Plaintiff v Defendant

Supreme Court of Victoria|2017-09-13|Before: JOHN DIXON J

DEFAMATION - Defences - Qualified privilege - Extent of questions for jury - Statutory qualified privilege - Issue of reasonableness under s 30(1)(c) left to jury - Common law qualified privilege -Correcting the record in respect of celebrity entertainment news - Whether community of interest - Privilege defeated by jury finding of malice - Defamation Act 2005 (Vic), ss 22, 24, 30.

DEFAMATION - Damages - Trial by jury - Eight publications stating plaintiff was a serial liar and had lied about her name, age and other aspects of her personal life and background - Defences of justification, triviality and qualified privilege not made out -Seriousness of imputations - Mass media and internet distribution - Grapevine effect - Whether aggravated damages warranted by conduct in publication and since publication - Mitigating factors - Defamation Act 2005 (Vic), ss 34, 38, 39.

DEFAMATION - Damages - Special loss claimed - Plaintiff a successful Hollywood actress - Whether plaintiff lost opportunity for further film roles - Causation - Circumstantial case - Grapevine effect and special damages considered - Remoteness - Assessment of existence of the chance - Assessment of the value of the lost opportunity - Andrews damages.

1 The plaintiff, Ms Rebel Wilson, is a well-known Australian-born actress and comedian presently residing in the United States. The defendants, Bauer Media Pty Ltd and Bauer Media Australia Pty Ltd, are variously the publishers 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, Woman's Weekly website, New Weekly website and OK Magazine website ('the websites').

2 On 18, 19 and 20 May 2015 the defendants published one article in the print edition of Woman's Day magazine and seven further articles on the websites 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. Ms Wilson issued this proceeding alleging that she had suffered injury to her feelings, credit and reputation, had been humiliated, embarrassed and suffered loss and damage, including special damages. The defendants denied her claims and defences of justification, triviality, and qualified privilege were variously raised.

3 The proceeding was tried before a jury of six. The jury's verdict, which was taken on 15 June 2017 established that each of the defendants' publications conveyed defamatory imputations in the terms alleged by the plaintiff. The jury did not accept defences that were put to it. The defences of qualified privilege taken to one of the publications require further discussion that will follow on setting out the jury's verdict for the record and to inform my reasons in respect of damages.

4 The trial continued on after the jury's verdict was taken with further evidence limited to the issue of the assessment of damages and submissions from the parties.

5 In these reasons, I have first set out the jury's verdict that identifies the articles, the imputations found, and how the defences were dealt with. I then determined the remaining qualified privilege defences to complete the liability aspects of the court's judgment. Turning to damages, I first explained why I have concluded that the statutory cap under s 35 of the Defamation Act 2005 (Vic) ('Act') was inapplicable and set out my reasons for finding that the circumstances of publication aggravated the plaintiff's damage. Next, I considered whether the plaintiff's claim for economic loss (special) damages is to be assessed on the basis of a lost opportunity or, alternatively, as Andrews[1] damages incorporated into the award of general damages.

6 I concluded that the plaintiff proved that the defendants' publications caused the loss of a chance of new screen roles in the period following the release of

Pitch Perfect 2 until the end of 2016 and I have valued that lost opportunity at AU$3,917,472 and assessed the plaintiff's special damages in that sum.

7 My reasons then return to the evidence and submissions relevant to general damages, which I have assessed, including aggravated damages, at AU$650,000.

8 Woman's Day print article 'Just who is the REAL Rebel' published on 18 May 2015

The jury found that the Woman's Day print article conveyed the following meaning, or a meaning not substantially different:

That Ms Wilson is a serial liar who has invented fantastic stories in order to make it in Hollywood in that she has:

(i) 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;

(ii) lied about her name by using the fake name 'Rebel Wilson' when, in fact, her real name is Melanie Elizabeth Bownds;

(iii) 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;

(iv) 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;

(v) 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;

(vi) lied about her background by stating publicly that she had lived in Zimbabwe for a year when, in fact, she had not done so;

(vii) lied when stating publicly that she had been inside a cage with a leopard when, in fact, she had not;

(viii) lied when stating publicly that she got caught in a shoot-out when, in fact, she had not; and

(ix) lied when stating publicly that she had contracted malaria whilst she was in Africa when, in fact, she had not contracted the illness.

The defendants did not contest the defamatory nature of that meaning. The jury found that defences of substantial truth as to the above meaning and triviality were not established.

9 Woman's Day online article 'Separating fact from fiction: Will the real Rebel Wilson please stand up' published from 18 May 2015 to 14 May 2016

The jury found that the Woman's Day online article conveyed the following meaning, or a meaning not substantially different:

Ms Wilson is a serial liar who has invented fantastic stories in order to make it in Hollywood in that she has:

(i) 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;

(ii) lied about her name by using the fake name 'Rebel Wilson' when, in fact, her real name is Melanie Elizabeth Bownds;

(iii) 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;

(iv) 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;

(v) lied about her background by stating publicly that she had lived in Zimbabwe for a year when, in fact, she had not done so;

(vi) lied when stating publicly that she had been inside a cage with a leopard when, in fact, she had not;

(vii) lied when stating publicly that she got caught in a shoot-out when, in fact, she had not; and

(viii) lied when stating publicly that she had contracted malaria whilst she was in Africa when, in fact, she had not contracted the illness.

The defendants did not contest the defamatory nature of that meaning. The jury found that defences of substantial truth as to the above meaning and triviality were not established.

10 First Women's Weekly online article 'The truth about Rebel Wilson' published from 18 May 2015 to 14 May 2016

First, the jury found that the First Women's Weekly online article conveyed the following meaning, or a meaning not substantially different:

Ms Wilson 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.

The jury found that in that meaning the First Women's Weekly online article was defamatory of the plaintiff and rejected defences of substantial truth and triviality.

Secondly, the jury found that the First Women's Weekly online article conveyed the following meaning, or a meaning not substantially different:

The plaintiff is so untrustworthy that nothing she says about herself can be taken to be true unless it has been independently corroborated.

The defendants did not contest the defamatory nature of that meaning. The jury found that the defence of triviality was not established in regard to that meaning.

The jury also rejected the defence of qualified privilege with respect to this article. Finally, the jury found that Bauer Media was motivated by malice in publishing the article. The jury's answers in that regard were as follows:

(a) Has Bauer Media established that each of the following factual assertions contained in the article written by Caroline Overington and published in the Australian Women's Weekly magazine in February 2015, titled, "Our new Hollywood powerhouse" (Earlier Article) (Tab 17 of Jury Book), was based on statements made by Ms Wilson to Ms Overington during an interview conducted on 30 October 2014:

i. the plaintiff was 29 years old? Answer: NO

ii. the plaintiff's real name was 'Rebel Wilson'? Answer: YES

the plaintiff's siblings were named Liberty, Annarchi and Ryot? Answer: YES
the plaintiff had been named after a girl who sang at her parents' wedding? Answer: YES
the plaintiff was not the only person named 'Rebel' in Australia? Answer: YES

vi. the plaintiff's parents were dog breeders? Answer: YES

the plaintiff attended Tara Anglican private girls school? Answer: YES

viii. the plaintiff was distantly related to Walt Disney? Answer: NO

(b) Has Bauer Media established that the publication of the Woman's Day print article (Tab 1 of Jury Book) and/or the Mamamia article dated 18 May 2015 authored by Alex Greig (Tab 3 of Jury Book) called into question the accuracy or veracity of the Earlier Article?

