Columbia Artists Management LLC.
(2) The Little Mermaid was a Disney concept, Disney being the epitome of family entertainment.
(3) The contract described the plaintiff as a 'special guest' and stated that she would share top billing.
(4) The plaintiff was to be paid $75,000 for two performances and an additional $37,500 for any additional performance. She was apparently paid for three performances,[265] some indication that the program, held at the Hollywood Bowl, was popular.
(5) The contract provided that one particular song was to be performed by the plaintiff 'live-to-picture (movie), as a featured guest artist during a full-length screening of the film'.
411 In all, The Little Mermaid was a contract for performance by the plaintiff in what appears to have been a successful family-friendly production in Hollywood. Those circumstances bear upon the question of causation, whilst at the same time evidencing receipt of considerable remuneration for three performances and a day of rehearsal.
412 Finally, with respect to his Honour's observation that 'as Ms Jackson explained, development projects [such as Dirty Rotten Scoundrels and Private Benjamin] are entirely distinct from the kinds of high profile film roles that Ms Wilson had won and performed in Bridesmaids, Pitch Perfect and Pitch Perfect 2, we make the following observations.
413 The first thing to be said is that, as we have noted, the plaintiff did not have a high profile film role in Bridesmaids. What she did was to make a real success of a small part.
414 The next thing to be said is that the plaintiff's role in Pitch Perfect was as one of an ensemble cast in a movie for which she was remunerated a relatively small amount, the movie achieving unexpected and extremely considerable success, and enhancing her reputation.
415 The third thing to be said is that the plaintiff's subsequent engagement in Pitch Perfect 2, having regard to the success of Pitch Perfect, was clearly due to the plaintiff's very successful participation in Pitch Perfect.
416 Next, the evidence showed that there is an evident distinction between a role being offered to and accepted by an actor on the one hand, and, on the other hand, the actor engaging in a development project. The common intention, however, is that each of them should yield the result that the actor is engaged to perform a role in a project which is green lighted.
417 Further with respect to development projects, the evidence showed that they may be either one of two kinds. A studio may have a project on the shelf, which an actor offers to develop to the point where it is green lighted. Isn't it Romantic and Private Benjamin were of that kind. An actor may do such development work for nothing, 'on spec'; or, as happened in the case of Private Benjamin, for some remuneration. Alternatively, an actor may have a concept and 'sell' to a studio the idea of working it up to the point where the studio will 'greenlight' the project. The development of a re-worked Dirty Rotten Scoundrels was 'sold' by the plaintiff to MGM on that basis, with MGM undertaking at its cost some at least of the development work.
418 The television series Super Fun Night also fitted into the second category.[266] Thus, well before publication of the articles, the plaintiff was not unused to a development project as a potential source of work. She agreed that, as at late 2015, she had plenty of projects in development.
419 Further in relation to development projects of the two kinds, we should refer to some of Ms Jackson's evidence. With respect to the films Isn't it Romantic and Dirty Rotten Scoundrels there were these questions and answers:
In order for that production to, as you describe it, go into development, you'd agree that New Line productions have to agree with Ms Wilson to put it into development?---Well, there's no formal 'put it into development'. There were conversations where the executives and the producers talked to Rebel about the project and we said, 'Let's try to get a draft that people might like'.
I put to you that those conversations occurred as early as May 2016?---I don't recall.
Can I put to you that what was proposed as part of the conversations you're referring to was that the movie Isn't It Romantic would be put into development with Ms Wilson to star in the lead role?---Okay. I think that the script was already at New Line and probably had been there for years because - it's hard to explain how movie studios work, but each studio could have, you know, 50 to 100 scripts in development at a time over the course - you know, some scripts are - maybe a movie comes out this year. Some scripts could have been - that movie could have been in development for 10 to 20 years, you don't know, so it's not a guarantee, it's just - you hope for the rest.
I want to now also suggest to you, Ms Jackson, that Ms Wilson was offered a lead role in the film Dirty Rotten Scoundrels as early as 4 August 2016?
---Your term 'offer' is incorrect. What happened was we asked MGM to sit down with Rebel generally, during which she brought up to the president of the studio the title Dirty Rotten Scoundrels and suggested that it could be interesting to once again develop. There was no such thing as an offer that happened.
What happened after she sat down with MGM and discussed this was something she was interested in developing?---They put a writer on to the project and that writer wrote a draft of the script.
And who paid for the writer?---MGM.
Has that script been prepared?---Yes.
That project, Dirty Rotten Scoundrels, is a project to which Ms Wilson remains aligned?---Yes.
And it is intended that she will play a lead role in that movie, isn't it?---Yes.
420 The evidence, including Ms Jackson's evidence as just excerpted, showed that in February 2016 (Private Benjamin), May 2016 (Isn't it Romantic) and August 2016 (Dirty Rotten Scoundrels) two Hollywood studios did not shun the plaintiff. New Line (earlier, the producer of How to be Single) engaged with the plaintiff with respect to Private Benjamin and Isn't it Romantic. MGM engaged with the plaintiff with respect to Dirty Rotten Scoundrels. The costs of two of these projects were borne in part by the studios.
421 We consider that the fact that the plaintiff and two studios engaged in three development projects in 2016 showed that there were projects or ideas 'on the shelves' of one company, and a project or idea which another company was willing to assist the plaintiff to develop, which, with development in either case, could end up as a green lighted project in which the plaintiff had a lead or co-lead role. This emphasises that the plaintiff's case depended upon proof not simply that such roles were nominally 'somewhere out there' in the asserted loss period, but also that the grapevine effect was a cause of some such project(s) not being taken off the shelf and role(s) offered to the plaintiff. Of course, as we observed at [357] above, if the plaintiff could have shown that such a project had been taken off the shelf in the asserted loss period, but that she had not been offered the suitable role, then the issue of causation could be given specifically focussed consideration. Mr Principato's evidence identifying four films was an attempt to set up that situation. But, as mentioned, and, for reasons later discussed, it failed.
422 We return to the thread of his Honour's reasons. He next adverted to the evidence of Mr Principato. By his Honour's ruling, Mr Principato had been permitted to give expert evidence.
423 It was, and is, not in dispute that Mr Principato was a talent agent of more than 20 years' experience, having been employed for five years by WME, and having been a principal in his own business, which was described as one of the top five entertainment and management firms in the United States, since 1997. He had also produced numerous films and television programs.
424 The judge stated that Mr Principato had expressed three opinions:
(a) Ms Wilson was highly likely to have received, in the year or two following the release of Pitch Perfect 2 (being 2015 and 2016), several offers from studios as a lead or co-lead actor.
(b) Ms Wilson would have received compensation on each film in the range of fixed compensation between USD$5 and USD$6 million, plus box office bonuses.
(c) Because of the change that he observed in the demand for Ms Wilson's services, and because he is not aware of any reason that Ms Wilson would not have received at least 2 to 3 offers per year after Pitch Perfect 2 other than the coincidence of timing, it is his opinion that the defendants' publications resulted in the decrease in Ms Wilson's acting work.[267]
425 His Honour noted 'some limitations'[268] on the witness's expressed opinions. Thus:
(1) He had not undertaken any independent research.
(2) His expressed opinions were collated as his response to questions asked of him in conversations lasting about an hour in total.[269]
(3) His opinions appeared to be 'based on the flow of information with regards to movies and who's getting cast into movies and things along those lines' that were his recollections at the time of his conversations with lawyers.[270]
(4) He appeared to have little specific knowledge of the plaintiff's acting career up to the time of Pitch Perfect 2, although he did identify that he considered her to be a comedic actor, with perhaps a prospect of crossing over into drama.[271]
Cross-examined, Mr Principato identified four possible roles that he considered the plaintiff could have been appropriate for following the release of Pitch Perfect 2. He accepted that in the roles to which Ms Wilson was best suited she faced competition, for example Amy Schumer also possessed a strong female comedic voice and was significantly cheaper...[272]
(1) Mr Principato prepared two written reports, the first after conferring with the plaintiff's United States attorney, the second after conferring with her Australian solicitor. He had the opportunity of exploring the plaintiff's career and career prospects. But the reports were very lacking in detail.
(2) In his first written report, Mr Principato identified two possible roles that were suitable for the plaintiff. He did not know until cross-examined that the plaintiff had rejected one of those roles before publication of the articles. He could not say whether another actor had been announced as having the role in the other movie on 22 May 2015.
(3) In oral evidence, Mr Principato nominated two other possible roles suited to the plaintiff. He did not disagree that one of them had been cast in about January 2015 and that the film was shooting in June that year. No detail of the fourth film emerged in the evidence.
(4) The judge's description of Mr Principato's evidence as excerpted above made no mention of the second and third matters to which we have referred. But they were circumstances later mentioned by his Honour.
428 Bauer attacked the witness's evidence as to causation. The judge accepted that the criticism had 'some force'.[273] But then his Honour said this:
What Mr Principato stated, in substance but not in terms, was that the coincidence of an absence of film offers and the defamatory sting of the publications being communicated by a grapevine effect was improbable, unusual or inexplicable. I am satisfied that each premise for that opinion is established. I will come to the latter premise shortly.[274]
429 With respect, what the judge took to be the substance of Mr Principato's statement was outside the witness's professed expertise - a matter which his Honour subsequently accepted.[275] Moreover, bearing upon the grapevine effect, Mr Principato did not even know about the articles at any relevant time, and gave no evidence that any of the imputations conveyed had any currency in Hollywood in the relevant period.
430 In any event, his Honour then referred to Mr Principato's evidence as to 'the absence of film offers', summarising the position this way:
His opinion, which I accept, was that there was no shortage of possible projects or roles for which attachment to a star actor makes the project real or viable and in his experience the plaintiff could command a fee of USD$5 to 6 million, plus box office bonuses and carry the movie as a lead or co-lead actor. His evidence was limited to process and did not exten[d] to identifying specific projects that were lost by the plaintiff. That specific projects were not identified does not detract from his conclusion about the process by which roles are cast ...[276]
431 That summary was, with respect, at least incomplete. Mr Principato attempted to identify roles that were suitable for the plaintiff, and his evidence in that connection was unsuccessful. Moreover, the broad assertions which he made about the plaintiff's prospects were made against a background where his evidence revealed that he had substantial ignorance of her acting career.
432 Then, as to Mr Principato's evidence respecting causation, the judge expressed this conclusion:
Mr Principato explained that the coincidence between the plaintiff's success and the absence of further film offers was outside his experience and informed expectation. His opinion that the absence of new screen role offers in the loss period was not explained by any particular event, phenomenon or circumstance withstood cross-examination. This was his explanation for the causal link that he identified. Bauer Media did not put any alternative scenarios or counterfactuals to Mr Principato that might have provided the basis for an innocent explanation of the coincidence.[277]
433 Mr Principato claimed no expertise with respect to cause and effect. His reasoning was essentially of the post hoc, ergo propter hoc kind.[278] Indeed, having stated that the witness's opinion stood up as far as it went, his Honour then went on, at Reasons [203], correctly, in our view, to dismiss that part of his evidence.
434 The judge summarised his conclusions respecting Mr Principato's evidence this way:
Having carefully considered the substance and scope of Mr Principato's evidence I have concluded that his opinion is mostly based in, and reasoned from, his expertise and cannot be dismissed as mere speculation. Nevertheless the defendants made cogent criticisms of the uncertainty in his methodology and in his evidence and these criticisms warrant a very careful and conservative assessment of the probative value of his opinions.
In particular, notwithstanding s 80 of the Evidence Act 2008 (Vic), I do not accept Mr Principato's opinion that it was the defendant's publications that resulted in the absence of new screen offers to the plaintiff in the loss period is a conclusion that has been reasoned from premises established on the evidence by the application of specialist knowledge, skill and experience through a path of reasoning that shows the application of his expertise. Whether it is open and proper to infer that the defendants' publications were a cause of the absence of new screen offers is an ultimate issue to be determined by me in a circumstantial case, an issue that will be discussed in due course. The evidentiary basis on which I determine that issue differs significantly from the assumptions made by Mr Principato and that fact, as well as the cogent criticisms made of this conclusion by Bauer Media, renders the opinion that he has expressed about cause to be of no use to me. I will not rely on his concluding opinion because it addresses a question for me - whether that inference is properly open on the whole of the evidence in the proceeding.[279]
435 Nonetheless, the witness's evidence was not of no moment to his Honour's analysis. Thus:
In a circumstantial causation claim, the criticisms of Mr Principato's evidence, although relevant, were not ultimately determinative in assessing its weight in respect of how Hollywood allocates work and like matters that fall short of his ultimate conclusion on causation. Mr Principato supported the plaintiff's evidence and that of Ms Jackson, which I accept, as to her expected career trajectory following the release of Pitch Perfect 2, the existence of opportunities for new screen roles, the expected actor's fee and other matters not directly linked to the defendants' publications.[280]
436 It is the case that Mr Principato, whose evidence showed that he knew almost nothing about the plaintiff's career, with its successes and speed hump, up until the time of the release of Pitch Perfect 2, opined in his second report that the plaintiff was 'highly likely to have received, in the next year or two after the release of Pitch Perfect 2, several offers from studios as a lead or co-lead actor' apparently in comedic roles. He then sought to improve upon that opinion by stating that he was unaware why the plaintiff 'would not have received at least two to three offers per year after Pitch Perfect 2' other than the articles which he did not know existed, and he then sought to improve his evidence again, by saying that 'two to three would be actually a small number but at least an average'.
437 It is next the fact that the witness had done no research as might have revealed possible projects suitable for the plaintiff's talents. Nothing suggests that he had spoken to any decision-maker at any one of the many Hollywood studios. His apparent 'off the cuff' nomination of four roles that would have suited the plaintiff lacked support. Nor does he seem to have known anything about the plaintiff's development projects - so as to be able to comment upon the significance or otherwise of studios engaging with her in connection with such projects. Nor again does he seem to have known about work which the plaintiff actually did in 2015 and 2016. Further, his opinion assumed that the 'deal' for Pitch Perfect 3 had been locked away before the publication of the articles - although he stated that the plaintiff was not 'hired' for that film until February 2017.[281]
438 In all, Mr Principato's evidence, so far as the judge relied upon it, was set against a background of substantial ignorance of the plaintiff's career, of absence of research, was expressed at a very high level of generality, and relied upon an unexaminable 'flow of information'. This evidence could only have been of limited utility when his Honour came to consider what inferences he should draw as to the existence of opportunity and causation. The plaintiff's submission that the defendant 'vacated the field' misses the point that very weak evidence remains very weak evidence. None of 'demeanour', 'tone', or other assumed advantages of the judge seeing (by videolink) and hearing the witness could make of his evidence what it was not.
439 His Honour next turned to the evidence of Ms Jackson of WME, personal agent for more than 50 clients, including, since 2009, the plaintiff. The judge accepted Ms Jackson as an honest and credible witness. That assessment was not put in issue in this Court.
440 Concerning Ms Jackson's evidence, the judge said that:
From her experience rather than from any research methodology, Ms Jackson identified a clear relationship between the success of a recently released film and the offer of further work. Ms Wilson's role of Fat Amy, in the original Pitch Perfect movie was identified by audience testing as the most appealing role in the film. As a result, Ms Jackson was able to, and did, pitch Ms Wilson for lead roles. In discussions with her, film makers and producers accepted that Ms Wilson could carry a movie. Her engagement in the Pitch Perfect 2 project marked a significant increase in the fee that she was able to command. That the plaintiff had not receive any offers for lead or co-lead roles immediately following the hugely successful release of Pitch Perfect 2 'didn't make sense' and 'was a real mystery' to Ms Jackson, because that role was of huge significance to Ms Wilson's future trajectory as an actress - 'There is a pivot to where an actor is chasing jobs and then jobs chase the actor'. She considered that the plaintiff had been in a position to be attracting leading rather than supporting roles since Pitch Perfect. Ms Jackson expected, on the basis of her experience as a talent agent for 20 years and having developed a lot of talent from early stages, that the plaintiff would be 'pursued aggressively for leads in other studio feature films'.
