Identification of the Plaintiff in Defamation (Western Australia)

Overview and General Principles

In defamation law, the plaintiff must establish that the defamatory matter was published "of and concerning" them. This identification element is foundational; without it, no action in defamation can succeed regardless of how severe the defamatory imputations might be.

The identification requirement has been consistently affirmed in Australian common law. As Isaacs J stated in David Syme & Co v Canavan (1918) 25 CLR 234 at 238, if the plaintiff is not named, the test is: "Are [the words] such as reasonably, in the circumstances, would lead persons acquainted with the plaintiff to believe that he was the person referred to?" This formulation has been consistently reaffirmed, including by the High Court in Dow Jones & Company Inc v Gutnick (2002) 210 CLR 575.

The test for identification is objective. Neither the publisher's intention nor the subjective understanding of every reader is determinative. Rather, the question is whether a reasonable person with knowledge of the relevant circumstances would understand the publication to refer to the plaintiff. Importantly, it is sufficient that some recipients of the publication would reasonably identify the plaintiff; it is not necessary that all recipients would do so.

Express or Direct Identification

Direct identification occurs when the plaintiff is unambiguously identified on the face of the publication. This most commonly occurs through:

1. Explicit naming of the plaintiff

2. Use of photographs or visual depictions recognizable as the plaintiff

3. Unique descriptors that can only apply to the plaintiff (e.g., "the Premier of Western Australia")

4. Specific details such as address, position, or title that effectively identify the plaintiff

In Charleston v News Group Newspapers Ltd [1995] 2 AC 65, Lord Bridge emphasized that when a plaintiff is directly named, the question of identification is straightforward. Similarly, in Morgan v Odhams Press Ltd [1971] 1 WLR 1239, it was established that a unique descriptor can be as effective as naming the individual outright.

For visual identification, the seminal Australian case Ettingshausen v Australian Consolidated Press Ltd (1991) 23 NSWLR 443 confirmed that a recognizable photograph can constitute identification even without accompanying text naming the plaintiff. In Western Australia, this principle was applied in Jones v TVW Enterprises Ltd (unreported, Supreme Court of WA, 1997), where footage of the plaintiff on a television broadcast was sufficient for identification despite the plaintiff not being named.

The key practical question is whether the words or images would lead an ordinary reasonable reader to conclude that the plaintiff is the person being referred to. Where the identification is express, this element is readily satisfied without the need to introduce extrinsic evidence or special knowledge.

Implied or Indirect Identification (Innuendo)

Identification may also occur indirectly, where the publication does not explicitly name the plaintiff but contains sufficient information for readers with particular knowledge to identify them. This is traditionally known as identification by "innuendo" (or true innuendo).

In Consolidated Trust Co Ltd v Browne (1948) 49 SR (NSW) 86 at 89, Jordan CJ explained: "If the matter complained of does not refer by name to the person alleged to be defamed, the plaintiff must allege and prove... that persons to whom the matter was published had knowledge of special circumstances... which would lead them to believe that the [plaintiff] was the person referred to."

The Western Australian Supreme Court has consistently followed this approach, as in Wilson v West Australian Newspapers Ltd [2003] WASC 123, where a plaintiff was held to be identifiable through descriptive information, even though not named.

For indirect identification to succeed, the plaintiff must:

1. Plead the extrinsic facts known to recipients that would lead to identification

2. Prove that these facts were known to at least some of the audience

3. Establish that the combination of the publication and these extrinsic facts would reasonably lead to identification

Common scenarios of indirect identification include:

• Publications referring to a person by occupation and location (e.g., "the principal of School X")

• References to previous events or controversies associated with the plaintiff

• Use of nicknames, pseudonyms, or initials known to identify the plaintiff

• Descriptions detailed enough that, combined with community knowledge, point uniquely to the plaintiff

As Lord Atkinson noted in E Hulton & Co v Jones [1910] AC 20 at 24, which has been followed throughout Australia, "it is the duty of the jury to read the statement complained of as ordinary reasonable readers would read it, and say whether, in their opinion, by its true meaning and innuendo... it would lead sensible and reasonable people to the conclusion indicated." This principle has been consistently applied in Western Australian courts.

Irrelevance of Intention; Same Name and Mistaken Identity

A crucial principle in defamation law is that the publisher's intention is generally irrelevant to liability. If the publication is reasonably understood to refer to the plaintiff, it matters not that the publisher:

1. Had no intention to refer to the plaintiff

2. Did not know of the plaintiff's existence

3. Intended to refer to someone else

4. Thought they were referring to a fictional person

This principle was definitively established in E Hulton & Co v Jones [1910] AC 20 and embraced in Australia through Lee v Wilson & Mackinnon (1934) 51 CLR 276, where the High Court held that multiple officers named "Lee" could each sue for defamation if readers understood the publication to refer to them, despite the publisher having a different "Lee" in mind.

In Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632, the High Court reaffirmed that "it is no answer... to say that they did not intend to refer to the plaintiffs." This is particularly relevant in cases of mistaken identity or coincidental naming.

The principle applies equally in Western Australia. In Douglas v Western Australian Newspapers Ltd (unreported, Supreme Court of WA, 1998), the court held that a newspaper article that incorrectly attributed criminal behavior to the plaintiff when they intended to name someone else did not excuse liability - the test remained whether readers understood the publication to refer to the plaintiff.

Identification of Corporate Plaintiffs

Section 9 of the Defamation Act 2005 (WA) restricts the ability of corporations to sue for defamation. Only "excluded corporations" may bring an action, defined as:

1. Corporations that employ fewer than 10 persons and are not related to another corporation; or

2. Not-for-profit corporations.

For corporations that fall outside these categories, defamation remedies are not available regardless of how damaging a publication might be to their reputation.

For "excluded corporations" that can sue, the principles of identification apply similarly to individuals. The corporation must establish that the defamatory material would be understood by ordinary readers to refer to that specific entity.

Corporate identification typically occurs through:

1. Direct naming of the corporation or its registered business name

2. Use of trademarks, logos, or distinctive branding recognizable as the corporation

3. References to distinctive products or services exclusively associated with the corporation

4. Descriptions of unique business activities or locations that point specifically to the corporation

In Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158, it was established that defamatory imputations about a product or service can identify the corporate producer of that product. Similarly, the Western Australian Supreme Court in Western Desert Lands Aboriginal Corporation v Doyle [2009] WASC 417 confirmed that references to distinctive corporate activities can constitute identification even without explicit naming.

Corporate plaintiffs face the additional hurdle of proving that the defamatory material refers to the corporation itself, rather than merely its directors, employees, or products. For example, in La Trobe Capital & Mortgage Corporation Ltd v Hay [2010] WASC 350, the court distinguished between criticism of a corporation's management (which may identify the corporation) and criticism of individuals within the corporation (which may not).

Group and Class Defamation

The general rule, derived from Knupffer v London Express Newspaper Ltd [1944] AC 116 and consistently applied in Australia, is that defamation of a group does not give rise to a cause of action for individual members unless the circumstances reasonably lead to the identification of the individual plaintiff.

Several factors influence whether a group reference can identify individual members:

1. Size of the group - smaller, more defined groups increase the likelihood of individual identification

2. Specificity of the allegation - whether the defamatory matter refers to "all" members or only "some" members

3. Relationship between group members - tightly connected groups may more readily support individual identification

4. Context of the publication - including whether visual cues or other context singles out individuals

In Pryke v Advertiser Newspapers Ltd (1984) 37 SASR 175, defamatory remarks about a small commission of four members were held to identify each individual commissioner. By contrast, in Sungravure Pty Ltd v Middle East Airlines Airliban SAL (1975) 134 CLR 1, the High Court found that general statements about "Arab terrorists" could not identify individual Arab airlines.

Western Australian courts apply these principles with reference to context and common sense. In Mickelberg v 6PR Southern Cross Radio Pty Ltd [2007] WASC 140, statements about the "Mickelberg brothers" were held capable of identifying each individual brother due to the small, clearly defined nature of the group.

The critical question remains: would reasonable people understand the defamatory matter to refer to each individual member, or only to the group as an abstract entity? This requires careful case-by-case assessment of the publication's wording, context, and audience understanding.

Contextual Identification: Prior and Subsequent Publications

When evaluating identification, courts consider the state of knowledge reasonably available to the audience at the time of publication. This primarily includes:

1. Prior publications by the same publisher or others that help establish context

2. Public knowledge about the plaintiff relevant to the identification

3. Contemporaneous materials that would inform the audience's understanding

In John Fairfax Publications Pty Ltd v Obeid [2005] NSWCA 60, the NSW Court of Appeal confirmed that prior publications can provide the context that makes later references identifiable, particularly in continuing news coverage of a topic.

While subsequent publications generally cannot retroactively create identification where none existed initially, narrow exceptions exist:

1. Where a publisher creates a deliberate series intended to be read together

2. Where the subsequent publication explicitly references and clarifies the earlier one

3. Where the publications together form a single extended defamatory publication

In Ware v Associated Newspapers Ltd (1969) 90 WN (NSW) 180 and Baltinos v Foreign Language Publications Pty Ltd (1986) 6 NSWLR 85, courts permitted consideration of later publications where they formed part of a planned sequence.

The Western Australian approach was demonstrated in West Australian Newspapers Ltd v Elliott [2008] WASCA 172, where the Court of Appeal held that a series of related articles could be considered together in determining identification when they were published as part of the same continuing coverage.

However, these exceptions are narrowly construed. The general rule remains that identification must be established based on information available to the audience at the time they encountered the publication.

Digital Media Considerations

The rise of digital and social media has created new challenges for the identification element. Courts have adapted traditional principles to address issues such as:

1. Screen names and pseudonyms - These can identify individuals if the connection between the online persona and the real person is known to the audience

2. Hyperlinked content - Information accessible via hyperlinks may sometimes be considered part of the context for identification

3. Closed online communities - Publications in private Facebook groups or messaging services may rely on shared knowledge unique to that community

4. Algorithmic delivery - The same content may reach different audiences with varying knowledge about the plaintiff

In Trkulja v Google LLC (2018) 263 CLR 149, the High Court recognized that internet search results could identify a plaintiff through the juxtaposition of names, images, and related content. Similarly, in Bolton v Stoltenberg [2020] NSWSC 1064, the court found that Facebook comments could identify individuals even without naming them, when contextual knowledge was present in the audience.

Western Australian courts have considered these issues in cases like Douglas v McLernon [2016] WASC 320, where identification was established through references on internet forums that, while not explicitly naming the plaintiff, contained sufficient information for regular forum participants to identify him.

Digital publications require careful analysis of:

• The nature and composition of the audience

• The platform-specific context and conventions

• The information reasonably available to recipients at the time

• The degree to which hyperlinked or related content forms part of the publication

Pleading and Proving Identification – Practical Guidance

Pleading Requirements

In Western Australian proceedings, identification must be properly pleaded in the statement of claim. The following components are essential:

1. Base allegation - A clear statement that "the publication was of and concerning the plaintiff"

2. Direct identification - Where applicable, simply stating that the plaintiff was named or visually depicted

3. Indirect identification - Where necessary, pleading:

   • The extrinsic facts known to recipients

   • How these facts, combined with the publication, identified the plaintiff

   • The class of recipients who possessed this knowledge

A proper pleading of indirect identification might state: "At the time of publication, the following facts were known to [specified class of recipients]: [list relevant facts]. By reason of these facts, the words [quote relevant portion] would be understood by those recipients to refer to the plaintiff."

Evidence of Identification

Evidence to establish identification may include:

1. Witness testimony from recipients who understood the publication to refer to the plaintiff

2. Evidence of prior publications that establish context

3. Evidence of the plaintiff's prominence or notability within the relevant community

4. Evidence of unique characteristics that match the publication's description

5. Expert evidence on industry-specific or technical descriptors that would identify the plaintiff

While the test is objective (what could reasonably be understood), evidence of actual identification by recipients can be persuasive.

Strategic Considerations

When analyzing identification issues, practitioners should consider:

1. Audience fragmentation - Different segments of the audience may have different knowledge about the plaintiff

2. Reasonable access to knowledge - Whether the extrinsic facts were sufficiently prevalent among the audience

3. Contextual ambiguity - Whether the publication could reasonably refer to persons other than the plaintiff

4. Intentional obfuscation - Whether the publisher attempted to disguise the reference to avoid liability

For corporate plaintiffs, establishing both standing under s 9 and identification are threshold requirements. For group defamation, careful analysis of the size and definition of the group is essential.

Conclusion

The identification element remains a fundamental prerequisite for any defamation action in Western Australia. While the principles are well-established, their application requires nuanced analysis of the specific publication, its context, and the reasonable understanding of its audience.

As defamation increasingly moves to digital platforms, courts continue to apply these traditional principles while adapting to new media contexts. The key question remains whether, in all the circumstances, the publication would be understood by reasonable recipients to refer to the plaintiff.

When in doubt, courts will insist on the plaintiff demonstrating a clear nexus between the defamatory material and themselves. Without this connection, no defamation action can succeed, regardless of how damaging the content might be. Effective pleading and proving of identification thus remains central to defamation practice in Western Australia.

Honest Opinion and Fair Comment Defences in Western Australian Defamation Law

Overview and Significance of the Defences

The defences of honest opinion (statutory) and fair comment (common law) are vital in balancing protection of reputation with freedom of expression. They permit defendants to publish opinions – even strong, exaggerated or unfair opinions – on matters of public interest, provided those opinions are genuinely held and based on true or privileged facts. As the High Court has recognized, honest opinion functions as a "bulwark of free speech" in Australia's legal system.

These defences originated at common law (as "fair comment") and have been largely codified in the Defamation Act 2005 (WA). Western Australia's statutory defence (referred to here as honest opinion) is found in s 31 of the Act (analogous to s 31 in other jurisdictions) and is adapted from the common law defence of fair comment. Notably, the common law defence still survives alongside the statute, although in practice defendants typically rely on the statute for publications after 2005.

This post explains the WA statutory defence of honest opinion (s 31), its relationship with fair comment at common law, the elements and burden of proof, and how courts have applied these principles. It also highlights unresolved issues (such as distinguishing fact from comment and the "public interest" requirement) and contrasts the WA position with recent defamation law reforms in other states.

Statutory Defence of Honest Opinion (Defamation Act 2005 (WA) s 31)

Section 31 of the Defamation Act 2005 (WA) establishes a defence of honest opinion for defamatory matter. In essence, the defendant must prove three things for the defence to succeed:

1. Expression of Opinion (not a Statement of Fact)

The defamatory matter must be an expression of opinion of the defendant (or an employee/agent, or a third-party commentator) rather than an assertion of fact. In other words, the material must be recognizable as commentary, deduction, criticism, or judgment, as opposed to a factual allegation.

This is judged from the perspective of an ordinary reasonable reader or listener. If the imputation conveyed would be understood as a statement of fact, the defence is not available. Courts apply both objective and contextual tests when determining whether material constitutes fact or opinion. The High Court in Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245 emphasized that what matters is how the ordinary reasonable viewer or reader would understand the publication in its full context.

Language indicators such as "I believe" or "in my view" may suggest opinion but are not determinative. Courts examine whether the statement appears to be verifiable or falsifiable (suggesting fact) or whether it reflects a subjective evaluation that cannot be definitively proven true or false (suggesting opinion). The context, including placement in an "opinion" section or alongside factual reporting, can affect this assessment.

In Costello v Random House Australia Pty Ltd (1999) 137 ACTR 1, the court found that seemingly factual allegations incorporated in what purported to be a reviewer's opinion could not be protected as comment. Similarly, in Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183, the High Court rejected characterizing imputations of criminal conduct as mere "comment" despite being presented as conclusions or opinions.

Courts have emphasized that a "comment" must be clearly distinguishable from fact – usually by the inclusion or reference to the facts on which the opinion is based. For example, in Pervan v North Queensland Newspaper Co Ltd (1993) 178 CLR 309, a local newspaper published an advertisement implying a shire councillor "feathered his own nest" (i.e. profited corruptly). The High Court held the defence of fair comment failed because the publication did not state or sufficiently indicate the facts supporting that inference, so an ordinary reader would take it as an allegation of fact rather than comment.

Thus, a threshold question is whether the material is capable of being seen as an opinion drawn from facts (if those facts are either stated or notorious). If not, a judge may withdraw the defence from the jury or strike it out.

2. Matter of Public Interest

The opinion must relate to a matter of public interest. This reflects the common law requirement that fair comment be on a subject that the public, or at least a relevant section of the public, has a legitimate interest in or concern about.

The public interest requirement does not mean the defamatory matter must advance some societal good - rather, it concerns whether the subject matter is one the public legitimately has an interest in knowing about. In London Artists Ltd v Littler [1969] 2 QB 375, Lord Denning described the scope as including "all matters which are of real concern to the public," which extends beyond politics and public affairs to areas such as arts, literature, sports and commercial activities accessible to the public.

Western Australian courts, following this tradition, apply a generous interpretation. In West Australian Newspapers Ltd v Elliott [2008] WASCA 172, the WA Court of Appeal confirmed that matters affecting the general community, including local controversies, satisfy this requirement. However, truly private disputes with no broader significance or matters of mere prurient curiosity rather than legitimate interest would likely fall outside its ambit.

The scope of "public interest" is broad. It is not confined to government or political matters – it encompasses "any matter which invites public attention or discussion" (e.g., performance of public officials, political affairs, public figures, arts and literature criticism, consumer affairs, etc.). Courts rarely find this element lacking, as most published commentary is on matters that others in the community have an interest in.

