Hodge v TCN Channel Nine Pty Ltd

CITATION: Hodge v TCN Channel Nine P/L & Anor [2006] NSWSC 933

HEARING DATE(S): 31/10/05, 1/11/05, 2/11/053/11/05,4/11/05,7/11/05, 8/11/04, 9/11/05, 10/11/05, 11/11/05, 14/11/05,15/11/05, 16/11/05, 17/11/05,18/11/05, 23/11/05, 24/11/05

JUDGMENT DATE :
18 September 2006

JURISDICTION: Common Law

JUDGMENT OF: Smart AJ at 1

DECISION: See para 945 and 946

CATCHWORDS: Highly defamatory segment broadcast on Australian mainland during prime viewing time alleging sexual misconduct on the part of Head Coach of Australian Swimming towards a pupil - Two imputations not justified, one justified on basis of letter written although not followed up - effect and permissibility of contextual imputations - whether imputations statements of fact or comment - Defence of comment - different legal considerations in NSW and other States - publication determines what law applies as to entitlement to damages - If item published in different States law of those various States applies to publication in such States - entitlement to exemplary damages is a matter of substantive law – Conduct of defendants entitled plaintiff to aggravated damages – No entitlement to exemplary damages in NSW but remedy available in other States – Entitlement to special damages for costs of attempting to mitigate damages – amendment of reasons.

LEGISLATION CITED: Civil Law (Wrongs) Act 2002 (ACT)
Crimes Act 1900
Defamation Act 1958 (NSW)
Defamation Act 1974 (NSW)
Defamation Act (NT)
Defamation Act 1889 (Qld)
Evidence Act 1995
Queensland Defamation Act 1889
WA Criminal Code

CASES CITED: Carson v John Fairfax & Sons Ltd. 178 CLR 44
Cawley v Australian Consolidated Press Ltd [1981] 1 NSWLR 225
Cheng v Tse Wai Chai Paul Court of Final Appeal in Hongkong [2000] 3 HKLR 418, 4 HKSC 1
Chernesky v Armadale Publications Ltd (1998) 90 DLR (3 Edn) 321
Cohen v Mirror Newspapers Ltd (1965) 83 WN 369
David Syme v Hore Lacey (2000) 1 VR 607
John Fairfax & Sons v O'Shane[2005] NSWCA 164
Greek Herald Pty Ltd v Nikolopoulos (2002) 54 NSWLR 165
Hepburn v TCN Channel Nine Pty Ltd 1984 1 NSWLR 386
Jackson v John Fairfax Limited 1981 1 NSWLR 36
John Fairfax & Sons Limited v O’Shane [2005] NSWCA 164
John Pfeiffer v Rogerson (2000) 203 CLR 503
Jones v Dunkel 101 CLR 298
Lloyd v David Syme & Co Ltd (1985) 3 NSWLR 728
NSW Aboriginal Land Council v Perkins (1998) 45 NSWLR 340
O’Brien v Salisbury (1889) TLR 133
Pervan v North Queensland Newspapers Co Ltd (1993) 178 CLR 304
Polly Peck (Holdings) plc v Trelford 1986 1 QB 1000
Radio 2UE Pty Ltd v Parker (1992) 29 NSWLR 448
Regie Nationale Renault v Zhang (2002) 210 CLR 491
Rigby v Associated Newspapers Ltd 68 SR (NSW) 425
Robinson v Laws (2003) 1 Qd R 8
Sims v Wran (1984) 1 NSWLR 317
Smart v Johnston [NSWSC] unrep 8/10/98
TCN Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333
Telnikoff v Matusevitch [1992] 2 AC 343
The Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1
West Australian Newspapers Ltd v Bridge (1978-79)
141 CLR 535
XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd 155 CLR 448

PARTIES: Gregory Hodge v TCN Channel Nine P/L and Channel Nine Network Australia Pty Ltd.

FILE NUMBER(S): SC 20276/03

COUNSEL: (P) S Littlemore QC & Ms S Chrysanthou
(D) B McClintock SC & Mr M Richardson

SOLICITORS: (P) Blake Dawson Waldron
(D) Gilbert & Tobin

INDEX TO CHAPTER HEADINGS

Imputations and Defences 3

The Program 6

Early Years 1995-1996 9

Assertions of Truth 14

EF’s Departure from the Hodge home 44

Condition of EF in February 1997 54

Some General Submissions and Conclusions 57

Telephone contact between GH and EF 58

GH’s visit to Gulgong 61

GH’s letter of about 31 July 1997 to EF 63

Parental Action 72

Resumption of Contact 72

The July 2003 emails from GH 85

15 August 2003 87

Contextual Imputations 125

General 155

Publications outside NSW 156

The Comment Defence 157

Queensland and Western Australia 164

New South Wales 171

The attack on the Comment Defence 176

Deletion of allegedly favourable Answers 187

Falsified Sequences 235

Sequence of Interviews 237

Malice/Absence of Good Faith 243

Some General Observations 248

Effect of Justification of Imputation (H) 254

Damages 254

Aggravated Damages 255

Exemplary Damages 261

Special Damages 262

Some Statutory Provisions – Damages 264

Assessment 264

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

SMART AJ

Monday, 18 September 2006

AUSTRALIA PTY LTD.

JUDGMENT

1 On 13 October 2003 during prime viewing time and on the well-known "A Current Affair" television program a highly defamatory segment concerning Mr Gregory Hodge (GH) was broadcast nationally, excepting Tasmania. At that time he was the High Performance Director for Australian Swimming with responsibilities which included the Australian Olympic team. This was a senior and nationally prominent swimming position. TCN Channel Nine Pty Ltd was the broadcaster and caused the segment to be broadcast in the Sydney, Melbourne, Brisbane and Darwin Metropolitan Television Licence areas. Nine Network Australia Pty Limited produced the segment and distributed it to the affiliates of the Nine Network for distribution and broadcasting in various licence areas throughout Australia, including to WIN Television NSW, Griffith, Queensland, South Australia, South East South Australia, Victoria and Western Australia, NBN, Imparija Television and Gold Coast, Adelaide and Perth.

2 The program contained a series of serious allegations or complaints by Emma Fuller (EF) about the conduct of GH. As a young girl she had shown much promise as a swimmer and it was thought that she had the potential to be a member of the Australian Olympic Swimming team, but she would have to train hard and be well coached. GH became her coach. He was widely regarded as a good swimming coach. There was a substantial body of evidence that he did not engage in inappropriate conduct with the swimmers he was coaching. He specialised in training elite swimmers with particular expertise in training swimmers for sprints. EF lived with her parents in Gulgong. She moved to Sydney in early 1995 to receive the training and coaching she needed to realise her potential. She enrolled at Endeavour High School (EHS) and was able to reside with an aunt and her partner for some months but the personal circumstances of the aunt meant that arrangement could not continue. She next boarded with a swimming family but that arrangement came to an end in December 1995. They could not take her in 1996. From early 1996 until early February 1997 she lived with the Hodge family, who treated her as a member of the family. EF became a close friend of Jodi Hodge, then about 22, the daughter of GH and Mrs Hodge. During 1996 the Hodge and Fuller families became friends.

3 EF, who was born on 3 March 1983, was a high spirited, boisterous and attractive young girl with a sense of fun who appealed to GH. He believed that he could coach her to become a swimming champion. Her swimming potential appealed to him and he went to considerable lengths to develop her swimming talent. He was born in 1947

4 Mrs Hodge, who had initially agreed to have EF stay in the Hodges' home, when no other home could be found for her in the Sutherland area, felt that her husband was becoming absorbed in his swimming training and in EF. Mrs Hodge said she became dissatisfied with EF's conduct. In early February 1997 Mrs Hodge ordered EF to leave after a stormy scene. GH and his wife had a row over the matter. EF returned to her parents' home in Gulgong. GH was concerned that her swimming potential would be lost and visited her at her parents' home when on a country trip. He then sent her an ill-advised letter. The defendants asserted that GH had developed a personal interest in EF that extended well beyond swimming and was inappropriate.

5 From late 1997 until early 2003 there was no contact between the Hodge and Fuller families and between GH and EF. In 2003 EF claimed that GH was pursuing her. That was strongly denied. The mother of the boyfriend of EF emailed and involved the defendants. She played a major role in preparing written complaints for EF to sign. One was delivered to the Chamber Magistrate and the other to Australian Swimming.

6 The broadcasting of the program was to have serious consequences for GH. Shortly after the broadcast GH was restricted by Australian Swimming to operational duties which required no contact with members of the Australian Swimming Squad while the matter was being investigated. GH said he was told he was not allowed to have contact with coaches or athletes. Subsequently he felt obliged to resign from Australian Swimming. He is now employed overseas.

Imputations and Defences

7 At the 7A trial in February 2004 the jury found the program bore these imputations:

(d) GH was a pervert who had preyed upon EF while she was a child under his care and protection;

(e) GH had engaged in constant acts of physical contact of a sexual nature upon EF, a child under his care and protection;
(h) GH had so misconducted himself in his sexual attentions towards EF that he was unfit to hold his position in charge of Australian Olympic swimmers.

8 The defendants relied on the following defences:

Defamation Act 1974

"A. GH when a 46 year old man, developed a sick sexual obsession with an 11 year old girl who was under his care and protection;

B. GH when a 46 year old man, took advantage of an 11 year old girl who was under his care and protection by engaging in frequent acts of inappropriate and unwelcome physical contact;

C. GH is a sexual pervert;

D. GH, when a 46 year old man, engaged in frequent acts of inappropriate and unwelcome physical contact with an 11 year old girl who was under his care and protection by reason of his sexual attraction to her;

E. GH engaged in inappropriate and unwelcome physical contact with an 11 year old female swimmer by reason of his sexual attraction to her thus rendering him unfit to hold any position in charge of Australian Olympic Swimmers;

F. GH had so misconducted himself that he is unfit to hold his position in charge of Australian Olympic swimmers;

G. GH misconducted himself towards EF by stalking her by reason of his sexual obsession with her;

H. GH has sexually harassed EF;

I. GH lied about his stalking and harassment of EF;

J. GH has so misconducted himself towards EF as to warrant an Apprehended Violence Order;

K. GH abused his position as guardian of an 11 year old girl by repeatedly touching her in order to gratify himself sexually;

L. GH engaged in repeated inappropriate acts of physical contact with a young girl under his care and protection with the intention of making amorous sexual advances on her when she reached the age of consent;

M. GH had so sexually misconducted himself towards EF that he is unfit to hold his position in charge of Australian Olympic swimmers; and

These contextual imputations are pleaded to be matters of substantial truth and to relate to public interest and hence the publication of any of the imputations about GH found not to be true would not further injure the plaintiff's reputation. The roughly comparable Polly Peck plea is made for the interstate jurisdictions: (Polly Peck (Holdings) plc v Trelford 1986 1 QB 1000).

9 In his amended Reply GH disputed that any of the imputations was a comment but insofar as any imputation was found to be a comment such comment did not at the time it was made, represent the opinion of the defendants, was not, at the time it was made, the opinion of the defendants’ servant or agent who made it and was not published in good faith for public information or the advancement of education.

10 In reply to the code or statutory fair comment defences pleaded in Queensland, Western Australia and the Northern Territory GH said that any comment published by the defendants did not represent the opinion of the defendants or their opinion was distorted by malice.

11 As to the pleas of fair comment upon a matter of public interest pleaded in Victoria, South Australia, Western Australia, Australian Capital Territory and Northern Territory, GH said that the defendants were actuated by express malice in the publication of the matters complained of and the defendants did not have an honest belief in the views they published.