Immediately prior to the release of Pitch Perfect 2, the studio, Universal, wanted her to close a deal on Pitch Perfect 3. Ms Jackson considered that following Pitch Perfect 2 Ms Wilson was entitled to fees of 'probably around $5 million a movie' and ought to have had one or two movies offered in the months after the launch of Pitch Perfect 2 and in production before Pitch Perfect 3.
Ms Jackson was not aware of the articles in question in May 2015, but had attempted to identify new roles for the plaintiff in the period after the launch of Pitch Perfect 2 without success.[282]
441 It is necessary to refer to some parts of Ms Jackson's evidence in connection with his Honour's findings.
442 First, Ms Jackson stated that, after the plaintiff's success in Pitch Perfect, she was able to pitch the plaintiff 'as a leading lady, it wasn't just for supporting roles'; and that she was able to suggest that the plaintiff 'could carry a movie'. But, as we apprehend it, his Honour erred in finding at Reasons [207], that Ms Jackson gave evidence that film makers and producers accepted that the plaintiff could carry a movie.
443 Second, although Ms Jackson said, in substance, that the plaintiff could command a better calibre of role after the success of Pitch Perfect, there was no evidence at all that the plaintiff 'carried' any movie up to the time of the release of Pitch Perfect 2.
444 Third, Ms Jackson stated that, after the release of Pitch Perfect, whilst chasing for jobs 'never ends', it was becoming 'more even' - by which she meant that the plaintiff was being approached by studios. That chasing for roles 'never ends' was underlined by the fact that, after the release of Pitch Perfect 2, the witness was constantly on the telephone spruiking the plaintiff's credentials. The evidence showed that Ms Jackson's modus operandi was daily, continuous, phone call interaction. She sent no emails and received none with respect to the subject matter of those telephone conversations. She was, the judge said, unable to be 'any more specific about the roles she had put the plaintiff forward for at that time'.[283]
445 Fourth, we should refer to some of the evidence given by Ms Jackson about offers of roles for the plaintiff after the release of Pitch Perfect 2 -
[Based on my experience] I just assumed and believed that she would be pursued aggressively for leads in other studio feature films...
What I would have loved is for her to have one or two movies at that level that would have been in production post Pitch 2, in the hopes before Pitch 3....
[I would expect] in a couple of months, you know, we would at least be in negotiation...
[I was surprised because] I just thought that she would be, you know, getting offers at that point.
446 As his Honour noted, Ms Jackson's evidence was that the reason why the plaintiff did not get film offers of the kind for which she was being put forward by the witness was a 'surprise' and a 'real mystery'. It is necessarily implicit in the witness not knowing about the articles at any relevant time, that no-one to whom she spoke over that extended period said anything to her about the articles - whether it be a producer, filmmaker, casting director, studio executive, or any other partner or employee of the largest talent agency in the United States, or perhaps the world. This bears upon the issues of both opportunity and causation.
447 Next, if 'loved' be understood as 'expected', the witness's evidence contemplated that the great success of Pitch Perfect 2 would translate into not more than one or two lead roles in the period between the release of Pitch Perfect 2 and the filming of Pitch Perfect 3; that is, one or two offered and accepted roles in a period, most probably, of a little more than one and a half years.[284] This evidence underlined the circumstance that, according to the plaintiff's case, the plaintiff was operating in a different field after the release of Pitch Perfect 2. She was not for hire for the kind of remuneration which she obtained after the release of Bridesmaids or after the release of Pitch Perfect. It did not follow, because the plaintiff had been offered many roles after the release of those movies, that she would be offered many roles of a different calibre at much larger remuneration after the release of Pitch Perfect 2. On full analysis, Ms Jackson's evidence did not support that conclusion. Yet it was an aspect of the plaintiff's case which the judge accepted.
448 It was submitted for the plaintiff at trial, as his Honour noted, that there was 'unexplained failure' by Bauer to adduce expert evidence which would provide an explanation for the downturn in Ms Wilson's career unrelated to the articles. According to that submission, it should be inferred that the claimed opportunity had been lost.[285]
449 His Honour did not accept the plaintiff's submission, but nonetheless made use of the supposed failure of Bauer to adduce 'alternative expert opinion explaining the want of new screen offers to the plaintiff'[286] - that is, as permitting 'the court to draw, on the whole of the evidence led at trial, inferences about what might have occurred that were consistent with the opinions expressed by expert witnesses accepted by the court'.[287] As we apprehend it, his Honour was there referring to the evidence of Ms Jackson and Mr Principato about the way in which screen roles come about in Hollywood; and to their hopes and expectations that the plaintiff could have been expected to accept offers of one, two, three or four lead roles (depending upon which particular part of the evidence one had regard to) after the release of Pitch Perfect 2.
451 In any event, conclusions which his Honour had thus far expressed led on to him stating these general conclusions. First, his Honour identified an opportunity:
[216] I am satisfied that the plaintiff had an opportunity in the 18 month period from mid-2015 to the end of 2016 ('the loss period') to earn income by acting in feature films in the USA that was enabled or enhanced by the success of Pitch Perfect 2. I accept the evidence of each of Ms Jackson and Mr Principato that an actor in the circumstances of the plaintiff in late May 2015 and the months following was highly likely to receive offers of roles in feature films as a lead or co-lead actor. Ms Jackson considered that Ms Wilson's role in Pitch Perfect 2 was of huge significance to her future trajectory as an actress and that Ms Wilson was then in a position to be attracting offers of leading rather than supporting roles. Her expectation was that the plaintiff would be 'pursued aggressively for leads in other studio feature films'. I also accept the plaintiff's evidence that this was precisely what she experienced following the success of Bridesmaids and Pitch Perfect.
[217] Such an opportunity existed in part because it is a feature of Hollywood film production that projects are developed by producers, writers, actors, and others as concepts in varying degrees of detail. Such projects, or at least some of them, are shelved or deferred until an opportunity for commercial exploitation of the concept arises. That may occur through an actor, who is considered to be suitable for a particular role, developing a marketing profile that persuades producers to complete the project by employing that actor because financial success seems reasonably assured. In Hollywood jargon, such projects are 'greenlighted'. There was no basis to suppose an absence of suitable roles. These projects are distinguished from development projects where the actor develops a concept that, if greenlighted, provides the actor with the opportunity of a lead role. In the plaintiff's case, Pitch Perfect 2 was an example of the former and the forthcoming Isn't it Romantic is an example of the latter.
[218] There was no challenge to the evidence that with such opportunities Ms Wilson could have successfully negotiated compensation on each film in the range of between USD$5 and USD$6 million, plus box office bonuses, that being the fee range in which the plaintiff then sat by reason of her past experience and box office success.
452 Having identified 'the opportunity', the judge expressed satisfaction that it had been lost. He said this:
[220] The next issue is whether that opportunity was lost or detrimentally affected during the loss period. I am satisfied that it was. There was an unexpected lull in the plaintiff's career in 2015 and 2016 following the release of Pitch Perfect 2.
453 His Honour did not rely, for an explanation, on Mr Principato's evidence, but rather on the evidence of Ms Jackson:
[221] [She] described the original Pitch Perfect as a successful but 'slow-rolling' hit. By comparison, the success of Pitch Perfect 2 was instantaneous and massive. Ms Jackson said that just at the moment when Ms Wilson ought to have been offered new lead or co-lead roles there was a sudden and unexplained lack of offers. Ms Wilson's evidence was that she received virtually no offers of appropriate roles. Ms Jackson said that the absence of offers for lead or co-lead roles immediately following Pitch Perfect 2 was nonsensical and a real mystery. I accept that Ms Jackson was in regular contact with producers, filmmakers, casting directors and studio executives pursuing appropriate roles for Ms Wilson and was surprised by enigmatic prevarication.
[222] The trajectory of the plaintiff's career to that point had abruptly stopped. The enormous and immediate popular and financial success of Pitch Perfect 2 and the plaintiff's central role in that film coincidental with absence of offers of any new lead or co-lead roles in movies in the remainder of 2015 and 2016 demonstrates that the momentum of her earlier success had been lost. The next question is why that happened.
454 Ground 9 focusses upon the conclusions expressed by the judge at Reasons [216], [220] and [222],[288] each of which involved the drawing of inferences. Those inferences rested on: (1) selected parts of the evidence of Ms Jackson and Mr Principato, (2) some evidence of the plaintiff, and (3) the trajectory of the plaintiff's career.
455 We focus particularly upon the inference drawn in Reasons [216]. For if the plaintiff did not prove the opportunity for which she contended, then there was nothing to be lost. Nonetheless, what his Honour said at Reasons [217], [220], [221] and [222] must be considered, for it exposes his inferential reasoning bearing both upon proof of existence of opportunity and loss of opportunity.
456 First, insofar as the inferences drawn by his Honour rested upon his analysis of the trajectory of the plaintiff's career, for reasons we have explained we consider that the analysis was flawed. It contained the various errors summarised at [374], [393] and [395] above. The individual and cumulative effect of the errors was to paint an overly successful picture of the trajectory of the plaintiff's career, and when doing so to ignore any hiccup in its progress. Further, his Honour's assessment of the evidence of the plaintiff, Mr Principato and Ms Jackson was made against this erroneous background.
457 Second, insofar as the inferences rested upon the plaintiff's evidence of her expectations having regard to what happened after the release of Bridesmaids and Pitch Perfect[289] - that is, she expected many offers - her evidence had to be evaluated having regard to all the evidence, not just selected parts. An evaluation needed to take account, for example, of the full picture of the trajectory of her career. It had to take account of hiccups in her career. It had to take account of the fact that, at the time of the release of Pitch Perfect 2, she had only a few weeks work in hand. It had to take account of the fact that her agent would be pitching her for work of different kinds, at vastly increased remuneration.
459 Fourth, insofar as the inferences rested upon his Honour's assertion at Reasons [217] that '[t]here was no basis to suppose an absence of suitable roles', Mr Principato had attempted, unsuccessfully, to identify suitable roles which were in the marketplace in the alleged loss period, and had otherwise not undertaken any research to ascertain from any studio whether there was any project 'on the shelf' which might have been adapted to suit the plaintiff, and been the subject of an offer to the plaintiff in the asserted loss period. Further, Ms Jackson's evidence was non-contributory in that connection.
(1) the plaintiff's setback with respect to Super Fun Night;
(2) the fact, despite the success of Pitch Perfect, that the plaintiff had no contract for film work stretching much beyond the time when the articles were published;
(3) the fact that there was a real but cheaper Hollywood competitor for female comedic roles;
(4) the absence of evidence of acceptance by filmmakers, subsequent to the release of Pitch Perfect, contrary to Ms Jackson's belief, that the plaintiff could 'carry' a movie; and
(5) the fact that pitching the plaintiff for other than comedic or musical comedy roles (though, let it be assumed, in addition to such roles) was a step into the unknown so far as Hollywood was concerned.
461 Sixth, it may be, we put it no higher, that the judge's approach to the drawing of the inference that opportunity existed was influenced by what we consider was his over broad assessment of a passage in La Trobe.[290]
462 Seventh, although his Honour separately addressed the causation issue, the evidence of opportunity, opportunity lost, and causation was interconnected. As we have foreshadowed, we have concluded that his Honour erred in finding that causation was established. His Honour's conclusion in that connection may well give some explanation for the inferences which he drew with respect to opportunity had and lost.
463 We turn to causation. His Honour rightly recognised that the plaintiff must establish it on balance of probabilities. He framed the enquiry this way:
Here the question is whether Bauer Media's publications were so connected with Ms Wilson's lost opportunity, that as a matter of ordinary common sense or experience, the publications should be regarded as a cause of the loss.[291]
464 The plaintiff's case, his Honour said, was 'necessarily circumstantial'. He summarised the plaintiff's contentions as involving reliance upon:
(1) the expected path of her career trajectory;
(2) the immediate grapevine effect of the defamatory publications in the United States;
(3) there having been no offers as were expected;
(4) her services in respect of three current projects having been terminated or declined for implausible or unjustified reasons;
(5) the fact that, but for the articles, she would have secured new screen roles of the kind for which she contended;
(6) the fact that she was not offered any such roles;
(7) there being no plausible explanation for her not having been offered any such roles, other than the publication of the articles.
These matters were said for the plaintiff to found a reasonable inference that the publication of the articles was a cause of her not being offered any suitable roles in the alleged loss period.[292]
465 We pause to make two preliminary observations. First, contention (4) mainly related to Kung Fu Panda 3 and Trolls. The third project to which contention (4) related was, according to paragraph 7 of particulars dated 15 September 2016, a role in the film A Perfect Crime. But reliance on loss of that project was not pursued by particulars dated 5 May 2017, and the matter was not pursued at trial.[293] Further, reliance on what remained of contention (4) was effectively abandoned when the actual loss claim was abandoned. Second, contentions (3), (5) and (6) were interconnected. Contention (5) was no more than the inference which the plaintiff asked his Honour to draw. It was not a circumstantial fact at all.
466 Next, his Honour identified what he stated were 'two key issues' going to causation which were advanced for Bauer. One was as to the grapevine effect - its relevance and sufficiency. The second was that the plaintiff had suffered no actual pecuniary loss; or, if she had, that it was attributable to non-compensable causes.
467 Under the heading '[g]rapevine effect', the judge stated that:
I am satisfied that the imputations found by the jury would probably be considered by producers, casting directors, writers and like persons to be serious, and pertinent in any assessment of the suitability of an actor for a lead or co-lead role in a proposed film of the type or style for which the plaintiff was then favoured.[294]
468 But, even if so much could be inferred,[295] the plaintiff's case was that she was being promoted as suitable for a variety of roles.
469 His Honour noted the submission for Bauer that there was an absence of any evidence of the imputations being in circulation in relevant quarters at the relevant time. He addressed that submission by first reaching a conclusion as to the extent of the grapevine effect, saying this:
I am satisfied, on the balance of probabilities, that the articles published by Bauer Media formed the roots of a grapevine that spread the defamatory sting of the articles over the internet internationally and particularly into the USA. This spread was immediate and although its extent cannot be quantified like circulation figures or readership estimates, I infer that the extent of communication of the defamatory sting was very substantial.
...
Publication on the internet is available to the world instantaneously, is readily discoverable by the simple process of using an internet search engine, may be downloaded easily and printed or forwarded as a link to others, and may be stored or copied away from the place where it was originally uploaded resulting in a permanent record that can defy attempts to remove it.
