Overview and Purpose of Damages in Defamation
In defamation cases, damages serve to compensate the plaintiff for harm to reputation and injured feelings, and to vindicate their reputation in the eyes of the public. Australian defamation law is partly codified by statute but still grounded in common law principles. In Western Australia (WA), the Defamation Act 2005 (WA) (part of the uniform defamation laws) governs many aspects of damages, without the 2021 amendments that some other states adopted.
Damages in defamation are primarily compensatory, not punitive – they aim to restore the plaintiff's reputation and compensate for emotional distress, while punitive or exemplary awards are not permitted. Awards will vary widely based on the seriousness of the defamation, the extent of publication, and the presence of aggravating or mitigating factors.
This blog post outlines the principles for assessing defamation damages in WA, including common law categories (general, aggravated, exemplary), the statutory framework (caps and thresholds), practical guidance on pleading/proof, and the influence of apologies or offers of amends. Comparative reference is made to other jurisdictions (notably NSW and Victoria) where WA authority is limited, noting what is binding (High Court and WA precedents) and what is persuasive only.
Categories of Damages under Common Law
Under the general law, defamation damages fall into several categories: general compensatory damages, aggravated damages, and historically exemplary damages (though the latter are now barred by statute). In addition, a plaintiff may claim special damages for actual economic loss in appropriate cases.
General (Compensatory) Damages
These compensate for non-economic loss – chiefly the harm to reputation, and the hurt, distress and embarrassment suffered by the plaintiff. General damages serve a vindicatory role, signaling to observers that the defamatory allegation was false.
At common law, once defamation is proven, damage to reputation is presumed (the plaintiff need not prove actual loss of reputation) and the court will award a sum reflecting the seriousness of the libel/slander and its impact. The assessment is necessarily imprecise; courts consider factors like:
The nature of the imputation
The extent of publication (scope of audience)
The plaintiff's standing and reputation
The effect on the plaintiff's feelings
For example, a widespread accusation of serious misconduct (such as a crime) would attract a much higher general award than a minor insult uttered to one person. Notably, even before the 2021 reforms elsewhere, Australian courts emphasized that damages must bear a "rational relationship" to the harm. General damages also inherently provide a measure of consolation for the wrong done.
Aggravated Damages
Aggravated damages are an enhanced compensatory sum awarded when the defendant's conduct aggravated the harm to the plaintiff. They are not a separate head of punitive damages, but rather additional compensation for aggravated hurt feelings or increased reputational harm caused by the manner of publication or the defendant's conduct.
Common aggravating factors include:
Publication in an especially insulting or injurious way
A failure to retract or apologize
Repetition of the defamatory charge
Conduct of the litigation that exacerbates harm (for instance, a baseless plea of justification that forces the plaintiff to relive the slur)
The plaintiff must plead and particularize any claim for aggravated damages, usually by outlining the specific conduct said to increase the injury. For example, if a defendant persisted with unfounded allegations at trial or refused to apologize, these facts should be pleaded to support aggravated damages.
At common law, the line between general and aggravated damages is fluid – typically the court would assess a single lump sum including any aggravation. Australian courts have long allowed significant uplifts for aggravating conduct. For instance, in Cassell & Co v Broome (UK) and adopted in Australian contexts (e.g. Uren v John Fairfax), it's recognized that where a defendant behaved reprehensibly, the plaintiff is entitled to a higher award to account for the added insult. However, aggravated damages remain compensatory in nature – they are not to punish the defendant but to compensate the plaintiff for added hurt and distress.
Exemplary (Punitive) Damages
At common law, courts could in rare cases award exemplary or punitive damages to punish a defendant for particularly egregious defamation (for example, where the defamer acted in flagrant disregard of the truth). In Australia, Uren v John Fairfax & Sons Ltd (1966) upheld the availability of exemplary damages in defamation at common law (unlike the US approach).
However, under the uniform defamation legislation, exemplary or punitive damages are now abolished in defamation actions. Section 37 of the Defamation Act 2005 (WA) expressly provides that "a plaintiff cannot be awarded exemplary or punitive damages for defamation". This is a binding statutory bar in WA (and all uniform jurisdictions), meaning no award may be made solely to punish, no matter how outrageous the conduct. The focus is instead on compensatory damages (including any aggravation). Any impulse to 'punish' is subsumed under aggravated damages so far as it increases the compensatory award.
Special Damages (Economic Loss)
Although injury to reputation is presumed, a plaintiff may also claim for actual financial or economic loss caused by the defamation, but these must be specifically pleaded and proven. Special damages might include:
Loss of business profits
Loss of employment or specific opportunities
Other quantifiable financial harm flowing from the defamatory publication
For example, if a defamatory article caused a professional to lose clients or be fired, the plaintiff can claim those income losses as special damages – with evidence such as financial records or expert testimony to establish the causal loss.
Special damages require a clear causal link between the defamation and the loss; courts will scrutinize whether other factors contributed. The plaintiff must establish, on the balance of probabilities, that:
The defamation was a substantial cause of the loss
The loss would not have occurred "but for" the defamation
There were no intervening causes that broke the chain of causation
In practice, large economic loss claims can far exceed the general damages. For instance, in the case of Wilson v Bauer Media (Vic), the plaintiff initially received $3.9 million in special damages for lost film roles on top of general damages, though this was later overturned for lack of sufficient proof. The Victorian Court of Appeal found Wilson's evidence of lost opportunities to be too speculative and lacking in concrete evidence that specific contracts were lost because of the defamation.
Similarly, in Rayney v State of WA, a WA case, a substantial portion of the $2.6 million award represented proven lost income (approx. $1.78 million) after the defamatory statement impaired the plaintiff's ability to work as a barrister. The court in Rayney was satisfied with the causal connection because there was clear evidence of a thriving practice before the defamation and a dramatic decline immediately after.
Special damages are not capped by the statute (the statutory cap applies only to non-economic loss), but proving them requires convincing evidence (e.g. testimony, documents, expert analysis). It should be noted that if a plaintiff fails to prove a claimed economic loss was caused by the defamation, the court will refuse that part – as happened on appeal in Rebel Wilson's case (no evidentiary basis for career damage) and in Jensen v Nationwide News (WA) where a former MP's claim that defamation cost him preselection was rejected as speculation.
Australian law also allows compensation for a more nebulous "general loss of business goodwill" as part of general damages in some cases – an "Andrews v John Fairfax" claim – but outright lost earnings should be claimed specifically.
Statutory Framework in WA (Defamation Act 2005)
WA's Defamation Act 2005 (which mirrors the original uniform defamation provisions) places important statutory controls on damages, supplementing the common law. These include a cap on non-economic damages, rules about how a defendant's state of mind is considered, and specified mitigating factors.
Because WA has not adopted the 2021 amendments to the Model Defamation Provisions, the pre-2021 regime continues in WA, which notably allows a different treatment of the cap when aggravated damages are warranted (discussed below).
