Daily Mail appeals in Federal Court over defamation loss against Erin Molan

Erin Molan’s $150,000 defamation win over Daily Mail Australia could be sent back to the judge after a court heard not all the evidence was considered.

Journalist and commentator Erin Molan’s defamation win against Daily Mail Australia could be sent back to the original presiding judge after an appeals court questioned the final judgment.

The online publication is appealing against a Federal Court decision that found the publication defamed journalist and commentator Erin Molan by alleging she was racist in an online article.

Counsel for the Daily Mail Australia, Matthew Richardson SC, argued in the Federal Court of Appeal on Thursday that a person could engage in racist acts without identifying as a racist.

The Sky News host last year sued the online publisher for defamation, saying an article and two tweets by the news site falsely portrayed her as racist and an “arrogant woman of white privilege” because of her pronunciation of Polynesian names in a radio segment.

Justice Robert Bromwich ruled in favour of Molan in August.

Erin Molan won a defamation suit against Daily Mail Australia in 2022. Picture: NCA NewsWire / Damian Shaw

Daily Mail Australia was ordered to pay Molan $150,000 plus interest in damages.

Mr Richardson referenced examples taken from Molan’s involvement in on-air segments of the 2GB Continuous Call radio show mocking Polynesian NRL players’ names.

The Mail’s story was based on Molan saying “hooka looka mooka hooka fooka” on the show in May 2020.

Mr Richardson said the decision failed to determine whether the “characterisation of that behaviour” during those segments was racist.

The court was played several recordings of a broadcast on Thursday where Molan and her colleagues are heard referring to a story about father and son commentators Ray and Chris Warren struggling to pronounce Polynesian names.

He said some of the recordings tendered during the original trial were not regarded by Justice Bromwich in his final judgment.

Mr Richardson said on Thursday he accepted a retrial could be an alternative solution to moving forward with the appeal.

Mr Richardson said the continued and escalated mocking of the names during on-air segments in previous broadcasts were not taken into account in the original judgment.

“The overwhelming impression was that it’s a joke, not that there was an inability to pronounce names,” he said.

“How that can not be seen as mockery is beyond me … it’s obvious, her consistent encouragement all the way through (the audio recording).

“She’s not an awkward person being brought through, which I know sometimes happens with a woman in a group of older men.”

The Federal Court of Appeal is considering an appeal to overturn a defamation claim Erin Molan won against the Daily Mail last year. Picture: NCA NewsWire / Martin Ollman

Justice Steven Rares had suggested to the parties the court could send the judgment back to Justice Bromwich for remittance in an effort to avoid a retrial after hearing the “bulk of the evidence” wasn’t referred to in his findings.

“It just looks, just speaking for myself, to be hopeless trying to engage and understand the whole dynamic of the trial, the emotion of (Ms Molan), her demeanour (as) we haven’t got anything of that,” he said.

Justice Michael Lee said if remittance was to occur, the findings “don’t stand”, which could assist with the concern of the appeal.

“The orders go away and it’s open for you to reagitate it in front of the primary judge,” he said.

“It’s clear he’s got to deal with those things, his honour can decide if he hears from you or not.

“If he’s got to revisit the judgment, he’s got to revise the evidence he didn’t consider and come to findings after that.”

Mr Richardson said the mockery of the names doesn’t require an “intent to be cruel”.

“The humour always arrived from the long names,” he said.

“If it was just about a gibe about the Warrens, the story could have been told without seven or eight-syllable names.

“The story was always the same, the mockery of the Warrens was inconsistent with the mockery of the names.

“All those times she laughed at racist behaviour wondering out loud if it was wrong but then she kept giggling and kept encouraging”

Mr Richardson also argued Ms Molan had failed to apologise but instead, apologised on air for any offence the Daily Mail article might have caused.

The appeal hearing continues on Friday.

Originally published as Daily Mail appeals in Federal Court over defamation loss against Erin Molan