McLachlan v Browne & Fairfax Media Publications Pty Ltd; McLachlan v Browne & Australian Broadcasting Corporation (No 3)

HER HONOUR: Before the Court are two proceedings for defamation commenced by the well-known actor Mr Craig McLachlan.

The amended pleadings filed by Mr McLachlan specify in respect of the defamatory articles on which he sues an imputation “that the plaintiff is guilty of indecently assaulting, sexually harassing, bullying and intimidating female cast members of the 2014 production of The Rocky Horror Show.”

The defendants have filed defences which include a plea of truth to that imputation. However, the particulars in support of those defences have not yet been filed or served, but are contained in a confidential annexure to the defence which has not yet been deployed. The defendants have held back deploying that document pending the determination of the present application.

The application now made by the defendants by notice of motion filed 24 May 2018 seeks suppression orders in respect of the particulars concerning three persons included within the proposed defence. The defendants also seek non-publication orders concerning the identity of those three persons.

The application invokes s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW), which provides:

The grounds on which an order may be made under that section are specified in s 8 of the Act, which provides:

The defendants rely on subsections (a) and (e) of s 8(1). Regard should also be had to subsection (d), which confers power to make an order to avoid undue distress or embarrassment in proceedings involving an offence of a sexual nature but is expressly confined to criminal proceedings.

The plaintiff submitted that the order sought would be ultra vires s 7 because the three persons in question are not parties or witnesses to the proceedings. An aspect of that submission was the temporal issue, namely, the fact that this application is brought in advance of the hearing. Mr Littlemore SC, who appears with Mr Richardson for Mr McLachlan, submitted that the section’s operation is confined to the time when the hearing commences and evidence is given.

The defendants disputed that construction of the Act, relying on the broad definition of a party to proceedings in s 3 of the Act, which provides:

Ms Barnett, who appears for the defendants, submitted that it would be an absurd construction of the Act if a party had to wait until a person was a witness in the witness box before the protection of the Act could be invoked.

In my view, it is at least reasonably arguable that, if it could be concluded with confidence that a person was going to be a witness, or otherwise named in the evidence, and a case could otherwise be made for the making of orders on one of the grounds in s 8, the Act should be construed so as to authorise the making of an order in respect of the evidence or identity of that person. Otherwise, the protection of the Act would be rendered futile. It is appropriate to determine the present application on that premise.

A complexity is that, in the present case, the status of the three persons as either witnesses or persons to be named in evidence is said at least to some extent to turn on whether non-publication orders are made. If orders are not made, some particulars will be deleted from the confidential annexure to the defence.

The principal difficulty with that approach is that, until the particulars are deployed, it is not possible for me to assess from the material before me on the present application how important each person's evidence is to the defence. I do not know whether the three persons the subject of the present application are the only witnesses of truth, or three of a larger number of witnesses, and I have no means of assessing the importance or significance of their evidence in the overall context of the defence.

The evidence in support of the application was an affidavit of the solicitor for the defendants in the Fairfax proceedings, which set out some information concerning the defendants’ dealings with the three witnesses in question. They are referred to in the affidavit as persons 1, 2 and 3 and I will adopt the same language.

It was indicated during argument that persons 1, 2 and 3 are not referred to in the matter complained of; the defence evidently seeks to prove the truth of the imputation at least in part by reference to conduct outside the scope of that discussed in the matter complained of. Having regard to the general terms of the imputation, that course may be permissible but at this stage of the proceedings it is impossible to judge the extent to which proof of matters extraneous to the events discussed in the article will be allowed. Depending on the scope of the defence it may, for example, raise the issue of proportionality of costs addressed in s 60 of the Civil Procedure Act 2005 (NSW).

Person 1 worked on the 2014 production of the Rocky Horror Show. That person has made allegations against Mr McLachlan falling within the terms of the imputation to which I have referred. That person has made a complaint to police in respect of those allegations but no detail is available in the affidavit as to the status of any police investigation. In particular, it is not stated whether criminal proceedings have been commenced or are to be commenced.

