Mundine v Brown

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 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. Then her officer, Rex Marshall an Aboriginal elder who lived close to the AMS. Audrey Trindall, who had been on the Biggest Loser Programme. Rosemary Laurie, a lady she ran into on the front porch who lived nearby. Plainly they got to talking because Rosemary knew about her. Yes, she didn't know much, but she knew about her. And Vernon Heron spoke to her on the phone. He had a son who was schizophrenic and she had dealings with him.

If I counted correctly, that is 14. That's 14 people. I say to you that there is no sensible challenge to the fact that each of those 14 people identify her." 2 The plaintiff is not named in the matter complained of and so she bears the onus of proving that the article refers to her or that she can be identified as a person to whom it refers. The plaintiff relied principally on the evidence of Michelle Fairweather and Scott Monaghan to prove on the balance of probabilities that at least one person who read the article "Aboriginal services nowhere to be seen" on 18 August 2008 identified her as a person referred to in that article. No objection remains concerning the plaintiff's ability to rely upon their evidence on the question of identification. However, the defendants contended that the plaintiff was not entitled to rely upon the evidence concerning any of the other witnesses referred to by Mr Molomby because its use had been limited by me on the first day of the trial in the course of ruling upon an objection by the defendants: see [2010] NSWSC 514. 3 At the risk of unnecessary repetition, the relevant portion of my reasons at that time is set out as follows: "3 The first defendant wrote the article. Both he and the plaintiff had had some previous involvement and interaction with each other as elders in the local aboriginal community. Significantly, they had each contested the position of head claimant in a local aboriginal land claim. The plaintiff contends that some ill feeling towards her from the first defendant was generated as a consequence of this. The evidence has not yet revealed the first defendant's response to that suggestion.

4 The plaintiff was asked about a conversation that she had had with a Mr Monaghan concerning the article written by the first defendant. The question sought to elicit from the plaintiff what Mr Monaghan had said concerning his understanding or belief about the first defendant's motives behind, or intentions for, writing the article. It was anticipated before objection was taken that the answer would suggest that there was some considerable animus on the part of the first defendant and that the article was a function of his negative predisposition towards the plaintiff.

5 The defendants objected to the question, and foreshadowed an objection to any similar questions, upon the basis that it was hearsay, was unfairly prejudicial and offended s 36 of the Defamation Act 2005 . The plaintiff promoted the admissibility of the question first upon the basis that it was evidence from Mr Monaghan of a conclusion drawn by him after reading the article about what it said concerning the plaintiff and secondly evidence of a conclusion drawn by him that the article was actually about the plaintiff. I observe in this last respect that the plaintiff is not mentioned in the article by name.

6 The passage of transcript containing the question that was objected to is as follows:

'Q. And what happened in Mr Monaghan's office? A. Well I asked did he read the newspaper, and I said, "Look at Avery Brown on the front page", and he said, "I heard about it on ABC radio as I was coming in", and he said, "So I stopped and bought the paper for myself". And then he said, "You can see that this article is aimed at you, because he's referring to Aboriginal workers attached to Aboriginal Mental Health in an Aboriginal specific service, well that is you. That is our service because there is no other Aboriginal Mental Health worker from an Aboriginal specific service in the Clarence Valley. We are the only Aboriginal specific service in the Clarence Valley". Q. And then was that a long discussion you had with Mr Monaghan? A. Yes. And then he said, "I believe this mental health thing is just a smokescreen, this is a continuation of a native title".

MOLOMBY: I press this your Honour. Your Honour this goes to her state of mind, and her reaction that the past history is something that she was aware of, and other people's reactions at least in the way it affects her, also conditioned by that.

SIBTAIN: Your Honour, I am not sure what other people say about what they think might be someone else's motivation for doing something can have any bearing. I mean it's the reaction she has to the article rather than somebody else's musing over why it was written. So I press it.'

7 In my opinion the question went further than the plaintiff's submissions suggest. The question is in fact directed to eliciting the opinion of a third party about the first defendant's motives for writing the article and is not limited to his understanding of what the article may have been thought on its face or by its terms to convey. The plaintiff was being asked a question about an opinion that Mr Monaghan had communicated or expressed to her about what he thought motivated the first defendant to write the article in the first place. He was not being asked to explain what he took from the article itself as an ordinary reasonable reader without any apparent or special knowledge or understanding of the relationship between the first defendant and the plaintiff. It was a question directed to proving in an impermissible way that the author of the article had had an historically troublesome relationship with the plaintiff and therefore may have had a reason or motive to defame her. It is inadmissible as hearsay for that reason alone." 4 The plaintiff submitted that that ruling went no further than a rejection, because it was hearsay, of what if admitted would have become evidence of Mr Brown's reasons for writing the article. That issue has been referred to interchangeably as either Mr Brown's motivation or as the native title issue, a reference to the suggestion that Mr Brown wrote what he did as some sort of payback or revenge following an allegedly heated and unpleasant disagreement with the plaintiff over certain disputed aspects of a native title claim in which they had each been interested. The defendants contended that the rejection of the evidence had wider import and extended to encompass objections that the defendants might wish to take concerning hearsay evidence of identification from others, mentioned by the plaintiff and referred to by Mr Molomby in his address to the jury, who may also be nominated by the plaintiff as people who commented to her that they had read the article and who either said expressly or impliedly indicated that they recognised her as the subject of the article and identified her as a person referred to in it. Alternatively, the defendants contended that they had refrained from cross-examining the plaintiff on the evidence she gave about these several witnesses on the issue of identification upon the understanding that the evidence had been rejected for all purposes. 5 The parties all referred in detail to what appears in the transcript between pages 54 and 64 as the location both for the source of the controversy and of its resolution. A large part of the debate that is contained in that portion of the transcript was ultimately directed to the practical problem of how to hear evidence on a number of issues in the trial, most particularly on damages, that were not matters with which the jury was concerned. That material has not been redacted from what follows because it bears directly upon the parties' respective contentions about how I should decide the current dispute. Once again at the risk of unnecessary repetition, the transcript is reproduced in full below in these terms: "Q. And what happened in Mr Monaghan's office? A. Well I asked did he read the newspaper, and I said, 'Look at Avery Brown on the front page', and he said, 'I heard about it on ABC radio as I was coming in', and he said, 'So I stopped and bought the paper for myself'. And then he said, 'You can see that this article is aimed at you, because he's referring to Aboriginal workers attached to Aboriginal Mental Health in an Aboriginal specific service, well that is you. That is our service because there is no other Aboriginal Mental Health worker from an Aboriginal specific service in the Clarence Valley. We are the only Aboriginal specific service in the Clarence Valley'.

