Gary Hevey Gordon & Jackson 9225 8075 9225 7333 ...

DEFAMATION LAW IN VICTORIA 

March 2013 

Introduction 

1. Defamation: the publication of material that has the tendency to injure the 

reputation of another; that is, when the esteem in which that person is held by 

the community is diminished in some respect: Radio 2UE Sydney Pty Ltd v 

Chesterton 1 . 

2. The law of defamation is concerned with the meanings conveyed by a 

publication: imputations. An imputation is any statement about a person that 

asserts or attributes an act or condition to that person. It includes any natural 

and ordinary meaning as well as true innuendoes; that is, where information is 

published to a person with knowledge of special facts or circumstances an 

otherwise innocent statement may become defamatory by reason of the true 

innuendo 2 . 

3. The competing interests have always been the right to “free speech” versus the 

protection of reputation. 

While our society generally lauds freedom of 

expression it has placed limits on that freedom through laws such as those 

relating to defamation, sedition, incitement in certain areas (such as racial 

vilification), obscenity and, to a lesser and lesser extent in today’s society, 

offensive language. 

4. At common law there was a distinction between slander (oral or transitory 

defamation) and libel (printed or a more permanent record of the defamation). 

1 [2009] HCA 16; (2009) 238 CLR 460 

2 See generally: Lexis Nexis Chapter on Defamation by Dr David Rolph 

Gary Hevey 

Gordon & Jackson 

9225 8075 9225 7333

2 

That distinction is abolished by the Defamation Act 2005 3 . The ever changing 

world of communications through social media is leading to new challenges as 

will be highlighted later in this paper. 

5. The tort of defamation provides a remedy in damages designed to vindicate the 

aggrieved person’s reputation and to provide consolation, insofar as can be done 

by money, for the hurt suffered by the aggrieved person. At common law 

damages were at large and included compensatory, aggravated, exemplary and 

punitive damages. 

6. In March 2010 a jury in the Supreme Court of Victoria awarded Dyson Hore- 

Lacey SC of the Victorian Bar $600,000 by way of compensatory damages plus 

$30,000 for exemplary damages having found him to have been defamed in a 

book entitled Getting Away With Murder concerning the defence raised in the 

Ramage murder case of 2003. 

The book, written by Mr Phil Cleary and 

published by Allen and Unwin, suggested certain conduct by Hore-Lacy. 

Interest and costs were in addition to the amount awarded and was one of the 

largest claims awarded in Victoria. One other that remains in memory is that of 

Ron Clarke, athlete extraordinaire, who in 2000 sued the ABC’s 7.30 Report 

for comments made alleging that he was building a sporting complex over a 

toxic dump. While his solicitors had sent a Calderbank offer shortly before trial 

indicating that the plaintiff was prepared to settle for $75,000 the jury awarded 

him $1,000,000 for the hurt to his reputation. 

7. A few other cases that indicate the value placed on reputations might be thought 

to be at different ends of the scale are mentioned here having regard to the cap 

on damages introduced by the uniform legislation that will be covered shortly. 

3 Sub-section 7(1) 




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Mr Andrew Ettinghausen a well-known rugby league player in New South 

Wales sued as a result of a magazine publishing a photograph of him in a 

shower after a match, the photograph was revealing; a jury compensated Mr 

Ettinghausen to the amount of $350,000. The NSW Court of Appeal thought 

the hurt not to be that large and reduced the damages to $100,000. In a similar 

matter Ms Sonia Shepherd, a then 31-year-old mother from Hervey Bay in 

Queensland was awarded $120,000 when a magazine, without her permission, 

published a nude photograph of her. Mr Kennett, a former premier of this State 

reportedly received a settlement from Channel 9 in the order of $400,000. Ms 

Jelena Popovic, Magistrate received $250,000 when Mr Andrew Bolt inferred 

that she was soft on crime and unfit to be a Magistrate. Mr John Marsden, a 

former president of the New South Wales Law Society sued Channel 7 in 1999 

over allegations aired in Witness and Today Tonight that Mr Marsden had 

engaged in sexual conduct with under age boys. He was awarded $525,000 plus 

millions of dollars in indemnity costs (his lawyers had made an offer of 

compromise $500,000) with reports indicating that legal costs in this, a very 

long running case, amounted to around $18 million dollars. Channel 7 appealed 

and lost. 

