Horse talk
Monday, July 17, 2017
Justinian in Barristers, Defamatorium, Peach Melba, Victorian Supreme Court

Yarraside Barrister's reputation repaired with award of aggravated damages against The Age ... Defamatory articles lingered on the internet ... Serious award for seriously hurt feelings 

Rebel Wilson swept into the Victorian Supreme Court in June trailed by Hollywood glamour and significant press interest in her defamation case against Bauer Media. 

The jury, overseen by Justice John Dixon, found in Wilson's favour. It was one of the Supreme Court's more colourful cases, with such episodes as the jury being shown photographs from the plaintiff's childhood, including of her handling dogs and on holiday in South Africa petting a lion. 

A great result for Wilson's brief Matt Collins QC. 

As the saying goes, you win some, you lose some, and in another defamation case brought by fellow Melbourne barrister Damian Sheales against The Age and its racing writer Patrick Bartley, Matt's clients came second.  

HH awarded Sheales $175,000 in damages for Bartley's article which claimed the barrister in representing two trainers, Mark Kavanagh and Danny O'Brien, had negligently misstated facts to a Racing Victoria inquiry into the effects of cobalt on racehorses. 

The damages included an award for aggravation because the article was an "unwarranted personal attack" by the reporter. 

Among other things, the article compared Sheales' appearance before the stewards to "a theatrical performance reminiscent of Rumpole of the Bailey". 

The defamation jury found one of two imputations were conveyed: 

"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 in performance enhancing in horses and whether it is harmful." 

The defendants submitted that because the article appeared on page 37 of the print edition of The Age, only a small fraction of the readership of the paper would have read it. 

Justice Dixon did not accept this as mitigating the seriousness of the defamatory imputation. He found that readers with an interest in horse racing would have encountered that particular article. The story was also significant in the public consciousness because of its links to Black Caviar's trainer Peter Moody and the high profile of Sheales' racing clients. 

Sheales: described as a "robust" character

The Age also argued that damages should be mitigated because Sheales had himself made misstatements about individuals who gave evidence in the trial, including an academic who had written about cobalt. 

Dixon said that that Sheales' submissions in the Racing Victoria hearing were "not immune from legitimate and serious criticism". Furthermore, he noted that in the course of the trial "there was some strength to the defendants' submission that the ferocity of the plaintiff's attacks on the reputations of others were unnecessary to making out his case and at times bordered on conduct unbecoming for a member of counsel". 

Justice Dixon appears to have accepted that the high emotion was a result of Sheales' great sense of injury and embarrassment at the publications. 

The plaintiff was awarded aggravated damages because the defendants failed to apologise for the defamatory articles after Sheales contacted them and failed to remove the articles from the internet until after the jury returned its verdict. 

The judge thought this increased the plaintiff's subjective hurt. 

See: Damian Sheales v The Age 

Elif Sekercioglu reporting

Article originally appeared on Justinian: Australian legal magazine. News on lawyers and the law (http://justinian.com.au/).
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