RACING LIBEL ACTION.

Otago Witness, Issue 2430, 10 October 1900, Page 43

RACING LIBEL ACTION.

CLAIM FOR £2000 DAMAGES,

VERDICT FOR DEFENDANTS,

(Australasian, September 29.)

The proprietors of the Australasian were £,ued, in the Third Civil Court, before Judge Hamilton and a jury of six, on Tuesday, by Isaac Bertram Barker, mine-owner and investor, Balmoral terrace, St. Vincent place, Albert park, for £2000 damages for libel alleged to be contained in a paragraph published in tho Australasian of December 30, 1899, to the

following effect

Reflector opened favourite for the race won by Firecracker, but before the start he was very shaky in the betting, and their suspicions being aroused the stewards for the nonce deserted their stand near the judges' box, and took up a position at the home turn, whence they saw every varying phase of the race. As the result of this reconnoitre, the stewards without much ado disqualified the horse, together with the trainer (W. Foulsharn) nnd the rider (H. Graham) for 12 months. Some surprise was expressed at the scot-fiee escape of the owner, but the stewards' information w ; to the effect that he is in West Australia ; hence the difficulty of bringing him to book. Wherever or whoever he is, I lncke bold to prophesy that he is not likely to reveal his identity to the Maribyruong stewards.

Mr IT. Bariett was for the plaintiff : Mr J. L. Punes, Q.C., Mr Mitchell, and Mr Coldham appeared for the defendants. Mr Barrett, in opening the case for the plaintiff, claimed that the paragraph meant that the plaintiff had been guilty of dishonourable practice in connection with the running of the hcifc Reflector, and should be disqualified from running horses under the iule? of the Y.R.C., and was afraid to reve.il"his identity to the Maribyrnong stewards. M 1 Barker was interested in mining pursuits, a.p. 1 was well known all over Australia. The Australasian, as they all knew, circulated all ever Australia. One of its boasts was that ;t ba:i the largest circulation of any weekly paper south of the line. In September last Mr Barker entered into an agreement to lease for three months the horse Reflector from Mr John Davis, of Meredith. Mr Barker in November was called away to Western Australia. While he was away his trainer. William Fouloham, had the running of the horse, subject to the general supervision of another gentleman well known in racing circles. Foulsham entered the horpe for two races at Maribyrnong on December 11, under the general power and authority that Mr Barker had given him. Mr Barkes, of course, knew nothing of the entry ; he gave no instructions as to the particular entry, but simply left the running of the horse in Foulsham's hands. Reflector ran in Mr Barker's name, and he contended that the article, although Mr Barker's name not mentioned, hit him and nobody el?e. On February 22 Mr Barker's solicitor wrote to Messrs Wilson and Mackinnon a?king for an apology, to be published in certain specified weekly papers, and a reasonable amount for costs. At that period he supposed from half a guinea to two guineas would have covered all the costs incurred. The letter met with no answer at all, and a few days afterwards Mr Woolcott wrote again, asking for attention to the previous letter. That letter was treated with the same contempt. Unless Mr Barker wished to be bluffed out, and have his reputation tarnished all over Australia, he was forced to issue a writ. Mr Barker went again to the West, interlocutory proceedings took place, the case was adjourned from time to time, and even as late as July 19 his solicitor wrote again offering to accept an apology and reasonable costs. The offer was absolutely declined. Plaintiff was unfairly treated about the interrogatories. There could not be a shadow of doubt that the paragraph was a gross libel. It was absolutely necessary to repose great trust in mining men, and nobody would trust Mr Barker if it could be F-aid ho was concerned in the Maribyrnong swindle when Reflector was wiped out.

Air Coldham said the defence was: — 1. No libel. 2. The words complained of did not refer to the plaintiff. 3. Fair comment on a matter of rcublic interest.

