Mirabella v Price (Ruling No 2)

[2017] VCC 1192

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW 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:	HIS HONOUR JUDGE SMITH
WHERE HELD:	Melbourne
DATE OF HEARING:	3 August 2017
DATE OF RULING:	4 September 2017 (Revised)
CASE MAY BE CITED AS:	Mirabella v Price & Anor (Ruling No 2)
MEDIUM NEUTRAL CITATION:	[2017] VCC 1192

RULING
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Subject:  PRACTICE AND PROCEDURE – Pleadings – Strike out application

Catchwords:             Defamation – where Defence contained a denial that published articles were defamatory but further pleaded that, on the basis of different meaning than that pleaded by the plaintiff, they were substantially true  

Authorities Cited:     David Syme & Co v Hore-Lacy (2000) 1 VR 667; Setka v Abbott & Anor (2014) 44 VR 352; Newnham v Davis (No 2) [2010] VSC 94; McDonnell Dowell Constructors (Aust) Pty Ltd v Gas Transmission Services Western Australia (Operations) Pty Ltd [2007] VSC 301; Opat Decorating Service (Vic) Pty Ltd v Jennings Group Ltd (unreported, VSC, 16 September 1994, BC9405102)

Legislation Cited:     Defamation Act 2005; Civil Procedure Act 2010; County Court Civil Procedure Rules 2008

Ruling:  Summons dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms G Schoff with Mr T Mullen	David Joseph & Co Lawyers
For the Defendant	Mr D Gilbertson QC	HWL Ebsworth Lawyers

HIS HONOUR:

1       By Writ issued on 19 April 2017, the plaintiff claims against the defendants for damages and a permanent injunction. 

2       The plaintiff is a former federal politician and former Member of Parliament.

3       She alleges that:

·The first defendant is a journalist and editor of the Benalla Ensign newspaper.

·The second defendant is the owner and publisher of that newspaper.

·On or about 20 April 2016, the defendants published articles in the newspaper and on an associated website.

·The articles were defamatory of the plaintiff.

4       The alleged publications were identical and relatively short.  They read as follows: 

“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 paragraph 7 of the plaintiff’s Statement of Claim, the plaintiff pleaded:

“In their natural and ordinary meaning both of the articles were defamatory Mirabella (sic) 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.”

6       In paragraph 7 of the defendants’ Defence filed on 31 May 2017, the defendants pleaded:

“They deny that the Articles were defamatory or meant or were understood to mean or were capable of meaning or being understood to mean the meaning in paragraph 7.”

7       Under a sub-heading “Truth”, in paragraph 11 of the Defence, the defendants pleaded:

“Further, if (which is denied) the Articles were defamatory of the plaintiff, in their natural and ordinary meaning, the Articles meant and were understood to mean that the plaintiff had physically pushed a politician out of the way for her own political reasons, and in that meaning, the Articles were substantially true, by reason of which there is defence both at common law and pursuant to s 25 of the Defamation Act2005 (Vic).

PARTICULARS

On Friday, 15 April 2016, the plaintiff attended the opening of a new wing at Cooinda Village, Aged Care Facility, at 1-35 Kilfeera Rd, Benalla.  Also in attendance were a number of people, including the independent member for Indi, Cathy McGowan, the then Assistant Federal Minister for Health and Aged Care, Ken Wyatt, and the Chief Executive Officer of Cooinda Village and Director of Nursing, Margaret Aldous.

Mr Wyatt was requested to participate in a photograph with Ms McGowan and Margaret Aldous in front of a plaque which commemorated the opening.  Before a photograph was taken, the plaintiff placed her hands on Mr Wyatt’s chest, pushed him and said, ‘You’re not having a photo with Cathy,’ or words to that effect.

It can be inferred from the circumstances of the request for the photograph, the plaintiff’s conduct and the words spoken by her that the plaintiff was aware that Mr Wyatt had been requested to be photographed with Ms McGowan and that the plaintiff pushed Mr Wyatt out of the way in an attempt to avoid such a photograph being taken.”

