French v Herald and Weekly Times Pty Ltd (No 2)

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

MAJOR TORTS LIST

No. 10408 of 2006

MARK FRENCH	Plaintiff
v
THE HERALD AND WEEKLY TIMES PTY LIMITED	Defendant

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JUDGE:	BEACH J
WHERE HELD:	Melbourne
DATE OF HEARING:	12 – 16 and 20 April 2010
DATE OF JUDGMENT:	27 April 2010
CASE MAY BE CITED AS:	French v The Herald and Weekly Times Pty Limited (No. 2)
MEDIUM NEUTRAL CITATION:	[2010] VSC 155

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DEFAMATION – Defamatory newspaper articles – Imputations conveyed – Defences – Polly Peck defence - Fair comment defence – Fact not comment - Qualified privilege defence – Reply to attack – Whether there was an attack – Reply commensurate with nature of attack – No privilege for reply to reply – Damages – Vindication – Aggravated damages - Mitigation of damages.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P.J. Hayes with Ms R.B. Sion	Russell Kennedy
For the Defendant	Mr W.T. Houghton QC with Ms G.L. Schoff	Corrs Chambers Westgarth

HIS HONOUR:

Introduction

Mr Mark French, the plaintiff, is a former elite professional cyclist.[1] On 8 June 2004, he was found by the Court of Arbitration for Sport to have breached the anti-doping policies of Cycling Australia and the Australian Sports Commission. The Court of Arbitration for Sport imposed a suspension of two years on him and fined him $1,000. On 21 June 2004, as a result of the determination of the Court of Arbitration for Sport, the Australian Olympic Committee declared Mr French ineligible to represent Australia at the Olympic Games for life. Mr French appealed the determination of the Court of Arbitration for Sport, and on 11 July 2005 his appeal was upheld. The sanctions previously imposed upon Mr French were set aside and/or quashed.
[1]Whilst the pleadings suggest that the plaintiff is currently a professional cyclist, in evidence Mr French said that he had retired from cycling and was now helping to direct a personal training studio in Brighton.

The Herald and Weekly Times Pty Limited, the defendant, is the proprietor and publisher of the Herald Sun newspaper. In August 2004, an average of in excess of 500,000 copies of the Herald Sun were sold every day.[2] During the same period, the daily readership of the Herald Sun was of the order of 1.5 million people.[3]
[2](Monday to Saturday): see Exhibit D.
[3]I am prepared to infer this figure from Exhibit E, which discloses the daily readership in September 2003 as 1.503 million and in September 2004, 1.547 million for Monday to Friday.

In the edition of the Herald Sun of 10 August 2004, the defendant published an article of and concerning the plaintiff entitled “We are the best in the world” (“the first article”). Further, in the edition of the Herald Sun dated 27 August 2004, the defendant published an article of and concerning the plaintiff entitled “Coach pleads for a fair go” (“the second article”).

In this proceeding, the plaintiff claims damages for defamation in respect of the first and second articles.

The plaintiff pleads two imputations in relation to the first article, as follows:

(a)“The plaintiff was a drug cheat”; and
(b)“The plaintiff had falsely claimed that five members of the AIS cycling team had used prohibited substances”.

Immediately one sees the potential for ambiguity and embarrassment in the plaintiff’s choice of the word “falsely” in his second imputation.[4] At one end of the spectrum, “falsely” might mean no more than incorrectly – in the sense of mistakenly. At the other end of the spectrum, “falsely” might mean untruthfully. This case was conducted on the basis that “falsely” meant “untruthfully”.[5]

[4]Indeed, “falsely” is a weasel word which ordinarily would be liable to being struck out with an order permitting re-pleading (see generally Vitale v Bednall [2001] WASC 278, [20], Hayson v John Fairfax Publications Pty Ltd [2007] NSWSC 763, [23] and Lim v TVW Enterprises Limited [2002] WASC 214, [43]-[57]).

[5]Indeed, when I raised this matter in final addresses, counsel for the plaintiff did not demur from this proposition (T334.14 – 335.10).

The defendant denies that the first article was defamatory and denies the plaintiff’s meanings. In the alternative, the defendant pleads that the first article meant that:

(a)“The plaintiff had been banned from competing at the Olympics for life for trafficking banned substances”; and
(b)“A retired judge, the Honourable Robert Anderson QC, had found that there was no truth in allegations made by the plaintiff as to the use by five cyclists of prohibited substances”.

The defendant also pleads that in these meanings, the first article was true. Further, the defendant pleads fair comment and qualified privilege defences in relation to the first article. The qualified privilege defence is of the “reply to an attack” variety.[6] In his amended reply, the plaintiff pleads, inter alia, malice in respect of the fair comment and qualified privilege defences.
[6]At the commencement of the trial, there were various interstate defences relied upon by the defendant. However, during the course of the trial, the parties agreed to treat any publication in the other States and Territories of Australia as being governed by the law of Victoria (noting that the plaintiff makes no claim arising from publication in the Australian Capital Territory or New South Wales).

So far as the second article is concerned, the plaintiff pleads only one imputation. The plaintiff’s imputation in relation to the second article is that the second article meant that “The plaintiff had falsely claimed that Sean Eadie, Jobie Dajka, Shane Kelly, Graeme Brown and Brett Lancaster were drug cheats”.

As with the first article, the defendant denies that it was defamatory and denies the plaintiff’s meaning. In the alternative, the defendant pleads that the second article meant “that allegations made by the plaintiff as to the use by five cyclists of prohibited substances had been found to be untrue”. Additionally, in relation to the second article, the defendant relies upon a fair comment defence and a qualified privilege (reply to attack) defence.[7]
[7]And again, the plaintiff relies upon malice in relation to both the fair comment defence and the qualified privilege defence.

For the reasons given below, I have determined that there should be judgment for the plaintiff in the sum of $175,000 (exclusive of interest).

The first article

The first article was published on p 79 of the Herald Sun of 10 August 2004. Under the heading “We are best in the world”, the following was published:

“National coach Martin Barras believes the Australian track team is the strongest Olympic cycling outfit ever assembled by any nation in the history of the Games.
Not usually driven to bold statement, Barras predicts the embattled Cyclones will emerge from the drug storm created by the accusations of Mark French to reassert their greatness.
‘I don’t have any reservations to say that this is the strongest team ever put on the track – not just an Australian team – but any team internationally,’ Barras said.
While refusing to quantify the strength of the 14-rider squad with medal forecasts, Barras said the Games would provide the platform for people to judge the team, rather than on the basis of French’s now disproved allegations. French, who has been banned from the Olympics for life for trafficking banned substances, claimed five riders – including Sean Eadie, Shane Kelly, Graeme Brown, Brett Lancaster and Jobie Dajka – were using illegal substances.
Retired judge Robert Anderson, QC, found there was no truth in French’s allegations.
‘People just need to see this group – staff and riders – and see them for what they are, instead of through the distorted views and allegations of disgraced drug cheats,’ Barras said.
‘They need to see these people for what they are. They need to see these guys on a day-in, day-out basis under real pressure to see what kind of people they’re really dealing with. Then people could get a grasp of what they’re all about. We just need a fair go.’
Australia won three gold medals – two through sprinter Anna Meares and the 4000m pursuit team – at the world titles in May and a similar performance in Athens would be beyond even Barras’ wildest dreams.
But Barras contends the bizarre lead-up to the Olympics could favour Australia.
‘We’ve been in the eyesight from the word go and it’s been extraordinary conditions. By the same token, we’re going into the Olympics and (its) about handling the extraordinary. Nobody has had any better preparation for that than this group,’ he said.
‘The most important thing – and I said this as soon as I took over – is that by the completion of the Olympics, we can turn around and say the Australian national track cycling team is the best team in the world.’”