Isaac Bertram Barker, the plaintiff, called by Mr Barrett, said he was a mine-owner and investor. Tie loaded 'Reflector from Mr J. Davis, in September, 1899, and left him in charge of W. Foulsham. He left the control of the running of the horse with James Urquharl. When ho left the horse had been cast in his box, and had injured his shoulder, and Foulfham told, him it would be some months before he was better. He s>aid in that case Foulsham hnd better send him back to the owner at Meredith. That was the last he heard of the horse till he returned. He knew nothing of the entry or running- of the horse at Maribyrnong. He was 200 miles away from any telegraph office in the wilds of Western Australia when the hor&e ran. Ho thought he was undoubtedly the person referred to in the paragraph as tho owner of the horse. Plaintiff was cross-examined by Mr Purvey. How long have you known Foulsham? — About 15 years.

Then I presume you'icnow his character? — I knew nothing against him up to that time.

Did you keep livery stables in Sydney? — Yes, four.

Did j'ou know "Billy" Foulsham there? — Yes.

Did you know his history there? — I only knew him as a dealer in horse, 0 .

How did you suddenly become inspired, ■with tho idea of lea&ing Reflector? — I had an idea

of taking him to Western Australia, and wanted to find out his merit?.

Do you remember Foulsham and the horse Dingo being disqualified at Kensington racecourse ? — No.

You were going to buy a hor^o for £500, and have him raced under your name, you would be responsible for your trriner's notions, ,=o why did you not make inquiries as to Foulsham's character, and find out if he was the same Foulsham who had been disqualified in Sydney? — I can't give any answer. 1 thought if he was disqualified in Sydney he would not be training here.

What v. as Foulshara to get out of the business? — I gave him £2 a week to train the horse.

Anybody else give him anything? — Mr Davis gave him 10^, a week.

What wa^ your "screw" in West Australia? — I was to gpf £3 a week, travelling expenses, and an interest in any discoveries I made.

1 have an affidavit by Marion Eliza Barker, your wife — a truthful woman": — Yes.

She snys all yoii got out of your expedition to the wilds of Western Australia for certain was £3 a week, and you weie going to spend £2 a week on training horses? — I had income from other sources.

Didn't you mortgage everything you had? — No ; I had the Record Reign mine. Free? — Not exactly. I wa^> surprised to find, according to the agreement, that it was said to be fully mortgaged. That was a swindle on you. Who did it? —

It was my carelessness.

You would be very much offended if anybody called you an idiot? — (Laughter.) — I think from things I have done I ought to be called so sometime*. — (Laughter.)

lii bringing this action you ought to be, for instance? — (Laughter.) — No, I don't agieo to that.

Did you intend to back the horse? — If I fancied him I have no doubt I would.

If the horse raced where was the money to come from? — T left £40 with Urquhart. He speculated on the horse, and lost the money. Did you tell your wife about it? — I don't tell my wife any of my sporting business. — (Laughter.)

Do you know this Urquhart is a milkman? — He is a racehorse owner.

Why did you leave £40 with a milkman to back a horse which would not be able to race, as it had been cast in its box? — It was for other horses 100.

What others?-

'— Scylla.

Oh, you were in that crowd too. — (Laughter.) You gave Urquhart £40 to back a horse which was as stiff as a crutch in more senses than one ? — Re did not back him on this occasion.

I daresay that. — (Laughter.) Where were you going to get £300 from? — I have got several three hundreds out of my business sinco then.

You told poor old Davis you would give him £300 right out?— No, T didn't.

'—Yes, I

At the time you hadn't 300 pence? had.

In any bank? — No. I had cheques coming in for from £20 to £50.

What is Urquhart's Christian name?

Why did you call him William? — Becatise I get confused.

If the jockey said to the stewards that Urquhart was the owner of Reflector, what then? — He made a mistake.

You would say Urquhart was not the owner pointed at in the paragraph? — No ; he could not be.

Urquhart told the stewards that you said to him "If the price is very short, don't back the horse'? — I never mentioned such a thing to any m?n on the face of this earth.

TJrquhart said, "I would have backed him but for the short price." Was that your instruction? — 1 swear it wasn't.

Arc you aware the horse opened at 3 to 1 and went back to 7to 1? Didn't TJrquhart tell you? — I swear he didn't.

Did you ever back Reflector before?— l backed him on one or two occasions for yon. — (Laughter.)

Then I was the idiot who was swindled? — (Laughter.) — No, you got your money. You cot a very fair price. — (Laughter.)

'■ — Yes, you got the-.j

Did T get even a run?money too. — (Laughter.)