(c) Has Bauer Media established that the subject of the First Women's Weekly article was a review of the contents of the Earlier Article and a clarification or confirmation as to whether or not those contents were accurate (Subject)?

(d) Has Bauer Media established that the readers of the First Women's Weekly article had an interest in having information on the Subject?

(e) If 'no' to (d), has Bauer Media established that at the time that it published the First Women's Weekly Article, it believed, on reasonable grounds, that the recipients of the First Women's Weekly Article had an interest in having information on the Subject?

(f) Has Bauer Media established that it published the First Women's Weekly article in the course of giving the readers of the First Women's Weekly article information on the Subject?

(g) Has Bauer Media established that its conduct in publishing the First Women's Weekly article was reasonable in the circumstances?

Has Ms Wilson established that Bauer Media was motivated by malice in publishing the First Women's Weekly article? Answer: YES

11 Second Women's Weekly online article 'Rebel Wilson's real name and age revealed' published from 18 May 2015 to 14 May 2016

First, the jury found that the Second Women's Weekly online article conveyed the following meaning, or a meaning not substantially different:

Ms Wilson 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.

The jury found that in that meaning the Second Women's Weekly article was defamatory of the plaintiff and rejected defences of substantial truth and triviality.

Secondly, the jury found that the Second Women's Weekly online article conveyed the following meaning, or a meaning not substantially different:

Ms Wilson 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.

The jury found that in that meaning the Second Women's Weekly article was defamatory of the plaintiff and rejected defences of substantial truth and triviality.

12 First New Weekly online article 'Rebel Wilson cries "Tall Poppy Syndrome" over age lie claims' published from 19 May 2015 to 14 May 2016

The jury found that the First New Weekly online article conveyed the following meaning, or a meaning not substantially different:

Ms Wilson, 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.

The defendants did not contest the defamatory nature of that meaning. The jury found that defences of substantial truth as to the above meaning and triviality were not established.

Having found the above meaning to have been conveyed, the jury found that the alternate meaning alleged by the defendants ('That having been caught lying about her name, age and childhood, Ms Wilson accused the magazine that revealed the truth about her of suffering from tall poppy syndrome') was not applicable.

13 Second New Weekly online article 'Official records reveal Rebel Wilson's real age' published from 20 May 2015 to 14 May 2016

The jury found that the Second New Weekly online article conveyed the following meaning, or a meaning not substantially different:

Ms Wilson has 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.

The jury found that in that meaning the Second New Weekly online article was defamatory of the plaintiff and rejected defences of substantial truth and triviality.

14 First OK Magazine online article 'Rebel Wilson a fake?' published from 19 May 2015 to 14 May 2016

The jury found that the First OK Magazine online article conveyed the following meaning, or a meaning not substantially different:

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:

(i) lied publicly about her age by stating that she is 29 years old when, in fact, she is 36 years old;

(ii) lied about her name by using the fake name 'Rebel Wilson' when, in fact, her real name is Melanie Elizabeth Bownds;

(iii) 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;

(iv) lied about her background by stating publicly that her parents are professional dog exhibitors when, in fact, they are not;

(v) 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.

The defendants did not contest the defamatory nature of that meaning. The jury found that defences of substantial truth as to the above meaning and triviality were not established.

15 Second OK Magazine online article 'Rebel really is 35' published from 20 May 2015 to 14 May 2016

The jury found that the Second OK Magazine online article conveyed the following meaning, or a meaning not substantially different:

Ms Wilson has lied about her age in order to maximise her chances of being offered acting roles in Hollywood.

The jury found that in that meaning the Second OK Magazine online article was defamatory of the plaintiff and rejected defences of substantial truth and triviality.

16 The defendants pleaded qualified privilege at both common law and under s 30 of the Act to the publication of the First Woman's Weekly online article. The parties initially requested that, by agreement, I put the defence to the jury for its determination. This request raised a number of issues as I will presently explain. Following discussion and at the request of the parties, I put only the defence in its statutory formulation to the jury. Following the verdict, the defendants sought my ruling on the common law defence. The other issue that remains for my determination is damages.[2] Ms Wilson claimed both general damages (including aggravated damages) and special damages for economic loss. I will deal firstly with the remaining ground of defence.

17 There are differences in the formulation of the defence dependent on whether its source is common law or statutory and s 24 of the Act preserves for defendants the benefit of common law defences. Those differences can present challenges in formulating jury directions that are comprehensible, without being unnecessarily complex.

18 The statutory defence is established if the defendant proves that:[3]

(a) the recipient has an interest or apparent interest in having information on some subject; and

(b) the matter is published to the recipient in the course of giving to the recipient information on that subject; and

The section further elucidates the concept of an apparent interest and the factors that may be taken into account in assessing reasonableness.[4] In the present case each of those elements was in contest.

19 The High Court explained the essence of qualified privilege at common law in Papaconstuntinos v Holmes a Court:[5]

The defence of qualified privilege at common law has been held to require that both the maker and the recipient of a defamatory statement have an interest in what is conveyed. This is often referred to as a reciprocity of interest, although "community of interest" has been considered a more accurate term because it does not suggest as necessary a perfect correspondence of interest. The interest spoken of may also be founded in a duty to speak and to listen to what is conveyed.

20 The publisher of a statement must establish that he or she had a duty or interest to make the statement and the audience had a reciprocal duty or interest to receive it.[6] The connection between the imputation and the privileged occasion must be significant.[7] For the privilege to attach to the occasion of publication, as a matter of public policy it must be in the general interest of the whole community that the type of material in question be published in the type of circumstances in question, notwithstanding that it is defamatory of a third party.[8] That a statement is volunteered does not prevent the occasion of publication from being privileged but, ordinarily, a statement is privileged only where there is a pressing need to protect the interest of the defendant or a third party, or where the defendant has a duty to make a statement.[9] The defence of qualified privilege does not give officious and interfering persons a wide licence to defame.[10] The assessment of the public interest is made by reference to the type of communication that constitutes the publication rather than its content.[11]

21 That central concept of reciprocity of duty and interest is stated in the cases at a high level of abstraction,[12] and appellate courts have stressed that it must be applied by close scrutiny of the facts of the case, the situation of the parties and the relationships and circumstances leading up to and surrounding the publication.[13]

22 Bauer Media faced a primary difficulty with its common law defence in that its publication was to the general public over the internet. As Campbell JA observed in Bennette v Cohen,[14] the requirement of the public interest is that the duty or interest of both maker and recipient is such that it is in the public interest that a person should be free to make that type of statement in the type of circumstances where the particular statement in question was made.

