Civil Trials Bench Book — Particular proceedings

The topics covered by this section are:

Defamation actions are perceived as “controversial” (P George, Defamation Law in Australia, 3rd edn, LexisNexis, Sydney, 2017 (“George”) at [3.13]) because freedom of speech and protection of reputation are difficult to balance. Many of the complexities derive from the maintaining of this balance.

Although defamation actions are popularly believed to be actions by the famous or newsworthy against the media, analysis of damages awards (T K Tobin and M G Sexton, Australian Defamation Law and Practice, LexisNexis, Sydney, 1991 (“Tobin & Sexton”) at [60,100]) shows that most publications are non-media newsletters, electronic publications such as emails (see Tobin & Sexton at [24,000]–[24,090]) or slanders, where the extent of publication is limited. The high cost and complexity of proceedings are important considerations (Walter v Buckeridge (No 4) [2011] WASC 313; Lamont v Dwyer [2008] ACTSC 125 at [116]) when case-managing defamation claims and hearing trials.

Defamation actions in Australia are governed by substantially uniform Defamation Acts (“UDA”) of each State and Territory. The relevant legislation in each of the other States and Territories is as follows: Defamation Act 2005 (Qld); Defamation Act 2005 (SA); Defamation Act 2005 (Tas); Defamation Act 2005 (Vic); Defamation Act 2005 (WA); Civil Law (Wrongs) Amendment Act 2006 (ACT) (amending the Civil Law (Wrongs) Act 2002 (ACT)) and the Defamation Act 2006 (NT) (collectively referred to as “the uniform legislation”).

In NSW, the Defamation Act 2005 replaces the Defamation Act 1974, which applied to publications made before 1 January 2006. The principal differences between the repealed NSW legislation and the UDA are the changed role of the imputation (which is no longer the cause of action), the increased role of the jury (which now determines defences as well as imputations issues) and a cap on general damages. The UDA do not codify the law of defamation. Common law principles operate alongside the UDA.

A comparison table for the relevant sections of the UDA in all States and Territories of Australia is set out in Tobin & Sexton at [60,000]. This is followed by the text of the Defamation Act 2005 (at p 21,511ff), and extracts from the UCPR (Tobin & Sexton at [31,505]–[31,583]). This helpfully puts together the main legislative provisions for defamation actions.

Another relevant statute is the Limitation Act 1969. Restrictive limitation provisions apply to defamation actions.

The Limitation Act 1969, s 14B provides that an action for defamation is not maintainable if brought after the end of a limitation period of one year running from “the date of the publication of the matter complained of”. “Publication” occurs each time the matter is read, heard or seen. The limitation period can be extended in limited circumstances: Limitation Act 1969, s 56A. Because every communication of defamatory matter gives rise to a separate cause of action (known as the “multiple publication rule”), problems may arise applying the limitation period in defamation, particularly where the material is published online. The Defamation Amendment Act 2020 (discussed further below) introduced a “single publication rule” under the Limitation Act 1969, s 14C for publications after the date of the amendments. This provides that, where a publisher publishes defamatory matter and subsequently the publisher or an associate publishes substantially the same defamatory matter, the cause of action in defamation is taken to accrue at the date of first publication. The interaction of the old and new limitation provisions can create complexities: Lehrmann v Network Ten Pty Ltd (Limitation Extension) [2023] FCA 385; Ingram v Ingram [2022] NSWDC 653 at [32]–[36].

The changes clearly necessary to defamation law resulting from online publication problems led to increasing calls for reform. The rising number of claims where the publications are online is, however, only one of the issues requiring reform; the principal issues in the reform debate related to judicial interpretation of the uniform legislation in relation to defences and damages.

Following a statutory review of the Australian uniform defamation legislation, the Defamation Amendment Act 2020 (NSW) was assented to on 11 August 2020. The Act commenced on 1 July 2021 (LW 25/6/2021). The Uniform Civil Procedure (Amendment No 95) Rule 2020 also commenced on that date to take into account the commencement of the Stage 1 reforms (LW 22/12/2020).

