The Limitation Period for Defamation Cases: Factors a Plaintiff Should Consider prior to Commencing a Case

In the world of defamation law, time is of the essence.

In Western Australia, as well as other Australian states, the limitation period for bringing a defamation case is one year from the date of publication.

This truncated period was first introduced as part of a suite of amendments to promote the resolution of defamation proceedings in a timely manner and to encourage non-litigious methods of resolving disputes.

This blog post discusses the various factors and actions potential claimants should consider during the one-year limitation period before deciding whether to pursue a defamation case.

Key considerations during the Limitation Period (also serves as a checklist for potential plaintiffs)

1. Reflect and consider maturely whether the proposed litigation can be resolved without litigation: As noted in the case of Lehrmann v Network Ten Pty Limited (Limitation Extension) [2023] FCA 385, the one-year limitation period allows potential claimants time to reflect and consider whether the dispute can be resolved without resorting to legal action. Initiating a defamation lawsuit can be costly and time-consuming, so it is important to explore alternative dispute resolution methods, such as mediation or issuing a concerns notice to the publisher, as provided under Pt 3 Div 1 of the Defamation Act.

2. Consider whether the cost of litigation would be proportionate to the extent of perceived damage: Before pursuing a defamation case, claimants should weigh the costs of litigation against the potential recovery and the extent of the perceived damage. It is important to ensure that the costs of the lawsuit are not disproportionate to the potential outcome.

3. Conduct necessary enquiries as to the identity of the respondent or respondents: Identifying the correct respondent(s) is crucial in a defamation case. The one-year limitation period provides potential claimants with time to conduct necessary enquiries to accurately identify the parties responsible for the publication of the alleged defamatory material.

4. Assess the availability of sufficient material to support the claim: To succeed in a defamation case, a claimant must have sufficient evidence to support their allegations. The one-year limitation period allows claimants to gather the necessary material to establish their case.

5. Reflect on the potential impact of litigation on personal and financial well-being: Pursuing a defamation lawsuit can be a life-changing decision that may bring stress and potential adverse financial consequences. Claimants should take the time during the limitation period to consider the possible ramifications of litigation on their personal and financial well-being.

No Obligation to Commence Proceedings at the First Opportunity

In the Lehrmann case, it was held that the claimant does not have a positive obligation to commence proceedings at the first possible opportunity or in one period over another within the time set by the legislature.

The statutory task is holistic, requiring an evaluation of all relevant facts or "the circumstances" that existed within one year of the date of the publication.

As emphasized by Chesterman JA in Noonan v McLennan, a claimant does not have to account for every day or week in the limitation year, but rather must satisfy the court that it was not reasonable in the circumstances to have commenced an action within the limitation period.

Considering the Whole of the Circumstances

It is essential to recognize that while the fact that it may have been reasonable to commence proceedings for a significant period within the limitation period is material and could be determinative, the existence of this fact alone is not necessarily fatal.

As stated in Lehrmann v Network Ten Pty Limited (Limitation Extension) [2023] FCA 385 at [24], the courts will consider the whole of the circumstances when evaluating the reasonableness of commencing proceedings.

For instance, an unexpected and catastrophic event occurring towards the end of the limitation period might make it unreasonable for a claimant to commence proceedings for the first time.

In such cases, if the court's consideration of the whole of the circumstances leads them to conclude that the claimant did not commence proceedings due to the unanticipated event, the statutory test may still be satisfied.

Thus, it is crucial for potential claimants to be aware that the courts will take a holistic approach when assessing the reasonableness of commencing proceedings within the one-year limitation period.

Assessing Damages in Defamation Cases: An Overview

Defamation law exists to protect individuals and entities from false statements that could harm their reputation.

When a person or organisation is defamed, they may be entitled to compensation for the damage done to their reputation and the associated emotional distress.

In this blog post, I discuss the principles for assessing damages in defamation cases, drawing on the case of Cables v Winchester [2018] VSC 392, as well as other relevant cases, to provide a general overview of the subject.

