Damages in defamation: how awards are assessed and what the cap means

Damages are the primary remedy for defamation in Australia. A court cannot order an apology and injunctions are granted sparingly, so for most plaintiffs who go to trial the outcome is a sum of money intended to compensate for the harm done and to signal to the public that the allegation was false. The uniform legislation shapes that assessment in several ways: it requires a rational relationship between harm and award, caps damages for non economic loss, separates aggravated damages, abolishes exemplary damages and lists matters that mitigate damages. This article explains those rules, the 2021 amendments that reshaped the cap, and what recent awards suggest about current levels. It is written for publishers assessing exposure as much as for complainants assessing a claim.

The purposes of an award

The starting point remains the High Court’s statement in Carson v John Fairfax & Sons Ltd that damages for defamation serve three purposes: consolation for the personal distress and hurt caused to the plaintiff, reparation for the harm done to personal and, if relevant, business reputation, and vindication of the plaintiff’s reputation.¹ The first two look to the plaintiff; the third looks to the attitude of others, and is the reason awards in serious cases must be large enough to convince a bystander that the allegation was baseless.²

Damage is presumed once defamation is established, but the amount depends on evidence. Relevant matters include the gravity of the imputations, the extent of publication, the standing of the plaintiff, the effect on the plaintiff’s feelings and the “grapevine effect” by which a publication spreads beyond its original audience.³ A plaintiff who calls no evidence of hurt or reputational consequences is unlikely to recover more than a moderate sum.

The rational relationship requirement

Section 34 directs the court to ensure that there is an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded.⁴ The provision was intended to restrain excessive awards and to promote consistency with damages for personal injury. It applies to every component of an award, including aggravated damages, and the Victorian Court of Appeal has described it as an “ever-present guide” to fair and effective remedies.⁵

The cap on damages for non economic loss

Section 35(1) fixes a maximum amount of damages for non economic loss, originally $250,000 and adjusted each year by reference to average weekly earnings.⁶ The adjusted figure is declared annually and applies from 1 July. The amount declared for the year beginning 1 July 2026 is $520,000.⁷ Because the indexation formula is uniform, the same figure has been declared in each jurisdiction, including Western Australia, although Western Australia has not adopted the 2021 changes to s 35 discussed below.⁷

Section 35(2) provides that the maximum damages amount is to be awarded only in a most serious case.⁶ The cap therefore operates as the upper end of a scale, not as a ceiling that any sufficiently serious case can reach. A court assesses where the particular defamation sits on the range of seriousness and extent and fixes an award accordingly. In Mitchell v Jobst, a Queensland District Court judgment from 2025, the court declined to award $400,000 in general damages, finding that figure “too close to the maximum amount” for a case that, while at the higher end, was not one of the most serious. It awarded $300,000 instead.⁸

The pre 2021 debate and the amendment

Before 2021, s 35(2) allowed the court to exceed the cap “if, and only if” the circumstances of the publication warranted an award of aggravated damages.⁹ In Bauer Media Pty Ltd v Wilson (No 2) the Victorian Court of Appeal held that once that condition was met the cap fell away entirely, so that the court could award uncapped damages for both ordinary and aggravated non economic loss. The court observed that if Parliament wanted to confine the excess to the aggravated component, it should redraft the section.¹⁰ The Queensland Supreme Court followed that construction in Wagner v Harbour Radio Pty Ltd,¹¹ and the Federal Court applied it in Rush v Nationwide News Pty Ltd (No 7).¹² The result was a series of awards well above the cap, including $600,000 in Wilson after the Court of Appeal’s reassessment,¹³ $850,000 to each of four plaintiffs in Wagner¹⁴ and $850,000 in Rush.¹⁵

The 2021 amendments reversed that outcome. Section 35(1) now applies regardless of whether aggravated damages are warranted, s 35(2A) preserves the power to award aggravated damages, and s 35(2B) requires an award of aggravated damages to be made separately from any award of damages for non economic loss to which the cap applies.⁶ The practical effect, as explained in Mitchell v Jobst, is that aggravated damages are now a separate category rather than a component of general damages, and are not subject to the scale and cap that govern general damages.¹⁶ The Full Court of the Federal Court took the same approach in Latham v Greenwich, holding that the primary judge was right to assess aggravated damages as a separate award from the capped award for non economic loss, and the High Court refused special leave to appeal in October 2026.³² In the jurisdictions that have adopted the amendments, general damages cannot exceed $520,000 and aggravated damages are added separately where justified.

Western Australia has not adopted the 2021 amendments and its s 35 retains the “if, and only if” wording, so the Wilson construction continues to apply there.

Aggravated damages

Aggravated damages compensate for additional hurt caused by the defendant’s conduct where that conduct lacks good faith or is improper or unjustifiable. Relevant conduct can occur at any time up to judgment and includes republishing the matter after a concerns notice, persisting in an unjustified plea of truth, repeating the allegations in evidence, and mocking the plaintiff’s complaint.¹⁷ In Mitchell v Jobst the defendant restored the defamatory words to a YouTube video after receiving a concerns notice and continued to attack the plaintiff online during the litigation; the court awarded $50,000 in aggravated damages in addition to $300,000 general damages, noting that a higher figure might have been justified had it been sought.¹⁸ In Greenwich v Latham the Federal Court awarded $40,000 in aggravated damages where the defendant’s subsequent conduct “rubbed salt in the wound” of a tweet deleted within hours, an award upheld on appeal.¹⁹

