Molan v Dailymail.com Australia Pty Ltd

• Jurisdiction: Australia Federal only
• Court: Federal Court
• Judgment Date: 30 August 2022
• Neutral Citation: [2022] FCA 1004
• Date: 30 August 2022

FEDERAL COURT OF AUSTRALIA

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

File number:	NSD 1023 of 2020
Judgment of:	BROMWICH J
Date of judgment:	30 August 2022
Catchwords:	DEFAMATION – where the applicant is a prominent sports and media personality – where there are multiple online publications – whether defamatory imputations alleged were conveyed – where respondent denies all of the pleaded imputations were conveyed – held: five out of eight imputations were conveyed – first five imputations from the online article were conveyed; 6th imputation from the online article that the applicant is a racist was not conveyed; 7th and 8th imputations arising from two tweets not conveyed ; DEFAMATION – defences advanced under Defamation Act 2005 (NSW) of partial justification (substantial truth) (s 25); contextual truth (s 26) and honest opinion (s 31) – held: the 2nd and 5th imputations were not proven to be substantially true – seven out of eight contextual truth imputations were not conveyed: 2nd contextual truth imputation “engaged in conduct that was likely to offend persons because of their race or ethnic origin” was conveyed – no basis for defence of honest opinion ; DAMAGES – where applicant sought a substantial award of damages, including aggravated damages – whether applicant suffered reputational harm – damages awarded in the sum of $150,000 plus interest
Legislation:	Racial Discrimination Act 1975 (Cth) s 18C (1) Defamation Act 1974 (NSW) (repealed) Defamation Act 2005 (NSW) ss 4, 25, 26, 31, 31(5), 31(5)(a), 34, 35, 39
Cases cited:	Ali v Nationwide News Pty Ltd [2008] NSWCA 183 Australian Broadcasting Corporation v Chau Chak Wing [2019] FCAFC 125; 271 FCR 632 Bickel v John Fairfax & Sons Ltd [1981] 2 NSWLR 474 Channel Seven Adelaide Pty Ltd v Manock [2007] HCA 60; 232 CLR 245 Domican v Pan Macmillan [2019] FCA 1384 Fairfax Digital Australia & New Zealand Pty Ltd v Kazal [2018] NSWCA 77; 97 NSWLR 547 Fairfax Media Publications Pty Ltd v Zeccola [2015] NSWCA 329; 91 NSWLR 341 Feldman v Polaris Media Pty Ltd (as trustee of Polaris Media Trust (t/as Australian Jewish News)) (No 2) [2018] NSWSC 1035 Harbour Radio v Ahmed [2015] NSWCA 290; 90 NSWLR 290 Harbour Radio Pty Ltd v Trad [2012] HCA 31; 247 CLR 31 Hayson v The Age Company Pty Ltd (No 2) [2020] FCA 361 John Fairfax Publications Pty Ltd v O’Shane [2005] NSWCA 164; (2005) Aust Torts Reports 81-789 JWR Productions Australia Pty Ltd v Duncan-Watt (No 2) [2020] FCA 236; 377 ALR 467 Lewis v Daily Telegraph [1964] AC 234 Massoud v Nationwide News Pty Ltd; Massoud v Fox Sports Australia Pty Ltd [2022] NSWCA 150 Parmiter v Coupland (1840) 151 ER 340 Reader’s Digest Services Pty Ltd v Lamb [1982] HCA 4; 150 CLR 500 Rush v Nationwide News Pty Ltd (No 7) [2019] FCA 496 Sims v Wran [1984] 1 NSWLR 317 Slim v Daily Telegraph Ltd [1968] 2 QB 157 Stead v Fairfax Media Publications Pty Ltd [2021] FCA 15; 387 ALR 123 Taylor v Nationwide News Pty Limited (No 2) [2022] FCA 149 Ten Group Pty Ltd v Cornes [2012] SASCFC 99; 114 SASR 46 Trad v Harbour Radio Pty Ltd [2009] NSWSC 750 Trkulja v Google LLC [2018] HCA 25; 263 CLR 149
Division:	General Division
Registry:	New South Wales
National Practice Area:	Other Federal Jurisdiction
Number of paragraphs:	251
Date of last submissions:	30 September 2021
Date of hearing:	30 August 2021 – 2 September 2021; 30 September 2021
Counsel for the Applicant:	K Smark SC, J McKenzie
Solicitor for the Applicant:	Kennedys
Counsel for the Respondent:	B McClintock SC, M Richardson
Solicitor for the Respondent:	Mark O’Brien Legal

