Mundine v Brown

LEGISLATION CITED : Defamation Act 2005 Printing and Newspapers Act 1973

Greig v WIN Television NSW Pty Ltd [2009] NSWSC 632 CASES CITED : 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

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 (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]: "[85] Before turning to consider the pleaded imputations I should confirm the test which I have applied when considering whether the defence of justification should go to the jury. The proper approach of a trial judge to a submission that an issue should be withdrawn from the jury for lack of evidence is of general application and was authoratively considered by the Court of Appeal in a case involving an alleged defamation. In McKenzie v Mervyn Holdings Pty Ltd & Anor (1990) 20 NSWLR 42 Clarke JA said at p 47:

'A trial judge who is confronted with a submission that an issue should be withdrawn from a jury for lack of evidence is required to determine whether there is any evidence upon which the jury could reasonably find that the party opposing the motion has made out his case on the probabilities on that issue. In considering the motion the judge is bound to pay regard only to the evidence which favours the party opposing the motion and to disregard the evidence in favour of the proponent of the motion.'

[86] Clarke JA referred to and quoted with approval from the writing of the late Mr Justice Glass in the following terms at p 48:

'…It (ie the test of insufficiency) inquires whether there is evidence capable of satisfying the jury, on a balance of probabilities, that each of the constituents of the plaintiff's claim has been established. The evidence to be measured for its sufficiency in this respect is confined to that evidence which favours the plaintiff. The evidence favouring the defendant is to be disregarded. There is evidence capable of discharging the onus which the plaintiff bears even though the countervailing evidence preponderates. The evidence is sufficient if the jury, accepting the plaintiff's evidence and disregarding all evidence to the contrary, could reasonably be satisfied that the plaintiff's claim has more probably than not been established.'

[87] I have applied these principles. It is important to distinguish between the circumstance where there is evidence upon which a jury could reasonably give a verdict and 'evidence which constitutes no more than a mere scintilla or is capable of giving rise to surmise or conjecture on the other (hand)' (at p 51)." 3 In the present case the evidence upon which the plaintiff relies on the issue of publication by the second defendant is restricted first to what appears in the newspaper itself and secondly to the 2008 and 2009 annual reports of the second defendant. The argument that relies upon the first of these is said to be augmented by what flows from a combination of s 4 and s 5 of the Printing and Newspapers Act 1973 and s 41 of the Defamation Act 2005. Those provisions are respectively as follows: " 4 Provision in respect of printing and publishing newspapers

(1) A person who prints a newspaper shall, at the time of the printing, print on the front or first or last page of the newspaper:

(a) the person's name or if the person carries on business under a name registered under the Business Names Act 2002 , that name, and the address of the person's place of business, and

(b) the name and address of the publisher of the newspaper.

(2) Subject to subsection (3), no person shall sell, offer for sale, deliver, distribute, affix to any object or structure in a public place, leave in a public place or otherwise expose to public view a newspaper on which the name of the printer or the name under which the printer carries on business, and the address of the printer's place of business, and the name and address of the publisher, have not been printed on the front or first or last page of the newspaper.

(3) It shall be a defence if a person charged with an offence under subsection (2) proves that the newspaper concerned:

(a) was printed before the commencement of this Act, or

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

(1) If a document appears to be printed or otherwise produced by means adapted for the production of numerous copies and there is in the document a statement to the effect that the document is printed, produced, published or distributed by or for a particular person, the statement is evidence in defamation proceedings that the document was so printed, produced, published or distributed.

(2) Evidence that a number or part of a document appearing to be a periodical is printed, produced, published or distributed by or for a particular person is evidence in defamation proceedings that a document appearing to be another number or part of the periodical was so printed, produced, published or distributed.

(3) In this section: 'periodical' includes any newspaper, review, magazine or other printed document of which numbers or parts are published periodically." 4 The plaintiff submits that the 18 August 2008 edition of The Daily Examiner contains an entry that complies with s 4 and that it identifies the second defendant as the publisher. The plaintiff concedes, as she must, that the paper contains no reference in terms to the second defendant by name at all. The argument instead promotes the presence of the APN Australian Publishing corporate logo, in the form that appears below, as identifiable only with the second defendant and as in effect uniquely co-extensive with the second defendant and no other company in the APN publishing group. The presence of the logo on page two of the newspaper is therefore said to be evidence from which an inference can be drawn that the second defendant is the publisher and none other. 5 The logo is as follows:

