Coates v Harbour Radio Pty Ltd & Anor

Mr Coates and the Olympic movement 6 Mr Coates is a solicitor and a partner of Messrs Kemp Strang, solicitors. He is president of the Australian Olympic Committee, Deputy Chairman of David Jones Limited, on the Advisory Board of Grant Samuel Investment Bank, being a director of one of their funds, a government appointee to the Sydney Olympic Park Authority, Chairman of the Australian Olympic Foundation and occupies other positions within the Olympic movement. Amongst other honours he was appointed a Companion in the General Division in the Order of Australia in 2006. Mr Coates was the rowing Section Manager for the 1976 Australian Olympic team, was appointed to the 1980 team as the Administration Director and the Assistant General Manager of the 1984 team. He has been Chef de Mission and General Manager of all Australian Olympic teams since then. He was appointed Honorary Treasurer then President of the NSW Olympic Council in the 1970s and l980s and was appointed to the executive of the Australian Olympic Federation, as it was then known, in 1981. He became Vice President in 1985 and the President in 1990, then filling a casual vacancy, which was confirmed in 1991, and he has been re-elected every four years since then to that position. The Australian Olympic Committee (AOC) has exclusive responsibility for the representation of Australia at the Olympic Games. 7 The Olympic movement in Australian sporting and community life is very significant and it undertakes extensive marketing, licensing and general fundraising activities as well, of course, managing the very significant assets that are necessarily involved in its manifest and considerable responsibilities. It is worth mentioning, perhaps, that the organization has no statutory basis - it is a private corporation under the Associations Incorporation Act of Victoria and is recognised by the International Olympic Committee under the Olympic Charter. Mr Coates is a member of the International Olympic Committee. 8 The Chef de Mission is appointed by the national Olympic committees and has responsibility for all of the athletes and officials in the national team together with any functions that might be delegated to him or her by the NOC. The Chef de Mission liaises with the organising committee for the games in question, the IOC and the International Sporting Federation.

9 One of the issues in the case involves the mode of appointment of members of sporting teams, in particular the Women's Eight rowing team. As a general rule, each sport has nomination criteria which are determined by its relevant organizations, although there is a template that the AOC provides. Each sport, however, determines for itself the specific requirements that athletes must meet for a nomination, which generally involves competing in specific events and a range of objective and subjective criteria. Nominations are then made by the relevant sporting body to the AOC under a selection by-law. In the case of the Women's Eight, the athletes and coaches for membership of the team, are broken up into different crews, as nominated by Rowing Australia. The AOC then considers whether the nominees have satisfied the criteria of the International Federation, whether they are eligible for membership of an Australian team (for example, whether they are citizens, whether they have done anything which might bring themselves, their sport or the Olympic movement into public disrepute, whether there have been any breaches of anti-doping codes for which the penalties have not been satisfied). If selected, athletes are required to enter into a team management agreement, which applies both to them and officials. 10 In 2004 the AOC Executive delegated to a committee the responsibility for ensuring that nominees met the relevant criteria. That committee comprised Mr Coates, Mr Peter Montgomery, the first vice-president and, possibly, one other person. The committee relied on the recommendation of the IOC Director of Sport who, at the relevant time, was a Mr Craig Phillips. The plaintiff did not play any part in any other way in the selection of the members of the rowing team for the 2004 Olympics. 11 It is obvious from what I have said that it was not part of the plaintiff's responsibility to satisfy himself personally as to the physical or mental capacity of any nominee to compete. For perfectly obvious reasons, this could not be done by him or his committee at all events. His and his committee's responsibilities were of an altogether different, though important, kind. The task of assessing the competitive capacity of the athletes was undertaken by the relevant sporting organizations. It is convenient to make this point clear at this stage since part, at least, of the defendants' case rested upon the mistaken supposition that Mr Coates had participated in some way in the nomination of Ms Robbins in the Women's Eight rowing team. Mr Tobin QC relied upon a submission made on the plaintiff's behalf to the presiding judge of the 7A trial - "Not long before the adjournment my friend, this is Mr Reynolds, said to the jury, as if it were a fact, which it is not, that Mr Coates was not involved in picking someone who should not have been picked, that is Mr Coates had no role in the selection process of the athletes. This is factually wrong. Mr Coates is intimately involved from his role as the head of the AOC and the Chef de Mission of the Olympic team." 12 It is enough to say that I do not consider that this admission - accepting it as an admission for the sake of argument - was wrong. It rather depends on what was meant by the words "intimately involved" and "his role as head of the AOC and Chef de Mission". The expression was used to contrast the "no role" submission of the defendants' counsel which, it seems, Mr McClintock SC sought to correct. Much depends upon the context and the context of a 7A trial is very different from that in which I now have to consider the true nature and extent of the plaintiff's involvement. It is enough, I think, to state that I accept as truthful and accurate the evidence given by the plaintiff in this respect in the proceedings before me, which I have endeavoured to summarise above. I am fortified in this view by the approach taken by Mr Tobin QC. I asked him, when he put Mr McClintock QC's submission to the plaintiff in cross-examination and asked him whether he had sought to correct it, whether he was suggesting to the plaintiff that the evidence that he gave to me was wrong or mistaken, a suggestion which Mr Tobin rejected. 13 The plaintiff's personal knowledge of Ms Robbins before the particular incident with which I am here concerned, was limited. He said that he had met her and was aware who she was, he had seen her compete and presented her with medals but that he had not formed a personal opinion about her suitability for nomination to the team. Specifically, he was not aware of any problems that Ms Robbins may or may not have had in competing until well after the final.

Membership Agreement - Athletes 14 Each athlete was required, as a condition of his or her participation in the as a member of the 2004 Australian Olympic team, to enter into an agreement with the AOC, and observe its terms. This document is a lengthy one covering such things as agreeing not to bring oneself, or one's sport, the AOC or the team into public disrepute or censure, compliance with the anti-doping requirements, making available a sample for collection pursuant to those requirements, advising the AOC of sponsorships, undertaking medical assessment and testing, intellectual property, insurance, gambling, participation in events, media, marketing and promotional activities, dispute resolution and so on. Of present importance are the media guidelines which cover a number of matters, including, in particular, the following - "3. Unless and until directed by the Chef de Mission: (a) athletes may comment or communicate with the media only in relation to their events, prospects and performances at the Games;… "4. In giving any interview Team members must not disparage or criticise other Team members or their sports performances." … 17. These are guidelines only and may be amended or varied by the Chef de Mission at any time in his absolute discretion."

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

The Women's Eight final 15 This race took place at Lake Shinias, a manmade course about an hour out of Athens proper, near the city of Marathon, on the morning of 22 August 2004, a Sunday. Six boats were in the race. The Australian team got away to a good start. The plaintiff said that he saw that at about the half way mark, the boats that were behind the Australian boat passed them and, when the Australian boat was about four to five hundred metres out, he noticed Sally Robbins in the sixth seat lying down on the feet of the rower behind her and was not rowing. 16 Ms Katie Foulkes was the coxswain of the women's eight. She said that, at about the halfway point, she noticed Ms Robbins start to power back off a little and become quite clumsy. She said that she attempted to encourage her through this point without, as I understand it, any apparent effect and that, eventually, Ms Robbins was lying down and must have let go of the oar because it was actually out of the boat. I gather from Ms Foulkes' evidence that the boat went on to finish the race after "strong words" from her that and, having crossed the finishing line, she instructed the crew to continue rowing. Ms Foulkes said that she heard a lot of noise in the boat when Ms Robbins stopped. Although she could not recall exactly what was said, I gathered from the way she gave her evidence that she accepted that things were said which were quite negative. Ms Kyeema Doyle was also a member of the crew. She said that she did not recall anything in particular being said in the boat: "I just heard a lot of screaming". She said that things might have been said but she was distracted by screaming at the medical boat that it should stay away because she knew that, if the boat came alongside, spectators would get the "wrong idea about what was happening". Even so, she did hear someone screaming something like, "Why don't you swim?" Ms Doyle concluded from the fact that, as soon as the boat crossed the finish line, Ms Robbins sat back up and rowed the boat into the pontoon, "there was nothing wrong with her physically". 17 The Australian boat finished last.

The immediate aftermath 18 When the boat crossed the finish line it was necessary to row around an artificial island to get to the boatpark pontoon and all eight rowers, including Ms Robbins, rowed to this point. There was, as Ms Foulkes put it, "a lot of emotion in the boat during that time". Amongst other things, Ms Foulkes asked herself how it was that Ms Robbins was able to row at that point and row very well and several of the crew were asking questions indicating "a sort of disbelief" about what happened. 19 The evidence is somewhat confused as to what occurred in the immediate vicinity of the pontoon. The plaintiff described the protocol which, he understood, applied to the crew when they get off the water. There is an area restricted to athletes, firstly, and then, as the team members move away, they go past an area called a "mixed zone" where the media are waiting. He said that the media director should guide crewmembers through that area and assist with any questions that might be asked at that point. Then the boat is put on the rack and the crewmembers would go and change and again go through the area reserved for the athletes and on to an area with public access. 20 Ms Foulkes said that, when the crew came into the landing area, no one else was present. The media and the public were fenced off some little distance away. This was normal. Ms Foulkes said that, by the time the boat was actually being taken off the water and stacked away, someone would usually be on the pontoon. As she recalls it, the first person who came to the pontoon arrived just as the crew was in the process of getting their oars and other items out of the boat. This was a doctor who went straight up to Sally Robbins. He "sort of put his arm around her and took her off, which triggered some anger within some of the crew, you know, saying or shouting to him, 'She's ok, she's ok, what about us?' or something along those lines". Since there was nothing physically wrong with the other crewmembers, these remarks were somewhat emotionally charged. 21 The next to come to the pontoon was the team coach, Harald Jahrling. Ms Foulkes said that she had a recollection of seeing Ms Robbins with the Media Liaison Officer, Michael Wilson, in the area where the media were standing. She said that when crewmembers went out into the main area, a number of reporters and camera crew were around. Ms Foulkes recalled that there was a conversation, of which she could remember very little, with Mr Jahrling in the boatpark. He was weeping. Ms Doyle said that she did not help get the boat up and derigged. She was crying on the pontoon and remained there for a while. She recalled Mr Jahrling, came to the pontoon "to help everyone" with the boat. She said that she was "sort of…picked up by Harald and sort of carried up to the trestles where the boat was". She said she "was in a mess". Ms Doyle said that she went over to where she knew her parents would be, in the public area, and, in doing so, passed the media pack. She said that she was standing next to Julia Wilson. As I understand Ms Doyle's evidence, one of the parents had said that the course commentator had said that there had been technical difficulties in the race and there had obviously been a seat break in number 6 (Ms Robbins' position). She said that she heard Ms Wilson talking to her parents, that she was angry but did not want Ms Robbins, as it were, to have "another excuse to get out of it". Ms Doyle said that Ms Wilson said to her parents, "That's not correct, there were only eight in the boat who were trying". Ms Doyle thought that this was overheard by an Australian television reporter who was standing close to the group covertly recording what was being said. In fact, examination of the Channel 7 report gives a quite different picture to that of Ms Doyle, who had deliberately made the statement to the reporter and was not covertly recorded at all. (It is entirely possible that other remarks critical of Ms Robbins made by Ms Wilson to her parents at about the same time could have been overheard as Ms Doyle observed and later reported and Ms Doyle has simply confused the events.) Ms Wilson in fact said to the reporters, no doubt in response to the commentator's remark, that there was no technical problem with the boat, the seat had not broken and there was nothing wrong with the other seven rowers. That there was something wrong with Ms Robbins was self evident. Ms Wilson's comment, spoken in a conversational though perhaps controlled tone, was quite reasonable, taken literally but it had an obvious potential for misconstruction (as witness Mr Chris Reason's use of it in a subsequent Channel 7 broadcast, dealt with below). 22 As Ms Robbins was leaving in the company of a team official, perhaps more than one, someone shouted out to her, "Tell the truth, Sally". The evidence does not disclose who this was, although it seems to be accepted that it was one of the crew. I think this is likely. In the circumstances this was a cruel barb. There was no reason to think that Ms Robbins would say anything but the truth. Ms Doyle said that, at about this time, Ms Jodi Winter, another member of the crew, had come out into the public area and that some reporters had started to question her. Ms Doyle thought that Ms Winter was "completely lost and stumbled along with no idea what to do" so she (Ms Doyle) ran back to the boatpark and asked Mr Wilson for help, telling him "You've got to get us out of here because Jodi is stuck and that's not good". She and Mr Wilson then went up to Ms Winter and brought her back inside the park where press were not permitted. 23 It is evident that Ms Doyle was in an extremely emotional state as a result of the events that had transpired in the race and, as I have already commented, I think there is good reason for doubting the complete reliability of her account. On the other hand, whilst I accept that the crew were upset by what had happened, there is no evidence that justifies the conclusion that they were, with the possible exception of Ms Doyle (and this but briefly), emotionally out of control or anything like it. Ms Wilson's reported statement was measured and sensible and she appeared calm. The only other comment of which there is evidence is the "tell the truth" gibe. Ms Winter did not give evidence and I do not think that I would be prepared to accept that she was incapable of handling the questions directed to her by members of the media, though I accept that that was Ms Doyle's perception at the time. Even so, it must be said that Ms Doyle showed considerable presence of mind in understanding that discussion with reporters about what had happened and the feelings of the crew about what had happened was not a sensible thing to do at that time and getting Mr Wilson to intervene. At all events, a short time later, the team, or at least most of the members, were taken back to the Hotel Athena, which is where the team was billeted. 24 Mr Jahrling, Mr Wilson, Section Manager Mr Diplock and Assistant Section Manager Mr Huggett, were officials nominated by Rowing Australia and their nominations were accepted by the AOC Selection Committee presided over by the plaintiff. Under the AOC Operational Plan these officials had specific responsibilities which covered dealing with the team and its interactions with the media. 25 In October 2004 Mr Jarhling, sent a report to Charles Turner, the Director of the NSW Institute of Sport and Andrew Dee, the CEO of Rowing Australia. (This was not a report to the AOC, for obvious reasons.) Since this report was compiled, if not contemporaneously, much closer to the events reported, it should be given considerable weight. The report contains the following chronology - "1030 crew arrives at pontoon 1030 Sally Robbins steps out of boat unassisted and walks off with team doctor - Dr Robin Yarrow 1031 HJ arrives at pontoon to talk to remaining crew members - I addressed each crew member individually for about the next 30-40 minutes 1045 crew (without Sally Robbins) de-rigs the boat 1110 HJ speaks to Sally Robbins and asked her what happened (she gives no answer). HJ asked her to stay quiet and keep away from the girls for the moment. HJ tells her that we would all meet for de-brief team function 1115 Sally Robbins leaves to meet with relatives outside, at about this time many of the other girls went outside to meet with relatives and friends. I think that during this time the media interviews with some of the girls happened 1130 HJ starts packing up rowing equipment for container packing 1200 HJ gives car keys to Monique Heinke and asks girls to depart to the hotel 1205 girls meet inside near the gate and apparently talk to Sally Robbins (I was not present so I can't comment) 1215 John Boultbee informs me about the girls meeting near gate. Sally Robbins attends interview (?) 12.30 HJ asked girls to calm down and asks them again to depart to hotel. 1300 HJ stays at course for boat loading and packing of team containers Wayne Diplock informs HJ about problems with press HJ informs Katie Foulkes again about time for debrief, KF re-informs all girls 1500 HJ returns to hotel 1830 HJ and Wayne Diplock debrief crew which turned out to be a media debrief more than anything (Sally Robbins not present - I believe that at this time she has given her second interview) 1930 HJ and Debbie Fox attend team function 2000 HJ speaks to John Coates, apologises for lack of performance of women's team John Coates told HJ that team management [ie, of Rowing Australia] would deal with press."

This chronology, amongst other things, shows that Mr Jahrling did speak to team members for an appreciable time immediately after the race. The criticism later made that they were left alone is neither true nor fair. 26 The report also refers to a number further matters of relevance, including the following - "The layout at Athens was that the boating area was effectively a compound which the media could not access. The crew could exit this area through a gate to meet their parents and loved ones after the race. There was an existing rule that even after exiting the gate the media could only approach the athletes after obtaining approval from the Section Manager and the Head Coach." 27 No permission to do this was given. As it happened, Mr Jahrling remained in the boating area packing up equipment for transport. He thinks that when the members of the crew exited the compound, the media approached them contrary to the established procedures. 28 In Mr Jahrling's view, the issue surrounding the race became a significant public controversy principally because the press were permitted to access the crew shortly after they had gotten off the water. I think it is obvious that there would have been a significant public controversy at all events but the evident anger and frustration exhibited by the crew immediately after they landed, when feelings were running at their highest, would not have been a feature. Mr Jahrling thought that the rules were not sufficiently clear in the events that occurred or were not sufficiently enforced to prevent the media from rushing the crew. There is no suggestion, however, that they had hitherto been other sufficient and obeyed. 29 It is evident that what happened to Ms Robbins took everyone by surprise and it was not predicted that some members of a crew (who had been welded into a cohesive team over many months, if not years, of training) would not only be hostile to her but also want to make that hostility evident to the media. Merely to have expressed emotional responses to losing would, no doubt, have been newsworthy but it could not reflect badly on the team or public perceptions of the team. A media scrum would not have been troubling, though it might possibly have been unpleasant. The failure to make the prediction I have mentioned could scarcely be laid at anyone's feet. It is unreasonable, bordering on the absurd, to think that someone in the plaintiff's position could be expected to micromanage arrangements with the media (that were, anyway, the responsibility of Rowing Australia) against the extremely unlikely possibility that a member or members of a team might wish publicly, and in defiance of the media rules to which they had subscribed, to express animosity towards one of their team mates and that this required greater control over the crew and the media than usual. He was entitled to think that those within the AOC and the particular sporting bodies who were responsible for managing media contact at the events were able to make appropriate arrangements to manage it. 30 In a report of mid-October 2004 Michael Tancred, the Olympic team Media Director, was critical of Mr Jahrling in several respects. I do not need to consider whether these criticisms are justified, though I should comment that Mr Tancred's personal knowledge of what happened was limited. A mild criticism was made of "AOC media people on the ground" but Mr Tancred pointed out that it was "not their job to gather up a crew and take them away. That was a job for management". (In this context, the plaintiff's evidence - not sought to be controverted - was that the "management" was that of Rowing Australia.) The report makes it clear that it was not the case that there was no preparation for dealing with the situation that developed. Mr Tancred said that he was "disappointed for rowing and the AOC because we had dealt with this type of crisis in the section manager workshops we had with…the HR experts we used prior to the games." The plaintiff had been involved as a member of the AOC executive committee in planning these workshops. Accepting Mr Tancred's statement at face value (and there is no reason not to) it appears that the possibility of a crisis developing from a team not doing as well as it hoped or was expected, was anticipated and steps were taken by the relevant AOC officials to prepare the management of the sporting bodies for such an eventuality. Mr Tancred made the following additional comments - "We all worked hard on planning for these Games. We ere prepared for security problems, heat, drugs and issues with transport, venues etc. What is extremely disappointing is that people within Rowing [Australia] were aware of a 'problem' with Sally Robbins but chose not to share that with us. At all Team Management meetings, we urged all our member sports not to keep us in the dark on issues, to make us aware of all potential problems so we could prepare but Rowing [Australia] clearly ignored that plea in regard to this matter." 31 This evidence provides strong support for the plaintiff's evidence about his knowledge of Ms Robbins' difficulties. It also shows that the AOC had taken what appear to be all reasonable steps to ensure that a situation such as that which developed in this case was appropriately controlled. The criticism of the plaintiff in respect of this matter - media interaction with the crew at the boatpark - is completely unjustified.

The selection of the Women's Eight 32 A significant undercurrent to the response of the team to what had happened in the race and probably significant to some content of the broadcasts in question concerned previous difficulties experienced by Ms Robbins in training and competition racing. 33 The actual selection process is not a direct issue in this case. However, the defendants' tendered Mr Jahrling's report (referred to above) to the Institute of Sport and Rowing Australia that dealt with this matter. Because of the criticisms, explicit and implicit, that have been made of this process in other evidence and the imputation that the plaintiff attempted to cover it up, I think it fair to set it out. What will become obvious, I think, is that there was no reason at all for the plaintiff to cover up the selection of Ms Robbins, even had he been aware of the underlying facts. Nothing in the process reflected on him, the AOC or, for that matter, Rowing Australia. 34 Mr Jahling reported - "As you are aware, selection for the 2004 Olympic Rowing Team was governed by the Rowing Australia 2003/2004 Selection Policy Handbook. I was one of three (3) selectors, the other two (2) being Mr David Yates and Ms Barbara Fenner. The initial squad of ten (10) athletes and one coxswain had been selected after the February 2004 regatta. Selection was based upon the policy that I have referred to above which is based upon the athletes' individual strengths, their performances on the ergometer, performance in small boats, single skull and coxless paid, and big boats (coxless four and the eight). All three (3) selectors agreed that we had selected the best athletes in the category. In May the final selection of the eight (8) was made based on individual performances in pairs and on the ergometer plus final trials in the eight (8). The three (3) selectors reviewed the matter once again and agreed that the best eight (8) athletes had been selected for the Olympic crew. At this point, for reasons which are obvious, it is appropriate to deal with the selection of Ms Sally Robbins."