23 In Harbour Radio Pty Ltd v Trad,[15] the issue was the nature of the reciprocity of interest where there has been a public reply to public criticism. Citing Lange v Australian Broadcasting Corporation,[16] the plurality (Gummow, Hayne and Bell JJ), observed that it is only in exceptional cases that the common law has recognised an interest or duty to publish defamatory matter to the general public. Returning to Lange, the reasons for limiting the privilege to exceptional circumstances was explained by that court:[17]

[A]part from a few exceptional cases, the common law categories of qualified privilege protect only occasions where defamatory matter is published to a limited number of recipients. If a publication is made to a large audience, a claim of qualified privilege at common law is rejected unless, exceptionally, the members of the audience all have an interest in knowing the truth.

24 These considerations are not peculiar to the common law formulation of the defence as is clear from s 30(3) of the Act. Prima facie, there were good reasons not to put the qualified privilege defence in both formulations to the jury.

25 Further, when defamation proceedings are tried before a jury, s 22 of the Act requires that the jury is to determine whether the defendant has published defamatory matter about the plaintiff and, if so, whether any defence raised by the defendant has been established. At common law, a qualified privilege defence was determined by the judge, often on the basis of a special verdict taken by the jury to resolve factual disputes. The impact of the statute on this procedure has not been fully worked through.

26 In extending the common law of qualified privilege to protect publication to mass audiences concerning governmental and political matters, the High Court in Lange imposed as a condition of the extended privilege that the publisher's conduct be reasonable in the circumstances. In Herald & Weekly Times Ltd v Popovic,[18] Gillard AJA (Winneke ACJ agreeing) stated, in the context of a Lange defence, that 'reasonableness' was a question for the judge. His Honour did so on the basis that, at common law, it has always been for the judge to determine whether an occasion of publication is privileged, while the jury is called upon to determine any disputed facts relevant to that question. I note that the primary judge, accepting without argument that the issue of reasonableness was a question of fact for the jury, left the question to the jury, who answered it in the affirmative. On the motions for judgment, the primary judge concluded that it was not open to the jury to so conclude and the defence did not apply. There was no ground of appeal raised in respect of that procedure leading to a threshold question which was resolved by the court determining the appeal on the basis of what occurred at trial.

27 However, Gillard AJA stated, relevantly:[19]

In my opinion, the cases in New South Wales concerning the question of the reasonableness of publication provide a guide to matters which are relevant to the question but one should be careful not to raise these relevant matters to principles of law. The defendant must prove that the publication was reasonable in the circumstances. That is the element of proof. That, in my view, is a question for the trial judge.

If there are any disputed facts which bear upon that question, then those disputed facts are to be resolved by the jury if the trial is by jury.

In my opinion, "a disputed fact" is not whether the publication was reasonable in the circumstances. That is a matter for the judge. By disputed facts I mean any facts which are relevant to that issue and which have been the subject of dispute between the parties. In a trial by jury, the resolution of those facts should be the subject of specific questions to the jury.

It follows that in my opinion the course adopted at trial was contrary to law. The question of the reasonableness of the publication was a question that the trial judge had to determine, together with the question whether the communication did concern political or government matters.

28 In Belbin v Lower Murray Urban and Rural Water Corporation,[20] Kaye J cited, inter alia, those observations in a trial that followed the enactment of the national uniform legislation where the defendant pleaded qualified privilege both at common law and under s 30 of the Act. Although the Act provided by s 22(2) that the jury is to determine whether any defence raised by the defendant have been established, his Honour concluded that the long established common law practice continued to apply in respect of the qualified privilege defence under s 30 because of s 22(5)(b) that states that nothing in s 22 requires or permits a jury to determine any issue that, at general law, is an issue to be determined by the judicial officer.

It has been long established that, at common law, it is for the judge, and not the jury, to decide whether the matter complained of was published on an occasion of qualified privilege. In such a case, the jury, and not the judge, determines any disputed questions of fact, but the decision, as to whether the matter was published on a privileged occasion, is a question for the judge as a matter of law. Section 22(2) of the Act provides that the jury is to determine whether any defence raised by the defendant has been established. However s 22(5)(b) provides that nothing in s 22 requires or permits a jury to determine any issue that, at general law, is an issue to be determined by the judicial officer. Thus, it was accepted that is for me as the trial judge, and not the jury, to determine whether the defendant has established its defence of qualified privilege, both at common law and pursuant to s 30 of the Act, subject, of course, to the jury to determining any disputed issues of fact in relation to those defences.

30 In New South Wales, McClellan CJ at CL reached the same conclusion in Davis v Nationwide News.[22] However, in Daniels v New South Wales (No 6),[23] McCallum J doubted that the authorities cited in Davis permitted the conclusion for which that case stands. Daniels included a s 30 defence to a publication of a report by the plaintiff's principal as to his teaching required by the Department of Education. Neither of these cases discussed the Victorian cases that I have noted. Her Honour's conclusion was that, in the case before her had it not resolved, the question whether the conduct of a publisher in publishing allegedly defamatory matter was reasonable in the circumstances was a question of fact not entailing a normative judgment of a kind more appropriately determined by the judge. It was not a question which, at general law, is required to be determined by the judge. McCallum J concluded about the nature of the question:[24]

Shorn of statutory intrusion, the general law appears to hold that, in addition to questions of law, some questions that involve "important considerations of public and social policy traditionally refined and determined by the judge" (if they are not also questions of law) should be decided by the judge. But I do not think the element of reasonableness in s 30(1)(c) of the 2005 Act necessarily bears that characterisation. As recorded in the judgment of Evatt J in Bedford (citing Greer LJ in Watt v Longsdon), some questions of degree are left to the determination of a jury, such as the question in negligence cases of what the reasonably careful man would do.

31 There is a tension between Gillard AJA's conclusion that the question of reasonableness of publication was, at common law a question for the judge and the conclusion reached by McCallum J in Daniels concerning the requirement of s 30(1)(c) of the Act_._[25]

32 The parties agreed a set of jury questions that identified the particular specific questions of fact on which the ultimate question of whether the occasion of publication was privileged would rest. Those questions included a question whether Bauer Media established that its conduct in publishing the First Women's Weekly online article was reasonable in the circumstances. In my view, the present case was one where the element of reasonableness in s 30(1)(c) of the Act did not bear characterisation as a question for the judge as was the case in Popovic and seemed in this case to be a quintessential jury question. I saw no risk that a jury verdict might be compromised if the question was left and both sides invited me to do so.

33 Given the myriad of circumstances in which a s 30 defence can be taken, I am inclined to agree with McCallum J that the characterisation of the element of reasonableness in s 30 broadly for the purposes of s 22(2) of the Act will depend on the circumstances. I do not suggest and should not be taken to be saying by what was done in this case that it will always be the case that such a question can properly be left to the jury. A judge will need to evaluate the pleadings and the conduct of the trial, and the issues of fact and law that are involved, on a case by case basis. As Popovic demonstrates, in many cases whether an occasion of qualified privilege existed should be determined by the judge.

