Mundine v Brown

TEXTS CITED : Australian Defamation Law and Practice

Lana Mundine (Plaintiff) PARTIES : Avery Brown (First Defendant) APN News and Media Limited (Second Defendant) Daily Examiner Pty Ltd (Third Defendant)

T Molomby SC with R K M Rasmussen (Plaintiff) COUNSEL : P M Sibtain (First Defendant) A T S Dawson (Second and Third Defendants)

Slater & Gordon (Plaintiff) SOLICITORS : Holding Redlich (First Defendant) Banki Haddock Fiora (Second and Third Defendants)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST

2009/296431 Lana Mundine v Avery Brown, APN News and Media Limited and Daily Examiner Pty Ltd

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.

You may care to amend the proceedings by discontinuing against the second defendant. We advise that we have instructions to accept service on behalf of Daily Examiner Pty Ltd and no delay should be occasioned.

If you intend to file an amended statement of claim, would you please do so immediately or let us know if you do not propose to do so in order that we may seek further instructions." 6 It does not appear that that letter was answered. On 29 April 2010 the solicitors for the defendants wrote again: "We refer to the joinder of the second defendant, APN News & Media Ltd, by your client in these proceedings.

As you are aware, by way of letter dated 1 July 2009 we informed you that the correct name of the publisher of the Daily Examiner newspaper was Daily Examiner Pty Ltd ACN 000 006 959. In that letter, we also informed you that APN News & Media Ltd was not the publisher of the matter complained of. As you know, APN News & Media Ltd is merely the holding company of Daily Examiner Pty Ltd and has no role in the publication of The Daily Examiner.

In the circumstances, we are surprised that your client has not discontinued proceedings against the second defendant. In fact, in the letter referred to above we invited your client to do precisely that.

Furthermore, in the second defendant's defence filed on 18 August 2009 we again raised this issue and foreshadowed seeking an order for indemnity costs should your client proceed with his case against the second defendant and fail.

We have examined the original of the newspaper containing the matter complained of and we can see no reference in it to the second defendant, namely APN News & Media Ltd. We understand from comments made by Mr Molomby that the joinder of the second defendant may have been made on the basis of some material allegedly appearing on our client's website. If there is any such material, we ask that you forward us a copy as a matter of urgency. In this regard, we note that no such material has been discovered by your client.

In our view, this is a matter that needs to be resolved prior to the commencement of the trial on Monday week.

We await your response." 7 The plaintiff replied the following day: "We refer to your letter of 29 April 2010.

When we first wished to begin an action against the publisher of The Daily Examiner of 18 August 2008, we searched that publication for the identification of its publisher which, pursuant to Section 4 of the Printing and Newspapers Act 1973 , we expected it to contain. We found on the second page, close to the heading 'Contact us', below which were several addresses, phone and fax numbers, and email addresses, the name and logo 'APN AUSTRALIAN PUBLISHING'. That was the only name we found in the whole publication which, as best we could judge, was intended to the represent the name of the publisher. If there is one somewhere that we missed, would you please advise us and provide a copy of the relevant page.

Having come to that initial conclusion, we then looked for a website for APN, and discovered the website APN News and Media (www.apn.com.au), which among other things stated ' APN Australian Publishing offers … 14 daily newspapers .' The site had a link to the Daily Examiner. Opening that link revealed the webpage of The Daily Examiner (www.dailyexaminer.com.au), which contained at the bottom, a copyright symbol and the name 'APN News and Media Limited'. We attach copies of relevant pages.

We did not find any mention on the website of 'Daily Examiner Pty Ltd'. Again, if this is incorrect, would you please advise and provide copies of relevant pages.

In these circumstances, we felt justified in concluding that APN News and Media Limited was the publisher of The Daily Examiner. That still seems to us to be the appropriate conclusion, with the additional fact that the Daily Examiner Pty Ltd has also admitted to being a publisher.

We set out the above in detail so that if there is anything incorrect in it you may advise us." 8 The defendants' response was dated 4 May 2010: "We refer to your letter of 30 April 2010 relating to the joinder of APN News & Media Ltd as second defendant in these proceedings.

We note from the material referred to in your facsimile that nowhere does this material state that APN News & Media Ltd was the publisher of The Daily Examiner newspaper.

