Pollack v Waterhouse & Anor [1999] NSWSC 1053 | Case summary

ARTHUR HARRIS (Second Defendant) JUDGMENT (Imputations - capacity - form - difference in substance - absolute privilege - quasi-judicial tribunal - Thoroughbred Racing Board) 1 The plaintiff sues the defendants for a multiplicity of causes of action; defamation, abuse of process and conspiracy to the defame and to abuse the process of the Thoroughbred Racing Board ("TRB"). 2 As starting point is Annexure A to the Statement of Claim (reproduced as Annexure A to these reasons). It is contended that on 9 September the first defendant (Waterhouse) published that material as follows (paragraph 6): "(a) Members, officers and staff of the NSW Thoroughbred Racing Board ("the Board"). (b) Mr R Stitt QC (Counsel retained by the Board). (c) Mr A Hartnell (a solicitor retained by the Board). (d) Mr T King (Chief Executive Officer of the Australian Jockey Club). (e) Mr Arthur Harris and his solicitors (Verekers) and other persons the identity of whom are as yet unknown to the Plaintiff". 3 It is next contended that at sometime not within the knowledge of the plaintiff Waterhouse published the material in Annexure B (which is annexed hereto). It is alleged that the material was part of an affidavit made by Waterhouse but "not filed or read in Court". It is said that Waterhouse published and gave a copy of that affidavit to the second defendant (Harris) and to "his solicitors". Thus in relation to Annexure B the first publication relied upon is by Waterhouse to Harris. 4 It is next alleged that on 12 September 1997 Waterhouse published Annexure B (or re-published it) to "members, officers and staff of the Board". That averment in paragraph 5 of the Statement of Claim is amplified by the Particulars of Publication as follows: " Particulars of Publication The affidavit containing the material complained of was published by the first Defendant to the second Defendant and his solicitors with the knowledge that the said affidavit was likely to be re-published by the second Defendant to members, officers and staff of the Board and to other persons and the second Defendant duly published same to the Board, its officers and staff. The first Defendant authorised and approved the second defendant so publishing the said parts of the affidavit". 5 It is not until paragraph 7 of the Statement of Claim that the allegation of defamation is made against the second defendant Mr Harris. It is alleged that on 12 September 1997 he published Annexure B as follows: " Particulars of Publication The second Defendant published the material complained of as set out in annexure 'B' being part of a 70 page written submission to members of the Board, its officers and staff. The second Defendant also published the material to other persons the identity of whom are not yet known to the Plaintiff". 6 In paragraph 9 the plaintiff alleges that Waterhouse abused the process and procedures of the TRB as follows: " Particulars (a) In about January 1996 the plaintiff had made a statutory declaration in respect of proceedings involving Robert Waterhouse and the Australian Jockey Club. This statutory declaration was critical of the first Defendant. (b) The first Defendant published to the Board a statutory declaration dated 9 September 1997. This declaration contained the material set out in annexure 'A'. (c) The supposed purpose of that part of the statutory declaration being annexure 'A' was for the providing of information to the Board about the application by Robert Waterhouse to have his warning off set aside. (d) The predominant and real purpose of the first Defendant in including annexure 'A' in his statutory declaration was to discredit the plaintiff so that if the plaintiff's statutory declaration was read to members of the Board it would not be accepted". 7 On 12 September 1997 the plaintiff alleges Harris abused the process and procedures of the TRB as follows: " Particulars (a) On 12 September 1997 the second Defendant published written submissions to the Board opposing the Application of Robert Waterhouse to have his warning-off set aside. (b) The second Defendant included the material set out in annexure 'B' in the said written submissions. (c) The second Defendant's publication of the material set out in annexure 'B' was not for the purpose of assisting the Board in considering the merits of the Application made by Mr Robert Waterhouse but for the predominant and real purpose of denigrating and discrediting the Plaintiff and/or to assist the first Defendant in his efforts to discredit the Plaintiff so that the Plaintiff's statutory declaration referred to in 9(a) above, if read to the Board, would not be accepted". 