The second article

The second article was published on p 123 of the Herald Sun of 27 August 2004. Under the heading “Coach pleads for a fair go”, the following was published:

“Australian cycling coach Martin Barras has demanded a fair go for his record-breaking team after Ryan Bayley, Stuart O’Grady and Graeme Brown made the Cyclones the most successful unit in Olympic history.
Australia finished with a stunning five gold, two silver and two bronze medals – as well as three fourths – from 12 events at the velodrome to bury the angst-ridden controversies of the past eight months.
On the road, Sara Carrigan took gold, while Oenone Wood and Michael Rogers finished fourth.
But Barras suspects the effort to dwarf Australia’s previous best result at the Games – two golds at Helsinki in 1952 – will not be sufficient for the sceptics who continue to deride the team’s character in the wake of Mark French’s drug allegations.
‘I can’t help what people might say,’ Barras said. ‘All I ask is that this team is given a fair go. They have shown what they are made of and people should judge them on that.
‘I said before the Games that I wanted to show that we run the best business in the world, that we run the best program in the world and we have shown that. I can’t do anything about what people might say or think.’
Barras is one of the architects behind a phenomenal team, shielding it from the barbs resulting from French’s disproved claims Sean Eadie, Jobie Dajka, Shane Kelly, Graeme Brown and Brett Lancaster were drug cheats.
While Barras was confident in his ability to cosset his squad from the pressures of the various Court of Arbitration for Sport appeals, he had only a sneaking suspicion of what Bayley and the rest of the outfit was about to unleash.
‘What can I say?’ he said. ‘I’m very pleased. We came here knowing what we wanted to do.
‘We knew we had strength across the board and the riders were in the right frame of mind.
‘Our job – from the masseurs to the mechanics and coaches – was to get the riders on the line in the best possible condition.’
Barras said head coach Shayne Bannan yesterday began planning for Beijing, identifying emerging talent while reconciling themselves to temporarily losing professional road riders until 2008.
Kelly, 32, and Bayley, 22, are intent on being in Beijing where the unconventional Bayley will attempt to defend his sprint and keirin titles.”

The meaning of the first article

It is trite that the meaning of the first article is to be determined by the sense in which fair-minded, ordinary, reasonable people in the community would understand it. What its author or publisher intended it to convey is irrelevant when determining its meaning. Similarly, what the plaintiff thinks the first article meant is irrelevant on this issue. Whilst in Farquhar v Bottom[8] Hunt J only had to consider whether the publication in that case was capable of conveying particular imputations, his Honour summarised the attributes and approach to be taken by a fair-minded, ordinary, reasonable reader. His Honour said:[9]

“In deciding whether the matter complained of is capable of conveying to the ordinary reasonable reader the imputations relied upon by the plaintiff, I must be guided and directed by the test of reasonableness. I must reject any strained, or forced, or utterly unreasonable interpretation: Jones v Skelton ([1063] SR (NSW) 644). I must proceed upon the basis that the ordinary reasonable reader is a person of fair, average intelligence: Slatyer v Daily Telegraph Newspaper Co Ltd ((1908) 6 CLR 1 at 7); who is neither perverse: ibid; nor morbid or suspicious of mind: Keogh v Incorporated Dental Hospital of Ireland ((1910) 2 Ir R 577 at 586); nor avid for scandal: Lewis v Daily Telegraph Ltd ([1964] AC 234 at 260).
This ordinary reasonable reader does not, we are told, live in an ivory tower. He can, and does, read between the lines, in the light of his general knowledge and experience of worldly affairs: Lewis v Daily Telegraph Ltd (supra at 258); Jones v Skelton (supra at 650); Lang v Australian Consolidated Press Ltd ([1970] 2 NSWR 408 at 412). It is important to bear in mind that the ordinary reasonable reader is a layman, not a lawyer, and that his capacity for implication is much greater than that of the lawyer: Lewis v Daily Telegraph Ltd (supra at 277); Morgan v Odhams Press Ltd ([1971] 2 All ER 1156 at 1163); Lang v Australian Consolidated Press Ltd ([1970] 2 NSWR 408 at 412); Middle East Airlines Airliban SAL v Sungravure Pty Ltd ([1974] 1 NSWLR 323 at 34).”[10]

[8][1980] 2 NSWLR 380.

[9]At pp.385-6.

[10]See further Jones v Skelton [1963] 2 SR (NSW) 644, 650; Slatyer v Daily Telegraph Newspaper Co Limited (1908) 6 CLR 1, 7; Mirror Newspapers Limited v Harrison (1982) 149 CLR 293, 301; World Hosts Pty Ltd v Mirror Newspapers Limited [1976] 1 NSWLR 712, 725; Reader’s Digest Services Pty Ltd v Lamb (1982) 150 CLR 500, 505 – 506 and Li v Herald and Weekly Times [2007] VSC 109, [63]–[74].

With these principles in mind, I turn now to consider the meanings which arise from the first article. The critical parts of the first article are contained in the second, fourth, fifth and sixth paragraphs. In my view, they convey (and the article as a whole conveys) the imputation that the plaintiff is a disgraced drug cheat. Whilst the first article does not contain the express words “Mark French is a disgraced drug cheat”, the only reasonable interpretation that can be put on the words “instead of through the distorted views and allegations of disgraced drug cheats” is that it is Mr French (whose allegations are said to have been “now disproved” and in respect of whom it is said that he has “been banned from the Olympics for life for trafficking banned substances”) who is the disgraced drug cheat (or perhaps, one of the disgraced drug cheats) referred to. It follows that I find that the plaintiff’s imputation that “the plaintiff was a drug cheat” arises and was conveyed by the first article.

The plaintiff contends that the first article also conveyed the imputation that “the plaintiff had falsely claimed that five members of the AIS cycling team had used prohibited substances”. Again, the first article does not contain these express words. The first article says that the plaintiff claimed that five riders (Australian cyclists) were using illegal substances and that these claims were “now disproved”, there being “no truth in [them]”. Bearing in mind the principles I have referred to above (and in particular the capacity for the ordinary reasonable reader to read between the lines and his or her capacity for implication), in my view, the first article conveys the additional imputation that the plaintiff had falsely (in the sense of untruthfully) claimed that five Australian cyclists had used prohibited substances. Whilst this imputation is not precisely in the same terms contended for by the plaintiff, the plaintiff is, of course, entitled to succeed (subject to the defendant establishing one of its defences) on the basis of this imputation.[11]
[11]See generally Barclay v Cox [1968] VR 664 and David Syme & Co Limited v Hore-Lacy (2000) 1 VR 667.

At this stage, it is not necessary to consider the defendant’s Polly Peck[12] meanings. Whilst the plaintiff did not contend that it was not permissible for the defendant to seek to justify findings attributed to others, by proving no more than the making of those findings, if the meanings I have found had not been conveyed, then this would have been a matter that required consideration when dealing with the Polly Peck meanings alleged in respect of the first article.[13] However, the short point is that the meanings I have found are not permissible variants of the defendant’s Polly Peck meanings.[14] This is not surprising so far as the “plaintiff was a drug cheat” imputation, as that was in fact the plaintiff’s first pleaded meaning. In any event, it follows that the existence or truth of the Polly Peck meanings has no relevance to the question of whether the defendant is liable to the plaintiff for defamation.
[12]Cf Polly Peck (Holdings) PLC v Trelford [1986] QB 1000 and David Syme & Co Limited v Hore-Lacy (2000) 1 VR 667.
[13]See generally Nationwide News Limited v Heggie [2001] NSWCA 257, [8] (Meagher JA), [15] (Hodgson JA), [28] (Fitzgerald AJA) and Newnham v Davis (No. 2) [2010] VSC 94, [20] (Kaye J).
[14]As to permissible variants, see David Syme & Co Limited v Hore-Lacy (2000) 1 VR 667.

In his final address, Senior Counsel for the defendant contended that even if I was against the defendant in relation to the alternative meanings suggested by it, there is a serious question that arises as to whether the meanings relied upon by the plaintiff are conveyed. The defendant’s argument was based upon the reasoning of Bleby J in Sands v Channel Seven Adelaide Pty Ltd & Anor.[15]
[15](2009) 104 SASR 452 at paragraphs [293]-[304].

In Sands, it was alleged that the ABC had published material that conveyed the imputation that the plaintiff is and was a person suspected of murder and that there were reasonable grounds for so suspecting him. However, Bleby J found that when the material was considered as a whole, what was being conveyed was no more than reasons for granting an injunction against Channel 7. Channel 7 had published that the plaintiff had been a murder suspect. A District Court judge had granted an injunction as a result of this publication – and all the ABC was doing was reporting the reasons for the injunction. In the circumstances of that case, it could not be held that the judge or the ABC was publishing an imputation that the plaintiff was a murder suspect “let alone that there were reasonable grounds on which to so suspect”.[16]
[16]Ibid at [297].

