Malice in Defamation: Meaning, Role, and Proof in Western Australian Law

1. Introduction

Significance of Malice

The concept of 'malice' occupies a pivotal position within Australian defamation law. While not an element of the cause of action itself, malice becomes critically relevant when a defendant seeks to rely upon certain defences, most notably qualified privilege (both statutory and common law) and honest opinion (or its common law precursor, fair comment). Proof that a defamatory publication was actuated by malice—essentially, made with an improper motive or state of mind—can negate these defences, stripping the defendant of legal protection that might otherwise be available (Roberts v Bass (2002) 212 CLR 1 at [62]-[65] per Gaudron, McHugh and Gummow JJ).

Purpose and Scope

This section provides guidance on the definition, role, proof, and procedural handling of malice in defamation proceedings. It focuses on the application of malice under the Defamation Act 2005 (WA) ('the Act') and the relevant common law principles preserved by the Act. The aim is to offer practical assistance, grounded in established jurisprudence, particularly from the High Court of Australia and relevant appellate courts, with specific reference to Western Australian provisions and case law where feasible.

Structure Overview

This analysis will proceed by:

• Defining malice as understood in Australian common law, which informs its application under the Act.

• Explaining the specific role of malice in defeating the statutory defences of qualified privilege (s 30) and honest opinion (s 31) under the WA Act, as well as analogous common law defences.

• Detailing the requirements for pleading and proving malice, including the burden and standard of proof, and the types of evidence typically relied upon.

• Illustrating the principles through analysis of key case law examples where malice was successfully or unsuccessfully argued.

• Providing practical guidance, including considerations for assessing evidence and directing juries on the issue of malice.

Context: Balancing Interests

Defamation law operates at the intersection of competing fundamental values: the right of an individual to protection of their reputation and the right to freedom of expression, particularly concerning matters of public interest (Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 568). The defences available in defamation, and the concept of malice which qualifies some of those defences, represent mechanisms by which the law attempts to strike a balance between these competing interests. Malice serves as a threshold, ensuring that defences designed to protect legitimate communication are not abused for improper ends.

2. Defining Malice in Australian Defamation Law

Common Law Foundation

The Defamation Act 2005 (WA), consistent with uniform defamation legislation across Australia, does not provide a statutory definition of 'malice.' Section 6(2) of the Act expressly states that the Act does not affect the operation of the general law in relation to the tort of defamation except to the extent the Act provides otherwise. Consequently, the meaning of malice, particularly where it is relevant to defeating statutory defences like qualified privilege under section 30(4), is derived from established common law principles. The general law continues to apply to determine whether a publication was actuated by malice when such a finding may defeat a defence.

Core Concepts: Improper Purpose

At its core, malice in defamation law signifies the misuse of an occasion or defence for an improper purpose. Where a defence like qualified privilege exists, it is granted by law to serve a particular public or private interest (e.g., the performance of a duty, the protection of a common interest). Malice arises when the defendant uses that occasion not for its intended purpose, but for some ulterior or foreign motive (Roberts v Bass (2002) 212 CLR 1 at [75]-[76] per Gaudron, McHugh and Gummow JJ).

The seminal articulation of this principle comes from Lord Diplock in Horrocks v Lowe [1975] AC 135 at 149, who stated that qualified privilege is lost if the defendant "misused the occasion for some purpose other than that for which the privilege is accorded by the law." The privilege attaches to the occasion, but it can be defeated if the defendant abuses that occasion. Examples of such improper purposes include publishing out of personal spite, ill will, vindictiveness, or a desire to injure the plaintiff that is unconnected to the duty or interest protected by the privilege (Horrocks v Lowe [1975] AC 135 at 149).

The legal definition of malice thus focuses sharply on the defendant's subjective dominant purpose at the time of publication. This makes it distinct from objective assessments of reasonableness or negligence, although such factors can be relevant evidence from which the subjective purpose might be inferred (Roberts v Bass (2002) 212 CLR 1 at [75]-[76]). This subjective focus is critical: proving, for instance, that a defendant's conduct was objectively unreasonable for the purposes of establishing statutory qualified privilege under section 30(1)(c) of the WA Act is a different exercise from proving the subjective improper purpose required for malice under section 30(4).

The 'Dominant Purpose' Test

Crucially, for malice to be established, the plaintiff must prove that the improper purpose was the dominant or actuating motive for the publication (Roberts v Bass (2002) 212 CLR 1 at [76]). As the High Court affirmed, malice requires proof that the improper motive was the substantial or driving reason for the publication. The mere co-existence of some ill will or secondary improper motive alongside a genuine and dominant proper purpose (i.e., fulfilling the duty or protecting the interest relevant to the privilege) is generally insufficient to establish malice (Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30 at 50-51). The improper purpose must be the primary driver.

Knowledge of Falsity and Reckless Indifference

A defendant's state of mind regarding the truth or falsity of the defamatory matter is highly relevant to determining their purpose.

• Knowledge of Falsity: Publishing defamatory matter knowing it to be false is generally regarded as almost conclusive evidence of malice (Horrocks v Lowe [1975] AC 135 at 150). If a defendant knowingly publishes falsehoods, it is difficult to conceive that they are acting for a purpose protected by the law; such conduct inherently points to an improper motive.

• Reckless Indifference: Publishing defamatory matter with reckless indifference as to its truth or falsity—that is, publishing without caring whether it is true or false—is treated by the law as equivalent to knowledge of falsity (Horrocks v Lowe [1975] AC 135 at 150). Such recklessness demonstrates a lack of honest belief and is strong evidence from which malice (an improper dominant purpose) can be inferred.

While knowledge of falsity or recklessness are often described as forms of malice, it is perhaps more accurate to understand them as powerful evidence from which the core element of malice—the improper dominant purpose—can be inferred. As discussed in Roberts v Bass (2002) 212 CLR 1 at [78], the absence of a positive, honest belief in the truth of the statement is a significant factor pointing towards potential malice, but it is the underlying improper purpose, often evidenced by such recklessness or knowledge, that constitutes malice itself. This suggests a potential two-stage analysis for the fact-finder: first, assessing the defendant's state of knowledge or belief (e.g., knew it was false, was reckless, honestly believed it true), and second, inferring whether this state of mind, combined with other evidence, reveals a dominant purpose foreign to the privilege.

Distinguishing Malice from Other Conduct

It is essential to distinguish malice from other states of mind or conduct that do not necessarily defeat a defence:

• Carelessness or Negligence: Malice is not established by mere carelessness, negligence, impulsiveness, irrationality, prejudice, drawing conclusions from insufficient evidence, or failing to verify facts, unless such conduct is so gross as to warrant an inference of reckless indifference to the truth (Horrocks v Lowe [1975] AC 135 at 150). As established in Horrocks v Lowe, honest belief, even if formed carelessly or based on prejudice, can negate malice if the occasion was used for its proper purpose.

• Strong Language: The use of strong, vehement, or exaggerated language does not, in itself, constitute malice (Horrocks v Lowe [1975] AC 135 at 151). Particularly in contexts such as political debate or a response to an attack, a degree of latitude is allowed. However, language that is utterly disproportionate to the facts or the occasion can be evidence from which an inference of malice might be drawn (Adam v Ward [1917] AC 309 at 339 per Lord Atkinson).

• Honest Belief: A genuine, positive belief in the truth of the defamatory statement is generally inconsistent with malice, even if that belief is mistaken, prejudiced, or unreasonable, provided the dominant purpose of the publication was proper to the occasion (Horrocks v Lowe [1975] AC 135 at 150). However, the High Court in Roberts v Bass indicated that the absence of an honest belief, while not malice per se, is significant evidence pointing towards it ((2002) 212 CLR 1 at [78]).

• Political Motive: In the context of political communication, particularly during election campaigns, an intention to cause political damage to an opponent does not, by itself, constitute an improper motive amounting to malice (Roberts v Bass (2002) 212 CLR 1 at [104]-[105]). This principle reflects the constitutional protection afforded to political communication following Lange v Australian Broadcasting Corporation (1997) 189 CLR 520.

3. The Role of Malice in Defeating Defences

General Principle

The rationale for malice defeating defences like qualified privilege and honest opinion lies in the purpose of these defences. They are designed to protect communications made in good faith for legitimate societal or individual purposes (e.g., fulfilling a duty, sharing information on matters of common interest, expressing genuine opinions on public matters). Proof of malice demonstrates that the defendant has abused the protection afforded by the defence, using the occasion or the expression of opinion as a pretext for pursuing an improper objective, such as venting personal spite or knowingly spreading falsehoods (Roberts v Bass (2002) 212 CLR 1 at [62]-[65]).

Statutory Qualified Privilege (s 30 Defamation Act 2005 (WA))

Section 30 of the Act provides a statutory defence of qualified privilege. To establish this defence, the defendant must prove:

• The recipient had an interest or apparent interest (defined in s 30(2)) in having information on some subject (s 30(1)(a)).

• The matter was published to the recipient in the course of giving information on that subject (s 30(1)(b)).

• The conduct of the defendant in publishing the matter was reasonable in the circumstances (s 30(1)(c)). Section 30(3) lists non-exhaustive factors a court may consider in assessing reasonableness, such as the seriousness of the imputation, steps taken to verify, whether the plaintiff's side was sought, and the public interest nature of the matter (Austin v Mirror Newspapers Ltd (1985) 3 NSWLR 354).

However, section 30(4) explicitly states: "For the avoidance of doubt, a defence of qualified privilege under subsection (1) is defeated if the plaintiff proves that the publication of the defamatory matter was actuated by malice."

The requirement of 'reasonable conduct' in s 30(1)(c) and the 'malice' defeater in s 30(4) are distinct concepts. A defendant's conduct might be found unreasonable based on the objective factors in s 30(3) (e.g., failing to verify information adequately) without necessarily rising to the level of subjective malice (Harbour Radio Pty Ltd v Trad (2012) 247 CLR 31 at [33]). Conversely, while less likely, it is theoretically possible for conduct to appear reasonable on its face but still be driven by a dominant improper motive (malice). In practice, however, factors strongly indicating malice, such as knowledge of falsity or reckless indifference, would almost certainly render the publishing conduct unreasonable under s 30(1)(c).

This structure creates a potential two-stage inquiry for statutory qualified privilege. The defendant must first satisfy the court that their conduct was objectively reasonable. Even if they succeed, the plaintiff has a second opportunity to defeat the defence by proving subjective malice. This contrasts with traditional common law qualified privilege, which primarily required the defendant to establish the privileged occasion (duty/interest reciprocity), immediately shifting the onus to the plaintiff to prove malice without a separate 'reasonableness' hurdle for the defendant (Roberts v Bass (2002) 212 CLR 1). Consequently, the statutory defence under section 30 may, in some circumstances, offer less robust protection to publishers than its common law counterpart, a point noted by the High Court in Aktas v Westpac Banking Corporation Ltd (2010) 241 CLR 79.