Rational Relationship (Proportionality)
Section 34 (WA) provides that the court, in determining damages, must ensure the amount awarded is "appropriate and rationally related" to the harm sustained by the plaintiff. This echoes the common law principle from Carson and related cases, effectively codifying that damages should not be grossly excessive relative to the injury.
A judge should calibrate the award to the gravity of the defamation and its actual impact, preventing over-inflated awards. This principle guards against unpredictable jury awards (noting that in WA, damages are always assessed by the judge, even if a jury determines liability: Defamation Act s 22(3)).
Cap on Non-Economic Loss
Section 35 imposes a statutory cap on damages for non-economic loss (general + aggravated damages combined) in defamation proceedings. When the uniform law commenced in 2005, this cap was set at $250,000, and it is adjusted annually for inflation (by reference to average weekly earnings).
Importantly, under the WA Act (pre-2021 version), this cap is not absolute in cases of aggravation. Section 35(1)–(2) states that the cap applies "unless the court orders otherwise" in cases warranting aggravated damages.
In other words:
If there are no aggravating factors requiring uplift, the maximum general damages a plaintiff can receive is the cap
The maximum is to be reserved for the worst possible case of defamation
If the defamation is less serious, the award should be scaled down proportionately
If, however, the court finds that aggravated damages are warranted, it may exceed the cap
WA courts have interpreted this to mean that once aggravating circumstances are established, the statutory limit "no longer applies" to the assessment. For example, in Rayney v State of WA (No 9) [2017] WASC 367, the WA Supreme Court awarded the plaintiff $846,000 for non-economic loss, far above the usual cap, explicitly because the defendant's conduct justified aggravated damages. Likewise, in Wilson v Bauer Media [2017] VSC 521, the Victorian court (applying the same pre-2021 law) awarded $650,000 in general and aggravated damages, exceeding the cap of ~$389k due to aggravation. These approaches were approved on appeal (e.g. Bauer Media v Wilson (No 2) [2018] VSCA 154 confirmed that under the old s 35 an aggravated damages case permits exceeding the cap).
It should be noted that other jurisdictions have changed this approach in 2021 reforms – for instance, NSW and Victoria now treat the cap as a "hard cap" and require judges to separately itemize aggravated damages without exceeding the cap for the basic award. However, those changes do not apply in WA.
Therefore, in WA as of 2025, a single lump-sum award is given for general + aggravated damages, and if aggravation is present, that lump sum can surpass the normal cap. If no aggravation, the cap is a firm ceiling.
The cap applies per proceeding (one cap total no matter how many defamatory publications or imputations sued on in that case), but does not restrict any separate award of special (economic) damages or interest.
Where multiple plaintiffs sue in a single proceeding, there is a question about whether one cap applies collectively or whether each plaintiff has their own cap. The better view, although not definitively settled in WA, is that each plaintiff is entitled to their own cap, as each has a separate reputation to vindicate.
Disregard of Defendant's State of Mind (Malice) Except for Aggravation
Section 36 provides that the defendant's state of mind (e.g. intent, malice) is generally irrelevant to the amount of damages, except to the extent it affects the plaintiff's harm. This means a court should not punish a defendant for maliciously defaming someone by inflating damages beyond the harm caused – unless that malice actually exacerbated the injury to the plaintiff's feelings or reputation.
Section 36 essentially instructs judges to focus on the impact on the plaintiff, not the moral blameworthiness of the defendant, except insofar as blameworthiness aggravated that impact.
No Exemplary Damages
Section 37 explicitly prohibits exemplary or punitive damages in defamation cases. This is a clear statutory rule binding in WA. Any claim or suggestion for an award to "make an example" of the defendant is impermissible. The court's attention is confined to compensating the plaintiff. (For completeness: this was a uniform policy decision to avoid media defendants being hit with punitive sums, given the compensatory cap and aggravated damages sufficing to address misconduct.)
Mitigating Factors (Statutory)
Section 38 enumerates certain factors a defendant may rely on to mitigate (reduce) damages. Evidence of these factors can be led by the defence to persuade the court to award a lower sum. The listed factors are:
(a) that the defendant issued an apology to the plaintiff about the publication;
(b) that the defendant published a correction or retraction of the defamatory matter;
(c) that the plaintiff already recovered damages for defamation over another publication of similar imputations (e.g. the plaintiff sued another person over the same rumor and got compensation);
(d) that the plaintiff has brought other proceedings for defamation over publication of the same imputations; or
(e) the plaintiff has received or agreed to receive compensation from another source for a publication of the same imputations.
These provisions aim to prevent double-compensation for the same reputational harm and encourage prompt apologies/corrections. Section 38(2) makes clear this list is not exhaustive – any other circumstance that justly mitigates damage can be taken into account.
For example, evidence that hardly anyone believed the defamation, or that the plaintiff already had a poor reputation, or that the publication was very limited, can all lead to a reduced award (these are common law mitigatory factors).
Similarly, if a defendant can show the truth of part of the defamatory imputation (partial justification) or other imputations that lessen the sting (contextual truth), the damages for the remaining falsehoods may be reduced. An illustration is Holt v TCN Channel Nine (2012/2014 NSW cases) where a partially justified broadcast led to nominal damages (only $5,000) for the plaintiff on the unproven part.
In this case, the court found that several serious imputations of wrongdoing against a NSW police officer were substantially justified, while only some minor imputations remained unproven. The court reasoned that the "sting" of the publication had been largely justified, and thus only nominal damages were warranted for the relatively minor unproven imputations. This case provides valuable guidance on how courts approach damages when the most serious aspects of a defamatory publication are proven true, while only less significant assertions remain unjustified.
Multiple Causes of Action – Single Sum
Section 39 allows that if the plaintiff succeeds on more than one cause of action (e.g. several defamatory publications or distinct defamatory imputations in the same trial), the court may assess a single sum of damages for all of them. This avoids "double dipping" when essentially the same harm is repeated or compounded by multiple publications.
This principle also applies to the "multiple publication rule" - where essentially the same defamatory matter is published on multiple occasions or across different platforms (such as in print and then online). Courts will not multiply damages merely because of multiple publications of substantially the same material. Instead, multiple publications of the same matter are typically treated as going to the extent of publication and potentially as aggravating factors.
WA courts often take this approach, awarding one lump sum covering all defamatory matters against a defendant in a proceeding. (If there are multiple defendants, each is separately liable for their publication, but double recovery from overlapping harm is avoided via mitigation as above.)
WA's Non-Adoption of 2021 Reforms
It bears emphasis that WA has not (as of 2025) implemented the "Stage 1" defamation amendments that commenced in July 2021 in NSW, Victoria, Queensland, etc. Those amendments introduced a "serious harm" threshold as an element of the cause of action and made the cap on damages a "hard cap" requiring separate assessment of aggravated damages.