8. Other matters that might be of interest include, the case commenced by Mr 

Alphonse Gangitano against the journalist Mr John Silvester and 3AW after Mr 

Silvester alleged Mr Gangitano had “the brains of a flea and the genitalia to 

match”. I have not seen the pleadings but I assume that both parts of the 

sentence were alleged to be defamatory. Regrettably, Mr Gangitano apparently 

experienced some difficulty with a Mr Jason Moran, and as a result of an early 

demise, was unable to see the proceedings through to the door of the Court. 




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The final matter that I would remind you of was the celebrated case concerning 

the late Mr Frank Hardy, author of that wonderful Victorian novel, Power 

Without Glory. Mrs Ellen Wren, the widow of Mr John Wren, a colourful 

identity and businessman, who some were unkind enough to think might have 

been the subject upon which Mr Hardy based his story’s hero/villain (please 

circle as you see fit), had the then 34 year old Hardy arrested and charged with 

criminal libel. I will return later to the famous Hardy name. 

9. The personalities involved in defamation litigation over the years are, as 

interesting as are the matters to which they took offence, the courses chosen by 

them to restore their reputations, and the results of their various quests. All of 

the above matters are of public domain and I would refer those with prurient or 

otherwise motivated interest in such matters to www.maynereport.com where a 

rich treasury of many household names awaits. 

The Defamation Act 2005 - The Uniform Legislation 

10. On 1 January 2006 the Defamation Act 2005 came into operation 4 . It is part of 

the uniform law of defamation that has existed since that time in all jurisdictions 

in Australia. The Act changed the law in many ways and since that time has 

been the starting point for any matter involving allegations of, or considerations 

of defences in relation to, defamation. 

11. The objects of the act refer to uniformity of defamation in Australia, the need to 

ensure that there is no unreasonable limits on freedom of expression, especially 

in relation to matters of public interest and importance, to provide effective 

4 Section 2 – Unless otherwise stated all references are to the Defamation 

Act 2005. The Act is known as the Defamation Act in all jurisdictions in Australia 

except the ACT where it forms part of the Civil Law (Wrongs) Act 2002. 




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remedies for persons whose reputations are harmed and to promote speedy and 

non-litigious methods of resolving disputes 5 . 

12. The Act relates to the tort of defamation at general law and does not affect the 

operation of the general law except as provided for in the Act 6 . 

13. The Act abolishes the distinction between libel and slander 7 . The 

importance of this abolition is that the publication of defamatory matter of any 

kind is actionable without proof of special damage 8 . Before the Act any action 

for slander required proof of special damage by the plaintiff before they could 

be compensated by damages. 

14. Where there are a number of defamatory matters published at the one time then 

only a single action may be brought, even if more than one defamatory 

imputation is carried by the matter 9 . This does not mean, for example, that 

where different potential defendants publish the same defamation then the 

plaintiff is limited to one action. 

As many actions are open as there are 

publishers. An example of the potential for multiple actions is demonstrated by 

the cases of Trkulja v Yahoo! 10 and Trkulja v Google Inc (No 5) 11 . Each of 

those matters concern publications on the internet alleging that the plaintiff was 

either involved in criminal activities, so involved with crime in Melbourne that 

his rivals had hired a hit man to murder him, or that he was such a significant 

figure in the Melbourne criminal underworld, that events involving him are 

recorded on a Web site that chronicles crime in Melbourne. The plaintiff 

5 Section 3 

6 Section 6 



9 Section 8 

10 [2012] VSC 88 

11 [2012] VSC 533 




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succeeded in both actions when the respective juries found he had been 

defamed. In the Yahoo! matter Kaye J assessed damages at $225,000 plus 

interest and costs, and in the Google matter, Beach J assessed damages at 

$200,000. There were slight differences in the findings by each of the juries but 

on any reading of the cases the assessment of damages was well toward the 

maximum amount available to the plaintiff under the Act. I shall return later to 

amounts awarded by way of damages since the introduction of the Act. 