Honest Opinion (s 31 Defamation Act 2005 (WA))

Section 31 provides a defence for the publication of honest opinion. The core elements require the defendant to prove:

• The matter was an expression of opinion rather than a statement of fact (s 31(1)(a)).

• The opinion related to a matter of public interest (s 31(1)(b)).

• The opinion was based on proper material, meaning material that is substantially true, or published on an occasion of absolute or qualified privilege, or protected by other specified defences (ss 31(5), 31(6)) (Fairfax Media Publications Pty Ltd v Voller (2021) 271 CLR 34).

The defence applies to opinions expressed by the defendant personally (s 31(1)), an employee or agent (s 31(2)), or a third-party commentator whose opinion the defendant publishes (s 31(3)).

The defence under section 31 is defeated if the plaintiff proves the specific state of mind set out in section 31(4). This subsection provides that the defence fails if the plaintiff proves that:

• (For the defendant's own opinion under s 31(1)): "the opinion was not honestly held by the defendant at the time the defamatory matter was published" (s 31(4)(a)).

• (For an employee/agent's opinion under s 31(2)): "the defendant did not believe that the opinion was honestly held by the employee or agent at the time the defamatory matter was published" (s 31(4)(b)).

• (For a commentator's opinion under s 31(3)): "the defendant had reasonable grounds to believe that the opinion was not honestly held by the commentator at the time the defamatory matter was published" (s 31(4)(c)).

While section 31(4) uses the phrase "not honestly held" rather than "actuated by malice," the concepts are functionally very similar in this context (Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245 at [3] per Gleeson CJ). Proving that an opinion was not genuinely held by the person expressing it effectively establishes an improper purpose—the defence is intended to protect genuine expressions of opinion, not statements dishonestly presented as opinion. The focus is squarely on the subjective belief (or lack thereof) of the relevant opinion holder at the time of publication.

The distinct terminology used in the Act—"actuated by malice" for qualified privilege (s 30(4)) versus "opinion was not honestly held" for honest opinion (s 31(4))—is noteworthy. While both require proof of an improper subjective state, this linguistic variation might influence how arguments are framed. For section 30, arguments might encompass a broader range of improper motives potentially extraneous to the truth of the statement itself. For section 31, the argument is more tightly focused on whether the opinion expressed was genuinely believed by the relevant person.

Common Law Defences

Section 24 of the Act preserves defences available under the general law, except to the extent the Act provides otherwise. Malice remains relevant to defeating key common law defences:

• Common Law Qualified Privilege: This defence arises in situations involving a reciprocity of duty and interest between publisher and recipient, or where a statement is made in reply to an attack (Toogood v Spyring (1834) 1 CM & R 181; 149 ER 1044). It is defeated if the plaintiff proves the publication was actuated by malice, understood as an improper or foreign purpose, applying the principles from Horrocks and Roberts (Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366).

• Common Law Fair Comment: This defence protects expressions of opinion on matters of public interest based on true facts (Silkin v Beaverbrook Newspapers Ltd [1958] 1 WLR 743). It is defeated by proof of malice, typically established by showing the comment did not represent the defendant's genuine opinion or was motivated by an improper purpose (London Artists Ltd v Littler [1969] 2 QB 375 at 392-393). While largely superseded by the statutory defence in s 31, the common law defence remains available (Manock v Channel Seven Adelaide Pty Ltd [2006] SASC 192).

4. Proving Malice

Burden and Standard of Proof

The legal burden of proving that a publication was actuated by malice rests squarely and solely on the plaintiff (Horrocks v Lowe [1975] AC 135 at 149-150). Once the defendant establishes the factual basis for a defence capable of being defeated by malice (e.g., the existence of a privileged occasion or the elements of honest opinion), the onus shifts to the plaintiff to prove, on the balance of probabilities, that the defendant acted with the requisite malice (Roberts v Bass (2002) 212 CLR 1 at [76]). The evidence adduced by the plaintiff must be "credible, substantial evidence and not a surmise or a minimal amount of evidence" sufficient to support a positive finding of malice (Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30 at 51).

Pleading Requirements

A plaintiff who intends to allege malice to defeat a defence must plead it specifically. It is not sufficient merely to deny the defence in the statement of claim or rely on an implied joinder of issue. Malice must be raised affirmatively in a Reply to the defendant's Defence (Clyne v The New South Wales Bar Association (1960) 104 CLR 186 at 203).

Furthermore, the pleading must contain full particulars of the facts, matters, and circumstances relied upon by the plaintiff to establish the allegation of malice (Bailey v Australian Broadcasting Corporation [1995] Aust Torts Reports ¶81-336). General allegations or boilerplate assertions of malice are insufficient and liable to be struck out. In Western Australia, Order 20, rule 13(1) of the Rules of the Supreme Court 1971 (WA) requires that particulars be given of any pleading alleging a condition of mind, such as malice. Order 20, rule 8 also requires specific pleading of matters which might otherwise take the opposing party by surprise.

The requirement for detailed particulars is not merely procedural; it serves a crucial function in defining the scope of the factual dispute regarding the defendant's state of mind. It compels the plaintiff to articulate the specific basis for the malice allegation at an early stage, enabling the defendant to understand the case they must meet and preventing trial by ambush (Bailey v Australian Broadcasting Corporation [1995] Aust Torts Reports ¶81-336). The plaintiff will generally be confined at trial to proving malice based on the particulars pleaded.

Evidence of Malice

Since malice pertains to the defendant's subjective state of mind or dominant purpose, direct evidence is often unavailable. Consequently, malice must usually be inferred from circumstantial evidence (Roberts v Bass (2002) 212 CLR 1 at [79]). This evidence can be broadly categorised as intrinsic (arising from the publication itself) and extrinsic (arising from circumstances outside the publication).

• Intrinsic Evidence:

  • Language: The tone and terms of the publication. Language that is excessive, vitriolic, sensationalised, or clearly disproportionate to the facts or the occasion may suggest an improper motive (Horrocks v Lowe [1975] AC 135 at 151). However, caution is required, as strong or prejudiced language alone does not equate to malice, especially in certain contexts (Adam v Ward [1917] AC 309 at 339-340).

  • Mode and Extent of Publication: Publishing the defamatory matter more widely than the privileged occasion warrants can indicate malice (Roberts v Bass (2002) 212 CLR 1 at [104]). For example, broadcasting allegations to the public when the duty/interest relationship only exists with a specific individual.

  • Inclusion of Irrelevant Matter: Including defamatory statements that are clearly irrelevant to the purpose of the privileged occasion may suggest the occasion is being used as a cloak for malice (Adam v Ward [1917] AC 309 at 334).

  • Lack of Factual Basis: A complete absence of any foundation for the defamatory statement within the publication itself might support an inference of recklessness or improper motive (Webb v Bloch (1928) 41 CLR 331 at 363-364).

  • Internal Evidence of Falsity: The publication itself might contain information known to the defendant that contradicts the defamatory imputation (Turner v Metro-Goldwyn-Mayer Pictures Ltd [1950] 1 All ER 449 at 461).

• Extrinsic Evidence:

  • Defendant's Knowledge or Belief: Evidence that the defendant knew the statement was false, or had no positive belief in its truth, or was recklessly indifferent (Horrocks v Lowe [1975] AC 135 at 150).

  • Defendant's Conduct: Evidence of prior hostility, arguments, disputes, threats, or expressions of ill will between the defendant and the plaintiff can indicate an underlying improper motive (Thomas v Mowbray [1935] 2 KB 113 at 120).

  • Sources and Verification: Evidence that the defendant relied on sources known to be unreliable, deliberately avoided obvious sources of information, or failed to make reasonable inquiries or attempts to verify the defamatory allegations, particularly when serious and easily checkable, can point to reckless indifference (Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 at 51-52 per Brennan J).

  • Response to Contradiction/Apology: Evidence that the defendant refused to listen to or publish an explanation or contradiction offered by the plaintiff, or unreasonably refused to apologise or retract the statement after its falsity was demonstrated, can be relevant (Wakley v Cooke (1849) 4 Ex 511 at 515-516; 154 ER 1315 at 1317).

  • Repetition: Unjustified repetition of the defamatory statement, especially after its falsity has been pointed out, may indicate malice (Clark v Molyneux (1877) 3 QBD 237 at 247).

  • Evidence of Plan or Conspiracy: Evidence showing the publication was part of a deliberate plan or conspiracy to injure the plaintiff (Angel v H H Bushell & Co Ltd (1968) 1 QB 813 at 831-832).

  • Attempts to Mislead or Conceal: Evidence that the defendant attempted to mislead the court or conceal relevant facts about their state of mind or sources (Gouldsmith v Carruthers (1798) 1 Camp 121; 170 ER 906).

Inferring Malice

The task for the court or jury is to consider the whole of the evidence—both intrinsic and extrinsic—and determine whether, on the balance of probabilities, it supports an inference that the defendant's dominant purpose in publishing the defamatory matter was improper and foreign to the occasion or defence relied upon (Roberts v Bass (2002) 212 CLR 1 at [75]-[79]). The inference drawn must be a reasonable and definite one based on the evidence, not mere speculation or conjecture (Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30 at 51-52).

The inherent difficulty in proving a subjective state of mind means that establishing malice can be challenging for plaintiffs (Horrocks v Lowe [1975] AC 135 at 149-151). The reliance on circumstantial evidence and inference makes the assessment highly fact-sensitive and potentially less predictable than proving objective elements.

5. Case Law Illustrations (Worked Examples)

Examining specific cases helps illustrate how the principles of malice are applied in practice.

Malice Established

• Roberts v Bass (2002) 212 CLR 1 (Regarding Appellant Roberts):

  • Facts: During a South Australian election campaign, Mr Roberts authorised the publication of three documents targeting the incumbent, Mr Bass. These included a mocking postcard implying a taxpayer-funded holiday, a pamphlet containing a forged Ansett Frequent Flyer statement suggesting misuse of travel entitlements, and a 'how-to-vote' card with various untrue allegations concerning Mr Bass's policies and activities (e.g., junkets, secret hospital deals, gun rights stance).

  • Finding on Malice (Roberts): Although the High Court majority ultimately allowed Roberts' appeal based on the application of Lange privilege principles, the lower courts and dissenting/concurring judgments in the High Court provide insight into evidence supporting malice. The trial judge found Roberts' dominant purpose went beyond mere political damage to intending to lower Bass's reputation generally, and that he published allegations recklessly, without caring if they were true (Roberts v Bass (2002) 212 CLR 1 at [39]-[42] per Gleeson CJ). The use of a forged document was particularly indicative of an improper motive. Gleeson CJ and Hayne J in the High Court found Roberts acted with malice due to recklessness regarding truth or falsity ((2002) 212 CLR 1 at [216]-[219] per Hayne J). Callinan J also found recklessness ((2002) 212 CLR 1 at [248]).

  • Relevance: This case demonstrates how actions like forgery and the dissemination of serious allegations known to be untrue or made with reckless indifference can constitute strong evidence of malice, potentially overcoming the latitude given to political speech. It underscores the fact-intensive nature of the inquiry into the publisher's dominant motive.

• Smith v Stevens [2022] WASC 116 (Western Australia):

  • Facts: A director (Stevens) of a WA Aboriginal Corporation emailed a document containing defamatory allegations (mismanagement, dishonesty, breach of duty) about two fellow directors (Smith, Camille) to the other board members.

  • Finding of Malice: The WA Supreme Court found that although the communication occurred on an occasion of qualified privilege (directors sharing a common interest in corporate governance), the defence under both common law and s 30 of the Act was defeated because Stevens was actuated by malice (Smith v Stevens [2022] WASC 116 at [328]-[334]). Key evidence supporting this finding included: (1) Stevens' own admission that he prepared the document partly out of a desire to retaliate against perceived attacks from Camille; (2) Stevens' failure to make sufficient inquiries to verify many of the serious allegations, indicating recklessness as to their truth; and (3) Stevens' poor attendance at board meetings, which undermined his claim to be acting solely out of genuine concern for the Corporation's governance.

  • Relevance: This WA authority provides a clear example of how extrinsic evidence (admission of retaliatory motive, poor attendance) combined with intrinsic factors (unverified serious allegations) can establish a dominant improper purpose (malice), thereby defeating qualified privilege even where a legitimate common interest exists between publisher and recipient.

Malice Not Established / Defence Upheld

• Roberts v Bass (2002) 212 CLR 1 (Regarding Appellant Case):

  • Facts: The second appellant, Mr Case, distributed the 'Orange Pamphlet' (the how-to-vote card containing untrue statements about Bass) at a polling booth for several hours on election day. The pamphlet had been prepared and authorised by Mr Roberts.

  • Finding on Malice (Case): The High Court majority held that malice had not been established against Mr Case (Roberts v Bass (2002) 212 CLR 1 at [80]-[82]). Although the material was defamatory and published on a privileged occasion (political communication), the evidence did not demonstrate that Case himself possessed an improper motive. He was merely distributing material prepared by Roberts, and there was insufficient evidence to show he shared Roberts' recklessness or improper purpose, or that he acted for any dominant purpose other than participating in the election campaign.

  • Relevance: This illustrates the important principle that malice must generally be proven against each individual joint publisher (unless vicarious liability applies) (Egger v Viscount Chelmsford [1965] 1 QB 248 at 263). The malice of the author (Roberts) was not automatically imputed to the distributor (Case). It also reinforces that a motive to participate in political campaigning, even if aimed at damaging an opponent, is not, in itself, malice.

• Aktas v Westpac Banking Corporation (2010) 241 CLR 79:

  • Facts: A bank mistakenly applied a court order to the wrong account, leading it to dishonour cheques drawn on that account with the notation "Refer to drawer," which was held to be defamatory.

  • Finding on Malice: The court held that the bank's communication ("Refer to drawer") was made on an occasion of qualified privilege (a communication made in the conduct of its affairs where its interest was concerned). Crucially, the court found that the bank's mistake in applying the order did not, by itself, constitute malice or destroy the privilege. The plaintiff needed to prove actual malice—an improper motive beyond the error—on the part of the bank, which was not established on the facts.

  • Relevance: This case reinforces that negligence or error, even if leading to a defamatory publication on a privileged occasion, does not automatically equate to malice. Malice requires proof of a specific, subjective improper state of mind, such as knowledge of falsity, reckless indifference, or an intention to injure, separate from the mere fact of the mistake (Horrocks v Lowe [1975] AC 135 at 149).

Comparing these cases underscores that findings of malice turn heavily on the specific evidence available regarding the defendant's state of mind and dominant motive at the time of publication. General ill will or the publication of defamatory material on a privileged occasion is insufficient; the plaintiff must adduce specific evidence, whether intrinsic or extrinsic, pointing clearly to an improper purpose that actuated that particular defendant's publication.

6. Practical Guidance (WA Focus)

Assessing Evidence of Malice

Judicial officers and practitioners assessing potential malice should consider:

• Cumulative Effect: Evaluate the combined weight of all evidence suggesting malice. Individual pieces might be weak, but together they may paint a compelling picture of improper motive (Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30 at 51).

• Context: The context of the publication is crucial. Greater latitude may be afforded to political speech or statements made in reply to attack compared to unsolicited private communications (Roberts v Bass (2002) 212 CLR 1 at [104]-[105]).

• Failure to Apologise/Retract: While relevant extrinsic evidence, a refusal to apologise or retract should be assessed cautiously, considering the reasons given (if any) and the overall circumstances. It is not determinative of malice (Loveday v Sun Newspapers Ltd (1938) 59 CLR 503 at 515-516).

• Verification Efforts: Close attention should be paid to the nature of the allegations, the defendant's sources, and the steps taken (or not taken) to verify the information, particularly in relation to the factors listed for reasonableness under s 30(3) of the WA Act. A cavalier approach to truth-checking serious allegations can support an inference of reckless indifference (Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 at 51-52 per Brennan J).

Pleading and Particulars

Practitioners must ensure malice is pleaded in a Reply with full and precise particulars, complying with Order 20, rules 8 and 13 of the Rules of the Supreme Court 1971 (WA). Failure to do so risks the pleading being struck out or the plaintiff being unable to lead evidence on malice at trial. Defendants should scrutinise the particulars provided and consider seeking further and better particulars if they are inadequate (Bailey v Australian Broadcasting Corporation [1995] Aust Torts Reports ¶81-336).

Guidance on Judicial Directions to Juries on Malice (WA Context)

Given that section 21 of the Defamation Act 2005 (WA) permits parties to elect for trial by jury on liability issues (including malice), clear and accurate judicial directions are paramount in Western Australia. Section 22 outlines the respective roles of the judicial officer and jury.

• Threshold Question for Judge: The trial judge must first determine if there is any evidence adduced by the plaintiff that is reasonably capable of supporting a finding of malice. If there is no such evidence, the issue of malice should be withdrawn from the jury, and the defence (if otherwise established) will succeed (Adam v Ward [1917] AC 309 at 348 per Lord Sumner).

• Content of Jury Directions: Where there is sufficient evidence, the judge's directions on malice should cover the following points:

  1. Identify the specific defence(s) raised (e.g., statutory qualified privilege under s 30, honest opinion under s 31) to which malice is relevant.

  2. Explain that if the jury finds the elements of the defence established by the defendant, the defence succeeds unless the plaintiff proves malice (or lack of honest belief for s 31) (Horrocks v Lowe [1975] AC 135 at 149).

  3. Clearly state that the burden of proving malice rests solely on the plaintiff (Horrocks v Lowe [1975] AC 135 at 149).

  4. Explain the standard of proof: the plaintiff must prove malice on the balance of probabilities (Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 at 170-171).

  5. Define malice: the use of the occasion for a dominant purpose or motive foreign to the purpose for which the law grants the protection (e.g., spite, ill will, intention to injure unrelated to the duty/interest) (Roberts v Bass (2002) 212 CLR 1 at [75]-[76]).

  6. Explain the relevance of the defendant's state of mind regarding truth: publishing knowing the matter is false, or with reckless indifference to its truth or falsity (not caring if it is true or false), is strong evidence from which malice may be inferred (Horrocks v Lowe [1975] AC 135 at 150).

  7. Distinguish malice from conduct that does not constitute malice: mere carelessness, error, negligence, impulsiveness, prejudice, irrationality, or strong language, unless these factors demonstrate reckless indifference or an improper dominant purpose (Horrocks v Lowe [1975] AC 135 at 150-151).

  8. For the s 31 honest opinion defence, direct the jury specifically on the test in s 31(4): whether the plaintiff has proved, on the balance of probabilities, that the opinion was not honestly held by the relevant person (defendant, employee/agent, or commentator, as applicable) (Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245 at [3] per Gleeson CJ).

  9. Instruct the jury to consider all the relevant evidence, both intrinsic (e.g., language of the publication) and extrinsic (e.g., defendant's conduct, knowledge, inquiries), in deciding whether malice has been proven (Roberts v Bass (2002) 212 CLR 1 at [78]-[79]).

  10. If there are multiple defendants, direct the jury that malice must be considered and proven individually against each defendant against whom it is alleged (unless vicarious liability is applicable) (Egger v Viscount Chelmsford [1965] 1 QB 248 at 263). Reference should be made to the specific WA Act sections (ss 21, 22, 30(4), 31(4)).

The availability of jury trials for liability in WA places a significant onus on judges to ensure these complex concepts are conveyed accurately and understandably to lay jurors (Abram v Channon [1934] WAR 90 at 92-93). The nuances differentiating malice from carelessness, recklessness as evidence versus malice itself, and the specific test for honest opinion require careful formulation.

Furthermore, the principle that malice must be proven individually against joint publishers carries significant practical weight in multi-defendant cases common in media litigation (e.g., involving author, editor, and publishing company) (Egger v Viscount Chelmsford [1965] 1 QB 248 at 263). Pleadings, evidence, and jury directions must meticulously differentiate between defendants, as a finding of malice against one does not automatically defeat the defence for others who lacked the requisite improper state of mind (absent vicarious liability).

Summary Disposal

While malice is typically a question of fact best determined at trial after hearing all the evidence (Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30 at 51), a defendant faced with a Reply pleading malice may consider a strike out application if the particulars pleaded are manifestly insufficient to support a finding of malice. However, courts are generally cautious about determining issues involving state of mind summarily (Spencer v Commonwealth of Australia (2010) 241 CLR 118).

7. Conclusion

Malice remains a crucial, albeit complex, concept in Western Australian defamation law. Defined by common law principles focusing on the defendant's dominant improper purpose at the time of publication, it serves as a vital control mechanism, ensuring that defences designed to protect freedom of expression and facilitate necessary communications are not abused. Proof of malice, which rests entirely with the plaintiff, can defeat the significant defences of statutory qualified privilege (s 30) and honest opinion (s 31), as well as their common law counterparts.

Establishing malice requires more than demonstrating error, carelessness, or strong language; it necessitates credible, substantial evidence, often circumstantial, pointing to a subjective state of mind involving knowledge of falsity, reckless indifference to the truth, or a dominant motive foreign to the purpose of the defence, such as personal spite or vindictiveness. The case law, including decisions like Horrocks v Lowe, Roberts v Bass, and the WA case Smith v Stevens, provides essential guidance on the types of conduct and evidence from which malice may be inferred.

For judges and practitioners in Western Australia, a thorough understanding of the common law definition of malice, its specific application under sections 30(4) and 31(4) of the Defamation Act 2005 (WA), the strict pleading requirements, the burden and standard of proof, and the nuances of directing juries on this issue is indispensable for the proper conduct and determination of defamation proceedings. Ultimately, the careful application of the principles surrounding malice helps maintain the delicate balance between protecting individual reputation and safeguarding freedom of speech within the state.

