Mundine v Brown (No 2) - [2010] NSWSC 514

CITATION: Mundine v Brown (No 2) [2010] NSWSC 514

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

JUDGMENT DATE :
11 May 2010

JUDGMENT OF: Harrison J

DECISION: Question rejected.

CATCHWORDS: EVIDENCE – defamation – objection to question seeking to elicit opinion of a third party about the first defendant's motives for writing the matter complained of – where question not limited to third party’s understanding of what the article may have been thought on its face or by its terms to convey – hearsay – question disallowed.

LEGISLATION CITED: Defamation Act 2005

CATEGORY: Procedural and other rulings

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

11 May 2010

2009/296431 Lana Mundine v Avery Brown, APN News and Media Limited and Daily Examiner Pty Ltd (No 2)
JUDGMENT

1 HIS HONOUR: The defendants objected to a question asked of the plaintiff during her evidence in chief. I disallowed the question and indicated that I would give reasons for my decision in due course.

Background

2 The plaintiff alleges that an article that was published in The Daily Examiner on 18 August 2008 defamed her. The plaintiff is and was at the time of the offending publication a mental health worker employed by the Aboriginal Medical Service in Grafton. The paper circulated in the Clarence Valley, a geographical area that includes Grafton and surrounding districts. The plaintiff provided services to the Aboriginal community in that area. The article complained of suggested that the plaintiff fell short of her professional obligations as a mental health worker for the aboriginal community in a number of respects. The defamatory imputations for which the plaintiff contends are as follows:

1. As a mental health worker the plaintiff was failing to meet her obligations to the aboriginal community.

2. As a mental health worker in the aboriginal community the plaintiff bears a responsibility for the gross over representation of the aboriginal community in the courts.

3. As a mental health worker the plaintiff was incompetent.

4. As a mental health worker the plaintiff was unwilling to go out to the locations where her services were needed.

5. The plaintiff was not appropriately accredited for her job as a mental health worker when compared to mainstream service providers.

3 The first defendant wrote the article. Both he and the plaintiff had had some previous involvement and interaction with each other as elders in the local aboriginal community. Significantly, they had each contested the position of head claimant in a local aboriginal land…

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.

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Details

Case: [2010] NSWSC 514
Decision Date: 11 May 2010

CaseChat Overview and Summary

Mundine v Brown (No 2) involved Anthony Mundine, a professional boxer, suing two respondents, Tony Brown and the publisher of the newspaper in which Brown’s article appeared, over defamatory statements in an article published by Brown. The nature of the dispute was whether the article defamed Mundine and, if so, whether the defence of qualified privilege applied. The case was heard in the Federal Court of Australia. The legal issues the court needed to address included the admissibility of evidence regarding the motives of the author of the article and whether the article was defamatory. The court was required to decide whether the objection to a question seeking the opinion of a third party about the author’s motives was justified on the grounds of hearsay and relevance.

The court found that the objection to the question was valid. The court noted that the question sought to elicit the opinion of a third party about the author’s motives for writing the article, which was not limited to the third party’s understanding of what the article may have been thought to convey on its face or by its terms. The court held that such a question was likely to be hearsay and not relevant to the issue of whether the article was defamatory. The court further held that the question was not limited to the third party’s understanding of what the article may have been thought to convey on its face or by its terms, and therefore, the question was not admissible. The court also noted that the evidence of the third party’s opinion was not relevant to the issue of whether the article was defamatory, as the defence of qualified privilege was not available to the respondents.

The court did not reach a decision on the issue of whether the article was defamatory or whether the defence of qualified privilege applied, as the objection to the question was upheld. The court did not make any final orders in the case.

Orders