McLachlan v Browne

EX TEMPORE - revised

1. HER HONOUR: Craig McLachlan has brought two actions for defamation. In each case the first defendant is Ms Christie Whelan Browne. The second defendant in each proceeding is the relevant media entity that published the matter sued on, respectively, Fairfax and the ABC. Both actions are listed for hearing with a jury with an estimate of four weeks commencing on 4 February 2019, some two weeks hence.
2. The only substantive defences pleaded by the defendants are truth and contextual truth. Those defences are directed to allegations of sexual misconduct on the part of Mr McLachlan against Ms Whelan Browne and others.
3. On Friday 11 January 2019, criminal proceedings were commenced against Mr McLachlan in Victoria. The charge sheet specifies ten offences, nine of which are based on allegations also relied upon in the truth defences in these proceedings. The criminal proceedings are due to come before the Magistrates Court in Victoria on 8 February 2019, the Friday of the first week of the trial in these proceedings. In those circumstances, Mr McLachlan seeks an order that these proceedings be stayed until final determination of the proceedings in the Magistrates Court. Since the offences with which Mr McLachlan is charged are indictable and may be dealt with on indictment, some adjustment to the formulation of that order might appropriately be sought to accommodate the committal of the matter to the County Court and any appeal.
4. The application is opposed by the ABC and Ms Whelan Browne. The position of Fairfax is that it neither consents to nor opposes the order sought. The application has been listed and, of necessity, determined as a matter of urgency. I am giving this judgment ex tempore because I am on presently on leave and am due to be out of Sydney tomorrow.
5. It was common ground that the Court has power to control its own proceedings including power to stay proceedings in an appropriate case. It is appropriate to stay civil proceedings where that is what the interests of justice require: Commissioner of Australian Federal Police v Zhao (2015) 225 CLR 46; [2015] HCA 5 at [36]. The power is engaged where a stay is necessary for the protection of the privilege against self-incrimination, in appropriate circumstances: Lee v Director of Public Prosecutions (Cth) (2009) 75 NSWLR 581; [2009] NSWCA 347 [at [38] and [41]-[42] (noted at point 1 of the headnote).
6. It was submitted on behalf of those defendants opposing the application (to whom, for convenience, I will refer as "the defendants") that the starting point in an application of this kind is the guidelines stated by Wootten J in McMahon v Gould (1982) 7 ACLR 202. I accept that the decision provides a convenient starting point, provided it is borne in mind that guidelines are just that. It was noted during argument that the decision in McMahon was considered in the decision of the Court of Appeal in Lee to which I have referred above. The headnote in Lee (a headnote published by the Court) refers to the decision in McMahon as having been "distinguished and doubted".
7. The discussion of the decision in Lee during argument this morning prompted Mr Blackburn SC, who appears for the defendants, to submit that the Court was "bound by the principles" stated in McMahon, notwithstanding what was said in Lee. That was said to be so because the remarks in Lee are obiter (as they plainly are) whereas McMahon has been cited with approval by the Court of Appeal in Griffin v Sogelease Australia Ltd [2002] NSWCA 421. Subject to a qualification to which I will return, I would respectfully reject that submission, for a number of reasons.
8. First, and perhaps most obviously, Sogelease was the dismissal of an application for leave to appeal and accordingly does not stand as precedent in any formal sense. Secondly, and perhaps more importantly, a statement of guidelines as to the exercise of a judicial discretion is not to be construed as an immutable statement of legal principle. The Court's discretion in an application of the present kind is ultimately guided by the obligation to act judicially and by reference to the interests of justice. The doctrine of precedent does not require slavish adherence to a checklist or guidelines stated in earlier decisions at first instance. Indeed, the task of assessing and adapting such checklists according to the individual circumstances of the case at hand lies at the heart of the judicial function. Failure to do so impedes the orderly development of the law.
9. The argument raised in Lee at [34] was that the guidelines set out by Wootten J in McMahon no longer properly reflected the approach to be adopted on a stay application in relation to civil proceedings where criminal proceedings were pending against a defendant. It is to be noted that it is the plaintiff, not the defendant, against whom criminal proceedings are pending in the present case. I will return to the significance of that consideration.