For instance, in Pervan, the conduct of a local elected official was plainly a matter of public interest. Similarly, in O'Brien v ABC [2016] NSWSC 1289, criticism on a national TV program of a newspaper's environmental contamination story was held to concern an issue of public interest – environmental safety and media reporting.

By contrast, a purely private matter (e.g., personal gossip affecting no wider community interest) would not satisfy this element. It has been noted that, unlike justification (truth) which has no public interest limitation, the honest opinion/fair comment defence imposes this requirement, though it is easily met in most cases.

3. Based on Proper Material (True or Privileged Facts)

The opinion must be "based on proper material", meaning it is grounded in facts or material that is either substantially true, or otherwise protected (e.g., by absolute or qualified privilege). In practice, this means the facts upon which the opinion is based must be proven to be true or covered by a recognised privilege or defence.

If the factual basis is not proved true (or covered by privilege), the defence fails – "If the purported facts upon which the comment is based are not true, the defence does not lie." This echoes the common law principle that truth of the underlying facts is crucial.

Courts apply a materiality test to determine whether enough "proper material" remains to support an opinion when some facts are not proven true. In Beechwood Homes (NSW) Pty Ltd v 3DM Homes Pty Ltd [2022] NSWSC 1324 (though not a WA case, the principle is applicable), the court assessed whether the "gist" or "sting" of the comment was supported by the remaining proven facts. If the unproven facts were merely peripheral or the opinion could reasonably stand on the proven facts alone, the defence may survive.

Importantly, the Defamation Act 2005 introduced a relaxation of the strict common law rule: the defence will not fail merely because some supporting facts are not proved, so long as the remaining proper material is sufficient to provide a basis for the opinion. Section 31(6) WA provides that an opinion does not cease to be based on proper material "only because some of the material on which it is based is not proper material if the opinion might reasonably be based on such of the material as is proper". In other words, the defendant need not prove all factual premises, as long as enough of them are substantially true or privileged to form a foundation for the opinion. This is a more forgiving approach than at common law, where a single significant false fact would destroy a fair comment defence.

It is not necessary that every factual premise be explicitly stated in full detail. In Kemsley v Foot [1952] AC 345, Lord Porter established that some publications intrinsically carry their factual background with them (the "Kemsley principle"). For example, a review of a theatrical performance need not recite every scene before offering criticism - the fact of the performance itself provides sufficient context. However, courts require enough factual material that readers can understand what is being commented upon.

4. Attribution of Opinion to the Defendant or Another

Section 31 actually provides three permutations of the defence:

(a) the opinion is that of the defendant themselves (s 31(1)); (b) the opinion is that of an employee or agent of the defendant (s 31(2)); or (c) the opinion is that of a third-party (a commentator) published by the defendant (s 31(3)).

These scenarios cover, for example, a newspaper defending a defamatory editorial (its own opinion), a media company defending a statement of an employee like a reporter or talk-show host, and a publisher defending a letter to the editor or quoted opinion of someone not employed by them. In each case, the same elements (opinion not fact, public interest, proper material) must be established. The distinction matters for the additional requirements regarding honesty (discussed below) – essentially, if the opinion was not actually that of the defendant, the defendant must show they did not endorse an opinion they knew to be disingenuous.

Defeating the Defence: The Malice or Dishonesty Element

If the defendant successfully proves the above elements (1)–(3) for the applicable category (and thus "establishes" the defence under s 31), the plaintiff may still defeat the defence by proving lack of honest belief (s 31(4)).

Specifically, the Act states the defence is defeated if and only if the plaintiff proves:

• in the case of the defendant's own opinion, that the defendant did not honestly hold that opinion at the time of publication;

• in the case of an employee/agent's opinion, that the defendant did not believe the employee or agent genuinely held the opinion; or

• in the case of a third-party commentator, that the defendant lacked reasonable grounds to believe the commentator genuinely held the opinion.

This is effectively a malice test – the plaintiff must show the opinion was not honestly held, i.e., it was published in bad faith or the publisher knew the opinion was not truly held by its purported author. If the plaintiff cannot prove this, the defence stands.

The concept of "malice" in this context has specific legal meaning beyond colloquial usage. Courts look for evidence that the defendant published the opinion:

• Knowing it was not genuinely held;

• With reckless indifference to whether it was genuinely held;

• For a predominant purpose unrelated to the subject matter (e.g., to injure the plaintiff due to personal animosity); or

• With knowledge that the factual basis was false.

Roberts v Bass (2002) 212 CLR 1 provides important guidance, with the High Court distinguishing between legitimate purposes (even if strongly expressed) and improper motives. A defendant's ill-will or strong language alone is insufficient to establish malice - there must be evidence that improper motive was the dominant reason for publication. In practice, this presents a high threshold for plaintiffs, explaining why few cases turn on this element.

The burden of proving lack of honest belief is on the plaintiff (on the balance of probabilities), and malice is not presumed; accordingly, a plaintiff will usually plead in a Reply that the defendant (or opinion-holder) acted with malice or did not honestly hold the opinion, to put that in issue.

Conversely, the defendant need not prove their honesty as part of their case – it is presumed once the elements of opinion, public interest, and proper material are established, unless the plaintiff raises evidence to the contrary. In practice, successful defeats of the defence by this route are rare, as it is hard to prove someone's opinion was not honestly held without direct evidence of ulterior motive.

So long as the opinion was honestly held, the defence may succeed even if the opinion is prejudiced, exaggerated, or extreme. The law does not require the opinion to be "fair" or reasonable – only honest. As the High Court noted, the defence can protect even "obstinate or foolish" opinions so long as an honest person could hold the view on the true facts.

Summary of Elements

In concise form, the elements of the honest opinion defence under s 31 (WA) are:

• Comment vs Fact: The matter must be recognizable as an opinion, criticism or remark (a deduction, inference, judgment or comment) rather than an assertion of fact.

• Public Interest: The opinion must be on a matter of public interest – meaning the subject is one which the public or a segment of it has a legitimate interest in.

• Proper Material (factual basis): The opinion must have a basis in true or privileged facts that are either stated or clearly indicated in the publication (or otherwise generally known). Those facts (or material) must be proper in the sense of being substantially true or protected by privilege/another defence. (Minor inaccuracies in the factual basis will not defeat the defence if the core facts supporting the opinion are true.)

• Honest belief: If the above are established, the plaintiff can only defeat the defence by proving the opinion was not honestly held by its maker (or that the publisher knew it wasn't honestly held). Absent such proof, the opinion is presumed honest and the defence succeeds.

Burden of Proof

The defence of honest opinion is an affirmative defence – the defendant bears the burden of proving the elements of opinion, public interest, and proper material (s 31(1)–(3)). These are matters for the civil standard (balance of probabilities) and, if a jury is present, typically questions for the jury (e.g., whether the publication would be understood as opinion or fact, whether the facts relied on are proven true, etc.), subject to the judge determining if there is evidence capable of satisfying each element.

The plaintiff bears the burden of proving any defeating circumstance under s 31(4) (lack of honest belief, malice). In trial practice, the plaintiff should raise such allegations in the pleadings (usually by Reply) to give notice. If the plaintiff fails to raise or prove malice, the defendant need not affirmatively prove they honestly held the opinion; it is enough that the opinion could honestly be held on the facts (an objective test).

Judicial Considerations

In applying s 31, courts will consider:

(a) Capability: whether the imputation is capable of being seen as opinion based on disclosed facts – this may be resolved as a matter of law. For example, a trial judge may strike out an honest opinion defence if the publication on its face contains no factual reference or context for the opinion (making it incapable of being "based on proper material").

(b) Whether the facts are sufficiently indicated: It is not necessary that all facts be spelled out in full, especially if the audience can infer the factual basis. For instance, referencing an earlier news story or a widely known event may suffice. But if readers/listeners would not reasonably know what facts the opinion is based on, the defence cannot succeed.

(c) Truth of the factual basis: this often overlaps with a justification defence. A defendant relying on honest opinion will commonly also plead truth for the underlying facts. If those facts are proven true, both justification (for the facts) and honest opinion (for the opinion drawn) may be made out. If some facts are not proven, the court considers whether enough true material remains to satisfy the "proper material" requirement.

(d) Honesty/malice: this usually arises only if the plaintiff leads evidence of improper purpose (for example, personal spite divorced from the content of the opinion). Judges sometimes describe this as the subjective element – the defendant must actually believe what they said. In most cases, there is no direct evidence to doubt the defendant's belief, so this element is often uncontested.

It is worth noting that the honest opinion defence has historically been difficult to establish successfully in litigation. One reason is that any significant failure in the factual foundation will collapse the defence. Another is that courts take care to ensure the publication was truly opinion as opposed to an implied assertion of fact. Indeed, the NSW Judicial Commission's defamation bench book observes that the defence has "rarely been successful" in practice (though there are notable exceptions, as discussed below). Nevertheless, it remains an important protection, especially for media defendants offering commentary or criticism.

Common Law Defence of Fair Comment

The common law defence of fair comment (sometimes called "honest comment") is the predecessor to the statutory honest opinion defence. Western Australia's Defamation Act 2005 did not abolish common law defences except to the extent they are inconsistent with the Act. Thus, the defence of fair comment at general law still exists and "it is still possible to rely upon the common law defence" in addition to or instead of the statutory defence. In practice, for publications after the Act's commencement (2006), defendants usually invoke the statutory version; however, they may plead common law fair comment in the alternative.

At common law, the elements of fair comment can be summarized as follows:

• The matter in question was comment (opinion, criticism, deduction, inference) as opposed to a factual allegation.

• The comment was on a matter of public interest.

• The comment was based on facts which were either truly stated in, or clearly referred to by, the publication, or which were otherwise notorious or sufficiently known to the audience. Those facts must be true or protected by privilege (often phrased as the comment being based on "proper material"). If the facts on which the comment purports to be based are not proven true or privileged, the defence fails.

• The comment was "fair" in the sense that it was an honestly made opinion, not malicious. This has both a subjective and objective aspect: subjectively, the commentator must have actually held the view (an honest person's view, not a fabricated pretext to attack), and objectively, the comment must be one that any fair-minded or honest person could have held based on the proven facts. This latter objective test doesn't mean the opinion must be moderate or free of bias; it merely asks whether the conclusion is one that a person might honestly draw from those facts (even if it is extreme or prejudiced). As one court put it, the defendant "must prove that the comment is objectively fair – that an honest person could express the opinion, even if it is exaggerated, prejudiced or obstinate". Provided the comment has some logical relation to the facts, this test is usually satisfied.

All of these elements must be established cumulatively. Additionally, as at statute, the common law defence could be defeated by malice – if the plaintiff proves that the defendant was actuated by improper motive or did not genuinely hold the opinion, the defence would fail (even if the other elements were met).

Thus, in substance, common law fair comment and statutory honest opinion share the same DNA. The notable differences are:

(1) the statute explicitly allows the defence to survive if some supporting facts are true, even if others are not, whereas the common law traditionally required all primary facts to be true (the statute thereby casting the defence slightly wider);

(2) the statute spells out three scenarios (own opinion, employee's, third-party's), whereas common law handled those within one doctrine (but with some uncertainty especially for third-party comments); and

(3) the statute clearly allocates burdens (defendant to prove opinion/public interest/facts, plaintiff to prove lack of honest belief), whereas at common law it was understood but not codified that the plaintiff had to prove malice to defeat the defence once the defendant established the other elements.

Relationship between the Statutory and Common Law Defences

The statutory defence in s 31 was intended to replace and modernize fair comment, emphasizing "honest opinion" rather than the potentially misleading term "fair" (which might be misconstrued as requiring the opinion to be reasonable or balanced). In jurisdictions with the uniform Defamation Acts, courts have confirmed that the statutory defence is "adapted from the common law defence of fair comment". Common law authorities therefore remain highly relevant to interpreting terms like "opinion", "public interest", and "based on proper material" in the statute.

Indeed, early cases under the uniform law, such as Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245 (HCA), drew on common law principles to interpret the statutory defence. However, because the uniform legislation is intended to cover the field of defamation defences, some jurists and commentators have debated whether pleading the common law defence is still necessary or permissible.

The consensus (including in WA) is that the common law defence can still be pleaded as an alternative, but it will rarely give a defendant any advantage beyond what the statutory defence offers (except perhaps in unusual situations where a publication technically falls outside s 31's wording but would have been protected at common law). One such scenario might be if an opinion did not relate to a matter of public interest – the statute would not protect it, but theoretically one might ask if the common law could (at common law, public interest was also required, so likely no difference). In practice, modern defamation cases overwhelmingly proceed under the statutory defences for post-2005 publications.

To the extent that a WA judge or practitioner encounters fair comment in a case, the analytical framework will be essentially the same as for honest opinion. It may be useful to recall classic common law statements of principle. For example, the "conventional case" of fair comment, as described by McHugh J in Pervan, is "one where the facts on which the comment is based are stated or indicated in the publication, so that readers can judge for themselves whether the facts justify the comments." This encapsulates the core idea: the audience must be enabled to evaluate the opinion by reference to the factual basis that is either given or well-known.

Another oft-cited formulation comes from Lord Porter in Kemsley v Foot [1952] AC 345, an English case, to the effect that some publications carry their factual background with them (the so-called "Kemsley principle" – e.g., a comment on a notorious topic need not spell out facts that everyone knows). The High Court in Pervan endorsed this, noting that where the subject matter of the comment is sufficiently notorious, a general reference may suffice. These principles continue to guide the application of the honest opinion defence under the statute.

In summary, the common law defence requires comment, on a matter of public interest, based on true or privileged facts that are either stated or sufficiently indicated, and honestly made without malice. The statutory defence in WA's s 31 requires the same, with minor tweaks (notably the allowance for partial truth). Both can be defeated by proof of malice/lack of honest belief. Given their alignment, Australian courts often discuss them interchangeably. For instance, the Victorian Court of Appeal in Herald & Weekly Times v Buckley (2009) 21 VR 661 confirmed that the uniform statutory defence did not materially change the substance of fair comment, apart from its specific modifications (and it struck out a defence where the publication failed to indicate any factual basis, in line with the traditional approach).

Elements in Detail and Practical Guidance for Application

The following is a practical step-by-step guide for in assessing an honest opinion (or fair comment) defence, structured similarly to a bench book checklist:

1. Identify the Statements and their Nature

Determine exactly what published statements are claimed as opinions. This often involves parsing the defamatory imputations. Some statements may be pure assertions of fact, some may be opinion, and some may be mixed (factual statements with an evaluative epithet). Only the latter two can potentially be protected by honest opinion.

The judge may need to rule on whether certain words are capable of being opinion or are necessarily factual. Example: Calling someone "a liar" is usually a statement of fact (alleging specific dishonest conduct), whereas calling someone "a disgrace" or saying "in my view, X has been incompetent" is framed as opinion.

If a statement is not clearly opinion, ask: Would a reasonable reader understand it as the writer's/commentator's opinion, deduction or judgment based on other facts? If yes, it's comment; if it appears to be presenting new factual information, it's not comment. Ensure that any inferred defamatory meaning that is essentially an opinion is identified – e.g., an imputation of "corruption" might be conveyed either as a factual allegation ("John took a bribe") or as an opinion drawn from disclosed facts ("John's conduct reeks of corruption" following a description of what he did). Only in the latter scenario is honest opinion available.

2. Check for Public Interest

Consider the subject matter of the opinion. Is it something the public or the relevant audience has a genuine interest in? In most cases that reach court, this will be apparent and uncontroversial (news, politics, products, art, public figures, etc.).

If it's not obvious, evaluate the context: Does the publication address a matter inviting public attention or discussion? For instance, commentary about a person's performance of public duties, or consumer criticism of a business, are public interest. A private letter circulated only to family members about a personal grudge might fail this test.

In a jury trial, this could be a question for the jury, but often it can be ruled on by the judge as a question of law or mixed fact-law. Historically, courts have taken a liberal view of "public interest" in this context. When in doubt, lean towards inclusion – especially post-High Court's emphasis on freedom of expression in defamation's context (citing the statutory objects). If a publication were truly of purely private interest, a judge could hold the defence inapplicable as a matter of law.

3. Verify the Factual Basis

Identify the facts or material that the defendant says the opinion is based upon. These should be evident in the publication itself or otherwise notorious. For the defence to be available, the comment must be "sufficiently linked" to factual material.

Ask: Does the publication itself state the facts (either in detail or in broad terms)? Or does it refer to other material (articles, reports, events) that supply the factual basis? Or are the facts so well-known that readers would already be aware of them? If the answer to all is no – i.e., the opinion is presented "bare" with no context – the defence cannot succeed. The High Court in Manock underscored that the reader must be able to perceive what the comment is about.

Illustration: A TV program that flashes an image of a person and states "Would you trust this man?" without further context might not qualify as comment on a matter of public interest, because the audience is not told what factual premise underlies the distrust – they are invited to draw a negative inference without facts, which is effectively a factually baseless imputation. By contrast, if the program first explains the person's actions (facts) and then poses, "Would you trust this man?", it is clear the question is an opinion inviting judgment on those explained facts.

In assessing this element, a judge should consider the entire context of the publication – sometimes headlines or insinuations are clarified by body text that does lay out facts. Also consider whether the factual material could be implied or "apparent from the context" (especially in modern publications where hyperlinks or previous installments exist).