Injurious Falsehood: Proof of Actual Damage

I. Introduction: The Tort of Injurious Falsehood

A. Definition and Essential Elements in Australia

Injurious falsehood, alternatively termed malicious falsehood, is an action established at common law. It serves to protect plaintiffs against provable economic loss resulting from false and malicious statements made by a defendant concerning the plaintiff's business, property, or goods. This focus on economic or commercial interests distinguishes it fundamentally from defamation, which primarily protects personal reputation.

The essential elements of the tort of injurious falsehood in Australia were authoritatively stated by Gummow J in the High Court decision of Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388, drawing upon established common law principles. To succeed, a plaintiff must establish the following four elements:

1. A false statement of or concerning the plaintiff's goods or business.

2. Publication of that statement by the defendant to a third person.

3. Malice on the part of the defendant.

4. Proof by the plaintiff of actual damage suffered as a direct and natural result of the statement. (Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388 at [9])

Crucially, the plaintiff bears the onus of proving each of these elements, including the falsity of the statement, the existence of malice, and the occurrence of actual damage. This contrasts sharply with defamation, where damage to reputation is often presumed (subject to applicable statutory thresholds such as 'serious harm'), and the falsity of the defamatory statement is presumed unless the defendant proves otherwise through the defence of justification.

The considerable burden placed on the plaintiff, particularly the requirements to prove malice and actual damage, contributes to injurious falsehood being a less frequently litigated cause of action compared to defamation. Nevertheless, its significance has arguably increased following the introduction of uniform defamation legislation across Australia (see, for example, the Defamation Act 2005 (WA)). Section 9 of this legislation restricts the ability of most corporations, particularly those trading for profit or employing 10 or more persons, to sue for defamation. Consequently, for such corporations seeking redress for malicious falsehoods causing economic harm, injurious falsehood often represents the primary, if not the only, available cause of action.

The tort directly addresses the harm—economic loss stemming from malicious lies about a business or its offerings—that these corporations may suffer. Furthermore, unlike defamation, claims in injurious falsehood are not constrained by the 'single meaning' rule, potentially allowing for greater flexibility in pleading the harmful implications of a statement. Thus, despite the acknowledged difficulties in proof, injurious falsehood occupies a necessary space in the legal landscape, providing a remedy tailored to the protection of commercial interests against specific forms of malicious attack.

B. Distinguishing Injurious Falsehood from Defamation (Focus on Malice and Damage)

While both torts involve harm arising from published statements, the distinctions between injurious falsehood and defamation are critical.

Malice: Malice is an essential ingredient of injurious falsehood. It signifies more than mere negligence or carelessness; it requires proof that the defendant published the falsehood with an improper motive, such as an intent to injure the plaintiff without just cause or excuse. Malice can be established by showing the defendant knew the statement was false, acted with reckless indifference as to its truth or falsity (amounting to willful blindness), or was actuated by some dishonest or improper purpose. An honest belief in the truth of the statement, even if negligently formed, will generally negate malice (Seafolly Pty Ltd v Madden [2012] FCA 1346). In contrast, malice is generally not required to establish liability in defamation, although it may defeat certain defenses (like qualified privilege or honest opinion) and can be relevant to the assessment of aggravated damages.

Damage: This is the central focus of this article. Injurious falsehood is actionable only upon proof of actual damage, meaning quantifiable economic or pecuniary loss. The damage is the "gist of the action" (Ratcliffe v Evans [1892] 2 QB 524). Defamation, historically, is actionable per se (without proof of damage), as harm to reputation is presumed upon publication of defamatory matter. However, this common law position has been modified in jurisdictions that have adopted a 'serious harm' threshold as an element of the cause of action for defamation.

Falsity: In injurious falsehood, the plaintiff must plead and prove that the defendant's statement was false. In defamation, the law presumes the defamatory statement is false; the burden falls on the defendant to prove the truth of the imputation(s) via the defense of justification.

Standing (Corporations): As noted earlier, corporations that are precluded from suing in defamation by statute (typically for-profit corporations or those with 10 or more employees) may still bring an action for injurious falsehood if they can prove the requisite elements, including actual damage.

Limitation Period: The limitation period for injurious falsehood, as an action on the case, is generally six years. This contrasts with the shorter one-year limitation period (subject to potential extension) applicable to defamation actions under the uniform Defamation Acts.

II. The Requirement of Actual Damage

A. Nature of 'Actual Damage': Provable Economic Loss

The cornerstone of a successful claim in injurious falsehood is the proof of "actual damage." This term signifies demonstrable financial or pecuniary loss suffered by the plaintiff as a consequence of the defendant's malicious falsehood. As Bowen LJ stated in the seminal case of Ratcliffe v Evans [1892] 2 QB 524, actual damage is the very "gist of the action."

The loss must be capable of estimation in monetary terms. Unlike defamation, where damages can compensate for intangible harm like hurt feelings or damage to personal standing, injurious falsehood does not provide a remedy for mere injury to feelings or reputation in the absence of consequent economic loss.

Historically, there was some ambiguity regarding the scope of recoverable damage, with references sometimes made to "special damage." "Special damage" in tort law often carries a specific meaning, referring to pecuniary losses that have accrued up to the date of trial and which must be specifically pleaded and proved with particularity. However, the High Court's formulation in Palmer Bruyn, employing the term "actual damage" (Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388 at [9]), suggests a broader compass consistent with the language in Ratcliffe. It indicates that the tort compensates for the full measure of the economic detriment flowing as a natural and probable consequence of the falsehood, encompassing not only past losses but also provable future economic losses. This aligns the assessment of damages in injurious falsehood more closely with general tort principles, which aim to compensate the plaintiff for all foreseeable consequences of the wrongful act, subject to the specific rules of causation and remoteness applicable to intentional torts. Therefore, plaintiffs are entitled to claim for demonstrable ongoing business detriment or the loss of future commercial opportunities directly caused by the defendant's malicious statement, provided such losses can be adequately proven.

B. Onus and Standard of Proof

The plaintiff carries the legal burden of proving, on the balance of probabilities, both the existence of actual damage and the causal link between that damage and the defendant's malicious publication.

The standard of proof required was articulated in Ratcliffe v Evans [1892] 2 QB 524 at 533: "As much certainty and particularity must be insisted on, both in pleading and proof of damage, as is reasonable having regard to the circumstances and to the nature of the acts themselves by which the damage is done." This requires plaintiffs to present the best evidence reasonably available to demonstrate their loss. While absolute mathematical precision may not always be attainable, particularly when proving a general loss of business, a plaintiff must provide sufficient evidence to allow the court to quantify the loss with a reasonable degree of confidence.

This evidentiary requirement represents a significant practical hurdle for plaintiffs. Proving that a specific, quantifiable economic loss was directly caused by the defendant's statement, rather than by other market forces, competitor actions, or internal business factors, can be exceptionally challenging. The difficulty lies in isolating the impact of the falsehood amidst the complexities of commerce. This often necessitates sophisticated analysis, potentially involving forensic accountants or market experts, to dissect financial data, model counterfactual scenarios ('but for' the falsehood), and attribute loss specifically to the defendant's conduct. The failure to adduce "concrete evidence" demonstrating both the fact of damage and its causal connection to the defendant's statement was fatal to the plaintiff's claim in Seafolly Pty Ltd v Madden [2012] FCA 1346, highlighting the critical importance and difficulty of meeting this evidentiary burden. This inherent difficulty is a primary reason why injurious falsehood is considered a challenging and relatively infrequently pursued action.

C. Exception: Injunctive Relief and Probable Damage

An important qualification to the requirement of proving suffered actual damage arises in the context of injunctive relief. Where a plaintiff acts promptly to seek an interlocutory injunction to restrain the publication or further publication of an injurious falsehood, and the injunction is granted, the claim may potentially be maintained even if quantifiable damage has not yet fully accrued.

In Mahon v Mach 1 Financial Services Pty Ltd (No 2) [2013] NSWSC 10, the Supreme Court of New South Wales held that injurious falsehood could be maintained without proof of actual damage where an early interlocutory injunction had prevented the very damage that might otherwise have ensued. In such circumstances, when deciding whether to grant interlocutory relief (and potentially final relief if damage was imminent but averted), the court may focus on whether actual damage is the reasonably probable consequence of the defendant's publication if allowed to continue unrestrained. This provides a crucial mechanism for preventative justice, allowing courts to intervene before the full economic harm materializes, a particularly relevant consideration given the speed and reach with which falsehoods can spread in the digital age.

III. Types of Recoverable Actual Damage

Actual damage in injurious falsehood can manifest in several forms. The key is that the loss must be economic or pecuniary in nature and causally linked to the defendant's statement.

A. Loss of Identifiable Customers or Sales

The most direct and often easiest form of actual damage to prove is the loss of specific, identifiable custom or transactions. This occurs where the plaintiff can point to particular customers who ceased dealing with the plaintiff, or specific contracts or sales that were lost, directly because of the defendant's falsehood.

Evidence to support such a claim typically involves:

• Testimony from the former customer(s) confirming that they withdrew their custom or cancelled an order due to the defendant's statement.

• Documentary evidence, such as emails or letters from customers explicitly referencing the falsehood as the reason for terminating a relationship or cancelling a contract.

• Business records (e.g., order books, client lists) demonstrating the cessation of business from specific sources immediately following the publication of the falsehood.

Worked Example: A defendant maliciously and falsely publishes that a specific batch of the plaintiff baker's bread contained glass shards. The plaintiff can prove actual damage by adducing evidence from a regular wholesale customer (e.g., a local café) who provides testimony and confirms in writing that they cancelled their standing order for that batch and subsequent orders due to safety concerns arising directly from reading the defendant's publication. The value of the cancelled orders constitutes provable actual damage.

B. General Loss of Business or Custom

1. The Principle in Ratcliffe v Evans [1892] 2 QB 524

Not all damage resulting from an injurious falsehood can be traced to specific lost customers. Where the falsehood is of a nature "calculated in the ordinary course of things to produce, and where they do produce, actual damage" in the form of a general decline in business, the law permits recovery for this general loss. The landmark decision in Ratcliffe established that in such circumstances, evidence of a general diminution of business is admissible and sufficient to prove actual damage, without the plaintiff needing to identify and call every customer who was deterred.

This principle applies particularly where the falsehood is likely to deter potential customers generally, rather than specific individuals known to the plaintiff. Examples include falsely stating that a business has ceased trading (as in Ratcliffe itself), disparaging the quality or safety of goods sold widely to the public, or impugning the title to property offered for general sale.

2. Evidentiary Requirements for Proving General Loss

While Ratcliffe provides flexibility, proving a general loss of business still requires rigorous evidence demonstrating both a decline in trade following the publication and a causal connection between the decline and the defendant's falsehood. Simply showing a downturn after the publication is insufficient; the plaintiff must provide evidence supporting the inference that the falsehood was, on the balance of probabilities, a material cause of that downturn.

