Cummings v Fairfax Digital Australia & New Zealand Pty Ltd - [2011] ACTSC 188

Cummings v Fairfax Digital Australia & New Zealand Pty Ltd [2011] ACTSC 188
(18 November 2011)

PRACTICE AND PROCEDURE – application for consolidation of two defamation proceedings pursuant to Regulation 270 of the Court Procedures Rules 2006 (ACT) – no commonality of plaintiffs or defendants

DEFAMATION LAW – whether imputations as pleaded should be struck out – whether articles could convey imputations as pleaded – whether articles containing allegations from pleadings subject to privilege – whether the principle in Mirror Newspapers Limited v Harrison (1982) 149 CLR 293 applicable to criminal proceedings should extend to the civil context – whether a mere recitation of pleadings in civil proceedings can be defamatory

Civil Law (Wrongs) Act 2002 (ACT) ss 118(2), 120, 133, 138, 139, 139F
Court Procedures Rules 2006 (ACT) Reg 270

Amalgamated Television Services Pty Limited v Marsden (1998) 43 NSWLR 158
Arthur Lonsdale Lee v Wilson and Mackinnon (1934) 51 CLR 276
Bolwell Fibreglass Pty Ltd v Foley [1984] VR 97
Bowden v Russell (1877) 46 LJ (Ch) 414
Buckley v Herald & Weekly Times Pty Ltd [2009] VSCA 118
Buckley v Herald & Weekly Times Pty Ltd (No 2) [2008] VSC 475
Capital and Counties Bank Ltd v Henty and Sons (1882) 7 App Cas 741
Coull v Nationwide News Pty Ltd [2008] NTCA 10
Cowley v Pulsifer (1884) 137 Mass 392
Davis v Nationwide News Pty Ltd [2008] NSWSC 693
Dunsec Pty Ltd v Nationwide News Pty Ltd [2000] NSWCA 155
Gaskell & Chambers, Ltd v Hudson, Dodsworth and Company [1936] 2 KB 595
Gobbart v Western Australian Newspapers (1968) 3 WAR 113
Gorton v Australian Broadcasting Commission (1973) 22 FLR 181
Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA
Independent Newspapers Holding Ltd and Ors v Suliman [2004] ZASCA 57
John Fairfax Publications Pty Ltd v Obeid (2005) 64 NSWLR 485
Jones v Skelton (1963) 63 SR (NSW) 644
Lewis v The Daily Telegraph Limited [1964] AC 234
Maple v David Syme & Co. Ltd [1975] 1 NSWLR 97
Meckiff v Simpson [1968] VR 62
Mirror Newspapers Limited v Harrison (1982) 149 CLR 293
Nationwide News Pty Limited v Carmichael [2005] NSWCA 56
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
Pyneboard Proprietary Limited v Trade Practices Commission and Another (1983) 152 CLR 328
Radio 2UE Sydney Pty Limited v Chesterton (2009) 238 CLR 460
Reichel v Magrath (1889) 14 App Cas 665
Rippon v Chilcotin (2001) 53 NSWLR 198
Rogers v The Queen (1994) 181 CLR 251
Ross McConnel Kitchen & Co Pty Ltd v John Fairfax & Sons Ltd [1980] 2 NSWLR 845
Sea Culture International Pty Ltd v Scoles and Others (1981) 32 FCR 275
Smith v Harris & Ors [1996] 2 VR 335
State Bank of NSW Ltd v Stenhouse Ltd (1997) Aust Tort Rep 81-423
Stephens v West Australian Newspaper Limited (1994) 182 CLR 211
Stern v Piper [1997] QB 123 (CA)
TheAge Corporation Ltd v Beran [2005] NSWCA 289
The Daniels Corporation International Pty Ltd and Another v Australian Competition and Consumer Commission (2002) 213 CLR 543
The Federated Amalgamated Government Railway & Tramway Service Association v The New South Wales Railway Traffic Employees Association (1906) 4 CLR 488
Thompson v Lambert [1938] 2 DLR 545
Waterhouse v Age Company Ltd [2011] NSWSC 159

No. SC 411 of 2010

Judge: Cowdroy J
Supreme Court of the ACT
Date: 18 November 2011

No. SC 412 of 2010

Judge: Cowdroy J
Supreme Court of the ACT
Date: 18 November 2011

IN THE SUPREME COURT OF THE     )   No. SC 411 of 2010
  )
AUSTRALIAN CAPITAL TERRITORY           )

BETWEEN:Anthony Cummings
First Plaintiff

Anthony Cummings Thoroughbreds Pty Ltd (ACN 116 873 271)
Second Plaintiff

AND:Fairfax Digital Australia and New Zealand Pty Ltd (ACN 087 887 456)
First Defendant

The Age Company Ltd
(ACN 004 262 702)
Second Defendant

ORDER

Judge:  Cowdroy J
Date:  18 November 2011
Place:  Canberra

THE COURT ORDERS THAT:

The Amended Application in Proceeding filed on 2 September 2011 by the Defendants be dismissed.
The Defendants pay the Plaintiffs’ costs of the Application.
Pursuant to Regulation 270(2)(b) of the Court Procedures Rules 2006 (ACT) this proceeding be heard at the same time as SC 412 of 2010.

IN THE SUPREME COURT OF THE     )   No. SC 412 of 2010
  )
AUSTRALIAN CAPITAL TERRITORY           )

BETWEEN:Anthony Cummings
Plaintiff

AND:Fairfax Media Publications Pty Ltd
(ACN 003 357 720)
First Defendant

Kate Lahey
Second Defendant

Fairfax Printers Pty Ltd
(CAN 003 357 720)
Third Defendant

ORDER

Judge:  Cowdroy J
Date:  18 November 2011
Place:  Canberra

THE COURT ORDERS THAT:

The Amended Application in Proceeding filed on 2 September 2011 by the Defendants be dismissed.
The Defendants pay the Plaintiff’s costs of the Application.
Pursuant to Regulation 270(2)(b) of the Court Procedures Rules 2006 (ACT) this proceeding be heard at the same time as SC 411 of 2010.

IN THE SUPREME COURT OF THE     )   No. SC 411 of 2010
  )
AUSTRALIAN CAPITAL TERRITORY           )

BETWEEN:Anthony Cummings
First Plaintiff

Anthony Cummings Thoroughbreds Pty Ltd (ACN 116 873 271)
Second Plaintiff

AND:Fairfax Digital Australia and New Zealand Pty Ltd (ACN 087 887 456)
First Defendant

The Age Company Ltd
(ACN 004 262 702)
Second Defendant

IN THE SUPREME COURT OF THE     )   No. SC 412 of 2010
  )
AUSTRALIAN CAPITAL TERRITORY           )

BETWEEN:Anthony Cummings
Plaintiff

AND:Fairfax Media Publications Pty Ltd
(ACN 003 357 720)
First Defendant

Kate Lahey
Second Defendant

Fairfax Printers Pty Ltd
(CAN 003 357 720)
Third Defendant

Judge:  Cowdroy J
Date:  18 November 2011
Place:  Canberra

REASONS FOR JUDGMENT

The Application

By amended applications filed on 2 September 2011, the defendants in both proceedings 411 of 2010 (‘proceeding 411’) and 412 of 2010 (‘proceeding 412’) seek interlocutory relief, namely an order that the proceedings be consolidated and an order that various imputations pleaded in both statements of claim be struck out.

Proceeding 411

In proceeding 411 Anthony Cummings and Anthony Cummings Thoroughbreds Pty Ltd (‘the plaintiffs’) initiated proceedings against the first defendant (‘Fairfax Digital’) and the second defendant (‘the Age’) claiming that they were defamed as the result of articles which were published on 25 February 2010 (‘the publication date’). The plaintiffs claim that Fairfax Digital published statements of and concerning the plaintiffs (‘the first matter complained of’) in Australia and New Zealand and online at (‘the SMH website’) and online at (‘the Brisbane Times website’).

The plaintiffs also allege that on the publication date, Fairfax Digital published an article of and concerning the plaintiffs in Australia and New Zealand and online. It is claimed that such article was published by Fairfax Digital online at (‘the Age website’). This will be referred to as the second matter complained of.

Thirdly, the plaintiffs claim that on the publication date, the Age published of and concerning the plaintiffs in Australia and New Zealand the words set forth in Schedule C to the statement of claim in print by the Age newspaper (‘the third matter complained of’).

Proceeding 412

In proceeding 412 Anthony Cummings is the sole plaintiff. The three defendants are Fairfax Media Publications Pty Ltd (‘Fairfax Media’), Kate Lahey (a journalist) alleged to be an employee and/or agent of Fairfax Media and Fairfax Printers Pty Ltd (‘Fairfax Printers’).

On 5 October 2011 the Court granted leave (without objection) to the plaintiff to file an amended statement of claim (‘ASOC’) and the Court will treat the ASOC as being the pleading to be relied upon by the plaintiff in proceeding 412.

The ASOC alleges that on the publication date Fairfax Media and/or Fairfax Printers published material defamatory of the plaintiff contained in Schedule A to the ASOC on bill posters (‘the poster’) advertising the Sydney Morning Herald newspaper (‘the SMH’); and in print by Fairfax Printers on bill posters printed by Fairfax printers advertising the SMH.

Secondly, it is alleged that on the publication date, Fairfax Media and Kate Lahey published the words defamatory of the plaintiff, as set out in Schedule B to the ASOC, in print in the SMH in Australia and in New Zealand.

