Supreme Court New South Wales Medium Neutral Citation: Gregory Peters v Darren Gough [2021] NSWSC 696 Hearing dates: 3 June 2021 Date of orders: 3 June 2021 Decision date: 03 June 2021 Jurisdiction: Common Law Before: N Adams J Decision: (1) The notice of motion dated 10 May 2021 is dismissed. (2) The defendant is to pay the plaintiff's costs of the motion on an ordinary basis. (3) These proceedings are listed before the Registrar on 25 June 2021 together with the proceedings number 2020/166888. The Registrar is to raise with the parties the Court's direction that consideration be given that these two matters be heard together. (4) The parties have liberty to apply to my chambers for the addition of further orders as to the timetable. Catchwords: CIVIL PROCEDURE — stay of proceedings – injurious falsehood – where alleged falsehoods arose from allegations of sexual misconduct on the part of the plaintiff – allegations made by the defendant's daughter – where defendant sent emails to board members regarding alleged of sexual misconduct – whether proceedings for injurious falsehood should be stayed pending the resolution of civil proceedings brought by the complainant against the plaintiff – similarity of issues in proceedings – undesirability of same evidence being given in both proceedings – whether stay would just, quick and cheap resolution of both proceedings – notice of motion dismissed Legislation Cited: Evidence Act 1995 (NSW), s 91 Defamation Act 2005 (NSW) Civil Procedure Act 2005 (NSW), ss 56-60 Crimes Act 1900 (NSW), s 61L Cases Cited: AAMI Australia Holdings Pty Ltd & anor v Fairfax Media Publications Pty Ltd & ors [2010] NSWSC 1395 Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 L & W Developments Pty Ltd v Della [2003] NSWCA 140 O'Hearn (formerly DAO (No 4)) v R [2021] NSWCCA 103 Sterling Pharmaceuticals Pty Ltd v Boots Co (Australia) Pty Ltd (1992) 34 FCR 287 Category: Procedural rulings Parties: Gregory Peters (Plaintiff) Darren Gough (Defendant) Representation: Counsel: L Goodchild (Plaintiff) M Polden (Defendant) Solicitors: O'Brien Criminal & Civil Solicitors (Plaintiff) Peter Evan & Associates (Defendant) File Number(s): 2020/348006 Publication restriction: Nil Judgment (REVISED FROM EX TEMPORE) 1. By statement of claim filed on 4 June 2020 Rachel Gough sues Gregory Peters for damages arising out of alleged indecent assaults on her in his capacity as her reining instructor ("the first proceedings"). 2. On 30 November 2020, Mr Peters filed a defence to that statement of claim. Eight days later he filed a statement of claim against Ms Gough's father, Mr Darren Gough, seeking damages for the tort of injurious falsehood ("the second proceedings"). 3. By notice of motion filed on 10 May 2021 the defendant in the second proceedings, Darren Gough, seeks an order that the second proceedings be stayed pending the resolution of the first proceedings. Orders are sought in the alternative that the proceedings pertaining to the second proceedings not be listed for hearing until after final judgment of the first hearing, or a date at least three months after the hearing of those proceedings. 4. The motion came on for hearing before me today in my capacity as duty judge. 5. In support of his motion Mr Gough relies upon the pleadings in both matters and an affidavit of Mr Cameron Stewart Bilinsky sworn on 7 May 2021. 6. The material before me discloses following. In March 2018, Ms Gough commenced tuition with Mr Peters twice a week for a total of four hours per week in relation to reining lessons. Ms Gough alleges in her statement of claim that Mr Peters implemented a rule requiring her to undo a button on her shirt every time she made a mistake and indicated that she would have to take off her bra if she made further mistakes. Ms Gough also alleges that Mr Peters made lewd remarks about her breasts. It is alleged that on 3 August 2018 Mr Peters invited her to sit in the cabin of a tractor and then placed his hand on her thigh and pulled her shirt aside to look down her shirt. He is alleged to have also pulled her shirt aside, groped her breast and later that day, to have kissed her on the lips, hugged her and again grabbed her bra. 7. Ms Gough further alleges that on 15 August 2018 Mr Peters placed his hand on her leg and breast and required her to undo buttons on her shirt due to "mistakes". 8. Some two or three weeks after these alleged incidents in August 2018 Ms Gough complained to police about the conduct of Mr Peters. 9. On 30 August 2018, Mr Gough telephoned the President of Reining Australia, Mr Paul Sharp, and said to him words to the effect of, "You have to suspend Greg Peters because during the presentation at the Tamworth Show of 25 August he touched my daughter extremely close to her pubic area." 10. On or about 8 October 2018, Mr Gough sent a letter to some Reining Australia committee members stating that a registered reining instructor had committed a "sexual assault". That letter also stated the same reining instructor had subsequently and directly threatened Mr Gough's daughter. Mr Gough also alleged in the letter that the same instructor had colluded with Reining Australia to threaten Mr Gough's daughter and to "get away with" the sexual assault. 11. On 10 January 2019, Mr Gough sent an email to committee members and some journalists stating in effect that Mr Peters had committed sexual abuse and was "a charged sex offender". 12. The charges for two counts of indecent assault were heard in the Local Court at Wyong on 22 and 23 May 2019. The charges were dismissed by the magistrate. 