Q. And then was that a long discussion you had with Mr Monaghan? A. Yes. And then he said, 'I believe this mental health thing is just a smokescreen, this is a continuation of a native title'.

MOLOMBY: I press this your Honour. Your Honour this goes to her state of mind, and her reaction that the past history is something that she was aware of, and other people's reactions at least in the way it affects her, also conditioned by that.

HIS HONOUR: This is put on the basis that other than an attempt to prove its truth, is that right?

SIBTAIN: Your Honour, I am not sure what other people say about what they think might be someone else's motivation for doing something can have any bearing. I mean it's the reaction she has to the article rather than somebody else's musing over why it was written. So I press it.

MOLOMBY: Your Honour, I would submit that anything that happens obviously triggered by the article is a component of the experience that the person is put through as a result of the article. Whatever people say to her.

HIS HONOUR: There may need to be some evidence on that. We may need to talk about this in the absence of the jury. Here is one of those moments I was referring to. We should not be too long. If you could just go with the Court officer and we will get back to you shortly.

HIS HONOUR: Mr Molomby, what do you anticipate will be the substance of these questions?

MOLOMBY: Your Honour, the substance has pretty much been said already, and I should say there is similar material in relation to conversations with a couple of other people on the day, so whatever ruling your Honour makes now will probably cover those as well . But the essence of it is the person to whom she is speaking holds a belief that this had some connection with, or is somehow motivated by the dispute over the land claim . But that is the essence.

HIS HONOUR: By that I mean does it to go any other issue?

MOLOMBY: No, not this directly, although I should say this so there is no confusion: There is a plea of malice in relation to motivation by Mr Brown because of the land matter. Now on that, somebody else's belief as to his motivation would not of course be admissible. But I am just identifying it as relating to the same area so your Honour is not surprised to find that is the case later.

I'm sorry your Honour, I am reminded Mr Rasmussen, which I had forgotten, there is a particular of aggravation to the effect of the plaintiff's knowledge of the ill will of the first defendant towards her because of her opposition to his becoming the Head Claimant in the Bundjalung native title claim. It relates to that too in my submission.

SIBTAIN: Your Honour, there is a real risk in my submission of prejudice with respect to this evidence. Even if my friend is right, and that evidence goes at a very peripheral edge to damages, my fear is that the jury will mistake what third parties - the $0.20 worth that third parties throw in with respect to why they think things were written rather than the actual fact as to why things were written will impermissibly affect their findings in relation to malice .

This evidence goes to damages, that is not a matter that the jury will hear, and we run the very real risk that they will not distinguish between things that are said, and evidence is only lead as to the fact that they are said and not the truth of it in circumstances where there is no need for the jury to hear it.

HIS HONOUR: Just out of interest, the normal conduct of this case will mean if, depending on the jury's ultimate decision, what is to happen in relation to the damages aspect of it, as you all understand or anticipate it? I had understood we were here for the purpose of dealing with the jury issues.

MOLOMBY: No your Honour. Well certainly my understanding, I had thought that of other parties was that we were here for what we call an all in hearing, with clearly acknowledgment that there are some questions for the jury, as I have opened on this morning, and some for your Honour, and the very real possibility, which I have certainly discussed with Mr Dawson, that at the end of the hearing, depending entirely of how the hearing goes, it might well be appropriate to consider a procedure where the jury is sent out to consider some questions ahead of their consideration of others, and where they are therefore, addressed on a first group of questions and sent out, and then comes back and then addressed on a second group of questions. That, I do recall, having happened in other cases, although I don't mean very recently.

HIS HONOUR: Damages is not a question for them. I am just, as a matter of logistics, concerned how we work out a procedure whereby this trial proceeds in an orderly way, the damages material doesn't end up getting mixed in and confused with any of the evidence that touch the issues they are required to decide.

MOLOMBY: When the first trials happened under the new legislation, which I think was two years after its operative date, because of the lead time, there were two trials run virtually simultaneously first off. One was the case of Davis v and Nationwide News, where the Chief Judge at Common Law presided, the other was a case, whose name I've forgotten, where Justice Simpson presided. There was argument in both of those cases as to whether there should be a division, in effect a separate hearing--

MOLOMBY: Corby, thank you. Corby didn't run to the end, Davis did. But the Chief Justice took the view there should be no division, and that the hearing should run in an evidentiary way all in, and then at the end there would be separate decisions. I think Justice Simpson took the other view, or a somewhat qualified version of the other view. I'm not quite sure how it was applied in that case, but certainly she did not take the all in approach in its entirety.

DAWSON: I think that was by consent in that matter your Honour.

MOLOMBY: Yes I think that is right. So there has never been the ultimate all out battle to fight this out one way or the other with a definitive ruling by anybody. Mr Rasmussen has given me a note saying there was a case called Ahmadi v Fairfax before Justice Rothman which took the, what I have been calling, all in approach.

HIS HONOUR: There are two schools of thought presumably.

MOLOMBY: And perhaps some accommodation between them. But yes, at the outer limits there are two schools of thought.

HIS HONOUR: On one view you may be interested in having issues going to damages before the jury. I don't mean before it in the strict sense, but a shot across its bow in the course of the evidentiary matter they are required to determine for reasons which ought to be obvious to all of us, on the other hand you may take the view that given the extensive nature of the questions, soon to become larger, material that needs to be before the jury should be limited to only those issues they have to deal with, lest the task become too onerous. Mr Dawson and Miss Sibtain presumably take an obverse view for obverse reasons.

