The Federal Court of Australia decision on 11 April 2019 in Rush v Nationwide News Pty Ltd (No 7) [2019] FCA 496 is another significant decision in a line of recent authorities highlighting the flaw in the drafting of the statutory “cap” on general damages for non-economic loss in defamation legislation throughout Australia.

The statutory “cap” on damages for non-economic loss provides a ceiling. In New South Wales, the current cap is $398,500 but can be exceeded where the Court determines that an award of aggravated damages is appropriate.

The appropriateness of such an award is by reference to the circumstances of the relevant publications including whether the defendant’s conduct was improper, unjustified or lacking in bona fides.

Recent decisions such as Rayney v The State of Western Australia [2017] WASC 367, Wilson v Bauer Media Pty Ltd [2017] VSC 521 (overturned on appeal but not on this issue) and Wagner & Ors v Harbour Radio Pty Ltd & Ors [2018] QSC 201 highlighted the statutory cap being set aside by reason of the defendant’s conduct.

The Rush saga involved publications by The Daily Telegraph Newspaper on 30 November and 1 December 2017 detailing alleged “inappropriate behaviour” of Mr Geoffrey Rush during the production by the Sydney Theatre Company of King Lear in late 2015/early 2016.

The defendants, Nationwide News Pty Limited and Jonathon Moran denied the pleaded imputations and claimed that all but one of the imputations pleaded by Rush were substantially true.

Wigney J found that the offending publications conveyed defamatory imputations including that Rush had engaged in scandalously inappropriate behaviour. His Honour also held that the defendants’ truth defences had not been made out.

By reason of the “reckless” and “sensationalist manner” in which the offending articles were published, Wigney J found that Rush was entitled to an award of damages (including aggravated damages) in the amount of $850,000 and special damages for economic loss in an amount yet to be quantified.

The Rush decision will no doubt add impetus to media calls for urgent legislative amendments to restore the cap.