15. Section 9 of the Act restricts those corporations who can sue for defamation 

to those who might broadly be described as, not-for-profit corporations, or a 

corporation that employs fewer than ten persons and is not related to another 

corporation; so long as either of such corporations is not a public body. 

16. As mentioned in relation to Mr Gangitano’s matter his action lapsed with his 

death. No cause of action for or against a deceased person (including a 

personal representative of the deceased) is open even if the action was 

commenced before the death of the person 12 . 

17. The choice of law, a question that was often a very real one before the 

introduction of the uniform legislation, is now governed by factors set out in 

section 11 of the Act. If publication is within one jurisdiction then that will be 

where the action is, if in more than one jurisdiction then it is where the harm 

occasioned by the publication has its closest connection and, in deciding that, 

the court will take into account where the plaintiff was ordinarily resident or the 

extent of the publication in each relevant jurisdiction. 

12 Section 10 




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Alternative dispute resolution process 

18. Part 3 of the Act is entitled Resolution of Civil Disputes without Litigation. 

As mentioned earlier one of the objects of the Act as set out in section 3 is to 

promote speedy and non-litigious methods of resolving disputes about the 

publication of defamatory matter. 

19. The Act provides that a publisher may make “an offer to make amends” to an 

aggrieved person and any such offer to make amends is taken to have been 

made without prejudice, unless the offer provides otherwise 13 . Such an offer is 

dependant upon the aggrieved person giving a notice in writing to the publisher 

of their concerns (a concern notice) informing the publisher of the defamatory 

imputations alleged to have been made (the imputations of concern). Upon 

receipt of the concern notice the publisher has 28 days in which to make the 

offer to make amends or to request further particulars from the aggrieved 

person. If a request for further particulars is made then the plaintiff has 14 days 

to provide them 14 . 

20. An offer to make amends must include a number of matters listed in section 15 

of the Act and, should you ever find yourself in a position that you are assisting 

a client to prepare one, you should use section 15 as a check list to ensure that 

the offer will have its full effect should the matter proceed to litigation. Apart 

from the obvious offer to make amends (or to attempt to) for the perceived 

defamation and suitable publication thereof there must also be an offer to pay 

reasonable expenses incurred by the aggrieved person while there may also be 

an offer to pay a stated amount or to pay an amount to be determined by an 

13 Section 13 

14 Section 14 




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arbitrator appointed by the parties or, finally, to pay the amount determined by a 

court. If a court is the chosen path then the court will be the court in which any 

proceedings have already been issued and, if none have yet been issued then in 

the Supreme Court 15 . 

21. There is power for an offer to make amends to be withdrawn 16 . 

22. If the offer to make amends is accepted, and carried out, then the aggrieved 

person cannot assert, continue or enforce any action for defamation in relation 

to the matter which will then, in effect, be regarded as settled 17 . A court may 

(but need not) order the publisher to pay the aggrieved person expenses 

reasonably incurred as a result of accepting the offer and order any costs 

incurred that form part of those expenses be assessed on an indemnity basis 18 . 

23. Like many such provisions there is a sting in the tail for an aggrieved person 

who chooses not to accept an offer to make amends. An offer to make amends, 

and its rejection, may be pleaded as a defence by the publisher and a court will 

look objectively at the offer to determine whether it was reasonable in all the 

circumstances, and if it is judged to be so, an otherwise potentially successful 

action may well fail 19 . 

24. Any admissions that are made in any offer to make amends is inadmissible in 

any action for defamation whether civil or criminal although such admissions 

may be considered when looking at the effects of this part of the Act and, 

perhaps obviously, in any question as to costs 20 

15 Sub-sections 15(3) and 15(4) 

16 Section 16 

17 Section 17 


19 Section 18 

20 Section 19 




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25. In similar vein apologies offered by a publisher does not constitute an express 

or an implied admission and is also inadmissible in any proceedings in like 

manner to the offer to make amends 21 . 

Manner of trial 

26. Litigation can be tried, at the election of either party, by a jury although the 

court can veto such a request if the trial will involve a prolonged examination of 

records or involves technical, scientific or other issue that cannot be 

conveniently be considered and resolved by a jury 22 . 

I make no comment on 

this apparent comment on trial by jury! 

