Coates v Harbour Radio Pty Ltd & Anor - [2008] NSWSC 292

No judgment structure available for this case.

CITATION: Coates v Harbour Radio Pty Ltd & Anor [2008] NSWSC 292

HEARING DATE(S): 26/04/07, 27/04/07, 30/04/07, 4/05/07

JUDGMENT DATE :
4 April 2008

JURISDICTION: Common Law
Defamation List

JUDGMENT OF: Adams J at 1

DECISION: In respect of the bullying imputations, the sum of $130,000, in respect of the cover-up imputations, the sum of $130,000 and, in respect of the incompetence imputations, the sum of $100,000.
I will deal with the questions of interest and costs after submissions on the point.

CATCHWORDS: Defamation - justification - whether statement of fact or comment - if comment, whether based on true facts sufficiently referred to - whether comment must be reasonable.

LEGISLATION CITED: Associations Incorporation Act (Vic)
Defamation Act 1974 s 7A, 30(3)

CATEGORY: Principal judgment

CASES CITED: John Fairfax Publications v O’Shane (2005) NSWCA 164
Kemsley v Foot [1955] AC 345
Syms v Wran [1984] 1NSWLR 317

TEXTS CITED: Odgers on Libel and Slander 6th ed 1929 at 166

PARTIES: John Dowling COATES (Plaintiff)
Harbour Radio Pty Limited (First defendant)
Alan JONES (Second defendant)

FILE NUMBER(S): SC 20443/04

COUNSEL: Mr B R McClintock SC with Mr M F Richardson (Plaintiff)
Mr T K Tobin QC with Mr T D F Hughes (Defendants)

SOLICITORS: Kennedys Lawyers (Plaintiff)
Johnson Winter & Slattery (Defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DEFAMATION LIST

ADAMS J

4 April 2008

20443/04 COATES v HARBOUR RADIO PTY LIMITED & ANOR

JUDGMENT

HIS HONOUR:
Introduction

1 At 5.55am on 8 December 2004 Mr Alan Jones on Radio 2GB discussed with a Mr Andrew Moore certain events that had occurred during and immediately following the rowing final of the Women’s Eights in the 2004 Olympic Games held at Athens. The following is a transcript of what was said –

“JONES: I think, Andrew – and Andrew I suppose will have something to say about the cricket – but, Andrew, I think this rowing is a big story and it raises significant questions, of course, over the leadership of the Australian Olympic movement and I think what the rowing parents are saying is they practised a cover up from the moment something happened to Sally Robbins and the leadership of the Olympic movement, Coates and others, virtually were telling these people what to say.

MOORE: That’s right. At the press conference after Athens and before Athens, and they’re saying why did the coaches cover up that Sally had done this before, that this had happened to Sally before?

JONES: Coates is Chef de Mission, Coates has been in charge of the AOC for God knows how long and he’s wanting to pretend that his leadership is fine when, in fact, the leadership here was sadly lacking in how to handle this.

MOORE: That’s right and this is what a couple of them were saying after the race. They could handle if it was a once off. This has happened before and I think a lot of people who are filthy about what happened, just outside observers, weren’t necessarily angry with Sally Robbins --

ALAN JONES: No.

MOORE: -- but the fact that it happened before, why was she even there in the first place?

JONES: That’s it, that’s it. And when it did happen, this wasn’t the way to address it.

MOORE: Of course not. The whole thing was handled appallingly from well before Athens but certainly well into Athens.

JONES: Well, Coates has been in charge of too many Olympic committees. It’s time to give someone else a go.

MOORE: If that’s the result of the action.

JONES: Yes, absolutely. Cricket, what do you reckon?”

2 Later in the day at 8.07am Mr Jones made further remarks about the issue. What he said was as follows –

“JONES: In sport, Australian rowing is embroiled in controversy. The parents of Sally Robbins’ Olympic rowing mates have accused Australian sporting officials of ordering a cover up over her collapse in the final of the women’s eights.

Three parents of the crew have met with the Australian Sports Commission – I am Deputy Chairman of that, as you know, this is with the administration of the Sports Commission – to raise concerns that the AOC told the crew what to say at a news conference in Athens. Well, of course, John Coates has been head of the AOC for a long time, he’s been Chef de Mission. He wants the good picture to come out and the good story and the good image. This has been badly handled. There are many who say it really is time for John Coates to give the guernsey to somebody else.”

3 At 5.53am on 9 December 2004 the following was broadcast –

“JONES: The Olympic rower, Sally Robbins, has vowed to continue competing, has said she plans to row at the 2008 Beijing Olympics. She was the woman, remember, who stopped rowing during the final of the women’s eight in Athens. She scotched plans to try beach volleyball and will continue to row and hopes to represent Australia at the next Olympics which, I guess, shows a lot of bravery and determination. If she’s in that boat in 2008, you can hope it will only be because her form warranted it. A lot of people made mistakes and, at the end of the day, it was the Olympic leadership that were at fault.

John Coates, as I said yesterday, has been there too long and something needs to be done. It needs a complete shift around in all of that. The handling of that whole business was awful.”

4 Mr Coates sued Mr Jones and Harbour Radio Pty Limited for defamation over a number of imputations which, he claimed, were conveyed in the broadcasts. In a trial conducted under s 7A of the Defamation Act 1974, a jury found that the following imputations had been conveyed –

As to the first broadcast:

(a) The plaintiff practised a cover-up in relation to Sally Robbins in his role as a leader of the Olympic movement;

(b) The plaintiff’s leadership in dealing with the Sally Robbins’ incident was sadly lacking;

(c) The plaintiff bullied rowers into saying what he wanted them to say after the Sally Robbins’ incident.

As to the second broadcast:

(a) The plaintiff ordered a cover-up over the collapse of Sally Robbins in the Olympic final of the rowing eights;

(b) The plaintiff in his role as head of the AOC and as Chef de Mission bullied the crew of Sally Robbins into saying what he wanted them to say at a news conference at Athens after the collapse of Sally Robbins;

(c) The plaintiff is his role as head of the AOC was incompetent in the manner in which he handled the Sally Robbins’ affair.

As to the third broadcast

(a) the plaintiff in his role as an Olympic leader was incompetent in his handling of the Sally Robbins’ business.

5 The defendants rely on the following defences –

As to the first broadcast

(a) a defence of substantial truth in respect of each imputation;

(b) a defence of contextual truth (without pleading any contextual imputations, so that the defence is available only if one or more of the plaintiff’s imputations is found to be substantially true and others are not);

(c) the defence of comment – Harbour Radio relies on the comment of Mr Jones as a servant or agent and/or the comment of a stranger, identified as the parents of the rowers and Mr Jones relies on his own comment and/or the comment of a stranger.

As to the second broadcast

(a) a defence of substantial truth in relation to each imputation;

(b) a defence of contextual truth, (again with no separate contextual imputations pleaded); and

(c) the defence of comment, identified in the same way in respect of the first broadcast.

As to the third broadcast

(a) a defence of substantial truth; and

(b) the defence of comment, identified the same way as the other imputations in respect of the other broadcasts.

Mr Coates and the Olympic movement

6 Mr Coates is a solicitor and a partner of Messrs Kemp Strang, solicitors. He is president of the Australian Olympic Committee, Deputy Chairman of David Jones Limited, on the Advisory Board of Grant Samuel Investment Bank, being a director of one of their funds, a government appointee to the Sydney Olympic Park Authority, Chairman of the Australian Olympic Foundation and occupies other positions within the Olympic movement. Amongst other honours he was appointed a Companion in the General Division in the Order of Australia in 2006. Mr Coates was the rowing Section Manager for the 1976 Australian Olympic team, was appointed to the 1980 team as the Administration Director and the Assistant General Manager of the 1984 team. He has been Chef de Mission and General Manager of all Australian Olympic teams since then. He was appointed Honorary Treasurer then President of the NSW Olympic Council in the 1970s and l980s and was appointed to the executive of the Australian Olympic Federation, as it was then known, in 1981. He became Vice President in 1985 and the President in 1990, then filling a casual vacancy, which was confirmed in 1991, and he has been re-elected every four years since then to that position. The Australian Olympic Committee (AOC) has exclusive responsibility for the representation of Australia at the Olympic Games.

7 The Olympic movement in Australian sporting and community life is very significant and it undertakes extensive marketing, licensing and general fundraising activities as well, of course, managing the very significant assets that are necessarily involved in its manifest and considerable responsibilities. It is worth mentioning, perhaps, that the organization has no statutory basis – it is a private corporation under the Associations Incorporation Act of Victoria and is recognised by the International Olympic Committee under the Olympic Charter. Mr Coates is a member of the International Olympic Committee.

8 The Chef de Mission is appointed by the national Olympic committees and has responsibility for all of the athletes and officials in the national team together with any functions that might be delegated to him or her by the NOC. The Chef de Mission liaises with the organising committee for the games in question, the IOC and the International Sporting Federation.

9 One of the issues in the case involves the mode of appointment of members of sporting teams, in particular the Women’s Eight rowing team. As a general rule, each sport has nomination criteria which are determined by its relevant organizations, although there is a template that the AOC provides. Each sport, however, determines for itself the specific requirements that athletes must meet for a nomination, which generally involves competing in specific events and a range of objective and subjective criteria. Nominations are then made by the relevant sporting body to the AOC under a selection by-law. In the case of the Women’s Eight, the athletes and coaches for membership of the team, are broken up into different crews, as nominated by Rowing Australia. The AOC then considers whether the nominees have satisfied the criteria of the International Federation, whether they are eligible for membership of an Australian team (for example, whether they are citizens, whether they have done anything which might bring themselves, their sport or the Olympic movement into public disrepute, whether there have been any breaches of anti-doping codes for which the penalties have not been satisfied). If selected, athletes are required to enter into a team management agreement, which applies both to them and officials.

10 In 2004 the AOC Executive delegated to a committee the responsibility for ensuring that nominees met the relevant criteria. That committee comprised Mr Coates, Mr Peter Montgomery, the first vice-president and, possibly, one other person. The committee relied on the recommendation of the IOC Director of Sport who, at the relevant time, was a Mr Craig Phillips. The plaintiff did not play any part in any other way in the selection of the members of the rowing team for the 2004 Olympics.

