HER HONOUR: In these proceedings, I heard a series of interlocutory applications over three days in late November. On 3 December 2018, I gave rulings in respect of those applications (including an order striking out the defendants' contextual truth defences), reserving my reasons. Yesterday, after hearing further argument, I ruled on proposed amended contextual truth defences, publishing my reasons for that and the earlier ruling in respect of the contextual truth defences: McLachlan v Browne (No 7) [2018] NSWSC 1914. I did not, owing to pressures of time on that occasion, give my reserved reasons in respect of the remaining rulings given on 3 December 2018.
I have this afternoon heard further argument flowing from my rulings yesterday about the final form of the amended defences. This judgment gives my reserved reasons for the rulings given on 3 December 2018 to the extent that they were not addressed in McLachlan v Browne (No 7) and also determines the applications heard today.
In the first round of applications, the plaintiff sought to have certain particulars of truth in the existing defences struck out. The first ruling I gave was to strike out paragraphs 69 to 71 of the existing defence on the grounds that they were embarrassing in the legal sense, that is, of being impossible to meet or causative of confusion. The reason I gave on that occasion in essence explains why I struck those particulars out but in case further reasons are required, I would simply observe that the point of particulars, which should operate as something in the nature of footnotes, is to identify with particularity the details of an allegation contained in a pleading.
Perhaps the best example of the vice of the particulars provided in paragraphs 69 to 71 is paragraph 71 which states, "most of the cast felt uncomfortable complaining about McLachlan's behaviour, whether directly to him or to management". All of the allegations in those paragraphs are of that kind. They are, in truth, not particulars at all but generalities and that is why I struck them out.
McLachlan v Browne [2018] NSWSC 1968 | Case summary | Zoe
Paragraphs 72 to 80 of the defences related to bullying conduct directed to males. I struck those paragraphs out on the basis, as I said on 3 December 2018, that they were "irrelevant". The defendants have sought reasons in respect of that ruling. What I meant was that, since those particulars related to bullying conduct relating to males, I was persuaded that they were not reasonably capable of supporting the plaintiff's imputation to which they were directed, which is exclusively concerned with conduct directed at females.
Further, the plaintiff's imputation is a compound imputation consisting of separate kinds of conduct all, taken together, amounting to a species of sexual harassment. The imputation is "the plaintiff is guilty of indecently assaulting, sexually harassing, indecently exposing himself to and bullying female cast members of the 2014 production of The Rocky Horror Show". I did not think particulars of non-sexual conduct directed to males were in any way capable of proving the truth of that imputation.
Next, I struck out paragraphs 81 to 82 for the same reasons as I struck out paragraphs 69 to 71. Those paragraphs, again, plead generalities rather than particulars and are wholly incapable of being met or identifying to Mr McLachlan the particulars of the case he has to meet.
Paragraphs 83 to 92 survived the strike-out application save for paragraph 88 which relates to a male. That paragraph was struck out for the reasons I have just given in respect of paragraphs 72 to 80.
Otherwise, the remaining particulars which the plaintiff sought to have struck out fell away with my ruling in respect of the contextual truth defence addressed in McLachlan v Browne (No 7).
A separate application dealt with in the first round of applications was an application by the defendants to amend the defence. The proposed amendment would have had the effect of introducing two kinds of new witness to the case. The first was Ms Wouters, who was a member of the cast of the 2014 Rocky Horror Show. Her complaints are clearly relevant to the issues raised on the existing pleadings, but the objection was that to introduce new witnesses at this stage would cause prejudice to the plaintiff. The second category of new witness was three witnesses from a different production involving Mr McLachlan, to whom I will refer as the Dr Blake witnesses.
In the ruling I gave on 3 December 2018, I indicated that I would not allow the addition of the particulars that introduced the three new Dr Blake witnesses since those particulars were relied upon only in respect of the contextual truth defence, which I struck out that day. However, in the judgment published yesterday, I have now allowed a new contextual imputation expressed in broader terms than the plaintiff's imputation. As a result, some of the new Dr Blake particulars are to be allowed.
