Defences and Remedies

Contributed by Susan Platis, Legal Aid ACT and Ben Aulich (https://aulich.com.au/) and current to June 2018.

Defences

Whilst there are numerous defences to the publication of defamatory matter (see Civil Law (Wrongs) Act s135-139D), the most important and effective defence is that of truth. That is, the defamatory matter was truthful.

It is also important to note that a reasonable offer to settle or make amends is a complete defence to the publication of defamatory matter.

Remedies

The legal remedies that are available for a party bringing a defamation claim are usually damages (compensation) and in very rare cases, injunctions (a court order to stop matter from being published).

The amount of damages a court will award depends on the amount and type of harm caused. Damages can be awarded for economic loss (such as loss of income) or non-economic loss (such as hurt feelings). Section 139F of the Civil Law (Wrongs) Act limits damages for non-economic unless the court considers the circumstances warrant a larger sum. Corporations cannot suffer hurt feelings and so are excluded from this type of damages.

Apologies, publication of corrections, and whether damages have already been paid in relation to another publication of the same or similar defamatory matter can affect the amount of damages payable.

Early Resolution

Part 9.3 of the Civil Law (Wrongs) Act provides a party who has published defamatory matter a mechanism for ‘making amends’ without litigation. A party who has received written notice of a claim for defamation, may, within 28 days of receiving the notice, offer to make amends for defaming the other party by publishing a reasonable correction and paying damages and the other party’s reasonable legal costs.

Every defamation dispute is different. Offers to make amends or settle that are not accepted and later found to have been ‘reasonable’ can provide a complete defence for the ‘publisher’ and can have costs implications for the plaintiff.

Costs

Section 139K of the Civil Law (Wrongs) Act deals with legal cost implications for defamation actions. When making cost orders, the court considers the behaviour of both parties during the legal dispute and whether any reasonable settlement offers have been made and accepted/rejected before or during proceedings. Parties should seek legal advice when making or considering offers to settle the matter. If an offer to settle is rejected and subsequently unsuccessful in court, the party rejecting the offer may be required to pay the legal costs of the other party.