11 It is obvious from what I have said that it was not part of the plaintiff’s responsibility to satisfy himself personally as to the physical or mental capacity of any nominee to compete. For perfectly obvious reasons, this could not be done by him or his committee at all events. His and his committee’s responsibilities were of an altogether different, though important, kind. The task of assessing the competitive capacity of the athletes was undertaken by the relevant sporting organizations. It is convenient to make this point clear at this stage since part, at least, of the defendants’ case rested upon the mistaken supposition that Mr Coates had participated in some way in the nomination of Ms Robbins in the Women’s Eight rowing team. Mr Tobin QC relied upon a submission made on the plaintiff’s behalf to the presiding judge of the 7A trial –

“Not long before the adjournment my friend, this is Mr Reynolds, said to the jury, as if it were a fact, which it is not, that Mr Coates was not involved in picking someone who should not have been picked, that is Mr Coates had no role in the selection process of the athletes. This is factually wrong. Mr Coates is intimately involved from his role as the head of the AOC and the Chef de Mission of the Olympic team.”

12 It is enough to say that I do not consider that this admission – accepting it as an admission for the sake of argument – was wrong. It rather depends on what was meant by the words “intimately involved” and “his role as head of the AOC and Chef de Mission”. The expression was used to contrast the “no role” submission of the defendants’ counsel which, it seems, Mr McClintock SC sought to correct. Much depends upon the context and the context of a 7A trial is very different from that in which I now have to consider the true nature and extent of the plaintiff’s involvement. It is enough, I think, to state that I accept as truthful and accurate the evidence given by the plaintiff in this respect in the proceedings before me, which I have endeavoured to summarise above. I am fortified in this view by the approach taken by Mr Tobin QC. I asked him, when he put Mr McClintock QC’s submission to the plaintiff in cross-examination and asked him whether he had sought to correct it, whether he was suggesting to the plaintiff that the evidence that he gave to me was wrong or mistaken, a suggestion which Mr Tobin rejected.

13 The plaintiff’s personal knowledge of Ms Robbins before the particular incident with which I am here concerned, was limited. He said that he had met her and was aware who she was, he had seen her compete and presented her with medals but that he had not formed a personal opinion about her suitability for nomination to the team. Specifically, he was not aware of any problems that Ms Robbins may or may not have had in competing until well after the final.

Membership Agreement – Athletes

14 Each athlete was required, as a condition of his or her participation in the as a member of the 2004 Australian Olympic team, to enter into an agreement with the AOC, and observe its terms. This document is a lengthy one covering such things as agreeing not to bring oneself, or one’s sport, the AOC or the team into public disrepute or censure, compliance with the anti-doping requirements, making available a sample for collection pursuant to those requirements, advising the AOC of sponsorships, undertaking medical assessment and testing, intellectual property, insurance, gambling, participation in events, media, marketing and promotional activities, dispute resolution and so on. Of present importance are the media guidelines which cover a number of matters, including, in particular, the following –

“3. Unless and until directed by the Chef de Mission:

(a) athletes may comment or communicate with the media only in relation to their events, prospects and performances at the Games;…

“4. In giving any interview Team members must not disparage or criticise other Team members or their sports performances.”

…

17. These are guidelines only and may be amended or varied by the Chef de Mission at any time in his absolute discretion.”

It is obvious why the guidelines contain these provisions and why they are extremely important.

The Women’s Eight final

15 This race took place at Lake Shinias, a manmade course about an hour out of Athens proper, near the city of Marathon, on the morning of 22 August 2004, a Sunday. Six boats were in the race. The Australian team got away to a good start. The plaintiff said that he saw that at about the half way mark, the boats that were behind the Australian boat passed them and, when the Australian boat was about four to five hundred metres out, he noticed Sally Robbins in the sixth seat lying down on the feet of the rower behind her and was not rowing.

16 Ms Katie Foulkes was the coxswain of the women’s eight. She said that, at about the halfway point, she noticed Ms Robbins start to power back off a little and become quite clumsy. She said that she attempted to encourage her through this point without, as I understand it, any apparent effect and that, eventually, Ms Robbins was lying down and must have let go of the oar because it was actually out of the boat. I gather from Ms Foulkes’ evidence that the boat went on to finish the race after “strong words” from her that and, having crossed the finishing line, she instructed the crew to continue rowing. Ms Foulkes said that she heard a lot of noise in the boat when Ms Robbins stopped. Although she could not recall exactly what was said, I gathered from the way she gave her evidence that she accepted that things were said which were quite negative. Ms Kyeema Doyle was also a member of the crew. She said that she did not recall anything in particular being said in the boat: “I just heard a lot of screaming”. She said that things might have been said but she was distracted by screaming at the medical boat that it should stay away because she knew that, if the boat came alongside, spectators would get the “wrong idea about what was happening”. Even so, she did hear someone screaming something like, “Why don’t you swim?” Ms Doyle concluded from the fact that, as soon as the boat crossed the finish line, Ms Robbins sat back up and rowed the boat into the pontoon, “there was nothing wrong with her physically”.

17 The Australian boat finished last.

The immediate aftermath

18 When the boat crossed the finish line it was necessary to row around an artificial island to get to the boatpark pontoon and all eight rowers, including Ms Robbins, rowed to this point. There was, as Ms Foulkes put it, “a lot of emotion in the boat during that time”. Amongst other things, Ms Foulkes asked herself how it was that Ms Robbins was able to row at that point and row very well and several of the crew were asking questions indicating “a sort of disbelief” about what happened.

19 The evidence is somewhat confused as to what occurred in the immediate vicinity of the pontoon. The plaintiff described the protocol which, he understood, applied to the crew when they get off the water. There is an area restricted to athletes, firstly, and then, as the team members move away, they go past an area called a “mixed zone” where the media are waiting. He said that the media director should guide crewmembers through that area and assist with any questions that might be asked at that point. Then the boat is put on the rack and the crewmembers would go and change and again go through the area reserved for the athletes and on to an area with public access.

20 Ms Foulkes said that, when the crew came into the landing area, no one else was present. The media and the public were fenced off some little distance away. This was normal. Ms Foulkes said that, by the time the boat was actually being taken off the water and stacked away, someone would usually be on the pontoon. As she recalls it, the first person who came to the pontoon arrived just as the crew was in the process of getting their oars and other items out of the boat. This was a doctor who went straight up to Sally Robbins. He “sort of put his arm around her and took her off, which triggered some anger within some of the crew, you know, saying or shouting to him, ‘She’s ok, she’s ok, what about us?’ or something along those lines”. Since there was nothing physically wrong with the other crewmembers, these remarks were somewhat emotionally charged.

21 The next to come to the pontoon was the team coach, Harald Jahrling. Ms Foulkes said that she had a recollection of seeing Ms Robbins with the Media Liaison Officer, Michael Wilson, in the area where the media were standing. She said that when crewmembers went out into the main area, a number of reporters and camera crew were around. Ms Foulkes recalled that there was a conversation, of which she could remember very little, with Mr Jahrling in the boatpark. He was weeping. Ms Doyle said that she did not help get the boat up and derigged. She was crying on the pontoon and remained there for a while. She recalled Mr Jahrling, came to the pontoon “to help everyone” with the boat. She said that she was “sort of…picked up by Harald and sort of carried up to the trestles where the boat was”. She said she “was in a mess”. Ms Doyle said that she went over to where she knew her parents would be, in the public area, and, in doing so, passed the media pack. She said that she was standing next to Julia Wilson. As I understand Ms Doyle’s evidence, one of the parents had said that the course commentator had said that there had been technical difficulties in the race and there had obviously been a seat break in number 6 (Ms Robbins’ position). She said that she heard Ms Wilson talking to her parents, that she was angry but did not want Ms Robbins, as it were, to have “another excuse to get out of it”. Ms Doyle said that Ms Wilson said to her parents, “That’s not correct, there were only eight in the boat who were trying”. Ms Doyle thought that this was overheard by an Australian television reporter who was standing close to the group covertly recording what was being said. In fact, examination of the Channel 7 report gives a quite different picture to that of Ms Doyle, who had deliberately made the statement to the reporter and was not covertly recorded at all. (It is entirely possible that other remarks critical of Ms Robbins made by Ms Wilson to her parents at about the same time could have been overheard as Ms Doyle observed and later reported and Ms Doyle has simply confused the events.) Ms Wilson in fact said to the reporters, no doubt in response to the commentator’s remark, that there was no technical problem with the boat, the seat had not broken and there was nothing wrong with the other seven rowers. That there was something wrong with Ms Robbins was self evident. Ms Wilson’s comment, spoken in a conversational though perhaps controlled tone, was quite reasonable, taken literally but it had an obvious potential for misconstruction (as witness Mr Chris Reason’s use of it in a subsequent Channel 7 broadcast, dealt with below).

22 As Ms Robbins was leaving in the company of a team official, perhaps more than one, someone shouted out to her, “Tell the truth, Sally”. The evidence does not disclose who this was, although it seems to be accepted that it was one of the crew. I think this is likely. In the circumstances this was a cruel barb. There was no reason to think that Ms Robbins would say anything but the truth. Ms Doyle said that, at about this time, Ms Jodi Winter, another member of the crew, had come out into the public area and that some reporters had started to question her. Ms Doyle thought that Ms Winter was “completely lost and stumbled along with no idea what to do” so she (Ms Doyle) ran back to the boatpark and asked Mr Wilson for help, telling him “You’ve got to get us out of here because Jodi is stuck and that’s not good”. She and Mr Wilson then went up to Ms Winter and brought her back inside the park where press were not permitted.

23 It is evident that Ms Doyle was in an extremely emotional state as a result of the events that had transpired in the race and, as I have already commented, I think there is good reason for doubting the complete reliability of her account. On the other hand, whilst I accept that the crew were upset by what had happened, there is no evidence that justifies the conclusion that they were, with the possible exception of Ms Doyle (and this but briefly), emotionally out of control or anything like it. Ms Wilson’s reported statement was measured and sensible and she appeared calm. The only other comment of which there is evidence is the “tell the truth” gibe. Ms Winter did not give evidence and I do not think that I would be prepared to accept that she was incapable of handling the questions directed to her by members of the media, though I accept that that was Ms Doyle’s perception at the time. Even so, it must be said that Ms Doyle showed considerable presence of mind in understanding that discussion with reporters about what had happened and the feelings of the crew about what had happened was not a sensible thing to do at that time and getting Mr Wilson to intervene. At all events, a short time later, the team, or at least most of the members, were taken back to the Hotel Athena, which is where the team was billeted.

