Mundine v Brown

Mundine v Brown - [2010] NSWSC 468 - NSWSC 2010 case summary — Zoe

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JUDGMENT 1 HIS HONOUR: The plaintiff sues the defendants for defamation concerning an article in The Daily Examiner on 18 August 2008. The matter is currently proceeding before me and a jury. The first defendant has not admitted publication of the matter complained of but is not directly or presently concerned with the particular aspect of that issue, which is the subject of these reasons. The same solicitors and counsel represent each of the second and third defendants. The third defendant admits publication of The Daily Examiner newspaper containing the matter complained of but the second defendant strenuously denies it. Despite these circumstances, including the third defendant's admission, the plaintiff persists with her allegation that the matter complained of was also published by the second defendant. 2 The plaintiff has foreshadowed that she proposes to tender material, said to have been downloaded from what she contends is the second defendant's website, going to the issue of publication by the second defendant. That material became exhibit "VD2", tendered without objection during argument on a voir dire to consider the issue, that was heard in the absence of the jury, extending over most of the fifth day of the trial. The second defendant has indicated that it will object to the tender of exhibit "VD2" generally in the proceedings on a number of bases. These are referred to below. 3 For the reasons that follow, I consider that the proposed tender should be rejected. Background 4 The issue of publication by the second defendant of the matter complained of had already achieved considerable prominence in exchanges of correspondence between the plaintiff and the second and third defendants before the trial commenced. That series of correspondence conveniently and accurately records most of the matters that the parties have sought to promote before me concerning the current debate. It is set forth below. 5 By letter dated 1 July 2009 the defendants wrote to the plaintiff in these terms: "We are instructed that the correct name of the publisher of the Daily Examiner newspaper is Daily Examiner Pty Ltd ACN 000 006 959. We are further instructed that APN News & Media Limited is not the publisher.

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An analogy should not, however, be drawn with the case of the absent proprietor who incurs civil liability by virtue of his ownership and control of the business: Levien v Fox (1890) 11 NSWLR 414. There does not seem to be any reason in principle why an editor should be liable for publications made while he is formally absent from the chair. In those circumstances, he does not have, nor does he purport to have, the opportunity to exercise general authority over the content of the paper or program in question. On the same basis, it might be doubted that the chief executive officer of the publishing company or its directors would be liable in the absence of any particular involvement in the publication in question: Consolidated Press Holdings Ltd v John Fairfax Publications Pty Ltd and Hilmer [2002] ACTSC 63." 19 The second defendant argued that simply being one only of several other companies in the APN Australian Publishing organisation was insufficient to connect it to, or to attribute to it, any necessary or relevant role in the act of publication of The Daily Examiner. The second defendant relied upon what was said by Higgins J in Hilmer at [28] as follows: "[28] There was no authority cited which supported the view that, in the absence of active participation in the wrong complained of , any director, governing director or managing director of a media or other publisher of a libel is liable for that publication." (emphasis added) 20 There was also said by the second defendant to be no significance in the fact that when someone visited the website in question and clicked on the "contact us" link, he or she would be referred to a page having details of the second defendant. This was not evidence of anything more than that the second defendant had been chosen or nominated, as a matter of internal corporate convenience, as the company or point of contact within the APN Australian Publishing group for the provision of information about all members of it. 21 Another issue was whether or not the website in question was the second defendant's website. I was taken to the terms of the second defendant's 2008 and 2009 annual reports for the purposes of this argument. The latter report contains the words "This report is available in full on the company's website www.apn.com.au", which words do not appear in the former report. The documents in exhibit "VD2" are taken from that website. For present purposes I am not satisfied that the evidence supports the second defendant's contentions on this issue. 22 None of the documents in the proposed tender stated that the second defendant was the publisher of The Daily Examiner. The second defendant argued that no proper reading or understanding of the documents could support an inference that it was. Alternatively, if any such inference was available, it was slight. In those circumstances, so the second defendant argued, the documents were either completely irrelevant and so should be rejected for that reason alone or were, having regard to the fact they were manifestly of such little probative value, afflicted by a very real danger that their worth as evidence of publication by the second defendant might be substantially outweighed by unfair prejudice to that defendant. There was also a danger that they were or might become misleading or confusing, especially if, as was the case, they were said to be referable to an issue that the jury would have to decide. Although no submissions were directed to the topic, there was also the possibility that the issue of publication by the second defendant was in all of the circumstances one that might cause or result in undue waste of time. I note, however, that I have not considered that aspect of the matter in coming to my conclusions. Plaintiff's contentions 23 The plaintiff's arguments are to some considerable extent reflected or contained in the terms of the pre-trial correspondence between the parties. Much of the plaintiff's case on this issue seeks to derive support from the existence of the logo on the second page of the paper on the day of publication and the existence of the logo on the website. The plaintiff relies on ss 4 and 5 of the Printing and Newspapers Act 1973. Section 4 requires the person who prints a newspaper to print on the front page or on an equivalent page the name and address of the publisher of the newspaper. Section 5 is as follows: " 5 Evidentiary

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as the case may be." 24 The plaintiff submitted, and the second defendant accepted, that the logo on the second page of the newspaper was the only indication in the paper that identified the publisher that could arguably be said to amount to a compliance with that section. The plaintiff argued that it identified the second defendant and the second defendant contended that it did not. The logo is to be found in many locations throughout the APN Australian Publishing documents and although always the same pictorially or graphically, it is not always accompanied by the same words. For example, in the particular edition of the newspaper it lies above the words "AUSTRALIAN PUBLISHING". On the documents that the plaintiff wishes to tender the logo appears above the words "NEWS & MEDIA". The logo appears to be used by the companies within the group without discrimination and as a logo spanning more than one particular corporate entity. According to the plaintiff, however, its use in that way was enough, if used by the second defendant, to connect it sufficiently to the admitted publisher to make it also a publisher for the purposes of this case. 25 The plaintiff understandably emphasised the "contact us" link on the website. The argument is not difficult to follow. The issue is whether or not the link when used leads one to the second defendant in circumstances that also bespeak or establish its role as the publisher of the paper. 26 The plaintiff also submitted that the second defendant's refusal to provide affirmative evidence that it was not the publisher of the matter complained of gave rise to an inference adverse to it on this issue. An alternative but related argument is that a reading of all of the available material does not lead of itself to the conclusion that the third defendant is the publisher as the third defendant has admitted. In other words, the third defendant's admission is as weak or as strong as any inference that can be derived from all of the available material as the competing inference from the same material that the second defendant is the publisher. These arguments, however, reverse the onus of proof and tend to be less instructive than they are argumentative. Conclusions 27 In my opinion there is nothing contained in the documents forming exhibit "VD2" that gives rise to a respectable or available inference that the second defendant published The Daily Examiner on 18 August 2008. The evidence is irrelevant to the proof of any issue in the proceedings if that opinion is good. In the same circumstances and for similar reasons, the probative value of the evidence is substantially outweighed by the danger that the use of the material by the jury to support a finding that the second defendant was the publisher might be unfairly prejudicial to the second defendant, particularly in the absence (so far) of any other evidence touching the issue of publication by the second defendant and arguably tending to support it. In my opinion, the evidence should be excluded and I would reject exhibit "VD2" if the plaintiff sought to tender it.

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Judgment (57 paragraphs)

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Cases Cited (2)