Burke v Shiells (Ruling No 2)
[2018] VCC 1109
•25 July 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
DEFAMATION LIST
Case No. CI-16-02440
| GAVIN PATRICK BURKE | Plaintiff |
| v | |
| GRAEME FRANCIS SHIELLS | First Defendant |
| and | |
| SANDRA JOY SHIELLS | Second Defendant |
---
JUDGE: | HIS HONOUR JUDGE SMITH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 July 2018 | |
DATE OF RULING: | 25 July 2018 | |
CASE MAY BE CITED AS: | Burke v Shiells & Anor (Ruling No 2) | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1109 | |
RULING
---
Subject: DEFAMATION
Catchwords: Whether imputation pleaded or found to be permissible a variant of imputations pleaded are defamatory of the plaintiff
Cases Cited:Radio 2UE Sydney Pty Ltd v Chesterton [2009] 238 CLR 460; Rubber Improvement Ltd v Daily Telegraph Ltd [1964] AC 234; Coleman v John Fairfax Publications Pty Ltd [2003] NSWSC 564; Hepburn v TCN Channel Nine Pty Ltd [1983] 2 NSWLR 664
Ruling: The imputations set out in paragraphs 11(c), 11(d), 12(a), 13(a), 13(b), 13(c), 13(d), 13(g) and the variant to 13(i) are defamatory.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M Garrett | Gleeson & Co Lawyers |
| For the Defendants | Mr G Mukherji | Cosgriff Lawyers |
HIS HONOUR:
1 In this matter, the plaintiff seeks damages, including aggravated damages, and a permanent injunction against the defendants in respect of three publications which he alleges are defamatory of him.
2 On 24 July 2018, I handed down a Ruling relating to the issue as to whether the imputations pleaded by the plaintiff were capable of arising from the allegedly defamatory material. I ruled that some imputations were not so capable of arising and ordered that they be struck out.
3 The plaintiff submits that the remaining imputations are defamatory of him. The defendants submit that those imputations, or at least some of them, are not defamatory of him.
4 That issue does not involve consideration of any of the defences pleaded by the defendants.
5 Nor does the issue involve consideration of any issue relating to quantum of damages to be awarded (if any).
6 Here, there are 9 imputations and one permissible variant to consider. I have to determine whether they were defamatory of the plaintiff.
7 In Radio 2UE Sydney Pty Ltd v Chesterton[1], the High Court said:[2]
“In principle therefore the general test for defamation should apply to an imputation concerning any aspect of a person’s reputation. A conclusion as to whether injury to reputation has occurred is the answer to the question posed by the general test, whether it be stated as whether a person’s standing in the community, or the estimation in which people hold that person, has been lowered or simply whether the imputation is likely to cause people to think less of the plaintiff … .
The reference in the general test … to a plaintiff being “lowered in the estimation” of the hypothetical referee does not imply the exercise of a moral judgment, on their part, about the plaintiff because of what is said about that person. It does not import particular standards. It simply conveys a loss of standing in some respect.”
[My emphasis].
[1][2009] 238 CLR 460
[2](Supra) at 477
8 An ordinary reasonable person has been described as of “ordinary intelligence, experience and education”[3], “not avid for scandal”[4], and “fair minded”.[5]
[3]Spencer Bower, A Code of the Law of Actionable Defamation 2nd ed, page 37
[4]Rubber Improvement Ltd v Daily Telegraph Ltd [1964] AC 234 at 260
[5](Supra) at 268
9 A person’s reputation may be said to be injured when the esteem in which that person is held by the community is diminished in some respect. The general test is whether the published matter is likely to lead an ordinary reasonable person to think less of the plaintiff.[6]
[6](Supra) at 467
10 That esteem may be in respect of his personal character; his private or domestic life; his public, social, professional, or business qualifications; his qualities, competence, dealings, conduct, or status; or his financial credit.
Paragraphs 11(c), 12(a) and 13(a)
11 I consider that the allegation that the plaintiff has (repeatedly or otherwise) made unjustifiable complaints in the press or other public forums is defamatory of him. The plain meaning of the word “unjustifiable” here is that the complaints cannot be justified.
12 The making by a person of any complaint (regarding the Shire or otherwise) which is unjustifiable is, I consider, likely to make ordinary reasonable persons think less of him.
