Courtney v Maguire: Maguire v Courtney
[2023] VCC 2280
•18 December 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| DEFAMATION LIST |
Case No. CI-21-02057
| THOMAS JOSEPH COURTNEY | Plaintiff |
| v | |
| PHILIP MAGUIRE | Defendant |
-AND-
Case No. CI-21-03242
| PHILIP MAGUIRE | Plaintiff |
| v | |
| THOMAS JOSEPH COURTNEY | Defendant |
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JUDGE: | HER HONOUR JUDGE CLAYTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 October 2023 | |
DATE OF JUDGMENT: | 18 December 2023 | |
CASE MAY BE CITED AS: | Courtney v Maguire: Maguire v Courtney | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 2280 | |
REASONS FOR JUDGMENT
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Subject:DAMAGES – DEFAMATION
Catchwords: Assessment of damages – defamation – Facebook post publications
Legislation Cited: Defamation Act 2005 (Vic); County Court Civil Procedure Rules 2018
Cases Cited:Belbin v Lower Murray Urban and Rural Water Corporation (2014) 43 VR 348
Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44
Crampton v Nugawela (1996) 41 NSWLR 176
Hockey v Fairfax Media Publications Pty Ltd (2015) 237 FCR 33
John Fairfax Publications Pty Ltd v O’Shane (No 2) [2005] NSWCA 291
King & Anor v Greenwood [2022] NSWDC 61
Webster v Brewer (No 3) [2020] FCA 1343
Wellington v Metcalf [2022] VCC 1759
Wilson v Bauer Media (No 6) [2017] VSC 356
Wilson v Bauer Media Pty Ltd [2017] VSC 521
Judgment: Judgment entered pursuant to Order 24 of the County Court Civil Procedure Rules 2018.
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APPEARANCES: | Counsel | Solicitors |
| For Mr Courtney | Mr J A Castelan | Harding Stenning & Co Lawyers |
| For Mr Maguire | Mr A M J Meagher with Mr T Burn-Francis | Strongman & Crouch solicitors |
HER HONOUR:
The jury verdict
1Mr Thomas Courtney (“Mr Courtney”) sued Mr Philip Maguire (“Mr Maguire”) for defamation arising out of three posts published by Mr Maguire in September 2020 (proceeding number CI-21-02057). In a related proceeding, Mr Maguire also sued Mr Courtney for defamation arising out of four publications published by Mr Courtney in July 2020 (proceeding number CI-21-03242). The two proceedings were heard together.
2Mr Courtney is a retired businessman who lives in Bairnsdale in Victoria.
3Mr Maguire is the operator of the Phil Maguire Facebook page, and Rural Resistance Facebook page which was set up in January 2020, initially in response to the bushfires in Victoria and elsewhere in Australia. The Rural Resistance Facebook page subsequently became a vehicle for Mr Maguire to publicise and gain support for his campaign opposing the planned culling of wild horses, also known as brumbies, in The Alpine National Park.
4Mr Maguire raised more than $300,000 through a crowd funding campaign to pursue litigation against Parks Victoria to try to stop a planned cull of the wild horses. That litigation was ultimately unsuccessful.
5Mr Courtney donated to Mr Maguire’s campaign, but subsequently formed the view that Mr Maguire’s strategy was foolish and a waste of money, and posted comments on Mr Maguire’s Facebook page to that effect. There ensued a “back and forth” which involved the comments Mr Courtney successfully sued on and the posts Mr Maguire unsuccessfully sued upon.
6Both proceedings were heard before a judge and jury in October 2023. On 23 October 2023, the jury returned the following verdict in this proceeding:
First comment – Exhibit C1
(a) Mr Courtney established that one or more people in Victoria read the first comment between 20 May 2020 and 20 May 2021;
(b) The comment conveyed the following imputations:
(i)Mr Courtney is untrustworthy because of his dealings with organised crime figures;
(ii)Mr Courtney engaged in improper conduct when he was on the East Gippsland Shire Council;
(iii)Mr Courtney engaged in criminal conduct that resulted in proceedings in the Ringwood Magistrates’ Court;
(iv)Mr Courtney has links with organised crime figures.
(c) Those imputations were defamatory of Mr Courtney;
(d) Mr Maguire did not establish his defence that imputation (b)(ii) was substantially true;
(e) Mr Maguire was motivated by malice or an improper purpose when he made the first comment.
Second comment – Exhibit C2
(f) Mr Courtney established that one or more people in Victoria read the second comment between 20 May 2020 and 20 May 2021;
(g) The comment conveyed the following imputations:
(i)Mr Courtney has dealings with Tony Mokbel and other organised crime figures;
(ii)Mr Courtney is a depraved person who hires out horses for bestiality;
(h) Those imputations were defamatory of Mr Courtney;
(i) Mr Maguire was motivated by malice or an improper purpose when he made the second comment.