The present case is very different from Sands. A reasonable reader of the article would, in my view, be left in no doubt that the article means that the plaintiff was a drug cheat and that the plaintiff had falsely (in the sense of untruthfully) claimed that five Australian cyclists had used prohibited substances. This is not a case of reporting someone else’s prior statement to explain some newsworthy event, the reporting of which could be justified (for example, the reporting of reasons for the granting of an injunction as in Sands).

In summary, I find that the first article meant and was understood to mean that:

(a)the plaintiff was a drug cheat; and
(b)the plaintiff had falsely (in the sense of untruthfully) claimed that five Australian cyclists had used prohibited substances.

Was the first article defamatory?

In Radio 2UE Sydney Pty Ltd v Chesterton,[17] French CJ, Gummow, Kiefel and Bell JJ set out and explained the common law test of defamatory matter in the following terms:[18]
[17](2009) 238 CLR 460.
[18]Ibid at paragraphs [3]-[7].

“A person’s reputation may therefore be said to be injured when the esteem in which that person is held by the community is diminished in some respect.
Lord Atkin proposed such a general test in Sim v Stretch, namely that statements might be defamatory if ‘the words tend to lower the plaintiff in the estimation of right-thinking members of society generally’. An earlier test asked whether the words were likely to injure the reputation of a plaintiff by exposing him (or her) to hatred, contempt or ridicule but it had come to be considered as too narrow. It was also accepted, as something of an exception to the requirement that there be damage to a plaintiff’s reputation, that matter might be defamatory if it caused a plaintiff to be shunned or avoided, which is to say excluded from society.
The common law test of defamatory matter propounded by Lord Atkin was applied in Slatyer, although Griffith CJ expressed some concern about the ambiguity of the expression ‘right thinking members of the community’. The general test, stated as whether the published matter is likely to lead an ordinary reasonable person to think the less of a plaintiff, was confirmed by this court in Mirror Newspapers, Chakravarti v Advertiser Newspapers Ltd and by Callinan and Heydon JJ in John Fairfax Publications Pty Ltd v Gacic. Gummow and Hayne JJ in John Fairfax referred to the likelihood that the imputations might cause ‘ordinary decent folk’ in the community to think the less of the plaintiff.
Putting aside Lord Atkin’s additional requirement of being ‘right-thinking’, the hypothetical audience, that is to say the referees of the issue of whether a person has been defamed, has been regarded as composed of ordinary reasonable people, whom Spencer Bower described as ‘of ordinary intelligence, experience, and education’. Such persons have also been described as ‘not avid for scandal’ and ‘fair-minded’. They are expected to bring to the matter in question their general knowledge and experience of worldly affairs.
In Reader’s Digest Brennan J explained that any standards to be applied by the hypothetical referees, to an assessment of the effect of imputations, are those of the general community:
‘… Whether the alleged libel is established depends upon the understanding of the hypothetical referees who are taken to have a uniform view of the meaning of the language used, and upon the standards, moral or social, by which they evaluate the imputation they understand to have been made. They are taken to share a moral or social standard by which to judge the defamatory character of that imputation … being a standard common to society generally …’.”[19]

[19]Footnotes omitted.

Saying that the plaintiff was a drug cheat was likely to lead an ordinary, reasonable person to think the less of the plaintiff. The same can be said in respect of the imputation that the plaintiff had falsely (in the sense of untruthfully) claimed that five Australian cyclists had used prohibited substances. The first article was undoubtedly defamatory of the plaintiff in both of the meanings which I have found it conveyed.

The meaning of the second article

I turn now to consider the meanings which arise from the second article. The critical parts of the second article are contained in the fourth and seventh paragraphs (or perhaps the fourth to seventh paragraphs).

In the fourth paragraph, it is noted that there are sceptics who continue to deride the cycling team’s character “in the wake of Mark French’s drug allegations”. In the seventh paragraph, reference is made to Mr Barras shielding the team from “barbs resulting from French’s disproved claims [that five cyclists] were drug cheats”. Unlike the first article, which refers to “distorted views and allegations of disgraced drug cheats”, “now disproved allegations” and there being “no truth in French’s allegations”, the second article merely refers to the claims of Mr French as being “disproved”.

Whilst the second article is capable of conveying to the ordinary, reasonable reader that the plaintiff had falsely claimed that the relevant cyclists were drug cheats, when one looks at the second article in isolation (and remembering that this is a false innuendo case, not a true innuendo case), in my view, the second article does not actually convey this imputation to the ordinary, reasonable reader.

The second article merely says that the plaintiff’s claims have been disproved. Claims of various kinds are disproved every day. To say a claim is disproved is not to say that the claim was falsely (or untruthfully) made. In this regard, the lack of any suggestion in the second article that there was “no truth in [the plaintiff’s] allegations” (cf the first article) distinguishes the second article from the first article.

I accept that the plaintiff might have been hurt by the suggestion in the second article that he had claimed that the relevant cyclists were drug cheats. However, the imputation he relies upon is not conveyed by the second article.

I should say for the sake of completeness that it is no part of the plaintiff’s case that the second article was defamatory because it conveyed an imputation that he had claimed that the relevant cyclists were drug cheats. Specifically, such an imputation is not a permissible variant of the plaintiff’s pleaded meaning. In any event, no argument was advanced at trial that I should find that any such imputation arose.

It follows that the plaintiff’s claim in respect of the second article must fail. I turn now to consider the defendant’s defences in relation to the first article.

The Polly Peck defence

No issue was taken by the plaintiff as to the impermissibility of the defendant seeking to justify findings attributed to others, by proving no more than the making of those findings. Similarly, no issue was taken as to whether the defendant’s Polly Peck meanings were in fact permissible variants of the plaintiff’s meanings. However, the Polly Peck defence is a truth defence. Like any truth defence, it cannot succeed unless it meets the sting of the libel. In seeking to justify what it contended were permissible variants, the defendant in this case did not meet the sting of the libel as I have found it to be. For that reason, the Polly Peck defence must fail.[20]
[20]See Herald and Weekly Times Limited v Popovic (2003) 9 VR 1, per Gillard AJA, [274]-[355].

Further, as was said by Gillard J in Li v The Herald and Weekly Times Pty Ltd,[21] “The words in the end have but one meaning”. That is, the first article conveyed the meanings I have found. It did not convey the meanings contended for by the defendant. Much less could it be said to have conveyed the meanings I have found as permissible variants of the defendant’s meanings.
[21][2007] VSC 109, [70].

It follows that the defendant’s Polly Peck (truth defence) is not made out.

The fair comment defence

The elements and requirements of the defence of fair comment may be summarised for present purposes as follows:

(a)First, the comment must be on a matter of public interest. Public interest is not to be confined within narrow limits.
(b)Secondly, the comment must be recognisable as comment, as distinct from an imputation of fact.
(c)Thirdly, the comment must be based on facts which are true or protected by privilege. If the facts on which the comment purports to be founded are not proved to be true or published on a privileged occasion, the defence of fair comment is not available.
(d)Fourthly, the facts on which the comment is based must be expressly stated, referred to or notorious. It is not sufficient that the subject matter or “substratum of fact” of the comment is indicated. The reader should be in a position to judge for himself how far the comment was well founded.
(e)Fifthly, the comment must be one which could have been made by an honest person however prejudiced he might be, and however exaggerated or obstinate his views.[22]

[22]See Cheng v Tse Wai Chun (2000) 3 HKCFAR 339 per Lord Nicholls of Birkenhead NPJ; Herald and Weekly Times Limited v Popovic (2003) 9 VR 1, [259]-[264] and Channel Seven Adelaide v Manock (2007) 232 CLR 245.

In this case, public interest is conceded. However, central to this defence is the question of whether what the defendant published in the first article was comment.

In Channel Seven Adelaide v Manock,[23] Gummow, Hayne and Heydon JJ discussed the issue of distinguishing between fact and comment in the following terms:[24]
[23](2007) 232 CLR 245.
[24]Ibid at paragraphs [35] and [36].

