Mundine v Brown (No 5) - [2010] NSWSC 517

CITATION: Mundine v Brown (No 5) [2010] NSWSC 517

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

JUDGMENT DATE :
24 May 2010

JUDGMENT OF: Harrison J

DECISION: Question rejected.

CATCHWORDS: JURIES – defamation – issue of identification of plaintiff as a person referred to in the matter complained of – counsel's address to jury – use of evidence given by plaintiff of conversations with a series of people on the day of publication – where counsel addressed to suggest plaintiff identified by such evidence – whether submission available in light of earlier discussion concerning conduct of the trial – EVIDENCE – defamation - issue of identification of plaintiff as a person referred to in the matter complained of - admissibility of evidence of declarations made out of court for the purpose of identification – application for correcting address or direction to jury refused.

LEGISLATION CITED: Defamation Act 2005

CATEGORY: Procedural and other rulings

CASES CITED: Mirror Newspapers Ltd v Fitzpatrick [1984] 1 NSWLR 643

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

24 May 2010

2009/296431 Lana Mundine v Avery Brown, APN News and Media Limited and Daily Examiner Pty Ltd (No 5)
JUDGMENT

1 HIS HONOUR: During the course of his address to the jury on 19 May 2010, Mr Molomby drew attention to certain evidence that had been given by the plaintiff about what a number of people had said to her concerning the matter complained of in The Daily Examiner. These conversations took place on the day that it was published. The text of that address at transcript 698 is relevantly as follows:

"An article can identify 100 people. Usually, they don't. But it could. It doesn't mean because 99 others have a case that one person doesn't. The test is, is the person identified and, appropriately, whether these two questions for the person would be answered yes. Let's now look at the first question:

Did at least one person who read that article identify Ms Mundine?

In the evidence that you have heard there is actually an account of 14 people having identified her. I will tell you who they are, Mr Monaghan - there is extra detail about some of them and I will come back to them. I will just, first, list the names.

Mr Monaghan, the CEO. Mr Wooldridge, the financial officer. Professor Jackson and Margaret Scott, the two people in the university working on the report. Michelle Fairweather. Tania Kildove, the receptionist. Dave Ferguson. Trevor Daley. Luke Bell. They are other people who worked in the medical service.…

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 517
Decision Date: 24 May 2010

CaseChat Overview and Summary

Mundine v Brown (No 5) involved a defamation claim brought by Anthony Mundine, a professional boxer, against the media organisation, Brown. The central issue was whether the defamatory statements in question referred to Mundine. The case was heard in the Supreme Court of New South Wales. The court was tasked with determining whether the plaintiff had been correctly identified as the person referred to in the defamatory statements and whether evidence of out-of-court declarations made for the purpose of identification was admissible.

The court considered whether counsel's address to the jury suggested that Mundine was identified by evidence of conversations with a series of people on the day of publication. The court also examined whether this submission was available in light of earlier discussions concerning the conduct of the trial. Furthermore, the court addressed the admissibility of evidence of declarations made out of court for the purpose of identification. The court had to decide whether such evidence could be used to identify the plaintiff and whether it was relevant to the jury's consideration.

The court concluded that the submissions regarding the identification of Mundine were not available given the earlier discussions about the trial's conduct. Additionally, the court held that the evidence of out-of-court declarations was inadmissible for the purpose of identification. The court's reasoning was that such evidence could not be used to identify the plaintiff and was not relevant to the jury's consideration. The court refused the application for correcting the address or direction to the jury on these grounds.

The court's final orders were that the submissions regarding the identification of Mundine were not available and that the evidence of out-of-court declarations was inadmissible. The court refused to correct the address or direction to the jury on these issues, thereby maintaining the integrity of the trial process and ensuring that the jury's decision was based on admissible and relevant evidence.

Orders