12 In his opening speech Senior Counsel for the plaintiff, after having asserted that the statements in the program were untrue, that the mother of EF’s boyfriend had out of antagonism to GH interfered and precipitated the making of the program and that the television station, through its operatives had been guilty of reprehensible conduct with accompanying details stated (T13, lns 12-16):

“We are not going to argue in these proceedings that if the allegations were true, they would not amount to a matter of public interest, so it is simply a matter of joining issue on the defence that the imputations are substantially true.”

The Program

13 The transcript of the segment which gives rise to these imputations is too lengthy to set out in the body of this judgment. A copy is attached. The `plaintiff sues upon the program. That is the primary evidence but the transcript is a useful aide memoire The program opens with EF asserting that GH had a sick obsession with her and a comment by the presenter, "A young swim star's life shattered". The presenter asserts that because of GH's unwanted attention she abandoned her swim career and that now, years later, she says that GH was again trying to become part of her life. EF states that she was bitter towards him for what he had done.

14 She asserted that in 2003 GH was following her all the way home. She complained that in 1995 to early 1997 to correct her stroke in breaststroke, he laid her face down on the ground and sat behind her in between her legs. She said that he'd always "be fixing our costumes around our bottom or even flick them into our bottom" and that he rubbed Vaseline near her breasts and under her swimmers.

15 The reporter stated that when EF was 12 (in 1995) Mr Hodge approached her parents and suggested that she'd benefit from moving into the Hodges' house. EF said that GH kissed her a lot and gave her gifts all the time.

16 The reporter, Ms Amanda Patterson, records "Emma says he even moved his home office into her bedroom." EF added "Most nights he'd be in the room when I'd go to sleep and waking me up in the morning."

17 The program shows excerpts from a video shot by GH during a training camp of swimmers at Thredbo. Some boys had dressed up as girls and were acting up. A psychologist called Bob Montgomery, who was described as Australia's leading authority on stalking behaviour was asked to review the tape. He was critical of GH, saying:

"But it's also boys dressed up as girls. So he's prompting children to behave in an overtly sexual way that really is inappropriate"

and

"The number of incidents in which he exerts control over the children to behave in ways that are overtly sexual, suggestively sexual … yeah, once: a bit funny, a bit off; twice: remarkably coincidental; three, four, five times: you're looking at a consistent pattern. It's an alarming trend in this person's behaviour."

18 EF complained of a handle missing from the bathroom door and just a hole being there. She shoved tissues in it when she had a shower. She also complained of seeing GH naked on a number of occasions and him leaving the bedroom door open when he'd come out of the shower.

19 EF said that Mrs Hodge told her to get out (February 1997), accused her of being the other woman in her husband's life and said "she could not have me (EF) living there as she was always second to me and her husband was putting me first." EF's mother is shown expressing regret at the situation which developed.

20 The program next shows and quotes from a letter of apology sent by Mrs Hodge to the Fuller family:

"It is very difficult for me to put into words my remorse at creating this turmoil in your lives; I regret it very deeply. I pray that at some stage in the future Emma may begin to forgive me."

21 The reporter asserted that GH refused to accept that it was over and that he drove five hours to Mudgee to try and see EF and then posted the CD "Truly Madly Deeply" to her at her school. EF added that GH wrote to her saying that this was the way he felt about her. Portion of the CD cover, showing some of the fervent words of that love song, were shown on the program. EF added, "He was saying that he loved me … and had to be with me."

22 The reporter states that at 13 EF gave up swimming and was treated for severe depression and that the mental health co-ordinator who treated her had written that EF had been through a considerable amount of stress and that the love song GH sent her was inappropriate in the context of a guardian, teacher or coaches' relationship. The reporter continues that EF's parents told GH never to contact her and he didn't until now (2003).

23 EF states that she is worried, that she doesn't know what he wants and why he is following her. The program shows and records GH denying that he has been following her and denying that he had contacted her. The reporter asserts that GH is lying and that he sent her this e-mail out of the blue:

24 The reporter asserted that two days later, as EF was leaving work, GH was waiting for her, that as she drove home GH followed her in his car, but she managed to get away and that a few weeks ago he turned up again and this time she couldn't lose him. She was scared. The reporter said that EF's boyfriend stayed on the phone during the entire chase.

25 The program goes on to describe the arrival of EF at her boyfriend's unit, the protective actions of the boyfriend and some of his friends and the purported movements of GH arriving at and leaving the vicinity.

26 GH is recorded denying that he had been sitting outside EF's place of work and followed her home.

27 The program contains some comments from EF's father and Veronica Byrne, the mother of the boyfriend of EF. It details that Mrs Byrne contacted Swimming Australia, whose Chief Executive Officer told EF to submit a formal complaint in writing and that EF had done so. It records that EF had commenced proceedings to secure an interim apprehended violence order preventing GH from contacting her or being within 50 metres from her.

28 EF is recorded saying "He discussed many adult matters with me including his sexual relations with his wife, Sue. Several times he walked naked about the house in my full view. [This latter allegation was later retracted and there remained the allegation of seeing GH naked when he did not shut the bedroom door]. When I had my first menstrual period he purchased tampons and stood outside the bathroom door explaining to me how to insert the tampons." (This allegation was amended by deleting the words "explained to EF how to insert tampons" and substituting "and told EF to stay in the bathroom until she had read the packet and worked out how to use them."

29 EF said that what GH had done was wrong, that a lot of stuff had been ruined for her and that she did not really mind if she ruined Mr Hodge's career.

30 The reporter stated that EF was "not being paid for this story". EF said that she thought that she hated GH.

The Early Years – 1995-1996

31 In early 1995 EF moved from her home in the country and, with a view to advancing her swimming, enrolled in Year 7 at Endeavour High School, a High School which facilitates the development of sporting talent. During 1995-1996 EF was a student at EHS. GH taught mathematics at EHS and, for part of that period, taught EF. For about six years from 1991 GH was employed by the Sutherland Shire Council as aquatic director and head swim coach at the Sutherland Leisure Centre. At the same time he was teaching at EHS. When EF started at EHS she started swimming in GH's swimming squad. He had agreed to take her.

32 EF told Ms Patterson during a recorded interview prior to the program:

"He (GH) was fine at first – he always seemed a bit overwhelming."

EF said that at the beginning GH was:

"… very like involved with everyone, like a lot"

and that he treated her:

"Just like any other normal swimmer that was there and then I moved in with him later on …".

None of these statements were shown on the program.

33 She lived with her aunt and uncle for about six months until her aunt, pregnant again after a stillbirth, decided EF would not live with them any longer, citing, in particular, difficulties with coping with the early morning training sessions at the swimming pool. In July 1995 EF moved into the residence of Michael and Julie Smith and remained there until just before Christmas 1995. They decided not to have her board with them in 1996. Mrs Smith found she was exhausted with EF. Mrs Smith was also working as a bank officer. Mrs Smith said she tried to find another swimming family to take EF, but was not able to do so. It is apparent that she did not fit comfortably into the Smith household. There was a clash of personalities. I doubt if Mrs Smith would have tried to find another home for EF with another swimming family if EF's behaviour had been too bad. I accept that she was not an easy person to accommodate.

34 Mr Fuller said that Mrs Smith had told him that his daughter could not stay because of the interaction with her son. Mr Smith also alluded to that problem. Mr Smith said that he told GH that they could not have her living with them (the Smiths) any more and left it at that. GH confirmed that no reason was given.

35 GH said, and I accept, that after Mr Smith told him that his family could not take EF the following year he (GH) made enquiries of other families whether they could take Ms Fuller, without success. GH said that he then discussed the possibility with his wife and they made a joint decision that they could take her. They had a spare bedroom as one of their daughters was away at University. They decided to talk to the Fullers, who accepted the Hodges' offer.

36 EF came to live with the Hodge family at the start of the school year in 1996. GH said that this assertion by the reporter in the program was untrue.

"When Emma was 12 GH approached her parents and suggested she would benefit from moving into his house with him and his wife."

37 During 1995 Mr and Mrs Fuller came to know Mr and Mrs Hodge and thought well of them. When the accommodation difficulty arose and after the Hodges had made their provisional decision discussions were held between the Hodges and the Fullers. In EF's interview with Amanda Patterson, these exchanges occurred:

"Patterson: When you say he treated you like a normal swimmer when did that change?
EF: When I moved in with him it changed, and he also taught at the school I was at.
Patterson: Were you his favourite?
EF: Yes

Patterson: Why did you move in to his house?
EF: I was originally living with my aunty and uncle … I couldn't stay there any more so he suggested to my parents that I could go and stay with them for like a while and I ended up staying there."

(That was not a frank or correct answer. EF did not disclose to Ms Patterson that she had stayed at the Smiths for the second half of 1995 and the Smiths would not have her back in 1996)

"Patterson: … Did he say that you'd be more focused on swimming, how, how did he sell it to your parents?
EF: … he said that I'd be more focused there, and I'd have more discipline there because he could monitor my training and my schooling."

38 Initially, EF told Ms Patterson she wanted to live with GH and then added, "well, not really …". In response to a direct suggestion from Ms Patterson EF said she thought it was strange that one of her teachers was inviting her into his home. EF added: "I didn't really want to cause I'd have to wear that at school, all the time that I lived with one of the teachers and he was my coach as well, so I didn't really want to live there at all." EF said that she understood the reason for her to move into the household was "Because I had needed a place to live." She agreed that she went to the Hodges because there was nowhere else for her to stay.

39 EF's mother, Mrs Sue Fuller, said that they knew the Hodges and they seemed perfectly good people. Mrs Fuller would have preferred EF to be at home, but she deferred to what EF and her husband wanted. Mrs Fuller gave this evidence:

40 Mrs Fuller pointed out that the Fullers did not ask GH if she could go and live at the Hodges. He suggested that as an alternative so that she didn't have to come home (to Gulgong).

41 Despite the varying answers Mrs Fuller gave, she was not being untruthful. She was a mother who was deeply distressed over all that had happened. She preferred her daughter to remain at Gulgong and felt that she should have insisted. She was not nearly as keen as her husband and EF on EF having a swimming career. In deferring to the wishes of her husband and EF she felt that the Hodges, whom they knew, were good people. GH was a teacher and EF's coach and Mrs Hodge was also a teacher. They had two daughters and a great deal of experience with swimmers and children. In a difficult situation where no other accommodation was available she and her husband, with the agreement of EF, accepted the offer made by the Hodges to have her stay at their home. While she was there the Hodges regarded themselves as EF's guardians.

42 Mr Phillip Fuller, EF's father, told ACA that GH did not convince the Fullers that EF should live with the Hodges. Mr Fuller said that when EF went to live with another family and that did not work the Hodges made the offer because they (the Fullers) were going to bring EF home. Mr Fuller stated that Mr Hodge said he would ask his wife and then the offer was made. Mr Fuller stated that GH did not convince him (Fuller) that EF should live with him and that GH did not say, to his (Fuller's) knowledge, in the context of EF going to live with the Hodge family, that she was not concentrating on her swimming. At the time of these events Mr and Mrs Fuller were having substantial matrimonial difficulties and were not communicating well. They saw things differently.

43 It was GH's preference that EF stay in a home other than the Hodges' home; the Hodges' offer of accommodation was a matter of last resort. He was captivated by her ability and potential as a swimmer and the opportunity to coach her. He thought that she had the ability to become an Olympic champion and did not want that potential not to be realised. He also liked her as a person and, at that stage (late 1995 – early 1996), I would not put it any higher than that. GH was keen that EF continue as a member of his elite squad at the Sutherland Aquatic Centre. In the course of his discussions with Mr and Mrs Fuller about EF living with the Hodge family, GH explained the advantages of that course that is, supervising her swimming and schooling. No improper motive on the part of GH in the making of the offer of accommodation has been established.

44 The assertion made by the reporter, and earlier quoted, does not set out the correct position.

Assertions of Truth

45 The defendants asserted in the Amended Particulars of Truth that during the period 1995-1997, when EF was being coached by GH and/or was living in his home and/or he was her maths teacher, he became infatuated with her and engaged in a series of discreditable acts having a sexual overtone. GH denied he became infatuated with EF and submitted that the defendants had not proved their allegation.