A memorandum as to the principal changes made by the Act appears at Appendix 1. Perhaps the most important of these changes, in terms of interlocutory and trial procedure, is the introduction of a serious harm threshold (s 10A) and a mandatory requirement for service of a concerns notice (s 12B). Such a notice must contain the information identified in s 12A. Failure to send a notice at all, or sending a non-compliant notice, will result in the proceedings being struck out, as the statutory language is mandatory and not directory and errors of this kind cannot be retrospectively corrected: Clayton v Heffron (1960) 105 CLR 214 at 247 (per Dixon CJ, McTiernan, Taylor and Windeyer J), applied in Hooper v Catholic Family Services trading as Centacare Catholic Family Services [2023] FedCFamC2G 323 at [51]–[68]; see also M1 v R1 & Ors [2022] NSWDC 409 at [25]. A list of links to the amending legislation in each of the States and Territories (except Western Australia and the Northern Territory, which have yet to consider the legislation) appears as Appendix 2.

The Draft Part A Model Defamation Amendment Provisions and an accompanying Background Paper were released for public consultation in August 2022.

The most significant changes to defamation law over the past decades arise from the impact of electronic publication upon traditional principles of law developed for printed publications, often with a limited extent of publication. By comparison, publications on the internet are not only instantaneous and worldwide but are continuous in nature, in that a new cause of action is created each time the publication is accessed or downloaded: Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575. All areas of defamation law are affected, including limitation issues, defences and damages assessments.

There are defences falling outside the uniform legislation for internet service providers (“ISPs”) as well as the defence of innocent dissemination (outlined in more detail below).

Schedule 5, cl 91 of the Broadcasting Services Act 1992 (Cth), which provided immunity from State and Territory laws and common law and equitable principles to ISPs and internet content hosts in circumstances where they were not aware of the nature of the content in question, was replaced (as of 23 January 2022) by s 235 of the Online Safety Act 2021 (Cth), which is in the same form. Clause 91 was never the subject of consideration by the courts, so the extent of the protection that it gave, and which s 235 continues to give, to these entities has yet to be tested.

The Online Safety Act may also need to be consulted where an online publication is offensive, as opposed to (or in addition to) any claim for defamation. The Online Safety Act provides for the appointment of an eSafety Commissioner as well as a complaints process for the removal of online cyberabuse. The definition of “serious harm” in s 5 (“serious physical harm or serious harm to a person’s mental health, whether temporary or permanent”) may be a useful analogy in rulings on serious harm under s 10A of the amended legislation (for publications made after 1 July 2021 in those States and Territories where the uniform legislation has been amended).

The law relating to internet publication is changing rapidly; in Tamiz v Google Inc [2012] EWHC 449 (QB), Eady J considered an ISP was not liable even after notification that its service was being used for the communication of defamatory matter, principally because of the sheer volume of internet publication. See also Bunt v Tilley [2006] 3 All ER 336; Metropolitan International Schools Ltd t/as Skills Train and/or Train2Game v Designtechnica Corp t/as Digital Trends [2011] 1 WLR 1743; Karam v Fairfax New Zealand Limited [2012] NZHC 887.

In Google Inc v Duffy [2017] SASFC 130 the Full Court of the Supreme Court of South Australia affirmed the decision of the first instance judge (Blue J) that a search engine operator was liable for publication of both search results and web articles in its capacity as a secondary/subordinate publisher of defamatory material (the Full Court also upheld the trial judge’s assessment of damages at $100,000). Google’s search was liable in this context because it facilitated the reading of the matters complained of in a substantial, proximate and indeed essential way, not unlike placing a “post-it” note on a printed publication (at [173]) and by reason of the instantaneous nature of the publication: at [181].

In Trkulja v Google LLC (2018) 263 CLR 149, the High Court of Australia set aside the summary dismissal of claims for defamation arising out of the publication by the defendant of “snippets”. This complex decision has been the subject of considerable academic debate (see K Barnett, “Trkulja v Google LLC”, High Court Blog, The University of Melbourne, 3 July 2018).

While the leading Australian case remains Dow Jones &​ Co Inc v Gutnick (2002) 210 CLR 575, and liability for third party commentary has been considered at length in Fairfax Media Publications Pty Ltd v Voller; Nationwide News Pty Ltd v Voller; Australian News Channel Pty Ltd v Voller [2021] HCA 27, the High Court has now, by majority, held that when it is functioning purely as a search engine, Google is a search engine and not a publisher: Google LLC v Defteros [2022] HCA 27. The differing approaches taken by the High Court in both these decisions confirm that this is an area of the law where there is likely to be significant change and development. There is no clear ratio in the majority judgments. Many questions are raised and not all have been answered. In particular, in Google LLC v Defteros, there is an issue as to how broad the application of this judgment is, as the Canadian decision on which much of the reasoning was based (Crookes v Newton [2011] 3 SCR 269) was not a case involving a Google search result, but a hyperlink on a website.