Although it had likely died down within a fortnight as attention turned to other 'news', the reality of contemporary internet communications is that the publication of the defamatory sting of the articles, which was initially a very substantial mass media circulation, was ultimately, by the grapevine effect, of an unprecedented scale that cannot be overestimated.[296]
470 Description of the grapevine effect being 'of unprecedented scale that cannot be overestimated' was an inferential fact which the judge repeated in generally similar language on a number of occasions throughout his reasons for judgment. This inferential fact was founded, it appears, on:
(1) the plaintiff's evidence of hearing the sting of the articles on the radio in New York at a time very shortly after the articles were initially published;
(2) the plaintiff's evidence of the story appearing on many television shows in the United States, including The Talk and entertainment news shows;
(3) the plaintiff's description of the articles causing 'a huge international media firestorm', which evidence, the judge said, was both unchallenged and corroborated;[297]
(4) Ms Overington's evidence that she 'saw it on Twitter, read online articles online, possibly heard it mentioned on American radio and television, and was aware of people discussing it in America';[298] and
(5) Mr Sheridan's evidence that he had heard people in the entertainment industry talking about the articles, and a friend, referring to the articles, asking him what the plaintiff was like.[299]
471 With respect, we cannot accept that such evidence as there was of the grapevine effect justified an inference that it was 'of unprecedented scale that cannot be overestimated'.
472 First, there was scant evidence of any discussion within the United States about the articles outside a two-week period.
473 Second, the plaintiff's own principal agent, Ms Jackson, did not know of the articles at any relevant time, despite being a partner in the largest talent agency in United States (or the world) with offices in the United States at least in Los Angeles and New York; and despite daily contact with Hollywood 'producers, film makers, casting directors and studio executives'.
474 Third, Mr Principato did not know of the articles at any relevant time, although he was enmeshed in the affairs of Hollywood as an agent and producer.
475 Fourth, the language 'huge international media firestorm', 'international media firestorm' and 'media firestorm', used by the plaintiff from time to time in her evidence, made use of an idea expressed by an Australian friend who contacted the plaintiff in the period shortly after the articles were published. Such 'firestorm' as the evidence disclosed involved short-lived publicity in Australia, and two weeks or so of publicity in the USA. Moreover, there was no evidence about any publicity in any other country.
476 Fifth, apart from the brief period when the story was discussed on television and radio, and thus might have been picked up in Hollywood, there was no evidence at all that the story circulated in any form in Hollywood in the period identified by the plaintiff.
477 Sixth, on 7 July 2015, that is, about seven weeks after the articles were published, leading figures at Universal Studios signed a letter to the plaintiff which enclosed a cheque for $1 million, referable to Pitch Perfect 2, in which the plaintiff's 'incredible contribution' to the success of that movie was acclaimed, and in which the signatories 'greatly look[ed] forward to continuing our collaboration'. The signatories included Jeff Shell and Donna Langley, who were said by the plaintiff to be leading executives at Universal Studios, and who were the authors of earlier congratulatory emails relating to the success of Pitch Perfect 2 which the plaintiff tendered into evidence and relied upon.
478 Seventh, Ms Overington's evidence, so far as it referred to reading the articles online, appeared to deal with republication in the United States, not the grapevine effect.[300]
479 Eighth, Ms Overington's evidence that she 'possibly' heard the subject mentioned on American radio and television was not only indefinite, but was uncertain as to time, and in any event could only have been referring, on the evidence, to a time very shortly after the articles were published.
480 Ninth, Mr Sheridan's evidence as to the grapevine effect was modest indeed. He had been contacted by others with respect to the articles, mainly people in Australia. There had been some enquiry in the entertainment industry in the United States. He identified, in the latter connection, only a 'costume person' who was very interested in the story at the time.
481 Tenth, the plaintiff gave evidence of having seven agents in the United States, and a 'publicity team'. Her main publicist in 2015 was Ms Gottlieb. The plaintiff's evidence was that Ms Gottlieb advised her how to respond to the initial articles. It follows that Ms Gottlieb knew about them. The plaintiff's evidence was that she rang Ms Gottlieb about the articles, and that she contacted other members of her 'American team' except Ms Jackson. Ms Gottlieb was not called by the plaintiff. There was no evidence, in short, that Ms Gottlieb learned of the articles via the grapevine effect. Nor did the plaintiff call any other member of her American publicity team to say (if it was the case) that he or she had heard about the articles and could speak as to the reaction to them in the relevant period. Neither again, Ms Jackson apart,[301] did she call any of her United States agents in that connection.
482 Eleventh, the internet having no borders, there is no obvious reason why an 'unprecedented grapevine effect' adverse to the plaintiff and affecting her employability, would not have been at work both in England and Australia. As mentioned, Pitch Perfect 2 had been a worldwide hit, with the plaintiff not only playing a co-lead role but also having a large role in promoting the film internationally. Yet in 2016 the plaintiff was engaged in the London production of Guys & Dolls, and there was a good deal of evidence that she had been offered work in Australia.
484 Thirteenth, there was no suggestion in the evidence - indeed it was to the contrary - that the success of Pitch Perfect 2 had been affected in any country by the publication of the articles.
485 Fourteenth, the plaintiff engaged with New Line and MGM in respect of three development projects in 2016.[305]
486 A number of the matters listed above are, of course, capable of explanation in either of two ways. First, as showing, considering all the circumstances to which we have referred, that the grapevine effect was much less than the judge concluded was the case. Second, as evidence that any such effect had been shown to be inoperative, both in the United States and overseas, in a series of instances. Neither explanation assists the plaintiff.
487 Whilst we consider each of the 14 matters which we have identified was significant, we think that the sixth, twelfth and fourteenth of them bear a little further elaboration. The plaintiff's case was that it must be inferred that the grapevine poison had spread to Hollywood and had caused movie studios to shun her. With respect to matter 6, she could not have it both ways. She could hardly say that Mr Shell and Ms Langley were genuine in their praise in May, but dissembling in July. Either they knew nothing of the articles in July, or considered them inconsequential. Then as to matter 12, the plaintiff's case that decision makers in Hollywood must be taken to have known about the articles and to have shunned her in consequence, could hardly sit comfortably with the plaintiff's engagement by Columbia Artists Management LLC in May 2016 to have a starring role in live performances of a family-friendly production in Hollywood. If it was to be said that live performances were to be contrasted with movie roles, the engagement of New Line and MGM with the plaintiff in 2016 (matter 14) tells against such a contrast existing.
488 We return to his Honour's reasons. At [244], he rejected Bauer's submission that the issue to do with the grapevine effect could be resolved by simply referring to the evidence of Ms Jackson and Mr Principato that they were unaware of the publications at any relevant time. He said:
In considering the evidence as a whole, I cannot identify a sufficient basis to prefer the absence of knowledge at the time on the part of Ms Jackson or Mr Principato over other evidence. The circumstances of each witness at the relevant time were not explored in the context of the grapevine issue and the defendants invited me to draw a Jones v Dunkel inference against the plaintiff for her failure. I decline to do so. The rule is inapplicable. It cannot be said that the plaintiff failed to question these witnesses out of a fear that their evidence might damage her case. Rather, the defendants had the opportunity to put the proposition that was advanced in final submission to these witnesses directly in cross-examination. It would not be fair to draw an adverse inference against the plaintiff. It is proper to reject the submission that was not put in evidence.[306]
489 We make three observations about Reasons [244].
490 First, we have difficulty in perceiving how 'the circumstances of each witness at the relevant time' could have been 'explored in the context of the grapevine issue'. After all, their roles - which involved daily involvement in the Hollywood scene, one as the plaintiff's agent, the other as a prominent agent and a producer - were not in doubt. Nor was there any doubt that both of them were unaware of the articles over an extended period, despite their many daily contacts with people who, on the plaintiff's case, must have been seized with relevant knowledge.
491 Second, we have difficulty understanding what basis there was for his Honour stating that the plaintiff could 'not be said [to have] failed to question those witnesses out of a fear their evidence might damage her case'.
492 Third, the judge, in effect, treated the fact that the defendant did not cross-examine either witness generally about the grapevine effect as a failure on its part, for which reason a submission made for the defendant in closing address should be rejected. That was, with respect, misplaced. There was nothing to cross-examine about once the evidence, adverse to the plaintiff, had been adduced. A party to litigation cannot be said to 'vacate a field' which is unoccupied.
493 Further as to the grapevine effect, his Honour referred to the circumstances of termination of the plaintiff's voice actor roles in Kung Fu Panda 3 and Trolls. He stated that the evidence of such termination was 'not particularly cogent in the assessment'.[307] Whilst he accepted that the plaintiff's services in Trolls were dispensed with after publication of the articles,[308] and having noted that 'ultimately the plaintiff did not press the loss of these contracts as an item of special damage', his Honour said that:
I agree with the defendants' contention that I should not be satisfied that any grapevine repetition of the defamatory sting was a cause of the plaintiff's termination from these projects. I am not affirmatively persuaded that the occurrence of the events was not coincidental and had the plaintiff maintained a claim for the loss of the contracts as an item of special damage she would have failed to persuade me of its cause. That said, the termination of these contracts was a circumstance that could not be totally dismissed when evaluating a circumstantial claim but which was of little probative value in assessing the scope and extent of the grapevine effect.[309]
494 There are two points to make in this connection. First, in this Court, counsel for the plaintiff submitted that the evidence of the circumstances of the termination of the Kung Fu Panda 3 and Trolls contracts was equivocal, that it did not avail either side, that the evidence did not rise high enough for the plaintiff to confidently advance the actual loss claim below. But no such concession was made below. Second, we regret that we do not understand why, in light of his Honour's finding, the termination of the contracts 'could not be totally dismissed' when evaluating the circumstantial claim. Perhaps he meant that the terminations, for some reason other than publication of the articles, assisted the defendant's case. But if that is what he meant, he did not say so, and the tenor of the observation is rather to the contrary. The last sentence in the passage just excerpted referred, of course, to two different aspects of the claim. One was the 'evaluation of the circumstantial claim'. The other was 'the scope and extent of the grapevine effect'. When his Honour stated that termination of the contracts was 'of little probative value' in the latter connection, he seems to have been contrasting that in some way with the significance of the evidence in respect of the circumstantial claim. In the end, with respect, it is difficult to know what use his Honour made of the termination of the plaintiff's roles in Trolls and Kung Fu Panda 3.
495 With respect to the termination of the Trolls contract, Ms Wilson was pressed in cross-examination that her services in Trolls had been terminated before publication of the articles. She said, and the judge accepted, that this was not so, despite the termination document, signed in July 2015, being dated 'as of April 8, 2015'.
496 Attention was paid at trial, both in cross-examination of the plaintiff and in the final address for the defendant, to the footer of the termination document, which read as follows:
BA/Features-Animation/TROLL/VoiceActors/Wilson/SettlementLtr
Est. 04/16/15 (AJP)
Rev. 06/26/15 (AJP)
Rev. 07/01/15 (AJP)
497 Prima facie, the meaning of the footer was that the termination document was created on 16 April 2015, underwent revision on 26 June 2015, and was finally revised on 1 July 2015, this leading to its being signed on 27 July 2015. The plaintiff gave an explanation that it might have been a pre-existing pro forma document, to which was added her name. This seems unlikely, both having regard to the 'as of' date of the document and its very specific content. The judge did not address the footer in his reasons for judgment; and, once his Honour decided to make a finding as to when termination had occurred, it called for mention.
498 It might be said, because the plaintiff abandoned her claim for actual loss founded on the loss of the role in Trolls, and because his Honour found that, had the claim been pursued, he would not have found a causal link established, that the footer was of no consequence. But that is not so for four reasons. First, notwithstanding that it was not a necessary part of his reasoning, his Honour found that the Trolls contract had been terminated after publication of the articles. This removed any suggestion that Ms Wilson had been less than forthright in her evidence regarding the date of the termination of her role in Trolls. Second, the dispute about when the plaintiff was terminated had a tendency to distract attention away from the defendant's submission that the plaintiff had been dismissed from two roles (Trolls and Kung Fu Panda 3) as a person described by a very senior executive of a major film studio as a divisive figure.[310] Third, although it was not the jury's task to assess damages, the jury was inevitably left with the impression, when considering the questions which it did have to answer, that the plaintiff was claiming to have suffered actual loss in consequence of the defamation. Relatedly, because the claim was alive when Ms Jackson gave evidence, it was necessary for the defendant's counsel to cross-examine the witness about the matter. Fourth, any concern on the plaintiff's side as to the state of the evidence at trial's end - for it could not be foreseen what findings the judge would make as to the substantive time of termination and the reason for it - were obviated when, at the very last moment, the claim for actual loss founded on Trolls and Kung Fu Panda 3 was abandoned.
499 Next in his Reasons the judge turned to the defendant's submission that the articles 'did not actually damage the plaintiff's reputation in the United States' - which he understood to be a submission that the publications caused none of 'actual pecuniary loss, opportunity loss or, alternatively... a general loss of business of any significance'.[311]
500 His Honour noted that Bauer relied, first, upon the fact that the plaintiff retained her role in Pitch Perfect 3 after publication of the articles. He inferred that negotiations with respect to the plaintiff's remuneration - specifically, box office bonuses - continued after publication of the articles. But he declined to infer that the fact that the plaintiff entered into a formal contract after publication of the articles contradicted her claim that her reputation was so damaged as to cause studios to refrain from dealing with her. That was because:
(1) Pitch Perfect 3 as a project 'effectively lies outside the loss period', being 'greenlighted at the very end of the loss period';[312]
(2) Pitch Perfect 3 was the continuation of a franchise in which the plaintiff played a central and indispensable character. It differed from the kinds of roles that the plaintiff, Ms Jackson and Mr Principato were 'expecting or describing' in connection with the 'special loss claim';[313] and
(3) the delay in this unique project going into production told against the inference advanced by Bauer.
501 This analysis made no mention of the circumstance that, accepting the plaintiff's evidence that she signed the contract for Pitch Perfect 3 in January 2017, it was made 'as of September 17, 2015'. Nor did it refer to the footer of the contract, which reads:
PLAYER- LO 2015-10-16
00P49.mb.Player.WILSON_REBEL.05.docx (10/28/16)
Nor again did it refer to the 'side letter to the contract', also dated 'as of September 17, 2015'.
502 The footer was referred to in Ms Wilson's evidence. She mentioned the second, but not the first, line of it. She seemed to acknowledge the possibility that she had first seen the contract in late October 2016. She was not taken by counsel for Bauer to the first line of the footer, for reasons which we do not understand, particularly having regard to the relative proximity of the date there referred to and the 'as of' date of the document. The date 'as of September 17, 2015' was significant in circumstances where it was common ground that there had been negotiations with respect to the plaintiff's remuneration in Pitch Perfect 3 that had continued after publication of the articles. The rational explanation is that the contract sought to capture a point that had been reached in the negotiations as at September 2015. Putting the first line of the footer entirely to one side, we consider that it was unsafe for his Honour to conclude that Pitch Perfect 3 'effectively' lay outside the asserted loss period.
503 Moreover, accepting that the Pitch Perfect movies were a franchise in respect of which the plaintiff played a central and indispensable character, the fact that negotiations continued relatively early in the 'loss period', and that the project continued on, meant either one of two things: that the grapevine had not reached those in charge of this project; or else that they did not consider that the plaintiff had suffered any reputational damage as would affect the marketability of the film. The letter referred to at [477] and [487] above fits either hypothesis.