24 Mr Jahrling, Mr Wilson, Section Manager Mr Diplock and Assistant Section Manager Mr Huggett, were officials nominated by Rowing Australia and their nominations were accepted by the AOC Selection Committee presided over by the plaintiff. Under the AOC Operational Plan these officials had specific responsibilities which covered dealing with the team and its interactions with the media.

25 In October 2004 Mr Jarhling, sent a report to Charles Turner, the Director of the NSW Institute of Sport and Andrew Dee, the CEO of Rowing Australia. (This was not a report to the AOC, for obvious reasons.) Since this report was compiled, if not contemporaneously, much closer to the events reported, it should be given considerable weight. The report contains the following chronology –

26 The report also refers to a number further matters of relevance, including the following –

“The layout at Athens was that the boating area was effectively a compound which the media could not access. The crew could exit this area through a gate to meet their parents and loved ones after the race. There was an existing rule that even after exiting the gate the media could only approach the athletes after obtaining approval from the Section Manager and the Head Coach.”

27 No permission to do this was given. As it happened, Mr Jahrling remained in the boating area packing up equipment for transport. He thinks that when the members of the crew exited the compound, the media approached them contrary to the established procedures.

28 In Mr Jahrling’s view, the issue surrounding the race became a significant public controversy principally because the press were permitted to access the crew shortly after they had gotten off the water. I think it is obvious that there would have been a significant public controversy at all events but the evident anger and frustration exhibited by the crew immediately after they landed, when feelings were running at their highest, would not have been a feature. Mr Jahrling thought that the rules were not sufficiently clear in the events that occurred or were not sufficiently enforced to prevent the media from rushing the crew. There is no suggestion, however, that they had hitherto been other sufficient and obeyed.

29 It is evident that what happened to Ms Robbins took everyone by surprise and it was not predicted that some members of a crew (who had been welded into a cohesive team over many months, if not years, of training) would not only be hostile to her but also want to make that hostility evident to the media. Merely to have expressed emotional responses to losing would, no doubt, have been newsworthy but it could not reflect badly on the team or public perceptions of the team. A media scrum would not have been troubling, though it might possibly have been unpleasant. The failure to make the prediction I have mentioned could scarcely be laid at anyone’s feet. It is unreasonable, bordering on the absurd, to think that someone in the plaintiff’s position could be expected to micromanage arrangements with the media (that were, anyway, the responsibility of Rowing Australia) against the extremely unlikely possibility that a member or members of a team might wish publicly, and in defiance of the media rules to which they had subscribed, to express animosity towards one of their team mates and that this required greater control over the crew and the media than usual. He was entitled to think that those within the AOC and the particular sporting bodies who were responsible for managing media contact at the events were able to make appropriate arrangements to manage it.

30 In a report of mid-October 2004 Michael Tancred, the Olympic team Media Director, was critical of Mr Jahrling in several respects. I do not need to consider whether these criticisms are justified, though I should comment that Mr Tancred’s personal knowledge of what happened was limited. A mild criticism was made of “AOC media people on the ground” but Mr Tancred pointed out that it was “not their job to gather up a crew and take them away. That was a job for management”. (In this context, the plaintiff’s evidence – not sought to be controverted – was that the “management” was that of Rowing Australia.) The report makes it clear that it was not the case that there was no preparation for dealing with the situation that developed. Mr Tancred said that he was “disappointed for rowing and the AOC because we had dealt with this type of crisis in the section manager workshops we had with…the HR experts we used prior to the games.” The plaintiff had been involved as a member of the AOC executive committee in planning these workshops. Accepting Mr Tancred’s statement at face value (and there is no reason not to) it appears that the possibility of a crisis developing from a team not doing as well as it hoped or was expected, was anticipated and steps were taken by the relevant AOC officials to prepare the management of the sporting bodies for such an eventuality. Mr Tancred made the following additional comments –

“We all worked hard on planning for these Games. We ere prepared for security problems, heat, drugs and issues with transport, venues etc.

What is extremely disappointing is that people within Rowing [Australia] were aware of a ‘problem’ with Sally Robbins but chose not to share that with us.

At all Team Management meetings, we urged all our member sports not to keep us in the dark on issues, to make us aware of all potential problems so we could prepare but Rowing [Australia] clearly ignored that plea in regard to this matter.”

31 This evidence provides strong support for the plaintiff’s evidence about his knowledge of Ms Robbins’ difficulties. It also shows that the AOC had taken what appear to be all reasonable steps to ensure that a situation such as that which developed in this case was appropriately controlled. The criticism of the plaintiff in respect of this matter – media interaction with the crew at the boatpark – is completely unjustified.

The selection of the Women’s Eight

32 A significant undercurrent to the response of the team to what had happened in the race and probably significant to some content of the broadcasts in question concerned previous difficulties experienced by Ms Robbins in training and competition racing.

33 The actual selection process is not a direct issue in this case. However, the defendants’ tendered Mr Jahrling’s report (referred to above) to the Institute of Sport and Rowing Australia that dealt with this matter. Because of the criticisms, explicit and implicit, that have been made of this process in other evidence and the imputation that the plaintiff attempted to cover it up, I think it fair to set it out. What will become obvious, I think, is that there was no reason at all for the plaintiff to cover up the selection of Ms Robbins, even had he been aware of the underlying facts. Nothing in the process reflected on him, the AOC or, for that matter, Rowing Australia.

34 Mr Jahling reported –

“As you are aware, selection for the 2004 Olympic Rowing Team was governed by the Rowing Australia 2003/2004 Selection Policy Handbook. I was one of three (3) selectors, the other two (2) being Mr David Yates and Ms Barbara Fenner. The initial squad of ten (10) athletes and one coxswain had been selected after the February 2004 regatta. Selection was based upon the policy that I have referred to above which is based upon the athletes’ individual strengths, their performances on the ergometer, performance in small boats, single skull and coxless paid, and big boats (coxless four and the eight). All three (3) selectors agreed that we had selected the best athletes in the category. In May the final selection of the eight (8) was made based on individual performances in pairs and on the ergometer plus final trials in the eight (8). The three (3) selectors reviewed the matter once again and agreed that the best eight (8) athletes had been selected for the Olympic crew. At this point, for reasons which are obvious, it is appropriate to deal with the selection of Ms Sally Robbins.”

“Sally Robbins has been involved in elite level rowing for some years now. It is well known that Sally has had difficulties in finishing races. This has not been a regular occurrence, in that Sally fading or losing power in her rowing has not occurred in every race but, rather, on an intermittent basis over the years. This was indeed curious because, without doubt, Sally is one of the strongest athletes in women’s rowing and possesses excellent technical capabilities.”

35 Mr Jahrling then went on to describe the problem as being “not of a physical nature, rather it was a mental hurdle or fear” and in some detail goes on to set out the steps he took in order to assist Ms Robbins “to compete to her potential”. It is obvious that a great deal of attention was given to this problem since Ms Robbins’ positive attributes were so substantial. Mr Jahrling noted that all of the selectors were well aware of Ms Robbins’ difficulty in finishing some races. He commented, however, “when one considered the objective selection criteria, Sally consistently rated first or second in the boat”. Mr Jahrling was of the strong opinion that Ms Robbins’ appointment was fully justified despite what he described as a “subjective opinion and fear that Sally would fade at a critical time in the Olympics”. He pointed out that the Board of Rowing Australia and the High Performance Commission of Rowing Australia “knew about Sally’s problem and it was a matter that has been discussed with these bodies as well as being a matter for discussion among the selectors. Everybody was aware of the problem and the steps that were being taken to address that problem”. Mr Jahrling concluded: “Sally was selected because she more than satisfied the selection criteria”. Mr Jahrling referred in some detail to other earlier races and the steps that he took to improve the team’s performance.

36 Dealing with the Athens’ final, Mr Jahrling stated a number of concerns about how the team was performing but focused on Ms Robbins (that was, after all, the purpose of the report). He said that as part of the preparation for the final, he needed to address the issue both with other members of the crew and with Sally. He noted that her fading had happened before, and “the rest of the crew was very concerned about it”. He went to state –

“8. We analysed the race and plans on the final preparation. I separately met with Sally Robbins, Julia Wilson and Katie Foulkes, when we talked to Robbins about her strategies of dealing and overcoming her fear for the last part of the race. It was really more of a reminder of what she needed to do to concentrate on her rowing instead of worrying about failure. Sally assured me and other members of the crew that she was working hard to deal with the problem.

9. The crew made some excellent progress on the water over the next days. Peak speed increased dramatically. The starts became very fast. We rowed some very fast last 250m trying to sprint to the line. At this time the Eight rowed the best I have seen them since we started.

10. From this point it looked like we could fight with Germany, Holland and China for the Bronze medal. I didn’t really think that the USA and Romania were within our reach. My concern was that Robbins would be able to carry through the undertakings that she had made to me and the crew. She rowed well and hard but her body language and facial expressions suggested that she was struggling or was at least feeling the pressure of the Olympic final. I worked with her repeatedly every. She had the full support of all her crew mates. Everybody tried very hard to give her confidence.”

37 Ms Foulkes’ evidence was that in a race in 2003, Ms Robbins had “backed off considerably in power and technique” and this had also happened in races in Lucerne in 2004, a couple of months before Athens, and Amsterdam (I think also in 2004). These matters were, not surprisingly, raised with the coach and were the subject of discussions in the team including, of course, Ms Robbins. The coach said that this kind of problem was something which could be worked through and that there had been consideration of replacing Ms Robbins prior to the commencement of the Games by discussion with the selectors. Ms Foulkes said that a great deal of time and energy in training was devoted to the issue of what was called Ms Robbins’ “underperforming”. This issue was also mentioned at a press conference involving the plaintiff and the team that occurred on the morning of Tuesday, 24 August. I will discuss that conference in due course.

