/

/

Dailymail.com Australia Pty Ltd v Molan [2023] FCAFC 26 | Case summary | Zoe

CTHFCAFC

Dailymail.com Australia Pty Ltd v Molan

[2023] FCAFC 26

Federal Court of Australia (Full Court)|2023-03-03|Before: Ms J, Greenwood JJ, Allsop CJ, Jacobson JJ, Lee J, Lee JJ

View original source

At a glance

Source facts

Court

Federal Court of Australia (Full Court)

Decision date

2023-03-03

Before

Ms J, Greenwood JJ, Allsop CJ, Jacobson JJ, Lee J

Source

Original judgment source is linked above.

Judgment (2 paragraphs)

[1]

The appeal be allowed.
Orders 1 and 2 made on 30 August 2022 and orders 1 and 2 made on 12 September 2022 be set aside.
There be a new trial of the proceeding before the primary judge subject to: (a) the parties' admissions made today that: (i) imputation (f) was not carried; (ii) none of the imputations alleged in respect of the second and third matters complained of was carried; (iii) the defence of honest opinion cannot be maintained; and (iv) contextual imputations (i) and (ii) were carried by the first matter complained of and differ in substance from imputations (a)-(e); (b) the testimony of all witnesses examined at the former trial and all other evidence admitted at that trial stand as the only evidence in the retrial, unless the primary judge otherwise orders.
The whole of the proceeding below and the question of costs of the appeal be referred for mediation to a Registrar of the Court, the mediation to take place by no later than 31 March 2023.
Costs of the appeal be otherwise reserved to be dealt with, if necessary, following the conclusion of the mediation.
There be liberty to apply by notice to the Chambers of Justice Lee.
Pursuant to s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) a certificate be granted to each of the appellant and the respondent because, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to each party in respect of such part as the Attorney-General considers appropriate in relation to the new trial. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

[2]

THE COURT: 1 During the course of the argument of the appeal the respondent, Erin Molan, accepted the argument of the appellant, Dailymail.com Australia Pty Ltd, that the primary judge erred by failing to determine all of the issues raised by its defence of contextual truth under s 26 of the Defamation Act 2005 (NSW) and to consider all of the evidence relating both to that defence and to the issue of damages. 2 Having carefully considered the primary judge's reasons for judgment and the admissions of the parties, and having regard to the principles identified in Telstra Corporation Ltd v Minister for Broadband, Communications and the Digital Economy (2008) 166 FCR 64 at 77-78 [51]-[54] per French, Weinberg and Greenwood JJ and Bradken Ltd v Norcast S.ár.L (2013) 219 FCR 101 at 104-105 [20]-[22] per Allsop CJ, Mansfield and Jacobson JJ, we are satisfied that it is not necessary to descend to the merits of the appeal. That is because we are satisfied that the error identified above is both appealable and provides a sufficient basis to discern the existence of error by his Honour, so as to enliven the Court's power to allow the appeal by consent and make consent orders setting aside the dispositive orders made by his Honour on 30 August 2022 and 12 September 2022, on the basis that the parties propose. 3 Accordingly, there will be a new trial of the proceeding before the primary judge subject to the following admissions that the parties have made, so that, pursuant to the Court's power under s 30 of the Federal Court of Australia Act 1976 (Cth), his Honour can conduct the new trial in accordance with the overarching purpose in s 37M. Those admissions are that first, imputation (f) was not carried, secondly, none of the imputations alleged in respect of the second and third matters was carried, thirdly, the defence of honest opinion cannot be maintained and, fourthly, contextual imputations (i) and (ii) were carried by the first matter complained of and differ in substance from imputations (a) to (e), inclusive. 4 In our opinion, it is also appropriate to order, under s 30(2) of the Federal Court of Australia Act, that the new trial proceed subject to the agreed condition that the testimony of all witnesses examined at the former trial and all other evidence admitted at that trial stand as the only evidence in the retrial unless the primary judge otherwise orders. 5 In light of the very reasonable way in which the parties approached the argument of the appeal and addressed the issue leading to the consent orders, it is apposite that the Court refer them to mediation before the Registrar, with that to occur before the end of this month so as, if possible, to avoid any further prolongation of this litigation, given the situation that now applies. 6 The Court congratulates the parties for approaching the resolution of the appeal in this very sensible way. I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Rares, Katzmann and Lee.