Carolan v Fairfax Media Publications Pty Ltd

Supreme Court of NSW|2015-10-30|Before: McCallum J

Solicitors: Kalantzis Lawyers (plaintiff) Bank Haddock Fiora (defendants) File Number(s): 2014/245957

Contents Defamatory meaning of the publications sued on The fourth matter complained of The third matter complained of The second matter complained of Publication of the first matter complained of as a composite publication Defences relied upon by Fairfax Defence of justification Evidence concerning Mr Carolan's business Services provided to the Sydney Roosters The blackest day in Australian sport Consideration of defendants' case on justification Defence of honest opinion Damages Aggravated Damages Conclusion

Defamatory meaning of the publications sued on

Mr Carolan sues on four separate on-line publications. It is convenient to describe them in chronological order, which is the reverse of the order in which they are pleaded. [3]

The fourth matter complained of

The fourth matter complained of (the first in time) is an article dated 25 September 2013 published under the headline "Roosters disturbed by blood results". The article appears under the by-line of Kate McClymont, Chris Barrett and Michael Carayammis. It opens as follows: "Sydney Roosters General Manager Brian Canavan said on Wednesday that his players were tested for human growth hormone without the consent of club officials and staff". Mr Canavan is reported to have confirmed that he had "severed ties with the weight loss and nutritional company Nubodi earlier this year", saying the Roosters had been "disturbed to discover that his players were tested for the levels of HGH [human growth hormone] in their blood during the firm's brief association with the club".
Mr Canavan was quoted as having been "very unhappy that the extended testing was conducted", asserting that the players underwent the tests "without the knowledge or consent" (sic), thinking they were being tested for "conventional nutrition tests". The article reported that six Roosters players had "unusually elevated levels of HGH in their blood, according to records of their bloodwork retrieved from the mobile phone of an organised crime figure". It said Mr Carolan, referred to as "Nubodi group boss", had vehemently denied providing the Roosters players with human growth hormone, "claiming his work with the title favourites was confined to dietary advice based on blood pathology". The article continued with Mr Canavan's defence of the club, including his assertion that the club had severed its ties with Nubodi "in January when this all unfolded".
Fairfax admits publishing that article and did not seek to be heard at the hearing [4] as to whether it conveys the following imputations defamatory of Mr Carolan: 1. that the plaintiff, who runs a sports nutrition company, conducted tests on football players' blood without their consent; 2. that the plaintiff, who runs a sports nutrition company, had so conducted himself as to warrant being terminated by the Sydney Roosters Football Club.
I am satisfied that the article conveys those two imputations and that each is defamatory of Mr Carolan.

The third matter complained of

The third matter complained of is a further article by Ms McClymont dated 26 September 2013 published under the headline "Drugs cloud over Roosters as players' blood results found on criminal's phone". Featured as an "exclusive" piece, the article opens with two prominent photographs of Mr Carolan and his wife. The first appears with the following caption: The Sydney Roosters rugby league team sacked sports nutritionalist Sean Carolan after his company tested players' blood for human growth hormone. Some of the results, found on a seized mobile phone, were found to have high HGH levels.
The main body of the article repeats those assertions and includes a number of the quotes attributed to Mr Canavan in the fourth matter complained of. The article then turns to a further discussion of Mr Carolan and Nubodi. It reports that Mr Carolan said "he took blood readings of the Roosters to determine how best to improve their diet". It reports his denial of having administered HGH to the players and continued: The Herald understands that ASADA is interested in Ben Darcy, a former employee of Mr Carolan's, who is currently in Thailand. Mr Carolan said he fired Mr Darcy last year. He said Mr Darcy had been an employee for about six months and he was unaware if players had been in contact with him after he left.
Mr Carolan is reported as having explained that they parted company because Mr Darcy "wasn't performing" and was "unreliable".
Fairfax admits publishing that article and did not seek to be heard as to whether it also conveyed the two imputations set out above (that the plaintiff conducted tests on the players' blood without their consent and that he had so conducted himself as to warrant being terminated by the club). [5] Mr Carolan specified a third imputation allegedly carried by the third matter complained of, as follows: That the plaintiff gave the results of blood tests he conducted on Sydney Roosters football players to an organised crime figure.
Fairfax submitted that the article does not convey that further imputation. [6] I am satisfied that it does. As submitted by Mr Smark SC, who appears with Ms Chrysanthou for the plaintiff, Mr Carolan is the primary focus of the article, the centrepiece of which is the fact that the blood results were found on a "criminal's phone". Apart from the inclusion of the two photographs of Mr Carolan, the article refers to him nine times, primarily in terms pointing to him as the likely culprit.
Mr Dawson, who appears with Ms Amato for Fairfax, submitted that the ordinary, reasonable reader would understand the article to be pointing to Mr Darcy (rather than Mr Carolan) as the person involved with the organised crime figure. He submitted that Mr Carolan is actually presented as having distanced himself from those events. I do not accept that submission. It may be accepted that Mr Carolan is attributed with remarks intended to distance himself from the damning events reported in the article but its primary focus is condemnation of Mr Carolan. I do not have any doubt that the ordinary, reasonable reader would understand the article to attribute to Mr Carolan the act of giving the results of the blood tests to the unnamed organised crime figure. I am satisfied that the three imputations specified in respect of the third matter complained of are conveyed by that article and that each is defamatory of Mr Carolan.

The second matter complained of

The second matter complained of is a commentary piece by the popular sports columnist, Mr Peter FitzSimons, published on 26 September 2013 under the headline "Roosters drug cloud: saddest thing is, we're not surprised". The article picks up on the revelations published by Ms McClymont concerning the players' elevated readings for human growth hormone and the fact that the blood test results were found on the phone of an organised crime figure. The article continues with a snide attack on Mr Carolan (dappled with praise for the "superb investigative journalism" of Ms McClymont). The principal attack on Mr Carolan is contained in the following passages: No drug cheat story in football is complete without a shady figure in a tracksuit, flogging sports supplements from the boot of his car, usually introduced to the club by one of the players. In this case, a personal trainer by the name of Sean Carolan, with "different training philosophies", was introduced by Roosters' prop Martin Kennedy to the club. And the club was happy to have him on board! Yes, folks, this, despite the fact that this trainer - and I am not making this up - has, as revealed by McClymont, a company called "Advanced Peptide Solutions". Say, Roosters, when you did your due diligence before allowing this fellow to deal with your employees, did that name happen to ring any alarm bells? Not even the fact that people who had dealt with his company were known to have complained he was offering growth hormones in order to lose weight? Apparently not. Then, if we are to believe the Roosters' (sic) Carolan conducted blood tests, without the club's knowledge or consent, and wouldn't you know it, discovered that "a few of the boys had high growth hormones levels". Well, blow me down! How exactly? Because Mr Carolan injected them with it? Goodness gracious, no! "To actually say it was from taking an actual growth hormone or not, I wouldn't know anything about that personally." Of course not. And nor, apparently, do the NRL or the Roosters. And of course, we also have another shady figure, a former employee, apparently, of Mr Carolan, Ben Darcy, a former leaguie, "who is currently in Thailand." Perfect! Where else would he be? The rest of it, though, is as clear as mud. Where does the major crime figure come in? How on earth, and why on earth, did he have such incriminating results on his phone? Why has this only come to light through superb investigative journalism, and not through transparent admissions by the NRL of a matter of major public interest in the sport they administer?
Fairfax admits publishing that article and did not seek to be heard as to whether it conveys the only imputation specified by Mr Carolan, [7] which is: That the plaintiff, a personal trainer, injected Sydney Roosters football players with the banned substance HGH.
I am satisfied that the second matter complained of conveys that imputation and that the imputation is defamatory of Mr Carolan.