“Distinguishing fact and comment. In Brent Walker Group Plc v Time Out Ltd Bingham LJ said:
‘The law is not primarily concerned to provide redress for those who are the subject of disparaging expressions of opinion, and freedom of opinion is (subject to necessary restrictions) a basic democratic right. It is, however, plain that certain statements which might on their face appear to be expressions of opinion (as where, for example, a person is described as untrustworthy, unprincipled, lascivious or cruel) contain within themselves defamatory suggestions of a factual nature. Thus the law has developed the rule … that comment may only be defended as fair if it is comment on facts (meaning true facts) stated or sufficiently indicated.’ (emphasis added)

In Goldsbrough v John Fairfax & Sons Ltd Jordan CJ said that for the defence of fair comment to succeed, ‘it is essential that the whole of the words in respect of which it is relied on should be comment’. He continued:
‘It must be indicated with reasonable clearness by the words themselves, taking them in the context and the circumstances in which they were published, that they purport to be comment and not statements of fact; because statements of fact, however fair, are not protected by this defence. In other words, it must appear that they are opinions stated by the writer or speaker about facts, which are at the same time presented to, or are in fact present to, the minds of the readers or listeners, as things distinct from the opinions, so that it can be seen whether the opinions are such that they can fairly be formed upon the facts.’ (emphasis added)

A ‘discussion or comment’ is to be distinguished from ‘the statement of a fact’. ‘It is not the mere form of words used that determines whether it is comment or not; a most explicit allegation of fact may be treated as comment if it would be understood by the readers or hearers, not as an independent imputation, but as an inference from other facts stated.’ As the passages quoted from Bingham LJ and Jordan CJ above illustrate, the distinction between fact and comment is commonly expressed as equivalent to that between fact and opinion. Cussen J described the primary meaning of ‘comment’ as ‘something which is or can reasonably be inferred to be a deduction, inference, conclusion, criticism, judgment, remark, observation, etc’. It follows that a comment can be made by stating a value judgment, and can also be made by stating a fact if it is a deduction from other facts. Thus, in the words of Field J:
‘[C]omment may sometimes consist in the statement of a fact, and may be held to be comment if the fact so stated appears to be a deduction or conclusion come to by the speaker from other facts stated or referred to by him, or in the common knowledge of the person speaking and those to whom the words are addressed and from which his conclusion may be reasonably inferred. If a statement in words of a fact stands by itself naked, without reference, either expressed or understood, to other antecedent or surrounding circumstances notorious to the speaker and to those to whom the words are addressed, there would be little, if any, room for the inference that it was understood otherwise than as a bare statement of fact.’ (emphasis added)
The question of construction or characterisation turns on whether the ordinary reasonable ‘recipient of a communication would understand that a statement of fact was being made, or that an opinion was being offered^’ — not ‘an exceptionally subtle’ recipient, or one bringing to the task of ‘interpretation a subtlety and perspicacity well beyond that reasonably to be expected of the ordinary reader whom the defendant was obviously aiming at’.”[25]

[25]Footnotes omitted.

In Herald and Weekly Times v Buckley,[26] the Court of Appeal[27] endorsed the following proposition of Kaye J:

“A statement may be regarded as an expression of opinion, and not an allegation of fact, ‘if it appears to be a deduction, inference, conclusion, criticism, judgment, remark or observation come to by the writer or speaker from facts stated or referred to by him, or in the common knowledge of the person writing or speaking and those to whom the words are addressed, and from which his conclusion may reasonably be inferred’.”[28]

[26](2009) 21 VR 661.

[27]Nettle, Ashley and Weinberg JJA.

[28]Ibid at [9].

In my view, the imputations conveyed by the first article were imputations of fact. Whilst the article contains comment (for example, the opinion of Mr Barras that the Australian track team is the strongest Olympic cycling outfit ever assembled by any nation in the history of the games), the ordinary, reasonable reader of the article would have understood that in saying the plaintiff was a drug cheat, a statement of fact was being made. Similarly, in saying that the plaintiff had falsely (in the sense of untruthfully) claimed that five Australian cyclists had used prohibited substances, the ordinary, reasonable reader of the article would have understood that a statement of fact was being made. The use of the adjectives “distorted” and “disgraced” would not, in my view, have changed what would have been understood as a factual allegation of drug cheating to some comment based on facts expressly stated, referred to or notorious.

The statements that the plaintiff was a drug cheat and that the plaintiff had falsely (in the sense of untruthfully) claimed that five Australian cyclists had used prohibited substances do not appear in the article to be a deduction or inference or conclusion or criticism or judgment or remark or observation made from facts stated or referred to or in common knowledge. Rather, these statements appear as discrete statements of fact, even though there are references in the article to underlying facts from which it might have been possible to reason to a comment the substance of which was congruent with the imputations of fact I have found were conveyed.

In support of its argument that what was conveyed was comment, the defendant relied upon the Court of Appeal’s decision in State of New South Wales v IG Index PLC.[29] That case concerned three statements published in The Australian in the following terms:

“IG has flouted NSW gaming laws by operating in the State;
IG has illegally advertised its services in the State; and
We have no doubt it is illegal and we have told ASIC.”

[29](2007) 17 VR 87.

State of NSW v IG Index was an appeal from a decision striking out the defendant’s comment defences on the basis that the statements complained of were statements of fact, rather than comment. The decision is of no assistance to the defendant in this case because all the Court of Appeal held was that the question of whether what was conveyed was fact or comment was a question for the jury at trial. The question in the present case is not whether it would be open to the trier of fact to find that what was conveyed in the first article was comment – but rather, whether what was conveyed was in fact comment (the trial having been conducted).

In determining whether what was conveyed by a defamatory publication was comment or fact, there are obvious dangers of over-analysis. As the Court of Appeal noted in Herald and Weekly Times v Buckley,[30] such conclusions as a reader might draw from reading the relevant article “would likely be very much a matter of overall impression derived from a once-over-lightly assessment of the contents”. Bearing those matters in mind, I remain of the view that what was conveyed by the first article was fact and not comment. Read in context, what might have been presented as opinion was presented as fact. Insofar as the first article contains any expressions of opinion, in my view they are founded upon an asserted fact – that is, that the plaintiff was a drug cheat who had falsely (in the sense of untruthfully) claimed that five Australian cyclists had used prohibited substances.[31]
[30](2009) 21 VR 661 at [33].
[31]Cf Cleary v Hore-Lacy(No. 2) (2009) 21 VR 692, [46].

Further, as was said in Cole v Operative Plasterers’ Federation of Australia (NSW Branch):[32]

“It is not the mere form of words used that determines whether it is a comment or not; a most explicit allegation of fact may be treated as comment if it would be understood by the readers or hearers, not as an independent imputation, but as an inference from other facts stated”.

In my view, the imputations I have found would have been understood by the readers of the first article to be independent imputations and not inferences from other facts stated.[33] Similarly, in my view, what was conveyed by the article was not a mere statement of opinion, much less one backed by reasons.[34]

[32](1927) 28 SR (NSW) 62 at 67 per Ferguson J (Street CJ and Gordon J concurring).

[33]See also Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245, [35].

[34]Cf British Chiropractic Association v Singh [2010] EWCA Civ 350, [33].

It follows from what I have said above that the defence of fair comment is not made out. It is unnecessary for me to say anything about the other elements and requirements of the defence of fair comment. However, I take leave to doubt that the defence can be established on the basis of facts which must be proved to be true (as distinct from published on an occasion of qualified privilege) by merely establishing that a third party has found or stated the underlying facts which it would be necessary to establish if one was trying to establish a truth defence.[35]
[35]In this case, for example, the Australian Olympic Committee’s “lifetime ban”.

The qualified privilege defence

The defendant’s qualified privilege defence is pleaded in the following terms:[36]

“It [the defendant] says further that, if the first article was defamatory of the plaintiff (which is denied), the first article was published to answer or refute allegations made by the plaintiff concerning the participation by five other cyclists in group injecting sessions at AIS Del Monte and was, accordingly, published on an occasion of qualified privilege.”

[36]See paragraph 13 of the defendant’s further amended defence dated 12 April 2010.

Whilst the qualified privilege plea does not identify the holder of the privilege, the case was conducted on the basis that it was Mr Barras who enjoyed qualified privilege in respect of the statements attributed to him in the first article. It was then contended that the defendant had a derivative privilege. It should be noted that the particulars subjoined to the plea of qualified privilege in the further amended defence contain matters that may not necessarily relate to the question of Mr Barras’ alleged privilege and the derivative privilege contended for by the defendant. Further, there was in fact no evidence in respect of some of the matters pleaded in the particulars (for example, paragraph (vi) of the particulars).