ISSUE 1: SHOULD THE PROCEEDINGS BE CONSOLIDATED?

This Court has the power to order that two or more proceedings be consolidated under Regulation 270 of the Court Procedures Rules 2006 (ACT) (‘the Regulations’). Regulation 270 relevantly provides:

(1) This rule applies if, in relation to 2 or more proceedings, it appears to the court that—

(a) a common issue of law or fact arises; or

(b) the relief sought in each of the proceedings is in relation to, or arises out of, the same transaction or event or series of transactions or events; or

(c) a decision in a proceeding will decide or affect the other proceeding or proceedings; or

(d) it is otherwise desirable to make an order under this rule.

(2) The court may order that—

(a) the proceedings be consolidated; or

(b) the proceedings be heard together or in a particular sequence; or

(c) any of the proceedings be stayed until any other of the proceedings have been decided.

Alternatively, under Regulation 270(2)(b) this Court can order that the proceedings be heard together in a particular sequence.

Defendants’ Submissions

The defendants submit that the articles relied upon in both proceedings (except for the poster) are the same. For this reason consolidation of the proceedings is sought. The defendants submit that the two separate sets of proceedings have been carefully contrived so as to circumvent the ‘policy behind’ ss 120, 133 and the statutory limit on damages contained in s 139F of the Civil Law (Wrongs) Act2002 (ACT) (‘the Act’).

Section 120 of the Act provides:

cause of action for multiple defamatory imputations in sameSingle matter

A person has a single cause of action for defamation in relation to the publication of defamatory matter about the person even if more than 1 defamatory imputation about the person is carried by the matter.

Section 133 of the Act provides:

defamatoryLeave required for further proceedings in relation to publication of same matter

If a person has brought defamation proceedings for damages (whether in this jurisdiction or elsewhere) against any person in relation to the publication of any matter, the person cannot bring further defamation proceedings for damages against the same defendant in relation to the same or any other publication of the same or like matter, except with the leave of the court in which the further proceedings are to be brought.

Section 139F of the Act provides a statutory cap for the award of damages in defamation proceedings (as provided by sub-section 1) which relevantly provides:

Unless the court orders otherwise under subsection (2), the maximum amount of damages for non-economic loss that may be awarded in defamation proceedings is $250 000 or any other amount adjusted in accordance with this section from time to time (the maximum damages amount ) that is applicable at the time damages are awarded.

The defendants submit that the policy behind s 133 of the Act is intended to eliminate duplication of proceedings. The defendants assert that such policy is offended by the conduct of the plaintiffs in commencing proceeding 411 and proceeding 412 in the present circumstances. The defendants claim that it is contrary to such policy to permit a plaintiff to initiate separate proceedings against the company which prints the newspaper, operates the websites, owns the masthead, its journalists, editor, editor-in-chief and subeditor. That is, the policy is defeated if a plaintiff can divide up the Fairfax corporate group into different individual defendants, even though s 133 of the Act itself is not contravened.

The defendants further submit that the two sets of proceedings constitute an abuse of process, since all the claims could have readily been brought within the one action: see Maple v David Syme & Co. Ltd [1975] 1 NSWLR 97; Meckiff v Simpson [1968] VR 62; Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231 per McColl JA at [129]-[141]; Thompson v Lambert [1938] 2 DLR 545.

In summary, the defendants submit, inter alia, that because the articles sued upon in the two proceedings are substantially the same, the imputations pleaded are the same and the defendants are related to each other, the commencement of the separate proceedings constitute an abuse of process and the proceedings should be consolidated.

Consideration

The Act seeks to codify in the Australian Capital Territory the nationwide provisions applicable to the tort of defamation. Section 118(2) of the Act specifically states that Chapter 9 of the Act (applicable to defamation) ‘does not affect the operation of the general law in relation to the tort of defamation except to the extent that this Act provides otherwise …’.

Section 120 of the Act requires a consideration of the nature of the alleged defamatory material complained of. In the event that there is no common defamatory publication, or if the plaintiffs or defendants are the same but the publications are different, then s 120 of the Act will have no operation.

It is settled law that where a statutory provision seeks to confine any common law right, it is to be strictly construed. In Pyneboard Proprietary Limited v Trade Practices Commission and Another (1983) 152 CLR 328, the majority (Mason ACJ, Wilson and Dawson JJ) said at 341:

… it is necessary to bear in mind the general principle that a statute will not be construed to take away a common law right unless the legislative intent to do so clearly emerges, whether by express words or by necessary implication: Pearce, Statutory Interpretation in Australia, 2nd ed. (1981) pars. 113-116; cf. Mitcham v. O'Toole (1977) 137 CLR 150.

In The Daniels Corporation International Pty Ltd and Another v Australian Competition and Consumer Commission (2002) 213 CLR 543 the High Court said to similar effect at [11]:

It is now well settled that statutory provisions are not to be construed as abrogating important common law rights, privileges and immunities in the absence of clear words or a necessary implication to that effect. That rule, the expression of which in this Court can be traced to Potter v Minahan, was the foundation for the decision in Baker v Campbel. It is a rule which, subject to one possible exception, has been strictly applied by this Court since the decision in Re Bolton; Ex parte Beane. Cases in which it has since been applied include Bropho v Western Australia, Coco v The Queen and Commissioner of Australian Federal Police v Propend Finance Pty Ltd. The possible exception to the strict application of that rule was the decision in Yuill. [Footnotes omitted]

For these reasons the Court considers that the provisions of the Act, insofar as they seek to limit the scope of the common law tort of defamation and introduce the statutory cap on damages, are to be strictly confined.

‘Against the same defendant’

Section 133 of the Act prohibits a party bringing further defamation proceedings for damages against ‘the same defendant’ in relation to the same or any other publication of the same or like matter without the leave of the Court.

The defendants submit that where a plaintiff contravenes the operation of s 133, an abuse of process could result. In Sea Culture International Pty Ltd v Scoles and Others (1981) 32 FCR 275 at 279, French J (as he then was) referred to the range of activities which would constitute or be classified as an abuse of process and referred to the fact that such abuse is ‘only limited by human ingenuity and the categories are not closed’.

Where proceedings are brought against both the proprietor and an editor of the same organisation, in different proceedings, arising from the same or ‘like’ publication, such could be constituted as an abuse of process: see TheAge Corporation Ltd v Beran [2005] NSWCA 289 per Hodgson JA at [49] (with whom Beazley JA and Brownie AJA agreed).

Further, the defendants submit that the principles of res judicata and issue estoppel as considered in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 could arise where proceedings are brought separately against the same defendants arising out of the same publication, since the plaintiff would be seeking merely to re-litigate matters subject to proceedings already before the Court: see State Bank of NSW Ltd v Stenhouse Ltd (1997) Aust Tort Rep 81-423 at 64,089 and in Rippon v Chilcotin (2001) 53 NSWLR 198 in which Handley JA at [31] cited Stenhouse with approval (and with whom Mason P and Heydon JA agreed).

In such circumstances, inconsistent findings could be made by different judges leading to a ‘scandal to the administration of justice’ as referred to by Lord Halsbury in Reichel v Magrath (1889) 14 App Cas 665 at 668 which was referred to in Rogers v The Queen (1994) 181 CLR 251 at 273-274 (per Deane and Gaudron JJ).

Section 118(2) of the Act has preserved the law of defamation, subject to the changes introduced by the Act. Sections 120, 133 and s 139F which introduces a statutory cap on damages, clearly constitute significant changes to the common law. However, the Act requires more than a close association between named defendants in two different proceedings before the statutory cap will be enforced.

The use of the phrase ‘defamation proceedings’ in ss 133 and 139F of the Act gives rise to the question whether the term ‘proceedings’ is to be confined to one set of proceedings. The term ‘proceedings’ is not defined in the Act and as such its definition must take its meaning from the context. The word ‘proceedings’ is a term of ‘very wide application’: see The Federated Amalgamated Government Railway & Tramway Service Association v The New South Wales Railway Traffic Employees Association (1906) 4 CLR 488 per Griffith CJ at 494.

In the context of ss 133 and 139F(1) of the Act it is apparent that the word ‘proceedings’ is intended to be confined to a particular cause of action and cannot be taken to include all proceedings that might be filed by a plaintiff relating to the defamation. Section 133 specifically prohibits a person, who has commenced proceedings, bringing ‘further defamation proceedings for damages against the same defendant’. It can be inferred that further actions or suits are those additional to existing proceedings.

In both proceeding 411 and proceeding 412 the named defendants are different legal entities. Accordingly, the requirement pursuant to s 133 of the Act, namely that the proceedings be against ‘the same defendant’, is not satisfied and no need arises for the plaintiffs to seek leave of the Court to continue with both proceeding 411 and proceeding 412.

Same article

The defendants further submit that the articles relied upon in proceeding 411 and proceeding 412 are the same or ‘in substance the same’.

In Buckley v Herald & Weekly Times Pty Ltd (No 2) [2008] VSC 475 the question arose whether proceedings should be stayed under s 23 of the Defamation Act 2005 (Vic) (an equivalent provision to s 133 of the present Act).