8 It is then next alleged (in paragraph 11 of the Statement of Claim) that between 1 September and 12 September 1997 "and at other times" the first and second defendants conspired "to defame the plaintiff and to abuse the process and procedures of the Board for the purpose of causing injury to the plaintiff and his reputation". This allegation is particularised as follows: " Particulars (a) At the instigation of both Defendants the first Defendant supplied to the second Defendant a copy of annexure 'B' so that the second Defendant could include same in his submissions to the Board dated 12 September 1997 (see paragraphs 3-8 above). (b) The Defendants in consultation with one another and jointly submitted annexures 'A' and 'B' respectively to the Board (see paragraphs 9-10 above). (c) The Defendants knew when they published annexures 'A' and 'B' to the Board that such publication was an abuse of the process and procedures of the Board". 9 The plaintiff claims damages, special damages and aggravated damages in respect to the counts in defamation and in relation to the counts of abuse of process and conspiracy he claims punitive damages. 10 On 12 December 1997 the Court dealt with an application by the defendants in respect of the imputations pleaded as giving rise to the causes of action in defamation. The Court also dealt a contested application as to whether or not pursuant to SCR Pt 31 r 2 there should be a separate trial as to whether or not the various publications complained of where protected by absolute privilege. The judgment delivered by me on 12 September 1997 ordered that there be a Pt 31 hearing. 11 On or about 11 December 1997 a Notice of Motion was filed (on behalf of Waterhouse and adopted by Harris) claiming relief of the kind I have outlined. On the resumed hearing on 6 March 1998 the defendants also indicated that they proposed to seek to have struck out the claims for abuse of process. 12 With respect to the imputations said to arise from Annexure A, in the course of argument on 12 December 1997 those to be relied upon by the plaintiff resolved themselves into the following: (a) The plaintiff knowingly made a false statutory declaration. (b) The plaintiff solicited a bribe. (c) The plaintiff agreed to accept a bribe. (d) (abandoned) (e) The plaintiff in breach of his obligation as a solicitor conspired with one client to make a false statutory declaration about another former client. 13 The argument as to capacity of the annexure A to convey these imputations, in my view, easily can be disposed of. 14 Imputation (a) is clearly capable of arising and shall go to the jury. 15 This imputation clearly encapsulates an essential charge made in the matter complained of. 16 As to imputation (b), I find that this imputation is incapable of arising. The matter complained of in no way suggests that the plaintiff "solicited", that is, sought a bribe. He was offered a bribe and accepted it. The matter complained of certainly indicates that he had to take certain steps to recover the money consequent upon his agreement to accept the bribe. There is no suggestion however that it was the plaintiff who initiated the corrupt agreement. Imputation (b) will not go to the jury. 17 Imputation (e), on my reading of the matter arguably can arise. 18 In relation to annexure B the imputations relied upon by the plaintiff are as follows (paragraph 8): "(a) The plaintiff issued a statement of claim against the second Defendant knowing that the said claim falsely alleged that the second Defendant owed some $155,000. (b) The plaintiff conspired with members of the Waterhouse family to abuse the process of the Court. (c) The plaintiff conspired with members of the Waterhouse family to sue the second Defendant for gambling debts when he knew that the second Defendant was not liable to pay them". 19 It is contended by the defendants that the imputations do not differ in substance. 20 I am of the view that imputation (a) is clearly capable of arising and asserts a single act on the part of the plaintiff in the issuing of the Statement of Claim in which the false allegation is made. Also am I of the view that imputation (c) is a separate and distinct charge against the plaintiff that that which he did as set out in imputation (a) was consequent upon the conspiracy with members of the Waterhouse family. Imputation (b) adds nothing to either (a) or (c) and does not differ from either or both. Imputation (b) is struck out a contravening SCR Pt 67 r 11(3). 21 Imputations 2(a), (c) and (e); 4(a) and (c); 6(a) and (c) and 8(a) and (c) are capable of arising. Imputation 4(b), 6(b) and 8(b) are struck out. 22 I turn to the substantive application with respect to absolute privilege which was argued principally on the pleading but also on the basis of Exhibit A. The latter is made up of a letter dated 25 August 1997 from the TRB to Waterhouse. It refers to an earlier letter of the first defendant of 22 August "seeking to give evidence before the Board at its private hearing concerning the warning off of Mr R W Waterhouse. The hearing is scheduled for 11-12 September 1997". The first defendant was asked to provide a written statement of any evidence to the Board in advance of the hearing; he was told that he would be expected to give evidence personally and be subject to examination on