As to each of the acts referred to in subparagraphs (d) and (f)-(i) of the Amended Particulars of Truth the defendants alleged that GH did or caused them to be done by reason of his sexual obsession with and/or sexual attraction to EF.

46 Particular (d) reads:

"Pursuant to the invitation of GH, EF moved in to live with GH and his family, namely his wife and two daughters. During her stay with GH which lasted from approximately early 1996 to early 1997, GH referred to himself as EF's guardian. GH was at the time approximately 46 years of age."

47 The circumstances in which EF came to stay with the Hodges are set out earlier. The offer made to EF's parents for EF to stay with the Hodge family came after GH had unsuccessfully made attempts to find alternative accommodation for EF. Both Mr and Mrs Hodge regarded themselves as EF's guardians. GH was aged 48 when EF came to live in the Hodge household.

48 The defendants have not established that GH made the offer to have EF live with the Hodge family in the Hodges' home and accommodated her there by reason of his sexual obsession with and/or sexual attraction to EF. Nor have the defendants established that in accepting the role of one of EF's guardians and acting as such GH did any of those acts by reason of his sexual obsession with and/or sexual attraction to EF.

49 Particular (f) (i) reads:

"During or immediately prior to swimming training and swimming carnivals GH on frequent occasions flicked the bottom part of EF's swimming costume with his fingers into her behind."

50 This activity is described in swimming circles as a "wedgie". EF said that she gave a lot of wedgies to other children in the swimming squad and that they gave them to her, that is, flicked her swimming costume with both little fingers into her bottom (or up her backside). EF said GH did this to other girls in the squad but not to the boys.

51 In cross-examination EF denied that in 1996 her favourite joke was giving wedgies to the other girls in the swimming squad. She said that the other girls were giving her wedgies. Ultimately she conceded that in 1996 her favourite joke with the other swimmers was giving them wedgies. It took some time to obtain the truth from EF.

52 In his evidence in chief GH said that he could not recall ever giving EF a "wedgie". GH said that if his memory is faulty and he did it, it would not have been done for his own sexual gratification, whether to EF or anyone else. GH said that the giving of wedgies was a practice started by EF when she came into the squad. She did it to both girls and boys. GH said that he had seen her chase the boys into the boys' change room to do it to them. GH said it became part of the horseplay within the group and no one took objection to it. Apparently he took no action to stop the practice. In cross-examination GH agreed he may he have done it, but he did not recall doing it. He did not agree that it was an overly sexual thing to touch the costume of a pre-pubescent girl around her buttocks. GH thought it depended on the context and that if he had done it, it would only have been in the context of horseplay.

53 Mrs Sue Hodge gave evidence that EF used to give wedgies and introduced the practice to the squad. It was treated as horseplay. She was not asked, either in chief or in cross-examination, whether she saw her husband giving EF a wedgie.

54 Jodi Hodge, the plaintiff's daughter said that EF's allegation that her father used to flick EF's costume into her bottom was untrue. On the other hand EF frequently gave others wedgies both at home and at the pool.

55 Mr Michael Smith said that after EF left his home he continued to attend the Sutherland pool on a daily basis and he saw GH and EF. Mr Smith said that at the (swimming) club he saw EF on numerous times give other people a "wedgie". He was not asked, either in chief or cross-examination, whether he had seen GH give EF a wedgie. Mr Smith was a strong supporter of GH and thought highly of him.

56 Ms Simone Cox had never seen GH give a swimmer a wedgie. She attended EHS from 1995 to 1997 and she and EF were members of the same swimming squad. She had known GH since she was four years old and had trained with him until she was aged about 16. She described him as a very good coach who enjoyed very high respect. He was very professional. She had never seen him behave in an inappropriate way towards a young female swimmer.

57 She said that before EF joined the squad she had occasionally seen other swimmers give another swimmer a wedgie. When she saw the program she thought it was totally outrageous and that the claims were totally untrue.

58 Kirsten Eileen Thomson, aged 22, said that she was studying Arts at Sydney University. She was a distinguished swimmer, having won a silver medal at the Sydney Olympics and a silver medal at the World Championships in Barcelona. GH was the manager of the team which went to Barcelona. She was again in heavy training. She was coached by him for about six years from 1991 to 1997 at Sutherland Pool. She said that prior to the program GH enjoyed the utmost respect in the Sutherland Shire Community. She regularly observed GH in his conduct both at the swimming pool and at home. She said that she had never seen GH touch anybody, or deal with anybody of either sex, in any way that she thought was inappropriate. She trusted him. She said that she and EF had been pretty close friends. She said that wedgies were quite frequently given by one swimmer to another at training. EF did it to her and other people. It was taken in good fun.

59 Ms Thomson was a member of the NSW Institute of Sport and the Australian Swimming Team. She said that GH was instrumental in improving the women's team and establishing a mentoring program. She did not believe the allegations in the program. She had known him for 13 years and he was not as portrayed in the program. She said that after the program some people in swimming circles, who had previously had a lot of respect for GH, made adverse remarks about him.

60 Ms Thomson said that EF was a lot of fun to be around. EF was very loud and boisterous and demanded a lot of attention from everyone around her. Ms Thomson said that coaches enjoy coaching people with a lot of talent. She described the relationship between a champion swimmer and her coach as a very close bond. That close bond is established before the swimmer becomes a champion. Ms Thomson was not cross-examined. She was an admirer of Mr Hodge. Although she came across as self opinionated in her evidence in chief, she was an outstanding swimmer, articulate and intelligent.

61 Mr Joshua Robert Smith was employed as a quality control officer by Energy Australia. He was also studying electrical engineering at University. He had known GH since about 1993/1994. He was Mr Smith's swimming coach. Mr Smith said that GH had a very good reputation as a good swim coach and a proper swimming coach. GH did not have "any kind of a dodgy reputation at all." Mr Smith said that he was in the same squad as EF. He did not regard himself as a top swimmer. He trained in the mornings with EF in 1995 and 1996. EF lived with his family for six months.

62 Mr Smith said that at training EF had a very fun going sort of attitude. He said that at the club when some of his friends and fellow swimmers were about to dive in for their next event or race for the evening, she ran by and flicked their swimmers. This was called a wedgie, but he regarded it as more of a slap. When asked whether that was taken in good part he replied, somewhat pointedly, "By herself, yes." He had not seen people doing that before EF joined the squad. She did it a lot and it definitely became more common after she joined the squad.

63 Mr Joshua Smith was no admirer of EF, but he impressed me as a decent young man whose evidence was truthful. He was cross-examined briefly on other matters. He did not regard some of the boys dressing up as girls at the Thredbo Training Camp as offensive, but as young people mucking up at the end of the camp and having some fun. That was my impression.

64 On the balance of the evidence the defendants have failed to establish that GH gave her wedgies. Even if he did so occasionally, the defendants have failed to establish that it was done for some improper motive and that it was other than tasteless horseplay.

65 Particular (f)(ii) reads:

"During or immediately prior to swimming training and swimming carnivals the plaintiff instructed EF to lay face down on the concrete near a pool, or lay over the swimming blocks, and then he would sit behind her and he would hold her legs and move them."

66 EF said that in breaststroke training GH sometimes would either stand behind her when she was at or on the swimming pool blocks, or when she was on the side of the pool. He held her legs in the place where they should be going. He placed his hands on her ankles, on her legs on her calves and just above her knees. This made her feel very uncomfortable but she did not say anything to GH. That is surprising given her boldness.

67 In cross-examination EF affirmed her allegation that GH held her legs while he sat between them and instructed her in breaststroke technique. She disagreed that it would be physically impossible for somebody to hold her legs and instruct her in breaststroke technique while standing between her legs. (T1122-3).

68 In the program this was said:

"EF: He [GH] lie me face down on the ground in breaststroke and sit behind me in between my legs to correct my stroke.
Reporter: And hold your legs as you were doing

EF: Yeah
Reporter: What was that like?

EF: It was uncomfortable. It was horrible. None of the other teachers did it."

69 Mrs Sue Fuller said that her daughter often said that when they were training that was what was done and she did not like it.

70 In his answers to interrogatories 1(b)(vi)(ix) and (x) (Exh 26) GH in response to being asked what part or parts of EF's body he touched, replied:

"ankles and feet".

71 In his evidence in chief (T63) GH agreed that he sat behind her at the swimming pool and at the starting blocks, holding her legs and moving them. He said that it was part of normal coaching practice when instructing swimmers in how to correctly position their legs when they were doing breaststroke. He did it as part of coaching breaststroke and not for sexual gratification. GH said that he had followed that course with other swimmers and that many other coaches follow that course. It is the course recommended in the coaching manual. It would be impossible to sit between a swimmer's legs and correct a breaststroke kick. He had never tried to do that.

72 In cross-examination (T351) GH said that if he was coaching EF or any other swimmer in the breaststroke kick there would have been occasions when it would have been necessary to place his hands on the quadriceps and hamstring muscles. GH stated that the quadriceps muscles and the calf muscles were just above the knee. They were nowhere near the genitals. GH disagreed that it was inappropriate conduct to touch a 13 year old female on the thighs above the knees. He did not have a satisfactory explanation for why he confined his answer to Interrogatories to touching EF's ankles and feet. GH would have realised that the answer he gave to the Interrogatories was incomplete and that a complete answer might provide the defendants with a further basis on which to attack him in his court case.

73 Ms Jodi Hodge gave evidence that she was a qualified swim coach and had taught breaststroke. She said that she had put her hands on a swimmer to assist in showing them the correct stroke. She explained that breaststroke is difficult for some children to master and being able to turn their ankles and teach them which muscles they are using is beneficial. She had put her hand on the inside of the leg just above the knee. Ms Hodge could not recollect whether she had seen her father teaching EF the breaststroke kick. She had seen her father teaching breaststroke many times. It was not possible to sit between the swimmer's legs and teach the breaststroke kick.

74 Mrs Karen Lynne Stephenson, an Olympic champion (Karen Moras) many years ago, a swimming coach for over 30 years, the manager of the Australian women's swimming team between 1998 and 2003, was appointed as the head manager of the entire Australian swimming team and by the Australian Olympic Committee as section manager for swimming at the Athens Olympics. She is the Operations Manager of the Aquatic Institute at Presbyterian Ladies College, Croydon, and a swimming coach there. She has been employed by PLC for the last 16 years. She knew GH as a colleague in her career as a professional swimming coach and personally since 1998. GH was the head manager and the head coach between 1998 and 2003 when she was manager of the Australian women's team. She said that he had an excellent reputation as a coach and as a manager. She had never heard a bad word about GH and she had got to know his character. She has never seen him behave to any person in a physical or emotional way that she thought inappropriate. No swimmer had indicated to her that GH's behaviour had made that swimmer or anyone else uncomfortable.

75 Mrs Stephenson's reaction to the program was one of shock and disbelief. She could not believe that the man she knew was being accused of the conduct alleged in the program. She said that after the program there was considerable talk among the swimming coaches, with the male coaches being very quick to judge and criticise, with remarks such as he was a sleaze and had coached a lot of young girls.

76 Mrs Stephenson said that in the 1990s and earlier it was common for coaches to lay their hands on a swimmer in the course of instruction. She said that since the A Current Affair program this had changed.

77 Mrs Stephenson said that when she taught breaststroke on dry land she stood behind the swimmers. She said that before the ACA program she laid her hands on the students all the time, that that "was the only way really that you were able to show young children how the kick is performed because it is not a natural movement. We don't walk with our feet turned out at a right angle." She was familiar with the technique which GH described as "proprioception" but did not use it herself, as she did not coach at the same level as GH and younger children probably would not understand that technique. She knew other coaches that used it.

