McLachlan v Browne

Defendants' application to re-plead contextual imputations

1. On 7 December 2018, in response to those rulings, the defendants sought leave to re-plead the contextual imputations. The application to re-plead was argued by Mr Dawson SC on behalf of the defendants.
2. In the Fairfax proceedings, leave was sought to plead a contextual imputation in the same terms as that originally pleaded by the ABC, "that the plaintiff is a sexual predator". Fairfax accepted that I had already struck out that imputation in the ABC proceedings; the only purpose of propounding the same imputation in the Fairfax proceedings at this stage was to obtain a ruling for the purpose of an application for leave to appeal foreshadowed at the time I gave my earlier rulings. For the reasons explained above, leave to amend to include that imputation is refused.
3. Five new contextual imputations were proposed in each proceeding. The first was slightly different in each proceeding. In the Fairfax proceeding, it was "that the plaintiff is a sexual predator in that he has indecently assaulted, exposed himself to and sexually harassed multiple women". In the ABC proceeding, it was "that the plaintiff is a sexual predator in that he has indecently assaulted and sexually harassed multiple women". The inclusion of the additional element ("exposed himself") in the Fairfax imputation is explained by the sub-heading of the article.
4. Mr Dawson's oral submissions provided a helpful distillation of the principles considered above. He emphasised that it is important in this context not to conflate imprecision and generality. He submitted that the fact that a contextual imputation in general terms might permit evidence extraneous to the matter complained of to be adduced at the trial does not of itself indicate that the imputation is liable to be struck out for imprecision. As already indicated in the reference to Feldman above, I accept that is so.
5. Mr Dawson acknowledged that, in almost every instance of defamation, it is possible to find a general imputation which lacks the necessary precision and permits the introduction of extraneous evidence in a manner not contemplated by s 26. He cited the decision of Fairfax Media Publications Pty Ltd v King [2015] NSWCA 172 as an example. In those proceedings, the plaintiff had pleaded specific imputations concerning "kickbacks" which the matter complained of imputed him with having approved in his capacity as Chief Executive Officer of Leighton Holdings Ltd. The defendants pleaded contextual imputations that the plaintiff had conducted himself in such a corrupt manner so as to make him unfit to hold the office of CEO of a large international company and that the plaintiff had engaged in serious corporate misconduct with respect to Leighton's international empire. The particulars relied upon in support of those contextual imputations introduced material unrelated to the alleged kickbacks. I struck out the contextual imputations on the grounds that they were insufficiently precise and specific to avoid confusion in relation to the meaning contended for. The Court of Appeal refused an application for leave to appeal against that decision.
6. In oral submissions in the present case, Mr Dawson accepted King as an example of an imprecise contextual imputation relied upon to found a course not permitted by s 26. He submitted that the decision illustrates the importance of the distinction between imprecision and generality, the Court of Appeal having held in that case that the corruption imputation was an example of an insufficiently precise imputation.
7. Mr Dawson relied however on the decision of Fairfax Media Publications v Zeccola [2015] NSWCA 329, which he noted was decided after Hodgkinson and King. The Court in that case held that the purpose of the contextual truth defence is that a plaintiff should not be able to avoid serious stings in defamatory matter by selective pleading: at [70] per McColl JA, Macfarlan JA agreeing at [112]. Mr Dawson submitted that selective pleading includes pleading a specific imputation and not the general. He submitted that, in the present case, the article is not only about the 2014 Rocky Horror Show; it is about conduct on the part of Mr McLachlan that reveals what Mr Dawson termed a persistent characteristic.
8. Mr Dawson also placed particular emphasis on the concluding paragraph of the decision of the Court of Appeal in Hodgkinson, where Hodgson JA said at [40]: "For these reasons, I would dismiss the appeal. I would leave in place the liberty to re-plead. A contextual imputation which commences with the words of the subject contextual imputation, and continues with words introduced by "in that", could possibly be sufficiently specific and precise."
9. On behalf of the plaintiff, Mr Richardson accepted that the issue is always one of degree. He noted, however, that the Court of Appeal has twice approved the proposition that a contextual imputation must be formulated so that the facts, matters and circumstances that can be relied on to establish its truth bear a reasonable relationship both to the contextual imputation itself and to the published material relied on by the plaintiff: Hodgkinson at [34]; approved in King at [42]. He submitted that the matters complained of in these proceedings consist of and are confined to a series of allegations about the 2014 Rocky Horror Show.
10. In my respectful opinion, that is a correct statement of principle and one which was not derogated from by the later decision in Zeccola. It reflects the proposition derived from Drummoyne that the degree of specificity required of any imputation is anchored in the degree of specificity in the matter complained of.
