Sheales v The Age (Ruling No 1)

[2017] VSC 150

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

MAJOR TORTS LIST

S CI 2015 06477

DAMIAN SHEALES	Plaintiff
v
THE AGE COMPANY PTY LTD & OTHERS	Defendants

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JUDGE:	JOHN DIXON J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	21 March 2017
DATE OF RULING:	21 March 2017  (Reasons published 29 March 2017)
CASE MAY BE CITED AS:	Sheales v The Age (Ruling No 1)
MEDIUM NEUTRAL CITATION:	[2017] VSC 150

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DEFAMATION — Defences — Application that defence of justification be withdrawn from the jury — Open to the jury to find defence made out on the basis of the plaintiff's evidence and the exhibits – Application refused – Defamation Act 2005, s 25.

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

HIS HONOUR:

1. A defence of justification under s 25 of the Defamation Act 2005 is taken to imputation B which is pleaded in paragraph 8B of the statement of claim as follows:

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.

1. The defence pleads that in that meaning the impugned publications were substantially true. That is apparent at paragraph 15 of the defence. Although the plaintiff anticipated in submissions the possibility of a Hore‑Lacy meaning, and developed a responsive submission, the defendants eschewed any intention of suggesting to the jury that a permissible variant would be 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 in horses is harmful.

1. I need in those circumstances say no more about the Hore-Lacy submission given the defendants’ stated position. The primary submission that was put by the plaintiff is that the defence of substantial truth to imputation B should be taken away from the jury because it would be perverse for the jury to conclude on the basis of the evidence before them, which is at the close of evidence no more than a single academic article (the Mobasheri article), that Mr Sheales negligently made submissions that there is no science that cobalt is performance enhancing to horses and harmful to horses.

1. Counsel developed this submission by reference to the particulars pleaded of the substantial truth defence and the evidence that had been given that was relevant to it.  Let me go firstly to the particulars. They state that in respect of the substantial truth defence the defendants rely on the transcript of the show cause hearing to demonstrate what was there said and to demonstrate that it was said negligently they rely on a number of published articles which are listed in the particulars.

1. The negligence is identified as the plaintiff's conduct in making submissions that were careless in two respects. First, making a submission to the effect that there is no science to support the contention that cobalt is performance enhancing to horses. Second, making a submission to the effect that there is no science to support the contention that cobalt is really harmful to horses. 

1. As I have noted, the plaintiff's case is that the imputation that the articles bear is that his submission to the stewards negligently misstated facts and it is clear enough that the misstated facts alluded to are about the state of the ‘science’ because it was said by the plaintiff to be non‑existent in the two identified respects. The plaintiff submitted that the particulars do not meet the sting of the imputation which was that he misstated facts about cobalt in relation to performance enhancement and harm to horses, however, ultimately this submission could only be developed by reference to the evidence and by drawing conclusions about the sufficiency of the evidence.

1. The defendants particularised the relevant science. Sub-paragraph D of the particulars to paragraph 15 of their defence, dealing with the first question of performance enhancement, lists nine articles. One of those articles is in evidence-in-full and the subject of oral evidence from the plaintiff and five other articles were not put in evidence as exhibits but as the subject of oral evidence from the plaintiff, on which the defendants intend to rely. 

1. Sub-paragraph F of the particulars which deals with the second aspect, the question of harm to horses, also lists nine articles, although there is some overlap in these lists. Of the articles relating to harmfulness, one is in evidence in full and the subject of oral evidence from the plaintiff and five others were not put in evidence as exhibits but were also the subject of oral evidence from the plaintiff, on which the defendants intend to rely.

1. So much for the particulars. Turning to the evidence, I note firstly that the evaluation of the evidence is not a question for me, except in the limited sense of whether there is any evidence that would permit a jury to make a relevant finding. On this application, that is whether imputation B is substantially true. I do not accept the submission that only the Mobasheri article, characterised by the plaintiff as not being science, is in evidence in support of the particulars for two reasons.

1. True it is that the other articles particularised are not exhibits for the jury's quiet contemplation, but the pool of evidence is deeper than that and the issues raised by the plaintiff concerning the fragility of the substantial truth defence are ultimately jury questions.

1. First, it is a matter for the jury whether the Mobasheri article is to be characterised as science, in the sense made relevant by the impugned articles and the transcript of the show cause hearing. I am satisfied that is open to a jury, in the sense that the finding could not be said to be perverse to consider the Mobasheri article to be reasonably described as ‘science’. Secondly, the fact that other articles that were the subject of questioning of the plaintiff were not put into evidence as exhibits, does not establish the plaintiff's submission that only the Mobasheri article can be used to demonstrate that submissions made by the plaintiff to the show cause hearing negligently misstated facts about cobalt science.

1. Again, it is a matter for the jury whether the plaintiff's evidence about those articles supports the defendants’ contention that, in the sense made relevant by the impugned articles and the transcript of the show cause hearing, the plaintiff misstated facts about the science. What the jury makes of the plaintiff's answers about the other articles is a matter for it, but I accept the defendants’ submission that there is not a complete absence of any basis whatsoever in that evidence and in the Mobasheri article and the reports about the research of Dr Scollay, for the jury to conclude that the imputation of negligently submitting that there was no science in each identified respect, was substantially true.

1. I am satisfied that it is open to a jury in the sense that to reach such a finding could not be said to be perverse on the basis of the plaintiff's evidence and the exhibits.  Further, the jury will be directed to carefully look at the whole of the transcript of the show cause hearing, as well as the articles that have been included in the exhibits.  The jury will also be directed to carefully consider the oral evidence. It is a matter for them, not me, whether they accept those parts that will be emphasised by the defendants or those parts that will be emphasised by the plaintiff.  The application is refused.

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