In WA, no statutory serious harm requirement applies (though trivial cases can still be knocked out by the existing defence of triviality under s 33, which remains available). And as noted, WA still operates under s 35's original wording, meaning aggravated damages are folded into the one assessment which may exceed the cap.
The practical consequences of this distinction include:
Plaintiffs in WA need not prove serious harm as an element of the cause of action
There is a lower threshold for smaller claims in WA
While the defense of triviality remains available in WA, the burden is on the defendant rather than the plaintiff
Claims that might be struck out early in NSW for lack of serious harm might proceed to trial in WA
WA courts can and do look to interstate decisions for guidance on uniform provisions, but must be mindful of differences in amended jurisdictions after 2021.
Corporate Plaintiffs
For corporate plaintiffs, specific considerations apply:
Under s.9 of the Defamation Act 2005 (WA), corporations with 10 or more employees or formed for profit generally cannot sue for defamation
Smaller corporations (with fewer than 10 employees and not related to another corporation) can sue, but are subject to the same damages regime as individual plaintiffs
The statutory cap applies equally to corporate plaintiffs suing for non-economic loss
Corporate plaintiffs are more likely to focus on provable economic loss (special damages) than general damages, given the nature of corporate reputation
This contrasts with reformed jurisdictions where additional requirements may apply to corporate plaintiffs.
Pleading and Proving Damages in Practice
Pleading Damages
In defamation pleadings (typically the Statement of Claim), the plaintiff should include a claim for damages and plead relevant particulars of damage. General damage to reputation and feelings is usually pleaded in broad terms (since it is difficult to quantify exactly). For example, a pleading may state that "the plaintiff has been gravely injured in his reputation, has suffered hurt and embarrassment, and has thereby suffered damage."
Because general damage is presumed at law once defamation is established (in WA, absent the new serious harm test), the plaintiff need not itemize every consequence. However, if the plaintiff seeks aggravated damages, they must plead the facts and matters relied on to aggravate the damage. This could include allegations that:
The defendant knew the statement was false or was reckless
The defendant's conduct was improper (e.g. failing to apologize, or repeating the defamation)
The defendant's conduct in the litigation (such as pleading an untenable truth defence or displaying contempt toward the plaintiff) has aggravated the hurt
The material facts supporting aggravated damages claims must be included in the Statement of Claim, though further details can be provided in particulars. Failure to properly plead aggravating circumstances may prevent the plaintiff from relying on those matters at trial or in final submissions.
It is common to see a separate paragraph in the Statement of Claim headed "Aggravation of Damage" outlining such factors (for instance: "The defendant has not retracted the defamatory statements and, by pleading justification without basis, has aggravated the injury to the plaintiff's feelings."). These particulars put the defendant on notice and lay the groundwork for the court to consider an uplift if those facts are proven.
If the plaintiff claims special damages or economic loss, these must be clearly identified and quantified in the pleading (or via particulars).
For example, a plaintiff who lost their job or lost $100,000 in business revenue due to the defamation must say so and eventually provide particulars (e.g. lost clients, contracts cancelled, etc.). If future economic loss is claimed (such as loss of earning capacity or opportunities), the plaintiff should plead the basis (e.g. "the plaintiff will likely lose income in future as a result of reputational harm, estimated at $X") and later support it with evidence (often expert evidence). Courts are cautious with speculative claims – the plaintiff should be prepared with evidence like testimony from employers or industry experts to show the defamation caused measurable financial harm.
Pre-trial Steps and Procedures
Several procedural steps relating to damages assessment are important in defamation proceedings:
Particulars of damage: After filing the Statement of Claim, the plaintiff may be required to provide further particulars of damage, especially for special damages claims. These should detail the specific losses alleged and how they were calculated.
Interrogatories about financial loss: Defendants may serve interrogatories seeking details of alleged financial losses, particularly where these form a substantial part of the claim.
Evidence gathering: Plaintiffs should gather evidence supporting damages claims early, including:
Witness statements demonstrating reputational harm
Financial records showing changes in income or business performance
Medical evidence for any psychological impact
Expert reports for economic loss projections
Offers to make amends: The timing of offers to make amends is critical. In WA, these can be made until 28 days after a defence is served (s.14) but only if not valid concerns notice was issued. If a valid concerns notice was issued, then they must be served within 28 days of the concerns notice.
Mandatory mediation: In WA, almost all defamation cases are referred to mandatory mediation before trial, where damages quantum is typically a central issue.
Unlike in reformed jurisdictions, WA does not have a mandatory concerns notice requirement before commencing proceedings.
Evidence and Proof
While general damage to reputation is presumed, the extent of damage is very much a fact question for the court. Therefore, plaintiffs typically bolster their damages claim with evidence:
Plaintiff's own testimony
The plaintiff will usually testify about how the defamation affected them – e.g. hurt feelings, humiliation, anxiety, depression, or loss of social standing. They might describe being shunned or receiving hate messages after the publication, or the personal distress it caused.
In WA's Armstrong v McIntosh case (2020), for example, the plaintiff (a former newspaper editor) gave evidence that he was "horrified and extremely hurt" by text messages calling him a liar and "evil," and was particularly distressed that a priest had been told he was evil. This kind of testimony helps the judge gauge the subjective impact on the plaintiff's feelings.
Reputation evidence
The plaintiff might call witnesses (friends, colleagues) to testify that the defamatory publication lowered the plaintiff in their estimation or community. Or evidence might show the plaintiff's general reputation was good (enhancing the damage caused by a false smear).
Conversely, a defendant may introduce evidence of the plaintiff's bad reputation only with limitations – generally a defendant may adduce evidence of the plaintiff's general reputation in mitigation (e.g. that it was already poor in the relevant community, so the incremental harm was slight), but not specific misconduct unless it's directly relevant or falls under a defence like truth. Any such evidence must be handled according to rules (e.g. giving particulars of "bad reputation" pre-trial if intending to adduce it).
Publication reach and impact
Evidence about how widely the defamatory matter was published is crucial. Circulation figures, internet page views, or social media shares may be presented to show the scope of dissemination. The larger the audience, typically the greater the potential reputational harm (and thus higher damages).
For instance, a defamatory article in a national newspaper or a story that went "viral" online will justify a higher award than a private email or a one-to-one communication. In Rebel Wilson's case, the trial judge noted the "global reach" of the defamatory articles (published in magazines and online worldwide) and deemed the extent "unprecedented in this country," which supported a high award. Similarly, in Rush v Nationwide News (2019), the fact that the allegations (of inappropriate behavior) were splashed across national newspapers and repeated online contributed to the Federal Court's award of $850,000 in non-economic damages to actor Geoffrey Rush.
