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Getting Defamation Law Pitch Perfect!

We don’t get too many high profile defamation cases in Australia.  It’s a difficult area of the law (one of the very few civil areas that still have jury trials for example) that is quite heavily modified by legislation.  It’s also usually about painful subjects and people wary of the “Streisand effect” (whereby the taking of the litigation makes the defamatory statements much more famous than would otherwise have been) can tend towards letting it slide.

Not so Rebel Wilson.  She has been duking it out for a number of years now with Bauer Media, the publishers of (amongst other things) Women’s Weekly, New Weekly and OK magazines about a series of articles that appeared in those publications in May 2015.

Ms Wilson alleged a number of defamatory imputations arose from those articles.  Without going into the details, the thrust of the allegations was that she was a “serial liar who has invented fantastic stories in order to make it in Hollywood”.  The “lies” she was said to have told included about her real age, that she had grown up in an under privileged area of Sydney, that she had lived for a year in Zimbabwe, that her parents were dog breeders, and had lied about using a fake name.

At the conclusion of the first hearing of the matter in the Victorian Supreme Court the jury found that the articles had carried the imputations that Ms Wilson alleged, and also found that none of those imputations were in fact true.

The judge at first instance, His Honour Justice Dixon awarded damages to Ms Wilson in excess of $4,000,000 in total, an almost unheard-of amount in Australia and one which made it almost inevitable that an appeal would be filed (which of course it subsequently was).

The judgment of the Supreme Court of Victoria, Court of Appeal was handed down on 14 June 2018.  The Court did not disturb any of the findings at first instance in relation to the defamatory articles.  The appeal was instead focussed on the calculation of Ms Wilson’s damages.

At first instance Ms Wilson was awarded $650,000 in damages for non-economic loss, that is for hurt feelings and humiliation.  This award was trimmed slightly to $600,000 on appeal.

Where the damages were radically different was for economic loss.  At first instance Ms Wilson had been awarded approximately $3.9 million in damages for economic loss.  That amount was based on what she calculated was the value of opportunities she lost as a result of the defamatory articles.

Essentially Ms Wilson said that she was in demand following the release of Pitch Perfect and was very busy after that, culminating in Pitch Perfect 2.  The articles were published shortly after that, and she then did not receive any more film offers for approximately 18 months.  It was alleged that this lack of roles or loss of opportunity was due to the articles, an argument that was accepted.

The Supreme Court, Court of Appeal overturned this finding, upholding Bauer’s appeal and awarding no economic loss to Ms Wilson.   The Court was not convinced on the balance of probabilities that Ms Wilson had in fact lost opportunities to the value she claimed.  They had difficulty with Ms Wilson not identifying any particular lost opportunities (ie a particular film role she lost) but rather with the inference that she would have attracted at least one starring role worth $5 million in that period.

This is a reminder to everyone that proof of a cause of action (in this case defamation, but the same applies equally to breach of contract, or negligence) is but one element of a successful Court case.  One must also prove loss and damage.

It’s here I again take advantage of an opportunity to refer to the mighty Wests Tigers.  Jarrod McCracken’s career ended while playing for the Tigers when he was injured in a lifting tackle against the Melbourne Storm.  He sued and was successful in proving negligence against the tacklers and that their employer, the Storm, were also liable.  However, McCracken had started up a very successful property development business after his injury, and his profits from that business far exceeded his income from playing.  He was therefore unable to recover future economic loss.

So where does the leave Rebel?  She has her judgment for $600,000, and her vindication that the articles were found to be untrue and defamatory.  She has indicated on Twitter that she is considering an appeal to the High Court – I guess we have to wait for the sequel.