HER HONOUR: These are proceedings for defamation between two equestrian polo players. The claim follows an incident which occurred on the polo field at the Arunga Tournament on 16 April 2017 during the third chukka of a match between 'Town and Country' and 'Pondtail Farms' at Windsor Fields.
Following reports by the referees of that match, the parties were called upon to give their accounts of two incidents. In respect of the first, the defendant wrote to the relevant disciplinary body, in short, accusing the plaintiff of having charged at his horse in a manner which the defendant alleged was deliberate and malicious. That email is the first matter complained of in the proceedings. The second incident concerned the defendant's response to the first incident, in particular, the manner in which he confronted the plaintiff after the conclusion of the match. The defendant's account of that incident is the second matter complained of.
The two emails written by the defendant to the disciplinary body reflect a level of strong feeling on the defendant's part as to the nature of the plaintiff's conduct and may certainly be accepted to have been expressed in robust terms. For example, in the first matter complained of, the defendant described the plaintiff's conduct in the following terms:
As he launched his attack I was leaning to the near-side of my horse, bent down trying to intercept the ball. I was completely exposed and defenceless. Had I not caught a glimpse of the approaching Blake-Dyke at the last second and sat back up, the resulting impact could have been incredibly serious.
In the second email addressing the defendant's post-match conduct, he said that he approached Blake-Dyke and "loudly condemned his actions with words that would have included, but not necessarily been limited to" certain expletives I will not repeat in a judgment. That email continued:
Approximately 5 minutes later I started to walk towards the trucks of my teammates parked at the other side of the field, when I saw Blake-Dyke standing by his utility. I decided he needed to be reminded again of my view of his character - given this is a person of severely limited intelligence and rote learning is proven as the best method for learning for his type.
Those short extracts reveal the flavour of correspondence on which the plaintiff sues.
The proceedings are before the Court today for the second listing. The plaintiff seeks to have determined an objection to the defence, as contemplated by cl 16 of the Practice Note SC CL 4. The defendant has pleaded the defence of truth seeking to justify all but one of the many imputations specified by the plaintiff. Following an exchange of correspondence regarding the adequacy of the particulars provided in support of that defence, the plaintiff maintains his objection by reference to a proposed amended defence which, if filed, would provide a consolidation of the previously pleaded defence and the particulars subsequently provided.
Mr Sibtain, who appears for the plaintiff, reminded me of the well-known principles stated by Hunt J in Sims v Wran [1984] 1 NSWLR 317 at 321 as to the content of the requirement to give particulars in proceedings for defamation. There was no contest as to those principles and their application is well understood. The real question is whether the particulars provided by the defendant in the proposed amended defence meet the mark of putting the plaintiff on notice of the case he has to meet and whether they are capable of proving the imputations sought to be justified by the defendant.
Mr Sibtain submitted that the particulars do not provide the plaintiff with sufficient detail to understand when or where the conduct alleged against him is said to have taken place and that he cannot know how to respond to those allegations at trial. I disagree. On the contrary, in my view, the defendant has provided adequately specific particulars meeting the content of the requirement to which I have referred. Further, to the extent that he has failed to do so, it is clear enough, owing to the nature of the events the subject of this dispute, that he has provided the best particulars he is able to provide.
It may be accepted that the propositions sought to be established in the truth defence are, in some respects, large. For example, the plaintiff has pleaded imputations that he is mentally disturbed and irrational, that he regularly engages in mentally disturbed conduct on the polo field and like attributions.
Without descending to the detail of which particulars are relied on in support of which imputations, in short, the particulars provided in support of the defence provide details of a series of separate incidents on different dates when different players allege that the plaintiff, as it is variously expressed, "T-boned" a player on a horse or "rammed" a player on a horse or rode at speeds that varied between 20% to 30% faster than the speed at which another rider on another horse was moving such that the excessive speed was dangerous or potentially dangerous, or rode at angles between 30 degrees to 75 degrees from the forward position of a player on a horse such that riding at such angles was dangerous or potentially dangerous.
Plainly, the description of those events as given in evidence at the trial will inform the extent to which they do, in fact, establish the truth of the imputations pleaded. But in my respectful opinion, the particulars are plainly capable of proving the truth of the imputations and it would be quite wrong of me to withdraw those particulars from the jury at this interlocutory stage.
As to the contention that there is insufficient particularity, Mr Sibtain submitted, for example, that in respect of the primary incident which gave rise to the disciplinary report, where the defendant has alleged that the plaintiff "positioned his horse away from the lineout" and then "kicked his horse and charged directly into the defendant and the horse that he was riding" and that it is to be inferred that the charge was "malicious", that the defendant must provide further particulars to enable the plaintiff to understand how that state of mind (malice) could be attributed to him from the conduct described.
In my view, that is plainly a matter for inference properly left to the tribunal of fact. I note that an aspect of the particularised defence is the contention that, prior to allegedly charging at the defendant in that way, the plaintiff said words to the effect, "I'm sick of this. I'm going to sort this out myself."
It may be accepted that the imputations of mental disturbance and irrationality are pitched at a high level and that there could be a real contest at trial as to whether riding of the kind alleged by the defendant, if proved, goes so far as to prove a state of mental disturbance on the part of the plaintiff.
I would simply observe that the conduct described in the defence is such as, in my respectful opinion, could be regarded by the tribunal of fact as being extremely dangerous and unexplained by the context, namely, a game of sport. What further conclusions may be drawn are a matter for the jury, but I do not think I can properly strike the particulars out on the basis contended for at this stage. For those reasons, I refuse the plaintiff's application.
The plaintiff also objected to some of the interrogatories and one category of discovery sought by the defendant. In the main, however, those disputes were resolved by my ruling in respect of the defence. To the extent that they were not, the position was adequately explained in exchanges during argument and I do not think it is necessary to state any further reasons for the rulings I indicated at the conclusion of argument.
[ARGUMENT AS TO COSTS]
HER HONOUR: Mr Richardson, having been successful without being called upon, seeks an order of the kind contemplated by cl 25 of the Defamation List Practice Note which provides that, in cases in which it appears to the Court that a party has made or opposed an interlocutory application unreasonably and subject to hearing from the parties the Court will consider making an order under r 42.7(2) of the Uniform Civil Procedure Rules that the opposing party's costs of the application be payable forthwith.
For the reasons I have just given in my judgment and as revealed by my exchanges with counsel, I certainly think the application was extremely optimistic. The question whether it was made unreasonably must be informed not only by the strength of the arguments put by counsel but the nature of the proceedings and, in particular, the fact that these are two individuals in dispute over emails written to a disciplinary body that governs the sport each voluntarily plays.
With some reluctance I must express my view that the application was unreasonable and I think this is a case of the kind in which an order for payment of costs forthwith should be made. I order that the plaintiff pay the defendant's costs of the application, such costs to be assessable forthwith.
[2]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 15 November 2017