Person 1 has informed the solicitors that that person is willing to provide "information to be included in the defence" only on the basis that the person's name and evidence be kept confidential and not publicly disclosed. It is not clear to me whether that means the person is willing to be a witness. The argument on behalf of the defendants proceeded on that premise but that is not how I would necessarily interpret the words recorded in the affidavit. One thing that is clear is that, assuming the person is prepared to be a witness, that is on condition that the person's name is suppressed.

It should be observed in respect of person 1 that, if criminal proceedings were commenced, that person would have the protection of s 578A of the Crimes Act 1900 (NSW). In the event that it was clear that person 1 was to be a witness or a person named in these proceedings and the grounds in s 8 of the Act were otherwise satisfied, that would be a compelling reason, in my view, for protecting the identity of that person so as to preserve the protection offered by that section: cf Jane Doe v Fairfax Media Publications Pty Limited [2016] NSWSC 1294 at [24] per Button J.

Person 2 also worked on the 2014 production of the Rocky Horror Show and also makes allegations against Mr McLachlan falling within the description of conduct in the imputation to which I have referred. However, that person has made plain that they are not willing to be involved in any way in the preparation of the defences in the proceedings. As with person 1, there is no indication in the material before me of the relative importance of that person's evidence within the overall context of the defence and no possibility for me to assess that issue.

Person 3 also worked on the 2014 production of the Rocky Horror Show. That person has indicated that, while preferring to remain anonymous, if named in the defence, they would be "comfortable". As frankly acknowledged by Ms Barnett, the application is the weakest in respect of that person.

The application accordingly raises complex and conflicting considerations. The authority to make an order on the ground stated in s 8(1)(a) depends upon the Court being satisfied that the order is "necessary" to prevent prejudice to the proper administration of justice. It cannot be gainsaid that the proper administration of justice is ordinarily best served by conducting proceedings openly. It is a boon to open justice if the media are able to report proceedings openly. Scrutiny in this context is a virtue.

A recognised exception is the case of criminal proceedings involving sexual offences, and that is because of the experience of the Courts that the criminal process has traditionally proved to be daunting and humiliating for complainants, both male and female, in cases of sexual assault, which was perceived to impede the due prosecution of sexual offences. The protection of anonymity in those circumstances was intended to address that concern.

Subsection (e) authorises the making of an order if it is “otherwise necessary in the public interest” for the order to be made and that public interest significantly outweighs the public interest in open justice. The public interest in the present case is a complex, multifaceted and protean concept. On the one hand, the plaintiff seeks to vindicate his reputation. The efficacy of that remedy will turn on its being conducted in open court. On the other hand, the defendants seek to defend themselves in respect of an imputation they allege is true. It would be inimical to the public interest if witnesses for good reason were not prepared to come forward openly and if that impeded the efficacy of the defence.

Ironically, one possible outcome of making the orders sought by the media defendants in the present case would be to facilitate the airing of allegations which, so it would appear from the affidavit, the persons in question would prefer remain private. A further aspect of the public interest in that context is what might be characterised as a feminist issue (assuming the persons in question are females, as the imputation suggests). Embarrassment is a powerful tool in the hands of sexual predators. There may be a case for addressing embarrassment with measures calculated to conducting legal proceedings with sensitivity rather than secrecy. That is probably a philosophical debate into which it is not necessary to descend in the present context, but my point is that the disclosure of the allegations the defendants seek to include in the defence should ultimately be a matter for those three persons. I do not regard it to be in the public interest for the Court to add to their pressure either way, by making the order or declining to make the order.

The ultimate difficulty with the application, however, is that I am simply unable to assess how important the three persons identified in the affidavit are to the defence. It follows that it is not possible for me to be satisfied in the terms of either ss 8(1)(a) or 8(1)(e) on the information before the Court on the present application. For those reasons, I refuse the application.