MOLOMBY: No doubt though they would ventilate those reasons your Honour. There are of course some fairly serious practical considerations.

MOLOMBY: Some of the witnesses have, I foreshadowed for example have evidence as to identification, which is a jury issue, and distress, which is a damages issue .

MOLOMBY: If one was to have a separate hearing strictly speaking--

MOLOMBY: People will be recalled. There is a function of doubling up because one cannot totally - I mean the factual sort of background in a lot of things gets repeated.

YOUR HONOUR: Your proposition is we should have it all in and sort it out at the end?

MOLOMBY: My proposition is it's much more efficient in terms of practical reasons, in terms of court time, and the management of the hearing to have them in together, and I would be bold enough to submit there really can't be any rational dispute to that. HIS HONOUR: Miss Sibtain, what is your view?

SIBTAIN: There is a middle ground and the extent to which one can run the middle ground is how long witnesses take, and how cumbersome it is, and it's one which involves sending the jury out with respect to that prejudicial evidence on damages that will--

HIS HONOUR: Your objection may have some substance except if we have an all in trial, if it's an all in trial then clearly enough we will have to work out a way in which the jury is made aware of what it is required to consider, and what it is required to reject. The practical matter may be we hear all the witnesses give all evidence, you note such objections to evidence as you may wish to take, or at least allocate some way of identifying the evidence that you think falls into the category that ought not to form part of the jury's deliberations, and we will sort it out at the end.

SIBTAIN: If we are talking about an all in trial, the last thing I want to do is make this any longer than it needs to be, but I would be asking for a direction from my friend to indicate when he is heading into that territory, and for a direction from your Honour to indicate to the jury before the evidence is given that this isn't evidence that really goes to any issue that they need to deal, with because clearly enough that evidence about hurt feelings is just isn't - it's potentially prejudicial. Somehow or other the jury need to be told very clearly about what evidence they can use, and not run the risk of them impermissibly being prejudiced one way or the other.

DAWSON: My view your Honour is that it is unworkable to do it any other way than have it as an all in trial. I proposed this a few weeks ago to the Chief Judge by way of directions, and it was quite appropriately decided, as I said to the Chief Judge, that it was really a matter for the trial judge, that is your Honour, and the Chief Judge wasn't quite properly prepared to make a direction about how we might run the trial.

Your Honour, Miss Sibtain's concern is a very valid one. It's interesting that it's been thrown up by what is now sort to be lead by my learned friend Mr Molomby. While it is in the area of damages, and generally I would say damages can be dealt with in the presence of the jury, subject to the proper directions being given, what my friend Mr Molomby is doing is in fact casting his questions outside the existing particulars. I also have an objection as a defendant, potential liable for damages--

DAWSON: Going to aggravation, yes. What he is seeking to elicit now is evidence as to what people said about Mr Brown's state of mind, that is his motivation for writing the article in the first place. The particular of aggravation is limited to the plaintiff's knowledge of the actual ill will as asserted by Mr Brown, not what she had to listen to about other people. In fact one would think that other people attributing to him some improper motive would in fact assuage her hurt feelings because it would confirm to her that she in fact gained her support rather than the other way around. If she knew of his ill will, and that aggravated the damage, that is one thing, but seeking to adduce what is inarguably hearsay evidence to prove the fact of the ill will is impermissible on an entirely different basis . So I don't say this particular issue needs to be cured by what we are now discussing--

HIS HONOUR: No, well that is a separate issue directed to the admissibility of this particular type of question.

DAWSON: Quite. And I object to it on that basis, not on the split issue basis. I think it's fair to say, certainly from my point of view, that I had proposed an all issues trial, the Chief Judge preferred that approach, he did it in not only the case that has been referred to--

DAWSON: Davis, but also in a case called Greig v WIN TV, and it's usually done by consent, although I think the Chief Judge has a particular view that where possible it ought to be done altogether.

Your Honour will remember the various musings about the inadequacy of the s7A system where we hedged the trials, the whole purpose, or one of the purposes of the uniform defamation laws was not only to return a more substantive role to the jury but also to eliminate the split trial procedure. What no-one thought about was the fact that reserving damages to the judicial officer in effect created the possibility for a split trial.

Your Honour, the course that I would advocate with great respect is that your Honour hears it all with the jury present, Miss Sibtain's idea about a direction at various appropriate points is not one I would oppose.

HIS HONOUR: It's not one that immediately attracts me though, it tends to interrupt the proceedings. I should say, the defendants, or at least one or two of them, requisitioned this jury, I think in fairness we should adopt the approach, that having requisitioned a jury, we are content for them, in the modern era, the expression I have used it today in another context, it should be treated with the sort of intelligence we hope they bring to this issue. If I can't have four intelligent people at the end of the day to be reminded that evidence on 30 or 40 questions on four or less topics, they can simply put to one side, then we are in some real strife I think.

DAWSON: I accept that your Honour. That is one of the reasons why, as I say, if the Chief Judge was going to be the trial judge I was asking for that direction. The usual course would then be, your Honour would hear it with the jury present, give the appropriate directions at the time that your Honour thinks appropriate, but your Honour then at the end of the case would probably reserve on the question of damages if the plaintiff gets over all the other hurdles. That is if the questions are ultimately answered in her favour, it would then be for your Honour to determine the question of damages based on the evidence that your Honour had heard, and there would be no separate trial.

HIS HONOUR: The timing of my decision on damages, if I am required to make one, is a bit beside the point.

DAWSON: Of course. I was only saying your Honour wouldn't - it's really consistent with what we have been saying, your Honour wouldn't then conduct a further hearing, even to the question of damages--

HIS HONOUR: No, I agree. Mr Molomby, are you happy to adopt the combined, or all in approach?

HIS HONOUR: It strikes me as an appropriate way to deal with it. I will deal with it, noting that the issues for the jury, and the evidence that it touches, can be heard concurrently or sequentially as the case may be during the conduct of the trial, with the evidence touching damages, which is an issue solely for me.