Internet and Social Media Publications
When assessing damages for online defamation, courts consider several particular factors:
The "grapevine effect": Courts recognize that in the digital age, defamatory material may spread beyond the initial publication through sharing, search engines, and archiving. In Crosby v Kelly [2012] FCAFC 96, the Federal Court acknowledged that the "grapevine effect" is particularly potent for internet publications, which can be spread instantaneously worldwide.
Global reach vs. actual readership: While online publications have potentially global reach, courts will consider evidence of actual readership (such as page views, unique visitors, time spent on page) when available. In Wilson v Bauer Media, the global reach of the publications was a significant factor in the substantial damages award.
Permanence of online publications: Unlike traditional print media, online publications may remain accessible indefinitely unless actively removed. In Trkulja v Google LLC [2018] HCA 25, the High Court recognized that the ongoing availability of defamatory material online can continually harm reputation. This permanence may justify higher damages unless the defendant takes steps to remove the material.
Social media audience assessment: For social media defamation, courts consider factors like:
Number of followers/friends who potentially saw the post
Evidence of shares, comments, or reactions
Whether the post was public or restricted to a specific audience
Duration the post remained visible before removal
Identifying publication to particular individuals: In Voller v Nationwide News Pty Ltd [2019] NSWSC 766, the court considered not only total audience size but the importance of readership among specific people who knew the plaintiff, as their opinions particularly mattered to his reputation.
Proof of economic loss
If claiming special damages, the plaintiff must produce documentation or testimony establishing the loss and that it was caused by the defamatory publication. This could include:
Financial records (showing drop in income post-publication)
Correspondence (clients cancelling contracts citing the publication)
Expert analysis (for anticipated future losses, an economist or industry expert might project how the defamatory allegation will limit the plaintiff's earning capacity)
In Rayney v WA, the plaintiff (a barrister) proved through income records and client testimony that his practice suffered dramatically after he was publicly named a murder suspect, and the court awarded him ~$1.78M for lost earnings in the years following the defamatory press conference.
On the other hand, unsupported assertions of loss will not suffice – e.g. Rebel Wilson's initial special damages for lost film roles were overturned because she did not have solid evidence linking the defamatory articles to the loss of specific movie contracts. WA courts apply the ordinary rules of proof and causation: the defamation must be a cause of the loss (not necessarily the sole cause, but a significant cause).
If a plaintiff alleges a consequential loss like losing an election or job, the court may require proof that, on the balance of probabilities, it was the defamatory allegation (and not other factors) that led to that outcome. In Jensen v Nationwide News [2019] WASC (Quinlan CJ), a former MP claimed that defamatory articles contributed to his loss of preselection; the Chief Justice, however, examined the political context and found he likely would have lost preselection anyway, so no damages were awarded for that alleged consequence.
Aggravation evidence
To actually obtain aggravated damages, the plaintiff must prove the aggravating conduct they pleaded. This could involve showing the defendant's knowledge or recklessness, such as internal emails revealing the publisher knew the story was false but ran it regardless, or proving that the defendant refused to apologize or persisted in the defamation.
Sometimes the circumstances of publication themselves are aggravating – e.g. a defamatory statement made in a particularly insulting manner or timing (perhaps designed to maximize embarrassment).
Another common source of aggravation is the defendant's conduct during litigation: if the defendant asserts a defence of truth (justification) and then fails to establish it, courts often view that as adding insult to injury – essentially the plaintiff had to endure the defendant maintaining the defamatory sting was true, only for it to be unproven. This can entitle the plaintiff to aggravated damages in addition to the base amount.
Australian courts have repeatedly said that an unfounded plea of justification is a classic example of conduct warranting aggravated damages (as it forces the plaintiff to relive and refute the allegation in court). For instance, in Rush's case, the defendant's aggressive pursuit of a truth defence (which failed) and other high-handed conduct led the court to describe the publication as a "sensationalised tabloid crusade" with "aggravating features of a most serious kind," justifying the high aggravated component.
In Armstrong v McIntosh (WA), Justice Le Miere found the defendant's refusal to apologize when asked, and the fact that the defendant sent further defamatory text messages even after the dispute, were aggravating factors that merited an increase in damages. The judgment explicitly included $1,500 as aggravated damages (out of a $6,500 total) for those factors.
The plaintiff should present evidence of any such conduct – e.g. correspondence showing an apology was refused, or the content of subsequent publications, or discovery documents indicating knowing falsehood. It is then for the court to decide if those factors caused additional harm (such as intensified humiliation or prolonged hurt) to warrant an uplift.
Mitigation evidence (defendant)
Conversely, the defendant can lead evidence of mitigating circumstances. This might include showing that an apology or retraction was published promptly (the text of apology and where/when it was published), or that the plaintiff already received compensation or satisfaction elsewhere for the same matter (e.g. a settlement with another publisher).
The defendant might also show that the defamatory impact was limited – for example, that the publication was sent only to one person or a small group, or that the allegation was so absurd that people did not believe it, thereby minimizing actual reputational harm. In Armstrong's case, although the words were harsh, the judge considered that "minimal reputational harm" was caused because the defamatory texts were sent privately to one individual (and later a few more via additional texts). This led his Honour to keep the damages modest (indeed, $5,000 plus $1,500 aggravated).
The defendant could also call witnesses to say "I heard the statement but thought nothing of it" or "I did not believe it," to show the reputation wasn't much damaged in their eyes. However, defendants are bound by the pleadings rules too – for instance, if they intend to argue the plaintiff had a bad reputation already in a relevant aspect (to mitigate damage), they should have delivered particulars of that bad reputation before trial. They cannot ambush the plaintiff with unpleaded assertions of unrelated misconduct.
In WA, damages are assessed by the judge alone. The judge will weigh all this evidence and make findings on the extent of harm. It's worth noting that WA abolished the distinction between libel and slander, so it generally doesn't matter if the defamation was written or spoken – the same approach to damages applies (though spoken defamation may often have smaller audience unless broadcast, which naturally affects damages).
The Statutory Cap and Court Approach
The statutory cap on non-economic loss (s 35 Defamation Act) is a critical factor in Australian defamation damages. To reiterate, in WA for causes of action before any 2021 reform, the cap represents the upper limit for general damages in a routine case. Courts have made clear that this maximum should only be awarded in a most serious case.
In practice, this means for an ordinary defamation (even a serious one) without aggravating factors, the award should not exceed the cap and should usually be well below it unless the case is among the worst imaginable. Judges often analogize the cap to the top of a range or a scale. For example:
A fleeting defamation with minor harm might warrant tens of thousands
More sustained or harmful defamations (but still not the worst) might fall in the mid six-figure range
But only the gravest allegations with wide publication would approach the cap
In determining a figure, courts look to comparative cases to ensure consistency. This practice has effectively created a range or tariff for defamation damages under the capped regime. The Judicial Commission of NSW has noted analysis that most defamation awards (for non-media publications) tend to be relatively modest, whereas high-profile media cases can be larger (due to broader publication and sometimes aggravated conduct).