78 Mrs Stephenson described the very close relationship she had with her first coach, the well-known Forbes Carlisle. She spent a lot of time outside the pool with him and he took her on many outings. She too cultivated a close relationship with her swimming students. She added:

"In the school holidays, I take them snorkelling, to the pictures, tenpin bowling. It is building a relationship outside the pool. Swimming coaching is not just about swimming, it is about teaching swimmers life skills."

79 In cross-examination Mrs Stephenson was referred to an article written by a Mr David Urquhart, the President of the Australian Swimming Coaches and Teachers Association, and his interpretation of the way stroke correction for breaststroke should be executed. She did not know of the views he held in October 2003. Mrs Stephenson disagreed strongly with Mr Urquhart's views. She was a very impressive witness whose evidence carries much weight.

80 The conduct in question took place in 1995-1996, that is, in a period where physically touching a swimmer above the knee to correct her breaststroke was not considered inappropriate.

81 In the program EF asserted that GH, when correcting her breaststroke sat behind her in between her legs. In their Amended Particulars of Truth the defendants deleted the allegation that GH sat in between her legs. EF attempted to justify what she said in the program thus:

"He was behind me in between my legs, so that's behind you in between your legs."

82 She was the further questioned:

83 I do not find this explanation very convincing and the defendants by their amendment did not allege that GH sat in between EF's legs. Ms S Cox said that she never felt uncomfortable when GH placed his hands on her hamstring and quadriceps muscles. It helped her to feel the movements and so when she went back into the water it enabled her to better feel for the correct movement.

84 The defendants have not established that in 1995-1996 the method used by GH of correcting EF's breaststroke was not one used quite commonly by some coaches of good repute. It was not regarded as inappropriate in 1995/1996 or early 1997. It was a useful and helpful way of teaching correct breaststroke swimming in 1995/1996, especially to students in an elite swimming squad. The defendants have not established that GH used the method of instruction for the purposes of sexual gratification nor as a result of his sexual obsession with or sexual attraction to EF.

85 Particular (f)(iii) reads:

"During or immediately prior to swimming training and swimming carnivals the plaintiff frequently applied Vaseline to parts of EF's body, mostly near her breast."

86 In the program this appears:

"Reporter: GH, she says would also rub Vaseline near her breasts.
EF: And he'd come up and pull it [her costume] down and rub Vaseline there and he'd rub the Vaseline under our swimmers then place our swimmers back to the way they were.

87 EF said that sometimes GH would apply Vaseline to where she had chafe marks. GH applied Vaseline frequently to deal with chafe marks, potential chafe marks and cuts. She could not remember whether he did so daily. She demonstrated and agreed that GH applied Vaseline from below her armpit towards the area above her right breast. She said she felt uncomfortable when he did this.

88 EF said that she told her mother that GH used to apply Vaseline but not that he put his hand inside her costume. She said it would not be true to say he put his hand inside her costume because he pulled it down to put Vaseline on, but he did not put his hand between her flesh and the fabric of the costume. She agreed that she did not tell her mother in 1996 or 1997 that GH rubbed Vaseline near her breasts.

89 GH denied that he frequently applied Vaseline mostly near EF's breast. He did apply Vaseline to her body. GH explained:

"The females' swimming costume straps were tight over their shoulders and they would chafe and rub against the neck and shoulders and sometimes under the armpits causing red welts, so the Vaseline was there, applied to both the skin and stitching on the costume to try to help avoid the chafing."

90 GH said this is what he did to EF and other female swimmers. GH said that if the swimmers were having trouble before training he directed them to apply the Vaseline to their own shoulder straps before entering the water. They could use the towel to wipe their hands to get a grip on the water. If the chafing occurred while they were in training and their hands were wet he and other coaches applied the Vaseline where the chafing took place. GH said he applied the Vaseline onto the shoulders or the shoulder straps or under the arms where the chafing had taken place and onto the stitching on the costume. GH said that he did not apply the Vaseline for the purpose of his sexual gratification. When he applied Vaseline it was always on the pool deck, out in the open in front of parents, swimmers and other coaches.

91 In cross-examination GH agreed he told Mr Wilkinson of Media Monitors (T287):

"Vaseline. In those days kids got cossie rubs. Stitching rubs. We always used to put vass on the stitching. That was just something that coaches did those days."

92 GH supposed that under the arms where the costume comes around the back is adjacent to the breasts. That is self-evident. GH did not agree that it was inappropriate to put Vaseline under her arms and insisted that it was a common practice by other coaches in 1996. GH applied Vaseline on the bodies and costumes of EF and other female swimmers, where there was chafing, as necessary.

93 There was an abundance of evidence as to the use of Vaseline to prevent or cope with chafes. Ms Simone Cox said that as a swimmer you can't put the Vaseline on your hands yourself so someone else has to put it on for you. She said that if she ever had to have Vaseline applied GH would always ask her beforehand. She never felt uncomfortable. GH applied the Vaseline under the arms where the costume rubbed.

94 Mrs Stephenson said that if the Vaseline is not applied the skin can become infected and that prior to the program coaches applied Vaseline to elite swimmers as well as the swimmers applying it to themselves. The position is different now as no coach wants to be put in GH's situation.

95 While in 1995/1996 GH applied Vaseline under EF's arms where her costume rubbed to ease any chafing potential chafing or cuts, and that included putting Vaseline on the seams of her costume under the arms and that was close to the breast, it was common practice for coaches of elite swimmers to do so in those years and accepted by the swimmers without demur. GH did not single out EF. The defendants have not established that in 1995/1996, in carrying out this routine procedure, GH did so with any sexual motive, nor that GH did anything which was untoward or improper by the standards of those days. There has since been a change in standards and procedures.

96 Particular (f)(iv) (as amended) reads:

"On a number of occasions during EF's residence at GH's home, GH stood naked in the main bedroom of his house in view of EF."

Originally it was alleged that GH on a number of occasions during this period walked naked around the house.

97 EF said that in 1996 she saw GH naked on a maximum of two or three occasions. He was in the main bedroom standing and bending in front of a cupboard that faces the doorway. The doorway opens on to a hall. EF said that she was in her bedroom just inside the doorway of that room. EF said the doorways look into each other at the end of the hallway. She particularly recalled one occasion because she made eye contact with GH. She said that he was bending down naked and then he stood up. They made eye contact. He continued getting dressed and she turned around in her room and continued what she was doing. She said that she was shocked. GH did not say anything to her about the incident.

98 EF in a letter lodged with the Chamber Magistrate, dated 29 September 2003, stated:

"Several times during my residence at Hodges' he walked naked about the house in my full view."

99 A letter dated 29 September 2003 signed by EF and sent to Australian Swimming Incorporated contained the same statement. The letter was prepared and typed by Ms Veronica Byrne, the mother of EF’s boyfriend. EF agreed that that statement was wrong and that she did not check the letter sufficiently carefully before signing it. EF's approach was offhand.

100 In the program EF said, "I saw him on a number of occasions naked. He would leave the bedroom door open when he'd come out of shower" and "Several times he walked naked about the house in my full view."

101 EF told the reporter prior to the program that on a number of occasions she saw GH naked where he knew she maybe would walk out and see him. EF told the reporter that she did not know whether GH did it deliberately. EF in response to a direct question from the reporter, stated that she made eye contact with GH on one occasion. EF was questioned about this topic by the reporter and elaborated upon it.

102 EF conceded in her evidence that it was incorrect to say that GH walked naked about the house, but insisted that she had seen GH naked in the house when he left the main bedroom door open.

103 It appeared that TCN9 gave EF a piece of paper on which the words were written "Several times he walked naked about the house in my full view" and that she read them out on the program. They were not correct when she read them out. She should have realised this and not done so. TCN9 should also have realised that EF was being asked to read out a damaging statement which was at least impliedly known to be incorrect.

104 GH denied that he walked around the house naked in full view of EF. In cross-examination GH said he had no recollection of EF ever seeing him naked in the house. GH said you cannot see into the main bedroom from the hallway, except for a small stretch of carpet adjacent to a window and in front of a wardrobe. GH said that EF's bedroom was offset from the hallway. From inside EF's bedroom it was not possible to see into the main bedroom, but it was possible to do so from the doorway of EF's bedroom.

105 Mrs Hodge had never seen her husband at a time when they had children, or at a time when there was any guest in the house, walk naked about the house. Jodi Hodge had never seen her father walk about the house naked. GH and his wife said that GH was never alone in the house with EF. EF said that she told her mother that she saw GH naked in his bedroom, but her mother said no such complaint was made.

106 There is no corroboration from any other witness of the original allegation or the amended allegation. While there does not have to be supporting evidence, the initial allegations to the Chamber Magistrate and Australian Swimming and the words EF read out on the program were incorrect. In a domestic situation a person could accidentally not shut the bedroom door, and any viewing of a naked GH could have been accidental and unintended. It has not been established to the contrary

107 The balance of the evidence favours the conclusion that the defendants have not proved on the balance of probabilities that the amended allegation is substantially true.

108 Particular (f)(v) reads:

"During the period when EF was living in GH's house she had her first menstrual period. GH purchased tampons and stood outside the bathroom door and told EF to stay in the bathroom until she had read the packet and worked out how to use them."

109 That formerly read after the words "bathroom door" the words "and explained to EF how to insert the tampons."

110 EF gave evidence that GH told her that she could not use pads any more or miss any more training sessions and that she would have to buy tampons. They were bought for her by GH as he drove home from the pool. She said that she went into the bathroom, closed the door and said to GH that she did not want to use tampons. He told her that she had to use tampons or she could not do swimming training. She said that he was standing outside and said that she would have to read the instructions and use tampons as she could not have any more time off training. He asked if everything was okay.

111 In the letters to the Chamber Magistrate and Australian Swimming it was stated "When I had my first menstrual period, he purchased tampons and stood outside the bathroom door, explaining to me how to insert tampons." The last clause was an inaccurate summary of what occurred, but the subject matter was the insertion of tampons so she could resume swimming training. EF read out the last quoted statement on the program (lines 591-593). That statement suggests more involvement than EF says was the case. That should not have happened as the defendants had been made aware of the position asserted by EF.

112 GH was aware of EF starting to menstruate. He said that in accordance with his well established practice he referred her to Dr Jenny Saunders, the team doctor and the Hodges' family doctor, for advice on how to manage menstruation and training.

113 GH denied that he told EF that she had to use tampons for training and stay in the bathroom until she had read the packet and worked out how to use them.

114 Ms Jodi Hodge said that "pretty quickly" she developed a very close relationship with EF, who asked her if she could wear a pad when she went swimming. Ms Hodge said to EF that was not a great idea and suggested she used a tampon or nothing. Ms Hodge said that from her experience some swimmers wore tampons and some wore nothing. She said that EF used pads on occasions. Ms Hodge said that it was not always the practice for female swimmers who were menstruating to wear tampons. Ms Hodge stated that EF did not use tampons when she was swimming when she had her periods in 1996. EF indicated she was unwilling to wear tampons.

115 Ms S Cox said when she started menstruating she did not wear anything. The blood flow is not strong enough. She said that a lot of female swimmers had the same approach.

116 The balance of the evidence points to young girls who had recently started to menstruate not needing to wear tampons and EF not wearing tampons. Given GH's evidence that he referred girls who had started to menstruate to the team doctor for directions and advice, it is improbable that GH would have entered the field of purchasing tampons for EF and insisting that she wear them. It was put to Ms Hodge, and she agreed, that EF was unwilling to wear tampons. Mrs Hodge spoke of buying pads for EF and Ms Hodge of EF's mother supplying pads for EF which were kept in the bathroom.

117 I cannot overlook the inaccuracies in EF's initial complaints to the Chamber Magistrate and Australian Swimming and repeating them on the program. EF and the defendants should have realised that they were incorrect.