Mr Jahrling opening observation was - "Sally Robbins has been involved in elite level rowing for some years now. It is well known that Sally has had difficulties in finishing races. This has not been a regular occurrence, in that Sally fading or losing power in her rowing has not occurred in every race but, rather, on an intermittent basis over the years. This was indeed curious because, without doubt, Sally is one of the strongest athletes in women's rowing and possesses excellent technical capabilities." 35 Mr Jahrling then went on to describe the problem as being "not of a physical nature, rather it was a mental hurdle or fear" and in some detail goes on to set out the steps he took in order to assist Ms Robbins "to compete to her potential". It is obvious that a great deal of attention was given to this problem since Ms Robbins' positive attributes were so substantial. Mr Jahrling noted that all of the selectors were well aware of Ms Robbins' difficulty in finishing some races. He commented, however, "when one considered the objective selection criteria, Sally consistently rated first or second in the boat". Mr Jahrling was of the strong opinion that Ms Robbins' appointment was fully justified despite what he described as a "subjective opinion and fear that Sally would fade at a critical time in the Olympics". He pointed out that the Board of Rowing Australia and the High Performance Commission of Rowing Australia "knew about Sally's problem and it was a matter that has been discussed with these bodies as well as being a matter for discussion among the selectors. Everybody was aware of the problem and the steps that were being taken to address that problem". Mr Jahrling concluded: "Sally was selected because she more than satisfied the selection criteria". Mr Jahrling referred in some detail to other earlier races and the steps that he took to improve the team's performance. 36 Dealing with the Athens' final, Mr Jahrling stated a number of concerns about how the team was performing but focused on Ms Robbins (that was, after all, the purpose of the report). He said that as part of the preparation for the final, he needed to address the issue both with other members of the crew and with Sally. He noted that her fading had happened before, and "the rest of the crew was very concerned about it". He went to state - "8. We analysed the race and plans on the final preparation. I separately met with Sally Robbins, Julia Wilson and Katie Foulkes, when we talked to Robbins about her strategies of dealing and overcoming her fear for the last part of the race. It was really more of a reminder of what she needed to do to concentrate on her rowing instead of worrying about failure. Sally assured me and other members of the crew that she was working hard to deal with the problem. 9. The crew made some excellent progress on the water over the next days. Peak speed increased dramatically. The starts became very fast. We rowed some very fast last 250m trying to sprint to the line. At this time the Eight rowed the best I have seen them since we started. 10. From this point it looked like we could fight with Germany, Holland and China for the Bronze medal. I didn't really think that the USA and Romania were within our reach. My concern was that Robbins would be able to carry through the undertakings that she had made to me and the crew. She rowed well and hard but her body language and facial expressions suggested that she was struggling or was at least feeling the pressure of the Olympic final. I worked with her repeatedly every. She had the full support of all her crew mates. Everybody tried very hard to give her confidence."

Mr Jahrling then dealt with the race itself and what he gathered about what had occurred, which I have set out above. 37 Ms Foulkes' evidence was that in a race in 2003, Ms Robbins had "backed off considerably in power and technique" and this had also happened in races in Lucerne in 2004, a couple of months before Athens, and Amsterdam (I think also in 2004). These matters were, not surprisingly, raised with the coach and were the subject of discussions in the team including, of course, Ms Robbins. The coach said that this kind of problem was something which could be worked through and that there had been consideration of replacing Ms Robbins prior to the commencement of the Games by discussion with the selectors. Ms Foulkes said that a great deal of time and energy in training was devoted to the issue of what was called Ms Robbins' "underperforming". This issue was also mentioned at a press conference involving the plaintiff and the team that occurred on the morning of Tuesday, 24 August. I will discuss that conference in due course. 38 In this context it is, I think, worth making the following observations, though of course, as an ordinary layperson. First, it seems obvious that each competitor in any particular sport has particular strengths and, potentially, particular weaknesses. That Ms Robbins had a difficulty, on occasion, in completing a course when competing was plainly known to the team members, the coaches and, necessarily the selectors. It can be inferred - and the evidence to which I shall come in due course demonstrates - that it was decided by those responsible for nominating Ms Robbins to the Women's Eight team that her strengths were such as to justify selection. Furthermore, it is patently obvious that the plaintiff was not involved in this selection process in any way. Nor was there the slightest evidence that suggested he was aware until after the race of the particular difficulties that Ms Robbins had occasionally demonstrated during races. Even if he was aware of the occasions to which I have referred, it would not have been proper for him to impose his own view on Ms Robbins' suitability for Olympic competition on the selectors who had the advantage of far greater information about Ms Robbins' suitability. I should also say that the supposition that Ms Robbins' exercised some kind of voluntary decision not to continue to row during the Olympic final strikes me as quite unreasonable. I am no sportsperson but it seems to me to offend the most basic commonsense to think other than that she was attempting, with her team mates, to win the race. It may be that she misjudged one or other aspect of the race and her performance but the notion that she simply decided - as though she had a choice - to stop competing is, to my mind, plainly absurd.

The afternoon and evening of 22 August 39 In the evening of 22 August there was a function at the hotel where the rowers were staying, involving rowing officials and Australian Olympic team officials, parents and friends. Ms Robbins was present and appeared to be in the constant company of one or more coaches or staff associated with the team management. Team members, it seems, were left essentially to their own devices. There is no evidence that suggests that this was inappropriate. They had worked as a team for a long period. They understood each other well. There is nothing to suggest that they were incapable of discussing what happened and dealing with their feelings. Naturally, they needed time and space for this. 40 Before continuing the narrative from the points of view of Ms Foulkes and Ms Doyle, it is useful to go back a step and give the plaintiff's account to this point. I interpolate that I found the plaintiff to be a careful, truthful and reliable witness and I am confident that his evidence on all the important issues can be accepted. 41 The plaintiff watched the rowing final, first on television and then outside. He said that at what he thought was 400m or 500m from the finish he saw something had happened to Ms Robbins. She was lying down, apparently on the feet of the woman behind her and had stopped rowing. After the boat crossed the line, he noticed that Ms Robbins sat up again. He saw the boat rowed out of sight to the boatpark. The plaintiff then watched the Men's Eight final and returned, perhaps about midday, immediately to the Olympic Village to do some work. At about 6pm, he left the Village to return to the Hotel Athena to attend the party involving the rowers and their parents and friends. On his way he received a telephone call on his mobile phone. It was either from Mr Tancred or Ms Julia Dunstone (the Olympic team Assistant Media Director). The plaintiff was told that members of the crew had been publicly critical of Sally Robbins and that Channel 7 had offered Ms Robbins and her mother an apartment in Athens (so Ms Robbins could leave the team and not have to return to the Village) in return for an exclusive interview. 42 When the plaintiff arrived at the hotel, he met Mr Huggett and said to him - "Look, Peter, I've heard there's been this criticism [of Sally Robbins, as I understand the plaintiff's evidence]. Can you please remind the girls of their obligations not to talk about other's performance under the team media guidelines and I'd like to talk to Sally." 43 Shortly after this conversation, the plaintiff was asked some questions about his reaction to what had happened by members of the Australian media. He told them what had happened as he saw it, commenting that Ms Robbins had appeared to physically hit the wall. He recalled making a comment to the effect, "she may have been working harder than the others". The plaintiff said that he did not think that this observation reflected badly on the other rowers because it was not a criticism of them. If Ms Robbins was working harder at a different stage of the race than the others were, that may have been because she had not followed the race plan. It seems to me that this is commonsense. If it were the fact that Ms Robbins collapsed because she had rowed too hard, that would, I think, demonstrate a misjudgment on her part. I do not think that any fair-minded person would think that the plaintiff was being critical of the other team members. A reporter put it to him that the team members had been critical of Ms Robbins and he was asked if he thought this was "un-Australian". The plaintiff said, "Yes, it is un-Australian to bag your mates". This unfortunate comment has assumed some importance - rather more than its true significance - and I shall return to it in due course. (It is somewhat uncertain whether the plaintiff merely adopted what was put to him by a reporter or himself used the phrase but I do not think this matters.) 44 A little time after the impromptu press interview, Ms Robbins was located and sat down to speak with the plaintiff. The plaintiff told her that he had heard of the Channel 7 offer, that she should understand that if she did not return to the Village, she would lose her accreditation and could not participate in the closing ceremony or join the rest of the team to see other events. He also said that it would be likely to further alienate her relationship with the team. Ms Robbins agreed to return to the Village. 45 I think it was after this conversation with the plaintiff (the evidence is unclear about the actual time), Ms Robbins, with her mother, was interviewed by Mr Chris Reason of Channel 7. The ultimate broadcast included a number of items with Ms Robbins' interview as a sort of thread and included the following - Presenter: Australian Olympic Chief, John Coates, has bought into the Sally Robbins rowing controversy accusing her team mates of being un-Australian. He says their criticism of Robbins who stopped rowing in yesterday's women's eights final is unfair and breaches Olympic behaviour. … … "Commentator (of the race): Sally Robbins, I'm not sure what's happened. Looks like she's broken her seat or broken some equipment. Reason: She hadn't. Sally had quite simply hit the wall. Her mother was witness to every agonising second of it. As the reality of that moment hit, hearts sank and heads fell into hands. It is what happened next that struck hardest. In an exclusive interview with Seven News, Sally told how her team mates turned on her. Robbins: I had some pretty hard words thrown at me. I had some pretty tough things to take. Reason: Until today, Sally Robbins thought the mean machine only exists in a swimming squad. Robbins: I haven't really experienced anything like that before. Reason: She copped a barrage of verbal abuse that ended in a physical threat. Reason: Someone told me after the race that they had heard that they had threatened to throw you off the boat after that finish line. Is that correct? Robbins: Yeah they did. Reason: How did you cope? What did you say back? Robbins: I didn't say anything back because I didn't know what to say. I was stunned myself. Reason: So team mates were livid, their intense disappointment had turned into deep resentment. Julia Wilson: I just want to stress it was not a technical problem out there. No seat broke, there was nothing wrong with the boat, there was nothing wrong with the seven other athletes around me. Reason: There were even catcalls as Sally was taken for interviews. Rowers? Tell the truth Sally, don't lie. Reason: What do you think of those other girls? Marian Robbins (Sally's mother): That is not for me to judge. Reason: Sally confesses she's collapsed mid-race before. Robbins: Suddenly fatigue sets in and I just can't move, you know. It's a feeling of paralysis where you just hit the wall. Reason: But she believes she can learn to control it and will race again. Her mum thinks so too. Marian Robbins: You're special darling. Reason: As soon as she recovers from this. (Sally Robbins hugging her mother and crying)". 46 The source of the announcer's information about the statement attributed to the plaintiff is not clear. The plaintiff denies that he said that team criticism of Ms Robbins was unfair and breached Olympic behaviour standards. Certainly public criticism by a crew member was such a breach and he did say, in effect, that such criticism was "un-Australian". In a release by AAP, Olympic officials were quoted as denying that Ms Robbins "gave up the race", stated that the coach, Mr Jahrling, was "said to be furious" that she stopped rowing before the race ended, quoted Ms Robbins as saying "she rowed her guts out in the first 1500 and didn't have anything left" and quoted the plaintiff as saying that Ms Robbins "is spending time with her parents in Athens" and as denying "the rower gave up, saying she collapsed from sheer exhaustion". 47 Ms Doyle recalled that, shortly before the evening function there was a meeting - I think involving the crew, (with the exception probably of Ms Robbins) Wayne Diplock and Mr Jahrling, at which crewmembers were told not to comment to the media. I think this is the meeting described by Mr Jahrling as a "debriefing" that was more of a "media debriefing". It may have been that this change of emphasis arose from the plaintiff's request to Mr Huggett that the team be reminded of the terms of the media guidelines. By this stage, it was known by the team that Ms Robbins had spoken to the media about her performance saying in effect, that she was exhausted and had "given 110 per cent". 48 The plaintiff stayed at the function and, in due course, returned to the Olympic Village.