At [13] Kaye J said:

In determining whether the plaintiff has, in the present proceeding, claimed damages in relation to “like matter” to that which is the subject of the earlier proceeding, it is important to bear in mind that the relevant “likeness”, posited by s 23, is between the articles in the two sets of proceedings, and not just between the imputations pleaded by the plaintiff in the two sets of proceedings. The imputations – or false innuendos – pleaded by the plaintiff in the two proceedings are the defamatory meanings which the plaintiff contends were borne by the publications in question. The test postulated by s 23 is not that of likeness between the sets of meanings pleaded and relied upon by the plaintiff. Rather, the relevant test is that of likeness between the articles or publications relied upon by the plaintiff in the two proceedings. Obviously, the imputations pleaded by the plaintiff in each proceeding are relevant, indicating the defamatory meanings which the plaintiff seeks to place on the two sets of publications. However, the imputations pleaded by the plaintiff, and any identity or commonality between them, cannot be determinative of the issue.

And at [15] his Honour said:

That background to the enactment of s 23 is relevant, in that it reinforces my view that, in order that there be a relevant “likeness” for the purposes of s 23, the similarities between the matter sued on in the earlier proceedings, and the matter the subject of the present proceedings, must, in a real sense, be significant and substantial. It is not sufficient that there be some similarity, or common features, between the two sets of publications. Rather, the plain terms of the section, its underlying purpose, and its history, all lead to the same conclusion, namely, that in order that the publication in the instant proceeding be considered to be “like” the publication sued on in an earlier proceeding, there must be a real and substantial similarity between the two sets of publications.

In Buckley v Herald & Weekly Times Pty Ltd [2009] VSCA 118 the Court of Appeal of the Supreme Court of Victoria considered an application for leave to appeal against an order made by Kaye J consolidating two defamation proceedings brought against the respondents.

Nettle JA in Buckley observed that consolidation orders ‘should very rarely be made’, referring to the decision of Young CJ in Bolwell Fibreglass Pty Ltd v Foley [1984] VR 97. Nettle JA at [2] continued ‘… speaking generally, it is better to confine them [consolidating orders] to cases where several actions have been brought which might have been joined in one writ’. His Honour continued:

Secondly, as was recognised by Herring CJ in Cameron v McBain [1984] VLR 245, where a consolidation order is likely to expose a plaintiff to a substantial risk of real prejudice, the order should not be made.

Nettle JA also said, observing that the operation of the Act intended that if a plaintiff satisfied the requirement under s 23 of the Defamation Act 2005 (Vic) and is permitted to bring a separate proceeding, the plaintiff is prima facie entitled to the benefit of a further limit of $250,000 in respect of that proceeding. In effect, the Act provides in itself for the circumstances in which proceedings ‘will and will not be brought as one’.

In Waterhouse v Age Company Ltd [2011] NSWSC 159 Nicholas J in the Supreme Court of New South Wales applied such tests and found that the articles the subject of those applications were substantially the same. His Honour found that the differences were insufficient to affect the overall impression which was conveyed to the reader and noted that the defamatory imputations conveyed by each article were said to be the same. His Honour concluded that the defendant was entitled to have the proceedings struck out.

The defendants submit that proceeding 411 and proceeding 412 arise out of the same matter and accordingly the statutory cap on damages must apply, as was found in Davis v Nationwide News Pty Ltd [2008] NSWSC 693. At [9] McClellan CJ at CL, considering the equivalent sections contained in the Defamation Act 2005 (NSW), said at [11]:

Section 22(4) of the Act provides that proceedings for defamation may relate to more than one cause of action. Section 23 has the purpose of generally confining the plaintiff to a single “defamation proceeding” and provides that a plaintiff may only bring further defamation proceedings against the same defendant “in relation to the same or any other publication of the same or like matter”, with the leave of the court. Both sections 34 and 35 refer to “the damages to be awarded in (any) defamation proceedings.” In my opinion the consequence must be that the monetary maximum limits the damages which can be awarded in the proceedings, even if those proceedings involve multiple causes of action.

It should be observed that in Davis the plaintiff was suing the same defendant arising out of two separate publications which, although very similar, were published on two separate days. In those circumstances, the decision in Davis is unremarkable. However, here the defendants in proceeding 411 and proceeding 412 are not the same. As such, an essential requirement of s 133 of the Act is not satisfied. Accordingly the statutory cap has no application to these proceedings.

Further, in Habib, McColl JA said in summary at [141]:

The “complete remedy” line of authority applies in the defamation context, in my view, where the plaintiff seeks to sue the “same defendant” (in the Haines sense) in respect of the same publication.

Application of Principles

In proceeding 411 a comparison of the Age and SMH articles demonstrates that each alleged defamatory article is very similar. This comparison has been reproduced in the comparison table attached to this judgment and marked ‘Annexure A’.

The articles appearing on the Age website and in the Age newspaper have a different headline to the SMH publication. Further, two additional paragraphs have been added to the end of the Age articles which are not published in the SMH publication. The Age articles also include different words and an additional comment which are not contained in the SMH website.

In proceeding 412, Schedule A to the ASOC is the poster entitled ‘CUMMINGS FIGHTING CRUELTY CLAIMS’. The poster is not pleaded in proceeding 411. Schedule B in proceeding 412 (the second matter complained of) has the same text as Schedule A in proceeding 411 (the first matter complained of). Schedule C, Schedule D and Schedule E each comprises a republication of the article in Schedule B.

It follows from the above comparison that there is commonality between the two proceedings with regard to one of the publications only, namely that referred to in Schedule A of proceeding 411 and Schedule B of proceeding 412.

In the present proceedings, since different defendants exist in each case, the Court cannot conclude that s 133 of the Act has been violated by the simultaneous filing of of proceeding 411 and proceeding 412. Further, since different defendants exist in relation to the claims, the Court is not prepared to conclude that s 120 of the Act prohibits the continuation of proceeding 411 and proceeding 412 individually.

The Court also rejects the submission that despite s 133 not being violated, the ‘policy behind’ s 133 has been contravened by the plaintiffs and the two proceedings constitute an abuse of process and should be consolidated.

The defendants argue that despite the plaintiffs following s 133 to the letter, and not suing on the same articles and against the same defendants, the proceedings should be struck out as an abuse of process. However, the Court considers that the legislature has explicitly set out the circumstances where a plaintiff cannot institute more than one defamation proceeding in s 133 of the Act. The Court considers the defendants’ proposal would extend the operation of s 133 of the Act beyond the intention of the legislature.

The Court considers that there is no basis for interpreting ‘the same defendant’ as meaning ‘similar or related defendants’, nor does the Court consider that there is a basis for concluding that there exists an abuse of process due to the ‘policy behind’ s 133. It is a matter for the defendants to structure their corporate group to achieve their most advantageous economic and legal structure. However, the defendants’ corporate structure cannot disentitle the plaintiffs from instituting two separate proceedings against different legal entities within the defendants’ group structure.

The defendants submit that the plaintiffs, by initiating two proceedings, have attempted to avoid the statutory limit upon the power of the Court to award damages. This may be so, but the plaintiffs are not prevented from doing so in the present circumstances under the Act.

The defendants have approached the plaintiffs to determine whether they would agree to consolidation but such application is opposed. The plaintiffs will agree to the proceedings being heard together, to which the defendant submits is possibly an indication that the proceedings could be construed as an abuse of process. However, for the reasons referred to above, namely the different plaintiffs and defendants in each proceeding, this submission is rejected.

Common issues will arise in both proceedings. For this reason the Court will order that they be heard together pursuant to Regulation 270(2)(b) of the Regulations, so that matters common to both may be argued simultaneously.

ISSUE 2: SHOULD THE IMPUTATIONS BE STRUCK OUT?

The second issue raised by the defendants’ amended application is whether certain imputations which are pleaded in the plaintiffs’ statement of claim in proceeding 411 (imputations contained within paragraphs [6], [7], [9], [10], [12] and [13]) and with respect to proceeding 412, (imputations contained within paragraphs [6] and [8] of the ASOC) should be struck out.

The gravamen of this application lies in the defendants’ submission that such imputations are predicated upon the basis that the plaintiffs had in fact engaged in the conduct complained of, and were accordingly liable for or ‘guilty’ of the matters referred to in each of the alleged defamatory publications. The defendants submit that the published articles do no more than report on the content of the pleadings filed in the Supreme Court of New South Wales and thus cannot leave a reasonable reader with the impression that the plaintiffs have actually engaged in the conduct set out in the pleadings.

Annexure B attached to this decision contains the challenged imputations in proceeding 411 as set out in the statement of claim, and attached as Annexure C are the imputations challenged in proceeding 412 as set out in the ASOC.

The defendants rely upon the observations of the High Court of Australia in Mirror Newspapers Limited v Harrison (1982) 149 CLR 293. In Mirror Newspapers the High Court held that a newspaper report which did no more than report that a person had been arrested and charged with a criminal offence was not capable of imputing that such person was in fact guilty of the offence. Although Mirror Newspapers concerned criminal proceedings, the defendants submit that the same principle applies in the civil context.

Mason J (as he then was) in Mirror Newspapers said at 300:

As we have seen, there is now a strong current of authority supporting the view that a report which does no more than state that a person has been arrested and has been charged with a criminal offence is incapable of bearing the imputation that he is guilty or probably guilty of that offence. The decisions are, I think, soundly based, even if we put aside the emphasis that has been given to the process of inference on inference that is involved in reaching a contrary conclusion. The ordinary reasonable reader is mindful of the principle that a person charged with a crime is presumed innocent until it is proved that he is guilty. Although he knows that many persons charged with a criminal offence are ultimately convicted, he is also aware that guilt or innocence is a question to be determined by a court, generally by a jury, and that not infrequently the person charged is acquitted.

