The Triggell v Pheeney requirement that a defendant's conduct be lacking in bona fides, improper, or unjustifiable applies to all conduct capable of giving rise to aggravated damages, including conduct in the publication itself, not merely conduct in defending the proceeding. However, the ongoing availability of defamatory material on the internet, and the defendant's refusal to remove it, are relevant to the assessment of compensatory damages even where they do not support aggravated damages. Where a plaintiff has brought parallel proceedings against another publisher of the same defamatory matter, s 38(1)(d) of the Defamation Act 2005 (Vic) requires the court to take that into account in mitigation to avoid double compensation.
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