38 In this context it is, I think, worth making the following observations, though of course, as an ordinary layperson. First, it seems obvious that each competitor in any particular sport has particular strengths and, potentially, particular weaknesses. That Ms Robbins had a difficulty, on occasion, in completing a course when competing was plainly known to the team members, the coaches and, necessarily the selectors. It can be inferred – and the evidence to which I shall come in due course demonstrates – that it was decided by those responsible for nominating Ms Robbins to the Women’s Eight team that her strengths were such as to justify selection. Furthermore, it is patently obvious that the plaintiff was not involved in this selection process in any way. Nor was there the slightest evidence that suggested he was aware until after the race of the particular difficulties that Ms Robbins had occasionally demonstrated during races. Even if he was aware of the occasions to which I have referred, it would not have been proper for him to impose his own view on Ms Robbins’ suitability for Olympic competition on the selectors who had the advantage of far greater information about Ms Robbins’ suitability. I should also say that the supposition that Ms Robbins’ exercised some kind of voluntary decision not to continue to row during the Olympic final strikes me as quite unreasonable. I am no sportsperson but it seems to me to offend the most basic commonsense to think other than that she was attempting, with her team mates, to win the race. It may be that she misjudged one or other aspect of the race and her performance but the notion that she simply decided – as though she had a choice – to stop competing is, to my mind, plainly absurd.

The afternoon and evening of 22 August

39 In the evening of 22 August there was a function at the hotel where the rowers were staying, involving rowing officials and Australian Olympic team officials, parents and friends. Ms Robbins was present and appeared to be in the constant company of one or more coaches or staff associated with the team management. Team members, it seems, were left essentially to their own devices. There is no evidence that suggests that this was inappropriate. They had worked as a team for a long period. They understood each other well. There is nothing to suggest that they were incapable of discussing what happened and dealing with their feelings. Naturally, they needed time and space for this.

40 Before continuing the narrative from the points of view of Ms Foulkes and Ms Doyle, it is useful to go back a step and give the plaintiff’s account to this point. I interpolate that I found the plaintiff to be a careful, truthful and reliable witness and I am confident that his evidence on all the important issues can be accepted.

41 The plaintiff watched the rowing final, first on television and then outside. He said that at what he thought was 400m or 500m from the finish he saw something had happened to Ms Robbins. She was lying down, apparently on the feet of the woman behind her and had stopped rowing. After the boat crossed the line, he noticed that Ms Robbins sat up again. He saw the boat rowed out of sight to the boatpark. The plaintiff then watched the Men’s Eight final and returned, perhaps about midday, immediately to the Olympic Village to do some work. At about 6pm, he left the Village to return to the Hotel Athena to attend the party involving the rowers and their parents and friends. On his way he received a telephone call on his mobile phone. It was either from Mr Tancred or Ms Julia Dunstone (the Olympic team Assistant Media Director). The plaintiff was told that members of the crew had been publicly critical of Sally Robbins and that Channel 7 had offered Ms Robbins and her mother an apartment in Athens (so Ms Robbins could leave the team and not have to return to the Village) in return for an exclusive interview.

42 When the plaintiff arrived at the hotel, he met Mr Huggett and said to him –

“Look, Peter, I’ve heard there’s been this criticism [of Sally Robbins, as I understand the plaintiff’s evidence]. Can you please remind the girls of their obligations not to talk about other’s performance under the team media guidelines and I’d like to talk to Sally.”

43 Shortly after this conversation, the plaintiff was asked some questions about his reaction to what had happened by members of the Australian media. He told them what had happened as he saw it, commenting that Ms Robbins had appeared to physically hit the wall. He recalled making a comment to the effect, “she may have been working harder than the others”. The plaintiff said that he did not think that this observation reflected badly on the other rowers because it was not a criticism of them. If Ms Robbins was working harder at a different stage of the race than the others were, that may have been because she had not followed the race plan. It seems to me that this is commonsense. If it were the fact that Ms Robbins collapsed because she had rowed too hard, that would, I think, demonstrate a misjudgment on her part. I do not think that any fair-minded person would think that the plaintiff was being critical of the other team members. A reporter put it to him that the team members had been critical of Ms Robbins and he was asked if he thought this was “un-Australian”. The plaintiff said, “Yes, it is un-Australian to bag your mates”. This unfortunate comment has assumed some importance – rather more than its true significance – and I shall return to it in due course. (It is somewhat uncertain whether the plaintiff merely adopted what was put to him by a reporter or himself used the phrase but I do not think this matters.)

44 A little time after the impromptu press interview, Ms Robbins was located and sat down to speak with the plaintiff. The plaintiff told her that he had heard of the Channel 7 offer, that she should understand that if she did not return to the Village, she would lose her accreditation and could not participate in the closing ceremony or join the rest of the team to see other events. He also said that it would be likely to further alienate her relationship with the team. Ms Robbins agreed to return to the Village.

45 I think it was after this conversation with the plaintiff (the evidence is unclear about the actual time), Ms Robbins, with her mother, was interviewed by Mr Chris Reason of Channel 7. The ultimate broadcast included a number of items with Ms Robbins’ interview as a sort of thread and included the following –

Presenter: Australian Olympic Chief, John Coates, has bought into the Sally Robbins rowing controversy accusing her team mates of being un-Australian. He says their criticism of Robbins who stopped rowing in yesterday’s women’s eights final is unfair and breaches Olympic behaviour. …

…

“Commentator (of the race): Sally Robbins, I’m not sure what’s happened. Looks like she’s broken her seat or broken some equipment.

Reason: She hadn’t. Sally had quite simply hit the wall. Her mother was witness to every agonising second of it. As the reality of that moment hit, hearts sank and heads fell into hands. It is what happened next that struck hardest. In an exclusive interview with Seven News, Sally told how her team mates turned on her.

Robbins: I had some pretty hard words thrown at me. I had some pretty tough things to take.

Reason: Until today, Sally Robbins thought the mean machine only exists in a swimming squad.

Robbins: I haven’t really experienced anything like that before.

Reason: She copped a barrage of verbal abuse that ended in a physical threat.

Reason: Someone told me after the race that they had heard that they had threatened to throw you off the boat after that finish line. Is that correct?

Robbins: Yeah they did.

Reason: How did you cope? What did you say back?

Robbins: I didn’t say anything back because I didn’t know what to say. I was stunned myself.

Reason: So team mates were livid, their intense disappointment had turned into deep resentment.

Julia Wilson: I just want to stress it was not a technical problem out there. No seat broke, there was nothing wrong with the boat, there was nothing wrong with the seven other athletes around me.

Reason: There were even catcalls as Sally was taken for interviews.

Rowers? Tell the truth Sally, don’t lie.

Reason: What do you think of those other girls?

Marian Robbins (Sally’s mother): That is not for me to judge.

Reason: Sally confesses she’s collapsed mid-race before.

Robbins: Suddenly fatigue sets in and I just can’t move, you know. It’s a feeling of paralysis where you just hit the wall.

Reason: But she believes she can learn to control it and will race again. Her mum thinks so too.

Marian Robbins: You’re special darling.

Reason: As soon as she recovers from this. (Sally Robbins hugging her mother and crying)”.

46 The source of the announcer’s information about the statement attributed to the plaintiff is not clear. The plaintiff denies that he said that team criticism of Ms Robbins was unfair and breached Olympic behaviour standards. Certainly public criticism by a crew member was such a breach and he did say, in effect, that such criticism was “un-Australian”. In a release by AAP, Olympic officials were quoted as denying that Ms Robbins “gave up the race”, stated that the coach, Mr Jahrling, was “said to be furious” that she stopped rowing before the race ended, quoted Ms Robbins as saying “she rowed her guts out in the first 1500 and didn’t have anything left” and quoted the plaintiff as saying that Ms Robbins “is spending time with her parents in Athens” and as denying “the rower gave up, saying she collapsed from sheer exhaustion”.

47 Ms Doyle recalled that, shortly before the evening function there was a meeting – I think involving the crew, (with the exception probably of Ms Robbins) Wayne Diplock and Mr Jahrling, at which crewmembers were told not to comment to the media. I think this is the meeting described by Mr Jahrling as a “debriefing” that was more of a “media debriefing”. It may have been that this change of emphasis arose from the plaintiff’s request to Mr Huggett that the team be reminded of the terms of the media guidelines. By this stage, it was known by the team that Ms Robbins had spoken to the media about her performance saying in effect, that she was exhausted and had “given 110 per cent”.

48 The plaintiff stayed at the function and, in due course, returned to the Olympic Village.

The morning and afternoon of 23 August

49 According to Ms Doyle, it was on the morning of 23 August, that she spoke to Mr Peter Wilkins of the ABC. (It does not matter, but I wonder whether this interview was not conducted on the previous evening, the 22nd because of the time that the plaintiff was informed of it – see below.) At first, their conversation was off the record but, at the end, Ms Doyle put it on the record. Ms Doyle spoke about her feelings about the race. What she said was recorded. That recording was broadcast as part of the Lateline programme on 23 August, under the headline “Former Olympic rower discusses Sally Robbins’ collapse”, which comprised a discussion between Tony Jones and Olympics’ reporter, Peter Wilkins, about what had happened. Also appearing on the programme was Ms Rachel Kinninmonth, who had rowed as one of the Australian women’s eight team in the 2000 Olympics. Mr Wilkins introduced Ms Doyle’s contribution –

“There are two sides to every story, of course, as there is to this story. There is a sense of betrayal, that they took a very strong rower, a powerful rower, under their wing and she didn’t quite come up after showing some previous form. But also, Sally Robbins can feel betrayed by the crew who in her darkest hour shunned her. Both of those episodes are unfortunate.

Ky Doyle defended the crew’s position in the immediate aftermath of the race because they were only hearing one side of the story and that was Sally Robbins’ side of the story when she said she was giving 110 %, which hit a nerve with them. She defended it on another level too, defended those feelings of anger, Kyeema Doyle, by saying they should be angry because the whole episode – they had embraced a rower, taken a rower into their inner dreams and goals with some previous form and she feels that should have been picked up.”

