Mirabella v Price and Anor (Ruling)
[2017] VCC 794
•20 June 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
| DEFAMATION LIST |
Case No. CI-17-01644
| SOPHIE MIRABELLA | Plaintiff |
| v | |
| LIBBY PRICE | First Defendant |
| and | |
| BENALLA NEWSPAPERS PTY LTD (ACN 006 227 443) | Second Defendant |
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JUDGE: | JUDICIAL REGISTRAR GURRY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 June 2017 | |
DATE OF RULING: | 20 June 2017 | |
CASE MAY BE CITED AS: | Mirabella v Price & Anor (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 794 | |
RULING
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Subject: PRACTICE AND PROCEDURE
Catchwords: Defamation – pre-trial proceedings – change of venue – balance of convenience – public figure – local newspaper article – social media
Legislation Cited: Civil Procedure Act 2010, s8, s9; County Court Civil Procedure Rules 2008, r5.08, r47.01
Cases Cited:McCready v Bendigo Health [2014] VSC 564; Birti v SPI Electricity Pty Ltd (No 2) & Ors [2012] VSC 482; Wederell v Ballarat Health Services [2014] VSC 636; Hansen v Border Morning Mail Pty Ltd (1987) 9 NSWLR 44; Coogan & Anor v Southern Publishers Pty Limited & Ors (unreported) NSWSC (No 19163 of 1993);
Ruling: Application granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T J Mullen | David Joseph & Co Lawyers |
| For the Defendants | Mr D P Gilbertson QC | HWL Ebsworth Lawyers |
HIS HONOUR:
1 The plaintiff issued proceedings in the County Court of Victoria at the Melbourne Registry on 19 April 2017. A Defence to the proceedings was filed on 31 May 2017.
2 This is an application by the defendant to transfer the proceedings to the Wangaratta Registry of the County Court of Victoria.
3 The plaintiff alleges that an article published on 20 April 2016 on page 4 of The Benalla Ensign entitled “Awkward Encounter”,[1] and subsequently republished by uploading a link on the defendant’s website,[2] was defamatory.[3] The plaintiff pleads, in paragraph 7 of the Statement of Claim:
“In their natural and ordinary meaning both of the Articles were defamatory [to] Mirabella and meant and were understood to mean that Mirabella had physically pushed Cathy Magowan [sic] out of the way of a photograph for her own political reasons.”
[1]Paragraph 4, Statement of Claim
[2]Paragraph 5, Statement of Claim
[3]Paragraph 7, Statement of Claim
4 The article which was published on 20 April 2016 is set forth in Schedule A annexed to the plaintiff’s Statement of Claim, and reads:
“Awkward encounter
It seems election fever has struck with a vengeance with a cacophony of politicians attending the opening of the new wing at Cooinda Village by Federal Liberal MP Ken Wyatt last week.
The former member for Indi and now Liberal candidate for the seat, Sophie Mirabella, took exception to the current member for Indi, Cathy McGowan, asking to have her photograph taken with Mr Wyatt in front of the Cooinda plaque commemorating the opening.
Mrs Mirabella very publicly pushed Ms McGowan out of the way to obstruct the photo being taken.
All politicians had been invited by Cooinda Village to attend.
Ms McGowan did get her photo with the rather bewildered Mr Wyatt, but not in front of the plaque.”
5 In the Statement of Claim, the plaintiff pleads that she:
(a)was at all material times, until the Parliamentary election on 2 July 2016, a candidate contesting the Federal electorate of Indi in the State of Victoria for the Liberal Party of Australia;[4]
(b)had held the seat of Indi for the Liberal Party as a member of the Australian House of Representatives from 2001 to 2013, but lost her seat in the 2013 Federal election to the independent candidate, Cathy McGowan;[5]
(c)was a well-known public figure within the electorate and in the national media;[6]
[4]Paragraph 1(a), Statement of Claim
[5]Paragraph 1(b), Statement of Claim
[6]Paragraph 1(c), Statement of Claim
6 The first defendant, Libby Price, was a journalist and editor of The Benalla Ensign which was a hard copy weekly newspaper published in the north-eastern Victorian town of Benalla, and which was also published as a website on [7]
[7]Paragraph 2(a), Statement of Claim
7 In the Defence of 31 May 2007, the first defendant:
(a)admits that at all material times, she is and was the editor of The Benalla Ensign published in the Benalla and surrounding areas with over thirty years’ experience, but does not admit otherwise to paragraph 2 of the Statement of Claim;
(b)admits the publication of the article as pleaded in paragraph 4 of the Statement of Claim;[8]
(c)admits that the article was uploaded to the website, as pleaded in paragraph 5 of the Statement of Claim;[9]
(d)admits the articles were of, and concerning, the plaintiff;[10]
(e)denies the articles were defamatory or meant and were understood to mean, or capable of meaning, or being understood to mean the meaning as pleaded in paragraph 7 of the Statement of Claim.[11]
[8]Paragraph 4, Defence
[9]Paragraph 5, Defence
[10]Paragraph 6, Defence
[11]Paragraph 7, Defence
8 The plaintiff relies upon an affidavit of David Joseph, sworn on 6 June 2017 and the defendant relies upon an affidavit of Jason Anton Frydman, affirmed on 5 June 2017 for this application.
