Daily Examiner Pty Ltd v Mundine

[2011] NSWCA 126

Court of Appeal

New South Wales

Case Title:

Daily Examiner Pty Ltd v MundineBrown v Mundine

Medium Neutral Citation:

[2011] NSWCA 126

Hearing Date(s):

13 May 2011

Decision Date:

13 May 2011

Jurisdiction:

Before:

Basten JA at [1] and [10]
Macfarlan JA at [2]

Decision:

In each application:
1. Dismiss the application for leave to appeal.
2. Order the applicant to pay the first respondent's costs of the application.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

DEFAMATION - qualified privilege defences - significance of plaintiff not being named in newspaper article - quantification of damages - application for leave to appeal dismissed

Legislation Cited:

Cases Cited:

Carolan v AMF Bowling Pty Ltd [1995] NSWCA 69

Texts Cited:

Category:

Principal judgment

Parties:

In 2009/297431 - 003
Daily Examiner Pty Ltd (Applicant)
Lana Mundine (First Respondent)
Avery Brown (Second Respondent)

In 2009/297431 - 004
Avery Brown (Applicant)
Lana Mundine (First Respondent)
Daily Examiner Pty Ltd (Second Respondent)

Representation

- Counsel:

Counsel:

In 2009/297431 - 003
A T S Dawson (Applicant)
T Molomby SC/R Rasmussen (First Respondent
P Wass (Second Respondent)

In 2009/297431 - 004
P Wass (Applicant)
T Molomby SC/R Rasmussen (First Respondent)
A T S Dawson (Second Respondent)

- Solicitors:

Solicitors:

In 2009/297431 - 003
Banki Haddock Fiora Lawyers (Applicant)
Slater & Gordon Lawyers (First Respondent)
Holding Redlich Lawyers (Second Respondent)

In 2009/297431 - 004
Holding Redlich Lawyers (Applicant)
Slater & Gordon Lawyers (First Respondent)
Banki Haddock Fiora Lawyers (Second Respondent)

File number(s):

CA 2009/297431 - 003/004

Decision Under Appeal

- Court / Tribunal:

- Before:

Harrison J

- Date of Decision:

05 November 2010

- Citation:

Mundine v Brown (No 6) [2010] NSWSC 1285

- Court File Number(s)

SC 2009/297431

Publication Restriction:

Judgment

1. BASTEN JA : Macfarlan JA will give the first judgment.

1. MACFARLAN JA : There are two applications for leave to appeal before the Court. The applicants were the defendants in defamation proceedings brought against them by the first respondent to each of the applications. The proceedings related to an article, published in the Daily Examiner newspaper, of which Mr Avery Brown was in large measure the author. The Daily Examiner is a newspaper published on the North Coast of New South Wales.

1. Following the jury's finding that the article defamed the first respondent by imputing that she was incompetent in her occupation as a mental health worker in Grafton, the proceedings came before Harrison J sitting in the Common Law Division of the Court for determination of defences of qualified privilege and, if applicable, quantification of damages. His Honour rejected these defences and awarded damages of $60,000 to the first respondent. Because the amount that would be in issue on the proposed appeals is considerably below the threshold beyond which an appeal as of right is available, leave to appeal is required.

1. As pointed out by Kirby P in Carolan v AMF Bowling Pty Ltd [1995] NSWCA 69 there can be inferred to have been good reasons, which his Honour identified, for the legislature imposing a requirement for leave where less than a certain amount is in issue. As his Honour said, the Court should adhere to the inferences inherent in the legislature taking that course.

1. As a result the Court does not ordinarily grant leave where less than $100,000 is in issue unless it considers that the decision at first instance was plainly wrong, that an obvious injustice has otherwise occurred or that a significant issue of principle is involved in the proposed appeal that it is in the public interest for the Court to determine.

1. In the present case the applicants' principal argument is that the primary judge erred in the way that he dealt with the applicants' argument that because the first respondent was not named in the published article, the matter complained of was published only to the readers of the newspaper who knew extrinsic facts enabling them to identify the first respondent as the person referred to by the article. The applicants submitted that an acceptance of this submission should have guided his Honour in his consideration of the qualified privilege defences and quantification of damages.

1. In essence his Honour dealt with the argument by noting that the defendants bore the onus of proof in relation to matters relevant to the qualified privilege defences, and finding that the defendants had not discharged that onus by proving that the persons who were likely to have read the article and were capable of identifying the first respondent was limited to the small group of persons identified in the applicants' submissions (see [26] - [29], [87], [112] and [121] of the primary judge's judgment). This finding was one of fact which was not patently wrong and which does not raise any question of principle requiring this Court's consideration.

1. The other points made by the applicants are in essence complaints concerning findings that the primary judge made as to questions of fact and evaluation. Whilst a number of the points can be considered to be arguable, none of them is so obviously wrong as to warrant a grant of leave.

1. In these circumstances my view is that the following orders should be made in each application:

1. Dismiss the application for leave to appeal.

2. Order the applicant to pay the first respondent's costs of the application.

1. BASTEN J A : I agree. I would only add two points.

1. First it was put by Mr Dawson that in effect his Honour was not entitled to draw an inference that there were readers who had the necessary information and had read the article unless evidence was called by the plaintiff from at least one member of any such "group" who did not have an interest of the kind which would support a defence of qualified privilege. In my view there is no such rigid rule available in a case such as the present. It was not mere speculation, but a matter of the application of ordinary experience on the facts of the case, for his Honour to accept that there were persons, undefined in number, who might have read the material, known the relevant extrinsic facts but not had a sufficient interest.

1. Secondly, to the extent there are passages in his Honour's reasons which raise the issue of principle sought to be addressed by the applicants, the case does not provide an appropriate vehicle for two reasons; first, because it is likely to be determined on the findings of fact and, secondly, because the amount involved makes it inappropriate that this plaintiff be required to be the vehicle in which those matters are to be addressed.

1. I agree with the reasons given by Macfarlan JA and I too would dismiss the applications and in each case order the applicants to pay the first respondent's costs.

1. The orders of the Court are as Macfarlan JA proposed.

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