JUDGE:	JOHN DIXON J
WHERE HELD:	Melbourne
DATES OF HEARING (BEFORE JURY):	17, 20, 21, 22, 23, 24 March 2017
JURY VERDICT:	24 March 2017
DATE OF HEARING (DAMAGES):	27 March 2017
DATE OF JUDGMENT:	29 June 2017
CASE MAY BE CITED AS:	Sheales v The Age & Ors
MEDIUM NEUTRAL CITATION:	[2017] VSC 380

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DEFAMATION – DAMAGES – Trial by jury – Publications stating barrister negligently stated facts to Racing Stewards Tribunal – Defence of justification not established – Other defences withdrawn during trial – Damages – Serious Imputation – Mass media distribution – Reputation not put in issue – Mitigating factors – Aggravating factors – Defamation Act 2005 (Vic), ss 22, 34, 35.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr D P Gilbertson QC, with Mr T Greenway	Lander and Rogers
For the Defendant	Dr M J Collins QC, with Mr J C Hooper	Minter Ellison

HIS HONOUR:

Mr Damian Sheales is a Victorian barrister practicing mainly in criminal law and sports law. Journalist Patrick Bartley, the third defendant, wrote an article about Mr Sheales’ appearance before a Racing Victoria stewards hearing on 2 August 2015. An issue before the steward’s hearing that day concerned the alleged use of the chemical element cobalt by the plaintiff’s clients, horse trainers Mr Mark Kavanagh and Mr Danny O’Brien.

Fairfax Digital Australia and New Zealand Pty Ltd, the second defendant, first published the article online, on its webpages on 2 August 2015. The first defendant, The Age Company Pty Ltd, is the owner and publisher of The Age newspaper, where the article, with some small differences was then published on 3 August 2015.

By the publications, Mr Sheales alleged that he had suffered injury to his professional reputation and feelings, had been humiliated, embarrassed or held up to ridicule and contempt, and had suffered loss and damage. The defendants denied his claims.

The proceeding was tried before a jury. The defendants did not contest publication. Verdicts were sought from the jury in relation to two alternate imputations.

(a) That acting in his capacity as a lawyer appearing before a Racing Victoria stewards hearing, the plaintiff deliberately misled the stewards about the effects of cobalt on racehorses (imputation A); or

(b) That in making submissions to a Racing Victoria stewards hearing in his capacity as a lawyer, the plaintiff acted negligently in misstating facts about whether cobalt is performance-enhancing in horses and whether it is harmful (imputation B).

The defendants disputed that the publications carried the alleged imputations, but did not contest that, if they did, the articles were in that meaning defamatory of the plaintiff. The defendants also contended that imputation B was substantially true.

By its verdict the jury found that both the online and print articles in their ordinary and…

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 Sheales v The Age

Details

AGLC: Sheales v The Age [2017] VSC 380
Case: [2017] VSC 380
Decision Date: 29 June 2017

CaseChat Overview and Summary

The case of Sheales v The Age involved a dispute between a barrister, Mr Sheales, and a media company, The Age, regarding defamatory publications made by the latter. The dispute centred around articles published by The Age that alleged Mr Sheales had negligently provided false information to a Racing Stewards Tribunal. Mr Sheales sought damages for defamation. The matter was heard in the Supreme Court of Victoria.

The court had to determine several legal issues. Firstly, whether the publications were defamatory, particularly whether they made a serious imputation about Mr Sheales' professional conduct. Secondly, the court had to consider the defences raised by The Age, including justification and fair reporting. The court also needed to assess the damages awarded to Mr Sheales, taking into account the seriousness of the imputation, the extent of publication, and any mitigating or aggravating factors.

The court found that the publications were indeed defamatory as they seriously questioned Mr Sheales' professional integrity by suggesting he had misled the tribunal. The defence of justification was not established because the evidence did not support the allegations. The other defences raised by The Age were withdrawn during the trial. The court awarded damages to Mr Sheales, considering the widespread distribution of the defamatory material in the mass media. The seriousness of the imputation and the lack of any mitigating factors were key in determining the quantum of damages. The court ordered The Age to pay Mr Sheales a specified amount in damages.

Orders