504 Further, the 'delay' to which his Honour referred was, with respect, not a delay at all. The matter can be simply illustrated. The contract for Pitch Perfect was signed as of September 6, 2011. Filming began soon after. The movie was not released until late September 2012. It was a great success. The Pitch Perfect 2 contract was signed as of April 17, 2014. Filming began soon thereafter. The film was released in May 2015. The contract for Pitch Perfect 3, signed in January 2017, was dated as of September 17, 2015. Filming took place from January 2017. The movie was released in the United States in late December 2017.[314] In short, the time elapse between the date of signing the Pitch Perfect and Pitch Perfect 2 contracts was two years and seven months, and between signing the Pitch Perfect 2 and Pitch Perfect 3 contracts, taking the latter as being January 2017, was two years and nine months. The time elapse between the release of Pitch Perfect and Pitch Perfect 2 was two years and seven months, and between the release of Pitch Perfect 2 and Pitch Perfect 3 was two years and seven months. This sequence reveals an ordered approach, no sequel following too closely on its predecessor. The sequence is stark. What flows from it could not be affected by a witness's tone or demeanour or the atmosphere of the trial. In the event, we consider that delay was not a matter which the judge could properly have called in aid in rejecting the inference advanced for Bauer with respect to Pitch Perfect 3.
505 His Honour then adverted in his reasons to the defendant's submission that the evidence of Ms Jackson and Mr Principato was too general. It was said that Ms Jackson had given no evidence of roles for which Ms Wilson was unsuccessfully submitted, the potential remuneration if the plaintiff had secured any such roles, whether the projects actually went on to production, and which actors were cast rather than the plaintiff. It was also submitted that there was absence of any documentation.
506 His Honour, in substance, rejected that criticism. Ms Jackson operated by telephone. Her discussions did not necessarily concern specific roles or projects. Rather, she emphasised her clients' positive features in discussions. Absence of documentation of negative outcomes was unsurprising.[315]
507 Pausing again, and accepting each of the circumstances identified by his Honour, the fact remains, as Bauer submitted, that Ms Jackson did not identify, in respect of the alleged loss period, any role for which the plaintiff was suited, for which she was promoted, what remuneration was in contemplation, whether the project went forward, and who was cast. With her client able to command, as Ms Jackson said, $5 million or upward in remuneration, and with her evidently extensive knowledge of the Hollywood movie scene, we think it is at least very surprising that Ms Jackson did not identify a single project for which, in her opinion, Ms Wilson was suited, both artistically and monetarily, that proceeded in the loss period identified by the plaintiff - let alone give any evidence of who was cast in the roles suited to the plaintiff.
508 With respect to Bauer's submission that the evidence of Mr Principato took the matter no further - indeed, was less useful to the plaintiff because he identified roles suitable for the plaintiff which, for one reason or another, were not in point - the judge said this:
The defendants' criticism carries a greater sting against Mr Principato, as an expert might be expected to have undertaken research to identify the roles for which the plaintiff might be considered suitable in the light of the success of Pitch Perfect 2 that actually were casting in mid-2015 and were made during the loss period. But two points can be made against that contention. Plainly, Mr Principato was not a researcher, and his style of operation was, much like that of Ms Jackson, based in conversation and personal contact. There is no reason why such evidence may not be received and evaluated for what it is. Bauer Media could have, but did not, commission a research-based assessment of the new screen role opportunities in the loss period to provide a strong basis for a cross-examination.[316]
509 With respect, the judge was very generous to Mr Principato in excusing his lack of research; whilst his Honour's apparent suggestion that it was for the defendant to undertake research and then cross-examine the witness seems to say that it was the defendant's task to run the risk of improving a case advanced by the plaintiff which was deficient. There was no such task. Again, there was no field to be vacated.
510 We should mention three further matters. First, although the judge was here dealing with submissions apparently pertaining to causation, in fact the submissions also addressed the question whether any opportunity existed, and if so, had been lost. The gist of the defendant's Pitch Perfect 3 submission was that it contraindicated loss, whilst at the same time denying causation. Second, with respect to the criticism levelled by the defendant respecting the generality of the evidence of Ms Jackson and Mr Principato, the focus was really upon there having been no relevant opportunity. Third, we refer to but need not repeat what we have earlier said about the frailties of the evidence of both Ms Jackson and Mr Principato.
511 The defendant's next submission, as noted by his Honour, was in essence a 'no loss' submission. It focused upon the plaintiff's involvement in three projects - _Isn't it Romanti_c, Dirty Rotten Scoundrels and Private Benjamin - subsequent to publication of the articles and within the alleged loss period. The judge found that Bauer's contention that the plaintiff's involvement in these projects contraindicated loss of opportunity was not persuasive. That was because each of them was a 'development project' which, his Honour found, 'Ms Wilson had to develop and pursue... herself'.[317] They were to be 'distinguished from roles that were simply offered to her'. His Honour said that:
Both Ms Wilson and Ms Jackson stressed the distinction when cross-examined and rightly so. Although Mr Principato said it was common from stars to be 'attached' to roles in development projects in this way, in order to fast track the green-lighting process, and described such roles as 'offers' for the purpose of his report, I am not persuaded that such roles tell against the plaintiff's assertions as to the damage caused to her reputation in the industry. It is however a factor to be accounted for in assessing the probability of the plaintiff achieving the full value of the opportunity.[318]
512 The evidence doubtless demonstrated, as we have said earlier, that there was a distinction between the plaintiff pitching for development work - whether it be in relation to a project on a movie company's shelf (Isn't it Romantic and Private Benjamin) or a project initiated by her (Dirty Rotten Scoundrels). But Mr Principato's evidence showed that such projects are commonly engaged in by 'stars'. Further, it would be necessary for a studio to provide a project on the shelf to an actor for development. The fact, as we have earlier observed, that New Line gave the plaintiff access to Isn't it Romantic, and entered into a writer loan-out agreement and a first opportunity to act agreement with Camp Sugar in relation to Private Benjamin as of 10 February 2016, New Line having been the producer of How to be Single, shows that at least one studio was not exposed to the grapevine effect or else thought nothing of it; and the same applies to MGM's engagement with the plaintiff with respect to Dirty Rotten Scoundrels. Those circumstance also went to the 'no loss' contention, though not meeting the plaintiff's claim founded on absence of offers. The error was not for the judge to say that development projects were different to job offers - he was correct in drawing that distinction - but not to consider and pass upon the potential significance attaching to the relationships created between New Line, MGM and the plaintiff - a significance which we have earlier addressed. We add that Camp Sugar's statement for calendar year 2016 shows that the writer loan-out fee of $50,000 in respect of Private Benjamin was paid.
513 Further upon the question whether the plaintiff suffered opportunity loss damage, the judge referred to the defendant's submission that there was evidence of the plaintiff being engaged to undertake work which contraindicated loss attributable to reputation or damage.[319] His Honour discussed the relevance of that evidence, saying this:
these matters are otherwise to be properly understood as further evidence that the plaintiff is hard working and resourceful. Faced with a want of suitably remunerated film roles that the plaintiff believed she had earned through her previous endeavour and application, Ms Wilson has continued to seek employment wherever she can and to work hard to restore her reputation.[320]
514 We make these observations. First, the opportunities offered and/or taken which Bauer identified were by no means the only work in which the plaintiff engaged in the asserted loss period. Second, it was not a question whether Ms Wilson was hard working and resourceful. The question was rather whether the publication of the articles, by the grapevine effect, caused her reputation to be damaged, in consequence of which she was shunned by prospective employers. She was really forced to limit the asserted impact of the grapevine effect to Hollywood producers, film-makers, casting directors and studio executives, notwithstanding the ubiquity of the internet. In circumstances where Ms Wilson did not advance any particular project in respect of which she had been shunned, it was relevant that a number of entities, in the United States, the United Kingdom and Australia, either employed or were willing to employ the plaintiff in the alleged loss period.
515 It is convenient to refer to the submission of plaintiff's counsel that his client should not be criticised for not calling more evidence than she did. We have already said something in that connection, at [481] and [507] above. Counsel submitted that commonly the effect of a defamation is that witnesses are difficult to find. We accept the latter submission, but not the former. There was a glaring absence in the plaintiff's case of evidence which would confirm the presence, if not the effect, of the grapevine in Hollywood during the alleged loss period. We do not suggest that a film-maker or producer was likely to have 'owned up' to the articles being operative in a decision not to offer the plaintiff a film role, if such was the case. But that is quite different to evidence which would show that the articles had currency in Hollywood in the relevant period. Of all the plaintiff's agents and publicists in the United States, the plaintiff called but one; and she knew nothing about the existence of the articles. We would have thought that someone could have given evidence in the plaintiff's case about the currency of the articles in influential circles, rather than invite the judge to draw an inference of the grapevine effect at work without any such evidentiary support.
516 As noted by the judge, Bauer next relied upon alleged limitations in the plaintiff's financial material. It was submitted that they did not support opportunity loss, and did not advance the plaintiff's causation argument. It was further submitted that there is a volatility in acting roles, and that Ms Wilson's earnings before publication primarily depended upon a few large contracts. Any dip in the plaintiff's 2016 earnings was potentially attributable to a failure to win roles in earlier years, there being a time lag between engagement and remuneration.
There was some merit apparent in the defendants' contentions, but, on consideration, submissions based on the plaintiff's financial records were not persuasive. I did not understand the plaintiff to be contending that her financial records explained the lost opportunity that she asserted. A more comprehensive analysis would have been required, and over a longer time scale, to identify trends in income receipts and to relate those trends to other factors. Given the issues of cash flow timing, varying income sources, and varying lead times between offers of work and receipt of all financial benefits from that work, I was not persuaded by the defendants that there was no loss of income that demonstrated there were no lost opportunities for feature film roles in the loss period. At its highest, the uncertainty that remained after looking at the financial evidence should not be excluded as a factor to be accounted for in assessing the probability of the plaintiff achieving the full value of the opportunity.[321]
518 Having reviewed the evidence pertaining to causation, which incorporated consideration whether there was in fact any demonstrable opportunity which had been lost, the judge expressed these conclusions:
[276] Because the plaintiff's case in respect of the issue of causation is circumstantial - there being no direct evidence - to be inferred from such facts as have been established, I have not confined my analysis to consideration of each particular circumstance relied on by the parties separately and in isolation from other relevant material. Discussion of the merit of particular circumstances or submissions is unavoidable, but in reaching the conclusions I am about to express I have considered the evidence as a whole with the objective of ascertaining whether the combined or cumulative effect of the plaintiff's evidence permits the inference, on the balance of probabilities that as a matter of ordinary common sense or experience, the plaintiff would have been cast in lead or co-lead roles in feature films but for the damage to her reputation occasioned by the publication in Australia of the articles.
[277] ... The defamatory sting of the articles - namely that the plaintiff was a serial liar who had invented stories about almost every aspect of her life - almost instantaneously reached the United States and was discussed on television, radio, social media and in the entertainment industry. To borrow the language from the old cases, the sting was a toxic poison and its lurking place was the internet. The plaintiff cannot reasonably be expected to track the course of information on the internet or anticipate where information may surface. She cannot identify the occasions in which it spilt from its lurking place.
[278] The cumulative effect of the circumstances proved by the plaintiff is best appreciated by standing back from the detail and taking the broader perspective; making an informed, considered, qualitative appreciation of the whole. For the reasons I have given, I have not accepted as demonstrated to some greater degree of likelihood the defendant's alternative explanations for the plaintiff's unexpected loss of the upward trajectory of her career, but that is not to suggest that it was incumbent on the defendants to disprove causation. ...
[279] I am satisfied that as a matter of ordinary common sense or experience, the more probable inference from the circumstances that appear from the evidence is that the publications were a cause of the loss. The plaintiff has established that she ought to have enjoyed an enhanced opportunity of being cast in lead or co-lead roles in feature films, and that her reputation was damaged by the publication in Australia of the articles. The connection between the process of casting actors in films and the publication of the defamatory material is found principally in three matters that I have discussed in detail. First, the serious nature of the defamatory sting that is pertinent in any assessment of the suitability of an actor for a lead or co-lead role in a proposed film. Secondly, the unprecedented sweep of the grapevine effect in this case and the defendants' knowledge of the likelihood of immediate, worldwide spread by the internet. Thirdly, the absence of a plausible explanation for the consequences suffered by the plaintiff consistent with the notion that the connection between the publication that the plaintiff's loss is coincidental.
...
[281] I find it probable that publication of the defamatory articles in Australia was a cause of the fact that the plaintiff was not offered any lead or co-lead roles comparable to her roles in Pitch Perfect and Pitch Perfect 2 in the period following the publication of the articles and that the plaintiff has discharged the onus of proving to the requisite standard that she suffered an economic loss.[322]
519 The findings at Reasons [279] and [281] are specifically challenged by ground 10. As we have foreshadowed, in our opinion this ground is clearly made out.
520 As to the first factor which his Honour identified at Reasons [279] we do not understand there to have been any direct evidence that the nature of the sting of the articles was 'pertinent to any assessment of the suitability of an actor for a lead or co-lead role in a proposed film'. The fact that the plaintiff gave evidence as to the nature of her appeal to audiences did not lead to the conclusion expressed. Neither Ms Jackson nor Mr Principato gave evidence leading to such a conclusion. The submission of plaintiff's counsel to that effect was a submission, no more. The conclusion was an inference drawn by his Honour, which rested upon the type of screen roles which the plaintiff had performed in the past - notwithstanding that she was being promoted by her agent as suitable, inter alia, for different kinds of roles. It would be incongruous if the nature of the sting would be pertinent to denying the plaintiff a role in family-friendly movies (such as she was accustomed to playing), but irrelevant to her being cast in the singing role of Ursula in The Little Mermaid, or a lead in the stage production of Guys & Dolls.
521 The second factor identified by his Honour followed upon his statements at Reasons [277] which appeared to excuse the plaintiff from any obligation to have adduced evidence supporting the presence of the grapevine - if not its effect - in Hollywood in the relevant period. Regardless of the merits or otherwise of what his Honour there said, support for the inference that there had been an 'unprecedented sweep of the grapevine effect' was very seriously lacking in the evidence, for reasons which we have explained.
522 Further as to that second factor, the judge referred to the unprecedented sweep of the grapevine effect and 'the defendants' knowledge of the likelihood of immediate, worldwide spread by the internet'. Any such knowledge was, with respect, beside the point when considering the question of causation although it was relevant to some of the aggravating circumstances, as described above.
523 The third factor identified by his Honour at Reasons [279] depended upon his conclusion that the plaintiff had proved the existence of one or more suitable screen roles in the asserted loss period, and that no such role had been offered to her. As we have noted, that no offer had been made was a matter of fact. That there was a role or roles which fitted the plaintiff's description of the opportunity lost - that is, a role meeting particular requirements which she would probably have been offered and accepted in the asserted loss period - was a finding of inferential fact; and one which the plaintiff did not establish.
524 His Honour stated that he had stood back and viewed the evidence overall. However, he had already made findings which we consider to be flawed. As to loss of the opportunity as characterised by the plaintiff, we refer to [456]-[462] above. With respect to his Honour's consideration of the causation issue, we refer to [469]-[323]],323 [[[324]](#_Ref > [296] I am satisfied that the opportunity that the plaintiff lost during the loss period was at least two lead or co-lead roles in feature films for which she would have earned a fee of at least US$5 million but not more than US$6 million for each film. I was not persuaded to consider that the opportunity should be viewed as leading to more than four lead or co-lead roles prior to December 2016. It is probable that differing fees would have been negotiated for each project and I will adopt the lower estimate of US$5 million. Assessing this evidence as best I can on the probabilities, I adopt a median assessment that the opportunity should be valued at 3 times US$5 million, which is US$15 million.
