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

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.
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…

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: [2018] NSWSC 1914
Decision Date: 11 December 2018

CaseChat Overview and Summary

The case of McLachlan v Browne (No 7) was heard in the Supreme Court of New South Wales, where the plaintiff, McLachlan, sought to establish defamation against the defendant, Browne. The crux of the dispute was an alleged defamatory statement made by Browne in the context of a political discussion. McLachlan claimed that Browne's words had damaged his reputation, while Browne asserted that the statements were true and therefore not defamatory.

The primary legal issue before the court was whether the defence of contextual truth could be applied by Browne to the alleged defamatory statements. This defence requires the defendant to demonstrate that, while the statements might be defamatory, they are substantially true and the truth of the statements outweighs any harm caused by the defamatory elements. The court needed to consider the context in which the statements were made and whether the public interest in the statements being true justified their publication.

The court held that Browne's defence of contextual truth was applicable in this case. It found that the statements, although defamatory, were substantially true and that the truth of the statements was of greater public interest than the harm caused by the defamatory elements. As such, the court ruled in favour of Browne, dismissing McLachlan's claim for defamation. The court further held that the public interest in the statements being true justified their publication, thus reinforcing the defence of contextual truth in this instance.

Orders