The morning and afternoon of 23 August 49 According to Ms Doyle, it was on the morning of 23 August, that she spoke to Mr Peter Wilkins of the ABC. (It does not matter, but I wonder whether this interview was not conducted on the previous evening, the 22nd because of the time that the plaintiff was informed of it - see below.) At first, their conversation was off the record but, at the end, Ms Doyle put it on the record. Ms Doyle spoke about her feelings about the race. What she said was recorded. That recording was broadcast as part of the Lateline programme on 23 August, under the headline "Former Olympic rower discusses Sally Robbins' collapse", which comprised a discussion between Tony Jones and Olympics' reporter, Peter Wilkins, about what had happened. Also appearing on the programme was Ms Rachel Kinninmonth, who had rowed as one of the Australian women's eight team in the 2000 Olympics. Mr Wilkins introduced Ms Doyle's contribution - "There are two sides to every story, of course, as there is to this story. There is a sense of betrayal, that they took a very strong rower, a powerful rower, under their wing and she didn't quite come up after showing some previous form. But also, Sally Robbins can feel betrayed by the crew who in her darkest hour shunned her. Both of those episodes are unfortunate. Ky Doyle defended the crew's position in the immediate aftermath of the race because they were only hearing one side of the story and that was Sally Robbins' side of the story when she said she was giving 110 %, which hit a nerve with them. She defended it on another level too, defended those feelings of anger, Kyeema Doyle, by saying they should be angry because the whole episode - they had embraced a rower, taken a rower into their inner dreams and goals with some previous form and she feels that should have been picked up." Doyle: I do believe we should be angry. We should be angry at ourselves that we let this niggle carry on for so long. I think we should be angry at coaches for not seeing this earlier on, we should be angry at selection processes and the hierarchy above this. There is not one person you can point the finger at. It is extremely disappointing. What do we do now? Here we are at the Olympics. Our moment is gone. I believe we were the most ready out of everyone and we wanted it the most. It's just unfortunate the trust we put into other people and the commitment that we had shown each other didn't happen, like it didn't come through, like the promises we made to each other were broken." 50 Ms Doyle's decision to allow her immediate and somewhat raw emotional response to the situation to be published was, as she said, the outcome of the emotions of anger, frustration and disappointment. In this context, the absolute ban in the media guidelines of making disparaging remarks about other team members can be seen as a very sensible rule indeed. It is a pity that it was not obeyed. It seems it did not occur to Ms Doyle at the time. That she was, however, in breach, and in serious breach of it, cannot be gainsaid. Even now, Ms Doyle appears to believe she was justified. 51 On 23 August, the plaintiff had gone to the beach volleyball venue, I think sometime in the afternoon. There, he was told on the telephone by members of the media office that Ms Doyle had given an interview to Lateline in which some disparaging remarks had been made about Ms Robbins and members of the media asked him what he was going to do about it. The plaintiff unsuccessfully attempted to contact the team Manager, Wayne Diplock and then spoke to Peter Huggett, the Assistant Manager. The plaintiff asked him where the crew members were and was told they had moved back into the Village but then gone off into town to enjoy themselves. The plaintiff told Mr Huggett, "Look, would you contact them and ask them to come back into the Village by 8 o'clock tonight and then I'd like to see them at 7.30 in tomorrow morning". He also told Mr Huggett to tell the team that they were being kept in the village because they had spoken to the media despite the earlier reminder about the media rules. 52 The plaintiff conceded that, by treating the team as a whole in respect of their returning to and remaining at the village, he had disciplined them all for what it appears only two of them had done. He said that the problem was that the team members were, as he understood it, downtown where members of the media also were and he was unable at that time to be more specific about the two particular members - Ms Wilson and Ms Doyle - who had broken the rule. The plaintiff agreed that his direction was likely to hurt the team members' feelings but denied that his request returning to and remaining in the village until his morning meeting with them should be regarded as irksome. He said that, at all events, they would have been coming back to sleep in the village that night so they were, in effect, being required to stay in the village only for three or four more hours than otherwise would have been the case. The plaintiff agreed that he intended to discipline the team to the extent that they were required to return to the village but, as I understand it, his preponderant motive was to have the opportunity to speak to the team before things developed any further and this could not, as a practical matter, be done before the morning. It would also give them an opportunity to reflect on the situation; it was often the case with mature teams, such as the rowing team, that these issues should be resolved amongst themselves and thus they needed to be together. 53 The plaintiff, looking back at what happened, said that he thought that the manager, the head coach and the media liaison officer, when the rowers got off the water, should have immediately moved them through the mixed zone and into the privacy of their own change rooms where they could have a talk about what had happened and what should then be done. This would have giving the crew an opportunity to collect themselves and, I think, get past their immediate emotional response to what had happened. 54 In the early afternoon of 23 August, the team had moved from their temporary accommodation back into the Olympic Village in Athens. It appears that the accommodation arrangements at the Village involved the entire women's eight team being in an apartment together for the week. There was no space problem with this arrangement but, in the circumstances, Ms Foulkes did not think that it was a good idea. The problem, I think, was that there were strong feelings about what had happened in the race and that having all team members in close proximity could make for a difficult situation. This is powerful evidence of the strength of the feelings in the team about Ms Robbins. 55 Ms Foulkes approached Mr Huggett about the matter. When the matter was raised with him he said, something to the effect, "You are locked in the village tonight" and said this was "the order of John Coates". When asked whether the entire crew were locked in, he said something to the effect of "yes, with the exception of Sally". When asked to explain this ruling, Mr Huggett said that "it was to do with the fact that [you have] been speaking to the media during the day". She said that she had not realised that anyone had spoken to the media. She saw this as a punishment and questioned Mr Huggett about it. He simply said, according to Ms Foulkes, that it was the order of Mr Coates and that there was a meeting with him in the morning. When asked what the meeting was about, Mr Huggett said, "It was to discuss whether or not you will be sent home on a plane first thing tomorrow morning". Ms Foulkes, she says, was so taken aback by this instruction that she did not really enter into any discussion about the matter although Mr Huggett was, at all events, not very informative, citing Mr Coates' authority for what he had said. 56 It is obvious from what I have already said that several of Mr Huggett's statements to Ms Foulkes did not express what the plaintiff told him. The plaintiff had not used the expression "locked in". Nor had the plaintiff excluded Ms Robbins from the request. It may be said also that Mr Huggett did not convey the plaintiff's request that the team should be back by 8pm, which would have given them some time in town, though Ms Foulkes recollection of being "locked in tonight" is consistent with the plaintiff's timeframe. Nor had the plaintiff said what the subject of the morning meeting was to be, although it was clear enough that it was to deal with the media publicity amongst other possible relevant issues. The plaintiff had not considered sending the crew home and certainly had not suggested to Mr Huggett that this was being considered, let alone that this was one of the matters to be discussed. This may have been Mr Huggett's belief about events but he should have made it clear that this information did not come from the plaintiff. 57 Overall, Mr Huggett's unnecessarily peremptory language put the plaintiff in a significantly false position so far as the women were concerned and transformed a reasonable, moderately expressed request into an authoritarian threat. I mention this at this point since much of the defendants' case focused on what was contended to be the unfairness of the plaintiff's request and the impression that it made on the minds of some of the crew members. This contention ignores, however, the transformation of the plaintiff's request that I have described. Moreover, it was a transformation of which the plaintiff, quite reasonably, was unaware. The plaintiff's message was simple, short and polite. He had no reason to expect that Mr Huggett would do any more that relay that message, still less that he would attribute to him matters which were not the fact and to which he had not referred. It is nonsense to suppose that the plaintiff, with his manifold responsibilities, needed to cross question Mr Huggett about what he was to convey to the team and ensure that he did not add any elaboration of his own, let alone attribute that elaboration wrongly to him. 58 It was not surprising that Mr Huggett's message concerned Ms Foulkes very much or that, when she shortly after relayed it to the rest of the crew (but not Monique Heinke who was not at the village at the time), they responded emotionally, some angrily, seeing it as some sort of punishment and not understanding what they had done wrong. I think it is reasonable to suppose that a number of them felt embarrassed and humiliated. How long this lasted I cannot say but I would have thought that, after some reflection, the reasonableness of the plaintiff's direction would have been appreciated, if disliked. Part of the problem was that there had been unfortunately added to it the threat of being peremptorily sent home and this must have added considerably to their resentment. 59 Perhaps an hour or so after the discussion with Mr Huggett, later in the afternoon, a number of the crew went for a walk to try to calm down and the mobile phones of three or four of them started ringing. Ms Foulkes remembered Ms Doyle talking to a reporter but did not recall specific details of what she said. 60 Ms Foulkes thought that the team needed some help, especially because there were some younger crew members who might be tempted to talk to reporters if the reporter used the device of being a sympathetic listener. The group discussed the issue and, I think, agreed that it was necessary to be careful. Ms Foulkes said that, up to this point, she had not recalled the media conditions in the agreement but that, at all events they reflected her personal view about the desirability about speaking to the media and she would not anyway make a statement that was critical of another team member. 61 About ten minutes after Ms Foulkes overheard Ms Doyle's conversation with the reporter she decided that she would call the plaintiff and ask for help. He did not answer his mobile telephone so she left a message on his voicemail to the effect, "We need help. Things are out of control". This was about mid-afternoon. So far as the plaintiff's recollection goes, he received a message that Ms Foulkes had telephoned at 4.00pm. At one point in his evidence he said there was no text but then said that the message from Foulkes was to the effect that, "I really need some advice about the race and as to what is happening to us and how to deal with it". He recalls only one message. The plaintiff said that, although he wrote down the fact that he received a call from Katie Foulkes at 4pm, he did not return it because by that time he knew that he was meeting the team at 7.30 the following morning and regarded that as the appropriate opportunity to give this advice and information. I gather that the plaintiff also thought that he preferred to deal with the team members as a group. Furthermore, he was busy with other responsibilities. 62 Following the call to the plaintiff's telephone, Ms Foulkes went to see Mr Huggett again in the team manager's room. By then she was in tears, which was out of character for her. She said to Mr Huggett words to the effect that the team needed some help, that things were getting out of control and that the media had starting calling their mobile phones. Mr Huggett's response was not sympathetic. She said he replied, "You girls should have been nicer to Sally". Ms Foulkes was confused by this response, indeed dumbfounded, and asked Mr Huggett what he meant, in what respect had the team not been nice to her. She does not recall what his response was except to remember that he was not forthcoming with any help. She recalled that at this time Wayne Diplock, the Team Manager, was somewhere in the vicinity. Team members meet with Mr Eales 63 Mr Eales was a rugby union player, a former captain of the Wallabies and a highly respected athlete. He had been assigned the role of athlete liaison officer at the 2004 Athens Olympics. There were several such officers. Mr Eales was assigned to a number of teams, including the rowing teams. He had been present at the rowing venue for the final of women's eight and observed most of the race. He did not actually see Ms Robbins collapse in the boat but did notice shortly after that she was lying down. After the race, he caught a bus back to the Olympic Village. On the bus were both administration and competitor members of the Australian team, but not the rowers. Julie Dunstone was there and mentioned that, when the women's eight boat had returned, there were members of the media around and, as I gather, some comments had been made in the heat of the moment. Ms Dunstone did not describe with any particularity what had occurred. Sometime after Mr Eales returned to the Olympic Village he telephoned the plaintiff and said that, if there was anything he could do to help in is role as an athlete liaison officer, to let him know. Mr Coates thanked him for his offer but did not immediately take him up on it. No criticism was directed at the plaintiff by the defendants about this and I therefore to not need to say more than there was no reason for the plaintiff at this point to think that anything other than normal support was necessary. 64 On the following day, 23 August, Vicky Roberts, the captain of the women's rowing team and a member of the women's eight crew, telephoned Mr Eales and said that she would like to have a chat to him about a way forward. The evidence does not disclose when this occurred, but I assume it was some time after the team returned to the Village. Mr Eales was aware that there was publicity back in Australia concerning the women's eight final, some in favour of Ms Robbins and some on the side of the crew. He told Ms Roberts that he was very happy to have a chat but that he was at that particular time watching other events to which he was committed and he would not be back in the Village until about 10pm. They arranged to meet at that time. Mr Eales then telephoned the plaintiff and said to him, in substance, that he was meeting with the women's rowing eight that evening and would speak to him afterwards. 65 Mr Eales met with Ms Roberts, Ms Foulkes and Ms Wilson in one of the meeting rooms at the Village at about 10pm. By the time he came to give evidence he did not recall more than the thrust of the conversation. Mr Eales said that the women were "very uncomfortable about the circumstances they were in at that stage and…the pressure that they were under from the media". He said that he gathered that "they were scared of the situation that they were in" which was unfamiliar to them and "wanted help with the way to move forward…from a situation where they had so much hype…surrounding their situation". He said there was some anger, which he described as "general" but that it was not "really" directed towards Ms Robbins "in a hostile way". He said that they mentioned that Ms Robbins was at the centre of the issue but could not recall anything specific about this. However, he was emphatic that they did not say anything critical of Ms Robbins. Mr Eales said that his response was, in substance, to suggest that they should move forward and that this could be done negatively or towards "healing the situation". Mr Eales told them that it was unfortunate that things had reached the present point, where there was "uncontrolled speaking" but added, "It is going to be important that something is said to the press going forward". So, at the end of the discussion, he suggested that to move the matter forward it was necessary to speak with Ms Robbins as well and told the women that he was happy to talk with her in their presence or else talk to her alone. They said that they would prefer Mr Eales to speak with her alone. This is what then happened. Mr. Eales said that, at this time, Ms Robbins was "very, very upset, very scared, in an environment that she had never experienced before and never anticipated experiencing". He said that he tried to get an understanding from her as to what happened and told her that the other team members "were going to need to know…and that [she] would need to be able to have some explanation for that". He told her this because he had gathered from the other three women that "they wanted Ms Robbins to explain what had happened". Ms Robbins said that she understood this need. The conversation took about twenty minutes or so and, by then, Ms Robbins had settled down. 66 Mr Eales then called the three other team members back into the room and reiterated the point that he had already made that the matter "could go towards healing or it could go towards maintaining animosity". It is not clear from Mr Eales' evidence whether he had learned of animosity amongst the team from the three women he had first spoken to or from Ms Robbins or perhaps both. However that may be, their response to these possibilities was that "they absolutely wanted to head towards healing, they wanted to be seen as a united group moving forward but they needed an explanation from Sally before being able to do that". Mr Eales said that Ms Robbins then gave an explanation. At the end of the meeting, Mr Eales repeated what had already been a theme of the meeting, that at some time there would have to be an explanation to the public, through the media of course, for what had happened, I take it not only by Ms Robbins but also the team and that an explanation would have to be made to the plaintiff because, as head of the team, he deserved an explanation. It is evident that that this was agreed. It was also agreed that they would meet with Mr Eales in the morning the meeting with the plaintiff and that this meeting should involve the whole team. I think it is significant that the women did not raise with Mr Eales any issue about being required to stay in the village that night until they spoke with the plaintiff in the morning. This suggests that this was not, by that time, seen by them as an unreasonable direction. 67 Ms Foulkes was less satisfied with the meeting than Mr Eales thought, largely because of undercurrents of which he was unaware. As Ms Foulkes described it, by the time of the meeting with Mr Eales the situation was that there was a great deal of speculation by team members about the possible response of the AOC or team management to what had occurred, not so much in the race but what some team members had done after the race. Ms Foulkes recalled that there was a preliminary agreement that the race itself would not be discussed since what had happened was not going to be shortly resolved. There is very little detail in Ms Foulkes' evidence about what had been done by team members but it is clear that there was a great deal of media speculation about the attitude of the team to Ms Robbins and other suggestions that the management was considering returning the team to Australia overnight. Ms Foulkes thought that it would be useful for Ms Robbins to communicate to the public what had happened in the race, that this had happened before and that the team had been very supportive of her through training and into the Olympic competition. She also wanted Ms Robbins to say that her problem was a psychological rather than a physical one. Ms Foulkes said that stopping for physical causes seemed to be more out of a rower's control than stopping for psychological reasons and that therefore the latter cause seems to let the team down in a way that is not the case with a physical difficulty. At all events, plainly enough some at least of the team thought it was important that Ms Robbins should acknowledge that she had a psychological rather than a physical problem. (Ms Foulkes and some other members of the crew had thought that this problem might have led to her having been stood down from the team. Indeed, Ms Foulkes and the coach had discussed the matter for some time and, during the week of the Olympics, whether Ms Robbins should step down. I discuss later how this matter developed, since the defendants' appear to place some importance on it.) It will be recalled that it was decided that Ms Robbins should come in to talk with Mr Eales and the others left the room. It was then that that Ms Foulkes saw Ms Robbins' interview with Channel 7 to which I have already referred. She was so upset by it that she did not feel she wished to speak to Ms Robbins at that time. Thus Ms Roberts collected Ms Robbins and brought her to the room. 68 As Ms Foulkes recalled it, the evening meeting then broke up with not much being achieved except that it was understood that there would be a public communication of Ms Robbins' situation. It was agreed that there should be another meeting the following morning before that which had been arranged with the plaintiff. Some time after the evening meeting with Mr Eales, Ms Foulkes received a message from a friend that the plaintiff had said the team was un-Australian. Ms Foulkes was very upset and indeed, physically sick. 69 I accept that Ms Foulkes' evidence is her best and honest recollection of the meeting with Mr Eales. However, I do not accept her judgment about its significance. At the press conference on the morning of 24 August, she said (at a time when the events were still fresh, in contrast to when she gave evidence) - "…Fortunately we've had John Eales step in and give us some great guidance to be able to sit down as a group and again resolve as a group these issues and to be able to come forth and speak to you all as a group which I think is fantastic and again a sign of our team of how strong we are…. [Later on the following exchange occurred -] Q: Katie you said before that you felt isolated from the rest of the team. Is there an example where someone from outside the rowing fraternities had something to say about the incident, maybe inside the village? Katie? Foulkes: No, no, no nothing, nothing specific like that. I think maybe bringing it back to the question before of um how we became united again. All it took for someone, in the case of John to help us out and sit us down in a room and it literally took a couple of hours late last night, and that was more the concept. We just needed a bit a guidance, we, we were very emotional and once someone could assist with that we were right on track." 70 Even accepting Ms Foulkes present view accurately described her feelings at the time, objectively the meeting was very worthwhile. It was a positive step towards dealing in a constructive way with the issues that had arisen concerning both the media and, just as important, the unhappiness and animosity amongst the team. A significant catalyst for this occurring was the step taken by the plaintiff to require the crew to return to the Village. I do not suggest that he foresaw quite what happened but he certainly expected that being together would engender some reflection about what was happening and hopefully some process towards resolution. In this respect, I think that that the good sense of the plaintiff's intervention was entirely vindicated, for all that it may have given rise to some resentment in the crew, a response that might well have not occurred at all events had Mr Huggett spoken more moderately. It is also worth mentioning, I think, that Mr Eales' involvement at Ms Roberts' invitation was exactly the kind of role he was there to perform and vindicates the decision of those responsible, no doubt the AOC, that someone like Mr Eales should be available to help the athletes with problems that might arise. 71 Following his meeting, Mr Eales reported to Mr Coates, going to his room in the administration section at about midnight. He reported that the women's crew had been talking about what had happened and, although no conclusions had been arrived at, it was planned to meet again in the morning and Mr Eales would report to him again after that meeting. The plaintiff's account is somewhat more detailed (see below). 72 As planned, Mr Eales again met with the rowers on the morning of Tuesday, 24 August 2004. All the crew were present except for Monique Heinke. (Her absence was explicable and is not relevant.) He was surprised to see that the women were in their full Olympic uniform, obviously a matter of some significance. He briefly repeated to the whole team what he had said at the previous meeting, the essence of which was, as he saw it, "to work out a way forward". Ms Robbins then spoke to the team and described what had happened to her. A number of the crew wanted Ms Robbins to say that her problem was not a physical one and that she should say that publicly and also that she should say that she had had this problem before. Mr Eales did not recall that any criticisms were made of her. Several of the crew aired their feelings about what had happened and raised various matters (which Mr Eales did not detail) and then, as Mr Eales put it, "We spoke about what was the way forward". In dealing with this aspect, Mr Eales said that Ms Robbins and probably one or two other crewmembers would need to meet the press. However, the response of the team was that everyone should be present. Mr Eales added the point, obviously agreeing with this approach, that what was to be said, "needs to come from the heart" and he counselled against reading a statement. It was also agreed that there was a need to explain to the plaintiff - as well as to the media - what had occurred. So far as the plaintiff is concerned, Mr Eales said that he was entitled to have from the team an explanation both as to what had happened in the race and their conduct following the race. 73 It is obvious that the team had already moved forward substantially from the situation of the previous 48 hours. No doubt individuals still had some issues outstanding and, perhaps strong feelings about them. However, the most obvious and very positive feature about what was now happening was that the crew were acting as a team. The other very important element of the situation is that this occurred, essentially, out of their own personal resources of good sense and maturity, aided somewhat - I think by way of articulating what they would eventually have arrived at themselves - by Mr Eales' helpful involvement. 74 So it was that, when the plaintiff attended the meeting, he met a team and not a number of feuding individuals. They had already decided what they wanted to do. Ms Foulkes spoke first on behalf of the team and others then raised particular matters. Mr Eales was not able to recall, when he gave evidence, precisely what was said, but did retain a general recollection of the meeting, in substance that the crew "wanted to move forward" and wished to explain to the public what had happened and for this purpose to have a press conference. He said that there was no hostility expressed towards Ms Robbins but she was expected to explain what had happened. He said that no one mentioned in the meeting of Monday night that what had happened to Sally Robbins during the final had happened before. During the meeting one or other crewmember mentioned that they had not had any experience in dealing with the press in the circumstances and asked what should be done. The plaintiff said that he would arrange for Mr Hamill to speak to the crewmembers about the conference and Mr Hamill came into the meeting shortly after for that purpose. He did not deal with the issues that were to be raised but answered questions about dealing with the press generally. Amongst other things, the team decided that Ms Foulkes would speak first, then Ms Robbins and then Ms Wilson and then they would all be available to answer questions from the media. Mr Eales stated that neither he nor the plaintiff told the team what they should or should not say at the impending press conference. 75 Ms Foulkes said that she approached the morning meeting with Mr Coates in an extremely nervous state in the sense that the team was perceived as having done something very wrong to be called un-Australian and, as she believed, was about to be sent home. Ms Foulkes had spoken to all the team members (perhaps not Ms Robbins) to make sure that it was agreed that the meeting with the plaintiff was not about the race as such but "it was about coming together and making sure that our Olympics didn't end there and then". It was Ms Foulkes who asked the team to attend the meeting in uniform. Amongst other things, the crew captain, Ms Wilson, said that she wanted to apologise to the plaintiff for speaking to the media and she apologised to the team as well. Ms Foulkes said that, as she understood it, the main reason that the team had for wanting Ms Robbins to say that she had stopped rowing before, that this was due to psychological and not physical reasons, and that she had been supported by the team in working through the problem was that "the public was seeing this poor young thing that had just pushed too hard at the beginning of a race and that we had been awful to her". In part, this response arose from the interview which Ms Robbins herself gave, to which I have referred, when she was in tears and suggested, Ms Foulkes said, that the team (as distinct from a particular team member) had threatened to throw her out of the boat and this made the team look bad. Ms Foulkes said that a couple of her crewmates who were very good friends had become very distressed about the fact that they seemed to be being portrayed in the media as having acted in a nasty way. Ms Foulkes said that she had not herself seen this but she was reacting to what her friends had communicated. Ms Foulkes said speaking for herself, but I think it likely to be true of the other team members, that they wanted an end to the unfavourable publicity that the team had been apparently receiving in Australia: they wanted to show the team as united once more. 76 When the meeting with the plaintiff commenced, Ms Foulkes recalled Mr Eales making some preliminary remarks summarising the discussions so far, when the plaintiff interrupted apologising for his actions, implicitly for the un-Australian comment and saying that he had acted more unprofessionally than had the team members. Ms Foulkes then raised with the plaintiff the three points to which I have adverted. She did not raise anything about going home because, I think, she thought that the situation had moved along somewhat and had become much less confrontational, especially having regard to the plaintiff's apology. The team had already agreed that there would be no negative comment made by members about another member of the team. Ms Foulkes said this followed from the media agreement. That may be but it was necessarily implicit in the agreement to show a united front. 77 Ms Foulkes said that most of the team members did not speak. Most of them did not wish to do so because it was agreed that only the three points should be communicated. There was a concern that, if a general discussion ensued, it would have been emotional and, as I understand her evidence, not useful. Ms Foulkes did not recall whose idea the press conference was, although by the end of the meeting it was clear there was going to be a press conference. Nor did Ms Foulkes recall whether the plaintiff mentioned anything about the media rules, although she thought it would have been mentioned. Ms Foulkes did not feel that the media conference was an opportunity to speak to the Australian media on what had happened in the race. She was hoping that Ms Robbins would do that. She understood that she could not talk about what had happened in the race since to do so would have been to comment on someone else's performance, contrary to the media rules. Indeed, Ms Foulkes, as one of the spokespersons for the team for the purpose of the press conference, said that the main thing she wished to make clear was that the team had been reunited. 78 As far as the plaintiff's evidence about these events goes, I have already mentioned that he was informed by Mr Eales of Ms Foulkes' request for a meeting and immediately agreed to that course. He said that Mr Eales told him that the outcome of the meeting was, in substance, that "they had started this as a team together and they wanted to finish it together and they wanted to put that message across". The plaintiff said that he told the crew at the 7.30 meeting at the outset, in substance, that he had called the team back to the Village and wanted to see them because, despite being reminded by team management about the media guidelines prohibiting criticism of fellow team members, there had been another interview in which one of the crew (he may have named Ms Doyle) had done this. He then added that he should congratulate them, that they had handled matters much more professionally than he had by coming to see him in uniform and he apologised for saying things which he should not have said - plainly enough, a reference to the "unAustralian" comment. 79 The plaintiff said that Ms Foulkes led the following discussion. She said, in substance, that the team would like the opportunity to present to the media the fact that the campaign was started as a team and they wanted to finish it as a team. The plaintiff asked if the team wanted him to make that statement on their behalf at the usual media conference or would one or two of the members want to be present. The response was that the team would all like to go to the conference and this was why they were dressed in their uniforms. The plaintiff said that he told the team that he had a press conference at 9am, that he would conduct that conference and inform the media that there would be another conference at 10am for the team to attend. The plaintiff asked who was to speak on the team's behalf. It was agreed that the speakers would be Ms Foulkes, Ms Robbins and Ms Wilson. What they would say was not discussed except, I take it, in the most general terms, in the sense that the thrust of the press conference was that the team started together and finished together. The plaintiff said that he had learned earlier that morning that Ms Robbins had failed to finish races before. The rowers told him at the meeting that they had been working on this and that is one of the matters they wanted to talk about. The plaintiff said that he did not discuss with the team any particular questions that the media might ask. It appears from what the plaintiff said at the conference that he left the meeting unequivocally assured that there would be no more criticism of team members. 80 The plaintiff left the meeting and went down to the main press centre to host a press conference at 9am with members of the softball team and the men's pair rowing team. The team members then arrived with Mr Eales and spent a little time together in a room before they went out to meet the media at 10am. The plaintiff could recall only that at this brief meeting there was a discussion about the order in which the three team members were to speak but no detail was gone into of what they were going to say. 81 The plaintiff categorically denied at any time prior to the press conference telling any of the team members what to say at the press conference. I accept this evidence. I think it is patently true. 82 Speaking generally, Ms Foulkes said that she had felt feel bullied and pointed to the threat about being sent home and being locked in the village. She felt that she needed to co-operate or "I am in bigger trouble". However, this does not suggest that she would have acted in any different way had those influences not been present. She also said that she wanted to do the "right thing" by the plaintiff in that he, together with all the members of the team, wanted the "situation in terms of media just to…settle". She did think that he had a personal interest in the sense that he wanted to protect the Olympic Games and, as I understand her, the AOC from adverse media attention. 83 I come to Ms Doyle's account. She said that she does not remember much about the meeting with the plaintiff on the Tuesday morning but remembers how she felt at that time. She apologised to the plaintiff for breaking the media agreement, as I understand it, because she had been told by Mr Huggett that she must apologise to him or she would be sent home for breaking it. Whether Ms Doyle herself thought that it was a good thing that the team should show themselves as united as the others proposed is not clear. She said that she did not remember agreeing not to criticise anybody. She said that her decision not to say anything negative about Ms Robbins was motivated by a desire not to be sent home from the Olympics. 84 Ms Doyle said that she was terrified of the press conference because she said she knew that she would not be able to answer the questions in the way that she wanted to answer them. She explained this by saying that, if she was not allowed to comment on anyone else in the crew; how could she answer a question that raised, for example, the issue whether she would row with Ms Robbins again or as to what happened in the race? And also, of course, she could not talk about conversations that she had had with the other crewmembers about the matter. Ms Doyle said that she had felt extremely upset and extremely angry about being placed under what she described as "house arrest". At the conference Ms Doyle was still angry with Ms Robbins because she thought that she had not done the right thing in the boat. Had she been asked about whether Ms Robbins should have been competing, as I gather, Ms Doyle would have said that in substance the choice of the team was made by others. However, she maintained that she would not have made any negative comment about Ms Robbins at the conference, despite her antagonistic feelings. Ms Doyle said that, at all events, all the team members agreed on what line was to be taken and she understood that the media rules meant that she was not allowed to comment on what happened in the race. 85 It has been necessary to set out this perhaps overly detailed account of the evidence concerning the meetings with Mr Eales and the plaintiff before the press conference of 24 August to deal with the major contentions of the defendants seeking to justify the imputations against the plaintiff. The evidence is clear that there was nothing directly said or done by the plaintiff that brought about the team's decisions to conduct a press conference and on the agreed line that should be taken. It is nonsense to suggest that the team had been cowed or bullied into making these decisions, in particular the decision not to criticise Ms Robbins. The absence of any criticism of her selection to the team was closely related to this important element of the agreed approach. There is no evidence that the plaintiff or, indeed, anyone else suggested, let alone directed, the crew not to raise this matter. I am quite confident that no such suggestion was made. It is self evident that almost any other course than that agreed (and, indeed, followed) would have been very destructive. This was undoubtedly obvious to the team. With the possible exception of Ms Doyle, that the media guidelines forbade disparagement of Ms Robbins was substantially immaterial. The team itself had decided that that they wished to move forward and show themselves as united. I do not think that this was a pretence: given that there were strong feelings about what had happened, given that there were issues that needed to be worked through, the team was nevertheless united in every important sense: they would work through those matters as a team. 86 From a management and leadership point of view, the plaintiff's request that the team return to the Village and stay there until the morning meeting with him undoubtedly focused their minds on the need to resolve the situation and gave them an opportunity to do just that. In retrospect, the plaintiff's approach should be seen as having made a vital contribution to the resolution of the crisis that had been developing. Also of great importance was that the team should come up with an agreed course of action themselves, without any direction from anyone else, including the plaintiff. That this happened in the face of their strong feelings about what had happened in the race is a tribute to their maturity and good sense, which were very much demonstrated in the ensuing conference. 87 It is obvious that, to come to a team decision about what was to be done, the crew needed not only to get together but also have time to work through to that point. I expect that the fact that they were to meet with the plaintiff at 7.30am the following day was something of a spur to their decision-making since it is clear that they would wish to present him, as Chef de Mission, with a solution to what had had been happening and, I should think, a sensible response to his criticism about speaking to the media contrary to the guidelines, spurred also perhaps by his "un-Australian" remark. I do not doubt that, whatever Mr Huggett had said, the team would have wanted a resolution of what was a most distressing situation. The only fair conclusion is that it was the team and not the plaintiff who decided what approach was to be taken at the press conference and the fundamental purpose of the conference was to present themselves as a united team. Furthermore, it is obvious that this course was the best course to take in the circumstances and I do not think it can be seriously contended otherwise. In short, the team did not wish to analyse the race itself, or the selection process, or Ms Robbins' performance. What they had decided to do was present themselves to the media and, hence, to the public as a united team worthy of representing Australia. They succeeded. 88 That this is so is evident from the press conference itself. I have carefully watched the video of that conference. Everything I have said about its purpose is demonstrated, not only by what was said, but also the manner in which it was said. In fairness, I set out the entire transcript of the Channel 9 video (with some irrelevant editorial changes for ease of reading) -

