A legal stoush between the Daily Mail and the Sky News broadcaster Erin Molan could go to a retrial after the federal court heard the original trial did not hear all evidence.
On Thursday, judges listened to clips of radio announcers mispronouncing various names that were not heard at the initial trial.
In 2020, Molan, who was then working for 2GB and Channel Nine, used the phrase “hooka looka mooka hooka fooka” in a discussion about the pronunciation of Polynesian names on radio station 2GB.
She had laughed during the discussion on a rugby league show and the Daily Mail accused her of mocking those names.
Molan sued the Daily Mail for defamation over an article and two tweets about that phrase, which she said portrayed her as a racist.
Molan said the phrase was a “running joke” on the show about doing “bad” accents. She said the joke stemmed from radio segments with sports commentators Ray and Chris Warren, who disagreed over the pronunciation of Manly forward Haumole Olakau’atu’s name.
In 2022, she was awarded a $150,000 payout after Justice Robert Bromwich found that, while Molan would have caused offence, she was “ignorant or thoughtless” in saying those words.
The Daily Mail is appealing against the outcome, and says the payout is “manifestly excessive”.
In the appeal, Matthew Richardson SC, on behalf of the Daily Mail, played several clips, and said Molan would have been at “some peril” of an adverse conclusion because of her behaviour in the prior broadcasts “including by faking several accents and arguably attributing characteristics or advancing stereotypes by reason of race in her own comments”.
He argued that no reasonable reader would think the phrase “hooka looka mooka hooka fooka” was “the result of an inability to pronounce the name or refusal to learn how to pronounce the name”. He pointed to a separate use of a “nine syllable name ending in ‘poo poo’”. “That was not necessary,” he said.
Molan had apologised after the Daily Mail article came out, and said she would “never, ever intentionally offend anybody or hurt anyone’s feelings”.
“If I’ve done that, I’m very very sorry for it,” Richardson said, reading out Molan’s words. “We love to have a laugh, we love to have fun, but in the current climate, you know, things are very different.”
Richardson said there was not “a scintilla of acknowledgment of wrongdoing or contrition or anything like that” in that apology.
The court heard other radio segments with various commentators imitating Japanese and Balinese women, Native Americans, Indian and Chinese people, and discussing the nature of political correctness.
Kieran Smark SC, for Molan, said she was “being attacked”, as opposed to subjected to a “detached commentary”.
The notion of “white privilege” was “powerfully laced through the article”, he said, and that a reasonable reader would think she was declining to “do the work” of understanding pronunciations because she was “an arrogant woman of white privilege”.
That was because of “purple passages”, which, if removed, would have led a reader to a different conclusion, Smark said.
That some of the recordings were not considered in the initial judgment means the case could be retried, the judges said before adjourning.
The appeal continues on Friday.