Key Principles for Assessing Damages in Defamation Cases:

In Wilson v Bauer Media, John Dixon J summarized the well-established principles for assessing damages in defamation cases as follows:

1. Damages should provide consolation for hurt feelings, damage to reputation, and vindication of the plaintiff's reputation.

2. Damages ought to reflect the high value the law places on reputation, particularly for those whose work and life depend on their honesty, integrity, and judgment.

3. The gravity of the libel and the social standing of the parties are relevant to assessing the quantum of damages necessary to vindicate the plaintiff.

4. There must be an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded.

5. The extent of publication and the seriousness of the defamatory sting are pertinent considerations.

6. The court should take into account the 'grapevine' effect arising from the publication when determining the damage done to a plaintiff's reputation.

7. Injury to feelings may constitute a significant part of the harm sustained by a plaintiff.

8. Aggravated damages are a form of compensatory damages designed to reflect aggravation caused to a plaintiff's hurt or injury by reason of some conduct of the defendant.

Factors to Consider in Awarding Aggravated Damages:

In Cables v Winchester [2018] VSC 392, the court found that an award of aggravated damages was appropriate due to the following conduct of the defendant:

- Publishing words with the sole purpose of injuring the plaintiff's reputation

- Refusing to apologize

- Not appearing in the proceeding (until the hearing for assessment of damages)

Comparative Exercise and the Importance of Context:

As noted by Hayne J in Rogers v Nationwide News Pty Ltd, engaging in a comparative exercise for damages may be misleading, as each case is unique.

However, considering awards in comparable cases can be appropriate when there is no contradictor to respond to the submissions of the plaintiff.

In Fraser, Daly AsJ highlighted the importance of context, stating that reviewing other cases can be instructive in illustrating what features the current case does not have.

Social Media Publications and Defamation: Imputations and Extent of Publication

The increasing prevalence of social media has led to a rise in defamation cases involving online publications.

This blog post discusses the legal approach to evaluating social media publications in defamation cases, specifically focusing on imputations and the extent of publication.

The analysis will draw from the case of Hockings v Lynch & Adams [2022] QDC 127, as well as referencing other pertinent cases such as O'Reilly v Edgar and Bolton v Stoltenberg.

Extent of publication

When determining the extent of publication in defamation cases involving social media, courts take into account various aspects.

These include the number of followers, shares, likes, and comments, which can serve as evidence of the publication's reach. For instance, in O'Reilly v Edgar, the court acknowledged that at least 1,000 members of a Facebook group had downloaded and read the defamatory posts.

In contrast, in Bolton v Stoltenberg, the court inferred from the evidence of reach, likes, comments, and shares that a substantial number of people had downloaded and read the material.

Context

The context in which defamatory posts are made is also a crucial factor to consider.

As articulated by Muir DCJ in Brose v Baluskas (No 6), examining the posts within the context they were posted and as part of the broader conversation on the relevant sites is essential.

Social media platforms possess particular characteristics, such as:

• inconsistent moderation,

• a propensity for false or exaggerated claims,

• the use of emojis and non-standard characters.

These factors can impact how an ordinary and reasonable reader interprets and understands the posts.

Ongoing Publication

Additionally, the extent of ongoing publication plays a significant role in defamation cases.

In Hockings v Lynch & Adams, for example, the court examined whether the defamatory posts remained publicly accessible on the internet at the time of the trial. The court found that, due to the grapevine effect, the defamatory posts had been published to an estimated hundreds of people.

Reasonableness and the Lange Defence in Defamation Law: Balancing Free Speech and Reputation Protection

The concept of reasonableness in the context of the Lange defence in defamation law has been a subject of debate and evolving interpretation.

This article discusses the concept of reasonableness and its application to the Lange defence, based on the decision in Palmer v McGowan (No 5) [2022] FCA 893.

I explore the three potential approaches to reasonableness outlined in the case and examine the implications for balancing freedom of speech and reputation protection.