6 I have already considered in another context the question of whether this logo is in effect only or exclusively identifiable with the second defendant: see [2010] NSWSC 468. At [24] and [25] of my reasons for judgment I considered the plaintiff's attempt to tender material from the second defendant's website after describing the argument in these terms: "[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." 7 It seems to me that the plaintiff's arguments are no more and no less than a reaffirmation of the propositions I previously rejected in that context. I see no basis for altering my earlier view. Section 5 and s 41 proceed upon the basis that the name of the publisher appears in the newspaper. If it does, the name cannot be that of the second defendant because it is simply not there. There is no respectable argument that implies that it is or that the presence of the logo leads to the inference that it is. There is not sufficient material to satisfy the test propounded in McKenzie. 8 The legislative provisions do not to my mind advance the case. I also referred to s 5 in my previous decision. In my opinion the evidence in question is "evidence which constitutes no more than a mere scintilla or is capable of giving rise to [no more than] surmise or conjecture". 9 I consider that the same can be said of anything that is to be found in or gleaned from the two annual reports. The material that is potentially of any use in these documents is itself very limited. The 2008 report contains the following statements: " APN 's operations across Australia cover Publishing, Online, Radio and Outdoor advertising.

APN AUSTRALIAN PUBLISHING operates 14 regional daily newspapers and more than 60 non-daily and community titles across Queensland and northern New South Wales.

The groups Publishing footprint extends from the Coffs Coast in northern New South Wales all the way to Cairns in Far North Queensland. With a broad cross section of daily newspapers, community titles and lifestyle magazines, APN Australian Publishing offers the greatest reach and frequency of any publisher in its growing regional markets." 10 The equivalent material, with some additions, is in the following form in the 2009 report: "APN News & Media communicates with millions of Australians every day courtesy of its market-leading Publishing, Radio, Online and Outdoor properties.

Through our informative daily newspapers in Australia's principal regional cities such as Rockhampton, Toowoomba and Lismore, together with our dynamic metropolitan radio stations and eyecatching outdoor advertising sites, we deliver quality content and great access to a diverse, growing demographic within the national market.

APN has a significant presence in all major metropolitan markets and, in addition, the high-growth areas of regional Queensland and the northern New South Wales coastal belt. This unique coverage means APN has extensive, unrivalled reach into metropolitan, regional and local communities.

It is this particular strength in local markets that provides exciting multimedia opportunities for advertisers and enables us to broaden our future revenue streams. Building on successes over the past year, management is committed to increasingly introducing new cross-platform product opportunities to each of our markets.

Like many sectors, the Australian media industry experienced challenging conditions in 2009 and APN's markets were not immune. However, effective cost management and targeted sales campaigns cushioned the business from the full effects of the global financial crisis. Initial trading trends in 2010 indicate the business is beginning to return to more normal patterns that existed prior to the financial crisis.

APN AUSTRALIAN PUBLISHING operates 14 regional daily newspapers, 60 non-daily and community titles and publishes several magazines. Combined with a fast-growing and integrated online presence, these media assets provide unequalled coverage of our target markets for readers, internet users and advertisers. Extending from the Coffs Coast in northern New South Wales to Cairns in Far North Queensland, the group's stable of daily, community and lifestyle publications has an unmatched connection with high-growth regional markets." 11 The mastheads of several, if not most, of the newspapers in the group's control are printed prominently on the front and back pages of the reports. The Daily Examiner is among them. There is no other text or diagrammatic indication that these mastheads were anything more than the collective intellectual property of the group. There is nothing to suggest that they are, or that any one of them is, in the exclusive control or ownership of the second defendant. There is nothing to be drawn from the reports beyond a tenuous foundation for speculation or surmise that the second defendant was the publisher of the matter complained of in the Webb v Bloch [1928] HCA 50; (1928) 41 CLR 331 sense as recently discussed by McCallum J in Palace Films Pty Ltd v Fairfax Media Publications Pty Ltd [2010] NSWSC 415 at [3] - [13]. If there is a connection to be found somewhere between the second defendant and a relevant act or relevant acts of publication, it does not appear to me to be one that can be teased out of anything that is obvious, or that is lurking, in the company's annual reports. Conclusion 12 In my opinion there is insufficient evidence of publication of the matter complained of by the second defendant. That issue should be taken from the jury. I will hear the parties at some appropriate time in due course on what other or consequential orders should be made in these circumstances.

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.