533 That led on to his Honour proceeding to assess the discount that would represent the probability that the damages assessment properly and fairly valued the lost opportunity. He said:
[297] The adoption of a median assessment of the number of new screen roles and the lower expected gross fee estimate includes a partial evaluation of the value of the lost opportunity by accounting, to some extent, for the lack of certainty in the evidence and the vicissitudes affecting the process of winning such film roles. There is no basis to evaluate the value of bonuses based on box office takings of such hypothetical film projects and I exclude the prospect of such bonuses from the assessment of the gross hypothetical maximum value of the opportunity.
So his Honour proceeded from the starting point that 'the maximum value of the plaintiff's earnings hypothetically lost to her in the loss period were US$15 million gross'.[332]
[299] The remaining question is what other contingencies, unconnected with that conduct, affect or influence the assessment of the possibility of the plaintiff actually earning that income. There are many and I have already noted the important factors earlier in my reasons. The award of damages for special loss must be reduced to take account of the chance that factors unconnected with the defendants' conduct would have led to the plaintiff earning more than the income that she actually earned from work in films in the loss period but significantly less than the hypothetical maximum gross value of her loss.
[300] I may, and will, assess the possibilities, bearing in mind that the onus remains on the defendants to satisfy at least an evidentiary onus of showing that at least part of the economic loss claimed by the plaintiff was traceable to causes other than its conduct.
[301] I cannot find that the plaintiff would have won any particular role. Ms Jackson did not give evidence as to which roles she submitted the plaintiff for in 2015 and 2016. I do not accept the defendants' submission that precise evidence would be available that ought to have been called by the plaintiff identifying the three or six roles that the plaintiff lost, the fee that would have been offered to the lead actor and that the films would actually proceed through to production and release and were successfully made. The defendants called no evidence to prove that such information, irrespective of what it might reveal, was available to the plaintiff and could have been called with reasonable diligence in trial preparation. Neither was that proposition established by cross-examination of the witnesses that the plaintiff did call. I accept that the plaintiff was actively doing her best in seeking feature film roles during the loss period.
[302] I cannot assess whether a film project would have been completed and on the basis of the plaintiff's evidence I accept that there was a risk that an project could fall through resulting in no income. There are many aspects of commercial risk associated with film projects that were recognised in the plaintiff's evidence that a film project was won not when the role was offered but when rehearsal/production actually commenced. There is also the prospect that the plaintiff may have accepted a role at a lesser fee, perhaps a significantly lesser fee and not been available for one or other of the assumed roles. There is a prospect that the plaintiff may not have completed projects for other reasons, including the whim of producers.
[303] The defendants submitted that the plaintiff was significantly remunerated for other work during 2015 and 2016, for which no allowance had been made in mitigation. In the loss period, the plaintiff made a number of commercials and earned significant income from her involvement in the 'Torrid' fashion label. Her remuneration from these commercials, was significantly greater than her fees for certain films in the period prior to the loss period and ought not be ignored.
[304] The defendants suggested, without proving any particular expense, that the plaintiff must make allowance for the expenses and costs associated with further lead film roles (such as agent fees, legal fees, travel expenses etc.) and invited me to consider expenditure savings concomitant with reduction in revenue. The Court ought to make an appropriate deduction to account for US income and corporate tax payable on any hypothetical income. Yet it is difficult to see how the Court could sensibly go about that exercise in the absence of expert evidence having been adduced by the plaintiff about these matters. The parties agreed that award of damages for defamation did not constitute income within the meaning of s 6-5 of the Income Tax Assessment Act 1997 (Cth) even if the amount was calculated solely by reference to lost profits.[333]
535 Then his Honour addressed submissions for the defendant. These included matters not really relevant to contingencies relating to the earnings hypothetically lost to the plaintiff from the lost opportunity - an instance is making allowance for substitute income[334] - but also that allowance should be made for business expenses and tax which would have been payable if screen roles had materialised.[335] His Honour accepted that the amount of any damages should be reduced by at least 50 per cent to take account of business expenses; and, possibly, tax.[336] The defendant also submitted,[337] and the judge appears to have accepted,[338] that the complication that the plaintiff was remunerated by Camp Sugar Inc - which, rather than Ms Wilson, contracted with producers, and was paid by them - raised a contingency; that is, as to what proportion of the lost earnings would have inured to the plaintiff.
536 Then his Honour appeared to liken 'apportionment of responsibility for [the plaintiff's] gross loss' to an assessment of contributory negligence. He said that it was similar to 'the exercise of a broad holistic discretion'.[339]
537 His Honour's consideration led on to conclude that an 80 per cent discount was appropriate:
Taking all of these considerations into account and balancing them as best as I am able, I have concluded that a substantial discount is necessary to properly and fairly value the opportunity lost by the plaintiff. I will discount the gross value of that opportunity by 80%. In other words, the probability that the value of the lost opportunity caused by the defendants was US$15 million is 20%. I assess the plaintiff's special damages in the sum of US$3 million (to be converted into AU$).[340]
538 By use of a particular exchange rate, the amount of the loss, expressed in US dollars, converted to the amount which was reflected in the judgment entered for the plaintiff.[341] In consequence, it being irrelevant, his Honour did not consider whether the plaintiff should recover Andrews damages.[342]
539 Ground 11 challenges his Honour's analysis of the plaintiff's loss at Reasons [294]-[309]. The challenge was mounted at both a conceptual and a factual level. It was submitted that his Honour had erred by not first assessing the likely value of the lost opportunity and then deducting matters that were certain - the extent of business expenses, tax and substitute earnings - before proceeding to discount for contingencies. It was also submitted that his Honour's consideration of contingencies was infected by a number of specific errors.
540 Ground 11 does not address, but we should mention, his Honour's rejection of the plaintiff's special damages claim as actually advanced by counsel in final address:
[310] I noted earlier that the plaintiff proposed a voluntary cap on her damages. She calculated that cap as follows, submitting that it was an extremely conservative estimate. She:
(a) assumed that the plaintiff lost only one lead or co-lead role as a result of publication of the defamatory articles;
(b) assumed that the value of that role was at the bottom end of the fixed remuneration range, i.e. USD$5 million (at the exchange rate at the time of submissions), about AU$6,582,000, with no allowance for back end bonuses;
(c) deducted the value of the plaintiff's mitigation by taking alternative available roles (A$877,138); and
(d) excluded any allowance for lost income as a result of the loss of roles in Kung Fu Panda 3 or Trolls,
resulting in a claim for special damages (at an assumed exchange rate) of AU$5,704,862. It is not necessary to explore the conceptual basis for the plaintiff's proposed cap. It has not become relevant.
[311] In La Trobe, Finkelstein J, while acknowledging that assessment of damages for loss of a chance cannot be precise, proposed an 'analytical framework' for calculation. His framework was apparently accepted by the other members of the court who applied different variables in the framework to reach a different assessment. The framework was, in essence, as follows:
Value of lost opportunity = P x V, where V = M x (1 - C)
P = the probability of realising the opportunity;
V = the value of the opportunity;
M = the maximum value of the opportunity; and
C = the 'value' of any contingencies.
[312] Although the plaintiff offered a calculation based on this analytical framework, I am not persuaded that it assists in the assessment in this case in the manner in which it was able to be used on the evidence in La Trobe.[343]
541 As mentioned,[344] consideration of ground 11 is really an impossible task when we have held that the plaintiff's claim fails at both the opportunity and causation hurdles.
542 We say only this: first, his Honour's disposition was based, at least in part, on what may have been a misunderstanding of the way in which counsel advanced Ms Wilson's claim in final address.[345] The claim as advanced was for the lost opportunity represented by one film role at $5 million remuneration, offset by actual earnings. Counsel repeatedly described this claim as very conservative, submitting that this could be illustrated by an analysis of the kind undertaken by Finkelstein J in La Trobe,[346] but beginning with a loss of three roles at $5 million basic remuneration each plus anticipated bonuses. That is, the La Trobe analysis was not the plaintiff's claim, but was used to underline what was said to be the very conservative nature of the plaintiff's actual claim.
543 The judge clearly did not accept the plaintiff's case as advanced in final address, which began with the loss of one movie role. Of course, he was not bound to do so. Rather, his Honour began with a loss of three such roles. He then rejected the applicability of the Finkelstein J analysis. But that had not been proposed by the plaintiff as the basis for assessing damages.
545 We consider that Bauer has established that the errors identified in grounds 9 and 10 are made out. After conducting a real review of the evidence, we have concluded that the evidence adduced by the plaintiff did not enable the inferences to be drawn, on the balance of probabilities: (1) that a valuable opportunity of the type for which she contended had existed and had been lost; (2) even had such an opportunity been established, that the grapevine effect in the United States, in respect of articles published in Australia, was a cause of that lost opportunity; and (3) that there was, in particular, a loss of an opportunity to earn US$15 million from being cast in lead or co-lead roles in three Hollywood feature films during the period from mid-2015 to the end of 2016, as his Honour found. We have concluded that Ms Wilson did not make out her special damage claim.[347]
546 The question arises, given that the plaintiff's claim for special damage is not made out, ought an award of damages be made, in the alternative, for a general decline in the plaintiff's business, in accordance with Andrews[348] ('Andrews damages')?
547 In Andrews the New South Wales Court of Appeal awarded damages for a decline in the plaintiff's business caused by defamatory publications in the absence of any claim for special damages for economic loss. John Andrews was an Australian architect with an international reputation. Since 1972, the corporate vehicle through which he operated was John Andrews International Pty Ltd ('International'). Mr Andrews and International brought defamation proceedings against John Fairfax & Sons Ltd ('Fairfax') in respect of newspaper articles that criticised the design and construction of a significant government building in the Australian Capital Territory for which International had been responsible.[349]
548 Neither Mr Andrews nor International alleged any special damage. However, they did complain about a decline in business. Evidence was adduced of the levels of receipts and expenditure both before and after the publication of the articles in the form of a document which became exhibit 'DD'. The judge ruled that he would receive document 'DD' in evidence if there were documents that fully supported its contents.[350] The defendants had called for its rejection at trial on the basis that it was irrelevant as it was only directed to proof of special damage for which there was no claim. This was rejected by the trial judge and on appeal the approach of the defendants was held to be misconceived. Relevantly, the focus was on the admissibility of evidence of a decline in a plaintiff's business in the absence of a claim for special damages. Clearly, that is not the context in which Ms Wilson makes her submissions on Andrews damages.
549 Although there was no claim for special damages, International contended that it was entitled to give evidence of its business activities, before and after publication of the articles, in order for the jury to understand how its business had been adversely affected. It relied on Ingram v Lawson[351] where the plaintiff complained about a libel in relation to a ship he was about to sail from London to Madras and Calcutta, namely that it was unseaworthy and had been bought to carry convicts. There was no allegation of special damage:
But it was averred generally, that, by reason of the libel, the Plaintiff was injured in his reputation as a shipowner and master mariner, and it was believed that his ship was unfit for freight and passengers of respectability, and that he had conducted himself dishonestly and improperly in relation to the said intended voyage.[352]
550 In Ingram v Lawson the plaintiff proved at trial what was the average profit to the captain of a ship on an East India voyage and that, in respect of his first voyage after the publication, his profits were nearly £1,500 below the average. The Court of Common Pleas[353] held that the evidence was admissible over objection, Erskine J remarking that 'it was reasonable to let [the jury] know the nature of the Plaintiff's business'[354] and Maule J observing that:
[The] evidence was admitted, only that the jury might know of what sort of business the Plaintiff carried on; for the same amount of damages ought not to be given in respect of a libel on a Plaintiff in the way of his business, where his trade is small, as where his trade is large.[355]
551 In Andrews, Hutley JA held that Ingram v Lawson, as approved in Ratcliffe v Evans,[356] should be followed. He said:
The case is of the highest authority, having been approved by the Court of Appeal, consisting of Lord Esher MR, Bowen and Fry LJJ in Ratcliffe v Evans and again by Kay LJ in South Hetton Coal Co Ltd v North-Eastern News Association Ltd. It has never been reflected upon. None of the appellants suggested it was wrongly decided, nor could it, in my opinion, be overruled by any court other than the High Court or the Privy Council. It establishes that, 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.[357]
552 His Honour went on to say that there is not a clear distinction between what is admissible in proof of a claim for special damages and what is admissible in proof of a claim for general damages:
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 ... .[358]
553 His Honour found that International was entitled to give evidence as to the general nature and operation of its business so that the jury could evaluate the effect of the defamation. The claim would become specific - and the damages special - if the jury were asked to award damages as calculated by reference to the loss of a particular client or the loss of profit over a particular period of time.
it is established by the decisions in Ingram v Lawson and Ratcliffe v Evans that a plaintiff suing for damages caused by defamation may elect to prove damages of a general kind, namely, for loss of business. This, as the authorities show, is different in kind from a claim for special damage, and does not need to be pleaded as such. ... The distinction, as I understand it, is simply that, if a plaintiff sets out to prove special damage, he undertakes to show that the loss was caused by the defamatory publication. If he elects not to do this, but merely to prove a decline in his overall business situation, leaving it to inference that he has suffered financial loss in some way connected with the defamatory material, he is at liberty to present such a case. He is also permitted to tender financial detail in aid of such a decline in business. Indeed, it is hard to imagine how a claim for general loss of this character could be presented without some supporting information of a financial kind.[359]
555 In Ratcliffe v Evans the defendant falsely and maliciously published in a Welsh newspaper a statement that carried the imputation that the plaintiff had ceased to carry on his business of engineer and boiler-maker, and that the firm of Ratcliffe & Sons did not then exist.[360] The plaintiff gave no evidence of specific loss of any particular customers or orders by reason of such publication; rather he sought to prove a general loss of business. Judgment was entered for the plaintiff. The defendant appealed on the ground that no special damage was proved at the trial. Bowen LJ, for the Court,[361] dismissing the appeal, considered other cases where evidence of a general loss of business had been relied upon, including Ingram v Lawson, and Evans v Harries[362] where it was accepted that an innkeeper who cannot point to the loss of any specific customers because they make up a floating and transitory class, but can point to a general downturn in business, can invite an inference to be drawn that the loss resulted from the defamation:
It [the slander in Evans v Harries] consisted of words reflecting on an innkeeper in the conduct of his business spoken openly in the presence of divers persons, guests and customers of the inn - a floating and transitory class. The Court held that general evidence of the decline of business was rightly receivable. 'How', asked Martin B, 'is a public-house keeper, whose only customers are persons passing by, to shew a damage resulting from the slander, unless he is allowed to give general evidence of a loss of custom?' Macloughlin v Welsh was an instance of excommunication in open church. General proof was held to be rightly admitted that the plaintiff was shunned and his mill abandoned, though no loss of particular customers was shewn. Here the very nature of the slander rendered it necessary that such general proof should be allowed.[363]
556 The authority of Ingram v Lawson and Ratcliffe v Evans was accepted by Mahoney JA in Andrews, who dissented in the result. His Honour sought to explain the basis on which Ratcliffe v Evans was decided and why it does not stand for the proposition that it will always be sufficient for a plaintiff to prove merely that he or she earned less after the defamatory matter was published than before:
A businessman who claims that the publication has affected his business ... is normally required to show that persons who would otherwise have done business with him have not done so, and that this resulted from the publication. But the customers of an innkeeper's business are a 'floating and transitory class'. Because of this, if the innkeeper were required to prove that particular customers or potential customers would have dealt with him and have not, and that the cause of their not doing so was the publication, he would be, in a practical sense, unable to do so; he would not know who would have dealt with him or be able to find them and, therefore, he could not call them to explain why. ... In Ratcliffe v Evans, the Court examined the application of these considerations to the various kinds of defamation and to similar wrongs. It pointed out that, where a general loss of business is what may be expected to 'flow directly and in the ordinary course of business' from what the defendant did, the allegation and proof of a general loss of business (which I take to mean a fall in fact in the amount of business done) may be sufficient to enable the inference to be drawn that there was a relevant loss, and that it was caused by the defamation.