10. Returning to Lee, the applicant contended that Wootten J had "underrated" the right to silence and the potential for prejudice in the criminal proceedings. Reference was made in that context to his Honour's treatment of the right to silence as "a convenient rubric for several rules and practices which have various origins and serve various purposes". The burden of the submission was that something more than a collection of rules and practices was at stake. The applicant relied in that context on the decision of the High Court in Reid v Howard (2005) 184 CLR 1; [1995] HCA 40, which was decided after McMahon. The Court accepted that Reid v Howard was relevant in two respects (at [37]): "The first was its affirmation of the principle that the privilege against self-incrimination "is not simply a rule of evidence, but a basic and substantive common law right": at 11 (Toohey, Gaudron, McHugh and Gummow JJ). Secondly, it recognised that the common law right provided protection not merely against the use in evidence of compelled admissions, but also against disclosure which may set in train a process leading to other incriminating material: at 6-7 (Deane J, referring to Rank Film Distributors Ltd v Video Information Centre [1982] AC 380 at 443 (Lord Wilberforce) and Sorby v The Commonwealth [1983] HCA 10; 152 CLR 281 at 294-5 (Gibbs CJ) and 310 (Mason, Wilson and Dawson JJ))."
11. However, as the decision in McMahon was found to be distinguishable from the circumstances before the Court in Lee (at [35]), the Court considered that, beyond the recognition of those two principles, there was no warrant to consider the McMahon guidelines further. In leaving the matter there, the Court said at [43]: "It is likely that they may require further consideration in an appropriate case."
12. I should note what was said in Lee at [88], in respect of a ground of appeal that the primary judge erred in applying the McMahon guidelines. After observing that it was unclear to what extent his Honour had placed reliance on them, the Court said: "Further, it would not have been appropriate for his Honour to dismiss the guidelines as requiring reconsideration in circumstances where they had obtained at least implicit approval from a majority in this Court in Yuill v Spedley Securities Ltd (In liq) (1992) 8 ACSR 272, despite the variation in the common law with respect to the "felony tort rule", effected in Halabi v Westpac Banking Corporation (1989) 17 NSWLR 26. Even Kirby P in Yuill, having expressed the view that the guidelines should await further attention at a later date, accepted in Halabi that they "were now applied not only in this State but elsewhere", noting the express approval given to them by McHugh JA and Samuels JA in Halabi. Kirby P concluded that the primary judge in Yuill, having expressly followed and applied those guidelines, had "conformed to the existing law": at 274. See now Niven v SS [2006] NSWCA 338 at [2] (Beazley JA); at [25]-[37] (Tobias JA, Beazley and Giles JJA agreeing)."
13. The proposition for which that passage stands is that, pending reconsideration of the guidelines at an appellate level, it would not be appropriate for a judge at first instance to dismiss them as requiring consideration to the extent that they apply to the circumstances of the case at hand. I have not, in the time available, checked the context in which the guidelines were said to be "the existing law" in all of the cases referred to in those authorities. The point made in Lee is that, certainly, they survived the discussion of the felony tort rule in Halabi.
14. In any event, a statement of guidelines, even one approved at the state appellate level, could not be required to be applied in a manner that was inconsistent with a subsequent decision of the High Court.
15. Finally, I note that the decision in Lee concluded with the following at [89]: "For reasons given above, the guidelines in McMahon v Gould may give too limited a weight to the general law immunity from compulsion to incriminate oneself, but the context of the [Proceeds of Crime Act] renders it inappropriate to undertake a broad reconsideration of the terms of the guidelines or the circumstances in which they should properly apply."
16. Mr Blackburn submitted that the use of the word "may" in those remarks indicated that they were "mere speculation". In my respectful opinion, it is a clear expression of doubt as to the guidance given in McMahon concerning the assessment of the significance of the privilege against self-incrimination in an application of the present kind.
17. In summary, I accept that it is not appropriate for me to dismiss the guidelines stated in McMahon as requiring consideration. However, I am also of the view that the circumstances of this case require me to make my own assessment of the weight to be afforded to the privilege against self-incrimination in light of the principles stated in Reid summarised in Lee at [37].
18. The considerations listed in the McMahon guidelines were addressed by both parties (with greater attention to some than others). A number may be accepted as propositions which are trite and which need not be set out in this judgment.