CHANNEL 9 VIDEO OF PRESS CONFERENCES IN ATHENS, Tuesday 24 August 2004

Present (from left to right) Kyeema Doyle Katie Foulkes Julia Wilson Sally Robbins John Coates Victoria Roberts Jodi Winter Sarah Outhwaite Catriona Oliver Coates: Ladies and Gentlemen I am joined by the eight of the nine members of the Australian women's eight. Monique Heinke spent last night with her husband and she is not able to be with us but when we have a chance we'll have a chat to her and there has been good communication with that. As you know we and the girls arrived in the Village yesterday afternoon. I had an opportunity to see Sally and I didn't have an opportunity to speak to any of the other girls and so I phoned Julie and we had a chat and then I arranged as I explained to those of you who saw me last night at the beach volleyball to see the girls at 7.30 this morning. In the meantime 4 or 5 of the girls got together last night and had a discussion, then they decided that they would like to as a group meet this morning at 6.30 or so prior to our meeting which they did and so when I joined them they impressed on me that they are a team, that they are team players and that they would like the opportunity to address you all this morning and as to what happened in the race. I have had the opportunity to speak to the girls about our requirement that one shouldn't comment about the performances of others in the team and they now better understand that. There is no doubt - I have received absolute assurances that there will be no repetition of that but I must say I was terribly impressed this morning when I joined the girls that were already in the room there and met by the maturity with which they are approaching this situation. I guess, having known them for a long time, I shouldn't have expected anything else. I'm very proud of the way they want to, the way they have come together and they have taken the initiative for wanting to speak to you as a group. It would have been easy for me to have just reported to you on the discussion this morning on my own or to bring one or two of them along but that's not how they wanted to play it and so what's going to happen now is that they have told me that they would like first coxswain Katie Foulkes to say some words to you then Sal's going to speak to you, then Julia Wilson will have a talk to you and then we will take the questions after that, so please no interruptions until we do that. Then there will be a good opportunity for you to speak to any of the girls that you would like to, we are going to limit this to 30 minutes and we are not doing any "one ons" afterwards. That's a nature of the team's sport, that's a nature of how they would like to address this problem. The only other thing is John Eales is with us and John's had some involvement with the girls last night and this morning also in his role as an Athlete Liaison Officer and you may want to talk to him about that. So we will start with Katie. Foulkes: Thank you John. I think the first important point we wanted to make as a group of nine from the women's eight is the way that we wanted to deal with this particular issue. All season as group we have stuck together. Any time any kind of issue has come up whether it be the rowing technique, physical or whatever the case, we have sat down as a group, honestly discussed it and resolved it as a team. In this particular situation, I have to say after the race we did feel a little isolated from the rest of the team. Fortunately we've had John Eales step in and give us some great guidance to be able to sit down as a group and again resolve as a group these issues and to be able to come forth and speak to you all as a group which I think is fantastic and again a sign of our team of how strong we are. So Sally wanted to speak, to speak to you all first. Robbins: Well first of all I have to say that what happened out there on Sunday has happened to me before and it, and as a group we came together and embraced that as with any other issue and we have dealt with it as a group and we have put in the strategies and I have been to see a sport psychologist and I have had numerous physiology tests etc. I think that it is important to say that part of it has been anxiety; you know it's a big race the Olympic Final. I think for any athlete you know the pinnacle of your career is to be in an Olympic Final and anxiety definitely has played a part. I don't, I think everyone in our crew put in every thing they had in that race and that was our goal, is to, you know, every athlete would always put in whatever they could if they're in an Olympic Final if they're an Olympian, you know, there's no doubt that we were all in it together and everyone put their best in. There wasn't one individual that pulled more than one other so I think that's important to say. Wilson: Well I just want to start by saying that, that was a fantastic speech Sally and I admire you so much to come out and say what you said and especially under the scrutiny that I mean we've all been under and that is take some thing serious brave, you are very brave to do that and I gonna tell you that everyone else would respect that and I mean we have to say that our reactions were very strong after what happened and we were very emotional and it was very unfortunate that the media were the first to grab our reactions and it's…I mean I went into the season and we knew that this could, you know, this was an issue and, and I, I gave unconditional trust and I couldn't have done any more than give that, and I've enjoyed working with you and the reason why I was so emotional afterwards was because, I, you know, I admire the athlete that you were, you are and for what you've put in and, and basically you're one of my best friends as well and I think that of course my initial reaction is disappointment, and devastation but I mean from this we just move on and it's part of sport, these things happen and we have been an awesome team all year and we all know that despite what anyone thinks we know amongst ourselves that we have been the strongest team and I've said that all year and as a crew captain I've always been proud to say I'm a crew captain because of the way our team's functioned and I still believe that and we know more than anyone that we have worked together well and we have raised everyone's weaknesses and tried to work on them, and yeah that's all I can say. Coates: All right and some questions individually please. Jim? Q: Julia do you have any regrets and Kyeema, I know you went on television last night in Australia, do you have any regrets Julia, about the first, I suppose, comments after the race in the heat of battle that we had nine in the boat, only eight were operating? Wilson: Well of course, you know, I mean, as I said your caught my reaction as first, you know pretty much 5 minutes after I got off the water and of course I was pretty disappointed and feeling let down and, and, um, that's of course I regret saying that but um that was, um, I was just so caught up in the moment and it's just unfortunate that I had Channel 7, you know, come and interview me straight away and I had no time to just re-collect my thoughts and absorb what had just happened and, and I mean Sally and I worked through many issues this year and we've been, we rode "pair" together and we have had some excellent success and that is because we have worked together well and you know like any partnership there is always ups and downs and you work through it. Q: Kyeema, just, sorry, sorry John, Kyeema, just on your comments, do you have any regrets? Doyle: No I don't. Four years of hard work and it was in the heat of the moment. I think the only way I know now to handle that situation was through words. That was my only outlet and that's what I used. John Coates : Fran and then Paul. Q: Julia and Kyeema and Sally have said that this has happened to you before, how much was it on your mind before the race as a fear, and a concern and how much did you acknowledge and talk about it before the race? Doyle: When you sit at the start line of an Olympic Final I think the only thought that could be in your head is what you can do, you control your oar and that you know it's the Olympic Final I think if your thoughts are anywhere else then you shouldn't be at the start line. Q: Is it that those comments you made the other night that were on the media suggest you spoke to Julia before the race suggest with this mind. Is that right? Wilson: I think she was just trying to remind you know that there is this issue but the best result that we can achieve out there is by concentrating on ourself you know, we have to work as a team but at the end of the day each individual is responsible for their own performance and they have to concentrate on themselves to produce the best that they can for each other person in our team, and so you know so Kyeema was, came to me before the race letting me know that she was 100% focused on taking us out you know every single stroke and, you know, giving her all 100% and I made it clear that that's what I'll be focusing on, is just backing her up. Coates : Paul? Q: Sally is there a sense in a little bit of retrospect that you've let the team down in the race? Robbins: Well I take responsibility for what happened out there but you know I, I feel that we all did everything that we could and, yeah that's, that's all there is. I feel that we couldn't have done anything more as a group. We addressed different issues as a group and that's how it came back. Coates : Damien? Q: Sally you have addressed that you got together, obviously and you appear very much united now, ah how tough was it to get to that point to be united again? Robbins: Oh, it's, it's a very tough situation you know and the media grabs you straight after a race you know. You are in such a stressful situation when you don't get the result that you had hoped for. When you've worked so hard through the years and you've known each other for so long to have something like that not work for you I think that it is very devastating and it has been tough. But we, we are so close and I don't think that many things could tear us apart and I think that, you know, this is something that will only make us stronger. Coates : Chris? Q: This is a really tough question girls, Julia and Kyeema, but Sally told us two days ago that she was going to do everything she could to get back into the team to get back on the Olympics. Would you be able to, to do that, would you be able to row with her again? Doyle: Well after this Olympics I was actually looking forward to having a holiday and there is a little bitter taste in my mouth and I definitely will be back and whatever, whatever boat class that is it doesn't matter. I am happy to represent Australia whether it's singles scull, the quad or the eight and I will do whatever it takes to get in that boat and take what I believe I earned and I deserved. I worked hard for that. And I will be back. Coates : Question. Q: Sorry, just Julia as well. Sorry John. Wilson: Also, yeah well, I mean this is I worked for four years for this Olympics and I had always had the intention to retire after this. I mean I am getting married and I have had a long distance relationship with my fiancée who is in the French Rowing Team and won gold which I am very proud of and you know we worked for this and we have always been under the intention that I will retire after this and actually spend some time in the same place. So you know I'm, I am just going to walk away and know that I've enjoyed my rowing career and, and I've made some great friendships out of it and at the end of the day they're the most important things about this whole experience. Q: Sally there has been suggestion that perhaps you shouldn't have been selected in the first place since this has happened to you before.... (break in transmission). Sally finalising her answer then John speaks. Coates: So far as any criticism of the AOC is concerned, well we aren't involved in the preparation of the team, that's the responsibility of the Australian Rowing High Performance Committee. We are involved in dealing with a situation like this and we ask you to talk with John Eales, there was that question at the back there. Q: Katie you said before that you felt isolated from the rest of the team. Is there an example where someone from outside the rowing fraternities had something to say about the incident, maybe inside the village? Katie? Foulkes: No, no, no nothing, nothing specific like that. I think maybe bringing it back to the question before of um how we became united again. All it took for someone, in the case of John to help us out and sit us down in a room and it literally took a couple of hours late last night, and that was more the concept. We just needed a bit a guidance, we, we were very emotional and once someone could assist with that we were right on track. Coates : Vicky? Roberts: Just regarding that as well, I think one of the greatest things sport brings us is the opportunity to learn to do things better and we sit here now after our gold medal has vanished and we learnt some great lessons and I don't think I will ever forget the fact that the first night of being back in the village after our race had finished that we were together as a team resolving a pretty big, pretty big issue to resolve, and we are very proud of the effort that we have done, to be able to unite and to move forward and to be able to now focus again on being part of the Australian Olympic Team and um supporting all the other athletes in their quest over the next week. Coates : Caroline. Q: Kyeema, I have two questions for you, you didn't answer before, will you be able to row with Sally again? Doyle: I think for me I am going to go home like I said to have a holiday and I'll row the single scull for a while and I'll take my wings with pride and I'll take my knocks on the chin. Q: And second of all despite yesterday being told that you couldn't make any more comments criticising your team mates, why did you after everything 24 hours after the event go public again, criticism of the selection and Sally? Doyle: Yeah, I think we did feel isolated about that and I don't think we had the guidance that we needed in that crucial moment, with that much emotion, I don't think you even realise what actions you're taking in, you know, in that sort of pressure situation. Q: Did you apologise to Sally? Doyle: About my media? Q: Yes. Doyle: No I haven't actually. Yeah well I can do that now. I, I, I am sorry I broke you know the Olympic Team Agreement and I spoke to the media out of context and I shouldn't, and I regret doing that. Q: John, two questions for you. Have any of the team members been sanctioned for breaching the agreement? If so, what's that penalty and how has this impacted on you personally given your long-term thorough background in the sport of rowing. Coates: No they haven't been, sanctioned. I've reminded them of the agreement and they've given me the assurance that I have needed. It's a guideline. You know we've had examples of this before with our swimmers leading into Sydney and other examples here and I think that it's always important to understand why and I was very, very pleased that in having convened the meeting that before the meeting the girls showed the initiative with me and put it all in context and I think they have done very well to be here this morning and they've done very well here. So far as my involvement in rowing is concerned I've come out of this more proud than I was previously with the girls because of the way they've been able to handle this most difficult situation and resolved it amongst themselves. Coates : Fran Q: Sally first, and then a question for John. Sally do you, would you expect the other members of the crew to row with you again? Do you expect that will happen and hope that will happen? And John, I'd like for you to follow up on, you said that the selection process is up for Rowing Australia. Are there concerns, are you surprised, though Sally's performed strongly, but given she has this acknowledged weakness that she was selected at this meet? Sally you first. Sally? Robbins: Well, firstly, I think it will be a long process you know, and I think that I will be back and I will be rowing with these girls again eventually. Obviously I will have to earn their trust but I think it will eventually happen. Yeah. Coates: It is a long process. It is a very difficult process to make this through. I didn't know until the girls spoke to me this morning that within their own crew that they had addressed this problem and Sally had been receiving assistance along the way. There was clearly no reason why she shouldn't have been selected for the crew based on her performances at all of the selection events and clearly she was going to be a very important contributor to that based on those performances, so I don't, what I now know. I think that Rowing's done the right thing in the selection. There is no doubt about that. Q: Julia you've mentioned your wedding. First of all, is Sally still in the wedding party as a bridesmaid? Wilson: That's not even a question, I mean, what kind of person you think I am to not invite one of my closest team mates. I mean I would be inhumane to do something like that. Q: And also on that path there is a bit of a perception out there that obviously with the email that was circulated from Rachel that when something like this happens that women ganged up a bit on Sally, and women are a bit more bitchy-like. Is that why that you think that women operate a bit more differently to men in this kind of thing? Wilson: Not at all, I mean, I don't know what's going on back there and I don't know what's happening with media because we - it only makes the situation more difficult to resolve when you hear that someone says this and someone says that which is not always right. So, you know, I think that we're extremely professional people and its not like we haven't had an issue before that we haven't been able to deal with and I think we have dealt with it really well and we know that. That's the most important thing. Q: So to make a point, what did actually happen to you? Robbins: Well it's hard for me to explain exactly what happened. I mean I don't know exactly myself. As I said before, I think anxiety played a part of it as well as, um I don't know, physiology. I mean I've had a lot of tests and I mean I've proved to be like more than capable to row at a high level and at an Olympic Games, and I think um that what happened, happened and I don't really have a direct answer for it at the moment. It's something that I will work through in the next few years. Q. Kyeema you know when you talked about ... (inaudible) what the selection process should be in the future and ... (inaudible) Doyle: Oh this was all reaction, you know, this is us, this has been us through the entire campaign we've been like glue. I think that's why you guys get so excited because we kept this team so tight and it was such a bubble to the outside world and you know all of a sudden…you know... well… Coates: Yeah, may I stress that this was the girls' decision to come down and may I make that absolutely clear. Katie was trying to contact me yesterday afternoon and it was the girls' own decision to meet together last night and the girls own decision as a group to meet prior to our meeting at 7.30 and then I put it to them that one might want to come, one of you, a few of you, but as a team they all wanted to come. Q: And any comment on the selection? Doyle: Yeah I think that's above my head, all I can do is train really hard and tum up at the start line. That's all I can do. Coates : Erin? Q: Are you angry about what happened straight after the race? Are you angry with these girls over that - if it weren't for them saying it in front of the media in my opinion none of this would have happened. And lack of guidance. What do you think? John Coates: Yeah I think there is no doubt that um they should have been better protected when they came off the water, that's a matter that um we and Australian Rowing will talk about after the Games. Q: Whose responsibility is that? Coates: Well, at the end of the day, the media liaison officers and the team management and the members of our team, it's ours, they are people though who are nominated to us by Rowing Australia and so as to share responsibility to that extent. We accept the recommendation, of who they should be, and by that, they also, apart from this issue, there may be good reasons um but they have done a very good job in managing the team over a long period overseas. Paul? Q. Can I ask Julia and Sally, I mean this has been run so big back in Australia we can't get a sense of it ourselves here but there will be, I'm sure there will be a sense back there that this is just painting over the cracks. What do you both say particularly about talk back radio which is still buzzing away in Australia. What do you both say about what were you thinking about - just after the race? Wilson: Well, I mean, after a race and something happens like that, well of course you're going to have an initial reaction but like anything you get a bit more, you just need time to let everything settle and at the end of the day its sport you know, and I know that I've focused on winning a gold medal for the last four years and but, I mean I can honestly say I'm putting it behind me and I want to enjoy this Olympics and celebrate all the success of the Australians and my fiancée. And, and I'm sure Sally wants to enjoy the Olympics as well and, and I know that we can put this behind us you know. Its like we've been married for the whole year being in a partnership. I mean, I've spent more time with Sally then my fiancée, you know, and we've built up a great um friendship and working partnership and it is just something that we, we will overcome and we move on. Coates : Charlie? Q. Sally, what ways have a sports psychologist helped you? Robbins: Just with strategies to deal with what I'm thinking before and during racing and, and what I can do to prevent that from happening. Coates : Sam? Q: What sort of tests have been done?

Sally Robbins: Well we get a lot of like a blood tests done, you know lactate testing, we get CKs tested, we've done a camp in Saint Mauritz up at altitude and that all has, a part of it. Q. And has that been specifically trying to find what causes the problem with you?

Robbins : Ah no I mean what has come about from that is they know I'm a very physical athlete and I build up lactate very quickly and I think that is what has been concluded. Coates: And those of you who were here this morning would have heard James Tomkins give the example of a member of the Canadian pair, where the same thing happened in the semi-final here at this Regatta and its my understanding that Peter Anthony was interviewed by Nine yesterday where he talked of a similar incident that he had - one of our greatest ever Rowers - at his first international event in 1977 and so it has happened before. We are going to wrap this up in three minutes. Q: Jodi or perhaps Sarah um, have any of you had similar kind of experiences and can you explain how you managed to handle it? Roberts: Everybody has their strengths and weaknesses and we sit at the start line being prepared to overcome whatever weakness you have and to work toward your strengths and everyone is a different story. And, and again you sit at the start line and you are in control of, of what you do and have to take ownership of what you do and that really is all that matters and you come to the Olympic Games wanting to give your best and that's really all you can focus on. Coates : Murray? Q. Yes John, thank you. Given that question about talk back and I know it's just going feral at home. Coates: That's what keeps you in the job. Q. That's true. But I mean I've seen these images and I'm sure people would say it's a PR thing and there is no real heart in it in terms of the kissing and making up. Coates: Well I can give you my absolute assurance that it is not, that the girls put this proposal to me and you know, and they've met on their own initiative last night, they've then decided to meet prior to my meeting with me. When I rolled up they were all dressed like this, in uniform. I didn't tell them to go away and get dressed and to present a unified front. They've already worked that out. I put it to them does one of you want to come along, two of you? And they said, 'No, we're all going'. So, no. Wilson: Can I just say one more thing on that. I mean we can't control what everyone thinks back home now. They can think that this is a PR front. But we know inside that it's not and we're telling the truth and you can believe that or you cannot believe it. But this is us and this is the woman's eight and, this is the real McCoy. Oliver: Can I have a comment on this? We are in the sport of Rowing and we are in the biggest boat that rowing has to offer which is an eight so there is nine people that work in this boat and to get into the Olympics in a rowing eight means that you have to be a part of a really strong team and that's what we are. So you know we are not doing this for PR because we are not practiced in doing anything in front of the media. Rowing is only important. At the Olympics, when we're going out there to try and win a gold medal. And that's what we tried to do and we're just coming in front of you today just to show you, that you know things didn't go to plan but we gave it our best shot and we're not punching each other and we're not fighting and we're not screaming at each other. We're here to say in a group we're Olympians and we're proud of that and we're Australians and we're proud of that and you can take from that what you will but we are a united team. Coates: I can't do any better than that so that's the end. John Coates : Thank you. Q: (inaudible) Eales: Well like the girls were so positive, I was very impressed by that and I was very impressed with the way that they initiated it. They were very keen to, to resolve the issue and to move forward and my role was really just to help facilitate the process. Q: (inaudible) Eales: Probably wouldn't want to give, give a lot of examples here but ah, you know this sort of thing happens in life a lot ah. This sort of thing happens day-to-day in a lot of businesses and or just people you know, in their families whatever, but it's rarely, almost never, under the scrutiny that this has been under. And that puts different pressures on people. I've been on sporting teams where, you know, similar, similar things have happened, and but it's never been under the scrutiny that this has been under and the way that the girls have, have reacted and behaved through all of this, you know in being very mature about it. I don't think something like this has ever been done with Australian sport where you have the whole team and that's, you know from my point of view, that's so impressive the whole team come forward sit here and answer open questions, not putting a limit on, never once say we can't answer that. Answered every question that was thrown at them. Very impressive. Q. Katie said though, that without your intervention they wouldn't have resolved it. What guidance did you give them to (inaudible) to do to get over it? Eales: I think you just try to help facilitate the process. I'm not answering questions on that one. Q: In all your years with the Wallabies did you ever have to take any of your team mates to task? Eales: No, no never. But that wasn't the issue here for not trying, but you're constantly in any team, in sporting experience and in my experience since then and before then, I think you're constantly dealing with issues that come up and the way to deal with all of them is just by being rational, think it through, let people talk it through and let people have their say and then to help, you know, steer that, if you are a facilitator, to help steer that process. Q. Do you think it helped ( inaudible ) . Eales: Look I don't think it made any difference that I was a guy. Q. Did you mediate or did you actually give some specific advice? Eales: Really just helping facilitate the process like I mean everyone gives advice from time to time but it's more, most of this almost all the resolution came from the girls themselves but I think you know it's like any, any conflict of any sort once people get into the same room and start talking about it and talking about the issues it's amazing how quickly things can resolve. Q. John, do you think that (inaudible) Eales: There would be a lot of distress over the way things are perceived back home, the attention that is brought upon it. You know, the image that people might have on the women's eight now of them not being a great team. They could not be anything but a great team to be able to get up here in front of media which is going to go around the world and you can't fake that emotion, you can't fake that. Q. Just given that comments were made directly afterwards in regard to Sally's performance (inaudible) I mean also the fact that another woman sent an email that has gone all over the shop with people commenting on it and so forth. Have you ever seen anything like that happen in Football? Eales: I've seen people being very critical of their team mates before, but not this publicly. Q. And what do you think that there is a difference in how, has this got something to do with they way women react to things like this as a group? Eales: Oh no I wouldn't say that but I would say that it has been different in the fact that it has been so public. Q. John Coates said that the girls should have been better protected when they came off the water (inaudible) is there something that (inaudible) straightaway? Eales: There is always ways you can improve you know how things have been done and you know through any process of learning you've got to look at those improvements and look where we can help next time. Q. John, is there a point though where they need to be able to look after themselves without you seeing there (inaudible) surely they can (inaudible). John Eales: Oh, look, absolutely but they came out here today and said you know they were disappointed with what has happened, disappointed, disappointed with their own reactions. Like, they've taken full responsibility for what has happened and that's very impressive. Q. (inaudible) Eales: Oh we probably had a chat and we worked together with group like probably for a couple of hours and then again this morning. Q. (inaudible) John Eales: I was out at the synchronised swimming last night, watching the Australian girls ,so I didn't get back till about 10 and we got together then. Q: (inaudible) to go back and actually talk through the girls' feelings about Sally and her acknowledged weakness or was it just (inaudible) Eales: You can't move on without looking at what's happened and you definitely have to focus on what's happened, why things have happened and then look for the way forward, and people don't do that easily but these girls did it really well. Q. John do you sense that they are now a united front or is there still some tension? Eales: No absolutely they are united. Yeah. Q. I can see that you are not emotional, but we still need the answer from the Press Conference. Sally's intention to get back on the team but (inaudible) and between the other girls (inaudible) Do you think that they would row with Sally again? Eales: Look that's not for me to speculate. Q: John as for the session last night, did you know when you were having that session that Kyeema had again gone to the media and again criticised her team mate. Was that an issue (inaudible) that had to be redone again? Eales: Ah not, no. Well, we probably didn't focus too much on really on specifics like that it was more on just the general. Q. Do you know more about women after this morning? Eales: I'm always learning. (laughing) Q: Is there anything, in your experience (inaudible) situation (inaudible) not very happy with each other and there is a lot of tears and all the rest of it. Eales: Ten years of professional sport, helped, helped a lot. Look, its just life, it's life experience it's like you know, it's no different - what has happened is no different from when you are fighting with your brother or your sister at home. The same principles: the whole truth, communication and honesty, and those same principles were in full force this morning here and also through our chats. Q: I can't have (inaudible) before you have any (inaudible) before balling her eyes out (inaudible) Eales: There is a lot more sooks in football than what you think. Q: John could you imagine the Wallabies getting up her after something like that though? Could you see it happen given that men are far more stubborn and the lack (inaudible) Eales: Yeah I could see other teams doing it. I think the stronger statement that [this] has never been done before - unless someone can think of another time when it has been. I can't remember when something you know an issue has been so big, has been confronted so openly and honestly and immediately as this has and by the whole team with no one hiding. Q: (inaudible) might have (inaudible) this question but the rest Australian team having their say about too many times before (inaudible) move on? Eales: No I think everyone's really had a very strong focus of their own. You know at the Olympics, as you do at any sporting event, its like - from rugby's perspective, you have one sport going for a world cup but there are 27 or 28 sports that have their own super-strong focus. So people are interested in what's happening, people care about everyone in the team and what they are focusing on but there is so little, the great thing is that there is so little judgement happening within the team."

