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Brien v Mrad

Brien v Mrad

Case [2020] NSWCA 259 21 October 2020

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Court of Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Brien v Mrad [2020] NSWCA 259
Hearing dates: 5 August 2020
Date of orders: 21 October 2020
Decision date: 21 October 2020
Before: Macfarlan JA at [1]; Payne JA at [2]; McCallum JA at [47]
Decision:
(1)   Leave to appeal granted on ground 1 of the draft notice of appeal;
(2)   Leave to appeal refused on ground 2 of the draft notice of appeal;
(3)   Within 7 days the appellant to file with the Registry a notice of appeal limited to ground 1 of the draft notice of appeal;
(4)   Appeal allowed on ground 1;
(5)   Set aside the orders made by Gibson DCJ on 19 December 2019 and in lieu thereof make the following orders:
(a)   Judgment entered for Mr Brien in the amount of $15,000;
(b)   Mr Mrad to pay Mr Brien’s costs;
(6)   Mr Mrad to pay Mr Brien’s costs of the appeal.

Catchwords:
DEFAMATION – defamatory matter – where publication pleaded differs from publication proved – test to be applied – whether language of ‘fatal variance’ helpful
DEFAMATION – remedies – aggravated damages – court not in position to assess aggravated damages – leave refused

Legislation Cited:
Civil Procedure Act 2005 (NSW), s 60
Defamation Act 1974 (NSW), s 9
Defamation Act 2005 (NSW), ss 25, 26, 40
Uniform Civil Procedure Rules 2005 (NSW) r 14.30(3)

Cases Cited:
Besser vKermode (2011) 81 NSWLR 157; [2011] NSWCA 174
Coles Supermarkets Australia Ltd v Clarke [2013] NSWCA 272
Dare v Pulham (1982) 148 CLR 658; [1982] HCA 70
Fairfax Media Publications v Zeccola (2015) 91 NSWLR 341; [2015] NSWCA 329
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
John Fairfax Publications Pty Ltd vHitchcock (2007) 70 NSWLR 484; [2007] NSWCA 364
Oscar Kazal v Fairfax Media Publications Pty Ltd [2017] NSWSC 44
Tournier v National Provincial and Union Bank of England [1924] 1 KB 461
Zoef v Nationwide News Pty Ltd (No 2) [2017] NSWCA 2

Texts Cited:
Gatley on Libel and Slander (12th ed, 2013, Sweet & Maxwell)

Category: Principal judgment
Parties: Martin Brien (applicant)
Hussein Mrad (aka Sam Mrad) (respondent)
Representation:
Counsel:
A T S Dawson SC with T B Senior (applicant)
S Chrysanthou with N G Olson (respondent)
Solicitors:
HWL Ebsworth Lawyers (applicant)
Rose Litigation Lawyers (respondent)

File Number(s): 2020/12516
Publication restriction: Nil.
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Civil

Citation:

[2019] NSWDC 764

Date of Decision:

19 December 2019

Before:

Gibson DCJ

File Number(s):

2018/393848

HEADNOTE

[This headnote is not to be read as part of the judgment]

In 2018, the President of the North Shore Karting Club made a defamatory statement about another member of the club. The member of the club who was defamed sued, pleading that the President of the club told the meeting that the member had bribed a specific individual with a tyre discount in exchange for a signed proxy…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Brien v Mrad

Details

AGLC: Brien v Mrad [2020] NSWCA 259
Case: [2020] NSWCA 259
Decision Date: 21 October 2020

CaseChat Overview and Summary

In *Brien v Mrad*, the New South Wales Court of Appeal considered an appeal from a decision of Gibson DCJ concerning a defamation claim. The dispute centred on allegations of defamatory matter published by Mr Mrad concerning Mr Brien.

The primary legal issue before the Court of Appeal was whether there was a "fatal variance" between the defamatory publication pleaded by Mr Brien and the publication that was ultimately proved at trial. A secondary issue concerned an application for leave to appeal regarding the assessment of aggravated damages.