Doyle: I do believe we should be angry. We should be angry at ourselves that we let this niggle carry on for so long. I think we should be angry at coaches for not seeing this earlier on, we should be angry at selection processes and the hierarchy above this. There is not one person you can point the finger at. It is extremely disappointing. What do we do now? Here we are at the Olympics. Our moment is gone. I believe we were the most ready out of everyone and we wanted it the most. It’s just unfortunate the trust we put into other people and the commitment that we had shown each other didn’t happen, like it didn’t come through, like the promises we made to each other were broken.”

50 Ms Doyle’s decision to allow her immediate and somewhat raw emotional response to the situation to be published was, as she said, the outcome of the emotions of anger, frustration and disappointment. In this context, the absolute ban in the media guidelines of making disparaging remarks about other team members can be seen as a very sensible rule indeed. It is a pity that it was not obeyed. It seems it did not occur to Ms Doyle at the time. That she was, however, in breach, and in serious breach of it, cannot be gainsaid. Even now, Ms Doyle appears to believe she was justified.

51 On 23 August, the plaintiff had gone to the beach volleyball venue, I think sometime in the afternoon. There, he was told on the telephone by members of the media office that Ms Doyle had given an interview to Lateline in which some disparaging remarks had been made about Ms Robbins and members of the media asked him what he was going to do about it. The plaintiff unsuccessfully attempted to contact the team Manager, Wayne Diplock and then spoke to Peter Huggett, the Assistant Manager. The plaintiff asked him where the crew members were and was told they had moved back into the Village but then gone off into town to enjoy themselves. The plaintiff told Mr Huggett, “Look, would you contact them and ask them to come back into the Village by 8 o’clock tonight and then I’d like to see them at 7.30 in tomorrow morning”. He also told Mr Huggett to tell the team that they were being kept in the village because they had spoken to the media despite the earlier reminder about the media rules.

52 The plaintiff conceded that, by treating the team as a whole in respect of their returning to and remaining at the village, he had disciplined them all for what it appears only two of them had done. He said that the problem was that the team members were, as he understood it, downtown where members of the media also were and he was unable at that time to be more specific about the two particular members – Ms Wilson and Ms Doyle – who had broken the rule. The plaintiff agreed that his direction was likely to hurt the team members’ feelings but denied that his request returning to and remaining in the village until his morning meeting with them should be regarded as irksome. He said that, at all events, they would have been coming back to sleep in the village that night so they were, in effect, being required to stay in the village only for three or four more hours than otherwise would have been the case. The plaintiff agreed that he intended to discipline the team to the extent that they were required to return to the village but, as I understand it, his preponderant motive was to have the opportunity to speak to the team before things developed any further and this could not, as a practical matter, be done before the morning. It would also give them an opportunity to reflect on the situation; it was often the case with mature teams, such as the rowing team, that these issues should be resolved amongst themselves and thus they needed to be together.

53 The plaintiff, looking back at what happened, said that he thought that the manager, the head coach and the media liaison officer, when the rowers got off the water, should have immediately moved them through the mixed zone and into the privacy of their own change rooms where they could have a talk about what had happened and what should then be done. This would have giving the crew an opportunity to collect themselves and, I think, get past their immediate emotional response to what had happened.

54 In the early afternoon of 23 August, the team had moved from their temporary accommodation back into the Olympic Village in Athens. It appears that the accommodation arrangements at the Village involved the entire women’s eight team being in an apartment together for the week. There was no space problem with this arrangement but, in the circumstances, Ms Foulkes did not think that it was a good idea. The problem, I think, was that there were strong feelings about what had happened in the race and that having all team members in close proximity could make for a difficult situation. This is powerful evidence of the strength of the feelings in the team about Ms Robbins.

55 Ms Foulkes approached Mr Huggett about the matter. When the matter was raised with him he said, something to the effect, “You are locked in the village tonight” and said this was “the order of John Coates”. When asked whether the entire crew were locked in, he said something to the effect of “yes, with the exception of Sally”. When asked to explain this ruling, Mr Huggett said that “it was to do with the fact that [you have] been speaking to the media during the day”. She said that she had not realised that anyone had spoken to the media. She saw this as a punishment and questioned Mr Huggett about it. He simply said, according to Ms Foulkes, that it was the order of Mr Coates and that there was a meeting with him in the morning. When asked what the meeting was about, Mr Huggett said, “It was to discuss whether or not you will be sent home on a plane first thing tomorrow morning”. Ms Foulkes, she says, was so taken aback by this instruction that she did not really enter into any discussion about the matter although Mr Huggett was, at all events, not very informative, citing Mr Coates’ authority for what he had said.

56 It is obvious from what I have already said that several of Mr Huggett’s statements to Ms Foulkes did not express what the plaintiff told him. The plaintiff had not used the expression “locked in”. Nor had the plaintiff excluded Ms Robbins from the request. It may be said also that Mr Huggett did not convey the plaintiff’s request that the team should be back by 8pm, which would have given them some time in town, though Ms Foulkes recollection of being “locked in tonight” is consistent with the plaintiff’s timeframe. Nor had the plaintiff said what the subject of the morning meeting was to be, although it was clear enough that it was to deal with the media publicity amongst other possible relevant issues. The plaintiff had not considered sending the crew home and certainly had not suggested to Mr Huggett that this was being considered, let alone that this was one of the matters to be discussed. This may have been Mr Huggett’s belief about events but he should have made it clear that this information did not come from the plaintiff.

57 Overall, Mr Huggett’s unnecessarily peremptory language put the plaintiff in a significantly false position so far as the women were concerned and transformed a reasonable, moderately expressed request into an authoritarian threat. I mention this at this point since much of the defendants’ case focused on what was contended to be the unfairness of the plaintiff’s request and the impression that it made on the minds of some of the crew members. This contention ignores, however, the transformation of the plaintiff’s request that I have described. Moreover, it was a transformation of which the plaintiff, quite reasonably, was unaware. The plaintiff’s message was simple, short and polite. He had no reason to expect that Mr Huggett would do any more that relay that message, still less that he would attribute to him matters which were not the fact and to which he had not referred. It is nonsense to suppose that the plaintiff, with his manifold responsibilities, needed to cross question Mr Huggett about what he was to convey to the team and ensure that he did not add any elaboration of his own, let alone attribute that elaboration wrongly to him.

58 It was not surprising that Mr Huggett’s message concerned Ms Foulkes very much or that, when she shortly after relayed it to the rest of the crew (but not Monique Heinke who was not at the village at the time), they responded emotionally, some angrily, seeing it as some sort of punishment and not understanding what they had done wrong. I think it is reasonable to suppose that a number of them felt embarrassed and humiliated. How long this lasted I cannot say but I would have thought that, after some reflection, the reasonableness of the plaintiff’s direction would have been appreciated, if disliked. Part of the problem was that there had been unfortunately added to it the threat of being peremptorily sent home and this must have added considerably to their resentment.

59 Perhaps an hour or so after the discussion with Mr Huggett, later in the afternoon, a number of the crew went for a walk to try to calm down and the mobile phones of three or four of them started ringing. Ms Foulkes remembered Ms Doyle talking to a reporter but did not recall specific details of what she said.

60 Ms Foulkes thought that the team needed some help, especially because there were some younger crew members who might be tempted to talk to reporters if the reporter used the device of being a sympathetic listener. The group discussed the issue and, I think, agreed that it was necessary to be careful. Ms Foulkes said that, up to this point, she had not recalled the media conditions in the agreement but that, at all events they reflected her personal view about the desirability about speaking to the media and she would not anyway make a statement that was critical of another team member.

61 About ten minutes after Ms Foulkes overheard Ms Doyle’s conversation with the reporter she decided that she would call the plaintiff and ask for help. He did not answer his mobile telephone so she left a message on his voicemail to the effect, “We need help. Things are out of control”. This was about mid-afternoon. So far as the plaintiff’s recollection goes, he received a message that Ms Foulkes had telephoned at 4.00pm. At one point in his evidence he said there was no text but then said that the message from Foulkes was to the effect that, “I really need some advice about the race and as to what is happening to us and how to deal with it”. He recalls only one message. The plaintiff said that, although he wrote down the fact that he received a call from Katie Foulkes at 4pm, he did not return it because by that time he knew that he was meeting the team at 7.30 the following morning and regarded that as the appropriate opportunity to give this advice and information. I gather that the plaintiff also thought that he preferred to deal with the team members as a group. Furthermore, he was busy with other responsibilities.

62 Following the call to the plaintiff’s telephone, Ms Foulkes went to see Mr Huggett again in the team manager’s room. By then she was in tears, which was out of character for her. She said to Mr Huggett words to the effect that the team needed some help, that things were getting out of control and that the media had starting calling their mobile phones. Mr Huggett’s response was not sympathetic. She said he replied, “You girls should have been nicer to Sally”. Ms Foulkes was confused by this response, indeed dumbfounded, and asked Mr Huggett what he meant, in what respect had the team not been nice to her. She does not recall what his response was except to remember that he was not forthcoming with any help. She recalled that at this time Wayne Diplock, the Team Manager, was somewhere in the vicinity.

Team members meet with Mr Eales

63 Mr Eales was a rugby union player, a former captain of the Wallabies and a highly respected athlete. He had been assigned the role of athlete liaison officer at the 2004 Athens Olympics. There were several such officers. Mr Eales was assigned to a number of teams, including the rowing teams. He had been present at the rowing venue for the final of women’s eight and observed most of the race. He did not actually see Ms Robbins collapse in the boat but did notice shortly after that she was lying down. After the race, he caught a bus back to the Olympic Village. On the bus were both administration and competitor members of the Australian team, but not the rowers. Julie Dunstone was there and mentioned that, when the women’s eight boat had returned, there were members of the media around and, as I gather, some comments had been made in the heat of the moment. Ms Dunstone did not describe with any particularity what had occurred. Sometime after Mr Eales returned to the Olympic Village he telephoned the plaintiff and said that, if there was anything he could do to help in is role as an athlete liaison officer, to let him know. Mr Coates thanked him for his offer but did not immediately take him up on it. No criticism was directed at the plaintiff by the defendants about this and I therefore to not need to say more than there was no reason for the plaintiff at this point to think that anything other than normal support was necessary.

