Key question in Erin Molan’s legal fight
Erin Molan "doesn't have a racist bone in her body", her lawyer has declared at a tense first hearing in the sports presenter's defamation case against the Daily Mail.
Her barrister Sandy Dawson SC said Molan was the target of an ongoing campaign run by the media outlet aimed at destroying her reputation.
But the Daily Mail's lawyer Paul Svilans rejected the allegation, saying the case was about one thing: Is Molan racist?
Molan alleges the Daily Mail painted her as a racist and an "arrogant white woman of privilege" in an article about her saying "hooka looka mooka hooka fooka" on 2GB's Continuous Call Team show.
She claims the Daily Mail made up a quote about her saying the comment was an "in-joke" and falsely reported that she refused to apologise.
The Daily Mail fired back with a 61-page truth defence laying out 24 conversations from the rugby league program it says prove Molan is racist.
Among the many quotes in the defence are Molan saying "You like raw feesh?" and "I wuv you wery long time" in accents.
Her co-hosts Darryl Brohman, Ray Hadley and others are also quoted in the defence.
The two sides will head to mediation, with a potential trial in September 2021 if the talks fail, the Federal Court heard on Friday morning.
Mr Dawson said the Daily Mail "generated a firestorm" over Molan's comments.
"There was not a word of disquiet … or a suggestion of racism or anything of that kind until the Daily Mail generated that hype," he said.
A Daily Mail journalist had messaged Molan asking "Are you going to apologise?" and published an article 31 minutes later stating she had refused to apologise, Mr Dawson said.
"What they did was, they set her up."
He added the media outlet had "no defence" for quoting Molan saying the comment was an "in-joke".
"The Daily Mail cannot defend it and doesn't defend it and obviously made it up," he said.
Mr Svilans said the Daily Mail would rely on its truth defence, first reported by NCA NewsWire, which includes examples of Molan putting on accents, mocking Pacific Islander names and singing In The Mighty Jungle on the Continuous Call Team.
"That's the key issue in the case," he said. "Is she racist because of that behaviour or not?"
Mr Dawson flagged there may be pre-trial applications to strike out parts of the defence.
"We want the issues at trial to be the real issues and not some distraction," he said.
The parties in the case hope in-person hearings in the Federal Court will have resumed by September next year, the court heard.
Justice Robert Bromwich said it was particularly difficult for lawyers, who lose the "dynamic" element of appearing in person.
Interactions at the bar table in defamation cases "seem a little more sparky than others", he said.
Mr Dawson said the Daily Mail's actions showed a need for the case to be heard as soon as possible.
"They are reporting on their - I hesitate to call it a newspaper - but their online publication, their own defence, which is just another way of spreading the falsity that has prompted this action," Mr Dawson said.
He accused the Daily Mail of resisting a hearing date prior to the Friday hearing, saying: "This change in position is curious."
But Mr Svilans insisted "embraced" setting down a date.
"I didn't realise it was so high on my friend's list of priorities," he said.
"Oh come on," Mr Dawson interjected.
"Don't interrupt me," Mr Svilans replied.
The matter is next in court on February 19.