A bare failure to apologise is not in itself aggravating. The High Court in Carson said it had difficulty understanding how the mere absence of an apology increases the plaintiff’s hurt or widens publication, although a failure to apologise may be evidence of a desire to injure.²⁰

Economic loss

Damages for economic loss are not capped, but they must be proved. The plaintiff must establish both that the publication was a cause of the loss and the amount of it. Rush illustrates a successful claim. In Rush v Nationwide News Pty Ltd (No 7) the court found that the publications were a cause of the actor’s inability to work, but it left the amount of economic loss to be calculated by the parties’ forensic accountants on the basis of its findings. By orders made on 23 May 2019, after that calculation, the actor was awarded $1,060,773 for past economic loss including interest and $919,678 for future economic loss, about $1.98 million in all, bringing the total judgment to $2,872,753. The Full Court recorded those components when it dismissed the appeal.²¹ Wilson illustrates the opposite outcome. The trial judge awarded $3,917,472 for lost film roles, but the Court of Appeal set that aside because the evidence did not establish that the opportunity existed and had been lost, or that the Australian publications caused its loss.²²

Economic loss claims are not confined to celebrities. In Cheng v Lok a solicitor whose practice depended on referrals within the Chinese community in Adelaide lost a large number of clients after a false Google review by a person who had never been his client. The Supreme Court of South Australia assessed $300,000 for past economic loss, $100,000 for future loss and $150,000 for loss of goodwill, in addition to $100,000 general and $100,000 aggravated damages, a total of $750,000.²³ The case also illustrates the risk of ignoring proceedings: the defendant never appeared and the award was made in her absence.²³

Exemplary damages and state of mind

Section 37 provides that a plaintiff cannot be awarded exemplary or punitive damages for defamation.²⁴ Damages are compensatory only, and the aggravated component is the only way in which a defendant’s bad conduct increases an award. Section 36 provides that in awarding damages the court is to disregard the malice or other state of mind of the defendant at the time of publication, except to the extent that it affects the harm sustained by the plaintiff.²⁵ A deliberate falsehood is therefore not punished as such, but if the plaintiff learns of the defendant’s malice and is further hurt by it, that hurt is compensable.

Mitigation

Section 38 makes admissible, in mitigation, evidence that the defendant has apologised or published a correction, and evidence that the plaintiff has already recovered damages, brought proceedings or received compensation for another publication to the same effect.²⁶ The list is not exhaustive. A prompt, prominent and unequivocal correction is the most effective mitigating step available to a publisher. A correction’s mitigating value depends on how far the correction reaches the original audience. The subject is covered in a separate article.

What awards look like in practice

Reported awards cluster into recognisable bands, although every case turns on its own facts and comparison between cases is of limited assistance.²⁷

At the lower end, disputes between individuals on social media typically produce awards in the tens of thousands of dollars. In Chu v Huynh the Queensland District Court awarded $40,000 for four Facebook posts in Vietnamese to community groups of about 30,000 members, left online for more than two years without response to a concerns notice; the Court of Appeal described the award as generous but not erroneous.²⁸ Awards of this order are common where the audience is limited and the plaintiff’s evidence of harm is modest, and such cases often cost more to run than they recover.

In the middle band sit cases involving grave imputations with wide circulation but without the features of the largest awards. Greenwich v Latham produced $100,000 general and $40,000 aggravated damages for a single tweet viewed over 6,000 times before deletion, where the court found serious harm from the imputation and the abuse it provoked.¹⁹ Mitchell v Jobst produced $300,000 general and $50,000 aggravated damages for a YouTube video, viewed by more than 500,000 people within ten days, which imputed that the plaintiff had hounded a man to suicide.²⁹

At the upper end are the pre 2021 awards already mentioned, which exceeded the cap under the former s 35(2): $600,000 in Wilson, $850,000 per plaintiff in Wagner and $850,000 plus economic loss in Rush. Under the current provisions, general damages in a case of that gravity could not exceed $520,000, but a separate award of aggravated damages and any proven economic loss would be added.

Interest is ordinarily awarded on damages from the date of publication to judgment, and in Queensland the conventional rate is 3 per cent per annum.³⁰ A successful plaintiff will usually obtain an order for costs, subject to the special rules about settlement offers discussed in a separate article.

Realism about outcomes

Judgments like those described above are the exception. The great majority of defamation disputes are resolved by removal of the publication, a correction or apology and, where money changes hands, a sum far below the figures in reported cases, often accompanied by a contribution to costs. The cost of a contested trial can approach or exceed the damages recovered, and a plaintiff who refuses a reasonable offer to make amends recovers nothing. For publishers, the figures are a guide to exposure if a matter runs to judgment; for complainants, they are a guide to what vindication through the courts can and cannot deliver.

Differences between jurisdictions

The provisions discussed are ss 34 to 39 of the Defamation Act 2005 in New South Wales, Queensland, Victoria, South Australia and Tasmania. In the Australian Capital Territory they are ss 139E (rational relationship), 139F (cap), 139H (no exemplary damages) and 139I (mitigation) of the Civil Law (Wrongs) Act 2002 (ACT), and the ACT declared the same $520,000 figure from 1 July 2026.⁷ The Northern Territory cap provision is s 32 of the Defamation Act 2006 (NT).³¹ Western Australia’s Defamation Act 2005 uses the same section numbers as New South Wales but retains the pre 2021 text of s 35.

Getting advice

Assessing damages requires a judgement about where a publication sits on the scale, what evidence of harm can be assembled, whether aggravating conduct exists and whether economic loss can be proved. Both sides benefit from an early, realistic assessment, because it determines whether an offer to make amends is reasonable and whether litigation is worth its cost.