The Court of Appeal allowed the appeal on the ground relating to the variance in the publication. It held that the test for determining whether a variance between the pleaded and proved publication is fatal requires an assessment of whether the defendant was misled or disadvantaged in their defence. In this instance, the Court found that the variance was not fatal, and that the defendant had not been prejudiced. The Court refused leave to appeal on the issue of aggravated damages, indicating that it was not in a position to assess such damages.

Consequently, the Court of Appeal set aside the original orders and entered judgment for Mr Brien in the amount of $15,000, with Mr Mrad ordered to pay Mr Brien’s costs both at trial and on appeal.

Orders

Orders of the court

(1) Leave to appeal granted on ground 1 of the draft notice of appeal;

(2) Leave to appeal refused on ground 2 of the draft notice of appeal;

(3) Within 7 days the appellant to file with the Registry a notice of appeal limited to ground 1 of the draft notice of appeal;

(4) Appeal allowed on ground 1;

(5) Set aside the orders made by Gibson DCJ on 19 December 2019 and in lieu thereof make the following orders:

(a) Judgment entered for Mr Brien in the amount of $15,000;

(b) Mr Mrad to pay Mr Brien’s costs;

(6) Mr Mrad to pay Mr Brien’s costs of the appeal.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

Brien v Mrad [2020] NSWCA 259

Most Recent Citation

Nassif v Seven Network (Operations) Ltd [2021] FCA 1286

Cases Citing This Decision

Munro v Wheeler (No 3) [2025] NSWDC 3
Citation 1 (Para 89)

…n Libel and Slander (12th ed, 2013, Sweet & Maxwell, [32.15])). While the applicability of this concept in Australia was rejected in Brien v Mrad [2020] NSWCA 259 at [24], the position is still that, where a plaintiff sues on a publication that is materially different to the matter complained of, the claim may be s…
Prouten v Buxton [2024] NSWDC 182
Citation 2 (Para 28)

…A 288 at [90] – [96]. A publication may be found to have been made even where the contents turn out to be worse than what was pleaded: Brien v Mrad [2020] NSWCA 259 at [23] – [25].…
Nassif v Seven Network (Operations) Ltd [2021] FCA 1286
Citation 3 (Para 24)

…As the respondents correctly contend, Zeccola has been repeatedly cited with approval: see for example, Brien v Mrad [2020] NSWCA 259 at [21], Fenn v Australian Broadcasting Corporation [2018] VSCA 166 at [49], Nationwide News Pty Ltd v Weatherup [2017] QCA 70; [2018] 1 Qd R 19 at [44], Murphy v Nationwide News Pty…
Harden v Willis Australia Group Services Pty Ltd; Willis Australia Group Services Pty Ltd v Harden [2021] NSWSC 939
Citation 4 (Para 60)

…Mr Harden argued that it should be inferred that this Mr Philipsz’ evidence on the topic would not have assisted Willis ( Wormald v Mardaca Pty Ltd [2020] NSWCA 259 at [108]-[110]).…

See all citing cases →

Cases Cited

Brien v Mrad [2019] NSWDC 764
Citation 1

…on restriction: Nil. Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Civil Citation: [2019] NSWDC 764 Date of Decision: 19 December 2019 Before: Gibson DCJ File Number(s): 2018/393848…
Kazal v Fairfax Media Publications Pty Ltd [2017] NSWSC 44
Citation 2 (Para 20)

…imputations for the purposes of a contextual truth defence. As explained by McCallum J in Oscar Kazal v Fairfax Media Publications Pty Ltd [2017] NSWSC 44, the operation of the truth defences under the 2005 Act gave rise to a natural contest about imputations that differed, if only subtly, from each other.…
Zoef v Nationwide News Pty Ltd (No 2) [2017] NSWCA 2
Citation 3 (Para 44)

…ed that the costs regime in s 40 of the Defamation Act 2005 applies to an appeal. That approach is incorrect: Zoef v Nationwide News Pty Ltd (No 2) [2017] NSWCA 2, [67]-[69]. The expression “defamation proceedings” as used in s 40 does not include an appeal.…
Abou-Lokmeh v Harbour Radio Pty Ltd [2016] NSWCA 228
Citation 4 (Para 32)

