Mundine v Brown - [2010] NSWSC 468

CITATION: Mundine v Brown [2010] NSWSC 468

HEARING DATE(S): 10 May - 1 June 2010

JUDGMENT DATE :
17 May 2010

JUDGMENT OF: Harrison J

DECISION: Tender of exhibit VD2 rejected.

CATCHWORDS: EVIDENCE – voir dire – defamation – whether second defendant published the matter complained of – relevance - whether material downloaded from a website maintained by second defendant capable of proving publication by that defendant – Printing and Newspapers Act 1973 – whether probative value of material substantially outweighed by danger that it might be unfairly prejudicial – tender rejected.

LEGISLATION CITED: Evidence Act 1995
Printing and Newspapers Act 1973

CATEGORY: Procedural and other rulings

CASES CITED: Consolidated Press Holdings Ltd v John Fairfax Publications Pty Ltd and Hilmer [2002] ACTSC 63

TEXTS CITED: Australian Defamation Law and Practice

PARTIES: Lana Mundine (Plaintiff)
Avery Brown (First Defendant)
APN News and Media Limited (Second Defendant)
Daily Examiner Pty Ltd (Third Defendant)

FILE NUMBER(S): SC 2009/296431

COUNSEL: T Molomby SC with R K M Rasmussen (Plaintiff)
P M Sibtain (First Defendant)
A T S Dawson (Second and Third Defendants)

SOLICITORS: Slater & Gordon (Plaintiff)
Holding Redlich (First Defendant)
Banki Haddock Fiora (Second and Third Defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DEFAMATION LIST

HARRISON J

17 May 2010

2009/296431 Lana Mundine v Avery Brown, APN News and Media Limited and Daily Examiner Pty Ltd
JUDGMENT

1 HIS HONOUR: The plaintiff sues the defendants for defamation concerning an article in The Daily Examiner on 18 August 2008. The matter is currently proceeding before me and a jury. The first defendant has not admitted publication of the matter complained of but is not directly or presently concerned with the particular aspect of that issue, which is the subject of these reasons. The same solicitors and counsel represent each of the second and third defendants. The third defendant admits publication of The Daily Examiner newspaper containing the matter complained of but the second defendant strenuously denies it. Despite these circumstances, including the third defendant's admission, the plaintiff persists with her allegation that the matter complained of was also published by the second defendant.

2 The plaintiff has foreshadowed that she proposes to tender material, said to have been downloaded from what she contends is the second defendant's website, going to the issue of publication by the second defendant. That material became exhibit "VD2", tendered without objection during argument on a voir dire to consider the issue, that was heard in the absence of the jury, extending over most of the fifth day of the trial. The second defendant has indicated that it will object to the tender of exhibit "VD2" generally in the proceedings on a number of bases. These are referred to below.

3 For the reasons that follow, I consider that the proposed tender should be rejected.

Background

4 The issue of publication by the second defendant of the matter complained of had already achieved considerable prominence in exchanges of correspondence between the plaintiff and…

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 Mundine v Brown

Details

AGLC: Mundine v Brown [2010] NSWSC 468
Case: [2010] NSWSC 468
Decision Date: 17 May 2010

CaseChat Overview and Summary

In the matter of Mundine v Brown, the plaintiffs sought to establish defamation claims against two defendants. The primary dispute centred on the alleged defamatory publication made by the second defendant, which was claimed to have been disseminated through a website maintained by that defendant. The case was heard and determined in the Federal Court of Australia.

The court was tasked with deciding whether the second defendant indeed published the defamatory material, and if so, whether the probative value of the material downloaded from the website substantially outweighed the risk of unfair prejudice. This required a careful examination of the evidence presented, particularly focusing on the nature and content of the material in question, and its relevance to establishing publication. Additionally, the court had to consider statutory provisions, specifically the Printing and Newspapers Act 1973, in the context of determining the admissibility of the evidence.

The court meticulously evaluated the evidence tendered by the plaintiffs, which included material downloaded from the website. It concluded that while the material had some relevance to the issue of publication, its probative value was outweighed by the potential for unfair prejudice to the defendants. Consequently, the court rejected the tender of this material. The court's decision was grounded in the need to balance the interests of justice with the protection of the defendants from potentially prejudicial evidence.

The court's final orders were that the evidence of the material downloaded from the website maintained by the second defendant was not admissible in the proceedings. The court emphasised the importance of ensuring that any evidence presented in defamation cases does not unfairly prejudice the defendants while still serving the interests of justice.

Orders