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

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.