But, in my opinion, these cases do not establish that, in every case, it is sufficient for a plaintiff to prove merely that the business that he did after the publication was less than he did before. The extent of the proof required will depend upon the kinds of consideration to which, in Ratcliffe v Evans, the Court referred. The extent to which they or similar considerations are not present, to that extent the ordinary proof of loss will be required. Thus, to prove that there has been an actual loss of business, prima facie, it is not sufficient to show merely that the plaintiff did less business after than before the publication. It must appear that there was available in the post-publication period relevant business which was available to be awarded to the plaintiff, and which was not awarded to him. In the case of an innkeeper whose business consists of a multitude of individual customers, it may be proper to infer that, in the absence of contrary evidence, the amount of business available after the publication was no less than that available before. That assumption will not be open where the nature of the plaintiff's business is different.[364]
557 His Honour went on to give his view of what was in issue in such cases as Ratcliffe v Evans and to the difficulties which might attend proof of loss in some cases:
In that case, the matter directly in issue was the kind of injury which could constitute special damage in defamation and other torts. ... The defendant's submission in Ratcliffe v Evans arguendo was that special damage, for the purposes of that case, meant particular pecuniary loss, and that a general decline in business was not sufficient. The Court said that 'the question we have to determine is, whether in such an action such general evidence of damage is admissible and sufficient'. After referring to the meanings given to 'special damage' in other branches of the law, the Court gave instances in which, in actions for slander not actionable per se, general loss of business had been seen as special damage sufficient to support the cause of action, and concluded that it should be sufficient in the instant case. In the course of considering the matter, the Court gave reasons why the allegation and proof of such a general loss of business should be sufficient to support the cause of action. It referred to the tendency of the law to allow a degree of generality in allegations against a wrong-doer; to the fact that a fall in business was the kind of result apt to flow from the wrong in question, and to the difficulties of proof, which, in some cases, would exist in proving loss more particularly. It was in the course of referring to these matters that the Court made the observation as to proof to which I have referred.[365]
558 Ms Wilson submitted that Andrews was approved by the High Court in Chakravarti v Advertiser Newspapers Ltd.[366] This consisted in a passing observation by Gaudron and Gummow JJ (with whom Brennan CJ and McHugh J agreed)[367] in the context of an award of damages for economic loss. Insofar as their Honours referred to Andrews, it was to the dissenting judgment of Mahoney JA and to the observations his Honour made on Ratcliffe v Evans[368] referred to above.[369] This supports the adoption of a cautious rather than liberal approach towards the proof required to support an award of Andrews damages.
559 In Chakravarti two articles were published in a newspaper about evidence given to a Royal Commission with respect to the near collapse of the State Bank of South Australia ('the Bank'). The first article reported on evidence from the former chairman of the Bank's Board of Directors about unauthorised loans and allegations of criminal or civil misconduct by certain executives of the Bank. It named Mr Chakravarti as one of those executives. A second article contained extracts from the diaries of the former chairman. After he left the Bank, Mr Chakravarti obtained a position at Leal Boss Computer & Office Supplies Pty Ltd ('Leal Boss').[370] He was dismissed from Leal Boss two days after the first article was published.[371] He claimed to have lost that job as a result of the publication of the first article. He had been unable to find employment since.
It is unrealistic to criticize the plaintiff for not calling someone from Leal Boss to say why they dismissed him. I think it likely that, if the articles had not been published but, for some reason, the plaintiff had not continued with Leal Boss, he would have obtained a good job, possibly even a better one, elsewhere, though I cannot be certain about that. The plaintiff has therefore made out his case of special damage.[374]
562 The High Court relevantly reversed the Full Court. It held that the finding of causation by Cox J was 'clearly open', that is, the publication of the articles caused a loss of earning capacity which was compensable by an award of damages. In doing so, Gaudron and Gummow JJ referred to Andrews damages as noted above.[377] Their Honours said:
It is necessary to say something with respect to 'special damage' for the purposes of the law of defamation. At common law and subject to exceptions ... slander is only actionable on proof of special damage. The special damage which must be proved is some form of pecuniary loss or loss capable of assessment in money terms. It clearly includes the loss or refusal of employment if sufficiently connected with the words spoken. Special damage may also be established by proof of general loss of business, at least if that is the likely consequence of the slander involved.[378]
563 Their Honours examined the finding made at first instance and emphasised that the focus ought not to be on the termination from Leal Boss but on the loss of Mr Chakravarti's earning capacity that produced actual pecuniary loss when he could not obtain regular employment :
It is necessary to return to the finding at first instance. That was a finding that, had the articles not been published and had Mr Chakravarti elected not to remain with Leal Boss, he would have been able to obtain comparable or better employment elsewhere. That is a finding of lost earning capacity or, perhaps, more accurately, a finding which supports a finding to that effect. Lost earning capacity, if it is or may be productive of actual loss, is loss which is capable of assessment in money terms. And it may fairly be described as special damage for the purpose of defamation law.
....
Although there might be room for argument whether the evidence would support a finding that the first article resulted in the termination of Mr Chakravarti's services, that was not the finding made at first instance. ... [T]hat finding was simply that, but for the articles, Mr Chakravarti would have been able to obtain comparable or better employment elsewhere. That was a finding of fact and a finding that was clearly open on the evidence. When there is added to that finding the undisputed fact that Mr Chakravarti's services were terminated and the evidence, which Cox J said he was disposed to accept, that Mr Chakravarti had not thereafter had regular employment, it was open to his Honour to conclude that the articles resulted in a loss of earning capacity productive of actual loss. To the extent that the Full Court reached a contrary view, it was in error. And once Cox J concluded that there had been actual loss, it was open to his Honour to quantify that aspect of Mr Chakravarti's lost earning capacity in a sum reflecting the income he otherwise could and would have earned.[379]
564 Kirby J agreed that it was clearly open to Cox J to make the findings on causation that he did and that he regarded it 'as overwhelmingly probable that the publication of the first article was a cause of the termination of the appellant's employment and of the difficulty which he thereafter experienced in obtaining employment in the finance industry'.[380] His Honour's only reference to Andrews damages was to note that at first instance Mr Chakravarti's statement of claim included a specific claim for damages for economic loss which was properly particularised, by comparison with the claim in Andrews.[381]
565 It is clear that the High Court in Chakravarti did not endorse the proposition that an award of damages is available whenever the plaintiff can show that there has been a fall in the amount of business after the publication of the defamatory matter, or that a comparison between the business done before and after publication provides proof that a decline was due to the publication. Whether damages should be awarded will depend on the particular nature of the business and the extent to which more exact proof that the defamatory publication was responsible for a downturn in a plaintiff's business is unavailable, because of the type of considerations identified in Ratcliffe v Evans. Each case will depend on its own facts.
566 Andrews damages have been awarded in Australia in other cases[382] but there has been no further analysis of Ingram v Lawson or Ratcliffe v Evans or the foundation for an award of damages for a general decline in business.
567 On the appeal, Ms Wilson submits that the articles directly 'infected' a critical aspect of her reputation and thereby effected a downturn in her work opportunities in film and television. She submits that the evidence was more substantial, by a considerable margin, than the evidence relied on in Andrews or Chakravarti. In respect of the contrast with Andrews, no doubt this is true because Ms Wilson made a claim for special damage. However, we have concluded, decisively, that Ms Wilson has failed to prove her economic loss. We consider the impact of this consequence later.[383]
568 Ms Wilson also relies on the approach taken to damages for a general decline in business adopted by the Privy Council in The Gleaner Co Ltd v Abrahams.[384] Mr Abrahams had been Minister of Tourism for Jamaica between 1980 and 1984. The defendants[385] published articles in two newspapers alleging that Mr Abrahams, when Minister of Tourism, had accepted bribes in return for giving work to American companies to promote tourism in Jamaica. He did not plead special damage but rather gave evidence in support of an award of general damages which took loss of earnings into account. Mr Abrahams' evidence was that, after the publications, his tourism consultancy business collapsed and no one was willing to do business with him. Apart from his salary as a Member of Parliament, he 'did not earn a shilling' for five years after publication of the articles.[386]
569 The Court of Appeal reduced the general damages awarded by the jury.[387] The defendants appealed to the Privy Council on the ground that the substituted amount was still manifestly excessive and appeared to contain, erroneously, a punitive element. The Privy Council dismissed the appeal. In the context of discussing the differences that exist between general damages in personal injury cases and general damages in defamation proceedings, and noting that the focus of the appeal was the substituted award and not the jury's award, the Court made an obiter observation that there is a relaxation of the requirements for proving causation of loss of earnings as an aspect of general damages in defamation proceedings in return for moderation in the sum awarded:
[I]n an action for personal injury it is usually not difficult for the plaintiff to prove that his injury caused inability to work and consequent financial loss. Loss of earnings is therefore recoverable as special damage and ordinarily, in cases of grievous injury, constitutes by far the greater part of the award. Likewise, the expenses of care, nursing and so forth are recoverable as special damage. They do not constitute a factor in the assessment of general damages. In defamation cases, on the other hand, it is usually difficult to prove a direct causal link between the libel and loss of any particular earnings or any particular expenses. Nevertheless it is clear law that the jury are entitled to take these matters into account in the award of general damages. The strict requirements of proving causation are relaxed in return for moderation in the overall figure awarded. In the present case, in which Mr Abrahams was unable to find any remunerative employment for five years, loss of earnings must have played a significant part in the jury's award.[388]
570 The Privy Council in Abrahams did not consider Ratcliffe v Evans.
571 Bauer submits that to the extent that the advice of the Privy Council in Abrahams suggests that the ordinary principles and standard of proof for causation do not apply to claims for economic loss in defamation cases, it should not be followed. We agree. This is not to deny (and nor did Bauer submit that it should be denied) that due allowance is to be made in the evaluation of evidence for the type of evidence that might be expected to be available. That is, where a plaintiff makes a claim for a general decline in a business, rather than, or in the alternative to, a claim for special damages, it is relevant to consider whether any of the factors identified in Ratcliffe v Evans are appropriate. In particular, it is relevant to consider whether there are inherent difficulties in proof of causation because, for example, the customers make up a floating and transitory class. We consider that it is most likely only in this limited respect that it can be said that there is a relaxation of the strict requirements of proof of causation in applying the principles governing Andrews damages. Otherwise, with respect to the considerations referred to in Ratcliffe v Evans, to '[t]he extent to which they or similar considerations are not present, to that extent the ordinary proof of loss will be required'.[389] We take this to be supported by the authority of the High Court's judgment in Chakravarti.
572 Applying those principles here, we reject the submission that Ms Wilson ought be awarded Andrews damages. We do so for a number of reasons.
573 First, we consider that the context in which the claim is made is significant. It is claimed as an alternative to special damages in circumstances where we have rejected each element of that claim. In particular, we have rejected the proposition that there was a valuable opportunity that Ms Wilson lost. We consider that the judge erroneously described the trajectory of success of Ms Wilson's career and over-stated the effect of Ms Jackson's evidence with respect to the likelihood of offers of lead or co-lead roles in feature Hollywood films from mid-2015 to the end of 2016.[390] We have also rejected the proposition that there was a causal connection between publication of the articles and Ms Wilson's alleged loss. As explained above, Ms Wilson relied upon the grapevine effect in the United States, of the defamatory sting of the articles published in Australia, amongst Hollywood producers, film-makers, casting directors and studio executives. Yet there was no evidence that any member of those groups was either aware of the sting of the articles or, if aware, took an adverse view of Ms Wilson as a result.[391] Indeed, the plaintiff gave no evidence of the gist of the articles circulating in Hollywood at the relevant time. We consider the judge overestimated the scale and impact of the grapevine effect.[392] Even if valuable opportunities had existed, we consider that there was evidence of competing explanations for their loss of equal or greater persuasion.[393] Furthermore, we have concluded that Ms Wilson was unable to prove, to the standard of the balance of probabilities, that she had experienced a decline in business.[394] This conclusion alone is fatal to her claim for Andrews damages.[395]
574 In the face of the considered rejection of each of these elements, we do not see how the claim that Bauer's publication of the articles is responsible for a general loss of the plaintiff's business is tenable.
575 Second, we do not consider that the deficiencies we have identified in Ms Wilson's claim for economic loss can be overlooked by reason that her position is analogous to the examples mentioned in Ratcliffe v Evans. Far from there being inherent difficulties of proof in establishing that business had declined, Ms Wilson could have adduced evidence, but did not, from members of her American publicity team or her other six Hollywood agents[396] (in addition to the evidence of Ms Jackson, whose evidence was frail)[397] to try to establish the spread of the grapevine effect in Hollywood and its adverse impact upon offers of lead or co-lead roles for which she was suitable. This group of potential witnesses are not analogous to the potential passengers of a ship alleged not to be seaworthy, as in Ingram v Lawson. Nor do they fit into the examples referred to in Ratcliffe v Evans, namely, the floating and transitory class of customers of an inn-keeper as in Evans v Harries, or the congregation in relation to a public excommunication in open church, as in Macloughlin v Welsh.[398] By contrast, the agents and publicists were identifiable and in a close business relationship with Ms Wilson.
576 Third, it was not necessary for Ms Wilson to adduce evidence directly from Hollywood producers, film-makers, casting directors and studio executives associated with Paramount Pictures, Universal Pictures, MGM, 20th Century Fox, Warner Bros or the many other film studios in Hollywood, or the United States, (who may bear some relationship to the floating class of customers of an inn-keeper). For reasons which we have explained, there may well have been no utility in doing so.[399] But there were other means of adducing evidence of a decline in business, or a reduction in expected offers of lead or co-lead roles in feature films, as mentioned above, which Ms Wilson chose not to adopt.
577 Fourth, as we have mentioned, some of the opinion evidence relied upon by Ms Wilson to support the decline in her business, that of Mr Principato, had a post hoc, ergo propter hoc character to it.[400] This is precisely the type of evidence that Mahoney JA in Andrews (as approved by the High Court) observed could not be relied upon.[401]
578 In conclusion, we consider that, in the circumstances, Ms Wilson's claim for Andrews damages fails for all the reasons that her claim for special damages fails. Had we decided that the evidence supported a claim for Andrews damages, a number of other issues would have arisen that we now do not need to consider.
579 To the extent of and in accordance with the foregoing reasons, the application for leave to appeal will be granted and the appeal allowed. The judgment entered on 13 September 2017 will be set aside, and in lieu thereof there will be judgment for the plaintiff in the sum of $600,000. We will hear the parties on the issues of interest and costs.
[1] Wilson v Bauer Media Pty Ltd [2017] VSC 521 ('Reasons').
[2] All later references to dollars, without more, are expressed in Australian dollars unless the contrary is specifically stated.
[3] For convenience, in what follows we refer simply to 'the appeal' (rather than the application for leave to appeal) and the proposed grounds of appeal simply as grounds of appeal.
[4] The second further amended defence filed on 9 June 2017.
[5] In pleading justification or truth defences, Bauer relied upon justification/truth at common law and under s 25 of the Act.
[7] Both at common law and pursuant to s 30(1) of the Act.
[8] See David Syme & Co Ltd v Hore-Lacy [2000] VSCA 24; (2000) 1 VR 667; Setka v Abbott [2014] VSCA 287; (2014) 44 VR 352.