13. On 23 August 2019, Mr Peters' solicitor sent a letter to Mr Gough in relation to the earlier emails. The letter was said to be a "concerns notice" for the purposes of the Defamation Act 2005 (NSW). That letter noted that the charges against Mr Peters had been dismissed by the magistrate and requested that Mr Gough sign a correction and apology, withdraw the allegations, and undertake in writing to refrain from publishing any further defamatory material. 14. Mr Gough did not accede to these demands nor did he make any further allegations against Mr Peters. No proceedings for defamation were ever commenced by Mr Peters. 15. On 4 June 2020, Ms Gough commenced the first proceedings seeking damages for the "sexual abuse" she suffered at the hands of Mr Peters. 16. On 30 November 2020, Mr Peters filed his defence. Eight days later, on 8 December 2020, he filed a statement of claim against Mr Gough for injurious falsehood. A number of amended statement of claims were filed thereafter. 17. On 11 February 2021, Mr Gough filed his defence. 18. On 17 March 2021, Mr Peters filed a further amended statement of claim. 19. On 7 April 2021, Mr Gough filed his amended defence. 20. At the motion before me today objection was made to part of the material relied upon, being transcript of some of the proceedings in the Local Court. It would appear that Ms Gough, and to a lesser extent her father, seek to rely upon observations made by the magistrate who dismissed the charges. Objection was made to this material, and as I indicated to the parties, it is difficult to see how any comments made by the magistrate could ever be admissible in these proceedings, given the terms of s 91 of the Evidence Act 1995 (NSW) which provides as follows: 91 Exclusion of evidence of judgments and convictions (1) Evidence of the decision, or of a finding of fact, in an Australian or overseas proceeding is not admissible to prove the existence of a fact that was in issue in that proceeding. (2) Evidence that, under this Part, is not admissible to prove the existence of a fact may not be used to prove that fact even if it is relevant for another purpose. 1. The scope of s 91 was recently considered by the Court of Criminal Appeal in O'Hearn (formerly DAO (No 4)) v R [2021] NSWCCA 103. In that matter a convicted paedophile priest, Father Ryan, was called as a witness for the Crown in the prosecution of another priest, Father O'Hearn, on child sexual assault charges. Father O'Hearn's defence was that one of his alleged victims had confused him with Father Ryan and ran a defence of misidentification. Father Ryan gave evidence that he had remembered and admitted to every child he had ever sexually assaulted. At the time of that trial there were pending charges in relation to two further alleged victims of Father Ryan that he denied. 2. At Father Ryan's subsequent trial he was convicted on those counts by a judge sitting alone in the District Court. Reasons were provided by her Honour. 3. Upon learning of Father's Ryan's subsequent convictions, Father O'Hearn appealed to the Court of Criminal Appeal. He relied upon the fresh evidence of those subsequent convictions. Reliance was placed on the fact that although Father Ryan had given evidence of Father O'Hearn's trial that he remembered all his victims the trial judge at his subsequent trial had not accepted his denials and he had been convicted. Section 91 clearly stood in the way of reliance upon the convictions for that purpose. 4. The parties ultimately accepted in the present matter that anything said by the magistrate, particularly as to his observations of the complainant's credibility, could not be admissible in these proceedings. Mr Gough's submissions 1. Mr Polden of counsel submitted that the first proceedings should move to trial first. Reliance was placed on the fact that they were commenced more than six months prior to the second proceedings and that there is a clear factual overlap. That overlap was said to involve the critical question of whether the conduct by Mr Peters alleged to have occurred by Ms Gough did in fact occur. 2. It was noted that the pleadings in the first proceedings have closed and the plaintiff's evidence will shortly be filed. This was said to be in contrast to the second proceedings. 3. It was submitted that the factual findings of the first proceedings could materially influence the future conduct of the second proceedings, including by the encouragement of a potential settlement. It was also submitted that the progress of the two hearings should be conducted in a manner that would avoid possible inconsistent findings of fact. 4. Mr Polden further submitted that there may be a question of issue estoppel. He submitted that if Ms Gough's proceedings go first and finding is made as to whether the assaults did in fact occur, Mr Peters could be estopped from putting anything to the contrary in his subsequent proceedings. Mr Peters' submissions 1. Ms Goodchild of counsel submitted that the second proceedings will not have a material effect on the resolution of the first proceedings. It was accepted that there was an obvious factual overlap. However, the basis for the causes of action are very different. 2. Mr Peters' case is that Mr Gough stated what was alleged in terms more serious than his daughter's evidence could establish even if believed. It was submitted that the alleged falsehoods relied upon by Mr Peters are significantly different from the allegations made by Ms Gough, either in the dismissed criminal proceedings or the pleaded civil proceedings. It was accepted by Ms Goodchild that a close scrutiny of some of the Local Court transcript suggests that this may somewhat overstate the differences between the allegations made in the Local Court and those made in this Court. 