Third comment – Exhibit C3
(j) Mr Courtney established that one or more people in Victoria read the third comment between 20 May 2020 and 20 May 2021;
(k) The comment conveyed an imputation that Mr Courtney engaged in criminal conduct of such a serious nature that it was worthy of a mention in a Royal Commission involving the prominent underworld figure Tony Mokbel;
(l) That imputation was defamatory of Mr Courtney;
(m) Mr Maguire was motivated by malice or an improper purpose when he made the third comment.
7The jury returned verdicts in the related Maguire proceeding as follows:
First post
(a) Mr Maguire established that one or more people read the first post between 27 July 2020 to 30 June 2017;
(b) Mr Maguire did not establish that the post conveyed an imputation that he was a liar, in that he falsely claims to own a large cattle property when he does not;
(c) Mr Maguire did not establish that the post conveyed an imputation that he falsely claimed that he would remove brumbies and bring them to his property when he would not;
(d) Mr Maguire did not establish that the post conveyed an imputation that he falsely claimed that he would be able to feed 150 brumbies when he would not;
(e) Mr Maguire did not establish that the post conveyed an imputation that he is a liar, in that he claimed to be a fourth-generation mountain cattleman.
Second post
(f) Mr Maguire established that the second post was read by one or more people in Victoria during the period 27 July 2020 to 30 June 2021;
(g) Mr Maguire established that the second post conveyed an imputation that he is a compulsive liar who has a long history of lying, stretching back to his days as a dishonest journalist;
(h) Mr Maguire established that the second post conveyed an imputation that he is dishonest, in that he writes under false names as a journalist or as an advisor to the leader of the National Party;
(i) Mr Maguire established that the second post conveyed an imputation that he is a liar, in that he pretends to be a mountain cattleman when he is not;
(j) Mr Maguire did not establish that any of the conveyed meanings were defamatory of him.
Third post
(k) Mr Maguire did not establish that the third post was read by one or more people in Victoria during the period 27 July 2020 to 30 June 2021.
Fourth post
(l) Mr Maguire did not establish that the fourth post was read by one or more people in Victoria during the period 27 July 2020 to 30 June 2021.
8As a result of the jury’s verdict, Mr Maguire’s claims in defamation against Mr Courtney were wholly unsuccessful.
9As a result of the jury’s verdict that Mr Maguire was motivated by malice in relation to each of the three comments, there was no need for me to consider Mr Maguire’s pleaded qualified privilege defences and therefore Mr Courtney succeeded on each of the three comments on which he sued.
10Section 22(3) of the Defamation Act 2005 (Vic) (“the Act”) provides:
“If the jury finds that the defendant has published defamatory matter about the plaintiff and that no defence has been established, the judicial officer and not the jury is to determine the amount of damages (if any) that should be awarded to the plaintiff and all unresolved issues of fact and law relating to the determination of that amount.”
Assessment of damages
11Damages in defamation cases are awarded to provide consolation for hurt to feelings, compensation for damage to reputation and vindication of the plaintiff’s reputation.[1]
[1] Wilson v Bauer Media Pty Ltd [2017] VSC 521 (“Wilson”) at paragraph [59]
12The following matters are relevant considerations:
(a) Damages should reflect the high value the law places on reputation, particularly of those whose work and life depends upon their integrity, honesty and judgment;[2]
(b) The gravity of the libel and the social standing of the parties are relevant to assessing the quantum of damages necessary to vindicate a plaintiff. The award should be sufficient to convince a bystander of the baselessness of the charge;[3]
(c) There must be a rational relationship between the damages awarded and the harm sustained by the plaintiff;[4]
(d) The extent of the publication, including any grapevine effect, given that the dissemination of defamatory material is rarely confined to those to whom the matter is published;[5]
(e) Injury to feelings, including hurt, anxiety, indignity and outrage, may constitute a significant part of the harm sustained by the plaintiff.[6]
[2]Wilson (ibid) at paragraph [59](b), citing Hockey v Fairfax Media Publications Pty Ltd (2015) 237 FCR 33 at 113, paragraph [446]; Crampton v Nugawela (1996) 41 NSWLR 176 at 195 (Mahoney A-CJ), applied in John Fairfax Publications Pty Ltd v O’Shane (No 2) [2005] NSWCA 291, paragraph [3] (Giles JA)
[3]Wilson (ibid) at paragraph [59](c), citing Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at 61 (Mason CJ, Deane, Dawson and Gaudron JJ); Crampton v Nugawela (ibid) at 194 (Mahoney A-CJ)
[4] Defamation Act 2005, s34
[5]Belbin v Lower Murray Urban and Rural Water Corporation [2012] VSC 535; (2014) 43 VR 348 at 388-390, paragraphs [110]-[112]
[6] Carson v John Fairfax & Sons Ltd (supra) at 71 (Brennan J)
13Where the conduct of the defendant has increased the injury suffered by the plaintiff, the court may award aggravated damages. Circumstances of aggravation may include:
(a) Conduct of the defendant from the commission of the tort to the day of judgment, which must be in bad faith, unjustifiable or improper;
(b) The circumstances of publication;
(c) Acts of retaliation or reprisal against the plaintiff;
(d) Whether the defendant acted with malice;
(e) A failure to publish a retraction or apology that amounts to a continuing assertion of the defamatory imputations;
(f) A defence of justification may aggravate damages if it has been pleaded with reckless indifference as to its relevance,[7]
[7] Wilson v Bauer Media (No 6) [2017] VSC 356 at paragraphs [84]-[88]
Background
14Mr Courtney is eighty-four years old and lives in Eagle Point, near Bairnsdale.
