HER HONOUR: Before the Court are two sets of proceedings for defamation arising out of allegations of sexual impropriety made against the well-known Australian actor, Craig McLachlan. One is an action brought by Mr McLachlan against the Australian Broadcasting Corporation in respect of a segment broadcast on the 7.30 Report. The second action arises out of the publication of an article on the front page of The Sydney Morning Herald. Each is drawn, in part, from allegations made in a filmed interview given by Ms Christie Browne, a former cast member of the 2014 production of The Rocky Horror Show. Both Mr McLachlan and Ms Browne played lead roles in that production. Ms Browne is the first defendant in each proceeding.
The proceedings are before the Court today for the first listing. As contemplated in the Defamation List Practice Note, that is the occasion on which a defendant is expected to bring forward any objection to the form of the pleading served by the plaintiff. The defendants in the present proceedings raised a number of objections but most were resolved or deferred during argument. The principal issue to be determined in this judgment relates to imputations objected to on the grounds that they are "rolled-up" or composite imputations.
The issue may conveniently be determined by reference to the pleading in the proceedings concerning the article that appeared in The Sydney Morning Herald. Imputation 6(a) in the statement of claim in those proceedings is:
"That 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".
The defendants submit that the imputation is bad in form because it impermissibly rolls up several distinct defamatory meanings. The same objection is taken to other imputations arising from similar material in both proceedings. As I understood the position, the parties agreed that the Court's ruling in respect of one would govern all.
Imputation 6(a) is derived mostly from the opening words of the article published on the front page of the newspaper, as follows:
"Herald Investigation
He's calculated, manipulative, a predator.
EXCLUSIVE Gold Logie award-winning actor Craig McLachlan stands accused of indecent assault, sexual harassment, exposing himself and bullying female colleagues. Kate McClymont reports."
An insert also on the front page included a photograph of Mr McLachlan's "accusers" with the further quote:
"That's not normal workplace behaviour, because of this sense of entitlement, and this level of confidence…he thought there was nothing wrong with doing that".
Before addressing the parties' submissions as to what is objectionable as a "rolled-up" imputation, it is appropriate to analyse the Court's authority to determine an objection to a pleading at this stage of proceedings. Objections to imputations ordinarily fall broadly into three categories. First, an imputation may be objected to on the grounds that it is not reasonably capable of being carried by the matter complained of. In that event, it is the practice in this list for the Court to determine that question as a separate question in the proceedings, the determination of which will bind the parties at the hearing.
Secondly, defendants frequently take objections on the grounds of "form" or on the basis that an imputation is "bad in form". That is ordinarily taken to be an objection invoking the Court's authority under r 14.28 of the Uniform Civil Procedure Rules 2005 (NSW) to strike out part of a pleading on the grounds that it has a tendency to cause prejudice, embarrassment or delay in the proceedings or is otherwise an abuse of the process of the court.
Thirdly, there may be an objection on the grounds that two imputations do not differ in substance, which derives from the prohibition contained in r 14.30(3).
The complaint that an imputation is "rolled up" is often cited as if it were a standalone rule. In my respectful opinion, it must be regarded as a proposition derived from the Court's authority under r 14.28 to strike out a part of a pleading on the grounds that it has a tendency to cause prejudice or embarrassment within the meaning of that rule.
The plaintiff submits that imputation 6(a) is not impermissibly rolled up because the relevant portions of the matter complained of convey its components as a single characteristic of the plaintiff. Mr Littlemore QC, who appears with Mr Richardson for the plaintiff, relied in that context on the decision of Simpson J, as her Honour then was, in Viney v TCN Channel Nine Pty Limited [2006] NSWSC 1273. In that case the imputation objected to as a rolled-up or composite imputation was:
"that the second plaintiff is an unprincipled and dishonest person".
With her Honour's customary clarity of thought, Simpson J questioned the existence of a blanket rule that an imputation cannot stand if it rolls up a number of separate and independent defamatory assertions in one imputation. Noting that the authorities said to have established such a rule had not sought to define or elucidate the circumstances in which an imputation might fall foul of it, her Honour said at [15]:
"One approach, in my opinion, is to identify whether what is contained in the imputation attributes to the plaintiff more than one condition or quality that are independent of one another; or whether, even where multiple adjectives or descriptors are used, they, in combination, express a single (even if composite) condition or quality."
