Once there is proof of a defamatory publication; the law presumes that there will be damage in all cases.
Damages for deformation are:
(1) Compensatory damages, including
- Injury to reputation,
- Social damage,
- Injury to feelings,
- Injury to health, and
(2) Aggravated compensatory damages
This damage may be increased by the conduct of the party and therefore increase the damages awarded, while other conduct could decrease the injury and therefore decrease the damages. Under section 34 of the Defamation Act 2005 (Vic) in determining the amount of damages to be awarded in any defamation proceedings, the court is to ensure that there is an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded.
Under the section 35, the maximum amount of damages for non-economic loss that may be awarded in defamation proceedings is $250 000 or any other amount adjusted in accordance with this section from time to time (the maximum damages amount) that is applicable at the time damages are awarded. A court may order a defendant in defamation proceedings to pay damages for non-economic loss that exceed the maximum damages amount applicable at the time the order is made if, and only if, the court is satisfied that the circumstances of the publication of the defamatory matter to which the proceedings relate are such as to warrant an award of aggravated damages[1]. In awarding damages the state of mind of the defendant is not a relevant matter. Under legislation however the plaintiff cannot be awarded exemplary or punitive damages for deformation[2].
The Defamation Act 2005 (Vic) states that certain factors may be taken into account in mitigation of the damages. Under section 38, evidence is admissible on behalf of the defendant, in mitigation of damages for the publication of defamatory matter, that:
(a) the defendant has made an apology to the plaintiff about the publication of the defamatory matter; or
(b) the defendant has published a correction of the defamatory matter; or
(c) the plaintiff has already recovered damages for defamation in relation to any other publication of matter having the same meaning or effect as the defamatory matter; or
(d) the plaintiff has brought proceedings for damages for defamation in relation to any other publication of matter having the same meaning or effect as the defamatory matter; or
(e) the plaintiff has received or agreed to receive compensation for defamation in relation to any other publication of matter having the same meaning or effect as the defamatory matter.
[1] Section 35(2) Defamation Act 2005 (Vic
)[2] Section 37 Defamation Act 2005 (Vic)