How do you know that? — Because he was first past the post. — (Laughter.) That was not when you had anything to do with the horse?— (Laughter.) — No. About the betting price, do j^ou know what pencil fever is? — No.> — (Laughter.)

When a horse went back in the betting like that would not you think he was going to be stopped? — No, I have seen Mr Millers-h orses open at 2 to 1 and go back to ]0 to 1, and win by lengths.

Weren't you only the nominator of Reflector? — I was the owner under lease at the time.

Your identity was revealed on the card, to how: do you make out the paragraph refers to you? — It does refer to me. When I icturned I did reveal my identity to the stewards to show I was not afraid.

Did you appeal against the disqualification of the horse? — No, because I could not stop to hear the appeals.

Don't you think it an impertinence on your part to bring an action when you loft the horse with a man whose character you didn't knoWj and with a man whose name you

- ■ — — — .V weren't suie of, with instructions not 'to back it at short prices?— l think it is only justice to my wife and children to bring i,-,. Where is Urquharf' — I don't know. He has gone up country. Perhaps the publicitj' of this cii:-e will find him.

VVilham Cosgrove, theatrical manager, knew plaintiff in Sydney years ago, when he used to buy and tell hordes at witness's father's horse bazaar. Be considered the paiqgraph. referred to plaintiff.

John Davis, farmer and grazier, Meredith, did not think the paragraph aimed at han^ - but at plaintiff, who was the owner of tLe horse to a certain extent by the agreement, and v> as in Western Australia.

Mr Purves, in opening defendants' case, =aid plaintiff's ca=e was one of the most extraoidinarj r ever presented to a jury. Plaintiff's case had be3ii introduced with a very wnail amount of lact, and a solid mass of letters refeiring to interlocutory proceedings, which had been deemed fair and proper by a judge. Be did not intend to deny that the Australasian was a leading journal. At any rote, it was a clean journal; it was not one of those gutter prints that seized on every little incident in a man's life to make cop/ out of; it generally endeavoured to conduc; its business on a high level. Each one o ' them looked to the Australasian as a relief to the troubles of the week, and a natural way of spending ;i pleasant Sunday morning. Re thought a cleaner record could not be puo forwpivl from any journal so far as its sporting department wat> concerned. It was tho duty or the editor of that part ol the, journal to place before them, being a sport-loving people, all matters of public interest in connection with the world of sport. Those ol ; them who were iuteiested enough to have p, pound on the Melbourne Cup turned to theFe, page? for the record of the sport. In fact, the paper dealt not only with the sports in which animals took part. It devoted Us columns, to the Christian sport of fishing. Ifc even referred to golf — some of them might; play that game. Mr Davis, if he had any sense in him at all, would not lease Reflectoito Mr Barker to-morrow. He did not think anybody -would.- Mr Barker was a man who devoted his energies to finding reefs in such out of the way places that speculators could iiQo inspect them. The farther away from civilisation a man found a reef the richer it was. The outcrop — that was to say the littlo bit that came biick — was always very rich but the result 10 speculators was generally disastiou-;. The whole ease was as fishy as it could /be. - In the whole -history of libel cases there never was a more amusingiy impudeit attempt than this on the part of l^aintifi' to obtain money from the proprietors of the Australasian for doing their duty, when he, forsooth, was so utterly careless of his own reputation that he left his racehorse in the hands of Foul«ham and of another man whc.m he did uoi .know properly.

Archibald Herbert Cox, secretary ox the* Maribyrnong Racins- Club, said Reflector ran in the Welter HcTnclieap at the meeting' last December. Be considered the manner in which Reflector was ridden one of tl;o '•strongest" things he had seen on any course, as- far as pulling was concerned. He gave evidence as to the subsequent meeting of the stewards. f T rquhart there said that all the working of u"»c horse was under nis ctwt'rol, and he was responsible for "it, but later, when asked if he took onJiimself the full ; esponsibility of the running of the horse, ! c said, "No, he -did not."

Patrick James Flanagan, M.8., steward of the club, said Reflector's running was a most deliberate case of pulling. Re remembered most distinctly Urquhart's statements to the stewards, because he did his best to corner Urquhart. thinking it possible that 1 c was thi wire-puller whom they wanted to nisovor. Charles Forbes Fra&er, stipendiary srmiaid .of the Victorian Racing Club, saw Ivdieetor pulled, and corroborated the previous witnesses.

