Bauer Media Pty Ltd v Wilson

Bauer Media Pty Ltd v Wilson - [2018] VSCA 154 - VSCA 2018 case summary — Zoe

[187]

[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.

[345]

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]

[352]

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]

[387]

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.

[563]

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]

[688]

[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.

[778]

[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]

[788]

[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]

[818]

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]

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