In Voller, the question was whether media companies whose Facebook pages hosted comments by third parties were in fact publishers of the defamatory material. At first instance and on appeal, it was held that the media companies were publishers of the third-party comments notwithstanding the technological limitations on their control of the pages. Before the High Court, the appellants changed their position on the issue of intention and knowledge, to contend that the common law required that the publication of defamatory material be intentional, which meant that, in circumstances of no prior notification (as was the case in Voller, as no concerns notice was sent before suit), there was no publication: at [20].

All the members of the court rejected the submissions about the need for publication to be intentional, and effectively held that publication did not require knowledge. However, their Honours differed in their method of assessment of whether the media companies had participated in the act of publication and (in the case of Edelman and Steward JJ, both of whom would have allowed the appeal in part) as to the consequences of these findings.

Kiefel CJ, Keane and Gleeson JJ considered that the media companies had facilitated, encouraged and thereby assisted the posting of comments by the third-party Facebook users, which rendered them the publishers of those comments. Gageler and Gordon JJ, similarly emphasized that the media companies had chosen to operate public Facebook pages in order to engage commercially with the over 15 million Australians who were Facebook users, concluded that these arrangements gave their claim of being passive and unwitting victims of Facebook’s method of functioning an air of unreality.

Edelman J dissented in part. While the appellants had assisted in the publication of third-party comments, by merely creating a page in posting a story with an invitation to comment, they had not manifested an intention or common purpose with the author of the comment and their unrelated words would not be in pursuance of, or in response to, the invitation. A random remark by a third party, unconnected to the story, would not fall within any manifest common intention.

Steward J would also have allowed the appeal in part. Merely allowing third-party access to a Facebook page is, of itself, insufficient to justify a factual conclusion that the Facebook page participated in the publication of all the third-party comments posted thereafter. It followed that there must be some feature of the content, nature or circumstances of a Facebook post that justified a conclusion that it had procured, provoked or conduced third-party defamatory comment or comments, such as to make the Facebook page owner the publisher of such comments: at [180].

It is important to note that this decision relates to liability for publication only, and not to the defence of innocent dissemination, although Rothman J (at first instance) had, after finding the appellants were publishers, gone on to consider aspects of the defence of innocent dissemination under s 32 of the Defamation Act 2005. The issue of the defence of innocent dissemination was specifically excluded from consideration in the Court of Appeal (at [37] per Basten JA), which was in turn the position that the High Court took: at [17]–[19]. The issue of the defences to be relied upon will now be an issue for the trial.

Defamation cases are conducted in the Supreme Court in accordance with Practice Note No SC CL 4 — Defamation List (commenced 5 September 2014), a similar form of which is in use in the District Court (DC Practice Note No 6 — Defamation List (commenced 9 February 2015)). The practice note regulates the speedy and efficient disposal of interlocutory applications and emphasises the importance of proportionality. As a consequence of the cross-vesting legislation, defamation proceedings may also be commenced in the Federal Court of Australia where there is a cause of action in the ACT or the NT: Crosby v Kelly (2012) 203 FCR 451. The presumptive mode of trial in the Federal Court is trial by judge alone. Although the Federal Court has a discretion to order trial by jury, the provisions of the Federal Court of Australia Act 1976 (Cth) on the mode of trial in that forum override the right of any party to elect to have a defamation case tried by a jury under State defamation legislation. The Full Federal Court has stated that trial by jury in a defamation case in the Federal Court will be exceedingly rare: Wing v Fairfax Media Publications Pty Ltd (2017) 255 FCR 61.

In addition, as hearings in the Federal Court are conducted under the docket system, interlocutory issues will generally be left to the trial, including imputation arguments, as occurred in Hockey v Fairfax Media Publications Pty Ltd (2015) 237 FCR 33; see Goodfellow v Fairfax Media Publications Pty Limited [2017] FCA 1152 at [25]–[28]. This can have significant costs consequences for a party who fails on a threshold issue such as the capacity of the imputations: Hockey v Fairfax Media Publications Pty Limited (No 2) [2015] FCA 750 at [103]–[124]; Taylor v Nationwide News Pty Ltd (No 2) [2022] FCA 149.

