Sky News Australia and Daily Telegraph columnist Erin Molan will not receive a damages payout after settling her defamation case against the Daily Mail Australia over an article that portrayed her as “a racist.”
Molan was initially awarded $150,000 in damages last year after a partial win against the Mail in the Federal Court.
Justice Robert Bromwich found in August that a June 2020 article published in the Mail did not call Molan a racist as she alleged. However, Justice Bromwich found that it did defame her in other ways. He said Molan was entitled to a “substantial, but not excessive award of damages.”
The Mail, however, appealed the decision and the Full Court of the Federal Court ordered Bromwich to preside over a new trial on a narrower set of issues.
The Mail said that Bromwich “erred by failing to determine all of the issues raised” by one of its defences “and to consider all of the evidence relating both to that defence and to the issue of damages.”
Molan’s lawyers accepted the argument. The parties attended mediation in Sydney on Thursday ahead of a new trial.
“The Federal Court defamation proceedings brought by Ms Erin Molan against Daily Mail Australia have settled,” said the Mail‘s lawyers in a statement.
“Both parties are happy with the resolution of the proceedings, which involved each party paying their own costs, but did not involve Daily Mail Australia paying any damages to Ms Molan.”
Molan sued the Mail in 2020 over an article and two related tweets that reported remarks she had made during a broadcast on 2GB. She had referred to Pacific Islander NRL players by using the phrase “hooka, looka, mooka, hooka, fooka.”
Molan maintained that she was not mocking Polynesian names but instead had been referring to “a story that has been told multiple times on air” about broadcasters Ray Warren and Chris Warren attempting unsuccessfully to pronounce a Pacific Islander name. As a result, Molan said that the broadcasters, not the players, were the butt of the joke.
The Mail article was headlined: “Erin Molan refuses to apologise for her ‘hooka looka mooka’ jibe on live radio – as Pacific Islander women slam her for being ‘complicit in racism’ by mocking their names.”
However, Molan did apologise on air and Bromwich found last year “there had been no refusal to apologise by the time of the publication of the 5 June online article.”
Bromwich found that the article did not defame Molan as “a racist” but conveyed five other defamatory meanings, including that she was “such an arrogant woman of white privilege that she has refused not only to learn how to pronounce the names of Polynesian NRL players but also to apologise for deliberately mocking them on air.”
The Mail relied on a range of defences, including truth. Bromwich rejected that defence and said the tabloid “went too far … and made a number of material and defamatory errors.”
However, he found that a defence of contextual truth was available with limited respect to mitigating damages.
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