In those circumstances, as sought by the plaintiff yesterday, it is appropriate to give my reasons for allowing new witnesses to be introduced at this late stage. The principal considerations in determining whether to allow a late amendment to a pleading are the explanation for the delay and whether the amendment will cause prejudice to the amending party's opponent. In short, the new particulars I have allowed relate to those new witnesses who seemed to me to be the most relevant to the real issues in the proceedings.
There was an objection by the plaintiff on the grounds of the lateness with which the new particulars are brought forward. In particular, it was submitted that there was a gap in the evidence explaining why those witnesses are brought forward now.
The proposed amended defence contained particulars of three Dr Blake witnesses of whom the defendants now press only two. As to those two (Ms Hayes and Ms Samson), Mr Richardson, who appears for the plaintiff, submitted that the explanation for their coming forward late contains something of a gap in that it was not explained what steps, if any, were taken to obtain their evidence between an earlier time (when they declined to assist) up until the time when they ultimately indicated their preparedness to be witnesses. Whilst I accept that there is such a gap, in my view, the explanation that was provided is consistent with the experience of the Court in cases involving these kinds of allegations. Complainants often initially express reluctance to make a statement and later determine to do so. That I think is an adequate explanation for the period Mr Richardson described as unexplained.
Separately, Mr Svilans, the solicitor for the plaintiff, put on an affidavit indicating that the plaintiff would have difficulty meeting that evidence based on the experience in relation to other witnesses and, in particular, delays surrounding obtaining documents on subpoena from those witnesses.
The first thing I would say about that is that I would expect the path of the subpoenas to run more smoothly this time, now that the issues relating to the first round have been resolved. Secondly, although I appreciate the significance of having subpoenaed documents, for example earlier witness statements which might contain inconsistencies with later versions given by such witnesses, I do not think that is the most significant consideration in circumstances where the particulars reveal that these will ultimately be contests, word against word, between Mr McLachlan and the relevant witnesses. Thirdly, if there are difficulties obtaining documents on subpoena, that may be a basis for renewing an objection to the defendants' reliance upon any particular witness.
For those reasons, whilst I accept that there will be some difficulties for the plaintiff in meeting those witnesses at this late stage, I formed the view, having regard to their importance to the defendants' case, that I should allow those particulars to be relied upon.
The third application argued in the first round of applications was an application by the plaintiff to have the issues of liability and damages severed. The parties agreed that the plaintiff's claim for special damages should be heard and determined separately from and after the remaining issues in the proceedings. The contest that remained when the matter was argued before me was as to whether general damages should also be severed from the hearing of the issues concerning liability.
I indicated on 3 December 2018 that I would not rule on that application at that stage because I regarded it to be critically informed by the question whether there would survive any contextual truth defence. As already indicated, I initially struck out the contextual truth defence but have now in McLachlan v Browne (No 7) allowed the defendants to bring forward a refined contextual imputation.
The matter concerning the defendants in respect of severance was that it is at least arguable that evidence of reputation is admissible and relevant in the resolution of a s 26 defence. The defendants relied in that context on the decisions of McClellan CJ at CL in Greig v WIN Television NSW Pty Ltd [2009] NSWSC 876 and Mizikovsky v Queensland Television Ltd (No 3) [2011] QSC 375 at [2] to [34].
While there may be competing views on the issue, the defendants' position cannot be dismissed as being not reasonably arguable. In circumstances where there is a contest about the admissibility of reputation evidence for the purpose of the defence, it is preferable not to attempt to resolve that issue at the interlocutory stage. Accordingly, I decline to order that general damages be determined separately and after the other issues in the proceedings.
I turn now to the matters argued this afternoon.
Following my rulings yesterday, the defendants have propounded a form of amended defence in each proceeding which, for the most part, seeks to bring the pleading in conformity to the rulings I have given to date but which brings forward one further controversy in that defendants propound a new contextual imputation not authorised by any of the earlier rulings. The new contextual imputation is "that the plaintiff behaved as a bully toward the cast and crew of the 2014 production of The Rocky Horror Show by flying into a rage and aggressively shouting obscenities at them".
Having regard to the terms of the part of the matter complained of from which the new imputation is drawn, its restricted terms and the confinement of the particulars relied upon to support it to matters concerning the 2014 Rocky Horror Show, Mr Richardson, did not contend that the imputation was imprecise in the sense considered in Australian Broadcasting Corporation v Hodgkinson [2005] NSWCA 190, as had been successfully argued in respect of earlier iterations of the defence.