For instance, awards in the range of $300k–$400k (close to the cap) have been given for very serious defamations: Dennis Jensen's case in WA (2019) – defamatory articles implying misconduct by a sitting MP – resulted in $325,000 general damages (including an aggravated component), reflecting serious hurt and some aggravation (no apology) but still under the cap.
On the other hand, truly egregious cases have seen courts willing to exceed the cap (under the older law) when aggravation exists: Rayney (WA 2017) at $846k and Rush (Fed Ct NSW 2019) at $850k are examples of awards roughly double the cap at the time, due to the extreme gravity and aggravating features. Those cases involved allegations of murder and sexual misconduct respectively – reputational ruinous claims – with serious misconduct by defendants (police naming Rayney without basis, tabloid indifference to truth in Rush's case).
By contrast, minor or localized defamations often result in very low damages, sometimes nominal. Australian courts have not shied from giving only token or nominal damages when the circumstances warrant – for example, Beaven v Fink [2009] NSWDC 218 awarded just $2,500 where a slander was made to one person and was relatively trivial. Similarly, a defamation that causes virtually no reputational harm (perhaps because the audience did not take it seriously, or the plaintiff's reputation was already bad) might yield a nominal award, described as "derisory damages".
It's important for judicial officers to articulate how the chosen figure relates to the statutory framework. In a WA case without aggravation, the judge might explicitly state: "Taking into account the plaintiff's hurt and the extent of publication, but also that this case is far from the worst category, I assess general damages at $100,000, well below the maximum prescribed by the Act, reflecting a proportionate sum" (for example).
If aggravated damages are in play, the judge in WA currently will likely state that they find circumstances warranting aggravated damages and thus the cap is lifted, and then give a lump sum. In states like NSW/Vic post-2021, a judge must now separately quantify an "aggravated damages" component (which is not capped, while the base compensatory is capped). Though WA hasn't followed that formula, WA judges may still find it helpful as a sense-check to consider what portion of their lump sum is attributable to aggravation.
In Armstrong v McIntosh, for instance, Le Miere J effectively did this: he awarded $5,000 in basic damages and $1,500 specifically for aggravation, which is akin to the separated approach (albeit not required by WA law).
In summary, the cap guides the upper boundary and ensures consistency and restraint in defamation awards. WA judges remain guided by previous awards to maintain proportionality. The existence of the cap has generally tamped down what used to be more erratic, sometimes higher jury awards decades ago. Now, multi-million general damage awards are unheard of (they only occur when adding special damages).
The largest Australian defamation damages sums to date have come from adding proven economic loss: e.g. Rebel Wilson's initial $4.7M (slashed to $600k when her economic loss was disallowed), or the Wagner brothers in Qld (each awarded over $1M including some special damage) – but pure general damages rarely exceed the cap by much even with aggravation. A High Court or WA Court of Appeal judgment would be binding on how to apply the cap, but to date the approach from other states' appellate courts (persuasive in WA) has been followed, as seen in Rayney and Jensen.
Interest on Damages
In addition to the damages award itself, plaintiffs in defamation proceedings may be entitled to interest:
Statutory basis: The power to award interest derives from s.32 of the Supreme Court Act 1935 (WA) and equivalent provisions for lower courts, which allows the court to award interest on damages at such rate as it thinks fit.
General approach: Interest is typically awarded from the date of publication (when the cause of action accrued) to the date of judgment. Courts consider that the plaintiff was deprived of the use of the money that should have compensated them during this period.
Differential rates: Courts may apply different rates of interest to different components of damages:
General damages: Often calculated at a rate reflecting bank term deposit rates
Special damages: May be calculated according to when the economic losses were incurred, sometimes with different rates for past versus ongoing losses
Significant impact: Interest can substantially increase the total award, particularly in cases that take years to reach judgment.
Judicial discretion: Courts retain discretion to adjust interest rates or periods if justice requires, such as where there have been significant delays attributable to one party.
The interest component should be separately identified in judgments but is not subject to the statutory cap on damages.
Mitigating Factors and the Effect of Apologies & Offers
Mitigation of damages is a critical practical aspect, as it can dramatically reduce the defendant's exposure if handled well. Under both statute and common law, certain actions by the defendant can lessen the damages:
Apology
A timely and sincere apology is one of the most potent mitigating factors. As noted, evidence that the defendant apologized to the plaintiff for the publication is admissible and will count in mitigation. An apology can repair some of the harm by vindicating the plaintiff (acknowledging the error) and soothing hurt feelings.
Under s 20 of the Act, an apology does not constitute any admission of liability and is not admissible to prove fault, meaning defendants can apologize without fear that doing so will be used against them on liability. This protection encourages early apologies.
In practice, if a defendant publishes a prominent apology or correction soon after the defamatory material, the court may significantly reduce the damages – perhaps to a nominal amount if the apology undid much of the harm. For example, if a newspaper promptly corrects a false story on the next day and apologizes, a plaintiff who still sues might only get a small sum since the vindication has largely been achieved outside court.
Conversely, a failure to apologize can deprive the defendant of this mitigation and even aggravate damages (the court may view the refusal as evidence of arrogance or lack of remorse). In Jensen's case, Chief Justice Quinlan noted the defendants' failure to apologize as one justification for aggravated damages. Likewise, in Armstrong, the defendant's refusal to apologize when requested in 2017 was treated as aggravating conduct.
Thus, while a defendant has the right to defend the case, strategically an early apology can cap the potential damage. It's worth noting that under s 38(2) nothing limits what can be considered, so even an informal apology or regret expressed (if a formal apology wasn't made) might still weigh in the defendant's favor slightly.
Offer to Make Amends
The Defamation Act provides a formal mechanism (Part 3, Division 1) for a defendant to make an Offer to Make Amends. If the publisher (defendant) receives a concerns notice or otherwise becomes aware of the defamation, they can offer to make amends, which may include a correction, apology, and compensation.
If a plaintiff unreasonably refuses a reasonable offer, the Act provides a defence under s 18: it is a defence if the defendant made an offer as soon as practicable, was ready and willing to implement it, and in all the circumstances the offer was reasonable. In effect, if the defendant did everything that a court would later consider appropriate (short of litigating) and the plaintiff rejected it, the plaintiff's claim can be defeated entirely. This is a strong incentive for defendants to make amends and for plaintiffs to accept reasonable offers.
Even if the strict requirements of the s 18 defence are not met, a generous offer to make amends can later influence damages or costs. For instance, if the defendant offered a substantial sum and apology, and the plaintiff fought on but ultimately won a smaller amount or not much more, the court could consider that when assessing the necessity of litigation (though technically s 38 doesn't list offers, a rejected reasonable offer might be seen by a judge as part of "any other mitigating factors" or be dealt with in costs via s 40).
