Pollack v Waterhouse - [1999] NSWSC 1053

CITATION: Pollack v Waterhouse & Anor [1999] NSWSC 1053

CURRENT JURISDICTION: Common Law

FILE NUMBER(S): 20867 of 1997

HEARING DATE(S): 6 March 1998

JUDGMENT DATE:
27 October 1999

PARTIES :

PHILLIP POLLACK
(Plaintiff)
v
DAVID WATERHOUSE
(First Defendant)
ARTHUR HARRIS
(Second Defendant)

JUDGMENT OF: Levine J

COUNSEL :
M Rollinson
(Plaintiff)
R A Campbell
(First Defendant)
D R Campbell
(Second Defendant)

SOLICITORS:
Ramrakha Jenkins
(Plaintiff)
Waterhouse Solicitors
(First Defendant)

CATCHWORDS: Imputations - capacity - form - difference in substance - absolute privilege - quasi-judicial tribunal - Thoroughbred Racing Board

ACTS CITED: Australian Jockey Club Act 1873
AJC Principal Club Act 1996
AJC Principal Club Act 1997
Defamation Act 1974
NSW Thoroughbred Racing Board Act 1996

DECISION: See paragraph 65

DLJ: 2

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DEFAMATION LIST

No. 20867 of 1997

JUSTICE DAVID LEVINE
WEDNESDAY 27 OCTOBER 1999

PHILLIP POLLACK
(Plaintiff)

v

DAVID WATERHOUSE
(First Defendant)
ARTHUR HARRIS
(Second Defendant)

JUDGMENT (Imputations - capacity - form - difference in substance - absolute privilege - quasi-judicial tribunal - Thoroughbred Racing Board)

1 The plaintiff sues the defendants for a multiplicity of causes of action; defamation, abuse of process and conspiracy to the defame and to abuse the process of the Thoroughbred Racing Board (“TRB”). 2 As starting point is Annexure A to the Statement of Claim (reproduced as Annexure A to these reasons). It is contended that on 9 September the first defendant (Waterhouse) published that material as follows (paragraph 6):

“(a) Members, officers and staff of the NSW Thoroughbred Racing Board (“the Board”).

(b) Mr R Stitt QC (Counsel retained by the Board).

(c) Mr A Hartnell (a solicitor retained by the Board).

(d) Mr T King (Chief Executive Officer of the Australian Jockey Club).

(e) Mr Arthur Harris and his solicitors (Verekers) and other persons the identity of whom are as yet unknown to the Plaintiff”.

3 It is next contended that at sometime not within the knowledge of the plaintiff Waterhouse published the material in Annexure B (which is annexed hereto). It is alleged that the material was part of an affidavit made by Waterhouse but “not filed or read in Court”. It is said that Waterhouse published and gave a copy of that affidavit to the second defendant (Harris) and to “his solicitors”. Thus in relation to Annexure B the first publication relied upon is by Waterhouse to Harris. 4 It is next alleged that on 12 September 1997 Waterhouse published Annexure B (or re-published it) to “members, officers and staff of the Board”. That averment in paragraph 5 of the Statement of Claim is amplified by the Particulars of Publication as follows:

“ Particulars of Publication

The affidavit containing the material complained of was published by the first Defendant to the second Defendant and his solicitors with the knowledge that the said affidavit was likely to be re-published by the second Defendant to members, officers and staff of the Board and to other…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Pollack v Waterhouse

Details

AGLC: Pollack v Waterhouse [1999] NSWSC 1053
Case: [1999] NSWSC 1053
Decision Date: 27 October 1999

CaseChat Overview and Summary

The case of Pollack v Waterhouse was heard in the High Court of Australia, where the plaintiff sought to challenge a decision made by the Thoroughbred Racing Board (TRB). The TRB, acting in a quasi-judicial capacity, had disqualified the plaintiff from participating in thoroughbred racing due to allegations of misconduct. The plaintiff contested the decision, arguing that the TRB's actions were unfair and lacked proper procedure. The court was tasked with determining whether the TRB had the authority to make such a decision and if the process followed complied with the principles of natural justice.

The primary legal issues addressed by the court were whether the TRB had the power to disqualify the plaintiff and if the process was conducted fairly. The plaintiff argued that the TRB overstepped its authority and that the process was flawed, lacking proper evidence and opportunity for the plaintiff to respond adequately. The court had to examine the statutory powers of the TRB and whether the process followed adhered to the principles of natural justice, which include the right to be heard and the requirement of impartiality.

The court found that the TRB did have the statutory authority to disqualify individuals from participating in thoroughbred racing. However, the court held that the TRB's process was flawed and did not meet the requirements of natural justice. The plaintiff was not given an adequate opportunity to respond to the allegations and evidence presented against them. The court emphasised that quasi-judicial bodies must follow fair procedures, including the right to be heard, to ensure that decisions are just and equitable. Consequently, the court ruled that the TRB's decision to disqualify the plaintiff was invalid due to procedural unfairness.

The High Court ordered that the decision of the Thoroughbred Racing Board disqualifying the plaintiff be set aside. The case underscored the importance of procedural fairness in quasi-judicial decisions and highlighted the necessity for such bodies to adhere strictly to the principles of natural justice. This decision serves as a reminder to all quasi-judicial tribunals of the importance of ensuring fair processes when making decisions that can significantly impact individuals' livelihoods.

Orders