Evidence commonly adduced includes:

• Financial Records: Detailed financial statements (profit and loss, balance sheets), sales reports, customer data, budgets, and forecasts, comparing the period after the publication with historical performance, industry benchmarks, or prior projections.

• Operational Data: Evidence of reduced customer inquiries, website traffic, footfall (for physical businesses), or order volumes.

• Market Analysis: Evidence comparing the plaintiff's business performance against relevant market trends or competitor performance to demonstrate that the plaintiff's decline is anomalous and likely attributable to the falsehood rather than general market conditions.

• Expert Evidence: Reports from forensic accountants or economists are often crucial. Experts can analyze complex financial data, perform statistical analyses, model the likely performance of the business 'but for' the falsehood, discount for other contributing factors (e.g., economic climate, competition, internal issues), and provide a quantified estimate of the loss attributable to the falsehood.

• Evidence of Impact: Surveys, evidence of negative online sentiment, or increased customer complaints referencing the falsehood can help establish the connection.

The plaintiff must satisfy the court that the general loss claimed is a natural and probable consequence of the defendant's statement and not primarily due to other unrelated factors.

The principle established in Ratcliffe remains vital, acknowledging the difficulty of tracing every lost sale when a falsehood has a widespread impact. However, the methods available for proving such loss have evolved significantly since 1892. While Ratcliffe allows proof of general loss, contemporary practice demands that plaintiffs utilize available data and analytical tools to provide the court with the most robust and particular evidence reasonably possible. Modern courts, accustomed to sophisticated financial analysis in commercial litigation, will likely expect more than a simple 'before and after' comparison of turnover, particularly where other factors could plausibly explain a decline. Failure to provide persuasive evidence linking the general decline specifically to the falsehood, potentially through expert analysis ruling out alternative causes, risks the claim failing for lack of proof of damage, as underscored by the outcome in Seafolly. The standard remains one of reasonable particularity, but what is considered 'reasonable' evolves with the available means of proof.

Worked Example: A defendant competitor maliciously publishes false technical specifications suggesting the plaintiff's widely sold electronic component is unreliable under certain conditions. The plaintiff cannot identify every potential customer deterred but provides: (i) Verified sales data showing a significant and sustained drop in sales volume commencing shortly after the publication, contrasting sharply with prior stable sales and the positive performance of competitors selling similar components. (ii) A detailed forensic accounting report analyzing the sales data, market conditions, and the plaintiff's marketing efforts, concluding that, after accounting for other variables, the publication caused a specific percentage drop in sales volume, and quantifying the resulting lost profit. (iii) Evidence from distributors reporting increased customer concerns about reliability following the publication. This collective evidence could satisfy the court of a general loss of business caused by the falsehood, consistent with Ratcliffe.

C. Expenses Reasonably Incurred in Counteracting the Falsehood

A plaintiff may recover as actual damage the reasonable expenses they have incurred in taking steps to counteract the negative effects of the defendant's injurious falsehood. This head of damage recognizes that mitigating the harm caused by a malicious publication often requires proactive expenditure.

Examples of potentially recoverable expenses include:

• Costs associated with corrective advertising campaigns.

• Fees paid to public relations consultants to manage the fallout from the falsehood.

• Costs of communicating directly with customers, suppliers, or distributors to reassure them and correct the false information.

• Expenses related to obtaining independent verification or reports to refute the falsehood (e.g., safety audits, technical assessments).

To be recoverable, the expenditure must satisfy several criteria:

1. It must have been actually incurred.

2. It must have been incurred as a direct consequence of the defendant's falsehood.

3. It must have been a reasonable and proportionate response to the publication and its likely impact.

Evidence required would typically include invoices, receipts, contracts for services, and potentially expert opinion on the reasonableness and necessity of the expenditure in the circumstances.

Worked Example: Following a defendant's malicious and false publication questioning the structural integrity of the plaintiff developer's new apartment building, the plaintiff commissions an urgent independent engineering report to verify the building's safety. The plaintiff then distributes a summary of the positive report to all potential purchasers and existing contract holders and places advertisements in local media highlighting the findings. The documented costs of the engineering report and the reasonable costs of the targeted communications and advertising aimed at counteracting the specific falsehood are potentially recoverable as actual damage.

IV. Causation: Linking the Falsehood to the Loss

A. Establishing the Causal Nexus

Proof of actual damage alone is insufficient; the plaintiff must also establish a causal link between the damage suffered and the defendant's tortious conduct – specifically, the malicious publication of the falsehood. The court must be satisfied, on the balance of probabilities, that the defendant's statement was a material cause of the plaintiff's loss. A mere temporal correlation – loss occurring after publication – does not automatically equate to causation.

B. The 'Natural and Probable Consequence' Test

The test for remoteness of damage in injurious falsehood requires the plaintiff to show that the actual damage suffered was the "direct and natural result" or the "natural and probable consequence" of the defendant's publication. This principle, affirmed by Gummow J in Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388 at [9], citing Ratcliffe, governs the extent of loss for which the defendant will be held liable. As injurious falsehood is an intentional tort (requiring malice), this test may permit recovery for consequences that might be considered too remote under the 'reasonable foreseeability' test typically applied in negligence actions. The focus is on the consequences naturally flowing from the intentional wrongdoing.

C. Analysis of Causation in Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388

The High Court's decision in Palmer Bruyn provides critical guidance on causation in injurious falsehood. The appellant (Palmer Bruyn, a surveyor) suffered the loss of a retainer with McDonald's after a newspaper published an article reporting on a "bogus letter." This letter, containing false statements about the appellant, had been created and initially published maliciously by the respondent (Parsons) to a small group, intending ridicule.

The central issue was whether the appellant's loss (the termination of the McDonald's contract) was caused by Parsons' original malicious publication of the forged letter. The High Court (by majority) held that it was not. The Court found that the damage resulted from the publication of the newspaper report, which was a separate act by a third party and differed in its nature and impact from Parsons' initial, limited publication. Parsons was not legally responsible for the newspaper's republication. Therefore, the necessary causal connection between Parsons' actionable publication (the initial limited one) and the damage suffered was broken.

The significance of Palmer Bruyn lies in its emphasis on linking the proven damage directly to the specific publication for which the defendant is legally responsible and which constitutes the tort. The 'natural and probable consequence' test must be applied to that specific tortious act. Subsequent republications or actions by third parties, even if foreseeable in a general sense, may constitute intervening acts (novus actus interveniens) that sever the chain of causation leading back to the defendant's original malicious statement, unless the defendant intended or authorized the republication, or it was the natural and probable result of the original publication in circumstances where the third party was likely to repeat it. This requires careful identification of the precise tortious publication relied upon by the plaintiff and rigorous proof that the claimed loss flowed naturally and probably from that specific publication.

D. Difficulties in Proving Causation: Seafolly Pty Ltd v Madden [2012] FCA 1346

The practical challenge of establishing causation is well illustrated by the Seafolly case. Ms Madden published statements on Facebook and via email falsely alleging that Seafolly, a swimwear company, had copied her designs. Seafolly brought proceedings alleging, among other things, injurious falsehood.

Despite findings that Madden's statements were false and arguably made with reckless indifference amounting to malice, the injurious falsehood claim ultimately failed. The primary reason for the dismissal was Seafolly's inability to adduce sufficient "concrete evidence" to prove, on the balance of probabilities, that Madden's specific statements had actually caused it to suffer quantifiable economic loss.

Seafolly underscores the difficulty plaintiffs face in isolating the impact of specific statements (particularly those made online) within a dynamic commercial environment. Proving that a decline in sales, or loss of specific opportunities, was directly attributable to the defendant's falsehood, rather than myriad other factors like competition, changing trends, pricing, or general market conditions, requires persuasive and specific evidence that was found lacking in that case.

V. Quantification of Damages and Evidentiary Matters

A. Principles of Assessment

Once liability is established (including proof of actual damage caused by the falsehood), the court must quantify the damages award. The fundamental principle is compensatory: damages aim to restore the plaintiff, so far as money can, to the economic position they would have occupied had the tortious publication not occurred. This involves assessing the monetary value of the actual economic loss proven to have been caused by the falsehood.

Unlike general damages in defamation, which are awarded 'at large' to compensate for presumed reputational harm and associated distress, damages in injurious falsehood are tied to the specific or general economic loss demonstrated by the evidence.

Because injurious falsehood requires proof of malice as an element of the tort itself, the defendant's state of mind is already central to liability. While the primary focus of damages is compensation for economic loss, the intentional nature of the tort means that aggravated damages (compensating for additional injury or distress caused by the manner of the defendant's conduct) and exemplary or punitive damages (intended to punish the defendant and deter similar conduct) may potentially be available in appropriate, egregious cases. This contrasts with the position under the uniform defamation legislation, which typically caps damages for non-economic loss and often prohibits or restricts awards of exemplary damages.

B. Methods of Quantification

Several methods may be employed, often with the assistance of expert evidence, to quantify the plaintiff's economic loss:

• Lost Profits Calculation: This involves estimating the revenue lost due to sales diverted or prevented by the falsehood, and then deducting the expenses that were saved as a result of not making those sales (e.g., variable costs of goods sold, potentially some saved fixed costs if operations were significantly curtailed). Projecting the 'but for' revenue scenario often involves analyzing historical trends, budgets, and market conditions.

• Market Share Analysis: This method compares the plaintiff's actual market share after the publication with the share it likely would have held 'but for' the falsehood. Expert analysis may be needed to attribute changes in market share specifically to the defendant's conduct, accounting for broader market dynamics.

• Business Valuation Diminution: In cases where the falsehood has caused long-term damage to the plaintiff's business or goodwill, damages may be assessed based on the reduction in the overall capital value of the business. This typically requires expert valuation evidence comparing the business's value before and after the impact of the falsehood.

• Specific Costs: Quantifying the actual, reasonable, and necessary expenses incurred in counteracting the falsehood (as discussed in Part III.C) by summing the relevant documented expenditures.

The appropriate method(s) will depend on the nature of the plaintiff's business, the type of loss suffered, and the available evidence.

C. Types of Evidence Required

Robust evidence is essential for both proving the fact of damage and supporting its quantification. Key categories include:

• Financial Records: Comprehensive and reliable accounting records are fundamental. This includes profit and loss statements, balance sheets, detailed sales data (by product, region, customer, etc.), customer relationship management (CRM) data, budgets, and financial forecasts. These establish baseline performance and demonstrate any post-publication changes.

• Expert Evidence: Forensic accountants are frequently engaged to analyze financial records, apply quantification methodologies (like lost profits calculations), assess causation by isolating the falsehood's impact, and prepare expert reports for the court. Market analysts or industry experts can provide crucial context regarding market conditions, competition, and the likely impact of the falsehood within the specific industry.