34 It follows from the jury's findings that the s 30 defence was rejected by them, but in any event the jury's finding of malice (see paragraph [10]) was fatal to the qualified privilege defence in relation to the First Women's Weekly online article whether at[26]ommon law,26 or pursuant to s 30[27]f the Act.27

35 To the extent that there are aspects of those defences that ought to be considered by me, I make the following observations. The jury's responses to questions 3.6(c), 3.6(d) and 3.6(f), in the context of the statutory defence are relevant in demonstrating that the requisite factual basis for a correspondence of duty and interest required for the common law defence was not established. First, I agree with the jury's conclusion on each of the questions. Secondly, in case it later be thought that the statutory defence should have been determined by me rather than the jury, taking into account the jury's response to the earlier parts of question 3.6 and for the reasons that follow concerning the common law defence, I conclude that Bauer Media's conduct was not reasonable in the circumstances, the jury's response to Q. 3.6(g) was correct, and Bauer Media did not establish the defence under s 30 of the Act.

36 In Lower Murray Urban and Rural Water Corporation v Di Masi,[28] the Court of Appeal concluded that the subjective intent or purpose of the publisher is relevant to the consideration of reasonableness under s 30. The Court of Appeal approved the primary judge's observation that:[29]

although knowledge by a defendant, that allegations contained in matter published by it are untrue, is, almost invariably, conclusive evidence of malice, it is not the equivalent of malice. Rather, to prove malice, a plaintiff must satisfy a jury that the dominant motive of the defendant was an improper motive, which was ulterior to any duty or interest of the defendant in publishing it. Thus, if the concept of reasonableness, for the purposes of s 30(1)(c), includes a consideration of subjective matters, such as the state of knowledge and understanding of a publisher of the information contained in the matter published, there would be no inconsistency between s 30(1)(c) - which requires the defendant to prove that its conduct in publishing the material was reasonable - and s 30(4), which places the onus of proof of malice on the plaintiff.

37 The plaintiff's case, evident from the outset in its pleaded claim for aggravated damages, was that Bauer Media published the Woman's Day print article and uploaded the other articles to the websites over three consecutive days at the time of the world-wide release of the film Pitch Perfect 2, in which the plaintiff had a lead role. Having been released several weeks earlier in Australia when it outperformed Mad Max Fury Road at the box office, it was obvious to any observer of the entertainment industry including Bauer Media editorial staff that the plaintiff's media profile would significantly amplify public interest in Bauer Media's articles. The plaintiff's case to the jury was that Bauer Media's purpose or intention was to profit commercially by attracting public and media attention to its publications within Australia and internationally by the timing of its articles and by their sensational nature, and the articles in fact attracted such attention. Alternatively, the plaintiff contended the defendants well knew at the time of publication that the natural and probable consequence of the publication of the articles would be to attract such attention, which would be beneficial for its commercial interests.

38 For reasons that later appear, I have concluded, consistently with the jury's finding and the way the case was put to it, that Bauer Media's subjective intent or purpose in publishing the articles was unreasonable. Bauer Media ran a campaign against the plaintiff that was calculated by it to generate commercial benefit for it. It knew that the imputations were false and understood the probability of rapid and massive spread over the internet and it kept the story going after Ms Wilson's tweet response. These inferences were properly open and not refuted by Bauer Media. The history of the gestation of the Woman's Day print article, discussed elsewhere, provided a reasonable basis for the inferences contended for by the plaintiff, as did the circumstances of publication of the Women's Weekly online article.

39 At trial, Ms Nementzik and Ms Overington, from junior positions in the defendants' hierarchy, attempted to refute the pleaded propositions about Bauer Media's motive and intentions in publishing the articles. Each suggested that each magazine or website was operated independently of the other and in apparent competition, but neither witnesses could, or did, assert authority to speak on behalf of Bauer Media to refute the inferences properly raised by the plaintiff as open on the evidence as to its purpose or intention. No more senior Bauer Media executive in a position of control of any individual publication gave evidence. There was no evidence of any impediment to such persons giving evidence. Bauer Media's general counsel, Mr Goss, was present in court throughout the trial.

40 The unexplained absence of Bauer Media executives who exercised actual control over publication of individual articles and more senior executives with overall management of the Bauer Media stable of publications permitted the jury, as it does me, to more comfortably infer from the evidence tendered by the plaintiff that the temporal relationship between publication of the articles, on the one hand, and the success of Pitch Perfect 2 and the attendant interest of readers in the plaintiff was not coincidental. The intended purpose was to improve the financial return to Bauer Media by way of a campaign against Ms Wilson.

41 Of particular relevance to the qualified privilege defence was the indecent haste with which Bauer Media implemented what Ms Overington saw as the duty to correct the record and the interest of readers of the website in seeing the record constituted by the print magazine corrected. This circumstance also lent weight to the inference that Bauer Media's purpose and intention was unreasonable. The February 2015 Women's Weekly print article has been in circulation for months, probably long forgotten in the whirlwind of the celebrity media cycle. The immediacy, content, and tone of Ms Overington's 'correction' on the Women's Weekly online website rather than in the next print edition of the Women's Weekly comfortably supported the motivation inference sought by the plaintiff. I was not persuaded to accept Ms Overington's stated purpose for writing the article as Bauer Media's intention in publishing it, and it cannot be reasoned that the jury did either.

42 Turning now to the common law defence, it was common ground that the Woman's Day print article and/or the Mamamia article dated 18 May 2015 authored by Alex Greig called into question the accuracy or veracity of Ms Overington's article published in the February 2015 print edition of the Women's Weekly. Relevantly, the subject matter was whether statements in the February 2015 Women's Weekly print article were accurate or true and whether clarification or confirmation on that subject was required in the light of the content of the Woman's Day print article and/or the Mamamia article.

43 The evidence did not prove that the readers of the Women's Weekly online article had any interest in having information on that subject matter. The statutory defence depended on Bauer Media establishing that, at the time of the publication, it believed on reasonable grounds that the readers of the Women's Weekly online article had an interest in having information on the subject of a review of the contents of Ms Overington's February 2015 Women's Weekly print article and clarification or confirmation of whether the contents of that earlier article were accurate. That belief would also inform the issue of community of interest in information on the subject matter for the purposes of the common law defence.

44 Neither of the Bauer Media witnesses was able to establish what was its belief about the reason for publication of the article. Ms Nementzik had no involvement with the Women's Weekly online website. Ms Overington was the author of the relevant article, but she did not make publication decisions. Ms Overington was posted to the USA by Bauer Media for reasons that included promoting the profile of that website, presumably for Australian readers. She said her job included convincing celebrities to appear in the magazine. Ms Overington made it clear that while it was she who decided to write the article, it was not her decision to publish the article:

The title that they gave me was associate editor, which makes people think that you actually have some control or power over things, but you don't. I was just writing articles.

45 The absence of Bauer Media's online editor at the time for the Women's Weekly, Kerry Warren, who apparently had that power or control, was unexplained.

46 Once Ms Overington's explanation was rejected, as it must be, there were two consequences that, independently of the finding of malice, were fatal to the qualified privilege defence. First, the motive or intention of Bauer Media in publishing Ms Overington's article was not explained. Bauer Media did not establish its reasonable belief that readers of the online website had an interest in receiving information that corrected errors, and so corrected, the record constituted by the February 2015 Women's Weekly print article (assuming that publication is a record in a relevant sense for the purposes of this argument). There was no evidence of the state of mind of the persons in control of, or directing, the publication of the article that identified Bauer Media's state of mind. Bauer Media needed to prove the state of mind of its relevant actors most closely connected with the decision to publish each article.