15He left school at fifteen and went to work on a dairy farm. He moved to Melbourne and married at nineteen, and then worked at the State Electricity Commission for about five years. He worked for various heating and cooling companies and then set up his own business in 1977 making factory heating and cooling equipment. He imported air conditioning components from Europe and established a joint venture manufacturing plant in China. For a period, he was president of the Australian Small Business Association of Victoria and president of the Heating and Cooling Industry Association of Victoria.
16In 1993, he bought a property in Eagle Point and in 1995, he sold his companies. In 1996, he built a house on his property at Eagle Point and moved there with his wife.
17In 1999, he became the owner of two childcare centres in Bairnsdale and in 2000, he decided to run for East Gippsland Shire Council. He was elected to Council and served on Council for three years, including one year as mayor. He did not seek re-election.
18After leaving Council, he began pursuing work in property development. He purchased land and developed a property comprising 109 units known as Eagle Bay Village. He subsequently bought land north of Bairnsdale and in Kyabram.
19He has now largely divested himself of his business interests and described himself as “about to be totally retired”.[8]
[8] Transcript (“T”) 84, Line/s (“L”) 11
20He was involved as a volunteer with a charity known as Angel Flight for around ten years. He flew patients from remote areas to Melbourne for medical treatment. He was also involved in an organisation called Riding for Disabled for about eighteen years. He was a branch secretary for about five years and received a medal for fifteen years of contribution to the organisation.
21He received a Centenary medal for service to his community. In order to own the childcare centre, he had to pass police checks. He has never been charged or convicted of any crime. He has never met Tony Mokbel or anyone involved in organised crime. He was not mentioned in a Royal Commission in connection with Tony Mokbel.[9]
[9]Commonwealth Royal Commission Into the Management of Police Informants (also known as the “Lawyer X Royal Commission”) Final Report (2020)
Extent of publication
22The first and second comments appeared on the Phil Maguire Facebook page on 13 September 2020. At that time, the Facebook page had around 2,000 followers. When the First Comment had been uploaded for one day it had received:
(a) 76 emoji responses;
(b) 22 comments; and
(c) 9 shares.
23After one day, the second comment had received 23 emoji responses.
24There were also comments in the thread below the first and second comments which indicate the comments had been read. These include:
Gabriela Black
“Are you ok Phil? This sounds very serious. Stay safe.”
Glenys Shearer
“Right behind you in Everything You undertake. There truly are Scum in this life.. that think they are above reproach… go get him Phil Maguire.”
Robin Sinclair
“Who the hell do these people think they have the right to go on like this … .”
Nin Ferguson
“We stand beside Phil Maguire and family be safe Phil … Phil and family be safe. It’s hideous all these things that are happening to our Brumbies but at least if we know even tho[ugh] it makes our skin crawl we can try to stop it.”
John Crooks
“Get into him Phil, but for heavens sake, WATCH YOUR BACK!!!”
Ziggy Meinhart
“The plot thickens as skeletons are rattled.”
Phil Maguire
“Ziggy Meinhart There are some nasty looking characters involved in this I have to tell you.”
Debbi Jeffery
“Hope all is OK there Phil, scum always floats to the top so he’ll soon be gone.”
Judith Bismeijer
“Stay safe.”
Nola Hutchins
“God these lowlifes crawl out of every crevice don’t they. … .”
Kylie Rollans
“Tom Courtney Tread carefully here when attempting to throw shade to a wonderful and honest man like Phil Maguire. I encourage you to pick your battles and understand there is an army of supporters who stand beside Phil Maguire. At the end of the day Tom I encourage you to in the future talk and write carefully and separate slander and complaining ok Tom.”[10]
(sic)
[10] Joint Court Book (“JCB”), pages 486-491
25The third comment was uploaded onto the Rural Resistance Facebook page which had around 22,000 followers in 2020.
