Walsh v New South Wales Harness Racing Club Limited [2000] NSWSC 15

New South Wales Supreme Court

CITATION : Walsh v New South Wales Harness Racing Club Limited [2000] NSWSC 15 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20645 of 1997 HEARING DATE(S) : 22 October 1999 JUDGMENT DATE : 3 February 2000

JIM WALSH (Plaintiff)

PARTIES : v

NEW SOUTH WALES HARNESS RACING CLUB LIMITED (Defendant) JUDGMENT OF : Levine J

M K Rollinson (Plaintiff) COUNSEL : P W Gray (Defendant) Simpson & Harrison (Plaintiff) SOLICITORS : Bush Burke & Company (Defendant) CATCHWORDS : Imputations - Second Further Amended Statement of Claim - 22 October 1999 DECISION : See paragraph 18

DLJ: 2 THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST No. 20645 of 1997

JUSTICE DAVID LEVINE

THURSDAY 3 FEBRUARY 2000

JIM WALSH (Plaintiff)

v

NEW SOUTH WALES HARNESS RACING CLUB LIMITED (Defendant)

JUDGMENT (Imputations - Second Further Amended Statement of Claim - 22 October 1999) 1 Leave was granted to the plaintiff to file in Court, on 22 October 1999, a Second Further Amended Statement of Claim. 2 The plaintiff sues in respect of two publications in the "National Trot Guide", of 5 September and 5 December 1996. 3 Certain imputations are in dispute. 4 In relation to the first matter complained of the disputed imputations are: "3(a) The plaintiff's cheap shots at his opponents could destroy the racing industry if he was not stopped. (l) The plaintiff's egotism was so likely to destroy UHRA members' livelihoods that they should either take over the UHRA themselves or else resign from the UHRA. (n) The plaintiff was using people like Paul Fitzpatrick, Wayne Innes and John Heath as pawns in his attack on the harness racing industry, when he should have been representing these peoples' interests to get a better deal for both them and the harness racing industry. (o) The plaintiff was so egotistical that any kind of criticism only inflated his ego even further. (p) That the plaintiff had repeatedly made false and mean-spirited attacks on the defendant which were calculated to cause serious harm to the Defendant and the harness racing industry". 5 In respect of the second matter complained of: "5(a) The plaintiff's vindictiveness led to charges against National Trotguide following his complaint to the Australian Press Council". 6 On 7 November 1997 Simpson J dealt with an argument in relation imputations, which argument concerned the present imputation 3(a). On that occasion her Honour rejected a contention for the defendant that imputation 3(a) should be struck out by reason of imprecision. It was sought to argue that the imputation was still defective by reason of it not specifying any act or condition of the plaintiff and, secondly, that it does not differ in substance from the new imputation 3(p). 7 Imputation 3(p) is a "pleaded back" contextual imputation of the defendant. The second basis advanced in relation to 3(a) of necessity involves a conclusion that the defendant should not have pleaded 3(p) as a contextual imputation. Be that as it may, I am of the view that imputations 3(a) and 3(p) do not differ in substance. It follows that imputation 3(p) could not, in any event, remain on the record as a contextual imputation. 8 Imputation 3(p) is struck out. 9 Imputation 3(l): it is argued for the defendant that the matter complained of is incapable of giving rise to this imputation. It is clearly founded in paragraph 27 of the first publication which, in turn, is clearly linked to the preceding paragraph 26. As I understand it, paragraph 26 identifies the matters in respect of which members are to become either proactive or resign to preserve their livelihood. The defect in the imputation, in my view, is that part of it which says that the members should "take over the UHRA themselves". There is nothing capable of giving rise to that concept. 10 Imputation 3(l) I hold to be incapable of arising. 11 Imputation 3(n): I am of the view that to say of someone that a person used someone else as a "pawn" is capable of being held to be defamatory. Upon considering the form of the imputation in paragraph 29 of the relevant matter complained of, I am of the view that no successful legal challenge can be mounted against it. 12 Imputation 3(n) will go to the jury. 13 Imputation 3(o): I agree with the submission for the plaintiff that this pleaded imputation represents a condition in the plaintiff, that is, his degree of egotism is so great that even criticism inflates it. I agree that that imputation is capable of being defamatory and is capable of being conveyed particularly by paragraph 30 of the first matter complained of. 14 Imputation 3(o) will go to the jury. 15 Imputation 5(a): On my reading of the matter complained of the vindictiveness of Mr Walsh lead to his making a complaint to the Australian Press Council. Thereupon the Press Council levelled "charges" against the National Trot Guide. The imputation as pleaded, as argued for the defendant, does not properly set out the relevant condition or act of the plaintiff in this context. In the event of any imputation being re-pleaded care will have to be taken that such imputation does differ in substance from the others pleaded, particularly 5(f). 16 Imputation 5(a) is struck out. 17 Taking into account the contents of Exhibit A on this application, namely the letter from Bush Burke & Co dated 12 August 1999, I am of the view that the overall the balance of success requires that each party pay its own costs. 18 The formal orders are: