Defamation damages ‘out of control’
by Resolve editor Kate Tilley
A growing number of large defamation awards appear to show judges consider high-profile Australians’ hurt feelings are worth more than serious personal injuries, Victorian barrister David Gilbertson QC says.
Citing defamation cases involving actors Rebel Wilson and Geoffrey Rush and former Federal Treasurer Joe Hockey, Mr Gilbertson told the AILA conference multi-million-dollar defamation awards being handed down by courts were “out of control”.
Personal injury claims attracted more modest awards because personal injury legislation was tightly controlled, with caps in place to limit damages payouts.
While defamation laws currently capped non-economic loss payments at $407,000, the limit did not apply if a judge or jury found there were aggravated or special damages, such as lost income, Mr Gilbertson said.
That distinction enabled judges to award Ms Wilson $4.6 million and Mr Rush $2.9 million for economic loss resulting from defamatory articles written about them. Ms Wilson’s award was later reduced to $600,000 on appeal, and an appeal against Mr Rush’s payout is still before a court.
Mr Gilbertson said many lawyers forum shopped to ensure their clients’ cases were heard in jurisdictions that would ensure judge-only trials to maximise potential damages.
In 2005 most Australian jurisdictions adopted “almost identical” laws that allowed parties to seek resolution before juries. Only the Federal Court, South Australia, the Northern Territory and the Australian Capital Territory mandated judge-only hearings.
“In my experience, juries are more likely than judges to accept the meanings contended for by defamation claimants,” he said. “Judges tend to analyse publications in a manner that is more like the way a lawyer would, even though for the purposes of defamation, the ordinary, reasonable reader is assumed to be a lay person, not a lawyer. I have little doubt some claimants [start] proceedings in the Federal Court to reduce the risk of the trial being before a jury.”
Mr Gilbertson has suggested a review of the laws but believes that’s unlikely to happen quickly.
“Don’t hold your breath. It took decades to reach the uniform laws.”
Mr Gilbertson said, for a time, there was some uncertainty about how the Federal Court attracted jurisdiction in “pure” defamation matters.
The issue was determined by the Full Federal Court in Crosby v Kelly (2012) 203 FCR 451 which held the Federal Court had jurisdiction in pure defamation matters because the ACT Supreme Court’s jurisdiction was cross-vested to the Federal Court.
Providing claimants could show they were defamed in at least onepublication in the ACT, the Federal Court had jurisdiction, the full bench said.
Former Australian Treasure Joe Jockey used that ruling to have his 2015 defamation case against Fairfax Media heard by the Federal Court (Hockey v Fairfax Media Publications Pty Ltd (2015) 237 FCR 33).
While the material he said defamed him was initially published in The Sydney Morning Herald, the story also ran in The Canberra Times.
Similarly, this year actor Geoffrey Rush sued the publisher of Sydney’s The Daily Telegraph in the Federal Court (Rush v Nationwide News Pty Ltd (No 7)  FCA 496 11 April 2019) because Nationwide News distributed editions of the newspaper in Canberra.
Mr Gilbertson said the Hockey case “set the scene for what has become an explosion in defamation damages awards”, although the outcome was not as Mr Hockey would have preferred.
Mr Hockey argued articles printed in The Sydney Morning Herald, Melbourne’s The Age and The Canberra Times accused him of being corrupt and accepting bribes.
The papers said he provided “privileged access” to a “select group” in return for donations to the Liberal Party via a “secretive” fundraising body, the North Sydney Forum.
The Age and The Sydney Morning Herald articles included prominent headlines, like “Treasurer for Sale”.
While he ultimately won, Mr Hockey’s victory was limited. Mr Gilbertson said Justice Richard White, having analysed the articles in detail, concluded none of the articles meant to the ordinary, reasonable reader that Mr Hockey was corrupt or that he accepted bribes, or that any of the other meanings relied on were conveyed by the articles.
However, Justice White found The Sydney Morning Herald’s poster and two tweets about the case published by The Age were defamatory.
He rejected Fairfax Media’s qualified privilege defence and said the defendants were actuated by malice when they published the poster and the tweets. He awarded Mr Hockey $120,000 for the poster and $80,000 for the tweets (Hockey v Fairfax Media Publications Pty Ltd (No 2) (2015) 237 FCR 127;  FCA 750).
Mr Gilbertson said after a five-day trial and engaging senior and junior counsel, Mr Hockey’s win would have likely left him “out of pocket”.
Geoffrey Rush relied on a judge-only Federal Court trial to win his argument The Daily Telegraph defamed him in a series of articles by alleging he had
• engaged in scandalously inappropriate behaviour in the theatre
• engaged in inappropriate behaviour of a sexual nature in the theatre
• committed sexual assault in the theatre
• behaved as a sexual predator
• inappropriately touched an actor while working on the Sydney Theatre Company’s production of King Lear
• and was a pervert.
Mr Rush claimed damages, including aggravated damages and special damages for economic loss running into millions of dollars.
Nationwide News denied defaming Mr Rush but argued the imputations, if found to have been conveyed in the articles, were substantially true.
Mr Gilbertson said Justice Michael Wigney assessed the demeanour of witnesses for both parties and was not satisfied the publisher had established the substantial truth of the imputations.
Justice Wigney awarded Mr Rush $850,000 for general damages, including aggravated damages, and $2 million for special damages, including future loss of earnings.
Nationwide News has appealed on liability and the quantum of the general damages. The appeal is being heard by the Full Federal Court, consisting of five judges.
Mr Gilbertson said Rebel Wilson did not take her defamation case against Bauer Media to the Federal Court in 2017 and instead opted for a jury trial in the Victorian Supreme Court (Wilson v Bauer Media Pty Ltd  VSC 521).
She argued the publishers of the print edition of Woman’s Day, and the online editions of Woman’s Day, Woman’s Weekly and New Weekly had defamed her by saying she was a “serial liar who invented fantastic stories” to further her Hollywood career.
At first instance she was successful, and Justice John Dixon awarded Wilson $650,000 in general damages and ruled a cap did not apply because aggravated damages were appropriate.
Wilson was awarded an additional $3.9 million plus interest, bringing the total award to $4.7 million (Wilson v Bauer Media Pty Ltd (Costs)  VSC 161).
Mr Gilbertson said the Victorian Appeal Court set the award aside in June last year (Bauer Media Pty Ltd v Wilson (No 2) (2018) 56 VR 674; (2018) 361 ALR 642;  VSCA 154).
It reduced Ms Wilson’s special damages to $600,000, found she had not made out her special damages claim. and ordered her to pay 80% of Bauer Media’s appeal costs.
“Even though Ms Wilson received an order for indemnity costs of the trial, the two [appeal] cost orders must have made a significant dent in the $600,000 in damages that she was ultimately awarded,” Mr Gilbertson said.
He said the cases highlighted difficulties in defamation cases against publishers because the law had not kept pace with advances in new technology or social media.
Newspaper publishers had been found liable for Facebook posts on their pages, even before they had seen them, which meant 24-hour monitoring or constraining posts was the only way to prevent potential actions.
“Today everyone is a publisher. If it’s late at night and you feel like sending an angry social media post, wait until the morning,” he advised.