Mr Courtney’s submissions
26Mr Courtney says he had an excellent reputation prior to the publications. He says he has been recognised for his contribution to the community in terms of his charitable work, his work as a businessman and on Council.
27He relied on evidence from five witnesses as to his excellent reputation. Ms Buckley, a grazier and councillor on the East Gippsland Shire Council, said Mr Courtney was held in high esteem, holds strong ethics and morals. She said the idea that he was shady, violent or involved in criminal conduct was not a reflection of his true character. The allegations that he was involved in hiring out horses for bestiality was “quiet disgusting” and her community would “frown upon such aspersions and behaviour”.
28Edwin Morris is an accountant who has known Mr Buckley for twenty years and considers him a friend. He considered Mr Courtney a good president of the Australian Piper Society, an association for aviation enthusiasts. He described Mr Courtney as being as “honest as the day is long”, with a very good reputation in the aviation world, and showing very strong leadership.
29Scott Kim is a licenced land surveyor who has known Mr Courtney for about twenty-three years, both in a professional capacity, and through his activities in the community. He said Mr Courtney was highly regarded and a respected community member who would not look for shortcuts and would follow the rules. He said Mr Courtney would not hurt an animal or a person and has never observed him being violent or having a violent streak.
30Allan Rumble is a real estate agent who met Mr Courtney in the late 90s. He describes his reputation in the community as “very solid, very firm”.[11] He said he had good ethics and a good reputation for honesty. He was professional and treated Mr Rumble’s staff well.
[11] T952, L13
31Brett Ward is a real estate agent who first met Mr Courtney in 2002 and began selling land for Mr Courtney in about 2004. He considered Mr Courtney an honest person with good ethics who would offer help to others and not want something in return.
32Mr Courtney submits that the allegations are especially outrageous, in particular the allegations that he is involved with organised crime and with hiring out horses for bestiality. Mr Courtney has been involved in a charitable riding organisation for many years and these imputations go to the very heart of his reputation.
33The association with organised crime carries with it other connotations – criminal activity in particular, drug dealing, thuggery, and being involved with gangland violence and murder.
34Mr Courtney says the publications have caused his wife distress which has upset him. He is widely known within the community where he lives because he was a councillor and a local businessman. He has also been involved in various organisations to stop the culling of brumbies.
35Mr Courtney knows Rod Faithfull as a person who purchased a residence in one of his developments. Rod Faithfull made adverse comments in response to the publications. He is very unhappy that Rod Faithfull might be saying to other people in the community untrue things about him based on Mr Maguire’s comments.
36The comments have made Mr Courtney angry and upset. He was disgusted by the bestiality imputation. He has felt threatened and has increased security around his home. He cannot talk about the issue with his wife because it upsets her.
37He feels the comments have gone a long way to destroying the reputation he had for all his life for honesty and integrity.
38He says there was aggravating conduct by Mr Maguire:
(a) Mr Maguire was actuated by malice;
(b) Outside the litigation he engaged in behaviour such as:
(i)Posting the comment “Ziggy Meinhart There are some nasty looking characters involved in this I have to tell you” which referred to Mr Courtney;
(ii)He told the Ringwood Magistrates’’ Court that he had “good reason to believe” that Mr Courtney had contacts with organised crime when there was no basis for that belief;
(iii)He published a post on 13 May 2022 under the name Cara Maguire in which he referred to Mr Courtney as “a genuine piece of ratshit in a defamation case”;
(c) Mr Maguire pleaded truth defences without any basis in relation to the organised crime allegations and persisted in the pleading beyond the time when they should have been withdrawn;
(d) Mr Maguire engaged in numerous gratuitous attacks on Mr Courtney during the trial including:
(i)alleging that he had lost a hundred cattle or more because of a “fire lit by Mr Courtney’s friend”, where the incident formed no part of the case, there was no evidence of the incident and the “friend” was not a witness;
(ii)pontificating about Mr Courtney’s writing skills;
(iii)describing Mr Courtney as possibly a psychopath, being obsessive compulsive and not in control of his faculties, saying that there were rumours going around that Mr Courtney was mentally unwell, and that Mr Maguire thought it would have been a good thing if Mr Courtney had a psychiatric assessment. None of this was warranted or relevant to the case;
(iv)saying that Darrel Nolch had told him that he had written a letter of complaint about Mr Courtney to the Lawyer X Royal Commission and that he still believed that was the case, even though there was no copy of that letter in evidence, Mr Maguire had not seen the alleged letter, and Mr Nolch was not a witness;