The pleadings in a defamation action (which do not require verification: UCPR r 14.22) consist of the statement of claim (to which the concerns notice must be attached), the defence (and cross-claim if applicable) and, depending upon the defences pleaded, a Reply particularising issues such as malice.

Applications to amend or strike out portions of the pleadings in defamation actions occur most commonly at two stages. The first is at the commencement of the litigation. Applications for rulings at this stage usually consist of challenges to the form and capacity of the plaintiff’s imputations and, after the defence has been filed, if contextual truth is pleaded, an application by the plaintiff either to strike out or to plead back contextual imputations: McMahon v John Fairfax Publications Pty Ltd (No 3) [2012] NSWSC 196. Applications to strike out proceedings commenced after the one-year limitation period are generally brought at the commencement of the proceedings rather than at the trial. The most common applications brought at the commencement of proceedings are for the early determination of the threshold issue of serious harm and applications to strike out proceedings by reason of asserted defects in the concerns notice and statement of claim in particularising serious harm.

Applications for amendment of pleadings are often brought shortly before the trial: Lee v Keddie [2011] NSWCA 2; Murdoch v Private Media Pty Ltd (No 4) [2023] FCA 114 at [31] and [53] (trial date vacated due to plaintiff’s counsel’s “mistakes”); McMahon v John Fairfax Publications Pty Ltd [2011] NSWSC 485. They may also be brought during (TCN Channel 9 Pty Ltd v Antoniadis (1998) 44 NSWLR 682 at 695; Ainsworth v Burden [2005] NSWCA 174 at [51]), or even after the trial: Snedden v Nationwide News Pty Ltd [2011] NSWCA 262 at [52]ff. Where the result of amendment would be to adjourn or delay the trial, these applications are often refused: Lee v Keddie.

In New South Wales, defamation actions are managed in a specialist list where interlocutory motions are dealt with as part of case management.

When a judge makes orders striking out imputations, pleadings, or a cause of action, reasons should be given: Ahmed v John Fairfax Publications Pty Ltd [2006] NSWCA 6 at [102]. Imputations have achieved a greater importance in document drafting as a result of the requirement, for claims brought under the amended legislation, that the imputations to be relied upon must be set out in the concerns notice: s 12A(1)(a)(iii); s 12B(2)(b).

Imputations pleaded by parties fall into three categories: those pleaded by the plaintiff, those pleaded by the defendant pursuant to s 26 Defamation Act, and “Hore-Lacy” imputations: David Syme & Co Ltd v Hore-Lacy (2000) 1 VR 667; Besser v Kermode (2011) 81 NSWLR 157 at [56].

There have been many judgments concerning form and capacity of imputations in New South Wales since the procedure first became widespread in the late 1970s. This is because, prior to the UDA, the imputations (and not the publications from which they were derived) were the cause of action: Defamation Act 1974 s 9. An amendment to the Defamation Act 1974, s 7A, in 1994, restricted the jury’s role essentially to this issue only. This led to many “perverse” or unreasonable verdicts in the NSW Supreme Court. The UDA accordingly abandoned the concept of a cause of action based on the pleaded imputations; the cause of action is the publication. New South Wales decisions on these issues prior to the UDA need to be read with this history in mind.

The principles to follow on capacity issues are those set out by the High Court in Favell v Queensland Newspapers Pty Ltd (2005) 79 ALJR 1716, where the court (in particular Kirby J at [20]–[22]) warned against “excessive refinement” in relation to pleading imputations. The High Court essentially restated these principles in Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460.

The relevant principles in relation to challenges to the plaintiff’s imputations may be summarised as follows:

Other pre-trial applications range from urgent applications for an interlocutory injunction, to arguments unique to defamation law (such as so-called “strike in” applications) to arguments common to other causes of action, such as disputes about the adequacy of discovery or answers to interrogatories.

When the UDA was enacted, all jurisdictions amended their limitation statutes to provide that a cause of action was not maintainable if brought after the end of the limitation period (one year) from the date of publication of the matter complained of: Limitation Act 1969 s 14B. An extension of up to three years may be granted, but the test (that the plaintiff must demonstrate that it was not reasonable to have commenced an action within the one year period from date of publication) has been called a “difficult hurdle”: Rayney v State of Western Australia (No 3) [2010] WASC 83 at [41].