19. Item (a) in the McMahon guidelines states "prima facie a plaintiff is entitled to have his action tried in the ordinary course of the procedure and business of the court". It was submitted by Mr Littlemore QC that it is important to have regard to the fact that here the plaintiff is the party seeking to have his own action stayed. However, accepting that the interests of plaintiffs and defendants are different in some respects, I would accept the submission on behalf of the defendants that a defendant has no lesser right than a plaintiff to have proceedings brought to a timely conclusion. That contention is supported by the provisions of Part 6 of the Civil Procedure Act 2005 (NSW) which imposes a requirement on plaintiffs to prosecute their actions in civil proceedings with due despatch. It is, however, also relevant to observe that the plaintiffs in McMahon and other cases applying that consideration were regulators or persons exercising quasi-regulatory functions. The plaintiff in McMahon was a liquidator. Without derogating from the content of the duty imposed on all plaintiffs under the Act, the obligation to prosecute an action expeditiously is perhaps more acute in such cases.
20. Item (b) in the guidelines is that it is a grave matter to interfere with the entitlement of a plaintiff to have his action tried by a stay of the proceedings, "which requires justification on proper grounds". That consideration and items (c) to (f) in various forms reiterate the proposition now articulated in the principle stated in Zhao, which makes it plain that the Court has authority to stay a civil action where the interests of justice so require. But I accept that authority should not be exercised lightly, having regard to the interest of justice in having proceedings brought to finality in a timely way.
21. Item (g) accepts that "one factor to take into account where there are pending or possible criminal proceedings is what is sometimes referred to as the accused's 'right of silence'".
22. However, that was qualified in item (h) as follows: (h) However, the so-called "right of silence" does not extend to give such a defendant as a matter of right the same protection in contemporaneous civil proceedings. The plaintiff in a civil action is not debarred from pursuing action in accordance with the normal rules merely because to do so would, or might, result in the defendant, if he wished to defend the action, having to disclose, in resisting an application for summary judgment, in the pleading of his defence, or by way of discovery or otherwise, what his defence is likely to be in the criminal proceeding (ibidat 904-5);
23. In my respectful opinion, as submitted in Lee, those remarks underrate the significance of that consideration. Certainly, I would make a different assessment in the circumstances of the present case.
24. Item (i) is: "the court should consider whether there is a real and not merely notional danger of injustice in the criminal proceedings".
25. That item must be considered in the context of the subsequent statement of the High Court in Zhao at [42]. Often, the articulation of the injustice that may flow in the criminal proceedings will infringe upon the very right sought to be protected by the application for a stay of the civil action. Further, it will often be the case, as in my view is the case here, that the danger of injustice is plain.
26. Item (j) in McMahon sets out a list of factors which may be relevant in assessing whether there is a danger of injustice in the criminal proceedings. I will address those to the extent that they have been raised in the present proceedings further below in this judgment.
27. Item (k) asserts that "the effect on the plaintiff must also be considered and weighed against the effect on the defendant". The converse, applying that consideration mutatis mutandis in these proceedings, is to consider the position of the defendants, particularly the position of Ms Whelan Browne. Again, I will return to consider that in the context of my discussion of the particular submissions made in this case.
28. Finally, item (l) is that "in an appropriate case the proceedings may be allowed to proceed to a certain stage, such as being set down for trial, and then stayed". The difficulty in this case is, as I have indicated, that the criminal charges were laid only some short time ago. The plaintiff acted promptly in response to that event. The criminal proceedings were commenced on Friday, 11 January and this application had been foreshadowed by the time I arrived in chambers first thing on Monday morning.
29. What follows in the judgment in McMahon is a discussion of the reasons why the "right of silence" exists. That discussion must be taken to be qualified by reference to the more recent consideration of the importance of the privilege against self-incrimination by the High Court in Reid.
