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Category: Procedural rulings

Parties: Peter V’landys (Plaintiff)
The Thoroughbred Report Pty Ltd (First Defendant)
Vicky Leonard (Second Defendant)
Kit Gow (Third Defendant)

Representation: Counsel:
PW Gray SC / NG Olson
R Enbom KC / T Senior (Defendants)
Solicitors:
Mark O’Brien Legal (Plaintiff)
Wotton Kearney (Defendants)

File Number(s): 2026/00056204

Publication restriction: Nil.

JUDGMENT

1. HIS HONOUR: This is an application by the Defendants for leave to amend their Defence filed in defamation proceedings.

2. On 15 May 2026, I entered consent orders requiring the Defendants to serve a proposed amended defence (“First PAD”), which occurred on 29 May 2026. The Plaintiff took issue with aspects of the First PAD and did not consent to its filing. The Defendants furnished a further proposed amended defence (“Second PAD”) on 22 June 2026. The Plaintiff maintained his objection.

3. Pursuant to s 64 of the Civil Procedure Act 2005 (NSW), the Defendants now seek the leave of the Court to file the Second PAD (along with some variations to the proposed amendments recorded in an annexure to their submissions). The Plaintiff opposes a grant of leave.

4. The gravamen of the dispute is the proposed inclusion of particulars relating to a purported deterioration in the relationship between the Australian Turf Club (“the ATC”) and Racing NSW, which are set out in [19(e)] and [54A]-[54Zd] of Annexure B to the Second PAD (“the ATC Particulars”). These particulars are said to support the justification of the imputations that the Plaintiff “lacked the skills to carry out [the role of CEO of Racing NSW] effectively in the recent past and in the future” (imputation 7(a)) and the Plaintiff “was no longer competent to occupy [the position of CEO of Racing NSW] and ought to be replaced” (imputation 7(b)). The ATC Particulars are further sought to be relied upon in relation to the Defendants’ pleaded contextual imputation 16(a)(i), being that the Plaintiff “in his capacity as CEO of Racing NSW, has not sufficiently adapted his leadership approach to the evolving pressures facing the horse racing industry.” Collectively, I will refer to the above imputations and contextual imputation as “the Relevant Imputations”.

5. The Plaintiff’s objection is founded on two bases: first, delay (albeit only faintly pressed), and secondly, the ATC Particulars widen the scope of relevant evidence in these proceedings to no real end, because the particulars, even if substantiated, are not capable of establishing the truth of the Relevant Imputations. The real point of the second ground is the capacity of the particulars the support the truth of the Relevant Imputations.

6. The parties are to be commended for their cooperation with each other. While a hot contest remains, there has clearly been an admirable degree of discussion which has reduced the scope of the dispute significantly. Although the ATC Particulars range over six pages, it has been unnecessary to descend into the detail of each of the many paragraphs. There is no issue of the specificity and precision of their formulation. Attendant arguments about pleadings and particulars in proceedings for defamation, have the capacity to develop a certain entropy which has not occurred here.

Factual Background

7. Some brief factual background is necessary to understand the dispute that has arisen between the parties.

8. The Plaintiff, Mr V’landys, is the CEO of Racing NSW and the Chairman of the Australian Rugby League Commission. It betrays nothing to say that he is a well-known figure in Australian sport, including through holding these offices at the head of two of Australia’s most prominent professional sports. Racing NSW is the body corporate established by s 4 of the Thoroughbred Racing Act 1996 (NSW), whose functions under s 13 of that Act include the control, supervision and regulation of horse racing in NSW (s 13(1)(b)), as well as general functions related to the business of horse racing and its promotion and strategic development. The position of CEO of Racing NSW is a statutory office created by that Act.

9. The First Defendant is the publisher of an online racing journal called “The Thoroughbred Report” (“TTR”). As the name suggests, its primary interest is in thoroughbred horse racing, particularly in Australia and New Zealand. The Second Defendant, Ms Leonard, is the Editor of TTR and its Managing Director. The Third Defendant, Mr Gow, is employed by the First Defendant as a journalist.

10. The proceedings arise from an article profiling the Plaintiff published by the First Defendant (authored by the Third Defendant) on 18 November 2025, entitled “After twenty years at the helm, is it time racing imposed CEO term limits?” (“the Article”). After the service of a concerns notice later that month, the Plaintiff commenced proceedings in this Court for defamation.

11. The Plaintiff pleads eight defamatory imputations said to be conveyed by the Article. It is not necessary to set them out otherwise than as I have already done above (at [4]). The balance of the imputations are not relevant to this application.

12. The Defendants, by the extant Defence, have joined issue with the Statement of Claim. They have raised defences of fair comment, honest opinion, public interest, qualified privilege and most relevantly for present purposes, justification and contextual truth. Suffice it to say, the allegations in the Statement of Claim are sharply disputed.