The test of unreasonableness was a difficult one to satisfy; in Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175, the court (by majority) considered that negotiations for an offer of amends (where the plaintiff contended it was not reasonable to start proceedings which would imperil these negotiations) was an insufficient ground.

There have been changes to the limitation statutes as a result of the reforms to the Model Defamation Provisions, which came into effect in NSW on 1 July 2021, following the commencement of the Defamation Amendment Act 2020. The limitation period remains one year under the Limitation Act 1969, s 14B but the test for extending the limitation period for up to three years under the Limitation Act 1969 (NSW) s 56A has been altered to confer a discretion on the court to grant the extension where the court is satisfied that it is just and reasonable to do so. As to the relevant considerations for the exercise of this discretion, see Limitation Act 1969 s 56A(3).

Prior to 1 July 2021, there was no “single publication” rule in NSW. The effect of this was that every communication of defamatory matter created a separate cause of action, with the limitation period running for each cause of action. The Limitation Act 1969 s 14C now creates a “single publication” rule, providing that the limitation period for subsequent publication of similar matter by the same publisher or an associate will run from the time of first publication.

Where the parties have not requisitioned a jury, the trial judge will determine all issues of fact and law. In such cases, a separate hearing as to damages is not necessary.

The role of the judge during the trial Due to the complexity of defamation trials, judges used to play an active role in both jury and non-jury trials, by putting questions to witnesses, pointing out Brown v Dunn problems (Seymour v Australian Broadcasting Commission (1977) 19 NSWLR 219) or limiting address time in accordance with the principles discussed in GPI Leisure Corp Ltd v Herdsman Investments Pty Ltd (No 3) (1990) 20 NSWLR 15. While this is still the case in other common law jurisdictions (Brown, [17.2(3)(a)]), this may not be the case in New South Wales: Lee v Cha [2008] NSWCA 13.

Many of the applications that parties make during a trial occur whether a jury is empanelled or not; for convenience, applications which mainly relate to the jury’s role are set out in a separate section below. The following are examples of rulings which may be sought in a judge-alone trial:

Rulings on evidence, such as the admissibility of business records, applications for exclusion or limitation of evidence pursuant to Evidence Act 1995 s 135 and issues of credit, generally proceed in the same manner as other civil trials, whether there is a jury or not. Some common problems in jury trials are:

Directions may be made that the judgments are not published until after the jury has completed its role in the trial: McMahon v John Fairfax Publications Pty Ltd [2012] NSWSC 196 at 197,198.

The assessment of damages is an issue for the judge, whether or not a jury has been empanelled for the liability section of the trial: Defamation Act, s 22(3).

Section 35 imposes a cap on damages that can be awarded in “defamation proceedings” ($250,000 as at 1 January 2006, which is revised on 1 July of each year in accordance with the provisions of s 35(3); see the table in Tobin & Sexton at [20,100] for the current maximum figure). The maximum amount of damages for non-economic loss is only to be awarded in the most serious case: s 35(2). The cap applies to an award in particular proceedings, whether or not there are multiple causes of action: Davis v Nationwide News Pty Ltd (2008) 71 NSWLR 606. It is unresolved whether the cap applied separately to each plaintiff in proceedings with multiple plaintiffs.

Damage is presumed once the publication of defamatory matter and serious harm resulting from the publication has been proved. The relevant heads include vindication (Tobin & Sexton at [20,020]), injury to feelings and to reputation (Tobin & Sexton at [20,025]), and consolation. The principles for compensatory damages are comprehensively reviewed by Tobin & Sexton at [21,001]–[21,180] and by George, ch 31–38. The plaintiff may claim special or aggravated compensatory damages, but exemplary damages are not available for publications where the place of publication is within the States and Territories of Australia: Tobin & Sexton at [22,180].

Aggravated compensatory damages (Tobin & Sexton at [22,001]–[22,210]; George, ch 33) must be the subject of pleading and particulars, and generally are claimed in relation to the conduct of the defendant at the time of publication, the mode and extent of publication, failure to apologise and retract, and the conduct of the litigation by the defendant (the most common basis for which is an unsuccessful claim of justification by a defendant).

