Supreme Court New South Wales Medium Neutral Citation: Cummings v Fairfax Digital Australia & New Zealand Pty Limited; Cummings v Fairfax Media Publications Pty Limited [2017] NSWSC 657 Hearing dates: 11 – 14, 29 July 2016 Date of orders: 27 July 2016 Decision date: 26 May 2017 Jurisdiction: Common Law Before: Rothman J Decision: In relation to proceedings number 2014/359030: (1) Judgment for the defendants against Anthony Cummings Thoroughbreds Pty Ltd; (2) Judgment for the defendants against Mr Anthony Cummings; In relation to proceedings number 2014/364976: (3) Judgment for the plaintiff Mr Anthony Cummings in relation to the first matter complained of in those proceedings, being the Poster "CUMMINGS FIGHTING CRUELTY CLAIMS", published by the defendants herein on 25 February 2010; (4) Otherwise, judgment for the defendants against the plaintiff; (5) Damages reserved and to be heard on a date to be fixed; In relation to both proceedings: (6) Costs reserved and to be resolved after the conclusion of the damages proceedings. Catchwords: DEFAMATION – five articles being publications relating to pleadings in contract alleging breach of duty and cruelty – standing of corporation to sue accepted – s 28 Defamation Act 2005 (NSW) – pleadings public documents – fair summary, except Poster – liability of defendants for damages arising from Poster – damages to be assessed Legislation Cited: Civil Procedure Act 2005 (NSW) Defamation Act 2005 (NSW) Evidence Act 1995 (NSW) Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW) The National Debt Act 1870 Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Abbott v Coombs (1887) 13 VLR 917; [1887] VLR 160 Amalgamated Television Services v Marsden (1998) 43 NSWLR158; [1998] NSWSC 4 Anderson v Nationwide News Pty Ltd (1970) 72 SR (NSW) 313 Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183 at 217; [1996] HCA 47 Biga Nominees Pty Ltd v Commission of Taxation (Cth) (1991) 104 FLR 74 Born Brands Pty Ltd v Nine Network Australia Pty Ltd (2014) 88 NSWLR 421; [2014] NSWCA 369 Chakravarti v Advertiser Newspaper Limited (1998) 193 CLR 519; [1998] HCA 37 Channel Seven Sydney Pty Ltd v Parras & Ors (2002) Aust Torts Reports 81-675; [2002] NSWCA 202 Crisp v Fairfax Media Ltd & Ors (2012) 38 VR 544; [2012] VSC 615 Curistan v Times Newspapers Limited (2008) All ER (D) 417; [2008] EWCA Civ 432 David Syme & Co v Canavan (1918) 25 CLR 234; [1918] HCA 50 D'Orta-Ekenaike v Victorian Legal Aid (2005) 223 CLR 1; [2005] HCA 12 John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 John Fairfax Publications Pty Ltd v Rivkin (2003) 201 ALR 77; [2003] HCA 50 Lee v Evans (1964) 112 CLR 276; [1964] HCA 65 Lewis v Daily Telegraph Ltd [1964] AC 234 Llewellyn v Nine Network Australia Pty Limited (2006) 154 FCR 293; [2006] FCA 836 Macquarie Radio Network Pty Ltd v Arthur Dent [2007] NSWCA 261 Milne v Ell [2017] NSWSC 555 Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293; [1982] HCA 50 Morgan v Odhams Press Ltd [1971] 1 WLR 1239; [1971] 2 All ER 1156 Nash v Lynde [1929] AC 158 Re Australasian Performing Right Association Limited v Commonwealth Bank of Australia (1992) 40 FCR 59; [1992] FCA 609 Rogers v Nationwide News (2003) 216 CLR 327; [2003] HCA 52 R v Denbigh Justices, Ex parte Williams; R v Denbigh Justices; Ex parte Evans [1974] 1 QB 759 Searles v Scarlett [1892] 2 QB 56 Speight v Gosnay (1891) 60 LJQB 231 Thom v Associated Newspapers Limited (1964) 64 SR (NSW) 376 Webb v Bloch (1928) 41 CLR 331; [1928] HCA 50 Whitney v Moignard (1890) 24 QBD 630 Williams v Smith & Greenwood (1888) 22 QBD 134 Category: Principal judgment Parties: 2014/00359030: Anthony Cummings (First Plaintiff) Anthony Cummings Thoroughbreds Pty Limited (Second Plaintiff) Fairfax Digital Australia & New Zealand Pty Limited (First Defendant) The Age Company Limited (Second Defendant) 2014/00364976: Anthony Cummings (Plaintiff) Fairfax Media Publications Pty Limited (First Defendant) Kate Lahey (Second Defendant) Representation: Counsel: T Tobin QC / S Chrysanthou (Plaintiffs) T Blackburn SC / A T Dawson SC (Defendants) Solicitors: Pikes & Verekers Lawyers (Plaintiffs) Banki Haddock Fiora Lawyers (Defendants) File Number(s): 2014/00359030; 2014/00364976 Judgment 1. HIS HONOUR: The plaintiffs, Mr Anthony Cummings and a corporate alter ego Anthony Cummings Thoroughbreds Pty Limited ("Cummins Thoroughbreds") sues various Fairfax Group entities for defamation. The procedural history is a little complicated, but needs a short summary. 2. The first proceeding is against Fairfax Digital Australia & New Zealand Pty Limited ("Fairfax Digital") and The Age Company Limited ("The Age"), originally commenced in the Supreme Court of the Australian Capital Territory in which the plaintiffs were Anthony Cummings and Anthony Cummings Thoroughbreds Pty Limited. 3. The first proceeding relates to alleged defamation in three articles published by Fairfax Digital over the internet and in The Age. Those articles are: 1. The first matter complained of was a publication entitled "Cummings in $6.4m Fight Over Broken-Down Racehorses", published by Fairfax Digital on 25 February 2010 on two websites (www.smh.com.au and www.brisbanetimes.com.au) (the first impugned digital publication). 2. The second matter complained of was a publication entitled "Tinkler, Trainer in Stoush", published by Fairfax Digital on 25 February 2010 on one website (www.theage.com.au) (the second impugned digital publication). 3. The third matter complained of was a publication entitled "Tinkler, Trainer in Stoush", published in the newspaper, The Age, also on 25 February 2010 (the third impugned publication). 1. There is a claim as to the republication of the first and second impugned digital publications, which are relied upon by the plaintiff in the matters now before the Court. 2. The second proceeding was commenced on 16 June 2010 and is also a suit by Anthony Cummings in this case against Fairfax Media Publications Pty Limited ("Fairfax Media"), a journalist, Kate Lahey and against Fairfax Printers Pty Ltd ("Fairfax Printers") and concerns two further publications. 1. The first matter complained of in the second proceeding is a bill Poster "headline" advertising The Sydney Morning Herald using the words "CUMMINGS FIGHTING CRUELTY CLAIMS" and was published by Fairfax Media and Fairfax Printers on 25 February 2010. (For the purposes of these reasons for judgment this publication will be referred to as the fourth impugned publication.) 2. The second matter complained of in the second proceeding is an article, the author of which was Kate Lahey, which was published in The Sydney Morning Herald on 25 February 2010 in its print version (the fifth impugned publication). 1. Again, there is an allegation of republication of the fifth impugned publication, which republications are relied upon by the plaintiff in his claim for damages. The first and second proceedings have not been consolidated, but, by consent, have been heard together and these reasons for judgment deal with both sets of proceedings as if they were one. 2. At this point, although somewhat trite, it is necessary to note that the first proceeding was transferred to the Supreme Court of New South Wales, by consent of the parties, pursuant to the Jurisdiction of Courts (Cross-Vesting) Act 1987. Further, by order of the Court, also by consent, the question of liability in each proceeding has been separated from and is to be heard in advance of all questions of damage. 3. Lastly, the Court notes that the proceedings against Fairfax Printers were discontinued on or about 11 July 2016, with no order as to costs. Background Facts 1. On 16 April 2009, a company, Something Fast Pty Ltd ("Something Fast"), commenced proceedings against Patinack Farm Pty Limited ("Patinack Farm") in the District Court (the District Court proceedings). It did so by the filing of a Statement of Claim in which it sued for a debt of $167,492.87, plus interest, for unpaid invoices. Something Fast is a company owned by Anthony Cummings. Patinack Farm is a company owned, directly or indirectly, by Nathan Tinkler. 2. Patinack Farm is a racing and breeding company and allegedly utilised the services of Something Fast for the training of certain thoroughbreds and did not pay the fees that were invoiced. As a consequence, Something Fast sued Patinack Farm for the training fees. The pleadings in those proceedings are before the Court. 3. Patinack Farm filed a Defence on 20 August 2009 which admitted receipt of the invoices and the identity of the plaintiff and denied the provision of services or the performance of all work by Something Fast for which the parties contracted or which was invoiced. Further, Patinack Farm filed a Cross-Claim in which the defendants were Something Fast, Anthony Cummings and another company owned by Mr Cummings being Anthony Cummings Thoroughbreds Pty Ltd. 4. The substance of the Cross-Claim alleged that Mr Cummings or Cummings Thoroughbreds acted, by agreement, at thoroughbred sales; that Cummings and Cummings Thoroughbreds were under a duty not to make a commission payable by the vendors; had a duty to obtain the best price on any purchase for Patinack Farm; had a duty only to purchase racehorses that had the potential to win races; and in breach of their duties, did not do so. 5. Further, the Cross-Claim alleged that Mr Cummings knew or ought to have known that Cummings Thoroughbreds had the duties referred to in the immediately preceding paragraph and, as its only director, was liable for the breach of duties by Cummings Thoroughbreds. 6. Most relevantly, for the present proceedings, the Cross-Claim alleged that Mr Cummings agreed he (or in the alternative Something Fast) would train the horses and that the terms of the Horse Training Agreement were that Mr Cummings would apply his best endeavours and experience and would not "train the horses in a manner that they would become lame or in another way break down". 7. Other duties alleged to be owed by Mr Cummings included duties of care: not to train the horses in a manner that they would become lame or in another way break down; to prevent overtraining; not to employ a mode of training that would lead to a horse becoming stressed, injured or overtrained; to require regular review by the trainer and veterinarian as to the existence of stress, injury or being trained too hard; and that required, when a horse was found to be in such a state, to take immediate remedial action. 8. By paragraph 17 of the Cross-Claim in the District Court proceedings Patinack Farm alleged that horses, trained by Mr Cummings or Something Fast, became lame or otherwise broke down and claimed damage. A schedule to the Cross-Claim sets out horses purchased by Patinack Farm with Anthony Cummings acting as agent and horses that are said to have broken down due to negligence. 9. Anthony Cummings filed a Defence to the Cross-Claim, which was the same Defence as that filed by the second and third cross-defendants, being Cummings Thoroughbreds and Something Fast. The Defence to the Cross-Claim denied the agreement to purchase horses under an agency at thoroughbred sales on behalf of Patinack Farm but admitted that, from time-to-time, Cummings Thoroughbreds purchased horses at thoroughbred sales for Patinack Farm, but not pursuant to the Agreement alleged. The Cross-Claim had not particularised the agreement, otherwise than as summarised above. 10. Mr Cummings and Cummings Thoroughbreds denied the duty not to make a commission payable by the vendor on the purchase of a racehorse purchased for and on behalf of Patinack Farm; denied, if such a duty did exist, that it was a term of the Agreement, implied or express; and denied any fiduciary duty arising from any agency or Agreement to purchase on behalf of Patinack Farm. 11. Further, Mr Cummings and Cummings Thoroughbreds (and Something Fast, although somewhat irrelevantly) denied any duty to obtain the best price for Patinack Farm on the purchase of racehorse stock. They also denied a duty only to purchase racehorses that had the potential to win races. 12. Each of the cross-defendants, while admitting to purchasing horses, some only of whom are in the annexures referred to above, denied any breach of the duties pleaded; denied the receipt of any commission as pleaded; denied that the best price was not obtained; denied that the horses purchased were not sound or healthy or capable of becoming racehorses; and denied that Mr Cummings or Cummings Thoroughbreds did not evaluate each horse before purchase. Moreover, the Cross-Claim alleged that the cross-defendants acted in the interests of Patinack Farm on every purchase on its behalf and did not receive any commission or fees of which Patinack Farm was unaware. 