4. Are the Facts Proven True or Privileged?

If the defence is being assessed after evidence, the judge (or jury) must determine whether the factual assertions underlying the opinion have been established as true (or covered by privilege). This often overlaps with a defence of justification: the defendant might prove certain facts true not to justify the defamatory sting itself, but to establish the foundation for comment. If the facts are substantially true, this prong is satisfied.

If some facts are not proven, consider s 31(6) WA – whether the remaining proven facts could reasonably sustain the opinion. If yes, the defence might still succeed. If the factual basis entirely collapses (e.g., none of the alleged underpinning facts were true or privileged), the defence fails.

It is useful to enumerate the factual basis in jury directions or judgment reasons: e.g., "The defendant's opinion that the plaintiff was unfit for office was based on the following facts stated in the article: that the plaintiff missed 10 council meetings and was found to have misused a council credit card. The defence requires those facts to be proven true or privileged. Are they proven true? If yes, was the comment the defendant made one that an honest person could hold on the basis of those facts?"

If a jury is deciding, special verdict questions can be framed accordingly (juries may be asked to find which facts are true). If a fact is substantially true (though minor details are wrong), it counts as proper material – perfect accuracy is not required. Privileged material (e.g., fair reports or court records) can also count as "proper material" even if not true, by virtue of s 31(5) defining proper material to include material published on an occasion of privilege.

5. Honest Opinion (Malice) Check

If the defence elements above are established in principle, consider any evidence of bad faith or dishonesty of the opinion-holder. By default, once a comment is based on true facts about a public matter, the defence is made out. The only remaining issue is whether the plaintiff has proven that the opinion was not honestly held (or that the defendant publisher knew it wasn't honestly held).

Typically, this issue arises if there is evidence the defendant had an ulterior motive or didn't actually believe what they said. For example, internal documents might reveal the defendant knew the facts did not support the published view or that they harboured serious doubts about it, yet went ahead to publish for spite or sensationalism. Absent such evidence, courts presume honesty – indeed s 31(4) WA makes clear the defence is defeated "if and only if" the plaintiff proves lack of honest belief.

In jury trials, malice is usually a jury question. Judges should instruct that the defendant is entitled to the defence unless the jury finds on the balance of probabilities that the defendant (or commentator) did not genuinely hold the opinion. Direct evidence of malice is uncommon; more often plaintiffs infer it from the extravagance of language or other circumstances, but mere passion or prejudice in the language is not malice if the opinion is truly held.

Example: In O'Brien v ABC, a journalist sued over a highly critical Media Watch segment. The court found no malice – the host's strong language was within the range of honestly held opinion based on the facts of her reporting, and there was no evidence he had any motive other than journalistic critique. Thus, the defence stood. Conversely, if a plaintiff can show the defendant was recklessly indifferent to the truth of the supporting facts, or published a comment they did not believe merely to injure the plaintiff, that would negate honest opinion.

6. Consider Contexts of Publication

In modern contexts (e.g., online media), the way facts are conveyed might differ. A hyperlink in an online article can serve to "indicate or access" the factual basis. Under the recent reforms elsewhere (discussed below), explicitly linking to a source is recognized as a means of basing an opinion on proper material.

The application of these defences to digital media requires careful consideration of how factual context is communicated online. In Voller v Nationwide News Pty Ltd [2019] NSWSC 766, Justice Rothman considered whether Facebook comments constituted opinion, noting the conversational nature of such platforms affects how readers understand statements. For Western Australia, several principles emerge:

• Hyperlinks can satisfy the requirement for indicating factual basis, but courts will examine whether readers would realistically follow such links before forming impressions;

• Thread context matters - statements made in reply to news articles or within continuing discussions may derive factual context from earlier posts;

• Emoji usage and platform conventions (such as "retweeting with comment") may influence whether content is perceived as factual assertion or subjective reaction;

• The ephemeral nature of some digital content (such as disappearing stories) does not exempt publishers from ensuring opinions are based on accessible facts.

In WA (pre-reform), judges can still accept that if an online post says, "Here's an article [link]; in my opinion this is scandalous", the link and its content are effectively part of the publication's context. The defence can encompass that scenario (and the 2021 amendments in other states confirm it).

Judges should also note whether the opinion was presented as personal view (using language like "I think", "in my opinion") which, while not strictly necessary, can help signal to the reader that it is comment. The tone and form can be relevant to step 1 (distinguishing fact vs opinion).

Additionally, if the opinion is in a letter to the editor or attributed to someone other than the publisher, ensure the defendant has identified under which subsection of s 31 they plead. If it's a third-party opinion, the defendant (publisher) needs to show the belief in the commentator's honesty (often this will be inferred if, say, it's a letter signed by the commentator – the publisher can usually assume the person meant what they wrote, absent contrary evidence).

Practical Pleading Strategies for WA

Western Australians should consider these practical strategies when pleading honest opinion or fair comment:

• Given WA's retention of both statutory and common law defences, pleading both offers strategic advantage. While largely overlapping, specific situations (such as publications before the Act's commencement or cases with complex factual bases) may benefit from reliance on common law authorities.

• In reply to a defence of honest opinion, plaintiffs should specifically plead any alleged improper motive or knowledge of falsity to put malice in issue.

• Defendants should carefully identify which subsection of s 31 applies (own opinion, employee's opinion, or commentator's opinion), as this affects what must be proven about honest belief.

• When pleading the defence for multiple imputations, defendants should specify which facts support which opinions rather than making generalized claims.

• For third-party opinions (s 31(3)), evidence of the publisher's reasonable grounds for believing in the commentator's honesty should be preserved and documented.

• Expert evidence may be relevant to establish whether statements would be understood as fact or opinion by ordinary readers in specialized fields.

Illustrative Cases and How Courts Apply the Defences

Pervan v North Queensland Newspaper Co Ltd (1993) 178 CLR 309 (High Court)

Facts: A regional newspaper published an advertisement implying a local councillor (Pervan) abused his position for personal gain ("feathering his nest"). No factual details were given in the ad; it was a bare insinuation.

Held: The fair comment defence failed. The majority ruled that readers could not recognize the allegation as an opinion on facts, since no facts were stated or even hinted at. It appeared to be an imputation of corrupt conduct presented as fact. The High Court reaffirmed that for comment to be protected, the factual basis must either appear in the publication or be sufficiently notorious that the audience knows it. McHugh J described the "conventional case of fair comment" as one where the facts are in the same publication, enabling readers to judge for themselves the fairness of the comment. Pervan's case did not meet that standard.

Significance: Distinguishing fact from comment – Pervan illustrates that a defamatory insinuation will not be treated as "comment" just because the publisher labels it as opinion; the context must make it comment by reference to facts. This case is often cited for the requirement that the reader be in a position to evaluate the comment by knowing the facts – a principle now codified in the uniform defamation laws post-2021.

Channel Seven Adelaide Pty Ltd v Manock [2007] HCA 60; 232 CLR 245

Facts: A Channel Seven program (Today Tonight) broadcast a segment critical of a forensic scientist (Dr. Manock), implying he had mishandled autopsies – effectively questioning his competence and integrity. The broadcast used imagery and commentary that suggested Dr. Manock had "got it wrong" in a high-profile case, but the issue was whether the factual basis for these implications was adequately conveyed.

Held: The High Court (in multiple judgments) discussed at length the fair comment defence. They reiterated that what matters is how the ordinary viewer would understand the segment – would they perceive it as the presenter's opinion or as a factual exposé? And were the facts on which any opinion rested made clear? The plurality in Manock agreed with the orthodox position from Pervan: an opinion must be based on facts indicated in the material. They also affirmed that if those underlying facts were unproven, the defence fails. In Manock, there was debate over whether the segment had sufficiently indicated the facts (which came from a prior inquiry into the autopsy) – ultimately, the High Court sent the matter back for retrial, but along the way it clarified the law.

Significance: Confirmation of requirements and "proper material" concept – Manock is frequently cited for the proposition that the statutory defence of honest opinion requires the comment be tied to proper material, and it elaborated that proper material means factual material that is either in the publication, referred to, or notorious, and which is true or privileged. At [45] of the judgment (referenced in commentaries), the High Court stressed the importance of readers/viewers being able to identify the factual basis of an opinion. Manock also provided a vivid example that even strong or extreme opinions are protected if these conditions are met – one judge noted the defence can cover comments that are "ridiculous or exaggerated so long as they are honestly made". In practical terms, Manock led to some uncertainty in lower courts about how explicitly facts need to be referenced (since the statute didn't then spell it out), which was one impetus for legislative clarification later.

O'Brien v Australian Broadcasting Corporation [2016] NSWSC 1289 (McCallum J)

Facts: An ABC Media Watch episode, hosted by Paul Barry, sharply criticized journalist Natalie O'Brien's newspaper articles about toxic contamination in a Sydney suburb. Barry's commentary included statements that O'Brien's reports were "alarmist" and that "the central claims of [her] story are just wrong." The broadcast did recount some of what O'Brien had reported (for example, that she failed to consult qualified experts and that authorities disputed her findings). O'Brien sued, alleging the program defamed her as an incompetent journalist.

Defence: The ABC relied on honest opinion (and fair comment) – arguing that the segment was an opinion or criticism on O'Brien's published articles (which were the proper material).

Held: The court upheld the defence, finding that the program clearly presented an opinion on a matter of public interest (media reporting of environmental issues) and that the opinion was based on disclosed facts – namely, it quoted and referenced O'Brien's own articles and then offered criticism of them. Justice McCallum concluded Barry's comments were honestly held opinions within the range of fair comment: "Mr Barry's criticism of The Sun-Herald and Ms O'Brien represented an honest opinion, being well within the bounds of what could fairly be said by way of comment or opinion on the facts stated." Because the underlying facts (what O'Brien's articles contained and omitted) were either true or substantially true, the defence succeeded. O'Brien had not proven malice; on the contrary, the judge found Barry's criticisms were backed up by evidence (experts attesting that O'Brien's articles were misleading), reinforcing that his opinion was honestly held and not spiteful.

Significance: Modern application and success of the defence – This case shows the defence working as intended to protect media criticism. The facts of the plaintiff's own publication were used as the basis, satisfying the proper material test, and the court was willing to allow robust language ("just wrong", "irresponsible") as fair comment so long as it stayed tethered to those facts. It also illustrates that courts consider the tone and whether it strays into personal attack unsupported by facts; here, Barry stuck to pointing out factual errors (which were proven), so his value judgments about those errors were protected. The case underscores that an opinion doesn't have to be labeled "opinion" – it just needs to be clearly a conclusion drawn from stated facts. Media Watch introduced O'Brien's claims (facts) and then gave its view, leaving viewers able to judge the critique's fairness – the classic fair comment scenario.

Cook v Flaherty [2021] SASC 73 (Supreme Court of SA)

Facts: A Facebook user posted strong criticisms about a local council and a particular officer, implying misconduct. Some statements were pure opinion ("she is unfit for her job"), but the factual basis was not fully laid out in the posts (though the dispute was known in the community).

Held: The SA Supreme Court (on appeal) discussed the need for factual substratum. It reiterated the Pervan/Manock principles and also touched on the "Kemsley" principle – that in some cases the subject matter itself (e.g., a public controversy) is so well known that even a general reference to it can suffice as indicating the basis. The court ultimately found that some of the Facebook commentary was too loose to qualify as honest opinion (no clear facts cited), but other parts that referenced known council decisions could be defended.

Significance: Social media context & notorious facts: This case (and others like it) highlight challenges in the digital age – people often state opinions in shorthand on social media. The courts are likely to continue requiring some reference to facts, but they might accept that the "community knowledge" or linked content provides the context. It reinforces to practitioners that even on platforms like Facebook, if one is asserting an opinion (especially a negative one about a person), including or pointing to the facts (e.g., linking a news article or mentioning the specific incident) is crucial to later mount an honest opinion defence.

These examples show that courts rigorously apply the elements: if any element is missing (as in Pervan, no facts indicated; or in parts of Cook v Flaherty, no clear factual context), the defence fails. But when the elements are satisfied, courts have been willing to uphold the defence even for very strident commentary (as in O'Brien or similar cases where language was harsh but grounded in fact).

Unresolved and Difficult Issues in Interpretation

Despite clear principles, some grey areas and debates remain in the honest opinion/fair comment doctrines:

Distinguishing Fact from Opinion

This is a persistent difficulty. Defamatory imputations often lie on a spectrum between fact and opinion. Phrases like "in my opinion" are not conclusive – the court looks at how the whole publication would strike an ordinary person.

One challenging scenario is the use of rhetorical questions or irony, which can imply facts without stating them. For example, "Why does Councillor X have five new luxury cars?" – ostensibly a question, but it insinuates a fact of unexplained wealth. Courts have treated such innuendo as factual imputations rather than opinions.

The Victorian Court of Appeal in Buckley (2009) grappled with imputations that were implied conclusions drawn from unstated facts (so-called "inferences of fact"). The law remains that if the defamatory sting is conveyed as a factual inference (i.e., readers would take it as a statement that something is true about the plaintiff), the comment defence won't apply. The publisher cannot escape by simply couching a fact as an opinion if in substance the publication asserts the fact.

Judges must carefully direct juries on this distinction. The test is often phrased: would a reasonable reader understand the publisher to be asserting a fact about the plaintiff (even by implication), or expressing a view based on facts that either have been or will be provided? If it's the former, the defence is not available. This line can be fine and requires close analysis of language and context.

What counts as "Comment" or "Opinion"

Relatedly, the scope of what is an opinion can be tricky. Pure value judgments (e.g., "X is a terrible artist") are clearly opinion. But sometimes statements of mixed fact and opinion occur, e.g., "The concert lasted two hours and was a waste of the audience's time." The first part is fact, the second part opinion. The defence can apply to the defamatory imputation (that the concert was worthless) as comment, provided the factual part (duration, and presumably what occurred at the concert) is true.

The law allows this splitting – indeed, fair comment often comes in such packages. The difficult cases are those where the "opinion" implies specific undisclosed facts. Pervan and Manock show that if specific defamatory facts are implied (e.g., corruption, incompetence) without disclosure, the defence fails. This has led some commentators to call such implied facts "the bane of the comment defence." Ensuring the factual basis is disclosed is the cure.

The Public Interest Requirement

As noted, this element is usually easily met, and historically courts interpreted "matter of public interest" broadly (including matters of public entertainment, e.g., theatre or book reviews were always covered). There has been academic and law reform discussion on whether this requirement remains necessary – after all, if an opinion is true and honestly held, why should it also have to be on a matter of public interest? The Law Society of NSW, in the lead-up to the 2020 reforms, questioned the rationale, noting that truth as a defence has no such limitation. However, the requirement was retained in the law.

In practice, almost any published opinion about another person will be about something arguably of public interest once it's aired publicly. Only very personal disputes (e.g., a Facebook post among friends accusing someone of being a bad friend) might fall outside. In WA, no significant case has turned on lack of public interest, and it remains a low threshold. Judges should be aware that "public interest" in this context does not mean the publication was for the public's benefit (that is a qualified privilege concept); it only means the subject matter is one that people can properly have an interest in. For example, gossip about a celebrity's public behaviour could be a matter of public interest (because the celebrity's fans or the public are interested), whereas gossip about a purely private family matter of a non-public figure might not.

The Meaning of "Honest" Opinion

The use of "honest" emphasizes subjective genuineness. One unresolved nuance is how to prove or infer dishonesty of opinion. It is rare to have direct evidence. Sometimes the extremity or persistence of a comment might suggest malice, but courts caution that prejudice or strong language alone doesn't equate to malice if the view is actually held.

One interesting facet is that under common law, there was that "objective fair-minded person" test (could any person honestly hold this view?). If an opinion was so extreme that no reasonable person could sincerely hold it on the facts, some courts might label it "unfair" in the sense of the defence. However, given the renaming to "honest opinion," the focus is squarely on subjective honesty. So long as someone (even a very unreasonable person) might honestly voice that view, the defence isn't denied.

In practical terms, this issue is theoretical – almost any view could be honestly held by someone. Thus the "could any fair-minded person hold it?" test rarely precludes the defence (it's usually facts or malice that do). Australian courts have moved away from using the term "fair" except historically; now it's about honest opinion, not objectively fair comment. Judges in WA should thus direct juries that the question is did the defendant (or commentator) honestly hold that view?, not whether it was fair or reasonable. However, if something is so outrageous that it casts doubt on the speaker's sincerity, that folds back into the malice analysis.

Requisite Connection Between Opinion and Facts – Pre-2021 Uncertainty

A significant point of contention (now partially resolved by reforms elsewhere) was whether the Uniform Defamation Acts required that the factual basis appear in the publication. The statute (until amended) defined "proper material" by reference to truth/privilege, but did not explicitly say the facts had to be included or referred to in the matter. Courts nonetheless generally implied that requirement, following Pervan and Manock.

However, some defendants argued that the statute omitted an explicit "facts indicated" requirement, suggesting a comment could be based on facts known generally or later proven, even if not indicated in the publication. This led to a "judicially imposed hurdle" (as described by the Victorian Bar) that all courts imposed despite not being spelled out in s 31. The view of most judges (correctly, with respect) was that an opinion cannot be "based on" proper material if readers are unaware of any material – because then it's not seen as an opinion on those facts. Still, the lack of textual clarity was seen as a problem. The 2020 Model Defamation Amendment Provisions addressed this by adding a new subsection expressly requiring the opinion to be "explicitly or implicitly based on material that is disclosed or apparent" in the publication. (See below for the specifics of the reform.)