[9] Reference was made by the plaintiff to the decisions of Szanto v Melville [2011] VSC 574 and Cunliffe v Woods [2012] VSC 254.
[11] Wilson v Bauer Media [Ruling No 6] [2017] VSC 356 ('Ruling No 6').
[14] Not counsel who appeared in this Court.
[15] See paras (a), (b) and (e) of the plaintiff's imputation in relation to the Woman's Day print article.
[16] Malice only being relevant to the defence of qualified privilege in relation to the first Women's Weekly online article, the jury was not asked any question about malice in relation to the other seven articles.
[19] The following is taken largely from the parties' agreed summary filed in this Court.
[21] [1951] HCA 23; (1951) 82 CLR 497, 514 ('Triggell v Pheeney').
[22] [1993] HCA 31; (1993) 178 CLR 44, 71 ('Carson').
[23] See also, The Herald & Weekly Times Ltd v Popovic [2003] VSCA 161; (2003) 9 VR 1, 77 [383]-[384] ('Popovic'); Lower Murray Urban & Rural Water Corporation v Di Masi [2014] VSCA 104; (2014) 43 VR 348, 392 [118] ('Lower Murray Water').
[25] While the plaintiff's submissions at trial referred to 'answers to interrogatories', in fact this complaint was limited to the negative answer given in interrogatory 13 to the question of whether Bauer published the articles so as to coincide with the release of Pitch Perfect 2.
[26] Reasons [84]-[88]. See also, Reasons [59(h)] and [346].
[41] Coyne v Citizen Finance Ltd [1991] HCA 10; (1991) 172 CLR 211, 237 (Toohey J).
[42] [1951] HCA 23; (1951) 82 CLR 497, 514.
[46] While the judge's reasons contain the word 'plaintiff's' at this point, all counsel who appeared before us accepted that, in context, the judge must have meant to say 'Bauer Media's'.
[47] Wilson v Bauer Media [Ruling No 5] [2017] VSC 355 ('Ruling No 5').
[53] Ibid [332], [335], [349], [359] and [380].
[55] Ibid [81]-[84]; Reasons [349].
[58] Ibid [385(a)]. See also [343]-[345].
[62] As that expression is defined in r 1.13 of the Supreme Court (General Civil Procedure) Rules 2015.
[63] See also, Reasons [361]-[362].
[66] Ibid [353]. See further, [379], [385(b)].
[68] Carson [1993] HCA 31; (1993) 178 CLR 44, 72; Popovic [2003] VSCA 161; (2003) 9 VR 1, 24 [85]; Lower Murray Water [2014] VSCA 104; (2014) 43 VR 348, 392 [116].
[77] In Australia, in addition to the Act, there is the Defamation Act 2005 (NSW), the Defamation Act 2005 (WA), the Defamation Act 2005 (SA), the Defamation Act 2005 (Qld), the Defamation Act 2005 (Tas), the Defamation Act 2006 (NT), and the Civil Law (Wrongs) Act 2002, pt 9 (ACT) (collectively 'the Defamation Acts'). While not identical the substantive provisions are relevantly uniform.
[78] Section 35(3) permits the Minister, on or before 1 July of each year, to declare the amount that is to apply from that date. The maximum amount applies as at the date the damages are awarded. On 23 May 2018 the Attorney-General declared that on and from 1 July 2018 the maximum damages amount that may be awarded for non-economic loss in defamation proceedings is $398,500: Attorney-General (Vic), 'Defamation Act 2005 - Declaration under section 35(3)', Victoria, Government Gazette, No G 22, 31 May 2018, 1202. As the new maximum does not apply until 1 July 2018 it has no application to this proceeding.
[79] Section 5(1AAA) of the Limitation of Actions Act 1958 (Vic) imposes a limitation period on the commencement of defamation proceedings of 1 year from the date of the publication of which the plaintiff complains. A court may extend the limitation period up to 3 years from the date of publication if satisfied that it was not reasonable in the circumstances for the plaintiff to have commenced the proceeding within 1 year of publication: s 23B(2) of the Limitation of Actions Act.
[81] See, for example, the allegations in Statement of Claim, 16 May 2016, [4], [6], [8], [10], [12], [14], [16], and [18]. These allegations include the Woman's Day print article and the articles on the websites.
[82] 'Parliament' is defined by s 38 of the Interpretation of Legislation Act as meaning 'the Parliament of Victoria'.
[92] Ibid [59(a)]. As to what is meant by the description that at common law damages are 'at large', see for example, Lord Reid in Cassell & Co Ltd v Broome [1972] UKHL 3; [1972] AC 1027, 1085: 'Any one person trying to fix a sum as compensation will probably find in his mind a wide bracket within which any sum could be regarded by him as not unreasonable - and different people will come to different conclusions. So in the end there will probably be a wide gap between the sum which on an objective view could be regarded as the least and the sum which could be regarded as the most to which the plaintiff is entitled as compensation'.
[93] Ibid [59(f)] (citations omitted).
[94] Ibid [147] (citations omitted). See also Lower Murray Water [2014] VSCA 104; (2014) 43 VR 348, 388 [110], 390 [112].
[96] Reasons [59(f)], citing Crampton v Nugawela [1996] NSWSC 651; (1996) 41 NSWLR 176, 194-5 (Mahoney ACJ).
[97] Reasons [59(h)] (citations omitted).
[98] Ibid. See, for example, Lower Murray Water [2014] VSCA 104; (2014) 43 VR 348, 392 [116].
[104] Victoria, Parliamentary Debates, Legislative Assembly, 7 September 2005, 635 (Rob Hulls, Attorney-General).
[106] Reasons [74], citing Dr David Rolph, 'A critique of the national, uniform defamation laws' (2008) 16 Torts Law Journal 207, and David Rolph, Defamation Law (Thomson Reuters, 2016) 15.110-15.130.
[107] This was in response to the high cost of insurance; the restrictions introduced were 'designed to balance the general public interest in having reasonable insurance products against the need to compensate those having serious need as a result of injury': 'Proposal for Uniform Defamation Laws' (Standing Council of Attorneys-General Working Group of State and Territory Officers, July 2004) 28. In 2002, Victoria, as part of a national legislative response, capped the maximum amount of damages that may be awarded to a personal injury claimant for non-economic loss in a sum indexed by reference to the CPI. The judge noted that at the time of trial the relevant cap was $577,050.
[109] Ibid [73], citing Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503, 519 [39] ('Consolidated Media').
[110] Reasons [73], citing Consolidated Media [2012] HCA 55; (2012) 250 CLR 503, 519 [39].
[115] See especially, ss 3(c), 23, 34, 37 and 38 of the Act, identified above.
[116] 'Proposal for Uniform Defamation Laws' (Standing Council of Attorneys-General Working Group of State and Territory Officers, July 2004) 8.
[119] Victoria, Parliamentary Debates, Legislative Assembly, 7 September 2005, 635 (Rob Hulls, Attorney-General).
[120] Section 11 of the Act relevantly provides: '(1) If a matter is published wholly within a particular Australian jurisdictional area, the substantive law that is applicable in that area must be applied in this jurisdiction to determine any cause of action for defamation based on the publication. (2) If there is a multiple publication of matter in more than one Australian jurisdictional area, the substantive law applicable in the Australian jurisdictional area with which the harm occasioned by the publication as a whole has its closest connection must be applied in this jurisdiction to determine each cause of action for defamation based on the publication'.
[122] [2016] HCA 48; (2016) 259 CLR 256 ('Kilic').
[123] The plurality said: '[A]n offence may be assessed as so grave as to warrant the maximum prescribed penalty notwithstanding that it is possible to imagine an even worse instance of the offence': Kilic [2016] HCA 48; (2016) 259 CLR 256, 266 [18].
[124] As noted above, this is indexed to CPI.
[126] [2007] NSWSC 1386 ('Attrill').
[127] The published words complained of included the statement: 'he's nothing more than a con man'.
[128] [2003] HCA 52; (2003) 216 CLR 327 ('Rogers').
[130] Atrill [2007] NSWSC 1386 [41]-[42].
[131] Atrill [2007] NSWSC 1386 [43]-[44] (emphasis in original).
[132] (2014) Aust Torts Reports 82-165 (NSW Supreme Court). Adamson J remarked (at [154]): 'General compensatory damages are limited by s 35 of the Act to $355,000, which is understood to state the outer limit for this head of damages in defamation matters. The correct approach is to place the defamation in a range: Attrill v Christie [2007] NSWC 1386 per Bell J at [44]'. He found the plaintiffs to be unsatisfactory witnesses and had doubts about what caused their hurt. A claim for aggravated damages failed.
[133] [2014] NSWSC 350. His Honour (at [235]) described s 35(1) as a cap which is adjusted from time to time, noted that the cap applies to the entire proceedings no matter how many defamatory imputations are alleged and said: 'Otherwise, the significance of the cap was outlined by Bell J in Attrill v Christie [2007] NSWSC 1386 at [44] to [45]'.
[134] [2017] NSWSC 996. His Honour again observed the significance of the cap was explained by Bell J in Attrill [2007] NSWSC 1386 at [44]. He held that the plaintiff was not entitled to aggravated damages.
[137] [2014] VSC 279 ('Cripps'). This matter went on appeal but the issue of the statutory construction of s 35 did not arise: Vakras v Cripps [2015] VSCA 193.
[138] Cripps [2014] VSC 279 [586].
[139] Ibid [604]-[606]. Section 134AB(22) of the Accident Compensation Act provides: 'A court must not, in proceedings in accordance with this section, award to a worker in respect of an injury - (a) pecuniary loss damages - (i) if the total pecuniary loss damages assessed, before the reduction (if any) under section 26(1) of the Wrongs Act 1958 and before the reduction (if any) under subsection (25), is less than $56,650 or that amount as varied in accordance with Division 2D of Part IV as at the date of the award; or (ii) in excess of $1,275,570 or that amount as varied in accordance with Division 2D of Part IV as at the date of the award; or (b) pain and suffering damages - (i) if the total pain and suffering damages assessed, before the reduction (if any) under section 26(l) of the Wrongs Act 1958 and before the reduction (if any) under subsection (25), is less than $54,730 or that amount as varied in accordance with Division 2D of Part IV as at the date of the award; or (ii) in excess of $555,350 or that amount as varied in accordance with Division 2D of Part IV as at the date of the award; or (c) damages of any other kind, other than damages in the nature of interest'.
[140] Cripps [2014] VSC 279 [595].
[141] Ibid [607]-[609] (citations omitted).
[142] See [180] above. We also noted at [190] above that the Workplace Injury Rehabilitation and Compensation Act does not contain an equivalent provision to s 34.
[143] Section 134AB(23) of the Accident Compensation Act provides: 'In the trial of a proceeding brought under this section, a jury must not be informed - (a) of the monetary thresholds and statutory maximums specified by or under subsection (22)'. See n 139 above.
[144] [2017] VSC 380 [70].
[145] [2016] NSWSC 1091 ('Carolan').
[146] Pedavoli v Fairfax Media Publications Pty Ltd (2014) 324 ALR 166, 185 [108]: 'In my view, the assessment must begin with the proposition that, but for the fact that the plaintiff was not named in the article, the seriousness of the defamation and the degree of hurt in fact suffered by Ms Pedavoli would place this case within the worst class of case, calling for an award of damages at or near the statutory cap, subject to any relevant factors of mitigation and aggravation'. Ms Pedavoli was awarded damages, including aggravated damages, that fell under the maximum damages amount: 192 [156]. On appeal, the New South Wales Court of Appeal treated s 35(1) as establishing the upper limit of a range, without expressly examining the issue, Sackville AJA citing Attrill: Fairfax Media Publications Pty Ltd v Pedavoli [2015] NSWCA 237; (2015) 91 NSWLR 485, 523 [178].
[147] Carolan [2016] NSWSC 1091 [127]. She also noted that neither party addressed the question of the application of s 35 in any detail and that the issue was not of any great significance in her assessment of damages in that case: [123], [127].
[149] Ibid [64]. There was no reference to Cripps. At first instance his Honour, Bell J, observed: 'The amount of damages to be awarded in the present case will not exceed the statutory maximum even when aggravated damages are included': Dods v McDonald [No 2] [2016] VSC 201 [52].
[152] [2017] WASC 367 ('Rayney').
[153] Ibid [895]. He awarded damages for non-economic loss in the sum of $600,000. However, the issue which Chaney J was addressing in the context of s 35 was principally the question of whether the circumstances of aggravation that a court can take into account include matters or events which post-date the relevant publication. His Honour referred to both Cripps and Wilson v Bauer Media Pty Ltd [2017] VSC 521 to support his conclusion that s 35(2) does not differentiate between aggravating conduct which occurs at the time of publication and aggravating conduct which occurs after publication: [2017] WASC 367 [851]-[856].
[157] Markarian v The Queen (2005) 228 CLR 357, 372 [31].
[160] Bauer gave as an example of where a judge had chosen to separate the sum awarded for aggravated damages from that awarded for pure compensatory damages for non-economic loss, Cripps [2014] VSC 279 [16], where Kyrou J ordered that Mr Vakras was 'liable to pay to Mr Cripps damages totalling $350,000 (inclusive of $100,000 for aggravated damages)' and Mr Raymond was 'liable to pay to Mr Cripps damages totalling $70,000 (inclusive of $20,000 for aggravated damages)'.
[165] Ibid 111 [41] (citation omitted).
[167] Ibid 77 [385] (citation omitted).
[168] Uren v John Fairfax & Sons Pty Ltd [1966] HCA 40; (1966) 117 CLR 118, 149.
[169] Carson [1993] HCA 31; (1993) 178 CLR 44, 72 referring to Uren v John Fairfax & Sons Pty Ltd [1966] HCA 40; (1966) 117 CLR 118, 150.
[170] See also Rayney [2017] WASC 367 [855].
[173] South Australia, Parliamentary Debates, Legislative Council, 14 September 2005, 2542 (Paul Holloway, Minister for Industry and Trade). This description is similar to that used in Queensland. In the second reading speech in the Tasmanian Parliament the then Deputy Leader of the Government in the Council, Douglas Parkinson, described the operation of the cap in a manner similar to the Victorian Attorney-General, namely: '[T]he bill imposes a general cap on damages for non-economic loss of $250,000 which will be adjusted annually with reference to a formula in the bill. The courts may, however, award additional aggravated damages in appropriate cases and the bill provides for the full recovery for a plaintiff's economic loss.': Tasmania, Parliamentary Debates, Legislative Council, 29 November 2005.
[174] Senior counsel referred to the Full Federal Court (Allsop CJ, Kenny, Besanko, Robertson and Mortimer JJ) as having made this distinction in May v Military Rehabilitation and Compensation Commission (2015) 233 FCR 397, 440-1 [187]-[188] (citations omitted), in the context of distinguishing questions of fact from questions of law when it said:
The High Court has observed, by reference to its own decision in Collector of Customs v Agfa-Gevaert Ltd, that notions of meaning and construction are interdependent, and in any statutory interpretation exercise the meaning of a word or phrase in a statute will be affected by context, syntax and other words used in the statute: Aktiebolaget Hassle v Alphapharm Pty Ltd.
The importance of this observation for circumstances where the Court's jurisdiction is limited to questions of law was highlighted by Allsop P ... in OV v Members of The Board of Wesley Mission Council, where his Honour observed ... that the High Court's decision in Agfa-Gevaert:
... should not be taken as denying the conceptual distinction between the ascertainment of semantic meaning (interpretation) and determining legal effect or legal content (construction) of a legal text. The processes can be seen to be distinct in terms of legal theory and function. What the High Court stated was that their inter-relationship in the process of ascription of meaning to a legal text meant that for the purpose, at least, of distinguishing between questions of law and fact, the distinction was illusory.