Three Potential Approaches to Reasonableness

1. Eschewing the reasonableness requirement

The first approach argues that in specific situations, such as when a communication meets the duty and interest components of common law qualified privilege, the reasonableness criterion may not apply. This perspective aligns with the High Court's decision in Lange, which introduced reasonableness as an additional condition for mass media publications that could potentially cause more significant harm to one's reputation.

However, this method has faced criticism as it seems to overlook the fact that in Lange, reasonableness replaced the reciprocity requirement rather than being added to it. Moreover, this approach could be perceived as granting an unrestricted exemption for particular statements without carefully considering the balance between free speech and protecting one's reputation.

2. Adapting the concept of reasonableness

The second approach proposes that the concept of reasonableness should be adapted or more stringently defined to prevent the imposition of an undue burden on the implied freedom of speech.

This perspective has arisen in reaction to how reasonableness has been interpreted under Lange, often incorporating judicial interpretations of reasonableness from defamation legislation, such as the Defamation Act.

Critics assert that this method has resulted in a detailed examination of pre-publication conduct, imposing a burden on both litigants and decision-makers.

Instead, proponents of this approach recommend that reasonableness should be addressed with greater flexibility, taking into account "all of the circumstances of the case," as expressed in Lange.

3. Revisiting the reasonableness criterion

The third approach advocates for revisiting and potentially removing the reasonableness criterion as part of the Lange defence. However, this view has faced challenges, as seen in the refusal of special leave to reopen Lange in The Herald & Weekly Times Ltd v Popovic [2004] HCATrans 180.

The approach taken in Palmer v McGowan (No 5) [2022] FCA 893

Section 30 of the Defamation Act outlines a statutory defence of qualified privilege for the publication of defamatory matter to a person (the recipient) if the defendant proves that:

(a) the recipient has an interest or apparent interest in having information on some subject;

(b) the matter is published to the recipient in the course of giving them information on that subject; and

(c) the conduct of the defendant in publishing the matter is reasonable in the circumstances.

Despite nuances like these, courts have generally equated the reasonableness requirement in Lange to that in Section 30 of the Act.

However, this has led to the Lange defence losing its practical utility.

Commentators have criticized the defence as "ill-defined" and "about as hopeless as you can get," with some even calling it a "disaster." Such strong critiques emphasize the need to reevaluate and clarify the reasonableness requirement in Lange.

Striking a Balance

The reasonableness requirement in the Lange defence has been criticized for being too onerous and hindering the proper balance between freedom of speech and reputation protection. The need to strike a balance between these interests was a key rationale behind the High Court's decision in Lange.

Although the Lange defence is rarely successful, primarily due to the stringent reasonableness requirement, it is important to consider whether the current approach to reasonableness adequately balances free speech and reputation protection. A more evaluative approach to reasonableness, free from the constraints imposed by authorities, may be necessary to strike the appropriate balance.

Key Take-Aways

• The concept of reasonableness in the Lange defence remains a complex and evolving area of defamation law.

• While the approaches outlined in Palmer v McGowan (No 5) provide potential avenues for reevaluating reasonableness, it is essential to consider the overarching goal of striking a balance between freedom of speech and reputation protection.

Understanding the Lange Defence in Defamation Law

Defamation law seeks to balance the protection of individual reputations with the importance of free speech, particularly in matters of government and politics.

One key aspect of defamation law in Australia is the Lange defence, a constitutionally protected privilege that provides a further protection for publishers of false and defamatory material.

In this blog post, I discuss the origins and principles of the Lange defence, as well as its limitations.

The Lange Defence: Background and Principles

The Lange defence emerged from a line of High Court cases starting with Theophanous v Herald & Weekly Times Ltd (1994) and Stephen v West Australian Newspapers Ltd (1994).

The defence was settled by the unanimous decision of the High Court in Lange v Australian Broadcasting Corporation (1997), where the court recognised the importance of the concept of representative democracy and the dissemination of information about government and political matters to the widest possible audience.