13. I will set out the background to the conflict with the ATC in very brief detail. The basic facts are somewhat notorious. The ATC is the owner/lessee and operator of various racecourses in Sydney, which, relevantly, included the Rosehill Gardens Racecourse (“Rosehill”). There are two broad aspects of the conflict. The first aspect relates to a division amongst the members of the ATC as to a proposal to sell Rosehill to the State Government for development as housing. Under the Plaintiff’s leadership, Racing NSW took a benign view of the proposal and took steps to direct ATC to distribute information to its members summarising both sides of the argument. The Defendants wish to make the case that the Plaintiff’s leadership style over this issue was divisive and overly aggressive, and he failed to respond to the concerns of members of the ATC for the maintenance of harmonious relations within the industry.

14. The second aspect is that over the course of the second half of 2025, and after the sale proposal had been defeated by the majority vote of ATC’s membership, the Plaintiff, as CEO of Racing NSW, raised concerns in writing with the Chief Executive of the ATC about the solvency of the ATC, and later, about the Board of the ATC’s discharge of their obligations of corporate governance. Those concerns culminated in the issue of a notice on 19 September 2025, under the hand of the Plaintiff as CEO, inviting the ATC to show cause why an administrator should not be appointed for the management of its affairs. An appointment of an administrator was duly made on 15 December 2025. The legality of that appointment was challenged, ultimately resolving in favour of Racing NSW in the Court of Appeal’s decision in Racing NSW v Australian Turf Club Ltd [2026] NSWCA 115 (“RNSW v ATC”).

15. The Defence in this matter was filed following the ATC’s success at first instance in that dispute, and prior to Racing NSW’s successful appeal which vindicated the legality of the appointment of the administrator.

16. Turning to the ATC Particulars themselves, [19(e)] is as follows:

“19. During his tenure as Chief Executive of Racing NSW, V’landys’ aggressive leadership approach resulted in the transformation of Racing NSW’s financial position and the creation of a financial fortress, but he has not sufficiently adapted his leadership approach to the evolving pressures facing the racing industry. In that respect, V’Landys lacks the skills and competency to carry out the role of Chief Executive and is constraining the evolution of Racing NSW, because under his tenure:

….

e. the relationship between Racing NSW and the major New South Wales metropolitan race club, the Australian Turf Club Ltd (ATC), has deteriorated to such an extent that, rather than working collaboratively with the ATC to advance the interest of the racing industry, Racing NSW has instead caused the parties to become embroiled in conflict and litigation, as particularised in paragraphs 53A to 54Zd below.”

(proposed deletions excluded).

17. [53A]-[53Zd] go on to set out the history of the dispute in the expansive detail common in defamation pleadings. Generally, [53A]-[53F] relate solely to the background of the dispute over the sale of Rosehill. Other matters particularised relate to the background to the issue of the show-cause notice referred to above but also include a mixture of references to the Rosehill dispute.

Principles and Issues for Determination

18. I agree with the submission of the Defendants that not much turns on the delay point. As mentioned above, this was not something that the Plaintiff pressed with any vigour at all during the oral hearing. Nonetheless, in any question of amendment, delay will raise its head.

19. In this case, the Defendants quite legitimately had an interest in awaiting the determination of the Court of Appeal. The defamation proceedings are still in their comparative infancy, and in the circumstances, I do not think that the prejudice likely to arise from the delay in the inclusion of the ATC Particulars justifies a refusal of a grant of leave. Further, I do not consider “delay” between May and July as particularly long and is largely be accounted for by negotiation between the parties which has reduced the issues for determination. I would not wish to discourage that process.

20. The real issue of substance in this dispute is whether the ATC Particulars are capable of substantiating the truth of the Relevant Imputations: Rush v Nationwide News Pty Ltd (2018) 359 ALR 473; [2018] FCA 357 at [46] (Wigney J) (“Rush”). No issue has arisen about the sufficiency of the particulars. Resolving issues of capability at the interlocutory level needs to be attended to with some fair degree of caution and restraint, so as not to deprive the parties of a fair opportunity to ventilate their case properly at trial: Gallagher v Destiny Publications Pty Ltd (No 2) [2015] WASCA 475 at [39] (Kenneth Martin J).

