Mick Molloy still not funny: Cornes v The Ten Group Pty Ltd & Ors [2012] SASFC 99

With the 2012 AFL Grand Final only a few days away, and the writer’s team, Hawthorn, playing off for the title against the Sydney Swans, it is about time this blog found a way to weave the mighty Hawks into the discussion.

Stewart Dew in his Hawthorn days, against the Sydney Swans

In 2008, Hawthorn famously won the Grand Final as a rank underdog, led by an unlikely hero, a man called Stewart Dew. Earlier that year, he was on an AFL show, Before the Game, when Mick Molloy, a well-known Melbourne comedian, referred to Nicole Cornes, the wife of a famous Adelaide football identity, Graham Cornes, and said to Dew “And apparently you slept with her too.”

This was not true. Molloy had made it up. It was meant to be a joke. It became a very costly attempt at a joke. Nicole Cornes was not laughing. At least until her defamation trial ended in the South Australian Supreme Court in 2011 and she won $85,000 plus indemnity costs . Even after that emphatic win she may not have been laughing, but nevertheless, winners ought to be grinners.

Yet any grin she may have had would have been shortly removed. Channel Ten and Molloy appealed.

Ultimately, the appeal went to three judges of the Full Court of the South Australian Full Court to decide: Was it a joke or not? Would the ordinary reasonable viewer have taken it to be a joke or would he/she have believed it to be true?

Chief Justice Kourakis understood the comment as a joke [6], but decided that this was not the understanding of the ordinary reasonable viewer. In reaching that decision, the Chief Justice wrote a short novel about the “Evolution of the Ordinary Man” dating back to the 16th century, right up to today, when presumably man is even more ordinary.

The Chief also concluded that the Court was bound by the single meaning rule [47], and that Molloy’s joke fell very flat [60]. A lesson in comedy followed:

In comedy timing is critical. The effect of Molloy’s mistiming of his

Before the Game Crew

remark is evidenced by the reaction of Molloy’s fellow presenters. In my view, the trial judge correctly detected what he described as `the distinct change of mood that swept in when Molloy uttered the fateful words. The commentator Maher, and Dew himself, very quickly and strongly denied the literal meaning of the words. Evidence of the subjective understanding of a person who heard or read the subject words is not generally admissible. However, the reaction of Maher and Dew is relevant not because they appeared to understand Molloy’s remarks in a defamatory sense but because their reaction exposes the weakness of the comedic context on which the defendants so heavily rely to transform the natural meaning of Molloy’s words into their opposite”.

 ie. It was not funny. Appeal dismissed.

The remaining Judges were to agree that the appeal would be dismissed, and in the process, Justice Gray addressed Channel Ten’s arguments that the trial judge had been “overly analytical”, was “a strict constructionist” and did not take account of the context of the statement, ie. Molloy is funny. They argued that the trial judge overlooked that the ordinary reasonable viewer would have been expecting regular attempts at humour by Molloy, and his interjections were aimed at attempting to get a laugh, rather than making any serious point [99]. They argued that the ordinary reasonable viewer would not have taken the statement seriously and would not have treated it as a statement of fact.

Justice Gray disagreed. At [108]:

 “I consider the words `and apparently you slept with her too; were not jocular or comedic in nature. These words were not humorous; they disparaged the plaintiff’s character and appeared to have no relevance to Australian Rules Football.”

 Further, the mere presence of the denials by Maher and Dew would not alleviate the defamatory nature of the statement [114]. Appeal dismissed.

Lastly, Justice Blue focused on the question where one meaning of a statement was literal and defamatory and the alternative meaning was in jest and not defamatory. Did the single meaning rule then apply? What is the trier of fact to do when the meanings are ambiguous? At [195]:

The Rubin Vase

How would one determine the single meaning of the Rubin vase? Is it a vase? Is it two women in silhouette? If hypothetically the two women were depicted in a manner which was defamatory of someone, would that be defamation? How would one determine the single meaning of the Necker cube? Is it a cube facing down to the left? Is it a cube facing up to the right?

 More and more, this case was looking like an Escher puzzle.

Conclusion? Single meaning rule applied. Trial judge was right. Appeal dismissed. Not funny.

And what of Stewart Dew? Well he retired from AFL football at the end of 2009, a hero to Hawthorn supporters around the country. This weekend, Hawthorn will play for another premiership in a Grand Final decider against the Sydney Swans… where Dew is now an assistant coach.

An Escher puzzle indeed.

Escher

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