Waterhouse v Nationwide News Pty Ltd

[2001] NSWSC 723

CITATION:	Waterhouse v Nationwide News Pty Ltd [2001] NSWSC 723
CURRENT JURISDICTION:	Common Law
FILE NUMBER(S):	SC 20386/01
HEARING DATE(S):	10 August 2001
JUDGMENT DATE:	27 August 2001
PARTIES :	Gai Waterhouse - Plaintiff Nationwide News Pty Ltd - Defendant
JUDGMENT OF:	Simpson J

COUNSEL :	Mr C Evatt - Plaintiff
SOLICITORS:	Mr T Blackburn - Defendant
CATCHWORDS:	Defamation - imputations
LEGISLATION CITED:	Defamation Act 1974
DECISION:	Reasons for rulings on imputations.

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
Defamation List

SIMPSON J

27 August 2001

WATERHOUSE v NATIONWIDE NEWS PTY LTD

Reasons

HER HONOUR :

1    The plaintiff, Gai Waterhouse, has sued the defendant, Nationwide News Pty Ltd, in defamation as a result of a publication in “the Daily Telegraph” on 7 May 2001. She alleges that no less than thirteen defamatory imputations were conveyed by the publication. The defendant raised a number of objections to the imputations pleaded. Argument took place and I delivered rulings on 10 August 2001. The defendant requested reasons for my rulings. My reasons follow.

2    The matter complained of appears to be an opinion piece, which may, from its content, have appeared in the sports pages, although this does not emerge from the pleadings. It appeared under the heading “Why run risk with Robbie”. Thirty two short paragraphs, comprised numbered for the purposes of the pleading, comprise the piece. In the first paragraph the principal subject matter of the article is identified as a person called Robbie Waterhouse who, it is suggested, may return to bookmaking after an enforced absence as a result of “race fixing”.

3    The author of the article, who is not named, clearly states his or her opposition to Waterhouse’s return. He or she discusses in general terms, the sport of horse racing, its image and ethics.

4    Although it is not stated explicitly, it is a fair inference, from certain passages in the article, that the plaintiff is the wife of Robbie Waterhouse. She (the plaintiff) is first mentioned in the eleventh paragraph of the article, where she is described as a person:

“who provides a great service to punters with her unmatched strike rate…”

5    In the paragraph numbered 13, the author writes:

“So much of what Gai has achieved could be undone by fears that her husband, on a bookie stand, could be benefiting from inside information again.
T J Smith used to annoy the hell out of punters enough with stable outsiders winning. Try the same with Gai’s old man swinging a satchel.”

6    The author then goes on to mention “a couple of recent incidents”. These concern what the author obviously considers to be surprising, and unexplained, (and suspicious) results in specific races. This is followed by a paragraph which reads:

“No matter what the explanation that just gives punters the creeps. So magnify the groans over these sorts of things, with the suspicions - founded or unfounded - that Robbie might be pulling strings.”

7    A little later there is mention of “worries about race fixing and money laundering”.

8    The overall tenor of the article, so far as it concerns the plaintiff, is undoubtedly favourable. However, it contains the unmistakable suggestion that she would be vulnerable to her husband’s dishonest disposition if he were permitted to return to bookmaking.

9    One matter of contention was disposed of at the commencement of the hearing. Counsel for the plaintiff acknowledged that the pleading would sit on firmer ground if some, or all, of the imputations relied, alternatively to the natural and ordinary meaning of the words published, on extrinsic facts. He announced his intention, subject to leave being granted, of amending the statement of claim to incorporate an allegation that the imputations(s) arose by way of true innuendo. This deflected some of the argument addressed to the pleading. The rulings I made were in part based upon the recognition that the statement of claim would be so amended.

Imputation (a)

10    The first imputation was initially pleaded as:

“(a) The plaintiff is a dishonest racehorse trainer.”

11    However, during the course of argument, leave was granted to the plaintiff to amend this imputation so that it reads:

“The Plaintiff is dishonest as a racehorse trainer.”

12    This amendment was made to accommodate the well founded criticism made on behalf of the defendant that the imputation, as originally formulated, was too broad and failed to specify the precise act or condition said to be imputed to the plaintiff by the matter complained of. “Dishonesty”, it was said, could be dishonesty related or unrelated to the business of racehorse training.

13    The amendment overcomes that complaint about the imputation. However, other complaints were also made, including a complaint that the imputation is incapable of arising on a fair and reasonable reading of the matter complained of. The principal basis for this argument was that the main focus of the article was not the plaintiff, but Robbie Waterhouse, and that, in the first paragraph extracted above, the plaintiff was written of in glowing terms. That is true, but the publication is not limited to paragraph 11. It is only two paragraphs later that the suggestion is made that what she had achieved could be undone by fears that her husband, as a bookmaker, could benefit again from having access to inside information. This, in my view, is sufficient to convey an imputation of dishonesty on the part of the plaintiff. In this regard it is to be noted that the imputation is framed in terms of dishonesty - that is, dishonesty in nature or by character - and not in terms of having committed a dishonest act. But, in any event, the references to what are obviously intended to be seen as questionable outcomes of races, are clearly, in my view, capable of conveying the imputation of dishonesty as a racehorse trainer. I accordingly declined to strike out the first imputation.