27. While the jury (if one has been allowed) has the task of deciding whether 

defamation has occurred and whether a defence has been successful, should the 

plaintiff succeed it will be the judicial officer who decides what damages are to 

be paid 23 . It is to be noted that nothing in section 22 affects any law or practice 

relating to special verdicts. 

28. Section 23 prevents the bringing of a second action by the aggrieved person 

against the same defendant in a different jurisdiction without leave of the court 

to do so. 

Defences 

29. The Act does not affect the defences or exclusion of liability that may be 

available to a defendant under the general law 24 . An example cited in the Act is 

21 Section 20 

22 Section 21 

23 Section 22 

24 Section 24 




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section 19 of the Constitution Act 1975 conferring privileges and immunities on 

members of parliament. Importantly, while the state of mind of a publisher may 

not be relevant in the plaintiff’s case it may be relevant in defeating a defence 

raised 25 . 

30. Contextual truth is a defence if the defamatory imputations do not further 

harm the reputation of the plaintiff because of the substantial truth of the 

contextual imputations 26 . 

31. Absolute privilege is a defence, i.e. matters said within parliament or court 

including accurate publication of the same 27 . Likewise the publication of public 

documents document or a fair summary or extract from a public document is a 

defence 28 . 

The definition of public document restricts the meaning to 

government, curial and quasi government type documents. 

32. A defence of fair reporting of proceedings of public concern is provided for 

by the Act 29 but this defence, once established, is defeated, if, and only if, the 

plaintiff proves that the defamatory matter was not published honestly for the 

information of the public or the advancement of education 30 . Interestingly, 

learned societies, sports associations and trade associations are all included 

within the definition of matters that relate to “proceedings of public concern”. 

33. A defence of qualified privilege exists if the defendant proves that the recipient 

of the defamatory material had an apparent interest in having information on the 

subject, and, the matter is published to give the recipient information on that 


26 Section 26 

27 Section 27 

28 Section 28 

29 Section 29 





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subject and finally that the conduct of the defendant is reasonable in the 

circumstances 31 . The matters that a court will take into account in assessing 

whether the criteria for qualified privilege have been met are set out in section 

30 but, as mentioned earlier, this defence can be defeated if the plaintiff proves 

malice but note that merely because reward is associated with the publication 

does not equate to malice 32 . 

34. A defence of honest opinion can be made out if the opinion was of public 

interest and is based on proper material and such defence extends to employers/ 

principals of commentators who might express defamatory honest opinions 33 . 

This defence too may be defeated if, and only if, the plaintiff proves that the 

opinion was not honestly held at the time of publication, or in the case of an 

employer/principal that they did not believe that the opinion was honestly held 

by the commentator. 

35. There is a defence of innocent dissemination where an employee/agent or 

subordinate distributor and in that capacity did not know, nor could not 

reasonably have been expected to know that the statement was defamatory 34 . 

Such a defence is likely to be raised where matters have been published on the 

internet and an aggrieved person seeks to sue those who might be seen to have 

the deepest pockets, Google and Yahoo perhaps? Despite the earlier mentioned 

matters involving Mr Trkulja and both Google and Yahoo the matter is not yet 

settled as to whether search engines are in fact publishers of such material. 

31 Section 30 

32 Sub-sections 30(4) and 30(5) 

33 Section 31 

34 Section 32 




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36. The very recent decision of Mansfield J in the Federal Court matter of Rana v 

Google Australia Pty Ltd, Darda Gregurev, Nina Gregurev and Google Inc 35 is 

an example that the law on publication and the defences is still in a state of 

development. The New Zealand Case of A v Google New Zealand Ltd 36 

considered that in order to be held liable as a publisher of defamatory material it 

must be the case that the defendant “could have prevented the continued 

publication of the material” or had the ability to bring about the cessation of 

that material. The NZ court found that because of Google New Zealand being a 

subsidiary of Google Inc the named defendant did not have the power to prevent 

or bring about the cessation of the publication of the relevant material. A 

similar decision was reached in Tamiz v Google Inc and Google UK Ltd 37 . 

37. Following the reasons in the NZ and UK cases cited Mansfield J held that, on 

the facts before him in the Rana Case, Mr Rana had no reasonable prospect of 

success and dismissed the action against Google Australia. 

