McLachlan v Browne (No 7)

[2018] NSWSC 1914

Supreme Court

New South Wales

Medium Neutral Citation:	McLachlan v Browne (No 7) [2018] NSWSC 1914
Hearing dates:	23, 26, 28 November, 7 December 2018
Date of orders:	03 November 2018
Decision date:	11 December 2018
Jurisdiction:	Common Law
Before:	McCallum J
Decision:	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”; 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”; The defendants’ application for leave to re-plead is otherwise refused.
Catchwords:	DEFAMATION – defences – contextual truth
Legislation Cited:	Defamation Act 2005 (NSW), ss 25, 26
Cases Cited:	Australian Broadcasting Corporation v Hodgkinson [2005] NSWCA 190 Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 Fairfax Media Publications Pty Ltd v King [2015] NSWCA 172 Fairfax Media Publications v Zeccola [2015] NSWCA 329 Feldman v Polaris Media Pty Ltd [2016] NSWSC 1889
Category:	Procedural and other rulings
Parties:	Proceedings 2018/34244: Craig McLachlan (plaintiff) Christie Whelan Browne (first defendant) Fairfax Media Publications Pty Ltd (second defendant)   Proceedings 2018/34257 Craig McLachlan (plaintiff) Christie Whelan Browne (first defendant) Australian Broadcasting Corporation (second defendant)
Representation:	Counsel: M Richardson (plaintiff in both proceedings) T Blackburn SC, ATS Dawson SC, L Barnett (defendants in both proceedings)   Solicitors: Mark O’Brien Legal (plaintiff) Banki Haddock Fiora (1st defendant in both proceedings and 2nd defendant in 2018/34244 proceedings) ABC Legal & Business Affairs (2nd defendant in proceedings 2018/34257)
File Number(s):	2018/342442018/34257
Publication restriction:	None

Judgment

1. HER HONOUR: Craig McLachlan has brought two actions for defamation arising out of the publication of articles accusing him of indecently assaulting and sexually harassing female cast members of the 2014 production of the Rocky Horror Show. One action relates to an article published in The Sydney Morning Herald. The second relates to a segment of the show “7:30” broadcast on ABC television. In each proceeding, the first defendant is Ms Christie Whelan Browne, a fellow actor in the Rocky Horror Show, who made some of the accusations reported in the articles. The second defendant in each case is the proprietor of the relevant publication. The proceedings are to be heard together and are listed for trial with a jury commencing on 4 February 2019 with an estimate of four weeks.

2. The defences include defences of truth and contextual truth pursuant to ss 25 and 26 of the Defamation Act 2005 (NSW). In late November 2018, the parties relisted the proceedings for the purpose of making a number of interlocutory applications. On 3 December 2018, I gave rulings on those applications, reserving my reasons. On 7 December 2018, the defendants sought leave to re-plead the contextual truth defence in response to those rulings. This judgment determines that application and also records my reserved reasons in respect of the ruling concerning the previous defence.

Plaintiff’s application to have contextual imputations struck out

3. In the first round of applications, the plaintiff applied to have the defence of contextual truth struck out on the basis that the contextual imputations pleaded by the defendants were imprecise. It may be helpful to explain why precision is important in this context.

4. The essence of the cause of action for defamation is the attribution to the plaintiff of some discreditable act or condition. In pleading a case, the plaintiff chooses (and must specify) the defamatory imputations on which he or she sues. The imputations pleaded by Mr McLachlan in these proceedings are specific to events alleged to have occurred during the 2014 production of the Rocky Horror Show. The evidence in support of the truth defence will be confined accordingly.

5. The defence of contextual truth under s 26 of the Defamation Act enables a defendant to bring forward any additional imputation conveyed by the same defamatory article but not sued on by the plaintiff and to seek to prove that additional imputation to be true. The section provides:

It is a defence to the publication of defamatory matter if the defendant proves that:

(a) the matter carried, in addition to the defamatory imputations of which the plaintiff complains, one or more other imputations ("contextual imputations" ) that are substantially true, and

(b) the defamatory imputations do not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations.