the evidence by members of the Board and by counsel assisting the Board and Mr R Waterhouse. He was entitled to have his own legal representative present to assist with the presentation of evidence and to make submissions as to the conclusions which should be drawn from that evidence. It was pointed out to the first defendant that neither he nor counsel assisting would be permitted to be present during the hearing of evidence or submissions from other witnesses including Mr R Waterhouse. Documents could be tendered by the first defendant relevant to the matter before the Board. The first defendant was not entitled to inspect documents tendered by others. The second part of Exhibit A is Mr David Waterhouse's (the first defendant) reply which is a letter indicating his preparedness to give evidence and providing the members of the NSW TRB with statutory declarations from 1995 and indicating that he would be relying upon evidence given to the AJC in December of that year. Statutory declarations in response to declarations prepared by other members of the first defendant's family were also submitted with the letter of 9 September 1997. 23 It was not in dispute before me that the matter with which the TRB was concerned was an application by Mr Robert Waterhouse to have lifted a "warning off" which had it been imposed by the then AJC in the previous decade, arising as I understand it from what is known as the "Fine Cotton Affair". 24 It was argued for the defendants that a starting point in respect of which evidence was not required was the status of the industry of the "Turf", in New South Wales, it being one of a multi-billion dollar nature involving hundreds of thousands of people in employment and as followers. It can hardly be disputed that horse racing is "big business in New South, big business for New South Wales in revenue terms" and "big business for substantial proportion of the State's population". As a matter of general knowledge and common sense, a proposition to this effect my be accepted. 25 The submissions in support of the present application are concerned with the operation of recent legislation in this State being formerly known as the AJC Principal Club Act 1996(No. 37) as amended by the AJC Principal Club Act 1997 (No. 24). The legislation is now known as the NSW Thoroughbred Racing Board Act, 1996. 26 The historical origins of "warning off," I am informed by counsel, are to be found during the reign of Charles II. More relevantly it is the Australian Jockey Club Act 1873 s 32 of which laid down appeal procedures to be followed by the Committee of the AJC in cases of disqualification and "warning off" (s 32(1)(a)(i) and (ii) to (v)). The ACJ Act did not define "warning off" but by s 32(5)(a) that Act adopted the terminology of the Australian Rules of Racing. A copy of those rules was provided to me without objection and in summary AR1 defines "warning off" as relating to a person who is not permitted to enter a racecourse under the control of a body warning him off. AR4 provides that acts and decisions of the Committee are final and conclusive; AR7 identified the wide-reaching powers and functions of the Committee in respect of horse racing; AR175 identified the offences or conduct which may cause the Committee to impose penalties. AR182 set out the substantial impediments suffered by a person who was disqualified which go much further than merely to bar such a person from racecourses and AR183 provided that a warned-off person is subject to the same conditions and restrictions as a disqualified person. AR183E imposed further restrictions upon a warned off person and that there was available to the Committee pursuant AR196 power to impose a fine, in addition to warning off, of up to $50,000. 27 The new legislation set up the TRB and vested in it various functions and powers. By s 13(a) the Board was given all of the functions previously exercised by the AJC and the Committee under the Rules of Racing. The legislation also gives wide powers to the Board: s 14(1) providing that the Board has power to do "all things that may be necessary or convenient to be done for or in connection with" the exercise of its functions. Those functions include, pursuant to s 13(1)(b), the control and supervision and regulation of horse racing in the State. The powers include supervision of the activities of race clubs, persons licensed by the Board and "all other persons engaged in or associated with racing" (s 14(2)(c)). It may prohibit a person from attending at or taking part in a race meeting (s 14(2)(k)) and take such steps and do such acts and things as are incidental or conducive to the exercise in the powers and performance of its functions (s 14(2)(w)). 28 The Board is specifically empowered by s 14(2)(d) to inquire into and deal with any matter relating to racing and to refer any such matter to Stewards or others for investigation and report. 