Day v Harness Racing New South Wales (No 2) [2015] NSWSC 1455

Supreme Court New South Wales

Medium Neutral Citation: Day v Harness Racing New South Wales (No 2) [2015] NSWSC 1455 Hearing dates: 15 September 2015 Date of orders: 02 October 2015 Decision date: 02 October 2015 Jurisdiction: Common Law Before: McCallum J Decision: Rulings as to discovery and interrogatories Catchwords: DEFAMATION – consideration of need for further interlocutory steps after pleadings closed – principle of proportionality – application of Defamation List Practice Note Cases Cited: Berezovsky v Michaels [2000] 1 WLR 1004 Cheikho v Nationwide News Pty Ltd (No 4) [2015] NSWSC 193 Day v Harness Racing New South Wales [2014] NSWSC 1402 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 with B Miles (Plaintiffs) ATS Dawson with D Tucker (Defendant)

Solicitors: Pendlebury Workplace Law (Plaintiffs) Cockburn & Co (Defendant) File Number(s): 2014/367597 Publication restriction: None

Judgment 1. HER HONOUR: This case raises a difficult question as to the impact of an "evidentiary certificate" clause on a party's entitlement to interlocutory discovery. The proceeding is an action for defamation brought by two trainers in the harness racing industry against the authority that governs that industry in this State, Harness Racing New South Wales. The allegedly defamatory publications are two press releases in May 2014 announcing that the trainers' licences had been suspended following the detection of cobalt above the permissible threshold in urine samples taken from horses trained by them after those horses won races. The use of cobalt in horses is regulated in the harness racing industry because the authority has concluded that it has a performance-enhancing effect. 2. Each plaintiff contends that the press releases conveyed the following imputations defamatory of him: 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. 3. that as a trainer he is a cheat in harness racing. 1. By way of defence, Harness Racing New South Wales alleges (among other things) that each of those imputations is substantially true. An assumed premise of the truth defence is that the horses trained by the plaintiffs in fact presented with cobalt above the permissible threshold in their urine on the race days in question. 2. The plaintiffs also sue for negligent misstatement. That claim is based on an earlier press release published by Harness Racing New South Wales on 12 September 2013. That press release provided clarification following the introduction of the rules regulating the use of cobalt. It included the following statement under the heading "Cobalt Chloride": "the use of proprietary supplements and pre-mix feeds containing cobalt chloride in accordance with the manufacturer's guidelines will not result in a contravention of the applicable harness racing rules". 1. The plaintiffs contend that, acting on the faith of that statement and induced thereby, they "administered proprietary supplements and pre-mix feeds containing cobalt chloride in accordance with the manufacturer's guidelines on the understanding that doing so would not result in their horses presenting to race with any prohibited substance as defined under the applicable harness racing rules". 2. The element of causation in the negligent misstatement claim is pleaded in terms that hedge the forensic risk that the authority will be successful in proving elevated levels of cobalt in the horses concerned. The pleading concludes, "in the event the said test results are accurate, the defendant's negligent misstatement caused each plaintiff to suffer loss and damage". 3. The accuracy of the analysis of the urine samples is accordingly a premise of both the truth defence (on which the defendant bears the onus of proof) and the conditionally pleaded negligent misstatement claim (on which the plaintiffs bear the onus of proof).