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 tantamount to an expression of disapproval of, or contempt for, the plaintiff: see Habib v Nationwide News Pty Ltd (No 2) [2010] NSWCA 291 (at [45] per Hodgson, Tobias and McColl JJA).

[506] In Australia, some awards of nominal damages have been somewhat higher than the equivalent of £2. For example, in Bahonko v Sterjov [2007] FCA 1244; (2007) 167 IR 43 (at 104 [186]), Jessup J awarded nominal damages of $50 in an action for defamation in which no harm was found. In a number of cases in non-Superior courts, damages purportedly labelled "nominal" have reached $1,000. Given the way nominal damages have been awarded in some cases in recent times, the precise line between what is nominal award and what is a modest award can be blurred. It seems to me, with respect, that awards of thousands of dollars are inconsistent with the fundamental nature of a nominal award.

983 In 2014, Gibson DCJ, a judge highly experienced in defamation law, remarked on the distinction between "nominal" damages and "contemptuous" damages in Allen v Lloyd-Jones (No 6) [2014] NSWDC 40, noting (at [140]) that "awards of nominal damages are rare, and contemptuous damages non-existent". Incidentally, her Honour referred (at [139]) to a submission made by Mr Evatt calling in aid the one farthing damage awards in Kelly v Sherlock (1866) LR 1 QB 686 and Dering v Uris [1964] 2 QB 669. I digress to note that the latter case, of course, was brought by a former prisoner-doctor at Auschwitz who accused the noted author Leon Uris and his publisher of a libel in a passage from the 1958 novel Exodus, and the ensuing courtroom drama led to an award of the (then) lowest coin in the realm (a halfpenny), and then to the author writing a bestselling fictionalised account of the case, being QB VII.

984 However, as noted in the introduction to this section of my reasons, an award of damages is now regulated by statute. Justice McCallum (as her Honour then was) in Dank v Nationwide News Pty Ltd [2016] NSWSC 295, in the course of awarding a plaintiff $0 for the publication of the false claim Mr Dank had injected a blood-thinning agent into football players (when in truth he injected a horse feed supplement), explained (at [75]) that:

985 Dank has been referred to in two cases in this Court, without analysis, being Palmer v McGowan (No 5) (at 728 [507]) and Greiss v Seven Network (Operations) Limited (No 2) [2024] FCA 98 (at [368], [371] per Katzmann J) and in the Supreme Court of Victoria Lehrmann v Network Ten Pty Limited (Trial Judgment) [2024] FCA 369