Uniform defamation legislation exists across the states. In Western Australia, the relevant act is the Defamation Act 2005 (WA).
Where a person’s reputation is injured by the publication of defamatory material the matter is actionable without proof of damage (Defamation Act s 7).
The cause of action is generally not available to corporations. If you are a charitable entity or a corporation which employs fewer than 10 people, then you may be able to bring defamation proceedings (Defamation Act s 9).
Under the uniform defamation laws the offence is actionable once a communication of a defamatory imputation about a person is made to a person other than the plaintiff. This is usually described as publication. A publication is defamatory if it tends, in the minds of ordinary, reasonable people, to injure the victims’ reputation by disparaging him/her, causing others to avoid or shun him, or subjecting him to hatred, ridicule or contempt (John Fairfax & Sons Ltd v Punch (1980) 31 ALR 624 per Brennan J; Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at 71).
Therefore, while the plaintiff does not have to prove any special damage to their reputation, they do carry the onus of having to prove that a defamatory imputation was published and provide particulars of the publication (Lazarus v Deutsche Lufthansa AG (1985) 1 NSWLR 188 at 192-4 per Hunt J).
What are the potential damages?
Once the plaintiff shows that they have been defamed, then unless a defence is shown, they must be awarded damages, even if only nominal (Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225 at 258 per Mahoney JA).
The legislation provides that the state of mind of the defendant is not relevant to damages except insofar as it affects the harm sustained by the plaintiff (Defamation Act s 36).
Damages for non-economic loss, except in circumstances of aggravation, are capped at $478,500 (Defamation Act s 35; Defamation (Damages for Non-economic Loss) Order 2024).
There must be an appropriate and rational relationship between the harm sustained and the damages awarded (Defamation Act s 34). Exemplary or punitive damages cannot be awarded for defamation (Defamation Act s 37). However, compensatory damages may be affected by circumstances of aggravation.
Factors which may mitigate damages are (Defamation Act s 38):
The defendant has apologised
The defendant has published a correction;
The plaintiff has already recovered damages re another publication having the same meaning or effect;
The plaintiff has already brought proceedings re another publication having the same meaning or effect;
Plaintiff has agreed to receive compensation re another publication having the same meaning or effect.
Damages are not assessed by reference to depreciation in the value of a plaintiff’s reputation, but by what is required to compensate for injury to reputation, as a remedy for injured feelings and to vindicate the plaintiff for having been publicly defamed (Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at 60, 61, 70). Under the uniform defamation laws. The assessment of damages is determined by the judge not jury (Defamation Act s 22).
Compensatory damages are classified as damages for:
Injury to reputation, note that evidence of previous bad reputation may mitigate damages however will not prevent a plaintiff from recovering completely (see Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348 Cf. Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 at 806, 807);
Social damage for being shunned and avoided;
Injury to feelings, including grief and distress, anxiety, loss of self-esteem and outrage;
Injury to health; and
Special damage.
Western Australian Defamation Cases 2010-2024 (Chronological)
2010
Woolcott v Seeger [2010] WASC 19 (17 February 2010)
The case involved seven publications through emails and internet posts containing 33 imputations alleging dishonesty, lack of qualifications, bullying, and that the plaintiff was a criminal, charlatan, fraud, con man and "shonk." The defendant did not appear, and Justice Le Miere granted an injunction restraining further publication alongside the damages award. Damages: $70,000 ($50,000 general damages + $20,000 aggravated damages)
2014
Luke v Richardson [2014] WADC 27 (7 March 2014)
The plaintiff was accused through slander and email of being a thief. While the defences of justification, contextual truth and unlikelihood of harm failed, Judge Bowden DCJ found the circumstances of publication warranted a low award and reduced the damages from $6,500 to $1,000 due to mitigating factors. Damages: $1,000 (reduced from $6,500)
DABROWSKI v GREEUW [2014] WADC 175 (22 December 2014)
An estranged wife made a post on her public Facebook page stating she was 'separated from Miro Dabrowski after 18 years of suffering domestic violence and abuse. Now fighting the system to keep my children safe'. Judge Bowden DCJ found distinct and separate imputations relating to domestic violence, abuse, and that the children were not safe in his presence. The defence of justification failed.