29 It was pursuant to the powers created by s 14 to enable the performance of the functions referred to in s 13 that the Board was authorised to conduct its inquiry into the matter raised by Robert Waterhouse for the lifting of his "warning off". To that inquiry both the defendants were invited to any provided material including the matters complained of to the Board and parties connected to the inquiry as alleged. 30 The powers exercised by the TRB are exercised pursuant to statute and the authority to conduct hearings, the power to enforce its rulings and penalties have been imposed on the Board by Parliament. Those powers cannot be exercised otherwise than in conformity, it is submitted, with the principles of natural justice extending procedural fairness to all directly affected. 31 It is submitted that as the present action clearly demonstrates these functions cannot be performed unless those performing them and others participating in them are free to do so without the fear of the threats or retribution in the form of the institution of civil proceedings. 32 In Mann v O'Neil (1996-7) 191 CLR 204 at 211-14 the High Court (Brennan CJ, Dawson, Toohey & Gaudron JJ) spoke of the fundamental principles to be borne in mind in the consideration of the issue before me: "It is well settled that absolute privilege attaches to all statements made in the course of judicial proceedings, whether made by parties, witnesses, legal representatives, members of the jury or by the judge. It extends to oral statements and to statements in originating process, in pleadings or in other documents produced in evidence or filed in the proceedings. It is said that it extends to any document published on an "occasion properly incidental [to judicial proceedings], and necessary for [them]" It is also settled law that absolute privilege attaches to statements made in the course of quasi-judicial proceedings, ie proceedings of tribunals recognised by law and which act "in a manner similar to that in which a Court of justice acts". Various considerations are relevant to the question whether proceedings are quasi- judicial. However, the overriding consideration is "whether there will emerge from the proceedings a determination the truth and justice of which is a matter of public concern ". The privilege extends to members of tribunals and to "advocates, litigants, and witnesses". And its scope is no less extensive in other respects than in the case of statements made in the course of judicial proceedings. It is sometimes said that absolute privilege is founded on public policy considerations. It may be that, so far as concerns communications between officers of State in the course of their official duties, absolute privilege attaches by reason of broad considerations of public policy and convenience. However, a more precise basis was identified for that aspect of the privilege in Gibbons v Duffell , it being said in that case that absolute privilege attaches because it is "indispensable to the effective performance of ... official functions."… And absolute privilege attaches to statements made in the course of judicial proceedings because it is an indispensable attribute of the judicial process. It is necessary that persons involved in judicial proceedings, whether judge, jury, parties, witnesses or legal representatives, be able to discharge their duties freely and without fear of civil action for anything said by them in the course of the proceedings. Were civil liability to attach or be capable of attaching, it would impede inquiry as to the truth and justice of the matter and jeopardise the "safe administration of justice". It may be that the various categories of absolute privilege are all properly to be seen as grounded in necessity, and not on broader grounds of public policy. Whether or not that is so, the general rule is that the extension of absolute privilege is "viewed with the most jealous suspicion, and resisted, unless its necessity is demonstrated". Certainly, absolute privilege should not be extended to statements which are said to be analogous to statements in judicial proceedings unless there is demonstrated some necessity of the kind that dictates that judicial proceedings are absolutely privileged". 33 (See also Trapp v Mackie (1979) 1 WLR 377; Oliver v Bryant Strata Management Pty Limited (1977) 41 NSWLR 514 at 519.) 34 A submission was made that the present Board was created by the 1996 Act and the amendment Act 1997 which came into effect on 25 June 1997. Not only were important duties imposed upon it by the Statute, but that it overtook or usurped those functions previously performed by the Committee of the AJC (see s 13(1)(a) and (3)). The Act provides that the Board neither represents the Crown nor is directly subject to control by or on behalf of the government and thus, is it endowed with an independent status and integrity in the performance of its functions. 35 Section 7 deals with eligibility for membership of the Board containing grounds of disqualification of a kind that are to be expected to be applied in the establishment of the Board to which it was intended to entrust matters of "public concern". Section 13 and 14 deal with the functions and powers of the Board as I have referred to above. 