30. The factors that were addressed as being of particular significance in the present case on the part of the defendants were, first, delay. There was evidence put before the Court by the defendants that, if the criminal charges proceed on indictment, a trial may not be held until late next year. Taking into account the prospect of an appeal, the criminal proceedings may not be finalised until the following year. It would then be some further period before this Court would find another four-week block for a hearing of the civil proceedings. I pause to note that it seems appropriate to assume, as I think both parties assumed, that the criminal proceedings will be tried on indictment with a jury. All of the charges are indictable. The effect of ss 28 and 29 of the Criminal Procedure Act 2009 (Vic) is that the proceedings could be dealt with summarily if the magistrate considered that to be appropriate and if Mr McLachlan consented to that course but the charge sheets indicate that the prosecutor is contemplating a committal process.
31. In any event, as I have indicated, submissions proceeded on the assumption that the matters would be dealt with on indictment and with a jury. On that analysis, it may be accepted on the strength of the evidence put on by the defendants that the trial will be some time in the future and I accept that, if a stay is granted, there will inevitably be a substantial delay of the civil action.
32. That is significant for at least two reasons. One is that it means there will be a substantial passage of time between when the defamation proceedings would be reported in the press and when a jury will be empanelled in the criminal proceedings, making it more convenient and more likely to be effective for the trial judge in the criminal proceedings to give a direction to the jury in those proceedings to ignore anything they may have read in the press concerning the defamation action. Mr Blackburn reminded me of the remarks of the Court of Appeal in Kanaan v R [2006] NSWCCA 109 at [24] to [30] (Hunt AJA, Buddin J and Hoeben J as his Honour then was), broadly to the effect that the Court should proceed on the assumption that juries are robust and have an ability to put material extraneous to the evidence in the proceeding before them out of mind.
33. Secondly, the defendants relied upon that aspect of delay as a matter of prejudice to their defence of the present action. Mr Blackburn submitted that the period of delay would be seven years from the time of the alleged conduct. However, that number is to be assessed in the context that the conduct in question (as pleaded in the defences) is alleged to have occurred in late 2013 and up to mid-2014 but it was not until, apparently, late 2017 or early 2018 that the allegations were made. Certainly, the matters complained of were published in early 2018. It follows that a significant part of the so-called delay simply reflects the period of time between which the events are alleged to have occurred and when complaint was first made. In any event, I accept that it is highly undesirable for there to be such a period of delay between the commencement of a civil action and the time when the defendants' witnesses will be called upon to give evidence. That is a factor against granting a stay. Conversely, I have regard to the fact that those witnesses' versions of events have been recorded in various forms and will be ventilated in the criminal proceedings, possibly in both committal proceedings and in the trial. Those records of their versions of events will afford some protection against the loss of memory which will inevitably flow from the delay.
34. The second consideration relied upon by the defendants was the question of costs. I accept that is a significant consideration against granting a stay. I am prepared to proceed on the assumption that both parties have expended significant costs in the preparation of these proceedings and that those costs are likely to have escalated significantly in the last month in the period leading up to the date fixed for trial. I should note that the evidence was silent concerning costs as to the position of Ms Whelan Browne. I assume if she was to suffer any individual hardship as to costs beyond that of the corporate defendants, specific evidence would have been put on.
35. I accept - adopting the perhaps archaic language of Wootten J in McMahon - that it is a grave matter to vacate a hearing so close to the hearing date, having regard to those elements of delay and costs.
36. The third matter relied upon by the defendants was stress to Ms Whelan Browne. Affidavits were put on setting out the very unfortunate campaign of bullying in social media and elsewhere to which she appears to have been subjected following her making of the allegations in this case. It is difficult to unscramble the extent to which that is as a result of her having gone public on the allegations at all or as a result of the plaintiff's commencement of these proceedings and certain allegations he has made against her in responding to her allegations against him. But wherever the truth lies in respect of those considerations, I accept that it is a powerful factor. I also accept, as submitted by Mr Blackburn, that she and the other complainants in these proceedings have an interest in defending their own reputations against the implicit allegations against them by the bringing of these proceedings.
37. Further considerations raised by the defendants were the jury issues, to which I have already referred to some extent. I have already indicated my acceptance that it will be some distance until any criminal trial and that, in accordance with the principle stated in Kanaan, it may be assumed that a jury could be directed in terms that would protect Mr McLachlan against publicity surrounding the civil trial. However, there are a number of considerations which must be taken to qualify any comfort derived from that principle.