Under the Lange defence, each member of the Australian community has an interest in receiving information, opinions, and arguments concerning government and political matters, and each person has a correlative duty to disseminate such information, opinions, and arguments. This new category of qualified privilege was seen as an extension of the existing categories of qualified privilege.

The Lange Defence: Conditions and Reasonableness

A crucial aspect of the Lange defence is the question of the conditions upon which this extended category of common law qualified privilege should depend.

Just as the traditional categories of qualified privilege are unavailable where a respondent was actuated by malice, the High Court noted that as long as the publisher honestly and without malice uses the occasion for the purpose for which it is given, that person escapes liability even though the publication is false and defamatory.

Additionally, in view of the much wider audience that has an interest in receiving discussion about government and political matters, the High Court held that the protection will be lost unless the publisher of the false or defamatory material proves they acted reasonably.

The concept of reasonableness has been the subject of debate and differing interpretations, but it generally encompasses factors such as:

• having reasonable grounds for believing the imputation was true,

• taking proper steps to verify the accuracy of the material, and

• seeking a response from the person defamed.

Limitations and Criticisms of the Lange Defence

Despite the potential importance of the Lange defence in striking a balance between freedom of discussion and protection of reputations, it has been criticised as being "ill-defined" and having limited utility, primarily due to the stringent reasonableness requirement.

Some commentators have even labeled it a "disaster" and called for a reconsideration of the balance between free speech and reasonable protection of individuals involved in government or politics.

In practice, the Lange defence is rarely successful, leading to questions about whether a proper balance is being struck.

Key Take-Aways

• The Lange defence represents an important aspect of defamation law in Australia, seeking to balance the competing interests of free speech and protection of individual reputations.

• While the defence has its limitations and has been subject to criticism, it remains an essential component of the legal landscape, protecting the communication of government and political matters.

When Should Indemnity Costs Be Awarded in Relation to a Calderbank Offer?

In Western Australian litigation, indemnity costs may be awarded in certain circumstances when a Calderbank offer has not been accepted.

Calderbank offers are settlement offers made outside of court that, if rejected unreasonably, can lead to an order for indemnity costs.

This blog post explores the principles governing the exercise of the court's discretion to make such an award, drawing on the case of Middendorp v Lygina (No 2) [2021] WASC 431 (S).

Principles Governing Indemnity Costs in Relation to Calderbank Offers

As established in Ford Motor Company of Australia Ltd v Lo Presti [2009] WASCA 115 and summarized in Eccles v Koolan Iron Ore Pty Ltd (No 3) [2013] WASC 418 (S), there are several principles that apply when determining whether a Calderbank offer justifies an award of indemnity costs:

1. A Calderbank offer will not justify an award of indemnity costs unless its rejection was unreasonable.

2. All relevant facts and circumstances must be considered in determining whether a party's rejection of a Calderbank offer was unreasonable.

3. The mere fact that the recipient of a Calderbank offer is ultimately worse off than he or she would have been had the offer been accepted does not mean its rejection was unreasonable.

4. Whether conduct is reasonable or unreasonable always involves matters of judgment and impression.

5. It is not possible nor desirable to enumerate exhaustively all circumstances which must be taken into account in deciding whether the rejection of a Calderbank offer was unreasonable, but ordinarily, regard should be had to factors such as:

• the stage of the proceeding in which the offer was received,

• the time allowed to the offeree to consider the offer,

• the extent of the compromise offered,

• the offeree's prospects of success,

• the clarity with which the terms of the offer were expressed, and

• whether the offer foreshadowed an application for indemnity costs in the event of the offeree's rejecting it.

6. The party who makes a Calderbank offer that is rejected bears the onus of satisfying the court that it should make an award of indemnity costs in his or her favor.

7. The standard for awarding indemnity costs should not be allowed to diminish to the extent that an unsuccessful party will be at risk of an order for costs assessed on an indemnity basis absent some blameworthy conduct on its part - a test of unreasonableness should not be upheld on other than clear grounds. (Put another way, the standard for awarding indemnity costs should be maintained at a level where an unsuccessful party is not at risk of being ordered to pay costs assessed on an indemnity basis without engaging in some form of blameworthy conduct. A finding of unreasonableness should only be based on clear and compelling grounds, rather than being applied too easily or casually).