36 The Board has been not merely recognised by the law but specifically become a creature of statute to supervise horse racing in this State. Special provisions have been made to deal with the status of the Board's subsidiary creature namely, the Appeal Panel: see Part VI in Section 43. 37 It is acknowledged for the defendants that what the legislation has failed to deal with is the status of the Board when an application comes before it otherwise than by way of an appeal. When the Board is required to hear applications such as that in issue namely, the application by Robert Waterhouse to have his "warning off" lifted and to "judge/determine" that issue, the submission is made that it is acting as a tribunal recognised by law in all the senses to which reference is made by the High Court in Mann notwithstanding that its status has not been specifically defined by the legislation. 38 The procedures adopted by the Board or sought to be adopted in Exhibit A are akin to those of a Court of law. It was to proceed by way of a hearing; witnesses were to have been called; witnesses' evidence was required to be provided first to the officers of the Board in statement form no doubt for the assistance of the Board, its counsel and solicitors and parties interested in the Board's hearing especially Robert Waterhouse. It can be clearly inferred from the correspondence that witnesses were subject to examination and cross-examination; documents could be tendered by them and submissions made by those witnesses. 39 It is acknowledged that normally the hearings of a Court of law be public (see Scott v Scott (1913) AC 417; Nationwide News Pty Limited v District Court of NSW (1997) 40 NSWLR 486). I am informed, and will take it as no more than that, that apparently the very hearing fixed for September 1997 was "aborted" by reason of concern that members, counsel, witnesses and others might be subjected to law suits or by reason of concern as to whether or not absolute privilege applies to its functions in the requisite sense. It is thus contended that the very fears, if they were fears, that brought about the suspension of the hearing have been realised by the institution of these very proceedings. The "information" as to the suspension of the hearing however cannot play a determinative role in the coming to a conclusion as to whether the publications upon which these defendants have been sued are such as to attract absolute privilege. The point is made however that the mere fact that the tribunal sits "in camera" is equally not determinative that it is not a tribunal which would otherwise attract the protection of absolute privilege to its proceedings. 40 What is here submitted is that it is unarguable that the proceedings are concerned with the determination of the truth and justice of a matter of public concern. The matter of public concern is, shortly stated, the integrity of the horse racing in New South Wales. That public concern should not be infected by there being permitted to participate in it someone who by reason of his character and conduct (if that be the case), could legitimately give rise to an apprehension in the public as to the integrity of this critically important industry. It was argued that the public is entitled to be protected from such a person by the functioning of the Board in a "supervisory" role akin to that of this Court itself in protecting the public insofar as possible from the incompetence or improprieties of members of the legal profession (see Re Pempleton (1981) 1 NSWLR 1 at 7G-8A). 41 The decision to "warn off", whether with or without a fine, or to refuse to lift the "warning off", amount to the same thing, it is argued, and represents the most severe sanction against a person which can be imposed by the Board or under the new regime, the Appeal Panel. It is the equivalent of the "striking off" of a legal practitioner. An appeal to the Appeal Panel does not appear from s 42 to exist as of right from a decision to "warn off any person" (s 42(1)(a)), unless that section can be construed to include the determination by the Board of an application to have lifted a pre-existing "warning off". The appeal panel can sit in camera or in public, the former when it considers it necessary to do so in the public interest or to protect the safety of any person (s 43(4)). As is not uncommon, it is not bound to act in a formal manner, nor bound by the rules of evidence and may inform itself on any matter in any way that it considers to be just and "is to make its decision on the real merits and justice of the case and is not bound to follow strict legal precedent" (s 43(3)(c)). 42 Thus far notwithstanding the legislation's hiatus in regard to the pre-existing "warning off" order and the availability of the option, for example, in the Appeal Panel to hear matters in camera or in public, the "public concern" component must be the subject of recognition in the context of principle. 