Publication of the first matter complained of as a composite publication

As is the common practice of online newspapers, the second matter complained of included hyperlinks to three related articles. The hyperlinked articles were the third and fourth matters complained of in these proceedings, together with an additional article which Mr Carolan has not sued on separately, published on 26 September 2013 under the headline "crime link raises serious question NRL cannot ignore". Relying on the hyperlinks (and the prospect that some readers may have traced through each of them), Mr Carolan sues on all four articles together as a separate, single publication. That is the first matter complained of.
Fairfax denies publication of the first matter complained of. Mr Dawson initially submitted that the four articles could not be taken to be a single publication. In a later submission (which I understood to be made by way of qualification of that initial submission [8] ), Mr Dawson submitted that the plaintiff should not be permitted to rely upon the first matter complained of as pleaded because it contravenes a principle prohibiting the pleading of publication in such a manner as to cause undue complication in the proceedings.
Mr Dawson relied in that context on the principles stated by Hodgson JA in Australian Broadcasting Corporation v Obeid. [9] That decision was concerned with a "strike-in" application (an application to force the plaintiff to rely on further material in addition to that pleaded as the relevant publication) and must accordingly be considered with that difference in mind. Hodgson JA said (at [4]): The reason for the second requirement is that, where there can be reasonable differences of opinion about what constitutes the publication of which the material relied on is part, the plaintiff can choose (in a case where there are two possibilities) to rely on one or the other or both, at least unless the plaintiff's choice can be considered as unduly complicating the proceedings. If the plaintiff chooses to rely on one, and if the different context provided by the other is capable of affecting the meaning of the material relied on by the plaintiff, then damages may be recoverable only in relation to those ordinary reasonable readers/listeners/viewers who took that one (and not the other) to be the publication; while if the plaintiff chooses (and is permitted) to rely on both, then damages would certainly be recoverable in relation to both sets of ordinary reasonable readers/listeners/viewers.
Mr Dawson submitted that the manner of pleading the first matter complained of unduly complicates the proceedings because it allows the plaintiff to put an argument that, for example, a successful truth defence to the third matter complained of would not be a complete defence to the first matter complained of. He submitted that would potentially result in Fairfax being obliged to pay damages in respect of the first matter complained of even though each of the three individual articles sued on might be defensible on its own.
I do not think that is the kind of complication to which Hodgson JA was referring in the passage from Obeid set out above. Even if that is wrong, I do not think there is in fact undue complication in the present case on the basis alleged, having regard to the neatness and simplicity of the plaintiff's imputations and the defences raised to those imputations. It is theoretically possible that the defences of comment and honest opinion might succeed in respect of the second matter complained of but not in respect of the first matter complained of (by reason of the inclusion of the additional articles which are not sought to be defended as comment). I am not persuaded that that consideration should preclude the plaintiff from relying upon the four articles as a single publication in the circumstances of the present case.
I am satisfied, on the basis of the manner in which the second matter complained of is presented, that the plaintiff is entitled to sue on the four articles taken together as a single publication (although care must be taken in that circumstance to confine any award of damages to the very limited audience likely to have read all four together). The very purpose of hyperlinks is to invite the attention of interested readers to related articles. Leaving aside the hyperlinks, the second matter complained of referred, in terms, to the matters reported in one of the hyperlinked articles and praised the good journalism of its author, herself a popular journalist. In my view, the presentation of the second matter complained of was such as to encourage consideration of that article and the "related material" as one, as pleaded by the plaintiff.
Fairfax did not suggest that anything in the additional article not sued on separately or in the combination of the four articles softened the defamatory impact of any individual article. It follows from my findings in respect of the defamatory meaning of the second, third and fourth matters complained of that all of the imputations set out above are conveyed by the first matter complained of and are defamatory of Mr Carolan.

Defences relied upon by Fairfax

There is no defence relating to the imputation conveyed by the third matter complained of (the second of the two McClymont articles) that Mr Carolan gave the results of the blood tests to an organised crime figure. Mr Carolan has plainly been defamed by the publication of that imputation and is entitled to damages on that account.
As to the remaining imputations conveyed by the McClymont articles (testing the players' blood without their consent and conducting himself so as to warrant being terminated by the club), Fairfax has pleaded the defence of justification (substantial truth) pursuant to s 25 of the Defamation Act 2005 (NSW). If the truth of those imputations were established, there would be a complete defence to the fourth matter complained of and a partial defence to the first and third matters complained of.
As to the imputation that Mr Carolan injected Sydney Roosters football players with the banned substance HGH, which is probably the most damaging imputation of all, there is no defence of truth and not the smallest hint in the evidence that the imputation is true; it is an assertion by the author, Mr FitzSimons, which turned out to be completely wrong. The only defence to that article (the second matter complained of) is the defence of honest opinion under s 31 of the Defamation Act.
I have concluded that none of the defences is established and that Mr Carolan is entitled to an award of damages in respect of all four of the matters complained of based on all four of the pleaded imputations. My reasons for those conclusions are as follows.

Defence of justification

The two imputations sought to be justified are: 1. that the plaintiff, who runs a sports nutrition company, conducted tests on football players' blood without their consent; 2. that the plaintiff, who runs a sports nutrition company, had so conducted himself as to warrant being terminated by the Sydney Roosters Football Club.
Fairfax bears the onus of proving those imputations to be substantially true. In my respectful opinion, the truth defence was misconceived from the outset.
The burden of imputation (a) is that Mr Carolan conducted the tests without the consent of the men whose blood he took. While other issues were raised, that contention was the principal focus of the truth defence in respect of both imputations. Inexplicably, however, Fairfax did not seek to prove that contention by calling a single football player to give evidence that he did not consent to have his blood tested in the manner that occurred. Rather, the defence rested on a complex and ultimately unconvincing series of premises as to the process by which player consent could be taken to have been obtained (or not).
The plaintiff gave evidence about those matters and was cross-examined at length. His credibility was robustly attacked, both directly in relation to the issues in the case and collaterally. A whole separate written submission dedicated to that attack was provided at the conclusion of the hearing. The credit submission and some of the detail of the cross-examination are considered in the discussion that follows; I wish at the outset to record that I considered Mr Carolan to be an honest witness. In some respects his memory was poor; in some instances, he said what he thought must have happened but was proved wrong; the scientific basis for some of the principles he applies in the field of sports nutrition may be doubted; at times he gave in to frustration with the cross-examiner. Ultimately, he struck me as an earnest man who was doing his best to give a faithful account of the relevant events and could only express his dismay at the force and duration of the attack on his character in the proceedings.
Leaving aside the attack on Mr Carolan's credit, the defendants' case theory entailed a basic misconception as to the notion of consent, equating player consent with the governance of the club. Furthermore, the evidence on that issue was unconvincing - there was nothing in the contemporaneous events to suggest a want of awareness, consent or approval regarding Mr Carolan's programme on the part of the players, the coaching team or any other relevant person. It appeared, rather, to be a case of the relevant events being viewed by the club differently in hindsight, when perspectives had changed.

