Kannegieter v John Fairfax Publications Pty Limited [1999] NSWSC 418

New South Wales Supreme Court CITATION : Kannegieter v John Fairfax Publications Pty Limited [1999] NSWSC 418 CURRENT JURISDICTION : Common Law FILE NUMBER(S) : 20406 of 1998 HEARING DATE(S) : 30 April 1999 JUDGMENT DATE : 30 April 1999

NICHOLAS KANNEGIETER (Plaintiff)

PARTIES : v

JOHN FAIRFAX PUBLICATIONS PTY LIMITED (Defendant) JUDGMENT OF : Levine J

S M Littlemore Q.C. (Plaintiff) COUNSEL : T Blackburn (Defendant) Ebsworth & Ebsworth (Plaintiff) SOLICITORS : John Fairfax Publications Pty Limited (Defendant) CATCHWORDS : Imputations - capacity DECISION : See paragraphs 12 & 13

DLJ : 1 (Ex Tempore - Revised) THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST

No. 20406 of 1998

JUSTICE DAVID LEVINE

FRIDAY 30 APRIL 1999

NICHOLAS KANNEGIETER (Plaintiff)

v

John Fairfax Publications Pty Limited (Defendant)

JUDGMENT (Imputations - capacity) 1 HIS HONOUR: The plaintiff has instituted proceedings against the defendant claiming damages for defamation arising from imputations pleaded as being carried by an article in "The Sun Herald" Newspaper on 2 August 1998. 2 The article is in the following terms: "Dye: Lasix? No bleedin' way Whistle-blowing vet Nick Kannegieter caused yet another stir on 2KY yesterday morning when he told Max Presnell that Australian racing should follow the American example and allow 'bleeders' to race on the drug Lasix. 'What a complete idiot,' blasted jockey Shane Dye when given his right of reply on air. 'Has that vet ever seen what a horse that bleeds does? They don't just collapse from under you, they do a somersault and come down on top of you 'You only gotta look at the incidents of the last six months to see jockeys' lives are already at stake every time they get on board a horse. 'Bleeders are the most dangerous horses to ride, and its just not safe.' 'I agreed,' replied Presnell". 3 Three imputations are pleaded: "(a) that, as a veterinary surgeon, he was grossly incompetent in that he advocated the use of Lasix on horses known to bleed; (b) that, as a veterinary surgeon, he had displayed gross ignorance in advocating the use of Lasix on horses known to bleed; (c) that, as a veterinary surgeon, he had advocated allowing horses known to bleed to continue racing, when to do so placed the lives of the jockeys in danger". 4 In relation to imputation (c) there is no issue. 5 In relation to imputations (a) and (b) it is submitted, amongst other things, that they do not differ in substance being references to gross incompetence and gross ignorance. 6 The determination of that legal question of compliance with the rules has been considered recently by myself in Haerstch v Andrews and the State of New South Wales (NSWSC 359, 21 April 1999) and a similar concept was considered by Hunt J in Mathieson v Kennedy (unreported, 3 November 1989). 7 The substantiality of the difference in those two cases was concerned with incompetence and negligence. Here we are concerned with incompetence and ignorance. The holding in both of those cases that there was a sufficient difference, even if described as " just" , compels me to the view that that submission is not available. 8 The principal submission however is that imputations (a) and (b) are incapable of being defamatory presumably in their natural and ordinary meaning without the ordinary reasonable reader knowing anything about " Lasix ". I am of the view that the ordinary reasonable reader does not have to know anything about " Lasix" in terms of the imputations as pleaded. The sting is the incompetence in the advocacy of its use, whatever it is, on horses known to bleed. 9 When one reads the matter complained of itself and particularly the bold headline " Lasix? No bleedin' way " the reader, ordinary and reasonable and taken, presumably or for the sake of argument, not to have pharmacological knowledge related to the areas of veterinary science, would not need to know what " Lasix" is. 10 " Lasix" , whatever it is, is something that is not to be prescribed to bleeders and bleeders " on Lasix " are not to race by reason of the clearly asserted danger of the bleeding horses collapsing under the jockey resulting in the, no doubt, danger of serious injury from the somersault referred to. 11 The matter complained of is very short, very clear and very disparaging, the capturing of which disparagement depends, as I have said, not on any necessary knowledge in the reader of what " Lasix" is and the capturing of which disparagement has successfully been made in imputations (a) and (b). 12 Imputations (a), (b) and (c) will go to the jury. The defendant is to pay the plaintiff's costs. 13 By consent I make the orders and directions in the short minutes of order initialled by me and placed with the papers today. **********