Mansfield J 

considered the differing approaches taken in Tamiz and Trkulja v Google Inc 

LLC (No 5) and decided that as the law was not yet settled he would not, on that 

basis, refuse to give leave to serve the proceedings on Google Inc which would 

have had the effect of effectively dismissing that claim. His Honour gave Mr 

Rana 28 days to file and serve a Further Amended Statement of Claim so that 

the question of granting leave for overseas service might be considered in light 

of the fresh pleadings. 

38. The differing views expressed in Tamiz and Trkulja are important. Eady J in 

Tamiz used the analogy of a graffitied wall and queried whether the owner of a 

35 [2013] FCA 60 – judgment handed down 7 February 2013 

36 [2012] NZHC 2352, cited in Rana at para 38 of that judgment 

37 [2012] EWHC 449 (QB), cited in Rana at para 39 of that judgment 




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wall daubed with defamatory material could be said to be the publisher of it; 

Beach J, on the other hand, expressed the view that it was open to the jury in his 

case to find that Google was the publisher of the defamatory material because 

the search engine operates precisely as intended by those who own it and who 

provide its services. It should also be noted that in the Trkulja Case notice of 

the offending material had been provided to Google Inc and Beach J found that 

it was open to the jury to find that after receipt of such notice, “as infelicitous 

as the letter of 22 September 2009 might have been”, the defendant did not 

make out its defence of innocent dissemination. 

39. The final defence contained in the Act is that of triviality, which relates to 

circumstances where the publication was such that it was unlikely that the 

plaintiff would sustain harm as a result 38 . 

Damages 

40. Damages in any action are to bear an appropriate and rational relationship to the 

harm sustained by the plaintiff 39 . In the normal course of events damages for 

non-economic loss are limited to $250,000 (plus CPI increases since 1 January 

2006) 40 . However, if the court is satisfied in the circumstances the 

publication(s) is such as to warrant an award of aggravated damages then the 

figure may be exceeded 41 . Importantly, the state of mind of the defendant at the 

38 Section 33 

39 Section 34 

40 Sub-section 35(1) – present value just over $300,000 





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time of the publication is irrelevant, except where malice, or other state of mind, 

affects the harm sustained by the plaintiff 42 . 

41. The awarding of exemplary or punitive damages was abolished by the Act 43 . 

42. Factors that will mitigate damages include an apology, a correction, the fact that 

a plaintiff has issued or compromised or recovered damages from other 

proceedings in relation to any other publication of matter having the same 

meaning, or effect, as the subject defamatory matter 44 . 

43. Damages for multiple causes of defamation may be assessed as a single sum 45 . 

44. I make some general observations to perhaps dispel the view that there may be a 

river of gold awaiting a person defamed. 

45. In another case involving Mr Trjulka, while successful, the damages awarded 

were modest. In 2009 Mr Trkulja sued Ms Trajkovska for defamation. The 

defendant did not contest the proceedings, she did not appear at court. Mr 

Trjulka was successful. The allegation was that the defendant had alleged to 

have said to a group of five friends that Mr Trjulka had drugged her causing her 

to become ill and lose sleep and that the plaintiff was guilty of a serious crime. 

Similar allegations were allegedly made shortly after to another small group of 

about twenty-four people, this time the allegation included that the plaintiff was 

selling illegal drugs and that he once offered to sell his own daughters into 

prostitution at the ages of five and six. Of interest was that the first publication 

was alleged to have occurred on or about 6 January 2003 and the second on or 

about 7 January 2003. Proceedings were not issued until 24 March 2009. One 

42 Section 36 

43 Section 37 

44 Section 38 

45 Section 39 




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can only presume that as the defendant took no part in the proceedings any 

question of limitations periods was not raised. Judge Davis 46 was guided by the 

terms of the Act and considered the matter relating to Ms Popovic, (referred to 

earlier in this paper 47 ), as well as the case of Winn v Goodwin 48 (where Judge 

Shelton had awarded $30,000 in relation to defamatory statements repeated in 

correspondence to VCAT) and finally a decision of Judge Campbell in the 

matter of Gluyas v Tenana 49 (where $20,000 was awarded to a defendant who 

had defamed the plaintiff on the World Wide Web). Waving some judicial 

magic wand Judge Davis awarded Mr Trkulja the princely sum of $3,000 by 

way of compensatory damages. Mr Trkulja was also compensated $960.50 for 

his own costs (as a self represented party) together with interest of $104.40. 