47 Bauer Media presented its case in such a way that regard can only be had to inferences available from documentary evidence and from the unexplained absence of witnesses who might reasonably be expected to have assisted its case. I have analysed the former elsewhere in these reasons. As Bauer Media carried the burden of proof, the jury could infer that its editors and senior executives would not have assisted in rebutting the inference of motive or intention raised by the plaintiff.[30]

48 It was probable that Bauer Media had an improper motive to profit from the publications by exploiting the plaintiff's reputation. Unanswered, the probable inference that Bauer Media's dominant motive in publication was improper was not only open, it was accepted by the jury, and rightly so. For that reason, the occasion of publication cannot be privileged.

49 Secondly, I was persuaded that Ms Overington's personal motivation was to protect her own reputation. She regarded her professional reputation as substantial or significant. Ms Overington stated that stories began to appear which suggested that the plaintiff had not been honest about some aspects of her background when she interviewed her for the February 2015 Women's Weekly article. She identified an article on Mammamia.com and some of the other Bauer Media articles sued on in this proceeding. Her response is relevant to a number of issues. She said:

I was a bit shocked because obviously other things that were being said at around that time - this issue was getting a bit of traction in the US, so there were a number of tweets about whether Rebel had been dishonest or maybe exaggerated some other aspects of her life while she was getting ahead in Hollywood, and I felt a sense of discomfort and dismay, thinking if I have got all of this wrong in that article that we looked at before, I am going to have to correct it, and that is a difficult thing for a journalist to do ... My instinct was to - I guess to contact the editor in chief of the magazine as quickly as I could and to acknowledge my error, that mistakes had appeared in our magazine that I then wanted to correct.

There was no evidence that Ms Overington had any contact with the editor in chief of the magazine or of any publication in subsequent editions of that magazine. Rather she contacted Ms Warren:

I contacted the online editor of the magazine and said, "I feel that we may, in this earlier issue, have been led astray. Some of these things are not true and we needed to correct that" and she said "Well quickly write a piece" and I said "Yes".

50 Bauer Media made a forensic decision to rely, as its intention in publishing the article, on Ms Overington's expressed motivation in writing it, which motivation I reject. She considered, necessarily making an assumption, that what she had read on Mammamia.com and in other Bauer Media publications was correct. Before she undertook any research, which she described as occurring once she was given the instruction to prepare an article, she accepted that she had been 'led astray' by the plaintiff and needed to acknowledge her error because she felt 'a sense of discomfort and dismay'. I am satisfied, by reference to the whole of her evidence, that Ms Overington's need to correct the record arose because the uncorrected record reflected poorly on her standing as a journalist. She was not primarily motivated to oblige any public interest in being fully and correctly informed about aspects of a celebrity's life. I did not understand her to articulate any motive in those terms. Although she said that if one's readers were misled, it was incumbent on the journalist to correct the record, the premise was assumed while the source of the obligation was not identified.

51 These is no public interest of the kind relied on. Were I to accept that Ms Overington wrote the article with the honest intention of protecting Women's Weekly readers from being misled by 'her mistakes', I would not accept the proposition that must follow. The law does not recognise a social or moral duty in a publisher to protect the interest of readers in not being misled in their curiosity about celebrities when it was threatened by journalistic error. The interest of readers of the Women's Weekly website in receiving correcting information about the relatively inconsequential circumstances of a celebrity published in a different medium is not of a nature that engenders a social or moral duty.[31]

52 I cannot identify why, in the present circumstances, as a matter of public policy it must be in the general interest of the whole community that the Women's Weekly online article was published, notwithstanding that it was defamatory of the plaintiff. It cannot be said that all members of the group constituted by the readers of the Women's Weekly online article have an interest in knowing the truth, or in seeing the record corrected. There is no comparison between that subject matter and, for example, serious investigative journalism that might attract Lange privilege. I know of no basis, and none was suggested, for the proposition that such a duty can arise from an assumed interest of readers in the veracity or accuracy of celebrity or gossip journalism as was suggested in this case. Such publications are not records. At their best, they are ephemeral entertainment or titillation.

53 As the learned editors of Gatley on Libel and Slander state:[32]

What must be emphasised is that it is not enough that the communication was made with the honest purpose of protecting the interests of the recipient: the interest must be such that in the eyes of the law it creates a moral duty in the defendant to protect it. The cause of the privileged occasion is not merely the interest of the recipient; it is that interest plus the corresponding moral or social duty which arises in the circumstances of the case by reason of the nature of the interest.

54 In Marshall v Megna, Allsop P observed: [33]

The word "interest" is used in the broad popular sense, referring not to a matter of gossip or curiosity, but to a matter of substance beyond mere news value. The interest is to be definite, not vague or insubstantial, though it may be direct or indirect. It must be "of so tangible a nature that for the common convenience and welfare of society it is expedient to protect it": Howe v Lees [1910] HCA 67; 11 CLR 361 at 377 and 398; Andreyevich at 363-364.

55 In general terms, a relevant interest could be where the provision of the information would assist the recipient to make an important decision or to decide upon a particular course of action.[34]

56 The defendants contended that they were honestly motivated to publish because, adopting Ms Overington's expressed motive, they wished to protect the interests of their readers by correcting the record. I do not accept that proposition either. Considering the evidence of Ms Overington in its totality, including her demeanour and presentation, I am satisfied Ms Overington's dominant motive in writing the article was to reinforce her own reputation as a serious award-winning investigative journalist. Ms Overington honestly held that intention but I am unable to accept that her purpose was that of Bauer Media. Even if it was, that purpose cannot of itself create a privileged occasion that permitted the defendant to inflict damage on the plaintiff's reputation. Assuming, which I do not, it to be the dominant motive of Bauer Media in publishing to protect and reinforce Ms Overington's reputation as a journalist, it cannot be said that it was seeking to protect a legitimate interest in publishing as it did.

57 In so concluding I bear in mind that the High Court said in Papaconstuntinos v Holmes a Court:[35]

The modern emphasis in the formulation of the defence of qualified privilege is upon duties and interests rather than the state of mind of the defendant, the latter of which would include the defendant's motive. If the defendant has a legitimate interest which the defendant seeks to protect in making the defamatory statement, the occasion for the privilege arises. There is no case which holds that self-interest operates as a disqualification or requires something more, such as some compelling need or urgency, to justify a statement.

59 Some damage to the plaintiff's reputation is presumed by law. The defendants did not dispute that the plaintiff also suffered some hurt to her feelings. The plaintiff gave further evidence of the damage to her reputation and the injury to her feelings that I will come to. It is convenient to commence by stating some well-established principles relevant to the assessment of general damages that were not in contest. In doing so, I will defer until later in these reasons a discussion of the principles in respect of the plaintiff's claim to special damages.