Letters to the Editor and Third-Party Comments

Another subtle issue is the situation covered by s 31(3) – where a defendant (like a newspaper) publishes someone else's opinion. At common law, it was sometimes unclear if the publisher needed to endorse the opinion or could simply say "this is the writer's view, not ours" and still use the defence.

The statute clarifies that the defence is available if the publisher proves the requirements and additionally that they believed the commentator genuinely held that opinion. This raises practical proof issues: how does a newspaper prove it believed the letter-writer was sincere? Often there's an assumption of sincerity absent evidence to the contrary. If, say, a paper published a letter under a pseudonym that it actually wrote itself as a straw-man, that would obviously fail. But usually, testimony that "we received this letter and had no reason to think the writer didn't mean it" would suffice.

This issue is rarely litigated explicitly, as publishers typically stand behind the opinions they publish. With the rise of online comments, a similar principle might apply: if a website host is sued for a user's comment and tries to use honest opinion, it would need to show it believed (or had no reason to doubt) the user's comment was their honest opinion. This is largely untested, but in practice internet intermediaries more often rely on innocent dissemination or the new safe harbours than honest opinion.

Social Media and Informal Publications

As noted, the application of the defence to casual online speech can be tricky. A tweet that just says "Politician X is a crook" – is that defendable as honest opinion? Arguably not, because no basis is provided, and it's not obvious. The defendant might try to argue the basis was an earlier news story everyone knew.

The 2021 reforms allow context to be considered (e.g., if that tweet was part of a thread responding to a news link, context might make the basis apparent). For WA judges, dealing with social media requires careful analysis of context – often the "matter" for defamation is not just one post but a series of linked posts or comments. The context may supply the factual material (for example, the original post in a thread might contain an article link, and subsequent comments (opinions) refer to it). Ensuring the factual context is included in the evidence and considered is important.

Overlap with Other Defences

Sometimes a publication might arguably be both an opinion and, say, a report of allegations (raising qualified privilege or the new public interest defence). Defendants may plead multiple defences. Honest opinion has the advantage (for defendants) of not requiring reasonableness (unlike statutory qualified privilege in some contexts) – it purely focuses on honesty and factual truth. But it has the limitation of requiring that element of public interest and factual disclosure.

There can be strategic decisions: e.g., a media defendant unsure if a statement will be seen as fact or opinion might plead truth (justification) for the factual imputations and honest opinion in the alternative (if a jury sees it as comment on disclosed facts rather than a new factual charge). The court may need to leave both to the jury in the alternative. For instance, in a restaurant review case, a statement "the food was inedible and gave me food poisoning" contains factual allegations (got food poisoning) and opinion (food was inedible). The publisher would need to prove the factual part true, and then the opinion part is straightforward. If they fail to prove truth of food poisoning, they might still argue the opinion of "inedible" was based on the meal's taste (subjective experience) – but if the only basis was the alleged sickness, losing truth undermines the comment. So these defences can succeed or fail together or partially.

Constitutional Dimensions and Uniformity Considerations

While not explicitly constitutional in origin, the honest opinion defence intersects with Australia's implied freedom of political communication. In Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, the High Court recognized the need to shape defamation law in light of constitutional values. Western Australian courts, though applying state law, must interpret the honest opinion defence consistently with these constitutional principles, particularly when the opinions concern political matters.

This constitutional dimension creates an additional reason why, despite Western Australia not yet adopting the 2021 reforms, WA courts should strive for interpretive alignment with other jurisdictions where possible. The goal of uniform defamation laws across Australia reflects both practical necessities in an interconnected media landscape and constitutional imperatives of consistent protection for political discourse.

2021 Reforms and Jurisdictional Differences (WA vs NSW/Vic and others)

Western Australia, as of the date of this post, has not yet enacted the "Stage 1" defamation reforms that other states such as New South Wales, Victoria, Queensland, South Australia and Tasmania implemented from July 2021 onwards. Those reforms amended the uniform defamation laws in several ways, including introducing a serious harm threshold and a new public interest defence. Relevant here, they also amended the honest opinion defence to dispel the uncertainties mentioned above.

In jurisdictions that adopted the reforms (e.g., NSW's Defamation Amendment Act 2020, commenced July 2021), section 31 was amended to explicitly spell out how an opinion is to be based on proper material. The key change was inserting a new subsection in the amended Acts) which provides that: an opinion is based on proper material if (a) the material on which it is based is (i) stated (either specifically or in general terms) in the published matter, (ii) notorious, (iii) accessible via a reference, hyperlink or other access point in the matter, or (iv) otherwise apparent from the context; and (b) that material is substantially true, or privileged (absolute/qualified), or protected by another defence (such as fair report). In effect, the amendment codifies the requirement that the factual basis must be disclosed to the reader in some way – by direct statement, reference, hyperlink, or contextual implication – and then reiterates the truth/privilege requirement for that material.

Under the amended provisions (in NSW, Vic, etc.), a defendant who wishes to rely on honest opinion must ensure the opinion piece itself either lays out the facts or at least points the reader to them (for example, a hyperlink to source material would suffice). The inclusion of "otherwise apparent from the context" covers scenarios like satire or novel formats where the factual premise might be understood from context even if not formally stated. These changes essentially clarify and reinforce the principles already applied in WA courts, but with statutory authority.

Western Australia's Act currently (as originally enacted in 2005) does not have the equivalent. However, WA courts would likely follow the High Court interpretations which are consistent with those requirements. The absence of the amendment in WA means theoretically a defendant might argue a more generous interpretation (e.g., "the statute doesn't explicitly say the facts must be in the publication"). But given the weight of authority (and now the fact that other states have codified the stricter view), a WA court is very likely to continue requiring that the factual basis be indicated in or with the publication for the defence to apply.

Another difference is that the post-2021 law removed the defence of triviality (formerly s 13 in WA, s 33 in NSW) in most jurisdictions. WA still has Defamation Act s 33 (triviality) in force. This doesn't directly affect honest opinion, but is part of the divergent evolution of WA's defamation law compared to the eastern states. Likewise, WA has not (yet) adopted the serious harm requirement or the new public interest defence (s 29A).

The new public interest defence (modelled on the UK "Reynolds" defence) provides a defence for publications on a matter of public interest where the defendant reasonably believed publication was in the public interest. This is conceptually distinct from honest opinion: it's more akin to qualified privilege. One could say the new public interest defence addresses some situations that might previously have tried to squeeze into fair comment. For instance, if someone published a defamatory matter that was an opinion but couldn't prove the factual basis true, they might now attempt to use the public interest defence (if they acted reasonably) – whereas honest opinion would fail for lack of truthful basis. In WA, until such a defence is enacted, defendants remain reliant on common law qualified privilege (e.g., Lange political communication defence) or analogous statutes.

In terms of honest opinion specifically, the main contrast is that NSW, Victoria, etc. have a more detailed blueprint in the Act for linking opinions to facts. Judges in those states can point directly to s 31(5) to instruct juries that the opinion must have been based on material in the publication (or notorious etc.). In WA, judges will achieve the same end by referencing case law (the jury directions would be effectively identical in substance, citing Pervan or Manock for the principle). If WA adopts the reform in the future, it will simply confirm what is already the practice.

It's also worth mentioning that the reforms did not otherwise change the honest opinion defence's substance – the public interest element remains, as does the defeat by lack of honest belief. Some submissions had suggested perhaps removing the public interest limb or providing greater protection to corporate employees expressing opinions (to avoid them being sued personally), but these were not incorporated in Stage 1 reforms. Stage 2 defamation reforms (enacted 2022–2024 in some places) did not relate to honest opinion but to new internet intermediary defences and court powers.

In summary, Western Australia's law on honest opinion is currently the same as the pre-2021 uniform law: it requires an opinion on a matter of public interest, based on proper material (substantially true or privileged facts), with honest belief, but without an explicit statutory mandate that the facts be set out. Other jurisdictions (NSW, Vic, Qld, SA, Tas) have now explicitly added that requirement, aligning the statute with what case law already expected. Practically, WA courts already mirror that approach, so the outcomes should not differ. WA defendants, however, should be mindful that if and when WA updates its Act, the defence's wording will change to formally require the linkage of fact and opinion in the publication. Until then, the prudent course (and one a court will likely enforce) is to ensure compliance with the spirit of the eastern states' provisions – i.e., clearly reference the factual basis in any opinion material.

Finally, to contrast with the UK position (since it influenced our reforms): the UK's Defamation Act 2013 renamed fair comment to "honest opinion" and explicitly required that the statement complained of "indicated, whether in general or specific terms, the basis of the opinion." The 2021 amendments essentially import that language. The rationale is to avoid the argument that an honest opinion defence could ever succeed if the audience was left in the dark about the basis. Now, with most Australian jurisdictions in line, WA stands out only temporally. One could expect WA courts to be guided by the uniform interpretation so as not to create a haven for fact-free "opinions".

Conclusion

The honest opinion (formerly fair comment) defence is a cornerstone of defamation law, designed to protect freedom of expression – in particular, commentary and criticism – while ensuring such commentary is anchored in facts and not a cloak for false allegations. In Western Australia, the defence under s 31 of the Defamation Act 2005 (WA) provides robust protection for statements of opinion on matters of public interest, so long as the opinions are based on true or privileged facts and are genuinely held. The common law fair comment defence, with essentially the same requirements, remains a parallel avenue, though usually coextensive with the statutory defence.

Litigants should approach these defences with a structured analysis: verify the material is comment, identify the factual substrate and ensure its truth/protection, confirm the public interest in the subject, and be alert to any evidence of malice. Leading cases like Pervan and Manock serve as guideposts for applying these criteria, and recent cases (e.g., O'Brien v ABC) demonstrate the defence's continued relevance in protecting critical speech. The 2021 amendments adopted in other states have reaffirmed the importance of disclosing the factual basis of an opinion – a principle WA courts already uphold in substance.

Assessment of Damages in Defamation (Western Australia)

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:

1. 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.

2. Interrogatories about financial loss: Defendants may serve interrogatories seeking details of alleged financial losses, particularly where these form a substantial part of the claim.

3. 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

4. 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.

5. 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:

1. 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.

2. 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.

3. 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.

4. 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

5. 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:

1. 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.

2. 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.

3. 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

4. Significant impact: Interest can substantially increase the total award, particularly in cases that take years to reach judgment.

5. 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.

Proving Extent of Publication in Defamation Proceedings

1. Introduction

The extent of publication is a fundamental element in defamation proceedings that influences both liability and the assessment of damages. A precise understanding of how to evaluate and prove publication extent is essential, particularly given the evolving media landscape and recent legislative reforms. This section provides guidance on the principles and evidentiary considerations relevant to determining the extent of publication in defamation matters, with particular attention to Western Australian jurisprudence where applicable.

2. Publication: Fundamental Principles

2.1 The Bilateral Nature of Publication

Publication in defamation law is a bilateral process requiring both the communication of defamatory matter by a publisher and its comprehension by at least one third party. As the High Court observed in Dow Jones & Company Inc v Gutnick (2002) 210 CLR 575 at [26]:

"Harm to reputation is done when a defamatory publication is comprehended by the reader, the listener, or the observer. Until then, no harm is done by it. This being so it would be wrong to treat publication as if it were a unilateral act on the part of the publisher alone. It is not. It is a bilateral act—in which the publisher makes it available and a third party has it available for his or her comprehension."

This bilateral conception has implications for proving both the fact and extent of publication. It means that publication is not complete until the defamatory matter has been both communicated and comprehended. This requires plaintiff’s to adduce evidence not merely of dissemination but also of reception and understanding by third parties.

2.2 Single Publication Rule

It is important to note that the single publication rule does not currently (as at March 2025) apply in Western Australia. Consequently, in Western Australia, the multiple publication rule established in Dow Jones & Company Inc v Gutnick continues to apply. This means that each download of defamatory material constitutes a separate publication, with its own cause of action.

3. Proving Fact of Publication

Before addressing extent, it is necessary to establish the fact of publication. The plaintiff bears the legal burden of proving that:

1. The defamatory matter was communicated to at least one person other than the plaintiff;

2. That person comprehended the communication; and

3. The publication was the intended, or the natural and probable, consequence of the defendant's actions.

In Lazarus v Deutsche Lufthansa AG (1985) A Def R 36-401, Hunt J emphasised that the plaintiff bears the onus of proving publication and must establish not only that the defamatory matter was accessible to third parties but that it was in fact accessed and comprehended by them.

As stated in Sims v Jooste (No 2) [2016] WASCA 83, a plaintiff must demonstrate, by pleading, that the material was downloaded and viewed by at least one person. This Western Australian authority underscores the necessity of establishing actual communication to and comprehension by a third party.

3.1 Direct Evidence of Publication

The most straightforward way to prove publication is through direct evidence, which may include:

• Testimony from recipients who read, heard, or viewed the defamatory material

• Admission by the defendant of publishing the material to specific individuals or groups

• Documentary evidence of distribution (email logs showing recipients, distribution lists, etc.)

• Server logs or analytics data showing specific access to the particular content

Worked Example: A sends a defamatory email about B to C. C testifies in court that they received and read the email, understanding its defamatory meaning. This is direct evidence of publication to C.

3.2 Inferential Evidence of Publication

Direct evidence of publication is not always available, particularly with online publications. In such cases, the plaintiff may rely on inferential evidence to establish a "platform of facts" from which publication can be reasonably inferred. The Court of Appeal in Sims v Jooste (No 2) [2016] WASCA 83 confirmed that this approach is available in Western Australia.

However, mere speculation is insufficient. The plaintiff must present a compelling factual foundation from which the court can infer publication.

Worked Example (Insufficient Evidence): A posts a defamatory comment about B on a website hosted overseas. B provides evidence that the website has 10,000 visitors per month globally. This, alone, is likely insufficient to prove publication in Western Australia. There is no evidence that any of those visitors were in Western Australia or that they saw the specific comment.

Worked Example (Sufficient Evidence): A posts a defamatory comment about B, a Perth-based businessman, on a website hosted overseas. B provides evidence that: (a) the website has 10,000 visitors per month, and 2,000 of those visitors are from Australian IP addresses; (b) the comment was visible on the website for three months; (c) the comment received 50 "replies" from other users, some of whom appear to be based in Perth (based on their usernames and profile information); and (d) several of the replies specifically discuss the defamatory imputation and its impact on B's business in Perth. This combination of factors creates a strong inference that the comment was downloaded and comprehended by at least one person in Western Australia.

4. Proving Extent of Publication

Once the fact of publication is established, attention turns to its extent. This is relevant to the quantum of damages. The following considerations apply in different publication contexts:

4.1 Print Publications

For print publications, evidence of the following may be adduced:

• Circulation figures (official audited figures are preferable)

• Distribution area (with particular attention to the plaintiff's community of interest)

• Readership estimates (which may exceed circulation)

• Whether the publication was prominently placed (e.g., front page versus buried on page 20)

• Whether the publication appeared in a specialist publication with a particularly influential readership among peers of the plaintiff

As held in Attrill v Christie [2007] NSWSC 1386, the extent of publication may be proved by inference from circulation figures, and the court may infer that a substantial proportion of readers actually read the material in question.

Worked Example: In a defamation action concerning an article in a major metropolitan newspaper, evidence might include the newspaper's audited circulation figures (approximately 100,000 copies), readership multiplier (estimated 2.5 readers per copy), distribution throughout metropolitan and regional areas of the state, and particulars about the prominence of the article (front page above the fold versus an inside page). The court may infer that a substantial proportion of the readership comprehended the defamatory matter, particularly if it was prominently placed.

4.2 Online Publications

For online publications, relevant evidence may include:

• Number of unique visitors to the specific webpage containing the defamatory material

• Average time spent on the page (as a proxy for comprehension)

• Geographical location of visitors (particularly important for establishing jurisdiction in Western Australia)

• Prominence in search engine results when searching for the plaintiff's name

• Social media engagement metrics (shares, comments, likes)

• Expert evidence on typical reading patterns for the type of content

It is important to note that analytical data showing mere page impressions or views may not, without more, be sufficient to establish comprehension by third parties. As established in Visscher v Maritime Union of Australia (No 6) [2014] NSWSC 350, more detailed evidence about engagement with the content may be necessary to satisfy the bilateral nature of publication.

Worked Example: In a case concerning a defamatory article on a news website, analytics data might show 5,000 page views, with 3,750 visitors from Western Australia, an average time on page of 2.5 minutes (suggesting the content was read rather than merely glimpsed), and 127 social media shares. A court might accept this evidence as establishing substantial publication within Western Australia, particularly if supported by expert evidence that the average time spent on the page exceeds the minimum time necessary for a typical reader to comprehend the defamatory content.

4.3 Social Media Publications

For social media publications, relevant considerations include:

• Number of followers/friends/connections of the publisher

• Number of views, likes, comments, or shares

• Whether the post was public or restricted to a defined audience

• Duration of availability before removal (if applicable)

• Evidence of republication through sharing, screenshots, or archiving

• Expert evidence on algorithmic amplification within the platform

In Wilson v Ferguson [2015] WASC 15, Mitchell J considered the extent of publication in relation to intimate images shared on Facebook, taking into account not only the direct recipients but also the potential for further dissemination. His Honour noted at [79] that the "grapevine effect" was particularly potent in the context of social media publications.