In the event that objections are raised, touching either of those matters, we will deal with them on face value as they arise to the extent that any of the parties wishes at some later time to formulate particular directions about which evidence the jury should be required to disregard, and which evidence they ought to be entitled to consider, it strikes me as preferable to deal with that at the end when we have an opportunity to consider the whole of the transcript in context, rather than interrupt a series of questions on the run, as those matters arise. It may not be a perfect result, but in terms of the efficient running of this trial, I am of the view that is the preferred view.

SIBTAIN: Is your Honour content that I have recorded now my objection to that material and characterised it that way. The last thing I want to do is objecting question by question to those kinds of question ?

HIS HONOUR: No, I [think] you are protected. I think it's a more fundamental proposition, and that is whether or not the question is objectionable for the reasons Mr Dawson has raised . Could I have that question reread.

HIS HONOUR: What do you say Mr Molomby to the proposition that the second hand reproduction of an opinion given by a witness out of court is inadmissible ?

MOLOMBY: I accept that your Honour . Inadmissible to prove the truth of its content of what is asserted, but admissible in terms of its effect on the Plaintiff because it's something she experienced. It's not admissible in the sense of, as I say, to prove anything asserted within it. But I'm not relying on it for that.

HIS HONOUR: If Miss Mundine gives evidence that somebody told her that Mr Brown was setting about doing things to hurt or harm her, how is that admissible?

MOLOMBY: It has an effect on her distress, and it is triggered by the article. It has been caused by the publication. It is one of the things that has been caused by the publication.

HIS HONOUR: I must say I am not entirely sure about that. The fact that somebody forms a view about the motivation for which Mr Brown wrote the article is different from what flows from the article itself, isn't it? The article had whatever effect it had on the plaintiff. It has whatever effect it has. This is an attempt, isn't it, to superadd a reaffirmation if you like through some third party out of court who formulated a view about the motivation for the article being written in the first place. Why does that flow from the article, rather than from that person's view about the author's motivation?

MOLOMBY: The occasion for that view is plainly triggered by the article. It's an attempt to make sense of why the article is there. Why it was in those terms. In my submission on behalf of a plaintiff, any activity directed towards the plaintiff, not otherwise, of course it has to be known to the plaintiff, any activity that has an impact on the plaintiff in one way or another, physical activity, things said, which is the consequence of the article, is legitimately evidence on behalf of the plaintiff going into distress, or to put it more generally, going to the experience, however one defines it that the plaintiff has been subjected to as a result of the article.

HIS HONOUR: I can understand this evidence, or some similar to it, it might be directed to reputation, I read this and thought poorly of the plaintiff and so forth, but that is in a different category to this material.

MOLOMBY: I accept that. That is not this category. The flavour of the evidence rather indicates that the third party didn't accept what was said in the article, and wasn't influenced by it, and was in a way disowning it, or explaining it away and putting it aside, yes.

HIS HONOUR: Does the matter of causation, you say this is a logical sequence or consequence of the publication of the article, that is to say that this plaintiff may come into contact with people who have read the article, and go as far as to describe the motivation of the author of it in a way that harms the Plaintiff?

MOLOMBY: Yes. Because one component of a plaintiff's distress is nearly always what are other people thinking as a result of reading this article.

HIS HONOUR: No, but that is what they are thinking about her, not what they are thinking about the motivation of the person who wrote it.

MOLOMBY: Yes, although if that is intertwined with her own situation, it is very difficult to regard it as purely separate.

HIS HONOUR: These theoretical or nominated third parties may have a misunderstanding, they may have an agenda.

HIS HONOUR: There needs to be some form of audit of this type of material. The defendants would say the audit process occurs when I reject the question.

DAWSON: Could I draw your Honour's attention to a provision of the Defamation Act which might help. S36 says: (Read). So the issue pursuant to s36 before damages of any kind aggravated or otherwise can be awarded by reference to the state of mind of the defendant, the factual question is: One, what was that state of mind; and two, was it known to the Plaintiff. Now true it is that the particulars of aggravation assert the Plaintiff's knowledge of the ill will of the First Defendant towards her, as my learned friend Mr Molomby says has been particularised, and is at least the main basis on which this questioning is founded, but if that is correct, then it cannot be the case that third party speculation about what the ill will of the First Defendant might have been cannot be admissible. Because it cannot prove what the ill will was, because it's hearsay on that topic, as my learned friend properly concedes. And there is no other basis on which that evidence can be used to award damages, because s36 limits the stated mind of the defendant, as it does in the terms I've read it to your Honour. So the evidence is inadmissible by virtue of the auditor, that is the Defamation Act your Honour.

SIBTAIN: Your Honour, in the event that it is evidence that is peripherally relevant to anything at all, clearly enough it is not probative, or it is probative of very little, and I would be asking your Honour in any event, whatever view your Honour came of its technical admissibility or otherwise, that your Honour would refuse to admit the evidence under s135, because it's prejudice with respect to the malice case is in my submission overwhelming.

HIS HONOUR: Mr Molomby, my view is it's inadmissible hearsay, do you want to speak against that?

MOLOMBY: Your Honour, in my submission it's not, but your Honour, this is not the biggest piece of evidence in the case, and as a practical matter, if I might just have a second.

MOLOMBY: Your Honour, the way I would put it though is this: It's not sought as evidence that goes to malice at all. It cannot. I accept that. It is evidence of other people forming a conclusion, which is the plaintiff's own conclusion. Now, this is - the Court is to disregard the malice of the defendant, except to the extent that it affects the harm sustained by the plaintiff. That requires the plaintiff to be aware of it. The plaintiff has given evidence that she was aware of this climate of ill will because of the land claim. She has got some other things to say about the abiding effect of this on her.

Can I put it this way: If the feedback she got from other people, this being an example of it, on this point, were to reinforce her own belief, that could contribute to persuading her of the correctness of her own belief; whether it's correct or not. As her subjective state, if other people tend to say things that she is thinking already, that is going to have an effect on her. And if that ultimate conclusion that she has come to is something that bears adversely on her, that is part of her distress.