43 The extent of the privilege covers all matters which are done as part of the proceedings being conducted by the TRB. If its exists it extends to what is said by the person or persons occupying the positions of Board members, the parties, counsel or witnesses; it includes the contents of all documents put into evidence. The privilege attaches to everything done from the commencement of the proceedings onwards including all documents brought into existence for the purposes of those proceedings and is antecedent to cover the making of statements by witnesses to a solicitor for the purposes of identifying the evidence the witness is able to give: Watson v M'Ewam (1905) AC 480 (see Gatley, Libel & Slander 8th ed para. 385; Spencer Bower, The Law of Actionable Defamation 2nd ed. Article 28). It is thus submitted that the publication to the Board and its staff, its counsel and solicitor of material identifying the evidence which the two defendants were prepared to give at the hearing and which was given that the invitation of the Board itself, falls within the umbrella of the privilege. It is to be taken that the body which imposed the "warning off" and which I am informed refused all previous appeals and like applications by Robert Waterhouse, namely the AJC, had a special interest in the application which he had then made to the Board; it was a legal person with a special and direct interest in the proceedings before the Board which would obviously be entitled to be heard on the application (see John Fairfax & Sons Pty Limited v Police Tribunal of NSW & Anor (1986) 5 NSWLR 465 at 482C-D), and thus the publication to its Chief Executive Officer, Mr King, should also be protected. 44 It can be seen that special emphasis is placed by the defendants on that component of principle enunciated by the High Court in Mann concerning a determination the truth and justice of which is a matter of public concern. I hasten to add that this was not at the expense of the components of proceedings of tribunals "recognised by law" and which act in a manner similar to that in which a Court of justice acts. 45 For the plaintiff Mr Rollinson did not "pretend" that the description of the TRB for the purpose of this case is a tribunal could be questioned. He did not "pretend" that it is other than one recognised by law; it is established by law. He did not "pretend" that the TRB is not capable of acting in a manner similar to that of a court of justice. The point Mr Rollinson made was that there was no obligation on that tribunal to act in a manner in which a Court of justice acts in the disposition of the Robert Waterhouse inquiry or indeed, in any other matter. The functions of the Board are as set out in s 13. The powers of the Board are set out in s 14. Section 19(1) provides that the Board "may regulate its proceedings as it considers appropriate subject to this section". (The section then goes on to deal with the requirement for quorum and voting.) 46 The Board may elect to act in a Court-like manner and it is conceded by the plaintiff that there is evidence in this case that to some extent it has elected, in the disposition of the Robert Waterhouse matter, to proceed in a Court-like manner. However that is an exercise in free choice on the part of the Board of which it can repent at any time for any reason. Even if it be the case as conceded by the plaintiff that for the Robert Waterhouse matter the Board has chosen to act in a manner similar of that of a Court of justice, its continuing to do so is entirely in the hands of the Board. 47 Further it is acknowledged that any change in that procedure will, of course, give rise to considerations of natural justice or procedural fairness or their abuse. In this context particular reference is made to the statements of McHugh J in Mann v O'Neil at 224-227. His Honour cited the following passage from Trapp v Mackie (1979) 1 WLR 377 at 379 per Diplock LJ: "to decide whether a tribunal acts in a manner similar to courts of justice and thus is of such a kind as will attract absolute, as distinct from qualified, privilege for witnesses when they give testimony before it, one must consider first, under what authority the tribunal acts, secondly the nature of the question into which it is its duty to inquire; thirdly the procedure adopted by it in carrying out the inquiry; and fourthly the legal consequences of the conclusion reached by the tribunal as a result of the inquiry." 48 His Honour then went on to say: "The presence of a statutory scheme establishing the tribunal and regulating its procedures has been viewed as an important guide in determining whether the tribunal is "recognised by law" for the purposes of the defence of absolute privilege. This is because the statutory detail allows the court more readily to determine whether the tribunal has the trappings of a court. Relevant matters on this issue include whether provision is made for inter-parties proceedings, for the calling of witnesses and receiving evidence on oath, for public hearings, and for legal representation. In addition, the statutory detail will often describe the tribunal's initiating mechanisms and the legal consequences of its determinations". 