As with aggravation of damages, the factors upon which a defendant may rely on the issue of mitigation of damages are many and various: Tobin & Sexton at [22,110]–[22,145]. The most common include partial success of a defence of justification (Cerutti v Crestside Pty Ltd, above) or contextual truth (Holt v TCN Channel Nine Pty Ltd (2012) 82 NSWLR 293; affirmed Holt v TCN Channel Nine Pty Ltd (2014) 86 NSWLR 96), the proffer of an apology, or the award of damages for another publication having the same meaning or effect as the matter complained of: Defamation Act s 38.

The relationship between the cap of ordinary compensatory damages and aggravated compensatory damages under the Defamation Act 2005 s 35 and the analogous provision in the other States and Territories was controversial.

In Wilson v Bauer Media Pty Ltd [2017] VSC 521 John Dixon J considered that the language of s 35 made it clear that, once the court was satisfied that an award of aggravated damages should be made in excess of the cap, the cap on damages no longer applied. The same approach was taken in Rayney v The State of WA (No 9) [2017] WASC 367 and was confirmed on appeal in Bauer Media Pty Ltd v Wilson (No 2) [2018] VSCA 154, as is noted in Wagner v Harbour Radio Pty Ltd [2018] QSC 201.

From 1 July 2021, following the commencement of the Defamation Amendment Act 2020, a different approach to the assessment of aggravated damages now applies. An award of ordinary compensatory damages can only be made up to the statutory cap on damages for non-economic loss: s 35(1)–(2).

If the court is satisfied that an award of aggravated damages should be made, it may do so but must assess aggravated damages as a separate head of damages from ordinary compensatory damages: s 35(2B); Doak v Birks [2022] NSWDC 625 at [113]–[130]. This is so whether or not the award of aggravated damages would exceed the cap on damages for non-economic loss. The approach under statute to the assessment of aggravated damages differs from the approach at common law. Conventionally, at common law, damages for ordinary and aggravated compensatory damages were assessed together.

Claims for special damages in defamation may be brought where it is asserted that the publication of the matter complained of results in actual loss: see Tobin & Sexton at [21,165]. The range of losses may be quite far-reaching, such as the cost of making films to combat the negative publicity engendered by the defamatory publication (Comalco Ltd v ABC (1985) 64 ACTR 1; ABC v Comalco Ltd (1986) 12 FCR 510) or the loss of film roles for an actress: Wilson v Bauer Media Pty Ltd [2017] VSC 521. Such a claim requires specific pleading and is generally supported by expert evidence. Such a claim differs from an “Andrews” claim (Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225) for general loss of business, which is generally only supported by particulars and discovery: see Tobin & Sexton at [21,175].

Claims for damages for injury to health are rare: see Tobin & Sexton at [21,145]; Ali v Nationwide News Pty Ltd [2008] NSWCA 183 at [77]–[78].

While injury to reputation is presumed, even in relation to the most anodyne or limited publication, the circumstances of the publication may be such that only nominal damages should be awarded: Beaven v Fink [2009] NSWDC 218 (damages of $2,500 for slander to one person). Such awards are generally called “nominal” (Australian Broadcasting Corp v O’Neill (2006) 227 CLR 57; [2006] HCA 46 per Gleeson CJ and Crennan J at [19]) or “derisory” awards: Holt v TCN Channel Nine Pty Ltd (No 2) (2012) 82 NSWLR 293; [2012] NSWSC 968 per Adamson J at [9]. The most celebrated of these very small awards was the farthing damages award to the plaintiff in the litigation arising from the portion of Leon Uris’s book, Exodus, Doubleday & Co, 1958, concerning the alleged conduct of experiments by a doctor in concentration camps during the Holocaust: Dering v Uris [1964] 2 All ER 660; [1964] 2 WLR 1298. An even smaller award (nil damages) was challenged in Massoud v Nationwide News Pty Ltd; Massoud v Fox Sports Australia Pty Ltd (2022) 109 NSWLR 468, but Leeming JA (Simpson AJA and Mitchelmore JA concurring) at [282]–[285] considered an award of nil damages (made contingently by the first instance judge) to be not only possible but appropriate on the facts of the case.

Where a defendant has been successful in a defence of partial justification, the damages may be significantly reduced: Holt v TCN Channel Nine Pty Ltd (2014) 86 NSWLR 96; [2014] NSWCA 90 (award of $5,000). The question of mitigation of damages may also arise where there has been partial success in a defence of justification: Holt v TCN Channel Nine Pty Ltd, above, at [32]; see Pamplin v Express Newspapers Ltd (No 2) [1988] 1 All ER 282; [1988] 1 WLR 116 at 120. Tobin & Sexton at [21,087] note the question of whether adverse findings as to a plaintiff’s credit may be taken into account is a question that cannot be considered closed, despite the NSWCA considering that such evidence was irrelevant in Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419.