Ross McConnel Kitchen

The defendants also rely upon the observations of Hunt J in Ross McConnel Kitchen & Co Pty Ltd v John Fairfax & Sons Ltd [1980] 2 NSWLR 845 to support the proposition that the Mirror Newspapers principle should apply in the civil context. Hunt J said at [24]:

I am of the opinion that there is no difference in principle between the report of a charge in criminal proceedings and the report of a charge or allegation in the pleadings of a civil action. I recognize that at least one basis upon which Mason JA, rejected the imputation of probable guilt inLang v Australian Consolidated Press Ltd (5c) was that in relation to criminal proceedings the ordinary reasonable reader is mindful of the presumption of innocence and that the Crown bears the onus of proof of guilt. Such a consideration may not necessarily be so apparent to the ordinary reasonable reader in all cases in relation to civil actions, even where the allegation in the pleading is, as here, one of a conspiracy to cheat and defraud. But that is not the basis upon which the Court of Appeal came to its decision in Rochfort v John Fairfax & Sons Ltd (9).

The defendants submit that the current circumstances fall within the ambit of Ross McConnel Kitchen and as such the mere reporting of the pleadings could not give rise to an apprehension in the mind of the ordinary reasonable reader that Anthony Cummings has in fact acted in the way alleged. The defendants submit that an article must contain material going beyond the pleadings filed in court for the articles to be considered defamatory.

In Ross McConnel Kitchen a report was published of a directions hearing which had taken place in the Supreme Court of New South Wales before Rogers J. The plaintiff, a firm of stockbrokers, had sued a former client, Mr Jurisich, for non-payment of fees. The client had defended the claim and made allegations that three of the directors of Ross McConnel Kitchen had conspired to cheat and defraud the clients of Ross McConnel Kitchen. Those directors sued the publisher of the newspaper report, claiming that they had been defamed by the imputation that they had conspired to cheat and defraud the clients of the firm.

Hunt J considered the imputation and at [10] said:

The ordinary reasonable reader, possessing all his virtues and his vices collected by me in Farquhar v Bottom (4a), could, in my opinion, only interpret the allegation of conspiracy against the plaintiff as having been made in Mr Jurisich’s cross-claim in the proceedings.

His Honour then framed the question for determination as follows at [11]:

The question remains, however, whether the repetition in the published report of the allegation in the pleading, of conspiracy against the plaintiff, can be charged directly against the publisher of that report.

Thereafter his Honour made, inter alia, the following observations at [12]-[13]:

There is no question here as to whether the matter complained of is capable of some meaning defamatory of the plaintiff. Clearly it is; most of the relevant cases are collected in Gatley on Libel and Slander, 7th ed, (1974) p. 25, par 50, footnote 11. The question in issue here relates solely to the nature of the defamatory meaning which is capable of being conveyed.

The general rule, that the republisher of a libel is responsible as if he had originally published it, is not a rule of invariable application: Ronald v Harper (10a). If the defendant simply repeats the original libel, his liability does not depend upon whether he himself adopted or reaffirmed it: Wake v John Fairfax & Sons Ltd (14a). But the nature and quality of the defamatory publication may vary, depending upon whether it is a report of what another has said and whether it is adopted, repudiated or discounted by the republisher. The apparent purpose of the republication will also have a significant bearing on the meaning conveyed (14b). When a defamatory publication purports to repeat or report the defamatory statement of another, it is essentially a different libel from one where the same statement is conveyed directly; although it remains nonetheless a libel, it may be required to be charged or defended differently (14a).

Having considered several authorities, including those of the United Kingdom, his Honour observed at [20] that there is no authority precisely on point in relation to the report ‘of an allegation or a charge in the pleadings of a civil action’.

His Honour concluded at [25]:

So that, where the context of the report of an allegation in a pleading is that the allegation is denied and that its truth has yet to be determined by a trial, the report as a whole is, in my view, incapable of conveying the imputation that the plaintiff is guilty of the allegation reported. Each case will, of course, depend upon the context in which that allegation is reported. [Emphasis added].

Accordingly, Hunt J in Ross McConnel Kitchen appears to have drawn an anology between the reporting of a criminal charge and thus the mere reporting of pleadings in the civil context. The Court notes that Hunt J delivered his Honour’s decision approximately two years prior to the High Court’s determination in Mirror Newspapers. The Court notes that no reference was made to a decision of the West Australian Supreme Court decided in 1968 which appears to hold to the contrary (see below at [77]).

Ross McConnel Kitchen had been cited in recent texts and in various authorities. In Gatley on Libel and Slander (11^th edition) the following passage appears at 327:

It is usually said that there are two levels of imputation below that of guilt (“level 1”) which are possible in such a situation, both of which are defamatory, though in different degrees: that there are reasonable grounds to suspect that the claimant is involved (“Level 2”) or that there are grounds to investigate what the claimant has done (“Level 3”). In Lewis it was admitted that the words were defamatory in the last sense (or something like it) but the defendants could justify that by showing the investigation was taking place. [Footnotes omitted]

A footnote to the above extract pertaining to statements concerning criminal proceedings states as follows:

But the law is the same in respect of an allegation made, but not yet determined, in civil proceedings: Ross McConnel Kitchen & Co Pty Ltd v John Fairfax & Sons Ltd [1980] 2 N.S.W.L.R. 845. It has been said that “guilt by association” is part of the ordinary reader’s perception of things: Baffsky v John Fairfax & Sons Ltd (1991) 106 F.L.R. 21 at 32.

Ross McConnel Kitchen has also been cited by the Court of Appeal of the Supreme Court of the Northern Territory in Coull v Nationwide News Pty Ltd [2008] NTCA 10 in which Southwood J said at [114]:

The whole context in which the defamatory hearsay was published, including whether the defamatory hearsay is approved, reaffirmed and/or endorsed, repudiated or discounted and the purpose of the republication, may be relevant to determining what, if any, defamatory imputations are conveyed in a publication which includes the defamatory hearsay such as the articles that were published in this case: John Fairfax Publications Pty Ltd v Obeid per McColl JA at paras; Wake v John Fairfax & Sons Ltd; Ross McConnel Kitchen & Co Pty Ltd v John Fairfax & Sons Ltd; Ainsworth Nominees Pty Ltd v Hanrahan. It is necessary to consider whether the defamatory imputation relied on by the appellant is conveyed in the context of the whole of each of the articles in which the defamatory hearsay has been published: Ross McConnel Kitchen & Co Pty Ltd v John Fairfax & Sons Ltd. [Footnotes omitted]

Ross McConnel Kitchen has also been referred to by two judges (Mason P and Heydon JA (as he then was) comprising the Court) in the Court of Appeal of New South Wales in Dunsec Pty Ltd v Nationwide News Pty Ltd [2000] NSWCA 155. In those proceedings a report was published with allegations by union officials that Penrith Council could incur a substantial financial liability because it had employed a security firm which had allegedly failed to pay award wages for the preceding five years. The security firm which provided the services to the Council took action against the publisher.

The trial judge found that the articles were not capable of conveying imputations that the appellants had in fact failed to pay award wages to their employees. At [15] Mason P and Heydon JA said:

The legal principles were not in dispute in this appeal. The Court was referred to Amalgamated Television Services Ltd v Marsden (1998) 43 NSWLR 158 at 164-5 as to the test for determining whether the matter complained of is capable of conveying a particular imputation. It was also common ground that Harrison's Case is authority only for the proposition that "a report which does no more than state that a person has been arrested and has been charged with a criminal offence is incapable of bearing the imputation that he is guilty or probably guilty of that offence" (per Mason J at 300, emphasis added). See also Ross McConnel Kitchen Co Pty Ltd v John Fairfax & Sons Ltd [1980] 2 NSWLR 845 for the application of these principles to reportage of civil proceedings.

In John Fairfax Publications Pty Ltd v Obeid (2005) 64 NSWLR 485, the Court of Appeal of New South Wales followed Mirror Newspapers and held that a report of a person who had been arrested and charged did not convey an imputation that the person was guilty of the offence charged. In those proceedings, McColl JA at [74] referred to the fact that ‘jurists give weight to the presumption of innocence in the civil as well as in the criminal context’. At [75] her Honour noted the observations of Hunt J in Ross McConnel Kitchen at [24].

Lastly, it should be noted that the Supreme Court of Appeal of South Africa in Independent Newspapers Holding Ltd and Ors v Suliman [2004] ZASCA 57 referred to Ross McConnel Kitchen at the footnote to [76] of the judgment of Nugent J. Nugent J said:

The inference that a reasonable reader would draw from the statement that a person has been arrested in connection with an offence will necessarily depend upon the context in which it is made (Cf Ross McConnel Kitchen & Co (Pty) Ltd v John Fairfax & Sons Ltd (1980) 2 NSWLR 845 paras 25 and 26). I agree with Marais JA (and the learned judge in the court a quo) that such a statement, without more, does not ordinarily carry the imputation that the arrested person is guilty of the offence.

Qualified Privilege

Under the Act, it is a defence to the publication of defamatory material that is contained in a ‘fair report of proceedings of public concern’: s 139(1). The phrase ‘proceedings of public concern’ is defined in s 139(4)(e) to include ‘any proceedings in public of a court or arbitral Tribunal of any country’. However, in the present circumstances, the articles in question are a report of the pleadings filed in the Supreme Court as opposed to a report of court proceedings, and thus the statutory defence will not apply.