64 On the following day, 23 August, Vicky Roberts, the captain of the women’s rowing team and a member of the women’s eight crew, telephoned Mr Eales and said that she would like to have a chat to him about a way forward. The evidence does not disclose when this occurred, but I assume it was some time after the team returned to the Village. Mr Eales was aware that there was publicity back in Australia concerning the women’s eight final, some in favour of Ms Robbins and some on the side of the crew. He told Ms Roberts that he was very happy to have a chat but that he was at that particular time watching other events to which he was committed and he would not be back in the Village until about 10pm. They arranged to meet at that time. Mr Eales then telephoned the plaintiff and said to him, in substance, that he was meeting with the women’s rowing eight that evening and would speak to him afterwards.

65 Mr Eales met with Ms Roberts, Ms Foulkes and Ms Wilson in one of the meeting rooms at the Village at about 10pm. By the time he came to give evidence he did not recall more than the thrust of the conversation. Mr Eales said that the women were “very uncomfortable about the circumstances they were in at that stage and…the pressure that they were under from the media”. He said that he gathered that “they were scared of the situation that they were in” which was unfamiliar to them and “wanted help with the way to move forward…from a situation where they had so much hype…surrounding their situation”. He said there was some anger, which he described as “general” but that it was not “really” directed towards Ms Robbins “in a hostile way”. He said that they mentioned that Ms Robbins was at the centre of the issue but could not recall anything specific about this. However, he was emphatic that they did not say anything critical of Ms Robbins. Mr Eales said that his response was, in substance, to suggest that they should move forward and that this could be done negatively or towards “healing the situation”. Mr Eales told them that it was unfortunate that things had reached the present point, where there was “uncontrolled speaking” but added, “It is going to be important that something is said to the press going forward”. So, at the end of the discussion, he suggested that to move the matter forward it was necessary to speak with Ms Robbins as well and told the women that he was happy to talk with her in their presence or else talk to her alone. They said that they would prefer Mr Eales to speak with her alone. This is what then happened. Mr. Eales said that, at this time, Ms Robbins was “very, very upset, very scared, in an environment that she had never experienced before and never anticipated experiencing”. He said that he tried to get an understanding from her as to what happened and told her that the other team members “were going to need to know…and that [she] would need to be able to have some explanation for that”. He told her this because he had gathered from the other three women that “they wanted Ms Robbins to explain what had happened”. Ms Robbins said that she understood this need. The conversation took about twenty minutes or so and, by then, Ms Robbins had settled down.

66 Mr Eales then called the three other team members back into the room and reiterated the point that he had already made that the matter “could go towards healing or it could go towards maintaining animosity”. It is not clear from Mr Eales’ evidence whether he had learned of animosity amongst the team from the three women he had first spoken to or from Ms Robbins or perhaps both. However that may be, their response to these possibilities was that “they absolutely wanted to head towards healing, they wanted to be seen as a united group moving forward but they needed an explanation from Sally before being able to do that”. Mr Eales said that Ms Robbins then gave an explanation. At the end of the meeting, Mr Eales repeated what had already been a theme of the meeting, that at some time there would have to be an explanation to the public, through the media of course, for what had happened, I take it not only by Ms Robbins but also the team and that an explanation would have to be made to the plaintiff because, as head of the team, he deserved an explanation. It is evident that that this was agreed. It was also agreed that they would meet with Mr Eales in the morning the meeting with the plaintiff and that this meeting should involve the whole team. I think it is significant that the women did not raise with Mr Eales any issue about being required to stay in the village that night until they spoke with the plaintiff in the morning. This suggests that this was not, by that time, seen by them as an unreasonable direction.

67 Ms Foulkes was less satisfied with the meeting than Mr Eales thought, largely because of undercurrents of which he was unaware. As Ms Foulkes described it, by the time of the meeting with Mr Eales the situation was that there was a great deal of speculation by team members about the possible response of the AOC or team management to what had occurred, not so much in the race but what some team members had done after the race. Ms Foulkes recalled that there was a preliminary agreement that the race itself would not be discussed since what had happened was not going to be shortly resolved. There is very little detail in Ms Foulkes’ evidence about what had been done by team members but it is clear that there was a great deal of media speculation about the attitude of the team to Ms Robbins and other suggestions that the management was considering returning the team to Australia overnight. Ms Foulkes thought that it would be useful for Ms Robbins to communicate to the public what had happened in the race, that this had happened before and that the team had been very supportive of her through training and into the Olympic competition. She also wanted Ms Robbins to say that her problem was a psychological rather than a physical one. Ms Foulkes said that stopping for physical causes seemed to be more out of a rower’s control than stopping for psychological reasons and that therefore the latter cause seems to let the team down in a way that is not the case with a physical difficulty. At all events, plainly enough some at least of the team thought it was important that Ms Robbins should acknowledge that she had a psychological rather than a physical problem. (Ms Foulkes and some other members of the crew had thought that this problem might have led to her having been stood down from the team. Indeed, Ms Foulkes and the coach had discussed the matter for some time and, during the week of the Olympics, whether Ms Robbins should step down. I discuss later how this matter developed, since the defendants’ appear to place some importance on it.) It will be recalled that it was decided that Ms Robbins should come in to talk with Mr Eales and the others left the room. It was then that that Ms Foulkes saw Ms Robbins’ interview with Channel 7 to which I have already referred. She was so upset by it that she did not feel she wished to speak to Ms Robbins at that time. Thus Ms Roberts collected Ms Robbins and brought her to the room.

68 As Ms Foulkes recalled it, the evening meeting then broke up with not much being achieved except that it was understood that there would be a public communication of Ms Robbins’ situation. It was agreed that there should be another meeting the following morning before that which had been arranged with the plaintiff. Some time after the evening meeting with Mr Eales, Ms Foulkes received a message from a friend that the plaintiff had said the team was un-Australian. Ms Foulkes was very upset and indeed, physically sick.

69 I accept that Ms Foulkes’ evidence is her best and honest recollection of the meeting with Mr Eales. However, I do not accept her judgment about its significance. At the press conference on the morning of 24 August, she said (at a time when the events were still fresh, in contrast to when she gave evidence) –

“…Fortunately we've had John Eales step in and give us some great guidance to be able to sit down as a group and again resolve as a group these issues and to be able to come forth and speak to you all as a group which I think is fantastic and again a sign of our team of how strong we are….

[Later on the following exchange occurred –]

Q: Katie you said before that you felt isolated from the rest of the team. Is there an example where someone from outside the rowing fraternities had something to say about the incident, maybe inside the village? Katie?

Foulkes: No, no, no nothing, nothing specific like that. I think maybe bringing it back to the question before of um how we became united again. All it took for someone, in the case of John to help us out and sit us down in a room and it literally took a couple of hours late last night, and that was more the concept. We just needed a bit a guidance, we, we were very emotional and once someone could assist with that we were right on track.”

70 Even accepting Ms Foulkes present view accurately described her feelings at the time, objectively the meeting was very worthwhile. It was a positive step towards dealing in a constructive way with the issues that had arisen concerning both the media and, just as important, the unhappiness and animosity amongst the team. A significant catalyst for this occurring was the step taken by the plaintiff to require the crew to return to the Village. I do not suggest that he foresaw quite what happened but he certainly expected that being together would engender some reflection about what was happening and hopefully some process towards resolution. In this respect, I think that that the good sense of the plaintiff’s intervention was entirely vindicated, for all that it may have given rise to some resentment in the crew, a response that might well have not occurred at all events had Mr Huggett spoken more moderately. It is also worth mentioning, I think, that Mr Eales’ involvement at Ms Roberts’ invitation was exactly the kind of role he was there to perform and vindicates the decision of those responsible, no doubt the AOC, that someone like Mr Eales should be available to help the athletes with problems that might arise.

71 Following his meeting, Mr Eales reported to Mr Coates, going to his room in the administration section at about midnight. He reported that the women’s crew had been talking about what had happened and, although no conclusions had been arrived at, it was planned to meet again in the morning and Mr Eales would report to him again after that meeting. The plaintiff’s account is somewhat more detailed (see below).

72 As planned, Mr Eales again met with the rowers on the morning of Tuesday, 24 August 2004. All the crew were present except for Monique Heinke. (Her absence was explicable and is not relevant.) He was surprised to see that the women were in their full Olympic uniform, obviously a matter of some significance. He briefly repeated to the whole team what he had said at the previous meeting, the essence of which was, as he saw it, “to work out a way forward”. Ms Robbins then spoke to the team and described what had happened to her. A number of the crew wanted Ms Robbins to say that her problem was not a physical one and that she should say that publicly and also that she should say that she had had this problem before. Mr Eales did not recall that any criticisms were made of her. Several of the crew aired their feelings about what had happened and raised various matters (which Mr Eales did not detail) and then, as Mr Eales put it, “We spoke about what was the way forward”. In dealing with this aspect, Mr Eales said that Ms Robbins and probably one or two other crewmembers would need to meet the press. However, the response of the team was that everyone should be present. Mr Eales added the point, obviously agreeing with this approach, that what was to be said, “needs to come from the heart” and he counselled against reading a statement. It was also agreed that there was a need to explain to the plaintiff – as well as to the media – what had occurred. So far as the plaintiff is concerned, Mr Eales said that he was entitled to have from the team an explanation both as to what had happened in the race and their conduct following the race.

73 It is obvious that the team had already moved forward substantially from the situation of the previous 48 hours. No doubt individuals still had some issues outstanding and, perhaps strong feelings about them. However, the most obvious and very positive feature about what was now happening was that the crew were acting as a team. The other very important element of the situation is that this occurred, essentially, out of their own personal resources of good sense and maturity, aided somewhat – I think by way of articulating what they would eventually have arrived at themselves – by Mr Eales’ helpful involvement.

74 So it was that, when the plaintiff attended the meeting, he met a team and not a number of feuding individuals. They had already decided what they wanted to do. Ms Foulkes spoke first on behalf of the team and others then raised particular matters. Mr Eales was not able to recall, when he gave evidence, precisely what was said, but did retain a general recollection of the meeting, in substance that the crew “wanted to move forward” and wished to explain to the public what had happened and for this purpose to have a press conference. He said that there was no hostility expressed towards Ms Robbins but she was expected to explain what had happened. He said that no one mentioned in the meeting of Monday night that what had happened to Sally Robbins during the final had happened before. During the meeting one or other crewmember mentioned that they had not had any experience in dealing with the press in the circumstances and asked what should be done. The plaintiff said that he would arrange for Mr Hamill to speak to the crewmembers about the conference and Mr Hamill came into the meeting shortly after for that purpose. He did not deal with the issues that were to be raised but answered questions about dealing with the press generally. Amongst other things, the team decided that Ms Foulkes would speak first, then Ms Robbins and then Ms Wilson and then they would all be available to answer questions from the media. Mr Eales stated that neither he nor the plaintiff told the team what they should or should not say at the impending press conference.