118 The defendants have not established the substantial truth of the amended allegation. I have found it unnecessary to consider the further submission that, if the amended allegation had been established, the conduct of GH was not inappropriate for someone acting as EF's guardian.

119 Particular (f)(vi) reads:

"During the period when EF was living in GH's house GH massaged EF while she was lying prone and topless on the bed in his room."

120 EF said that on one occasion at night in 1996 after a training session and after dinner, she had underwear around her lower half and a towel around her and GH was massaging the top part of her neck and back. EF said she was in the main bedroom on the bed. Mrs Hodge was also present. (GH complained that this was not put to him or his wife). EF said her mother telephoned her but she could not recall the telephone call, by which I think she meant the terms of the conversation rather than whether it was made.

121 In a spirited session of cross-examination in which the cross-examiner and EF were at some stage at cross-purposes (T1044-5) EF insisted that GH gave her a massage when she was topless. She was uncovered on the back. She said:

"I was lying face down with a towel and the towel was covering my body as well, my legs but it was uncovered at the back."

122 She said that her mother telephoned while the topless massage was happening. EF said she told her mother of that massage but could not remember the year. Mrs Fuller recalled a telephone call she had with EF during 1996 one evening and heard EF say "Don't touch me there. Mrs Fuller asked, "What's going on?" EF replied, "Greg's giving me a massage" (T646). Mrs Fuller said she asked nothing else. The incident took place at a time when at least some members of the Hodge family were likely to be at home. There is no evidence as to who answered the telephone initially.

123 GH pointed out that EF had made no complaint about this incident to the Chamber Magistrate, Australian Swimming or the police. Amongst the many complaints that were made I do not attach any significance to her omitting to mention one complaint.

124 GH denied that he ever massaged EF and he denied ever having massaged EF while she was topless. GH said that he did lay his hands on EF for the purpose of relieving any pain or muscle soreness after EF complained of sore shoulders after training. He and his wife gave EF the occasional "flick rub" on her shoulder. EF would usually be sitting on the floor while the Hodges were in a lounge or chair in the family room area. EF was always dressed or in a swimming costume.

125 Mrs Hodge, in her evidence in chief, said that she knew of no occasion on which EF lay on a bed while undressed to the waist, whether covered with a towel or not, and GH rubbed or massaged her. Mrs Hodge says it could not have happened. There were two bedrooms with lofts with mattresses and not a bed as such. There was not enough space for a massage to take place in either loft; "you can't kneel". EF would not have been permitted to go into the main bedroom. Mrs Hodge said that she was "pretty fussy" about the way she kept her bed and that is probably so.

126 Mrs Hodge said that both she and her husband gave EF a shoulder rub on more than one occasion. These shoulder rubs occurred after EF had complained of sore and stiff shoulders and either GH or Mrs Hodge would rub EF's shoulders. Usually EF sat on the floor and the Hodges sat on the sofa. Sometimes EF sat at the kitchen table and the Hodges stood behind her. Mrs Hodge said that on a couple of occasions she rubbed EF's shoulders briefly while she (Mrs Hodge) was standing in the kitchen.

127 It is improbable that Mrs Hodge would have permitted her husband to massage EF on the bed in the main bedroom. It is also improbable that GH would give EF a massage (or shoulder rub) while EF was topless and lying on the bed in the main bedroom, with Mrs Hodge present in the house. Mrs Hodge would not have permitted that and I doubt if GH would have attempted it with Mrs Hodge present in the house. I do not doubt that on one night when GH was giving EF a shoulder rub Mrs Fuller telephoned and spoke to her daughter and heard her daughter tell GH "don't touch me there." However, the incident as described by EF does not seem one which Mrs Hodge would have permitted. Mrs Hodge was particular about the main bedroom and the bed.

128 The defendants have not established the substantial truth of this allegation.

129 There was other material on the topic of massages or shoulder rubs or flick rubs, but it was not the subject of the Amended Particulars of Truth.

130 GH denied that he ever gave EF a massage some mornings at the pool. He said that they had employed people to do the stretching and warm-up activities for the team.

131 Ms S Cox said that on one occasion after she had hurt her shoulder, GH gave her a massage with her permission to help relax the muscles around her shoulder because they were very much knotted. That did not strike her as inappropriate.

132 I am not persuaded that GH engaged in any inappropriate massaging or rubbing. The defendants have not established the substantial truth of this allegation.

133 Particular (f)(vii) reads:

"GH bought many gifts for EF including jewellery such as rings and bracelets."

134 It was not disputed that EF received some small gifts from either the Hodge family or GH. The circumstances and motivation were in issue.

135 EF said GH and she were walking through the markets at the Rocks. There was no one else with them. She saw a moon and star ring which she liked and GH bought it and gave it to her. She could not recall how much it cost. She said that in 1997 he gave her a Savage Garden CD, In 1996/1997 he gave her swimming caps, swimming costumes and tracksuits. The Hodge family gave her a bracelet with the name "Emma" inscribed upon it. When she was at a competition in Brisbane and they were at the markets GH gave her a sketch of herself made by a street sketcher. In cross-examination EF said she had thrown the ring out and that she had also thrown out a gold pendant with charms hanging from it which GH had bought for her. EF said her mother saw the pendant and the charms. They hung from a necklace her parents had given her and she told them that the charms were a gift from the Hodge family.

136 EF agreed that in her letter to the Chamber Magistrate and that to Australian Swimming, she referred to GH buying her many gifts including jewellery such as rings and bracelets. She agreed that it was incorrect to use the plural and that she didn't notice the "s" there when checking the letter.

137 EF said the bracelet might have come from the family, but GH handed it to her. She denied that she was at the markets with GH, Mrs Hodge and Jodi Hodge and the family bought a bracelet for each of Jodi and Katie Hodge and EF.

138 EF said that GH gave her some swimming clothes and that he bought her some swimming clothes (several track suits, several swimming costumes and several caps). She did not know whether her parents later reimbursed GH.

139 On the program EF is recorded as saying:

"And he used to give me presents. He has this bracelet made for me with me (sic) own name on it."

EF was coached in the giving of this answer by the reporter.

140 GH gave this evidence in cross-examination:

Q: You were at the Rocks Market with her alone, weren't you?

A: Not that I recall.

141 GH agreed that he also bought her an Alanis Morrisett CD.

142 Mrs Sue Hodge said that while EF lived with her, GH gave her swimming equipment which sponsors provided. EF's parents provided her with a lot of swimming equipment. The Hodges bought her goggles and caps and were reimbursed by her parents. Mrs Hodge had never seen EF in possession of a gold pendant with charms, but she said that EF had a couple of little rings. Mrs Hodge did not recall EF ever showing her any item of jewellery and telling her that GH bought it for her. Swimming gear received from sponsors was distributed three ways, that is to each of their daughters and to EF.

143 Jodi Hodge said that EF was bought gifts by all the members of the Hodge family. She said that she, Katie (her sister) and EF each received a bracelet on the same occasion. Jodi Hodge confirmed her mother's evidence as to the receipt and distribution of swimming gear. She had never seen EF with a gold pendant with charms attached to it.

144 Mrs Fuller said that she was not aware of any gift to her daughter which was inappropriate. She disclaimed having a complete knowledge of the gifts received by her daughter.

145 I find that each of GH's daughters and EF received about the same time a bracelet with her respective name on it. From the descriptions given these were inexpensive.

146 It is noted that neither Mrs Hodge nor Jodi Hodge recalled the pendant. Ladies often have a keen eye for items of jewellery. The gift of swimming gear was provided out of items received by GH from sponsors. Apart from the sporting equipment, all the gifts alleged appear to be of small, inexpensive items of no great consequence. They were tokens of civility designed to make EF feel part of the Hodge family. It has not been established that any inappropriate gift was made by GH to EF prior to her being told to leave the Hodge family residence, nor that GH made an excessive number of gifts to EF.

147 The defendants submitted that the critical issue was what was GH feeling at the time and that the inference to be drawn from his conduct in 1996 and from his state of mind in 1997 and 2003 was that his conduct in giving frequent gifts, if not always then a lot of the time, did have a sexual motivation. I have not accepted as proven that the frequency of gifts from GH to EF was as great as the defendants suggest. I would draw no inference adverse to GH in respect of the division of sporting or swimming equipment received from sponsors. The defendants have not established that the gifts made by GH to EF were by reason of his sexual obsession with and/or sexual attraction to EF. I am not satisfied that there is a sufficient basis up to the time EF was told to leave by Mrs Hodge to draw the inference sought by the defendants and I do not draw that inference.

148 As to the gifts after EF was told to leave by Mrs Hodge, those items of sporting equipment which were given or offered by GH to EF were, as recognised by EF, an inducement to EF to return to the sport of swimming and swimming training. It has not been proven that there was any sexual motive behind those gifts or offers. GH was keen to oversee the training and development of a person he regarded as capable of becoming a champion. He was not only a good swimming coach but an enthusiast and his enthusiasm extended to his pupils. He rejoiced to see them do well. If his pupils did well, that enhanced GH’s reputation.

149 The gift of the CD Savage Garden falls into a different category. The song "Truly Madly Deeply" is a love song. In his letter GH wrote, amongst other things:

"I love the Savage Garden CD – I hope you do too – especially the song – madly deeply – it's how I feel about you."

150 The letter as a whole, with its reference to how he feels about EF conveys two main messages, first that she should return to swimming, as he still felt she could go all the way and secondly that he loves her deeply and wants to be with her. I do not accept GH's explanations. The statement that the song madly deeply is "how I feel about you" encapsulated his love for her (EF) and that she has captivated him. I would infer that he felt a sexual attraction to her. A feeling of love of a sexual kind for EF or sexual attraction to her is not necessarily improper but the expression of those feelings either orally or physically by a former coach to a 13-14 year old former pupil whom he is urging to return to her swimming is improper. The problem lies not in being tempted and wrestling with that temptation, but yielding to that temptation in part.

151 Particular (f)(viii) reads:

"GH discussed his sexual relations with his wife with EF."

152 EF said that on one occasion GH stated that he and his wife were not getting along, that things weren't very good between them and that he was not getting any, in a sexual sense. This conversation was said to have taken place in a car between EF and GH with no one else present. EF also said that on an occasion GH said that his wife was going to Jenny Craig. This evidence was not completely satisfactory. While EF could recall the topic they discussed she said "I can't recall, [the conversation] word for word, but it's in my mind. I have the memory in my mind of the subject that it was about. I couldn't begin to say the conversation, just my memories." What I have summarised earlier was what she remembered of the substance of the conversation. Her recollection is sketchy and one on which it is difficult to rely.

153 EF is recorded on the program saying:

"He discussed many adult matters with me including his sexual relations with his wife, Sue."

154 During a conversation with the reporter prior to the program being shown this appears:

"Reporter: And he talked to you about his sex life
EF: Not so much like his personal sex life, but sex in general he spoke to me about a lot. Yes.

Reporter: What would he say?
EF: That I can't remember."

155 On one view what EF is recorded as saying in the program does not appear to be consistent with what she is recorded as saying in the camera tape of the principal interview between the reporter and EF. There was no explanation for this. On another view that comment does not preclude GH mentioning briefly the problems, including any sexual problems with his wife.

156 The police on 25 August 2003 made the following record:

"The POI [GH] would also discuss his sexual relationship with his wife to the victim and talk about sex in general."

157 In the letter to the Chamber Magistrate and Australian Swimming this is stated:

"He discussed many adult matters with me as though I were his peer, including his sexual relations with his wife Sue."

158 That sounds more like Mrs Byrne's language than that of EF, but EF signed the letters. Mrs Fuller said that her daughter made no such complaint to her. Someone may have lifted the words from the letters and had EF say them on the program. They tended to emphasise the allegedly improper conduct of GH.