It's important to remember that evidence of the offer and communications around it is not admissible on liability (to protect the "without prejudice" nature, per s 19), but it is considered on a s 18 application or on costs.
In WA, where the 2021 reform of mandatory concerns notice isn't in effect, an offer to make amends is still highly relevant.
If the plaintiff unreasonably insists on going to trial, you may invoke s 18 to avoid liability completely, or at least the court might later be less inclined to give aggravated damages (since you tried to right the wrong). An illustration is not readily available in published WA case law (offers to make amends are often dealt with in interlocutory steps or settlement), but the regime is similar across states.
Other Mitigating Conduct
Apart from apology and amends, a defendant can mitigate damages by publishing a correction (even without an apology). A correction that reaches the same audience and refutes the defamatory content can reduce the continuing harm (this is explicitly listed in s 38(1)(b)).
Also, if the plaintiff has already vindicated themselves elsewhere – say, they sued another outlet or person about the same defamatory allegations and won damages – the defendant in a subsequent case can argue the plaintiff's reputation has been substantially restored or compensated by that, so any new award should be lower (s 38(1)(c)-(e) cover scenarios of other proceedings or compensation for the same matter). The logic is to avoid "double recovery" and also to account for the fact the worst damage might have been mitigated by the earlier judgment.
Additionally, if a defendant can show that the plaintiff's own actions exacerbated their damage, this can indirectly affect the assessment. For example, if a plaintiff unnecessarily republishes the defamation (spreading it further under the guise of responding to it) or if they fail to take reasonable steps to mitigate their loss, a court might reduce damages on general principles.
It's also relevant to note that costs orders in defamation can tie into damages outcomes. Under s 40, if a plaintiff unreasonably refused a settlement offer (including an offer of amends), the court may deprive them of costs or even order them to pay the defendant's costs from a certain point. Similarly, if a defendant unreasonably failed to apologize or make an offer, that can influence costs after a plaintiff's success. So, mitigation isn't just about the damages figure but can affect the overall financial consequences.
In summary, mitigating factors like apologies and offers are highly relevant in defamation practice. From a bench perspective, a judge will look at whether the defendant took steps to reduce the harm (and give credit in the award if so), and whether the plaintiff effectively already got what they needed (vindication) through other means. A plaintiff who has an early apology and still litigates for a large sum may be viewed less sympathetically on damages. On the other hand, a defendant who stonewalls and provides no apology or even doubles down may find themselves at the receiving end of aggravated damages, as multiple cases have shown.
Comparative Authority: WA, NSW, and Victoria
Because WA's defamation statute is part of a (mostly) uniform scheme, decisions from other jurisdictions (NSW, Victoria, etc.) on analogous provisions are persuasive in WA courts. The WA Supreme Court often looks to NSW Court of Appeal or Victorian Court of Appeal guidance on damages to promote consistency, though of course WA is not bound by interstate appellate decisions.
Binding authority for a WA court on damages would include High Court decisions (which apply nationally) and any WA Court of Appeal decisions. To date, WA has few Court of Appeal pronouncements on the quantum of defamation damages (the Rayney matter settled at the WA Court of Appeal stage on quantum issues, with the appeal on damages dismissed). Thus, WA judges routinely consult leading NSW cases for principles.
For instance, the approach to the statutory cap and aggravated damages was informed by the Victorian Court of Appeal in Bauer Media v Wilson (2018) and the Queensland Supreme Court in Wagner v Harbour Radio (2018), which WA judges have followed. Similarly, principles on when nominal damages are appropriate, or how to treat partial justification, have been elaborated in NSW decisions like Holt v Channel Nine and Ali v Nationwide News (the latter discussing claims for injury to feelings and health). WA courts would treat those as persuasive.
Notably, the High Court's statements in defamation cases (even if pre-Act) remain binding: for example, the High Court in Australian Broadcasting Corp v O'Neill (2006) noted that trivial defamations might attract only "derisory" damages – a point any trial judge would heed. Another High Court case, Radio 2UE v Chesterton (2009), while mainly about what is defamatory, also touched on the idea that damages can serve as a kind of vindication. These overarching statements guide WA courts.
When WA authority is limited on a point, a judge should clearly distinguish between binding precedent and persuasive precedent. For example, NSW Court of Appeal decisions on uniform defamation law (like Carolina v Fairfax or Bodsworth v ABC – hypothetical names for illustration) are not binding in WA, but if a WA case is directly on point and no contrary WA authority exists, a WA judge would likely follow the reasoning unless convinced it's wrong, to maintain national uniformity.
This is often explicitly stated in judgments: e.g. "There is no WA authority on [issue], but the NSW Court of Appeal in X v Y [20XX] NSWCA __ has considered the equivalent provision. Given the uniform legislation, and absent any reason to depart, I find that reasoning persuasive." Practitioners in WA should therefore be prepared to cite interstate cases on damages, especially NSW CA or Vic CA decisions, while acknowledging they are persuasive only.
Differences post-2021
One must be cautious with the recent divergence. For publications from 1 July 2021 onward, NSW and others have a serious harm threshold and the new cap regime. WA publications do not. This could lead to different outcomes. For example:
A plaintiff suing in WA might succeed on a claim that might have been struck out in NSW for no serious harm
NSW now explicitly requires "most serious case" to get the cap amount and treats the cap as a "scale" even if aggravated
A WA judge might still find NSW judgments helpful for understanding the policy, but would apply WA's statute as written
If a practitioner cites a NSW decision from 2022 on damages, the WA judge will need to consider whether that decision was applying the new law or the old – a crucial distinction. For example, a NSW District Court case in 2022 (Doak v Birks [2022] NSWDC 625) applied the amended Act and separately quantified aggravated damages. In WA, that exact approach isn't required, though it might still be instructive to see how much was deemed aggravated versus base.
Interstate comparison examples
In NSW, many defamation awards in recent years (pre-2021) clustered around certain figures: e.g. Ceritifi v Aus Media (hypothetical) might award $300k for a serious defamation to a professional with some aggravation; Mickle v Farley (2013 NSWDC) awarded $105k to a school teacher defamed by a student on Facebook (with aggravated damages because the student showed no remorse). Those cases set reference points that WA lawyers often refer to.
In Victoria, the Rebel Wilson saga is a prominent illustration: trial judge John Dixon J's record-setting $650k general + $3.9M special, and the Court of Appeal's reduction to the statutory cap (~$600k total), clarified that without proven economic loss a plaintiff is confined to the capped compensatory sum even if aggravated (since they allowed $600k which was roughly the cap at the time, implicitly treating that as the appropriate upper-end for her case). A WA court, not bound by the Vic decision, might still find the reasoning persuasive on how to assess evidence of career loss (the Vic CA found Wilson's evidence speculative).