Assessment of Calderbank Offers

As reiterated in Strzelecki Holdings Pty Ltd v Jorgensen, Calderbank offers must be assessed without the benefit of hindsight and having regard to the strength of the parties' cases as they then stood.

A party's erroneous prediction about the prospects of litigation, on the basis of which they reject a Calderbank offer, may not be regarded as unreasonable if that party was not, at the time, and for good reason, in possession of sufficient information to make a proper assessment of its prospects, or if the circumstances upon which the assessment was based later changed.

Additionally, the terms of a Calderbank offer must be unambiguous, and it will not be unreasonable to reject an offer if there is some reasonable doubt about the nature and extent of what was being offered.

Case Example: Middendorp v Lygina (No 2) [2021] WASC 431 (S)

In this case, the court found that an order for indemnity costs (for a part of the costs) was justified due to the unreasonable rejection of a Calderbank offer.

The court considered factors such as the late stage of the proceeding, the defendant's prospects of success, the short timeframe for acceptance, the extent of the compromise offered, the clarity of the offer's terms, and the fact that the offer foreshadowed an application for indemnity costs in the event of rejection.

The court also noted that the unsuccessful party had not provided a reason for not accepting the offer beyond the usual prospects of being successful in litigation, which further justified the indemnity costs order.

Key Take-Aways

• Indemnity costs may be awarded in relation to a Calderbank offer if the rejection of the offer is found to be unreasonable.

• The court will consider various factors to determine whether the rejection was unreasonable, such as the stage of the proceeding, the time allowed for consideration, the extent of the compromise offered, the offeree's prospects of success, the clarity of the terms, and whether the offer foreshadowed an application for indemnity costs in the event of rejection.

• It is essential for legal practitioners to carefully consider the principles outlined above when advising clients on the potential consequences of rejecting a Calderbank offer, as an unreasonable rejection may lead to an indemnity costs order against their client.

Evaluating the need for a Guardian: the Guardian's Ability to Effect Decisions Not Relevant

In Western Australia, guardianship matters are governed by the Guardianship and Administration Act 1990 (WA) (GA Act).

A recent decision, JL [2023] WASAT 20, provides an opportunity to examine how the Tribunal assesses the need for a guardian pursuant to s 43(1)(c) of the GA Act.

This article provide an overview of the relevant legislation and delve into the Tribunal's approach in determining whether a guardian is required.

Background

JL is a 34-year-old indigenous man who suffered a traumatic brain injury in a motor vehicle accident in 2006.

As a result, he developed a drug misuse problem, and he has been a patient of Mental Health Services since 2009.

JL's mother, BL, has been his primary carer for 16 years.

An application was made to appoint a guardian for JL, but the Public Advocate investigator did not support the appointment, arguing that JL's needs were met less restrictively through family support and existing services.

Section 43(1)(c) of the GA Act

According to s 43(1)(c) of the GA Act, the need for a guardian cannot be assessed against the ability of any guardian to give effect to the decisions made.

This principle was upheld in NCK [2004] WAGAB 6 at [64], where the workability or practicality of an order was deemed irrelevant to the statutory criteria for making a guardianship order.

Instead, the Tribunal must focus on whether there is a need for a guardian to intervene in a person's affairs.

In JL's case, the investigator submitted that there was no one more suited as a guardian than BL, as she had done more for her son than any independent guardian could hope to replicate.

The investigator argued that it was not in JL's best interests to appoint a guardian, as the least restrictive alternative was already in place through family support and existing services.

Best Interests of the Proposed or Represented Person

The primary consideration of the Tribunal must be the best interests of the proposed or represented person. In JL's case, the Tribunal considered the factors set out in s 51 of the GA Act, which include encouraging the person to live in the general community, taking their wishes into account, acting in a manner least restrictive of their rights, maintaining supportive relationships, and maintaining their familiar cultural, linguistic, and religious environment.