HIS HONOUR: I am not troubled by the proposition that she can give evidence that other people read the article and said I didn't like what was said about you, that is a bit rough, that's gone too far, it's awful--

HIS HONOUR: I have trouble with the evidence though, I've read the article, I'm not surprised that Mr Brown wrote the article in those terms because I know he's got it in for you. That is in an entirely different category, that is hearsay.

MOLOMBY: Yes, but not being used for a prohibited hearsay purpose, because it's not being used to prove the truth of what is asserted in it.

HIS HONOUR: Because it's untestable, why isn't it arguably so prejudicial that it should be excluded?

MOLOMBY: I don't shrink from acknowledging that there is something to be said from the defendants' point of view in that argument as to where the balance lies, that is a question for your Honour.

HIS HONOUR: I will need to give some short reasons, but with your permission ladies and gentlemen I will do that in due course. My inclination at this stage is to reject the question, and I will give some reasons which I will be able to publish for your benefit tomorrow.

DAWSON: Can I add one further thing with what my learned friend Mr Molomby just put as to why it doesn't go in for a hearsay purpose. That is the reinforcing the Plaintiff's state of mind point. That is of course the hearsay purpose through the back door.

HIS HONOUR: I understand." (emphasis added) 6 The plaintiff's evidence, concerning the twelve or so other people that she spoke to, was given between transcript pages 70 and 77. It is unnecessary to record it here. The plaintiff mentioned these people in terms that she now wishes to promote as evidence that they identified her as a person referred to in the article when they read it. Mr Molomby's submissions on the defendants' attack upon his submissions to the jury on this topic included the following: "MOLOMBY: … Might I say I disagree fundamentally with the characterisation which has been given this morning to the debate that occurred from around page 54 onwards in the transcript.

First Mr Dawson said that I had said that the evidence had been characterised by the plaintiff, presumably via me, as hurt to feelings. I say I never did that. That whole debate was about the objection to the Native Title related evidence which starts at page 54 line 32. Your Honour has no doubt been through this. I say that was entirely about that. It is quite plain evidence of the sort that has been discussed was given earlier on the page with no objection, that is what Mr Monaghan had said about identifying her. That was not objected to. It was when she went on to the extra topic of the Native Title that the objection arose. The discussion throughout is plainly about the Native Title matter .

Indeed Ms Sibtain herself says at the bottom of page 34, the last two lines: 'I mean the reaction she has to the article rather than somebody else's musing over why it was written', which is exactly what the Native Title theme was about .

That then continues through the next several pages. I said at the top of 56, lines 9 to 11:

'But the essence of it is the person to whom she is speaking holds a belief that this has some connection with, or is somehow motivated by the dispute over the land claim.'

That's what we were talking about and your Honour said: 'This goes to damages?'

That is that connection with the land claim goes to damages. That is what we were talking about throughout… and then there is discussion about how it related to malice in relation to the land claim around lines 29 and 30 page 56. Then your Honour at line 45 at page 56 raised a different topic about the general conduct of the case. What is to happen in relation to the damages aspect, which of course is an issue for your Honour and your Honour's question was how do we procedurally deal with that? Do we do it after the jury has gone, that sort of thing. That's what was happening. Then we discussed various procedural options through to page 57 and then I think the bit Ms Sibtain was referring to was line 16 page 58. I said:

'Some of the witnesses have, I foreshadowed for example have evidence as to identification, which is a jury issue, and distress, which is a damages issue.'

Now, I was raising that there in the context of the discussion of splitting the hearing and if a witness had evidence going to a topic that was going to be before the jury and the topic that was going to be only for your Honour, what would be the consequence procedurally of organising a split of the trial, if that's what happened. That is what I was saying. I wasn't representing any particular evidence at all into one category or other. I was saying there were these two general categories and that could complicate splitting the hearing. There is no representation about any particular evidence falling into any category .

Then when Mr Dawson came in at page 59, line 37, he said, quite correctly, this was the basis of the objection and his characterisation of it:

' What he is seeking to elicit now is evidence as to what people said about Mr Brown's state of mind, that is his motivation for writing the article in the first place .'

Which of course, as your Honour knows, was the land claim so there it is again, everybody is accurately characterising it back on this day but now that we come to this argument, things are getting a little alighted [sic, elided] and slipping at the edges and I'm supposed to have characterised it as something else. Not so .

Your Honour, in my submission, I don't need to go through the transcript exhaustively to prove the negative but I say it is proved. I certainly didn't characterise it in the way that has been suggested and indeed the characterisation was entirely the other way. The objection was all about people's belief as to Mr Brown's state of mind as to why he had written the article. That is what the objection was about. Nothing else .

Now, your Honour I am against two defendants, separately represented, well, I was against three defendants, but I now against two defendants separately represented. Neither of them, despite taking numerous other objections, took any objection about this material. From the answers they had in interrogatories, they were on very lengthy notice of what the plaintiff was going to say. It does not matter what point they thought it was going to go to. They knew what she was going to say. Presumably they knew what s 60 of the Evidence Act says as well, that is in for one purpose, in for all. In that context they took no objection. Perhaps an objection is not the correct characterisation in the light of s 60 in that it would not have been an objection to the admission of the evidence absolutely but it would most probably, in my submission, have been seeking a limiting direction under s 136 in relation to evidence to be admitted otherwise pursuant to s 60.

Now, s 60, and Mr Dawson is right, it is often called the new Evidence Act. When the Evidence Act was being discussed at the time it came in, there was wide recognition that this section turned the Common Law on its head. The Common Law was you had evidence that had a hearsay component to it. It would admitted for a specific purpose which was not the hearsay one and the Judge would take account of that, a jury would be specifically directed and so on. This stood that on its head and said, and this is legislative policy of course, the material that is admissible on one thing is not caught by the hearsay and opinion exclusion. Now that means that it stands in a totally different category to material to which ss 63, 64 and 67 notices apply. Therefore comparisons with how Miss Fairweather's statement was dealt with, that is that all the tests that have to be satisfied and so on are completely beside the point. The legislature has decided that material in this category is going to be dealt with quite separately and, therefore, all of those submissions that were put about the difficulties and the prejudice and therefore the test that applied when a s 67 notice has to be given are quite beside the point. This stands to be determined in its own light [sic, right].