3. Reliance was placed on the fact that even if Ms Gough is successful in her proceedings, that will not necessarily establish the truth of the claims made by Mr Gough, including that Mr Peters committed a sexual assault or that he is a sexual offender. Reliance was placed upon the fact that the two causes of action are distinguishable and based on separate and distinct legal principles and factual findings. It was submitted that it is possible to distinguish this case from other cases where temporary stays have been granted for proceedings commenced in different Courts. 4. It was submitted that no question of issue estoppel arises as the issues between the two hearings pertinent to Ms Gough's evidence differs. That is, the issue in the first proceedings is whether the allegations can be proven, whereas the central issue in the second proceedings is the state of mind of Mr Gough. 5. Finally, it was submitted that it is not in the interests of justice for Mr Peters to have his proceedings delayed for a lengthy period given his claim that Mr Gough's actions have seriously jeopardised his reputation. Consideration 1. It was common ground that this Court has the power to order a temporary stay. This arises from the Court's general power to control its own proceedings and the relevant provisions in the Civil Procedure Act 2005 (NSW). It was also common ground that the relevant principles governing an application for a stay such as this, are to be found in Sterling Pharmaceuticals Pty Ltd v Boots Co (Australia) (1992) 34 FCR 287 as cited in L & W Developments Pty Ltd v Della [2003] NSWCA 140. In the latter decision Mason P, with whom Giles and Santow JJA agreed, set out the relevant considerations to be taken into account in an application such as this as follows (at [52]): 1. Which proceedings were commenced first; 2. Whether the termination of one proceeding is likely to have a material effect on the other; 3. The public interest; 4. The undesirability of two Courts competing to see which of them determines common facts first; 5. Consideration of circumstances relating to witnesses; 6. Whether work done on pleadings, particulars, discovery, interrogatories and preparation might be wasted; 7. The undesirability of substantial waste of time and effort if it becomes a common practice to bring actions in two Courts with substantially the same issues; 8. How far advanced the proceedings are in each court; 9. That the law should strive against permitting multiplicity of proceedings in relation to similar issues; 10. Generally balancing the advantages and disadvantages to each party. 1. Applying those relevant principles to the present application, I note that Ms Gough's claim was commenced first in time. As for which proceeding has advanced further in this Court, neither party, through no fault of their own, was able to assist on this question. 2. Both parties accept that the respective hearings could be approximately five days each. Both matters will require expert and lay evidence. As presently stands, there appears to be a real possibility that the second proceedings may be ready for hearing prior to the first proceedings. Either way, the parties accept it is unlikely, if an estimate of five days or more is given, that either of them would get a hearing date this year. 3. Although there is a significant factual overlap, there are different questions to be considered in these matters. In order for Ms Gough to be successful in the first proceedings she will need to establish that Mr Peters indecently assaulted her in the manner she alleges in her statement of claim. Although these are civil proceedings with the civil standard of proof on the balance of probabilities, the nature of the allegations informs the degree of satisfaction that will need to be reached in order to find that alleged tortious conduct in fact occurred: Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34. The evidence as to liability, as opposed to damages, will turn on the credibility of the evidence of Ms Gough and Mr Peters. 4. In order for Mr Peters to be successful in the second proceedings he will need to establish all four elements of the tort of injurious falsehood. Those elements were stated by Brereton J, as his Honour then was, in AAMI Australia Holdings Pty Ltd & anor v Fairfax Media Publications Pty Ltd & ors [2010] NSWSC 1395 at [29] as follows: 1. A false statement of or pertaining to the plaintiff's goods or business; 2. Publication of that statement by the defendant to a third person; 3. Malice on the part of the defendant; and 4. Actual damage as a consequence. 1. His Honour went on at [30] to observe that for injurious falsehood, unlike defamation, the plaintiff bears the onus of proving falsity. At [31] his Honour observed (footnotes omitted): "… unlike in defamation, in injurious falsehood malice is also an essential element of the cause of action, to be proved by the plaintiff. While the notion of 'malice' in the context of this tort is not easy to define, it is a question of motive, intention or state of mind and it involves the use of an occasion for some indirect purpose or indirect motive such as to cause injury to another person." 