It is settled law that pleadings and affidavits are not subject to privilege unless and until they are read in open court. In Gobbart v Western Australian Newspapers (1968) 3 WAR 113 Jackson J found that an affidavit which had been filed in court proceedings and read by him in private chambers in support of an application, and not in open court, did not attract privilege. It was argued that although the publication of the contents of the affidavit was protected under the Rules of the West Australian Supreme Court, filed documents could be inspected by the public. Jackson J rejected such submission, considering that it would be against the public interest to protect such documents.

Jackson J referred to the defence of privilege raised, based upon s 6 of the Newspaper Libel and Registration Act 1888 (WA) which provided a defence of absolute privilege in respect of a ‘fair and accurate report of the proceedings in any court of justice …’. At 119 Jackson J said:

These words in their context should, in my opinion, be read as referring to proceedings in open court. They are allied to reports of proceedings at any State or municipal ceremonial, or at any political, municipal or public meeting, and the section then refers to reports of the proceedings “on any of the occasions above mentioned”. Thus the “occasion” may be one of the classes of meetings or ceremonials mentioned, or may be the proceedings in a court; but the use of the word “occasion” shows that a particular tie and place was contemplated.

According to ‘Gatley on Libel and Slander’ (10^th edition) (‘Gatley’):

… the general view has been that privilege will not attach to the publication in a newspaper of the contents of pleadings, affidavits or other papers filed in civil proceedings and not brought up in open court.

In Stern v Piper [1997] QB 123 (CA) Hirst LJ said at 135:

… I think it is significant that privilege only protects reports of proceedings taking place in open court, and that its foundation is that those proceedings took place in public, so that the public in general should have access to fair and accurate reports thereof: Webb v Times Publishing Co. Ltd. [1960] 2 Q.B. 535…

In Stern v Piper Simon Brown LJ said at 137:

One can quite well understand, however, why the law of qualified privilege does not extend to the pre-trial reporting of allegations contained in court documents: it is one thing to report proceedings contemporaneously or even retrospectively – then both sides’ stories are being, or will have been, told in open court; quite another to be privileged to do so when perhaps (as here) only one side’s allegations are being related and at a time likely to be months or even years before the full picture will emerge in open court.

Hirst LJ cited a passage from Holmes J in Cowley v Pulsifer (1884) 137 Mass 392 at 394:

It would be carrying privilege farther than we feel prepared to carry it, to say that, by the easy means of entitling and filing a statement of claim in a cause, a sufficient foundation may be laid for scattering any libel broadcast with impunity.

In the Australian context, in Smith v Harris & Ors [1996] 2 VR 335, Byrne J found that the publication by the defendants of certain pleadings filed in the Magistrates Court of Victoria did not attract the protection of common law qualified privilege as a faithful and accurate report of that court’s proceedings and was not protected by s 4 of the Wrongs Act 1958 (Vic). The proceedings had not been heard at the time of publication of the pleadings. Byrne J referred to the decision of Jackson J in Gobbart and numerous other authorities especially the decision of Holroyd J in Abbott v Coombs (1887) 13 VLR 917 at 920-921 wherein Holroyd J observed that at common law the privilege was restricted to reports of proceedings in open court.

Byrne J in Smith v Harris (at 341) said:

His Honour acknowledges that the view of all or a great majority of the judges at that time was that, at common law, the privilege was restricted to reports of proceedings in open court. He then observes that greater harm might be done to a person’s reputation by what is said in court than by what is said in a writ of summons. There is, in his Honour’s view, no distinction between them. It seems to me, with respect, that there is a significant distinction between a writ of summons filed in the registry and the hearing in open court and that this distinction touches the policy underlying the immunity in question. It is necessary to emphasise that the immunity under consideration is absolute; it is available even to a malicious and unjustifiable statement harmful of a person’s character. It means that that person’s right to a good reputation is subordinated to some other right. This other right is not the right to litigate, for it has been beyond argument for centuries that defamatory statements made in the furtherance of litigation are absolutely protected: R v Skinner (1772) Lofft 54 at 56; 98 E.R. 529 at 530, per Lord Mansfield; Jamieson & Brugmans v R. (1993) 177 C.L.R. 574 at 583 per Deane and Dawson JJ. The dominant right is that which says that the court’s proceedings must be open to the public, so that the public has confidence in their integrity. See Webb v. Times Publishing Co. Ltd. [1960] 2 Q.B. 535 at 559-62 where the reasons for the analogous common law privilege are usefully summarised. A document prepared for, filed and even served is not in that sense part of the court’s proceedings, at least until it is deployed as part of the judicial process. A like distinction between documents filed and served and documents deployed in court is observed with respect to discovered documents: Harman v Secretary of State for the Home Department [1983] 1 A.C. 280, and witness statements: Fairfield-Mabey Ltd. v. Shell UK Ltd [1989] 1 All E.R. 576. This distinction may be applicable, too, to affidavits which are filed in court and which may be never read or tendered.

Thereafter his Honour referred to public interest which his Honour observed was not to be equated with public curiosity: Stephens v West Australian Newspaper Limited (1994) 182 CLR 211 at 242 per Brennan J (dissenting) and at 261 per McHugh J.

His Honour also referred to the possibility that a document, when ‘deployed in court, may be ordered to be confidential or some other restraint may be imposed on it, or it may even be that the court may take an order that the hearing at which the document is used be in closed court’. His Honour further considered the possibility that a document which did not comply with the relevant Rules may be set aside by a judge. However a clerk who receives the document for filing has no such power. His Honour continued at 342:

As Lord Campbell L.C. observed in Davison v. Duncan (1857) 7 E.L. & B.L. 229 at 231; 119 E.R. 1233 at 1233, the presence of the controlling authority of the judge in court is an important and salutary filter on the publicity which may attend the hearing. Where the law, for good reason, gives to one person the right to injure another’s reputation, even with malice, it ought to ensure that the exercise of that right is limited so that it does not go beyond what that good reason demands. It is difficult, if not impossible, for the court to discharge this responsibility otherwise than at the hearing which will, of course, normally be in public.

As to the operation of s 4 of the Wrongs Act 1958 (Vic) which afforded protection to the publication of ‘a faithful and accurate report of proceeding in any court of justice …’, his Honour found that such protection did not extend to the publication of pleadings. At 343 his Honour said:

In my opinion the intent of the section under consideration, as it may apply in modern litigation, does not demand that the statutory immunity be extended beyond documents used at a hearing conducted in public.

Byrne J also considered other aspects of the submissions put before him. His Honour observed at 344:

It is clear that the privilege is available for reports of proceedings conducted in open court. In Kimber v. The Press Association, Ltd. [1893] 1 Q.B. 65 at 68, Lord Esher M.R. stated the common law in terms which have commanded general acceptance:

The rule of law is that, where there are judicial proceedings before a properly constituted judicial tribunal exercising its jurisdiction in open Court, then the publication, without malice, of a fair and accurate report of what takes place before that tribunal is privileged.

His Honour rejected the submission that such principle did not require the judicial proceeding to be held in open court to obtain common law qualified privilege. Byrne J said at 344:

I reject this analysis. It is clear from the argument as reported and from the judgments that this requirement was seen as crucial. In the passage of the judgment of Holroyd J. in Abbott v. Coombs (1887) 13 V.L.R. 917 AT 920-21, which I have already quoted, it is apparent that his Honour was of the like opinion: see also Gobbart v. West Australian Newspapers [1968] W.A.R 113 at 119, per Jackson J.; R. Lucas & Son (Nelson Mail) Ltd. v. O’Brien [1978] 2 N.Z.L.R. 289 at 298 per Richmond P. (Woodhouse J. concurring), at 310, per Somers J.; Cunningham v. The Scotsman Publications Ltd. 1987 S.L.T. 698. The standard texts are to the same effect: Butterworths, Australian Defamation Law and Practice, 1991, Looseleaf, [15,015]; Gatley on Libel and Slander, 8^th ed., 1981, para 624; Duncan and Neil on Defamation, 2^nd ed., 1983, paras 13.25-16.26; Clerk and Lindsell on Torts, 15^th ed., 1982, Sweet & Maxwell, paras 20-133.

Thereafter at 345 his Honour referred to other decisions in common law proceedings and said:

The precise point presently before the court, as to whether the common law privilege is available to a document filed in court but not deployed in a judicial proceeding has also been the subject of judicial consideration in various common law jurisdictions, the overwhelming preponderance of which has been against the existence of the privilege: in Western Australia: Gobbart v West Australian Newspapers [1968] WAR 113; in Scotland: Richardson v Wilson (1879) 7 R 237; Macleod v Gunn (1892) 20 R 218; Cunningham v The Scotsman Publications Ltd 1987 SLT 698; in New Zealand: Campbell v Kennedy (1884) LR 3 SC 8; R Lucas and Son (Nelson Mail) Ltd v O'Brien [1978] 2 NZLR 289; and in South Africa: Transvaal Chronicle v Roberts [1915] TPD 188.

Significantly his Honour referred to the decision in Gaskell & Chambers, Ltd v Hudson, Dodsworth and Company [1936] 2 KB 595. This decision concerned an action for contempt of court against a plaintiff who had been an employee of the defendant who had circulated to the defendant’s customers a copy of the statement of claim. It was argued on behalf of the defendant that the publication of the pleading constituted a contempt of court. Du Parcq J observed that such proceedings were analogous to a libel action. At 602 he said:

I agree, of course, that the action between these parties is not a libel action, but it is in many ways analogous to a libel action.