While evidence of bad reputation in the relevant sector of reputation may be given, courts have declined to permit evidence of specific acts of bad reputation to be pleaded where there is no plea of justification: see Tobin & Sexton [21,050]. The defendant is limited to particulars of general bad reputation, which must be given before trial: see Tobin & Sexton [21,055]–[21,080]. Evidence of prior criminal convictions may be given, but only if such particulars are given before trial: see Tobin & Sexton [21,090].

While it is not necessary for a plaintiff to lead evidence of good reputation, it is common to do so: see Tobin & Sexton [21,085].

A table of all defamation awards made under the uniform legislation (which totalled 300 as at 30 June 2022) is set out in Tobin & Sexton at [60,100].

Despite the setting aside of the claim for special damages in Bauer Media Pty Ltd v Wilson (No 2) (2018) 56 VR 674, the increasingly large awards of damages demonstrate that, despite the imposition of a cap on damages, damages awards, particularly in high-profile cases, are increasing generally. This may be due to some or all of the following factors:

The “unique aspects” of defamation actions (G Dal Pont, Law of Costs, 3rd edn, at [12.21]) have resulted in special costs provisions designed to promote settlement. Section 40, modelled on s 40A Defamation Act 1974 (see Jones v Sutton (No 2) [2005] NSWCA 203), provides that in awarding costs, the court has regard to:

A significant factor may be whether the failure of a party to “make a settlement offer” or “agree to a settlement offer” (s 40(2)) is reasonable. The definition of “settlement offer” is set out in s 40(3) and, as it means “any” offer to settle, may presumably include invalid offers of compromise or “without prejudice” offers, as well as offers to amend, which are specifically referred to in s 40(3). In Davis v Nationwide News Pty Ltd [2008] NSWSC 946 the court considered that the defendant’s “walk away” offer (withdrawal of the action on the basis that each pay their own costs) was not reasonable at the time that it was made.

While the court still retains a wide discretion on issues of costs, courts in defamation proceedings have often been reluctant to enforce provisions to impose costs on an unsuccessful party who had prolonged a trial by deliberate false allegations, or continued proceedings where there was obviously no hope of success: Tobin & Sexton at [26,615], citing Degmam Pty Ltd (in liq) v Wright (No 2) [1983] 2 NSWLR 354 and Wentworth v Rogers (No 5) (1986) 6 NSWLR 534. In Hyndes v Nationwide News Pty Ltd [2012] NSWCA 349 the plaintiff lost the case, but did not have to pay indemnity costs despite rejecting six offers, all better than the result. Indemnity costs under s 40 may not apply to appeals because of the inherent difference between first instance and appeal costs: Ten Group Pty Ltd (No 2) v Cornes (2012) 114 SASR 106. Costs issues under the UDA take into account the need to promote a speedy and non-litigious method of resolving disputes and avoiding protracted litigation wherever possible: Davis v Nationwide News Pty Ltd, above, at [26]; Haddon v Forsyth (No 2) [2011] NSWSC 693 at [5].

If only a small amount of damages is awarded, that does not disentitle a plaintiff from an award of costs, although the size of the verdict may be taken into account when considering whether the defendant’s failure to make a costs offer was “unreasonable” (s 40): Holt v TCN Channel Nine Pty Ltd (2012) 82 NSWLR 293 at [51]–[62] affirmed [2014] NSWCA 90, but cf Milne v Ell [2014] NSWCA 407 at [28]–[30]. Almost all Supreme Court verdicts have, in breach of the court’s costs rules, fallen below the District Court jurisdiction limit (as counsel for Nationwide News Pty Ltd pointed out in West v Nationwide News Pty Ltd [2003] NSWSC 767). Following West, defamation proceedings were removed from the category of claims to which this costs rule applied: SCR Pt 52A r 33(1)(v); No 380 of 2003). This exemption has been continued under UCPR Pt 42.