21. That is not say, however, that the correct approach is to allow defamation trials to descend into open ended roving inquiries. While defamation proceedings fundamentally relate to a person’s character and public standing, they are not commissions of inquiry traversing every aspect of a Plaintiff’s life and their “reputation, character or disposition” (see: Fairfax Digital Australia & New Zealand Pty Ltd v Kazal (2018) 97 NSWLR 547; [2018] NSWCA 77 at [177] (“Fairfax Digital v Kazal”)). As the High Court observed in Mummery v Irvings Pty Ltd (1956) 96 CLR 99 at 110; [1956] HCA 45 (Dixon CJ, Webb, Fullagar and Taylor JJ): “[the function of particulars] is to limit the issues of fact to be investigated” (my emphasis). The applicability of that dictum to defamation proceedings is obvious.

22. Yet, as the Court of Appeal observed in Hayson v John Fairfax Publications Pty Limited [2007] NSWCA 376 at [20] (Hodgson JA, Santow and Tobias JJA agreeing), particulars are not “outer limits of what may be proved” (my emphasis). Rather, they serve to indicate the topics that will be traversed in the trial, and the evidence led during that factual investigation may very well exceed what may be apparent from the face of the particulars.

23. In Rush, Wigney J was dealing with an application to strike out particulars of truth. As his Honour observed in Edwards v Nine Network Australia Pty Ltd [2022] FCA 509, the facilitation of overriding purpose of civil litigation (in his Honour’s case, s 37M(1) of the Federal Court of Australia Act 1976 (Cth) and in this case, s 56 of the Civil Procedure Act 2005 (NSW)) may dictate, in defamation proceedings, that leave should not be granted to file pleadings which are liable to be struck out.

24. The relevant question for determination in the present case is whether the ATC Particulars, taken at their highest, are capable of proving the truth of the Relevant Imputations. As Wigney J observed in Rush (at [50]:

“In approaching such a matter, the Court must determine whether the particulars that have been provided taken at their highest, are capable of proving the truth of the defamatory imputations that are sought to be justified. In making that determination, the Court must not only bear in mind that the particulars are a bare outline of the facts that the claimant will seek to prove but also exhibit the ‘curial caution’ that must necessarily be exhibited in determining, at an interlocutory stage, factual issues that may be better finally determined on the basis of all of the evidence led at the trial.”

Application

25. I record here that the relationship between Racing NSW and the ATC is mentioned only once in passing in the Article. The relevant sentence reads: “[d]uring a time of focus on rugby league’s battles, Racing NSW issued a controversial show-cause notice to the Australian Turf Club; a move with major implications for metropolitan racing, stakeholder confidence and public perception.” There is no mention of the proposed Rosehill sale.

26. Of course, that is not to say that is the only way the ATC dispute is relevant, but it does contextualise the reasonably ‘in-passing’ way this matter was referred to in the Article. Indeed, the next sentence begins “[i]t was one of several recent decisions that pointed to the same underlying tension” (my emphasis). I will return to this point later in these reasons.

27. The Defendants’ case as expressed in the ATC Particulars, put shortly, is that the Plaintiff handled the dispute between Racing NSW and the ATC poorly, through “his usual aggressive and combative approach” which meant that the two bodies, who have an important relationship in the context of thoroughbred racing in this State “were at war rather than working together in the interests of racing”: 9.12-16T. The Defendants submit that the ATC Particulars, therefore, if substantiated, are capable of proving the truth of the Relevant Imputations.

28. The riposte, as it were, from the Plaintiff is essentially that even if the ATC Particulars are proved to be true, they simply say nothing about his skills, competence or the adaptability of his leadership. The ATC Particulars may be capable of establishing that some members or officers of the ATC had difficulty dealing with the Plaintiff, but so what? Harmonious and friendly relations between ATC and Racing NSW is not an essential requirement of the work of the CEO of Racing NSW; nor is it inimical to The CEO’s role.

29. As the authorities make clear, for the purpose of this decision I am to take the imputations at their highest. I am making no findings of fact about the substance of matters in the ATC Particulars. Instead, I am proceeding on the assumption that they will be proved. At trial, it will be for the Defendants to prove them, and at this interlocutory stage, they have the benefit of the assumption that they will.

30. The CEO of a regulatory authority has no obligation to treat participants in the regulated industry with kid-gloves or even, perhaps, tact and diplomacy. To the contrary, some may regard decisiveness in decision making and vigour in execution as essential leadership qualities. However, these competing observations tend to demonstrate that the essential qualities of a successful leader, and the mix of them, are matters upon which minds may reasonably differ which suggests the resolution of these matters is a jury question and not one to be resolved in the abstract as a question of legal capacity.

31. I am not of the view that the outcome of RNSW v ATC deprives those particulars directed to the appointment of an administrator of relevance for present purposes, even accepting that following the Court of Appeal’s decision the parties have agreed to work together in support of the administrator. The Court of Appeal’s decision was made in the Court’s supervisory jurisdiction. The question for determination was whether the decision to appoint the administrator conformed to law, not whether it was the right decision to make or could have been handled better. The merits of the decision were not in issue.