13 It follows that I consider the imputations contained in Paragraphs 11(c), 12(a) and 13(a) are defamatory of the plaintiff.
Paragraph 11 (d)
14 Similarly, I consider that it is likely that ordinary reasonable persons would think less of a person who made complaints about which he was uninformed and/or mistaken.
15 I consider that an ordinary reasonable person would inform himself of relevant matters before making complaints in public forums in relation to Shire issues.
16 It follows that I consider the imputation contained in Paragraph 11(d) is defamatory of the plaintiff.
Paragraph 12 (e)
17 The imputation is that the plaintiff “has hostility for all things good”.
18 I consider that this statement is properly described as being plainly absurd. It forms part of a series of statements concerning:
· the beauty and serenity of the area and of the town of Moama;
· a suggestion that, if the area is not good enough for the plaintiff, he should leave;
· a suggestion that, if he does not leave, he should take part in some positive thinking exercises or maybe yoga to settle his hostility to all things good.
19 The term “all things good” is, in my opinion, impossible to give any real meaning to. Terms such as “good” or “desirable” are entirely subjective concepts.
20 Although the imputation may not be quite so obviously absurd as was the case in Coleman v John Fairfax Publications Pty Ltd[7], I consider that the phrase is, as is submitted by the defendants, “tongue in cheek”. It is a phrase that no ordinary reasonable reader would take as diminishing the esteem in which the plaintiff was held or cause him or her to think less of the plaintiff in any respect.
[7][2003] NSWSC 564
21 I consider that the ordinary reasonable reader would understand that what was being published was a phrase to be read as “taking the mickey” out of the plaintiff – mere jest. I do not consider that it would have been read by an ordinary reasonable reader as diminishing the esteem in which the plaintiff was held in the community.[8]
[8]See also Hepburn v TCN Channel Nine Pty Ltd [1983] 2 NSWLR 664 at 667
22 I find that the imputation set out in Paragraph 12 (e) is not defamatory of the plaintiff.
Paragraph 13(b) and 13(c)
23 For the reasons expressed in relation to Paragraph 11(d), I consider that the allegation that the plaintiff has made complaints about which he is uninformed and/or mistaken is likely to injure the plaintiff’s reputation – the esteem in which he is held in the community is likely to be diminished in some respect.
It follows that I consider the imputations contained in Paragraphs 13(b) and 13(c) are defamatory of the plaintiff.
Paragraph 13(d)
24 This email was written shortly after the plaintiff had voiced his intention to stand for local council election, and before the election occurred. The email states that he causes divisions in the community and in his neighbourhood. The imputation is that he causes divisions between persons living in the Echuca-Moama region and /or in the Shire of Murray.
25 No-one likes or respects a person who causes divisions between persons or persons living in a particular community. The opposite is someone who heals such divisions and who would be likely to be held in high esteem.
26 I consider that a person about whom it is said causes divisions in one’s community would be held in lower esteem, especially in the context of a candidate for an upcoming council election
27 I find that the imputation set out in Paragraph 13(d) is defamatory of the plaintiff.
Paragraph 13(g)
28 I consider that the ordinary reasonable reader would think less of a person who was reckless as to whether his statements were true. This would be especially so in the context of the upcoming council election in which the person was a candidate. Dishonesty aside, it is difficult to imagine an attribute less desirable for a member of a local council.
29 I find that the imputation set out in Paragraph 13(g) is defamatory of the plaintiff.
Paragraph 13(i)
30 In my Ruling handed down yesterday I ruled that the pleaded imputation in paragraph 13(i) was not capable of being understood by an ordinary reader from the published email. However I am of the view that a permissible variant of that imputation was that:
“The plaintiff often gets his facts wrong.”
31 I consider that this variant is substantially similar to the pleaded imputation and is a lesser allegation.
32 I consider that the variant referred to is defamatory of the plaintiff. Although not as strong as the imputation set out in Paragraph 13(g), in the context of a local election, to state that a candidate hoping to be elected often gets his facts wrong would be likely to cause others to think less of him.
Conclusion
33 It follows that I consider that the imputations set out in Paragraphs:
· 11(c) and (d);
· 12(a);
· 13(a), (b), (c), (d), (g) and
· the variant to 13(i)
are defamatory of the plaintiff and I rule accordingly.
- - -
1
0