11. It may be noted that, subject to one exception, the new words "in that he has indecently assaulted, exposed himself to and sexually harassed multiple women" reflect no lesser specificity than the plaintiff's imputations. The exception is that, whereas the plaintiff's imputations identify a particular field in which the imputed conduct occurred (with female colleagues in the workplace), the defendants' contextual imputation refers to "multiple women" and is thus capable of being supported by facts, matters and circumstances having no reasonable relationship with the particular characteristic attributed to the plaintiff by the matters complained of.
12. There was no suggestion that the matters complained of are incapable of conveying the general imputation; rather, the focus of the plaintiff's submissions was on the requirement that there be a reasonable relationship between the imputation, the matters complained of and the particulars sought to be relied upon.
13. Mr Dawson's submissions have persuaded me that the alleged discreditable conduct with which these articles are concerned is in the nature of a persistent characteristic, such that the introduction of allegations tending to prove that characteristic but reaching beyond the 2014 production of the Rocky Horror Show would not trespass on the principle stated in Hodgkinson. However, the existing particulars travel well beyond allegations of that kind.
14. I have concluded that the first proposed new contextual imputation remains insufficiently precise but that the defendants should have leave to plead a contextual imputation that confines the imputation to conduct directed at female colleagues in the workplace. That would allow the defendants to rely on at least some of the new particulars concerning "Dr Blake Mysteries". I do not accept the plaintiff's submission that he will be unable to prepare to meet those new allegations in the time remaining before the trial. However, the particulars include many other extraneous allegations that, in my view, are too remote from the issues raised by the pleadings. I will hear the parties as to the fate of those particulars in light of this ruling.
15. The second contextual imputation in each proceeding is "the plaintiff conducted himself in a manner that warrants the police conducting an investigation into whether he indecently assaulted, exposed himself to and assaulted several women". The proposed reformulation is borrowed from remarks made during the first round of argument. It remains hopelessly unclear, in my view. I appreciate that imputations that a person "so conducted himself as to warrant" investigation have been pleaded and allowed, probably in many cases. In my respectful opinion, imputations in that form are frequently if not inherently problematic. The range of conduct that might warrant police conducting an investigation of the kind specified is large and diverse. Identification of the purpose of the investigation does little to delineate the parameters of the conduct allegedly attributed to the plaintiff by the matter complained of.
16. The third contextual imputation in each proceeding is "the plaintiff sexually preyed on several women when they were in vulnerable situations". As submitted by Mr Richardson, that is an almost identical reformulation of the imputation I have already struck out. The reformulation does nothing to rectify the problems previously identified.
17. The fourth and fifth contextual imputations in each proceeding are "that the plaintiff is a bully" and "that the plaintiff is a bully in that he engages in aggressive and intimidating behaviour towards work colleagues in productions in which he appears".
18. Those imputations are entirely new. As noted by Mr Richardson, there was no explanation for their being propounded at this time and they bear no relationship to any of the previous contextual imputations.
19. Mr Richardson further submitted that both imputations are imprecise. I agree. The imputation that the plaintiff is a bully is pleaded at the highest level of generality. The particulars relied upon to support it illustrate the absence of any reasonable or sensible connection between the imputation and the matters addressed in the articles; it illustrates the exact vice recognised in Hodgkinson and King. As submitted by Mr Richardson, the further elucidation in the second formulation of the imputation ("in that he engages in aggressive and intimidating behaviour towards work colleagues in productions in which he appears") is no more than a restatement of the allegation of bullying.
20. The imprecision of the imputations is fatal but I would also note, for completeness, that the lateness of this particular proposed amendment (the bullying imputations) so close to the trial date, in circumstances where the proceedings are already likely to be lengthy and complex, militates against the grant of leave to amend at this stage.
21. For those reasons, I make the following orders: 1. I grant leave to the defendants in the Fairfax proceedings to amend their defence so as to include a contextual imputation "that the plaintiff is a sexual predator in that he has indecently assaulted, exposed himself to and sexually harassed female colleagues in the workplace"; 2. I grant leave to the defendants in the ABC proceedings to amend their defence so as to include a contextual imputation "that the plaintiff is a sexual predator in that he has indecently assaulted and sexually harassed female colleagues in the workplace"; 3. The defendants' application for leave to re-plead is otherwise refused.

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