9 The Rules permit a plaintiff to choose the venue at which the proceeding is to be heard. Rule 47.01 of the County Court Civil Procedure Rules 2008 says:
“Unless the court otherwise orders, the place of trial of a proceeding shall be determined in accordance with Rule 5.08.”
Rule 5.08 says, at subparagraph (1):
“A writ shall be indorsed with a statement of the place and mode of trial desired.”
10 In support of the application I was referred by defendant’s counsel to the decision of J Forrest J in McCready v Bendigo Health.[12]
[12][2014] VSC 564
11 That was a matter wherein the plaintiff had instituted proceedings in the Melbourne Registry of the Supreme Court against Bendigo Health and her claim related to alleged negligent treatment at the Bendigo Base Hospital. The Court, on its own motion, gave the plaintiff’s lawyers an opportunity to make submissions as to why the proceeding should not be transferred from the Melbourne Registry to the Bendigo Registry for hearing in Bendigo. The plaintiff’s lawyers had resisted the transfer on the grounds that it was inconvenient and costly for themselves, counsel and expert witnesses to prosecute the case in Bendigo. The defendant sought for the proceedings to be transferred and his Honour ordered for the trial to be heard in Bendigo.
12 In McCready,[13] J Forrest J said, when considering the legal principles, the starting point, but certainly not the end point, is that the rules permit the plaintiff to choose a venue as to where the proceeding is to be heard.[14] As his Honour said:
“In effect, this represents the default position and, absent any other factor, the plaintiff’s choice of venue will prevail. That choice will be displaced if other considerations satisfy a court that the chosen venue is inappropriate.”[15]
[13]Supra
[14]Paragraph 9
[15]Paragraph 10
13 His Honour said:
“As I read the authorities, primary factor in determining the appropriate venue is that of the balance of convenience.”[16]
[16]Paragraph 11
14 In discussing other considerations that could not be overlooked, His Honour stated:
“… it is in the interests of the administration of justice in this state that cases arising out of a particular regional event and involving residents of that region be determined in the local court, if that can be accommodated and a fair trial ensured. As Warren CJ has observed in several extra‑judicial statements, the Supreme Court of Victoria is a court for all Victorians – this means not only the litigants but also those in regional centres who are entitled to expect that any civil litigation arising in that area will be determined in the local court.”[17]
[17]Paragraph 15
15 Later in his Judgment, J Forrest J said:
“Although by no means determinative of the result, I regard it as highly desirable that residents of Bendigo have the opportunity to watch and, perhaps as jurors, participate in a trial involving the treatment of a local resident at the major hospital in their city. The events giving rise to the claim arose in Bendigo and it is the natural forum for the case. It was not suggested by either party that either Mrs McCready or the Hospital could not obtain a fair trial in Bendigo. No doubt the selection of the jury might require a greater pool than usual, but this is not an insurmountable problem.”[18]
[18]Paragraph 28
16 Counsel for the defendant submitted that this is a local case which extends to the Wangaratta region, given that the plaintiff is the former Member of Parliament for that area, which includes Benalla and Wangaratta. The closest circuit Court is Wangaratta.
17 It was further submitted that a number of the key witnesses to the event reside and live within the region, including the first defendant. The second defendant is a regional newspaper. Further, local residents should have an opportunity to attend, and be jurors, in what is clearly a local matter.
18 I was also referred to other authorities in support of the defendant’s application. These were:
(a) Wederell v Ballarat Health Services,[19] a decision of J Forrest J, where he followed the earlier decision of McCready[20] and transferred proceedings from the Melbourne Registry to the Ballarat Registry. The plaintiff had alleged negligence involving the hospital staff after having been admitted to undergo total knee replacement surgery. His Honour said, at paragraph 26, in regard to community participation:
[19][2014] VSC 636
[20]Supra
“… Justice should be able to be seen to be done in regional, as well as metropolitan, Victoria.”
