Courtney v Maguire (Subpoena Objection)
[2023] VCC 1332
•3 August 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 |
---
JUDGE: | HER HONOUR JUDGE CLAYTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 August 2023 | |
DATE OF RULING: | 3 August 2023 | |
CASE MAY BE CITED AS: | Courtney v Maguire (Subpoena Objection) | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1332 | |
REASONS FOR RULING
---
Subject:EVIDENCE – DEFAMATION
Catchwords: Pleadings – subpoena objection – whether subpoenaed material is relevant – whether subpoenaed material assists the defendant establish their defence of contextual truth – fishing expedition – overarching obligations
Legislation Cited: Civil Procedure Act 2010
Cases Cited:Rush v Nationwide News Pty Ltd & Anor [2018] 359 ALR 473
Volunteer Fire Brigades Victoria v Country Fire Authority [2016] VSC 573
Ruling: Objection upheld.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Castelan | Harding Stenning & Co Lawyers |
| For the Defendant | Mr T Burn-Francis | Strongman & Crouch |
HER HONOUR:
1The defendant, Mr Philip Maguire, served a subpoena on a Mr Glenn Jones seeking:
(a) All correspondence during the period 1 January 2014 to 31 December 2015 with Mr Thomas Courtney in relation to two properties at Mathiesons Road, Eagle Point;
(b) Correspondence between Mr Jones and Gatto Corporate Services between 1 January 2013 and 31 December 2015 in relation to services allegedly provided by Mr Courtney.
2Mr Courtney objects to inspection of any documents produced on the basis that they are not relevant to any issue in the proceeding and are an impermissible fishing expedition.
3Mr Courtney pleads that the defamatory comments carry imputations that he is untrustworthy because of his dealings with organised crime figures and engaged in criminal conduct that resulted in proceedings in the Ringwood Magistrates’ Court.
4Mr Maguire pleads that permissible variants of the imputation that the plaintiff is untrustworthy because of his dealings with organised crime figures is that ‘the plaintiff was untrustworthy’.
5Mr Maguire pleads a contextual truth defence in relation to all the imputations, alleging that the first comment also carried an imputation that Mr Courtney had engaged in serious misconduct when he was on the East Gippsland Shire Council and by reason of the substantial truth of the contextual imputation, no further harm was done to Courtney’s reputation.
6Mr Maguire pleads extensive particulars in relation to the alleged serious misconduct on East Gippsland Shire Council which he says support his defence of truth that Mr Courtney is untrustworthy, and support his defence of contextual truth.
7Those particulars relate to Mr Courtney’s dealings with and involvement while a member of East Gippsland Shire Council in two properties, neither of which is in Mathiesons Road.
8Mr Maguire does not press the correspondence in relation to Gatto Corporate Services.
9He says the documents sought are relevant to:
(a) the subject matter of the first comment in the proceedings which are that Courtney had ‘dealings in the Ringwood Magistrates’ Court’.
(b) Mr Courtney’s claim for aggravated damages.
10He says there is a reasonable possibility that the documents will materially assist in establishing the defence.
11He relies on an affidavit of Mr Joshua Flory which details an unrelated dispute between Mr Courtney and Aughtersons Lawyers over payment of about $4000 in legal fees. As I understand it from that affidavit and the exhibits to that affidavit, there was a dispute as to whether Mr Courtney was liable for the fees incurred. The Magistrate concluded Mr Courtney was liable. Mr Jones was involved in the underlying legal matter in which the lawyers’ fees were incurred. Mr Maguire says correspondence between Mr Jones and Mr Courtney may assist him in establishing his defence that Courtney is untrustworthy, and may assist in establishing the contextual truth defence because he had dealings in the Ringwood Magistrates’ Court. There is no explanation of how that correspondence would do so and it is not apparent to me why it would demonstrate untrustworthiness.
12It is not apparent to me how the dispute in the Ringwood Magistrates’ Court demonstrates either of the two propositions propounded by Maguire. Half the litigants who come to trial will lose their case. This does not demonstrate that litigant is untrustworthy.
13Nor is it apparent how any documents that correspond to the subpoena are relevant to the case as pleaded.
14I accept Mr Maguire’s submission that providing some particulars of a defence of truth does not preclude evidence of other matters being relevant and admissible at trial.[1]
[1]Rush v Nationwide News Pty Ltd & Anor [2018] 359 ALR 473, paragraph [174]
15However in the circumstances of this case, on the material before me, I am not satisfied that the documents are relevant or are reasonably capable of materially assisting the defendant to establish his defence. They are clearly a fishing expedition.
16The fact that Mr Courtney claims aggravated damages on the basis that Mr Maguire knew the imputations were false or had reckless indifference to their truth does not found a basis for a fishing expedition.
17I am mindful of my obligations under the Civil Procedure Act 2010 and to ensure that the real issues in dispute are resolved in a just, timely, and cost effective manner. As was said by J Forrest J in Volunteer Fire Brigades Victoria v Country Fire Authority [2016] VSC 573 at 34:
“The overriding consideration of the CPA is to ensure that the parties receive a fair trial i.e. ‘a just resolution’ to use the words of the CPA. However, a fair trial is not a perfect trial. It is, rather, the best trial that a court can provide to the parties within reason and in proportion to the issues in dispute and the court’s resources. Accordingly, demands for discovery of documents which are peripheral to the central issues cannot be entertained. The Court is obliged to focus on the central issues as best it can be determined at this point in the litigation.”
18This subpoena is, at best, seeking documents related to a peripheral matter that is not pleaded, and is not clearly relevant to the issues in dispute.
19The plaintiff’s objection to inspection of the documents produced is upheld.
20Costs of the application are reserved.
0
1
0