On 16 May, Rebel Wilson filed a writ in the Victorian Supreme Court against Bauer Media, the publisher of Woman’s Day magazine, which published articles last year alleging that Wilson had lied about her age, background and childhood. The writ claimed that Bauer Media made defamatory claims against Wilson that were humiliating and embarrassing, as a result of which Wilson suffered loss and damage to her reputation and career.
So what is involved in a claim of defamation and how do you start proceedings for it in Victoria? We break it down below.
Starting a Legal Action in Victoria
The Victorian Civil procedure differs from other states. In starting a legal action at the Victorian Supreme Court, the applicant will file a writ rather than an originating motion. A ‘writ’ in this case means a legal document issued in the name of the Court commanding the person to whom it is directed to act or refrain from an act. According to the Supreme Court (General Civil Procedure) Rules 2005 (Vic), originating motions are usually used where there is unlikely to be a substantial dispute of fact, where there is no defendant or where the Court so orders. Under Regulation 4.04, all other cases are started by writ.
Writs are filed through completing Form 5A, which can be downloaded from the Supreme Court’s website. Amongst other details, it also includes a Statement of Claim sets out the details of your complaint and the type of damages you are seeking. Note that for claims below the value of $100,000 should be filed with the Magistrates’ Court of Victoria instead.
In Victoria, defamation is a tort or a civil cause of action. Under the Defamation Act 2005 (Vic), an action for defamation must be brought within one year of publication.
The distinction between slander and libel has been abolished under the Defamation Act. Hence, an individual can put an action against publication of any defamatory material without proof of special damage. In general, defamation is material that negatively impacts or affects the person of which the material is about.
For the claim to be made, the material must:
- Be a communication or publication
- Be made to a third party
- It is defamatory
- Identify the defamed person
Compensation in Victoria for defamation is capped at $250,000 for non-economic damages. You can also sue for special damages, like Wilson if you can calculate precisely how much should be owed to you. In her claim for special damages, Wilson argued she was removed from specific roles.
There are a number of defences available under the Defamation Act, including but not limited to:
- Defence of justification
- Defence of contextual truth
- Defence of fair report of proceedings of public concern
- Defence of honest opinion
The defences are listed under Part 4 Division 2 of the Defamation Act. If none of the defences apply, then there is no lawful excuse for the publication of the defamatory material.
Further to the defences listed above, it will also be a defence if the publisher in question has made a reasonable offer to make amends but had this offer rejected. In deciding if an offer was reasonable, the court may take into consideration any relevant factors, such as the amount of time elapsed between publication and amendment offer.
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