6. The defence (when properly raised) will thus necessarily expand the battleground in some measure. The applications made in these proceedings raise a difficult question as to the permissible extent of such expansion of the case.

7. The contextual imputations pleaded by the defendants are not confined to the specific allegations concerning the 2014 Rocky Horror Show reported in the matters complained of but instead plead attributions of bad character in general terms, as follows:

Contextual imputation (1) (Fairfax proceedings): “The plaintiff is calculated, manipulative and a sexual predator.”

Contextual imputation (1) (ABC proceedings): "The plaintiff is a sexual predator."

Contextual imputation (2) (both proceedings): "The plaintiff, by indecently assaulting and assaulting several women, conducted himself in a manner that warrants the police conducting an investigation into his conduct."

Contextual imputation (3) (both proceedings): "The plaintiff took advantage of situations in which women were vulnerable to prey on them sexually.”

8. If allowed to stand in that form, the contextual truth defence could permit the defendants to lead evidence of discreditable behaviour alleged to have been engaged in by Mr McLachlan outside the context of the 2014 Rocky Horror Show. That is not a theoretical concern; both the existing defences and proposed amended defences include a range of particulars of allegations having nothing to do with the 2014 Rocky Horror Show and ranging back over decades. Mr Richardson, who appears for the plaintiff, submitted that the particulars “underscore the manner in which the defence of contextual truth is being employed as a kind of roving inquiry into allegations that do not appear in the matter complained of.”

9. That explains the forensic tactics behind this contest but does not dictate its determination. The critical question is whether the contextual imputations pleaded by the defendants (set out above) are imprecise.

10. It is well-established that a defendant’s contextual imputation must be pleaded with precision, just as that is a requirement of a plaintiff’s imputation: Australian Broadcasting Corporation v Hodgkinson [2005] NSWCA 190 at [32]-[34] per Hodgson JA, McColl JA and McClellan AJA agreeing at [42] and [43]; Fairfax Media Publications Pty Ltd v King [2015] NSWCA 172 at [41]-[43].

11. The law concerning defamation pleadings is sometimes criticised for requiring excessive refinement in this respect. It is important to recall in that context that, where truth defences are pleaded, the imputation or contextual imputation identifies the charge or allegation sought to be proved true. It must at least be specified with enough precision to enable the parties and the court to identify its composite elements. That is what I would understand to be the reasoning reflected in the well-recognised proposition that the judgment as to the degree of particularity or generality that is appropriate and as to what constitutes the necessary specificity will normally be found in considerations of “practical justice”: Drummoyne Municipal Council v Australian BroadcastingCorporation (1990) 21 NSWLR 135 at 138; King at [24]. The requirement for precision is ultimately a matter of procedural fairness.

12. The defendants opposed the strike-out application, first, on the basis that it was made too late. Clause 16(a) of the Defamation List Practice Note contemplates that any objection to a defence or reply will be brought forward for determination at the second listing. No objection was taken to the defence at that time in the present case. However, it is well-established that, where there is uncertainty as to the meaning of an imputation, the Court is obliged to rule on that question, whenever it is raised, so as to avoid confusion. A ruling on such an issue would be required at any point before the jury returned its verdict, if uncertainty was identified.

13. Mr Blackburn SC, who argued this application for the defendants, further submitted that, as the matters have proceeded through interlocutory steps since the second listing (including discovery and the administration of interrogatories) on the basis of the defences as pleaded, it could be inferred that the plaintiff did not have any difficulty understanding the case he was called upon to meet. That does not necessarily follow. Mr Richardson explained that it was the process of completing the interlocutory steps that brought home to the plaintiff’s lawyers the potential difficulties with the defence.

14. More importantly, in my respectful opinion, the point was misconceived. The burden of the submission was that “practical justice” is essentially concerned with due notice. Mr Blackburn submitted that, properly understood, the concept of "practical justice" referred to in Hodgkinson (and in Drummoyne and King) is "no more than the principle that a party must be in a position that they know the case they are called upon to meet". He submitted that the case does not establish the principle the plaintiff seeks to draw from it, namely, that a factor in assessing the "practical justice" of permitting a contextual imputation will be the extent to which the imputation allows a defendant to range widely over matters discreditable to the plaintiff.