ORDERS

		NSD 1023 of 2020
BETWEEN:	ERIN MOLAN Applicant
AND:	DAILYMAIL.COM AUSTRALIA PTY LTD ACN 166 192 465 Respondent

order made by:	BROMWICH J
DATE OF ORDER:	30 August 2022

THE COURT ORDERS THAT:

1. Judgment be entered for the applicant in respect of the first five imputations arising from the online article published by the respondent on 5 June 2020.

2. The respondent pay the applicant $150,000 plus interest at half the pre-judgment rate of interest as at the time of judgment, within 28 days.

3. The applicant have leave to press the application for an injunction contained in the originating application dated 14 September 2020 by way of an email and draft agreed or competing procedural orders sent to the associate to Justice Bromwich within 14 days, or such further time as may be allowed.

4. The parties have leave to make any application to vary these orders, or for costs, by way of an email and draft agreed or competing procedural and any other orders sent to the associate to Justice Bromwich within 14 days, or such further time as may be allowed.

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

REASONS FOR JUDGMENT

BROMWICH J:

INTRODUCTION

1 The applicant, Ms Erin Molan, is a seasoned media personality with a long working history as a sports presenter and commentator. Ms Molan sues the publisher of an online newspaper, Dailymail.com Australia Pty Ltd, in relation to an article published on 5 June 2020 (5 June online article). That article was based upon a very small segment of what she said as a co-host of the Continuous Call Team program on Sydney radio station 2GB (Radio 2GB) on 30 May 2020, during the course of the usual lengthy Saturday afternoon broadcast.

2 In addition to the 5 June online article, Dailymail.com also published two tweets about the same short segment of the same radio program. Those tweets were published on 5 June 2020 (5 June tweet) and the next day, 6 June 2020 (6 June tweet). Ms Molan also sues upon those tweets on the basis of them repeating the substance of one of the imputations said to arise from the 5 June online article.

3 The Continuous Call Team program involves commentary on and about the National Rugby League (NRL) competition, its participants, and those directly or indirectly associated with that competition. The program also routinely strays into topics that have nothing to do with rugby league, such as cooking, movies, and general gossip. Benignly described, it is a free-wheeling entertainment program that includes banter and laughter on the part of the hosts. It is characterised by Ms Molan’s senior counsel as light-hearted, irreverent and silly, with an absence of both malice and seriousness. Dailymail.com casts the program in a less benign way as calculated to appeal in several respects to base aspects of its audience’s prejudices, including racism. Unfortunately, there may be overlap between what some members of the public might find entertaining, and statements or behaviours which might be racist or otherwise offensive, which means that these characterisations may co-exist at least some of the time.

4 The particular version of the Continuous Call Team program in issue was broadcast live on Radio 2GB on 30 May 2020 over a period of some four hours. A segment of that program of some 14 seconds duration gave rise to the three publications that are sued upon.

5 Dailymail.com denies that any of the pleaded imputations were conveyed. In the alternative, it asserts that none of them are defamatory, and in the further alternative seeks to justify them by defences of truth and contextual truth as to all of the publications (but not all of the imputations), and by honest opinion as to the 5 June online article and the 6 June tweet. The defence of honest opinion is the subject of a defeasance reply claim by Ms Molan. Only the imputations that are sustained require a...