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

Procedural Posture

Defamation Proceedings / Interlocutory Applications Concerning Particulars of Truth, Contextual Truth Defences, Amendment of Defences, Severance of Liability and Damages, and Costs

Legal Issues

1. 1 ['Whether paragraphs 69 to 71 and 81 to 82 of the existing defences should be struck out as embarrassing particulars consisting of generalities rather than particulars.' 'Whether paragraphs 72 to 80 and paragraph 88, concerning bullying conduct directed to males, were capable of supporting an imputation concerned with conduct directed at females.' 'Whether the defendants should be permitted to amend their defences to introduce new witnesses, including Dr Blake witnesses, at a late stage.' 'Whether general damages should be determined separately and after liability issues where reputation evidence might be relevant to a contextual truth defence under s 26 of the Defamation Act 2005 (NSW).' 'Whether a proposed new contextual imputation that the plaintiff behaved as a bully toward the cast and crew of the 2014 production of The Rocky Horror Show was capable of meeting s 26 of the Defamation Act 2005 (NSW).' 'Whether the defendants should be allowed to rely on the Jeanne Downs particulars and tanning salon particulars in support of the permitted contextual imputation.']

Ratio Decidendi

The Court struck out particulars that were generalities, embarrassing, irrelevant, or incapable of supporting the pleaded imputations, while allowing amendments and particulars that were sufficiently relevant to the real issues and not shown to cause unacceptable prejudice despite their lateness. General damages were not severed because the defendants' contention that reputation evidence could be relevant to the s 26 contextual truth defence was reasonably arguable and should not be resolved interlocutorily. The proposed bullying contextual imputation was not allowed because, even taking into account the high bar for such a ruling, the evidence amounted to little more than loss of temper...

Court Disposition

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.

Orders

• ['Paragraphs 69 to 71 of the existing defence were struck out.' 'Paragraphs 72 to 80 of the defences were struck out.' 'Paragraphs 81 to 82 were struck out.' 'Paragraph 88 was struck out.' "The plaintiff's application to have general damages determined separately from and after the other issues in the proceedings...