159 GH denied discussing with EF his sexual relations with his wife, or sex in general. He said that he and his wife were quite private about their sexual relations. He claimed that EF asked some very intrusive personal questions.

160 Jodi Hodge said that her father never discussed such matters, but claimed that EF asked very intrusive and direct questions as to the personal affairs of others.

161 EF's sketchy recollection of the substance of what was said, her guarded answer to the reporter on the camera tape and the evidence of GH and his daughter have resulted in my not being satisfied that the defendants have discharged the onus of establishing that GH discussed his sexual relations with his wife with EF or, I might add, discussed sex in general with EF. The defendants have not established the substantial truth of this allegation.

162 Particular (f)(ix) reads:

"GH told EF on a number of occasions that he loved her."

163 GH admitted that he told EF that he loved her, but asserted that this was said for the purpose of reassurance and parenting and never for sexual gratification. GH said that EF wanted constant reassurance and asked if we (the members of the Hodge family) loved her. He replied, "Yes Emma, we all do." GH said he in fact loved EF in a paternal way. There was no sexual element. She was treated as a member of the Hodge family. GH said that EF never became standoffish with him. GH said that in his family he, his wife and both his daughters told each other all the time that they loved each other, and still do.

164 Mrs Hodge said that she told EF that she loved her, in response to a query from EF. GH also told her that he loved her. Mrs Hodge said that the whole family loved EF and she loved EF as if she were her daughter. Jodi Hodge also said that EF was told she was loved by GH and members of his family, when EF sought reassurance. This was a family in which there were frequent statements of love for one another.

165 By the time EF was told to leave the Hodge family house in February 1997, Mrs Hodge believed that GH's interest in and love for EF had developed to what she regarded as an unhealthy stage and as undue and she felt that EF was replacing her as GH's number one priority. No overt act of impropriety has been established up to that time. As from this time, if not a little before this time, the relationship between GH and EF was more than that of coach and student swimmer. EF encouraged an interest by GH in her.

166 Mrs Hodge described EF as warm, friendly, boisterous and very likeable. EF had normal childhood moods. GH said that the Hodge family enjoyed having EF in the house, she was fun to have around. EF agreed that she loved GH, Mrs Hodge, Jodi Hodge and Katie Hodge when Katie was home from University.

167 While it has been established that during 1996 GH told EF that he loved her, in response to her seeking reassurance, it has not been established that he did so by reason of any sexual obsession with or sexual attraction to EF. I do not accept EF's evidence that she did not really understand when GH stated that he loved her nor that it made her feel uncomfortable. I accept that the context, in which statements to that effect were made, was as deposed to by GH, Mrs Hodge and Jodi Hodge. I am not satisfied that GH told EF that he loved her when he was alone with her. The defendants have not established on the balance of probabilities, that such statements were made because of GH's sexual obsession with or sexual attraction to EF.

168 EF returned to the Hodge family home in January 1997. On the evidence I am unable to make a finding as to the context in which the statements, if any, were made from the date of EF's return until early February 1997.

169 Particular (f)(x) reads:

"GH frequently kissed EF including on her cheek and close to her lips."

170 GH admitted kissing EF and said it was usually on the cheek and forehead. He said he frequently kissed EF close to her lips but did not have any intent to derive sexual pleasure from such kissing. GH said that in his family in 1996 they would kiss each other goodbye if they were going away anywhere. They would kiss EF if she was going back to her parents' place and they would kiss her when she went out and on her return. If she did well at a carnival or a best time he would give her a kiss, as he did with all his female swimmers. He gave them a kiss and a cuddle and put his arm around them. He kissed EF and his daughters good night.

171 GH's evidence on this topic was supported by Mrs Hodge and Jodi Hodge. The swimmers Nicole Taylor, Kirsten Thomson, Fallon Overshine and Bernadette Bellwood stated that GH kissed other swimmers as a greeting or congratulation. Sometimes, if the swimmer was upset or had a bad swim he would put his arm around the swimmer to console her. GH became excited when a swimmer did well and was very happy for her. The female swimmers mentioned did not regard his conduct as inappropriate.

172 EF told the police on 25 August 2003 that GH regularly gave her cuddles; but never indecently touched or assaulted her. In her letters to the Chamber Magistrate and ASI it was stated: "He would kiss and hug me."

173 In the program this passage appears:

"EF: He'd always come and give you a kiss on the cheek, you know, try and put his arms around you." (This is an edited answer taken from an earlier tape) .

Reporter: Did he kiss you a lot
EF: Yes.
Reporter: When did he kiss you
EF: At home, when I was going … to bed. Or after swimming events or even sometimes at training."

174 EF said that the kissing at training started in 1996 "pretty much straightaway" and was quite frequent. When he did that she asserted that she felt uncomfortable and nervous. She said that he first kissed her at his home when she first moved in and thereafter in the evenings or mornings or when she was going to bed. This was a daily occurrence. She said that sometimes she felt fine and at other times she felt uncomfortable. EF agreed that hugs and kisses were an everyday event in the Hodge household and "we kissed each other goodnight."

175 Mrs Fuller gave evidence that EF complained to her about GH kissing her as though he was her father. Mrs Fuller spoke to her husband who thought that there was nothing amiss and that they could not do anything without any evidence. Mrs Fuller knew the Hodges were a kissing and hugging family. Mrs Fuller saw nothing inappropriate in the kiss or kisses she saw given to her daughter by GH. Mrs Fuller gave this evidence:

"Q: When Mr Hodge stood in for your husband there was nothing inappropriate in him kissing or hugging your daughter was there?

897 About T1110 cross-examining counsel asked me to note that when he asked the question the witness would not answer it and that when I asked the question the witness answered it. In reply I expressed the view that it was the way the question was asked. I was referring to the manner of questioning. I did not overlook that witnesses often make a better attempt to answer a judge’s questions

898 About T1143 in answer to a relevance objection and in the presence of EF, the cross-examiner expressed strong criticism of EF’s honesty in her presence. If I had anticipated what was said I would have earlier asked EF to leave the courtroom temporarily.

899 During the afternoon of 15 November 2005 the manner of the cross-examiner in asking questions again became very intense and hostile. About T1159 I expressed the view that the questioning that afternoon had been torrid. Cross-examining counsel disagreed with my view. I expressed the view that there had also been a large number of unfortunate comments from both leading counsel. EF had become distressed and I stopped the cross-examination and resumed it the following morning. EF was most unwilling to return, but it was explained to her that she must do so.

900 The cross-examination resumed on 16 November 2005 and concluded about 11.45am.

901 The assessment of the credit of EF is unusually difficult because of the manner of the cross-examination and the unfortunate comments made during its course. As earlier mentioned, she was a difficult witness but the manner of the cross-examination had a marked effect upon her, her evidence, her general attitude and her capacity to answer questions. Because of the manner of the cross-examination and the distress it caused her she found it difficult to focus upon the questions. She did not have the stamina to handle such a robust, torrid and prolonged cross-examination. I thought it unsafe to rely upon generalisations as to her credit and that what was required was a detailed examination of the evidence. This was a memorable case. It involved very personal matters and the witnesses left indelible footprints. In writing this judgment I have re-read the transcript, much of it more than once and the detailed and lengthy submissions of the parties, and studied the exhibits.

902 In forming the views I have expressed I have kept in mind the errors EF has made, her failure to carefully check the terms of the respective letters she signed to the Chamber Magistrate and Australian Swimming, her reading out incorrect statements on important matters which she knew were incorrect (these appeared on the program). There were also her mistakes as to matters of detail. There was also evidence as to the absence of sexual misconduct on the part of GH with any other swimmer. As earlier mentioned EF occupied a special place with GH. EF living in the Hodges’ home complicated the position.

Effect of Justification of Imputation (h)

903 The justification of imputation (h) does not lead to the conclusion that imputations (d) and (e) did not further injure GH’s reputation. That is particularly so having regard to the basis upon which imputation (h) has been found to be justified. As previously stated contextual imputation M is not substantially different from imputation (h). Contextual imputation F is less serious than contextual imputation M. The combined effect of the contextual imputations established does not lead to the conclusion that imputations (d) and (e) did not further injure GH’s reputation. They did.

Damages

904 Imputations (d) and (e) are highly defamatory. It is extremely damaging to say of any person that he is a pervert who preyed upon a child under his care and protection. Likewise it is very damaging to say of a person that he engaged in constant acts of physical contact of a sexual nature upon a child under his care and protection. The question of damages does not arise as to imputation (h).

905 In Carson v John Fairfax & Sons Limited (1992-1993) 178 CLR 44 at 60-61 the judgment of four Justices stated, omitting citations:

“Specific economic loss and exemplary or punitive damages aside, there are three purposes to be served by damages awarded for defamation. The three purposes no doubt overlap considerably in reality and ensure that ‘the amount of a verdict is the product of a mixture of inextricable considerations’. The three purposes are consolation for the personal distress and hurt caused to the appellant by the publication, reparation for the harm done to the appellant’s personal and (if relevant) business reputation and vindication of the appellant’s reputation. The first two purposes are frequently considered together and constitute consolation for the wrong done to the appellant. Vindication looks to the attitude of others to the appellant: the sum awarded must be at least the minimum necessary to signal to the public the vindication of the appellant’s reputation. ‘The gravity of the libel, the social standing of the parties and the availability of alternative remedies are all relevant to assessing the quantum of damages necessary to vindicate the appellant.”

906 I apply the principles so stated. The personal distress and hurt suffered by GH was considerable. I include the injury to his feelings. GH said that he was depressed, had lost self-esteem and was basically restricted to his home. He did not want to confront people or be faced with people in the local community. He was unable to talk about his duties at Australian Swimming with coaches and athletes. GH gave evidence of being shunned and how this hurt him. An incident of being shunned in about December 2004 reminded him what had been said in the program had not been forgotten. GH was touched by supportive comments but angry and upset by critical comments apparently from those who believed what was said on the program. GH gave evidence as to his hurt feelings generally and also to his hurt feelings arising from imputations (d) and (e). A large portion of GH’s general hurt feelings arose from imputations (d) and (e). While imputation (h) was serious, imputations (d) and (e) carried a greater sting.

907 GH said that he had lived in the Sutherland Shire for over twenty years. His home was there. He felt his position at Australian Swimming had become impossible and resigned. He took up a position overseas. He was relieved to be away from the tension and stress and it was good to have work. There is no claim by GH for continuing economic loss.

908 As earlier mentioned, there was a substantial body of evidence as to GH’s good reputation prior to the program (and the promotional films). There was also a substantial body of evidence as to the damage caused by the program to GH’s reputation.

Aggravated Damages

909 GH sought aggravated damages and relied on a number of matters including the following (adjusted because of the finding as to imputation (h)):

(a) the falsity to his knowledge of imputations (d) and (e); GH believed they were false;

(b) the falsity to his knowledge of the contextual imputations not found to be a matter of substantial truth; GH believed they were false;

(c) the defendants’ malice in publishing the matter in the knowledge that it was false and/or without any honest belief that it was true and/or with reckless indifference to its truth or falsity. I have earlier made findings as to these matters.

(d) the defendants’ failure to fairly or adequately inform GH of the allegations they intended to publish about him. I have earlier referred to this failure which has been established;

(e) the defendants knew prior to publication of GH’s good reputation but published imputations (d) and (e); this is so;

(f) the defendants’ conduct in compiling the program; this includes the conduct of the interviews and the editing of the statements made by those interviewed the distorting combination of some answers and the juxtaposition of material in the program;

(g) confronting GH by surprise as he arrived for work and treating him unfairly by publishing the footage taken; this is so;
(h) repetition by the defendants of parts of the matter complained of in subsequent broadcasts (generally between 13 and 22 October 2003) and also 26 March 2004. This claim was disputed and is dealt with later. I have not included the matters the subject of imputation (h), the emails of 28 April 2003 and 11 July 2003 and the acts of waiting and following EF about 30 April 2003 and 15 August 2003; and

(i) the defendants’ conduct of the litigation.