49 His Honour went on to remark that a tribunal would be characterised as recognised by law "only where a clear case is established". His Honour observed that the decision in Royal Aquarium Society Limited v Parkinson (1892) 1 QB 431 in relation to applications for music and dancing licences to the London County Council not being subject to absolute privilege would still be decided in the same way today (at 227). His Honour came to this view after the consideration of the application of rules of natural justice to non-curial tribunals and the attention that notion had received at first instance and on appeal by Carr J of the Full Court in Mann itself. His Honour particularly observed at 227: "Moreover, it should not be overlooked that the suggested equation works two ways. Given its drastic effect in foreclosing all means of redress for defamatory remarks made maliciously, the potential widespread availability of the defence of absolute privilege might itself provide a disincentive to applying the rules of natural justice to new forms of tribunals". 50 Thus, as I understood the submissions, the point is reached on an examination of the legislation it makes no specific provision as to the conduct of the Board in its inquiry in the Robert Waterhouse matter or indeed, any other. Whilst it has clothed itself with at least some of the attributes of a Court of justice, it is not obliged to do so and can change those attributes at its whim. Any such change would offend the rules of natural justice. The application of the rules of natural justice, do not, as McHugh J observed, equate with the application of the protection of absolute privilege. 51 Whilst the concession is in effect made that by reason of the material contained in Exhibit A (the correspondence with Mr David Waterhouse) attributes of a Court of justice in terms of procedure are adopted for the purposes of the Robert Waterhouse inquiry, closer examination of them does not elevate the steps that the TRB has decided to take for this purpose as "constituting" statutory detail that would even allow the Court more readily to determine the nature and degree of "trappings" the Board possesses. 52 To paraphrase Mr Rollinson's submissions in this context, the TRB in a transient way has adopted some of the trappings of a Court of justice on an "ad hoc" basis to deal with the Robert Waterhouse application to remove the "warning off". By itself, it is submitted, this cannot bring the TRB as a "tribunal" within a category as a tribunal recognised by law. Whilst there may emerge from the "proceedings" of the TRB a determination the truth and justice of which is a matter of public concern, the "ad hoc" nature of the decision to apply some of the "trappings" of a Court of justice are insufficient fully to satisfy the criteria for the application of the doctrine of absolute privilege as enunciated by the High Court in the judgments referred to. Indeed, Mr Rollinson suggested that the subject matter of "public concern" namely, whether or not Mr Robert Waterhouse should be no longer "warned off" amounts to no more than the granting of the dancing licence in the Royal Aquarium case. 53 Furthermore, analysis discloses that neither of the defendants are a party to the proceedings; they are not compellable (though that is not determinative), nor can they compel the Board to attend any such testimony or material they place before it. Indeed, both defendants can themselves repent of any intention to give evidence or communicate by the provision of documentary material with the TRB. 54 The decision of the legislature in setting up the Board and the Appeal Panel at the same time is to be noted; but what particularly is to be emphasised is that in respect of the Appeal Panel the Act is far clearer in the procedural respects (s 43) than it is in relation to the TRB itself. Furthermore, the second schedule in clause 2.3 provides that the Defamation Act 1974 is amended in its Schedule 2 relating to proceedings of public concern and official and public documents and records in the context of absolute privilege to include an appeal to the Appeal Panel under the AJC principal Act 1996 (Mr Rollinson referred me to the views I expressed but in a different context about the structure of the TRB in Waterhouse v David Syme & Co & Ors (unreported, 24 February 1998). 