8       By Summons filed on 4 July 2017, the plaintiff sought the following order:

“1That paragraph 11 of the Defendants’ Defence dated 31 May 2017 be struck out pursuant to Rule 23.02 of the County Court Civil Procedure Rules 2008 and/or section 48 of the Civil Procedure Act 2010 on the grounds that it:

(i)does not disclose a Defence; and/or

(ii)may prejudice, embarrass or delay a fair trial of the proceeding.”

9 Rule 23.02 of the County Court Civil Procedure Rules 2008 is as follows:

“Where an indorsement of claim on a writ or originating motion or a pleading or any part of an indorsement of claim or pleading—

(a)does not disclose a cause of action or defence;

(b)is scandalous, frivolous or vexatious;

(c)may prejudice, embarrass or delay the fair trial of the proceeding; or

(d)is otherwise an abuse of the process of the Court -

the Court may order that the whole or part of the indorsement or pleading be struck out or amended.”

10 Section 48 of the Civil Procedure Act 2010 provides, insofar as it is relevant to this application, as follows:

“Court’s power to order and direct pre-trial procedures

(1)In addition to any other power a court may have, a court may make any order or give any direction it considers appropriate to further the overarching purpose in relation to pre-trial procedures.

(2)Without limiting subsection (1), a court may give any directions or make any orders it considers appropriate with respect to—

(a)     the conduct of proceedings;

…

(e)     defining issues by pleadings or otherwise, including requiring parties or their legal practitioners to exchange memoranda, or take other steps to clarify questions;

…

(g)     any other matter specified in rules of court.”

11 Section 25 of the Defamation Act 2005 provides:

“Defence of justification

It is a defence to the publication of defamatory matter if the defendant proves that the defamatory imputations carried by the matter of which the plaintiff complains are substantially true.”

12      Plainly, the parties, by their pleadings, are at odds as regards what are the defamatory imputations of the articles. The defendants plead imputations which are different to those pleaded by the plaintiff.

13      The plaintiff submits that, although a Hore-Lacy defence[1] is permitted whereby a defendant may plead different imputations to those pleaded by the plaintiff, such a defence is strictly confined and that the only possible alternative meaning that a defendant may plead and seek to justify is one that is not substantially different from, and not more serious than, the meanings pleaded by the plaintiff.  If the alternative meaning is not a permissible variant of the plaintiff’s pleaded meaning, then the alternative meaning pleaded by the defendants should be struck out. 

[1]David Syme & Co v Hore-Lacy (2000) 1 VR 667

14      The plaintiff submits that the article complained of clearly states that the plaintiff pushed Ms McGowan out of the way of the photograph. 

15      The defendants’ pleaded alternative meaning refers to the plaintiff having pushed “a politician” rather than the particular politician identified in the publications. 

16      The plaintiff submits that the defendants have adopted this approach because the plaintiff did not push Ms McGowan and the defendants do not seek to prove that she did.  In effect, it is submitted that the defendants are seeking to plead irrelevant facts not the subject of the article. 

17      The article, it is submitted, is clear – that she pushed Ms McGowan, her political opponent, for her own political purposes.  It is submitted that the article was published during the period of an election campaign and it is relevant that the plaintiff and Ms McGowan were direct opponents, contesting the seat of Indi in the Federal election.

18      I was referred to a number of authorities by both parties.  I consider that the issue before me can be adequately summarized in the following way - Are the imputations pleaded by the defendants substantially different from the imputations pleaded by the plaintiff? 

19      Here, the plaintiff’s pleaded meaning is that, in their natural and ordinary meaning, the articles were defamatory of the plaintiff and meant and were understood to mean that she had physically pushed Ms McGowan out of the way of a photograph for her own political purposes.

20      The defendants have pleaded that, in their natural and ordinary meaning, the articles meant, and were understood to mean, that the plaintiff had physically pushed a politician out of the way for her own political purposes. 