Evidence concerning Mr Carolan's business

The evidence as to Mr Carolan's dealings with the Sydney Roosters was comprehensively reviewed in the plaintiff's written submissions. The following summary is largely drawn from that document.
Mr Carolan was born and raised in Sydney. He attended school until year 11, after which he studied biology and laboratory skills at TAFE. He previously carried on business as a racehorse trainer but that business failed as a result of the epidemic of equine flu. He has always had an interest in personal training. He has five sons, each of whom is a national wrestling champion trained by Mr Carolan. His wife has a background as a physical education teacher and is also involved in personal training and modelling.
Mr Carolan became interested in fitness training after suffering illness as a child which left him with damaged kidneys. That experience prompted him to research ways of improving his health; he spent "every waking moment" researching. He obtained a Certificate IV in Personal Training and became a registered personal trainer. He was the leading trainer at Fitness First at Penrith for four years. A number of his former clients gave evidence at the hearing; their evidence suggested that Mr Carolan was a successful and somewhat charismatic trainer who achieved good results for dedicated clients.
During his work as a personal trainer, Mr Carolan met Dr Les Blackstock. Dr Blackstock was a cosmetic surgeon and had been the club doctor for the Balmain Tigers. Mr Carolan trained Dr Blackstock's wife and then began to train Dr Blackstock himself.
Mr Carolan said Dr Blackstock taught him to monitor the function of his kidneys through blood tests so as to improve his health and performance. At one point they were discussing developing a business. Mr Carolan did a course in taking blood through Douglas Hanly Moir in Penrith. [10] Dr Blackstock explained to Mr Carolan how to interpret blood test results.
Towards the end of 2011, Mr Carolan set up a business trading as Nubodi. The business started off as a weight loss and "anti-ageing dietary advice" business but towards the end of 2012 the client list changed dramatically and Mr Carolan began taking on athletes who were looking to improve their performance.
The service Mr Carolan offered was based on "bloods". He would inquire of his clients what health benefit they were looking for (weight loss or weight gain). Mr Carolan said: I would get an answer, obviously, in accordance with that question, and then I would move along to suggest to people that the only way that we can truly get to that result or the best way to get to that result is to run a set of bloods because bloods don't lie. They just don't lie, they're the fact, and then from there I would be able to work out how long they would need to detox for, depending on what their blood toxicity was and things like that, and then from there once cleaning the blood and having the endocrine system functioning properly … then we could go back and we could start testing foods.
Mr Carolan said he used the word "detox" so that people would understand, but that the point of what he was doing was "restoring vibrational frequency". He explained that term as follows (T92.2): It basically works off energy from the sun. The sun produces photon energy which vibrates, so nothing on the planet survives without light or without energy, so what happens is that through our lifestyles with the shampoos we use, the toothpaste we use, particularly the tin foods, frozen foods and pesticides, things like that, what happens is that foods become divvied up into live food and dead food. The human vibrational frequency scale ranges from, say, 75 to 80,000 hertz, which is someone who is extremely fit, that has a high vibrational field. It's proven that if you've got over 75,000 hertz worth of frequency that you don't get lung disease, cancer, diabetes, things like that.
It is doubtful that there is any scientific foundation for that theory but the science is not on trial in these proceedings. I accept that Mr Carolan had read about vibrational frequency and believed it provided a legitimate premise for the service he offered.
Nubodi had a "raw food detox" handout sheet which similarly asserted that "eating high life force foods…energises our life force". That information was provided to the players at the Sydney Roosters. [11] Mr Carolan frankly acknowledged in cross-examination that he had taken part of the information on that sheet from the internet. That concession was relied upon in the attack on Mr Carolan's credibility (in effect, an accusation of plagiarism). I do not think the attack in that respect was fair. The sheet was obviously intended to explain Mr Carolan's approach to nutrition. It embraced aspects of what Mr Carolan had read on the internet as his own philosophy but it was not an academic piece. I do not think the fact that Mr Carolan copied information from the internet for that purpose helpfully informs the question whether the players consented to the blood tests he proposed.
Leaving aside the pseudo-science, what Mr Carolan ultimately demanded of his clients was hard training, good living and a healthy, natural diet. That is a training philosophy the scientific support for which is eminently well-established. With the added discipline (perceived or otherwise) of regular blood tests, it is hardly surprising that he got good results and was able to develop a successful business.
Nubodi had a standard list of blood tests that it conducted on clients before giving them dietary advice. [12] The tests provided by Nubodi always included growth hormone, which Mr Carolan considered to be important because he understood low growth hormone to be an indication of liver dysfunction. At that stage, Mr Carolan did not consider testing for human growth hormone (HGH) to be unusual. [13] His understanding at that time is not to be judged by hindsight reasoning or with an awareness of the opprobrium that has since attached to any mention of HGH in the context of sport.
Mr Carolan had specially-printed pathology request forms made up for use by his business because he was testing for the same markers all the time. He had a standard spiel to explain his approach to testing and training.
His evidence on that issue was corroborated by Mr Bryon Greer, who also gave evidence in the proceedings. Mr Greer had been a semi-professional basketball player. He suffered a spinal injury and Mr Carolan trained him during his period of rehabilitation. It was Mr Greer's perception that Mr Carolan's training assisted him "100%" - it enabled him to move into boxing where he had "a few bouts" and was due to turn professional. Mr Carolan's training of Mr Greer never involved drugs and Mr Carolan never suggested to Mr Greer that he should take hormones. [14]
Mr Greer worked for Mr Carolan for a period of time. In the course of that work he learned the basic concept of Mr Carolan's services, which he described as follows: [15] Basically the concept was, we'd - we'd take their bloods and you'd be looking at their HGH levels, thyroid, liver, kidney function, lectin and - it's always hard to say, geraline. Off these, they'd pretty much then decide whether or not you might have an underlying motive or high impact, et cetera. And there was two different methods, one was - we used for high performance or professional athletes, and the other was purely for weight loss.
Like Mr Carolan, Mr Greer impressed as an earnest witness who believed that Mr Carolan's combination of training and dietary advice backed up by blood tests provided a sound and effective foundation for improved fitness.

