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New Zealand Illustrated Sporting & Dramatic Review, Volume I, Issue 25, 17 January 1891, Page 3

The following case, Hart v. Weatherby, was heard on November 12th; 1890, before Mr. Justice A. L. Smith and a special jury Sir Henry James, Q.C., opened the case for the plaintiff to the following effect : —Mr. Hart is a commission agent on the turf, and had transactions with Captain Bailey. Prior to September 10th, 1888, these left, according to Mr. Hart’s calculations, a balance due to him from Captain Bailey. On September 12th the St. Leger was run, and on that day a letter arrived from Captain Bailey to Mr. Hart instructing the latter to back the eventual winner for ;£tso. Mr. Hart had a conversation with Mr. Apps, and decided not to execute the commission in consequence of his own unsatisfied claim against Captain Bailey. After the race had been won Captain Bailey expected to be credited with his winnings, but was informed that his commission had not been executed. So far as we gather from the report it does not appear that Mr. Hart had telegraphed to Captain Bailey his refusal to execute the commission, but on the other hand it does not appear whether there was time for him to do so before the decision of the race, or whether he was under any obligation to expend even the small sum of telegraphic expenses on behalf of his discarded client. He seems contented with “ declaring the bet off” with Mr. Apps. The next step, according to counsel’s opening, was that the claim which Captain Bailey set up against Mr. Hart as to this unfulfilled commission was referred to the Rooms Committee, and they decided adversely to Mr. Hart. What evidence was tendered does not appear. Mr. Hart alleged that the hearing was a hurried one, on the eve of a race, and before a small quorum. He felt dissatisfied with the judgment and declined to conform to it. His contumacy was therefore reported to the Jockey Club who accordingly acted upon Rule 179 of the Laws of Racing, which reads thus : —“ If any person be reported to the Committee of the Subscription Rooms at Newmarket or at Tattersail’s as being a defaulter in bets, he will be disqualified as in the last Rule mentioned, as long as the default continues.” The “ last Rule ” means Rule 178, which enacts that such “disqualification” entails being warned off Newmarket Heath and other places where these Rules are in force. ’

It seems that Mr. Hart and Captain Bailey were both members of the Newmarket Rooms, and as such had pledged themselves

to abide by the rules of those Rooms ; these rules appointed the Committee of the Rooms arbiter in the event of disputed bets. It also appears that a locus paniientice. was awarded to Mr. Hart, and that he still decided to ignore the verdict of the Rooms Committee. e sequel was that the secretary of the Rooms was instructed by the Committee to make a formal report as aforesaid of Mr. Hart s contumacy to Messrs, Weatherby, as acting for the Jockey Club. The result was that Messrs. Weatherby published in the Racing Calendar an official notification that Mr. Hart had been reported as a defaulter in bets by the Newmarket Rooms, and that as such he was warned off the Heath and all other premises of the Jockey Club. The notification formed the subject of libel, for which the present action was brought. , The action practically went no further than the opening. Upon the face of the story alleged bv the plaintiff the learned judge was asked to decide whether such a publication was “ privileged ” or not. If it were a prima facie privilege, then, there being no suggestion by the plaintiff of express malice on the part of Messrs. Weatherby (which, if shown, would oust privilege) the defendants would be entitled to judgment. It was admitted by counsel for the plaintiff that he was a member of the Rooms, and as such was bound by the Rules of the Club and also by the Rules of Racing. After hearing this the judge ruled that there was no case to go to the jury, and entered judgment for the defence on the grounds of “ privilege.” Mr. Hart’s proper step would have been to request a new investigation, a “ new trial by the same authority to which he had pledged submission when he joined the “ Rooms. If that had failed him he should have given way, and should have considered that if he was to be considered justified in being contumacious because he was not “ convinced ” by the award, then pan passee any future disputant over whom he might subsequently obtain a victory before the same tribunal would be equally justified in keeping him at bay, and so in the long run verdicts of the Rooms in disputed bets would be reduced to farces. We have taken this in exienso from the Field as this question has often cropped up as to the power of Tattersails and the Racing Clubs. Some of our readers will remember the case of Owen McGee v. Auckland Racing Club. Then counsel appeared to be in a quandary, and could find no racing precedent, relying on the Lyttleton case and one or two others of a similar kind. A clever counsel could have won the case for the plaintiff; however, the verdict was right in equity. This case, we think, will form a precedent—therefore our interest in it.