In Queensland, the Wagner v Harbour Radio defamation case (2018) saw four plaintiffs (the Wagner brothers) each awarded general and aggravated damages of $350k (the cap, as the judge found it was a most serious case for each) plus some special damages for business loss, leading to total awards around $400k+ each. That case shows how multiple plaintiffs are handled – each has their own cap and award since each reputation is separate (the question of whether one cap applies to multiple plaintiffs was noted as unresolved, but logically each plaintiff's claim is separate). A WA court would likely treat each plaintiff independently as well.
In summary, WA courts strive for harmony with other Australian jurisdictions in defamation damages, given the largely uniform law. Persuasive authorities (especially appellate) from NSW and Victoria carry considerable weight, and WA judges often adopt their reasoning for analogous statutory provisions. However, where WA law diverges (due to no reforms), the WA courts will apply the WA Act even if it yields a different result. Practitioners should clearly indicate which authorities are binding and which are persuasive, and if relying on interstate cases, mention any differences in the statutory context.
Illustrative Case Studies
To ground these principles, it is useful to examine a few illustrative cases (WA and other jurisdictions) and see how damages were assessed on the facts:
Armstrong v McIntosh (No 4) [2020] WASC – "Private insults in text messages"
This WA Supreme Court case involved defamatory text messages exchanged in a family feud context. The defendant sent four texts to one individual, calling the plaintiff (a former newspaper editor) a "liar" and suggesting he was "evil". Later, the defendant sent further texts to another person calling the plaintiff a "f***head" and "low-life scum" and falsely accusing him of tax fraud. The audience of the defamation was very limited (essentially two people).
The plaintiff testified to feeling horrified, extremely hurt, and concerned that community figures (like the priest mentioned in the texts) would think badly of him.
Damages: Justice Le Miere found the words defamatory but noted the minimal reputational harm given the narrow publication. He also found the defendant's conduct aggravated the harm – specifically, these were not mere angry outbursts but deliberate statements, the defendant refused to apologize when asked, and he doubled down with additional defamatory texts, which the judge said aggravated the harm.
The court awarded a total of $6,500 in damages. Of that, $1,500 was attributed to aggravated damages for the refusal to apologize and the further texts (aggravating conduct). The remaining $5,000 was general compensatory damages for the hurt and minimal reputational injury. An injunction was also granted to restrain any repetition.
Significance: This case exemplifies a small-scale defamation outcome – a modest award reflecting limited harm. It shows the court's reasoning in quantifying a low award: even though the words were nasty, the impact was contained (one friend's opinion) and the plaintiff's reputation in the wider community was likely unaffected, hence only nominal/general damages. It also demonstrates how even a refusal to apologize can lead to a (small) aggravated component in WA. The authority of this WA decision is binding on lower courts and persuasive elsewhere, illustrating that not every defamation yields a windfall – context matters greatly.
Jensen v Nationwide News & Anor [2019] WASC (Quinlan CJ) – "Media allegations against a politician"
Dr Dennis Jensen, a former federal MP, sued The Australian newspaper (Nationwide News) over two articles published days before a pre-selection vote. The first article discussed an old novel Jensen wrote (with risqué content) and insinuated misuse of his MP letterhead in pitching it; the second article revealed personal details implying he had left his marriage for another woman, which was misleading. These publications were in a national newspaper and online, so readership was significant, particularly among political circles.
The court (Chief Justice Quinlan) found the second article defamatory (imputing he betrayed his family) and not substantially true. Jensen argued the articles contributed to his loss of preselection (political career harm).
Damages: The Chief Justice awarded $325,000 in damages. He found aggravating factors: notably, the defendants had not apologized for the false claims, and the manner of reporting had some elements of irresponsibility (e.g. not verifying the letter's authenticity, which was the basis of a misleading statement). The judge therefore considered an uplift for aggravation appropriate.
However, he dismissed Jensen's claim of economic loss (losing preselection and his seat) because evidence showed he likely would have lost the contest regardless (the court wasn't satisfied the defamation caused that outcome). Thus, the $325k was entirely non-economic (reputational/feelings) damages, within the cap range at the time.
Significance: This WA case (by the Chief Justice) is a high-profile example of substantial but not maximum damages. It underscores that even without proven economic loss, a few defamatory articles can lead to hundreds of thousands in general damages when the imputations are serious (here, impugning personal integrity) and aggravation (no apology) is present. It's also instructive on causation: a plaintiff must prove specific losses were caused by the defamation, or they won't be compensated for those. Jensen's award is binding as WA Supreme Court precedent at least on similar facts, and it aligns with similar cases like Hockey v Fairfax (2015, Fed Ct) where a federal politician got $120k for one defamatory tweet/headline. It shows WA courts calibrating awards with interstate practice – $300k+ for a serious defamatory imputation in a major newspaper, which is in the same ballpark as NSW cases for comparable facts.
Rayney v The State of WA [2017] WASC 367 (Chaney J); [2022] WASCA - Rayney (No 4) – "Extremely serious allegation – prime suspect in murder"
This is perhaps WA's most famous defamation case. Lloyd Rayney, a barrister, was publicly named by a police officer as the "prime" and "only" suspect in his wife's murder during a 2007 press conference. This imputation – that he had murdered his wife – is about as grave as it gets. Rayney was later charged and tried for that murder and acquitted, but the damage to his reputation was enormous and effectively career-ending. He sued the State of WA (police) for defamation.
Damages at trial (WASC): Justice Chaney found the imputation conveyed that Rayney was guilty of his wife's murder, which was false. The State's conduct was found highly improper: the officer had no reasonable basis to name Rayney and included details in the press statements that gave a false impression of strong grounds (e.g. suggesting knowledge of crime scene that he didn't have). The court noted this was an "extremely serious" defamation causing extraordinary harm. Rayney's practising certificate was suspended, and he effectively could not work from the time of the allegation; his social standing was in tatters.
Chaney J awarded Rayney a then-record $2.62 million in total. This comprised $846,180 for non-economic loss (general + aggravated) and $1,777,235 in special damages for economic loss (lost earnings as a barrister from 2007 until he was charged in late 2010, after which the defamation's effect was overtaken by the criminal process).
The general damages far exceeded the usual cap – nearly double – because the court found aggravated damages were warranted: the police officer's conduct was effectively reckless and unjustified, and no retraction or apology was given. The WA Court of Appeal later upheld this award (Rayney (No 4) [2022] WASCA 128), dismissing the State's appeal and also dismissing Rayney's cross-appeal for even more damages. The final tally with interest exceeded $2.7M.