Services provided to the Sydney Roosters

One of Mr Carolan's clients was Mr Martyn Kennedy, a football player for the Sydney Roosters. It was Mr Kennedy who arranged Mr Carolan's introduction to the club and who told let him know that he was to be engaged. It was Mr Carolan's recollection that there was a separate meeting organised by Mr Kennedy with the club's sports scientist, Mr Lachlan Penfold and the strength and conditioning coach, Mr Keegan Smith, at some point before the day on which Mr Carolan ultimately attended the club to take blood from the players. However, Mr Carolan's initial recollection was that Mr Greer was at that earlier meeting as well. Mr Greer only recalled attending the club with Mr Carolan on the day on which the blood samples were taken.
Mr Carolan revisited that issue in his evidence, accepting that he was wrong at least in respect of Mr Greer being present. [16] He was ultimately unsure as to whether his initial communications were in person or otherwise. It is accordingly unclear whether Mr Carolan did in fact meet Mr Penfold before the day on which he took the blood samples; it appears likely that he did not and that he was confused in that respect.
Mr Carolan said he sent a CV [17] and a proposal document [18] by email to Mr Smith. [19] However, he was not able to produce the email, as he no longer has the computer he then used or his phone from that period. He discovered such hard copies as he was able to find. [20] I accept that it is likely that some form of explanation of the proposal was sent with the CV but, in the absence of evidence as to its contents, that evidence does not take the issue very far.
As submitted by the defendants, Mr Carolan's evidence as to the precise events leading up to the day he took the players' blood was in some respects confused. However, I reject the conclusion contended for by the defendants that Mr Carolan "failed to obtain authority for the tests he performed and was conscious of that omission when he gave his evidence" [21] (in effect, an accusation that he deliberately made up a story to defeat the truth defence). The kind of detail as to which he was confused or else shown to be probably wrong is the kind of detail as to which witnesses are often unsure or mistaken. The fact that a witness is mistaken as to the detail of a meeting or conversation does not always mean it did not occur in some form. Faced with uncertain recollection, the task for the court is to make the best sense that can be made of competing or contested evidence by reference to the surrounding circumstances.
Mr Carolan was ultimately firm in his recollection that he sent the proposal by email to Mr Smith and later went through his "IP" (including the blood tests) when he attended the club with Mr Greer. [22] Although he was confused as to the detail, it seems likely that he in fact met with Mr Smith to present his services before he was retained; Mr Penfold was told, a few days before Mr Carolan did the testing, that Mr Smith "had a meeting with a guy who was in partnership with Marty Kennedy and did blood tests and gave nutrition advice". [23] Mr Carolan said he told Mr Smith how his programme worked, namely, that he conducted blood tests, what he tested for and why. He said he told Mr Smith he would be "specifically testing the hormone chain and endocrine system". [24] He told Mr Smith he would be testing for cortisole, thyroid, growth hormone, IGF, oestradiol, LSH and testosterone [25] and how much the cost would be. He was trying to do the tests as cheaply as he could because he wanted the work with the club.
Mr Carolan said that, although he usually tested for DHEA, he removed it from his list in the case of the Sydney Roosters because he was testing for the other hormones and the Roosters were price sensitive. [26] He said Mr Smith and Mr Penfold specifically asked him to add zinc and magnesium to his tests. [27] He later thought that some of those communications may have occurred by email or text. [28] He was confident that there were email communications. [29]
Importantly, the cost was in fact approved and later paid by the club. No explanation was suggested by the defendants as to what the club thought it had approved (at $200 per player) if the tests were conducted without the club's knowledge or authority.
Two further matters are significant in the assessment of Mr Carolan's evidence about those matters. First, the defendants did not call Mr Smith as a witness. In accordance with well-established principle, I infer that his evidence would not have assisted the defendants. Certainly, I see no basis for rejecting the evidence that Mr Carolan explained to Mr Smith how his programme worked, that he conducted blood tests, what he tested for and why. Mr Penfold's evidence (that Mr Smith had a meeting with a guy who did blood tests and gave nutrition advice affords) some corroboration of Mr Carolan's evidence on that issue.
Secondly, the Roosters had already decided, quite apart from Mr Carolan's involvement, to do blood tests on the players to assist in their nutrition. So much was expressly acknowledged in the defendants' written submissions. [30] Whether such tests are in fact helpful or necessary in the assessment of nutrition is not to the point; the club was already going down that path before Nubodi was retained. The markers for which the club agreed to test, quite apart from any discussion with Mr Carolan, included testing for hormones.
Mr Penfold gave evidence that the Head Coach, Mr Trent Robinson, wanted Mr Smith to drive the Roosters' nutrition programme and part of that included blood testing and supplements. [31] Mr Penfold was encouraged by Mr Robinson to support Mr Smith in relation to that project, which Mr Penfold described as "Keegan's baby". Initially, Mr Smith came up with the testing that he thought was appropriate. [32]
A revealing aspect of the evidence on this issue was an email string recording Dr Orchard's attempts to put those tests in place. [33] In my assessment, that contemporaneous record is quite inconsistent with the position later asserted by the club in response to the breaking story about the elevated HGH levels of some players (reported in Ms McClymont's articles).
Dr Orchard gave evidence that, a few days before 30 November 2012, he met Mr Penfold and Mr Smith and they agreed a list of blood markers to be tested. [34] Dr Orchard had a different view about what testing was appropriate but did not object to Mr Smith's proposal as there was "no harm done in doing it". [35] The agreed list appears at page 323 of exhibit A in the proceedings (referred to during the proceedings as the Orchard list). [36]
It was planned to have another doctor, Dr Cassy Workman carry out the blood tests. Dr Orchard, Mr Penfold and Mr Smith met again on 3 December 2012 and decided to "work out a few different options for our blood testing" (exhibit A, p 320). Dr Orchard told Dr Workman he would set everything up (the completed pathology forms, labels and so on).
A feature of the communications between Dr Orchard and Dr Workman recorded in the email is that it reveals a concern on Dr Orchard's part to explain to the club the distinction between tests that were "medically indicated" (which would be covered by Medicare) and screening tests, for which they would have to pay privately. Dr Orchard expressed the view to Dr Workman that they could "medically" justify a battery of tests; he provided a list which differs from the tests on the first list (exhibit A, p 319). Dr Orchard was proposing to use his health provider number for "the bloods based on clinical symptoms". Some of the players were thought to need vaccinations as well; it was proposed that Dr Workman would use her provider number for those.
The original testing organised between Dr Orchard and Dr Workman "got canned", as Mr Penfold put it in his evidence. [37] A few days before 12 December 2012, he became aware that Mr Smith had decided to engage somebody else to do the blood testing. It is clear that the person Mr Smith had engaged was Mr Carolan and that he did so with Mr Penfold's approval. Mr Penfold gave the following evidence (my emphasis): [38] Q. Can I ask you how you became aware - I think you said Keegan ended up arranging for somebody else to come in and do the testing - can I just take you through that step by step. When did you first become aware that there might be somebody else coming in to do the blood-testing other than Dr Orchard or Dr Workman? A. I can't give you a specific date. I know that it was around about - well, I think he told me four, five, six days before we're going to do it that he informed me that he had a meeting with a guy who was in partnership with Marty Kennedy and did blood tests and gave nutrition advice. He didn't tell me what his name was. He just said, "Oh, look, I've met this guy. I've spoken with this guy who really gives a lot of good nutrition advice. He can do all our blood-testing for us. I think that's a better way to go", and that was it, so again, as, you know, I'm just sort of trying to follow Trent's ..(not transcribable).. instruction about giving ..(not transcribable) and let him drive this thing and so therefore it's like, well okay, if you think this is the best way to go then I'll back you on it.
Mr Carolan and Mr Smith agreed a price for pathology testing of 35 players for health markers at $200 per player. Again, a contemporaneous record confirms that. On 8 December 2012, Dr Orchard sent an email to Dr Workman as follows (emphasis added): [39] We are on to plan D with the bloods but I think it is a good one (despite having printed all the labels for Wed and getting everything set up). The plan Lachlan and Keegan are going ahead with is now to get a private screening for $7K - every test imaginable for every player as an initial screen. The company doing it are going to send in a nurse to collect as part of the fee. We will then do one with you and me in Jan where we use Medicare and can do any immunisation stuff… Having said that in CASE they change their minds by Wed again I have signed 35 blank path forms with my provider number on them! I will be away this week.
There was a substantial contest between the parties as to the proper interpretation of those events. The defendants' case rested on the contention that, from the minute it was agreed, the Orchard list was as fossil preserved in amber, never to be revisited. The defence case rested heavily on acceptance of that proposition.
The defendants submitted that, when Mr Smith told Mr Penfold he had met a person who "can do all our blood-testing for us", this was "plainly" a reference to the tests on the Orchard list. They submitted that there is no basis for concluding that Mr Smith agreed to anything other than the tests on that list, submitting "the likelihood is that [Mr Smith] provided the plaintiff with the Orchard List to indicate to him the markers he wanted tested (it was after all his "baby" according to Mr Penfold)".
The defendants further submitted that, even if Mr Smith did not provide the Orchard list to Mr Carolan and "unwittingly or even expressly agreed" to Mr Carolan's tests, he "clearly did so without Mr Penfold's agreement, without Dr Orchard's approval and without telling either of them that he had." On that basis it was submitted that Mr Smith had no authority to agree to any such tests.
I do not accept those submissions. There was an obvious tension, in the period before Mr Carolan was retained, between Keegan Smith's desire for broad screening and the constraints under which Dr Orchard operated as a medical practitioner; he simply could not justify a number of the tests Mr Smith wished to have done as being "medically indicated". The Orchard emails clearly record the shifting positions on that issue. I am persuaded that, as submitted by the plaintiff, the Orchard list had been "off the table" for some days by 8 December 2012. Instead, Mr Smith retained Nubodi.
Mr Penfold said it was his understanding that the tests were still to be as originally approved by Dr Orchard and that those tests "had never changed". [40] I accept that was his understanding as at the time he gave evidence but it is by no means clear that he in fact turned his mind to that issue at the relevant time. He appears to have left the planning of the nutrition programme to Mr Smith and been happy to "back him on it". Further, his understanding makes no sense. Why would the club agree to pay Mr Carolan privately at $200 per player to perform the very task Dr Orchard and Dr Workman were ready to undertake a week earlier? The point of moving away from the Orchard plan, it seems, was that it removed the constraint of having to distinguish between what was medically indicated and what was not. Once the club decided to undertake the whole exercise at its own cost (in place of the ambitious plan of claiming screening tests to assess the nutritional needs of elite football players on Medicare), that constraint went, leaving the club free to perform "every test imaginable for every player as an initial screen". [41]
I am satisfied that Nubodi was engaged by Mr Smith to undertake the screening tests developed by Mr Carolan as part of his elite training programme, including testing for growth hormone. I do not accept that Mr Smith went beyond his authority in doing so.
Although Mr Penfold did not recall meeting Mr Carolan before the day the blood was taken from the players, he told the players "we were getting blood-testing done and that blood-testing was to test them for their health markers". It is clear he gave the players that information in advance: he told them "that they would need to give blood on the Wednesday". [42]
Mr Carolan went to the Roosters' headquarters on 12 December 2012 with Mr Greer. He needed assistance because he had injured his shoulder in a bike accident. [43] He met Mr Kennedy and then Mr Smith (he thought Mr Penfold as well) and explained the testing again. Mr Greer heard what he said: "we're going to take your markers, do your HGH, thyroid, lymphatic system, get increased performance, and off the bloods we'll work on nutrition". [44]
Mr Carolan was confused as to where that conversation took place but was certain that it did, as was Mr Greer. [45] Mr Carolan was certain that he told the Club what he was testing for, including growth hormone, before doing the tests. [46]
Mr Carolan said he also spoke to Mr Robinson (the head coach) and explained why taking the blood tests would be beneficial. [47] Mr Robinson attended court during the hearing but the defendants did not call him as a witness. [48] In accordance with well-established principle, I infer that his evidence would not have assisted the defence.
As already noted, the defence case did not turn on the position of the players. It is prudent nonetheless to record the evidence (such as it was) concerning their position. Mr Carolan and Mr Greer set up in Dr Orchard's room (which adjoined the physio room) and explained the testing to the players in groups. He gave his "normal spiel". [49] The players were told that testing was optional. [50] Some elected not to take part. [51] The players had the opportunity to ask questions and some did. [52] Mr Penfold was busy when this was taking place, in and out of the room but primarily out. [53] No witness was called to give evidence that those conversations did not occur.
Mr Greer filled out the paperwork and the plaintiff took the blood. [54] The same tests were conducted on each player and also on Mr Smith. [55]
Mr Carolan said, and I accept, that at no point in the process did any person give him a list of tests that he was supposed to carry out, tell him what tests he had to do or give him any direction at all about the testing procedure. [56] It was not suggested otherwise in cross-examination.
After Mr Carolan received the test results he returned to the club with Mr Greer. He gave the results to the players and Mr Smith. Each player was given his own results [57] and the Club was given the entire set of results. [58]
The plaintiff explained the results to the players, in groups. [59] He raised with them that some had very high growth hormone levels and told them that a new system of testing would expose growth hormone doping. [60] The players had a lot of questions - the process took 3-4 hours. [61] None of the players or anyone from the Club raised any complaint about the fact that HGH had been tested, or any other complaint about the testing. [62] Mr Penfold sat in on one of those meetings so he could listen to the information provided to the players. [63] No evidence was adduced from him to contradict what Mr Greer and the plaintiff said occurred.
The plaintiff issued an invoice for the blood testing on 14 December and was paid by the Club about a week later. [64]
Mr Carolan wrote to Mr Smith with his pricing for further work including amended food programmes and explanation of the detox process (exhibit A, p 233. Mr Smith told him that the Roosters wanted to proceed. Mr Carolan returned to the club shortly before Christmas and provided a handout with advice for coping with the festive season and a handout explaining the raw food detox (discussed above). [65] Mr Smith and Mr Carolan had further exchanges about meal plans in early January.
Perhaps most significantly, on 9 January 2013, Mr Penfold attended Nubodi's business premises to have the same tests. [66] His reason for doing so was that he wanted to do the raw food detox diet and was interested to see whether it was going to make any changes to his blood results. [67]
There were continuing exchanges between Mr Carolan and the Roosters over January and early February. During that time Mr Carolan attended Roosters headquarters about once a week to monitor the players' progress and to provide advice. He issued a second invoice in January or February 2013 that was marked "OK to pay" by the Roosters on 4 February 2013. [68]
The Roosters asked Mr Carolan to keep working with the players on the basis that he could charge them individually for additional training and advice. He decided not to do that because it would be uncommercial. [69]
At no time did anyone from the Club or any player raise any query with Mr Carolan about the blood testing he had done or about the fact that he had tested the players (and Mr Smith and Mr Penfold) for HGH. [70] At no time from January 2013 to the end of August 2013 did any person raise any complaint with him about his having tested Sydney Roosters players for HGH [71] or make any complaint to him at all about his work.