55 Thus, in summary, taking into account what I have described as the "ad hoc" application of some of the trappings of a Court of justice, the non-equation of the availability of remedies for breach of the rules of natural justice or procedural fairness with the existence of absolute privilege and a specific statutory provision in relation to the Appeal Panel, notwithstanding the nature of the concessions made and the effect on Mr Robert Waterhouse of any decision of the TRB, and notwithstanding the nature and extent of the horse racing industry with which the TRB is in a general way concerned, the criteria properly applied have not been satisfied for the application of the "immunity" as Gummow J described it in his judgment in Mann. This is a case where the requisite degree of "clarity" has not been established (cf. McHugh J in Mann at 225). 56 The arguments for the plaintiff cannot lightly be dismissed. The submissions in relation to the legislation as it existed in March 1998 were well founded insofar as the schedule to legislation did purport to amend the Defamation Act 1974 in its Schedule 2 in the manner indicated. 57 I am persuaded however overall by the arguments advanced for the defendants. Notwithstanding that at the relevant time the TRB had a wide range of powers (s 14), the exercise of power for the purposes of the inquiry into whether or not Robert Waterhouse's "warning off" should be lifted was being conducted under the authority of the legislation. Further, the nature of the question into which the TRB was inquiring, namely whether or not the "warning off" should be lifted was one not akin to whether or not a license to hold a dance should be granted but rather one that affected the profession, standing, reputation and integrity of a member of the community generally and of the racing community in particular and his rights to operate as a person within that community. The procedure adopted, ad hoc as it was as I have described it, was certainly akin to that of a Court of justice adopting some but not all of the trappings (not all have to be adopted). The consequence of the conclusion reached by the Board as a result of the inquiry would be legal in its nature affecting in the sense of depriving (if the decision was adverse to Robert Waterhouse) that person of rights available to him, inter alia, under the legislation itself under which the inquiry was being conducted. In the overall context to which I believe sufficient reference has been made in the course of these reasons, the interests of "justice" and the conduct of the inquiry by the tribunal into so weighty a matter commands that people participating, even by invitation, should be free to do so without the threat of oppressive litigation. 58 I am of the view therefore that at common law the defence of absolute privilege is available to the defendant's in respect of the publications to the Board and its officers including counsel and its solicitors. 59 I am similarly of the view that the publications complained of were in the course of inquiry made under an authority of an Act was provided for by s 18 of the Defamation Act 1974. 60 It is to be noted however that by reason of further amendments to the Thoroughbred Racing Board Act by the Thoroughbred Racing Board Amendment Act 1998, the Defamation Act 1974 has been amended now specifically to provide in s 17DB a defence of absolute privilege for a publication in the course of proceedings in respect of an inquiry conducted by the NSW Thoroughbred Racing Board. Section 17DA provides a similar protection in respect to the Appeal Panel. 61 There remains however the matter of publication by the first defendant to the second defendant. I do not see how absolute privilege attaches to this publication. Certainly qualified privilege would be an arguable defence subject to "reasonableness" for the purposes of s 22 and the availability of "malice" at common law. Section 13 of the Defamation Act 1974 would have some application one would think. 62 Publication to the Board is relied upon as founding the counts of abuse of process against the first and second defendants. As pleaded, I cannot see any rational basis for coming to the view that this allegation is arguable. As those two paragraphs will be struck out it is inevitable that the curiously pleaded paragraph 12 which purports to allege some common law conspiracy to defame and to abuse the process of the Court must also go. I acknowledge that I heard no submissions in relation to the difficult tort of conspiracy but in any event I will strike paragraph 11 out as embarrassing on the basis that it now appears that the process is available and secondly, the count seems to roll up in the context of the tort of conspiracy an agreement to do separate things which presumably would be proved to have damaged the plaintiff one of which is not available and the other of which is still viable to the extent that the serious allegations constituted by the remaining imputations are available in terms of publication by the first defendant to the second defendant. 63 What remains of this litigation, if it is to be pursued, can be dealt with appropriately by the District Court. 64 The claim for punitive damages is struck out. 65 The formal orders are:

Pollack v Waterhouse & Anor

At a glance

Court

Decision date

Before

Source

Judgment (38 paragraphs)

Parties

Cases Cited (4)

Cited By (1)