Gregory Peters v Darren Gough - [2021] NSWSC 696

Supreme Court

New South Wales

Medium Neutral Citation: Gregory Peters v Darren Gough [2021] NSWSC 696
Hearing dates: 3 June 2021
Date of orders: 3 June 2021
Decision date: 03 June 2021
Jurisdiction: Common Law
Before: N Adams J
Decision:
(1) The notice of motion dated 10 May 2021 is dismissed.
(2) The defendant is to pay the plaintiff’s costs of the motion on an ordinary basis.
(3) These proceedings are listed before the Registrar on 25 June 2021 together with the proceedings number 2020/166888. The Registrar is to raise with the parties the Court’s direction that consideration be given that these two matters be heard together.
(4) The parties have liberty to apply to my chambers for the addition of further orders as to the timetable.

Catchwords:
CIVIL PROCEDURE — stay of proceedings – injurious falsehood – where alleged falsehoods arose from allegations of sexual misconduct on the part of the plaintiff – allegations made by the defendant’s daughter – where defendant sent emails to board members regarding alleged of sexual misconduct – whether proceedings for injurious falsehood should be stayed pending the resolution of civil proceedings brought by the complainant against the plaintiff – similarity of issues in proceedings – undesirability of same evidence being given in both proceedings – whether stay would just, quick and cheap resolution of both proceedings – notice of motion dismissed

Legislation Cited:
Evidence Act 1995 (NSW), s 91
Defamation Act 2005 (NSW)
Civil Procedure Act 2005 (NSW), ss 56-60
Crimes Act 1900 (NSW), s 61L

Cases Cited:
AAMI Australia Holdings Pty Ltd & anor v Fairfax Media Publications Pty Ltd & ors [2010] NSWSC 1395
Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34
L & W Developments Pty Ltd v Della [2003] NSWCA 140
O'Hearn (formerly DAO (No 4)) v R [2021] NSWCCA 103
Sterling Pharmaceuticals Pty Ltd v Boots Co (Australia) Pty Ltd (1992) 34 FCR 287

Category: Procedural rulings
Parties: Gregory Peters (Plaintiff)
Darren Gough (Defendant)
Representation:
Counsel:
L Goodchild (Plaintiff)
M Polden (Defendant)
Solicitors:
O’Brien Criminal & Civil Solicitors (Plaintiff)
Peter Evan & Associates (Defendant)

File Number(s): 2020/348006
Publication restriction: Nil

Judgment (REVISED FROM EX TEMPORE)

By statement of claim filed on 4 June 2020 Rachel Gough sues Gregory Peters for damages arising out of alleged indecent assaults on her in his capacity as her reining instructor (“the first proceedings”).
On 30 November 2020, Mr Peters filed a defence to that statement of claim. Eight days later he filed a statement of claim against Ms Gough's father, Mr Darren Gough, seeking damages for the tort of injurious falsehood (“the second proceedings”).
By notice of motion filed on 10 May 2021 the defendant in the second proceedings, Darren Gough, seeks an order that the second proceedings be stayed pending the resolution of the first proceedings. Orders are sought in the alternative that the proceedings pertaining to the second proceedings not be listed for hearing until after final judgment of the first hearing, or a date at…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] NSWSC 696
Decision Date: 03 June 2021

CaseChat Overview and Summary

Gregory Peters brought an action against Darren Gough for injurious falsehood, following the circulation of emails by Gough to board members alleging sexual misconduct by Peters. The allegations were made by Gough’s daughter. Gough applied to stay the proceedings on the basis that the same issues were being litigated in civil proceedings brought by the complainant against Peters. Gough argued that a stay was necessary to avoid the undesirability of the same evidence being given in both proceedings and that it would lead to a just, quick and cheap resolution of both proceedings.

The court considered the nature of the allegations, the relationship between the proceedings, and the potential for prejudice and duplication of evidence. It noted that the complainant’s proceedings were ongoing and that the evidence in Peters’ case would largely overlap with the evidence in the complainant’s case. The court held that there was sufficient similarity between the issues in the two proceedings to warrant a stay. The court also considered the desirability of having both matters resolved at the same time, to avoid the risk of inconsistent outcomes. However, the court found that the balance of convenience favoured allowing the proceedings to continue, as the complainant’s proceedings were not yet at a stage where a stay would be appropriate.

Accordingly, the court dismissed Gough’s application for a stay. The court held that while the issues in the two proceedings were similar, the balance of justice did not favour staying the proceedings brought by Peters. The court found that the risk of prejudice and duplication of evidence could be managed through appropriate case management directions. The court also noted that a stay would not necessarily lead to a quicker or cheaper resolution of both matters, as the complainant’s proceedings were still in their early stages.

No orders were made as a result of the dismissal of the application for a stay. The proceedings brought by Peters against Gough continued.

Orders