Now, although the legislature stood the Common Law on its head in s 60, Mr Dawson has perfectly fairly drawn your Honour's attention to the fact that in relation to this type of evidence in the defamation case, it actually made no difference because there was a Common Law exception, it's called that in a couple of the Court of Appeal authorities and it was well-known and well entrenched and had been followed for years and of course, well, it is well-known.

MOLOMBY: I don't seek to go into it now but there are a number of cases which are considered appropriate circumstances --

HIS HONOUR: Your position is that the Common Law was in your favour. The Evidence Act doesn't change.

MOLOMBY: Exactly, on this type of evidence. Well, your Honour, that is all I want to say about that point.

Now what this all leads to your Honour is that I was perfectly entitled to approach the trial in the way that I did, no objection or application of any sort having been made about this sort of evidence. The Common Law being as it was, the Evidence Act being as it is, the particulars having been given, the notice that they had of other things we had to say, even if they had not had the notice, the trial is running and this occurred very early in the trial we are talking about, I think it was the second day. We are now approaching the end of the second week and I was, I say, entirely and perfectly within proper limits in running the case as I saw fit and addressing exactly as I did and apprehending all the way that I was entitled to do that as I did.

It is now far too late for anything to be done about that, whatever the basis of grievance or misunderstanding might be. The evidence is closed. One defendant has fully addressed. I'm substantially into my address and this is raised for the first time. Whatever the merits, it is just too late. May it please the Court, those are my submissions." (emphasis added) 7 The first defendant's submissions commenced at transcript page 724 and relevantly continued in these terms: "SIBTAIN: Your Honour, from 58 through to 64 an argument or discussion took place as to prejudicial evidence as to damages that the jury might hear and, in particular, your Honour will see from line 16 and 58 we moved away from the topic of Native Title and the topic of identification on the one hand and distress which is the damages issue.

Your Honour might recall that I suggested a cumbersome but protective position that might involve the jury going out from time to time and it was thought, of course by all of us, that that was unworkable. Your Honour, accepting though at page 59 line 27, the very real concern that the jury would hear prejudicial damages evidence and deal with it inadmissibly.

At 61 your Honour records that it would be dealt with at this point that that is at a point when the evidence is to be categorised in a particular way. My friend says it is too late but frankly it was relevant evidence as to damages. So the point at which my friend Mr Molomby then uses it as identification evidence without notice and impermissibly in my submission that is the first point in time which it could properly be raised.

Then one has your Honour's concern as to, at line 35 page 61, the second hand reproduction of opinion given by witnesses out of Court. Mr Molomby appears to accept that it would be inadmissible to prove the truth of its content of what is asserted -- ***** 'Inadmissible to prove the truth of its content of what is asserted, but admissible in terms of its effect on the Plaintiff because it's something she experienced.'

'It's not admissible in the sense of, as I say, to prove anything asserted within it. But I'm not relying on it for that.'

That, in my submission, could only be a reference to identification evidence and he is only relying on it with respect to damages .

Over the page, at page 62 line 35, after further discussion on the issue Mr Molomby says:

'Because one component of a plaintiff's distress is nearly always what other people thinking'

I presume: 'other people are thinking as a result of reading this article.' And that is exactly the character of the evidence that my friend now wishes to use as identification evidence.

HIS HONOUR: No, but just looking at the next question, I refer to motivation .

HIS HONOUR: As if to, perhaps incorrectly but as if to draw back attention to the proposition that we were talking about Mr Brown's motivation in writing the article .

SIBTAIN: I accept that is a reference that your Honour is referring back to but it doesn't detract in my submission from the fact that we had moved to a much broader category of evidence and we were talking in general terms which is made clear by the earlier reference also as evidence that would go between identification on the one hand and damages on the other .

Clearly that further step was something that your Honour ruled utterly inadmissible. That was something that in the end your Honour rejected and excluded it but it doesn't detract in my submission from where we get to because your Honour says at the bottom of 62:

'There needs to be some form of audit of this type of material.'

And then when one gets down to the bottom of 63 Mr Molomby says at line 49 about evidence -

'As her subjective state, if other people tend to say things that she is thinking already, that is going to have an effect on her.'

That is the evidence that says: I read it. It's about you. It might also be it's all about Native Title but it's the same kind of evidence. If that ultimate conclusion that she has come to is something that bears adversely on her, that is part of her distress. Your Honour says:

'I am not troubled by the proposition that she can give evidence that other people read the article and said 'I didn't like what was said about you, that is a bit rough'

I'm sorry. That she said, you know, for example exactly the kind of evidence we are talking about. 'They're blaming you. It's all about you.'

And then your Honour goes back, I think, to the question that your Honour ultimate rejects but it is in the context of allowing the kind of evidence which is discussed at the top of page 64:

'evidence that other people read the article and said I didn't like what was said about you, that is a bit rough, that's gone too far, it's awful - '

You know: 'It's blaming you. It's about you.' That's the category of evidence we are talking about at the top of 64.

In my submission it is in those circumstances, when one reads all of the discussion between 54 and 64 quite clear that the kind of evidence that Mr Molomby is now using as identification evidence, was the evidence he put forward as evidence on damages and in those circumstances he ought not now, the evidence having closed, to give it a different character. If your Honour pleases ." (emphasis added) 8 The third defendant drew attention to the common law exceptions concerning hearsay evidence and identification. These submissions are to be found in what follows: "DAWSON: If your Honour pleases. Your Honour could I raise something about the matters that I put to your Honour yesterday afternoon. If your Honour wasn't proposing to go to this, I am sorry for jumping ahead, but the argument we were having about the use of the evidence that the defendants characterise as third defendant's evidence and in which Mr Molomby put to the jury as identification evidence yesterday. On that topic may I tell your Honour that it is in fact a recognised extension at Common Law at least prior to the Evidence Act that hearsay evidence as to identification may be adduced.