Worked Example: In a matter involving a defamatory Facebook post, evidence might include the defendant's friend count (2,500), engagement metrics (45 likes, 23 comments, 12 shares), public accessibility settings, and duration of availability (3 months before removal). Expert evidence might also establish the likely amplification through the Facebook algorithm, which may have shown the content to users beyond the defendant's immediate connections based on engagement levels.

5. Evidentiary Challenges

5.1 Inferential Reasoning

Courts may draw inferences about the extent of publication based on circumstantial evidence. As Hunt J observed in Urbanchich v Drummoyne Municipal Council (1991) Aust Torts Reports 81-127 at 69,193:

"Where the plaintiff has established that the defendant published the statement to a limited class of persons only, the court will infer, in the absence of evidence to the contrary, that all persons within that class both received and read the statement."

This principle is useful for assessing publication in traditional media contexts. However, in Nationwide News Pty Ltd v Naidu (2007) 71 NSWLR 471, the NSW Court of Appeal emphasised that while inferential reasoning is permissible, it must have a proper evidentiary foundation and not amount to speculation.

It is important for Western Australian practitioners to note that inferential reasoning may be particularly appropriate in regional or remote communities, where media consumption patterns may differ from metropolitan areas.

5.2 Online Publication Challenges

Proving the extent of online publication presents unique challenges. While analytics data can provide quantitative evidence, it may not definitively establish comprehension. Judges should critically evaluate:

• The reliability and authentication of analytics evidence

• Whether metrics demonstrate actual reading versus mere impressions

• The methodology employed by expert witnesses in interpreting online data

• The relationship between technical data and actual comprehension

• The relevance of the data to the specific defamatory content (as opposed to the webpage generally)

In Al Muderis v Duncan (No 3) [2017] NSWSC 726, McCallum J accepted expert evidence regarding internet analytics to determine the extent of publication of defamatory material online. Importantly, her Honour scrutinised the methodology behind the analytics and required evidence that went beyond mere page views to establish that the defamatory content had been comprehended.

5.3 Grapevine Effect

The "grapevine effect" recognises that defamatory material may spread beyond its initial publication through informal channels. In Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388 at [88], the High Court acknowledged that a plaintiff may recover damages for the spread of defamatory imputations through the "grapevine," even without strict proof of each instance of republication.

For Western Australian practitioners, it is worth noting that evidence of the potential for grapevine dissemination is particularly relevant in regional communities, where information may spread rapidly through informal networks. This phenomenon was recognised in West Australian Newspapers Ltd v Elliott [2008] WASCA 172, where the Court of Appeal acknowledged the amplified impact of defamatory publications in smaller, close-knit communities.

Importantly, in Zimmerman v Perkiss [2022] NSWDC 448, the court considered that the lack of the "grapevine effect"—the absence of evidence that others discussed the defamatory material with each other—was a factor in assessing the extent of harm to the plaintiff's reputation.

However, care should be taken to distinguish between the grapevine effect (which concerns damages for foreseeable further dissemination) and direct liability for republication by third parties. As clarified in Sims v Wran [1984] 1 NSWLR 317, a defendant is generally not liable for republication unless it was specifically authorised or was the natural and probable consequence of the original publication.

6. Publication by Omission

Courts distinguish between publication occurring by way of a positive act and publication occurring through omission. For publication by omission, the test is whether the defendant consented to, approved of, adopted, promoted, or in some way ratified the continued presence of defamatory material.

This principle was articulated in Byrne v Deane [1937] 1 KB 818 and developed in the Australian context in Thompson v Australian Capital Television (1996) 186 CLR 574. More recently, in Trkulja v Google LLC (2018) 263 CLR 149, the High Court considered the potential liability of search engines for failing to remove defamatory search results after being notified of their existence.

The question of publication by omission becomes particularly important in the context of user-generated content on websites, forums, and social media platforms. The defence of innocent dissemination under s 32 of the Defamation Act 2005 (WA) may be negated if the defendant fails to take reasonable steps to remove defamatory material after being notified of its existence.

Worked Example: A Western Australian website owner receives notification that user-generated content on their site contains defamatory material about a Perth businessperson. If they fail to remove it within a reasonable time after being notified (what constitutes "reasonable" will depend on the circumstances, including the technical complexity of removal and the resources of the website owner), they may be liable as a publisher by omission, having effectively adopted responsibility for the continued publication.

7. Jurisdictional Considerations

For Western Australian judges and practitioners, it is important to note that under the multiple publication rule established in Dow Jones & Company Inc v Gutnick, defamation occurs wherever the material is downloaded and read. This means that Western Australian courts have jurisdiction over defamation actions where the material was accessed in Western Australia, regardless of where it was uploaded.

As confirmed in Crosby v Kelly [2012] FCAFC 96, Australian courts retain jurisdiction over defamation actions where publication occurs within Australia, regardless of the original location of the publisher.

Western Australian practitioners should be particularly attentive to:

• Establishing evidence of access within Western Australia

• The continuing application of the multiple publication rule in Western Australia

• Potential conflict of laws issues for interstate and international publications

• The practical difficulties of enforcing judgments against interstate or international defendants

8. Particulars of Publication

While the plaintiff does not necessarily need to identify the specific individuals who accessed the defamatory material, providing particulars of downloading is now general practice in Western Australia. As noted in Sims v Jooste (No 2) [2016] WASCA 83, the court may require the plaintiff to provide further and better particulars if the initial pleading is vague or insufficient.

These particulars should address:

• When and where the material was published

• The identity or class of the recipients (if known)

• Evidence supporting the inference of publication (for inferential cases)

• The extent of publication claimed

• The jurisdictional nexus with Western Australia

9. Procedural issues for Evidentiary Management

When seeking to use the forensic tools available in a court case, in relation to evidence regarding publication extent, parties should consider:

1. Orders (such as leave to issue interrogatories) seeking specific disclosure of analytics data for online publications, including raw data to allow for expert analysis

2. Requiring expert evidence on digital distribution mechanisms where necessary, with attention to the expert's methodology and assumptions

3. Considering whether sampling methods might be appropriate for establishing patterns of publication in cases involving voluminous material

4. Setting parameters for inferential reasoning about publication extent

5. Requiring particulars of the grapevine effect where it is pleaded

6. Directing that evidence address not merely dissemination but also comprehension by recipients

In complex matters involving multiple publication platforms, it may be appropriate to direct the preparation of a publication schedule that clearly identifies each publication, its extent, and the evidence supporting those contentions.

10. Conclusion

Proving the extent of publication involves both factual and inferential reasoning, underpinned by an understanding of the bilateral nature of publication. The emergence of digital media has complicated this assessment but has also provided new evidentiary tools. Western Australian judges and practitioners should approach these questions with careful attention to both traditional principles and emerging digital realities.

The extent of publication remains a critical factor in assessing damages in defamation proceedings. As the media landscape continues to evolve, so too will the evidentiary approaches to establishing publication extent. Judges and practitioners should remain attuned to developments in this area, particularly as courts grapple with the implications of social media algorithms, ephemeral content, encrypted messaging platforms, and artificial intelligence-generated content.

For Western Australian practitioners, particular attention should be paid to regional and remote publication contexts, the continuing application of the multiple publication rule, and the developing jurisprudence as it relates to publication extent.

Publication in Defamation Law

Introduction

Correct identification of what constitutes 'publication' is fundamental to establishing the tort of defamation and determining liability.

Fundamental Principles of Publication

Definition of 'Publication' in Defamation Law

Publication constitutes an essential element of the tort of defamation. In legal terms, "publication" means the communication of defamatory material to at least one person other than the plaintiff.

The act of publication is a bilateral process between the publisher and the recipient. It is only when a defamatory publication is comprehended by at least one third party reader that harm to reputation can occur. As Isaacs J explained in the seminal case of Webb v Bloch (1928) 41 CLR 331 at 363-364: "to publish a libel is to convey by some means to the mind of another the defamatory sense embodied in the vehicle."

This bilateral conception was reinforced by the High Court in Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575, which confirmed that the tort occurs where and when the material is made available in comprehensible form to a third party. Critically, no communication to a third party means no publication in the legal sense.

Intention and Knowledge Requirements

The traditional test for establishing publication in Australian defamation law was formulated in Webb v Bloch (1928) 41 CLR 331. In that case, Isaacs J held that defamation requires an intention to assist in publication, stating that "if he has intentionally lent his assistance to its existence for the purposes of being published, his instrumentality is evidence to show a publication by him."

The High Court in Fairfax Media Publications Pty Ltd v Voller [2021] HCA 27 affirmed and clarified that defamation operates as a tort of strict liability. The majority emphasised that there is no requirement of intention to publish defamatory material; mere participation in the act of publication is sufficient for an individual to be held to be a publisher. The intention of the author of the defamatory matter is not relevant to the question of publication because the actionable wrong is the publication itself. This reinforces the strict liability nature of the tort, which has significant implications for potential publishers.

Publication as an Element of the Cause of Action

For defamation actions in Western Australia, there are five elements to a cause of action:

1. Publication – broadly defined to include verbal statements and all statements that can be read.

2. Of defamatory content – content that would tend to lower the plaintiff in the estimation of ordinary reasonable members of society.

3. To another – the publication must be made to someone other than the plaintiff.

4. Identifying a person – the plaintiff must be identifiable from the content.

5. Without lawful excuse – if there is a legal reason for the publication, any defamation may be excusable.

Significantly, as at March 2025 Western Australia has not adopted the 2021 amendments to the Uniform Defamation Laws implemented in most other Australian jurisdictions. Consequently, Western Australia still applies the "multiple publication rule" rather than the "single publication rule" introduced elsewhere, and does not have the "serious harm" threshold requirement for defamation actions. These distinctions create important jurisdictional differences that practitioners must be mindful of when advising clients or determining proper forum.

Tests for Establishing Publication

The Webb v Bloch Test

The Webb v Bloch test remains the fundamental starting point for determining whether publication has occurred in Australian defamation law. Under this test, anyone who participates in the dissemination of defamatory content is a publisher. This includes all persons who intentionally lend assistance to the existence of a publication, regardless of whether they authored the defamatory content or had knowledge of its defamatory nature.

The mental element of the wrong is satisfied by an intention to assist in publication, rather than an intention to publish defamatory material or knowledge of a publication's defamatory content. This establishes a relatively low threshold for participation in publication that casts a wide net of potential liability.

Proof of Publication

The burden of proving publication rests with the plaintiff on the balance of probabilities. In Western Australia, as established in Sims v Jooste (No 2) [2016] WASCA 83, a plaintiff must plead and prove that the material complained of had been downloaded and viewed by somebody, though they need not provide particulars of the identity of the person or persons who downloaded the material.

The Western Australia Court of Appeal in Sims v Jooste (No 2) emphasised that an inference that material has been downloaded and viewed might be drawn from a combination of facts, such as the number of 'hits' on the site where the allegedly defamatory material was posted and the period of time over which the material was posted on the internet. This approach of relying on a "platform of facts" recognises the practical difficulties in identifying specific recipients of online publications, whilst maintaining the fundamental requirement that publication must have occurred.

Publication by Omission

Publication may also occur through omission in certain circumstances. In Byrne v Deane [1937] 1 KB 818, the English Court of Appeal established that publication by way of omission may give rise to defamation liability. This means that a person can be responsible for publication of defamatory material by failing to remove it from where it was published, in circumstances where they had both knowledge of the material and the power to remove it.

This principle was applied in the Australian context in Urbanchich v Drummoyne Municipal Council (1991) Aust Torts Rep ¶81-127. In that case, unknown persons had glued up defamatory posters (falsely depicting the plaintiff as a Nazi sympathiser) on bus shelters under the Council's control. The Council, once notified, did not remove the posters for about a month. Hunt J held that the Council could be found liable as a publisher by omission, provided the evidence showed it had accepted responsibility for the continued publication of the material.

His Honour noted that a plaintiff must prove "more than mere knowledge" of the defamatory material and an opportunity to remove it. In addition, the plaintiff must show the defendant in some way adopted or ratified the continued presence of the material – for example, by consenting to it, approving it, or at least turning a blind eye such that their inaction amounts to acceptance. This nuanced approach to publication by omission has particular relevance in digital contexts, where platforms and website operators may become publishers by failing to remove defamatory content after being notified of its existence.

Co-publishers and Joint Publishers

Legal Definition of Co-Publishers

Co-publishers (or joint publishers) are two or more persons who each participate in the act of publishing the defamatory material. Following Webb v Bloch (1928) 41 CLR 331, a person is considered a publisher if they have been "instrumental in, or contributed to any extent to, the publication of defamatory matter."

This broad definition captures various participants in the publication chain, including:

• Authors of the defamatory content

• Editors who review and approve the content

• Publishers who disseminate the content

• Individuals who assist in drafting or revising the content

• Those who facilitate the publication platform

It is well established that every person who joins in publishing a defamatory statement can be sued in defamation. Thus, liability extends beyond the original author to all who participate in making the defamatory content available to others. The High Court has confirmed that a publisher's liability does not depend on them intending to defame the plaintiff; it is sufficient that they intentionally participated in communicating the content.

Tests for Establishing Joint Publication

Joint publication liability arises when multiple parties have participated in the publication process with some common purpose or design. In examining whether a person is a joint publisher, courts will consider:

1. Whether the person had control over or assented to the publication

2. Whether there was a common intention in publishing

3. The extent of the person's participation in the publication process

4. Whether the person provided more than merely incidental assistance

Justice Edelman in Fairfax Media Publications Pty Ltd v Voller [2021] HCA 27 noted that a defendant who does not perform an act of publication personally can still be liable for defamation on the basis that they assisted another individual who performed the act of publication, provided that the defendant's assistance occurred with a common intention to publish the communication.

Liability for Assisting with Drafting

Those who assist in drafting defamatory content can be held liable as co-publishers. As with other torts, assistance can be established by a minor act, provided there is a common intention to publish. This means that individuals who contribute to content that is later published may be liable alongside the primary publisher.

The critical factor is whether the individual intentionally participated in the creation process with the knowledge that the material would be published, not whether they intended the content to be defamatory. This principle applies to those who:

• Contribute substantively to the content

• Review and edit the material

• Provide factual information that forms the basis of defamatory statements

• Authorise or approve the final content for publication

In York v Jones [1981] 2 NSWLR 639, a person who supplied defamatory information that was later broadcast was joined as a defendant on the basis that he procured and aided the publication. This illustrates the court's willingness to hold accountable those who participate in the chain of publication, even where their role might appear secondary.

Common Intention in Publishing

The concept of common intention in publishing is central to establishing joint publication liability. While each case turns on its specific facts, courts will generally look for evidence of:

• Collaboration in creating the content

• Shared purpose in disseminating the material

• Awareness that the content would be published

• Approval or authorisation of the final publication

Justice Steward in Fairfax Media Publications Pty Ltd v Voller [2021] HCA 27 considered that what constitutes participation in an action of publication is a question of fact, and agreed with Justice Edelman that the test of common intention is applicable to defamation.

Digital and Online Publication

Multiple and Single Publication Rules

Under the traditional "multiple publication rule" which still applies in Western Australia, each communication of defamatory matter gives rise to a separate cause of action. For publications made online, this means that each time the material is accessed, a new publication occurs, potentially extending the limitation period for bringing an action. This was confirmed in Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575, where the High Court emphasised that making material available online is not a mere one-time act with legal effect everywhere; rather, the act of publication is complete at the place and time a third party downloads and reads the material.

This differs from jurisdictions that have implemented the 2021 amendments introducing a "single publication rule," which provides that the cause of action in defamation is taken to accrue at the date of first publication. The practical effect of Western Australia's continued adherence to the multiple publication rule is significant for online publishers, as it creates ongoing exposure to defamation claims for historical content that remains accessible online.

Social Media and Website Publications

The landmark case of Fairfax Media Publications Pty Ltd v Voller [2021] HCA 27 established that owners of social media pages can be liable as publishers for third-party comments posted on their pages. The High Court held that by creating a public Facebook page and posting content, the media outlets were "facilitating, encouraging and thereby assisting the posting of comments by third-party Facebook users" and were therefore publishers of those comments.

This decision adopts a strict approach – effectively, the act of providing an online forum (with the capacity to moderate content) was enough involvement to render the host liable as a publisher of whatever defamatory material appeared. Voller therefore stands as authority that Facebook page owners, moderators of online groups, and similar operators can be primary publishers of third-party content posted on pages under their control.

Worked Example: Media Organisation Facebook Page

Facts: A Western Australian media organisation operates a public Facebook page where it posts news articles. The organisation allows followers to comment on its posts. A Facebook user posts a comment on one of the organisation's articles containing defamatory allegations about a local politician. The politician sues both the Facebook user and the media organisation.

Analysis:

• Following Voller [2021] HCA 27, the media organisation could be considered a publisher of the third-party comment by facilitating and encouraging comments on its Facebook page.

• The media organisation's liability arises from its voluntary act of establishing and maintaining a Facebook page that invites and facilitates third-party comments.

• The organisation's lack of knowledge of the specific defamatory comment does not prevent it being considered a publisher, as defamation is a tort of strict liability.

• The media organisation might attempt to rely on the innocent dissemination defence, though this would require showing they neither knew nor ought reasonably to have known that the comment was defamatory, and that this lack of knowledge was not due to negligence.