(v)saying that Darrel Nolch “generally speaking and according to everybody else” is a person who makes statements that are proven to be correct;
(vi)saying he had a source for the allegation that Mr Courtney cracked a mention in the Lawyer X Royal Commission;
(vii)saying he still believes that Mr Courtney has dealings with Tony Mokbel and other organised crime figures;
(viii)saying that he had heard Mr Courtney used Gatto Corporate Solutions to collect debts, that there was a document that proved that although he did not have it and it was not in evidence and he would have to go to “Glen Jones” to get that;
(ix)making statements designed to denigrate Mr Courtney in front of the jury, including that he had to use a different name, Phillip Mac, on Facebook because of “reports from people like Mr Courtney”, that “you should ask Mr Courtney about Mr King”; that his fundraising efforts were impacted “probably due to the defamations of Mr Courtney”; that Rachel Islington, who was not called to give evidence, had called his wife and said Mr Courtney had threatened her and caused her problems when she began researching him; saying that “Glen Jones” had told him that Mr Courtney may carry a handgun; an allegation that Mr Courtney waited until the last day to sue to “frustrate my ability to bring a case against him”;
(e) Mr Maguire alleged during the trial that Mr Courtney had a bad reputation and that Mr Courtney was not being truthful when he described his reputation as “very good”;
(f) Asking Mr Ward whether Mr Courtney ever offered to help him “get something through council”, when this formed no part of Mr Maguire’s defence but carried with it a suggestion of impropriety in front of the jury.
39Mr Courtney says the imputations were extremely serious and warrant an award of significant damages. He says the Rural Resistance Facebook page has a “disciplined army” of followers who trust Mr Maguire. The comments were made about an elderly man who lives in a small rural community and are likely to have a significant impact within that community.
40Mr Maguire’s aggravating conduct through the course of his evidence was “glaring” and should attract a significant award of aggravated damages. Appropriate damages would be at least $300,000.
Mr Maguire’s submissions
41Mr Maguire says Mr Courtney has suffered very little harm as a result of the publications because:
(a) He had a bad reputation from his time on the East Gippsland Shire Council;
(b) He is essentially a retiree. The publications have had no impact on his business career or interests, and there is no prospect that they will have any effect on a future career or income;
(c) He has been isolated from the community since his diagnosis with colon cancer and on his own evidence has not been shunned or avoided by anyone within the community;
(d) The extent of the publication is limited. Even though the Rural Resistance Facebook page has 22,000 followers, Mr Maguire posted tens of thousands of comments and posts and so the publication on that site would have been quickly overtaken by new posts. The Phil Maguire Facebook page had only around 2,000 followers.
(e) None of Mr Courtney’s character witnesses believed the imputations and it can be inferred that, in the circles in which he moves, his reputation has not been seriously harmed;
(f) Mr Rumble gave evidence that within Mr Courtney’s community there were allegations against dozens of people that they were involved with Tony Mokbel. That imputation has no defamatory sting within Mr Courtney’s community;
(g) Mr Courtney’s own conduct suggests he brought the proceedings to harm Mr Maguire, rather than to redress any harm to his own reputation.
42A substantial award of damages is not warranted and there is no basis for an award of aggravated damages. Appropriate damages would be nominal damages, alternatively in the range of $15,000 to $30,000.
Analysis
Good or Bad reputation
43The jury returned a verdict that the imputation that Mr Courtney engaged in improper conduct while on the East Gippsland Shire Council was defamatory of Mr Courtney and was not true.
44Mr Maguire says that, nevertheless, an Auditor-General Report from 2005[12] made adverse findings about him and these were reported in an Age newspaper article dated 21 July 2005.[13] and an ABC radio report dated 16 September 2005.[14] Mr Maguire asserts that the passage of time has not healed that damage. However, there was no evidence that anyone in the community, or more broadly, were aware of the allegations made about Mr Courtney in the Auditor-General Report, nor that any damage done to his reputation remained after nearly twenty years.
[12] Exhibit M18
[13] Exhibit M19
[14] Exhibit M20
45I accept Mr Courtney’s evidence that there were those in the community who did not like him and did not like his work on the Council and this affected his reputation in “certain sections of the community”.[15] This is an almost inevitable aspect of public office. I do not accept that this meant he had a generally bad reputation, nor that events that occurred before and during 2005 continued to impact on his reputation more generally in 2020.
[15] T330, L30
46I therefore accept that he had a generally good reputation prior to the publications.
Extent of publication
47I accept that social media and Facebook can be a fast-moving medium, and posts may be quickly overtaken by other posts. This means that the posts may not necessarily have been read by all the followers of the Facebook pages.