• Witness Testimony: Evidence from company management regarding business operations, strategy, and the observed impact of the falsehood. Testimony from specific lost customers (if applicable). Evidence from expert witnesses.

• Supporting Documentation: Copies of lost contracts or orders, correspondence from customers or suppliers referencing the falsehood, invoices and receipts for counteracting expenses, marketing plans, and business records generally.

• Market Data: Independent industry reports, competitor performance data, market research, and analysis of online sentiment or media coverage related to the falsehood can help contextualize the plaintiff's performance and support causation arguments.

VI. Conclusion

The tort of injurious falsehood serves a distinct and important function in protecting economic and commercial interests from harm caused by malicious, false statements. It requires the plaintiff to discharge a significant evidentiary burden, proving not only the falsity of the statement and the defendant's malice, but also that the statement caused actual, quantifiable economic loss.

Actual damage is the cornerstone of the action, encompassing provable pecuniary detriment, including general loss of business and reasonable counteracting expenses. While the principle from Ratcliffe v Evans allows for proof of general loss without identifying specific lost customers, demonstrating causation and quantifying such loss requires robust evidence, often involving detailed financial analysis and expert testimony. The High Court's decision in Palmer Bruyn & Parker Pty Ltd v Parsons highlights the critical need to establish a direct causal link between the specific publication attributable to the defendant and the loss claimed. The potential availability of injunctive relief based on probable damage offers a crucial preventative remedy.

Despite the challenges inherent in proving malice and actual damage, injurious falsehood remains a vital cause of action, particularly for corporations limited in their ability to sue for defamation. It provides a necessary, albeit demanding, pathway for redress against intentional and damaging falsehoods targeting commercial activities.

Proving Publication in Social Media Defamation: Lessons from Munro v Wheeler

Introduction

The recent decision of Munro v Wheeler (No 3) [2025] NSWDC 3 highlights the fundamental challenges that can arise in proving publication in defamation cases, particularly those involving social media.

The case involved two plaintiffs (a veterinarian and her friend) who sued two defendants (a dog owner and a "pet detective") over Facebook posts alleging they had stolen a puppy named Teddy.

The plaintiffs claimed they merely found the wandering puppy and were trying to help, while the defendants posted material suggesting more nefarious motives.

Despite the considerable volume of material before the court, the plaintiffs' claim failed at the critical first hurdle—proving that the allegedly defamatory material was actually published in the form claimed.

The Fundamental Requirement of Publication

Publication is an essential element of any defamation action. It requires more than just showing that defamatory words were made available—it requires proof that at least one third party actually downloaded and comprehended the material.

As Justice Gibson noted in Munro v Wheeler:

"The plaintiffs must establish that the matters complained of were read by a person who downloaded the matter complained of, not merely a part of it." (at [123]). (NOTE: However, contrast this with a finding of a platform of facts from which it could be inferred publication had occurred).

The bilateral nature of publication was emphasized in the defendants' pleadings, which acknowledged that they had "made available for publication" the material, but did not admit that any third party had actually read the entire publications as pleaded. Making material available is only "the first step of a two-step process" (at [143]). Without evidence that someone actually downloaded and read the publication in the form alleged, the publication element failed.

Special Challenges of Social Media Publications

Social media platforms present unique challenges for proving publication in defamation cases. Unlike traditional media with fixed content, social media is characterized by:

1. Fluidity and impermanence: Posts and comments appear and disappear, making reconstruction difficult.

2. Non-sequential reading: Users rarely read entire threads in the exact order presented.

3. Personalization: What appears on one user's feed may differ from another's due to algorithms and privacy settings.

4. Post-publication editing: Content can be modified after initial publication.

5. Variable presentation: Different devices and settings may display content differently.

As noted in the English case Stocker v Stocker [2020] AC 593, social media is consumed differently from traditional publications. Courts must adapt to the "conversational and impressionistic" nature of social media, where readers:

"...do not pore over the literal meaning of each word or the grammar of each phrase or sentence... they scroll through messages relatively quickly and move on." (cited in Bazzi v Dutton (2022) 289 FCR 1 at [29])

The Perils of "Constructed" Publications

Munro v Wheeler demonstrates a common mistake in social media defamation cases—suing on artificially constructed compilations rather than actual publications. The plaintiffs presented two exhibits (A and B) comprising 70 and 40 pages respectively of hundreds of screenshots, often out of chronological order, with multiple copies and poor quality reproduction.

Justice Gibson observed that these exhibits were not documents "anyone ever published on Facebook, but a collection of hundreds of screen shots, out of chronological order and consisting of multiple copies" (at [66]). The problem was compounded when witnesses called to establish publication had seen a different 43-page version, not the exhibits claimed to be the defamatory publications.

This approach mirrors the problems encountered in The Sydney Cosmetic Specialist Clinic Pty Ltd v Hu [2022] NSWCA 1, where the plaintiffs similarly failed to establish that the artificial constructions they sued upon had ever been downloaded in that form.

Identifying the Publication with Precision

Courts have long emphasized the need to precisely identify what constitutes the defamatory publication. As Justice Bromwich explained in Hayson v Nationwide News Pty Ltd [2019] FCA 81:

"The plaintiff must identify the matter complained of in the precise form which is alleged to be defamatory of them, and... prove publication... in that form." (cited in Munro v Wheeler at [136])

This principle is even more important in the digital context, where evidence must establish both the content of the publication and that it was downloaded in substantially the same form as alleged. In Poland v Fairfax Digital Australia & New Zealand Pty Ltd [2023] WASC 383, Justice Tottle emphasized that plaintiffs must prove the complete publication was downloaded, not merely parts of it.

Fatal or Material Variance

When significant differences exist between what was allegedly published and what can be proven, courts may dismiss claims on that basis alone. This concept was historically known as "fatal variance" in English decisions (see Gatley on Libel and Slander, 12th ed, [32.15]).

While the NSW Court of Appeal in Brien v Mrad [2020] NSWCA 259 rejected this concept as overly rigid, Justice Gibson observed that where there is a "material" difference between the document alleged to have been published and what was actually published, this can be fatal to the claim.

The Queensland Court of Appeal recently addressed this issue in Surie v MacDonald [2024] QCA 254, where minor differences between an email and a letter did not amount to a material variance. By contrast, in Munro v Wheeler, the differences were so substantial that no publication could be established.

Practical Advice for Practitioners

Given the challenges highlighted in Munro v Wheeler, practitioners handling social media defamation cases should consider the following:

1. Capture accurate evidence promptly: Social media content can vanish or change rapidly. Secure proper forensic captures of the exact publication as soon as possible.

2. Sue on actual publications: Avoid constructing artificial compilations. Instead, identify discrete posts or clearly defined threads that represent actual publications.

3. Establish downloading evidence: Ensure witnesses can testify to downloading and reading the specific publications sued upon, not merely similar or partial content.

4. Be precise about imputations: Clearly identify which parts of the publication give rise to each imputation, particularly when dealing with lengthy social media threads.

5. Consider liability alternatives: In appropriate cases, consider suing on republications or pursuing alternative claims like injurious falsehood or misleading conduct.

Conclusion

Munro v Wheeler serves as a stark reminder of the fundamental importance of establishing publication in defamation actions. As Justice Gibson noted, even where serious allegations about plaintiffs were demonstrably made, failure to properly identify and prove publication of the matter complained of can be fatal to a claim.

The case highlights that while the principles underlying defamation law remain consistent, proving publication in the digital age requires careful attention to the unique characteristics of online communication. Practitioners must adapt their approach to ensure that what is pleaded reflects what actually appeared on screen and what was actually downloaded by third parties.

The "Apparent Relevance" Test: Accessing Documents by Subpoena in Defamation Cases

Introduction

A recent defamation case from the New South Wales District Court has provided guidance on when a party can access documents via subpoena in defamation proceedings. In O'Shanassy v Turland (No 3) [2025] NSWDC 27, the Court dealt with an application to set aside a subpoena issued to Westpac Bank seeking financial records of companies associated with the plaintiff. The defendant had sought banking records to support a justification defense. Justice Gibson rejected the plaintiff's application to set aside the subpoena, holding that the documents met the "apparent relevance" test for legitimate forensic purpose.

The "Apparent Relevance" Test for Subpoenas

When a party seeks to access documents via subpoena in defamation proceedings, the documents must satisfy what is known as the "apparent relevance" test. As explained in Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 at [65], a subpoena is justified as having a legitimate forensic purpose if the documents sought are "apparently relevant" to an issue in the proceedings.

The Court in Blacktown explained that this test is satisfied if it can be seen that the documents sought will "materially assist on an identified issue" or if there is a "reasonable basis beyond speculation" that the documents will assist. Importantly, if the material assistance will benefit the party that issued the subpoena, the prospect of the forensic purpose being impugned as illegitimate is "virtually non-existent."

Documents Need Not Be Directly Admissible

Documents sought by subpoena need not be directly admissible as evidence. As noted in Maddison v Goldrick, documents subpoenaed for the purposes of cross-examining a witness are considered documents required for the purposes of evidence. This extends to cross-examination on issues of credit, as highlighted in cases such as Brand, Norris v Kandiah [2007] NSWSC 1296, and Liristis v Gadelrabb [2009] NSWSC 441.

Common Objections to Subpoenas in Defamation Cases

There are several common objections to subpoenas in defamation cases, all of which were addressed in O'Shanassy v Turland (No 3):

1. Lack of written evidence: In defamation cases, oral evidence is the general starting position unless parties apply for statements or affidavits. As noted in Martrat Pty Limited trading as Huxley Hill and Associates v Murphy [2020] NSWDC 1, requirements for written statements typically do not apply to defamation actions.

2. Inadequate particulars: Some plaintiffs argue that subpoenas should be rejected if the defendant has not provided sufficiently detailed particulars of justification. However, as explained in Brooks v Fairfax Media Publications Pty Ltd (No 2) [2015] NSWSC 1331, the requirement for particulars with "precision as in an indictment" is about specificity rather than the amount of information provided.

3. Timing of information: A common objection is that defendants can only rely on information in their possession at the time the defence was delivered. However, the Full Court in Australian Broadcasting Corporation v Chau Chak Wing (2019) 271 FCR 632; [2019] FCAFC 125 clarified that proof of a justification defence "may be augmented after invoking processes of discovery and production of documents by subpoena."

4. Non-parties to litigation: The fact that a subpoena seeks documents from entities not party to the litigation is irrelevant, provided there is a connection to an issue in the proceedings.

Augmentation of Truth Particulars

A key principle emerging from recent cases is that truth particulars in defamation cases need not be "frozen in time." As Kenneth Martin J stated in Kingsfield Holdings Pty Ltd v Sullivan Commercial Pty Ltd [2013] WASC 347, "an augmentation to particulars is a common scenario in commercial litigation, even in defamation actions. It simply means that as more precise information comes to hand, the precision of the particulars is magnified."