21      I consider that the defendant’s pleading is a permissible variant of the plaintiff’s imputations.  I consider that:

·        The defendants’ pleaded version is not substantially different from that of the plaintiff.

·        The sting of the publications is that the plaintiff was someone who was prepared to push a politician out of the way for her own political purposes.

22      It might be a different situation if the plaintiff was known to be large and the person allegedly pushed was known to be frail, or someone over whom the plaintiff enjoyed a substantial physical advantage.  In such a case, there might be a significant difference between the plaintiff’s alleged imputations and those of the defendants.  This does not appear to be such a case.

23      The thrust of both pleaded imputations is that the plaintiff did not want Ms McGowan to be photographed with Mr Wyatt and took steps to prevent that happening, for her own political purposes.

24      I was referred to a number of authorities by counsel.

25      In Setka v Abbott & Anor,[2] the Court of Appeal cited, with approval, the decision of Kaye J in Newnham v Davis (No 2),[3] where his Honour said:[4]

[2](2014) 44 VR 352 at paragraph [163]

[3][2010] VSC 94

[4]at paragraphs [18-[19]

“[18]… the defendant is similarly restricted to meeting the same case, which the plaintiff would be entitled to make on its own pleadings.  In other words, the defendant is only permitted to plead, by way of justification or fair comment, a defence addressed to the imputations relied on by the plaintiff, or a meaning or variant of them, which is comprehended in the imputations pleaded by the plaintiff, and is no more injurious than them. If the defendant were to seek to defend imputations which did not answer that description, the defendant would thereby raise false issues at the trial, which are not agitated, nor sought to be agitated, by the plaintiff. In that way, not only would the trial be ‘hijacked’, but unfair prejudice would be occasioned to the plaintiff.

[19]Based on those considerations, it can be seen that a defendant would be entitled to plead justification (or fair comment) to meet a meaning or meanings, which a jury, properly instructed, might find to be a variant, or nuance, of the imputations pleaded by the plaintiff, or comprehended by them, and which is no more injurious than the plaintiff’s imputations.  If the defendant were not entitled to plead to those alternative imputations, the defendant might suffer unfair prejudice, by being prevented from defending and addressing imputations which might be found to arise from the publication by the jury.”

(My emphases).

26      I have come to the conclusion that the imputations pleaded by the defendant are a variant or nuance of the imputations pleaded by the plaintiff and no more injurious than them.  Here, I consider that such imputations as pleaded by the defendant might be found to arise from the publication by the jury.

27      I was referred to the judgment of Habersberger J in McDonnell Dowell Constructors (Aust) Pty Ltd v Gas Transmission Services Western Australia (Operations) Pty Ltd[5] in which he adopted the remarks of Byrne J in Opat Decorating Service (Vic) Pty Ltd v Jennings Group Ltd[6] where His Honour said, with regard to an application under Rule 23.02:

“A plaintiff will be stopped from putting a claim forward only where, assuming the facts pleaded have been established, the claim is so manifestly hopeless that a trial would be a futility. In case of doubt, I should refuse to exercise the power.”

[5][2007] VSC 301 at paragraph [9]

[6]Unreported, VSC, 16 September 1994, BC9405102.

28      I consider that principle would apply equally to a defendant’s pleading.

29      Here, I do not consider that the defence as pleaded in paragraph 11 is so “manifestly hopeless that the trial would be a futility”.  I am comfortably satisfied that there is sufficient doubt concerning the issue and that I should refuse the application.

30      I consider that it should be for the jury to determine what meaning the publication conveyed to the reader, whether it was defamatory and whether it was justified.  In doing so, the jury would no doubt consider whether the particular identity of Ms McGowan as the person pushed is of significance or not.

31 It follows that I do not consider that the defendants’ Defence offends any part of Rule 23.02 and does not engage s48 of the Civil Procedure Act.

32      The Summons will be dismissed.

33      I shall hear the parties in relation to any ancillary orders and or any further directions that either party considers are required.

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