The relevant authorities, I will just give your Honour the references, I don't think we need to take your Honour to them but if I may give them to your Honour for your Honour reference and for the record, Andrews v John Fairfax & Sons [1980] 2 NSWLR page 225. The relevant passage is at pages 234 paragraph 17. That paragraph refers to two earlier decisions of the Court of Appeal, the first of which is Steel v Mirror Newspapers which [1974] 2 NSWLR page 348 and the relevant passage your Honour is at 369 at about point E on the page and following.

MOLOMBY: Sorry your Honour, I don't want to interrupt discourteously but I am aware of this exact point. I can hand your Honour an authority that lists all of those others in it. It is Mirror Newspaper v Fitzpatrick, page 656. It will be much quicker. I hand that page over.

DAWSON: The short point your Honour is that in the cases in this Court it is a recognised exception to the hearsay rule, that is that evidence of that kind can be admissible for a hearsay purpose . The difficulty that the defendants raised yesterday though your Honour persists for this reason. The Evidence Act, as your Honour knows is still sometimes referred to as the new Evidence Act despite its age of about 15 years, but the Evidence Act which postdates the cases your Honour, sets up a statutory rule against the admission of hearsay evidence and then provides, as your Honour knows, for a series of exceptions to that statutory rule. There is no recognised statutory exception of the kind that the cases in this area held to exist. I don't propose to put to your Honour a submission that the Evidence Act does away with that exception because it does not provide specifically for that kind of exception , but what I do say is this, the Evidence Act requires, and this is a point I made yesterday, the Evidence Act requires that notice be given if hearsay evidence is to be adduced for a hearsay purpose and s 67 one would have though ought to have been complied with in any case.

Now, it may be said against that proposition something that was said yesterday, namely that this information was provided by way of 'particulars', that is by way of answers to interrogatories. The problem with that is, your Honour, that those, if they are to be treated as particulars and there are certainly cases that say answers to interrogatories can stand in substance as particulars because they do obviously enough put another party on notice as to what case the other side answering the interrogatories is going to bring, but if they are to be treated in that way, they are particulars of damages that is the matters to be relied upon as affecting the plaintiff's hurt to feelings and that is why they are called, as I suggested yesterday, Assaf v Skalkos interrogatories which is what that decision was all about.

The other consideration your Honour is that in the plaintiff's particulars of identification in the latest version of the statement of claim, only two witnesses are particularised. One is Miss Fairweather and the other is Miss Laurie.

DAWSON: In the statement of claim. There is an obligation on a plaintiff, your Honour, first of all, to be able to particularise at least one person who identified the plaintiff where identification is in issue, so as to complete the three essential elements of the plaintiff's cause of action and defamation, namely publication, identification and defamatory meaning.

So, that's the purpose of the particulars at least at the outset but the second purpose of the particulars is to put the defendant to the defamation case on notice as to who it is that will be relied upon by the plaintiff as having identified him or her so that, to use the well worn phrase, the defendant knows the case he surely has to meet.

One of the enquiries that might be made or a series of enquiries that might be made, having been told who the plaintiff relied upon on the question of identification would be, for example, contacting the relevant people or making enquiries about them or their connection to the plaintiff. If that evidence --

HIS HONOUR: There is a slight tension between the need or the expectation that you have notice on the one hand and the Common Law position that hearsay evidence is admissible on the question of identification, isn't there?

DAWSON: No there's not for this reason your Honour. The particulars of identification also stand as particulars of publication where a publication is sued on where the plaintiff isn't named and the reason it is important in a case like that for the plaintiff to give particulars of identification/publication is because the defendant can't plead defences without knowing the circle of people to whom the plaintiff alleges the publication was made. For example your Honour a defence of Common Law qualified privilege which depends, as your Honour knows, on the reciprocity of duty and interest, cannot rationally be pleaded if the defendant is not on notice as to whom the plaintiff says --