48However, the evidence also demonstrated that Mr Maguire had a particularly engaged social media following, with many comments posted in response to Mr Maguire’s publications. His followers also appear to be invested in Mr Maguire personally, with some considering themselves a “disciplined army” of followers. The fact that, through his Facebook pages, he was able to raise more than $300,000 in just a few months attests to the trust and reliance his followers place in Mr Maguire as an honest man of integrity.
49Rebecca Burton described Mr Maguire as “the most intelligent man I’ve ever met in my life. His knowledge is phenomenal regarding not only worldly, globally … about Australia’s history, its culture, its heritage. He’s a very strong faith – has a very strong faith – … as a man and a family man. He’s worked hard all his life. He’s a wonderful cattleman and farmer. … he’s – they live a very simple life. … he’s just an extraordinary human being and he’s loved and respected by tens of thousands of people in his group that he created because he has so much empathy for Australia and its culture.”[16] Ms Burton admitted she had met Mr Maguire for the first time only when she attended Court for this proceeding.
[16] T762
50Lurelle Khalife gave evidence on behalf of Mr Maguire. She has never met him. Nevertheless, she described his character as “honest, fact-forward. A good – a warrior. That’s what I thought he was, a warrior, because of how he answered questions and the different things that, um, he was asked.”[17]
[17] T796, L30-31
51Because of the faith and trust placed in Mr Maguire by his followers, it is likely that a great many more of them believed what he said about Mr Courtney than otherwise might be the case. The comments that followed the publication indicate that people on the sites did indeed think Mr Courtney was dangerous and might pose a risk to Mr Maguire.
52I am satisfied that a significant number of people would have seen the posts and that, within the brumby community, there would be a grapevine effect.
53The brumby community appears to be quite extensive and includes not just people in Mr Courtney’s local community, but people from other regions, cities and countries. There are numerous online sites related to brumbies, and there is likely cross-pollination between the sites and the various online communities.
Impact on profession or income
54I accept that Mr Courtney is not currently engaging in any significant commercial or business activities and that the defamatory imputations about him will be unlikely to have any impact on his income or his capacity to engage in business in the future.
55I accept Mr Maguire’s submission that the damage to Mr Courtney’s reputation falls outside the category of cases where the defamation directly impacts the person’s professional reputation.
Impact within community
56On the other hand, the reputational damage was not just within his own small community, but the broader “brumby” community and the online community linked into that brumby community. The imputations are serious. Mr Courtney has been involved for many years in an organisation involving horses, Riding for the Disabled. Linking him in any way to “bestiality” would certainly tend to cause people within that community, as well as within the wider community, to shun and avoid him.
57I do not accept the submission that having links with Tony Mokbel has no sting within the community. Mr Rumble said “when that supposed person was down there, there was – it would have – would have been dozens of people – allegations against him, that they were involved with him. Um, it was in the district that anyone who was anyone was involved with him. Um, I knew that was untrue.”[18]
[18]T496, L15-16
58I am not persuaded this means that an allegation of having links with Tony Mokbel and with organised crime carries no sting. I am not sure what I can infer from Mr Rumble’s evidence – possibly that Tony Mokbel spent some time in the Gippsland region and during that time, allegations were made about many people having dealings with him. I do not know when these allegations were said to have arisen. There is no evidence that dozens of people were alleged to have dealings with Tony Mokbel in 2020.
59I am also not persuaded that Mr Courtney’s isolation as a result of his illness means he has a lesser entitlement to damages. Isolation from the community may mean that one does not have to face the real-life consequences of damage to reputation. One does not physically experience the shunning and avoidance. However, isolation may make one ruminate more intensely on the damage to reputation, increasing the hurt and humiliation felt. More importantly, physical isolation does not equate with digital isolation. These allegations were made on social media and the impact of the allegations has been felt, at least in part, on social media. The comments set out above show that within the “disciplined army” of Mr Maguire’s supporters, a number of them believed what he had written about Mr Courtney, and were concerned for Mr Maguire’s welfare as a result.
60The allegations were made within the brumby community, a community Mr Courtney has had involvement with to varying degrees over a number of years.
61Within that community there are those who may have never, and will never meet, Mr Courtney, but in whose eyes Mr Courtney’s reputation has been harmed. Although his own witnesses did not believe the allegations, I have no doubt that many of Mr Maguire’s followers would unhesitatingly believe anything Mr Maguire said. Ms Burton and Ms Khalife both gave evidence that they considered Mr Maguire an honest and trustworthy man. Ms Burton was prepared to come to Court and give sworn evidence about things she could not know about Mr Maguire from her own observations, for example that he lives a simple life and that he is a wonderful cattleman and farmer. I have no doubt that there are followers of Mr Maguire, such as Ms Burton, who would unquestioningly accept what he said about Mr Courtney as the truth.
