Courtney v Maguire (Ruling No 1)

[2023] VCC 1626

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

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JUDGE:	HER HONOUR JUDGE CLAYTON
WHERE HELD:	Melbourne
DATE OF HEARING:	29 August 2023
DATE OF RULING:	15 September 2023
CASE MAY BE CITED AS:	Courtney v Maguire (Ruling No 1)
MEDIUM NEUTRAL CITATION:	[2023] VCC 1626

RULING
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Subject:CIVIL PROCEDURE – EVIDENCE – DEFAMATION

Catchwords:              Pleadings – application to amend defence – mitigation of damages – bad reputation – admissibility of evidence – Burstein principles – underlying facts – whether report is in the directly relevant sector of the plaintiff’s reputation

Legislation Cited:      N/A

Cases Cited:Burstein v Times Newspapers Ltd [2001] 1 WLR 579;

Courtney v Maguire [2023] VCC 1391
Lennon v Herald & Weekly Times Ltd [2021] VSC 147
O'Hagan v Nationwide News Pty Ltd (2001) 53 NSWLR 89
Plato Films Ltd v Speidel [1961] AC 1090
Rowson v Alpass [2017] VSC 401
Rush v Nationwide News Pty Ltd (No 2) (2018) 359 ALR 564;

Ruling:  Application granted.

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APPEARANCES:	Counsel	Solicitors
For Courtney	J Castelan	Harding Stenning & Co Lawyers
For Maguire	A Meagher with T Burn-Francis	Strongman & Crouch

HER HONOUR:

1Maguire makes application for leave to amend his defence by relying on:

(a)   The plaintiff’s bad reputation as having acted improperly when he was Mayor of the Council;

(b)   The context in which the publications were made was the notoriety of the bad reputation alleged as above; and

(c)   The lack of malice on the defendant’s part

in mitigation of damages.

2At the hearing, Maguire conceded that the defendant’s lack of malice is more appropriately pleaded as a factor relevant to Courtney’s claim for aggravated damages, and does not operate to mitigate damages Courtney may be entitled to.

3The particulars relied on in Maguire’s proposed amendment are:

(a) a finding in the Auditor General report dated 20 July 2005 which was the subject of an earlier ruling (“the AG report”);[1]

(b)   the fact that the report was publicly available;

(c)   an article about the report in The Age newspaper dated 21 July 2005;

(d)   an ABC Radio broadcast dated 16 September 2005;

(e)   an ABC News article dated 27 July 2005; and

(f)     a Google search for “Tom Courtney East Gippsland” which demonstrates the notoriety of the above matters.

[1]Courtney v Maguire [2023] VCC 1391

4Maguire says the question to be determined at this stage is only whether the pleading can stand, not whether the underlying material is admissible.

5He says the pleading sets out the fact of Courtney’s bad reputation and the material, or some of it, demonstrates that bad reputation.

6Maguire says the particulars are directly relevant to the sector of Courtney’s reputation that is alleged to have been impugned by the imputations, that is, his reputation while Mayor of the East Gippsland Shire Council.

7Courtney says evidence of specific acts or misconduct on his part is not admissible to establish a bad reputation.  Courtney says the AG report is not “underlying facts” that may be admissible pursuant to the Burstein principles, and the matters dealt with in the AG report happened too long ago to be relevant.

8The first question to be answered is whether the pleading ought be struck out.  As set out by Derham AsJ in Rowson v Alpass, the power to summarily strike out or dismiss a pleading ought be exercised with caution, especially when there is a real question to be tried.[2]

[2][2017] VSC 401 at paragraph [31]

9The real question to be tried is whether Courtney had a bad reputation prior to the impugned publication which would mitigate the damages to which he is entitled.

10The parties agreed on the relevant principles to be applied (“the Burstein principles”):[3]

(a)   Evidence of specific acts is inadmissible to prove bad reputation unless it is in the directly relevant sector of the plaintiff’s reputation or could otherwise be considered relevant background facts.[4]

(b)   A defendant may only rely upon such facts as fall within the “directly relevant background context” to the defamatory publication; and

(c)   It is illogical and undesirable that a defendant can seek to rely upon such facts in relation to such assessment only if he has presented them as part of a substantive defence to liability, in particular within a plea of justification of the publication.

[3]Burstein v Times Newspapers Ltd [2001] 1 WLR 579; cited and applied in Rush v Nationwide News Pty Ltd (No 2) (2018) 359 ALR 564; Lennon v Herald & Weekly Times Ltd [2021] VSC 147

[4]Plato Films Ltd v Speidel [1961] AC 1090 at 1130; O'Hagan v Nationwide News Pty Ltd (2001) 53 NSWLR 89 at paragraph [9] per Meagher JA, [22] per Stein JA, [38] per Brownie AJA; Lennon v Herald & Weekly Times Ltd [2021] VSC 147 at paragraphs [96] – [98]

11The object of the rule is to prevent defendants initiating a free-ranging inquiry into a plaintiff’s character and conduct.  Case management principles loom large.[5]

[5]Lennon v Herald & Weekly Times Ltd [2021] VSC 147 citing Wigley J in Rush v Nationwide News Pty Ltd (No 2) (2018) 359 ALR 564

12The AG released a report which contained findings critical of the Council and Courtney.  The AG report is not evidence of the truth of those findings and cannot be relied upon for this purpose.

13However, true or not, the existence of such a report in the public domain, and media reports about that report, could have a bearing on the directly relevant sector of Courtney’s reputation, being his conduct while Mayor of East Gippsland Shire Council.

14The underlying fact, in the plea of mitigation, is not whether the findings in the AG report are correct, but the existence of such a report in the public domain.

15Similarly, media reports about a matter, even if the substance of those reports is untrue, may rationally affect the reputation of a plaintiff in the eyes of the ordinary reasonable reader.

16The fact that the AG report and media reports occurred twenty or so years ago is likely to significantly diminish the impact those matters would have on Courtney’s present reputation, but this is not a sufficient basis to strike out the pleading, where there is a real question to be tried. 

17Accordingly, Maguire has leave to include the pleading in relation to mitigation of damages in his amended defence.