(b) Hansen v Border Morning Mail Pty Ltd,[21] concerned an application brought by the defendant to transfer proceedings from Sydney to Albury. The defamation action was based upon the publication of two articles by the defendant in the Border Morning Mail, wherein the plaintiff alleged the matter complained of suggested he was a major drug dealer in Albury and of having murdered another drug dealer. Hunt J said, at 49:
[21](1987) 9 NSWLR 44
“In every sense, therefore, this case is one properly described as local and the balance of convenience would in normal circumstances dictate that it be heard in Albury. … .”
On the issue of whether the plaintiff would receive a fair trial, his Honour said, at 53:
“… It is necessary to establish firmly and not merely by conjecture that a suspicion may be engendered in the minds of reasonable people that there is such a real risk that the trial may not be fair and unprejudiced. … .”
The application to change the place of trial was granted.
(c) Coogan & Anor v Southern Publishers Pty Limited & Ors,[22] an unreported decision of Levine J in the Supreme Court of New South Wales Common Law Division. In that case, the plaintiff had instituted proceedings in Sydney against the defendant for damages for defamation arising from publication on 14 August 1993 in a newspaper known as the “Cooma Monaro Express”. His Honour stated it was clear this action was a “local” action which involved a provincial newspaper dealing with a subject matter of concern to the residents of Cooma and said, at 3:
[22](Unreported) NSWSC (No 19163 of 1993), 21 June 1996 (BC9602610)
“I am persuaded that it is a local matter and that the question really appears to deal with the issue of geographical convenience for people who are not in Sydney, the plaintiffs’ chosen venue. To put it starkly, the choice is as between having everyone from both outside of Sydney and New South Wales to come to Sydney or to go to Cooma. … .”
Issues considered by his Honour included
· the costs involved in the matter being transferred to a circuit town with respect to travel by legal representatives, witnesses and the like;
· a witness to come from Melbourne; and
· the availability of special defamation counsel.
His Honour said, at 5:
“Notwithstanding the reservations I have as to the practical effect on the conduct of the business of the Court generally by my making an order of the kind I have in mind, bearing in mind R1A, the proper application of the principles generally in Hansen, and the findings specifically that it is a local Cooma matter, that even though the plaintiffs have chosen their venue to be Sydney, all the evidence points to at least the balance of convenience favouring the applicant (and the other parties) in terms of geography. The predominant feature is the local nature. Absent any suggestion of prejudice it is appropriate therefore that O.1 in the Notice of Motion be made.”
19 Counsel for the plaintiff referred me to a decision of Birti v SPI Electricity Pty Ltd & Ors (No 2)[23] of Dixon J. This was an application by the plaintiff who had issued proceedings in the Supreme Court for trial by jury in Melbourne, for trial before a jury in Wodonga. It was a claim for psychiatric injury arising from a major bushfire, being the Beechworth fire on Black Saturday.
[23][2012] VSC 482
20 Dixon J was satisfied that conducting the trial in Melbourne would facilitate the just, efficient, timely and cost effective resolution of the proceeding, and saw no reason to disturb the venue selection signified by the writ.
21 His Honour, at paragraph 16, said:
“The authorities that require that the parties seeking a change in venue must show a manifest preponderance of convenience in his or her favour developed in earlier times when travel was more difficult and time consuming than it is now. Thus, despite the language used, it was not an onerous standard to meet. As Kaye J noted in Butcher v Australian Tartaric Products Pty Ltd, r 47.01 is a rule of practice that should be given a practical application. The relevant principles governing the exercise of a procedural discretion are now set out in the Civil Procedure Act 2010. If I applied the traditional test, I am not satisfied, after taking into account the above considerations, that there is a substantial preponderance of convenience in favour of conducting the trial at Wodonga. However, having regard to the Civil Procedure Act 2010, the question is whether holding the trial at Wodonga rather than Melbourne will facilitate the just, efficient, timely and cost effective resolution of the proceeding. In exercising that discretion I have regard to the matters set out in s 9 of the Act. On considering the objects set out in s 9(1)(c), (d), (f), and (g), as they apply to the considerations put before me by the parties, I am not persuaded that the overarching purpose under the Civil Procedure Act is better achieved by a trial in Wodonga.”