(a) The purposes of an award of damages are to provide consolation for hurt to feelings, compensation for damage to reputation, and vindication of the plaintiff's reputation.[36] The assessment of general damages is necessarily imprecise and, accordingly, damages are 'at large' in the sense that they cannot be arrived at through calculation or the application of a formula.[37]

(b) The sum awarded must demonstrate vindication of the plaintiff's reputation. The level of damages ought to reflect 'the high value which the law places upon reputation and, in particular, upon the reputation of those whose work and life depends upon their honesty, integrity and judgment'.[38]

(c) The gravity of the libel and the social standing of the parties are relevant to assessing the quantum of damages necessary to vindicate the plaintiff.[39] The award must be sufficient to convince a bystander of the baselessness of the charge.[40] At common law, it was legitimate to take into account not only what the plaintiff should receive but also what the defendant ought to pay.

(d) Section 34 of the Act requires that the court in determining the amount of damages to be awarded in any defamation proceedings is to ensure that there is an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded.

(e) The extent of publication and the seriousness of the defamatory sting are pertinent considerations.

(f) 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.[41] This phenomenon 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.[42] It is precisely because the 'real' damage cannot be ascertained and established that damages are at large. It is often impossible to track the scandal and to know what quarters the poison may reach.[43] 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'.[44]

(g) It is well accepted that injury to feelings may constitute a significant part of the harm sustained by a plaintiff, and for which a plaintiff is to be compensated by damages.[45] Injured feelings include the hurt, anxiety, loss of self-esteem, sense of indignity and the sense of outrage felt by the plaintiff.[46]

(h) 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.[47] 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.[48] 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.[49] A damages award is not usually broken down into components for pure compensatory damages and aggravated compensatory damages.[50]

(i) At common law, in awarding aggravated damages, the court compensated the plaintiff for the loss actually suffered as a result of the defamation. In doing so, the court could adopt the highest level of damages open as compensatory damages.[51] The parties disagreed about whether this approach was now precluded by s 35 of the Act.

60 Despite the common law drawing a distinction between general and special damages, the uniform national legislation drew a line between non-economic loss and economic loss in s 35 of the Act. There is not now, if there ever was, a bright line between these different characterisations of damage. As Hutley JA explained in Andrews:[52]

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. 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 and, in the course of the trial, it may fall to the judge to see that this distinction between what is permissible as proof for one purpose and what for another is kept before the jury.

61 The plaintiff submitted that Andrews damages are an alternative basis for compensation for economic loss to a claim for special damages and that general damages assessed on this basis are properly characterised as economic loss. The plaintiff submitted that evidence of lost earnings will be properly characterised as evidence of economic loss, not non-economic loss and accordingly Andrews damages fall outside the definition of the maximum damages amount for the purposes of s 35(1) of the Act, even in cases where the cap otherwise applies.

62 The defendants contested this submission, contending that although Andrews damages may be established by proof of a general loss of custom or goodwill which cannot be precisely quantified, such damages are awarded for injury to reputation. Damages awarded for injury to a commercial reputation are damages for non-economic loss and, accordingly, do not avoid the operation of the cap.[53] However, the defendants primary submission, considered later, is that the plaintiff is not entitled to Andrews damages because she has not proved that the defendant's articles have caused her any general loss of business, custom or goodwill in her profession as an actress. I will return to this question in due course.

63 The second area of dispute about principle concerned the statutory cap on damages for non-economic loss. Section 35 of the Act provides:

(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 ...

64 The maximum damages amount (the cap) was $381,000 at the time of trial.[54] The cap is now $389,500, having increased from 1 July 2017,[55] and this is the presently applicable cap.

65 The plaintiff submitted that the cap has no role to play when, as in this case, an award of aggravated damages is warranted by the circumstances of the publication. In this circumstance, the text of the statute required that the permissible quantum of general damages for consolation for hurt to feelings, compensation for damage to reputation, and vindication of the plaintiff's reputation,[56] as aggravated, is at large and not capped in any respect.

66 The defendants submitted that the statutory cap restricts the assessment of the plaintiff's claim for ordinary compensatory damages for non-economic loss, irrespective of whether the court also makes an award of aggravated damages, but should the court be minded to make an award of aggravated damages, the cap may not restrict the assessment of the aggravated component of the award. In other words, the cap will continue to operate as a partial constraint. The defendants contended that s 35(2) grants the court a discretion to award damages for non-economic loss 'that exceed' the statutory cap in a single prescribed circumstance. That circumstance is where the court is satisfied that the circumstances of publication of the defamatory matter are such as to warrant an award of aggravated damages.

67 The issue for the court is the proper construction of the language of the Act.

68 The parties agreed that the task of statutory construction begins and ends with a consideration of the text itself, understood according to its plain or natural meaning, unless some ambiguity exists, read in light of its context and purpose.[57] Section 35 of the Interpretation of Legislation Act 1984 (Vic) provides that, in the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act is to be preferred to a construction that would not promote that purpose or object.[58]

69 The parties also agreed that a general damages award is not usually broken down into components for pure compensatory damages and aggravated compensatory damages.[59] There should be one global sum.

70 The plaintiff developed her submission as follows:

(a) One of the objects of the Act is to provide effective and fair remedies for persons whose reputations are harmed by the publication of defamatory matter.[60]

(b) The proper construction of s 35 of the Act is that damages for non-economic loss are only capped in cases that do not warrant an award of aggravated damages; that is, in cases where the defendant has not acted in a manner which demonstrates a lack of bona fides or conduct that is otherwise improper or unjustifiable.

(c) Section 35(2) imposes no constraint upon a plaintiff's entitlement to damages in circumstances where a publisher has engaged in conduct warranting an award of aggravated damages.

(d) The alternative contention - that the court may award general damages for non-economic loss up to the cap, and may only exceed the cap by an amount that represents the extent of any entitlement to aggravated damages - is not reflected in the text of s 35. Section 35(2) provides that the maximum damages amount may be exceeded 'if, and only if' such an award is warranted. It does not provide that the maximum damages amount may be exceeded 'if, but only to the extent that' such an award is warranted.

(e) Further, it is inconsistent with the established principle that an award of general damages is not to be broken down into components for pure compensatory damages and aggravated compensatory damages.

(f) In cases where it applies, the cap acts as a 'cut-off' amount and does not require the court to engage in a scaling exercise. The cap is not intended to be reserved for the most serious defamation imaginable. If damages are assessed at an amount that is above the cap, then the cap simply provides a cut-off.

(a) The construction for which the plaintiff contended was a strained construction of the language of the legislation for which there is no precedent and which would potentially lead to oppressive results that would frustrate the objectives of both the cap and the legislation more broadly.

(b) The language of the section 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 cap. Aggravated damages are a form of compensatory damages for non-economic loss. The section gives the court a discretion to award damages for such non-economic loss that exceeds the cap where it proposes to award aggravated damages as part of its award for non-economic loss. There is an obvious nexus in the statutory text between the entitlement to aggravated damages and the discretion to then award damages in excess of the cap.