910 The defendants accepted that a plaintiff is entitled to aggravated damages for the conduct of a defendant which is improper, unjustifiable or lacking in bona fides. They contended, correctly, that such conduct must occur to the knowledge of the plaintiff as it is the hurt to the feelings of the plaintiff which is the operative condition.

911 GH gave evidence (about T154) that he saw much material subsequent to the program broadcast by the defendants. GH said “I saw news broadcasts. I was interviewed on their TODAY Show and they replayed the worst parts of the show as a prelude to my interview with Channel Nine on the Wednesday.” An examination of the materials suggested that GH may be referring to an Interview on the TODAY Show on Tuesday, 14 October 2003. The date is of no consequence. During the TODAY Show on 14 October 2003 the defendants did replay some of the most damaging (or worst) parts of the program broadcast on 13 October 2003 including uncorrected parts which EF had corrected in pre-program discussions. GH watched this while waiting to be interviewed. After the excerpts had been played GH and Mrs Hodge were interviewed.

912 GH also said that he watched material on Channel Nine which repeated or related material from the program on 13 October 2003. He did not give evidence of the specific broadcasts watched. A folder containing the terms of the subsequent broadcasts was admitted without objection (about T452). Senior Counsel for the defendants said that he understood the purpose for which the transcripts were being tendered and that the defendants did not accept that they were in fact capable of aggravating the damages, but that was a matter for argument later. The defendants also contended that GH did not say that his feelings were hurt by the broadcasts repeating parts of the program. There was ample evidence that the program and imputations (d) and (e) hurt GH’s feelings. I would infer and conclude that a repeat of parts of the program covering the matters the subject of imputations (d) and (e) hurt the feelings of GH. The defendants contended that the TODAY broadcast to which GH was referring (probably that of 14 October 2003) was unexceptional and in fact portrayed GH in a favourable light, giving him ample opportunity to respond as he saw fit to the allegations made against him. The first part of the TODAY program does not portray GH in a favourable light. It contains uncorrected statements as earlier mentioned and an incorrect linking up of very damaging statements that GH went to extraordinary lengths to watch EF and about the hole in the bathroom door where a handle would be. GH was given an adequate opportunity on the TODAY program to respond as he saw fit with his wife also speaking. The interview between the compere and GH and his wife was not unfair. Nevertheless, the very damaging introduction to (or first part of) the program could not readily be overcome and, I infer caused hurt to GH’s feelings. In some of the subsequent broadcasts GH is interviewed or quoted. He denied EF’s allegations.

913 In my opinion GH is entitled to aggravated damages in respect of the repetition of parts of the program, but not including imputation (h) and the matters covered by it.

914 I am not satisfied that the defendants knew that imputations (d) and (e) were false or that each of their contextual imputations were false. Nor am I satisfied that GH is entitled to aggravated damages because they broadcast notwithstanding that GH, by his solicitors, had informed them of evidence of the unreliability of EF.

915 While the defendants were aware prior to publication that GH was highly esteemed and very senior in Australian Swimming and regarded by Australian Sport as an upstanding citizen, these considerations do not of themselves mean that GH is entitled to aggravated damages. However, such considerations meant that an adequate investigation was required. That did not occur and that was unjustifiable.

916 I have indicated my views as to the manner in which the program was compiled. This is a factor to be taken into account in the present case in assessing aggravated damages.

917 I do not accept, as GH submitted, that in considering the question of aggravated damages, I should take into account:

(a) that the defendants had failed to disclose that they had agreed to pay the fees of EF’s senior counsel on her application for an AVO. The evidence does not suggest that any such agreement was made prior to publication but rather that this occurred subsequently
(b) that the defendants failed to disclose that EF had been given an indemnity. The indemnity was conditional upon the information provided by EF being true and correct to the best of her knowledge, information and belief and all comments made by her in the interview representing her honestly and sincerely held views.

918 In relying upon the conduct of the litigation counsel for GH relied upon the address of senior counsel for the defendants at the s 7A trial. He differed from senior counsel who appeared for the defendants before me. Senior counsel for the defendants at the s 7A trial, in the course of asking the jury to reject the nine imputations propounded on behalf of the plaintiff, suggested that there were three defamatory imputations arising from the program and that the main one was the second one, namely, that GH encouraged children to perform sex acts on each other and that GH was avoiding that imputation and had raised other imputations. (That alleged second imputation was based on lines 223-252 of the program).

919 On one view Mr Montgomery’s statements as to the home video and GH’s conduct were far fetched and overstated the position. On a literal view of the words used that imputation was open. The program was principally about GH’s sexual misconduct towards EF. The raising by senior counsel of what I have described as the second imputation did not take into account the main thrust of the program. It and the comment that GH was avoiding that imputation and had carefully crafted and raised other imputations aggravated the hurt to GH’s feelings.

920 I do not regard the pleas of justification and contextual truth in the Amended Defence as matters of aggravation in the present case. Substantial evidence was called by the defendants and many of the factual issues were resolved on the basis that the defendants had not discharged the onus of proof.

921 GH relied as a matter of aggravation on the defendants raising Amended Particulars (f)(iv) (GH walking naked about the house in full view of EF) and (f)(v) (GH explaining to EF how to insert tampons) when they knew them to be false. These matters had been the subject of correction by EF in her interviews with Ms Patterson. They should not have been stated in their uncorrected form in the Amended Particulars of Truth. They were not corrected by amendment until EF was cross-examined about them. This is a matter of aggravation.

922 Of the particulars of aggravation relied upon by GH and listed earlier, I have indicated those which I have accepted and the extent to which I have accepted them.

923 The defendants made no apology and issued no retraction. They conducted a substantial case.

924 Imputation (h) has been held to be justified. While the failure to apologise and retract is often a matter of aggravation it is not in the circumstances of the present case. I have taken into account the mode and extent of publication.

925 GH is entitled to aggravated damages.

Exemplary Damages

926 Section 46(3) of the Defamation Act 1974 (NSW) provides that damages for defamation shall not include exemplary damages.

927 The defendants further submitted that the effect of s 46(3) of the Act was also to preclude the award of punitive damages for publication outside New South Wales in proceedings brought in a New South Wales Court and/or in respect of conduct leading to broadcast of the matter complained of and conduct subsequent to such broadcast taking place in New South Wales. Although this point was raised it was not the subject of full argument or full submissions.

928 In Regie Nationale Renault v Zhang (2002) 210 CLR 491 at 505-506 five Justices approved this statement from Pfeiffer (203 CLR 503 at 544):

“The lex loci delicti should be applied by courts in Australia as the law governing all questions of substance to be determined in a proceeding arising from an intranational tort. And laws that bear upon the existence, extent or enforceability of remedies, rights and obligations should be characterised as substantive and not as procedural laws.”

929 In Pfeiffer a plaintiff had sued in the Supreme Court of the Australian Capital Territory for damages for personal injury suffered in New South Wales. A question arose as to the applicable law, as a New South Wales Act limited the amount of damages that could be awarded for non-economic loss. The law of the Territory imposed no relevant limit. It was held that the limitation on damages not being directed to governing or regulating the mode or conduct of court proceedings was a matter of substance rather than procedure, and therefore was governed by the lex loci delicti.

930 I regard the issue whether GH is entitled to exemplary damages in the States and Territories other than New South Wales as a matter of substance. Section 46(3) of the New South Wales Act does not apply to publications outside New South Wales. If, for example, GH sued in Victoria, he would have been entitled to seek exemplary damages in Victoria even though the conduct giving rise to the claim for exemplary damages occurred in New South Wales. The gist of the cause of action is the publication of defamatory imputations or matter. If in an action instituted in Victoria GH sought to claim damages for the publication in New South Wales he could not seek exemplary damages consequent upon that publication in New South Wales.

931 In my opinion, as a matter of law, GH is entitled to seek exemplary damages consequent upon the publications in Victoria, Queensland, South Australia, Western Australia, the Australian Capital Territory and the Northern Territory. Such claims are not barred in those States and Territories.

932 The defendants submitted that in respect of the publications outside New South Wales there was, on the evidence, no case for the award of punitive damages for such publication. In TCN Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333 at [152]-[168] Spigelman CJ dealt with the principles as to the awarding of exemplary damages and quoted from the reasoning of Brennan J in XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd 155 CLR 448 at 471.

933 I regard the surprise confrontation of GH as he arrived at his workplace and the reporter misleading him and the conduct of the defendants as to video and sound recording, the lack of adequate investigation and the errors in the program which the defendants should have picked up and did not, as conduct to be discouraged. However, that conduct and the conduct of the defendants as a whole, falls marginally short of warranting an award of exemplary damages. I do not think that such an award should be made.

Special Damages

934 GH claimed the costs of an experienced media consultant acting on his behalf. GH was attempting to mitigate the damage to his reputation by the program and needed advice and a consultant able to arrange interviews in which he could put his case and make denials, press conferences (with appropriate guidance) and generally handle the media.

935 The defendants submitted that this claim should be rejected as:

(a) GH’s purpose in retaining the media consultant was also to respond to EF’s allegations in respect of her AVO application; they did not relevantly cause GH’s engagement of the consultant

(b) they were not liable to pay for GH’s provision of false or unreliable information to the consultant nor for his circulation of that information. (GH disputed some of what was recorded by the consultant and his authority to distribute all that was discussed between them).
(c) more importantly, if the Court found that GH did stalk EF, it would be unreasonable for the Court to effectively compensate GH for a media campaign based on falsehood, for example, GH denying that he had stalked EF.

936 The program was not completed or broadcast until after EF had made her complaint and sought an AVO and a summons had been issued. The matter was mentioned in the program and it was used to bolster the program. What principally led to GH retaining the consultant was the attention he received from the media consequent on the publication of the program and his need to be advised on how to handle the media and make his responses. He was concerned to defend his reputation. A strong attack had been made upon him in the program.

937 While I have found that GH probably followed EF the defendants have not established that he did so because of his sexual obsession with EF or his sexual attraction to her. GH denied that he deliberately followed her and that was part of the defence of his reputation (or part of the mitigation of his damages). GH and the consultant would have needed to talk to each other and meet. A lot had to be done in a short space of time. In defending GH’s reputation reference had to be made to the AVO proceedings.

938 The amount claimed is moderate and, in the circumstances, I would allow about three-quarters of that amount. I allow $1337.

Some Statutory Provisions - Damages

939 Section 46(3)(b) of the Defamation Act 1974 (NSW) provides that damages for defamation shall not be affected by the malice or other state of mind of the publisher at the time of the publication complained of or at any other time, except so far as that malice or other state of mind affects the relevant harm.

940 Section 46A provides:

“(1) In determining the amount of damages to be awarded in any proceedings for defamation, the court is to ensure that there is an appropriate and rational relationship between the relevant harm and the amount of damages awarded.

(2) In determining the amount of damages for non-economic loss to be awarded in any proceedings for defamation, the court is to take into consideration the general range of damages for non-economic loss in personal injury awards in the State (including awards made under, or in accordance with any statute regulating the award of any such damages).”

I have applied those provisions.

941 My attention was drawn to s 136 of the Civil Law (Wrongs) Act 2002 (ACT). Section 136(a) is in substantially the same terms as s 46A(1) of the New South Wales Act.. Section 136(b) provides that a court must take into account “the ordinary level of general damages component in personal injury awards in the ACT.” I have applied that provision as to the publication in the ACT.

Assessment

942 Damages are at large. In assessing damages as to imputations (d) and (e) and not overlooking imputation (h) was justified and the findings which I have made, I reiterate that imputations (d) and (e) are highly defamatory. In applying the principles in Carson previously quoted, it is accepted that the personal distress and hurt caused to GH by the broadcast of imputations (d) and (e) were great and significant reparation is required for the harm done to GH’s reputation by them and in vindication of that reputation. Some of the personal distress and hurt experienced by GH was due to imputation (h) and the allegations of waiting for and following EF.

