Brien v Mrad [2019] NSWDC 764

Brien v Mrad [2019] NSWDC 764

The evidence establishes that the defendant did accuse the plaintiff generally of offering discounts or bribes for proxy votes at the AGM, but not in the precise terms alleged, and without naming the specific individual as pleaded. The variance between the pleaded words and the words proven to have been published is material and amounts to fatal variance, given Australian authority permitting proof of the 'substance' but not where the identity or specifics differ so as to impact defences or particulars. Judgment must therefore be entered for the defendant.

Parties
Plaintiff: Martin Brien; Defendant: Hussein Mrad (aka Sam Mrad)
Jurisdiction
Australia
Judgment Date
19 December 2019
Procedural Posture
Civil / Principal Judgment
Outcome
Judgment for the defendant
Legal Topics
Slander, Publication, Proof of Spoken Words, Variance Between Pleaded and Proved Words
Tort Defamation Slander Publication Proof of Spoken Words Variance Between Pleaded and Proved Words

Case Brief

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Parties

Martin Brien

Plaintiff

Hussein Mrad (aka Sam Mrad)

Defendant

Procedural Posture

Civil / Principal Judgment

Legal Issues

  1. 1 Whether the words of the matter complained of were spoken by the defendant at the AGM of the North Shore Karting Club
  2. 2 Whether the words published were of and concerning the plaintiff
  3. 3 Whether the words established to be spoken materially alter or qualify the sense of those set out in the particulars of claim

Ratio Decidendi

The evidence establishes that the defendant did accuse the plaintiff generally of offering discounts or bribes for proxy votes at the AGM, but not in the precise terms alleged, and without naming the specific individual as pleaded. The variance between the pleaded words and the words proven to have been published is material and amounts to fatal variance, given Australian authority permitting proof of the 'substance' but not where the identity or specifics differ so as to impact defences or particulars. Judgment must therefore be entered for the defendant.

Court Disposition

Judgment for the defendant

Orders

  • Judgment for the defendant.
  • Costs reserved, with liberty to apply.