262 The maximum damages amount for non-economic loss that may be awarded in defamation proceedings is currently $478,500. See s 35(1) and (3) of the Act.
263 The maximum amount may only be awarded "in a most serious case" (s 35(2)). The maximum amount may be exceeded where aggravated damages are warranted, but only to the extent of the amount of the aggravation (s 35(2A)).
Aggravated damages – applicable principles
264 Mr Greenwich seeks aggravated damages. Pursuant to's 35(2B) of the Act an award of aggravated damages, nowadays, is to be made separately to any award of damages for noneconomic loss to which subsection (1) applies. (As to the common law position that prevailed before relevant amendments to the Act took effect on 1 July 2021, see Nationwide News Pty Ltd v Rush [2020] FCAFC 115; (2020) 380 ALR 432 at 505 [380] (White, Gleeson and Wheelahan JJ)).
265 Aggravated damages are compensatory, not punitive, and they are awarded "precisely because other conduct by the defendant[], which may or may not take the form of another libel, rubs salt in the wounds inflicted by the libel sued upon". See Stead v Fairfax Media Publications Pty Ltd [2021] FCA 15; (2021) 387 ALR 123 at 179 [273] (Lee J), approving Sutcliffe v Pressdram Ltd [1991] 1 QB 153 at 170 (Donaldson MR).
266 They are awarded to compensate an applicant where the respondent's conduct towards the applicant was improper, unjustifiable or lacking in bona fides and does in truth aggravate the applicant's hurt to feelings they have already suffered. See Triggell v Pheeney (1951) 82 CLR 497 at 514 (Dixon, Williams, Webb and Kitto JJ) ("the conduct of the defence may be taken into consideration not only as evidencing malice at the time of publication or afterwards, as, for instance, in filing a plea, but also as improperly aggravating the injury done to the plaintiff, if there is a lack of bona fides in the defendant's conduct or it is improper or unjustifiable"); KSMC Holdings Pty Ltd t/a Hubba Bubba Childcare on Haig v Bowden (2020) 101 NSWLR 729 at 760 [150] (Payne JA, Basten and White JJA agreeing) ("Aggravated damages are awarded where the defendant's conduct towards the plaintiff was improper, unjustifiable, or lacking in bona fides … Hence, failure to apologise … conducting proceedings in a certain manner, and continuing publication … may all result in an award of aggravated damages if such conduct was improper, unjustifiable, or lacking in bona fides").