Imputation (b)

14    The second imputation is:

“(b) The Plaintiff fixes horse races”

15    The argument put on behalf of the defendant was that, while the article states, in clear terms, that Robbie Waterhouse had been penalised in the past for race fixing, nothing of the sort is conveyed about the plaintiff. It is, again, only necessary to resort to the paragraphs outlining the surprising or questionable results to see that the matter complained of is capable of conveying this imputation. I declined to strike out this imputation.

Imputation (c)

16    The third imputation is framed as follows:

“(c) The Plaintiff as a racehorse trainer is likely to cheat punters”.

17    The complaint made about this imputation is that it is insufficiently precise, and potentially has a number of different meanings. I do not accept this criticism. In my opinion the meaning of the imputation is clear.

18    In relation to this imputation also it was argued that the matter complained of lacked the capacity to convey it. Once again, I rejected the contention. The assertion that what the plaintiff had achieved could be undermined by fears that her husband, as a bookmaker, could benefit from inside information, is sufficient to give rise to the imputation. When that is coupled with the examples already mentioned, of surprising results, there is no doubt in my mind that the matter complained of is capable of conveying the imputation. This imputation was allowed to stand.

Imputation (d)

19    The next imputation, numbered (d), is framed as follows:

“The Plaintiff would be likely to conspire with her husband to cheat punters.”

20    The defendant argued that the matter complained of is incapable of conveying an imputation framed in these terms. I disagreed. In my opinion those passages to which I have already referred - particularly that which should suggest that her good work could be undone by her husband’s benefiting from inside information, particularly when put together with the later suggestion that Robbie Waterhouse might already have been “pulling strings”, is ample material on which to found this imputation.

Imputation (e)

21    The imputation numbered (e) is put as an alternative to the previous imputation, and asserts that the plaintiff is reasonably suspected of conspiring with her husband to cheat punters. For the reasons given in relation to imputation (d), in my opinion it is available on the matter complained of.

Imputations (f), (i) and (g)

22    The plaintiff claims that the matter complained of conveys the imputation that:

“(f) The Plaintiff is incompetent as a trainer because her horses run inconsistently.”

23    The challenge is expressed to be to the form of the imputation, because incompetence is not established, or not necessarily established, by inconsistent running of horses. In fact, as her position was explained during argument, the plaintiff seeks to rely on imputation (f) as an alternative to imputations (i) and (j) subsequently pleaded. These imputations are:

“(i) The Plaintiff as a racehorse trainer was a party to her racehorse ‘Assertive Lad’ not running on its merits in the 1,500 m George Rider at Rosehill.”
“(j) The Plaintiff as a racehorse trainer was a party to her racehorse ‘HaHa’ not running on its merits in a Warwick Farm barrier trial.”

24    These imputations, also, were the subject of objection. In my opinion there is material in the matter complained of capable of conveying these imputations and I declined to strike them out. I had some concerns as to whether the matter complained of was capable of conveying, as an alternative, incompetence because of inconsistent running, but, ultimately, I concluded that there was sufficient material in the matter complained of to support the imputation. I declined to strike out any of these imputations.

Imputation (g)

25    Imputation (g) is framed as follows:

“The Plaintiff is dishonest because her stable outsider horse beat the favourite (Excellerator”).

26    Again, the complaints were as to form and capacity. I am satisfied that the passages in the matter complained of outlining the various race results is capable of conveying a specific imputation of dishonesty. Imputation (g) stands.

Imputation (h)

27    Imputation (h) was framed as follows:

“If her husband became a bookmaker the Plaintiff would be likely to give him inside information which would benefit him and disadvantage the average punter.”

28    Various criticisms were made of this imputation, but I was satisfied that it did not differ in substance from imputation (d)and accordingly struck it out on that basis. It was unnecessary to consider the other criticisms.

Imputation (k)

29    Imputation (k) was:

“The Plaintiff as a racehorse trainer was a party to stable outsiders winning races to the disadvantage of punters.”

30    During the course of argument counsel for the plaintiff accepted that the imputation, as framed, is not capable of being defamatory. It was withdrawn.

Imputation (l)

31    Imputation (l) is in the following terms:

“The Plaintiff would be likely to fix races if her husband became a bookmaker.”

32    Initially, I was of the view that imputation (l) did not differ in substance from imputations (d) and (h). However, I was persuaded that a trainer might cheat punters by means other than fixing races, and that, accordingly, sufficient difference existed to warrant this imputation going to the jury.

Imputation (m)

33    Imputation (m) is:

“If her husband became a bookmaker the Plaintiff would be likely to allow him to pull the strings as to the running of her horses in races.”

34    In my opinion, for reasons already expressed, the publication is capable of conveying this imputation. I allowed it to stand.

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Last Modified: 09/05/2001