ASSESSMENT OF DAMAGES - QUANTIFICATION
56 Having found that, in making the allegations, Seafolly had contravened s 52 and that, as a result, Ms Madden has suffered damage by way of hurt and offence from the misrepresentation, it remains to consider whether and, if so, in what amount, damages should be awarded under s 82 of the Act.
57 It is well established that damages may be awarded under s 82 of the Act for harm to reputation: see Nixon v Slater & Gordon (2000) 175 ALR 15; Cryeng Pty Ltd v Loyola [2011] FCA 956.
58 Damages for loss and damage arising from a contravention of s 52 of the Act must reflect the actual loss or damage suffered by the victim: see Wardley Australia at 526. There is, therefore, no scope for an award of nominal damages. In this case the quantification of Ms Madden's actual loss and damage is far from easy.
59 As has been seen, the evidence before the Court provides minimal assistance in the assessment of damages. This does not mean that the Court is necessarily relieved of the obligation to make an assessment. As the Full Court said in Enzed Holdings Limited v Wynthea Pty Ltd (1984) 57 ALR 167 at 183:
"The principle is clear. If the court finds damage has occurred it must do its best to quantify the loss even if a degree of speculation and guess work is involved … We emphasize, however, that the principle applies only when the court finds that loss or damage has occurred. It is not enough for a plaintiff merely to show wrongful conduct by the defendant."
60 The difficulties of quantifying loss in such cases was recognised by the Court in a passage, on which both parties relied, in Flamingo Park Pty Ltd v Dolly Dolly Creation Pty Ltd (1986) 65 ALR 500 at 525. Wilcox J said that:
"Any assessment of damages for loss of reputation must necessarily be made with a broad brush; as in a defamation case a court can do no more than fix a sum of money which, in the whole of the circumstances, appears to be proportionate to the damage which has been incurred. The greater the reputation, the more vulnerable it is to damage."
61 Factors which are relevant in making the assessment include "the nature of the statements made by the respondents and …. the manner and extent of their publication": see Typing Centre of NSW Pty Ltd v Northern Business College Ltd (1989) 13 IPR 627 at 641 (Wilcox J). The allegations made by Seafolly were serious misrepresentations and went beyond that which was necessary in order to defend the company against the equally serious charges of copying made against it by Ms Madden. They were disseminated by a public relations specialist engaged by Seafolly. They were directed to publications circulating in the fashion industry which was the same forum in which Ms Madden had chosen to expose her grievances against Seafolly. As expected the press releases were republished in whole or in part. Each contained the allegations. Each remained on the relevant websites until trial and were read, in whole or in part, by hundreds or thousands of viewers: see above at [22]-[24].
62 The impact of these postings on the readers is difficult to assess. Many of them were "friends" of Ms Madden who, the evidence suggested, continued to support her and, in some cases, actively sought to assist her in prosecuting her mistaken charges against Seafolly. While Ms Madden gave evidence about her apprehensions and worry about the reaction of people involved in the fashion industry and some in her local community to the contents of the press releases, she did not give any evidence of any individual who had read the material (including the misrepresentations) and had, as a result, responded by saying or doing something to her detriment. There was no suggestion, for example, that any of her fellow playgroup or school parents had in any way slighted her following the publication of the press release.
63 Ms Madden has sought to draw parallels between the present proceeding and the Lower Murray Water Corporation case such that her damages should be assessed at no less than the $70,000 which was awarded to the plaintiffs in that case. This contention cannot be accepted. Whilst the misrepresentations, presently under consideration, were more widely disseminated, they were by no means as serious as those made against the plaintiffs in Lower Murray Water Corporation. In that case the trial judge observed ([2012] VSC 535 at [174]) that the relevant allegations and imputations "were grave, and were calculated to cause substantial harm to the reputations and standing of each of the plaintiffs." The allegations against the plaintiffs included breaking the law by investing over $2 million of taxpayer's money without Treasury approval, acting irresponsibly and unlawfully by investing money, loaned from the State Government, in the United States sub-prime mortgage market and approving secret, last minute, adjustments to senior management contracts to guard against the consequences of an authority being taken over.
64 When upholding the award of damages, made by the trial judge, the Court of Appeal emphasised that the awards had to be sufficient for the purpose of vindicating the plaintiffs by "nailing the lie[s]" which had been levelled against them: see Lower Murray Urban and Rural Water Corporation v Di Masi [2014] VSCA 104 at [107]. Considerations of this kind do not bear on the assessment of damages under s 82 of the Act following a contravention of s 52.
65 Having regard to all of the matters which have been urged upon me and with which I have dealt with in these reasons, I consider that an award of $40,000 is appropriate and proportionate having regard to the damage sustained by Ms Madden.