13. There were other denials in relation to the damages arising from any alleged breach of duty, but more relevantly, the Cross-Defence dealt with the "training claim" and did not admit that Mr Cummings would apply his best endeavours and experience so as "not to train the horses in a manner that they would become lame or in another way break down"; did not admit that Mr Cummings owed a duty of care "not to train the horses in a manner that they will become lame or in another way breakdown"; and did not admit that Something Fast had the same or similar duty of care. 14. Further, in relation to the training claim, in the Defence to the Cross-Claim, Mr Cummings and his two previously identified companies denied that there was a duty of care, in relation to the training: to prevent overtraining; to employ a mode of training which would not lead to a horse becoming stressed, injured or overtrained; a requirement for a regular review by the trainer and veterinarians to ascertain whether a horse was stressed, injured or being trained too hard; and if found to be stressed, injured or being trained too hard, a duty to take immediate remedial action. 15. The Defence also denied that, in breach of the Agreement and duty of care, the horses that were described became lame or otherwise broke down whilst being trained by Mr Cummings or Something Fast. The Defence to the Cross-Claim also denied damages and, to the extent that there was a breach of duty of care, claimed that the damage was caused by or contributed to by the negligence of Patinack Farm. 16. Ms Lahey's article, which, in one form or another, are all of the impugned publications, except the fourth impugned publication, wrote the article on the basis of the pleadings between Patinack Farm and the Anthony Cummings' interests, including the Cross-Claim and Defence. 17. Her evidence, which I accept, was that, as a journalist for The Sydney Morning Herald in the daily business section, her tasks were to cover court proceedings and anything business-related. Mr Tinkler's financial affairs were a matter of public notoriety and she, in the course of her usual practice, examined the Daily Court List, and noticed the "Cummings" name. On 15 February 2010, she looked at the Court List (Transcript, 146-7), noticed the proceedings and, on 17 February 2010, sought access to the Court file, or more accurately the pleadings, and wrote the article. 18. Ms Lahey was not permitted to make photocopies of the Court documents, but she made notes of the documents (Ex 2). 19. Ms Lahey did not write the headline or the caption. Nor did she choose the photograph (Transcript, 183). Capacity of Cummings Thoroughbreds to Sue for Defamation 1. The standing of Cummings Thoroughbreds to sue for defamation depends upon whether it is a Corporation that is excluded from the operation of s 9(1) of the Defamation Act 2005, which is, relevantly, in the following terms: "9 Certain corporations do not have cause of action for defamation (1) A corporation has no cause of action for defamation in relation to the publication of defamatory matter about the corporation unless it was an excluded corporation at the time of the publication. (2) A corporation is an excluded corporation if: (a) the objects for which it is formed do not include obtaining financial gain for its members or corporators, or (b) it employs fewer than 10 persons and is not related to another corporation, and the corporation is not a public body. (3) In counting employees for the purposes of subsection (2)(b), part-time employees are to be taken into account as an appropriate fraction of a full-time equivalent. (4) In determining whether a corporation is related to another corporation for the purposes of subsection (2)(b), section 50 of the Corporations Act 2001 of the Commonwealth applies as if references to bodies corporate in that section were references to corporations within the meaning of this section." 1. The term "corporation" is given an extended meaning but its extended meaning has no relevance to the current proceedings. There was some muted debate about whether the term "employ" relates to employees only or includes persons performing work for the corporation otherwise than in the capacity of an employee, such as independent contractors. 2. In that way, the question arises as to whether, for example, a director, such as Mr Anthony Cummings, would be counted as one of the 10 persons to which s 9(2)(b) refers, as would stable hands and the like that may be under a contract for the provision of services, rather than a contract of service. 3. The term "employ" or its variations is used, nowadays, as referring to persons employed under a contract of employment or contract of service and, unless the context otherwise dictates, its ordinary meaning is so confined. This interpretation of the term "employs" is confirmed by the use of the term "employees" in calculating the number as defined in s 9(3) of the Defamation Act: see Born Brands Pty Ltd v Nine Network Australia Pty Ltd (2014) 88 NSWLR 421; [2014] NSWCA 369, at [104], per Basten JA, with whom Meagher JA and Tobias AJA agreed. 4. The evidence in relation to the conduct and activities of Cummings Thoroughbreds is such that there can be no doubt that Cummings Thoroughbreds employs fewer than 10 persons. 5. Further, the fact, which is accepted, that Mr Cummings is a director of a number of companies does not render those companies, by that fact alone, related companies within the meaning of the Corporations Law nor a company that is "related to another corporation" within the meaning of s 9 of the Defamation Act. 6. As a consequence of the foregoing, Cummings Thoroughbreds has the standing to sue for defamation. Republication 1. The plaintiffs allege, by separate cause of action, that the first impugned digital publication was republished on the websites of the Racing Post, Thoroughbred News and Breednet. The plaintiff alleged that the second impugned digital publication was republished in The New Zealand Herald. 2. A person who publishes material is liable for the republication of that material and liable in damages for defamation, should the material be defamatory if: 1. the person has authorised a repetition, either impliedly or explicitly; 2. where the person intends the words to be republished; 3. where the republication is the natural and probable consequence of the original publication: see Slipper v British Broadcasting Corporation [1991] 1 QB 283; Speight v Gosnay (1891) 60 LJQB 231. 1. There are other circumstances in which the original maker of the statement is liable, but they are not relevant to the current circumstances. They include the provision of defamatory material directly to another for inclusion in a publication (e.g. a statement at a press conference, or the publication of a media statement) or the publication of defamatory material to a person who has a duty to republish (e.g. a moral or legal duty to inform others of an allegation). In this regard, reference is made to Speight v Gosnay (1891) 60 LJQB 231; Webb v Bloch (1928) 41 CLR 331; [1928] HCA 50 at 363; Whitney v Moignard (1890) 24 QBD 630. 2. Racing Post is an international internet publication that, from time-to-time, prints material published in other publications. It is published daily. Thoroughbred News, likewise, is an internet publication focused on horseracing, published in Australia 3. The New Zealand Herald is a mass circulation newspaper (with a website associated with it). There are differences in the articles, except The New Zealand Herald article. 4. The Racing Post article, which has clearly been copied from the publications for which the defendants are responsible, omits certain words which convey the proposition that there is a dispute between the parties that has yet to be resolved. Further, in paragraph 4 of the article, it omits reference to the fact that the documents, from which the material had been taken, had been filed in the New South Wales Supreme Court, which, once more, undermines the sense and substance of the originally published article, at least in part. 5. The Racing Post article also omits the references to the companies associated with Mr Cummings, namely, Cummings Thoroughbreds and Something Fast. There are other differences, but the foregoing are the major differences in the Racing Post article. 6. The Thoroughbred News article is a lengthier publication with slightly more information in it. That further information is only found in the publication in Thoroughbred News. However, the further information does not alter the status of the other material nor lead to defamation that is not otherwise available. It relates to Mr Tinkler's financial issues. 7. Notwithstanding the alterations in the articles in the Racing Post and Thoroughbred News, it does not seem that the sense and substance of the articles have altered dramatically, albeit some of the material in the Racing Post does make a slight difference to the degree to which the material may be defamatory. 8. The Breednet article is different in style, form and content. Plainly, it is based upon the publications of the defendants, but its meaning is significantly different. Nevertheless, those parts that repeat the allegations in the publications of the defendants are as defamatory as they may be in the original publications and the different style of the article and the different content (in part) do not affect the determination of whether the material is defamatory or otherwise. 9. The far more difficult question is whether the defendants are liable for the republications at all. The New Zealand Herald is not a syndicated newspaper with the defendants. Moreover, it is not, as the evidence discloses, part of the "Fairfax stable", notwithstanding its name. The publications being the Racing Post, Thoroughbred News and Breednet also have no relationship with the defendants or any related company to the defendants. 10. There is and could be no suggestion that the material first published in any of the impugned publications was material that the defendants authorised to be published in any of the publications for which it is said they are responsible by way of republication. Nor can it be alleged that the material was published to any of the republishers for inclusion in their publication. 11. Further, it cannot be said that the defendants published the material for the purposes or intending for the material to be republished. As a consequence, the only arguable proposition by which the plaintiff could render the defendants or any of them liable for the republication in those media publications is that the republication is "the natural and probable consequence" of one or other of the original publications. 12. The nature of the publications in which the republication of the impugned material occurred, on the evidence, suggests that it is likely these publications would republish material of this kind. But likelihood or "probability" is only one of the factors necessary to sheet home to the defendants the responsibility for the republication. 13. The republication in Thoroughbred News, Racing Post, Breednet and The New Zealand Herald is each a publication that is subject to an independent decision-making process to publish the material. It is neither authorised by the defendants nor any of them. Nor is it intended to be republished. 14. In order, in this situation, for the defendants to be liable for the republication, it must be the "natural and probable consequence" of the original publication. The republication, in the circumstances of this case, is not a natural consequence of the publication. Indeed, on one view at least, the republication by independent entities is a breach of copyright for which the defendants in those proceedings could sue. 15. Whatever damage may have been caused by the republication in the independent internet and newspaper articles can be the subject of separate defamation proceedings by the plaintiffs. It is, in my view, not the natural and probable consequence of the publication of the original articles for the republication to have occurred and the damage cannot be placed at the feet of the defendants. Identification 1. Each of the publications, aside from the fourth impugned publication, The Poster, plainly and expressly identifies the plaintiffs, being Mr Cummings and Cummings Thoroughbreds. In each such article, identification is not an issue. 2. However, in the fourth impugned publication, the Poster "CUMMINGS FIGHTING CRUELTY CLAIMS", an issue arises as to the identification of the plaintiffs, in particular Mr Anthony Cummings. It is notorious that the Cummings' family is a famous racing family. Mr Anthony Cummings' father, Mr Bart Cummings, has a "very, very outstanding record" (Transcript, 50-51) who was "well known to racing and non-racing people and was given a state funeral when he passed away" (Transcript, 52-53). 