A media defendant who continues to publish defamatory material on its website after all defences have been conclusively exhausted acts in contumelious disregard of the plaintiff's rights, warranting exemplary damages, even where the material can only be accessed by active searching. The Pamplin/Burstein principle that facts established in support of unsuccessful defences may be relied upon in mitigation of damages applies in New South Wales, but only to statements of fact (not opinion) that were published in the defamatory matter itself or were otherwise generally known. Where a damages hearing follows remitter from an appellate court, the judgment should ordinarily be backdated to the date of the original liability judgment under UCPR 36.4(3).
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