The above observations were based on prior authority: see for example Bowden v Russell (1877) 46 LJ (Ch) 414, in which Malins VC dealing with an application for contempt of court for circulating copies of a statement of claim said at 416:

The plaintiff’s might, if they had wished it, and been bold enough to do so, have it in the form of a letter to the persons to whom they sent the Statement itself. But that would clearly have been libellous conduct on their part, and would have subjected them to an action on account of it.

In granting an injunction to restrain such conduct, Malins VC said at 417:

The conduct of the plaintiffs was most improper. If they choose to make libellous statements they may, and take the consequences.

Consideration

In proceeding 411 and proceeding 412, the allegations against the plaintiffs are not analogous to any criminal proceedings but rather are allegations entirely of a civil nature. Accordingly, the rationale upon which Mirror Newspapers was determined, namely that a reasonable person would understand that a mere allegation of conduct was not defamatory because no offence had been proved, has little application to the articles now before the Court.

The recitation in the articles in question of pleadings which have not been read in open court are not documents which qualify for ‘proceedings of public concern’. Further, there is no defence for publication of public documents available as provided by s 138 of the Act since the definition of ‘public document’ does not include court documents.

Insofar as Ross McConnel Kitchen is concerned, the public nature of the forum in which the report was made in that case, distinguishes it from the present proceedings before the Court. In Ross McConnel Kitchen the article was published the day after a directions hearing had taken place at which allegations contained in the pleadings were apparently ventilated in open court. Where matters are contested in an open court, a reasonable reader may well understand that allegations may be made but denied in the usual adversarial procedure, and that until a determination is made no finding has been made in respect of them. The same considerations, however, do not extend to the publication of assertions contained in pleadings and which may never be relied upon publicly nor come to the public’s attention, but for the publication of the article reporting them.

In the present proceedings, the alleged defamatory statements have been drawn from assertions in pleadings which have not been read in open court. This is a critical fact which distinguishes the circumstances existing in Ross McConnel Kitchen. Hunt J at [25] of his decision, expressly recognised that the facts of the particular matter are determinative.

If Hunt J’s decision was intended to apply to the publication of pleadings which had not been discussed in open court this Court would not follow such a far-reaching extension of principle for several reasons. Firstly, the decision is contrary to decisions of two Australian courts as already referred to, and is irreconcilable with principles in various English authorities. Secondly, there is no basis to extend the privilege to defamatory material contained in pleadings not yet read in open court. To do so would enable a person (including a newspaper), to publish defamatory statements with impunity where no basis exists for privilege.

The Court considers that if Ross McConnel Kitchen was interpreted to provide a panacea ‘defence’, it could cause grave injustice. As such, special emphasis must be placed on his Honour’s qualifying final sentence in [25] of such decision: ‘Each case will, of course, depend upon the context…’.

Accordingly, the Court rejects the defendants’ submission that an ordinary reasonable reader would never consider a mere ‘report of allegations’ to carry imputations of guilt. Further, the Court cautions against a strict adherence to the principle thought to be elucidated by Hunt J in Ross McConnel Kitchen at [24] and [25]. In the present context, where the dispute has not yet reached open court, the Court will decline to follow Ross McConnel Kitchen and will determine whether it is possible that the publications are defamatory based on established principles.

Could the publications be defamatory?

It follows from the above that provided an ‘ordinary reasonable reader’ may be prepared to draw the inferences as pleaded by the plaintiffs to arise from the imputations, then they should not be struck out. What constitutes the ‘ordinary reasonable reader’ has been identified in Amalgamated Television Services Pty Limited v Marsden (1998) 43 NSWLR 158. Hunt CJ at CL stated the relevant principles at 165 as follows:

The ordinary reasonable meaning of the matter complained of may be either the literal meaning of the published matter, or what is implied by that matter, or what is inferred from it: Jones v Skelton (at 650; 1065). In deciding whether any particular imputation is capable of being conveyed, the question is whether it is reasonably so capable (Defamation Act, s 7A. This merely reflects the common law: Capital and Counties Bank Ltd v George Henty & Sons (1882) 7 App Cas 741 at 745; Lewis v Daily Telegraph Ltd [1964] AC 234 at 259, 266 (HL); Jones v Skelton (at 650; 1065); Farquhar v Bottom (at 385); Mirror Newspapers Ltd v Harrison [1982] HCA 50; (1982) 149 CLR 293 at 302), and any strained or forced or utterly unreasonable interpretation must be rejected: Jones v Skelton (at 650; 1065). The ordinary reasonable reader (or listener or viewer) is a person of fair average intelligence (Slatyer v Daily Telegraph Newspaper Co Ltd [1908] HCA 22; (1908) 6 CLR 1 at 7) who is neither perverse (ibid at 7), nor morbid or suspicious of mind (Keogh v Incorporated Dental Hospital of Ireland [1910] 2 Ir R 577 at 586), nor avid for scandal: Lewis v Daily Telegraph Ltd (at 260). That person does not live in an ivory tower but can and does read between the lines in the light of that person's general knowledge and experience of worldly affairs: Lewis v Daily Telegraph Ltd (at 277); Morgan v Odhams Press Ltd [1971] 1 WLR 1239 at 1245; Lang v Australian Consolidated Press Ltd [1970] 2 NSWR 408 at 412; Middle East Airlines Airliban SAL v Sungravure Pty Ltd [1974] 1 NSWLR 323 at 340.

The meaning to be ascribed to the words used requires a consideration of the impact of those words ‘in their natural and ordinary meaning, i.e. in the meaning in which reasonable mean of ordinary intelligence with the ordinary man’s general knowledge and experience of worldly affairs, would be likely to understand them’: see extract of Gately (6^th Edition) at 41 as referred to by Fox J in Gorton v Australian Broadcasting Commission (1973) 22 FLR 181 at 187.

Ultimately ‘it is a question of fact in each case as to whether the imputation is conveyed’: see Nationwide News Pty Limited v Carmichael [2005] NSWCA 56 at [19].

In Jones v Skelton (1963) 63 SR (NSW) 644 at 650 the Privy Council said:

The ordinary and natural meaning may therefore include any implication or inference which a reasonable reader guided not by any special but only by general knowledge and not fettered by any strict legal rules of construction would draw from the words. The test of reasonableness guides and directs the court in its function of deciding whether it is open to a jury in any particular case to hold that reasonable persons would understand the words complained of in a defamatory sense.

In Radio 2UE Sydney Pty Limited v Chesterton (2009) 238 CLR 460, the High Court held at [3]:

A person's reputation may therefore be said to be injured when the esteem in which that person is held by the community is diminished in some respect.

The defendants refer to the well established tests referred to in Lewis v The Daily Telegraph Limited [1964] AC 234 per Lord Devlin at 285 and the advice provided by the Privy Council in Jones v Skelton in support of the proposition that the broad impression conveyed by the articles must be considered and not the meaning of each word contained therein.

Further, the defendants rely upon the observations of the Court in Radio 2UE Sydney Pty Ltd v Chesterton at [5] which confirmed that the common law test of what constitutes a defamatory publication is ‘whether the published matter is likely to lead an ordinary reasonable person to think less of a plaintiff’. The defendants submit that the mere report of pleadings cannot constitute defamatory material and therefore since all of the imputations pleaded are predicated upon the plaintiffs being responsible for the matter alleged, they should be struck out.

The defendants further submit that the poster ‘Cummings fighting cruelty claims’ could not give rise to the imputations particularised in [6] of the ASOC filed in proceeding 412. Firstly it is submitted that, as a matter of identification Anthony Cummings is not nominated and the poster may have referred to any person sharing the Cummings name. Secondly, it is submitted that the poster makes it plain that the allegations of cruelty were denied and were being resisted, and that the mere statement contained in the poster could not give rise to the imputation that the plaintiff was actually guilty of cruelty and was a cruel person. The defendants rely upon Jones v Skelton and Ross McConnel Kitchen insofar as the principle has been referred which extended the principle in Mirror Newspapers to civil proceedings.

As to proceeding 411, each of the imputations is said to arise out of the published articles.

In proceeding 412 the poster, a copy of which is at Annexure D, is said to give rise to the imputation that the plaintiff is a cruel person, was cruel to animals, treated racehorses in his care with cruelty and as a racehorse trainer he was cruel to the horses. The plaintiff is said to be identified because he was a registered trainer of racehorses, trained racehorses in stable established at Randwick, Sydney and Flemington in Melbourne, was a successful trainer who had trained many winners; and was a party to litigation relating to his conduct in training racehorses (see [6] to the ASOC in proceeding 412).

The second matter complained of in proceeding 412 under the heading ‘Cummings in 6.4 M fight over broken-down horses’ is said to give rise to 11 imputations.

The Court considers that the correct approach to the interpretation of the articles is the same as that considered by Jackson J in Gobbart at 118 that is, could an ordinary man reading the article understand by the words used that the plaintiffs had engaged in conduct detrimental to their occupation as horse trainers and were either guilty of negligence, neglect or incompetence?

In Lewis v The Daily Telegraph Limited, Lord Reid, when considering the effect of an allegedly defamatory statement, said at 258:

Sometimes it is not necessary to go beyond the words themselves, as where the plaintiff has been called a thief or a murderer. But more often the sting is not so much in the words themselves as in what the ordinary man will infer from them, and that is also regarded as part of their natural and ordinary meaning. Here there would be nothing libellous in saying that an inquiry into the appellants’ affairs was proceeding: the inquiry might be by a statistician or other expert. The sting is in inferences drawn from the fact that it is the fraud squad which is making the inquiry.