38. First, as submitted by Mr Littlemore, there is an exact overlap between the criminal allegations and the issues raised in the particulars to the truth defences in these proceedings. It follows that, if a stay is not granted, the civil action will in effect be a "dress rehearsal" for the criminal trial, as it was put by Mr Littlemore. It would follow that the cross-examination of Mr McLachlan in the defamation proceedings is likely to become a feature of his cross-examination in the criminal proceedings. In saying so, I make the assumption, as submitted by Mr Littlemore, that he is likely to make a choice to give evidence in both proceedings or else be unsuccessful in the relevant proceeding in which he chooses not to give evidence. The prospect of the cross-examination in the criminal trial being informed by statements made by Mr McLachlan in the civil trial is the very jeopardy protected by the privilege against self-incrimination.
39. Separately, accepting the principles in Kanaan, this is not merely a case of pre-trial publicity concerning the events the subject of the criminal trial. Two juries will be called upon in separate forums to decide the same questions of fact. In my view, it would be very difficult for the jury in the criminal trial to put out of its mind the verdict reached by the jury in the civil trial. If the allegations made in the truth defences are found by the civil jury to be proved, that would obviously be prejudicial to Mr McLachlan in his defence of the criminal charges. If they are found not to be proved, that would be prejudicial at least in some way to the interests of the Crown in those criminal proceedings. Whatever direction might be given in the criminal proceedings, I think it would be difficult for the jury not to have regard at some level to those factors.
40. Finally, it is also relevant to consider the likely impact of the very broad publicity surrounding the recent charges on the civil trial. In Reid v Howard it was held that there is no scope for an exception to the privilege against self-incrimination other than by statute or waiver. It follows that it will not be permissible for me to conduct the civil trial in a way that compels Mr McLachlan to answer questions on conditions calculated to protect his position in the criminal trial (save if he invokes the privilege against self-incrimination and an appropriate certificate is granted under s 128 of the Evidence Act 1995 (NSW)). It follows that, in order to mount a reply to the truth defences in the defamation action, Mr McLachlan would have to choose either not to give evidence, from which it would likely follow that he would lose the action; to give evidence and claim the privilege against self-incrimination, which would entail obvious prejudice to the strength of his case; or to waive the privilege. I note that, contrary to a submission made by the defendants, I would not understand Mr McLachlan to have waived his right to silence already by statements he has made in public. In the investigation and prosecution of the criminal matters, he has plainly exercised his right to silence, refusing to participate in an interview with police.
41. Mr McLachlan's position may accordingly be likened to that posited by the Court in Lee at para [12]. He is on the horns of a dilemma. If the stay is not granted he will either have to conduct the defamation action with one hand tied behind his back, and likely lose, or waive his privilege against self-incrimination. That reflects the real dilemma the Court found in Lee at [41] to exist in that case.
42. It is relevant to have regard to the fact that, unlike many cases in this area, the person in that position is the plaintiff (not the defendant) and therefore the fact that he faces that dilemma is a result of his own choice. It is probably appropriate in that context to have regard to aspects of that choice.
43. The material before me suggests that Mr McLachlan must have known, prior to the commencement of the defamation proceedings, that two women had made complaints about his conduct to Victorian Police. He commenced these proceedings very promptly after the publication of their allegations. In that context I note that he was in some degree required to do so by the short limitation period imposed on actions for defamation and the very difficult test under s 56A of the Limitation Act 1969 (NSW) for extending the limitation period. The criminal proceedings were commenced more than one year after the publication of the matter complained of.
44. There is no evidence before me as to whether Ms Whelan Browne, the first defendant in each action, had complained to Victorian Police prior to the commencement of these proceedings or whether the plaintiff knew that she had done so.
45. It may be accepted that Mr McLachlan could have sought a stay at an earlier point, before the criminal charges were brought, but any such application would have been considerably weaker having regard to the decision in Griffin v Sogelease. Some regard must be had to the relatively leisurely investigation of the matters by the Victorian Police [post script: I did not intend the criticism this choice of word suggests; only that the civil action was prosecuted more quickly].
46. Finally, I have regard in this context - that is, considering the relevance of the fact that Mr McLachlan is the plaintiff - to the fact that, in respect of the criminal allegations, he is presumed innocent. That presumption precludes me from making any assumption or analysis of the strength of the criminal charges or the truth defences in these proceedings.