(c) The introduction of the statutory cap was one of the key pillars of the national uniform defamation legislation. Doing away with the cap in its entirety on ordinary compensatory damages whenever a court decides to also award aggravated compensatory damages would effectively frustrate the reforms effected by the Act, since aggravated damages are commonly awarded in defamation and the construction of s 35(2) contended for by the plaintiff would significantly undermine the utility of the cap. Had that been the intention of the section, the legislature could have so stated in clear and unambiguous terms.

(d) The plaintiff's reliance on the object of the Act to provide effective and fair remedies for persons whose reputations are harmed by the publication of defamatory matter is misplaced. Other objectives of the Act include ensuring that the law of defamation does not place unreasonable limits on freedom of expression[61] and that damages awards bear an appropriate and rational relationship to the harm sustained by a plaintiff.[62]

(e) As part of national, uniform defamation laws, the Act is intended to redress a perceived imbalance between defamation damages awards and awards in personal injury cases. This legislative intention is evident from other sections of the Act. Section 35(1) also provides that the cap applies to all damages awarded in a single proceeding - rather than separately in relation to each publication or cause of action in a proceeding. Section 34 provides that, in assessing damages, the Court must ensure that its award bears an appropriate and rational relationship to the harm sustained by the plaintiff. Section 37 abolished exemplary damages in defamation cases. Section 38 provides for a range of factors to which the Court may have regard in mitigation of damages. Section 23 reinforces the statutory cap by providing that a plaintiff cannot, without leave, issue separate defamation proceedings against the same defendant in relation to the same or any other publication of the same or like matter.

(f) The framework of the Act in this respect would be too easily frustrated were the statutory cap on ordinary compensatory damages to be swept aside in every case in which an award of aggravated damages might be available, no matter how large or small the degree of aggravation involved.

(g) Any ambiguity in the meaning of s 35(2) is readily resolved by reference to the relevant extrinsic materials. The Second Reading speech for the Defamation Bill 2005 (Vic)[63] unambiguously divines the objective of section 35(2):

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 warrants such an award. Courts will continue to be able to award full recovery of all economic loss.

(h) The Minister's speech ought to put the proper construction of s 35 beyond doubt. The intention of s 35(2) is simply to permit aggravated damages to be awarded over and above the statutory cap. It is not the intention of the provision to permit the Court to make an award of ordinary compensatory damages which exceeds the cap in any case where an award of aggravated damages is also made.

72 In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT),[64] Hayne, Heydon, Crennan and Kiefel JJ commented as follows:

This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.

73 More recently, on this subject, in Commissioner of Taxation v Consolidated Media Holdings Ltd,[65] after considering Alcan, and repeating that: '[t]his Court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text', the joint judgment continued:

So must the task of statutory construction end. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text. Legislative history and extrinsic materials cannot displace the meaning of the statutory text. Nor is their examination an end in itself.[66]

74 An academic commentator, Dr David Rolph,[67] has suggested, correctly, that the introduction of capping of defamation damages reflected and followed two trends, then current. First, the common law had long been concerned with disparities between the levels of damages for non-economic loss in defamation and personal injuries cases, as 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. Secondly, an economic need was perceived soon after the turn of the century for the restriction of damages for non-economic loss in personal injury cases and, as part of tort law reforms, parliaments imposed statutory caps. In Victoria, in 2002, the maximum amount of damages that may be awarded to a personal injury claimant for non-economic loss was capped by s 28G of the Wrongs Act 1958 (Vic), in a sum indexed by reference to the CPI.[68]

75 The policy response implemented soon after in the uniform national defamation laws was to set a statutory cap at a lower level than was set for personal injuries. The legislative provisions in the Act, set out above, were modelled on the tort law reforms. So much is not only evident on comparison of the statutory provisions, it was said by the Minister in the second reading speech for the Bill, set out above. This legislative history reveals some insight into the context of the enactment of s 35, including the general purpose and policy of the provision, in particular the mischief it was seeking to remedy. In other respects the observations of the Minister on the second reading of the Bill appear at odds with the statutory text.

76 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.

77 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.[69]

78 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.

79 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.

80 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.

This is because this area of defamation law is fraught with an underlying, potentially irreconcilable tension. On the one hand, the capping of defamation damages is desirable in order to ensure some consistency between the level of damages for defamation and personal injury claims. The capping of damages for defamation appears to provide a concrete, pragmatic solution to the difficult question of what should be the precise nexus between damages for non-economic loss in defamation and personal injury cases. On the other hand, a significant effect of capping defamation damages is that it allows a defendant to know in advance the limits of its liability. So long as the defendant does not inflict economic loss or aggravate the harm caused by its publication of defamatory matter to the plaintiff, the defendant can be certain as to the maximum amount it would be forced to pay by way of damages and, in most instances, be confident that the level of damages will not reach that figure. The concern is that, by capping defamation damages, media outlets can merely make a commercial assessment of the risks associated with publication and, rather than modifying their conduct, may elect to absorb the costs of defamation litigation as part of their business costs. The capping of damages for non-economic loss, in addition to the abolition of exemplary damages, implicitly alters one of the guiding principles of the assessment of defamation damages: that it is legitimate to take into account not only what the plaintiff should receive but also what the defendant ought to pay.

82 The legislative response was tailored to the perceived mischief. Aggravation of damage is generally not recognised at common law except where intentional misconduct is an element of the tort, and it is doubtful whether aggravated damages can be awarded in a negligence action,[71] creating a material distinction, when comparing the quantum of awards, between damage in negligence and damage (with aggravation) in defamation. Relevantly, the mischief of disparity between damages awards in defamation and personal injury cases can only truly arise when such awards are properly comparable. There is not, in respect of the cap under s 28G of the Wrongs Act 1958 (Vic), a provision equivalent to s 35(2).

83 For reasons that I will now explain, I am satisfied that the circumstances of publication aggravated the plaintiff's damage and accordingly the cap is not applicable to an award of general damages.

84 Where the conduct of the defendant has increased the injury suffered by the plaintiff, a court may award aggravated damages.

85 Circumstances of aggravation can be found in the defendant's conduct from the commission of the tort up until the day of judgment.[72] The inquiry is whether the harm suffered by the plaintiff was aggravated by the manner in which the act was done or by the publisher's conduct thereafter. The focus of the inquiry is on the subjective experience of the plaintiff.[73]

86 The defendant's aggravating conduct may be found in the circumstances of publication where, for example, the defendant increased the harm suffered by the plaintiff by intentionally or recklessly inflicted damage on the plaintiff's reputation,[74] by repeating the offending allegations,[75] or where the defendant failed to investigate the defamatory allegations before publishing them.[76] Acts of publication in retaliation or reprisal against the plaintiff may aggravate the harm.[77] Evidence which establishes malice will also generally support a claim for aggravated damages,[78] but only to the extent that the malice affects the harm sustained by the plaintiff.[79]

87 Aggravating conduct may occur after publication and prior to proceedings being commenced where, for example there was a failure to publish a retraction or an apology that amounts to a continuing assertion of the defamatory imputations.[80]

88 Damages may also be aggravated after the proceeding is commenced where the defendant's conduct, either prior to or during the trial, has been calculated to deter the plaintiff from proceeding,[81] or where a defence of justification has been pleaded with reckless indifference as to its relevance,[82] provided in all cases that the defendant's conduct increased the harm suffered by the plaintiff. In the conduct of proceedings, the defendant's conduct must have been lacking in bona fides, unjustifiable or improper.[83] Legitimate defence of a proceeding is not a circumstances of aggravation.