As noted at the commencement of this chapter, after decades, or indeed centuries, of relative stability, defamation law is currently undergoing profound change. The majority of publications now sued upon are internet or other electronic publications: North Coast Children’s Home Inc (t/as Child and Adolescent Specialist Programs and Accommodation (Caspa)) v Martin (No 2) [2014] NSWDC 142; Polias v Ryall [2014] NSWSC 1692; Wilson v Ferguson [2015] WASC 15. Social media has had an impact on many aspects of defamation law; for example, in Pedavoli v Fairfax Media Publications Pty Ltd [2014] NSWSC 1674, failure to publish the apology in the newspaper’s Twitter account was one of the reasons for the court finding that the offer of amends was inadequate.

The full impact upon defamation law of electronic publication, human rights legislation and privacy rights in other common law jurisdictions such as the United Kingdom, Canada, New Zealand and the United States has yet to be felt in Australia.

While foreign judgments on issues such as hyperlinks have been able to be absorbed (see Google LLC v Defteros [2022] HCA 27) Australian courts (Barach v University of NSW [2011] NSWSC 431; Manefield v Child Care NSW [2010] NSWSC 1420; Bristow v Adams [2012] NSWCA 166 at [41]) have, to date, showed some reluctance in following decisions such as Jameel v Dow Jones & Co Inc [2005] QB 946 in striking out claims which do not disclose a real and substantial tort, although there are indications that such applications may succeed in the future: Farrow v Nationwide News Pty Ltd (2017) 95 NSWLR 612 per Basten JA at [5], confirming the correctness of the principles applied by McCallum J in Bleyer v Google Inc (2014) 88 NSWLR 670, which is the landmark decision in this developing area of the law.

The impact of privacy law upon defamation law is another area where significant changes to the law are also likely. While a tort of privacy has received some recognition in Australia (Doe v Australian Broadcasting Corp [2007] VCC 281; Grosse v Purvis (2003) Aust Torts Reports ¶81-706), some judges, such as Davies J, consider it is still “unclear” whether a tort of privacy exists in Australia (Chan v Sellwood [2009] NSWSC 1335 at [37]), although the NSWCA has stated to the contrary: John Fairfax Publications Pty Ltd v Hitchcock [2007] NSWCA 364 at [124]; Maynes v Casey [2011] NSWCA 156.

In addition, as the Leveson Inquiry (The Leveson Inquiry: Culture, Practice and Ethics of the Press in the UK) and the Finkelstein Report (Report of the Independent Inquiry into the Media and Media Regulation, which was reported to the Australian Government on 28 February 2012) have made clear, the increased ease of electronic surveillance has made profound changes to news gathering techniques, resulting in a shift from complaints about false and defamatory publications to complaints of publication of truthful material which should remain private. The impact of electronic publication in general and social media in particular upon causes of action for defamation in the future will be considerable, and the adequacy of the uniform legislation to deal with limitation and proportionality issues will be strongly tested.

More recently, claims of publication of “fake news” reports of a sensational nature have resulted in the seeking of forms of relief other than damages, such as contempt of court (Doe v Dowling [2017] NSWSC 1037) or prosecution for a criminal offence: Brown v Commonwealth DPP [2016] NSWCA 333 (prosecution under s 474.17 Criminal Code (Cth)).

The release of the Statutory Review of Australia’s uniform defamation legislation, mandated by s 49 of the Defamation Act 2005 (NSW), may lead to further consideration of law reform initiatives capable of considering these complex issues of law and technology.

Amendment of Defamation Act 2005

The following is a short summary of the essential changes (with references to the appropriate Questions set out in the CAG Discussion Paper):

The new legislation is in the early stages of consideration in other States and territories around Australia. The Defamation (Miscellaneous) Amendment Bill 2020 (SA) was introduced into the South Australian Parliament on 24 September 2020 by Attorney-General, the Hon V A Chapman. The Bill amends the Defamation Act 2005 (SA) and the Limitation of Actions Act 1936 (SA). In the course of introducing the Bill, the Attorney-General stated that it was developed co-operatively with all other Australian jurisdictions and is the first substantial amendment to the Defamation Act since it was initially passed in 2005. The Bill was described by the Attorney-General as a “major milestone in Australian defamation law”: see www.timebase.com.au/news/2020/AT05121-article.html

There are two important points about the proposed new legislation to note:

The following factors should be considered:

This is likely to be a fertile source of litigation, as defendants will seek to argue that the new provisions requiring concerns notices and offering new defences apply: Barilaro v Shanks-Markovina (No 3) [2021] FCA 1100 at [11]–[13].

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