3. The foregoing quotes derive from evidence of Mr Neville Begg, himself a famous horse trainer, who has been inducted into the Australian Racing Hall of Fame. He has known the plaintiff Mr Anthony Cummins since his late teens when his father, Bart Cummings, came from Victoria to train horses in Sydney. Mr Begg and Mr Bart Cummings trained horses alongside each other. 4. Mr Begg identified Mr Anthony Cummings by the reference in the Poster, because it was fairly widely known that he was having a difference with one of his clients (Transcript, 49-50). 5. Mr Bryan Rutter saw the Poster outside a newsagent while driving along Clovelly Road, at Clovelly. When he saw the Poster he was "alarmed for Anthony" (being a reference to Mr Anthony Cummings) (Transcript, 54-55). He accepted (Transcript, 57-59) that Bart Cummings was more famous and a name more widely recognised than Mr Anthony Cummings, but took the Poster to be a reference to Mr Anthony Cummings because, in his perception, when the media referred to Mr Bart Cummings, it always called him "Bart Cummings" and not "Cummings". 6. It was suggested to Mr Rutter that that perception was incorrect and that he had never seen the plaintiff referred to in a headline just as "Cummings" (Transcript, 58). The material before the Court discloses that Fairfax Digital had referred to Mr Anthony Cummings twice, in recent time, prior to the publications that have been impugned, as "Cummings", simpliciter. 7. Moreover, the comment of Mr Rutter that he had never seen Bart Cummings referred to in headlines as "Cummings" only (Transcript, 57) was the subject of cross-examination with the defendants suggesting to Mr Rutter that he had, in fact, seen Bart Cummings referred to by his last name alone. Nevertheless, no such example has been tendered to the Court. 8. The defendants submit that the identification by Mr Begg does not meet the test to infer that the Poster refers to Mr Anthony Cummings. This suggestion is made on the basis that in order for Mr Begg to identify Mr Anthony Cummings from the Poster, Mr Begg was required to be aware of the proceedings and the general nature of the allegations in the proceedings. 9. One of the difficulties associated with the Court dealing with liability separately from damages is that such a submission does not, on its face, negate the identification of the plaintiff, but may go, in large measure, to the damages associated with any defamation in such circumstances. 10. In the case of Mr Rutter, the defendants submit that the basis upon which Mr Rutter identified Mr Anthony Cummings was not reasonable. Ordinarily, for an article to be defamatory of a person, the article must reasonably be understood to have referred to the person by the words. That would usually be associated with description by nickname or initials or a photograph, drawing or caricature, or by the position held, but does not require the mention of the person at all. 11. Nevertheless there must be something in the publication that, in the circumstances, would reasonably lead one or more persons acquainted with the plaintiff to believe that the plaintiff was the person to whom the publication referred: David Syme & Co v Canavan (1918) 25 CLR 234; [1918] HCA 50 at 238; Channel Seven Sydney Pty Ltd v Parras & Ors (2002) Aust Torts Reports 81-675; [2002] NSWCA 202. In relation to the Poster, being the fourth impugned publication, the identification is of Mr Anthony Cummings not the corporation. 12. It seems that, at least to Mr Begg, the Poster identified Mr Anthony Cummings and the identification by Mr Begg was on a reasonable basis. The difficulty, as earlier stated or intimated, is that if that were the basis upon which a person identified Mr Anthony Cummings it would be a basis which ameliorated the damage suffered because of the defamatory imputation. 13. In relation to Mr Rutter, the defendants submit that the basis for the identification is not a reasonable one. Mr Anthony Cummings' father, Mr Bart Cummings, was a better known and more famous identity in the racing industry and was alive at the time of the publication. It is almost inconceivable that a person knowing Mr Anthony Cummings or of him would not know Mr Bart Cummings, and more probably than not, identify the Poster as referring to Bart Cummings rather than Mr Anthony Cummings. 14. Nevertheless, Mr Rutter gives evidence that a reference to the father, Mr Bart Cummings, would normally be published as "Bart Cummings" and that, therefore, a reference to "Cummings" was, in his mind, a reference to Mr Anthony Cummings. There does not seem to be any basis upon which the Court could take the view that the evidence of Mr Rutter should be disbelieved or that the differentiation, as he perceived it, is not accurate. In those circumstances, the identification by Mr Rutter is reasonable. 15. As a consequence of the foregoing, the terminology "Cummings" is such as would reasonably lead at least one person acquainted with Mr Anthony Cummings to believe that he was the person to whom the Poster refers. The Poster identifies the individual plaintiff. Defamatory Meaning 1. In light of the foregoing analysis of identity and the proposition that the articles refer to Mr Anthony Cummings, it is necessary to determine whether the articles and the Poster have, overall, or in particular parts, a defamatory meaning. 2. Before doing so, notwithstanding the earlier conclusions relating to the republication, I should set out my findings in relation to those allegedly republished articles. The New Zealand Herald article is in substantially the same terms as the impugned publications published by the defendants and would be as defamatory as the defendants' publications. 3. The publications, described earlier as Racing Post and Breednet are, in the conclusions that the Court draws, in or to the same effect, overall, as the defendants' publications. It is accurate, as submitted by the defendants, that there are distinctions between the article in the Racing Post and in the Thoroughbred News article that render the publication different in many ways to the defendants' publications. Thoroughbred News is probably less defamatory, for reasons associated with the additional material inserted in the article, than the Racing Post or The New Zealand Herald articles. Nevertheless, and notwithstanding the differences to which I have referred, the articles are in the same category as the defendants' publications. 4. The publication on Breednet is in a different category. The Breednet article differs significantly from the defendants' publications and is, on its face, much more cynical as to the motives of Mr Tinkler and his associated corporation. 5. In my view, in an overall sense and assuming the ordinary reasonable reader reads the entire article, a reader would not gain from the Breednet article any criticism of Mr Cummings or his companies and would, rather, see the article as unfavourable to Mr Tinkler. The article itself refers to Mr Anthony Cummings as a "respected Randwick trainer" and notes that Mr Cummings had fulfilled his end of the bargain to purchase Group 1 winners, doubts the rationality of the suit and repeats that it is a reaction to Mr Cummings (or his company) suing for unpaid invoices. 6. It is necessary then to examine the impugned publications and to determine whether the imputations that have been alleged by the plaintiffs are carried by the publications. That exercise requires the Court to put itself in the position of the hypothetical "ordinary reasonable reader", being a person of fixed, unvarying attributes who reads between the lines; is of fair average intelligence; is a fair-minded person; is not overly suspicious; is not avid for scandal; is not naive; does not search for strained or forced meanings; and reads the entire publication of which complaint has been made: Amalgamated Television Services v Marsden (1998) 43 NSWLR 158; [1998] NSWSC 4; Lewis v Daily Telegraph Ltd [1964] AC 234 at 260; John Fairfax Publications Pty Ltd v Rivkin (2003) 201 ALR 77; [2003] HCA 50. 7. The ordinary reasonable reader does not live in an ivory tower but takes the natural and ordinary meaning of words, including all such insinuations and innuendos as can reasonably be read into them by the ordinary person. While that ordinary reader may, from time-to-time, engage in a certain amount of loose thinking, this is because that ordinary reader does not formulate reasons but obtains a general impression, even though one might expect that ordinary reasonable reader to look again before coming to conclusions and acting upon them: Morgan v Odhams Press Ltd [1971] 1 WLR 1239; [1971] 2 All ER 1156. 8. It may be that some of the attributes of the ordinary reasonable reader are "pious presumptions" imposed by the courts in order to make defamation proceedings more rational, but the law requires that the ordinary reasonable reader have those attributes and that the publications be examined in that light, with the Court putting itself in the position of the ordinary reasonable reader. 9. Cummings Thoroughbreds is a plaintiff and alleges a number of imputations. Each of those imputations recites that Cummings Thoroughbreds is "a company engaged in the business of training horses" as part of the imputation arising from the first, second and third impugned publications. 10. Nothing in the first, second, third and fifth impugned publications and no part of the fourth impugned publication alleges that Cummings Thoroughbreds is a company engaged in the business of training horses. Each of the allegations as to overtraining, training until they were broken down or the prevention of racehorses earning prize money, or even the obtaining of commissions or the purchase of horses that were not thought to be able to win a Group 1 race, allege that Cummings Thoroughbreds is a company engaged in the business of training horses and from nowhere in the articles would one discern (even reading between the lines) that Cummings Thoroughbreds was a company engaged in the business of training horses. 11. It is Mr Cummings who, according to the article, is alleged, in the District Court pleadings, to be the person who engaged in the conduct from which the plaintiff seeks to allege the imputations against the company arise. Moreover the article does not allege that Cummings Thoroughbreds (or, indeed, Something Fast) bought thoroughbreds or trained thoroughbreds or performed any of the conduct that, according to the article, Mr Tinkler was alleging against Mr Cummings. 12. As a consequence, the Court concludes that none of the imputations, read in the context of the article or publication as a whole, in each case, arises from the publication in relation to the corporate entity, Cummings Thoroughbreds. The corporate entity Something Fast is not a plaintiff in the proceedings and does not allege defamation. 13. On the other hand, and possibly even more so as a result of the comments in relation to Cummings Thoroughbreds, there are statements in the publications (leaving aside, for present purposes, the Poster being the fourth impugned publication) that give rise to each of the imputations alleged in the first proceedings to have arisen from the first, second and third impugned publications. Further, the imputations pleaded by Mr Cummings in relation to the second proceedings arise from statements relating to the fifth impugned publication, being the same imputations as were pleaded in the first proceedings. 14. I will deal with the Poster later in these reasons. 