Significance: Rayney's case illustrates the upper end of defamation damages in Australia. It shows the application of the cap with aggravated damages – the cap was lifted (Chaney J explicitly aligned with Dixon J's approach in Rebel Wilson's case that the cap doesn't apply when aggravated damages are warranted). The general damages of $846k reflected the unparalleled severity of accusing someone of murder and the massive reputational and personal toll on Rayney (the judgment describes his professional ruin and intense distress). The economic loss award demonstrates the approach to special damages: carefully calculated lost income based on what he likely would have earned in those years but for the defamation. This case, binding in WA, is often cited when comparing the worst-case scenario defamations. It's notable that while it is a WA decision, it drew on interstate jurisprudence (and contributed to it – being noted in Wagner and Wilson cases as a benchmark). It underscores that where defamation allegations are extremely serious (criminal conduct) and entirely unfounded, and published by an authoritative source (a police spokesman) with wide media coverage, courts will not hesitate to award very large damages to vindicate the plaintiff and compensate years of anguish – including going well past the usual cap due to aggravation.
Wilson v Bauer Media [2017] VSC 521; [2018] VSCA 154 – "Defamation of a celebrity – loss of Hollywood roles"
Although an eastern states case, this is illustrative for comparative purposes (and was watched nationally). Actress Rebel Wilson sued magazine publisher Bauer in Victoria over a series of articles that painted her as a serial liar (lying about her age, name, background). A jury found the articles defamatory and false.
At trial, Justice Dixon characterized the defamation as very serious, with global reach (the stories went international), and noted Bauer failed to properly verify claims and published knowingly false allegations. Wilson claimed the defamation caused her to miss out on lucrative film roles in the wake of the articles.
Damages at trial: the judge awarded a total $4.567 million – comprising $650,000 in general and aggravated damages and about $3.917 million in special damages for economic loss (lost opportunities in Hollywood). The $650k general award exceeded the then-cap (~$389k) because the judge found aggravated circumstances (Bauer's malice and failure to apologize) justified lifting the cap. This was (at that time) the largest defamation award in Australian history.
However, on appeal, the Victorian Court of Appeal drastically reduced the award. The Court of Appeal held that Wilson had not proven on the balance of probabilities that the defamatory articles caused her to lose specific film roles or income – the evidence was too uncertain (they noted she continued to receive offers and there was no identifiable lost contract). They set aside the $3.917M special damages entirely. They also trimmed the non-economic damages to the statutory cap (approximately $600,000 including aggravated), reasoning that while aggravated damages were warranted, the cap should represent the upper limit of compensation (this foreshadowed the now codified "hard cap" approach). The High Court refused Wilson's attempt to appeal, finalizing her award at around $600k.
Significance: For WA observers, Wilson's case is a cautionary tale about proving economic loss – you need concrete evidence. It also illustrates how appellate courts ensure damages aren't speculative. While the Vic CA's reasoning isn't binding in WA, a WA court would likely find it persuasive on similar facts (WA would likewise require solid proof of lost income streams). The case also highlighted the issue of the damages cap and aggravated damages, leading to the 2021 reforms in other states. In WA, a judge might still follow Dixon J's approach (treating cap as lifted if aggravated) as that remains WA law, but Wilson's appeal outcome would warn against going far beyond the cap absent truly egregious facts.
Rush v Nationwide News (Geoffrey Rush defamation) [2019] FCA 496; [2020] FCFCA 115
Though a Federal Court case in Sydney (applying NSW law), it offers a parallel to Rayney in terms of large damages. Actor Geoffrey Rush sued a newspaper for articles accusing him of inappropriate behavior towards a co-star. The allegations, which Rush vehemently denied, effectively alleged sexual misconduct – a grave slur for a renowned actor.
The Federal Court found the allegations untrue and entered judgment for Rush, rejecting the paper's truth defence (which it found was pursued without credible evidence).
Damages: The trial judge awarded about $2.9 million total: this included $850,000 in general and aggravated damages (exceeding the cap due to aggravation, i.e. the sensational and reckless publication), plus over $1.9 million in past and future economic loss (Rush had evidence that he lost a film contract and other work due to the stigma). The Full Federal Court dismissed the defendant's appeal, upholding the damages.
Significance: Rush's case is often cited alongside Rayney's as among the highest defamation awards. It reinforces similar principles: wide publication of very serious allegations, with aggravation (court noted the "tabloid crusade" and that Rush was left "devastated and distressed" by the false allegations), yields a high general damages award (cap exceeded). And with credible proof of specific losses (Rush had to step back from acting for a period and lost roles), substantial special damages can be recovered. For WA, while Federal Court decisions aren't binding, this decision applied the same uniform law principles and was in line with how a WA court likely would approach such facts. It provides a cross-check for what constitutes appropriate quantum for a given level of harm.
These examples highlight how courts apply the principles in practice. A trivial slur to one person might get under $10k (Armstrong – low publication, low damages). A serious defamatory implication in mass media, but without lasting economic damage, might be in the few hundred thousand dollars (Jensen – political context, or a similar NSW case like Hockey v Fairfax where a federal Treasurer got $120k for a defamatory tweet headline "Treasurer for Sale").
The most severe scenarios, involving accusations of heinous conduct or sexual crimes, can approach or exceed the statutory cap in general damages (approaching $400k–$500k or more in WA with aggravation, as seen in Rayney, Rush). Adding proven economic loss can push total awards into the millions. Nonetheless, courts strive to ensure each award is justifiable by the facts of harm – they will write detailed reasons linking the evidence of injury to the dollar figure, often referencing comparables and the statutory constraints.
For judicial officers in WA, the above framework provides a structured approach: identify the harm (reputation, feelings, any economic loss), consider any aggravation by defendant or mitigation, bear in mind the statutory cap (and whether aggravated circumstances lift it), and arrive at a figure that is rational and in line with analogous cases. By clearly itemizing factors (seriousness of defamation, extent of publication, plaintiff's suffering, malice or apology, etc.), a judge ensures the outcome is seen as the result of principled reasoning rather than guesswork. This is crucial for the bench book style and for appellate review.
Conclusion
The assessment of damages in defamation cases in WA involves balancing common law principles of compensation and aggravation with the statutory limits and other relevant provisions in the Defamation Act 2005 (WA). Practitioners should plead damages with particulars and be prepared with evidence of harm or loss, while defendants should utilize apologies or amends to mitigate exposure.
The WA courts will continue to be guided by the objectives of vindication and appropriate compensation, remaining consistent with national trends even as WA for now charts its own course without the recent amendments. Ultimately, the goal is a fair award that vindicates the plaintiff's reputation and compensates their loss, without punishing the defendant beyond what their conduct warrants, and without exceeding what is needed to signal the baselessness of the defamatory accusation. The case law, both WA and interstate, provides concrete examples to inform this delicate exercise of discretion.
Sources: Relevant statutory provisions include Defamation Act 2005 (WA) ss 34–39. Key cases: Rayney v WA (WASC); Armstrong v McIntosh (No 4) (WASC); Jensen v Nationwide News (WASC); Wilson v Bauer Media (VSC & VSCA); Rush v Nationwide News (FCA); Holt v TCN Channel Nine (NSWCA), among others as discussed above.