Bauer Media Pty Ltd v Wilson [2018] VSCA 68

2 As part of his assessment of damages, the trial judge assessed the plaintiff's general damages (including aggravated damages in relation to the circumstances of publication and in relation to post-publication conduct) in the sum of $650,000.

3 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. Section 35(2) of the Act permitted a court to order a defendant in defamation proceedings to pay damages for non-economic loss that exceed the maximum prescribed under s 35(1):

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.

4 At trial, the plaintiff submitted that s 35 imposed no constraint on a plaintiff's entitlement to damages for non-economic loss if the publisher of the defamatory matter had engaged in conduct warranting an award of aggravated damages.

5 The defendants, however, disputed the plaintiff's construction. They submitted that the language of s 35 showed 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).

6 This morning, six Australian media organisations,[1] ('the Media'), applied for leave to intervene in the defendants' application for leave to appeal to make submissions as to the proper construction of s 35 of the Act. The Media seeks leave to intervene 'including by attending the hearing of the appeal and making oral submissions'. The plaintiff opposed the Media's application. While the defendants appeared on the application this morning, they had previously filed a notice of intention not to oppose the Media's application.

7 The principles upon which a court may grant leave to intervene are not in dispute. The governing principles may be briefly summarised as follows:

(1) A non-party whose interests would be affected directly by a decision in a proceeding is entitled to intervene to protect the interest liable to be affected.[2]

(2) Where the legal interests of a person may be affected by the operation of precedent or by the doctrine of stare decisis, a court may grant leave to intervene if the interest is sufficiently substantial.[3]

(3) Where a person having the necessary legal interest to apply for leave to intervene can show that the parties to the particular proceeding may not present fully the submissions on a particular issue, being submissions which the Court should have to assist it to reach a correct determination, the Court may exercise its jurisdiction by granting leave to intervene.[4]

(4) A grant of leave may be limited, and subject to such conditions as to costs or otherwise as will do justice as between the parties.[5]

(5) A non-party must satisfy the Court that its contribution, as an intervener, will be useful and different from the contribution of the parties, and that the intervention will not unreasonably interfere with the conduct of the proceeding.[6]

8 The Media submitted that its members are frequently defendants in defamation proceedings in which aggravated damages are sought, and that there are many such proceedings. The Media supports the construction of s 35 of the Act contended for by the defendants. It was submitted that this Court's determination of the proper construction of s 35 'is likely to substantially affect the outcome of pending litigation in which members of the media are defendants, including by affecting the quantum of any settlements and/or the sum of damages awarded'.

9 The defendants have filed and served their written case setting out submissions in support of the construction of s 35 contended for by them. The Media, having reviewed these submissions, say they wish to make additional submissions in support of the construction contended for by the defendants. Those submissions would relate to the context of s 35, the general purpose and policy of the provision, the relevant legislative history and the identification of the mischief which the Act was intended to remedy. This morning Mr Collins QC, senior counsel for the Media, developed these submissions. In particular, he argued that the Media sought to make a distinctive submission, namely, that s 35(1) was intended to establish consistency across jurisdictions with respect to awards for non-economic loss in defamation proceedings. He relied on a passage from the Second Reading Speech:

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.[7]

10 The plaintiff opposes the Media being granted leave to intervene. She contends that the Media's legal rights are not affected by the judge's construction of s 35. In support of that submission, the plaintiff points to the limited number of occasions upon which aggravated damages have actually been awarded (as compared to claimed) since the commencement of the Act. She also observes that aggravated damages are only awarded when a defendant's conduct was lacking in bona fides, unjustifiable or improper - and that these are all matters that are entirely within the control of publishers such as the Media. Ms Enbom of counsel, for the plaintiff, submitted that it is always theoretically possible to find an additional argument but the one sought to be identified this morning by Mr Collins QC is not one that the Court needs to entertain to avoid error.

11 Mr Wheelahan QC, senior counsel for the defendants, submitted this morning that although his written case in terms does not raise the point argued this morning by Mr Collins QC, it is nevertheless a consequence of the defendants' submission that s 35(1) creates a 'range' of permissible awards that there will be consistency across jurisdictions.

12 In our view, leave to intervene should be refused. While we accept that the Media has a significant interest in the outcome of this proceeding insofar as it relates to the proper construction of s 35 of the Act, we are not persuaded that there are any submissions, in favour of the defendants' construction of s 35, that will not be advanced by those acting for the defendants in the course of the application for leave to appeal (and appeal if leave is granted). The argument that the Media seeks to advance is one that will undoubtedly be the subject of submissions by the defendants in this Court.

13 In the circumstances, we are not persuaded that the Media's contribution as an intervener would be useful or different from the contribution of the defendants. Accordingly, the application for leave to intervene is dismissed.

NEWS CORP AUSTRALIA

NINE NETWORK AUSTRALIA PTY LTD

SEVEN WEST MEDIA LIMITED

AUSTRALIAN BROADCASTING CORPORATION

FAIRFAX MEDIA LIMITED

MACQUARIE MEDIA LIMITED

[1] News Corp Australia, Nine Network Australia Pty Ltd, Seven West Media Ltd, Australian Broadcasting Corporation, Fairfax Media Ltd and Macquarie Media Ltd.

[2] Levy v Victoria [1997] HCA 31; (1997) 189 CLR 579, 601 (Brennan CJ) ('Levy'); Roadshow Films Pty Ltd v iiNet Ltd [2011] HCA 54; (2011) 248 CLR 37, 38-9 [2] (French CJ, Gummow, Hayne, Crennan and Kiefel JJ) ('Roadshow').

[3] Levy [1997] HCA 31; (1997) 189 CLR 579, 601. See also Roadshow [2011] HCA 54; (2011) 248 CLR 37, 39 [2].

[4] Levy [1997] HCA 31; (1997) 189 CLR 579, 603; Roadshow [2011] HCA 54; (2011) 248 CLR 37, 39 [3].

[5] Levy [1997] HCA 31; (1997) 189 CLR 579, 603; Roadshow [2011] HCA 54; (2011) 248 CLR 37, 39 [3].

[6] See r 64.10(3) of the Supreme Court (General Civil Procedure) Rules 2015.

[7] Hansard, Legislative Assembly, 7 September 2005, 635.