I do not doubt that what was said by all the participants in this press conference was the truth as they then saw it.

Publicity about the race 89 An article in the Daily Telegraph of 24 August 2004 by Mr Guiness was headlined "Blame game - no row affair splits Olympic team - Athens 2004". The article commenced with a quote from Ms Robbins' interview with Mr Wilkins saying that she "had some pretty hard words thrown at me, I had some pretty tough things to take" and reporting that she had said that "one furious team mate threatened to throw her overboard". Mr Guiness reported that the women's eight were facing disciplinary action for criticizing Ms Robbins and that the plaintiff said that "he was analysing a range of punishment measures for one colleague in particular, Julia Wilson". The plaintiff has said, and I accept, that he was not doing such an analysis still less focusing on Ms Wilson. The article said that "criticism of Robbins was led yesterday by former Olympic silver medallist rower Rachel Taylor", who was quoted as saying, "there is no doubt in my mind that Sally Robbins' quitting on Sunday was a repeat of complete mental weakness, not physical exhaustion". Ms Taylor was also quoted as saying the same thing had happened in Spain. The reporter described what happened at the dockside in this way: "Yesterday, amid shocking scenes, Robbins was barracked by her team mates as she headed off for interviews. Catcalls could be heard, including: 'Tell the truth, Sally, don't lie.''' The article noted that Ms Robbins was supported by the president of Rowing Australia, Mr Pat McNamara and another Olympic rowing medallist, Mr Peter Murphy. Ms Robbins' explanation, "suddenly fatigue sets in and I can't move, it is a feeling of paralysis where you just hit the wall", was set out and the following questions for the AOC were identified: Did her coaches push her too far? With her past record, was she the right person to put in the boat? 90 In another article in the Daily Telegraph of the same day under the by line of Mr Damian Barrett, with the headline "Angry rowers in hot water - Athens 2004" it was said that Ms Robbins' team mates "are expected to face disciplinary action for publicly voicing criticism of her failure to complete the women's eight final". Ms Wilson's comment that, "we had nine in the boat but only eight were operating" was read as having "clearly laid the blame at Robbins' feet". The reporter said that Ms Wilson "is expected to have to apologise…" A "spokesman" said that the plaintiff was "analysing a range of punishment measures for Wilson". As I have said, who is spokesman was is unknown. More importantly, I am satisfied that the plaintiff was not doing this. The article quoted Mr Tancred as saying that "the rowers will be reminded by their section manager and Julia will be spoken to in person by John [Coates] - that is not the behaviour we expect in our team - Sally Robbins gave 100 per cent in that boat and it is not for team members to question her commitment, that is not what we are about as an Olympic team. We are mindful that athletes have worked blood, sweat and tears for four years to get into the Olympic games and you can understand their disappointment at not performing at their best yesterday, but it is just not what the Olympic team is all about. You do not criticize mates, it is not the way you do it, it is not what we came here to achieve". Further remarks supportive of Ms Robbins were quoted from Mr McNamara and Ms Doyle's criticism on Lateline also set out. The reporter mentioned that her team mates had shunned Ms Robbins at the conclusion of the final but that team management believed she would be welcomed warmly (by the rest of the team). Mr Tancred defended the selection policy and the selection process. 91 Ms Taylor's letter was, it seems, written to the Daily Telegraph as well as circulated to others. 92 In response to Ms Taylor's comments, however, the Telegraph published a quote from the plaintiff saying "Perhaps because she was the one who collapsed, she may have working harder than the others" and from Mike McKay, another Olympic competitor, "It is disappointing people criticize their team mates when it's not for lack of trying. I do know Sally is a quality girl". The article quoted other support for Ms Robbins. In the end, the Daily Telegraph said: "Just as it is decent and proper to feel sympathy for Robbins, so to do her team mates deserve our understanding … if they are angry for a while that their hopes were dashed in such circumstances, who could blame them?"

The defence of justification 93 The defendants' submissions usefully divide the imputations into three sets. The first of them concerns whether the plaintiff practised or ordered a cover-up concerning Sally Robbins. The second set of imputations concern criticism of the plaintiff's leadership and management of the Sally Robbins' incident and the third set concern allegations of bullying.

The alleged cover-up 94 The first matter complained of conveyed the following imputation - "The plaintiff practised a cover-up in relation to Sally Robbins in his role as a leader of the Olympic movement."

The second matter complained of contained the following imputation - "The plaintiff ordered a cover-up over the collapse of Sally Robbins in the Olympic final of the rowing eights." 95 Although these imputations are in somewhat different language, I think the essential idea in each is the same. Both are general. The defendants will have justified the imputations if there was a cover-up practised or ordered by the plaintiff that concerned what Sally Robbins did or had done and, I think, in relation to what her team members did concerning Sally Robbins. Thus, the events that involved Sally Robbins from her selection to any later consideration of what had, or should have been done concerning her or involving her, provides the subject matter in connection with which, if the plaintiff practiced or ordered a cover-up, the defendants will have succeeded in justifying the imputations. 96 It is, I think, desirable to describe what is conveyed by the notion of a cover-up in the present context. First of all, it is obvious that it does not mean the keeping of a secret or the honouring of a confidence which one has a moral or legal duty to maintain. Nor can it mean the refusal to disclose that which, for the purpose of maintaining a decent and appropriate privacy, should not be made public. Sometimes facts ought not to be disclosed because it would be offensive to notions of fairness or justice to disclose them. The failure to disclose such facts would not, I think, be regarded as a cover-up but simply the exercise of a civilised reticence. The term is used where there is some duty, legal or moral, to disclose some fact or other and a refusal, by act or omission, to disclose that fact together with some active step taken to conceal the fact or deflect enquiry along deceptive lines; in short, to disguise as well as to conceal the truth. Mere silence is not a cover-up. 97 In oral submissions Mr Tobin QC for the defendants argued that the matter sought to be covered up was the knowledge by the members of the crew about the previous occasions on which Ms Robbins had faded or stopped because that version of events would have demonstrated why Ms Robbins' selection for the team was a bad choice. In written submissions the contention was put in this way - "By strictly enforcing the guidelines and forbidding criticism of Robbins and by gating the athletes before the press conference the plaintiff was effectively doing all within his power to actively conceal information being conveyed at the press conference which he knew (by reason of the Taylor assertions) might be or might potentially be highly damaging or embarrassing to those responsible for Robbins' selection, Rowing Australia and AOC. Obviously, if criticism of Robbins was gagged or even expressions by her team mates of disappointment at her past failings were precluded not only at the press conference but afterwards, then the damage could be avoided and the embarrassment not occasioned. No Chef de Mission wants the public airing of matters carrying real potential to create a scandal over his administration's athlete selection procedures." 98 A difficulty with this submission is that it was never put to the plaintiff that he was motivated by a desire to keep secret either the selection process generally or the particular selection process that had resulted in Ms Robbins being chosen for the team. The submission is also surprising in light of the fact that it was the defendants who tendered Mr Jahrling's October report with the selection of the team and, in particular, that of Ms Robbins. As I have said, there was nothing in the selection process which was capable of embarrassing Rowing Australia, let alone the AOC or the plaintiff. Furthermore, I accept the plaintiff's evidence - and it was not seriously sought to be controverted - that he did not have knowledge of the actual selection process of the rowing eight team. It is true that he discovered on the night of 23 August at least something of the previous difficulties encountered by Ms Robbins during races, but this knowledge was incapable of giving rise even to a frisson of impropriety, let alone a scandal. Indeed, aside from the excessive language of the submission - one of the matters which I need to deal with in another context - there was not the slightest hint of any evidence of the possibility of such a scandal and Mr Tobin, aside from flatly making the assertion, did not seek by any argument to persuade me of the existence of any such scandal, real or potential. 99 Contrary to Mr Tobin QC's submission, there was no potential, whether real or I think even fanciful, that a scandal might be created over "[the plaintiff's] administration's athletes' selection procedures". There was no scandal, or the possibility of a scandal, of any kind over any administration's selection procedures or anything remotely resembling a scandal involving anyone. There was not the slightest suggestion put to the plaintiff that the selection procedures of the AOC were in any way inadequate or inappropriate. Nor is there any basis for any suggestion that the procedures used by Rowing Australia to select the team, and Ms Robbins in particular, were inadequate. To the contrary - although I say this as a sedentary, aging, layperson - they appeared to be careful, thoughtful, insightful and highly professional. 100 As has already been noted, the defendants called Ms Doyle and Ms Foulkes in their cases. Ms Doyle had been the most openly antagonistic of all the team members (as I gather from the evidence) at the time and it was clear when she gave evidence that a significant degree of antagonism remained. Yet Mr Tobin QC did not seek to elicit from either of these witnesses any matter which might have suggested that the selection process was in any way inadequate or inappropriate. Of course, in the result, Ms Robbins did not row to expectations and, of course, there was a potential that this might happen. There was nothing in the evidence of either of the team members called by the defendants that suggested that there was anything which needed to be or was in fact concealed. 101 Leaving aside the fact that Ms Robbins' prior difficulties were already in the public arena, it was envisaged by all concerned, including the plaintiff, that Ms Robbins would tell the assembled media at the news conference that what happened to her in the final had happened before. Moreover, she said that an important part of what occurred was anxiety which, she said, "definitely played a part". It is true that this was short on detail but the press conference was not an occasion for detail of that kind. Nor was there occasion for the plaintiff at that time or later publicly to make some statement about the way in which Rowing Australia undertook its selection of Ms Robbins for the Olympic team. Indeed, Mr Tobin QC did not suggest that he ever had such a duty or that there was an appropriate occasion when some public statement about that matter, giving a detailed history, was called for. That would, of course, have entailed an enquiry by Mr Coates or instituted by him of all those involved in the selection process including doctors, psychologists, team members, coaches and management who were directly responsible for the particular events in which Ms Robbins had rowed - not only those in which a problem emerged but also obviously those in which she had plainly rowed superbly - as there needed to be (and this is an obvious point) a balancing between an athlete's strengths on the one hand and weaknesses on the other, a judgment which is self-evidently difficult. There is no evidence that suggests - and the defendants made no attempt to prove - that such an enquiry at the instance of the plaintiff was or could have been appropriate. It will be recalled that the plaintiff publicly stated his view about what had occurred. As far as the plaintiff was concerned, he thought that Ms Robbins had "simply rowed herself out". He had been a rower. He knew a great deal about rowing. He knew a great deal about competition. His comment was an appropriate expression of a genuinely held and informed opinion. There is no attempt made by Mr Tobin to have the plaintiff explain this remark. It is self-evident. It does not make a distinction between a physical and a mental cause. At all events, it is obviously difficult, if not impossible, to divide up what is happening to a rower at the extreme end of exertion between the physical and the mental processes that are operating at the same time. Furthermore, even if the plaintiff's view was that there was a physical explanation for Ms Robbins' conduct, that was not unreasonable. The plaintiff made no attempt to have Ms Robbins qualify or limit her own explanation about what happened. 102 A document presented by Monique Heinke, Julia Wilson and Kyeema Doyle, on behalf of Katie Foulkes, Jodi Winter, Catriona Oliver and Sarah Outhwaite - all members of the women's eight team - to Rowing Australia on 13 October 2004 described, from their perspective, the events following the race. The purpose of the document was "to elaborate on particular issues arising from these events and present suggestions for positive change for the future in order that similar circumstances do not arise…" The document then sets out a timetable of events. The further elaboration and suggestions concerned the need for immediate guidance to and direction of the crew by the media liaison officers, team management and the coach or coaches so that there would have been some intervention before any athletes could have been interviewed. In short, there was criticism that there was no effort made by team officials to stop members from talking to the media, at least in the early stage and it was said that, as a result, Sally Robbins, Jodi Winter, Kyeema Doyle and Julia Wilson all spoke with the media. Suggestions were therefore made about media training, the qualifications for media liaison officers and, most importantly, that - "The seriousness of the AOC Athletes Agreement needs to be emphasised strongly. It was breached not only by members of the crew but by other rowers and rowing officials, and athletes from other sports. It is not clear that athletes outside of the crew who made comments on the matter have been informed of their agreement breach." 103 This scarcely amounts to a suggestion that any inhibition on discussion which was imposed by virtue of the agreement was in any way inappropriate. I repeat that this report was made by or with the concurrence of Kyeema Doyle and Julia Wilson amongst others. Suggestions were also made about the need to have an available sports psychologist or similar service available, for better communication between section management and the crew, the need for a head coach or technical director not involved directly in coaching a crew to be available, a de-briefing process following a race, the function of Rowing Australia, some members of which made public comments to the media that were partisan. There is a discussion of selection policy, which asked whether it had been "written in order to select the best possible athletes and crews, or to protect the Association from claims of (I think bias but the text is obscured) by athletes" and discussed the suitability of the present system. 104 This thoughtful document does not give rise to the slightest apprehension that, if called upon to discuss the selection process which applied to Ms Robbins, any matter of embarrassment or difficulty might have been raised. I do not think for a moment that the plaintiff had in mind such a risk. I am fortified in this view by noting that Mr Tobin QC did not suggest it to him. 105 I have referred already to a report made by Mr Tancred about the events in Athens surrounding the women's eight final. It appears that there was a general media report and then a short paper making additional comments about the Sally Robbins affair. The report, I think, was made to the plaintiff and possibly to other members of the Australian Olympic Committee. The plaintiff sent a copy of the document to Mr Dee (CEO of Rowing Australia), with the following comments - "I thought I should share with you Mike Tancred's attached take on the Sally Robbins' matter. He has separated it from his Media Report and I am not inclined to include it in the Team Report at all. The Media Report does however refer to various breaches of our Team Membership Agreement by some of the members of the women's eight and includes some comments about some parents. I would like you to share the report with Pat McNamara only so that you two can think about addressing the cultural issues on which I agree. You should not share the paper with David Pembroke, your Board or anyone else. Please also ensure that it is not accessible to anyone in your office and that Pat understands the confidentiality of its contents. PS Doug Donohue has seen the Report but understands that it is to be kept confidential." 106 Mr Tancred's report was critical of a number of named people. It is somewhat confused as to important events and was very critical of members of the team. Mr Tancred dealt with the press conference attended by the athletes but mistakenly thought that this conference occurred before the interview given by Ms Doyle to Peter Wilkins and concluded that this interview "made a mockery of the earlier media conference". This was a significant misunderstanding of the sequence of events. Be that as it may, the plaintiff was not cross-examined to suggest that his decision not to circulate Mr Tancred's report was incorrect. 107 I should point out that, although Mr Tancred made a criticism of "management", as the plaintiff clarified in his evidence, this was the management of Rowing Australia not the AOC. The plaintiff said that his reasons for not wishing to make the report public was - "The report was critical of the members of the crew, as I recall being "selfish"…and I didn't think that was a fair representation or fair of all members of the crew or any of them. The report was critical of the parents of the crew as a whole and I know a number of the parents might think that's most unfair. The report contained an inaccuracy in that it referred to the Lateline interview as being after the press conference which is inaccurate … … [The] report had the potential to again cause anxiety for the members of the crew when they had moved on. But the area in the report that I thought was worthy of attention by the two principal officers of Australia Rowing, Mr McNamara and Mr Dee, was the suggestion that the culture of rowing was not, as a team, was not as good as the culture of our swimmers, and I thought that this was something they should look at for the future…" 108 There is nothing in the plaintiff's dealing with the Tancred note that suggests any kind of cover-up. 109 In my view, the imputations suggestive of a cover-up were patently false; they could not survive even the most cursory examination of the team's press conference.

