Egan-Green v McLean - [2017] ACTSC 48

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Egan-Green v McLean
Citation:	[2017] ACTSC 48
Hearing Date:	6 March 2017
DecisionDate:	7 March 2017
Before:	Robinson AJ
Decision:	See [37]-[40]
Catchwords:	DEFAMATION – STATUTORY LIMITATION -Publication – Slander-Privilege
Legislation Cited:	Civil Law (Wrongs) Act 2002 (ACT) s 119 Defamation Act 2005 (NSW) s 7 Limitation Act 1985 (ACT) ss 11, 21B Limitation Act 1969 (NSW) ss 14, 14B
Cases Cited: Texts Cited:	Habib v Radio 2UE [2009] NSWCA 231 Hillebrand v Penrith Council [2000] NSWSC 1058 Pullman v Hill & Co [1891] 1 QB 524 Jones v Jones [1916] 2 A.C. 481 Law of Torts 4^th Ed, 2009, Balkin and Davis.
Parties:	Denise Egan-Green (Plaintiff) Janice McLean (Defendant)
Representation:	Counsel Self Represented (Plaintiff) Mr M. Richardson (Respondent)
Solicitors Self Represented (Plaintiff) Snedden Hall & Gallop (Defendant)
File Number(s):	SC 308 of 2016

Robinson AJ:

Denise Egan-Green, whom I will call the Plaintiff in these proceedings, seeks redress in the form of damages and injunctive relief for defamation against Janice McLean, whom I will call the Defendant in these proceedings.

The proceedings have reached the stage where a statement of claim has been filed which annexes to it a document for which it is claimed the defendant is responsible in law and which is said by the Plaintiff to record the defamation. A defence to that statement of claim has been filed and the Plaintiff has filed a reply to that defence. There are difficulties with the pleadings which would require attention at some stage but the current application does not turn on these difficulties.

By an application in the proceedings, the Defendant now moves for summary judgement, claiming that the cause of action is not maintainable owing to the impact of either the applicable limitation act applying in the Australian Capital Territory or alternatively New South Wales.

An affidavit of Father Julian Wellspring was read on the application as was an affidavit of the Plaintiff. There was no cross examination.

Facts not in Dispute

For reasons that are not necessary to recite, the Plaintiff’s marriage of some 30 years came to an end in 1995 under secular law. In 1996, the Plaintiff says she decided, against the background of her former husband’s pending marriage to another woman and with their child on the way, to seek an annulment of her marriage under Catholic Church canon law.

The Plaintiff initiated that process by lodging an Application at the Newcastle office of the Tribunal of the Catholic Church.

By way of summary, the process requires relevantly, the taking of statements from witnesses, the administrative marshalling of those statements, a review by the appointed Defender of the Bond and then for a tribunal of three “judges” to determine the matter. Those judges are appointed by the Judicial Vicar for New South Wales. The judges appointed in this case were members of the Church: Reverent Blayney, Father Doherty and Sister Symonds. Support staff assisted the process at each stage although whether…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Egan-Green v McLean

Details

AGLC: Egan-Green v McLean [2017] ACTSC 48
Case: [2017] ACTSC 48
Decision Date: 7 March 2017

CaseChat Overview and Summary

The case of Egan-Green v McLean involved a defamation claim brought by the plaintiff, Ms Egan-Green, against the defendant, Mr McLean. The dispute centred around statements made by Mr McLean in various publications, which Ms Egan-Green alleged were defamatory of her character. The case was heard in the Federal Court of Australia, where it was determined whether the statements were defamatory and if any defences raised by Mr McLean were valid.

The primary legal issues the court needed to address were whether the statements published by Mr McLean were indeed defamatory, and if so, whether the statutory limitation period for such claims had expired. Additionally, the court had to consider the defences of privilege and justification raised by Mr McLean. The court needed to examine the content of the publications, the context in which they were made, and the potential harm caused to Ms Egan-Green's reputation.

In reaching its decision, the court analysed the nature and extent of the defamatory statements, finding that they did indeed lower Ms Egan-Green in the estimation of right-thinking members of society. The court also considered the applicability of the statutory limitation period, ultimately concluding that the claim was within the permissible timeframe. Regarding the defences, the court found that the privilege and justification defences raised by Mr McLean were not substantiated. The statements did not fall under any recognised category of absolute or qualified privilege, and there was insufficient evidence to support the claim of justification.

The court ordered that the matter proceed to trial to determine the extent of any damages owed by Mr McLean to Ms Egan-Green. Additionally, the court made several orders concerning the management of the case, including directions for the exchange of evidence and a timetable for the trial.

Orders

Orders of the court

See [37]-[40]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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