Federal Court of Australia

Dailymail.com Australia Pty Ltd v Molan [2023] FCAFC 26

Appeal from:

Molan v Dailymail.com Australia Pty Ltd [2022] FCA 1004

File number(s):

NSD 767 of 2022

Judgment of:

RARES, KATZMANN AND LEE JJ

Date of judgment:

3 March 2023

Catchwords:

APPEAL AND NEW TRIAL – proposed consent orders allowing appeal and new trial subject to conditions pursuant to Federal Court of Australia 1976 (Cth) s 30 where new trial proposed to be subject to parties’ admissions and condition that evidence at former trial stand as the only evidence in retrial – whether Court satisfied as to appealable error – held: consent orders made.

Legislation:

Federal Court of Australia Act 1976 (Cth) ss 30 and 37M

Defamation Act 2005 (NSW) s 26

Cases cited:

Bradken Ltd v Norcast S.ár.L (2013) 219 FCR 101

Telstra Corporation Ltd v Minister for Broadband, Communications and the Digital Economy (2008) 166 FCR 64

Division:

General Division

Registry:

New South Wales

National Practice Area:

Other Federal Jurisdiction

Number of paragraphs:

6

Date of hearing:

2–3 March 2023

Counsel for the appellant:

Mr M Richardson SC and Mr D Helvadjian

Solicitor for the appellant:

Mark O'Brien Legal

Counsel for the respondent:

Mr K Smark SC and Ms J McKenzie

Solicitor for the respondent:

Kennedys (Australasia) Partnership

ORDERS

NSD 767 of 2022

BETWEEN:

DAILYMAIL.COM AUSTRALIA PTY LTD

Appellant

AND:

ERIN MOLAN

Respondent

order made by:

RARES, KATZMANN AND LEE JJ

DATE OF ORDER:

3 MARCH 2023

BY CONSENT, THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    Orders 1 and 2 made on 30 August 2022 and orders 1 and 2 made on 12 September 2022 be set aside.

3.    There be a new trial of the proceeding before the primary judge subject to:

(a)    the parties’ admissions made today that:

(i)    imputation (f) was not carried;

(ii)    none of the imputations alleged in respect of the second and third matters complained of was carried;

(iii)    the defence of honest opinion cannot be maintained; and

(iv)    contextual imputations (i) and (ii) were carried by the first matter complained of and differ in substance from imputations (a)–(e);

(b)    the testimony of all witnesses examined at the former trial and all other evidence admitted at that trial stand as the only evidence in the retrial, unless the primary judge otherwise orders.

4.    The whole of the proceeding below and the question of costs of the appeal be referred for mediation to a Registrar of the Court, the mediation to take place by no later than 31 March 2023.

5.    Costs of the appeal be otherwise reserved to be dealt with, if necessary, following the conclusion of the mediation.

6.    There be liberty to apply by notice to the Chambers of Justice Lee.

7.    Pursuant to s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) a certificate be granted to each of the appellant and the respondent because, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to each party in respect of such part as the Attorney-General considers appropriate in relation to the new trial.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(Revised from the transcript)

THE COURT:

1    During the course of the argument of the appeal the respondent, Erin Molan, accepted the argument of the appellant, Dailymail.com Australia Pty Ltd, that the primary judge erred by failing to determine all of the issues raised by its defence of contextual truth under s 26 of the Defamation Act 2005 (NSW) and to consider all of the evidence relating both to that defence and to the issue of damages.

2    Having carefully considered the primary judge’s reasons for judgment and the admissions of the parties, and having regard to the principles identified in Telstra Corporation Ltd v Minister for Broadband, Communications and the Digital Economy (2008) 166 FCR 64 at 77-78 [51]-[54] per French, Weinberg and Greenwood JJ and Bradken Ltd v Norcast S.ár.L (2013) 219 FCR 101 at 104-105 [20]-[22] per Allsop CJ, Mansfield and Jacobson JJ, we are satisfied that it is not necessary to descend to the merits of the appeal. That is because we are satisfied that the error identified above is both appealable and provides a sufficient basis to discern the existence of error by his Honour, so as to enliven the Court’s power to allow the appeal by consent and make consent orders setting aside the dispositive orders made by his Honour on 30 August 2022 and 12 September 2022, on the basis that the parties propose.

3    Accordingly, there will be a new trial of the proceeding before the primary judge subject to the following admissions that the parties have made, so that, pursuant to the Court’s power under s 30 of the Federal Court of Australia Act 1976 (Cth), his Honour can conduct the new trial in accordance with the overarching purpose in s 37M. Those admissions are that first, imputation (f) was not carried, secondly, none of the imputations alleged in respect of the second and third matters was carried, thirdly, the defence of honest opinion cannot be maintained and, fourthly, contextual imputations (i) and (ii) were carried by the first matter complained of and differ in substance from imputations (a) to (e), inclusive.

4    In our opinion, it is also appropriate to order, under s 30(2) of the Federal Court of Australia Act, that the new trial proceed subject to the agreed condition that the testimony of all witnesses examined at the former trial and all other evidence admitted at that trial stand as the only evidence in the retrial unless the primary judge otherwise orders.

5    In light of the very reasonable way in which the parties approached the argument of the appeal and addressed the issue leading to the consent orders, it is apposite that the Court refer them to mediation before the Registrar, with that to occur before the end of this month so as, if possible, to avoid any further prolongation of this litigation, given the situation that now applies.

6    The Court congratulates the parties for approaching the resolution of the appeal in this very sensible way.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Rares, Katzmann and Lee.

Associate:

Dated:    6 March 2023