15. I do not accept that submission. The vice of an imprecise imputation is the subjectivity of its interpretation. That is what gives rise to the potential for confusion in the interlocutory stages and at the trial. If the meaning of an imputation is uncertain, or open to subjective interpretation, the scope of the particulars and evidence that should be allowed to support it will equally be unclear. To measure the precision of a contextual imputation by reference to the particulars of truth provided to support it inverts the process. The issues in the proceedings must first be identified with clarity by the pleadings; that is the only way to avoid confusion, cost and delay both in the interlocutory stages and at the trial.

16. Mr Blackburn relied in this context on my remarks in Feldman v Polaris Media Pty Ltd [2016] NSWSC 1889 at [16], where I said:

“As I noted in King in the passage set out above, the fact that a general imputation, whether relied upon by a plaintiff or a defendant, has the potential to introduce a broad range of evidence unrelated to the content of the matter complained of has not been held to be a reason for striking out or disallowing the imputation: see also the remarks of Simpson J in Ange v Fairfax Media Publications [2010] NSWSC 645."

17. I do not resile from those remarks. However, they must be understood in the context that the generality of the imputation must properly reflect the context in which it was conveyed. The pleading of a general imputation is always subject to the requirement of precision judged by reference to that context. As carefully explained by Gleeson CJ in Drummoyne, the degree of precision to be required is anchored in the degree of specificity in the matter complained of.

18. Applying those principles in the present case, I formed the view that each of the defendants’ contextual imputations was imprecise and was liable to be struck out on that basis.

19. The argument proceeded by reference to contextual imputations slightly reformulated from those pleaded in the existing defence. The form of the first contextual imputation as argued was, in the Fairfax proceedings, “that the plaintiff is calculated, manipulative and a sexual predator”. The ABC propounded a simpler imputation, “that the plaintiff is a sexual predator.” Neither formulation permits identification of the elements required to be proved in order to establish the truth of the attribution. The variety of conduct to which they could refer is enormous. As submitted by Mr Richardson, it could range from unwelcome flirtatious remarks to violent sexual assault. It is no answer to that complaint to say that the case the plaintiff has to meet is made plain by the particulars. In order for the proceedings to be fair, the imputation itself must be clear enough to allow rulings on admissibility to be made and to permit a clear case to be left to the jury. It has long been recognised that a helpful analogy in this context is the requirement of precision in an indictment in criminal proceedings. A proper indictment will make clear the elements required to be proved in order to establish the charge.

20. The second contextual imputation in each case was that the plaintiff, by indecently assaulting and assaulting several women, conducted himself in a manner that warrants the police conducting an investigation into his conduct. As submitted by Mr Richardson, the vice of the imputation is that it conflates two different defamatory stings, opening with an attribution of guilt of criminal conduct and then, confusingly, asserting that such (established) conduct warrants investigation. Coupled with the assertion of guilt, the reference to the investigation is mere flourish adding nothing to the defamatory sting.

21. The third contextual imputation in each case is “that the plaintiff took advantage of situations in which women were vulnerable to prey on them sexually”. That imputation has the same difficulty as the first. In particular, the expression "to prey on them sexually" fails to provide any guidance as to the elements required to be proved in order to establish the substantial truth of the imputation.

22. For those reasons, on 3 December 2018, I ruled that each of the contextual imputations be struck out. I reserved the question of leave to re-plead pending any reformulation of the imputations.

Defendants’ application to re-plead contextual imputations

23. 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.

24. 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.

25. 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.

26. 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.

27. 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.

28. 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.

29. 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.

30. 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."

31. 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.

31. 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.

32. 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.

33. 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.

34. 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.

35. 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.

36. 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.

37. 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.

38. 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”.

39. 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.

40. 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.

41. 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.

42. 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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