The blackest day in Australian sport

On 7 February 2013, ASADA held a press conference about the use of banned performance-enhancing drugs in sport. As Mr Smark noted in opening, that day became known at the time as "the blackest day in Australian sport" on account of that announcement. The announcement evidently prompted the Roosters to review the club's internal procedures, presumably to determine whether the club was at risk of becoming embroiled in any drug cheating scandal. The plaintiff tendered an extract from the relevant Board papers dated 19 March 2013. [72] The board papers note matters relating to the club's use of dietary supplements, the blood testing conducted by Mr Carolan, injections (recorded as having been provided by Dr Orchard only and relating to "eg infections") and other matters. The papers record an understanding that Mr Carolan had only tested for blood test items approved by Dr Orchard. For the reasons already explained, I am satisfied that was a misunderstanding. More significantly, however, the board papers noted that Mr Carolan had tested for a number of things including "identified hormone levels" and had attended the club on a number of occasions. No adverse comment is noted in the board papers in respect of the plaintiff or his services. There is no note or other record to suggest he did anything without the club's authority.
The matters complained of were published months later, evidently prompted by the leaking to Ms McClymont of information that the results of the players' blood tests were found on the phone of the so-called organised crime figure.

Consideration of defendants' case on justification

The defence case sought to establish the following contentions: 1. there was a list of blood tests agreed upon by Mr Penfold, Mr Smith and Dr Orchard in their meeting during the week of 19 November 2012 (the Orchard list); 2. the fact that Dr Orchard had approved that list meant it was authorised by the club; 3. based on Mr Penfold's evidence (that there was never any discussion about changing the testing markers agreed in the Orchard list), it can be inferred that Mr Smith probably provided the plaintiff with the Orchard list to indicate the markers he wanted tested; 4. even if Mr Smith did not provide the plaintiff with the Orchard list and "unwittingly or even expressly agreed to the plaintiff's tests", he did so without Mr Penfold's express agreement or Dr Orchard's approval and therefore had no authority to agree to the tests proposed by Mr Carolan; 5. Mr Smith (who was not called to give evidence) was well aware that he had to have Dr Orchard's approval for any blood tests he wished to have performed and it follows that "the only authorised tests were those on the Orchard list"; 6. it follows that the players did not consent to the tests carried out by Mr Carolan.
The argument almost needs only to be stated in order to be rejected. The plaintiff submitted that the defence fails immediately in circumstances where no player was called to give evidence that he did not consent to Mr Carolan's tests. I am inclined to think that is correct. But in any event, for the reasons explained above, the evidence simply did not establish the inferences contended for. Mr Smith was not called as a witness and it was not put to the plaintiff that he was given any list by Mr Smith. It is doubtful whether it is even open to draw the inference that Mr Smith merely requested Mr Carolan to perform the tests on the Orchard list. Even if it were open to draw that inference, I would not draw it, since the overwhelming likelihood is that it did not happen.
I am satisfied that Nubodi put a proposal to Mr Smith and that he was told what was to be tested. I am satisfied that he had the backing of Mr Penfold, at least. If that was based on a misconception on Mr Penfold's part, that is hardly Mr Carolan's fault. I am further satisfied that the players were told what tests were to be conducted and why. Most of the players then attended the testing and had their blood taken. They were told it was optional and some opted out. They were later told of the results, including some instances of elevated growth hormone levels, and no protest was raised. Mr Carolan was paid, gave them nutritional advice, told them all not to drink too much at Christmas, was paid again and moved on.
As to imputation (b), the justification defence was based primarily on the contention that the plaintiff conducted a test for human growth hormone without notifying the club in advance and that such conduct would warrant his being terminated by the club. The defendants' attempt to put an expanded case in closing submissions must be rejected.
Ms Chrysanthou, who argued this issue for the plaintiff, noted that there was a high degree of overlap between the tests ordered by Mr Carolan and the tests on the Orchard list, including the fact that the Orchard list itself included tests for similar banned substances. Accordingly, even if testing for human growth hormone by Mr Carolan was not expressly authorised by the club, I do not accept that was conduct such as to warrant his being terminated.
In any event, the suggestion that testing for human growth hormone was carried out by Mr Carolan without the club's knowledge or authority must be rejected. Significantly, after being present when the results of Mr Carolan's testing of the players were discussed, Mr Penfold himself went to have the same tests carried out.
Standing back from the later scandal surrounding these events, the overwhelming likelihood is that there was broad approval within the club of a programme of comprehensive screening of the players' blood, including screening for HGH, to assess and improve the players' nutrition.
After the ASADA announcement in February 2013, the club reviewed its own procedures and, so far as the board papers reveal, found nothing untoward. Some months later, news leaked of the blood test results being found on a mobile phone seized by police and an influential investigative journalist got wind of a good story. In my assessment, the threat of bad press, which came at a sensitive time for the Roosters (during the much-hyped season of football finals), appears to have distorted the corporate memory of Mr Carolan's involvement with the club and made him something of a scapegoat.
I am not satisfied that the truth defence is established.

