Brien v Mrad

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.