DAWSON: Quite, because some might be in the position of reciprocal duty and interest with the defendant, others might not be. So your Honour for those reasons everything that was said about prejudice yesterday still stands. One takes, in addition to that point, what my learned friend Ms Sibtain spent some time addressing your Honour about yesterday, namely that when this matter came up, albeit it starts from a specific question about the question of malice of the first defendant, the discussion did then range into a much more general topic about the use of the evidence generally and my friend Mr Molomby made it quite plain in that discussion that he was confining the evidence to the question of damages . That led to what may become a very problematic result and that is that neither Ms Sibtain nor I cross-examined about that evidence, the general rule of course being that you don't touch hurt to feelings evidence much because it just makes it worse unless there is a reason to go there. If it was going to be adduced on the question of identification, there was a very good reason to go there and neither of us did. Your Honour they are the additional matters I wanted to raise." (emphasis added) 9 The first defendant endorsed that submission and added the following: "SIBTAIN: I adopt my friend's submissions only to add that the argument, when I raised the objection when it first arose did very particularly then address the topic as to what would go to damages, what would go to identification and at that point I think it was made very clear in my submission that I would not be required to object to each question but rather my objection was noted to the extent to which we strayed into evidence from what people said to the plaintiff having read the article and how she felt about that and that it would be sorted out at the end. Having thought that my position was protected of course I did nothing further by way of objection." Consideration 10 In my opinion, the way in which the defendants have sought to characterise the debate does not withstand scrutiny in light of the discussion between pages 54 and 64 of the transcript as earlier set forth. In particular, it is not correct to say, as the first defendant submitted, that when Mr Molomby said, "[i]t's not admissible in the sense of, as I say, to prove anything asserted within it … [b]ut I'm not relying on it for that", that what he said could only have been a reference to identification evidence or that Mr Molomby was only relying on it with respect to damages. The whole context of the discussion is to a completely different effect. I also do not accept the first defendant's submission in this same respect that the discussion "had moved to a much broader category of evidence" or that "we were talking in general terms" or that such was "made clear by the earlier reference also as evidence that would go between identification on the one hand and damages on the other". It is also not correct to say, as the third defendant submitted, that "Mr Molomby made it quite plain in that discussion that he was confining the evidence to the question of damages". That is not what he did. 11 The earlier arguments did not address the question of what evidence would go only to damages, and what evidence would go only to identification, at all. No such distinction was in play at any time. Indeed, the only reference to identification that appears anywhere in the pages of the transcript in question was the short extract referred to by Ms Sibtain in which she quoted what Mr Molomby had said at transcript page 58 line 16. Mr Molomby's response, as appears above and which bears repeating, was to say: "I wasn't representing any particular evidence at all into one category or other. I was saying there were these two general categories and that could complicate splitting the hearing. There is no representation about any particular evidence falling into any category." 12 I consider that Mr Molomby accurately characterised what he said and what the discussion was about. That involved the question of how best to proceed in circumstances where the jury did not need the benefit of some of the evidence that would be given. The fact that the debate became diverted to a consideration of the practical issues of how best to conduct the trial should not be permitted to mask the fact that the dispute then fomenting was one that arose from the need to consider the defendants' ultimately successful objection to evidence of what Mr Monaghan, or any others in the same category, may have said to the plaintiff with respect to their perceived or assumed understanding of Mr Brown's motivation for writing the article. No discussion of the prospect of that, or indeed any other, evidence going to the issue of identification arose and no foreshadowed objection to the possible giving of such evidence by the plaintiff was raised. 13 There may be good reasons for this. Mr Dawson referred to some of them in the passages quoted earlier. In particular, he referred to the common law rule concerning hearsay evidence of identification. That rule does not appear to have been affected by any provision of the Evidence Act 1995 and none that I was referred to during argument would appear to have limited or replaced it. In particular, I am not satisfied that the notice provisions of the Act, which apply to evidence that is sought to be introduced by the s 63 and s 67 pathways, have somehow by implication become engrafted upon evidence to which the common law rule relates. There are certainly no specific provisions that deal with it and none that supports any argument that has been suggested might apply by analogy. 14 In Mirror Newspapers Ltd v Fitzpatrick [1984] 1 NSWLR 643 at 656, Samuels JA considered the rule in these terms: "There is authority for the admissibility of evidence of declarations made out of court for the purpose of identification. In Cook v Ward (1830) 6 Bing 409; 130 ER 1338, evidence was held admissible that the plaintiff had been publicly ridiculed after publication of the libel. Tindal CJ (at 415; 1340) said that the evidence was properly admitted 'as identifying the subject of the libel'; and Park J (at 416; 1341) observed that the evidence had been admitted 'to identify the Plaintiff as the person to whom the ridicule of the libel attached'. In the earlier case of Du Bost v Beresford (1810) 2 Camp 511; 170 ER 1235, the plaintiff sued the defendant for the value of a painting entitled 'Beauty & the Beast' which the defendant had cut in pieces on the ground that it was a scandalous libel upon his sister and her husband. In the course of the trial Lord Ellenborough held that the declarations of the spectators, while they looked at the picture in the exhibition room, were evidence to show that the figures portrayed were meant to represent the defendant's sister and brother-in-law. In J ozwiak v Sadek [1954] 1 WLR 275; [1954] 1 All ER 3, Ormerod J, relying upon Cook and Du Bost, admitted evidence of statements made out of court and of anonymous telephone calls to the plaintiff, to identify the plaintiff with the libel; and it appears that evidence of declarations out of court were admitted in aid of the innuendo in Hough v London Express Newspaper Ltd [1940] 2 KB 507.

There are cases in this Court to the same effect, upon which the respondent relied, ie Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348; World Hosts Pty Ltd v Mirror Newspapers Ltd [1978] 1 NSWLR 189 and Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225. In Steele (at 369, 370) Hutley JA (in a judgment with which upon this point I expressed my general agreement) held that the evidence of witnesses that other persons in the country town where the plaintiff lived had declared that they believed the defamatory article to refer to the plaintiff (whom it did not name) was admissible to establish the extent of the identification of the plaintiff with the person whom the article described. It is possible that this ruling was strictly obiter, since there was direct evidence of identification not under challenge which was sufficient to carry the case to the jury. However this may be, it was applied by the court (Moffitt P, Hutley and Glass JJA) in World Hosts, where it was held that evidence of statements made out of court was admissible to establish the extent of the identification of the plaintiff as the subject of the article: see at 202, 207 and 209. In Andrews the court (Hutley, Glass and Mahoney JJA) applied Steele and World Hosts and admitted hearsay evidence of identification: see at 234, 248 and 264.

The evidence now in question does not concern identification, and lacking that independent basis for admission (see per Hutley JA in Andrews (at 234)) is not distinctly authorized by the cases to which I have referred (per Glass JA in Andrews (at 248))…" 15 The plaintiff's ability to rely upon the evidence in question for proof of identification would appear to be authorised by this passage and the cases that it refers to as support. Whether or not the defendants adverted to this rule at the time the original debate took place, or even when the plaintiff gave the evidence that is the subject of Mr Molomby's submission to the jury, is of no particular importance. The fact that it was not raised either during the discussion or when the evidence was ultimately given rather supports both the proposition, and my conclusion, that the discussion was not concerned with identification evidence at all, as well as the proposition that this line of authority would have disposed of any objection that the defendants may have raised to the plaintiff's evidence of conversations that she had with the twelve people that she referred to if objections to that evidence had been taken at that time. 16 I also raised for the consideration of counsel some of the issues referred to at [1645], [1650], [1655], [1660] and [1665] in the Eighth Australian Edition of Cross on Evidence (2010) LexisNexis Butterworths. These matters were not, however, made the subject of extensive submissions or argument and I have not considered it necessary to have regard to them in forming the views I have formed. Conclusion 17 In my opinion, Mr Molomby's submission to the jury in his final address, in the course of which he sought to identify the twelve people that had been referred to by the plaintiff as evidence that identified her as a person referred to in the article, was unexceptionable. It was for these reasons that I indicated at the time that I would neither require Mr Molomby to make any further submission to the jury to correct what he had said to them, nor would I direct them myself concerning any perceived complaint about any part of the submissions that he made.

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