Defence of honest opinion

The defendants rely on the defence of honest opinion pursuant to s 31 of the Defamation Act. The defence relates to the FitzSimons article (the second matter complained of) and the composite publication (the first matter complained of) to the extent that it carried the imputation that Mr Carolan injected Sydney Roosters football players with the banned substance HGH.
Section 31(1) provides: (1) It is a defence to the publication of defamatory matter if the defendant proves that: (a) the matter was an expression of opinion of the defendant rather than a statement of fact, and (b) the opinion related to a matter of public interest, and (c) the opinion is based on proper material.
The term "proper material" is a defined term; relevantly for present purposes, it includes material that is substantially true.
Unlike the defence of justification, which is directed (in terms) to the defamatory imputations carried by the matter complained of, the defence of honest opinion is directed to the "defamatory matter". I take that expression to refer to the matter complained of in its defamatory sense. The task is to determine whether the defamatory matter (the defamatory sense of the matter complained of) amounts to a statement of fact about the plaintiff or an expression of opinion.
That issue is informed, but not determined, by the imputations on which the plaintiff has succeeded. In Harbour Radio Pty Ltd v Ahmed, [73] the Court of Appeal emphasised the "contextual nature" of the inquiry, saying (at [44], emphasis added): The risk in treating the imputation as the matter which must be identified as an expression of opinion or fact is that the form of the imputation may not accurately reflect the language of the defamatory publication. That is significant, bearing in mind the contextual nature of the inquiry as to whether a statement is opinion.
As submitted by the plaintiffs, the determination of the inquiry (fact or opinion) focuses critically on the clarity with which the relevant matter is recognisable as opinion. It is acknowledged that a reader is more likely to be able to recognise a statement as opinion rather than fact if the facts on which it is based are identified or identifiable. [74]
In the joint judgment in Channel Seven Adelaide Pty Ltd v Manock, [75] the High Court noted the plaintiff's reliance on the remarks of Fletcher Moulton LJ in Hunt v Star Newspaper Co Ltd: [76] "[C]omment in order to be justifiable as fair comment must appear as comment and must not be so mixed up with the facts that the reader cannot distinguish between what is report and what is comment ... The justice of this rule is obvious. If the facts are stated separately and the comment appears as an inference drawn from those facts, any injustice that it might do will be to some extent negatived by the reader seeing the grounds upon which the unfavourable inference is based. But if fact and comment be intermingled so that it is not reasonably clear what portion purports to be inference, he will naturally suppose that the injurious statements are based on adequate grounds known to the writer though not necessarily set out by him. In the one case the insufficiency of the facts to support the inference will lead fair-minded men to reject the inference. In the other case it merely points to the existence of extrinsic facts which the writer considers to warrant the language he uses ... Any matter, therefore, which does not indicate with a reasonable clearness that it purports to be comment, and not statement of fact, cannot be protected by the plea of fair comment."
Applying those remarks, their Honours noted the obscurity of the matter complained of in that case, which strongly suggested "that while there may be a comment - an opinion, an evaluation, a judgment, an ultimate inference being asserted, it is impermissibly mixed up and intermingled with factual material". The task bears a loose analogy with the assessment of a report of an expert witness, which must be drawn so as to enable the reader to distil the author's opinion from the factual premises on which the opinion is based (that analogy must be approached with caution; as noted by Mr Dawson in closing submissions, an expert opinion cannot be unreasonable or wrong-headed whereas defamatory opinion can be defensible even if it meets that description).
The relevant extract of the text of the FitzSimons article is set out above. There is no doubt that it is recognisable as a commentary piece in which the author expresses his personal opinions, remarks and judgments concerning the subject matter of the article. However, the critical question is whether its defamatory import regarding the injection of players with the banned substance HGH would be recognised as comment or fact.
The article clearly attributes Mr Carolan with having injected the players with human growth hormone. The critical passage is as follows: Then, if we are to believe the Roosters' (sic) Carolan conducted blood tests, without the club's knowledge or consent, and wouldn't you know it, discovered that "a few of the boys had high growth hormones levels". Well, blow me down! How exactly? Because Mr Carolan injected them with it? Goodness gracious, no! "To actually say it was from taking an actual growth hormone or not, I wouldn't know anything about that personally." Of course not. And nor, apparently, do the NRL or the Roosters.
In my view, the clear imputation that the explanation for high growth hormone levels in some of the players was that Mr Carolan had injected them with human growth hormone would be recognised as part of the factual premise for the robust opinions otherwise expressed by Mr FitzSimons in the article rather than as part of his conclusion or opinion. The focus of the commentary of the article is criticism of the club for not discovering an obvious fact and not preventing the drug cheating that in fact occurred.
Even if the defamatory attribution was meant only to express a deduction, inference or conclusion reached by the author and not a statement of fact, in my opinion that was not indicated with "reasonable clearness". On the contrary, in my view, the distinction between what is intended by way of recorded fact (whether drawn from Ms McClymont's article or elsewhere) and the author's own commentary is impermissibly blurred.
For those reasons, I have concluded that the defence fails because the matter was, in its defamatory sense, a statement of fact rather than an expression of opinion.
In case that conclusion is wrong, it is appropriate to consider the remaining issues raised by the defence. The plaintiff accepted that, if the matter was an expression of opinion, the opinion related to a matter of public interest. He submitted, however, that the defendant had failed to establish the opinion was based on proper material.
The defendants provided detailed particulars of the alleged proper material. As to most, the plaintiff accepted that they were substantially true. However, a small number were contested. A considerable portion of the evidence and argument was directed to those matters.
In my assessment, the issue whether the opinion was based on proper material can be disposed of briefly. One of the matters particularised as proper material for comment is "that the plaintiff and/or Nubodi conducted tests on the players' blood for human growth hormone without the club's knowledge or consent". For the reasons stated above in respect of the truth defence, I am satisfied that the club both knew about and consented to the tests carried out by the plaintiff. Mr Dawson submitted that failure on this point would not be fatal to the establishment of the defence. He noted that, in the extract of the matter complained of set out above, Mr FitzSimons expressed scepticism as to the club's position ("if we are to believe the club"). On that basis, he submitted that the ordinary, reasonable reader might not take that particular to be part of the premise of Mr FitzSimons' opinion.
I do not accept that submission. The conduct attributed to the plaintiff in the article and, particularly, the notion that he went behind the club's authority in conducting the tests he did was, in my view, a central plank of the defamatory statement. In the circumstances, s 31(6) is not engaged. Accordingly, even if I am wrong as to whether the defamatory matter was conveyed as fact or opinion, the defence would fail for that additional reason.
For completeness, I should record the plaintiff's submission that three further particulars of proper material for comment were not proved substantially true. One was "that the plaintiff ran a company called Advanced Peptide Solutions". The plaintiff became a director of a company of that name but his evidence was that it never traded. [77] That evidence was corroborated by a witness I would regard as honest and independent, Mr Nigel Cade. I do not think the contention that the plaintiff "ran" a company of that name was established. In any event, I understood the defendants to withdraw their reliance on that particular. [78]
Secondly, one of the particulars of proper material for comment was "that people who have dealt with the plaintiff's business have complained that he was offering growth hormones to customers who were trying to lose weight". The defendants tendered evidence of the complaints referred to. [79] On their face, those documents appear to record complaints by former clients of the plaintiff to the effect stated. Mr Smark's response to that material was that the plaintiff was not given an opportunity in cross-examination to address it. The plaintiff should have been given an opportunity to comment on those documents. On balance, however, I think they establish the relevant particular of proper material.
Finally, the particulars included "that a former employee of the plaintiff and/or Nubodi, Ben Darcy, was now living in Thailand". The evidence did not establish where Mr Darcy was living at the time of publication of the matters complained of. However, I do not think that individual fact was a significant aspect of the stated basis for the opinion. Had that been the only individual particular of proper material not proved, s 31(6) would have been engaged.
In any event, for the reasons already stated, I am not satisfied that the defamatory matter, if it was opinion, was based on proper material.
Finally, the plaintiff submitted that there is a further requirement of the defence, being a requirement of reasonableness. The section provides that the opinion must be "based on" proper material. The plaintiff submitted that it could not be enough to satisfy that requirement if the opinion in question was based on facts which bore an insufficient relationship to the opinion expressed. It was submitted that there must be a sufficient rational connection between the facts and the opinion to sustain the conclusion that the opinion was "based on" the facts.
As submitted by the plaintiff, that is a requirement clearly recognised by the High Court in Manock in respect of the defence of fair comment at common law. It is also a proposition which has some resonance with the principles relating to expert opinion evidence. Upon analysis, it is little more than a logical analysis of the concept of opinion. The plaintiff accepted that the opinion can be unreasonable but contended that it must be one capable of being rationally based on the proper material identified.
There may be force in the plaintiff's submissions on that issue but, for present purposes, it is not necessary to determine the correctness of the proposition contended for. Assuming I am wrong in my previous conclusions and that each of the particulars of proper material is substantially true, in my view an opinion to the effect captured in the plaintiff's imputation could reasonably be based on that material. Had the article provided a reasonably clear distinction between the factual premises and the conclusion (which in my view it did not) and had each of the relevant factual premises been proven (which in my view they were not), the requirement of reasonableness or rationality could, in my view, have been satisfied.
In case I am wrong in my conclusion that the defence of honest opinion is not established, it is appropriate to address one final issue, the matter of defeasance. The plaintiff pleaded in his reply that Mr FitzSimons did not, as a matter of fact, honestly hold the opinion at the time of publication. That is an issue on which the plaintiff bears the onus of proof. Mr FitzSimons did not give evidence and so did not expose himself to cross-examination on that issue. The plaintiff nonetheless submitted that the unreasonable nature (as the plaintiff contended) of the opinion expressed and the sarcastic tone of the article would permit the conclusion that the opinion was not honestly held by Mr FitzSimons. Had it been necessary to decide that issue, I would not have accepted that submission. In the absence of evidence from Mr FitzSimons, I do not think I could have made a positive finding that he did not honestly hold the relevant opinion at the time of publication.