46. Lest you should think that the County Court is the only court where damages 

might be somewhat less than expected I would also refer you to the case of 

Amanatidis v Darmos 50 . In that matter Ms Anastasia Darmos caused to be 

delivered to one person, and personally delivered to a priest, a letter containing 

defamatory material of the husband and wife plaintiffs concerning the 

disposition of the assets of a family member. 

Ms Darmos was the male 

plaintiff’s sister. The relevant deceased was their father. The case was hard 

fought with silk and junior for the plaintiffs and a Mr P. Darmos appeared for 

Ms Darmos. The judgment does not record whether counsel for the defendant 

was related to her although Wilson QC, for the plaintiff, alleged that there was 

further aggravation caused by the manner in which the defendant’s case was 

46 Trkulja v Trajkovska [2010] VCC 0010 

47 [2002] VSC 220 

48 [2008] VCC 1507 

49 [2008] VCC 1161 

50 [2011] VSC 163 




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conducted and sought aggravated damages accordingly. Taking everything into 

account Sifris J awarded the husband plaintiff $5,000 by way of compensatory 

damages and the wife (who had been accused of robbing the dead by taking 

money and papers from the deceased’s pockets – a defamation which His 

Honour regarded as “particularly serious”) was awarded $10,000 which sum 

included an unspecified amount for aggravated damages. 

47. To provide a broader picture for the 2011 year the largest recorded award of 

damages was $150,000 was in the matter of Nowark v Putland 51 where the 

plaintiff was allegedly called a “paedophile” and a “wog” while at a Surf Live 

Saving Club. However, on appeal 52 

the judgment was overturned and the 

matter was sent back for a retrial before a different judge with the Court of 

Appeal exhorting the parties to consider whether some other form of settlement 

could occur under the ancient legal maxim: enough is enough. The average in 

New South Wales 2011 was $71,286 with the two largest recorded awards 

being $100,000 each 53 . 

48. As mentioned earlier in the paper the late Mr Frank Hardy suffered the indignity 

of being arrested and charged with criminal defamation. His grand daughter Ms 

Marieke Hardy was recently involved in a defamation action concerning Mr 

Johua Meggitt. Ms Hardy had been the subject of what she described as a hate 

blog against her. Regrettably, on 9 November 2011 she incorrectly identified 

Mr Meggitt as the man responsible for writing the blog under the nom de guerre 

of James Vincent McKenzie. That matter settled for a reported $13,000 with 

Ms Hardy, clearly the victim of defamation herself, having to pay Mr Meggitt 

51 Queensland District Court at Southport delivered 8 November 2011 

52 Putland v Nowak [2012] QCA 121 – judgment delivered 11 May 2012 

53 www.justinian.com.au/bloggers/hateful-blogging.html 




17 

for “outing” the wrong man. One can only assume that Ms Hardy will search 

for the correct blogger and seek to make good the money that she has lost. 

Costs 

49. It is important to remember that in matters involving defamation the potential 

for the award of costs on an indemnity basis to the successful party is very 

real 54 . Having regard to the attempts to resolve matters before ending at court a 

successful party may be in a strong position when arguing that having 

reasonably attempted to settle the matter then they ought to be awarded 

indemnity costs as allowed under the Act. 

Time limits – ONE YEAR 

50. The other matter that is of paramount importance to any solicitor considering 

a potential defamation action is the time limit. In the original Act section 48 

prescribed the relevant time limits for the commencement of an action but these 

were repealed in 2011 and are now to be found in sections 5(1AAA) and 23B of 

the Limitation of Actions Act 1958. Section 5(1AAA) prescribes one year from 

the date of publication for the bringing of an action for defamation. There is 

provision within section 23B to extend that period to a maximum of three years 

(but no longer) where it was not reasonable in the circumstances for the plaintiff 

to have commenced an action in relation to the matter complained of within one 

year of the publication. An application for an extension may be made even 

though the one year period has passed. 

54 Section 40

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