A court can order the removal of material or order a public apology. The court can also restrict any future publication of a matter and award monetary compensation (damages).
In determining any amount of damages to be awarded for defamation, the court must ensure that there is an appropriate and rational link between the harm sustained by the aggrieved person and the amount of damages awarded (s 34 Defamation Act 2005 (Qld) (Defamation Act)). Exemplary or punitive damages (which are used to punish an offender) cannot be awarded in defamation cases (s 37 Defamation Act). If more than one action has been brought to court, the court may assess damages as a single sum (s 39 Defamation Act).
The court will generally disregard the malice or other state of mind of the publisher at the time the matter was published to which the proceedings relate (s 36 Defamation Act).
Limits on the damages that can be claimed
There is a limit of $250 000 on the amount that may be awarded as damages for non-economic loss in civil proceedings for defamation. A court will not be permitted to order a publisher to pay damages that exceed this maximum unless it is satisfied that the circumstances of the publication of the matter warrant an award of aggravated damages (s 35 Defamation Act).
Mitigation of damages
Factors that a court may take into account in mitigation of damages include whether the publisher has made an apology about the publication or published a correction of the defamatory matter.
Determining factors may also include whether the aggrieved person, in relation to any other publication of matter having the same meaning or effect as the defamatory matter, has recovered damages, brought proceedings for damages, or received or agreed to receive compensation (s 38 Defamation Act).
If you proceed with a defamation action and are not successful, or if you are found to have defamed a person, in most cases the court will require you to pay the legal costs of the other party. The costs are usually calculated on a standard basis by a costs assessor and are determined by the costs which are ‘… necessary or proper for the attainment of justice or for enforcing or defending the rights of the party whose costs are being assessed …’ (r 702(2) Uniform Procedure Rules 1999 (Qld)).
The court is also able to award costs on an indemnity basis which means you are required to pay the full legal costs of the other party. When determining a costs award, the court will consider the way in which the parties conducted their case and any other matter the court considers relevant (s 40 Defamation Act).
Limitation of actions
A limitation period of one year applies for civil actions for defamation, subject to an extension of up to three years, if a court is satisfied that it was not reasonable in the circumstances to have commenced the action within one year. This means that you must commence your claim within this time, otherwise you cannot bring your claim.