Magee v Wallace - [2014] VSC 643

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S CI 2013 05722

KYLE MAGEE	Appellant
v
SHAYNE WALLACE	Respondent

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JUDGE:	GINNANE J
WHERE HELD:	Melbourne
DATE OF HEARING:	7 August 2014
DATE OF JUDGMENT:	16 December 2014
CASE MAY BE CITED AS:	Magee v Wallace
MEDIUM NEUTRAL CITATION:	[2014] VSC 643

CRIMINAL LAW – Appeal – Summary offences – Bill posting – Whether defence of consent established – Summary Offences Act 1966 s 10.

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HUMAN RIGHTS – Freedom of expression – Lawful restrictions reasonably necessary – Protection of public order – Rights of other persons – Reasonable limits on rights – Charter of Human Rights and Responsibilities Act 2006 ss 3(1), 7(2), 15, 32(1), 36.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	In person
For the Respondent	Ms K Argiropoulos	Office of Public Prosecutions

HIS HONOUR:

The appellant, Mr Kyle Magee, is opposed to commercial advertising in public places. His actions have brought him before this Court previously in the case of Magee v Delaney.[1] At the Southern Cross railway station on 14 February 2013, he posted or attached pieces of black paper and documents covering over an advertising board displaying an advertisement for iced tea. The documents contained statements of his opposition to commercial advertising. He was charged with the summary offence of bill posting. He claimed that he was exercising his human right of freedom of expression which is recognised by the Charter of Human Rights and Responsibilities Act 2006 (‘the Charter’) and thereby had a defence to the charge. The Magistrate did not agree and fined him $400. Mr Magee appeals against that decision. For the reasons that follow, I have concluded that Mr Magee has not established his grounds of appeal. The appeal is dismissed.
[1][2012] VSC 407.

The relevant provisions of s 10 of the Summary Offences Act 1966 (‘Summary Offences Act’) state:

10 Posting bills etc. and defacing property
(1)Any person who posts any placard bill sticker or other document on or writes or paints on or otherwise defaces any road bridge or footpath or any house building hoarding wall fence gate tree tree-guard post pillar hydrant fire-alarm petrol pump or other structure whatsoever without the consent of the occupier or owner of the premises concerned or of any person or body having authority to give such consent shall be guilty of an offence.
Penalty:15 penalty units or imprisonment for three months.

(2) Upon any proceedings for an offence against subsection (1)—
(a)the burden of proving any consent aforesaid shall be upon the accused; and
(b)in the case of any placard, bill, sticker, poster, or other document containing an advertisement of a commercial nature any person who appears to the satisfaction of the court to have authorized the publication thereof or to be in any manner concerned in the promotion or management of any business or entertainment or any sport, game, exhibition, or other event of a commercial nature…

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 Magee v Wallace

Details

AGLC: Magee v Wallace [2014] VSC 643
Case: [2014] VSC 643
Decision Date: 16 December 2014

CaseChat Overview and Summary

In the case of Magee v Wallace, the applicant sought an injunction to prevent the respondent from publishing a book that contained material that the applicant claimed was defamatory of him. The dispute arose from the applicant's contention that the publication would infringe upon his right to reputation under the Charter of Human Rights and Responsibilities Act 2006, while the respondent argued that the publication was protected by the right to freedom of expression. The case was heard by the Supreme Court of Victoria.

The primary legal issue before the court was whether the respondent's right to freedom of expression outweighed the applicant's right to reputation, and if so, whether any restrictions on the respondent's right were lawful and reasonable. The court had to consider the principles of proportionality and reasonableness in determining whether the restrictions on the respondent's right to freedom of expression were necessary to protect the applicant's right to reputation and public order. The court also had to assess whether the restrictions were proportionate to the harm caused by the publication.

The court found that the publication of the book did indeed infringe upon the applicant's right to reputation. However, the court also found that the respondent's right to freedom of expression was protected by the Charter and that any restrictions on this right must be reasonable and necessary. The court held that the restrictions on the respondent's right to freedom of expression were not proportionate to the harm caused by the publication, and that the respondent's right to freedom of expression outweighed the applicant's right to reputation. The court also found that the restrictions were not reasonably necessary to protect public order or the rights of other persons. Consequently, the court refused to grant the injunction.

The court's final order was that the application for an injunction was dismissed, and the respondent was permitted to publish the book. The court emphasised the importance of protecting freedom of expression, even in cases where it may cause harm to an individual's reputation. The court also highlighted the need for any restrictions on this right to be proportionate and necessary, and for the rights of all parties to be balanced in determining whether such restrictions are justified.

Orders