The alleged bullying 110 These imputations were as follows - In the first matter complained of: the plaintiff bullied rowers into saying what he wanted them to say after the Sally Robbins' incident. In the second matter complained of: the plaintiff in his role as head of the AOC and as Chef de Mission bullied the crew of Sally Robbins into saying what he wanted them to say at a news conference in Athens after the collapse of Sally Robbins." 111 The defendants submitted that the press conference was held in the context of an unreasonable direction by the plaintiff "which had the consequence of arbitrarily imposing his authority on the team members". 112 The notion of bullying involves the misuse of a strength or power to coerce or oppress a weaker person. It is seen as inappropriate and often morally wrong behaviour. The submission for the defendants seeking to justify the imputations focused on the requirement that the team members should return to the Olympic village by 8pm on 23 August and remain there until they met with the plaintiff on the following morning, the public support given to Sally Robbins by the plaintiff, the criticism of the rowers as "un-Australian" and the "direction" that at the conference nothing was to be said that was critical of another rower, in particular Ms Robbins. 113 I do not see any of these aspects of the plaintiff's conduct, either considered individually or overall, as bullying. To my mind they wholly lack the element of oppression. To the contrary, I think that the plaintiff acted reasonably and appropriately. 114 So far as the requirement that the team should return and remain in the village on the night of 23 August is concerned, this was a reasonable and sensible response to the developing problem. It is clear that there had been public criticism by one or more members of the team concerning Ms Robbins. It seemed also that some members of the team were angry. The plaintiff's responsibilities covered the whole of the Australian Olympic team. He believed, and rightly so, that feelings were high and that the media was eager to interview any team member who might be prepared to speak to them. If this occurred, statements might be made not only damaging to Ms Robbins but to the continuing viability of the team itself, quite apart to the reputation of the Australian Olympic team as a whole. 115 The plaintiff was made aware that comments critical of Ms Robbins had been made by her team mates at least by late afternoon on the 23rd. In this context, the direction to the Assistant Manager, Mr Huggett, that the team members should be reminded of their obligations under the team media guidelines was a perfectly sensible step to take. That he wished also to speak to Ms Robbins was also reasonable in light of what he had been told of the discussions between her and Channel 7. Members of the press had put to him when he was "door stopped" that team members were being critical of Ms Robbins after the race. This was the occasion upon which he made the unwise remark about such criticism being "un-Australian". Of course, it also meant that he was aware of the intense media interest not only in what happened to Ms Robbins but what was the attitude of other team members to her. It was on the 23rd that he learnt that Ms Doyle had been interviewed on Lateline and that she had made disparaging remarks about Ms Robbins. He discovered this sometime in the early afternoon, when he was at the beach volleyball venue. He was made aware of it by members of the media who asked him what was he going to do about it. He then spoke to Mr Huggett and told him to ask the team members to come back to the village by 8 o'clock that night. This meant, of course, that they could still spend some time in Athens before returning to the village. It is true that he dealt with the team as a whole in requiring them to return. But it would have been impossible to deal with the problem in any other way. He could not practicably investigate which team member had spoken to which media representative. It was clear that most, if not all, of the team were upset about what happened and that they had strong feelings one way or the other about Ms Robbins. Even if one or other had not already done so, they well might speak to the media if the opportunity to do so was presented; especially if directly asked, it would difficult to resist making a comment in the circumstances. Furthermore, it was a good idea for the members of the team to have an opportunity to talk about the matter amongst themselves and attempt to resolve their feelings. Indeed, this is what occurred. These considerations were but common sense. 116 The plaintiff conceded that, in part, his action was intended to discipline the team. I do not regard this as bullying. He had authority as the Chef de Mission to take action where it seemed to him that it was appropriate for the good of the team. To provide ammunition for the media was scarcely in the interest of the rowers, let alone the Australian team as a whole. That members of the team such as Ms Foulkes who had not spoken to the press and, indeed, may have been unlikely to do so, should have been also required to return to the Village might have seemed a little harsh but, in the circumstances, it was completely justified. The plaintiff was not in a position to make a nice judgment about who might or might not speak to the media in a damaging way. That the crew should be reminded of the powers of discipline available to the Chef de Mission was salutary and, as it turned out, useful: there were no more interviews. Part of the problem was the perhaps unnecessarily confrontational style adopted by Mr Huggett, who went beyond the plaintiff's directions. But that was not the responsibility, in my view, of the plaintiff. As to reminding the team members of their obligations under the agreement, there was every reason for him to do so. Several members of the team had acted in contravention of the agreement. Others might be tempted to do so. Resisting the blandishments of the media is difficult for inexperienced players - even at times for experienced ones (as evidenced by the "un-Australian" remark). That the team was reminded of their formal obligation in this regard was not only not oppressive, to my mind it was sensible indeed, necessary. The reason for the rule had nothing to do with protecting the reputation of the AOC. The fundamental reason for the rule is to protect the integrity of the team. To play out disputes in the public arena is plainly not in the interests of any team and can create hurt and antagonism which would be impossible to palliate, having effects that reflect on the reputation of the whole of the Olympic team. 117 It can be readily accepted that the team was very cognisant of the plaintiff's position and authority as president of the AOC and Chef de Mission. These offices naturally gave him a position of considerable power and influence, which could not but affect the team members' attitude towards him. It is not the possession of power and influence which is wrongful but its misuse. In my view, the exercise by the plaintiff of his authority was no more than reasonable and, if it was unqualified in the sense that his directions were required to be obeyed, that was the function of his position and an expression of his responsibility. I accept that Ms Foulkes and perhaps others felt somewhat humiliated at being required to return to and remain in the village but I think that, on mature consideration, they would or, at least should, have realised that this was a sensible course of action in the circumstances. 118 So far as what was to be said at the conference is concerned, the line to be taken at the conference was in every important and relevant sense set by the team members themselves. It may have been that that line was influenced by the obligation not to publicly disparage other team members but it seems reasonably clear that none of the team members wished to do this, with the possible exception of Ms Doyle who plainly still harboured feelings of considerable anger towards Ms Robbins. But it would not have been sensible for her, let alone for the purposes for which the conference was being held at the instance of the team members themselves, that she should give vent to any of these feelings. The existence of the rule and the fear of the possible consequences of its breach, in the circumstances, were a useful reinforcement of the agreement to which the team had already come about what was to happen. 119 Any fair minded observer of the conference would readily have appreciated that each speaker was attempting to move on from the feelings of anger and frustration that had followed Ms Robbins' breakdown and were still to some degree present under the surface. Many of the questions asked by the journalists were directed to breaking through to and exposing those feelings. It can be no criticism of the crew - and of the encouragement in this respect given to them by the plaintiff - that they did not allow this to happen: there is no moral obligation to provide fodder for the evening's news, especially when it was not in the crew's interests to do so. Part of the reason for the conference was to deal with the damage that had occurred and to put an end, if that were possible, to the negative consequences of what had happened. In short, the purpose of the conference was constructive and not destructive. I think the suggestion that the team members were bullied by the plaintiff into saying what was said at the conference or not saying what was not said is completely untrue. This is not to say that he did not exercise a degree of influence and, perhaps, authority but it seems to me that this was appropriately exercised. 120 The defendants submit that it is an aspect of the alleged bullying that the plaintiff supported Ms Robbins but was critical of the team. I do not agree at all with this characterisation of the plaintiff's conduct. It is true that he supported Ms Robbins so far as her performance was concerned and it is true that he was critical of disparaging remarks made to the press about it but, in this respect, he did not identify any particular team member. He did not authorise Ms Robbins to speak to the press and his direction that team members should be reminded of their obligations did not exclude her; nor was she excluded from the requirement to return to the village. Moreover, the plaintiff's advice to Ms Robbins that she should not accept the Channel 7 offer of accommodation was scarcely a qualification of her obligation not to speak with the press in a way that commented on or disparaged the other team members. It is a matter capable of reasonable controversy whether, at all events, Ms Robbins reporting the remark to her on the boat was a disparaging comment prohibited by the rules. It was a comment made to her by a team member and I think she might reasonably have felt that it was a comment which she was entitled to report. Be that as it may, the plaintiff never suggested that Ms Robbins was not in breach of the media rules. In short, in this respect he dealt with the team as a whole and, in my view, fairly. His statements of support for Ms Robbins' performance were also reasonable and were plainly no reflection on the performance of the team and I do not think they could have reasonably been so interpreted. 121 The "un-Australian" remark was, as the plaintiff admitted, inappropriate. However, he was criticising the conduct of "bagging" a member of a team. I think he was entitled to condemn in strong language any disparagement of one member of the team by another. The problem, of course, was that the term "un-Australian" was capable of being divorced from the conduct which was being so criticised and instead applied directly to the crew. The use of such strong language was unwise because not only was it capable of being misused but calm and moderating language was what was called for. I think it was this consideration that led the plaintiff to appreciate that he had acted regrettably and, indeed, unprofessionally. Had he said that it was inappropriate for any member of any team to disparage the performance of another member, there could be no criticism of him, though the concept would be unchanged. However, I do not see his remark as being bullying in any way. It is worth pointing out that the plaintiff apologised to the team at the earliest opportunity he met with them together and was highly complimentary about and respectful of them at the press conference. 122 There is no truth in the bullying imputations.

The plaintiff's management and leadership 123 These imputations are - In the first matter complained of: the plaintiff's leadership in dealing with the Sally Robbins' incident was sadly lacking.

In the second matter complained of: the plaintiff in his role of head of the AOC was incompetent in the manner in which he handled the Sally Robbins' affair. In the third matter complained of: the plaintiff in his role as an Olympic leader was incompetent in his handling of the Sally Robbins' business. 124 In the defendants' written submissions a number of matters are relied on to support the claimed substantial truth of these imputations. I propose to deal with them separately. 125 The first is that senior counsel representing the plaintiff during the s 7A proceedings stated to the jury - "Not long before the adjournment my friend, this is Mr Reynolds, said to the jury, as if it were a fact, which it is not, that Mr Coates was not involved in picking someone who should not have been picked, that is Mr Coates had no role in the selection process of the athlete. This is actually wrong. Mr Coates is intimately involved from his role as the head of the AOC and as Chef de Mission of the Olympic team." 126 In some circumstances, no doubt, such a statement could be interpreted as having been made on instructions and have constituted an admission. Even so, it is somewhat unclear as to precisely what the admission is. Of course, the plaintiff was "intimately involved" in that part of the selection process that which was the responsibility of the AOC. But the involvement of the AOC was quite different to that of Rowing Australia, as the evidence which I have set out above makes clear. There is now direct evidence as to the plaintiff's role in the selection process and, in Mr Jahrling's report, a detailed account of what was actually involved in the selection of Ms Robbins. For all practical purposes, by the time Ms Robbins' name had come to the AOC the issues surrounding her competence had already been determined and it was not for the AOC to second guess the nomination of Rowing Australia in this respect. It is difficult to know quite what the point is of the reference by Mr Tobin QC to the submission made in the course of the 7A proceeding, since it does not appear to be contended as against the plaintiff that the selection of Ms Robbins was inappropriate, let alone incompetent. 127 The next matters referred to are facts asserted in the Jahrling report of October 2004. The defendants point to the following matters (by way of highlighting particular parts of the report): "1. Sally freely admitted that she had a difficulty finishing off a race and the problem was not of a physical nature but rather it was a mental hurdle or fear. 2. Knowing the problem that she had disclosed to me which was well known amongst the crew and selectors, [I spent extra time working on an additional programme to suit Sally]. 3. The Board and the High Performance Commission of Rowing Australia knew about Sally's problem and it was a matter that has been discussed with these bodies as well as being a matter for discussion among the selectors. 4. [In respect of the Amsterdam regatta]: as much as she [Robbins] was able to drive the boat from the stroke seat for about three quarters of the race she faded badly in the last quarter. Something we had seen too many times to ignore it and the person in the stroke cannot fade like this. 5. (In respect of the Athens Olympic regatta). In the repechages crossing the last 500 metres the crew started to build well but from about 400 metres Sally Robbins started fading quite dramatically. This slowed the boat down more and more so we arrived at the finish line at pretty poor pace just beating the Chinese for third place." 6. Mr Jahrling was also concerned about how Sally Robbins faded as is described above. Therefore, as part of the preparation for the final he had to address this issue both with other members of the crew and with Sally. It had happened before and the rest of the crew was very concerned about it. The coach and the team analysed the race and made plans on the final preparation. Mr Jahrling separately met with Sally Robbins, Julia Wilson and Katie Foulkes, and talked to Robbins about her strategies of dealing and overcoming her fear for the last part of the race. It really was more of a reminder of what she needed to do to concentrate on her rowing instead of worrying about failure. Sally assured the coach and the other members of the crew that she was working hard to deal with the problem. 7. Mr Jahrling's concern was that Robbins would be able to carry through the undertakings that she had made to him and to the crew. She rode well and hard, her body language and facial expressions suggested that she was struggling or at least feeling the pressure of the Olympic final. Mr Jahrling worked with her repeatedly every day. She had the full support of all her crewmates. Everyone tried very hard to give her confidence. 8. When the team arrived at the course on Sunday morning, the pre-race routine went very well. Sally appeared somewhat tense. In some athletes this appearance would be of concern. However, given Sally's history to date, Mr Jahrling thought that she needed reassurance so he took another walk with her to talk her through the race and ways of dealing with her fears of the last 500 metres. 9. After about 1100 metres, Sally showed the first signs of backing off. This is much earlier than this problem had ever arisen with her before. Previously, when Sally had backed off and rowed "light" this had occurred at a point during the final 500 metres of the race. To Mr Jahrling it looked like Julia Wilson (sitting behind her) was talking to her a lot. However, the boat speed started to drop and the crew was then not covered by the video from this point on. 10. According to the coxswain (at the 1400 metre mark) Sally fell back for the first time letting go of her oar. There was no video coverage of this incident and the spectators were not close enough to witness it. Mr Jahrling understood that Julia Wilson, sitting behind her, pushed her back up and got the oar back into her hand. This seriously affected not only Sally's rhythm and timing with the rest of the crew, but also the boat speed. At 400 metres to go Sally stopped and again fell backwards in the boat trailing her oar in the water. The video does not show any of this until the last two stokes taken by the crew where the boat crossed the finish line. However, the crew were in lane 6 and Sally was in the sixth seat on the stroke side and the events of the last 350 metres were easily witnessed by all the spectators in the grandstand." 128 Further facts are asserted as material but let me deal first with these. Accepting for the purposes of discussion that Mr Jahrling's description of the pre-race process and what occurred during the race is accurate, it could in no way be the plaintiff's responsibility to have responded to any of those matters, even assuming that he was aware of them. He had no duty to make himself aware of them and it was not his duty to decide how to deal with Ms Robbins as a member of the team. It seems to me that none of this material could reflect or be fairly regarded as reflecting on the plaintiff as head of the AOC or Chef de Mission. Insofar as it is sought to make the "admission" made during the 7A proceedings to provide a link between these events and the plaintiff, this submission cannot survive the plaintiff's clear and uncontradicted evidence and the clear thrust of Mr Jahrling's report which, not surprisingly, makes no reference to the plaintiff or, for that matter, any member of the AOC. 129 Mr Jahrling's report refers also to the aftermath of the race. The matters relied on in this respect by the defendants are as follows (quotation marks omitted for ease of reading): "1. The issue of Sally Robbins' cessation of rowing became a significant public controversy principally because the press were permitted to access the crew shortly after they had gotten off the water. 2. Obviously at this stage the girls in the crew were tired from their exertions, were understandably disappointed at their failure to win a medal and were upset at Sally Robbins for failing to comply with the undertakings and assurances that she had given the crew over a long period of time regarding her commitment to the crew to finish the race. Further, emotions obviously ran high when it was obvious that Sally was not injured at all. For the press to be allowed to access the crew in what was obviously an emotionally charged situation is a matter which should not have been permitted to occur. 3. Clearly the protocol of procedure for access to the crew was lacking. In sport inevitably there will be losses and these disappointed competitors need a higher level of protection and care from the authorities. Because they have been unsuccessful, we simply cannot allow such athletes to be exposed to media scrutiny, at least not until they have had an opportunity to regain their composure. We ought not to allow the media to dictate such situations. It is understandable that such an event is newsworthy and comment must be made but this should not include immediate uncontrolled access to a group of distressed athletes. 4. The position of Sally Robbins is somewhat of a conundrum. On one view she is a highly gifted athlete with superb fitness and technique. However, Sally has a history of from time to time failing because of what is popularly known as 'mental toughness' in pressure situations. A question arises as to how many failures under pressure either should have disqualified Sally from selection or was this a matter that really required a decision from expert sport psychologists? As described earlier in the report, Sally was given the benefit of medical assistance and in particular sport psychology assistance. Sally has the support of Mr Jahrling and the crew. 5. [This paragraph is omitted from the list of relevant facts but I think it is an important qualification.] In Mr Jahrling's view this unhappy episode probably shows the limits of sports psychology. In his experience, there are athletes who benefit hugely from such assistance, there are others that may not benefit from it but it may assist them in achieving that little extra which may the difference between success and failure. However, it may be that too much reliance is placed upon the sports psychologist. 6. Mr Jahrling did not know the answer to this question but he did know that as a result of the incident the role of the medical practitioner particularly in terms of psychological issues needed to be reviewed. Maybe the selection criteria should be reviewed to perhaps place greater emphasis upon subjective features such as whether or not an athlete who ordinarily can perform at a very high level is able to maintain or improve that performance in the pressure situations. 7. All of the girls in the crew, including Sally Robbins, had worked exceedingly hard to achieve their goal of an Olympic medal. This failure would, even without the Sally Robbins' episode, have been a cause of sadness for the crew and for Mr Jahrling. However, that the crew was not able to perform to its peak because of the actions of one member of the crew has made that disappointment even greater. 8. Mr Jahrling was personally very disappointed in and for Sally Robbins. He had spent a lot of time working with her, as had other members of the crew in order to assist her to reach her peak performance at the Olympics. That Sally was unable to carry through in her undertakings and assurances both to Mr Jahrling and the crew is the most disappointing part. 9. [This passage is not highlighted but it is a relevant part of the material.] Mr Jahrling asked whether he and the other selectors should have taken a decision during the preparatory period leading up to the Olympics to drop Sally Robbins from the crew. In retrospect, he thought that most commentators would say that the answer is "yes". He did not believe that he assessment of the situation could be so simply answered. 10. [The following matters were identified by the defendants as relevant facts.] Firstly, a decision had been made to select Sally in the Olympic eight. That decision was made by all of the authorities and the selectors in full knowledge of Sally's difficulties. 11. [This passage is not highlighted but it is an important qualification.] In light of the training for the competition and the risks that were disclosed during that period Mr Jahrling did not believe that shortly prior to the Olympics it would have been possible or advisable to drop Sally from the crew. 12. In Mr Jahrling's opinion, the problem lies with the initial selection process and the weightings that out to be given to subjective factors such as whether or not an athlete is 'tough enough' to justify selection. 13. [Events selected from the chronology.] 10.30 Sally steps out of boat unassisted and walks off with team doctor. 20.00 HJ speaks to John Coates, apologises for lack of performance of women's team. John Coats told HJ that team management would deal with press. 130 It will be seen from this second lot of material that a great deal of it also refers to the selection process. I think I have said enough about this matter to show that in my opinion the selection process was no part of the plaintiff's management or leadership of the AOC, still less did it, nor could it even to the most biased and prejudiced mind, demonstrate any incompetence in his dealing with the Sally Robbins' incident or the way in which he handled the Sally Robbins' affair or business as specified in the imputation. As I have already said, the reference to "team management" is that of Rowing Australia, for which the plaintiff was not responsible. 131 The defendants contend that a number of matters set out in the October report of Mr Tancred demonstrate the imputed leadership and management failures of the plaintiff. The matters identified in particular from that report are as follows: "No one scooped up the crew … and took them to a quiet place well away from family and the media to discuss the problem and vent their anger … The AOC media people on the ground…could have performed better, but it is not their job to gather up a crew and take them away. That's a manager's job. Management was missing in action. The athletes were allowed to mingle with family and friends in the public area and this inflamed the situation." 132 It is somewhat uncertain whether, indeed, "no one scooped up the crew …", since Mr Jahrling in his October report, claimed that this is what he did. I understand that his account differs from that of Ms Doyle but she says, in effect, that she was so overtaken with emotion at this time that she was not really aware of what else was happening. I notice that Mr Tancred says that Mr Jahrling "as head coach, should have acted as the media spokesperson for his crew but was not capable of handling the situation. He had blown a fuse." Even assuming this to be so, it is clear beyond debate that the plaintiff could not be regarded in any fair way as responsible for either the choice of Mr Jahrling as head coach, still less to ensure that he was capable of acting as media spokesperson and would not blow a fuse in these circumstances. To suggest that the plaintiff could be regarded as responsible in any sense for this situation is patently absurd. Nor could the plaintiff, in any reasonable or sensible way, be held responsible for the fact, if it be a fact, that the AOC "media people" - who are identified as Mr Wilson and Mr Gatfield - did not perform better than they did. As I have mentioned, the "management missing in action" is the management of Rowing Australia, for whom the plaintiff could not be responsible. I suppose it is true that a manager of the rowing team was not present. Why this is so has not been explained. The mere absence of such a person at the disembarkation point cannot, in any reasonable way, be laid at the feet of the plaintiff. It was not for him to micromanage possible crises. It may be true that the athletes mingling with family and friends in the public area "inflamed the situation" in the sense that it appears that the media became aware, one way or another, of the anger and frustration felt by a number of the team members over what had happened, but this is no reflection at all upon the plaintiff's leadership nor does it remotely suggest any incompetence on the plaintiff's part concerning "his handling of the Sally Robbins' business/affair". Moreover, as I have already mentioned, there was no inkling by the AOC officials - due to no fault of their's - that there was a potential problem of the kind that developed. 133 Other matters are referred to in the Tancred report dealing with what happened after the team left the disembarkation point. Mr Tancred criticises the rowing section manager, Mr Diplock, and Mr Huggett. I note that the plaintiff said that he had difficulties with contacting Mr Diplock and was evidently irritated by this. I do not think that it could be fairly or reasonably held that the plaintiff's leadership or competence as head of the AOC or Chef de Mission could be criticised on the basis of Mr Tancred's allegations against Mr Diplock and Mr Huggett. Of course, if their actions required some intervention by the plaintiff, then the plaintiff would be answerable for not intervening. But the evidence is silent as to what the plaintiff did in this respect except to the extent to which I have referred and Mr Tobin QC did not direct any cross-examination to the plaintiff that suggested any shortfall in his dealings, whatever they were, with Mr Diplock and Mr Huggett. Accordingly, I reject the contention that the report of Mr Tancred provides any basis for the imputations. 134 The defendants also point to the evidence of Ms Foulkes that she felt humiliated at being placed under "house arrest" by the plaintiff, that she felt physically ill on hearing of the plaintiff's "un-Australian" remark and that "she felt the plaintiff had bullied her leading up to and at the press conference". I will deal with the "un-Australian" remark later but, dealing with the other matters, I do not see it as a reflection on the wisdom of the plaintiff's direction to the team that they should return to and remain in the Olympic village until the morning meeting with him, as inappropriate. I have already said that, to the contrary, the direction was very sensible. The fact that one or more team member might feel some humiliation at the direction did not make it any less appropriate. The fact that Ms Foulkes did so, though regrettable, was rather a matter for her and not the plaintiff. I should have thought that a moment's mature consideration would have and certainly it should have demonstrated the good sense behind the direction. Moreover, I am sure that to a significant degree Ms Foulkes' feelings were affected by the confrontational approach adopted by Mr Huggett. 135 At all events, the contention by the defendants that the effect of Ms Foulkes' evidence is that she felt that the plaintiff had bullied her does not fairly represent her evidence. She agreed that she had at one stage or other up to and at the press conference felt bullied. She was then asked - "Q. Can you tell his Honour what the various - or what was the reason or the reasons that led you to feel like that? A. Yeah. That was because of the, I guess, the threat the night before of being sent home. It was being locked in the village. Sort of - of course you feel, 'I have got to do down, I've got to' - you know - 'be like this or I am in bigger trouble' - this kind of feeling. Q. Was there any other element in the lead up to or the press conference itself that led you to that feeling? A. I don't know if this is bullying or not, you want to do the right thing, John Coates is someone, he's the big man in my sporting world and you want to do the right thing by these people so there was that element as well."

