Day v Harness Racing New South Wales

[2015] NSWSC 836

Supreme Court

New South Wales

Medium Neutral Citation:	Day v Harness Racing New South Wales [2015] NSWSC 836
Hearing dates:	10 April 2015
Date of orders:	10 April 2015
Decision date:	10 April 2015
Jurisdiction:	Common Law
Before:	McCallum J
Decision:	Rulings on imputations
Catchwords:	DEFAMATION – pleadings – rulings on imputations – capacity – requirement that imputations differ in substance
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW), r 14.30
Cases Cited:	Corby v Allen & Unwin Pty Ltd [2014] NSWCA 227 Sims v Wran [1984] 1 NSWLR 317
Category:	Procedural and other rulings
Parties:	Neil Anthony Day (First Plaintiff) Dean Albert McDowell (Second Plaintiff) Harness Racing New South Wales (Defendant)
Representation:	Counsel: T Molomby SC (Plaintiffs) ATS Dawson (Defendants) Solicitors: Pendlebury Workplace Law (Plaintiffs) Cockburn & Co (Defendants)
File Number(s):	2014/367597
Publication restriction:	None

Judgment

1. HER HONOUR: These are proceedings for defamation commenced by two harness racing trainers, Mr Day and Mr McDowell, arising out of the publication of separate media releases by Harness Racing New South Wales. The proceedings have come before the Court today for the first listing in accordance with practice note SC CL 4. This judgment determines the defendant’s objections to the form of the plaintiffs' pleadings.

2. In each case, the media release was presented in substantially the same form, reporting the suspension of the licences of the plaintiff trainers and other trainers. In each case, the media release stated that Harness Racing New South Wales "took these measures to protect the integrity of the industry following receiving analytical results from the Australian Government National Measurement Institute that cobalt was detected above the threshold in samples taken from the following horses at the respective harness meetings." There follows in each case a list of horses, the race won by each horse and an identification of the trainer.

3. The media releases further state that the "B" samples and associated control samples have been sent to "another approved laboratory for confirmation". Further information is provided, stating that the background to those announcements was the issue of a notice to the industry in September 2013 as to the use of cobalt within the industry, and the fact that the misuse of that substance was in breach of the rules.

4. The plaintiffs have pleaded the following imputations as arising from the media releases:

1. that as a trainer, he is a danger to the integrity of the harness racing industry;

2. that as a trainer, he achieved victory for a horse in a race by administering a substance to it above the legal limit; and

3. that as a trainer, he is a cheat in harness racing.

5. The principal objection to those imputations drew on the well-recognised distinction between an imputation of guilt and an imputation of mere suspicion. Mr Dawson, who appears for the defendant, submitted that the media releases in the present case are capable of conveying only an imputation of suspicion that the trainers in question have engaged in the conduct referred to, pending further testing and analysis. He submitted that the matters complained of are not capable of conveying imputations of guilt.

6. Mr Molomby, who appears for the plaintiffs, did not resile from the proposition that each imputation proceeds on a premise of guilt rather than mere suspicion of the conduct identified. He submitted, however, that the media releases are capable of conveying imputations on that basis.

7. The reference to the measures taken by Harness Racing New South Wales "to protect the integrity of the industry" might be read by a lawyer as an ordinary step taken in the case of any investigation of the kind reported here, where the object of protecting the integrity of the industry is sought to be achieved by a transparent process, suspending judgment on the guilt of the person under investigation.

8. Mr Molomby submitted, however, with some force, that that is not the only way in which that phrase might be read by the ordinary reasonable reader in the present case. He submitted that an alternative reading open from the content of the press release is that the authority was sufficiently confident of the outcome of the testing to think that suspension of the licences was appropriate immediately in order to protect the industry from the reported conduct rather than merely protecting the industry by offering a transparent process. Mr Molomby also noted the reference in the "Background" section of the media release to "misuse" of cobalt in the industry.

9. Finally, Mr Molomby noted that the only extent to which the investigation is reported to be ongoing is that the test results clearly reported as showing the result stated had been sent for "confirmation", suggesting a measure of confidence in the first result obtained from the Australian Government National Measurement Institute.

10. The submissions put by Mr Dawson directed to the proposition that the only imputations conveyed are of mere suspicion rather than guilty, were put compellingly and, no doubt, could be put even more compellingly by Mr Dawson to a jury. However, the submissions of Mr Molomby have persuaded me that this is not a case in which it would be appropriate to take the guilt imputations from the jury.

11. In reaching that conclusion, I have regard to the recent reminder by the Court of Appeal in the decision of Corby v Allen & Unwin Pty Ltd [2014] NSWCA 227 as to the care that must be taken in determining a separate question of capacity against a plaintiff. In my view, there is clearly room for argument on both sides in this case. It follows that the imputations pleaded by the plaintiffs must go to the jury.

12. A separate objection taken by Mr Dawson is that imputations (b) and (c) do not differ in substance, contrary to r 14.30(3) of the Uniform Civil Procedure Rules 2005 (NSW). Mr Dawson submitted that the plaintiffs should be put to an election between those two imputations.

13. Mr Molomby defended the reliance upon both imputations by reference to the familiar proposition that, whereas one imputation alleges specific conduct which may well be thought to amount to cheating in a specific race, the other alleges a character attribute at a general level. In my view, the plaintiffs should be permitted to rely on both imputations and should not be put to an election.

14. Finally, Mr Dawson took a point in respect of the manner in which the plaintiffs have pleaded republication of the media release in paras 4, 5, 8 and 9 of the Statement of Claim. As submitted by Mr Dawson, the principles stated by Hunt J in Sims v Wran [1984] 1 NSWLR 317 as to the manner in which a republication relied upon as a separate cause of action should be pleaded remain good law. His Honour said at 320.D that, "A republication should be pleaded in the precise words and it should be made clear what imputations are relied upon as arising from the republication." Mr Molomby explained that if the pleading in the present case does not conform exactly to those principles, that was out of considerations of neatness and economy of pleading. He has today, confirmed that the plaintiffs do rely upon each of the republications as separate publications and that they do rely upon imputations (a), (b) and (c) set out above as arising from each of those separate publications.

15. In the circumstances, there is no need to make any ruling in respect of that issue. My ruling is that the objections as to capacity and the objection that imputations (b) and (c) do not differ in substance is rejected.

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