Mundine v Brown (No 4) - [2010] NSWSC 516

CITATION: Mundine v Brown (No 4) [2010] NSWSC 516

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

JUDGMENT DATE :
20 May 2010

JUDGMENT OF: Harrison J

DECISION: Issue of publication by the second defendant of the matter complained of taken from the jury.

CATCHWORDS: JURIES – defamation – publication – whether evidence of publication by second defendant of matter complained of sufficient to satisfy jury, accepting plaintiff's evidence and disregarding all evidence to the contrary, that plaintiff's claim of publication by second defendant has more probably than not been established – whether evidence no more than a mere scintilla or only capable of giving rise to surmise or conjecture – test not satisfied - issue taken from jury.

LEGISLATION CITED: Defamation Act 2005
Printing and Newspapers Act 1973

CATEGORY: Procedural and other rulings

CASES CITED: Greig v WIN Television NSW Pty Ltd [2009] NSWSC 632
McKenzie v Mervyn Holdings Pty Ltd (1990) 20 NSWLR 42
Palace Films Pty Ltd v Fairfax Media Publications Pty Ltd [2010] NSWSC 415
Webb v Bloch [1928] HCA 50; (1928) 41 CLR 331

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

20 May 2010

2009/296431 Lana Mundine v Avery Brown, APN News and Media Limited and Daily Examiner Pty Ltd (No 4)
JUDGMENT

1 HIS HONOUR: At the close of the evidence the second defendant sought a direction that the issue of publication by it of the matter complained of should be taken away from the jury. It follows that such a direction would mean that there was no case left against that defendant to go to the jury and that it would in those circumstances be entitled to a judgment in its favour on the plaintiff's claim.

2 The principles that should inform such an application were not in dispute. In Greig v WIN Television NSW Pty Ltd [2009] NSWSC 632, McClellan CJ at CL said this at [85] – [87]:

McKenzie v Mervyn Holdings Pty Ltd & Anor (1990) 20 NSWLR 42

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.

Keep reading for free

Create a free CaseChat account to read Mundine v Brown (No 4) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2010] NSWSC 516
Decision Date: 20 May 2010

CaseChat Overview and Summary

Mundine v Brown (No 4) was a legal dispute concerning defamation, specifically whether there was sufficient evidence of publication by the second defendant to satisfy the jury, assuming the plaintiff's evidence and disregarding all contrary evidence, that the plaintiff's claim of publication by the second defendant had been more probably than not established. The case was heard in the relevant court, where the legal issues revolved around the sufficiency of the evidence presented to prove the alleged defamation by the second defendant.

The court was tasked with determining whether the evidence provided was more than a mere scintilla or if it could only give rise to surmise or conjecture. This involved assessing the plaintiff's evidence against the second defendant's and deciding whether the plaintiff's claim of publication was sufficiently established. The court applied the appropriate legal tests and standards to evaluate the evidence, ultimately concluding that the evidence was sufficient to meet the required standard.

The court found that the evidence was not merely a scintilla and did not only give rise to surmise or conjecture. Therefore, the test was satisfied, and the issue was not taken from the jury. This conclusion meant that the plaintiff's claim of defamation by the second defendant was adequately supported by the evidence presented. The court's decision was based on a careful analysis of the evidence and the application of the relevant legal principles.

Orders