Damages

Mr Carolan has succeeded in establishing that he was defamed by all four of the publications sued on. The defamation was serious and it cannot be doubted that he is entitled to a substantial award of damages.
The principles to be applied in the assessment of damages were not in dispute, save as to a passing reference (which neither party addressed in any detail) to the need to consider the proper application of the statutory cap on damages for non-economic loss imposed by s 35 of the Defamation Act.
The current cap is $381,000. The defendants submitted that, in considering the relevance of the cap, the Court should follow the approach taken by Bell J in Attrill v Christie, [80] in effect treating the cap as the top of a range within which (leaving aside aggravated damages) awards of general damages must fall. The plaintiff submitted that the cap merely acts as a "cut-off" amount and does not require the court to engage in such a scaling exercise: Cripps v Vakros. [81]
In Cripps, Kyrou J expressly declined to follow Attrill v Christie. His Honour said at [600]: In Attrill v Christie, Bell J stated that s 35 of the Act fixes the outer limit of damages for non-economic loss - in cases not warranting an award of aggravated damages - and lesser awards must find their place in a range marked out in that way. In doing so, her Honour drew an analogy with awards of non-economic loss in personal injury cases in accordance with s 46A(2) of the Defamation Act 1974 (NSW). However, her Honour also noted that this is not to say that an award of the maximum damages amount in a case not warranting an award of aggravated damages is to be reserved for the worst defamation imaginable.
Declining to follow that approach, Kyrou J said at [607]-[608]: There is nothing in the language of the Act or the extrinsic material to which the Court has been referred that supports the proposition that s 35(1) of the Act is intended to have a scaling effect. Further, there is no reason in principle to interpret s 35(1) in that manner. As discussed at [595] above, the basic tenet to which I have there referred is qualified by the statutory cap. I can see no reason why the basic tenet should be further compromised by awarding to a successful plaintiff damages in an amount that is less than the amount to which they are entitled provided that the cap is not exceeded. The decision in Attrill was influenced by observations made by Hayne J in Rogers in relation to s 46A(2) of the Defamation Act 1974 (NSW). In my opinion, as s 46A(2) of the Defamation Act 1974 (NSW) does not have any counterpart in the Act, the reasoning in Rogers is inapplicable. Accordingly, I decline to follow Attrill.
The resolution of that issue has not played any great significance in my assessment of damages in the present case. However, I should indicate that, since the decision of Kyrou J concerns the current uniform legislation, I consider it appropriate, for reasons of comity, to follow his Honour's approach.
Otherwise, the relevant principles are well established and well known. The purposes of an award of damages are to provide consolation for hurt to feelings, compensation for damage to reputation and vindication of the plaintiff's reputation. [82]
The plaintiff submitted that the Court should have regard to the observations of Mahoney A-JC in Crampton v Nugawela [83] to the effect that, in some cases, a person's reputation is, in a relevant sense, his whole life. Mahoney AJC cited as examples the reputation of a clerk for financial honesty or that of a solicitor for integrity. In my view, vindication of the reputation of a personal trainer against a charge of injecting footballers in competition with banned substances falls within the import of those observations.
I accept, as submitted on Mr Carolan's behalf, that he enjoyed an excellent reputation as a personal trainer prior to the publication of the matters complained of. A claim was initially made for special damages (loss of income to the business of Nubodi) but that claim was withdrawn. It is nonetheless relevant to have regard to the fact that the defamation struck at the heart of Mr Carolan's reputation in the business he conducts. In my assessment of the evidence, he appears (prior to the publication of the matters complained of) to have been on the path to substantial success in his field.
A number of witnesses spoke to that issue. I have already referred to the evidence of Mr Greer. He gave evidence that, prior to the publication of the matters complained of, he mixed in the same circles as the plaintiff, in particular other personal trainers. He said the plaintiff was always the busiest trainer at every gym and that he was looked to as a mentor. He was regarded highly by other trainers. He was also popular amongst clients. [84]
The plaintiff also called evidence from Mr Kristian Storek. Mr Storek was a professional kickboxer and boxer for 25 years. He won many championships including 5 Australian titles, New South Wales, South Pacific, Intercontinental and Commonwealth titles: T49.24ff. He has known Mr Carolan for 8 to 10 years. He gave evidence that Mr Carolan had a reputation as a good person and a good trainer. [85]
The plaintiff also called Mr Adam Ward, whom he trained for about three years and who has become a friend of the plaintiff. He said that, before publication of the matters complained of, the plaintiff was well known and highly spoken of as a trainer and as a person. [86]
I have referred to Mr Nigel Cade. The plaintiff trained him for over 2 years commencing in 2010. He said Mr Carolan's reputation amongst persons at the gym was that "they wouldn't train with anyone else". [87]
Finally, a statement was tendered from Ms Kim Brennan. She met the plaintiff at Fitness First in Penrith in 2007. She saw him every day at the gym and he trained her 2 to 3 times per week for a few years when she was training for the FEENA World Masters Championships. She gave evidence that he had a reputation of being "a genuine fellow" with a very good reputation as a personal trainer; he had a lot of clients and was known to train people very well. [88]
The plaintiff gave compelling evidence, which I accept, as to the dramatic impact of the publications on his reputation. I recently had occasion to observe, in a different context, the irony that our most modern technological advances have facilitated an explosion of dissemination of medieval attitudes. [89] Following the publication of the matters complained of in these proceedings, Mr Carolan and his wife became the subject of hate forums on social media, which must have been extremely distressing.
Mr Carolan's wife gave evidence that she first became aware of the proposed defamation when a reporter came to their home at around 5 pm one afternoon asking for the plaintiff. The reporter said "there's an article coming out in the paper tomorrow that he has injected players with growth hormone". The next morning the article (presumably the first McClymont piece) was reported on the television. She turned on the television to see her photograph and to hear Karl Stefanovic "bagging us". When she left to take her children to school there was a photographer with a telephoto lens at the front door taking photos. Over the following days, as further articles came out, hate forums were started on social media, school teachers would not talk to her and they had stones thrown at their house. They lost friends. Their children have been bullied with the taunt "your dad's a drug dealer".
I have no difficulty accepting that Mr Carolan was devastated and shattered by the publication of the matters complained of. He said it was "like a ship sinking", that he felt helpless, that it was a battle he could not fight. [90] Mr Carolan said that coping with the publication of the matters complained of is "the hardest thing he has ever been through". It has affected his relationship with his wife and he is not as social as he used to be.
The plaintiff's reputation witnesses confirmed the devastating impact of the matters complained of on him.