…c imputations: Fairfax Media Publications Pty Ltd v Zeccola (2015) 91 NSWLR 341 at [49]-[50] per McColl JA; Abou-Lokmeh v Harbour Radio Pty Ltd [2016] NSWCA 228 at [32]-[33] per McColl JA.”…
Fairfax Media Publications Pty Ltd v Zeccola [2015] NSWCA 329
Citation 5

…of this test, which is directly relevant to this case, is the principle that general imputations differ in substance from specific imputations: Fairfax Media Publications Pty Ltd v Zeccola (2015) 91 NSWLR 341 at [49]-[50] per McColl JA; Abou-Lokmeh v Harbour Radio Pty Ltd [2016] NSWCA 228 at [32]-[33] per McColl JA.”…
Coles Supermarkets Australia Pty Ltd v Clarke [2013] NSWCA 272
Citation 6 (Para 10)

…that the test to be applied in this case was that identified by Simpson J (with whom Gleeson JA agreed) in Coles Supermarkets Australia Ltd v Clarke [2013] NSWCA 272 at [89]-[94]. Simpson J explained the question as being, in cases of alleged slander, the degree of tolerance allowed by the court where there is dep…
Fairfax Media Publications Pty Ltd v Kermode [2011] NSWCA 174
Citation 7 (Para 20)

…e importance of the “difference in substance” requirement for imputations was the decision of this Court in Besser v Kermode (2011) 81 NSWLR 157; [2011] NSWCA 174 in which it was held that, under s 26 of the 2005 Act, a defendant could no longer adopt the practice permitted under the 1974 Act of “pleading back” the…
Besser v Kermode [2011] NSWSC 174
Citation 8 (Para 20)

…ficant development in understanding the importance of the “difference in substance” requirement for imputations was the decision of this Court in Besser v Kermode (2011) 81 NSWLR 157; [2011] NSWCA 174 in which it was held that, under s 26 of the 2005 Act, a defendant could no longer adopt the practice permitted under the…
John Fairfax Publications Pty Ltd v Hitchcock [2007] NSWCA 364
Citation 9 (Para 16)

…The primary judge underlined this reasoning, by reference to John Fairfax Publications Pty Ltd v Hitchcock (2007) 70 NSWLR 484; [2007] NSWCA 364, a case referred to by the respondent in applying the “different in substance” test applicable to imputations:…
Fox v Percy [2003] HCA 22
Citation 10 (Para 22)

…laringly improbable” or contrary to compelling inferences or inconsistent with contemporaneous documents: Fox v Percy (2003) 214 CLR 118; [2003] HCA 22. There is no basis to set aside her Honour’s findings of fact about this matter.…
Random House Australia Pty Ltd v Abbott [1999] FCA 1538
Citation 11 (Para 19)

…f the alternative words had been pleaded: see Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at [19] per [Brennan] CJ and McHugh J; Random House Australia Pty Ltd v Abbott (1999) 94 FCR 296 at [26] per Beaumont J. 58. One of the primary tests for determining whether two imputations differ in substance turns on what the defendant wou…
Chakravarti v Advertiser Newspapers Ltd [1998] HCA 37
Citation 12

…to plead a different issue, adduce different evidence, or conduct the case on a different basis if the alternative words had been pleaded: see Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at [19] per [Brennan] CJ and McHugh J; Random House Australia Pty Ltd v Abbott (1999) 94 FCR 296 at [26] per Beaumont J. 58. One of the primary…
Dare v Pulham [1982] HCA 70
Citation 13 (Para 18)

…nish a statement of the case that is sufficiently clear to allow the other party a fair opportunity to meet it: Dare v Pulham (1982) 148 CLR 658; [1982] HCA 70. I am in this case, however, not persuaded that the unfairness suggested by the respondent arises. As I have sought to explain, it is inappropriate to fo…
[1964] AC 234 [1964] AC 234
Citation 14