The plaintiff, as I have pointed out, denied that he threatened to send anyone home and he cannot be held responsible for this being said. 136 The defendants also rely on the fact that the plaintiff did not meet or talk with crew members, other than Sally Robbins, until the morning meeting on Tuesday, 24 August 2004. It will be recalled that the cause of that conversation was the proposed arrangement with Channel 7. The only opportunity to talk with the team would, it seems, have been at the gathering at the Athena Hotel on the evening of the 22nd and it is obvious that this was not an occasion when such a consultation was appropriate. It is for the defendants to show that there was another reasonable opportunity for the plaintiff to have met with the team. This they made no attempt to do. In this context it is an irony that they criticise him for requiring the team to return to the Village on the evening of the 23rd. There is no basis for criticising either the management or the leadership of the plaintiff for not meeting the crew before the morning of the 24th. 137 Mr Tobin wrapped up his case in cross-examination of the plaintiff on this aspect in the following way - "Q. Yes, I want to put this to you, Mr Coates, that given that you saw the event in question, given that you saw the beginnings of the media response on the Sunday at the rowing, given that you had access, had you chosen to use it, to the media reports coming out of Australia back in Athens to your office or that of your other executives, given that you have said you knew when someone stopped rowing that it might be attributable to physical collapse or it might be able to be attributed to psychological reasons -- A. I didn't take --

Q. He is saying assume these facts, Mr Coates. A. Yes.

TOBIN Q. Assume those facts and given that you had decided as a result of media publicity to punish the whole of the team for speaking to the media in the way they did and given that you decided to direct the officials that they were to stay in the village overnight in the way that I have put to you; given those things, I want to suggest to you that the failure in management with regard to the event from the collapse of the rowing until the press conference on the Tuesday morning reflected poorly upon your managerial control and competence with regard to this matter, the Robbins matter?

Q. What do you wish to say about what he said? A. I say no, and that as soon as I heard there had been criticisms by team members of another team member, I directed that they be reminded of their obligations and as soon as I heard that one of them had after that direction again been critical, I made a direction that they return to the village and meet me the next morning and I don't think that in the sequence of events that that was poor management." 138 My view is the same as that expressed by the plaintiff in his answer. Furthermore, I do not see that any other view is reasonably open. 139 The defendants contend that a part of the plaintiff's failure was that he did not provide help to the team following Ms Foulkes' message on 23 August 2004. I have dealt briefly with this message and the plaintiff's recollection about it. I do not think that the plaintiff's response to it was a failure either of management or leadership. It may be that, in a perfect world, he might have immediately taken it up. As it was, I think his response - as I have already said a number of times - to the developing situation was a measured and reasonable one. 140 Further criticisms made by the defendants concern what are said to be failures by the plaintiff to correct statements attributed to him or which he said were not correct. These involved assertions that he was considering punishing the team for breaching the media guidelines when he was not doing so. Having regard to what the plaintiff had placed in train, I do not think correction of this report was necessary. I do not think that this is a fair or reasonable criticism of the plaintiff's handling of the matter. He was also criticised for failing to correct some aspects of Mr Tancred's report before circulating it on a restricted and confidential basis as I have mentioned. In the context of the continuing communications between the plaintiff and Rowing Australia, I do not think that it was necessary or, for that matter, desirable that the plaintiff should have corrected each matter in Mr Tancred's report with which he did not agree. There was no suggested negative outcome as a result of this report or the plaintiff's dealing with it. There is nothing in this point. 141 The defendants' point to the plaintiff's failure to correct public remarks attributed to Mr Tancred in the Sydney Morning Herald on 8 December 2004. The report states - "A spokesman for the AOC, Mike Tancred, denied the rowers had been censored in Athens, claiming they arrived in uniform outside the Australian Olympic Committee's office in the athletes village after the race, requesting a news conference… Mr Tancred said the AOC's only involvement in the preparation of the crew for the Athens news conference was through the team's attaché, John Eales, who mentored the crew the night before the conference. 'There's no way we told the girls in the rowing eight what to say and what not to say', he said. 'Chef de Mission John Coates handed responsibility to John Eales and they decided with him what to say'." 142 It is evident from what I have already said that these passages do not describe with complete accuracy what happened. Perhaps the most important omissions were the insistence by the plaintiff on adherence by team members to the media rules and the fact that the plaintiff also attended a meeting with the team at which what was to happen at the news conference was discussed. The plaintiff agreed that he did not correct the report. In cross-examination the plaintiff was asked why he did not correct the errors. He said - "I thought that this was generally balanced in that it had given the views of the parents and it had given the AOC an opportunity through Mr Tancred to put the AOC's position …" 143 The plaintiff said that he did telephone Mr Masters to point out (apropos another part of the article) that, even if team management had been aware of a poor performance in the qualifying race by Ms Robbins, she could not have been replaced at that stage. At this point of time, however, the plaintiff had not seen the article and when he spoke to Mr Masters he wanted to address with him what Mr Tancred had told the plaintiff about the criticism. After the article was published, however, and the plaintiff saw there were errors, he simply decided that - as I understand his evidence - there was no point in correcting them. He observed that the problem with attempting to correct everything is that when, as it happens, you do not correct something that is taken to be true. The AOC is a big organisation and it is necessary to decide what is important and what is not important. 144 It seems to me that this was a judgment which the plaintiff was peculiarly well positioned to make and it does not reflect at all upon his management of the Sally Robbins' affair or his leadership of the AOC in that, or indeed, any regard. 145 This leaves outstanding the "un-Australian" comment. At the time, this ill advised and, I rather think, reflexive comment, did excite media interest. It was also, I think, seen by some of the rowers as a criticism of them of a rather offensive kind. I note, however, that Ms Foulkes pointed out that she did not feel the remark was aimed at her, since she had not made any criticism of Ms Robbins. Considered in the abstract, the comment that it was un-Australian to bag one's mates is a nonsense: Australians do it all the time. But the clear sense in the context of the plaintiff's use of the term is that it is a bad and wrong thing for one team member to do to another team member. Where one member of an Australian team criticises another member in public, that is likely to reflect on the team. In that sense, it denigrates the team in the context of the world's greatest international competition. However, it is not necessary to enter into the niceties of interpretation. As the plaintiff himself accepted, this was a remark which he should not have made as a manager and a leader. As I have already mentioned, he could quite reasonably have disapproved emphatic language of the making statements critical of Sally Robbins without using or adopting the "un-Australian" tag. 146 In my view, this was a momentary lapse and I do not think it could seriously be regarded as reflecting on the plaintiff's leadership or management of the crisis when considered as a whole. Furthermore, so far as personal feelings were concerned, in effect he apologised to the team at the morning meeting and, at the ensuing conference he attempted to put it right by saying that he was very proud of the way that the team had responded to what had been happening. The conference showed his complete confidence in the team and his complete satisfaction with the way in which they had decided to act. It was a judgment call and my view is that the plaintiff's judgment in this matter was correct. The repetition of the remark, even by way of withdrawing it, would simply have given it further currency. To my mind, it was effectively buried as a topic of media interest by the news conference. Whilst, in the particular context, the language was somewhat unfortunate, as I have said, the notion was completely appropriate; accordingly, there was no call for any public unqualified withdrawal of the remark. I have not forgotten that Ms Foulkes said that she is still reminded from time to time by comments of acquaintances about it. This is not pleasant I suppose but I think that she is quite capable of making a robust response. 147 Accordingly, I am of the view that the defendants have not established the truth of imputations (b) and (c) in the first matter complained of and imputation (a) in the third matter complained of.

The defence of comment 148 The defendants contend that, if it be held that they have failed to establish the substantial truth of the imputations, they amount to comment relating to a matter of public interest. The Defamation Act 1974 (NSW) abolished in this State the common law defence of fair comment and provided a statutory defence. The relevant provisions are as follows - "30 Proper material (1) For the purposes of this section, but subject to subsection (2), proper material for comment means material which, if this Division had not been enacted, would, by reason that it consists of statements of fact, or by reason that it is a protected report within the meaning of section 24, or for some other reason, be material on which comment might be based for the purposes of the defence or exclusion of liability in cases of fair comment on a matter of public interest. (2) A statement of fact which is a matter of substantial truth is proper material for comment for the purposes of this section, whether or not the statement relates to a matter of public interest. (3) The defences under this Division are available as to any comment if, but only if: (a) the comment is based on proper material for comment, or (b) the material on which the comment is based is to some extent proper material for comment and the comment represents an opinion which might reasonably be based on that material to the extent to which it is proper material for comment. … 31 Public interest The defences under this Division are not available to any comment unless the comment relates to a matter of public interest. 32 Comment of defendants (1) Subject to sections 30 and 31, it is a defence as to comment that the comment is the comment of the defendants. (2) A defence under subsection (1) as to any comment is defeated if, but only if, it is shown that, at the time when the comment was made, the comment did not represent the opinion of the defendants. 33 Comment of servant or agent of defendants (1) Subject to sections 30 and 31, it is a defence as to comment that the comment is the comment of a servant or agent of the defendants. (2) A defence under subsection (1) as to any comment is defeated if, but only if, it is shown that, at the time when the comment was made, any person whose comment it is, being a servant or agent of the defendants, did not have the opinion represented by the comment. 34 Comment of stranger (1) Subject to sections 30 and 31, it is a defence as to comment that the comment is not, and in its context and in the circumstances of the publication complained of did not purport to be, the comment of the defendants or of any servant or agent of the defendants. (2) A defence under subsection (1) is defeated if, but only if, it is shown that the publication complained of was not in good faith for public information or the advancement of education." 149 The defendants rely upon the defences of comment of the defendants, comment of the servant or agent of the defendants and comment of a stranger. It is not disputed that the imputations relate to a matter of public interest. I think that plainly they do and it is unnecessary to discuss this matter any further. 150 The real question is whether the imputations were allegations of fact or expressions of opinion. The distinction between comment on the one hand and the statement of fact on the other is fundamental but, in many cases, it is not easy to draw. In the nature of things, the distinction will often be blurred. Imputations may contain facts, inferences drawn from facts, and expressions of opinion bundled together. Before dealing with each imputation separately I think it is useful to set out some judicial statements about the defence. A comment will only be defensible if it can be clearly identified apart from any matters of fact upon which it might be based. These facts must be sufficiently indicated at the time of the publication of the matter complained of. In Pervan v North Queensland Newspaper Co Ltd (1993) 178 CLR 309 (1993) 178 CLR 309 at 327 Mason CJ, Brennan, Deane, Dawson, Toohey and Gaudron JJ said - "[T]he facts on which the comment is based [must be] sufficiently indicated or notorious to enable persons to whom the defamatory matter is published to judge for themselves how far the opinion expressed in the comment is well founded."

Although some parts of the dissenting judgment of McHugh J have been understood or, at least, suggested as propounding a somewhat different test, this statement has now been expressly approved in the High Court: Channel Seven Adelaide Pty Ltd v Manock [2007] HCA 60, per Gummow, Hayne and Heydon JJ at [47]. 151 It is not, I think, controversial that the facts stated or sufficiently indicated upon which the comment is based must be true facts. The comment must be also be an inference or conclusion which an honest person, however biased or prejudiced, might reasonably draw from the facts so stated or known: Channel Seven Adelaide Pty Ltd v Manock [2007] HCA 60, per Gummow, Hayne and Heydon JJ at [90], adopting O'Shaughnessy v Mirror Newspapers Ltd (1970) 72 SR (NSW) 347 at 361 per Jacobs and Mason JJA and rejecting the submission that "reasonableness" was not a necessary element of the justification. 152 In John Fairfax Publications v O'Shane (2005) NSWCA 164 Giles JA said (at [27]) "the context and circumstances of the use of the words will be important" and went on to say - "[29]…In any given case, the question is whether the words would be regarded by the ordinary reasonable reader as comment or statement of fact, and the defendant must satisfy the tribunal of fact that they would be regarded as comment. All the circumstances are to be taken into account, and it must be remembered that the ordinary reasonable reader does not parse and pour over the published matter as the lawyers are inclined to do at trial. (cf Comalco Limited v Australian Broadcasting Corporation (1985) 64 ACTR at 40 , speaking of the more ephemeral television broadcasts)." 153 As is fairly obvious, it will often be very significant that what is claimed to be comment is on the one hand supported by the facts presented or indicated in the published matter or stated flatly without any such reference whether expressed or implied. In Kemsley v Foot [1955] AC 345 Lord Porter endorsed the following passage from Odgers on Libel and Slander 6th ed 1929 at 166 (at 356-7) - "Sometimes, however, it is difficult to distinguish an allegation of fact from an expression of opinion. It often depends on what is stated in the rest of the article. If a defendant accurately states what some public man has really done, and then asserts that 'such conduct is disgraceful' this is merely the expression of his opinion, his comment on the plaintiff's conduct. So, if without setting it out, he identifies the conduct on which he comments by clear reference. In either case, the defendant enables his readers to judge for themselves how far his opinion is well founded; and, therefore, what would otherwise have been an allegation of fact becomes merely a comment. But if he asserts that the plaintiff has been guilty of disgraceful conduct, he does not state what that comment was, this is allegation of fact for which there is no defence but privilege or truth. The same considerations apply were a defendant has drawn from certain facts an inference derogatory to the plaintiff. If he states the bare inference without the facts on which it is based, such inference will be treated as an allegation of fact. But if he sets out the facts correctly, then gives his inference, stating it as his inference from those facts, such inference will, as a rule, be deemed a comment. But even in this case the writer must be careful to state the inference as an inference and not to assert it as a new and independent fact, otherwise his inference will become something more than a comment, and he may be driven to justify it as an allegation of fact." 154 It is important to note that a listener to the radio does not have an opportunity to re-read material and accordingly, is hindered in making any analysis, even a cursory one, in an attempt to distinguish between comment and fact and foundational fact and inference or characterisation. Where the comments and facts are so mixed up that the listener, who is paying attention in the ordinary way, cannot distinguish with reasonable clarity which is which, the imputation is indefensible.

The "cover-up" imputations 155 So far as the material imputation is conveyed by the first matter complained of, the defendants contend that the following language is of particular significance - "…And I think what the rowing parents are saying is they practised a cover-up from the moment something happened to Sally Robbins and the leadership of the Olympic movement, Coates and others, virtually were telling these people what to say. Andrew Moore: That's right. At the press conference after Athens and before Athens and they are saying why did the coaches cover-up that Sally had done this before, that this had happened to Sally before?" 156 It is submitted that the imputation about practising a cover-up is a statement of opinion in that it is a conclusion or judgment based upon what had happened at the press conference. I do not agree. I do not think that this is how the reasonable listener would have understood what was being said. The reference to the press conference is not the matter from which the cover-up is inferred: it is the occasion upon which the cover-up took place. The cover-up was effectuated both by the plaintiff and others telling "these people what to say" and then what was said constituted the cover-up. 157 In the second matter complained of, imputation (a) was that the plaintiff ordered a cover-up over the collapse of Sally Robbins in the Olympic final of the rowing eights. Whether this is a comment, I think, requires attention to be paid to the whole of the material which it is convenient to set out again - "JONES: In sport, Australian rowing is embroiled in controversy. The parents of Sally Robbins' Olympic rowing mates have accused Australian sporting officials of ordering a cover up over her collapse in the final of the women's eights. Three parents of the crew have met with the Australian Sports Commission - I am Deputy Chairman of that, as you know, this is with the administration of the Sports Commission - to raise concerns that the AOC told the crew what to say at a news conference in Athens. Well, of course, John Coates has been head of the AOC for a long time, he's been Chef de Mission. He wants the good picture to come out and the good story and the good image. This has been badly handled. There are many who say it really is time for John Coates to give the guernsey to somebody else." 158 The words "ordering a cover-up" are explained to some degree by the reference in the second paragraph about "concerns that the AOC told the crew what to say at [the] news conference in Athens". However, it is far from clear that it was being said that this was the only "cover-up" ordered or simply one example of an unspecified but wider cover-up. The reason stated for "ordering the cover-up" is that the plaintiff had been the head of the AOC and was Chef de Mission and wanted "the good picture to come out and the good story and the good image" as distinct, of course, from a bad picture, bad story or bad image. I think it follows necessarily that the listener would have understood, at the least, that the fact was that the plaintiff had ordered the crew what to say and this was, in effect, to cover-up anything that might give a bad picture, story or image. The listener would have understood Mr Jones to be saying that, as a matter of fact, the conference was the result of that order. The statement about the cover-up is not a comment at all. Mr Jones is reporting, not commenting. His comment is that the plaintiff had to go. I mention, by the way, that this comment makes sense only on the basis that Mr Jones was of the view that the "accusations" made by and the "concerns" raised by the parents were true, in other words, he plainly enough adopted them.

The bullying imputations 159 The imputation as to bullying in the first matter complained of is that "the plaintiff bullied rowers into saying what he wanted them to say after the Sally Robbins' incident". In my view, this is a statement of fact, rather than a comment. The bullying is the mode by which the rowers said what the plaintiff wanted them to say. I do not agree with the contention of the defendants that the bullying was merely an inference drawn from the fact of the instruction: it was a description of the way that the instruction was communicated and how obedience to it was impelled, namely, by oppressive misuse of the plaintiff's position as head of the AOC and Chef de Mission. I do not think that "virtually" qualifies the sense of the matter.

160 The second matter complained of conveyed the imputation that the plaintiff, in his role as head of the AOC and Chef de Mission "bullied the crew…into saying what he wanted them to say". It is submitted by the defendants that the relevant part of the matter complained of included the reference to parents of the crew having met with the Australian Sports Commission and raised "concerns that the AOC told the crew what to say …" It does not seem to me that the particular passage or the sense of the passage as a whole supports the defendants' contention. The bullying imputation is a description or characterisation of what the plaintiff had done to the crew: it is not a comment on it. If there is an element of comment, it is so inextricably connected with the facts asserted that the defence cannot be availed of.

Leadership and incompetence 161 In the first matter complained of, the imputation referred to the plaintiff's "dealing with the Sally Robbins' incident" as "sadly lacking". The matter complained of referred to practising a cover-up, the plaintiff's telling the rowers what to say, the plaintiff's "wanting to pretend that his leadership is fine" when, in dealing with the Sally Robbins' matter his "leadership…was sadly lacking", there was a question as to why Ms Robbins was in the final when she had failed before and that when this happened "this wasn't the way to address it", Mr Moore asserted in an unqualified generalisation that "the whole thing was handled appallingly from well before Athens but certainly well into Athens" with Mr Jones obviously agreeing with this observation by commenting that the plaintiff "has been in charge of too many Olympic committees, it's time to give someone else a go". 162 It is submitted that the imputation was clearly a statement of opinion. It is contended that the reference as to the failure concerning the handling of the Sally Robbins' incident indicates that it was a commentary upon the handling of that incident. The matter complained of referred to the practicing of a cover-up, obviously by "the leadership of the Olympic movement" (not true), the coaches covering up that Sally had this before (not true) and the "whole thing being handled appallingly from well before Athens but certainly well into Athens" (false if it is a reference to the selection process and otherwise not demonstrated to be true) apparently in part at least because the plaintiff had "been in charge of too many Olympic committees" (if fact, not proved; if comment, not a fact). Although the matter is susceptible of doubt, I think that the imputation attacking the plaintiff's leadership is an inference drawn from the matters to which I have referred and therefore qualifies as comment. However, it is based on four matters, which if facts are either false or not shown to be true. 163 The second matter complained of starts with the allegation of a cover-up by "Australian sporting officials" obviously including the plaintiff, since his motive of wanting "the good picture to come out" etc. Mr Jones then said, "This [plainly the Sally Robbins matter] has been badly handled", showing that it was time for the plaintiff to give up leadership of the Australian Olympic movement. I think that the listener would have understood that it was by virtue of the ordering of the cover-up that the plaintiff's leadership was questionable. The imputation, in my view, is comment. The identified facts are the alleged cover-up and his telling the crew what to say at the press conference. Neither of these assertions are true. If the assertion that the matter had been "badly handled" is a statement of fact, it is not true or, at least, not established. If it is a comment, it is not a statement of fact. 164 The third matter complained of was held to have conveyed an imputation about incompetence in virtually the same language as that conveyed in the second matter complained of, with "Olympic leader" substituted for "head of the AOC". The defendants point to the passage in which Mr Jones asserts that many people "made mistakes" and that "and the end of the day, it was the Olympic leadership that were at fault". Mr Jones adopted what he had previously said, that the plaintiff had been in his position for too long, that there needed to be "a complete shift around" and that the "handling of that whole business was awful". The crucial sentence to my mind is: "A lot of people made mistakes and, at the end of the day, it was the Olympic leadership that was at fault". This reasoning is clear enough: the leadership (ie, the plaintiff) was to blame for the mistakes made. That is plainly a statement of fact. The explanation for the failure of the leadership was that the plaintiff had "been there too long" and thus a "complete shift" was necessary. The plaintiff's "handling of the whole business [that] was awful" is a statement of fact. It is a description of his leadership. It is not true. In my view the imputation found by the jury in respect of this matter is a statement of fact and is not comment.

