Bauer Media to appeal Wilson v Bauer Media Pty Ltd [2017] VSC 521

October 9, 2017

It was always on the cards that Bauer Media would appeal its loss in Wilson v Bauer Media Pty Ltd [2017] VSC 521. And today Bauer Media announced that it was appealing the quantum of the damages.  Just inside Read the rest of this entry »

Johnston v Holland (No 2) [2017] VSC 597 (4 October 2017): Defamation, limitation of action, extension of time, exercise of discretion, pleadings

October 8, 2017

In Johnston v Holland (No 2) [2017] VSC 597 Dixon J heard and upheld an appeal from a decision of Associate Justice Derham in Johnston v Holland [2017] VSC 448.


The plaintiff, Johnson,  appealed the judgment of Associate Justice Derham refusing an application brought under s 23B of the Limitation of Actions Act 1958 (Vic) (‘the Act’):

  1. to extend the limitation period;
  2. to permit him to join Wayne Murray as a second defendant to a proceeding; and
  3. to amend his statement of claim.

Johnson is the principal of The Peninsula School in Mount Eliza, Victoria and the defendant, Holland, is a former director of marketing at the School and a parent of students or former students who attended the school [2].

Johnson is suing for damages for defamation arising from:

  • a series of ‘tweets’ (to approximately 26 followers) and
  • an email (to at least 30 recipients) published on 2 April 2015 to the staff, parents and students of the School.

Johnson proposed to Read the rest of this entry »

Wilson v Bauer Media (Ruling No 5) [2017] VSC 355 (21 June 2017): application

August 13, 2017

As part of the rich vein of rulings and law that attend the Rebel Wilson case His Honour Dixon J considered an application by the Plaintiff to suppress publication of financial details she received from film contracts in  Wilson v Bauer Media (Ruling No 5) [2017] VSC 355 


The plaintiff applied pursuant Read the rest of this entry »

Wilson v Bauer Media (Ruling No 6) [2017] VSC 356 (27 July 2017): defences of triviality and partial justification, removed from the jury

August 8, 2017

The rebel Wilson case, known to nerdy lawyer types as Wilson v Bauer Media, is the gift that keeps on giving in providing rulings related to the running of defamation trials. It was a hard fought, taken many points type of case.  That meant lots of arguments on points of law. In Wilson v Bauer Media (Ruling No 6) [2017] VSC 356 the court considered and ruled on the defence of triviality and partial justification.



The Plaintiff sought to have the defence of triviality not go to the jury.  The defendants pleaded Read the rest of this entry »

Sheales v The Age & Ors [2017] VSC 380 (29 June 2017): defamation, damages where reputation not put in issue, mitigating and aggravating factors

July 6, 2017

After a 6 day trial a jury found for the plaintiff in the defamation proceeding of Sheales v The Age & Ors [2017] VSC 380.  The Court awarded damages in the sum of $175,000.  The current maximum amount awardable for non-economic loss is $381,000.


The Plaintiff, Sheales, is a Victorian barrister practicing mainly in criminal law and sports law. The Third Defendant, Patrick Bartley, was a journalist who wrote an article about the Plaintiff’s appearance before a Racing Victoria stewards hearing on 2 August 2015. An issue before the steward’s hearing that day concerned the alleged use of the chemical element cobalt by the plaintiff’s clients [1]. Fairfax Digital Australia and New Zealand Pty Ltd, the second defendant, published the article online. The first defendant, The Age Company Pty Ltd, the owner and publisher of The Age newspaper, published the article, with some small differences on 3 August 2015 [2].

The Plaintiff alleged that he had suffered injury to his professional reputation and feelings, had been humiliated, embarrassed or Read the rest of this entry »

McDonald v Dods [2017] VSCA 129 (2 June 2017): Defamation, inference of publication on the internet, damages

June 11, 2017

In McDonald v Dods [2017] VSCA 129 the Victorian Court of Appeal considered the issue of inference of publication to unknown individuals who may have read a blog post.

It is an appeal from judgments of Bell J inDods v McDonald (No 1) [2016] VSC 200 (6 May 2016) and Dods v McDonald (No 2) [2016] VSC 201 (6 May 2016).