At 259 Lord Reid referred to the leading decision in Capital and Counties Bank Ltd v Henty and Sons (1882) 7 App Cas 741 and said:

In that case Lord Selborne L.C. said: “The test, according to the authorities, is, whether under the circumstances I which the writing was published, reasonable men, to whom the publication was made, would be likely to understand it in a libellous sense”.

Findings

Whether the articles in proceeding 411 and proceeding 412 are in fact defamatory is not the question that is presently before this Court. They may be found to be defamatory in the substantive hearing, or they may not. The immediate question before this Court is whether the imputations should be struck out on the basis that such articles are incapable of conveying imputations of guilt. In the present circumstances, the Court finds that the articles may be capable of conveying the imputations as pleaded and accordingly, the Court declines to strike out any of the imputations.

Identification

Finally, the defendants submit that the poster does not necessarily identify Anthony Cummings, the first plaintiff in proceeding 411 and the sole plaintiff in proceeding 412.

This submission can be readily disposed of. In Arthur Lonsdale Lee v Wilson and Mackinnon (1934) 51 CLR 276 the High Court held that where defamatory words are capable of relating to more than one person each person may maintain an action for defamation notwithstanding that the defendant intended another person (see the observations of Dixon J at 295).

In this case such principle applies and Mr Anthony Cummings, being engaged in the business of training and racing horses, is clearly one person to whom the article (and the poster) could refer. In fact, the text of the article identifies him by full name. Applying the authorities it is irrelevant that the poster or the headline could also refer to Mr Bart Cummings (also of horse training fame). Upon application of the High Court’s reasoning in Arthur Lonsdale Lee, Mr Bart Cummings arguably too could have a cause of action in defamation.

For the above reasons the Court rejects the submission made by the defendants.

ORDERS

It follows that the interlocutory applications fail on all grounds and that the defendants must pay the costs of the plaintiffs of the applications.

I certify that the preceding one hundred and nineteen (119) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Cowdroy.
Associate:
Date: 18 November 2011

Counsel for the Plaintiffs:  Mr T.K. Tobin QC
Solicitor for the Plaintiffs:  Verekers Lawyers
Counsel for the Defendants:  Mr A.T.S. Dawson
Solicitor for the Defendants:  Johnson Winter & Slattery
Date of hearing:  16 September 2011 and 4-5 October 2011
Date of judgment:  18 November 2011

ANNEXURE A

Comparison tables - Sydney Morning Herald and The Age articles

*Sydney Morning Herald*	*The Age*
Cummings in $6.4m fight over broken-down racehorses	Tinkler, trainer in stoush
Racing giants face off
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 was not fit for competition	RACEHORSE trainer Anthony Cummings is fighting claims he worked horses so hard they were incapable of racing, took sale commissions he shouldn't have and bought horses for a client that were not fit for competition.
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 brought on its behalf and trained until they were broken down or lame, preventing them earning winnings.	In documents filed in the NSW Supreme Court, horse breeding and training outfit Patinack Farm, run by mining tycoon Nathan Tinkler, is seeking $6.4 million from Cummings and his companies, Cummings Thoroughbreds and Something Fast, for what Patinack says is the loss in value of horses Cummings brought on its behalf and trained until they were broken down or lame, preventing them from earning prizemoney.
But the claim was made only after Mr Cummings sought $173,000 from Patinack for unpaid trading fees and costs.	But the claim was only made after Cummings sought $173,000 from Patinack in unpaid training fees and costs.
Mr Tinkler refused to pay saying Mr Cummings had not performed all the work he was charging for. 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.	Tinkler refused to pay the fees, saying Cummings had not performed all the work he was billing for. Then, in a cross-claim, Patinack Farm alleged 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 Cummings allegedly bought more than 100 horses on Patinack's behalf. The pair officially split in December 2008.
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.	Cummings, son of master trainer Bart Cummings, has denied the allegations. He says 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 causing horses to be raced or trialled when it knew they shouldn't be.
Patinack lists 15 thoroughbreds as “horses that have been broken down due to negligence”, including five that allegedly had no chance of racing. The remaining 10 horses allegedly have a 50 per cent chance of racing, including Siderus, purchased for $2.5 million, and Metallurgical, brought for $2.2 million.	Under ''horses that have broken down due to negligence'' Patinack lists 15 thoroughbreds, including five that allegedly now have no chance of racing.
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.	According to Patinack, 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 make them stressed, injured or overtrained.
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.	Cummings denies he had a duty to prevent overtraining, denies training some of the horses and denies each of the horses listed became lame or broke down while being trained by him or his company.
Patinack also alleges Mr Cummings wrongly took commission 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.	Patinack Farm also alleges Cummings wrongly took commissions and incentive fees from sales, including $2.8 million from the $18.8 million worth of horses he allegedly bought at the 2008 Magic Millions yearling sale, when he was supposed to be getting the 58 horses for Patinack at the best possible price.
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.	Cummings claims he did not take a commission without Patinack Farm's knowledge, denies he had a duty to buy only horses with the potential to win and only admits purchasing some of the horses on Patinack's behalf.
The matter is due before the court for directions on March 9.	The matter is due before the court for directions on March 9.
Tinkler, 33, is listed as Australia's richest man under 40 and has made his fortune from coal mining investment.
He still has hundreds of horses and has the majority of them prepared at Warwick Farm by fledgling trainer John Thompson.

ANNEXURE B

Extracts from Statement of Claim in SC 411 of 2010
containing the challenged imputations

In its natural and ordinary meaning, the first matter complained of was defamatory of the first plaintiff.
6.1 Particulars of defamatory meanings concerning the first plaintiff
The following meanings or meanings not differing in substance were conveyed:
(a)The first plaintiff in his capacity as a trainer worked Patinack Farm's horses so hard that they were unable to race [1], [2], [3], [8], [9], [10];
(b)The first plaintiff trained Patinack Farm's horses so badly that they could not earn winnings because they broke down or became lame [1], [2], [3], [8], [9], [10];
(c)The first plaintiff by his negligence as a trainer caused five of 15 Patinack Farm racehorses to break down so severely that they could never race [1], [2], [3], [8], [9], [10];
(d)The first plaintiff by his negligence as a trainer caused ten of 15 Patinack Farm racehorses to break down so severely as to have only a 50% chance of racing [1], [2], [3], [8], [9], [10];
(e)The first plaintiff failed in his duty as a horse trainer to train Patinack Farm's horses in a way that would not stress or injure them [1], [2], [3], [8], [9], [10];
(f)The first plaintiff took commissions and fees to which he was not entitled for the purchase of racehorses at the Magic Millions sale on behalf of Patinack Farm [2], [5], [6], [12];
(g)The first plaintiff dishonestly profited at the expense of his client Patinack Farm from the purchase of racehorses on its behalf [2], [5], [6], [12];
(h)The first plaintiff negligently failed in his duty to buy sound racehorses for Patinack Farm [1], [2], [3], [8], [9], [10];
(i)The first plaintiff failed to perform his duty to buy racehorses for Patinack Farm which he considered would win Group 1 races [1], [2], [3], [8], [9], [10];
(j)The first plaintiff failed to perform his duty in buying racehorses for Patinack Farm which were not fit for competition [1], [2], [3], [8], [9], [10];
(k)The first plaintiff failed to perform his duty in failing to buy racehorses on behalf of Patinack Farm at the best possible price [1], [2], [3], [8], [9], [10].
The numbered paragraphs in square brackets correspond to the paragraphs of the first matter complained of set out in Schedule A. The meanings arise in their full force and effect from the whole of the first matter complained of and in particular the paragraphs identified above.
In its natural and ordinary meaning, the first matter complained of was defamatory of the second plaintiff.
Particulars of defamatory meanings concerning the second plaintiff:
The following meanings or meanings not differing in substance were conveyed:
(a) The second plaintiff, a company involved in the business of training horses, engaged an incompetent horse trainer [1], [2], [3], [8], [9], [10];
(b)The second plaintiff, a company involved in the business of training horses, engaged a horse trainer who was so incompetent as a horse trainer that his actions resulted in the horses being unfit to race [1], [2], [3], [8], [9], [10];
(c)The second plaintiff, a company involved in the business of training horses, engaged a negligent horse trainer [1], [2], [3], [8], [9], [10];
(d)The second plaintiff, a company involved in the business of training horses, engaged a horse trainer so negligent that he failed to monitor the training of horses such that the horses broke down and could not race [1], [2], [3], [8], [9], [10];
(e)The second plaintiff in the conduct of its business took commissions and fees to which it was not entitled for the purchase of racehorses at the Magic Millions sale on behalf of Patinack Farm [2], [6], [10];
(f)The second plaintiff engaged in dishonest business practices [2], [5], [6], [12].
The numbered paragraphs in square brackets correspond to the paragraphs of the first matter complained of set out in Schedule A. The meanings arise in their full force and effect from the whole of the first matter complained of and in particular the paragraphs identified above.