62Mr Courtney is a self-made man. With a limited education, he worked his way up to become a successful businessman. Although some of the witnesses he called were also friends, they were largely people with whom he had professional relationships. His reputation is not divided into professional and personal compartments. His honesty and integrity as a businessman is as important as his honesty and integrity as a person.
63Serious allegations, made online within a community in which Mr Courtney has been engaged, and with the grapevine effect that occurs with any online publication, are likely to have had an impact on Mr Courtney’s reputation.
Personal feelings and personal motivation
64Mr Courtney says he has been upset and angry about the allegations. He describes the impact on his wife and his relationship with her.
65It is likely that the allegations have caused him a degree of hurt and embarrassment and a degree of concern about his reputation.
66However, the first emotion he described feeling was anger, and I think it is reasonable to conclude from his evidence, and from the material before the Court, that the overriding feeling he had was anger that these things had been said about him, and a desire to vindicate his reputation. His desire to vindicate his own reputation included a desire to prove, through legal proceedings, that Mr Maguire had acted foolishly in defaming him.
67The letters Mr Courtney wrote to Mr Maguire demonstrate an apparent relish in taking Mr Maguire to Court and his anticipation of watching Mr Maguire “wriggle and squirm like a worm on a barbecue hotplate”.[19] Chest beating antics like this may be unbecoming but are part of the range of regrettable human expressions of emotions. Mr Courtney gave evidence that he perceived Mr Maguire as a bully who would only understand strong language.[20] Mr Maguire, I note, is no shrinking violet and was certainly capable of his own strong and unbecoming language.[21]
[19] Exhibits M24, M33 and M40
[20]T411, L16-18
[21] T621; Exhibit C34
68The letters Mr Courtney wrote support a conclusion that personal hurt is a lesser concern for Mr Courtney than vindicating his reputation. In his own mind, at least, that vindication is achieved by proving in Court that Mr Maguire was wrong. The fact of his victory before a jury will, I expect, go a long way to achieving the vindication he seeks.
69The letters he wrote to various politicians about the Auditor General Report[22] demonstrates Mr Courtney’s robust sense of self-worth and how jealously he guards his reputation. It is not surprising that he commenced these proceedings against Mr Maguire when far more serious allegations were made about him and broadcast far more broadly over social media, but it does not establish that his primary motivation was to harm Mr Maguire.
[22] Exhibit M23
Aggravating conduct
70I accept that some of Mr Maguire’s conduct aggravates the harm caused to Mr Courtney.
71Mr Maguire had no basis upon which to assert Mr Courtney was involved with organised crime, had links with Tony Mokbel, or was mentioned in the Mokbel Royal Commission. He continued to maintain truth defences until August 2023, shortly before the trial. He gave evidence that asserted the truth of those allegations, notwithstanding that he had withdrawn his defence. The evidence was entirely unreliable and amounted to this. He called someone on “information he had been given” who he thought was a solicitor, a person called Darrel Nolch. This person told Mr Maguire that Mr Courtney had been involved with organised crime, specifically Tony Mokbel, and a letter of complaint had been written to the Lawyer X Royal Commission. Mr Maguire said “I believe that’s probably true because I believe that the letter would have been written by Nolch himself”,[23] although Mr Nolch had not told Mr Maguire that he had written the letter.[24] Mr Maguire said Mr Nolch would not give Mr Maguire a copy of the letter Mr Maguire believed Mr Nolch had written to the Royal Commission.[25]
[23] T560, L6-10
[24] T694, L23
[25] T573, L24-25
72Mr Maguire made other entirely unsubstantiated allegations about Mr Courtney that he had supposedly been told by Mr Nolch. Mr Maguire admitted he did not know Mr Nolch and had never met him. He “had been told” he was a solicitor, by another person who did not give evidence, Rachel Islington. On Mr Maguire’s evidence, Mr Nolch was the only source of his information about Mr Courtney’s supposed organised crime links.
73Mr Maguire did not call Mr Nolch to give evidence because, on his evidence ”it turned out that Darrel Nolch, ah, is bipolar and I didn’t know that at the time, and he is not terribly consistent in things he says”.[26] Despite this concession, Mr Maguire maintained that the information Mr Nolch provides “is generally correct” notwithstanding that he has never met Mr Nolch and provided no evidence as to the veracity of anything Mr Nolch supposedly said.