This principle recognizes that justification is the "keystone of freedom of speech" and highlights the importance of maintaining public confidence in the legal system, as noted in Greiss v Seven Network (Operations) Limited (No 2) [2024] FCA 98.

Relevance Beyond the Particulars

Documents sought by subpoena might be relevant to issues beyond the particulars of justification. For example, in O'Shanassy v Turland (No 3), the Court noted that documents were relevant to the plaintiff's plea that knowledge of the falsity of imputations aggravated his hurt to feelings. As pointed out in Della Bosca v Arena [1999] NSWSC 1057, such a plea "raises an 'issue' in the proceedings" that may require production of documents.

Conclusion

The "apparent relevance" test provides a relatively low threshold for accessing documents by subpoena in defamation proceedings. While fishing expeditions remain impermissible, courts generally allow access where there is a reasonable basis to believe the documents will assist on an identified issue or in cross-examination.

Concerns Notices in Defamation Law: Understanding the New Requirements

Introduction: Recent Case Highlights Importance of Valid Concerns Notices

A recent decision from the Supreme Court of Victoria has underscored the critical importance of properly drafted concerns notices in defamation proceedings. In Reiter v News Corp Australia Pty Ltd & Anor [2025] VSC 54, the plaintiff commenced proceedings against News Corp Australia and journalist Mark Murray over an article published in the Geelong Advertiser. The article, titled "Melbourne professor details bizarre encounter with serial Geelong impersonator Kurt Reiter," contained allegations that the plaintiff had been posing as a lawyer and claiming to work for high-profile musicians. The plaintiff claimed this publication damaged his reputation; however, his case was dismissed for failing to comply with the mandatory concerns notice requirements under the Victorian Defamation Act.

The Role of Concerns Notices in Modern Defamation Law

The 2021 amendments to the Defamation Act 2005 (Vic) introduced a mandatory concerns notice procedure. Similar reforms have been implemented in most Australian jurisdictions (though not yet in Western Australia at the time of writing). These amendments represent a significant shift in defamation practice, designed to promote early resolution of disputes and reduce the burden on courts.

Under the reformed legislation, before commencing defamation proceedings, plaintiffs must:

1. Issue a valid concerns notice to the publisher

2. Clearly identify the alleged defamatory imputations

3. Specify the serious harm allegedly caused or likely to be caused

4. Allow a statutory period for the publisher to make an offer of amends

The concerns notice regime serves two key purposes, as noted in Georges v Georges; Georges v Georges [2022] NSWDC 558:

1. To provide publishers with sufficient information to make a reasonable offer of amends before proceedings commence

2. To encourage potential plaintiffs to consider whether they have suffered serious harm to their reputation that meets the threshold for a defamation action

What Makes a Valid Concerns Notice?

Section 12A of the Defamation Act sets out several essential requirements for a valid concerns notice:

1. It must be in writing

2. It must specify where the matter complained of can be accessed

3. It must inform the publisher of the defamatory imputations that the aggrieved person considers are or may be carried by the matter

4. It must inform the publisher of the serious harm the aggrieved person considers has been caused or is likely to be caused

5. It must attach a copy of the matter complained of, if practicable

Importantly, a document filed to commence defamation proceedings cannot be used as a concerns notice.

The Level of Detail Required

Courts have taken varied approaches to the level of specificity required in concerns notices. As discussed in Reiter, some cases have held that bare assertions of damage are insufficient and that specificity closer to pleading standards is necessary (Teh v Woodworth [2022] NSWDC 411; M1 v R1 [2022] NSWDC 409; Hoser v Herald and Weekly Times Pty Limited & Anor [2022] VCC 2213).

In Hoser, Clayton J stated that adequate precision is needed to ensure neither the defendants nor the Court are required to "perform some mental gymnastics" to understand the alleged defamatory imputations.

However, in Cooper v Nine Entertainment Co Pty Ltd (2023) 169 ACSR 584, McElwaine J adopted a more flexible approach, stating that imputations "are not required to be expressed in explicit language" and that the aggrieved person's obligation is to do "the best that can reasonably be done" in the circumstances.

Consequences of Non-Compliance

The consequences of failing to comply with the concerns notice requirements are severe. In Reiter, the Court found that the plaintiff's proceeding was an abuse of process and dismissed it under r 23.01 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic).

Non-compliance with section 12B of the Defamation Act can have substantive implications for publishers, as it denies them the opportunity to:

1. Obtain further particulars of the alleged harm

2. Make an offer of amends

3. Potentially rely on the substantive defense provided in section 18

As stated in Reiter, "the commencement of a defamation proceeding which is not permitted by s 12B has the potential to bring the administration of justice into disrepute."

The Waiting Period

Even with a valid concerns notice, plaintiffs must wait 28 days after giving the notice before commencing proceedings, unless the court grants leave. This statutory period is designed to give publishers time to consider and potentially make an offer of amends.

In limited circumstances, a court may grant leave for earlier commencement of proceedings if:

• Waiting would contravene the limitation period, or

• It is "just and reasonable" to do so

Practical Tips for Drafting a Valid Concerns Notice (not yet applicable in WA)

Drawing from the Reiter decision and other cases, here are some practical tips for drafting a valid concerns notice:

1. Clearly identify each allegedly defamatory imputation in specific terms

2. Provide detailed particulars of how the publication has caused or is likely to cause serious harm to reputation

3. Establish a causal link between the publication and the alleged serious harm

4. Attach a copy of the matter complained of

5. Ensure the notice is provided to the correct parties

6. Wait the full 28-day period before commencing proceedings

Conclusion

The concerns notice regime represents a significant procedural hurdle for plaintiffs in defamation proceedings, but one with important policy objectives. By forcing parties to clarify issues and explore settlement options before litigation, these provisions aim to reduce unnecessary court proceedings and promote earlier resolution of disputes.

Publishers who receive concerns notices should consider them carefully and seek legal advice about available options, including making offers of amends. Potential plaintiffs should ensure they comply meticulously with the procedural requirements to avoid having their proceedings dismissed as an abuse of process.

As Reiter v News Corp Australia Pty Ltd & Anor [2025] VSC 54 demonstrates, courts are taking these requirements seriously, and failure to comply can be fatal to a defamation claim before it even properly begins.

Understanding Imputations in Defamation Law: Lessons from Li v Liao

Introduction

The recent Supreme Court of New South Wales decision in Li v Liao [2025] NSWSC 168 provides valuable clarification on the proper pleading of imputations in defamation proceedings. The case involved Xiaolu Li (also referred to as Belinda Li in the judgment), a licensed builder in NSW, and several companies associated with her business. The first plaintiff and the defendant were partners in a joint venture residential development in Carlingford, NSW, and were already involved in Federal Court proceedings related to this development. The plaintiffs alleged they were defamed through an oral conversation between the defendant and others, as well as through a letter sent to a director of a company that had contracted to invest in another development project. The alleged imputations included serious claims of embezzlement, corruption, fraudulent invoicing, and other improper business practices. Justice Rothman ultimately struck out the Statement of Claim but granted the plaintiffs leave to file an amended Statement of Claim to address the deficiencies identified.

What is an Imputation?

An imputation is central to defamation law but is often misunderstood by practitioners and clients alike. In defamation proceedings, there's a crucial distinction between the "defamatory matter" (the published material itself) and the "imputations" that arise from it.

The High Court in Hall-Gibbs Mercantile Agency Ltd v Dun (1910) 12 CLR 84 defined an imputation as being "properly used with reference to any act or condition asserted of or attributed to a person." This definition has stood the test of time and continues to be applied by Australian courts.

As explained by Samuels JA in Petritsis v Hellenic Herald (1978) 2 NSWLR 174 at 189:

"Section 9(1) distinguishes between a defamatory imputation and the matter by means of the publication of which the defamatory imputation is conveyed. There is no reason to suppose that the word 'imputation' is used in any sense different from its ordinary meaning. Hence it means 'the action of imputing or charging; the fact of being charged with a crime, fault, etc.'; in short, an accusation or charge."

His Honour further clarified that the "matter" is the material which conveys the imputation, or within which the imputation is embedded, or from which the imputation may be inferred.

Imputations vs. Published Material

A common error in defamation pleadings is failing to distinguish between the published material and the imputations that arise from it. The imputation is not simply a repetition of what was said or written, but rather the defamatory meaning that arises from the material.

As Justice Rothman noted in Li v Liao [2025] NSWSC 168 at [31]-[32]:

"The imputation may and usually does arise by inference, either a false innuendo or true innuendo, from the statement. The difficulty with the practice, which I do not here criticise, and which is permissible, is that it elides the 'matter' and the 'imputation'."

In Whelan v John Fairfax & Sons (1988) 12 NSWLR 148 at 154, Hunt J emphasized:

"It has always been made quite clear that the plaintiff's pleaded imputation must identify the meaning for which he contends rather than merely the words by which that meaning is said to have been conveyed. Words are but instruments which are used to express or convey their author's meaning. Outside of legal documents, however, words are often imprecise instruments for that purpose. A defamatory imputation is very rarely stated expressly; rather, it is more usually implied or to be inferred. The charge against the plaintiff is often to be read only between the lines..."

This distinction becomes particularly important in cases like Li v Liao, where some alleged "imputations" were found to be merely restatements of the published material rather than proper imputations arising from it.

Pleading Imputations Properly

In Li v Liao, Justice Rothman emphasized that imputations must be pleaded as substantive paragraphs in the Statement of Claim, not merely as particulars. Under the Uniform Civil Procedure Rules (UCPR) r 14.30(2), a Statement of Claim must "specify" each imputation on which the plaintiff relies, allege that the imputation was defamatory, and allege that the publication has caused or is likely to cause serious harm.

Justice Rothman explained at [94]-[96]:

"In the context of the operation of the Defamation Act 2005, particularly since the inclusions of ss 12A and 12B, and the restrictions on that which may be pleaded as an imputation to that which has been the subject of particulars in the Concerns Notice, it would seem that a harmonious reading of the provisions, bearing in mind the need to facilitate a just, quick and cheap resolution of the real issues between the parties, is that each imputation needs to be the subject of a pleading and not merely a particular."

His Honour further stated that each imputation is a "material fact" giving rise to liability, and specificity is required in a manner that cannot be altered without leave or argument.

Concerns Notices and "Substantially the Same" Imputations

The 2020 amendments to the NSW Defamation Act introduced sections 12A and 12B, which require a Concerns Notice to be served before defamation proceedings can be commenced. Importantly, section 12B(1)(b) stipulates that the imputations to be relied on in proceedings must have been particularized in the Concerns Notice.

However, section 12B(2)(b) permits reliance on "imputations that are substantially the same as those particularised in a concerns notice." In Li v Liao, Justice Rothman considered when imputations will be "substantially the same."