However, Mr Richardson opposed the proposed amendment on two grounds. First, he submitted that this was yet another proposed amended contextual imputation coming on the heels of several other rounds of argument and appearing to be intended to keep the "bullying particulars" in play, as it were. Secondly, Mr Richardson argued that the proposed contextual imputation is incapable of meeting the second limb of the defence under s 26 of the Defamation Act 2005 (NSW).
Mr Dawson SC, who appeared for the defendants on this application, submitted that what was, in effect, a "too late" objection could not sustain a ruling that the imputation would not be permitted at this stage in the absence of some demonstration of actual prejudice. He reminded me in that context of the importance of recalling the lateness of the plaintiff's challenge to the contextual truth defence. I accept that, if that were the only issue, it may be appropriate to allow the imputation to be pleaded at this stage.
In my view, however, and mindful of the high bar that must be met on this issue, and the evidence that would be relied upon in support of it, the imputation is simply incapable of meeting the test under s 26. The evidence that would be relied upon to support the contextual imputation really amounts to little more than a loss of temper in circumstances where the imputations pleaded by the plaintiff that it would have to meet raise very serious allegations of criminal conduct. The evidence, it appears, will arguably be admissible in any event as an aspect of one of the complaints relied upon in support of the broader contextual imputation. Accordingly, there would not appear to be any prejudice, in practical terms, to the defendants' case in excluding the imputation. But as a matter of pure analysis of the way in which the section is intended to operate, I do not think it is capable of meeting the terms of the section.
Separately there was a dispute as to the particulars the defendants would seek to rely upon in support of the now permitted new contextual imputations. The new contextual imputation I allowed yesterday (in the Fairfax proceedings) is:
"that the plaintiff is a sexual predator in that he has indecently assaulted, exposed himself to and sexually harassed female colleagues in the workplace".
There were two categories of particulars argued this afternoon, first, what might be termed the Jeanne Downs particulars relating to an incident almost 30 years ago and secondly, what might be termed the tanning salon particulars relating to an incident relatively more recently when the plaintiff is alleged to have attended a tanning salon as a client.
Mr Richardson reminded me of the importance, in determining whether those particulars should be allowed, of recalling the rationale for my ruling yesterday, which was to recognise that there is a Hodgkinson problem with permitting the defendants to rely upon the broad-ranging particulars addressed in that judgment. He submitted that the Jeanne Downs particulars and the tanning salon particulars should not be allowed on the same basis. Mr Richardson correctly apprehended in his further submissions today that that is what I had intended to indicate in my judgment yesterday (at [35] in the last sentence). I am not persuaded that it is appropriate to allow those particulars to be included within the amended defence.
Leave will be granted to the defendants to file further amended defences in accordance with these and my earlier rulings.
[COUNSEL ADDRESSED AS TO COSTS]
I have this afternoon determined the remaining disputes in a lengthy series of interlocutory disputes between the parties in these proceedings, argument in respect of which (including dates on which rulings were given) has ranged over seven days, being 23, 26 and 28 November and 3, 7 and 11 December plus today. The defendants have been represented by different senior counsel during that period, and different kinds of arguments have been argued on different days.
In all the circumstances, Mr Richardson has submitted, making a rough estimate, that the plaintiff should have two-thirds of his costs of all of the arguments. An alternative way of analysing the question of costs is to look at each different day and the outcome on each day but that analysis brings me to roughly the same result.
Mr Dawson has suggested that there should be a more favourable order in favour of the defendants because the lateness of the argument concerning their contextual truth defences, which took up by far the greater part of the argument, has meant that the defendants have expended resources and incurred legal fees preparing the defence for a longer period than they would have had the plaintiff challenged that part of the pleading in a more timely way.
That may be accepted but, ultimately, if one applies the usual rule, which is that costs follow the event, I think the fair outcome in terms of costs of all of these applications is that contended for by Mr Richardson.
For those reasons, I order the defendants to pay two-thirds of the plaintiff's costs of the arguments on the dates to which I have referred.
[2]
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Decision last updated: 17 December 2018