Damages: $12,500
2015
Wilson v Ferguson [2015] WASC 15 (16 January 2015)
This case involved a breach of confidence claim rather than defamation, concerning the publication of intimate photographs on Facebook. The defendant denied intending to cause harm and filed a defence but failed to attend court. Damages: $48,404 (including $13,404 for economic loss)
2017
Rayney v Western Australia (No 9) [2017] WASC 367 (15 December 2017)
Lloyd Rayney successfully sued over Detective Senior Sergeant Jack Lee's 2007 press conference statement that he was "the prime and only suspect" in his wife's murder. Justice Chaney found the police officer's statement exceeded any qualified privilege and was made without reasonable grounds, in what became Australia's second-highest defamation award at the time. Damages: $2.623 million ($600,000 general damages + $1.777 million special damages + interest)
2018
Smith v Stevens [2018] WASC 95 (29 March 2018)
An email accused plaintiffs of acting improperly for their own benefit regarding native title rights and interests in the Pilbara region. While the publication was protected by privilege, Justice Tottle found it was lost because the defendant acted with malice. Damages: $10,000 (first applicant) + $3,000 (second applicant)
Scott v Baring [2018] WASC 361 (22 November 2018)
Master Sanderson described the Facebook page imputations about a female racing steward as "vile" in this default judgment case. The first defendant was identified as "the moving hand" behind the publications, with neither defendant participating in proceedings. Damages: $140,000 ($100,000 against first defendant + $40,000 against second defendant)
2019
Jensen v Nationwide News Pty Ltd [No 13] [2019] WASC 451 (20 December 2019)
Two newspaper and online articles claimed the plaintiff used his parliamentary letterhead to publish his novel and moved outside his electorate to live with a new girlfriend, leaving his family home. Chief Justice Quinlan found all defences failed in this case against a parliamentarian. Damages: $325,000
2020
Armstrong v McIntosh (No 4) [2020] WASC 31 (7 February 2020)
Text messages during a marital breakdown contained defamatory content. Justice Le Miere found the defences of justification and unlikelihood of harm failed, and granted an injunction alongside the modest damages award. Damages: $6,500
Trott v Rajoo [2020] WADC 144 (13 November 2020)
Emails made insinuations about the death of the plaintiffs' son. Default judgment entered when the defendant did not appear. The court granted an interim injunction, and later a permanent injunction alongside damages to the grieving parents. Damages: $30,000 (each plaintiff)
2021
Green v Fairfax Media Publications (No 4) [2021] WASC 474 (23 December 2021)
Dr Jemma Green, co-founder of Power Ledger, successfully sued over newspaper articles alleging she caused unethical market manipulation and defrauded or misled investors. Justice Le Miere found the defences of honest opinion and truth failed, awarding aggravated damages due to the journalist's subsequent attacks on defamation law. Damages: $400,000 (including aggravated damages)
2022
De Kauwe v Cohen [No 4] [2022] WASC 35 (9 February 2022)
A bitter corporate power struggle involving ten letters, notices, emails and ASX announcements accusing Dr Brendan de Kauwe of misconduct. Justice Le Miere found the orchestrated campaign to denigrate the plaintiff defeated qualified privilege defences, in what became a landmark case about weaponizing corporate communications. Damages: $530,880
Carter v Napper [2022] WADC 25 (18 March 2022)
Three emails and a slander to fellow strata owners alleged the plaintiff was a paedophile and serious risk to children. Judge Prior DCJ proceeded with assessment of damages only after no defence was filed, granting permanent injunctions and indemnity costs. Damages: $40,000 plus interest
Rayney v Reynolds (No 4) [2022] WASC 360 (31 October 2022)
Lloyd Rayney brought a second successful defamation action, this time over statements at a meeting that he had murdered his wife. Justice Hill awarded substantial damages, with the appeal later dismissed. Damages: $350,000
2023
Allen t/as AVL Electrical Services v Godley [2023] WADC 54 (26 May 2023)