Practical Guidance: Courts should consider:

1. Whether the defendant facilitated or encouraged third-party comments

2. The extent of control the defendant had over the platform

3. Whether the defendant took reasonable steps to monitor or moderate comments

4. The defendant's response upon becoming aware of the defamatory content

Hyperlinks and Search Engine Liability

The liability of search engines and providers of hyperlinks has been the subject of significant judicial consideration. In Google LLC v Defteros (2022) 96 ALJR 707, the High Court drew an important distinction regarding hyperlinks. The majority ruled that Google was not liable for simply providing a hyperlink in search results to a defamatory newspaper article. The Court reasoned that supplying a hyperlink (with a snippet) was merely a tool enabling users to access content, and did not itself amount to participating in the bilateral act of publication of that content.

The hyperlink was seen as a reference or pointer, not a communication of the defamatory matter. In other words, Google did not "lend assistance" to the publication of the article in any substantive sense by virtue of an automated search result. It had not created, endorsed, or republished the defamatory content – it simply provided the location.

However, this should be distinguished from cases where a person posts a hyperlink with commentary that adopts or endorses the defamatory content. In Bailey v Bottrill (No 2) [2019] NSWSC 1300, a defendant posted a link on her Facebook page to a YouTube video containing defamatory allegations, together with a comment implying agreement with the video. The court found that by doing so, the defendant took part in publishing the defamatory content – her post was an invitation to view the video and conveyed the defamatory message to anyone who followed the link.

The distinction is subtle but crucial: a neutral link might escape liability (per Defteros), but a link combined with an inducement or endorsement is actionable publication by the linker.

Primary and Subordinate Publishers

Distinguishing Between Categories of Publishers

Defamation law distinguishes between primary and subordinate publishers:

Primary publishers are those who know or can be expected to know the content of the material being published, including:

• Authors of the defamatory content

• Editors and publishers with editorial control

• Media organisations responsible for content

• Those who authorise or approve publication

Subordinate publishers are those who disseminate content created by others without editorial control, such as:

• Newsagents and booksellers

• Libraries and distributors

• Internet service providers (in some circumstances)

• Social media platforms (subject to notification and response)

This distinction is crucial for the availability of defences, particularly innocent dissemination, which is only available to subordinate publishers. In Emmens v Pottle (1885) 16 QBD 354, for example, a newspaper vendor who sold a paper containing a libel was found to have published it, even though he was unaware of the libel (his lack of knowledge went to a possible defence, not to the fact of publication).

Innocent Dissemination Defence

The defence of innocent dissemination is available the Defamation Act 2005 (WA). This defence is not available to the author and primary publisher of the material who have "primary liability" for what is written and published.

It is available to subordinate publishers who can demonstrate that:

• They neither knew, nor ought reasonably to have known, that the matter was defamatory

• This ignorance was not due to their own negligence

Indicators of whether someone is a primary publisher or a subordinate publisher include the opportunity to prevent publication and the editorial control over the publication process. Australian courts have established that if you have innocently published defamatory material, you must take reasonable steps to remove the defamatory material as soon as you are aware of it, otherwise you will be deemed to have published the material from that point onwards.

Proving Publication in Western Australian Courts

Requirements for Pleading Publication

In pleading publication, a plaintiff must establish that the defamatory material was published to at least one person other than the plaintiff. The statement of claim should include:

1. Particulars of the publication, including the date, mode, and medium of publication

2. Where the matter complained of is not defamatory on its face, the extrinsic facts said to give rise to the defamatory imputation

3. How persons knowing these facts would have understood the publication to refer to the plaintiff

In Western Australia, following Sims v Jooste (No 2) [2016] WASCA 83, courts have acknowledged that an inference that the material complained of has been downloaded by somebody might be drawn from a combination of facts, such as website metrics and duration of availability online.

Worked Examples

Worked Example: Republication of Defamatory Content

Facts: A Perth resident reads a defamatory article about a local business owner on an obscure blog. The resident copies the article and posts it on their personal social media account, adding comments that further distribute the defamatory claims. The business owner discovers the post and sues both the original blogger and the resident who shared the post.

Analysis:

• The original blogger is clearly a primary publisher with full liability for the defamatory content.

• The resident who shared the post is also a publisher, having voluntarily participated in disseminating the defamatory content.

• By adding their own comments, the resident has adopted the defamatory content and become a primary publisher in their own right.

• Repetition of defamatory content constitutes a separate act of publication. As established in common law, anyone who repeats defamatory publications is considered to have carried out a defamatory act in their own right.

Practical Guidance: Courts should consider:

1. The extent to which the republisher exercised independent judgment or editorial control

2. Whether the republisher added their own content or commentary

3. The republisher's knowledge of the potential defamatory nature of the content

4. Whether the republisher had reasonable grounds to believe the content was true or protected by a defence

Worked Example: Joint Drafting of Defamatory Letter

Facts: A Perth resident has a dispute with a neighbour. The resident drafts a letter containing allegations about the neighbour's conduct, including claims that would harm the neighbour's professional reputation. The resident shows the draft to a friend, who suggests additional allegations, edits the existing content, and helps refine the wording. The resident then sends the letter to the strata council and several other neighbours. The neighbour sues both the resident and the friend.

Analysis:

• The resident is clearly a publisher as the primary author and distributor of the letter.

• The friend may be liable as a co-publisher for substantially contributing to the content with knowledge that it would be published.

• Their common intention to create and distribute the letter establishes joint publication liability.

• The extent of the friend's contribution to the defamatory content and their awareness of its intended distribution are key factors in determining liability.

Practical Guidance: Courts should consider:

1. The nature and extent of the contribution to the defamatory content

2. Whether there was knowledge that the material would be published

3. Whether there was a common design or intention to publish

4. Whether the contribution was more than merely incidental

Conclusion

The act of publication remains a fundamental element in establishing defamation, and Western Australian courts apply principles drawn from foundational cases such as Webb v Bloch (1928) 41 CLR 331 while acknowledging the evolving landscape of communication, particularly in digital contexts. The broad test for publication means that liability can extend beyond original authors to encompass a wide range of participants in the publication process.

Co-publisher and joint publisher liability arises when multiple parties participate in the communication of defamatory matter, with courts focusing on the common intention to publish rather than intention to defame. This has significant implications for those who assist in drafting content, operate online platforms, or facilitate third-party comments.

In the digital age, the principles established in cases like Fairfax Media Publications Pty Ltd v Voller [2021] HCA 27 have extended publisher liability to previously untested contexts. This creates particular challenges for Western Australia, which continues to apply the multiple publication rule, potentially extending the limitation period for defamation actions involving online content.

Common Law Qualified Privilege in Defamation: An explanation

1. Introduction and Legal Foundation

Common law qualified privilege stands as a conditional defence in defamation, rooted in the recognition that certain communications, though potentially defamatory, warrant protection for societal benefit. This defence traces its origins to Toogood v Spyring (1834) 149 ER 1044, where Baron Parke articulated that "communications which would otherwise be slanderous are protected for the common convenience and welfare of society." This principle has been consistently affirmed in Australian jurisprudence, most authoritatively by the High Court in Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366.

The defence operates by providing a rebuttable presumption that a defamatory communication made on a properly privileged occasion was without malice. Unlike absolute privilege (which provides unqualified immunity regardless of motive or circumstances), qualified privilege is contingent upon two critical elements:

1. The existence of a privileged occasion for the communication; and

2. The absence of malice in making that communication.

The theoretical justification for this defence lies in balancing competing public interests: protecting individual reputation against the social utility of uninhibited communication in certain contexts. As the High Court observed in Papaconstuntinos v Holmes à Court (2012) 249 CLR 534 at [30], the law recognizes that "on certain occasions, it is for the common convenience and welfare of society to protect communications made in a particular manner, even though they would otherwise be actionable." This defence thus acknowledges that public policy sometimes necessitates free and frank communication, even at the potential expense of individual reputation, provided such communications remain within the boundaries of the privileged occasion and are not made maliciously.

2. Elements of the Defence

2.1 Privileged Occasion: The Reciprocity of Duty/Interest

The threshold requirement for common law qualified privilege is establishing that the publication occurred on a privileged occasion. This necessitates demonstrating a reciprocity of duty and interest between publisher and recipient—often termed the "duty/interest test."

The High Court in Papaconstuntinos v Holmes à Court (2012) 249 CLR 534 reaffirmed this fundamental principle, stating at [20]:

"For an occasion to be held to be privileged, there must exist between the publisher and the publishee some relationship or circumstance that gives rise to a duty or interest to communicate or receive information."

The requisite duty may be legal, social, or moral in nature, while the corresponding interest must be legitimate and relevant to the recipient's position. Importantly, both elements must coexist for the occasion to be privileged.

The concept of "duty" in this context extends beyond formal legal obligations. As explained in Adam v Ward [1917] AC 309 at 334 (and adopted in Australian law), it encompasses "a duty recognized by law, a duty of a moral or social character of imperfect obligation." However, not every moral impulse or sense of obligation will suffice; the duty must be one that the law recognizes as proper and deserving of protection.

Example 1:
A school principal reviews complaints about a teacher's conduct with the school board. This communication occurs on a privileged occasion because:

• The principal has a duty (both professional and moral) to inform the board about issues affecting student welfare and educational standards

• The board members have a corresponding interest in receiving this information given their governance responsibilities

• Both share a common interest in the proper functioning of the school and fulfillment of their educational obligations

The High Court in Aktas v Westpac Banking Corporation Ltd (2010) 241 CLR 79 emphasized that the duty/interest test must be applied with precision to the specific circumstances of each case, rather than through mechanical application of categories. The inquiry is always contextual and evaluative.

2.2 Absence of Malice

Even when a publication occurs on a privileged occasion, the defence can be defeated if the plaintiff proves the defendant was actuated by malice. The concept of malice in this context has a specific legal meaning distinct from its colloquial usage.

As articulated by the High Court in Roberts v Bass (2002) 212 CLR 1 at [75]-[76]:

"A privileged occasion must not be used for some purpose or motive foreign to the duty or interest that protects the making of the statement... Qualified privilege is lost if the defendant uses the occasion for some purpose other than that for which the occasion was privileged."

Malice thus refers to the defendant's improper purpose or motive—one foreign to the occasion that would otherwise attract privilege. The critical inquiry is not merely whether the defendant bore ill-will toward the plaintiff, but whether an improper purpose was a substantial actuating factor in making the communication.

This distinction is crucial: a defendant may harbor animosity toward the plaintiff yet still be protected if their dominant purpose was to fulfill the duty/interest that created the privileged occasion. Conversely, a defendant without personal animus may nevertheless act maliciously if motivated by a purpose extraneous to the privilege.

2.3 Onus and Pleading Requirements

The distribution of the burden of proof reflects the structure of the defence:

1. The defendant bears the legal and evidentiary onus of establishing that the publication occurred on a privileged occasion.

2. Once a privileged occasion is established, the onus shifts to the plaintiff to prove that the defendant was actuated by malice.

Procedurally, this requires precise pleading from both parties:

• A defendant pleading qualified privilege must particularize the facts giving rise to the privileged occasion, including the specific duty/interest relationship and the circumstances establishing reciprocity between publisher and recipient.

• A plaintiff seeking to defeat the defence must specifically plead malice in the Reply, with particulars of the facts, matters, and circumstances said to evidence improper purpose.

The requirement for particulars is not merely procedural; it defines the scope of the issues at trial. As held in David Syme & Co v Hore-Lacy (2000) 1 VR 667, the plaintiff must provide sufficient particulars to give the defendant fair notice of the case to be met regarding malice. Failure to properly particularize malice may result in that issue being excluded from consideration at trial.

3. Categories of Privileged Occasions

While each case must be evaluated on its specific circumstances, courts have recognized several recurring situations that typically satisfy the duty/interest test. These categories provide useful guidance but are not exhaustive or determinative; the underlying principle of reciprocity remains paramount.

3.1 Communications Made Pursuant to Legal, Moral, or Social Duty

When a person has a legal, moral, or social duty to communicate information, and the recipient has a corresponding interest in receiving it, the occasion is privileged.

Example 2:
In Cush v Dillon (2011) 243 CLR 298, the High Court considered communications made by a senior staff member to a minister about allegations concerning a departmental head. The Court recognized this as a potentially privileged occasion because the staff member had a duty to inform the minister about matters affecting departmental governance, and the minister had a corresponding interest in receiving such information.

The scope of "duty" is context-dependent and reflects contemporary social values. As noted in Papaconstuntinos v Holmes à Court (2012) 249 CLR 534 at [32], the duty/interest test "accommodates changing social conditions and accords with the requirements of free speech, the freedom of the press and the freedom of communication."

However, courts remain vigilant that the concept of "duty" does not become so expansive as to undermine the underlying purpose of defamation law. A mere belief that others "should know" defamatory information is insufficient without a recognized duty to communicate it.

3.2 Common Interest Communications

Communications between persons who share a common interest in the subject matter are protected, provided the communication is relevant to that shared interest.

The High Court in Papaconstuntinos v Holmes à Court (2012) 249 CLR 534 confirmed that privilege attaches to communications "made on an occasion where the interest is common to both" the publisher and recipient (at [36]).

The "common interest" must be sufficiently substantial and identifiable. As elaborated in Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366, the interest cannot be trivial or merely coincidental; it must be particular to the relationship between the parties and relevant to their shared activities or concerns.

Example 3:
In Jones v Sutton (2004) 61 NSWLR 614, a strata committee chairperson sent a letter to unit owners regarding another owner's alleged breaches of by-laws. The Court of Appeal found this was a communication on a privileged occasion because all unit owners shared a common interest in the enforcement of by-laws and proper governance of the strata scheme. However, the Court emphasized that this privilege would not extend to circulation beyond unit owners or to extraneous defamatory content not relevant to the shared interest.

The boundaries of the common interest delineate the scope of the privileged occasion. Publication beyond those who share the interest, or inclusion of matter not relevant to that interest, exceeds the privilege.

3.3 Publications to a Limited Audience with a Special Interest

The privilege can extend to communications to a defined group, even if relatively large, provided all recipients share a relevant interest in the subject matter.

In Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366, the High Court considered a safety bulletin concerning a workplace safety inspector that was distributed to occupational health and safety subscribers. The Court held this was an occasion of qualified privilege because:

1. The publication was confined to a limited class of recipients (subscribers with responsibility for workplace safety)

2. All recipients shared a genuine interest in the subject matter

3. The information was relevant to that shared interest

This category is distinct from general publication to the public at large. As Gleeson CJ explained in Bashford at [22]:

"The difference between limited publication, on a privileged occasion, to a class of persons with a special interest in receiving the information... and general publication to the world at large... is a difference of fundamental importance."

The critical distinction lies in the defined nature of the audience and their specific relationship to the subject matter. The more diffuse and indeterminate the audience, the less likely courts are to find a privileged occasion.

3.4 Replies to Attacks (Self-defence)

The law recognizes that a person whose reputation or conduct is publicly attacked has a right to respond in self-defence. This "right of reply" constitutes a privileged occasion.

In Harbour Radio Pty Ltd v Trad (2012) 245 CLR 257, the High Court confirmed this category of privilege, holding at [32] that:

"[W]here the plaintiff has made a public attack on the defendant, the defendant has a privileged occasion to respond by way of self-defence to rebut or refute the attack and may include in the response defamatory matter concerning the plaintiff."

Several important limitations circumscribe this privilege:

1. The response must be genuinely made to defend one's reputation

2. It must be proportionate to the initial attack

3. It must be relevant to answering the allegations made

4. It must be published to an appropriate audience (typically the same audience that received the original attack)

As the High Court cautioned in Harbour Radio v Trad at [36], the privilege "does not provide a privilege for retaliatory defamation published by way of abuse." A disproportionate or gratuitous counterattack may exceed the privileged occasion and suggest malice.

Example 4:
A public official is accused at a town council meeting of misappropriating funds. At the subsequent meeting, the official responds by addressing the allegations with evidence of proper financial management. This response would likely be privileged, even if it suggested the accuser had deliberately misrepresented facts. However, if the official were to digress into unrelated allegations about the accuser's personal life or character, this would likely exceed the scope of the privileged occasion.

3.5 Government and Political Communications (The Lange Extension)

In Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, the High Court recognized a constitutionally derived extension of qualified privilege for communications on governmental and political matters to the general public.

This extension, often termed the "Lange defence," arises from the implied freedom of political communication in the Australian Constitution. It represents a significant departure from traditional common law qualified privilege by potentially protecting communications to the public at large, rather than requiring a narrower reciprocity of duty/interest.

The Lange defence has several distinctive elements:

1. The communication must concern government or political matters affecting the Australian polity

2. The recipients must include electors with an interest in such information

3. The publisher's conduct must be reasonable in the circumstances

4. The publication must not be actuated by malice

The reasonableness requirement is particularly significant, as it imposes a higher standard than traditional common law qualified privilege. As clarified in subsequent cases like Roberts v Bass (2002) 212 CLR 1, this reasonableness inquiry examines whether the publisher believed the imputations were true, had reasonable grounds for that belief, and took proper steps to verify the information.

While Lange represents an important constitutional overlay on defamation law, its practical application has been largely superseded by statutory defences introduced in the uniform Defamation Acts. Nevertheless, it remains significant as a constitutional backstop and for understanding the broader evolution of qualified privilege in Australian law.

4. Defeating the Defence: Malice

4.1 The Concept of Malice

Malice in qualified privilege has a technical legal meaning beyond ordinary notions of ill-will or spite. As articulated by the High Court in Roberts v Bass (2002) 212 CLR 1 at [75]:

"In this context, malice means that the defendant used the occasion of privilege to publish the defamatory matter for some purpose or motive foreign to the duty or interest that protected the making of the statement."

