(Tawhidi v Awad [2022] VSC 669 (at [367] per Keogh J)) and Charan v Nationwide News Pty Ltd [2018] VSC 3 (at [765] per Forrest J), including when referring to Neil LJ's observations in Pamplin v Express Newspapers [1988] WLR 116, when his Lordship (at 120B–D) said a defendant is entitled to rely in "mitigation" of damages on any other evidence which is properly before a Court so a defendant "may be able to rely upon such facts as he has proved to reduce the damages, perhaps to vanishing point" (a matter to which I will return).
986 The section relied upon by McCallum J, s 22 of the Defamation Act, is headed "Roles of judicial officers and juries in defamation proceedings" and, by subsection (1), applies to defamation proceedings that are tried by a jury. It is not applicable to this proceeding because I am the trier of fact and, even if, as I initially contemplated, I ordered a jury to deal with aspects of this case (see Lehrmann v Network Ten Pty Limited (Tribunal of Fact) [2023] FCA 612) it would not have present applicability as there is a direct inconsistency between s 40 of the Federal Court of Australia Act 1976 (Cth) and s 22 of the Defamation Act (and hence s 22 is not picked up as "surrogate" federal law in determining this justiciable controversy by reason of s 79 of the Judiciary Act 1903 (Cth)). I hasten to add such a result is not a conclusion that a section of the Defamation Act is invalid under s 109 of the Constitution, as has been recently suggested: see Scott v Bodley (No 3) [2023] NSWDC 47 (at [44]).
987 But the issue, properly analysed, is not whether s 22 is picked up. The real questions are whether the presumption of damage, long regarded as deeply rooted, reflects the current state of the common law of Australia (which Network Ten disputes) and, if not, whether the Defamation Act, including Pt 4, Div 3 which deals with "Remedies", evinces a legislative intention to do away with the presumption of damage existing at common law.
988 Without deciding the point, I incline to the view that the express statutory requirement to ensure "that there is an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded" (s 34) sits uncomfortably with an award of any damages – even nominal or derisory – when the tribunal of fact finds no harm whatsoever has been suffered. But in any event, as will become evident, there is no need to decide the point.