One-star Google and Facebook reviews alleged an electrical business was incompetent and the owner was unpleasant to deal with. Judge Gillan DCJ granted injunctions to remove the posts in this case where all parties were self-represented. Damages: $35,000 plus $9,314.25 interest
2024
FJ (pseudonym initials) v Siglin [No 2] [2024] WADC 13 (8 March 2024)
A Facebook post falsely identified the plaintiff as the gunman in the murder of a former outlaw motorcycle gang president. Default judgment entered after the defendant failed to comply with court orders, in a case highlighting the dangers of social media vigilantism. Damages: $250,000 plus interest
Lazos v West Australian Newspapers Ltd [No 2] [2024] WASC 238 (5 July 2024)
Print and online newspaper articles with headlines "Top public official faces fraud charge" and "Top WA public official Petros Lazos faces fraud charge" were found defamatory. Justice Tottle rejected the fair report and qualified privilege defences, finding the documents were neither a summary nor fair. Damages: $180,000
McIntosh v Peterson [No 2] [2024] WASC 428 (25 November 2024)
Vegan activists posted a Facebook video alleging veterinarians were unethical, hypocritical, treated animals cruelly and "ate animal meat" at their clinic. Chief Justice Quinlan found all defences failed, awarding substantial aggravated damages to Dr McIntosh and Mr McIntosh, with judgment for the third defendant. Damages: $150,000 (Dr McIntosh) + $110,000 (Mr McIntosh) + $10,000 (clinic)
2025
Michelmore v Brown [No 3] [2025] WASC 9 (15 January 2025)
The plaintiff, a legal practitioner, was defamed by former clients in two emails that impugned her integrity and professional competence. One email was published by the first defendant, and the other by all defendants. Justice Tottle found the statements grossly defamatory with no factual basis and wholly indefensible. No defences succeeded, and an injunction was granted. Damages: $70,000 (against first defendant for first email, including aggravated damages) + $90,000 (against all defendants for second email, including aggravated damages) = Total $160,000
Jabbie v Gbangaye [2025] WASC 73 (7 March 2025)
The plaintiff was defamed in a podcast livestreamed on Facebook concerning the murder of Ms Janet Dweh. The podcast imputed the plaintiff was complicit in murder, violent, had harassed Ms Dweh, was evil, and engaged in witchcraft. Justice Tottle found the statements were published extensively to the plaintiff's community and the justification defence was unsuccessful. An injunction was granted. Damages: $395,400 ($325,000 general damages + $70,400 special damages for economic loss)
Based on the Western Australian defamation cases from 2010-2025, here are 5 key takeaways:
Social Media and Online Platforms are Dominant Battlegrounds: A significant number of cases involve publications on Facebook (Wilson v Ferguson, McEloney v Massey, Scott v Baring, FJ v Siglin, McIntosh v Peterson, Jabbie v Gbangaye, Dabrowski v Greeuw), Google Reviews (Allen v Godley), emails, and online articles. This highlights the ease with which defamatory content can be disseminated online and the increasing willingness of individuals to litigate over such publications.
Severity of Imputations and Extent of Publication Drive Damage Awards: Cases with very serious allegations published widely (e.g., being a murder suspect, serious criminality, or gross professional misconduct) attract substantial damages.
Rayney v WA (No 9): "Prime and only suspect" in murder - $2.623 million.
Jabbie v Gbangaye: Complicity in murder via podcast - $395,400.
De Kauwe v Cohen: Orchestrated campaign of corporate misconduct - $530,880.
In contrast, more limited publications or less severe imputations result in lower awards (e.g., Luke v Richardson - $1,000; Armstrong v McIntosh - $6,500).
Defendant's Conduct Can Significantly Aggravate Damages or Defeat Defences: Malice, failure to apologise, persisting with unsupportable defences, or an improper litigation strategy can lead to increased (aggravated) damages or the loss of defences like qualified privilege.
Green v Fairfax: Journalist's subsequent attacks led to aggravated damages.
