Day v Harness Racing New South Wales (No 3) [2015] NSWSC 1461

Supreme Court New South Wales

Medium Neutral Citation: Day v Harness Racing New South Wales (No 3) [2015] NSWSC 1461 Hearing dates: 15 September 2015 Date of orders: 02 October 2015 Decision date: 02 October 2015 Jurisdiction: Common Law Before: McCallum J Decision: DEFAMATION – consideration of need for further interlocutory steps after pleadings closed – principle of proportionality – application of Defamation List Practice Note Catchwords: DEFAMATION - Cases Cited: Day v Harness Racing New South Wales (No 2) [2015] NSWSC 1455 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, D Tucker (Defendants)

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

Judgment 1. HER HONOUR: Neil Day and Dean McDowell sue Harness Racing New South Wales for defamation and negligent misstatement. The proceedings arise out of the publication by Harness Racing New South Wales of two press releases reporting the suspension of each plaintiff's trainer's licence following the detection of cobalt above the permissible threshold in urine samples taken from horses trained by them. This judgment determines the defendant's applications for further interlocutory steps from the plaintiffs raised at the second listing of the proceedings in the defamation list. This judgment should be read together with my separate judgment determining the plaintiffs' applications for further interlocutory steps: see Day v Harness Racing New South Wales (No 2) [2015] NSWSC 1455. 2. The press releases by which the plaintiffs claim to have been defamed reported that the suspension of their licences was a measure taken by Harness Racing New South Wales "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 a number of horses (including some trained by the plaintiffs) following wins in specified races. 3. By way of background, the press release reported that, in September 2013, Harness Racing New South Wales issued a notice that the misuse of cobalt was in breach of the rules and that on 16 December 2013 a threshold was introduced deeming cobalt a prohibited substance when present at a level of 200 micrograms per litre in urine. 4. The claim in negligent misstatement is based on a separate press release published on 12 September 2013 in which Harness Racing New South Wales stated (by way of clarification of the initial notice to industry about cobalt) that the use of proprietary supplements and pre-mix feeds containing cobalt chloride in accordance with the manufacturer's guidelines would not result in a contravention of the applicable harness racing rules. 5. The press releases related to the testing of a horse named Benzi Marsh (trained by Mr Day) on 24 February 2014 and the testing of Chevals Charlie and The Twilightdancer (both trained by Mr McDowell) on 28 February 2014. It is accordingly clear enough that the issues raised on the pleadings include whether each of those three horses presented on those dates with cobalt above the permissible levels and whether that occurred after the plaintiffs had administered no cobalt to those horses other than by the use of proprietary supplements and pre-mix feeds in accordance with the manufacturer's guidelines. 6. A number of the defendant's categories for discovery, however, seek documents going well beyond those issues. The plaintiffs' three principal objections to the defendant's categories for discovery are: 1. the defendant seeks documents relating to the administration of feeds and supplements prior to 12 September 2013 (the date on which the press release relied upon in the negligent misstatement action was published); 2. the defendant seeks documents relating to the administration of feeds and supplements to horses other than Benzi Marsh, Chevals Charlie and The Twilightdancer; 3. the defendants' categories are unlimited as to time. The plaintiffs submit that is oppressive, particularly since Mr Day has been training horses for around 35 years and had been training 28 horses when his licence was suspended while Mr McDowell has been training horses for around 20 years and had been training 16 horses when his licence was suspended. 1. In my view, there is force in each of those objections. As to the period prior to 12 September 2013, Mr Dawson, who appears with Ms Tucker for the defendant, submitted that the claim in negligent misstatement implicitly suggests there was a change in the feeding program based on the defendant's press release of 12 September 2013. I do not read any such implication into the pleading but, in any event, it does not matter. The claim is based on the plaintiffs' reliance on the alleged misstatement. Necessarily, the period of reliance is from or after that date. What the plaintiffs were feeding their horses before that date is of marginal if any relevance to the issues in the proceedings. 2. As to horses other than Benzi Marsh, Chevals Charlie and The Twilightdancer, Mr Dawson noted that, in correspondence responding to a request for particulars (a letter dated 8 April 2015), the plaintiffs' solicitor gave particulars of feeds and supplements provided to all "horses in work" including the three named horses. However, it is clear on the pleadings that the case in causation confines the issues to the three named horses. The loss the plaintiffs claim to have suffered is alleged to arise from the suspension of their licences based on the test results for the three named horses. As with the first objection, the feed regime adopted in respect of other horses in work may be of marginal relevance but I do not think it is of sufficient relevance to warrant broad discovery on that issue. 3. Finally, the objection based on the fact that the categories are unlimited as to time is plainly sound. However, in light of my determination that documents prior to 12 September 2013 are not relevant in any event, it is not necessary to say anything further on that issue. 4. Those rulings govern the plaintiff's objections to categories 2, 8, 9, 10, 11, 12 and 13. That is, for each of those categories, the documents required to be produced are confined to documents relating to events after 12 September 2013 and relating to each of the three named horses (Benzi Marsh, Chevals Charlie and The Twilightdancer). 5. A further qualification is that, as agreed during argument, in the case of categories 10 and 11, the categories are confined to documents recording the content of communications. That qualification also governs categories 19 and 20. 6. Categories 17 and 18 seek discovery of documents relating to a company named Winning Edge Supplies Pty Ltd and Mr McDowell's role in that company. It was agreed in argument (at T52-53) that those issues could more appropriately be addressed by a correctly focused interrogatory. 7. Categories 21 and 22 seek documents evidencing or recording each plaintiff's income for a specified period. It was agreed in argument that those categories could be narrowed so as to seek only income tax returns for that period (T55). 8. It was agreed that category 25 could also be dealt with by an appropriate interrogatory (T55.50). 9. My rulings as to the plaintiffs' objection to the defendant's categories for discovery also govern the plaintiffs' objections to interrogatories 7, 11, 12 and 13. 10. I direct the parties to bring in short minutes of order reflecting these rulings and the rulings given in Day (No 2) within 7 days.