15. I have concluded that aspects of the publications (other than the Poster, being the fourth impugned publication) give rise to the imputations, I have not yet, in these reasons, dealt with the publication as a whole, as is required when the Court puts itself in the position of the ordinary reasonable reader. That process will be undertaken after first dealing with the defence under s 28 of the Defamation Act. Section 28 Defence 1. The defendants rely upon a defence under s 28 of the Defamation Act, which provides: "28 Defence for publication of public documents (1) It is a defence to the publication of defamatory matter if the defendant proves that the matter was contained in: (a) a public document or a fair copy of a public document, or (b) a fair summary of, or a fair extract from, a public document. (2) For the purposes of subsection (1), if a report or other document under the law of a country would be a public document except for non-compliance with a provision of that law about: (a) the formal requirements for the content or layout of the report or document, or (b) the time within which the report or document is prepared, or presented, submitted, tabled or laid to or before a person or body, the report or document is a public document despite that non-compliance. (3) A defence established under subsection (1) is defeated if, and only if, the plaintiff proves that the defamatory matter was not published honestly for the information of the public or the advancement of education. (4) In this section, 'public document' means: (a) any report or paper published by a parliamentary body, or a record of votes, debates or other proceedings relating to a parliamentary body published by or under the authority of the body or any law, or (b) any judgment, order or other determination of a court or arbitral tribunal of any country in civil proceedings and including: (i) any record of the court or tribunal relating to the judgment, order or determination or to its enforcement or satisfaction, and (ii) any report of the court or tribunal about its judgment, order or determination and the reasons for its judgment, order or determination, or (c) any report or other document that under the law of any country: (i) is authorised to be published, or (ii) is required to be presented or submitted to, tabled in, or laid before, a parliamentary body, or (d) any document issued by the government (including a local government) of a country, or by an officer, employee or agency of the government, for the information of the public, or (e) any record or other document open to inspection by the public that is kept: (i) by an Australian jurisdiction, or (ii) by a statutory authority of an Australian jurisdiction, or (iii) by an Australian court, or (iv) under legislation of an Australian jurisdiction, or (f) any other document issued, kept or published by a person, body or organisation of another Australian jurisdiction that is treated in that jurisdiction as a public document under a provision of a law of the jurisdiction corresponding to this section, or (g) any document of a kind specified in Schedule 2. 1. The defendants allege that the article is a fair summary of the pleadings in the District Court proceedings between Patinack Farm and one or other of the plaintiffs. 2. It may be appropriate, in the circumstances, to set out the circumstances in which Ms Lahey obtained the pleadings. As earlier recited, Ms Lahey saw the proceedings in the Court List, attended Court and then applied (Ex B) for access to the Court file in relation to the proceedings. 3. Ms Lahey's application was for the Statement of Claim and Defence and the purpose for which, it was said, the documents were sought was to assist in Ms Lahey's reporting on the proceedings in The Sydney Morning Herald. Ms Lahey's application recounted that the documents should be granted because to do so would accord "with the principles of open justice". 4. The Cross-Claim and Defence to the Cross-Claim have been summarised earlier in these reasons for judgment. The Statement of Claim is a simple claim on contract for unpaid amounts owing to the plaintiff in the District Court proceedings. 5. For the defendants to establish a defence under s 28 of the Defamation Act, they must, relevantly, prove that those imputations that arise are imputations that arise from a fair summary of the pleadings in the District Court proceedings and that the pleadings were public documents. 6. The evaluation of whether the articles or publications are a fair summary of the pleadings is, once more, taken from the position of the ordinary reasonable reader and, most importantly in this context, from reading the publication as a whole, rather than dissecting it or reading only some parts of the publication. 7. Lastly, the question is not whether some parts of the publication fairly summarise what was contained in the pleadings, but whether the publication as a whole can be so described. Similarly, where, as here, there is some extraneous material included, being material that does not arguably summarise the pleadings, the publication, as a whole, may not be deprived of its categorisation as a fair summary of the pleadings. 8. The plaintiffs identified a number of aspects in which they say that the publications do not reflect a fair summary. First, and most obviously, the Poster (the fourth impugned publication) does not purport to be a fair summary, or a summary at all, of the pleadings. 9. Secondly, in all of the other impugned publications, there is a reference to the two corporate entities of which Mr Anthony Cummings was the principal, namely, Something Fast and Cummings Thoroughbreds. Yet, the plaintiffs say, the denials in the publications are attributed to "Cummings" and not to the corporate entities, which the articles allege were included in the allegation made by Patinack Farm. Next, the plaintiffs allege, there has not been a fair summary of the pleadings insofar as they relate to the corporate entities and there is no denial by the corporate entities recorded in the publications. 10. Thirdly, as a consequence of the second issue, the publications do not provide an "indicator or pointer … to understand which company is caught up in the allegations of over-training". This, the plaintiffs say, is exacerbated by the reference to "him or his company" in [12] of the publication. 11. Fourthly, the publication converts the non-admission of a duty to train horses so that they would not break down into a denial that such a duty was owed and such a denial is, according to the plaintiffs, a matter which the ordinary reasonable reader would regard as disreputable conduct by a trainer. 12. Lastly, by reference to [13] and [14] of the publications, the plaintiffs submit that the publications suggest that Mr Cummings was buying horses for someone other than Patinack Farm at that sale, which allegation is not made in the pleadings. The pleadings, in particular the Cross-Claim and Annexure D thereto, allege that all of the horses named in the annexure were purchased for Patinack Farm. 13. Care must be taken, when dealing with the overall effect of a publication and its appropriate meaning, to ensure that the Court does not transform the test from one that is the approach of an ordinary reasonable reader to the approach of an ordinary reasonable lawyer. 14. The publications make clear that the two corporate entities are each companies of Mr Cummings. In fact, each is a company of which Mr Cummings is the sole director and for which Mr Cummings performs work. While there may be others that perform work or services for the companies, the purchasing of stock and the training of horses is, largely, if not wholly, performed by Mr Cummings. 15. In my view, the overall impression of the publications is that no differentiation was taken as between the interests of Mr Cummings and the interests of his private companies and Mr Cummings and the companies are referred to collectively as "Cummings" or "Mr Cummings" and, on occasion, the reader is reminded that these things alleged and denied have been done or not done by Mr Cummings or his companies. 16. The ordinary reasonable reader, who has read the whole of the publication, would not conclude that Mr Cummings was denying allegations, but his company was not. The ordinary reasonable reader would conclude that Mr Cummings and his companies were taking the same stand in the proceedings. 17. In other words, if Mr Cummings has been defamed, then, subject to the issues of standing with which the Court has dealt, so too have his two named companies, subject to the role of each company and the imputations alleged against it. On the other hand, if Mr Cummings has not been defamed, then neither has each of his companies. 18. Further, s 28 of the Defamation Act does not require perfection. As long as the summary is substantially accurate and the information in the summary is attributable to public documents, the defence is capable of being established. 19. In these publications, the material that is additional to that which is contained in the pleadings does not, itself, give rise to any defamatory imputation and the defendants would not lose the defence created by s 28 of the Defamation Act as a consequence of the additional remarks: Macquarie Radio Network Pty Ltd v Arthur Dent [2007] NSWCA 261; Curistan v Times Newspapers Limited (2008) All ER (D) 417; [2008] EWCA Civ 432; Chakravarti v Advertiser Newspaper Limited (1998) 193 CLR 519; [1998] HCA 37. Nor does any additional material detract from the summary. 20. Errors may occur in the summary and in the facts presented, but the protection will not be lost unless there is a substantial misrepresentation of material fact prejudicial to the plaintiff's reputation: Thom v Associated Newspapers Limited (1964) 64 SR (NSW) 376 at 380; and Anderson v Nationwide News Pty Ltd (1970) 72 SR (NSW) 313 at 318, cited and referred to with approval in Chakravarti, supra. 21. Further, the summary of the pleadings is intended to be a summary and not repeat every aspect of the pleadings. Nor does it need to repeat the allegations and answers in the same manner as the pleading. Mistakes in the summary, and there are bound to be some inaccuracies, do not negate the defence. Rather, the Court needs to look at each of the complaints as part of the publication as a whole and decide whether the publication, as a whole, is fair and accurate. 22. It is necessary to look at each of the imputations and to determine whether that imputation has a source in the pleadings. In relation to Mr Cummings, the imputations, some of which are in similar form, are set out, as one would expect, in the Statement of Claim in the proceedings currently before the Court. 23. Nevertheless, it is appropriate to point out that the allegation that Mr Cummings, as a trainer: worked Patinack Farm's horses so hard that they were unable to race; could not earn winnings because they broke down or became lame; by his negligence caused five of the horses to break down so severely they could never race; and caused 10 of the horses to break down so severely that they only have a 50% chance of racing, were described in paragraphs 2, 3, 9 and 10 of the publication (using the fifth impugned publication as the example) and were sourced directly from the allegations in the Cross-Claim in [14], [15], [16], [17] and [18] of the Cross-Claim by Patinack Farm, together with a reading of Annexure F of the Cross-Claim. 24. The allegations or imputations: that Mr Cummings took commissions and fees to which he was not entitled for the purchase of racehorses; or dishonestly profited at the expense of Patinack Farm in the purchase of racehorses; or failed in his duty to buy sound racehorses at the best possible price; are pleaded in the Cross-Claim, filed by Patinack Farm in the District Court, in [3], [4], [5], [6], [7] and [8]. 25. The claim that Mr Cummings was required to perform a duty to buy racehorses that he considered would win the Group 1 races; or failed to perform his duty by buying racehorses that were not fit for competition; or failed to buy sound racehorses are contained in the Cross-Claim in [6] and [7] of the Cross-Claim. 26. Thus, each of the imputations arising from the first proceeding is an imputation that arises from the terms of the Cross-Claim. The second proceeding (arising from impugned publications four and five) pleads the same imputations, bearing in mind that the current discussion is not one which includes the Poster. 27. I have dealt already with the issues associated with the failure to differentiate between Mr Cummings and his private companies. The other issues raised by the plaintiffs relate to the failure to distinguish between Something Fast, which in the pleadings was alleged to have a role in purchasing and selling horses for Patinack Farm, but not training them. In the article no differentiation of task was mentioned. 28. Further, the plaintiffs submit that there is a reference in the article to a denial of an agreement between Cummings and/or Cummings Thoroughbreds and Patinack Farm to be Patinack Farm's agent at the thoroughbred sales for the purchase of racehorse stock. 29. The difficulty with such an allegation is that the claim in [3] of the Cross-Claim is that Mr Cummings or Cummings Thoroughbreds agreed with Patinack Farm to be Patinack Farm's agent at thoroughbred sales for the purchase by Patinack Farm of racehorse stock. The Defence to that Cross-Claim admits that, from time-to-time, Cummings Thoroughbreds purchased horses at thoroughbred sales, but not pursuant to the Agreement alleged. 