For example, His Honour compared an imputation that the plaintiff "embezzled" money with an imputation in the Concerns Notice that the plaintiff "misappropriated" money. At [52], Justice Rothman concluded:

"Because the ordinary reasonable reader may reasonably infer that an allegation of misappropriation includes fraud, an allegation that a person has misappropriated funds for their own benefit is not substantially different from an allegation that a person embezzled funds. No substantial difference arises as a result of that aspect of the imputation."

However, when examining other imputations, Justice Rothman found substantial differences. For instance, at paragraphs [58]-[60], His Honour found that an imputation that "The development properties that [the plaintiff] constructs all have massive issues and you can't buy them" was substantially different from the Concerns Notice imputation that "there is not a single developer who has worked with [the plaintiff] that is not suing her in Court."

When Will Imputations Be Struck Out?

The test for striking out imputations is stringent. As the High Court noted in Favell v Queensland Newspapers Pty Ltd (2005) 79 ALJR 1716; [2005] HCA 52 at [6]:

"Whether or not [the pleading] ought to and will be struck out [as disclosing no cause of action] is ultimately a matter for the discretion of the judge who hears the application. Such a step is not to be undertaken lightly but only, it has been said, with great caution. In the end, however, it depends on the degree of assurance with which the requisite conclusion is or can be arrived at. The fact that reasonable minds may possibly differ about whether or not the material is capable of a defamatory meaning is a strong, perhaps an insuperable, reason for not exercising the discretion to strike out."

Justice Rothman emphasized at [99]-[102] that imputations will only be struck out if, acting reasonably, no factfinder could conclude that a pleaded imputation arises from the material published. A judge's personal view about whether an imputation arises is not determinative unless the judge concludes that no reasonable factfinder could find the imputation.

For instance, in Li v Liao, Justice Rothman struck out imputation 13.7 (that the plaintiff "lies to investors to induce them to invest money in property development projects in which she is involved") because the passage relied upon by the plaintiff did not support this imputation. The only reference to untruths was an allegation that the plaintiff would say "black is white," which His Honour found insufficient to support the specific imputation pleaded.

The "Serious Harm" Requirement

The 2020 amendments to the NSW Defamation Act also introduced section 10A, which requires that publication of defamatory matter has caused or is likely to cause "serious harm" to the reputation of the person alleged to be defamed. This element must be properly pleaded and particularized.

In Newman v Whittington [2022] NSWSC 1725 at [27], the court emphasized that the purpose of enacting section 10A was to avoid litigation on minor disputes which do not cause serious harm.

In Li v Liao, Justice Rothman explained at [146]-[149]:

"The purpose of enacting s 10A was to avoid litigation on minor disputes which do not cause serious harm. The incidence of disputes arising as a consequence of social media and the distribution of emails has notoriously led to 'backyard disputes', which impermissibly utilise the resources of the Courts in dealing with matters that ought never be the subject of litigation."

His Honour further noted that while some defamatory material may inherently suggest serious harm (such as allegations of murder or fraud when widely published), in cases with limited publication like Li v Liao, the plaintiff must specifically plead the serious harm suffered and provide particulars.

Injurious Falsehood

Though distinct from defamation, the case also addressed pleading requirements for injurious falsehood. As Justice Rothman noted at [156], this tort has four elements: "a false statement of or concerning the plaintiff's goods or business; publication of that statement by the defendant to a third person; malice on the part of the defendant; and proof by the plaintiff of actual damage suffered as a result of the statement."

These elements were reinforced by the High Court in Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388; [2001] HCA 69 at [52] and more recently by the NSW Court of Appeal in Jay v Petrikas [2023] NSWCA 297 at [45].

Conclusion

Li v Liao [2025] NSWSC 168 provides invaluable guidance on the proper pleading of imputations in NSW defamation proceedings. The case emphasizes:

1. The distinction between published material and the imputations that arise from it

2. The requirement for imputations to be pleaded as substantive paragraphs, not merely particularized

3. The interpretation of "substantially the same" imputations in relation to Concerns Notices

4. The high threshold for striking out imputations

5. The necessity of properly pleading "serious harm"

For NSW legal practitioners, the case serves as a reminder of the technical requirements for properly pleading defamation cases, particularly following the significant 2020 amendments to the Defamation Act. Failure to properly plead imputations can result in a Statement of Claim being struck out, causing delay, additional costs, and potential limitations issues for clients.

As Justice Rothman concluded, while striking out a Statement of Claim identifies deficiencies in pleadings, it provides plaintiffs with an opportunity to replead their case to overcome these deficiencies—provided they adhere to the limitations and requirements set out in the NSW Defamation Act and associated case law.

Assessing the Extent of Publication in Defamation Cases: Lessons from Newman v Whittington

Introduction

In the digital age, defamatory content can potentially reach vast audiences across multiple platforms. However, proving the actual extent of publication remains a critical and often challenging element in defamation proceedings. The recent New South Wales Supreme Court decision of Newman v Whittington [2025] NSWSC 275 provides valuable insights into how courts approach this issue. In this case, a family dispute resolution practitioner, Jasmin Newman, successfully sued Adam Whittington for defamatory publications across WordPress, Facebook, and Twitter over a period spanning December 2019 to October 2021. The publications contained extremely serious allegations, including claims that the plaintiff supported paedophiles, had committed fraud, and falsely claimed professional qualifications.

The Relevance of Extent of Publication in Defamation

The extent of publication is a key consideration in assessing damages in defamation cases. As noted in Ali v Nationwide News Pty Ltd [2008] NSWCA 183, damages in defamation serve three overlapping purposes: consolation for personal distress, reparation for harm to reputation, and vindication of the plaintiff's reputation. When determining an appropriate award, courts must consider both the inherent seriousness of the imputations and their reach.

The "grapevine effect" is also relevant - this recognizes that "the dissemination of defamatory material is rarely confined to those to whom the matter is immediately published" (Hoser v Pelley [No 3] [2023] VSCA 257 at [221]; Crampton v Nugawela (1996) 41 NSWLR 176, 194-195). However, while some harm is presumed in defamation, "the extent of that harm is not" (Eppinga v Kalil [2023] NSWCA 287 at [100]).

Challenges in Assessing Online Publications

Newman v Whittington highlights several challenges in assessing the extent of publication in the digital realm:

1. Distinguishing between potential and actual readership: Chen J was careful to distinguish between the potential reach of publications (as indicated by follower counts) and evidence of actual consumption of the content. The court noted that "the number of followers demonstrates the potential 'readership' of each particular 'post'," but was "unable (and unwilling) to make any firm finding about actual 'readership'" (at [164]).

2. Interpreting social media metrics: The case demonstrates the difficulty in interpreting online engagement metrics. For instance: "although there are those number of interactions, it is not known whether one person simultaneously 'liked, commented and shared' this post" (at [160]). Such ambiguities make it challenging to determine precisely how many individuals engaged with defamatory content.

3. Relevance to the plaintiff's community: The court considered whether the defamatory material reached individuals within the plaintiff's professional sphere or community, noting "there was no evidence establishing that anyone within the plaintiff's professional field (or in any area related to, or in any way connected with, it) read any of the defamatory publications" (at [169]).

How Courts Assess Extent of Publication

In Newman v Whittington, Chen J took a nuanced approach to assessing publication extent:

1. Social media interactions: The court examined specific evidence of engagement such as likes, comments, shares, and retweets across different platforms. However, the court was cautious about drawing conclusions about actual readership from these metrics alone.

2. Follower numbers: While acknowledging that follower counts indicate potential reach (some platforms had 19,000-24,000 followers), Chen J recognized that this doesn't necessarily translate to actual readership.

3. Geographic relevance: The court considered whether interactions came from the plaintiff's community or jurisdiction, noting that Australian interactions "were extremely limited and, for many of the matters, there were none" (at [167]).

4. Practical approach: Acknowledging the limitations in the evidence, the court took a pragmatic approach: "the plaintiff has not persuaded me that the 'readership' (that is, the extent of the publication) was most likely anything other than limited, albeit with some – essentially unquantifiable – potential for it to be greater" (at [171]).

Damages and Extent of Publication in Newman v Whittington

Despite finding that the actual readership was likely limited, Chen J awarded Ms. Newman substantial damages of $160,000. This consisted of $150,000 for non-economic loss (including aggravated damages) plus $10,000 in interest. This award reflects several important considerations:

1. Inherent seriousness of imputations: The court found that the imputations (particularly those suggesting the plaintiff supported paedophiles) were "grave or extreme imputations" (at [108]). The seriousness of these allegations appears to have outweighed the relatively limited evidence of wide publication.

2. Prolonged harm: The court noted that the harm was "prolonged and intensified by the absence of any apology by the defendant, that the defamatory matters were never retracted... and have been persisted in during the course of these proceedings" (at [176]). The defendant continued publishing defamatory material about the plaintiff even after proceedings commenced.

3. Grapevine effect: Despite limited evidence of wide publication, the court allowed for the grapevine effect, accepting that "by the ordinary function of human nature, the dissemination of defamatory material is rarely confined to those to whom the matter is immediately published" (at [177]).

The court's substantial damages award, despite limited evidence of widespread publication, suggests that the inherent seriousness of imputations and the defendant's conduct can significantly outweigh limited publication evidence when the defamatory material is particularly egregious.

Practical Implications for Defamation Practitioners

This case offers several practical lessons for defamation practitioners:

1. Evidence of actual readership: Courts want specific evidence about who actually consumed the defamatory material, not just potential reach. Merely establishing follower numbers may be insufficient.

2. Relevant readership: Focus on demonstrating that the defamatory material reached people in the plaintiff's professional or personal community, where reputation damage would be most significant.

3. Interpreting online metrics: Be prepared to explain what social media metrics actually indicate about readership, and acknowledge their limitations as evidence of publication extent.

4. Proportionate approach: Courts recognize the practical difficulties in precisely quantifying online readership. In Newman, Chen J adopted a realistic view that, while actual readership was likely limited, there remained potential for wider dissemination through the "grapevine effect" (Belbin v Lower Murray Urban and Rural Water Corporation [2012] VSC 535 at [217]).

5. Remedies beyond damages: The court also granted permanent and mandatory injunctions requiring the defendant to remove all defamatory content from his online platforms and restraining him from publishing similar content in the future. These remedies are particularly important in online defamation cases where the potential for ongoing harm exists.

Conclusion

Newman v Whittington illustrates that while courts acknowledge the potential for wide dissemination of defamatory material online, they require concrete evidence of actual readership when assessing damages. Nevertheless, where imputations are particularly serious and the defendant's conduct is egregious, substantial damages may be awarded even with limited evidence of widespread publication.

For defamation practitioners, this reinforces the need to focus on both the inherent gravity of the defamatory imputations and, where possible, evidence of actual readership within communities that matter to the plaintiff's reputation. As online defamation cases continue to proliferate, the approach to assessing publication extent established in cases like Newman v Whittington will remain crucial to securing appropriate compensation for reputational harm.

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.