Second matter complained of

On or about 25 February 2010 the first defendant published of and concerning the first and second plaintiffs in each of the States and Territories of Australia and New Zealand and on the world wide web the words set forth in Schedule B hereto (the “second matter complained of”).
Particulars of publication
a)The second matter complained of was published by the first defendant on the world wide web on the website located at url address (“Age Website”).
b)The second matter complained of was entitled “Tinkler, trainer in stoush”.
c)Further particulars of the extent of publication of the second matter complained of will be provided after discovery and interrogatories.
…
In its natural and ordinary meaning, the second matter complained of was defamatory of the second plaintiff.
Particulars of defamatory meanings concerning the second plaintiff
The following meanings or meanings not differing in substance were conveyed:
(a) The second plaintiff, a company involved in the business of training horses, engaged an incompetent horse trainer [1], [4], [5], [7], [10], [11];
(b)The second plaintiff, a company involved in the business of training horses, engaged a horse trainer that was so incompetent as a horse trainer that his actions resulted in the horses being unfit to race [1], [4], [5], [7], [10], [11];
(c)The second plaintiff, a company involved in the business of training horses, engaged a negligent horse trainer [1], [4], [5], [7], [10], [11];
(d)The second plaintiff, a company involved in the business of training horses, engaged a horse trainer so negligent that he failed to monitor the training of horses such that the horses broke down and could not race [1], [4], [5], [7], [10], [11];
(e)The second plaintiff in the conduct of its business took commissions and fees to which it was not entitled for the purchase of racehorses at the Magic Millions sale on behalf of Patinack Farm [4], [7], [13]; and
(f)The second plaintiff engaged in dishonest business practices [4], [7], [13].
The numbered paragraphs in square brackets correspond to the paragraphs of the second matter complained of set out in Schedule B. The meanings arise in their full force and effect from the whole of the first matter complained of and in particular the paragraphs identified above.

Third matter complained of

…
In its natural and ordinary meaning, the third matter complained of was defamatory of the first plaintiff.
Particulars of defamatory meanings concerning the first plaintiff
The following meanings or meanings not differing in substance were conveyed:
(a)The first plaintiff in his capacity as a trainer worked Patinack Farm's horses so hard that they were unable to race [1], [3], [4], [6], [9], [10];
(b)The first plaintiff trained Patinack Farm's horses so badly that they could not earn winnings because they broke down or became lame [1], [3], [4], [6], [9], [10];
(c)The first plaintiff by his negligence as a trainer caused five of 15 Patinack Farm racehorses to break down so severely that they could never race [1], [3], [4], [6], [9], [10];
(d)The first plaintiff by his negligence as a trainer caused ten of Patinack Farm's racehorses to break down [1], [3], [4], [6], [9], [10];
(e)The first plaintiff failed in his duty as a horse trainer to train Patinack Farm's horses in a way that would not stress or injure them [1], [3], [4], [6], [9], [10];
(f)The first plaintiff took commissions and fees to which he was not entitled for the purchase of racehorses at the Magic Millions sale on behalf of Patinack Farm [1], [3], [6], [12];
(g)The first plaintiff dishonestly profited at the expense of his client Patinack Farm from the purchase of racehorses on its behalf. [1], [3], [6], [12];
(h)The first plaintiff negligently failed in his duty to buy sound racehorses for Patinack Farm [1], [3], [4], [6], [8], [9], [10], [11];
(i)The first plaintiff failed to perform his duty to buy racehorses for Patinack Farm which he considered would win Group 1 races [1], [4], [5], [10], [12];
(j)The first plaintiff failed to perform his duty in buying racehorses for Patinack Farm which were not fit for competition [1], [4], [6], [10], [12];
(k)The first plaintiff failed to perform his duty in failing to buy racehorses on behalf of Patinack Farm at the best possible price [1], [4], [6], [10], [12].
The numbered paragraphs in square brackets correspond to the paragraphs of the third matter complained of set out in Schedule C1. The meanings arise in their full force and effect from the whole of the first matter complained of and in particular the paragraphs identified above.

In its natural and ordinary meaning, the third matter complained of was defamatory of the first plaintiff.
Particulars of defamatory meanings concerning the first plaintiff
The following meanings or meanings not differing in substance were conveyed:
(a)The first plaintiff in his capacity as a trainer worked Patinack Farm's horses so hard that they were unable to race [1], [3], [4], [6], [9], [10];
(b)The first plaintiff trained Patinack Farm's horses so badly that they could not earn winnings because they broke down or became lame [1], [3], [4], [6], [9], [10];
(c)The first plaintiff by his negligence as a trainer caused five of 15 Patinack Farm racehorses to break down so severely that they could never race [1], [3], [4], [6], [9], [10];
(d)The first plaintiff by his negligence as a trainer caused ten of Patinack Farm's racehorses to break down [1], [3], [4], [6], [9], [10];
(e)The first plaintiff failed in his duty as a horse trainer to train Patinack Farm's horses in a way that would not stress or injure them [1], [3], [4], [6], [9], [10];
(f)The first plaintiff took commissions and fees to which he was not entitled for the purchase of racehorses at the Magic Millions sale on behalf of Patinack Farm [1], [3], [6], [12];
(g)The first plaintiff dishonestly profited at the expense of his client Patinack Farm from the purchase of racehorses on its behalf. [1], [3], [6], [12];
(h)The first plaintiff negligently failed in his duty to buy sound racehorses for Patinack Farm [1], [3], [4], [6], [8], [9], [10], [11];
(i)The first plaintiff failed to perform his duty to buy racehorses for Patinack Farm which he considered would win Group 1 races [1], [4], [5], [10], [12];
(j)The first plaintiff failed to perform his duty in buying racehorses for Patinack Farm which were not fit for competition [1], [4], [6], [10], [12];
(k)The first plaintiff failed to perform his duty in failing to buy racehorses on behalf of Patinack Farm at the best possible price [1], [4], [6], [10], [12].
The numbered paragraphs in square brackets correspond to the paragraphs of the third matter complained of set out in Schedule C1. The meanings arise in their full force and effect from the whole of the first matter complained of and in particular the paragraphs identified above.

ANNEXURE C

Extracts from Amended Statement of Claim in SC 412 of 2010
containing the challenged imputations

In its natural and ordinary meaning, the first matter complained of was defamatory of the plaintiff.
6.1 Particulars of defamatory meanings concerning the plaintiff
The following meanings or meanings not differing in substance were conveyed:
(a)the plaintiff was a cruel person;
(b) the plaintiff was cruel to animals;
(c)the plaintiff treated racehorses in his care with cruelty.
(d) the plaintiff as a racehorse trainer was cruel to horses he trained .
6.2 Particulars of identification of the plaintiff
(a) the plaintiff was a registered trainer of racehorses;
(b) the plaintiff trained racehorses in stables established at Randwick in Sydney and Flemington in Melbourne;
(c) the plaintiff was a successful trainer who had trained many winners in races throughout Australia.
(d) the plaintiff was a party to litigation relating to his conduct in training racehorses.

6A.Alternatively, to the extent to which the defamatory meanings set out above do not arise as natural and ordinary meanings, they are true innuendos which were conveyed to persons with knowledge of the facts and matters set out in paragraphs 6.2(a), (b), (c) and (d) or any of 6(a) or 6(b) or 6(c) or 6 (d).
Particulars
6A.1The above facts and matters were known to members of the racing public and those engaged in the racing industry who saw the poster including, at least Mr Neville Begg, Mr Graham Begg, Mr Paul Whelan and Mr Brendan Hopkins.

Second Matter complained of

7. …

In its natural and ordinary meaning, the second matter complained of was defamatory of the plaintiff.
8.1 Particulars of defamatory meanings concerning the plaintiff:
The following meanings or meanings not differing in substance were conveyed:
(a)The plaintiff in his capacity as a trainer worked Patinack Farm's horses so hard that they were unable to race. [1], [2], [3], [4], [9], [10], [11];
(b)The plaintiff trained Patinack Farm's horses so badly that they could not earn winnings because they broke down or became lame. [1], [2], [3], [4], [9], [10], [11];
(c)The plaintiff by his negligence as a trainer caused five of Patinack Farm's racehorses to break down so severely that they could never race. [1], [2], [3], [4], [9], [10], [11];
(d)The plaintiff by his negligence as a trainer caused ten of Patinack Farm's racehorses to break down so severely as to have only a 50% chance of racing. [1], [2], [3], [4], [9], [10], [11];
(e)The plaintiff failed in his duty as a horse trainer to train Patinack Farm's horses in a way that would not stress or injure them. [1], [2], [3], [4], [9], [10], [11];
(f)The plaintiff took commissions and fees to which he was not entitled for the purchase of racehorses at the Magic Millions sale on behalf of Patinack Farm [3], [6], [7], [13]
(g)The plaintiff dishonestly profited at the expense of his client Patinack Farm from the purchase of racehorses on its behalf. [3], [6], [7], [13]
(h)The plaintiff negligently failed in his duty to buy sound racehorses for Patinack Farm. [1], [2], [3], [4], [9], [10], [11]);
(i)The plaintiff failed to perform his duty to buy racehorses for Patinack Farm which he considered would win Group 1 races. [1], [2], [3], [4], [9], [10], [11]
(j)The plaintiff failed to perform his duty in buying racehorses for Patinack Farm which were not fit for competition. [1], [2], [3], [4], [9], [10], [11];
(k)The plaintiff failed to perform his duty in failing to buy racehorses on behalf of Patinack Farm at the best possible price. [1], [2], [3], [4], [9], [10], [11].
The numbered paragraphs in square brackets correspond to the paragraphs of the second matter complained of set out in Schedule B. The meanings arise in their full force and effect from the whole of the first matter complained of and in particular the paragraphs identified above.

ANNEXURE D