Smith v Stevens: Qualified privilege lost due to malice.
De Kauwe v Cohen: Orchestrated campaign to denigrate was strong evidence of malice (an improper purpose), which defeated the defence of qualified privilege.
Michelmore v Brown: Defendant's conduct aggravated damages.
Successfully Proving Defences is Challenging: While various defences like justification (truth), qualified privilege, and honest opinion are raised, they often fail if the defendant cannot rigorously prove all necessary elements.
Rayney v WA (No 9): Qualified privilege for police officer failed.
Lazos v WANL: Fair report and qualified privilege defences failed.
Jabbie v Gbangaye & Dabrowski v Greeuw: Justification defence unsuccessful.
Conversely, McEloney v Massey saw an honest opinion defence succeed.
Injunctions are a Common and Important Remedy: Alongside monetary damages, courts frequently grant injunctions to restrain defendants from further publishing the defamatory material or similar imputations. This is a crucial remedy for plaintiffs seeking to stop ongoing reputational harm. (e.g., Woolcott v Seeger, Armstrong v McIntosh, Carter v Napper, Jabbie v Gbangaye, Michelmore v Brown).
Some other cases
In Dods v McDonald (No 2) [2016] VSC 201 the plaintiff was a police officer involved in the shooting death of a 15 year old boy. In a coronial inquest the coroner exonerated the plaintiff of personal responsibility and found that he had not contributed to the death, and had responded within the limitations of his training. The defamatory publications were made by the defendant via a website and were published from April 2012 until July 2012 when they were removed by request. They contained imputations that the plaintiff was a ‘monster’ who had ‘executed’ the teenager and committed the crime of manslaughter. Even though the scope of the publication was not large, there was no apology, and the grave nature of the defamations was reflected in the damages awarded (at [69] – [74]). The judge awarded damages of $150,000.
In Jeffrey v Giles [2015] VSCA 70 the appellants operated a quarry adjacent to the respondents’ land. The respondent created a website which contained defamatory imputations that the appellants had provided inaccurate information and given false testimony at hearing in relation to approval of the quarry. The judge at first instance found that the appellants were entitled to damages personally, distinct from the corporate entity which ran the quarry, due to the nature of the imputations. The judge awarded $12,00 and $8,000 to each of the appellants. On appeal, the Court of Appeal found that the damages were so low as to be inappropriate, and ordered damages of $75,000 and $65,000 to each appellant.
In Gacic v John Fairfax Publications Pty Ltd [2015] NSWCA 99 and online and in-print review of the appellant’s restaurant was found to be defamatory by implying it sold unpalatable food, provided bad service, and that the owner was incompetent. The three appellants were originally each awarded $160,000 plus interest. There was an appeal that the damages awarded were manifestly inadequate and a cross-appeal that the damages should be reduced for mitigation. Ultimately the Court of Appeal held that damages should be increased to $180,000 plus interest, however by virtue of the cross appeal, they should be then reduced to $175,000 plus interest to take into account the mitigation factors.
Highest ever award of defamation damages in WA District Court
In the 2024 defamation case of FJ (pseudonym initials) -v- Siglin [2024] WADC 13, the District Court of Western Australia awarded $250,000 plus interest of $42,041.10 to the plaintiff after the defendant published a Facebook post falsely identifying FJ as the person who murdered former outlaw motorcycle gang president Nick Martin in a notorious sniper-style killing. The court found the post carried the defamatory imputations that the plaintiff was a murderer and potentially a contract killer. Justice Gillan determined the substantial damages were warranted due to the extremely serious nature of the allegations, the significant fear and distress caused to the plaintiff (who moved homes, sold vehicles, deleted social media accounts, and withdrew from social activities out of fear of retribution), and the defendant's conduct in failing to apologize and "doubling down" on the allegations. The court noted that accusing an innocent person of such a high-profile murder represented defamation "of the highest end of the scale of serious defamations."
Seek advice
As the range of damages awarded vary widely on a case by case basis depending on the factual circumstances it is wise to obtain legal advice at the outset.