943 GH enjoyed a public profile as the man in charge of Australian Olympic Swimmers and was described in the program as “very senior in Australian Swimming” (line 612). The Australian Olympic Swimming Team and its coaching are matters of public interest. The team is publicly known to include male and female swimmers in their teens, even early teens. GH was also well known in the Sutherland Shire where he has lived for many years, taught at the Endeavour High School and coached swimming students.

944 GH’s reputation is an important part of his life. He was an enthusiast devoted to swimming coaching. This program led those in charge of Australian Swimming to impose substantial restrictions on GH in the discharge of his duties and ultimately he felt compelled to resign. He was disappointed at the way he had been treated. He accepted employment overseas. He has been severely affected and disadvantaged by the change in standards and practices since 1995-early February 1997.

945 Assessment of damages in a defamation case, and the present one is no exception, involves a mixture of inextricable considerations. I assess GH’s aggravated compensatory damages at $320,000 with $40,000 being included by way of aggravated damages. Taking into account the special damages this leads to a verdict of $321,337 to which interest must be added.

946 I stand over the question of interest and costs to a date to be fixed by arrangement with my Associate to finalise these proceedings. The parties should endeavour to agree on the calculation of interest. If there is disagreement each should prepare a draft calculation.

**********

Tuesday, 28 November 2006

AMENDING JUDGMENT - SPECIAL DAMAGES

1 As there is an error in the section of the judgment headed “Special Damages” (pp 262-264) in that not all the invoices of Wilkinson Media were taken into account I withdraw that section. I had marked as Exhibit AJ Invoice 830, 31 March 2004 for $1782.45 but overlooked that some other invoices of Wilkinson Media had been included in that exhibit, namely:

Invoice 715 17 October 2003 $ 18,802.84

Invoice 716 27 October 2003 4,667.64

Invoice 722 31 October 2003 78.83

Invoice 735 10 November 2003 725.91

Invoice 738 18 November 2003 1,102.35

Invoice 739 25 November 2003 1,143.45

Invoice 769 15 December 2003 1,867.64

Invoice 810 29 February 2004 1,872.83
________

$ 30,261.49

2 When the sum of $30,261.49 is added to the sum of $1782.34, the total claim for special damages appears to be $32,043.83.

3 I have examined each of the invoices set out in the Table and re-examined invoice No 830.

4 As mentioned, GH claimed the costs of an experienced media consultant acting on his behalf. GH was attempting to mitigate the damage to his reputation by the program and needed advice and a consultant able to arrange interviews in which he could put his case and make denials, press conferences (with appropriate guidance) and generally handle the media.

5 I repeat that the defendants submitted that this claim should be rejected as:

(a) GH’s purpose in retaining the media consultant was also to respond to EF’s allegations in respect of her AVO application; they did not relevantly cause GH’s engagement of the consultant

(b) they were not liable to pay for GH’s provision of false or unreliable information to the consultant nor for his circulation of that information.
(c) more importantly, if the Court found that GH did stalk EF, it would be unreasonable for the Court to effectively compensate GH for a media campaign based on falsehood, for example, GH denying that he had stalked EF.

6 Invoice 715 reveals that Wilkinson Media was retained on or before Sunday 12 October 2003 as work was done that day. The matter was urgent with publication of the program foreshadowed for the next day. The work carried out on 12, 13, 14 and 15 and 16 October 2003 and summarised in the account was reasonably necessary to defend GH’s reputation and mitigate the damage to his reputation.

7 As to Invoice 716 and the work carried out on 17, 19, 20 October and summarised in that account, that was reasonably necessary to defend GH’s reputation and mitigate the damage to his reputation.

8 I have noted that part of the work done by Wilkinson Media on 20 and 21 October 2003 involved fielding calls from the media regarding the AVO hearing and that on 22 October 2003 Mr Wilkinson was involved in attending at the Court where the AVO proceedings were listed, and media liaison. The AVO proceedings were referred to in the program and but for its publication it is improbable that those proceedings would have attracted the media in general. Liaison with the media at the Court was necessary. GH was trying to mitigate the damage to his reputation. The AVO proceedings involved GH following EF, amongst other matters. There were small charges for media liaison on 23 and 24 October 2003, which liaison appears probably to be reasonably necessary.

9 Invoice 722 deals with work on 28 and 29 October 2003, which involves preparations for Court proceedings. Technically, these may be part of GH’s costs of the proceedings. Invoice 735 involves preparations for Court proceedings and various conversations with a media identity and GH’s solicitor. These invoices, which are for small amounts, do not mention the particular Court proceedings.

10 Invoice 738 covers Mr Wilkinson’s attendance at Court on 12 November 2003 when the AVO proceedings were listed, media liaison and supplying a media identity with material. Invoice 739 covers Mr Wilkinson’s attendance at Court on 20 November 2003. The nature of the proceedings is not stated. Invoice 769 covers media work, conferences and advice to 13 December 2003.

11 Invoice 810 covers the period 15 December 2003 to 29 February 2004, liaison with GH’s solicitors re subpoena and mostly attendance at Court (nature of proceedings not specified nor precise dates of attendance, but s.7A trial held in February 2004).

12 Invoice 830 is headed “Media Campaign – March 2004” and covers advice pre and post Court appearances, preparation of media releases and media liaison and monitoring and follow-up work with GH’s solicitors.

13 I regard Mr Wilkinson’s attendance at Court on the dates the AVO proceedings were listed as reasonably necessary to assist GH defend his reputation and mitigate the damage. I also regard Mr Wilkinson’s attendance for part or parts of the s.7A trial as reasonably necessary for the same reason. As mentioned, it was the publication of the program which precipitated the general media interest in the AVO proceedings.

14 GH, after the events of 7 October 2003 and after it became clear that the defendants were going to proceed with the program, reasonably anticipated that there would be much media interest in and coverage of the matters raised in the program and that he would need expert advice and assistance in his response to defend his reputation and mitigate the damage. GH was correct in his anticipation and consequent to the publication he received a lot of media attention. A strong attack had been made upon him in the program.

15 As previously mentioned, while I have found that GH probably followed EF on two occasions the defendants have not established that he did so because of his sexual obsession with EF or his sexual attraction to her. GH and the consultant would have needed to talk to each other and meet. A lot had to be done in a short space of time. In defending GH’s reputation reference had to be made to the AVO proceedings.

16 The amounts claimed in the various invoices are reasonable.

17 I think the defendants, by their proposed publication of the program caused GH to retain the consultant and by its publication caused GH to continue to need, employ and use the consultant. Part of GH’s media campaign was based on the assertion that he did not deliberately follow EF and the Court should not compensate GH in respect of the costs of that. It is also necessary to also bear in mind the basis on which imputation (h) is justified. On the terms of all the invoices of Wilkinson Media and the evidence and in the circumstances disclosed I think that a broad assessment should be made and that the sum of $21,000 should be allowed for this claim of special damages. It is not useful to go into further detail and I have not done so.

18 A draft of the foregoing was forwarded by FAX to each of the parties on 20 September 2006. At the hearing as to interest and costs on 16 November 2006 the parties proceeded on the basis of the draft being delivered. This amending judgment is now formally delivered.

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CITATION:	Hodge v TCN Channel Nine P/L & Anor [2006] NSWSC 933
HEARING DATE(S):	31/10/05, 1/11/05, 2/11/053/11/05,4/11/05,7/11/05, 8/11/04, 9/11/05, 10/11/05, 11/11/05, 14/11/05,15/11/05, 16/11/05, 17/11/05,18/11/05, 23/11/05, 24/11/05
JUDGMENT DATE :	18 September 2006
JURISDICTION:	Common Law
JUDGMENT OF:	Smart AJ at 1
DECISION:	See para 945 and 946
CATCHWORDS:	Highly defamatory segment broadcast on Australian mainland during prime viewing time alleging sexual misconduct on the part of Head Coach of Australian Swimming towards a pupil - Two imputations not justified, one justified on basis of letter written although not followed up - effect and permissibility of contextual imputations - whether imputations statements of fact or comment - Defence of comment - different legal considerations in NSW and other States - publication determines what law applies as to entitlement to damages - If item published in different States law of those various States applies to publication in such States - entitlement to exemplary damages is a matter of substantive law – Conduct of defendants entitled plaintiff to aggravated damages – No entitlement to exemplary damages in NSW but remedy available in other States – Entitlement to special damages for costs of attempting to mitigate damages – amendment of reasons.
LEGISLATION CITED:	Civil Law (Wrongs) Act 2002 (ACT) Crimes Act 1900 Defamation Act 1958 (NSW) Defamation Act 1974 (NSW) Defamation Act (NT) Defamation Act 1889 (Qld) Evidence Act 1995 Queensland Defamation Act 1889 WA Criminal Code
CASES CITED:	Carson v John Fairfax & Sons Ltd. 178 CLR 44 Cawley v Australian Consolidated Press Ltd [1981] 1 NSWLR 225 Cheng v Tse Wai Chai Paul Court of Final Appeal in Hongkong [2000] 3 HKLR 418, 4 HKSC 1 Chernesky v Armadale Publications Ltd (1998) 90 DLR (3 Edn) 321 Cohen v Mirror Newspapers Ltd (1965) 83 WN 369 David Syme v Hore Lacey (2000) 1 VR 607 John Fairfax & Sons v O'Shane[2005] NSWCA 164 Greek Herald Pty Ltd v Nikolopoulos (2002) 54 NSWLR 165 Hepburn v TCN Channel Nine Pty Ltd 1984 1 NSWLR 386 Jackson v John Fairfax Limited 1981 1 NSWLR 36 John Fairfax & Sons Limited v O’Shane [2005] NSWCA 164 John Pfeiffer v Rogerson (2000) 203 CLR 503 Jones v Dunkel 101 CLR 298 Lloyd v David Syme & Co Ltd (1985) 3 NSWLR 728 NSW Aboriginal Land Council v Perkins (1998) 45 NSWLR 340 O’Brien v Salisbury (1889) TLR 133 Pervan v North Queensland Newspapers Co Ltd (1993) 178 CLR 304 Polly Peck (Holdings) plc v Trelford 1986 1 QB 1000 Radio 2UE Pty Ltd v Parker (1992) 29 NSWLR 448 Regie Nationale Renault v Zhang (2002) 210 CLR 491 Rigby v Associated Newspapers Ltd 68 SR (NSW) 425 Robinson v Laws (2003) 1 Qd R 8 Sims v Wran (1984) 1 NSWLR 317 Smart v Johnston [NSWSC] unrep 8/10/98 TCN Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333 Telnikoff v Matusevitch [1992] 2 AC 343 The Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1 West Australian Newspapers Ltd v Bridge (1978-79) 141 CLR 535 XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd 155 CLR 448
PARTIES:	Gregory Hodge v TCN Channel Nine P/L and Channel Nine Network Australia Pty Ltd.
FILE NUMBER(S):	SC 20276/03
COUNSEL:	(P) S Littlemore QC & Ms S Chrysanthou (D) B McClintock SC & Mr M Richardson
SOLICITORS:	(P) Blake Dawson Waldron (D) Gilbert & Tobin

Invoice 715	17 October 2003	$ 18,802.84
Invoice 716	27 October 2003	4,667.64
Invoice 722	31 October 2003	78.83
Invoice 735	10 November 2003	725.91
Invoice 738	18 November 2003	1,102.35
Invoice 739	25 November 2003	1,143.45
Invoice 769	15 December 2003	1,867.64
Invoice 810	29 February 2004	1,872.83 ________
$ 30,261.49

[2006] NSWSC 933

18 September 2006 ; 28 November 2006 amending judgment