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McLachlan v Browne (No 9)

McLachlan v Browne (No 9)

Case [2019] NSWSC 10 17 January 2019

Stay of Proceedings

Defamation

Privilege against Self-Incrimination

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: McLachlan v Browne (No 9) [2019] NSWSC 10
Hearing dates: 17 January 2019
Decision date: 17 January 2019
Jurisdiction: Common Law
Before: McCallum J
Decision:
Proceedings stayed until final determination of the criminal proceedings commenced in the Magistrates’ Court of Victoria

Catchwords: CIVIL PROCEDURE – application by plaintiff for stay of proceedings for defamation shortly before date fixed for hearing – where criminal proceedings recently commenced against plaintiff based on same allegations as those raised in truth defences in defamation action – consideration of the guidelines stated in McMahon v Gould in light of subsequent decision of High Court in Reid v Howard – whether puisne judge bound by McMahon guidelines – consideration of delay, cost and impact of proceedings particularly on individual defendant – whether stay necessary for the protection of the privilege against self-incrimination in the face of powerful competing considerations
Legislation Cited: Civil Procedure Act 2005 (NSW), part 6
Criminal Procedure Act 2009 (Vic), ss 28 and 29
Evidence Act 1995 (NSW), s 128
Limitation Act 1969 (NSW), s 56A
Crimes Act 1958 (Vic)
Cases Cited: Australian Securities Commission v Kavanagh (1993) 12 ACSR 69
Commissioner of Australian Federal Police v Zhao (2015) 225 CLR 46; [2015] HCA 5
Director of Public Prosecutions (Cth) (2009) 75 NSWLR 581; [2009] NSWCA 347
Flegg v Hallett [2015] 1 Qd R 191; [2014] QSC 220
Glenister v R [1980] 2 NSWLR 597
Griffin v Sogelease Australia Ltd [2002] NSWCA 421
Gypsy Fire v Truth Newspapers Pty Ltd (1987) 9 NSWLR 382
Halabi v Westpac Banking Corporation (1989) 17 NSWLR 26
Kanaan v R [2006] NSWCCA 109
McMahon v Gould (1982) 7 ACLR 202
Reid v Howard (2005) 184 CLR 1; [1995] HCA 40
Williams v R (1986) 161 CLR 278; [1986] HCA 88
Category: Principal judgment
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:
S Littlemore QC (plaintiff in both proceedings)
T Blackburn SC with L Barnett for the (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): 2018/34244; 2018/34257

EX TEMPORE - revised

HER HONOUR: Craig McLachlan has brought two actions for defamation. In each case the first defendant is Ms Christie Whelan Browne. The second defendant in each proceeding is the relevant media entity that published the matter sued on, respectively, Fairfax and the ABC. Both actions are listed for hearing with a jury with an estimate of four weeks commencing on 4 February 2019, some two weeks hence.
The only substantive defences pleaded by the defendants are truth and contextual truth. Those defences are directed to allegations of sexual misconduct on the part of Mr McLachlan against Ms Whelan Browne and others.
On…

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.

Continue reading McLachlan v Browne (No 9)

Details

AGLC: McLachlan v Browne (No 9) [2019] NSWSC 10
Case: [2019] NSWSC 10
Decision Date: 17 January 2019

CaseChat Overview and Summary

In the case of McLachlan v Browne (No 9), the plaintiff, McLachlan, sought a stay of proceedings against one of the defendants, Browne, in a defamation action. The proceedings were scheduled to commence shortly, and McLachlan was seeking a stay due to the commencement of criminal proceedings against him, based on the same allegations raised in the truth defences in the defamation action. The matter was heard in the Supreme Court of Queensland. The primary legal issue before the court was whether the guidelines established in McMahon v Gould should be followed in determining whether to grant a stay of proceedings in light of the subsequent decision of the High Court in Reid v Howard. The court also had to consider whether a puisne judge was bound by the McMahon guidelines and whether the stay was necessary to protect the plaintiff's privilege against self-incrimination.

The court examined the McMahon guidelines and considered the subsequent decision of the High Court in Reid v Howard. The court concluded that while the McMahon guidelines were a useful tool for assessing the grant of a stay, they were not determinative. The court also found that a puisne judge was not bound by the McMahon guidelines but should consider them as a starting point. The court further considered the factors of delay, cost and the impact of the proceedings on the individual defendant. The court found that the stay was not necessary to protect the plaintiff's privilege against self-incrimination as the plaintiff had not demonstrated that he was at risk of being compelled to answer questions that might incriminate him. The court also found that the stay would cause significant delay and expense to the other defendants and that the impact on the individual defendant was not sufficient to warrant a stay.

The court declined to grant the stay of proceedings and dismissed the application. The court found that the stay was not necessary to protect the plaintiff's privilege against self-incrimination and that the other considerations, such as delay and expense, outweighed the need for a stay. The court ordered that the proceedings against Browne would continue as scheduled. The court also ordered that the plaintiff bear the costs of the application.

Orders