The basis of the privilege of reply to an attack is set out in Penton v Calwell.[37] At first instance, Dixon J said:[38]

“When the privilege of the occasion arises from the making by the plaintiff of some public attack upon the reputation or conduct of the defendant or upon some interest which he is entitled to protect, the purpose of the privilege is to enable the defendant on his part freely to submit his answer, whether it be strictly defensive or be by way of counter-attack, to the public to whom the plaintiff has appealed or before whom the plaintiff has attacked the defendant. The privilege is given to him so that he may with impunity bring to the minds of those before whom the attack was made any bona fide answer or retort by way of vindication which appears fairly warranted by the occasion. In Koenig v Ritchie Cockburn CJ used the expressions: ‘Bona fide for the purpose of the’ (defendant’s) ‘defence and in order to prevent the charges operating to’ (his) ‘prejudice,’ expressions which have been taken into the forms of pleading.

The foundation of the privilege is the necessity of allowing the party attacked free scope to place his case before the body whose judgment the attacking party has sought to affect. In this instance, it is assumed to be the entire public. The purpose is to prevent the charges operating to his prejudice. It may be conceded that to impugn the truth of the charges contained in the attack and even the general veracity of the attacker may be a proper exercise of the privilege, if it be commensurate with the occasion. If that is a question submitted to or an argument used before the body to whom the attacker has appealed and it is done bona fide for the purpose of vindication, the law will not allow the liability of the party attacked to depend on the truth or otherwise of defamatory statements he so makes by way of defence.”[39]

Whilst Dixon J’s judgment was varied on appeal to the Full Court of the High Court, the correctness of this passage was not called into question.

[37](1945) 70 CLR 219.

[38]Ibid at 233-4.

[39]Omitting footnotes.

In Loveday v Sun Newspapers Limited,[40] Dixon J said:[41]

“A privilege would be of no value if the means of exercising it were not also protected. If the party attacked is given a privilege to reply through the public press, the publisher of a newspaper who allows the use of his columns for the purpose may also enjoy an attendant privilege.
…
The reason for the privilege of the newspaper publisher is that it is right and for the common convenience and welfare of society that he should lend the aid of his newspaper to the party who is entitled publicly to repel the attack or answer the criticism.”

[40](1938) 59 CLR 503.

[41]At 59 CLR 519.

In Bashford v Information Australia (Newsletters) Pty Limited,[42] McHugh J said:[43]

“In determining whether the communication was made to discharge a duty or to protect or further an interest, the common law has drawn a distinction between statements replying to a request for information or responding to an attack and statements that are volunteered by the publisher. Where the defamatory communication responds to an attack on its publisher or some person connected with him or her, the common law has adopted a liberal approach to the question of duty or interest. Not only has it usually held that the publisher had a duty to respond or an interest in responding but, as a consequence, it has taken a very liberal view of what constitutes an ‘interest’ in those who receive the response. In Mowlds v Fergusson, Dixon J said:
‘Where the defamatory matter is published in self-defence or in defence or protection of an interest or by way of vindication against an imputation or attack, the conception of a corresponding duty or interest in the recipient must be very widely interpreted’.”[44]

[42](2004) 218 CLR 366.

[43]Ibid at [65]. Whilst McHugh J’s judgment was a dissenting one, there was no issue about the correctness of this passage.

[44]Footnotes omitted.

Mr Barras was the head coach of the Australian national track cycling team between October 2001 and October 2008. As the coach of the team, he was based at the Australian Institute of Sport in Adelaide. As coach, his role was a combination of conducting day-to-day training and the general management of the team.[45]
[45]T214-215.

Shortly prior to the 2004 Olympic Games, Mr Barras was in Buttgen, Germany. He was there with the Australian Olympic team in preparation for the Olympic Games. He gave evidence that his role and duties in respect of the Olympic sprint team at that time included the preparation of training – but not any management duties.[46]
[46]T216.

Mr Barras gave evidence of being aware of the discovery of a bucket in a room formerly occupied by the plaintiff at AIS Del Monte in December 2003. Mr Barras gave evidence at the Court of Arbitration for Sport in relation to the charges levelled at the plaintiff in relation to the discovery of the bucket. Mr Barras was asked in evidence-in-chief whether he came to hear of any allegations that the plaintiff might have made about cycling and drugs. He identified what he heard in the following terms:

“… [T]hat Mr French, during the course of the Court of Arbitration for Sport hearing, had made allegations that five other athletes had used his room for injecting vitamins and supplements and had shared in depositing the remnants of those injections in the bucket that was found in the room.”[47]

[47]T218.3 - .9.

The evidence discloses, and indeed this case was conducted on the basis, that injecting vitamins and supplements is neither illegal nor cheating. Indeed, Senior Counsel for the defendant agreed in final submissions that there was nothing defamatory about saying that someone in an elite cycling team was injecting vitamins and supplements.[48]
[48]T355.10 - .14.

On the face of Mr Barras’ evidence-in-chief, it is difficult to see how the defence of qualified privilege could possibly be made out. The substance of Mr Barras’ evidence-in-chief appeared to me to be that he was expressing his opinion based upon the specific findings of the Court of Arbitration for Sport.[49] Any statement of the plaintiff’s that might have provoked a comment or a response was not, as described by Mr Barras, an attack by the plaintiff. The statement of the plaintiff of which Mr Barras was aware was no more than five other athletes having injected lawful vitamins and supplements – a statement conceded to be not defamatory.
[49]See for example T222.

However, in cross-examination, Mr Barras gave the following answers to the following questions:

“And so in your evidence-in-chief … about these allegations, as you understood it, was that at the time Mr French – when I say at the time, in Buttgen, August 2004 – as you understood his allegations were no more than others had actually injected vitamins and supplements?---That was his direct allegation, yes.
And it was nothing more than that, was it?---In terms of his direct allegation.
As to what you understood his direct allegations, yes?---Direct allegations, no, there was no more than that.”[50]

[50]T225.12 - .22.

Further, in re-examination, Mr Barras was asked and answered the following questions:

“What did you mean when you said that was his direct allegation?---That’s what he said himself. To my mind it had a greater implication.
Sorry, to your mind?---To my mind it had a greater implication.
And what was that greater implication?
[Objection was taken, but upon the Court saying that the question had relevance on the issue of malice or potential malice, the objection was withdrawn.]
What was the greater implication you felt that Mark French’s allegations had?---The way I understood it is that he alleged that he did not use the EquiGen that was found in the bucket. He also alleged that five other people had access to the bucket and put the articles or items into the specific bucket and there was EquiGen that was being found in the bucket, so to my mind the implication was that someone else, part of that group of five that had been named, had put the EquiGen there.”[51]

[51]T247.18 – 248.9.

Before proceeding further, it is necessary to say something about some of the facts underlying this proceeding. On 2 December 2003, a bucket containing materials relating to injecting was found in a room that had previously been occupied by the plaintiff. The plaintiff was interviewed that evening by a Dr Peter Barnes and Mr Barras. The items in the bucket were examined. The bucket contained, amongst other things, used, unlabelled vials which contained traces of what was later established to be equine growth hormone (“eGH”). The plaintiff has always maintained that he has never used or had anything to do with eGH and does not know how the vials came to be in the bucket.

On 9 February 2004, infraction notices were served on the plaintiff by Cycling Australia and the Australian Sports Commission alleging breaches of anti-doping policies. Applications were subsequently filed by the Australian Sports Commission and Cycling Australia against the plaintiff in the Court of Arbitration for Sport. These applications sought determinations as to whether the plaintiff had breached anti-doping policies and as to what the appropriate sanction should be in the event that any breach was established.

In the course of defending himself, the plaintiff, on more than one occasion, raised the possibility that the eGH might have found its way into the bucket as a result of the use by others of the bucket.

A significant amount of the trial was taken up with analysing a number of statements made by the plaintiff and those acting on his behalf. The plaintiff’s position was that he had never accused anyone of taking an illegal substance, but had merely tried to defend himself by raising the possibility that others had access to the bucket and (by inference) may have been responsible for any illegal substances in the bucket. In final submissions, counsel for the plaintiff drew what he said were very important distinctions between an inference, explanation or impression created by a statement on the one hand and an out and out allegation or accusation on the other hand.