47. The weight to be afforded to the privilege against self-incrimination, in my assessment, is paramount. That privilege must of course be assessed in the context that the plaintiff's liberty is at stake. He faces ten charges for indictable offences, most of which are punishable by "level 5 imprisonment" (imprisonment for up to ten years) under the Crimes Act 1958 (Vic). Personal liberty is "the most fundamental and important of all common law rights": Williams v R (1986) 161 CLR 278; [1986] HCA 88 at 292.
48. The defendants relied on a number of cases which it was broadly submitted supported the proposition that a stay should be refused in the circumstances of the present case. Perhaps the closest in fact is the decision of Hunt J in Gypsy Fire v Truth Newspapers Pty Ltd (1987) 9 NSWLR 382. However, that was a case in which the principles in McMahon, which I have discussed at length, were applied without qualification or further consideration.
49. The plaintiffs also relied on the decision in Australian Securities Commission v Kavanagh (1993) 12 ACSR 69. Again, that was a decision in which the principles of McMahon were applied without qualification.
50. The decision in McMahon itself probably provides the strongest support for the refusal of a stay on the grounds of concurrent criminal proceedings. The defendant in that case must have faced imprisonment and it appears from an authority provided by Mr Blackburn after the conclusion of argument, Glenister v R [1980] 2 NSWLR 597, that it may have been likely he would be sentenced to full-time imprisonment had he been found guilty of that charge. To my mind, that highlights the importance of that consideration and the importance of reconsidering the weight to be given to the privilege against self-incrimination in light of the clarification of the nature of that right in Reid.
51. The defendants also relied on the decision in Flegg v Hallett [2015] 1 Qd R 191; [2014] QSC 220 but I note that in that case it was found that the defendant could defend the civil action without injustice to the criminal proceedings.
52. Finally, the defendants relied on Griffin v Sogelease but in that case a criminal prosecution, although likely, had not yet been commenced.
53. There is no case directly on point to the circumstances of this case. As already noted, the decision in Gypsy Fire is probably the closest, although it was the defendants in that case seeking to have the proceedings stayed because of the concurrent criminal proceedings.
54. In any event, for the reasons I have given, having regard to all of those competing considerations, it is my view that the plaintiff's privilege against self-incrimination and the potential prejudice to the criminal proceedings, and indeed to the defamation action, of the concurrent proceedings, must prevail. For those reasons, I am satisfied that it is in the interests of justice to grant the stay sought.
55. The defendants sought in that circumstance the imposition of a number of conditions upon the stay. The first was an order that the plaintiff pay the defendants' costs thrown away by reason of the adjournment. The circumstances I have recited will reveal that the timing of the present application is due to no fault on the part of the plaintiff. Further, as already explained, it is inappropriate to make any assumption or assessment at this stage as to the strength of the complainant's allegations. That will be determined in due course in the appropriate forums. In my view, the appropriate order at this stage is that the costs of the present application and costs thrown away be reserved.
56. Secondly, the defendant sought an order that, in the event that the plaintiff is ultimately successful in these proceedings, any pre-judgment interest awarded should not include interest for the period of the stay. Mr Littlemore agreed that that is an appropriate condition and I propose to impose that condition.
57. Thirdly, a condition was sought that, in the event that the plaintiff is convicted of any of the charges he is charged with by Victoria Police, these proceedings be dismissed with costs on a date 14 days after that conviction.
58. The imposition of such a condition is, in my view, problematic. The charges against the plaintiff range from common assault to indecent assaults of very varied levels of seriousness. I do not think it could be concluded that conviction for any one of the charges should necessarily result in the dismissal of these proceedings and I do not think I am in a position to prejudge that issue. As what I understood to be in effect a fall-back or qualified position, Mr Blackburn suggested or submitted that the plaintiff might be precluded as a condition of the stay from opposing the relevant particular of truth that reflected any particular charge for which he had been convicted. Even with that qualification, the position is so uncertain that I do not think it is appropriate for it to be pre-empted as a condition of any stay.
59. For those reasons the order I propose is the order sought in paragraph 1 of the plaintiff's written submissions, subject to condition 18(b) in the defendant's submissions.

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