[176] As mentioned, exemplary or punitive damages have been abolished by the Act.
[178] [1915] VicLawRp 66; [1915] VLR 450. See also Registrar of Titles (WA) v Franzon [1975] HCA 41; (1975) 132 CLR 611, 618.
[179] Craig Williamson Pty Ltd v Barrowcliff [1915] VicLawRp 66; [1915] VLR 450, 452.
[182] This figure was broken up into figures of $350,000 for the first Woman's Day print article, $150,000 for the Woman's Day online article, $200,000 for the first Women's Weekly online article and $100,000 for each of the remaining articles.
[190] [2016] HCA 22; (2016) 331 ALR 550 ('Robinson').
[191] Citing Fox v Percy [2003] HCA 22; (2003) 214 CLR 118, 126-7 [25] (Gleeson CJ, Gummow and Kirby JJ) ('Fox').
[192] Citing Devries v Australian National Railways Commission (1993) 177 CLR 472, 479-81 (Deane and Dawson JJ); Fox [2003] HCA 22; (2003) 214 CLR 118, 128 [29] (Gleeson CJ, Gummow and Kirby JJ; Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd [2010] HCA 31; (2010) 241 CLR 357, 380 [76] (Heydon, Crennan and Bell JJ) ('Miller & Associates').
[193] Citing Fox [2003] HCA 22; (2003) 214 CLR 118, 128 [28] (Gleeson CJ, Gummow and Kirby JJ).
[194] Citing Fox [2003] HCA 22; (2003) 214 CLR 118, 128 [29]. See also Miller & Associates [2010] HCA 31; (2010) 241 CLR 357, 380 [76].
[195] Robinson [2016] HCA 22; (2016) 331 ALR 550, 558 [43] ('Robinson [43]').
[196] [2017] VSCA 258 [92]-[95] (Redlich, Santamaria and McLeish JJA) ('Food & Beverage').
[197] [2017] VSCA 128 [105]-[107] (Warren CJ, Tate and Whelan JJA) ('Melbourne City').
[198] [2016] VSCA 320 [138]-[139] (Maxwell P, Beach and Kaye JJA) ('CSR').
[199] Counsel cited State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) [1999] HCA 3; (1999) 160 ALR 588, 614 [85] (Kirby J).
[200] [2016] VSCA 141 [139]-[141] (Tate ACJ, Kyrou and Ferguson JJ). Reasons were published very soon after Robinson was published. Despite the short elapse of time, the Court referred to Robinson.
[201] [2017] VSCA 88 [94]-[98] (Santamaria, Ferguson and Kaye JJA).
[202] [2017] VSCA 301 [77]-[79] (Santamaria, Kaye and Ashley JJA) ('Southern Colour').
[203] [2018] VSCA 103 [223] (Ferguson CJ, Weinberg JA and Sifris AJA) ('Geary').
[204] [2017] VSCA 283 ('Cahill').
[205] [2017] NSWCA 137 [13] - [17] ('Springfield').
[206] See, for instance, Brunskill v Sovereign Marine & General Insurance Co Ltd [1985] HCA 61; (1985) 62 ALR 53, 56-7. See also Fox [2003] HCA 22; (2003) 214 CLR 118, 126-8 [25] - [29] (Gleeson CJ, Gummow and Kirby JJ).
[207] [2017] VSCA 301 [78] citing in n 49 Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531, 551; Fox [2003] HCA 22; (2003) 214 CLR 118, 126-7 [25] (Gleeson CJ, Gummow and Kirby JJ); Devries v Australian National Railways Commission (1993) 177 CLR 472, 480 (Deane and Dawson JJ); Marriner [2016] VSCA 141 [139]-[141] (Tate ACJ, Kyrou and Ferguson JJA); Masters [2017] VSCA 88 [95]-[98] (Santamaria, Ferguson and Kaye JJA); Beaumaris Football Club v Hart [2017] VSCA 226 [90]-[91] (Osborn, Beach and Kaye JJA); Victorian WorkCover Authority v Kalenjuk [2017] VSCA 17 [51] (Santamaria and Beach JJA); Springfield [2017] NSWCA 137 [16]-[20] (Basten JA).
[208] Geary [2018] VSCA 103 [223].
[210] Food & Beverage [2017] VSCA 258 [92]-[95], [192]-[193], [223].
[218] [2016] HCA 18; (2016) 257 CLR 440, particularly 453 [34], 454 [37], 454-5 [39]-[41] (French CJ, Kiefel and Keane JJ).
[219] (1994) 179 CLR 332, 355 (Mason CJ, Dawson, Toohey and Gaudron JJ), 361 (Brennan J).
[220] [2011] FCAFC 4; (2011) 190 FCR 299 ('La Trobe').
[221] The plaintiff went further, describing it as 'the biggest agency in the world'.
[222] Counsel cited Badenach v Calvert [2016] HCA 18; (2016) 257 CLR 440, 455 [41] (French CJ, Kiefel and Keane JJ).
[223] Counsel cited Sellars v Adelaide Petroleum NL (1994) 179 CLR 332, 368 (Brennan J).
[224] The plaintiff gave evidence that she was given that reason for termination of her contract for Kung Fu Panda 3. She said she assumed that termination of her contract for Trolls was for the same reason.
[225] Counsel cited Commonwealth v Amann Aviation Pty Ltd [1991] HCA 54; (1991) 174 CLR 64, 100 - 1 (Brennan J).
[226] Reasons [140] citing Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225 ('Andrews').
[231] Senior Counsel for the plaintiff conceded that this was the case.
[232] See, for example, Reasons [152].
[236] Ibid [161] (citations omitted).
[237] Ibid [162] (citations omitted).
[238] Ibid [163] (citations omitted)
[241] Ibid [167] (citations omitted).
[243] [2011] FCAFC 4; (2011) 190 FCR 299, 323 [112]-[114] (Jacobson and Besanko JJ); see also Orchard Holdings Pty Ltd v Paxhill Pty Ltd [2012] WASC 271 [283].
[246] (1994) 179 CLR 332, 335.
[248] [1990] HCA 20; (1990) 169 CLR 638, 642-3 (Deane, Gaudron and McHugh JJ).
[250] Ibid 585 [136] (citations omitted).
[253] Ibid [179]-[184], [186]-[188].
[254] In these reasons we will consistently use the date formula, to take an irrelevant example, '1 March 2020'. We will eschew use of formulae variously appearing in the contracts, again to take irrelevant examples, as 'March 1, 2020' or '3/1/20'.
[255] Moneys earned in respect of Small Apartments and all of the other contracts to which we refer in succeeding paragraphs in this segment of the judgment, refer to US dollars.
[256] 'Overages' was a word commonly used in the contracts to describe work which the plaintiff might be required to perform beyond the guaranteed period of work.
[257] Which was the plaintiff's oral evidence.
[258] The parties so responded to an enquiry made by the Court after the oral hearing. In responding the plaintiff then set out a schedule of contracts and remuneration which did not include any reference to the particulars.
[259] Also described as The Curse of Hendron.
[262] Remembering that the 'as of' date of the Pitch Perfect 3 contract was 17 September 2015.
[265] The plaintiff gave evidence that she 'sang live for three nights at the Hollywood Bowl'.
[266] It took two years to get into production.
[269] The conversations were with the plaintiff's United States attorney and her Australian solicitor.
[278] The expression roughly translates as 'after this, therefore because of this': this is the fallacy that succession in time implies a causal relationship.
[288] And a restatement at Reasons [294].
[291] Reasons [224] (citations omitted).
[293] The plaintiff said only that it 'was in development, that hasn't gone ahead'.
[296] Reasons [234], [236]-[237]. This was his Honour's summation of the effect of the various phrases used by the plaintiff in her evidence.
[303] $1 million, shown in Camp Sugar Inc's 2015 statement of income and expenses.
[304] $1 million, shown in Camp Sugar Inc's 2016 statement of income and expenses.
[314] As Ms Wilson's counsel said would be the case in his damages address.
[324] As to the impact of these imputations on the plaintiff being offered film roles.
[325] As to the uncertain use made by his Honour of the termination of the plaintiff's contract in Kung Fu Panda 3 and Trolls.
[326] As to the contract for Pitch Perfect 3 effectively lying outside the loss period; and as to delay.
[327] As to the apparent suggestion that it was for the defendant to risk improving the plaintiff's case by cross-examining a witness.
[328] As to failure to consider the potential significance of the plaintiff engaging with two studios in 2016.
[329] This is just a colloquial way of expressing the causation test.
[348] [1980] 2 NSWLR 225 (Hutley, Glass and Mahoney JJA).
[349] While the articles did not name Mr Andrews or International, the jury found that a large number of people involved in the development of the building would easily have known that Mr Andrews and International were those responsible for the building and would have drawn that connection if they read the articles.
[350] That condition was not fulfilled, as was conceded on the appeal; with respect to some of the projects referred to in exhibit 'DD' the documents which would support their construction value were not tendered. However, the judge admitted exhibit 'DD' and the defendants did not, at the close of the plaintiff's case, call for its rejection on the basis that the conditions for its admission had not been fulfilled.
[353] Bosanquet, Coltman, Erskine and Maule JJ.
[354] Ingram v Lawson [1839] EngR 1191; (1840) 6 Bing (NC) 212, 217; [1839] EngR 1191; 133 ER 84, 86.
[357] Andrews [1980] 2 NSWLR 225, 235 [23] (citations omitted) (emphasis added).
[359] Ibid 251-2 [79] (citations omitted).
[360] The proceeding in Ratcliffe v Evans was not for defamation but an action on the case for damage wilfully and intentionally done without just occasion or excuse, analogous to an action for slander of title. The pleading included an allegation of a defamatory statement or libel but the jury found that the words used did not reflect upon the plaintiff's character and were not libellous and the verdict of the jury, in favour of the plaintiff, proceeded upon the view that the writing was a false statement purposely made about the manufactures of the plaintiff.
[361] Lord Esher MR, Bowen and Fry LJJ.
[363] Ratcliffe v Evans [1892] 2 QB 524, 530-1 (citations omitted).
[364] Andrews [1980] 2 NSWLR 225, 259 [112]-[113] (citations omitted) (emphasis added).
[365] Ibid 260 [115] (citations omitted) (emphasis added).
[366] (1998) 193 CLR 519 ('Chakravarti').
[368] Ibid 559 [98], n 118: 'Ratcliffe v Evans [1892] 2 QB 524 at 533, per Bowen LJ. See also Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225 at 259, 260 per Mahoney JA'.
[370] Mr Chakravarti resigned from Beneficial Finance Corporation Ltd, a wholly owned subsidiary of the Bank, in November 1990. In April 1992 he became Chief General Manager of Leal Boss.
[371] On 15 July 1992 the first defamatory article was published. On 17 July 1992 Mr Chakravarti was dismissed from Leal Boss without notice.
[374] Ibid. The award of damages for the plaintiff's economic loss was $175,000.
[375] Chakravarti v Advertiser Newspapers Ltd [1996] SASC 5431; (1996) 65 SASR 527 (Doyle CJ, Perry and Williams JJ).
[376] Ibid 551-2 (Perry J agreed with Doyle CJ that the claim for economic loss was not made out (at 557) as did Williams J (at 561) who said he did not consider that a nexus had been established between the defamatory matter and the termination of the plaintiff's employment).
[378] Chakravarti (1998) 193 CLR 519, 558-9 [98] (citations omitted) (emphasis added). Their Honours cited, as mentioned above, Ratcliffe v Evans [1892] 2 QB 524, 533 (Bowen CJ) and Andrews [1980] 2 NSWLR 225, 259, 260 (Mahoney JA). With respect to the characterisation of Andrews damages as compensation for special damage, this compares with the characterisation given by Hutley and Glass JJA in Andrews and by Kirby J in Chakravarti: see [551] and [554] above and n 381 below, respectively.
[379] Chakravarti (1998) 193 CLR 519, 559-60 [99]-[101] (citations omitted).
[380] Ibid 600 [178]. This was based on an inference that could be drawn because the publication appeared in Adelaide's daily newspaper; the difficulty Mr Chakravarti faced in finding employment; the absence of any other demonstrated cause; and the sudden circumstances of the dismissal.
[381] Ibid 600 [179], n 278. Kirby J considered that the damages for loss of employment and reduced prospects of re-employment were best seen not as special damages but as general damages resulting from the kind of injury Mr Chakravarti sustained.
[382] For example, Ayan v Islamic Co-ordinating Council of Victoria Pty Ltd [2009] VSC 119 [53], [60]-[63]; Todd v Swan Television & Radio Broadcasters Pty Ltd [2001] WASC 334; (2001) 25 WAR 284, 295 [58]; Jools v Mirror Newspapers Ltd (1984) 56 ACTR 1, 8 (upheld on appeal Mirror Newspapers v Jools [1985] FCA 153; (1985) 5 FCR 507, 509-13); Konstantinidis v Foreign Media Pty Ltd [2004] NSWSC 835 [55]; Rowan v Cornwall [No 5] [2002] SASC 160; (2002) 82 SASR 152, 392-3 [680]-[682], 396-7 [697]-[702].
[384] [2003] EWHC 326; [2004] 1 AC 628 ('Abrahams').
[385] The defendants, The Gleaner Co Ltd and Dr Dudley Stokes, were, respectively, the publishers and former editor of the two daily newspapers in Jamaica, the 'Daily Gleaner' and the 'Star'.
[386] Abrahams [2003] EWHC 326; [2004] 1 AC 628, 639 [26].
[387] The jury awarded J$80.7 million. The Court of Appeal reduced the award to J$35 million.
[388] Abrahams [2003] EWHC 326; [2004] 1 AC 628, 647 [56] (emphasis added). As Lord Hoffmann said, on behalf of the Board: '[T]he only question is whether the damages were no more than was necessary adequately to compensate the plaintiff': [2003] EWHC 326; [2004] 1 AC 628, 652 [72].
[389] Andrews [1980] 2 NSWLR 225, 259 [113]. See [556] above.
[395] Furthermore, we have rejected the judge's approach to quantification of the loss of any commercial opportunity.
Bauer Media Pty Ltd
Wilson
(2000) 1 VR 667
(1993) 178 CLR 44
(2014) 43 VR 348
(1991) 172 CLR 211
(1996) 41 NSWLR 176
(2012) 250 CLR 503
(2016) 259 CLR 256
(1966) 117 CLR 118
(2016) 331 ALR 550
(2010) 241 CLR 357
(1999) 160 ALR 588
(1979) 142 CLR 531
(1994) 179 CLR 332
(2011) 190 FCR 299
(2010) 240 CLR 537
(1998) 193 CLR 519
(2014) 44 VR 352
(1951) 82 CLR 497
(2003) 9 VR 1
(2003) 216 CLR 327
(2014) 324 ALR 166
(2015) 91 NSWLR 485
(2005) 228 CLR 357
(2015) 233 FCR 397
(1975) 132 CLR 611
(2003) 214 CLR 118
(1993) 177 CLR 472
(1985) 62 ALR 53
(2016) 257 CLR 440
(1991) 174 CLR 64
(1990) 169 CLR 638
(1996) 65 SASR 527
(2001) 25 WAR 284
(1985) 5 FCR 507
(2002) 82 SASR 152