Sheales v The Age (Ruling No 2)

[2017] VSC 151

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 & ORS	Defendants

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JUDGE:	JOHN DIXON J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	22 March 2017
DATE OF RULING:	22 March 2017  (Reasons published 29 March 2017)
CASE MAY BE CITED AS:	Sheales v The Age (Ruling No 2)
MEDIUM NEUTRAL CITATION:	[2017] VSC 151

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PRACTICE AND PROCEDURE — Defamation trial before jury – Defendants’ application during final address to amend particulars in respect of defence of substantial truth — Plaintiff’s statements made during cross-examination clearly relevant to defence – Plaintiff’s answers not anticipated – No substantial prejudice – Leave granted.

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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. Last Wednesday morning, during the course of their final address, the defendants applied for leave to amend the particulars given in paragraph 15 of their defence of the plea of substantial truth taken in respect of imputation (B), which was:

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 defendants sought to add further particulars that if the plaintiff’s evidence at trial is accepted, then his statements before the show cause hearing on 29 July 2015,

(a)   that ‘the science of cobalt … [i]s not settled in any way’;

(b)   that ‘the cobalt threshold in Canada is twice the threshold here’; and

(c)    that ‘the Canadians had implemented a cobalt threshold that was four times the threshold in Victoria’;

are misstatements.

1. Leave was granted for reasons to be later announced. These are those reasons.

1. The defendants sought to rely on admissions made by Mr Sheales in cross examination that these three statements made at the show cause hearing were misstatements, and submitted that there was evidence before the jury that would have permitted that conclusion to be drawn. 

1. In relation to the first statement, the admission that it was a misstatement was made by reference to material in evidence that revealed the view of an American expert Dr Mary Scollay, which Mr Sheales characterised as conclusive evidence that cobalt chloride was not performance enhancing via the EPO mechanism. Mr Sheales stated that, despite being aware of it beforehand, he had not referred to the Scollay material before the show cause hearing because it was his best point and he wanted to keep it up his sleeve.  For that reason the defendants had no notice of the Scollay material, which was not discovered, or how it would be deployed in this trial until Mr Sheales got in the witness box. It appeared that the internet article was only obtained and produced in court as a result of propositions put in cross-examination. When the issue was raised in that context, Mr Sheales maintained that Dr Scollay virtually ruled out that cobalt was performance enhancing by the predominantly accepted mechanism and that his state of mind at the stewards' hearing was that cobalt chloride was not performance enhancing in horses or, alternatively, was not performance enhancing by the EPO theory.  His counsel re-examined on this point. I am satisfied that the jury could reach the conclusion contended for by the defendants.

1. In relation to the second and third statements, counsel submitted that Mr Sheales unequivocally admitted that his assertions made to the stewards about how the Canadian threshold for cobalt detection compared to the Victorian threshold, were misstatements. Again, I am satisfied that the jury could reach that conclusion.

1. The defendants submitted that there were four reasons for granting leave. First, the statements were plainly relevant to the substantial truth defence and having regard to the evidence the jury had heard, it would be artificial to exclude them. Second, the defendants could not, at an earlier time, reasonably have anticipated the admissions made by the plaintiff when he gave evidence on Monday. The application was promptly made. Third, the plaintiff relied on the Scollay material first in re-examination and then in support of an application that the substantial truth defence be withdrawn from the jury. Again, it would be artificial not to permit the defendants to rely on the further particulars. Finally, there was no prejudice. The defendants had not addressed on the substantial truth defences and the plaintiff’s address was still to come. The jury was unaware of the debate that was a matter for submissions.

1. The plaintiff asserted that he would be prejudiced by the further particulars as he would, as part of his case, have called an expert in relation to the question of whether the science of cobalt is not settled and would have conducted the case on a completely different basis, namely that Mr Sheales' state of mind was not relevant; rather, the question was what the science says. Secondly, the plaintiff submitted there was no explanation for the late application, as the defendants could have pleaded the first statement from the show cause transcript and relied on expert evidence that it was a misstatement. Finally, it was submitted that the second and third statements do not meet the sting of the imputation, as the thresholds have nothing to do with horse performance or welfare.

1. I am satisfied that the proposed particulars could not have been pleaded before Tuesday morning at the earliest. The defendants will be confined to reliance on the Scollay material in respect of the first statement and will not be permitted to go further than that. In respect of the remaining particulars, I consider that the sting of the imputation goes to the issue of horse welfare and whether the proposed particulars meet the sting of the imputation is a contestable issue properly to be left to the jury. There is a basis for the jury to conclude that there is a connection. I do not accept that the defendants should have anticipated the plaintiff’s answers about the Canadian threshold levels. It was open to the jury to conclude, on the basis of Mr Sheales having made unequivocal statements to the stewards in circumstances where he ‘didn't know anything at all’ about the difference between testing in urine and testing in blood plasma, that his statements were at the least negligent misstatements.

1. I do not accept that the plaintiff is prejudiced because he would have run his case on a completely different basis. I am not persuaded that he would have run his case in a different way at all, particularly after hearing and observing the plaintiff when giving his evidence. The plaintiff served an Order 44 statement in respect of an expert witness and included the expert in a list of possible witnesses to be called during his case. Although the content of that report was never opened, it is clear that the plaintiff made a forensic decision not to call expert evidence, after these matters were raised during the plaintiff’s evidence. I am not persuaded that the forensic decision had anything to do with the subject matter of the proposed further particulars.

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