In weighing these factors, the Tribunal accepted the investigator's submissions that it was not in JL's best interests to appoint a guardian. The Tribunal noted that this was not a case where there was a lack of family involvement or support that would justify appointing the Public Advocate as JL's guardian against his expressed wishes and against the wishes of his family.

Key Take-Aways

• The JL [2023] WASAT 20 case demonstrates that the need for a guardian under s 43(1)(c) of the GA Act is assessed based on whether there is a need for a guardian to intervene in a person's affairs, rather than the guardian's ability to give effect to decisions made.

• In determining whether a guardian is required, the Tribunal must consider the best interests of the proposed or represented person, taking into account the factors listed in s 51 of the GA Act.

• In some cases, as in JL's, the least restrictive alternative may be found in the support and services already in place, negating the need for a guardian.

Principles for Costs Appeals

As a costs lawyer in Western Australia, I often come across situations where clients wish to appeal costs orders.

While the right to appeal is an essential part of the legal process, it is important to understand the principles that govern costs appeals.

In this blog post, I explore these principles, drawing from the case of Strzelecki Holdings Pty Ltd v Jorgensen [2019] WASCA 96.

The Discretionary Nature of Costs Orders

Costs orders involve the exercise of discretion by the court. This means that the judge has the authority to decide on the appropriate costs order based on the specific circumstances of the case.

Consequently, the principles applicable to appeals against discretionary decisions also apply to costs appeals.

Limits of Appellate Intervention

An appellate court is not entitled to substitute its own decision for the decision under appeal simply because it would have reached a different conclusion, or because it considers that a different outcome would be more just and equitable.

Instead, an appellate court must be satisfied that the order made stands outside the limits of a sound discretionary judgment before intervening.

Establishing Errors in the Primary Decision

To demonstrate that a costs order is outside the limits of a sound discretionary judgment, an appellant must establish either an express error or demonstrate that an error can be inferred.

An express error occurs when the primary judge:

1. Acted upon a wrong principle,

2. Mistook the facts,

3. Took into account an irrelevant consideration, or

4. Failed to take into account a relevant consideration.

An error may be inferred if the order under appeal is shown to be unreasonable or plainly unjust.

Understanding the Apportionment of Costs in Western Australian Legal Cases

This blog post provides a general overview of the apportionment of costs, based on the Western Australian case of Strzelecki Holdings Pty Ltd v Jorgensen [2019] WASCA 96.

1. The Importance of Success in Determining Costs

Success in legal proceedings is determined based on the reality of the circumstances involved in the case ([50]).

The court examines the overall outcome of the proceedings and the parties' success on individual issues.

The determination of success is not a mere mathematical calculation but rather an assessment of the parties' achievements on the substantive aspects of the case.

The court may depart from the general rule that costs follow the event and modify a costs order to take into account specific factors.

These factors can include unreasonable conduct by the successful party or the failure of that party on one or more particular issues ([50]).

The court's discretion in modifying costs orders is guided by the Rules of the Supreme Court, the established practice of the court, and legal authorities.

If the court is of the opinion that the successful party's conduct has resulted in costs being unnecessarily or unreasonably incurred, the court may deprive that party of costs, either wholly or in part ([50]).

The court may even order the successful party to pay the costs of the unsuccessful party, either wholly or in part, depending on the circumstances. This highlights the importance of maintaining reasonable conduct throughout the litigation process.

In cases where the successful party fails on specific issues, the court may exercise its discretion to apportion costs accordingly. This may involve ordering the successful party to pay the costs of those issues on which they have failed ([50]). However, it is essential to recognize that the court will only exercise this power when there are discrete and severable issues that have significantly added to the cost of the proceedings.

2. Discretion to Apportion Costs

The court has a wide discretion to apportion costs, which must be exercised judicially (Strzelecki Holdings Pty Ltd v Jorgensen [2019] WASCA 96, [48]).