89 The plaintiff submitted that the defendants had aggravated her damage in a number of ways.

90 Aggravation in the circumstances of publication is found in at least three ways. Bauer Media failed to properly investigate, before publishing them, allegations that they regarded as defamatory that were made by a source that required both anonymity and payment. Bauer Media knew that the imputations that they conveyed were false, but they proceeded to publish nonetheless. Bauer Media repeated the offending imputations, and it did so not simply to keep the information that it had placed in the public arena circulating and current in the nature of a campaign against the plaintiff to maximise its commercial opportunities, but also to respond to, and neutralise the plaintiff's response to its campaign. I am satisfied that repetition of the publication of the defamatory imputations by different titles within the Bauer Media group was not coincidental.

91 In each respect, I am satisfied that Bauer Media so acted in its own corporate interests to secure improved circulation, or increased views/hits, in the expectation of higher profits. Bauer Media appreciated the risk of reputational damage to the plaintiff and I am satisfied that I can infer that it did not care whether the plaintiff suffered reputational damage as it pursued its own corporate interests. This recklessness as to the consequences of publication is a state of mind, a corporate motive or purpose, that demonstrated a substantial degree of aggravation that increased the plaintiff's damage. As Lord Devlin noted in Rookes v Barnard,[84] it was then well established that in assessing general damages, the decision maker can take into account the motives and conduct of the publisher where they aggravate the injury done to the plaintiff.

92 Such considerations are not inconsistent with s 34 of the Act, since, as Lord Hailsham explained in Cassell & Co Ltd v Broome:[85]

In awarding "aggravated damages" the natural indignation of the court at the injury inflicted on the plaintiff is a perfectly legitimate motive in making a generous, rather than a more moderate award to provide an adequate solatium ... that is because the injury to the plaintiff is actually greater, and, as the result of the conduct exciting the indignation, demands a more generous solatium.

In Lower Murray Urban and Rural Water Corporation v Di Masi, the Court of Appeal stated:[86]

While aggravated damages in defamation cases are most often awarded in respect of an increased hurt to feelings, caused by some conduct of the defendant which was not bona fide, justifiable or proper, they are not confined only to an increase in hurt feelings. In an appropriate case, they fall also to be awarded where relevantly unjustifiable conduct causes an increased injury generally.

93 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.

94 These findings are based on what I have already set out above at [36]-[50] and on the following evidence. The internal emails that passed between journalist, Shari Nementzik and her source, and between her and the editors of Woman's Day_,_ including Editor-in-Chief, Fiona Connolly, in the lead-up to the publication of the first article tell how Bauer Media prepared and published the Women's Day print article. Only Ms Nementzik gave evidence and it can more readily be inferred from the unexplained absence of the defendants' editorial staff that their evidence would not have provide an explanation of these communications that was more favorable to Bauer Media.

95 On 3 October 2012, around the time of the release of Pitch Perfect, a former classmate of the plaintiff at Tara Anglican Girls School posted a comment on a story that had been published about Ms Wilson on the Woman's Day website. The former student stated that 'everything [Ms Wilson] has said about her life is a lie ...what a lier [sic] she has become'. Later in October 2012, Ms Nementzik reached out by e-mail to the source. Emails were exchanged in which Ms Nementzik tried to build rapport with the source by stating that she believed the truth of the initial comment posted on the website. She did so by, for example, sending an email on 25 October 2012 stating 'I can't believe she's fake! That's awful! x'.

96 The following day, on 26 October 2012, the source raised the issue of payment for information. About 40 minutes after Ms Nementzik responded that a fee could be worked out, the source stated that she felt 'uneasy' and that it did not 'feel right going ahead'. Although the response did not set off any alarm bells, Ms Nementzik moved on to other things and did not pursue the story.

97 About one year later, the editor of Woman's Day, Ms Fiona Connolly asked Ms Nementzik to reach out to the source again and on 22 October 2013, Ms Nementzik did so. The source responded quickly. Ms Nementzik then stated to the source that 'so many people are saying she's completely 'faking' her past. So my editor wanted me to chat to you and just ask for a list of things she's lied about ... You can remain completely anonymous of course and we should be able to offer money x'. Under cross-examination, Ms Nementzik agreed that, at that stage, no one had, in fact, told her that Ms Wilson was faking her past. She had simply heard it through colleagues. Questioned about her journalistic ethics, Ms Nementzik said that she was just doing as she was told by Ms Connolly in offering the source anonymity and payment.

98 After further emails, on 24 October 2013, the source sent to Ms Nementzik a list of matters that she claimed Ms Wilson had lied about. Much of the information in this list was incorrect including the source's information as to the plaintiff's name, age, birth date, where she had grown up as a child, her parents' occupations and her reputation as a 'funny girl' at school. The source stated that 'there is so much about Melanie on the internet and it's amazing how much she had lied about'. As the jury found, that was also wrong.

99 The following day, the source sent a further email to Ms Nementzik setting out more alleged lies. She stated that Ms Wilson had not travelled around in a caravan as a child and had not spent a year in South Africa. Both matters were in fact true. Lastly, she told Ms Nementzik that Ms Wilson had won an award in America for best up and coming actress under 30, which was 'very dishonest'. That was also wrong.

100 The source rejected Ms Nementzik's offer to pay $500, stating that she was 'looking for maximum payment'. She asked Ms Nementzik to guarantee that her details would never be disclosed 'which would include if Melanie herself put a complaint against you for writing the article'. Ms Nementzik asserted that she was not concerned about the credibility of the source at this point.

101 Further emails were exchanged about payment. On 4 November 2013, Ms Nementzik sent a draft article to the Woman's Day deputy editor, Claire Isaac. The proposed headline, written by Ms Connolly, was 'Rebel Wilson's Big Fat Lies'. It was simply a compilation of the two emails sent by the source. Ms Isaac forwarded the draft article to Ms Connolly and Lisa Sinclair. Ms Sinclair responded 'I love it_'_. Ms Connolly responded 'Love it too. Happy to offer more. Can she point us to exact internet lies she says are fake ... or is this all she has?' The same day Bauer Media agreed to pay the source $3,000.

102 The following day Ms Nementzik sent an email to the source. There were problems with the story. Could the source confirm some matters that were detailed? The source responded, defending the information that she had provided. She repeated the false information stated in her earlier emails and also contradicted in some respects that earlier information.[87]

103 Then, about one hour later, the source emailed Ms Nementzik expressing concern about Ms Wilson suing. She said that her information was from her own knowledge and from discussions with other former students. She said that she had thought that her dealings with Ms Nementzik would be a 'simple straight forward transaction'. Ms Nementzik sought to negotiate a lesser payment. The source then threatened to approach another media outlet. Ms Nementzik told the source that she understood, but that she had to make sure that 'no one can get sued by Melanie'. Ms Nementzik wrote:

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