75 Ms Foulkes said that she approached the morning meeting with Mr Coates in an extremely nervous state in the sense that the team was perceived as having done something very wrong to be called un-Australian and, as she believed, was about to be sent home. Ms Foulkes had spoken to all the team members (perhaps not Ms Robbins) to make sure that it was agreed that the meeting with the plaintiff was not about the race as such but “it was about coming together and making sure that our Olympics didn’t end there and then”. It was Ms Foulkes who asked the team to attend the meeting in uniform. Amongst other things, the crew captain, Ms Wilson, said that she wanted to apologise to the plaintiff for speaking to the media and she apologised to the team as well. Ms Foulkes said that, as she understood it, the main reason that the team had for wanting Ms Robbins to say that she had stopped rowing before, that this was due to psychological and not physical reasons, and that she had been supported by the team in working through the problem was that “the public was seeing this poor young thing that had just pushed too hard at the beginning of a race and that we had been awful to her”. In part, this response arose from the interview which Ms Robbins herself gave, to which I have referred, when she was in tears and suggested, Ms Foulkes said, that the team (as distinct from a particular team member) had threatened to throw her out of the boat and this made the team look bad. Ms Foulkes said that a couple of her crewmates who were very good friends had become very distressed about the fact that they seemed to be being portrayed in the media as having acted in a nasty way. Ms Foulkes said that she had not herself seen this but she was reacting to what her friends had communicated. Ms Foulkes said speaking for herself, but I think it likely to be true of the other team members, that they wanted an end to the unfavourable publicity that the team had been apparently receiving in Australia: they wanted to show the team as united once more.

“However, I won’t go on here. I noted your comment at the end. I didn’t call because I didn’t need to call. I have my own views, and I expressed them. I didn’t say that the girls were told what to say. I couldn’t have cared what the girls were told. But I know that by and large they were abandoned, and that’s all that matters. And if the AOC was ignorant of circumstances confronting the crew then that’s an abandonment of its own. …”

179 The denial by Mr Jones that he did not say that the crew was told what to say at the press conference is in stark contrast to the following words in the broadcast –

· “They practised a cover up from the moment something happened to Sally Robbins and the leadership of the Olympic movement, Coates and others, virtually were telling people what to say.”

· “The parents of the crew…raised concerns that the AOC told the crew what to say at a news conference in Athens” plainly enough, a statement adopted by Mr Jones.”

180 Having regard to the references to cover up and, by implication (as found by the jury) to bullying, I do not see how Mr Jones could candidly say that he did not care what the crew members were told. Indeed, as is clear from the contentions advanced on the defendant’s behalf, a great deal of his case focuses on what the team was told. At the same time, I do not think that it would be fair to conclude from this email that Mr Jones did not believe that the team members were told what to say. I think he really intended to convey that this was much less important than his view that they “were abandoned”. That is not to say that the opinions expressed by Mr Jones in the broadcast and that expressed in his email are consistent. However the plaintiff bears the onus of establishing that the opinions expressed in the comments were not honestly held. That requires me to find that I should prefer the statement in the email as an expression of Mr Jones’ state of mind to that in the broadcasts. They are, I think, substantially inconsistent but I am unable to say which of them is the truth.

181 The plaintiff relies on additional circumstances which, he contends, strongly suggest that Mr Jones did not believe the comments he made. The first of these is an article by Roy Masters in the Sydney Morning Herald on 8 December 2004, which made no allegations that the team members were told what to say at the press conference. The reference by Mr Jones to what was being said by the rowing parents certainly does not come from that article, which details a number of statements made by parents to the Australian Sports Commission.

182 In the end, however, I am unpersuaded that Mr Jones’ statements (attempting a neutral term) in the broadcasts were not honestly held.

Comment of a stranger

183 The defendants point to the Roy Masters’ article as being part of the evidentiary material justifying the conclusion that indeed the “rowing parents” said what Mr Jones’ asserted they said. Firstly, I do not think the newspaper report provides an evidentiary basis for finding that the “rowing parents” indeed said what was attributed to them. But, at all events, the newspaper report does not suggest that the parents alleged either a cover-up or that the team had been directed what they should say. Moreover, there does not seem to me to be a sufficient evidentiary basis for concluding that, indeed, the parents made the remarks attributed to them by the defendants.

184 At all events, it is clear that Mr Jones adopted what the parents had said so that, if it was their comment it also was his. Accordingly, it seems to me, that the defence under s 34 of the Defamation Act 1974 fails. It also seems to me that the allegations attributed to the parents of some team members as referred to in the first and second matters complained of namely, that the leadership of the AOC “practised a cover up” and “virtually were telling these people [the team members] what to say” and, in the second matter complained of that three parents of the crew raised “concerns that the AOC told the crew what to say at a news conference in Athens” are statements of fact and not comment.

Contextual truth

185 The defendants submit, but without any elaboration, that by reason of the substantial truth of one or more of the plaintiff’s imputations, publication of such of the imputations as are found not to be matters of substantial truth, did not further materially injure the reputation of the plaintiff. I have found that not one of the imputations were substantially true. It follows that I do not have to consider the issue of contextual truth.

Damages

186 I do not think that it can be doubted that the imputations were a serious attack on the reputation of the plaintiff. In the context in which they were made, namely his position as head of the AOC and Chef de Mission of the Australian Olympic team at the Athens Olympics, they amounted to a broad ranging attack not only upon his managerial capacity and judgment; so far as the bullying imputations were concerned, they bespeak an abuse of his position in relation to the very athletes for whose care he was ultimately responsible; so far as the “cover up” imputations are concerned, they necessarily involve, I think, the suggestion that he, in the position which I have described, was not only less than candid but also misused his position to present a false picture to the public of the management of the Australian Olympic effort so far as the Women’s Eight rowing team was concerned. In short, the imputations of bullying and cover-up involved more than mere managerial incompetence or bad judgment, but amounted to attacks on his personal integrity. Of course, the slurs, though focused on the management of the women’s eight team, necessarily affected his reputation and work as head of the AOC and Chef de Mission at the Olympic Games as a whole. That this was understood by the defendants is clear by Mr Jones’ repeated assertions that what had occurred demonstrated the plaintiff’s unfitness for his position.

187 There was no specific evidence as to size of the audience of the three broadcasts, as I understand it because they occurred outside the ratings periods. However, the plaintiff tendered three Nielsen surveys for the two survey periods before the publications and the survey period after them. Assuming consistency, and there is no reason to suppose otherwise, at least in order of numbers, the early morning audiences would have been perhaps around ninety thousand and that for the later morning broadcast of something well over one hundred and seventy thousand people. Taking into account the grapevine effect it can be readily accepted that the number of persons who became aware of the defamatory imputations to a greater or lesser degree of specificity was very large and certainly enough to adversely effect the plaintiff’s reputation in the world outside his immediately social, sporting and business associates. The imputations would also, I think, have come to the ears of all those committees and bodies of which he was a member and with which he had dealings in his professional capacity.

188 There was substantial evidence of the plaintiff’s reputation. He is a well-regarded solicitor, a partner in a substantial and well-known Sydney firm, and is a member of the Boards of a number of public companies. His connection with sporting bodies at the highest level, including those that are part of the Australian Olympic movement, have been long standing and have given him not only a national but an international reputation. His continued involvement in the Olympic movement means, of course, that he has continuing responsibilities in connection with athletes in a wide range of sports, some who might know him but many of whom would only know him by reputation. A great deal of what he does necessarily involves personal communication, whether directly or indirectly. Respect for the leadership, management, judgment and propriety of someone in the plaintiff’s position is therefore a vital part of his or her effectiveness. It is self-evident that the plaintiff must be in communication with heads of other sporting bodies in Australia and abroad where mutual trust and respect is essential for effective working relationships. The defendants’ attack on the plaintiff’s reputation has the real potential for inflicting particular injury in this context.

189 The plaintiff gave evidence of his feelings of annoyance and hurt when he heard the broadcast of the first matter complained of on 8 December 2004 (there is a question whether the plaintiff actually heard the first broadcast but I accept his evidence that he did). As it happened, he did not hear the second broadcast but found out about it later in the day. He said that the imputation about the cover-up made him feel “terrible”. He heard the third broadcast on 9 December 2004 and gave evidence that he was upset by it. The plaintiff attended the AOC Christmas party on 9 December 2004. He said that Mr John O’Neill, at the time the Chief Executive of the Football Federation of Australia raised the broadcasts with him as did others who were at the party, all having significant positions in Australian sporting life. They were again raised later when, with his family, he went to the Gold Coast for a holiday. He was troubled also that the attack on him might damage the reputation of the AOC, to which he has given many years of his life. He was asked how that affected him and said, “Well, it terribly upsets me, greatly upsets me…” Hitherto the plaintiff had given his evidence in an unemotional and carefully modulated manner. At this point, there was a significant though controlled change. I have no doubt that he felt very deeply indeed about the attacks on him and their possible effect on the movement about which it is obvious he is passionate. This was still evident two and a half years after the broadcasts.

190 The litigation had taken some two and a half years to get to hearing. Being a litigant is a troubling and difficult experience, especially where, in a proceeding such as this, the defendants maintained that the imputations they had made against the plaintiff’s character were substantially true. The cross-examination of the plaintiff by senior counsel for the defendants was, as one would expect, a skilful dissection of the plaintiff’s evidence and conduct, which, although perhaps it was not designed to hurt, gave no quarter. It would have been an exceedingly unpleasant experience. The suggestion in submissions made in open court that the plaintiff had attempted to cover-up a scandal and that this was by bullying the athletes, must have added salt to the wounds.