As we advised you by way of letter dated 1 July 2009, the second defendant is not the publisher of The Daily Examiner newspaper. In the same letter, we advised you of the identity of the publisher of The Daily Examiner newspaper, namely Daily Examiner Pty Ltd ACN 000 006 959. Your client subsequently joined that entity as third defendant.

As is clear from the third defendant's defence, the third defendant admits that it is the publisher of The Daily Examiner newspaper and, at paragraph 3(a), admits that it published the matter complained of.

In the circumstances, we remain of the view that your client has no proper basis upon which to continue proceedings in relation to the second defendant. We again invite you to discontinue against the second defendant. Not only is this the sensible thing to do but it will also shorten the trial considerably. This issue should be resolved in advance of trial." 9 The plaintiff responded the next day: "Thank you for your letter of 4 May 2010, concerning the continuation of proceedings against the second defendant.

In our view, the material contained in our previous letter would make it quite clear to the ordinary reasonable reader that APN News & Media Ltd was the publisher of the Daily Examiner newspaper.

We note that the only basis upon which you say that the second defendant was not the publisher of the Daily Examiner, is your bare assertion of that fact. We have seen no evidence to the contrary. We invite you to provide us with evidence confirming that as at 18 August 2008, APN News & Media Ltd was not the publisher of the Daily Examiner.

We will consider your further material at that time." 10 The defendants replied on 6 May 2010 in these terms: "We refer to your letter of 5 May 2010, responding to our letter of 4 May 2010 concerning the continuation of proceedings against the second defendant, as well as to your letter of 6 May 2010 enclosing, by way of service, a notice to produce to the second defendant.

1. What the ordinary reasonable [reader] would make of material appearing on the internet is entirely irrelevant to the factual question of whether or not the second defendant was a publisher of The Daily Examiner newspaper.

2. It is not up to us to provide you with evidence confirming, as you suggest, that 'as at 18 August 2008, APN News & Media Ltd was not the publisher of The Daily Examiner'. In fact, publication is a matter for your client to prove at trial if she persists in her case against the second defendant, which we have indicated to you is incorrect. To that end, we request the following further and better particulars of the allegation of publication against the second defendant made in the Further Amended Statement of Claim:

(a) please specify with precision the facts, matters and circumstances upon which the plaintiff relies in support of the allegation that the second defendant published The Daily Examiner of 18 August 2008; and

(b) please provide with precision the facts, matters and circumstances upon which the plaintiff relies in support of the allegation that the second defendant published the matter complained of on 18 August 2008.

3. We remind you, as we have on previous occasions, that the third defendant was at the relevant time and is the publisher of The Daily Examiner, and not the second defendant. We note that we first informed you of this fact in our letter of 1 July 2009. Instead of discontinuing against the second defendant, your client simply elected to join the third defendant.

4. The Notice to Produce issued under cover of your letter of 6 May 2010 is liable to be set aside. Not only is it impermissibly wide and ambiguous (for example, the reference to 'or similar to' Annexure A), it is wholly irrelevant to any issue in the proceedings. Further, we note that the printouts which form Annexure A to the Notice are all dated 29 April 2010, some 18 months after the publication of the matter complained of. In the circumstances, if you call on the Notice at the hearing, we will move to have it set aside." 11 It should be observed that I heard a separate argument concerning the status of the plaintiff's notice to produce, directed to the second defendant, which is referred to by the defendants in the previous letter. I ordered that it should be set aside. 12 The final piece of correspondence in this exchange came from the plaintiff on 7 May 2010: "We refer to the above proceedings and your letter of 6 May 2010.

In support of the allegation that the 2nd defendant published the Daily Examiner newspaper dated 18 August 2008, and the matter complained of on that day, the plaintiff relies on the following:

(i) The presence in the Daily Examiner newspaper dated 18 August 2008, toward the top right of page 2, of the words 'APN Publishing', with the logo of APN News & Media Limited;

(ii) The absence in the Daily Examiner newspaper dated 18 August 2008, of anything other than (i) above, that could be an acknowledgment of the name of the publisher;

(iv) The content of the APN website, forwarded to you under cover of our letter dated 30 April 2010.