The defendant submitted that these distinctions were illusory and should be rejected. Its submission was that a detailed analysis of all of the material[52] disclosed that in truth, the plaintiff was contending that “at the very least, … doping offences might have been committed by … [named] cyclists”[53] and that the plaintiff was “willing and able freely to give evidence against the other cyclists”.[54] Whilst the plaintiff disavowed responsibility for Exhibit 11 (it being submissions prepared on his behalf by his lawyers at a time when he said he was considerably depressed), a fair reading of all of the material suggests that while the plaintiff was not prepared to come out and say squarely that other named cyclists had committed doping offences, in defence of himself and the allegations against him, he was prepared to make statements from which it might be inferred that others may have committed doping offences.
[52]Exhibit 4, Exhibit G, Exhibit 6, Exhibit H, Exhibit 8, Exhibit I, Exhibit 10, Exhibit 11, Exhibit 12 and Exhibit 13.
[53]See p 7 of Exhibit 11.
[54]See p 3 of Exhibit 11.

Strictly speaking, it is not necessary to resolve the construction of each of the statements and documents in evidence, the question so far as the qualified privilege defence is concerned is, was Mr Barras responding to any and, if so, what attack in Buttgen in 2004 and, if so, was his response given on an occasion of qualified privilege. To the extent that it is necessary to resolve the dispute between the plaintiff and the defendant as to whether the plaintiff made serious allegations against other cyclists, I would find that in defence of himself and the allegations he was facing, he was prepared to make statements from which it could be inferred that one or some of the other named cyclists may have been involved in a doping offence and he was willing to give evidence against such cyclists.

The defence of qualified privilege (reply to attack) is not limited to an attack on the defendant. In certain circumstances, the defence is available for a reply or response to an attack on others. In Loveday v Sun Newspapers Limited,[55] the Canterbury Municipal Council was attacked with respect to its refusal of relief work to the plaintiff. The Town Clerk of the Municipality of Canterbury made a statement by way of reply saying that the plaintiff had been refused further relief work because of “general unsatisfactory conduct, which included abuse of gangers and the spreading of restlessness among his fellow employees”. Starke J dealt with the issue[56] in the following terms:

“It may be that he [the clerk] was not bound as a matter of strict duty to reply to the letter without direction of the council, but nevertheless as the clerk and chief executive officer of the council he was clearly entitled to do so. … An open attack had been made upon the council and both it and its chief executive officer was entitled to reply to that attack to and through the newspaper, which was the mode of communication chosen by the appellant [plaintiff] for that attack.”

[55](1938) 59 CLR 503.

[56]Ibid at 516.

Other examples where defendants who have not been personally attacked have been permitted to rely upon the defence of qualified privilege on the basis that their statement is a response to an attack on others include Bowen-Rowlands v Argus Press[57] and Adam v Ward.[58] In the present case, I am not prepared to conclude that Mr Barras could not, in appropriate circumstances, respond to an attack on members of his team. In my view, the judgment of Starke J in Loveday[59] would be capable of having application to an appropriate case involving the coach of an elite sporting team. Further, I would not be prepared to conclude that Mr Barras was not entitled to respond in an appropriate case merely because at the time he made his statements he did not have any management duties. The real issue in this case is whether or not what was said by Mr Barras was in fact a reply or response to a relevant attack by Mr French.
[57]See Gatley on Libel and Slander (10^th edition) at paragraph 14.52.
[58][1917] AC 309.
[59]Supra.

Mr Barras’ statements were made by him at a media call organised by the Media Liaison for the Australian Cycling Federation. Mr Barras described it as a “sort of a routine procedure that we have in order to better manage the press”.[60] The purpose of the media call was clearly to provide information about the team and its prospects of success at the then upcoming Olympics which were to be held in Athens in a matter of days. The present case is not a typical reply to attack case where party A chooses to defame party B in the media and party B replies to the attack in the same media. The evidence discloses that the media call was part of a routine process of managing the media at a time when Australia’s Olympic cyclists and coaches were otherwise busy with preparation for the Olympics. If one accepts the contents of the first article, the focus of the media call was on the issue of how good the team was.
[60]T220.5 - .8.

In cross-examination, Mr Barras was asked and answered the following questions:

“Indeed, so what I’m suggesting to you is that it wasn’t for you to defend the cyclists or say anything about defending their reputations, because they were perfectly capable and there to do it themselves?---Yes, I mean, I volunteered – I didn’t volunteer, I was responding to questions that were being put to me.
But they were there to answer them and they were perfectly capable of answering questions and looking after themselves?---They are capable of answer[ing] questions themselves and I was answering questions to me as well.
This statement that Mark French – this ‘distorted views and allegations of a disgraced drug cheat’ – that was something you volunteered to the media call, isn’t it?---It was a response to questions I received from the journalists.”[61]

[61]T240.25 – 241.8.

In re-examination, Mr Barras was asked and answered the following question:

“Why did you feel a need to defend the reputation of the team at the media call in Buttgen just prior to the Olympics?---There was obviously the direct questions of the journalists, and like I said, the continuing speculation as to the character of the team, that did not stop even after the Anderson inquiry, after the findings of the Anderson inquiry there was still a great deal of speculation and therefore I just spoke my mind in terms of how I felt knowing these riders.”[62]

[62]T248.15 - .24.

In his evidence, Mr Barras did not demur from the proposition that the first article fairly summarised what he said at the media call. Further, he gave evidence that the statement attributed to him “People just need to see this group - staff and riders – and see them for what they are, instead of through the distorted views and allegations of disgraced drug cheats” was an accurate quote.[63] One immediately notes that if there was any “defence” being provided by Mr Barras, then it was a defence in respect of “staff and riders”. There is, of course, no suggestion that the plaintiff ever made any attack on “staff”. Certainly, no such suggestion was ever put to the plaintiff in cross-examination.
[63]T221.29.

Much was made by counsel for the plaintiff that the cyclists were capable of defending themselves – as was evidenced by the publication of a press release issued by Cycling Australia and bearing the names of seven cyclists.[64] However, as the authorities show, the ability of those who are actually attacked to reply is not determinative against someone else with an appropriate interest being entitled to claim qualified privilege.
[64]Exhibit 8.

In my view, what Mr Barras said at the media call in Buttgen was not a reply to attack. At best, it constituted answers to questions, the text of which are unknown. Whilst Mr Barras has given evidence that his answers were in response to questions, one cannot know whether in fact his answers were truly responsive to the questions asked. In any event, I think the true position is that disclosed in his evidence-in-chief in that any “response” he was making was a response to a statement he believed the plaintiff had made to the Court of Arbitration for Sport - which statement (as I have already said) was not defamatory of anyone.[65] It is to be remembered that there is no qualified privilege (on a reply to attack basis) when the response is merely to a statement that is controversial or provokes heated feelings (rather than defamatory).[66] For these reasons, the qualified privilege defence must fail.
[65]Whilst the evidence given in cross-examination and re-examination which I have extracted above might suggest Mr Barras was responding to a broader statement, that evidence was given, respectively, during the course of and following a cross-examination that became more heated than the transcript might otherwise reveal (see specifically T236.23 - .30). In the result, I prefer to rely on what Mr Barras said in his evidence-in-chief as describing what he was actually responding to when he was in Buttgen.
[66]See Church of Scientology Inc v Anderson [1980] WAR 71 at 81. Although this decision was reversed on appeal, it was reversed on the basis that the statement complained of was not made of and concerning the plaintiff. The issue of qualified privilege was not dealt with on appeal (see Anderson v Church of Scientology Inc [1981] WAR 279).

Further, the defence of qualified privilege must also fail because the statements of Mr Barras were not commensurate with the nature of the “attack” to which he claimed to be responding (namely, the non-defamatory allegation to the Court of Arbitration for Sport concerning other riders injecting lawful vitamins and supplements).[67]
[67]Cf Turner v Metro-Goldwyn-Mayer Pictures Limited [1950] 1 AllER 449, 470 and Kennett v Farmer [1988] VR 991, 1003.

However, there is a additional impediment to the defendant’s qualified privilege defence. In Kennett v Farmer,[68] Nathan J held that qualified privilege did not extend to a reply to the reply of the person originally attacked. His Honour said:[69]

“I conclude that a riposte to an allegedly defamatory retort, itself made in response to a source defamation, is not protected by qualified privilege for the following reasons.
(1) To allow an initial defamer to have a right of reply to the retort of the victim would defeat the policy upon which the privilege of a communication made in pursuance or protection of an interest is founded. The reverse side of the proposition reveals the error. If the victim by responding gives to the defamer a qualified privilege to riposte he would severely inhibit his own rights of self defence. If a victim, in protecting his own interests and defending himself opened up that defence to a further right of another defamatory attack upon him, not only would he be apt not to exercise the right of self defence, but equity would demand that his rejoinder to the riposte would also be privileged (so long as it too was commensurate with the defamatory nature of the riposte). Thus the so-called public interest in allowing vigorous exchanges between political personalities would overwhelm the individual interests of less well-known litigants in these and other cases. It is not the law to allow for one class of defence to be restricted to a particular class of litigants, such as ‘public figures’. That American principle has no application here.