…justify each imputation: John Fairfax Publications Pty Ltd v Hitchcock (2007) 70 NSWLR 484 at [188] per McColl JA; Lewis v Daily Telegraph Ltd [1964] AC 234 at 282 per Lord Devlin. If the defendant would need to rely on different particulars to justify Imputation A, as compared to Imputation B, it wold ordinari…
[1924] 1 KB 461 [1924] 1 KB 461
Citation 15 (Para 11)

…ory words pleaded relied upon the judgments of the Court of Appeal of England and Wales in Tournier v National Provincial and Union Bank of England [1924] 1 KB 461. After addressing two of the separate judgments in Tournier , Simpson J concluded:…

Legislation Cited

Defamation Act 2005 (TAS) 25, 26, 40
4 mentions (from Para 44)
Civil Procedure Act 2005 (NSW) 60
2 mentions (from Para 12)
Defamation Act 1974 (NSW) 9
2 mentions (from Para 18)
Uniform Civil Procedure Rules 2005 (NSW) 14.30(3)
1 mention (from Para 19)

Medium Neutral Citation:	Brien v Mrad [2020] NSWCA 259
Hearing dates:	5 August 2020
Date of orders:	21 October 2020
Decision date:	21 October 2020
Before:	Macfarlan JA at [1]; Payne JA at [2]; McCallum JA at [47]
Decision:	(1) Leave to appeal granted on ground 1 of the draft notice of appeal; (2) Leave to appeal refused on ground 2 of the draft notice of appeal; (3) Within 7 days the appellant to file with the Registry a notice of appeal limited to ground 1 of the draft notice of appeal; (4) Appeal allowed on ground 1; (5) Set aside the orders made by Gibson DCJ on 19 December 2019 and in lieu thereof make the following orders: (a) Judgment entered for Mr Brien in the amount of $15,000; (b) Mr Mrad to pay Mr Brien’s costs; (6) Mr Mrad to pay Mr Brien’s costs of the appeal.
Catchwords:	DEFAMATION – defamatory matter – where publication pleaded differs from publication proved – test to be applied – whether language of ‘fatal variance’ helpful DEFAMATION – remedies – aggravated damages – court not in position to assess aggravated damages – leave refused
Legislation Cited:	Civil Procedure Act 2005 (NSW), s 60 Defamation Act 1974 (NSW), s 9 Defamation Act 2005 (NSW), ss 25, 26, 40 Uniform Civil Procedure Rules 2005 (NSW) r 14.30(3)
Cases Cited:	Besser vKermode (2011) 81 NSWLR 157; [2011] NSWCA 174 Coles Supermarkets Australia Ltd v Clarke [2013] NSWCA 272 Dare v Pulham (1982) 148 CLR 658; [1982] HCA 70 Fairfax Media Publications v Zeccola (2015) 91 NSWLR 341; [2015] NSWCA 329 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 John Fairfax Publications Pty Ltd vHitchcock (2007) 70 NSWLR 484; [2007] NSWCA 364 Oscar Kazal v Fairfax Media Publications Pty Ltd [2017] NSWSC 44 Tournier v National Provincial and Union Bank of England [1924] 1 KB 461 Zoef v Nationwide News Pty Ltd (No 2) [2017] NSWCA 2
Texts Cited:	Gatley on Libel and Slander (12th ed, 2013, Sweet & Maxwell)
Category:	Principal judgment
Parties:	Martin Brien (applicant) Hussein Mrad (aka Sam Mrad) (respondent)
Representation:	Counsel: A T S Dawson SC with T B Senior (applicant) S Chrysanthou with N G Olson (respondent) Solicitors: HWL Ebsworth Lawyers (applicant) Rose Litigation Lawyers (respondent)
File Number(s):	2020/12516
Publication restriction:	Nil.
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Civil Citation: [2019] NSWDC 764 Date of Decision: 19 December 2019 Before: Gibson DCJ File Number(s): 2018/393848