The applicant, McDonald, was the administrator and author of the website ‘’ (the “website”) from December 2008 to October 2012 where he discussed the death of Tyler Cassidy by police shooting [3]. The respondent Read the rest of this entry »

Furnari v Ziegert [2016] FCA 1080 (2 September 2016): Telecommunications (Interception and Access) Act 1979, private communications, injunctive relief, defamation

September 18, 2016

The Federal Court per Murphy J in Furnari v Ziegert [2016] FCA 1080 considered the unusual application for injunctive relief arising out of a defamation action.  The decision is notable for its consideration of section 7 of the Telecommunications (Interception and Access) Act 1979 (“TIA Act”).


The applicant purchased a pedigree bobtail Doberman pup from the respondents for $3,500 in December 2015. He said that Ms Ziegert represented that the pup could breed, was a natural bobtail, had been checked by a veterinarian, didn’t have Von Willebrand disease and weighed between 9 and 10 kg.  Upon taking delivery of the pub he said it had been sterilised, was diseased, weighed only 4.5 kg, was unhealthy and, as if that wasn’t enough, was not a natural bobtail.  Not surprisingly the applicant alleged misrepresentations by the respondents [7] which is the subject of a proceeding in the Victorian Civil and Administrative Tribunal  [8].

The dispute escalated into a defamation proceeding. His Honour summarised the circumstances  as: Read the rest of this entry »

50th anniversary of New York Times v Sullivan

March 10, 2014

One of the modern myths of American jurisprudence is the primary the Constitution has always given to the First Amendment.  In that context the media has a significant, almost unassailable, defence when facing a claim of defamation from a public figure. It was not always thus.  In fact pre 1964 US defamation law was not much different to that of its cousins across the lake in the UK.

It was the US Supreme Court decision of New York Times v Sullivan, 50 years ago on 9 March 1964, which elevated the First Amendment protections to its current position of primacy. That position has not been reduced, as some of the decisions of the Warren Court have been (such as the Miranda decision).  If anything it has been bolstered.

The Atlantic covers the story of New York Times v Sullivan in Today Is the 50th Anniversary of the (Re-)Birth of the First Amendment. As usual a thoughtful and engrossing account of how the decision came about.

It provides:

On March 9, 1964, a unanimous Supreme Court reversed a libel verdict against The New York Times in a case brought by Alabama officials who complained about a civil rights advertisement in the paper. The First Amendment, thankfully, hasn’t been the same since.

Barrow v McLernon & Anor [2012] VSC 134 (12 April 2012):Discovery, use of discovered documents in subsequent proceedings, use discovered documents to amend pleadings, ss 26 and 27 of Civil Procedure Act 2010 & s35 Defamation Act 2005

April 12, 2012

Today Justice Beach, in Barrow v McLernon & Anor [2012] VSC 134 handed down a very interesting and useful decision regarding discovery and the operation of section 27 of the Civil Procedure Act. It is an appeal from a decision of an Associate Justice.


The Plaintiff is suing Hugh McLernon and IMF (Australia) Limited for defamation arising out of the publication on 30 May 2011 of an email and two pdf attachments [1]. The Plaintiff wishes to use documents discovered in this proceeding in support of issuing other proceedings, also a cause of action in defamation [2].  Five documents discovered constitute Read the rest of this entry »

Defamation, extent of publication, twitter; Chris Lance Cairns v Lalit Modi [2010] EWHC 2859 (QB)

November 22, 2010

The High Court sitting in the Queens Bench division recently rejected an application by the defendant, Modi, to order a trial on the extent to which the tweet the subject of  the action was read in jurisdiction.  The Defendant applicant argued that issue was relevant to both liabilityand damages. The  High Court ruled that numbers of readers alone was not decisive.


An expert giving evidence on behalf of Modi estimated that only 35 people viewed the message.  The Defendant argued that, as in Yousef Jameel and Dow Jones , the damage from any libel case would be so small as to be not warrent proceeding and so any case would be an abuse of the court process.

There was conflicting evidence as to extent of publication (see [19][ 22]). Cairns’ expert estimated the audience for the tweet to be around 100, by looking at the number of Modi’s followers in the court’s jurisdiction. While Cairn’s counsel accepted that not all of Modi’s followers would have seen the tweet directly, it was argued that some people would have received a communication of it by other means.

Decision and reasoning

Mr Justice Tugendhat found that the number of people who saw the message was only one of a number of considerations in a defamation case. He found at  [34]:

In any event, the Jameel type of abuse of process does not depend on numbers alone.  [Cairns] has resided in this jurisdiction in the past, and expects to return to live here again. There have been recent cases in which the court has declined to strike out claims based on a direct communication to a single publishee.

Mr Justice Tugendhat said Read the rest of this entry »