1. Mr Peters' claim is based, in part, on the fact that he was charged with two counts of indecent assault contrary to s 61L of the Crimes Act 1900 (NSW), but Mr Gough did not refer to those specific statutory charges in his correspondence. Rather, he used the term "sexual assault" rather than "indecent assault". It is to be noted that since the commencement of the Local Court proceedings and their finalisation, an amendment was made to the relevant provision of the Crimes Act such that the offence of indecent assault is now referred to as one of "sexual touching": Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 (NSW). 2. It seems to me that if Ms Gough's hearing proceeds first and she is unsuccessful that does not necessarily mean that Mr Peters would be successful in his proceedings, especially given the strict elements of the tort of injurious falsehood, including the need to establish malice. If Ms Gough is successful in her claim, that would mean that a trial judge had accepted her allegation. The relevance of Ms Gough's evidence to the second proceedings would seem to me to be as to Mr Gough's belief at the time of the relevant publications based on what his daughter had told him and to some extent the falsity of the publications. 3. Nor am I presently persuaded that if Ms Gough's trial was to proceed first that Mr Peters would in some way be estopped from bringing his proceeding. I am willing to accept that if Ms Gough was to be successful in her proceedings that may have some impact on settlement discussions in relation to the second proceedings, but I am not presently persuaded that the finalisation of one proceeding would have a material effect on the other such as it would preclude it continuing. Despite this, the fact remains that Mr Peters and Ms Gough would most likely be required to give the same evidence in both hearings. 4. Turning to the other relevant considerations, it was not suggested that any work done on pleadings, particulars, discovery, interrogatories and preparation might be wasted. There is the question of the impact on the witnesses, and, as Ms Goodchild conceded, it is of concern that Ms Gough may have to give evidence of the same allegations twice which would make that the second and third occasions on which she has given that evidence. 5. Ultimately the question turns on balancing the advantages and disadvantages to each party in the context of the principles in ss 56-60 of the Civil Procedure Act. I can see no real disadvantage to Ms Gough if the stay is not granted, but I do see some disadvantage to Mr Peters if it was. 6. Overall, I am not satisfied that this is an appropriate case in which to order a stay of the second proceedings for what could be a lengthy period. Rather, based on the material before me I am satisfied that the two matters should be heard together. Given that Ms Gough and Mr Peters will be giving the same evidence, in some respects, at both hearings, it would be highly undesirable for different judges to hear the same facts from those witnesses and potentially arrive at different conclusions. 7. I am satisfied that it is consistent with the just, quick and cheap resolution of these proceedings that they both travel together and be heard consecutively by the same judge. Specific orders could be made by the trial judge allocated to those hearings, but for present purposes it is sufficient to note that Ms Gough's evidence and submissions could be heard first, and then any relevant evidence adduced in the first trial could be considered by the trial judge to be before her or him in the second proceedings. This would save both costs and court time. 8. I raised this question with both counsel in this matter. Neither party strongly opposed such a course being taken but raised some practical and logistical details. Significantly, as a matter of procedural fairness, despite the potential benefit of that order being made, the parties in the first proceedings were not represented before me today and, clearly, I could not make such an order in their absence. Although I do not propose to do so today, I do propose to craft my orders to allow for consideration to be given to that prospect in the future. 9. The position of Mr Gough on this motion is understandable. On the face of it there is a feeling of this being "tit for tat" litigation, but that is an insufficient basis on which to stay the second proceedings. The fact remains that if a stay was granted there could ultimately be a lapse of time between the two hearings and the prospect that different judges hear each of them. As I have already stated, it is in the interests of justice that both matters run together. 10. Finally, as I raised with the parties during the hearing today, there is nothing in any of the material put before me to explain why either these proceedings or the first proceedings have been commenced in the Supreme Court rather than the District Court. All of the relief sought could be granted in that jurisdiction. Both parties accepted in relation to the second proceedings that that would be the case. 11. In this matter I make the following orders: 1. The notice of motion is dismissed. 2. The defendant is to pay the plaintiff's costs of the motion on the ordinary basis. 3. The proceedings are listed before the Registrar on 25 June 2021 to be listed with the first proceedings being matter 2020/166888. The Registrar is to raise with the parties the Court's direction that consideration be given to the matters being heard together. 4. The parties have leave to apply to my chambers for the addition of further orders as to the timetable. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 June 2021