The Perfect Defamation Pitch: Wilson v Bauer Media Pty Ltd

What happens when your “jealous” and “disgruntled” former classmate contacts Woman’s Day? You get the largest defamation payout in Australian legal history and global attention focused on the Australian legal system. The Rebel Wilson defamation case has brought a touch of Hollywood to the doorstep of the Victorian Supreme Court. Whilst the appeal has seen the payout figure diminish, the interest in this case hasn’t.

On 13 September 2017, the well-known actress Rebel Wilson succeeded in a defamation claim against Bauer Media Pty Ltd in respect of what the trial judge characterised as a very serious instance of the tort, finding that the Bauer Media had “branded … [the plaintiff] a serial liar who had fabricated almost every aspect of her back story, from her name, to her age, to her childhood and upbringing, in order to make it in Hollywood.” She recovered the massive sum of $4,749,920.60. This primarily consisted of damages for economic loss of $3,917,472, with the balance being aggravated damages in the amount of $650,000 and $182,448.61 interest.

However, to establish the causal connection between the tort of defamation and damages suffered, one must pitch it perfectly. Last month, Bauer Media successfully appealed against the assessment of damages and the judge’s findings of certain aspects of aggravation. Its main target was the damages awarded reflecting economic loss. This head of damages was subdivided into special damages, and Andrews damages, a species of general damages in compensation for a general downturn in business inferentially arising from the tort. The trial judge, having awarded special damages for Ms Wilson’s loss of opportunity for work consequent upon publication, declined to consider Andrews damages. The Victorian Court of Appeal unanimously found that Ms Wilson hadn’t in fact lost any valuable business opportunity, that the judge had overstated the trajectory of Ms Wilson’s success, and that the “grapevine effect” hadn’t been made out on the evidence. Indeed, the Court of Appeal found that there was no causal nexus between the tort and economic loss. In the result, for the same reasons that the claim for special damages failed, the Court also refused to award Andrews damages. It also found certain matters of aggravation not to have been made out, and reduced the damages for non-economic loss from $650,000 to $600,000.

The Court gave some consideration to the Defamation Act 2005 (Vic), s 35. In particular, s 35(1), either by itself or together with s 34, doesn’t establish an ascending scale or range of damages reflecting the seriousness of the particular defamation concerned, and the second limb of s 35(5), upon aggravation being established, empowers the court in its discretion to exceed the statutory cap.

Although the damages award was reduced by the Court of Appeal, the aggravating nature of Bauer Media’s conduct warranted a sufficiently sharp economic rebuke to drive home the lesson that tort doesn’t pay.

Ms Wilson has described the actions of Bauer Media as bullying, a deliberate attack at her hard-earned successful career. With much of our society looking for answers as to how to eliminate bullying in children is there something to be said for looking into how our society reacts to this behaviour in adults?

Practitioners should warn their defendant clients against doing anything during the proceedings that have already begun that would bump up the damages through aggravation, and their plaintiff ones that if they want to succeed in an economic loss claim arising from defamation that they’d better have all the evidence at hand to establish causation.

Find this and other interesting defamation cases on FirstPoint on Westlaw AU. For more information or to request a free trial, visit the website.

Written by James McGregor and Christine Tooma Eldabbagh, legal editors in the Westlaw AU Primary Law and Research team

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