22 Both Dixon J and J Forrest J, in their respective decisions, looked at competing considerations of the parties. These included the location of the parties, the location of witnesses, location of the counsel and solicitors, and as I have stated earlier, J Forrest J considered community participation.
23 The plaintiff’s counsel submitted that the onus is on the defendant to show that the default position should be diverted from. The argument that this was, from a witness convenience perspective, more a local case was not correct. None of the witnesses were located in Wangaratta itself and there would only be a small number of witnesses who would be called to give evidence from the local region. The plaintiff resides in Perth and Ken Wyatt is also based in Perth, and whilst Cathy McGowan is the local member, she constantly travels around the state. At paragraph 11 of the affidavit in support of the plaintiff’s solicitor, David Joseph, he deposed that the plaintiff had advised that her only local Wangaratta witness to be called would be Karen Rourke from the Liberal Party office and Ms Rourke was happy to travel to Melbourne.
24 It was also submitted by the plaintiff that this is not entirely a local case. The publication and re-publication now means that the articles have been published around Australia.
25 Finally, it was submitted that there were concerns raised by the plaintiff as to whether there would be a just resolution of the proceeding, although the plaintiff would not say that she could not obtain a fair trial if the matter was heard in Wangaratta.
26 I note this application was brought on by way of email correspondence from the defendant solicitor to the Directions Group of the County Court of 22 May 2017. In that correspondence, the defendant solicitor stated his clients wished to make application to transfer the proceedings to the Wangaratta Registry of the County Court on the basis that all parties and likely witnesses in the matter are more proximate to Wangaratta. The correspondence went on to state that they had requested the plaintiff’s consent to the transfer but this was refused.
27 I note in the affidavit of the plaintiff solicitor, David Joseph, sworn 6 June 2017, at paragraph 3, he deposed he had presumed, given the very tight time-frames in relation to the directions hearing, that it would simply be a directions hearing on 6 June 2017 and not a contest in relation to the place of trial. He went on to state:
“Accordingly, I had not had the time to obtain sufficient instructions as to my client’s likely witnesses or other matters in relation to the relative convenience of a trial in Melbourne, or Wangaratta for that matter.”
28 I do not have the benefit of any affidavit material from the plaintiff. However in her solicitor’s affidavit of 6 June 2017, he deposed, in paragraph 9, as to his own observations about the election of the seat of Indi being highly partisan, with many of the electors having formed views of the incident that was the subject of the article. He further deposed to the issue having been to the fore in the minds of voters in the north-east of Victoria, of which Wangaratta is a hub.
29 There is no decisive reason why, for the witnesses involved in this matter, and the parties, that the trial cannot proceed in Melbourne or Wangaratta. In both locations witnesses will be required to travel and if that becomes difficult, arrangement for evidence to be given by videolink could be made. Counsel regularly appear at circuits in regional parts of Victoria, as do instructing solicitors who are based in Melbourne. Further, from a case management perspective, the Defence has only just been filed and no directional orders have been made. If the matter was to be transferred to Wangaratta, it could still be case managed by the Court at either Wangaratta or Melbourne as may be required and this is no different to other matters in the Wangaratta circuit. Any interlocutory applications could be made at either Court and in accordance with the Court timetable.
30 Given that on these considerations there is no significant difference with where the trial is held, is the local component that I have referred to in the authorities and to which J Forrest J has placed so much reliance, sufficient to persuade me to grant the application? For this I must also consider whether the plaintiff would receive a fair trial if it was held in Wangaratta.
31 Whilst the plaintiff is no longer the local member for the area, she had been for twelve years and stood as a candidate in the 2016 election. In the Statement of Claim, the plaintiff has pleaded that she was a well-known public figure within the electorate and in the national media.[24] A person who has been a local member for a number of years and prominent in the community would probably have both supporters and detractors. However, the plaintiff herself says she is well known in the national media. Also significant now as distinct from at the time of some of the earlier reported authorities, the reporting of an event or any court proceeding, is no longer confined to publication through a local newspaper. Social media and other means of media publication, now allow the re-publication of any story well beyond the confines of a local area.
[24]Paragraph 1 (c), Statement of Claim
32 There is no doubt this was a local event and as I am not persuaded that the plaintiff would not receive a fair trial, I consider it appropriate that the proceedings be transferred to be heard at Wangaratta. The predominant feature making this of a local nature is consistent with features in the authorities I have referred to which support the transfer of the proceedings.
33 The defendant’s application is granted.
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