Supreme Court New South Wales Medium Neutral Citation: McLachlan v Browne & Fairfax Media Publications Pty Ltd; McLachlan v Browne & Australian Broadcasting Corporation (No 4) [2018] NSWSC 940 Hearing dates: 8 June 2018 Decision date: 08 June 2018 Jurisdiction: Common Law Before: McCallum J Decision: 1. Pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW), on the grounds set out in sub-sections 8(1)(a) and 8(1)(e) of the Act, that disclosure of the affidavit of Marina Olsen affirmed 24 May 2018 be restricted to: a. The Court; b. The parties to these proceedings; and c. The legal representatives retained by the parties in these proceedings. 2. Pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW), on the grounds set out in sub-sections 8(1)(a) and 8(1)(e) of the Act, that disclosure of the affidavit of Marina Olsen affirmed 29 May 2018 together with confidential Exhibits 1 and 2 to be restricted to: a. The Court; b. The parties to these proceedings; and c. The legal representatives retained by the parties in these proceedings. Orders 1-4 made in the short minutes handed up: 1. The defendants are granted leave to file an amended defence with the amended defence to be filed on or before 4 pm on 12 June 2018. 2. Order that pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) (the CSNPO Act), on the grounds set out in subsections 8(1)(a) and 8(1)(e) of the CSNPO Act, that no person may publish or cause to be published any matter that contains any particulars (including the contents of paragraphs 53 to 57 and 62 to 63 of the Confidential Annexure to the Amended Defence) likely to lead to the identification of the person referred to in the headings above paragraphs 53 and 62 in the Confidential Annexure to the Amended Defence, as a person against whom an indecent assault and indecent exposure is alleged to have been committed. 3. In order 2 above "publish" means disseminate or provide access to the public or a section of the public by any means, including by: a. publication in a book, newspaper, magazine or other written publication, or b. broadcast by radio or television, or c. public exhibition, or d. broadcast or electronic communication, other than for a purpose connected with these proceedings. 4. The order set out in paragraph 2 above is to remain in place until further order of the Court. Catchwords: SUPRESSION AND NON-PUBLICATION – proceedings for defamation – defendants pleading truth to imputations of sexual impropriety – appropriateness of suppressing identity of person named in defence – suppression order sought in aid of protection conferred by Victorian legislation Legislation Cited: Judicial Proceedings Reports Act 1958 (Vic) Cases Cited: McLachlan v Browne (No 3) [2018] NSWSC 830 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) L Barnett (first and second 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): 2018/342442018/34257 Publication restriction: Suppression orders have been made in these proceedings Judgment 1. HER HONOUR: The defendants in these proceedings brought an application for suppression and non-publication orders in respect of the identity of and information provided by three persons proposed to be relied upon to support a truth defence. At the time the application was made, the defence had been filed but the particulars to support aspects of the defence had been held back by the defendants pending the determination of that application. 2. On 28 May 2018, I refused the application, for the reasons stated in McLachlan v Browne (No 3) [2018] NSWSC 830. At the time I published that judgment, I indicated that it would not foreclose the defendants from bringing a further application if further information became available. 3. In respect of the person identified in my judgment as "person 1", one aspect of the information not available at the time I determined the first application was recorded at [16] of the judgment, as follows: "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." 1. The defendants have today proposed the making of an order in respect of person 1 which is now not opposed by the plaintiff. The basis for the application is explained in a further affidavit of Marina Olsen affirmed 29 May 2018 together with confidential annexures to that affidavit. In short, that material indicates that the order sought is necessary to maintain the efficacy of a protection under the Judicial Proceedings Reports Act 1958 (Vic). 2. On the strength of the material contained in the affidavit and the confidential annexures I am satisfied that it is appropriate to make the order sought by consent. I am also satisfied that it is appropriate to make a suppression order in respect of the two affidavits of Ms Olsen sworn in support of this application, namely, her affidavit affirmed 24 May 2018 and her affidavit read today affirmed 29 May 2018 together with the confidential annexures to which I have referred. The basis for that order is to maintain the efficacy of the substantive order sought. ********** 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: 22 June 2018