Evidence properly before the court on other issues, including evidence led in support of failed justification and contextual truth defences, may be taken into account in mitigation of defamation damages, potentially reducing damages 'almost to vanishing point'. A plaintiff cannot rely on contextual imputations not shown to be true to augment damages unless the plaintiff has adopted those imputations by pleading them. Under s 40(2)(a) of the Defamation Act 2005 (NSW), the court may take into account the defendant's reasonable assessment of its prospects of success in determining whether the defendant unreasonably failed to make a settlement offer.
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