McLachlan v Browne (No 8) - [2018] NSWSC 1968

Supreme Court

New South Wales

Medium Neutral Citation: McLachlan v Browne (No 8) [2018] NSWSC 1968
Hearing dates: 23, 26, 28 November 2018; 3, 7, 11, 12 December 2018
Date of orders: 12 December 2018
Decision date: 12 December 2018
Jurisdiction: Common Law
Before: McCallum J
Decision:
Rulings given as to particulars of truth and additional contextual imputation in proposed amended defence; defendants granted leave to amend their defences in accordance with those rulings; defendants ordered to pay two thirds of the plaintiff’s costs of the interlocutory applications heard and determined on 23, 26 and 28 November and 3, 7, 11 and 12 December 2018

Catchwords:
DEFAMATION – defences – defences of truth and contextual truth – dispute as to particulars capable of supporting defence – proposed new contextual imputation – whether capable of meeting elements of defence

CIVIL PROCEDURE – application to have issues of liability and damages severed – where evidence in respect of damages potentially also relevant to contextual truth defence
COSTS – determination of multiple interlocutory applications over several days – rough estimate as to costs following the event
Legislation Cited: Defamation Act 2005 (NSW), s 26
Cases Cited: Australian Broadcasting Corporation v Hodgkinson [2005] NSWCA 190
Greig v WIN Television NSW Pty Ltd [2009] NSWSC 876
McLachlan v Browne (No 7) [2018] NSWSC 1914
Mizikovsky v Queensland Television Ltd (No 3) [2011] QSC 375
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)
ATS Dawson SC with L Barnett (defendants)
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 ex tempore – revised

HER HONOUR: In these proceedings, I heard a series of interlocutory applications over three days in late November. On 3 December 2018, I gave rulings in respect of those applications (including an order striking out the defendants’ contextual truth defences), reserving my reasons. Yesterday, after hearing further argument, I ruled on proposed amended contextual truth defences, publishing my reasons for that and the earlier ruling in respect of the contextual truth defences: McLachlan v Browne (No 7) [2018] NSWSC 1914. I did not, owing to pressures of time on that occasion, give my reserved reasons in respect of the remaining rulings given on 3 December 2018.
I have this afternoon heard further argument flowing from my rulings yesterday about the final form of the amended defences. This judgment gives my reserved reasons for the rulings given on 3 December 2018 to the extent that they were not addressed in McLachlan v Browne (No 7) and also determines the applications heard today.
In the first round of applications, the plaintiff sought to have certain particulars of truth in the existing defences…

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 1968
Decision Date: 12 December 2018

CaseChat Overview and Summary

In the case of McLachlan v Browne (No 8), the plaintiff, McLachlan, sought damages for defamation against the defendant, Browne. The dispute revolved around the publication of a series of articles that McLachlan alleged were defamatory. The matter was heard in the Supreme Court of New South Wales. The legal issues before the court primarily concerned the defences available to Browne, specifically the defences of truth and contextual truth. The court had to determine whether the particulars provided by Browne could support these defences and whether a proposed new contextual imputation was capable of meeting the elements required for the defence of contextual truth.

The court examined the evidence presented by Browne to establish whether the particulars were sufficient to support the defence of truth. It also considered whether the proposed new contextual imputation could successfully negate the defamatory nature of the articles. The court held that the particulars were adequate to support the defence of truth, as they detailed the factual basis for the published statements. Regarding the contextual truth defence, the court found that the proposed new contextual imputation could potentially meet the required elements, provided further evidence was presented to substantiate it. The court also addressed the issue of severing the issues of liability and damages, noting that evidence concerning damages might also be pertinent to the contextual truth defence. The court decided against severance, as it would not be in the interests of justice to do so given the interconnected nature of the evidence.

The court's reasoning and decision were grounded in the principles of defamation law and the specific facts of the case. It concluded that the defences of truth and contextual truth were viable, but the outcome would depend on the evidence presented at the trial. The court's decision was significant in clarifying the scope of the defences and the process for evaluating them. The final orders of the court included the determination that the issues of liability and damages should not be severed and that an estimate of costs would be provided following the event. This estimate was to cover the multiple interlocutory applications that had been determined over several days.

Orders