Apportionment of costs should only be made where there are discrete and severable issues on which the successful party failed, and which added to the cost of the proceedings in a significant and readily discernible way (Strzelecki Holdings Pty Ltd v Jorgensen [2019] WASCA 96, [51]).

3. Modifying the Usual Costs Orders

When the court decides to modify the usual costs orders to reflect the limited success of the successful party, this power should be exercised broadly, as a matter of impression, without any attempt at mathematical precision (Strzelecki Holdings Pty Ltd v Jorgensen [2019] WASCA 96, [52]).

This approach acknowledges the complexities of separating different issues and the varying importance of different issues within a case.

4. Apportionment of Costs in Strzelecki Holdings Pty Ltd v Jorgensen [2019] WASCA 96

In this case, the court ultimately determined that a just apportionment of costs would require Strzelecki to pay two-thirds of the Jorgensens' costs of the action.

This conclusion was reached based on a broad analysis of the case, taking into account the various components of the action and their relative significance, and acknowledging the common factual substratum and legal issues in some components of the case (Strzelecki Holdings Pty Ltd v Jorgensen [2019] WASCA 96, [97]-[100]).

Aggravated Damages in Defamation Cases: An Overview

In defamation cases, aggravated damages can be awarded when the defendant's conduct is particularly harmful or egregious.

This blog post explores the grounds for awarding aggravated damages in defamation, with reference to a recent court decision, Hockings v Lynch & Adams [2022] QDC 127.

Grounds for Awarding Aggravated Damages

Aggravated damages can be awarded over and above the maximum general damages.

A court can award aggravated damages where a defendant acts improperly or unjustifiably, or in a way which demonstrates a lack of good faith, thereby improperly aggravating the injury done to a plaintiff.

In Hockings v Lynch & Adams [2022] QDC 127, the plaintiff sought aggravated damages against each defendant individually, pointing to several factors:

1. The number and persistent nature of the defamatory publications and the extended period over which they were made (para [356](a)).

2. The recklessness of the defendants as to the truth of the statements they made and the meanings conveyed (para [356](b)).

3. The pursuit of the justification defense at trial, as well as a plea of truth and a defense of triviality in an earlier version of the defense (para [356](c)).

4. The allegations going to the very heart of the plaintiff's personal and professional life (para [356](d)).

5. The defendants' persistent refusal to apologize (para [356](e)).

6. The failure to respond to the concerns notice in a timely way and, upon receiving particulars, failing to make an offer to make amends or give an apology (para [356](f)).

The court in Hockings v Lynch & Adams [2022] QDC 127 emphasized that the plaintiff bears a heavy onus to establish malice, as per the principles in Brigginshaw v Brigginshaw (1938) 60 CLR 336, where stupidity, bias, or carelessness are not enough (para [360]). Malice refers to the defendant's primary or predominant motive for publishing the remark and can be inferred from the acts, conduct, or expressions of the defendants (para [359]).

Factors to Consider

The court in Hockings v Lynch & Adams [2022] QDC 127 considered several factors in determining the award of aggravated damages, including:

- The number, frequency, and tenor of the defamatory posts (para [365]).

- Whether the defendants were motivated by a desire to attack or diminish the plaintiff (paras [365], [367], [368]).

- The seriousness of the allegations made, particularly when related to a person's professional life (para [365]).

- The defendants' refusal to apologize and their persistence in pursuing their defense (para [373]).

In this case, the court found that the first defendant's conduct was substantially more egregious than the second defendant's conduct and awarded aggravated damages against the first defendant (para [374]). However, the court was not persuaded that an award of aggravated damages should be made against the second defendant (para [375]).

Key Take-Aways

• Aggravated damages in defamation cases can be awarded when the defendant's conduct is particularly harmful or egregious.

• Factors such as the number and nature of defamatory publications, the defendant's motive, the seriousness of the allegations, and the defendant's refusal to apologize may be considered by the court in determining the award of aggravated damages.