It comes after Justice Michael Wigney approved a total payout of $2.87 million for Rush, making it the highest defamation payout awarded to a single person in Australia.
But lawyers from the Daily Telegraph are now appealing the decision on 16 grounds, including that the damages awarded to Rush were “excessive”.
One appeal point is based around the Rebel Wilson’s damages payout from Bauer Media, which in June last year was slashed from the original $4.7 million to $600,000 on appeal.
Non-economic damages in Australian defamation cases are capped at $398,500, but the Victorian Supreme Court ruled in the Wilson case the cap was to be abolished due to “aggravated” damages.
Although Wilson’s payout was severely wiped, the original ruling relating to the cap being exceeded was not overturned on appeal.
Telegraph barrister Clarissa Amato argued in court yesterday this key ruling in the Wilson case was “plainly wrong”, and following its precedent led to Rush being awarded excessive damages.
“In our appeal, we say that if that’s found to be wrong, then the finding of aggravation in this case would therefore mean that the cap would not necessarily have been exceeded simply by reason of that finding,”
Justice Wigney ruled last week that Rush was entitled to aggravated damages and that the cap “accordingly does not apply”.
The defamation payout awarded to Rush covered past and future economic loss and $850,000 in non-economic damages for personal distress and hurt.