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.

6. The plaintiff lacks commitment to her job as a mental health worker.

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 claim. The plaintiff contends that some ill feeling towards her from the first defendant was generated as a consequence of this. The evidence has not yet revealed the first defendant's response to that suggestion.

4 The plaintiff was asked about a conversation that she had had with a Mr Monaghan concerning the article written by the first defendant. The question sought to elicit from the plaintiff what Mr Monaghan had said concerning his understanding or belief about the first defendant's motives behind, or intentions for, writing the article. It was anticipated before objection was taken that the answer would suggest that there was some considerable animus on the part of the first defendant and that the article was a function of his negative predisposition towards the plaintiff.

5 The defendants objected to the question, and foreshadowed an objection to any similar questions, upon the basis that it was hearsay, was unfairly prejudicial and offended s 36 of the Defamation Act2005. The plaintiff promoted the admissibility of the question first upon the basis that it was evidence from Mr Monaghan of a conclusion drawn by him after reading the article about what it said concerning the plaintiff and secondly evidence of a conclusion drawn by him that the article was actually about the plaintiff. I observe in this last respect that the plaintiff is not mentioned in the article by name.

Consideration

6 The passage of transcript containing the question that was objected to is as follows:

"Q. And what happened in Mr Monaghan's office?
A. Well I asked did he read the newspaper, and I said, ‘Look at Avery Brown on the front page’, and he said, ‘I heard about it on ABC radio as I was coming in’, and he said, ‘So I stopped and bought the paper for myself’. And then he said, ‘You can see that this article is aimed at you, because he's referring to Aboriginal workers attached to Aboriginal Mental Health in an Aboriginal specific service, well that is you. That is our service because there is no other Aboriginal Mental Health worker from an Aboriginal specific service in the Clarence Valley. We are the only Aboriginal specific service in the Clarence Valley’.

Q. And then was that a long discussion you had with Mr Monaghan?
A. Yes. And then he said, ‘I believe this mental health thing is just a smokescreen, this is a continuation of a native title’.

OBJECTION (SIBTAIN)

MOLOMBY: I press this your Honour. Your Honour this goes to her state of mind, and her reaction that the past history is something that she was aware of, and other people's reactions at least in the way it affects her, also conditioned by that.

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SIBTAIN: Your Honour, I am not sure what other people say about what they think might be someone else's motivation for doing something can have any bearing. I mean it's the reaction she has to the article rather than somebody else's musing over why it was written. So I press it."

7 In my opinion the question went further than the plaintiff's submissions suggest. The question is in fact directed to eliciting the opinion of a third party about the first defendant's motives for writing the article and is not limited to his understanding of what the article may have been thought on its face or by its terms to convey. The plaintiff was being asked a question about an opinion that Mr Monaghan had communicated or expressed to her about what he thought motivated the first defendant to write the article in the first place. He was not being asked to explain what he took from the article itself as an ordinary reasonable reader without any apparent or special knowledge or understanding of the relationship between the first defendant and the plaintiff. It was a question directed to proving in an impermissible way that the author of the article had had an historically troublesome relationship with the plaintiff and therefore may have had a reason or motive to defame her. It is inadmissible as hearsay for that reason alone.

8 The first defendant also submitted that the probative value of the anticipated answer was substantially outweighed by the danger that it might be unfairly prejudicial to him. The second and third defendants adopted this submission. It was as follows:

"SIBTAIN: Your Honour, there is a real risk in my submission of prejudice with respect to this evidence. Even if my friend is right, and that evidence goes at a very peripheral edge to damages, my fear is that the jury will mistake what third parties - the $0.20 worth that third parties throw in with respect to why they think things were written rather than the actual fact as to why things were written will impermissibly affect their findings in relation to malice.

This evidence goes to damages, that is not a matter that the jury will hear, and we run the very real risk that they will not distinguish between things that are said, and evidence is only lead as to the fact that they are said and not the truth of it in circumstances where there is no need for the jury to hear it."

9 The plaintiff herself gave evidence of what she perceived to be the first defendant's attitude to her and its effect upon her. Some of that evidence was as follows:

"Q. Over the whole of that time to now, from the time of this publication in August 2008 until you are sitting here today, what has been the effect on you?

A. It has really affected me, I feel a lot of pain, I feel a lot of embarrassment, I feel intimidated by the article because I am scared to go out because I might run into Avery Brown who could start doing a personal attack on me, I don't know. I feel very intimidated by him.

Q. Has it had any effect on your behaviour in terms of things you choose to do or not to do?
A. Umm, yes.

Q. What is that?
A. I like to attend a lot of community meetings, Aboriginal community meetings, and I don't go because I fear of running into Avery Brown.

10 I anticipate that in due course it will be suggested to the first defendant, if he chooses to give evidence, that he was motivated by ill feeling towards the plaintiff and was motivated to write the article for reasons associated with such an attitude. Even if that does not occur it seems apparent that the plaintiff will suggest it as part of her case. The question that is the subject of present consideration does not appear to me in the circumstances to raise or to cause any particularly unfair prejudice for the defendants. It is only prejudicial in the sense that it may tend to damage the defendants' case. That is not the kind of prejudice with which this objection is concerned. The defendants are to my mind not likely to be prejudiced in any way that is not otherwise related to the fact that the answer to the question cannot be tested in cross-examination of Mr Monaghan. That is their hearsay objection and is the very reason that I have rejected the question in any event.

11 The second and third defendants finally submitted that the line of questioning heralded by these questions fell foul of s 36 of the Defamation Act. That section provides as follows:

" 36 State of mind of defendant generally not relevant to awarding damages

In awarding damages for defamation, the court is to disregard the malice or other state of mind of the defendant at the time of the publication of the defamatory matter to which the proceedings relate or at any other time except to the extent that the malice or other state of mind affects the harm sustained by the plaintiff."

12 This objection was taken in the context of the debate about whether or not questions going only to the issue of damages should be asked in the presence of the jury. This controversy led me in due course to determine that all issues would be heard at the one time and the jury would later be given directions concerning evidence that they could have regard to that went to the issues of publication, identification and defamatory meaning, and evidence that was relevant only to the issue of damages. In that particular context the questions that the plaintiff had foreshadowed were not objectionable for the reasons suggested by the second and third defendants. Section 36 does not lead to any different result.

Order

13 The question is rejected.

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