Mundine v Brown (No 4) [2010] NSWSC 516

Mundine v Brown (No 4) [2010] NSWSC 516

There was insufficient evidence that the second defendant published the matter complained of. The newspaper did not name the second defendant as publisher, the APN Australian Publishing logo did not support a respectable inference that the second defendant was the publisher, and the annual reports provided only a tenuous basis for speculation or surmise. The McKenzie test for leaving the issue to the jury was not satisfied.

Jurisdiction
Australia
Judgment Date
20 May 2010
Procedural Posture
Defamation Proceedings / Procedural Ruling at the Close of Evidence on Whether the Issue of Publication by the Second Defendant Should Be Taken From the Jury
Outcome
Issue of publication by the second defendant of the matter complained of taken from the jury.
Legal Topics
['publication of Defamatory Matter' 'withdrawal of Issue From Jury for Lack of Evidence' 'prima Facie Evidence of Publisher' 'newspaper Publication']
['defamation' 'civil Procedure' 'evidence' 'juries'] ['publication of Defamatory Matter' 'withdrawal of Issue From Jury for Lack of Evidence' 'prima Facie Evidence of Publisher' 'newspaper Publication']

Case Brief

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Procedural Posture

Defamation Proceedings / Procedural Ruling at the Close of Evidence on Whether the Issue of Publication by the Second Defendant Should Be Taken From the Jury

Legal Issues

  1. 1 ['Whether there was evidence upon which the jury could reasonably find that the second defendant published the matter complained of.' 'Whether the presence of the APN Australian Publishing corporate logo in The Daily Examiner, together with ss 4 and 5 of the Printing and Newspapers Act 1973 and s 41 of the Defamation Act 2005, provided sufficient evidence that the second defendant was the publisher.' "Whether statements and mastheads in the second defendant's 2008 and 2009 annual reports provided more than speculation or surmise that the second defendant published the matter complained of."]

Ratio Decidendi

There was insufficient evidence that the second defendant published the matter complained of. The newspaper did not name the second defendant as publisher, the APN Australian Publishing logo did not support a respectable inference that the second defendant was the publisher, and the annual reports provided only a tenuous basis for speculation or surmise. The McKenzie test for leaving the issue to the jury was not satisfied.

Court Disposition

Issue of publication by the second defendant of the matter complained of taken from the jury.

Orders

  • ['The issue of publication of the matter complained of by the second defendant should be taken from the jury.' 'The Court will hear the parties in due course on any other or consequential orders.']