(2) A defamer permitted a privileged riposte would, in effect, benefit from his own tortious act. Assuming the original defamation was unjustified and one to which the victim retorted, if the defamer were allowed a riposte, then he would be benefiting from his original tort by having the right of second reply. This position would be contrary to a fundamental principle of the law of torts, namely that a tortfeasor is not entitled to benefit from his own wrong doing. If that proposition needs any authority, it is to be found in Salmond on the Law of Torts, 19th ed., p. 568 et seq.
(3) A guileful defamer could entice a victim into replying knowing that his riposte would be qualifiedly privileged and thus the defamer would be certain of at least two strikes against the victim, the victim’s defence being overwhelmed by the riposte. It would be churlish of the Court not to recognise that the victim’s rejoinder to the riposte might well be beyond that which the TV. and print editors consider the public’s attention span. The electronic media, in particular, deal with the public issue of the moment, perhaps measured in days rather than weeks. The print media permits a more measured exchange, but the courts are familiar with editor’s notations that ‘this correspondence is now closed’.
(4) A victim exercising his right of self defence would be impliedly consenting to a further attack or riposte being made upon him. It would be churlish of this Court not to recognise the current and provocative way in which public affairs are now conducted. The electronic media now permits almost instant reply and comment upon purported defamations. Whether such a comment or reply is carried by the electronic media is not determined by the alleged defamer or the victim, but is decided upon by editors and sub-editors who publish or broadcast that which they deemed to be newsworthy. It is in the nature of journalism, whether in the print or electronic media, to elicit a response to any given comment. Thus if the concept of qualified privilege is extended beyond the right of self defence to a riposte and then a rejoinder and then a surrejoinder, the participants could be enticed into a mutually satisfying exchange of defamations which would neither educate or inform the public.”

[68][1988] VR 991.

[69]Ibid at 1003-1004.

The analysis of Nathan J was approved, found persuasive and adopted by Badgery-Parker J in Perkins v New South Wales Aboriginal Land Council.[70] Similarly, this approach found favour with the New South Wales Court of Appeal in Amalgamated Television Services Pty Ltd v Marsden.[71] Beazley, Giles and Santow JJA dealt with the issue and its application to the facts of the case before them as follows:[72]
[70]Unreported Supreme Court of New South Wales, delivered 15 August 1997.
[71][2002] NSWCA 419.
[72]Ibid at paragraphs [1223]-[1225].

“There is a further difficulty in the appellant’s invocation of a moral or social duty, to which his Honour was clearly alive as J 3866 reveals. It is the difficulty of erecting a moral or social duty to publish yet a further attack on the person earlier attacked, simply because that person has in self-defence set out to defend himself. This is more especially when the last publisher takes up the cudgels on its own initiative, and not at the behest of anyone. His Honour said, and appears to have agreed -
‘3866 The practical effect of the [appellant’s] submission, the [respondent] argues, is that an individual who is attacked by the media in a public forum should not respond to those allegations as, to do so may be to invite further or new attacks from unconnected third parties. Such a situation would defeat the entire “self defence” purpose of the “response basis” of qualified privilege. Nathan J in Kennett v Farmer [1988] VR 991 at 1103-4 says that, once the aggrieved party has exercised his/her right of response, the original defamer does not have a right to reply under the protection of qualified privilege:
‘To allow an initial defamer to have a right of reply to the retort of the victim would defeat the policy upon which the privilege of a communication made in pursuance or protection of an interest is founded. The reverse side of the proposition reveals the error. If the victim by responding gives the defamer a qualified privilege to riposte, he would severely inhibit his own rights of self defence’.

The initial attacker was not the appellant but Grusovin. The respondent responded publicly. The appellant was a bystander. The respondent suffered an attack widely disseminated in media publications. If by exercising his right to respond to that attack he invited unconnected third parties to re-accuse him with impunity, without any requirement to meet a test of reasonableness but only to avoid malice, the purpose of allowing a response under protection of qualified privilege would be defeated by the respondent’s renewed vulnerability to fresh attack. That absence of a test of reasonableness was recently confirmed by Spigelman CJ in Makeig v Derwent [2000] NSWCA 136, at [39]-[41]; his Honour said -
‘... as the reasoning in Lange itself indicates, this test [of reasonableness] is not applicable to a claim for qualified privilege at common law ... the respondent also submitted that the Lange test of “reasonableness” should now be accepted as “mandatory” in the case of what was described as “widespread or multiple publications to the public”, at least in the case of publication on political issues. Nothing in Lange suggests that the High Court was laying down anything in the nature of a mini code in such matters. The court was extending the defence of qualified privilege, it was not intending to restrict the common law defence insofar as it was applicable to publication of political matter.’

The appellant invoked as the occasion for the moral duty the need ‘to set the record straight’ as to the truth of the Grusovin statements and the falsity of the respondent’s statements, this being in relation to an interest in members of the audience ‘in knowing the truth’ (to use the language of Lange applied however to political matters). For the reasons we have given, we do not think that his Honour was in error in holding that the programmes were not broadcast in circumstances of qualified privilege.”

As was said by Mr Barras, the plaintiff made his allegations about other cyclists injecting vitamins and supplements in the course of the Court of Arbitration for Sport hearing. This received media attention. Indeed, the evidence of the plaintiff was that there was so much media attention that the letter from the Australian Olympic Committee advising him of his lifetime ineligibility to compete[73] dated 21 June 2004 was handed to him through the front gate by “media persons”.[74]
[73]Exhibit H.
[74]T97.11.

Subsequently, on 23 June 2004, the plaintiff issued a media statement[75] in which he stated, inter alia:

“From the very outset in December 2003, I have cooperated with the Australian Sports Commission and Cycling Australia in their investigations and have always maintained that there were others who were also injecting and disposing of their waste in the bucket found in my room at the AIS Del Monte, although I did not specifically name the other athletes during these early investigations.”

[75]Exhibit I.

The plaintiff gave evidence that he issued the media statement[76] “just to get my side out”.[77] Subsequently, as was recorded on the 60 Minutes programme involving the plaintiff on 4 July 2004, in that programme, the reporter notes that as at that date, the plaintiff had been “branded a drug cheat”.
[76]Exhibit I.
[77]T97.30.

In my view, the defence of qualified privilege pleaded by the defendant is not available in this case because even if what Mr Barras said could be construed as some response to a relevant attack, the chronology discloses charges being laid, the plaintiff defending himself in the forum in which he was charged, media publicity adverse to the plaintiff as a result of the reporting of the Court of Arbitration for Sport, the plaintiff defending himself in the media which had already picked up the story and then (after some cyclists had also defended themselves) Mr Barras making his statements. To permit the defence to operate in this case would defeat the policy upon which the privilege is founded, making a plaintiff once defamed liable to being defamed further on every occasion he or she seeks to defend themselves.

For these reasons, the defendant’s defence of qualified privilege fails. I turn now to consider the question of damages in relation to the publication of the first article.

Damages

It follows from what I have said above that the plaintiff has established an entitlement to damages in respect of the publication of the first article. The plaintiff claims compensatory damages, including aggravated compensatory damages.[78] The claim for aggravated damages is particularised in the plaintiff’s statement of claim in the following terms:

“(a) The defendant published each of the articles knowing the imputations created thereby to be false or recklessly indifferent as to whether such imputations were true or false.
(b) Prior to identifying the plaintiff and making the allegations in each of the articles, the defendant failed to make any or any adequate inquiries as to the factual accuracy of the underlying allegations that were made in the articles and which were made to sensationalise the story by reference to factually incorrect and extreme expressions of views to increase the interests of readers thereby permanently damaging the plaintiff’s reputation for the defendant’s commercial ends.
(c) The defendant has failed to publish any retraction or apology despite being requested by the plaintiff’s solicitors to do so.”

[78]A claim for exemplary damages was abandoned on day one of the trial.