32. I have already made reference to the decision of Fairfax Digital v Kazal in the context of the Court’s reluctance to permit a wide roving inquiry into the Plaintiff’s reputation. Justice Gleeson laid emphasis (at [176]-[184]) upon the rule in Scott v Sampson (1882) 8 QBD 491 excluding evidence of specific acts of misconduct on the part of a Plaintiff tending to show his or her character or disposition (as distinct from general evidence of bad reputation). Justice Gleeson said (at [177]) the justification for this exclusionary rule is “pragmatism and fairness”. It has been said that the exclusionary rule reflects the need to prevent trials becoming extended by the investigation of new allegations about the Plaintiff’s past life, and also a concern about the lack of relevance of evidence which has “but a very remote bearing on the question in dispute”. The concern is “to prevent [defamation] trials from becoming roving inquiries into the Plaintiff’s reputation, character or disposition” (footnotes omitted.).

33. His Honour emphasised that there are exceptions to the exclusionary rule. One exception is that the exclusionary rule does not apply “to evidence of facts directly relevant to the contextual background of the publication”: Fairfax v Kazal at [179]. This is to avoid the danger that the jury would be required to assess damages in blinkers: Burstein v Times Newspaper**s Ltd [2001] 1 WLR 579 at [47]. Importantly for present purposes, another is that the exclusionary rule does not apply to evidence properly admitted in relation to a defence or partial justification (my emphasis). The exception was explained in Holt v TCN Channel Nice Pty Ltd (2014) 86 NSWLR 69; [2014] NSWCA 90 at [29] (Macfarlan JA, Gleeson JA agreeing, Sackville AJA agreeing with additional reasons):

“The qualification referred to … reflects the requirement that evidence led by a defendant of a plaintiff’s bad character must relate to the sector of the plaintiff’s reputation with which the imputations relied upon by the plaintiff were concerned.”

34. The Defendants of course are not impugning the Plaintiff’s case on the grounds of general bad character. The issue is about his skill and ability as a corporate leader in sports administration. That is the context of the article upon which the Plaintiff’s imputations are based. That is the aspect of the Plaintiff’s reputation that is at stake in these proceedings. In my view it is open for the Defendants to rely upon the specific incidents in the ATC particulars to make good their defence for the reasons explained by Gleeson JA in Fairfax Digital v Kazal.

35. I think it follows that even if the defence of justification itself fails, the ATC Particulars can be relied upon by the Defendants to establish their contextual truth defence under s 26 of the Defamation Act 2005 (NSW). The question raised by contextual imputation 16(a)(i) of the adaptability of the Plaintiff’s leadership to “the evolving pressures facing the horse racing industry” invites consideration not only of the Plaintiff’s style, but its suitability to deal with the complexities that the industry is facing now. To prove the truth of their contextual imputation, I do not think that Defendants should be precluded from leading evidence of the Plaintiff’s part in the very public dispute that has occurred between two apex bodies for thoroughbred racing in this State.

36. Whether the conduct of Racing NSW, as said to be directed by the Plaintiff, in issuing the show-cause notice is indeed ‘aggressive’ in the circumstances is a matter for trial. However, I am of the view that taken at their highest, some of the ATC Particulars are capable of substantiating the truth of contextual imputation 16(a)(i) insofar as they relate to the decision to issue a show-cause notice. I accept that the choice of issuing a show-cause notice (as opposed to the legality of the appointment of an administrator) is capable of demonstrating a particular style of leadership.

37. The submissions on behalf of the Defendants emphasised the narrowness of the amendments. It was put to me that the amendments fundamentally only raised two new issues:

38. Whether the Plaintiff should have responded to ATC member complaints about Racing NSW not telling members about why Racing NSW intervened in the vote about the sale of Rosehill; and

39. Whether he should have taken a more measured approached involving constructive engagement with the ATC rather than issuing a show-cause notice.

40. The Defendants submitted that issues are “quite … narrow … not involv[ing] thousands of documents”. The broader context of that submission arises form a discussion of concerns about the necessary breadth of discovery in this matter, bearing in mind that the Plaintiff sues in his private capacity. I will hold the Defendants to that representation. Naturally, whether the amendments will be made good at trial must abide the outcome.

Orders

39. My orders are:

40. Leave is granted for the Defendants to file and proceed on the Second Proposed Amended Defence appearing at page 90 and following of the Joint Court Book.

41. The Plaintiff to pay the Defendants’ costs of the application to amend.

42. Any application for a different costs order should be made by written submissions accompanied by any necessary affidavit lodged with my chambers within 14 days. The responding party is to lodge his, her or its response within a further 14 days from lodgement. The application will be determined in chambers without the need for any party to appear.

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