30. It is difficult to understand how Cummings Thoroughbreds or Mr Cummings could purchase horses for Patinack Farm without being Patinack Farm's agent at the thoroughbred sales. The imprecision in the pleadings may mean that the horses were purchased by Cummings Thoroughbreds for itself and on sold to Patinack Farm, but given the terms of the pleading in [7(b)] of the Defence to the Cross-Claim, it is impossible to accept that the alternative arises and impossible to accept that there was not some agreement between one or other of the plaintiffs and Patinack Farm for that plaintiff to act as Patinack Farm's agent in purchasing one or more horses. 31. In other words the denial of the existence of an agreement, about which the plaintiffs complain, is a general denial that in terms of the whole of the Defence to the Cross-Claim does not withstand the response in [7(b)] of the Defence to the Cross-Claim to act on behalf of Patinack Farm in the purchase of some horses. 32. Another matter of which the plaintiffs complain, in relation to the accuracy of the article, is that the article reports that Mr Cummings denied that he had a duty to train horses whereas, according to the plaintiffs, he did not admit the existence of such a duty. The pleadings must be read as a whole. 33. Paragraph 11 of the Cross-Claim alleges that, prior to a horse being purchased, Patinack Farm and Mr Cummings agreed that Mr Cummings would train the horses. Alternatively, by [12] of the Cross-Claim, the agreement was with Something Fast. By [13] of the Defence to the Cross-Claim, Mr Cummings, Cummings Thoroughbreds and Something Fast admit that it was agreed between Mr Cummings and Patinack Farm that Mr Cummings would train horses for Patinack Farm, but pleads that the agreement was made with Something Fast. 34. Paragraph 13 of the Cross-Claim alleges that the agreement provided that Mr Cummings "would apply his best endeavours and experience to not train (sic) the horses in a manner that they would become lame or in another way breakdown". 35. Paragraph 13 is not admitted in the Defence thereto. 36. In [14] of the Cross-Claim the allegation is that Mr Cummings, by reason of the previously mentioned agreement, owed a duty of care not to train the horses in a manner that they would become lame or in another way breakdown. Paragraph 14 of the Cross-Claim is not admitted. 37. Paragraph 15 of the Cross-Claim makes the same allegations in relation to Something Fast if it be found to be a party to the agreement. Again, [15] is not admitted and, once more, it is not admitted by each of Mr Cummings, Cummings Thoroughbreds and Something Fast. 38. Paragraph 16 of the Cross-Claim pleads that the agreement and the duty of care required: the prevention of overtraining; the employment of a mode of training that would not lead to a horse becoming stressed, injured or overtrained; the regular review by the trainer to ascertain whether a horse was stressed, injured or being trained too hard; and if so found to take immediate remedial action. Each of Mr Cummings, Cummings Thoroughbreds and Something Fast denied [16] of the Cross-Claim. 39. In other words, Mr Cummings and, relevantly, Something Fast, denied that the agreement, being an agreement, which, on Mr Cummings' pleadings is an agreement between Patinack Farm and Something Fast that Mr Cummings will train the horses, does not require the prevention of overtraining; the employment of a mode of training which would not lead to a horse becoming stressed, injured or overtrained; the regular review by Mr Cummings in order to ascertain whether a horse was stressed, injured or being trained too hard; and the implementation of immediate remedial action if a horse was found to be so trained. 40. Apart from the view that the ordinary reasonable reader (as distinct from the ordinary reasonable legal practitioner) would not differentiate a denial and a failure to admit, the Defence of Mr Cummings and his companies admits the existence of an agreement that Mr Cummings would train the horses but denies that the agreement and any duty of care thereunder requires the prevention of overtraining and the other matters pleaded. 41. I find it difficult to imagine that any ordinary reasonable reader of the pleadings, let alone the publication, would take the view that the pleadings did not deny a duty to train horses so they would not breakdown or in the other ways alleged. 42. Lastly, the plaintiffs suggest that [13] and [14] of the fifth impugned publication (and its equivalent in the first, second and third publications) allege that Mr Cummings took commissions from sales, when he was supposed to be buying horses for Patinack Farm at the best possible price and thereby gives rise to an imputation or meaning that Mr Cummings was buying horses for someone other than Patinack Farm at the sale, which allegation is not made in the pleadings. 43. First, as I understand the case before the Court currently, it is not disputed that Mr Cummings did buy horses for other people at the sale. In other words, Mr Cummings, in his pleadings, pleads the purchase of horses other than on behalf of Patinack Farm. That allegation is not denied in these proceedings and seems to have been a notorious fact. 44. More importantly, the content of [13] and [14] (even if taken alone) do not give rise to the allegation. On the face of [13] and [14], the publication alleges that Mr Cummings took commissions and fees from persons other than Patinack Farm, in relation to horses he bought for Patinack Farm. 45. In other words the allegation in [13] and [14] of the fifth impugned publication is that Mr Cummings was receiving a commission from Patinack Farm and also a commission from others in relation to the same purchase, being the purchase for Patinack Farm. That allegation is plainly made in the pleadings and denied. 46. In other words, each of the possible meanings of [13] and [14] of the article do not give rise to an allegation that is defamatory or does not arise from the pleadings. 47. The other way in which to deal with the issue of whether the publication is a fair summary is to deal with the publication and to source each of the allegations made therein. 48. The Age article (the third impugned publication) has two additional paragraphs dealing with Mr Tinkler. Neither of those paragraphs give rise to any imputation before the Court in these proceedings. 49. Otherwise the differences relate to headings. The Age article is headed "Tinkler, Trainer in Stoush", whereas The Sydney Morning Herald article is headed "Cummings in $6.4m Fight Over Broken-Down Racehorses". There is also a subheading in The Age article: "Racing Giants Face off". There are slight differences in wording. 50. Mr Anthony Cummins is described in The Sydney Morning Herald article as the "son of the 'cups King' Bart Cummings", which is not found in The Age article. Otherwise, there are immaterial alterations such as the use of the term "operation" instead of "outfit" or the use of the term "winnings" instead of the term "prize money" and some very slight syntactical changes. 51. I will, therefore, use, as did the defendants, The Sydney Morning Herald article, in its print version, as the example and I include the table at [154] of the defendants' submissions, which is in the following terms: Para Content of para Source of content Relevant part of pleadings 1. Cummings in $6.4m fight over broken-down racehorses Cross-Claim Paragraph 17, Annexure F 2. Anthony Cummings is accused of overtraining. Photo: Pat Scale Cross-Claim Paragraph 17, Annexure F Kate Lahey N/A N/A Worked horses so hard they were unable to race Paragraphs 14-17 3. The racehorse trainer Anthony Cummings, son of the "cups king" Bart Cummings, is fighting claims he worked horses so hard they were unable to race, took sale commissions he should not have and bought horses for a client that were not fit for competition. Cross-Claim Took sale commissions he should not have Paragraphs 4, 7(d) and (e), 10 Bought horses for a client that were not fit for competition Paragraphs 6, 7(g), 9 4. In documents filed in the NSW Supreme Court, the horse breeding and training operation Patinack Farm, run by the mining tycoon Nathan Tinkler, is seeking $6.4 million from Mr Cummings and his companies, Cummings Thoroughbreds and Something Fast. It says this is the loss in value of horses Mr Cummings bought on its behalf and trained until they were broken down or lame, preventing them earning winnings. Cross-Claim Paragraphs 17 and 18, Annexure F 5. But the claim was made only after Mr Cummings sought $173,000 from Patinack for unpaid training fees and costs. Statement of Claim Relief claimed (front page) 6. Mr Tinkler refused to pay, saying Mr Cummings had not performed all the work he was charging for. Defence Paragraphs 2 and 4 Breached his duty of care when training the horses Paragraphs 14, 16, 17 Profited at its expense Paragraph 8(b) 7. In a cross-claim, Patinack alleged Mr Cummings breached his duty of care when training the horses and profited at its expense when he was supposed to be acting for it at sales in 2008, where he allegedly bought more than 100 horses for the company. Cross-Claim Supposed to be acting for it Paragraphs 3, 8(a) Sales in 2008 / bought more than 100 horses Paragraphs 7(a), (b), (c), (d), (e), Annexures A (24 horses listed), B (35 horses listed), C (28 horses listed), D (58 horses listed), E (11 horses listed) Did not breach any duty of care 8. Mr Cummings denies the allegations. He said he did not breach any duty of care, and any loss or damage is due to Patinack's negligence in failing to monitor the training and by letting horses be raced or trialled when it knew they should not be. Defence to Cross-Claim Paragraphs 7(a), 18 Loss or damage is due to Patinack's negligence Paragraph 20 9. Patinack lists 15 thoroughbreds as "horses that have broken down due to negligence", including five that allegedly had no chance of racing. Cross-Claim Annexure F 10. The remaining 10 horses allegedly have a 50 per cent chance of racing, including Siderus, purchased for $2.5 million, and Metallurgical, bought for $2.2 million. Cross-Claim Annexure F Duty to buy sound horses he thought would eventually win Group 1 races 11. According to Patinack, Mr Cummings had a duty to buy sound horses he thought would eventually win Group 1 races and train them in a way that would not stress or injure them. Cross-Claim Paragraph 6 Train them in a way that would not stress or injure them Paragraph 16(b) Denies he had a duty to prevent overtraining Paragraph 17 12. Mr Cummings denies he had a duty to prevent overtraining, denies training some of the horses and denies the horses became lame or broke down while being trained by him or his company. Defence to Cross-Claim Denies training some of the horses Paragraph 21(a) Denies the horses became lame or broke down Paragraph 21(b) 13. Patinack also alleges Mr Cummings wrongly took commissions and fees from sales. This includes $2.8 million from $18.8 million worth of horses he allegedly bought at the 2008 Magic Millions sale, when he was supposed to be buying 58 horses for Patinack at the best possible price. Cross-Claim Paragraphs 5, 7(d) and (f), Annexure D. Never took a commission Patinack was not aware of Paragraph 7(i) 14. Mr Cummings says he never took a commission Patinack was not aware of, denies he had a duty to buy only horses with the potential to win and admits purchasing only some of the horses on Patinack's behalf. Defence to Cross-Claim Denies duty to buy only horses with the potential to win Paragraph 6 Admits purchasing only some of the horses on Patinack's behalf Paragraph 7(b) 15. The matter is due before the court for directions on March 9. Registry N/A - information from independent enquiry; not contained in pleadings 1. I consider the intention of Ms Lahey in the writing of the article as irrelevant to the question of whether the article is a fair summary of the pleadings. Ms Lahey's intention would be relevant to the question of malice, but, on the question of fair summary, I do not consider it material. 2. Nevertheless it is appropriate to point out that, as may be inferred from the earlier description, Ms Lahey attended at the Registry after she was notified that the pleadings were available to her. The Registry did not allow Ms Lahey to take a photocopy. Ms Lahey summarised, in handwriting, the principal allegations and whether they were admitted or denied. The handwritten notes are before the Court (Ex 2) as is a typed version of those handwritten notes (Ex 3). The handwritten notes are easily read. 3. The foregoing description and the terms of the notes, which, in general terms, accords with the content of the article, gives the Court comfort in the conclusion it has reached that the contents of the article are a fair summary of the pleadings being the Statement of Claim, the Defence, the Cross-Claim and the Defence to the Cross-Claim. 