The principles concerning the awarding of damages in defamation cases are conveniently summarised in the judgment of Gillard AJA in Herald & Weekly Times Limited v Popovic.[79] It is not necessary to set them out in any detail here. Compensatory damages are awarded as a vindication of the plaintiff’s reputation, reparation for the harm done to the plaintiff’s reputation and consolation for the distress, upset and injury to the plaintiff’s feelings occasioned by the publication.[80]
[79](2003) 9 VR 1 at 76 [377] et seq.
[80]See also Cassell & Co Limited v Broome [1972] AC 1027 at 1070 – 1071.

It is, no doubt, a very serious defamation to call an elite professional cyclist a drug cheat. This is by far the more serious of the two imputations I have found were conveyed by the first article. There is, of course, some overlap between the issues of vindication, reparation for harm done to the plaintiff’s reputation and consolation for the distress, upset and injury to the plaintiff’s feelings occasioned by the publication.

The plaintiff contends that adequate compensation in the circumstances of this case would be an amount “in the vicinity of $500,000”.[81] On the other hand, the defendant contends that the Court’s task of isolating the damage caused by the first article is “near impossible, given the evidence of the plaintiff’s general bad reputation at the time of publication”.[82] In summary, the defendant submits that if damages are to be awarded, the Court should award “only nominal damages”.[83]
[81]See paragraph 58 of the plaintiff’s submissions dated 20 April 2010.
[82]See paragraph 94 of the defendant’s outline of submissions dated 20 April 2010.
[83]Ibid at paragraph [97].

There is force in the defendant’s submission that it is difficult to assess the damage caused to the plaintiff’s reputation as a result of the publication of the first article because of the tarnishing of the plaintiff’s reputation by the initial findings of the Court of Arbitration for Sport and the declaration (subsequently overturned) of the plaintiff’s ineligibility to represent Australia at Olympic Games for life. However, to a large extent it must be accepted that the tarnishing of the plaintiff’s reputation was very substantially ameliorated by the subsequent success of his appeal in July 2005 and the overturning of the “lifetime ban”. Further, it is to be remembered that it is compensation for the damage to the plaintiff’s settled reputation over time which must be measured.[84]
[84]Cf Hughes v Mirror Newspapers Limited (1985) 3 NSWLR 504, per Hunt J at 513.

In its final submissions, the defendant relied upon what it said was evidence that the plaintiff had a bad general reputation at the time of the publication of the first article as being admissible in mitigation of damages.[85] In its further amended defence, the defendant relied upon two further matters, which it described in the following terms:

(a)first, “the truth of the facts alleged in the particulars subjoined to paragraph 11 [the Polly Peck defence in respect of the first article]”; and
(b)secondly, “the delay of more than two years following the publication of the first and second articles before the plaintiff commenced this proceeding”.

[85]Outline of submissions on behalf of the defendant dated 20 April 2010, [83].

No specific argument was addressed by the defendant in relation to the alleged delay in commencing the proceeding. Further, whilst the truth of some of the matters in the particulars in support of the Polly Peck defence were put to the plaintiff, a number of those facts on their own have no bearing on the assessment of damages (see, for example, paragraph (a) of the particulars).

In my view, the tarnishing of the plaintiff’s reputation brought about by the events that started in December 2003 (when the bucket was discovered) and led to the Court for Arbitration of Sport determination and the life ban was serious. There was a substantial diminution and damage to the plaintiff’s reputation until his successful appeal. The damage to the plaintiff’s reputation caused by the publication of the first article is not easy to measure. However, there undoubtedly was some damage. Further, I accept that the publication of the first article caused the plaintiff not insignificant upset.

When assessing damages, it is necessary to bear steadfastly in mind that damages fall to be assessed on the basis that the plaintiff was called a drug cheat and a person who had untruthfully claimed that five other cyclists had used prohibited substances, and that such statements were and are false.

In my view, the most relevant consideration when assessing the plaintiff’s damages in this case is vindication. That is, whatever view one takes of the actual damage to reputation and hurt feelings, the amount must be sufficient (in the words of some authorities) to “nail the lie”.[86] To that end, the precise circulation figures of the Herald Sun are less relevant than they would be in a case where damage to reputation and hurt feelings were principal considerations.
[86]See, for example, Hewitt v Pacific Magazines Pty Ltd [2009] SASC 323, [11].

Aggravated damages are awarded if there is an increase in the hurt to the plaintiff’s feelings because of the plaintiff’s knowledge or perception of a defendant’s misconduct – which, as a result, increases the damages. The plaintiff gave some evidence which (if accepted) might suggest there was some increase in his hurt feelings brought about by the fact that there was (as he said) “nothing factually right” in the first article,[87] the fact that the defendant was defending this proceeding and the fact that he had never received an apology.[88] This evidence had the appearance of being rehearsed. The plaintiff was a witness not without difficulty. There were times in his evidence when I was not sure whether I could wholly rely upon what he was saying. He was defensive at times (perhaps understandably so). However, more importantly, there were times, when faced with difficult questions, he either obfuscated or retreated to a position where he contended that the matter inquired of was outside his knowledge.
[87]T106.
[88]T110.

Whilst I have no doubt that the events of December 2003 through to after the publication of the first article (and before the successful appeal) caused great hurt to the plaintiff, I am not satisfied that there was any significant aggravation to such hurt as was caused by the publication of the first article by the matters relied upon by the plaintiff in support of his claim for aggravated damages. That is not to say that I have disregarded entirely the plaintiff’s evidence. In the circumstances, I have treated it as part of the evidence of hurt feelings brought about by the publication of the first article.

The particulars given in support of the plaintiff’s claim for aggravated damages were initially particulars in support of claims for both aggravated and exemplary damages. The particulars contain no allegation that the matters referred to increased the plaintiff’s hurt, nor any details of how the plaintiff’s hurt might have been increased. One suspects that the author of the particulars had the now abandoned claim for exemplary damages in primary focus, rather than the current claim for aggravated damages. Whilst rule 13.07(3) requires a claim for exemplary damages to be specifically pleaded, together with the facts on which the party pleading relies, there is no equivalent explicit requirement so far as a claim for aggravated damages is concerned. Nevertheless, the claim for aggravated damages having been particularised, the plaintiff should not lightly be permitted to depart from his pleaded claim.

In final address, the plaintiff submitted:

“A defamed plaintiff is entitled to aggravated damages when the defendant’s conduct is high-handed or oppressive, reckless, where the defamatory imputations are repeated, or where the conduct of the litigation is unjustifiable. The absence of an apology will also aggravate the damage suffered by the plaintiff.
The manner in which the defendant has conducted the proceedings to date (by serving (sic) to justify the alternative Polly Peck imputations), its refusal to offer an apology when one was sought only serve (sic) to aggravate the hurt already suffered by the plaintiff, together with such evidence supporting the plaintiff’s contentions of malice, justify a significant aggravation factor in the calculation of the award.”[89]

[89]Plaintiff’s submissions dated 20 April 2010, [56]-[57].

Immediately, one can see that the argument put by the plaintiff goes beyond his pleading. As a result of finding that what was conveyed by the first article was not comment and that there was no occasion of qualified privilege, it has not been necessary for me to consider the issue of malice. If I was called upon to determine the issue of malice, I would determine it against the plaintiff. It is sufficient to say that nothing I have observed about the history of this proceeding or the conduct of the litigation discloses malice or that the defendant (or anyone for whom it is responsible) was actuated by malice. The running of the Polly Peck defence, the failure (or refusal) to offer an apology, the content of the article (including what the plaintiff relies upon as not having been said) and the conduct of the litigation, taken together (or individually), do not, in my view, amount to high-handed or oppressive or reckless conduct on the part of the defendant. If I am wrong in this, then in any event I would not permit the plaintiff to depart from his pleading.

It follows from what I have said above that this is not an occasion for an award of aggravated damages. Considering the matter of compensatory damages and taking into account all of the matters I have referred to, in my view, the appropriate amount to award for the plaintiff’s compensatory damages is $175,000.

Conclusion

For the reasons given above, there will be judgment for the plaintiff in the sum of $175,000. I will hear the parties on the question of interest, the appropriate form of order and the question of costs.

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Citations

French v Herald and Weekly Times Pty Ltd (No 2) [2010] VSC 155

Most Recent Citation

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[2010] VSC 155

27 April 2010