List Member, Alex Katsikalis comments “When the uniform defamation laws were first introduced, some commentators feared that the inclusion of a statutory cap limiting non-economic loss would allow media outlets to view defamatory publications as simply a business cost they could predict and account for. (Rolph D, “A Critique of the National, Uniform Defamation Laws” (2008) 16 TLJ 207, 243.)
Following Rebel Wilson’s defamation case where the Victorian Court of Appeal held that the statutory cap does not apply where aggravated damages are warranted, (Bauer Media Pty Ltd v Wilson [No 2] [2018] VSCA 154, [248]-[250]) those early concerns have arguably been put to bed. As those concerns are eased, however, countervailing fears emerge in their place.
The rationale behind a statutory cap in the first place – which includes keeping the amount of damages won in defamation cases comparable to those won in personal injury cases (Bauer Media Pty Ltd v Wilson [No 2] [2018] VSCA 154, [175]) – may have been weakened by the interpretation of the law made in cases such as Rebel Wilson’s. In response, the wording of section 35 of the Defamation Act (Qld) should be updated to clarify the legislature’s intention”.