This formulation distinguishes between "express malice" (the improper purpose that defeats privilege) and "presumed malice" (the inference of wrongful intention that arises from publishing defamatory matter but is negated by the privileged occasion).

The test focuses on the defendant's dominant purpose in making the communication. If an improper purpose was a substantial or actuating cause of the publication—even if not the sole purpose—the privilege may be lost.

4.2 Forms of Malice

Malice may manifest in various forms, including:

1. Knowledge of falsity or reckless disregard for truth: Where the defendant knows the defamatory imputation is false or is recklessly indifferent to its truth, this may indicate the communication was not made for the proper purpose of the privileged occasion. As the High Court noted in Roberts v Bass at [104], "knowledge of falsity is ordinarily compelling evidence that the defendant acted for a purpose foreign to the privileged occasion."

2. Ill-will, spite, or animosity: Personal hostility toward the plaintiff may indicate an improper purpose. However, as clarified in Roberts v Bass at [76], "mere ill-will" is insufficient; the improper motive must be a substantial actuating cause of the publication.

3. Extraneous defamatory material: Including gratuitous defamatory content not relevant to the privileged purpose may suggest the defendant was using the occasion as a pretext to defame the plaintiff.

4. Excessive publication: Publishing beyond the audience contemplated by the privileged occasion may indicate the defendant's purpose extended beyond the proper scope of the privilege.

Example 5:
A senior employee writes to company management about suspected financial irregularities by another employee. The communication would ordinarily be privileged. However, if the evidence shows the senior employee knew the allegations were false and made them to eliminate a workplace rival, this would constitute malice and defeat the privilege. Similarly, if the email included unnecessary derogatory comments about the subject's personal life unrelated to the financial concerns, this might indicate an improper purpose beyond the privileged occasion.

4.3 Proving Malice

The plaintiff bears the evidentiary and legal onus of proving malice. This is often challenging because it requires insight into the defendant's subjective state of mind.

As explained in Roberts v Bass at [75]-[76], the plaintiff must establish that:

1. The defendant used the occasion for a purpose other than that for which it was privileged, and

2. This improper purpose was a substantial or actuating cause of the publication.

Given the difficulty of direct evidence, malice is typically inferred from surrounding circumstances. Factors that may support an inference of malice include:

• The defendant's knowledge of falsity or reckless disregard for truth

• A pre-existing history of antagonism between the parties

• The inflammatory or excessive language used in the publication

• The gratuitous inclusion of defamatory material unrelated to the privileged purpose

• The absence of reasonable grounds for belief in the truth of the defamatory imputations

• Failure to make appropriate inquiries before publishing serious allegations

Importantly, mere negligence, carelessness, or impulsiveness in making the communication is generally insufficient to establish malice. As the High Court emphasized in Roberts v Bass at [104], "honest or reasonable mistake is the antithesis of malice."

The standard of proof is the civil standard of balance of probabilities. However, given the serious nature of an allegation of malice, courts often require clear and persuasive evidence before drawing such an inference.

4.4 Effect of Proving Malice

If malice is established, the qualified privilege defence fails entirely, regardless of how clearly the occasion would otherwise have been privileged. As stated in Roberts v Bass at [76]:

"If the defendant uses the occasion for some purpose other than that for which the occasion is privileged, he or she loses the privilege."

A finding of malice may also influence other aspects of the proceedings, including:

1. Supporting an award of aggravated damages, as it demonstrates the defendant's improper conduct and may exacerbate the harm to the plaintiff's reputation

2. Potentially influencing the assessment of general damages, as it speaks to the seriousness of the defamation

3. Sometimes bearing on costs determinations, particularly if the defendant persisted with a privilege defence despite evidence of malice

5. Practical Application at Trial

The application of common law qualified privilege at trial involves distinct roles for the judge and jury (where applicable), with careful delineation of questions of law and fact.

5.1 Judicial Determination of Privileged Occasion

Whether an occasion is capable of being privileged is a question of law for the judge. As explained in Adam v Ward [1917] AC 309 (and consistently applied in Australian law), the judge must determine whether the circumstances of publication give rise to a privileged occasion.

This determination requires the judge to:

1. Identify the alleged privileged occasion based on the evidence

2. Assess whether the circumstances satisfy the duty/interest test

3. Determine the proper scope of the privileged occasion (including its audience limits)

4. Rule on whether publication exceeded that scope

If the judge concludes the occasion is not capable of being privileged as a matter of law, the defence is withdrawn from consideration. If the judge finds the occasion is capable of being privileged, the defence proceeds to consideration of malice.

Example 6:
A company director sends an email to shareholders alleging financial impropriety by the CEO. The judge would determine whether this communication falls within a recognized category of privilege (likely as a common interest communication). If instead the director had posted these allegations on social media accessible to the general public, the judge would likely rule no privileged occasion exists and withdraw the defence.

5.2 Factual Determinations

Where facts underpinning the privileged occasion are disputed, these must be resolved by the trier of fact (jury or judge in non-jury trials).

For example, if a defendant claims privilege based on having received a request for information about the plaintiff, but the plaintiff denies any request was made, this factual dispute must be resolved before determining whether the occasion was privileged.

The judge may provide conditional instructions to guide this determination: "If you find request X was made, then the occasion is privileged; if you find no such request was made, the defence fails."

5.3 Malice as a Question of Fact

Once a privileged occasion is established, the question of whether the defendant was actuated by malice is a question of fact for the jury (or judge in non-jury trials).

However, the judge plays a crucial gatekeeping role in determining whether there is sufficient evidence to leave the issue of malice to the jury. As explained in Horrocks v Lowe [1975] AC 135 at 151 (and adopted in Australian law):

"[T]he judge at the trial should not allow the issue of express malice to go to the jury unless there is evidence from which a reasonable jury, properly directed, could infer that the defendant did not use the occasion for the purpose for which the law conferred the privilege."

If the judge concludes there is no evidence capable of supporting an inference of improper motive, the issue of malice should be withdrawn from the jury, and the defence succeeds. If there is such evidence, the jury must determine whether the plaintiff has proven malice on the balance of probabilities.

5.4 Jury Instructions

When instructing a jury on common law qualified privilege, the judge should:

1. Clearly explain the concept of privileged occasion and identify which publications are alleged to be privileged and why

2. Specify the scope of the privileged occasion (including audience limitations)

3. Define malice as the defendant using the privileged occasion for an improper purpose, foreign to the duty or interest that justified the communication

4. Explain that if the jury finds the defendant was actuated by malice, the defence fails; if not, the defence succeeds

5. Summarize the evidence relevant to malice without expressing an opinion on its weight

An appropriate instruction on malice might be:

"Even if you find the occasion was privileged, the plaintiff can defeat the defence by proving the defendant was actuated by malice. In this context, malice means the defendant used the privileged occasion to publish the defamatory matter for some purpose foreign to the duty or interest that protected the communication. This improper purpose must have been a substantial or actuating cause of the publication, not merely incidental. Consider all the evidence, including [summarize relevant evidence], to determine whether the plaintiff has proven on the balance of probabilities that the defendant was substantially motivated by an improper purpose."

6. Relationship with Other Defences

Common law qualified privilege exists alongside other defences, particularly statutory qualified privilege under the Defamation Act 2005 and the statutory public interest defence introduced in 2021 amendments.

While common law qualified privilege has been partially superseded by these statutory defences, it remains available and relevant in certain contexts. It may be particularly valuable where:

1. The publication clearly falls within a traditional duty/interest category but might not satisfy the reasonableness requirement of statutory defences

2. The publication occurred before the commencement of the statutory defences

3. The circumstances align closely with established categories of privilege but might not meet the more structured criteria of statutory provisions

Defendants often plead both common law and statutory qualified privilege in the alternative, allowing flexibility depending on how the evidence unfolds at trial.

7. Conclusion

Common law qualified privilege remains a significant defence in Australian defamation law, despite the development of statutory alternatives. Its underlying principle—protecting communications made in good faith on occasions where public policy demands freedom of expression—continues to serve an important function in balancing competing interests.

The defence succeeds when two essential conditions are met: the communication must occur on a privileged occasion (established through the duty/interest test) and must not be actuated by malice. While the categories of privileged occasions have evolved over time, the fundamental requirement of reciprocity between publisher and recipient remains constant.

Proper application of common law qualified privilege requires precision in identifying the scope of the privileged occasion, clarity regarding the allocation of functions between judge and jury, and careful analysis of evidence relating to malice. When correctly applied, the defence provides appropriate protection for legitimate communications while ensuring those who abuse privileged occasions for improper purposes remain accountable.

When Will Courts Grant Permanent Injunctions in Defamation Cases?

The recent Federal Court of Australia decision in Greenwich v Latham (No 2) [2025] FCA 131 provides valuable insights into when courts will (and won't) grant permanent injunctions to prevent republication of defamatory content. The case involved Alexander Greenwich, a politician, who had previously succeeded in a defamation action against Mark William Latham regarding what the court called the "Primary Tweet."

In the earlier judgment (Greenwich v Latham [2024] FCA 1050), the court found that Latham had defamed Greenwich through a tweet that carried the imputation that Greenwich "engages in disgusting sexual activities." Latham removed the tweet after public outcry but subsequently made various comments on social media and in a radio interview expressing his views on the matter.

After being awarded damages, Greenwich sought permanent injunctive relief to prevent Latham from republishing the defamatory content or similar imputations. In a considered judgment, Justice O'Callaghan dismissed this application, providing useful guidance on the principles governing permanent injunctions in defamation cases.

The Exceptional Nature of Permanent Injunctions in Defamation

Contrary to common belief, permanent injunctions restraining republication of defamatory content are not granted as a matter of course in Australia. As Justice O'Callaghan noted, "until recently such orders were rarely sought" (Greenwich v Latham (No 2) [2025] FCA 131 at [4]).

The position appears somewhat different in England, where permanent injunctions are described as "the natural remedy that flows from the Court's decision" (citing Lachaux v Independent Print Ltd [2021] EWHC 1797 (QB) at [239] and Blake v Fox [2024] EWHC 956 (KB) at [11]).

When Will Permanent Injunctions Be Granted?

The primary condition for granting a permanent injunction is the existence of a real risk of republication. Justice O'Callaghan cited the longstanding principle from Proctor v Bayley (1889) 42 Ch D 390 at 401: "an injunction is granted for prevention, and where there is no ground for apprehending the repetition of a wrongful act there is no ground for an injunction."

In Australian defamation law, injunctions are typically issued only when "some additional factor is evident – usually, an apprehension that the respondent may, by reason of irrationality, defiance, disrespect of the court's judgment or otherwise, publish allegations similar to those found to be defamatory unless restrained from doing so" (Hockey v Fairfax Media Publications Pty Ltd (No 2) (2015) 237 FCR 127 at 130 [15]).

Risk Assessment Is Multi-Faceted

As explained in Rush v Nationwide News Pty Ltd (No 9) [2019] FCA 1383 at [29], courts must consider:

1. The extent of the risk of republication

2. The seriousness of the defamation

3. The hardship the plaintiff would suffer if the defamation was repeated

4. The burden on the plaintiff if required to commence further proceedings

The court must also consider whether granting a permanent injunction would avoid a multiplicity of proceedings.

The Greenwich v Latham Decision

In Greenwich v Latham (No 2), Justice O'Callaghan was not satisfied that there was a real or appreciable risk that Latham would republish the defamatory imputation. Despite Latham's defiant public statements after the initial publication, the court noted that "the applicant has not pointed to any occurrence after May 2023, or after judgment was handed down on 11 September 2024, which might suggest a threat of republication of the defamatory material" (at [19]).

The court rejected the argument that Latham's constitutional right to freedom of communication about political matters was relevant, finding that the content of the Primary Tweet was "personal and not germane to any matter of politics" (at [22]).

Damages as a Remedy in Defamation

An interesting aspect of the judgment is Justice O'Callaghan's discussion of whether damages would be an "adequate remedy" if republication occurred. The court found this question somewhat inapposite in defamation cases, citing the observations of Windeyer J in Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 at 150 that "money and reputation are not commensurables" and damages in defamation serve as "a solatium rather than a monetary recompense for harm measurable in money."

As Hayne J noted in Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327 at 349 [66], "damage to reputation is not a commodity having a market value. Reputation and money are in that sense incommensurable."

However, the adequacy of damages may be relevant in some circumstances. In Tavakoli v Imisides (No 4) [2019] NSWSC 717, permanent injunctions were granted partly because the defendant had "no money or assets which the plaintiff [could] obtain in any remedy in damages" (at [57]).

Examples Where Permanent Injunctions Were Granted

By contrast to Greenwich v Latham (No 2), permanent injunctions have been granted in cases where there was clear evidence of intention to republish. In Chau v Australian Broadcasting Corp (No 3) [2021] FCA 44; (2021) 386 ALR 36 at 82 [184], Justice Rares granted a final injunction because "the publishers have made clear, they intend to continue publishing it and so making those imputations that I have found to be false, seriously defamatory and otherwise indefensible."

Similarly, in Lachaux at [238], the court found that "the claimant had successfully established that, unless an injunction were granted, the defendants would continue to publish the defamatory articles."

Practical Implications

The Greenwich v Latham (No 2) decision highlights several practical considerations for defamation litigants:

1. Permanent injunctions are not automatically granted following a successful defamation claim

2. Evidence of a genuine risk of republication is essential

3. Courts will carefully balance free speech considerations against protection of reputation

4. Even without a permanent injunction, defamation plaintiffs retain the right to commence new proceedings if republication occurs

5. Section 23 of the Defamation Act 2005 (NSW) (and equivalent provisions in other jurisdictions) requires leave of the court to commence further proceedings against the same defendant for the same or like matter, but courts are unlikely to refuse leave if republication causes new or additional damage

This decision serves as a reminder that permanent injunctions in defamation cases remain exceptional remedies that will only be granted when specific circumstances warrant such intervention.

The "Interests of Justice" Exception in Defamation Costs Awards

Introduction: McIntosh v Peterson

The recent Western Australian Supreme Court decision in McIntosh v Peterson [No 3] [2024] WASC 446 provides valuable insights into how courts apply the "interests of justice" exception when awarding costs in defamation matters. In this case, veterinary clinic owners Andrew and Kay McIntosh, along with their business For Paws and Feathers Pty Ltd, sued animal rights activist Natasha Peterson, Jack Higgs, and V-Gan Booty Pty Ltd over a defamatory Facebook post. While the McIntoshes succeeded against Peterson and Higgs (receiving damages totalling $280,000), the claim against V-Gan Booty was dismissed, as were claims for injurious falsehood and civil conspiracy. When it came to costs, Chief Justice Quinlan had to navigate the complex interplay between statutory provisions, litigation conduct, and competing interests to determine the appropriate costs order.

The Statutory Costs Regime in Defamation Law

Defamation law in Australia provides a specific costs regime that differs from the usual "costs follow the event" principle. Section 40 of the Defamation Act 2005 (WA) creates a presumption in favour of indemnity costs in certain circumstances but subjects this to the overriding "interests of justice" exception.

Under s 40(2)(a), if defamation proceedings are successfully brought and the court is satisfied that the defendant "unreasonably failed to make a settlement offer or agree to a settlement offer proposed by the plaintiff," the court must order costs to be assessed on an indemnity basis - "unless the interests of justice require otherwise."

This "interests of justice" exception gives courts significant discretion to consider broader factors when determining costs, even where the statutory trigger for indemnity costs has been activated.

When Do the "Interests of Justice" Override the Presumption?

In McIntosh v Peterson [No 3], Chief Justice Quinlan found that the defendants had unreasonably failed to make a reasonable settlement offer. The defendants' offers of just $2,000 were found to be unreasonable in the circumstances, given that the plaintiffs had already suffered adverse effects and incurred costs. This triggered the presumption in favour of indemnity costs under s 40(2)(a).

However, His Honour went on to find that "the interests of justice require otherwise" for several important reasons:

1. The way parties conducted their cases: Section 40(1)(a) expressly allows the court to consider "the way in which the parties to the proceedings conducted their cases." In this case, the plaintiffs' counsel conducted cross-examination of Ms. Peterson in a particularly problematic manner by making unfounded allegations about her tax affairs. The cross-examination suggested she had declared only $70,000 in receipts from OnlyFans when her actual receipt was $385,000, implying tax fraud. In reality, Ms. Peterson had properly declared all income across her personal and company tax returns. This unfair attack on Ms. Peterson's character was reported in the media, causing reputational harm beyond the proceedings themselves.

2. Mixed success: The plaintiffs were wholly unsuccessful against V-Gan Booty Pty Ltd and failed in two entire causes of action (injurious falsehood and civil conspiracy).

3. Focus of the litigation: The plaintiffs' case had significant focus on Ms. Peterson's financial affairs and V-Gan Booty Pty Ltd's OnlyFans business, which the court found "permeated the plaintiffs' case" but was ultimately unnecessary to establish their defamation claims.

Understanding "Conducting a Case" in Context

The concept of how a party "conducts their case" is particularly important in defamation proceedings, where litigation tactics can significantly affect both the course of the proceedings and reputational impacts beyond the courtroom.