4. At one stage the plaintiffs submitted, albeit somewhat faintly, that the fair summary defence was vitiated by the fact that Ms Lahey sought access only to the Statement of Claim and Defence and was given access to the Statement of Claim, the Defence, the Cross-Claim and the Defence to the Cross-Claim. The defence under s 28 of the Defamation Act arises in its own terms. 5. The fact, if it be the fact, that the Registry provided Ms Lahey more documents than those that she had requested is irrelevant to whether the defence arises. The foregoing does not suggest any error on the part of any Registry staff. The pleadings in the proceedings are the documents that were provided to Ms Lahey and the provision of only the Statement of Claim and Defence would distort the nature of the proceedings that were before the court and subject to those proceedings. 6. The foregoing deals with only one part of that defence under s 28 of the Defamation Act. It deals with whether the publication (other than the Poster) is a fair summary. It is necessary for the Court to deal with whether the pleadings are documents of a kind referred to in s 28 of the Defamation Act. 7. Given the foregoing conclusion that the article is a fair summary of the pleadings as filed, the question remaining in relation to the application of s 28 of the Defamation Act, is whether the pleadings are "a public document". 8. The plaintiffs submit that, because the pleadings are not available to the public, the document is not a public document. The plaintiffs submit that the pleading is not a public document because the Court has a discretion as to whether to allow inspection of it and such inspection will only be granted if the person seeking to inspect has a sufficient interest in the proceedings. As a consequence, the pleadings are not available to the public at large and are not "public documents". 9. As is clear from the provision, extracted above, the term "public document" is defined in s 28(4) of the Defamation Act. 10. It is relevant to recite that the Defamation Act is part of a national uniform code and all States and Territories in Australia have an equivalent to s 28 of the Defamation Act: see s 28 of the Defamation Act 2005 (VIC), s 28 of the Defamation Act 2005 (QLD), s 28 of the Defamation Act 2005 (WA), s 28 of the Defamation Act 2005 (TAS), s 26 of the Defamation Act 2005 (SA), s 25 of the Defamation Act 2005 (NT) and s 129 of the Civil Law (Wrongs) Act 2002 (ACT). 11. Plainly, the Cross-Claim and Defence to Cross-Claim are documents and are kept by an Australian court and the only question is whether those documents are "open to inspection by the public". 12. If one were permitted to look elsewhere for the meaning of the term "public document", one would first go to the Evidence Act 1995, which defines a public document to mean a document "that … forms part of the records of the Crown in any of its capacity; forms part of the records of a person or body holding office or exercising a function under or because of the Constitution, and Australian law; or … is being kept by or on behalf of the Crown, by such a government or such a person or body". Evidence of a document that has been filed and is a public document (assuming it has been sealed certifying the custody of the Court) is permitted to be tendered pursuant to either or both s 156 and s 157 of the Evidence Act 1995. 13. The circumstance that not everybody in New South Wales is capable of examining the pleadings in proceedings, or allowed to examine the pleadings in all proceedings, does not necessarily require the conclusion that the pleadings are not open for inspection by the public. The term public will necessarily take its particular significance from the context of the statute: Lee v Evans (1964) 112 CLR 276; [1964] HCA 65 (at 283 of the CLR), and may include members of the public of a particular class, a significant (not ephemeral) section of the public and not necessarily the public at large: Biga Nominees Pty Ltd v Commission of Taxation (Cth) (1991) 104 FLR 74. 14. In Lee v Evans, supra, the High Court was required to determine whether there had been an invitation to the public and determined, contrary to the Full Court of the Supreme Court of South Australia, that there had been no such invitation. In the course of discussing the issue the High Court referred, once more, to the context in which the term was used and determined that a section of the public, possibly even an individual, may be a sufficiently large class to constitute the public as long as the individuals concerned can relevantly be said to be members of the public. Thus, the fact that one person only exercises the right to inspect on application does not detract from the proposition that the capacity to inspect is "open to the public": see Nash v Lynde [1929] AC 158 at 171 per Lord Buckmaster. 15. An analysis of the traditional authorities is unhelpful. There are few that deal with these matters on the basis of principle as distinct from a determination of fact. Nevertheless, a survey of some authorities may be of assistance. 16. In Searles v Scarlett [1892] 2 QB 56, Lord Esher dealt with the publication of a list of persons, being tradespersons, against whom there had been proceedings for the non-payment of amounts owing. It was alleged that it imputed to the particular person named in the list that he had been the subject of judgment in the County Court, payment remained unsatisfied, and that he was insolvent and a person to whom credit ought not be given. The English Court of Appeal dealt with the matter on the assumption that the publication of the list was defamatory and was concerned with whether it was published "on a privileged occasion". 17. Of course, the foregoing judgment did not depend upon the construction of s 28 of the Defamation Act. Nevertheless, Lord Esher, in the course of the reasons for judgment, said: "It has been said that these judgments are the judgments of a court of law instituted by the legislature, and it is directed by the law that a register shall be kept of them, which is to be open to public inspection. The legislature has enacted that people may go and look at the register, obviously not for the purpose of mere curiosity, but that they may act on the information thereby obtained; so that any tradesman who is considering whether he shall give credit to a person may inspect the register and see whether there are judgments against him upon it. The law provides that the register shall be a public document which anybody may consult for this purpose. That being so, the publisher of such a list as this is only doing for the public what they may do for themselves, and is only giving that information to the public and to tradesmen which the legislature has thought it right they should have. Therefore it is said that the publication of such a list is privileged and an action will not lie for it, unless the privilege has been abused. If the publication has been … for the purpose of extorting money, or if there were any actual malice, … then, no doubt, the privilege would be rebutted; but as long as the publication is bonâ fide and without actual malice, it is privileged. … The doctrine of privilege assumes that there is a libel and that it is not true." (At 59-60) 1. In Williams v Smith & Greenwood (1888) 22 QBD 134, the English Court of Appeal were of the opposite opinion and the judgment was distinguished by the court in Searles, supra. Nevertheless, the fundamental principle remained the same and the court differed on the question as to whether the extract from a record of judgments in the register was "a fair report" of a judicial inquiry. In Williams, supra, much was made of the indirect nature of the enquiry, the publisher of the item having obtained it, not from the court file, but from another publisher. 2. As earlier stated, the kernel of the issue between the parties as to whether the pleadings fall within s 28(4)(e) of the Defamation Act is whether the pleadings are "open to inspection by the public". Further, as also earlier stated, the public includes a section of the public. 3. Historically, pleadings were documents open to the public. Apart from any other factor, the jurisprudential emphasis on the publicity of judicial proceedings and the right of the public to observe justice being done required that the public understand the issues that were being agitated before the court. Thus, justice is, traditionally, performed in open court for all persons to observe and pleadings, which define the issues between the parties before the court, have historically been open to public inspection. 4. The plaintiffs rely upon the Uniform Civil Procedure Rules 2005 ("UCPR") r 36.12(2), the terms of which are: "36.12 Registrar to furnish copies of judgments and other documents (2) Unless the court orders otherwise, on payment of the fee prescribed by the regulations under the Civil Procedure Act 2005, the registrar: (a) must furnish to any party to any proceedings, and (b) may furnish to any other person appearing to have a sufficient interest in the proceedings, a copy of any pleading or other document that has been filed in the proceedings. The terms of the foregoing sub-rule have not altered, relevantly, over any period of relevance in these proceedings and were in the same terms as at February 2010, when Ms Lahey inspected the file. 1. Ms Lahey was not a party to the proceeding and did not fall within the terms of UCPR 36.12(2)(a). As the plaintiffs point out "sufficient interest" is not defined in the UCPR, but is a restriction on the class of persons entitled to inspect documents. As earlier stated (and repeated) the fact that the pleadings were not available for inspection by the public at large does not mean that the pleadings are not "open for inspection by the public". 2. Moreover, as earlier noted, the Defamation Act is part of uniform defamation legislation applicable in every State and Territory of Australia. It would be unusual, if not inconsistent, in those circumstances to restrict the meaning of the term "open to inspection by the public" by reference to a procedure imposed in relation to one jurisdiction, but not others. 3. The relevant Practice Note, in force as at February 2010, is Practice Note No. SC Gen 2 (enacted pursuant to s 15 of the Civil Procedure Act 2005). Clause 7 of the foregoing Practice Note is in the following terms: "7. Access will normally be granted to non-parties in respect of: * pleadings and judgments in proceedings that have been concluded, except in so far as an order has been made that they or portions of them be kept confidential; * documents that record what was said or done in open court; * material that was admitted into evidence; and * information that would have been heard or seen by any person present in open court, unless the Judge or registrar dealing with the application considers that the material or portions of it should be kept confidential. Access to other material will not be allowed unless a registrar or Judge is satisfied that exceptional circumstances exist." 1. As a consequence, subject to a special order, access will ordinarily or usually be granted in respect of pleadings, where sufficient interest has been disclosed. The interest in open justice will, almost invariably, be a sufficient interest. 2. Of course, there are exceptions. Pleadings that relate to threats of blackmail or matters of particular sensitivity may be the subject of order of the Court. But the capacity of the Court (including the Registrar) to disallow inspection does not negate the ordinary rule that pleadings remain open to inspection by the public. 3. The plaintiffs refer to the provision of clauses 14, 15 and 16 of the Practice Note as disclosing that pleadings are not always open for inspection. That, however, misses the point. 4. The Practice Note (and the Rule) relates to the files of the court in relation to a proceeding. Affidavits that have not been read (or parts of which have not been read), witness statements, and the like are not open to the public and cannot be provided, even by the parties to the proceedings, to others except for the purpose of the proceedings (unless, of course, they are affidavits of the party itself). Similarly, the court (including a Registrar) may take the view that pleadings, in the form filed, are scandalous, frivolous, vexatious, irrelevant or otherwise oppressive and, notwithstanding that no order has yet been made by the Court to strike out such pleadings, proscribe inspection of such a pleading. 