We seek discovery from the 2nd defendant of the following:

1. All documents to be relied upon in support of the contention that the 2nd defendant was not the publisher of the Daily Examiner newspaper dated 18 August 2008.

2. Please ensure that the documents sought are provided at the commencement of the hearing of this matter on 10 May 2010." 13 These letters together with attached documents became exhibit "VD1" on this application. The form of the documents in "VD2" 14 There were two pages downloaded. The combined extract bears the date 21 October 2008, which the parties agree is the date upon which it was retrieved and printed. It does not refer to the second defendant in terms at all but has a link headed "contact us" that produces the second page of the exhibit if clicked on the screen. The first page has a revolving and therefore changing pictorial display that promotes what appear to be other publications and products produced by the APN News and Media group. The APN logo that appears on the second page of the edition of the paper published on 18 August 2008 containing the matter complained of, and which is referred to in the correspondence extracted above, also appears on this page of the proposed tender. The printed words on this page are as follows: " Australian Publishing APN produces a range of Australia's top regional publications in some of the country's fastest growing markets

With a publishing footprint that extends from the Coffs Coast in Northern New South Wales all the way to Cairns in Far North Queensland, APN Australian Publishing offers the greatest reach and frequency of any published in the region. Its fast-growing portfolio includes 14 daily newspapers, more than 75 community publications and it is the largest regional magazine published in Queensland. The print publications are complemented by a growing online presence. Together APN's print and online assts provide unequalled coverage of its target markets, for readers, web users and advertisers." 15 The first page also contains a series of logos or mastheads of some of these papers. The Daily Examiner is one of them. They are as follows: 16 The second page contains the name of the second defendant in bold print followed by its ABN and the address of its registered office. The extract also bears the date 21 October 2008. It is in the following format:

ACN 008 637 643 ABN 95 008 637 643 Registered Office Level 4 100 William Street East Sydney NSW 2011 Australia Email: info@apn.com.au Phone: +61 2 9333 4999 Fax: +61 2 9333 4900 Web: www.apn.com.au

Listed on the Australian Securities Exchange and the New Zealand Exchange Reuters: APN.AX; APN.NZ Bloomberg: APN:AU; APN:NZ IRESS: APN.ASX; APN.NZ " The second defendant's contentions 17 The second defendant argued that the documents were inadmissible on three bases: 1. They are irrelevant and inadmissible in accordance with s 55 of the Evidence Act 1995 .

2. They are hearsay and inadmissible in accordance with s 59 of the Act. This argument was based upon the proposition that the plaintiff's solicitor had retrieved the documents from the Internet and at the time of the submissions before me had not been called to explain what he did. The plaintiff indicated that the solicitor would be called to give this evidence if required to do so. This effectively disposed of this ground of objection.

3. They should be excluded because their probative value was substantially outweighed by the danger that they might be unfairly prejudicial to the second defendant, may be misleading or confusing, or cause or result in undue waste of time in accordance with s 135 of the Act.

18 The second defendant referred to authority and argued, by analogy with the liability of an absent proprietor, that it had no relevant connection to the act of publication of the matter complained of or The Daily Examiner. I was referred to Australian Defamation Law and Practice at [5210] as follows: "[5210] The editor of a newspaper, or executive producer of a television program, who exercises general supervision but may not be involved in any direct way with the defamatory publication will be liable for acts of his staff in the course of their employment. The liability of the editor or executive producer derives from his overall position of authority and his general supervisory role, from which it can be said that he participated in the publication, although he may not have known of its defamatory content. The question of his liability does not depend on any act by the editor with regard to the particular defamatory publication which is sued upon. He need not have read it, sub-edited it or taken any direct part in its composition. Therefore the liability of the editor or executive producer extends beyond that involving matter published with his express authority, or at his instigation or request. It extends to all matters published in circumstances where he had the authority and responsibility to supervise their content.

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

A document or newspaper on which is printed a name purporting to be the name of:

(b) the person for whom or on whose instructions the document was printed, or

shall be received by all courts and tribunals in any proceedings (whether criminal or civil) as prima facie evidence that the person whose name is so printed is:

(e) the person for whom or on whose instructions the document was printed, or

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.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.