In McIntosh, the plaintiffs' conduct of their case extended beyond merely presenting their claims. Their litigation approach included:

1. Pursuing multiple defendants and causes of action, including against a company not incorporated at the time of the original Facebook post

2. Making an "elaborate case" suggesting Ms. Peterson's animal rights activism was "a ploy for making money"

3. Conducting cross-examination in a way that made serious allegations about tax impropriety that were unfounded and misleading

4. Focusing significantly on Ms. Peterson's financial affairs, which Chief Justice Quinlan found unnecessary for vindicating the plaintiffs' reputations

Quinlan CJ stated that "a party that conducts proceedings in that way should expect that it has costs consequences." This demonstrates that how parties choose to litigate defamation claims—particularly their focus, tactics, and treatment of opposing parties—can directly impact costs outcomes despite the statutory presumption.

Practical Implications for Litigants

The McIntosh decision offers several practical lessons for litigants:

1. Early resolution is crucial: The court described the settlement offers as revealing "the anatomy of a lost opportunity at resolution and... the metastatic effect that legal costs have on the prospect that proceedings can sensibly be resolved." Chief Justice Quinlan observed that much of the harm suffered by the plaintiffs could have been avoided if the matter had been resolved early.

2. Make reasonable settlement offers: Defendants should make genuine attempts to resolve matters with reasonable offers. The sum of $2,000 was deemed "simply unreasonable" even at an early stage.

3. Consider proportionality: In McIntosh, the court noted that some claims (particularly the clinic's claim) were relatively minor in monetary terms and even fell within the monetary jurisdiction of the Magistrates Court jurisdiction.

4. Focus on reputation restoration: Defamation proceedings should focus primarily on vindicating reputation rather than attacking the defendant's character beyond what is necessary for the claim.

5. The "interests of justice" exception has meaningful application: Even when the statutory preconditions for indemnity costs are met, courts retain a genuine discretion to make different orders where the interests of justice require.

Distinguishing Indemnity Costs from Special Costs Orders

It's important to note that the judgment in McIntosh also addressed a separate costs issue: whether to make a "special costs order" under s 141(3) of the Legal Profession Uniform Law Application Act 2022 (WA) to remove limits imposed by the relevant costs determinations. This is distinct from the question of indemnity costs under the Defamation Act.

While the court declined to award indemnity costs under s 40(2) of the Defamation Act, it did make a limited special costs order allowing:

• Removal of time limits for preparation of the case

• An increased hourly rate for counsel (to match senior counsel rates)

This highlights that courts have multiple tools for addressing costs and will apply them proportionately based on the specific circumstances of each case.

Conclusion

The "interests of justice" exception in s 40(2) of the Defamation Act provides courts with important flexibility to ensure costs orders reflect the overall conduct of proceedings and achieve fairness between parties. As demonstrated in McIntosh v Peterson [No 3] [2024] WASC 446, even where a party has technically triggered the presumption in favour of indemnity costs, the court will look holistically at all relevant circumstances.

For defamation practitioners, this case serves as an important reminder that how you conduct litigation—from the framing of claims to cross-examination tactics—can significantly impact costs outcomes. The interests of justice require not just consideration of who won, but how they won, and whether their conduct throughout the proceedings merits the significant benefit of indemnity costs.

Individual Sensitivities in Defamation Damages: Taking Plaintiffs As You Find Them

Introduction: The Michelmore Case

In a recent Western Australian defamation case, Michelmore v Brown [No 3] [2025] WASC 9, the Supreme Court of Western Australia awarded damages to a legal practitioner who had been defamed by former clients. The case involved two defamatory emails – one sent by a single defendant and another sent by multiple defendants – containing statements that seriously impugned the lawyer's integrity and professional competence. Justice Tottle found the statements were "grossly defamatory," had "no foundation in fact," and were "wholly indefensible." The court awarded $70,000 for the first email and $90,000 for the second email, with both amounts including aggravated damages.

The Egg-Shell Skull Rule in Defamation

One of the key considerations in assessing damages for defamation is the principle that defendants must "take their plaintiffs as they find them." This concept, similar to the "egg-shell skull" rule in personal injury law, recognizes that individuals may react differently to defamatory publications based on their personal sensitivities and circumstances.

As Justice Tottle noted in Michelmore, citing Cassell & Co Ltd v Broome [1972] UKHL 3; [1972] AC 1027, "damages for injured feelings, however innocent the publication by the defendant may have been, form a large element in the assessment." This principle acknowledges that the harm caused to plaintiffs by defamatory material often lies more in their own feelings about what others might be thinking about them than in any actual change in the attitudes of others toward them.

Individual Sensitivity and Damage Assessment

When assessing damages in defamation cases, courts consider several factors related to a plaintiff's individual sensitivity:

1. Personal and professional reputation: In Crampton v Nugawela (1996) 41 NSWLR 176, applied in John Fairfax Publications Pty Ltd v O'Shane (No 2) [2005] NSWCA 291, the court emphasized that damage awards should "reflect the high value which the law places upon reputation and, in particular, upon the reputation of those whose work and life depends upon their honesty, integrity and judgment."

2. Subjective impact of the defamation: Courts recognize that the same defamatory statement might affect different plaintiffs in vastly different ways, depending on their personal circumstances, position in society, and psychological makeup.

3. The plaintiff's actual distress: While damage to reputation is presumed and need not be proved, evidence of actual distress can influence the quantum of damages. In Michelmore, the court accepted evidence of the significant distress experienced by the plaintiff, including her testimony that she felt "her stomach had dropped out of [her] body" upon reading one of the defamatory emails.

Balancing Subjective and Objective Elements

Despite the importance of individual sensitivities, courts maintain a balancing approach. As noted in Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44, there are three purposes served by damages in defamation:

1. Consolation for personal distress and hurt

2. Reparation for harm to reputation

3. Vindication of the plaintiff's reputation

The first two purposes address the subjective harm to the plaintiff, while the third looks more objectively at how others might perceive the plaintiff following the defamation. In Michelmore, Justice Tottle noted that "the sum awarded must be at least the minimum necessary to signal to the public the vindication of the plaintiff's reputation," drawing on principles established in Carson v John Fairfax & Sons Ltd.

Impact of Defendant's Conduct

The court in Michelmore also considered the defendants' conduct in assessing damages. Citing principles from Triggell v Pheeney (1951) 82 CLR 497 and as explored in Cerutti v Crestside Pty Ltd [2014] QCA 33; [2016] 1 Qd R 89, damages may be aggravated by the defendant's conduct before, during, and after publication.

Justice Tottle found that the defendants' failure to apologize and their persistence in maintaining unfounded allegations throughout the proceedings significantly aggravated the plaintiff's injury. This is consistent with the principle articulated in Herald & Weekly Times Ltd v McGregor (1928) 41 CLR 254 that a respondent's failure to provide any apology is pertinent to the assessment of damages.

Conclusion

The Michelmore case reaffirms that when assessing damages in defamation cases, courts will consider the individual sensitivities of plaintiffs while balancing this against objective factors. As stated in Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118, the assessment of damages involves "a mixture of inextricable considerations."

For defendants, this means understanding that the law requires them to take plaintiffs as they find them – with all their unique sensitivities and vulnerabilities. For plaintiffs, it means that the law recognizes that defamation can cause significant subjective harm, even when others might not perceive any change in a plaintiff's standing or reputation.

As defamation law continues to evolve in the digital age, this principle – that damages should reflect both the objective harm to reputation and the subjective harm to feelings – remains a cornerstone of how courts approach the complex task of compensating defamation victims.

Defamatory Imputations: How Courts Determine What Words Really Mean

Recent Case Example: JABBIE v GBANGAYE

In a recent Supreme Court of Western Australia decision, JABBIE v GBANGAYE [2025] WASC 73, the Court examined defamation arising from a podcast that was livestreamed on Facebook. The case involved two women who had come to Australia as refugees from Liberia. The defendant, a self-styled "talk-show host," made serious allegations about the plaintiff during a podcast discussing the murder of Janet Dweh. The plaintiff's estranged husband had been arrested and charged with the murder three weeks prior to the podcast. The Court found that the defendant made statements implying the plaintiff was complicit in the murder, that she was a violent person, that she had harassed the victim, and that she practiced witchcraft. These defamatory statements were widely viewed within the Liberian community in Australia and internationally. The plaintiff was awarded $325,000 in general damages and $70,400 in special damages.

Understanding Defamatory Imputations

When determining whether something is defamatory, courts consider two key questions: what meaning do the words convey (the imputation), and is that meaning defamatory? In legal terms, an "imputation" refers to the meaning that ordinary reasonable people would take from the publication.

As noted in Reader's Digest Services Pty Ltd v Lamb (1982) 150 CLR 500 at 506, these questions involve "the meaning of the words used (the imputation) and the defamatory character of the imputation." Both are assessed through the lens of the ordinary, reasonable reader or viewer.

The Ordinary Reasonable Person Standard

Courts apply a single standard—that of the "ordinary reasonable person"—which yields a single meaning from potentially competing interpretations. This approach was affirmed in Trkulja v Google [2018] HCA 25; (2017) 263 CLR 144 at [32], where the High Court described the exercise as "one in generosity and not parsimony."

The ordinary reasonable person:

• Is not a lawyer examining the publication with legal scrutiny

• Views the publication casually

• May be prone to "loose thinking"

• Reads between the lines based on general knowledge and experience

• Draws implications much more freely than a lawyer, especially derogatory ones

• Takes into account emphasis given by headlines or captions

This means that courts interpret potentially defamatory content from the perspective of how average people would understand it, not through technical legal analysis.

Different Types of Imputations: Natural Meaning and True Innuendo

Defamation law recognizes two ways imputations can arise:

Natural and Ordinary Meaning

This refers to the meaning that would be understood by an ordinary reasonable person without any special knowledge. In JABBIE v GBANGAYE, statements like "you Charlene will never go free ... your hands are behind the death of Agnes" conveyed a clear imputation that the plaintiff was complicit in murder through their natural and ordinary meaning.

True Innuendo and Extrinsic Facts

True innuendo arises when words seem innocuous on their face but become defamatory when combined with extrinsic facts known to the audience. For example, in Lewis v Daily Telegraph Ltd [1964] AC 234, Lord Reid explained that a statement might appear innocent to those without special knowledge but defamatory to those who possess certain background information.

Extrinsic facts are facts not contained in the publication itself but known to some or all of the audience. These facts can transform seemingly innocent statements into defamatory ones. For a true innuendo case to succeed, a plaintiff must:

1. Plead the extrinsic facts

2. Prove these facts were known to at least some recipients of the publication

3. Demonstrate how these facts, combined with the published words, conveyed the defamatory imputation

While not explicitly analysed in the JABBIE v GBANGAYE case, true innuendo represents an important concept in defamation law that deserves exploration. This differs from what happened in JABBIE, where the court found the imputations about witchcraft were conveyed through the ordinary meaning of terms like "juju" and "medicine" within the context of the publication. Justice Tottle simply held that "the ordinary reasonable viewer of the podcast would understand the references to juju and witchcraft to refer to the plaintiff" without requiring any special knowledge outside the publication.

A Step-by-Step Guide to Drafting and Proving True Innuendo Imputations

To illustrate how true innuendo works in practice, consider the following fictional example:

Imagine a local newspaper publishes: "Dr. Thompson was seen leaving the Grand Hotel at midnight after visiting Room 712." On its face, this statement merely describes a doctor leaving a hotel, which is not inherently defamatory.

Step 1: Identify the Extrinsic Facts

The plaintiff (Dr. Thompson) must first identify the extrinsic facts that transform the innocent statement into a defamatory one:

• Dr. Thompson is a respected family physician who serves as an examiner for medical certification tests

• Medical certification examinations were scheduled at the university the following day

• The Grand Hotel is where out-of-town students stay when taking these exams

• Room 712 was occupied by a student who was scheduled to take the exam the next day

• The medical board has strict rules prohibiting examiners from having private meetings with students before examinations

Step 2: Draft the True Innuendo Imputation

The plaintiff must clearly articulate how these extrinsic facts combine with the published words to convey a defamatory meaning: "The words meant and were understood to mean that the plaintiff was compromising the integrity of medical examinations by privately meeting with a student before their test, thereby acting unethically, violating professional standards, and abusing his position of trust as an examiner."

Step 3: Plead the Publication, Words, and Extrinsic Facts

In court documents, the plaintiff must carefully articulate all elements of the case:

• Quote the exact words published: "Dr. Thompson was seen leaving the Grand Hotel at midnight after visiting Room 712."

• Clearly identify the publication details (date, newspaper name, circulation numbers, page number)

• Explicitly plead each extrinsic fact, including:

• Dr. Thompson's role as a medical examiner for upcoming certification tests

• The scheduled examinations at the university the following day

• The Grand Hotel's status as lodging for out-of-town exam candidates

• Evidence that a student scheduled for examination was staying in Room 712

• The medical board's ethical guidelines prohibiting private meetings between examiners and candidates prior to examinations

• Connect these facts to show how readers with knowledge of these circumstances would understand the defamatory meaning implied by the otherwise innocent statement

Step 4: Prove Knowledge of Extrinsic Facts

The plaintiff must demonstrate that at least some recipients of the publication possessed knowledge of the extrinsic facts:

• Testimony from fellow medical professionals who read the article and recognized Dr. Thompson as an examiner for the upcoming tests

• Evidence showing awareness within the medical community about which students were staying at the Grand Hotel for examinations

• Witness statements confirming common knowledge about Room 712's occupant

• Documentation of the medical community's familiarity with ethical guidelines regarding examiner-candidate interactions

• Evidence that readers connected the timing of the hotel visit with the next day's scheduled examinations

Step 5: Demonstrate How Meaning Arises

The plaintiff needs to establish the logical connection between the published words and the extrinsic facts:

• Explain why readers with knowledge of the examination schedule would find significance in a midnight visit to a specific room

• Demonstrate how readers familiar with medical ethics would interpret a late-night visit to a candidate's hotel room as improper

• Show why the combination of Dr. Thompson's examiner status, the timing of the visit, and the identity of the room's occupant would lead reasonable readers to infer unethical conduct

• Present evidence that readers actually drew this conclusion upon reading the article

Step 6: Address Potential Defences

Anticipate and counter potential defences the publisher might raise:

• If the defendant claims the extrinsic facts were not sufficiently widespread, provide evidence of their community knowledge

• If the defendant argues readers would not draw defamatory meaning even with knowledge of these facts, present testimony from actual readers who did make this connection

• Counter any claim of an "innocent explanation" by showing why readers would more likely infer impropriety given the specific context

• Address potential truth defences by distinguishing between the literal truth of the statement (Dr. Thompson visited the room) and the false defamatory imputation (that he was compromising examination integrity)

• Prepare for arguments that the statement was merely opinion by demonstrating that the imputation presents as a factual assertion

These steps form a comprehensive approach for establishing and proving a true innuendo case, showing how seemingly innocent words become defamatory when interpreted by readers who possess specific background knowledge about the situation.

When Imputations Are Conveyed

In JABBIE v GBANGAYE, the defendant admitted some imputations were conveyed by her words but denied others. The Court found that serious imputations were indeed conveyed, including that the plaintiff was complicit in murder.

It's important to note that the vehemence with which statements are made can overwhelm qualifiers like "allegedly" or "I believe." As Justice Tottle observed, "in the context of a publication on social media the ordinary reasonable viewer would not have attached any significance to the words 'allegedly' or 'I believe'."

No Defence for Repeating Rumours

A critical principle reinforced in this case is that publishing defamatory statements about a person prefaced by qualifying words does not protect the publisher from liability. As Lord Denning colourfully stated in Associated Newspapers Ltd v Dingle [1964] AC 371 at 410:

"Our English law does not love tale-bearers. If the report or rumour was true, let him justify it. If it was not true, he ought not to have repeated it or aided its circulation. He must answer for it just as if he had started it himself."

This principle was similarly expressed in King v Telegraph Group Ltd [2004] EWCA Civ 613 at [22], where the Court held that a person who repeats a defamatory statement about another can only succeed in justifying the statement by proving the truth of the underlying allegation, not merely the fact that the allegation has been made.

The Defamatory Character of Imputations

For an imputation to be defamatory, it typically:

• Lowers a person's standing in the community

• Lowers the estimation in which people hold that person, or

• Causes people to think less of the plaintiff

As established in Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16; (2009) 238 CLR 460, the test is whether the publication would tend to lead ordinary reasonable members of society to think less of the plaintiff.

In practice, once the meaning of words is determined, whether that meaning is defamatory is often straightforward. In JABBIE v GBANGAYE, the imputations that the plaintiff was complicit in murder, practiced witchcraft, and was violent were plainly defamatory.

Context Matters

The context in which statements are made can significantly influence how imputations are understood. In social media publications, inflammatory and emotive language can amplify the defamatory nature of statements. The Court in JABBIE v GBANGAYE noted that the defendant's comments "were calculated to excite condemnation of the plaintiff" and that she "made no attempt at balance or restraint."

Conclusion

Understanding how courts determine defamatory imputations is crucial for both plaintiffs and defendants in defamation proceedings. The law recognizes that words can carry meanings beyond their literal interpretation and that these meanings are assessed from the perspective of ordinary people, not legal experts.

Whether you're a content creator, social media user, or someone potentially affected by defamatory content, it's important to understand that courts look beyond technical qualifiers like "allegedly" to determine the real message conveyed to audiences. As JABBIE v GBANGAYE demonstrates, the repetition of serious allegations, even when framed as rumours or speculation, can lead to substantial damages when they harm someone's reputation.

The complexities of true innuendo and extrinsic facts further highlight the need for careful consideration of context and audience when assessing potential defamation risks. What might seem harmless to one audience could be deeply defamatory to another who possesses the relevant background knowledge.