191 The defendants submit that the imputations against the plaintiff’s reputation and character made by the defendants are at “the low end of the scale of seriousness”. It is obvious from what I have already said that I do not agree with this characterisation. I regard the attacks as very serious, adversely affecting his reputation, not only for managerial competence, but personal integrity. The imputations about bullying involve the abuse of his authority whilst the allegations about cover-up attack his candour and honesty. Indeed, Mr Jones himself thought that they were sufficient to require the plaintiff’s removal from his position of leadership of the Australian Olympic movement. It may be that people who know the plaintiff well would have dismissed the imputations out of hand but, even here, the confidence of rejection might have been undermined somewhat by the persistence of the defendants in maintaining that they were true. It should also be borne in mind that, in the third broadcast, Mr Jones reminded his listeners that he was Deputy Chairman of the Sports Commission, so he was not speaking as a mere radio commentator. The plaintiff’s reputation in the sporting community may have remained largely intact, at least by many of those with real knowledge of his work and commitment but this comprises but a relatively small portion of those with an interest of greater or lesser kind in the plaintiff’s reputation. It is obvious that the sports that are involved in the Olympic movement form a web of continuing interaction at a number of levels, including those in which the plaintiff is directly involved. This very large group of people – officials, athletes and their coaches and families – have more than the passing curiosity of the uninvolved members of the public who may have happened to have heard the broadcasts. Doubts about the plaintiff’s judgment, fairness and candour might well have been introduced, doubts with which he should not need to deal. The confidence of a significant number – especially those involved in the Olympic movement – about his reputation would probably have been weakened by the knowledge that the defendants have maintained throughout that the imputations were substantially true. Be that as it may, it defies commonsense to think that there would not have been a large number of members of the general public and especially those interested in sport whose opinions of the plaintiff would not have been adversely affected by the broadcasts and who still have those opinions or concerns.

192 The defendants put in mitigation of damages that the broadcasts were transient or ephemeral in nature, contrasting this with a newspaper report which would be in permanent form and might readily be reread. I do not think much of this. Newspapers are almost as ephemeral and are I think rarely reread. There were three broadcasts, the third reminding listeners – and I think there are many loyal listeners – of what Mr Jones had previously said.

193 It is argued also by the defendants, relying on John Fairfax Publications v Zunter [2006] NSWCA 227, per Handley JA at [50]-[51] that the plaintiff’s damages are mitigated by proof of such parts of the matters complained of as are established. I am very doubtful that any of the matters relied on (set out below) fall within the principle stated by Handley JA but, against the possibility that I am mistaken in this view, I should state my conclusions about the substance of the submissions are stated.

1. The evidence by Ms Foulkes that she felt humiliated at being placed under “house arrest” by the plaintiff and the admission by the plaintiff that his intention was to “punish” the team and such punishment was collective punishment.

2. The plaintiff’s “un-Australian” comment.

3. The evidence by Ms Foulkes by feeling “physically sick” on hearing about this allegation which had not been publicly withdrawn.

4. The evidence of Ms Foulkes that she felt she had been bullied; and

5. The evidence by Ms Doyle that she was terrified at not being able to answer the questions in the way she wanted to at the press conference because of the plaintiff’s instruction about the media guidelines.

194 The first, and most obvious point is that none of these matters were mentioned, either explicitly or implicitly in any of the matters complained of. Nor do I see how any of them mitigate the damage inflicted by the imputations. I have already said that I regard the plaintiff’s direction to the team to return to the village and remain there until the interview with him the following morning to be a reasonable and indeed a sensible approach to the developing problem. That individual team members might have overreacted to the direction cannot be laid at the plaintiff’s door. The plaintiff did say that there was a measure of discipline involved in what he did. No doubt there was. But I think it was not one whit more than was appropriate. So far as it involved “punishment”, it was mild and necessarily followed from the decision to get the crew back to the Village at a reasonable time and stop any further problems from developing, insofar as that was possible to do. The “un-Australian” comment was unwise but its significance has been overstated considerably. The plaintiff was entitled to deprecate strongly the making of criticisms of Sally Robbins by her team mates and to point out that this was detrimental to the integrity not only of the Women’s Eight team but also reflected badly on the Olympic team. This was a perfectly reasonable opinion to have – and, as to the first element at least, demonstrated by what happened – and the mere fact that he used picturesque language to express it does not make it unreasonable. It was perhaps an unwise expression in the circumstances but it is immaterial to the measure of the plaintiff’s damages. Accepting that Ms Foulkes was ill when she heard of the comment, I think that this was an overreaction to which it was not reasonable to suppose the plaintiff should have adverted. As to bullying, Ms Foulkes was not, and none of the crew were, bullied by the plaintiff. I have already commented that the defendants’ submissions misstate the evidence on this matter. As to Ms Doyle, she was bound – and rightly bound – by the media guidelines to which she had agreed as a condition of her selection in the team. To have criticised Ms Robbins further would have undermined the line that the crew had agreed should be adopted and destroyed the unity which they wished to demonstrate. Insofar as she was influenced by the plaintiff’s insistence on compliance with the guidelines, this was salutary in the circumstances. The plaintiff was entitled to give priority to the line that the team wished to adopt: it was plainly right and it was plainly in their interests.

195 The defendants’ submit that all the imputations are to the same purport or effect and therefore that the damages awarded in respect of each should be taken into account in mitigation of the damages of the others. In a sense, the imputations are connected: the bullying was the mode by which the cover-up was attempted and both bullying and cover-up reflected badly, if true, on the plaintiff’s management and leadership. Nevertheless, each is a distinct attack on different aspects of the plaintiff’s reputation. In setting the damages, I have stood back to consider whether the total awarded involves double counting or a sum greater than that justified by the total effect of the imputations and needed to compensate him appropriately for the defamatory publications.

Aggravated damages

196 The plaintiff seeks aggravated damages for the following reasons. Following the first two broadcasts, Mr Eales telephoned Mr Jones to tell him that the allegations were false. Mr Jones responded with language about the plaintiff that was characterised by Mr Eales as “not highly complimentary” and which, I infer, were offensive. On 9 December 2004 Mr Jones, despite what he had been told by Mr Eales, attacked the plaintiff again although he did not repeat in terms the cover up allegations, he adopted what he had said the previous day in introducing the attack on the plaintiff’s competence. It is submitted that this conduct was “improper, unjustifiable and lacking in bone fides” such as to justify aggravated damages.

197 The plaintiff was upset by Mr Jones’ response to Mr Eales’ intervention: not only was there was no correction of what had been previously said, but the attack was pressed and the previous allegations adopted.

198 The plaintiff also relies on the email from Mr Jones to Mr Tancred to which I have already referred. The third matter is the inconsistency between the broadcasts and the article in the Sun Herald upon which it was said to be based. Furthermore, Mr Jones did not make any inquiries of the plaintiff and did not refer to Mr Tancred’s denial as reported by the journalist in the article. This, it is contended, indicates such a gross disregard for principles of ordinary decency and fairness in the context of an attack upon the reputation of a person as to indicate an indifference to the truth and an indulgence in the powerful platform provided by the first defendant to the second.

199 Although I think there is a proper basis for the submissions in this regard made by the plaintiff, and the case mounted by the defendants on the issue of truth was tissue thin, I do not think that it has been established to the appropriate standard that the defendants have acted so egregiously as to justify the award of aggravated damages. The lack of any apology and the persistence by the defendants in their plea of truth may be taken into account appropriately in the award of compensatory damages.

Conclusion

200 The damages to which the plaintiff is entitled is such sum as will place him in the same position as he would have been in had he not been wronged, to the extent that money can do this. This requires consideration, not only of his injured feelings but the amount that will vindicate his reputation. To some extent, this judgment should do so, but it is unreal to suppose that it will be read, or even come to the attention, of many. A substantial sum must be awarded, in my view, to satisfy the purposes of the law. It is unreal to award separate sums for each imputation or each publication. I propose to award an amount in respect of each class of defamatory matter.

201 Accordingly, in respect of the bullying imputations, I award the sum of $130,000, in respect of the cover-up imputations, the sum of $130,000 and, in respect of the incompetence imputations, the sum of $100,000.

202 I will deal with the questions of interest and costs after submissions on the point.

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Citations

Coates v Harbour Radio Pty Ltd & Anor [2008] NSWSC 292

Most Recent Citation

Rodgers v Nine Network Australia Pty Ltd (No 2) [2008] NSWDC 275

Cases Citing This Decision

5

Trad v Harbour Radio Pty Ltd [2010] NSWCA 41

Coates v Harbour Radio Pty Ltd [2010] NSWSC 796

Coates v Harbour Radio Pty Ltd [2009] NSWSC 1047

Cases Cited

1

Statutory Material Cited

2

John Fairfax Publications Pty Ltd v Zunter [2006] NSWCA 227

CITATION:	Coates v Harbour Radio Pty Ltd & Anor [2008] NSWSC 292
HEARING DATE(S):	26/04/07, 27/04/07, 30/04/07, 4/05/07
JUDGMENT DATE :	4 April 2008
JURISDICTION:	Common Law Defamation List
JUDGMENT OF:	Adams J at 1
DECISION:	In respect of the bullying imputations, the sum of $130,000, in respect of the cover-up imputations, the sum of $130,000 and, in respect of the incompetence imputations, the sum of $100,000. I will deal with the questions of interest and costs after submissions on the point.
CATCHWORDS:	Defamation - justification - whether statement of fact or comment - if comment, whether based on true facts sufficiently referred to - whether comment must be reasonable.
LEGISLATION CITED:	Associations Incorporation Act (Vic) Defamation Act 1974 s 7A, 30(3)
CATEGORY:	Principal judgment
CASES CITED:	John Fairfax Publications v O’Shane (2005) NSWCA 164 Kemsley v Foot [1955] AC 345 Syms v Wran [1984] 1NSWLR 317
TEXTS CITED:	Odgers on Libel and Slander 6th ed 1929 at 166
PARTIES:	John Dowling COATES (Plaintiff) Harbour Radio Pty Limited (First defendant) Alan JONES (Second defendant)
FILE NUMBER(S):	SC 20443/04
COUNSEL:	Mr B R McClintock SC with Mr M F Richardson (Plaintiff) Mr T K Tobin QC with Mr T D F Hughes (Defendants)
SOLICITORS:	Kennedys Lawyers (Plaintiff) Johnson Winter & Slattery (Defendants)