Mr Purves then addressed the jury f or tLo defence. He said whenever he touched Barker he felt inclined to laugh, but the 6ase \vas really a serious one for apparently any adventurer might come along, and, on -a' case of this bind, sue any newspaper for damage's. Probably Barker never owiied a hair in that horse's tail. TJrquhart and Foulsham might have been called for the plaintiff, but they had not been. How dare a man come into these courts of justice — which wat not Tom Tiddler's ground, where people could pick up gold and silver — with a case like this? They were not courts w here people could have speculative actions. They were tribunals for the redre&s of wrongs, or the establishment of rights. Fancy the colossal audacity of Baiker asking for £2000 from decent people! Why, £25 would ~buy the whole lot of Reflectors and Foulshams and Urquhartfa on any suburban racecourse. — (Laughter.) If ever there was a grotesquely impudent claim put fOlf 01 ward by anyone who had no right to it, this was one.

Mr Barrett addressed the juiy at length. Judge Hamilton, in directing the jury, said if they considered the paragraph came within (he definition of libel they would have to consider some other defence. All public amusements, such as performances at the theatre and races on racecourses, were legitimate objects for a newspaper to comment on. Defendants said the statement was a fair comment on a race which was run, and they \yere not going to apologise io the plaia*.

tiff or to anybody eke for fair comments on a lvce. One iLing was clear beyond di&piite, that tl.e horse was dishonestly run on ihat occasion. That, was testified to by ihe ri-c-retfuv of the club and one of the stewards, and v/fB wholly uncontradicted by ihe people in whose charge the horse Was leit, cr by the jockey. The trainer, if'oulsham, was- in court, and Mas not called to spy tiier-3 \w-.^ no lo.oiciation ior the statement. It the nloiutiff vab undoubtedly responsible to a large oxlciit for i/'ne action of the jockey and ol the party to •whom he entrusted the horse, and to whom lie entrusted his money ior betting purposes, •and if they lan the lioiVp in \',wt li-huntst .■way, and the newppaper commented ( v it, it was for the jury to f-ay wliethei tins \v,v; a fair, reasonable, legitimate tominont iii^on what happened. It was not necessary that «yery statement should be abiol-i-sly c< rrecc. It was enough ii tha statements were such a comment as a man mi^iit ii-,r ; onab-y make v,|)on the facts a=» he w »«,n-e ot ti cm at the time. It was. undoubtedly a fact that the owner of the hovs£, whoever lit: was, was not disqualified, and was not c nsurej m r.ny ■woy by the stewards. They uV-qu.nrfiui liie horse and trainer, and it was fi-i the jury io say whether it was an unjust comment it; v man to a»k '■Jlow did the owner get oft". 1 ' Owners were responsible for their trainers and jockeys, and thai was one of tho things wh^eli the writer sold. Did not the sentence, "Whoever and wherever he is," etc., look like a comme.it to this effect: "We are told a cock-and-bull story that the owner ol thij horseis in Western Australia. We don't believe a word of it. We shouid like to know where he is. aud who he is. Won't he reveal himeelf to the stewards?" Was that a fair comnifcfil? It was for the jury to say. "Whether the \,siragr:iph referred to the plaintiff or not depended on whether the writer believed in the existence oi the plaintiff in the matter. If the writer did not, then it did not refer to plaintiff. If he knew all rbout it, then it did laid" to plaintiff. In this case there was ciuy the evidence of two innuendo witnesses — persons possessed of peculiar and rare information, who could understand that it applied to plaintiff at all. Only those who knew plaintiff was connected with Reflector, and that he was in Western Australia, could apply it to him at all. So thai it was only a very limited portion of the public who knew those two facts who could possibly find out who the man was. The jury had to consider first whether it applied to plaintiff ; and then if it was fair comment upon the race ruii that day. If, in their opinion, it was fair comment, there was an end to the case. The jury returned in a few minutes with the verdics that there was no libel, and that the so-called libel was fair comment.

Judge Hamilton entered judgment for the defendants, with costs.

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