The decision acknowledges that there is sufficient richness and complexity in the human condition that a personal characteristic or attribute may not always be capable of being captured in a single word or in the attribution of a single act. Justice Simpson concluded in Viney at [20]:
"I have, with some hesitation, come to the view that the imputation does not fail for this reason. In my opinion, "unprincipled" and "dishonest" are capable of conveying a notion of a characteristic of the plaintiff which is not adequately conveyed by either word individually, nor, indeed, by two separate imputations pleading two characteristics."
The matters complained of in the present proceedings address one of the most difficult issues of recent times; the infinite complexity and ambiguity of sexual and sexualised behaviour. They are published in the context of unprecedented public attention to such matters, the debate of which has seen the expression of views ranging from those of people who would dismiss the most inappropriate and unacceptable conduct as being "only a joke", to those of the champions of the "#MeToo" movement, to the French feminist response to that movement reflected in the statement of the famous French actor, Catherine Deneuve.
In my view, the matter complained of in the proceedings against The Sydney Morning Herald could be understood to attribute the plaintiff with what might be characterised as a composite characteristic of being the kind of person who properly finds himself in the eye of that fierce storm. The opening words of the article on the front page frankly attribute the plaintiff with being a person who stands accused of four kinds of conduct, but it is conduct which, as submitted by Mr Littlemore, represents a catalogue within a genus.
A separate question is whether the imputation is embarrassing because it does not seek to distil into a single word or phrase what that genus is. On that issue, in my view, the defendants face the hurdle of the principles stated in the decision of the Court of Appeal in Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135, the difficulty being that the complexity of the language used in the matter complained of itself and the complexity of the issues discussed in that language defies distillation into a single word or phrase.
That is perhaps another way of saying that the English language finds itself inadequate to the task of describing, in a single word or phrase, the kind of characteristic attributed to a man who is accused of indecent assault, sexual harassment, exposing himself and bullying female colleagues. But in my respectful opinion, the ordinary reasonable reader would understand the sense of it from the list provided in the imputation. I do not think the imputation is embarrassing or liable to be struck out on the grounds stated in the defendants' objection.
Although the remaining objections were effectively resolved during argument, it is appropriate briefly to record the debate. There was an objection that imputation 6(a) in the proceedings against the ABC does not differ in substance from imputation 6(g). The only difference between the two imputations is that one attributes the plaintiff with conduct towards "female cast members" whereas the other attributes him with conduct towards "four cast members". Mr Littlemore indicated that the objections had only recently been received by the plaintiff and sought an opportunity to consider his position in respect of those two imputations. That should be addressed within a short time frame.
There was an objection as to the capacity of the matter complained of in the proceedings against the ABC to convey imputation 6(e): "That the Plaintiff committed the crime of sexual assault upon an actress in the 2014 production of the Rocky Horror Show by putting his hand beneath her skirt".
The objection raised an issue which properly required resolution. The defendant's concern was that the reference to the "crime of sexual assault" might be understood by a person responding to the pleading to import the elements of that crime as defined in s 61I of the Crimes Act 1900 (NSW). In that Act, sexual assault is defined as sexual intercourse without consent whereas in the common conception of sexual assault it might entail something less. The Crimes Act defines indecent assault in s 61L as extending to a range of conduct not requiring sexual intercourse.
Mr Littlemore clarified during argument that it was not intended to import the definition of the crime of sexual assault in the Crimes Act but only to adopt the words of the imputation in the meaning in which they would be understood by the ordinary reasonable reader. I agree that is the way in which the imputation would be understood. On that basis I am satisfied that the imputation is reasonably capable of arising from the matter complained of and the defendants did not contend otherwise.
I am further satisfied that there is no embarrassment caused by the inclusion of the word "crime" in the imputation. As I understood the position, Mr Littlemore's indication adequately addressed the concerns originally raised by the defendants on that account.
Separately, an issue arises from the manner in which the first matter complained of is pleaded in the proceedings against the ABC (that is, the words said to have been published by Ms Browne to a journalist). That objection was addressed in a manner for which the defendants are to be commended, in that they have agreed to produce to the plaintiff the full tape of the relevant interview so as to enable the plaintiff to plead the full content of that interview. A question might have arisen as to whether the Court had authority to order the defendants to do that at this stage. The defendants' agreement to produce the tape reflects an approach that well serves the objects of the Civil Procedure Act 2005 (NSW) and the Court expresses its gratitude for that sensible approach.
Finally, there was an objection to the particulars of aggravated damages pleaded in the cases against the first defendant. Mr Littlemore, having heard the submissions on that issue, indicated that he would wish to reconsider the pleading of the particulars objected to. It is preferable to say no more about that topic pending the plaintiff having an opportunity to reconsider that issue.
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Decision last updated: 19 March 2018