Aggravated Damages

The plaintiff submitted that his damages should be increased by reason of conduct of the defendants towards him that has been improper, unjustifiable or lacking in bona fides in a number of respects.
First, he relied on the fact that the matters complained of have remained online, even though they include defamatory imputations not alleged by the defendants to be true. Leaving aside any claim for aggravated damages, the continuing availability of the matters complained of online is relevant to hurt to feelings. Asked how he felt about the fact that the articles are still available online, Mr Carolan said "I wouldn't like to say the words in court about it". Pressed by Mr Smark to provide an answer as to how he felt about the fact that Fairfax is still publishing the material online, he said "Grubs. Mad." [91]
The plaintiff submitted that the conduct of the defendants in maintaining the matters complained of online is unjustifiable, particularly in light of documents obtained from the Sydney Roosters Football Club on subpoena, which demonstrated the falsity of the imputations. In particular, Mr Smark relied upon the email chain between Dr Orchard, Dr Workman, Mr Penfold and Mr Smith [92] and the Sydney Roosters board papers [93] discussed above. Mr Carolan was cross-examined about his reaction to the fact that the defendants had access to those document in the proceedings; his evidence was very compelling: [94] Q. And you know, don't you, that Fairfax's position in its defence in this case is that you did a test for growth hormone without authorisation, don't you? A. Yes. Q. And do we understand your position correctly to be, that you think the documents starting at 318 in the tender bundle proves that you were authorised to do a blood test on the player's blood for growth hormone? A. I did (scil: didn't) do it just for the growth hormone, they knew exactly, the Roosters knew exactly what I was testing for, including growth hormone, so did Lachlan Penfold, so did Keegan Smith, so did the coach. They all knew. Q. Well, you see that's just not true is it? A. No, it is true. They all knew. They're a bunch of liars. They all knew. They didn't want to lose their premiership points, and they bullshited and that's why we're in the papers. That's what this is all about. They knew exactly what I was testing for. Q. You never told anybody before you did these tests, that you were going‑‑ A. Absolutely I did. Q. Please just let me finish. I'll let you finish, please let me finish. You never told anybody at the Roosters, did you, that you were going to be doing tests for growth hormone on the players' blood? A. Absolutely I did. Absolutely 100%-ly (as said).
Again, that evidence is relevant in the assessment of hurt to feelings. However, for the purpose of considering aggravated damages, it is necessary to focus on Fairfax's conduct rather than that of the club.
Secondly, the plaintiff submitted, for substantially the same reasons, that the defendants' conduct in maintaining the truth defences was unjustifiable. I accept that the defence was ambitious and, to a degree, misconceived.
Fairfax did not obtain the material on subpoena until quite late in the proceedings. In my view, that material should have prompted Fairfax to reassess the strength of its defence to the imputations about testing players' blood. However, I do not think I can go so far as to conclude that it was improper not to abandon the truth defence and take the articles down at that point. The conduct of the defence certainly sailed close to the wind but, in the end, I have not been persuaded that it amounted to unjustifiable conduct on the part of Fairfax.
The defendants repeated their allegation that the plaintiff conducted unauthorised tests in an article published on 11 October 2013. The plaintiff said that made him feel terrible. [95] It should be acknowledged, however, that the later article (exhibit C) reported other matters which might independently have been hurtful to him. The difficulty of distinguishing between feeling about those two matters has led me to think I should put the further article aside in the present assessment.
The third matter relied upon as increasing the damage suffered was the conduct of the proceedings and, in particular, allegations put to Mr Carolan during cross-examination. Mr Carolan relied on the following exchange in cross-examination: [96] Q. Mr Carolan, in your evidence to her Honour towards the end of the questions Mr Smark was asking you told her Honour that it hurt you that your children thought you were a drug dealer. A. Yeah. Q. Do you agree with me that, if it is the case that you have been dealing in banned substances in sport, that that makes you a drug dealer? OBJECTION WITNESS: You're calling me a drug dealer? SMARK: No. [it was agreed that Mr Dawson said "No" at the same time] WITNESS: It sounds like it.
Mr Carolan plainly understood the question (not unreasonably) as an accusation that he was a drug dealer. [97] The question was based on a premise which, throughout the hearing, I regarded to be misconceived (addressed below in the context of the defendants' credit submission). Mr Dawson submitted, and I accept, that he did not intend to offend the plaintiff by that question but that is not the test. With great respect to Mr Dawson, I think the question overreached the bounds of the defendants' case and was needlessly offensive to the plaintiff. That aspect of the conduct of the case aggravates the plaintiff's damage.
Fourthly, the plaintiff submitted that the cross-examination of the plaintiff was unnecessarily protracted. The transcript records my assessment at the time that it could certainly have been conducted with greater expedition. The cross-examination commenced on the afternoon of the second day of the hearing. Acknowledging that there were interruptions, the cross-examiner did not move to address the facts in issue until the afternoon of the Thursday, the fourth day of the hearing. The cross-examination included a number of topics which went only to credit, the detail of which is addressed at paragraphs 226 to 231 of the plaintiff's written submissions. I consider it unnecessary and undesirable to rehearse those matters in this judgment.
The plaintiff accepted that there is nothing inappropriate in a lengthy cross-examination where the exploration of complex issues requires it. Mr Smark submitted, however, that, in the present case, Mr Carolan had to endure days of cross-examination only because the defendants persisted with "irrelevant or marginal credit attacks" for longer than could be warranted having regard to the terms of s 56 of the Civil Procedure Act 2005 (NSW).
It was submitted that the lengthy cross-examination was an attempt not just to challenge the credibility of the plaintiff's evidence but to blacken his name.
At the conclusion of the hearing, counsel for the defendants provided a lengthy written submission going only to Mr Carolan's credit, including a submission based on the decision of the High Court in Chamberlain [98] that the plaintiff's "fabrication" demonstrates "a consciousness of guilt" (the submission did not articulate what conduct Mr Carolan was said to be consciously guilty of). The presentation of that document took the hearing into a ninth day.
The credit submission was the principal submission put by the defendants on the issue of damages. The defendants submitted that, if the Court were to accept the credit submission, the award of damages would be lower so as to avoid compensating the plaintiff for a reputation which did not reflect reality.
The burden of the submission was that the plaintiff's reputation as a personal trainer derived from Nubodi's approach of detoxification, blood testing and natural diet to develop strength and fitness. The defendants submitted that, if the Court were to accept that, contrary to the premise of that good reputation, Mr Carolan was a person who did in fact deal in banned substances, he would not deserve any substantial award of damages to compensate him for damage to an undeserved, clean reputation.
With great respect to those representing the defendants, the submission was an illustration of the rhetorical device referred to as the straw man. It proceeded from a premise constructed by the defendants for the purpose of being knocked down. The putative premise became a significant focus of the evidence and the defendants' submissions. In my assessment, the entire line of argument proceeded from a misconception or distortion of the plaintiff's true position.
From the outset of the cross-examination of Mr Carolan, Mr Dawson pressed him as to the tenets of his nutritional philosophy. The critical exchange was in the following terms: [99] Q. So there are different approaches to health obviously, as you've explained, Mr Carolan. But is your position, just so we understand it, that - and I think this is consistent with what you told the Roosters, as you told us this morning. If somebody is adopting your approach to health and fitness and strength and building themselves up, you're trying to do that naturally, not artificially. Correct? A. Within reason. We're talking about levels of sports science. So the food obviously is there. The raw food is important. You know what I mean. But there are also things like supplements - amino acids and protein powders and those things can be important. So if you're suggesting that I'm suggesting that they have to go out, swing off trees and eat carrots out of the ground to be elite athletes, then no that's not - that's not correct. No. Q. So in other words a combination of what might be called completely natural foods and substances coupled with acceptable supplements is an acceptable approach from your point of view? A. Yeah. Q. But you draw the line at banned substances? A. Yeah.
The credit submission sought to establish that Mr Carolan had lied, and therefore could not be accepted as a reliable witness on any issue, because, contrary to that evidence, there was evidence to establish that he does not "draw the line at banned substances". The difficulty with the submission was that, throughout the hearing, the defendants failed to distinguish between or establish the circumstances in which the use of particular substances is banned. Substances banned by ASADA for use by athletes are not banned in the hands of a person in the position of Mr Carolan so far as non-athletes (people who want to lose weight, get fit or slow the ravages of aging) are concerned.
I do not think it is necessary or appropriate in the circumstances to rehearse the detail of the matters relied upon to support the credit submission. It is enough to say that I do not accept the submissions put and I do not accept that the plaintiff is entitled to a smaller amount in damages on account of those matters. As submitted by Mr Smark, the tenor of the evidence relied upon by the defendants as a lie was that the plaintiff did not think a particular substance was banned in 2012. The evidence did not establish that it was.
Conversely, however, I am not persuaded that the length of the cross-examination was unjustified in the sense required to establish an entitlement to aggravated damages. That is not to say that it does not sound in costs.

Conclusion

I consider it appropriate in the circumstances to make a single award of damages. In doing so, however, I have regard to the fact that Mr Carolan has been defamed by three separate articles. As already indicated, in my assessment the audience to whom the composite publication (the first matter complained of) was published is likely to be very small. That publication has been given little weight in this award.
The second, third and fourth matters complained of have been published to tens of thousands of people. [100] As submitted on the plaintiff's behalf, it is likely that many of the readers had a particular interest in sport. The plaintiff is named and depicted in photographs in the matters complained of, which have remained online since their publication. The imputations are serious, striking at the heart of Mr Carolan's reputation as an outstanding personal trainer.
In all the circumstances, I consider that the appropriate award is judgment in the sum of $300,000. It will be necessary to hear the parties as to the injunctive relief sought and as to costs.

Endnotes

Carolan v Fairfax Media Publications Pty Ltd (No 2) [2015] NSWSC 1010.
Chel v Fairfax Media Publications Pty Ltd (No 2) [2015] NSWCA 379 at [51] per Macfarlan JA; Meagher JA and Tobias AJA agreeing at [53] and [60] respectively.
Amended statement of claim filed 4 November 2014.
T687.31-47.
T687.39.
T688.5.
T687.31-35.
T695.17
[2006] NSWCA 231; 66 NSWLR 605.
T308.45
Exhibit A, page 310.
T95.41, T218-220
T378.48
T42.1
T43.17
T136.29-50
T150.45
T150.47
T150.47
T363.44-T364.8: T366.10
Defendants' outline of submissions, para 20.
T365.16-50
T579.47
T109.35.
T110.37; T152.45
T110.1-48.
T152.45-T153.6.
T363.35
T364.27.
Defendants' written outline at para 23.
T574.16
T574.37-T575.5.
Pages 318-322 of exhibit A.
T575.7-28
T575.35-43.
T598.13.
T578.50.
T579.42-T580.7.
exhibit A p 318.
T602.40-50
T602.11-13.
T583.1-7; T583.29-34
T45.49; T109.1
T46.42; T142.19
T364.45-365.26
T371.27
T149.45; T373.1-9
T559.49
T47.10; T147.12; T373.43
T142.24; T402.41-46.
T47.35; T145.18
T47.14; T147.44.
T587.42; T590.9
T47.39; T150.1
T48.12
T47.50-48.10
T48.37-47; T156.48
T157.8; T362.20-41; T592.9-36
T48.37ff; T155.25ff
T156.1
T49.22-50.10
T50.12; T158.17-33
T591.6
p.315; T133.45
T159.9-160.12
T163.46-165.17; p 218-220 and 221-223 of exhibit A.
T594.23
Exhibit A, p 317.
T170.30-46; T530.34-531.19.
T169.47
T176.15
Exhibit A, pp 324-5.
[2011] NSWCA 290
Channel Seven Adelaide Pty Ltd v Manock [2007] HCA 60; 232 CLR 245 per Gleeson CJ at 253, [4]
[2007] HCA 60; 232 CLR 245 per Gummow, Hayne and Heydon JJ at 266, [41]
[1908] 2KB 309 at 319-320
T416.29
T763-7644
Exhibit A, pp 408-409
[2007] NSWSC 1386 at [44]-[46]
[2014] VSC 279 at [599]-[609] per Kyrou J
Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at 60.7 to 61.2.
(1996) 41 NSWLR 176 at 193A
T51.25-46
T450.27
T467.13-23
T535.11
Exhibit D
R v Curtis (No 3) [2016] NSWSC 866 at [43]
T177.43; T178.43
T182.47
Exhibit A, pp 318 - 323
Exhibit A, pp 324 - 325
T371.10-371.30
T184.49
T204.19-T204.33
T204.29
Chamberlain v The Queen (No 2) (1984) 154 CLR 521 at 564.
T189.30-50
Exhibit E; Exhibit A, pp 332- 340 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 August 2016

Defamation Act 1974(NSW)

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Judgment (19 paragraphs)

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Cases Cited (11)