5. It was a practice, in some jurisdictions until relatively recently, for the pleadings to be read in open court in order that "open justice" was achieved. Nowadays, thankfully, not even written submissions are read in open court, but the submissions are usually available to the public on request (always subject to the overriding power of the Court in circumstances where a submission may be scandalous, frivolous or the like). 6. What then does it mean for something to be open for inspection by the public. The issue has been given attention in various contexts, none of which deal with s 28 of the Defamation Act. 7. The imposition by one or other of the courts exercising jurisdiction throughout Australia of conditions on the inspection of files does not, in and of itself, render the files any less open for inspection, if, in the ordinary parlance, the documents within that file would be open for inspection. That would require the conclusion that, even in New South Wales, pleadings would be open for inspection but affidavits that had not yet been read and other such documents would not be. 8. That which is open for inspection to the public must take account of or have regard to the facilities available, the possibility of disorder, the needs for security, the proposition that some documents on a file would not be open for inspection to the public and, possibly, the cost to the Court of the administration of the file and its inspection: see by analogy R v Denbigh Justices, Ex parte Williams; R v Denbigh Justices; Ex parte Evans [1974] 1 QB 759, dealing, as it did, with whether a proceeding was held "in open court" and allowed "members of the public to enter the court". 9. To paraphrase Lord Widgery CJ in Denbigh Justices, supra, it is difficult to imagine open justice in a case in which the press are excluded from understanding the issues before the court, because it is the press that is the medium through which the public obtain the news of how justice is to be administered (see Denbigh Justices, supra, at 765.C). 10. In another judgment, even more diverse in context, the English Court of Appeal had occasion to deal with the provisions of s 52 of The National Debt Act 1870 by which the Bank of England were directed to keep a list of unclaimed stock "open for inspection at the usual hours of transfer". Orders were sought compelling the Bank to allow inspection of the list to the applicant who carried on business as a "next of kin and unclaimed money agent" and desired inspection. 11. There are two rationales for the judgment, one of which is relevant. The court was required to determine the meaning of the term "open for inspection" and considered that the documents kept by the Bank were open for inspection, even though an application had to be made and approved. The court also took the view that the statute there being considered did not require that it be open for inspection by the public and that, therefore, an interest was required, being a bona fide interest in the unclaimed dividends and stock that was listed. The latter aspect does not here apply, except to the extent that the need to show "sufficient interest" may mean, on that rationale, that the pleadings are not open to the public for inspection. 12. Nevertheless, the fact, and it is the fact, that the Registry of the Court requires an application and approval by a Registrar, does not preclude the documents being "open for inspection". 13. As to the meaning of the term public, it has been dealt with in various contexts, not all of which are even remotely relevant. In dealing with the term public performance or, more accurately, "perform the work in public" in terms of the Copyright Act 1968, Gummow J, in Re Australasian Performing Right Association Limited v Commonwealth Bank of Australia (1992) 40 FCR 59; [1992] FCA 609 dealt with the meaning of the phrase "perform the work in public" and determined that a performance will be "in public" if it is performed otherwise than "in private" or "in a domestic character". 14. The Court, said: "[55] The phrase in para 31(1)(a)(iii) of the 1968 Act is 'to perform the work in public' not before 'members of the public' or 'a public audience' or 'the general public'. Running through the authorities I have discussed is the notion that for the purposes of this performing right a performance will be 'in public' if it is not 'in private', and the perception of an antithesis between performances which are in public and those which are 'domestic' or 'private' in character. In determining whether a performance answers the latter description, the nature of the audience is important. In coming together to form the audience for the performance were the persons concerned bound together by a domestic or private tie or by an aspect of their public life? Their 'public life' would include their presence at their place of employment for the supply of a performance to assist the commercial purposes of their employer. Looking at the issue before this Court in a similar way, the answer to the question as to whether the pleadings are open for inspection to the public is not negative by the circumstance that the pleadings are contained in a file, inspection of which can be undertaken only on application and approval. The ultimate question is whether the persons who may make such application and be approved is an exclusive class that deprives the public of the ability to inspect or an inclusive class open to the public as a whole. Given, in the current circumstances, that the 'sufficient interest' to be shown was the interest in open justice and to allow the public to have reported to it the nature of the proceedings before the Court, the class of interest sufficient for the purpose of satisfying the Registrar that inspection should be allowed is, on the evidence before the Court so wide that the pleadings can be classified as being 'open for inspection of the public'." 1. Of course, the Registrar could exclude persons who were known to the Court as having abused a right so given, and could exclude documents that were inappropriate for inspection to the public, but that is not this case and the right to preclude persons from inspecting pleadings does not detract from the proposition that pleadings are open for inspection to the public. The fact that the Art Gallery may exclude persons from entering does not require the conclusion that the works therein are not open for inspection by the public. 2. Moreover, the foregoing conclusion continues the traditional and historical view that pleadings are documents open to the public and that may be published to the public. Further, such an interpretation facilitates open justice and allows the public to understand the issues that are before courts and with which the courts are dealing. 3. The difficulty with such an approach is that pleadings, necessarily, will contain allegations that have not yet been tested in Court and upon which the Court has not yet decided. But, in these times, the public is not so unsophisticated that it does not understand that that which is claimed to have happened and which has not yet been determined is an untested allegation. 4. In that regard, every day, courts deal with untested allegations, which are reported. Proceedings in the Local Court and in the criminal courts relate to untested matters of the most serious kind. The public is aware of that aspect and understand that it is fundamental to the open administration of justice that witnesses may give evidence that has yet to be tested and parties make allegations in pleadings that are still to be tested: see John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465; Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293; [1982] HCA 50; Llewellyn v Nine Network Australia Pty Limited (2006) 154 FCR 293; [2006] FCA 836. 5. The historical view remains intact. At least at the time prior to the promulgation of the Defamation Act, the publication of a writ of summons was held to stand on the same footing as the publication of proceedings in open court: Abbott v Coombs (1887) 13 VLR 917; [1887] VLR 160. In the proceedings currently before the Court, the publication was not only of the originating process, but of the answer thereto and, a fortiori, it should be protected. 6. The conclusion to which the Court has come is that the pleadings are documents open for inspection to the public and that the articles are fair reports of the pleadings. The foregoing conclusion accords with the conclusion, albeit in the course of interlocutory proceedings, of Warren CJ in Crisp v Fairfax Media Ltd & Ors (2012) 38 VR 544; [2012] VSC 615, who, at [19] said: "Any contemplated report of the County Court file, in particular the writ and the statement of claim, involves publication of public documents as provided by s 28(1)(b) of the Act." 1. Further, I do not consider that there has been any malice or any attempt to do otherwise than to report fairly on the proceedings before the Court and with which the Court was, at least at that time, required to deal. The Poster 1. The foregoing analysis refers to the defence relating to the articles published, being the first, second, third and fifth impugned publications, but does not deal with the fourth impugned publication, being the Poster impugned in the second proceedings. The Poster is a typical bill poster publicising the story to be contained in the newspaper and is intended as an advertisement to induce people to purchase the newspaper. The Poster is in the following terms: "CUMMINGS FIGHTING CRUELTY CLAIMS" 1. To the extent that the Poster induced people to purchase the newspaper and to read the article then the Poster should be read with the article and falls within the foregoing analysis. However, some people would have seen only the Poster and the plaintiff, being Mr Cummings, argues that the Poster, in and of itself, is defamatory in its natural and ordinary meaning or by reason of extrinsic facts. 2. In the latter aspect, the Poster is said to give rise to a true innuendo. The Court has already determined that the Poster identifies Mr Anthony Cummings, at least to persons who were otherwise aware of the proceedings before the District Court and to those who perceived that Mr Anthony Cummings' father would not be referred to as "Cummings", but would be referred to as "Bart Cummings". As a consequence, particularly in relation to the latter aspect, it cannot be said that the differentiation in terminology is unreasonable and the Poster therefore identifies Mr Anthony Cummings. 3. The more difficult question is whether the Poster, itself and without recourse to the article, gives rise to the imputations pleaded. 4. It is an accurate description to suggest that the claims made by Patinack Farm in the Cross-Claim amounts to claims of cruelty. It may be that one could train a horse until one broke down without, necessarily, being cruel, given that causing a horse to be "lame" or "breaking down" or "stressed" or other descriptions utilised in the pleadings, may have a particular meaning less than cruelty in circumstances of a capacity to race, particularly at Group 1 level. Nevertheless, an ordinary reasonable reader, and a person otherwise reading the pleadings in the District Court proceedings, would properly categorise the claims made in those proceedings as being claims of cruelty. 5. There are aspects of the Poster which amount to true innuendo. In other words, the defamatory aspect of the Poster is said to arise from the extrinsic facts known to those who associate Mr Cummings with the training of racehorses. 6. On its face, the Poster does not mention horses. As a matter of construction, without extrinsic facts, the cruelty could relate to his pet dog or the neighbour's cat. Nevertheless, because Mr Cumming's name is so associated with horseracing and the training of horses, those extrinsic facts can be used to infer that the cruelty related to racehorses. The foregoing is not intended to suggest that an imputation that someone kicked his pet dog or was cruel to his neighbour's cat would not be defamatory. 7. It would seem, on ordinary usage, that the use of the term cruelty would relate to animals, rather than other humans and the inference that the cruelty claims relate to racehorses becomes more easily drawn. 8. On its face the words "CUMMINGS FIGHTING CRUELTY CLAIMS", once one is made aware of the proceedings in the District Court, are true. Mr Cummings was fighting claims that could fairly be described as "cruelty". The circumstance that the publication accurately recites the facts does not end the issue. 