[26] T694, L26
74Mr Maguire’s account of other information given to him by Mr Nolch is irrelevant to the issues in dispute between the parties and there is no need to repeat it here. Nevertheless, it demonstrated Mr Maguire’s willingness to repeat spurious and unsubstantiated allegations about Mr Courtney in front of a jury in order to bolster his own position and denigrate Mr Courtney. Such spurious allegations, made without any corroborative evidence, included:
(a) Allegations that “Glen Jones” had told Mr Maguire that Mr Courtney carried a handgun;
(b) That there was a document, not in evidence but available from the same mysterious “Glen Jones”, which would show Mr Courtney’s links to organised crime figure, Mick Gatto;
(c) That Rachel Islington had told Mr Maguire’s wife that Mr Courtney had threatened her;
(d) That Mr Courtney’s unnamed friend was responsible for a loss to Mr Maguire of a hundred or more cattle; and
(e) That Mr Courtney’s defamation was responsible for a slowing down in Mr Maguire’s fundraising activities.
75Mr Maguire made an allegation that Mr Courtney had been mentioned in the “Tony Mokbel Royal Commission” in circumstances where the basis for that belief was purportedly that he believed Mr Nolch had written a letter of complaint to the Royal Commission about Mr Courtney. Mr Maguire stated he did not have a copy of that letter and Mr Nolch had not told him that he had written such a letter. Nevertheless, Mr Maguire repeated in front of the jury his own belief that such a letter existed.
76There was no basis at all for Mr Maguire’s allegations; he could not have reasonably believed that he could prove they were true. He should not have pleaded a truth defence, should have withdrawn it much sooner, and he should not have repeated his allegations in Court. He also repeated them before the Ringwood Magistrates’ Court in circumstances where they were of even less relevance. I am satisfied that this is aggravating conduct.
77I am also satisfied that other conduct of Mr Maguire’s aggravated the damage done to Mr Courtney’s reputation, in particular, other posts he made including the post under the name Cara Maguire in which he describes Mr Courtney as a “piece of ratshit” and makes specific reference to these proceedings.[27] That post was published to his followers. I reject his evidence that he did not post that comment, and that his daughter found it and posted it without asking him first. That evidence was not credible.
[27] JCB 896
78Accordingly, I am satisfied that Mr Courtney is entitled to an amount of compensation for aggravated damages.
Quantum
79Both parties took me to cases they consider I ought have regard to in assessing the appropriate quantum of damages.
80At one end of the spectrum Mr Courtney’s counsel submitted that Webster v Brewer (No 3)[28] was an appropriate comparison. In that case, unfounded allegations of child sex trafficking had been made against a member of parliament, her husband, and a charitable organisation in which both were involved. The charity provided assistance to young mothers between the ages of 13 to 25. The allegations were so heinous and struck at the very heart of the charitable activities in which the plaintiffs were involved, that the Court awarded general damages of $350,000, $225,000 and $300,000 to the respective plaintiffs.
[28] [2020] FCA 1343
81At the other end of the spectrum, defendant’s counsel submitted the case of Goldberg v Voigt[29] was an appropriate comparator. In that case, the defamatory imputations conveyed meanings that the plaintiff was a danger to women and likely to kill women, but the plaintiff was awarded only $35,000. The allegations were more severe, and the extent of publication was similar. In King & Anor v Greenwood,[30] allegations that conveyed imputations that the plaintiff had bribed a member of parliament and committed a serious indictable offence attracted damages of $30,000.
[29][2020] NSWDC 174
[30] [2022] NSWDC 61
82In defamation in particular, other cases can provide a guide, but each case will necessarily turn on its own circumstances. I accept that the imputations in this case were serious, that they went to the heart of Mr Courtney’s reputation in the community, in his professional life and in the charities in which he is involved, in particular the Riding for the Disabled. There are people, particularly within the broader brumby community, who would believe these allegations and so it is particularly important that the verdict is sufficient to convince a bystander that they have no merit.
83I consider Mr Maguire’s conduct to have been aggravating for the reasons above and an award of aggravated damages is warranted.
84In Wellington v Metcalf,[31] I considered the appropriate award of damages was $100,000. A large component of that award was for hurt caused to feelings, and because the plaintiff was a sitting councillor where the allegations had gone directly to her conduct as a councillor. On the other hand, the extent of publication of those allegations was more limited and the prospect that a lot of people believed the imputations was low.
[31] [2022] VCC 1759
85In the current case, the extent is broader, there is a real prospect that a significant number of people believe the allegations, and “nailing the lie” is a particularly important element. The aggravating circumstances are also significant. However, Mr Courtney is unlikely to suffer in his professional life, given that he is largely retired, and has not been deeply and personally hurt, though he has been angered and frustrated.
86Having regard to all the elements I must consider, including that there be a rational relationship between the damages award and the harm to reputation, I consider that, including aggravated damages, the appropriate sum to award is $125,000 (one hundred and twenty-five thousand dollars).
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