9. The defendants submit that the Court should judge the defamatory nature of the Poster by the nature of the publication, in that the Poster, by definition, is prepared and published with obvious restrictions such as word limits, font size and the like. It may be that the wording of the Poster is restricted, but the defendants made the decision to publish the Poster and if the Poster could not be published, because of restrictions of the kind to which the defendants refer, without it being defamatory, then the answer is the defendants ought not publish the Poster. 10. On the other hand, the plaintiff suggests that the Poster could have been less sensationalist. Of itself, even if that were true, it does not mean that the Poster is defamatory or otherwise than an accurate summary of the proceedings in the District Court. It is also submitted by the defendants that the wording of the Poster has been carefully prepared to include the words "fighting and "claims". Such a submission is the counterpart of the plaintiff's submission that the Poster could have been less sensationalist. The submission should suffer the same fate. 11. The earlier statement of the Court that the Poster "CUMMINGS FIGHTING CRUELTY CLAIMS" is true, once it is understood that the references to Mr Cummings and the cruelty relates to the manner of training horses, is simply another means of recording that the Poster accurately reflects the substance of the court proceedings (at least insofar as it refers to the cross-claim and the defence thereto). 12. However, the Poster, if read alone, does not refer to court proceedings and does not purport to be a summary of court proceedings. Only the article identifies the court proceedings and the parties thereto. 13. If the context of the Poster is to advertise stories in the newspaper and induce potential readers to purchase the newspaper, then a degree of sensationalism is to be expected and would be expected by the ordinary reasonable reader. In what subtle ways has the creator of the Poster induced purchase or, in other words, what subtle message is conveyed by the Poster that is of interest? 14. The kernel of the story in the Poster is that Cummings is fighting cruelty claims. The heart of the implication and newsworthiness is, somewhat subtly, not that the claims of cruelty have been made, but that the claims of cruelty are being fought. The Poster does not say "Tinkler claims Cummings Cruel" or "Tinkler claims Cummings cruel to horses", each of which may have been just as sensationalist, or more so. 15. Rather, the newsworthiness of the title is that Cummings is fighting the cruelty claims, which implies that the circumstance that Mr Cummings was fighting such claims was newsworthy and that, thereby, the claims had substance. 16. It is a Poster akin to "[a known politician's name] denies corruption" or "[well-known identity's name] denies beating spouse". Assuming, in each case, that there has been a claim put to the named politician and/or well-known identity of the kind suggested and that each has denied the claim, the Posters would be accurate. Nevertheless, each Poster would carry a defamatory imputation that there was substance in the claims denied or, in these proceedings, being fought. 17. The absence of identification of the source of the claim, namely, the allegations in court proceedings, together with the wording of the Poster imply some substance in the claims of cruelty and newsworthiness in the circumstance that Mr Cummings was fighting them. In those circumstances, the Poster is defamatory and is not protected by the defences in s 28 of the Defamation Act nor qualified privilege. 18. The defamatory nature of the publication, however, is limited to those people who would identify the Poster as referring to Mr Cummings and not Bart Cummings, and were aware of the extraneous facts that Mr Cummings was a horse trainer and did not read the article published in the newspaper to which the Poster referred. Other defences 1. Other defences are raised in relation to the Poster and the publications generally. Because of the findings in relation to the publications, other than the Poster, it is unnecessary to deal with those defences, except in relation to the Poster. The narrowness of the class to whom the Poster would be defamatory of Mr Cummings is a matter that goes to damages, not liability. 2. First, the defendants rely upon statutory qualified privilege pursuant to the terms of s 30 of the Defamation Act. In that reliance, the defendant's refer to the public interest in reports of court proceedings. 3. Of course, there is a public interest in reports of court proceedings and in ensuring that open justice is administered. Nevertheless the reciprocity of interest required by the publisher and recipient of the publication should be at a level less "general" than the public interest in reports of court proceedings. The report is the conveying of information about Mr Cummings. The recipient must have an interest or apparent interest in having information on Mr Cummings: Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183 at 217; [1996] HCA 47: "It is true that, in discussing the common law doctrine of fair comment, lawyers frequently spoke about the right of fair comment on such abstractions as 'the administration of justice', 'political and state matters', 'the management of public institutions' etc, but these were merely shorthand statements for the proposition that there was a right to comment on the actions or omissions of some person or institution in the course of the administration of justice, the management of public institutions and similar subjects which were subjects of public interest. The judgement of Cockburn CJ in Woodgate v Ridout (1865) for F&F 202; 176 ER 531 clearly brings out the point that, in describing a subject such as the administration of justice as a subject of public interest, it was the conduct of the individual or individuals involved in particular aspects of the administration of justice, and not some concept defined at a level of generality divorced from the conduct of individuals, that constituted the subject of public interest." 1. Every defamatory publication (or almost every one) can be generalised to an abstract that would identify a "public interest". The public interest to which s 30 of the Defamation Act refers is the public interest in having information published about the persons and their conduct. "The High Court continued, in citing with approval Odgers', A Digest of the Law of Libel and Slander, to the effect that, to warrant the defence, criticism never attacks the individual, but only the work of the individual and may include the policy of the government, the action of a member of Parliament, a public entertainment, a book published or a picture exhibited 'In every case the attack is on the man's acts, or on some thing, and not upon the man himself. A true critic never indulges in personalities.' (Bellino at 219, quoting the first edition of Odgers', supra)." (Milne v Ell [2017] NSWSC 555 at [45]). 1. I do not consider that the public had the kind of interest in the conduct of Mr Cummings that would allow for the establishment of qualified privilege either under the common law or under s 30 of the Defamation Act. 2. Further, the public interest in reports of court proceedings is an interest in the community at large in the final quelling of a controversy between members of the community and the process by which that controversy is resolved: see D'Orta-Ekenaike v Victorian Legal Aid (2005) 223 CLR 1; [2005] HCA 12. 3. The vital interest to which the High Court referred in D'Orta-Ekenaike, supra, concerns the process by which justiciable controversies are resolved and the final resolution of that controversy. The public has a right to know what is before the courts, but their interest, as a community, is in the quelling of the dispute. Further, the public does not have a right to know about the conduct of Mr Cummings, as such: see Bellino, at [201] supra. 4. While the matter has not been the subject of detailed argument, it is at least arguable that the publication of the material was not published to the recipient "in the course of giving to the recipient information on that subject" (s 30(1)(b) of the Defamation Act), which is the subject on which the recipient is required to have the interest or apparent interest. In other words the Poster is not giving the reader information on "reports of court proceedings", but is, rather, a report concerning Mr Cummings. The latter suggestion is an alternative means of addressing the issue of "public interest". Public interest is required in the subject matter of the publication. The subject matter of the Poster is not "reports of court proceedings". 5. The Court accepts that the conduct of each of the defendants in publishing each of the matters was reasonable in the circumstances and both sides of the record are fairly summarised. In those circumstances, it was unnecessary to contact Mr Cummings and asked for comment. His response to the claims had been filed and was the subject of the summary. Defeasance 1. Lastly, it is necessary to deal with the submission of defeasance raised by the plaintiff to defeat the defences raised. In order to establish defeasance, the plaintiffs are required to establish that the publications (in relation to this matter by the Poster and the other publications) were not published honestly for the information of the public: Rogers v Nationwide News (2003) 216 CLR 327; [2003] HCA 52. It is necessary for the publication to be made "in good faith". 2. As I understand the submission, the plaintiff relies upon the circumstances that the Poster advertised this article as the lead story or a lead story and the positioning of the articles with front-page leads. It is said by the plaintiffs that the prominence of the articles and allegations against the plaintiffs gives rise to an inference that the publication was made for sensationalist and ulterior purposes and not published honestly and in good faith. 3. The judgement or misjudgement of editors as to the story that ought induce people to purchase a newspaper and/or that should occupy the front page of a newspaper does not render the content of the defamatory material (if it be defamatory) any better or worse. It may make the damages greater, but that is not an issue with which I am required, at this point in time, to deal. 4. No evidence has been adduced that would establish that the article (or the Poster) were written or published in any way or for any purpose other than informing the public honestly and in good faith of the information contained therein. 5. In relation to the writing of the article, I accept Ms Lahey's evidence completely. She was a witness of truth and her evidence was reliable. 6. I consider that Ms Lahey honestly and in good faith sought to summarise the nature of the proceedings that were before the court, being the issues between the parties as defined by the pleadings, and wrote the article honestly and in good faith to provide that information to the public and for its information. 7. Ms Lahey did not write the Poster. Nevertheless, nothing in the Poster or its creation or the decision to make that story the subject of the Poster gives rise to an inference of an ulterior motive or a purpose other than the publication, honestly, for the information of the public, of the article in question. 8. For the foregoing reasons, the Court concludes that: the impugned publications are capable of giving rise to a defamatory meaning; in relation to the impugned publications other than the Poster (the fourth impugned publication), the publication is a fair summary of a public document and the defendants, pursuant to the terms of s 28 of the Defamation Act, are not liable in damages for the publication; in relation to the fourth impugned publication, the Poster, it identifies the plaintiff Mr Cummings, it carries a defamatory imputation being that Mr Anthony Cummings was, as a racehorse trainer, cruel to horses he trained; and no defence under s 28 of the Defamation Act arises in relation to the Poster. 9. The Court makes the following orders: In relation to proceedings number 2014/359030: 1. Judgment for the defendants against Anthony Cummings Thoroughbreds Pty Ltd; 2. Judgment for the defendants against Mr Anthony Cummings; In relation to proceedings number 2014/364976: 1. Judgment for the plaintiff Mr Anthony Cummings in relation to the first matter complained of in those proceedings, being the Poster "CUMMINGS FIGHTING CRUELTY CLAIMS", published by the defendants herein on 25 February 2010; 2. Otherwise, judgment for the defendants against the plaintiff; 3. Damages reserved and to be heard on a date to be fixed; In relation to both proceedings: 1. Costs reserved and to be resolved after the conclusion of the damages proceedings. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 April 2018