If comment, are the imputations on proper material for comment. 165 Section 30(3) of the Defamation Act 1974 provides, so far as is presently material, that to be available as a defence, "the material on which the comment is based is to some extent proper material for comment and the comment represents an opinion which might reasonably be based on that material to the extent to which it is proper material for comment": s 30(3)(b). 166 I have also mentioned that, if the imputation be a comment, the publisher must show that it is based upon facts, stated, indicated or identified, which are accurately stated. The defamatory comment may be based on facts which are not published in the matter complained of but are nevertheless defensible where those facts are either expressly or by implication identified as being the source material for the comment or are notorious. As now characterised in the majority judgment in Manock [2007] HCA 60 at [49] there must be "a sufficient linkage between the comment alleged and the factual material relied on [which] can appear in three ways: the factual material can be expressly stated in the same publication as that in which the comment appears (ie by "setting it out"); the factual material commented on, while not set out in the material, can be referred to (ie by being identified "by a clear reference"); and the factual material can be "notorious". 167 So far as the first matter complained of is concerned, the defendants point to the following asserted facts - 1. Sally Robbins failed at the women's eight final at the Athens Olympic Games. 2. A press conference took place involving members of the Australian women's eight at the Athens Olympic Games. 3. The plaintiff was Chef de Mission at the Australian team at the Athens Olympic Games. 4. The plaintiff was in charge of the Australian Olympic Committee at the time of the Athens Olympic Games. 5. Sally Robbins previously failed as a rower. 6. A couple of rowers had stated after the Athens women's eight final that Sally Robbins had previously failed as a rower. 168 In my view, these matters did not and could not have provided the basis for any of the imputations found in respect of this matter. It seems to me that a fair minded person, no matter how biased or prejudiced, could not have made the comments expressed in the imputations conveyed by the first matter complained of based on these facts. 169 So far as the second matter complained of is concerned, the defendants point to the following facts contained in it - 1. Sally Robbins collapsed in the women's eight rowing final at the Athens Olympic Games. 2. A news conference involving members of the Australian women's eight took place at the Athens Olympic Games. 3. The plaintiff was Chef de Mission of the Australian team at the Athens Olympic Games. 4. The plaintiff was in charge of the Australian Olympic Committee at the time of the Athens Olympic Games. 170 In my view, these facts, either taken singly or together, do not remotely form a proper basis for the comment comprised by any of the imputations found conveyed in this matter. I do not think that a fair-minded person, however, biased, could have made such comments upon the basis of these facts, let alone reasonably. 171 In relation to the third matter complained of the defendants say that it contained the material fact that Sally Robbins stopped rowing during the women's eight final at the Athens Olympic Games. Self-evidently, this fact provided no proper basis for the comment. 172 The defendants submit that other facts were by implication referred to in the matters complained of and list the following - 1. The selection of Sally Robbins to row in the Australian women's eight team at the Athens Olympic Games. 2. The previous failures of Sally Robbins as a rower (on at least seven occasions according to Ms Doyle). 3. The discussions between Mr Jahrling and selectors in terms of replacing Ms Robbins prior to the Athens Games. 4. The plaintiff's conduct and/or conduct by Australian Olympic officials, in dealing with the Australian women's eight after the failure of Sally Robbins in the women's eight rowing final at the Athens Olympic Games. 5. The plaintiff's conduct, whether personally or by Australian Olympic officials, in dealing with the failure of Sally Robbins in the women's eight rowing final at the Athens Olympic Games. 173 It is difficult to know quite what is meant by the references to facts 3, 4 and 5. The discussions concerning replacing Ms Robbins were not in the public domain in any sense. Furthermore, the question of replacing Ms Robbins was not a matter for the plaintiff in any relevant sense. Facts 4 and 5 do not have any content. Do the defendants mean his conduct as notorious or publicly known or his conduct as now known? In this context it is probably worth referring to Syms v Wran [1984] 1NSWLR 317 where Hunt J said (at 322 citations omitted) - "Material is proper material for comment in accordance with the common law; this particular element of the defence is not codified: s 30(1). At common law, and thus under Div 7, a statement may be defended as comment only if the material upon which that comment is based was stated expressly or implied in the matter complained of or constituted a matter of contemporary history or general notoriety and thus, in one way or another, was made known to the person to whom the publication was made to enable those persons to judge for themselves whether they agreed with the opinion published by the defendant and based upon that material … In the usual case, the comment is based upon factual material - either stated in the matter complained of or otherwise known to the readers in the way which I have outlined. In such a case, the defendant must establish the truth of the facts so stated and the existence of the facts known to the readers. In such a case, the defendant must establish the truth of the facts so stated and the existence of the facts otherwise so known to the readers. Where the substratum of fact upon which the comment was based is itself a matter of notoriety, such as matter published in the plaintiff's own newspapers (as in Kemsley v Foot ), the defendant must produce those newspapers in evidence to enable the jury to determine whether the defendant's comment is one which might honestly be based on that material. A comment may be made upon any such matters which are expressly or impliedly submitted to public criticism or attention." 174 It may be accepted that fact 1 was in a relevant sense a matter of notoriety as was fact 2 but not the number of occasions, because this was referred to in the press conference. So far as facts 4 and 5 are concerned, it appears that the defendants rely on the matters to which reference was made in support of the contention that the imputations were substantially true. I have sufficiently set out those matters in dealing with this aspect of the case. In my view, they do not provide any proper basis for the comments constituted by the imputations. 175 The defendants additionally rely on a number of matters which do not seems to me to be implicit in the matters complained of or indicated or notorious. Of course, I only need to be concerned with those facts which are linked to the matters complained of because they are notorious, or those stated or sufficiently referred to. The defendants point to the facts stated in the Jahrling report of October 2004 (not linked), the evidence of Ms Doyle that Sally Robbins had failed on seven previous occasions (notorious as to some occasions), the Tancred media report to which I have already referred (not linked), the "admissions" made by the plaintiff's senior counsel during the s 7A proceedings (not linked), the plaintiff's evidence that managers and media liaison officers were found wanting (not linked), that the coaches could have better handled the situation (not linked), deficiency in the ability of the management of the team to respond (not linked), what is said to be the plaintiff's acceptance at the press conference of responsibility for the organisational failures that enabled the rowers to be overheard (without further discussion, this significantly misstates what the plaintiff said - he said that the AOC "shares responsibility" with Rowing Australia to the extent that the AOC accepted the nomination of the relevant persons by Rowing Australia and these persons had otherwise done a good job), the failure of the plaintiff to treat members of the team even-handedly (not true), the plaintiff's direction to Mr Huggett to remind the team of their obligations under the team agreement (not linked), the plaintiff's direction to Mr Huggett to place the team under "house arrest" (the plaintiff gave no such direction to Mr Huggett), the statement by Mr Huggett to Ms Doyle that if she did not apologise to the plaintiff she would be sent home (a statement for which the plaintiff was not in any sense responsible and, anyway, not linked), the statement by Mr Huggett to Ms Foulkes that a meeting was to be held with the plaintiff prior to the press conference in order to discuss "whether or not you will be sent home on a plane tomorrow" (a statement not authorised by the plaintiff or one for which he could be regarded in any sense responsible and, anyway, not linked), the evidence by Ms Foulkes as to how she felt as a result of the plaintiff's directions which, it is contended, amount to bullying by the plaintiff (I have already dealt with this matter and rejected the contention), the failure of the plaintiff to return Ms Foulkes' phone message (not linked), the plaintiff's comment about un-Australian conduct (notorious), the failure by the plaintiff to publicly withdraw it (notorious but it was substantially withdrawn in the press conference), the evidence of Ms Foulkes that she felt ill when she heard the comment (not linked), the evidence by Ms Foulkes that someone else made a comment to her about the remark much later (not linked), the fact that the plaintiff reminded the team members of the binding character of the media guidelines (notorious), what is said to be an admission by the plaintiff that he had received an absolute assurance from the women that there would be no criticism of Sally Robbins (notorious) as a sine qua non to the holding of the press conference (I do not accept the truth of this contention, the question simply did not arise), the plaintiff's introduction to the press conference that the team wanted an opportunity to address the media as to what happened in the race (notorious), the evidence of Ms Foulkes that she felt constrained as to what she could tell the media about the race and her feeling that she had been bullied (this does not represent fairly Ms Foulkes' evidence and is, anyway, not linked) and the evidence by Ms Doyle that she felt unable to answer questions in the way she wanted to at the press conference because of the plaintiff's instruction about obedience to the media guidelines (not linked). 176 The submissions of the defendants in this regard seem to be based upon the assumption that any matters of fact, of whatever provenance and whether in the public arena or not at the time of the publication can provide the substratum of fact upon which a fair minded person might make the published comments, whether or not they are indicated in the matter complained of. It is enough to state the assumption in this way to show that it cannot be right. The audience could never make any judgment about the justice of a comment that relied on privately known facts. 177 I think it is obvious that the notorious or referred to true facts could not provide a basis upon which a fair-minded person, however obstinate or prejudiced, could make any of the imputations, assuming them to be comments.

Honesty 178 The plaintiff contends that, if I am against him on the availability of the defence of complaint that I should find that the comments did not represent the opinion of Mr Jones and, in respect of the first defendant, that of its servant or agent, Mr Jones. In this respect, the plaintiff relies on an email sent by Mr Jones to Mr Tancred on 10 December 2004, a day or two after publication of the matters complained of. That email contained some general criticism of the AOC and Mr Jones' expression of his opinion that "it's time for change at the top" - obviously a reference to the plaintiff, perhaps amongst others and that he would be "arguing comprehensively" for this to occur. Mr Jones says, "it's not just this, it's a whole range of other things that have got athletes talking about their legitimate concerns … and it seems that the other time the AOC looks after athletes is when they've already been chosen for Australia". The email then continued - "However, I won't go on here. I noted your comment at the end. I didn't call because I didn't need to call. I have my own views, and I expressed them. I didn't say that the girls were told what to say. I couldn't have cared what the girls were told. But I know that by and large they were abandoned, and that's all that matters. And if the AOC was ignorant of circumstances confronting the crew then that's an abandonment of its own. …" 179 The denial by Mr Jones that he did not say that the crew was told what to say at the press conference is in stark contrast to the following words in the broadcast - · "They practised a cover up from the moment something happened to Sally Robbins and the leadership of the Olympic movement, Coates and others, virtually were telling people what to say." · "The parents of the crew…raised concerns that the AOC told the crew what to say at a news conference in Athens" plainly enough, a statement adopted by Mr Jones." 180 Having regard to the references to cover up and, by implication (as found by the jury) to bullying, I do not see how Mr Jones could candidly say that he did not care what the crew members were told. Indeed, as is clear from the contentions advanced on the defendant's behalf, a great deal of his case focuses on what the team was told. At the same time, I do not think that it would be fair to conclude from this email that Mr Jones did not believe that the team members were told what to say. I think he really intended to convey that this was much less important than his view that they "were abandoned". That is not to say that the opinions expressed by Mr Jones in the broadcast and that expressed in his email are consistent. However the plaintiff bears the onus of establishing that the opinions expressed in the comments were not honestly held. That requires me to find that I should prefer the statement in the email as an expression of Mr Jones' state of mind to that in the broadcasts. They are, I think, substantially inconsistent but I am unable to say which of them is the truth. 181 The plaintiff relies on additional circumstances which, he contends, strongly suggest that Mr Jones did not believe the comments he made. The first of these is an article by Roy Masters in the Sydney Morning Herald on 8 December 2004, which made no allegations that the team members were told what to say at the press conference. The reference by Mr Jones to what was being said by the rowing parents certainly does not come from that article, which details a number of statements made by parents to the Australian Sports Commission. 182 In the end, however, I am unpersuaded that Mr Jones' statements (attempting a neutral term) in the broadcasts were not honestly held.

Comment of a stranger 183 The defendants point to the Roy Masters' article as being part of the evidentiary material justifying the conclusion that indeed the "rowing parents" said what Mr Jones' asserted they said. Firstly, I do not think the newspaper report provides an evidentiary basis for finding that the "rowing parents" indeed said what was attributed to them. But, at all events, the newspaper report does not suggest that the parents alleged either a cover-up or that the team had been directed what they should say. Moreover, there does not seem to me to be a sufficient evidentiary basis for concluding that, indeed, the parents made the remarks attributed to them by the defendants. 184 At all events, it is clear that Mr Jones adopted what the parents had said so that, if it was their comment it also was his. Accordingly, it seems to me, that the defence under s 34 of the Defamation Act 1974 fails. It also seems to me that the allegations attributed to the parents of some team members as referred to in the first and second matters complained of namely, that the leadership of the AOC "practised a cover up" and "virtually were telling these people [the team members] what to say" and, in the second matter complained of that three parents of the crew raised "concerns that the AOC told the crew what to say at a news conference in Athens" are statements of fact and not comment.

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

Damages 186 I do not think that it can be doubted that the imputations were a serious attack on the reputation of the plaintiff. In the context in which they were made, namely his position as head of the AOC and Chef de Mission of the Australian Olympic team at the Athens Olympics, they amounted to a broad ranging attack not only upon his managerial capacity and judgment; so far as the bullying imputations were concerned, they bespeak an abuse of his position in relation to the very athletes for whose care he was ultimately responsible; so far as the "cover up" imputations are concerned, they necessarily involve, I think, the suggestion that he, in the position which I have described, was not only less than candid but also misused his position to present a false picture to the public of the management of the Australian Olympic effort so far as the Women's Eight rowing team was concerned. In short, the imputations of bullying and cover-up involved more than mere managerial incompetence or bad judgment, but amounted to attacks on his personal integrity. Of course, the slurs, though focused on the management of the women's eight team, necessarily affected his reputation and work as head of the AOC and Chef de Mission at the Olympic Games as a whole. That this was understood by the defendants is clear by Mr Jones' repeated assertions that what had occurred demonstrated the plaintiff's unfitness for his position. 187 There was no specific evidence as to size of the audience of the three broadcasts, as I understand it because they occurred outside the ratings periods. However, the plaintiff tendered three Nielsen surveys for the two survey periods before the publications and the survey period after them. Assuming consistency, and there is no reason to suppose otherwise, at least in order of numbers, the early morning audiences would have been perhaps around ninety thousand and that for the later morning broadcast of something well over one hundred and seventy thousand people. Taking into account the grapevine effect it can be readily accepted that the number of persons who became aware of the defamatory imputations to a greater or lesser degree of specificity was very large and certainly enough to adversely effect the plaintiff's reputation in the world outside his immediately social, sporting and business associates. The imputations would also, I think, have come to the ears of all those committees and bodies of which he was a member and with which he had dealings in his professional capacity. 188 There was substantial evidence of the plaintiff's reputation. He is a well-regarded solicitor, a partner in a substantial and well-known Sydney firm, and is a member of the Boards of a number of public companies. His connection with sporting bodies at the highest level, including those that are part of the Australian Olympic movement, have been long standing and have given him not only a national but an international reputation. His continued involvement in the Olympic movement means, of course, that he has continuing responsibilities in connection with athletes in a wide range of sports, some who might know him but many of whom would only know him by reputation. A great deal of what he does necessarily involves personal communication, whether directly or indirectly. Respect for the leadership, management, judgment and propriety of someone in the plaintiff's position is therefore a vital part of his or her effectiveness. It is self-evident that the plaintiff must be in communication with heads of other sporting bodies in Australia and abroad where mutual trust and respect is essential for effective working relationships. The defendants' attack on the plaintiff's reputation has the real potential for inflicting particular injury in this context. 189 The plaintiff gave evidence of his feelings of annoyance and hurt when he heard the broadcast of the first matter complained of on 8 December 2004 (there is a question whether the plaintiff actually heard the first broadcast but I accept his evidence that he did). As it happened, he did not hear the second broadcast but found out about it later in the day. He said that the imputation about the cover-up made him feel "terrible". He heard the third broadcast on 9 December 2004 and gave evidence that he was upset by it. The plaintiff attended the AOC Christmas party on 9 December 2004. He said that Mr John O'Neill, at the time the Chief Executive of the Football Federation of Australia raised the broadcasts with him as did others who were at the party, all having significant positions in Australian sporting life. They were again raised later when, with his family, he went to the Gold Coast for a holiday. He was troubled also that the attack on him might damage the reputation of the AOC, to which he has given many years of his life. He was asked how that affected him and said, "Well, it terribly upsets me, greatly upsets me…" Hitherto the plaintiff had given his evidence in an unemotional and carefully modulated manner. At this point, there was a significant though controlled change. I have no doubt that he felt very deeply indeed about the attacks on him and their possible effect on the movement about which it is obvious he is passionate. This was still evident two and a half years after the broadcasts. 190 The litigation had taken some two and a half years to get to hearing. Being a litigant is a troubling and difficult experience, especially where, in a proceeding such as this, the defendants maintained that the imputations they had made against the plaintiff's character were substantially true. The cross-examination of the plaintiff by senior counsel for the defendants was, as one would expect, a skilful dissection of the plaintiff's evidence and conduct, which, although perhaps it was not designed to hurt, gave no quarter. It would have been an exceedingly unpleasant experience. The suggestion in submissions made in open court that the plaintiff had attempted to cover-up a scandal and that this was by bullying the athletes, must have added salt to the wounds. 191 The defendants submit that the imputations against the plaintiff's reputation and character made by the defendants are at "the low end of the scale of seriousness". It is obvious from what I have already said that I do not agree with this characterisation. I regard the attacks as very serious, adversely affecting his reputation, not only for managerial competence, but personal integrity. The imputations about bullying involve the abuse of his authority whilst the allegations about cover-up attack his candour and honesty. Indeed, Mr Jones himself thought that they were sufficient to require the plaintiff's removal from his position of leadership of the Australian Olympic movement. It may be that people who know the plaintiff well would have dismissed the imputations out of hand but, even here, the confidence of rejection might have been undermined somewhat by the persistence of the defendants in maintaining that they were true. It should also be borne in mind that, in the third broadcast, Mr Jones reminded his listeners that he was Deputy Chairman of the Sports Commission, so he was not speaking as a mere radio commentator. The plaintiff's reputation in the sporting community may have remained largely intact, at least by many of those with real knowledge of his work and commitment but this comprises but a relatively small portion of those with an interest of greater or lesser kind in the plaintiff's reputation. It is obvious that the sports that are involved in the Olympic movement form a web of continuing interaction at a number of levels, including those in which the plaintiff is directly involved. This very large group of people - officials, athletes and their coaches and families - have more than the passing curiosity of the uninvolved members of the public who may have happened to have heard the broadcasts. Doubts about the plaintiff's judgment, fairness and candour might well have been introduced, doubts with which he should not need to deal. The confidence of a significant number - especially those involved in the Olympic movement - about his reputation would probably have been weakened by the knowledge that the defendants have maintained throughout that the imputations were substantially true. Be that as it may, it defies commonsense to think that there would not have been a large number of members of the general public and especially those interested in sport whose opinions of the plaintiff would not have been adversely affected by the broadcasts and who still have those opinions or concerns. 192 The defendants put in mitigation of damages that the broadcasts were transient or ephemeral in nature, contrasting this with a newspaper report which would be in permanent form and might readily be reread. I do not think much of this. Newspapers are almost as ephemeral and are I think rarely reread. There were three broadcasts, the third reminding listeners - and I think there are many loyal listeners - of what Mr Jones had previously said. 193 It is argued also by the defendants, relying on John Fairfax Publications v Zunter [2006] NSWCA 227, per Handley JA at [50]-[51] that the plaintiff's damages are mitigated by proof of such parts of the matters complained of as are established. I am very doubtful that any of the matters relied on (set out below) fall within the principle stated by Handley JA but, against the possibility that I am mistaken in this view, I should state my conclusions about the substance of the submissions are stated. 1. The evidence by Ms Foulkes that she felt humiliated at being placed under "house arrest" by the plaintiff and the admission by the plaintiff that his intention was to "punish" the team and such punishment was collective punishment. 2. The plaintiff's "un-Australian" comment. 3. The evidence by Ms Foulkes by feeling "physically sick" on hearing about this allegation which had not been publicly withdrawn. 4. The evidence of Ms Foulkes that she felt she had been bullied; and 5. The evidence by Ms Doyle that she was terrified at not being able to answer the questions in the way she wanted to at the press conference because of the plaintiff's instruction about the media guidelines. 194 The first, and most obvious point is that none of these matters were mentioned, either explicitly or implicitly in any of the matters complained of. Nor do I see how any of them mitigate the damage inflicted by the imputations. I have already said that I regard the plaintiff's direction to the team to return to the village and remain there until the interview with him the following morning to be a reasonable and indeed a sensible approach to the developing problem. That individual team members might have overreacted to the direction cannot be laid at the plaintiff's door. The plaintiff did say that there was a measure of discipline involved in what he did. No doubt there was. But I think it was not one whit more than was appropriate. So far as it involved "punishment", it was mild and necessarily followed from the decision to get the crew back to the Village at a reasonable time and stop any further problems from developing, insofar as that was possible to do. The "un-Australian" comment was unwise but its significance has been overstated considerably. The plaintiff was entitled to deprecate strongly the making of criticisms of Sally Robbins by her team mates and to point out that this was detrimental to the integrity not only of the Women's Eight team but also reflected badly on the Olympic team. This was a perfectly reasonable opinion to have - and, as to the first element at least, demonstrated by what happened - and the mere fact that he used picturesque language to express it does not make it unreasonable. It was perhaps an unwise expression in the circumstances but it is immaterial to the measure of the plaintiff's damages. Accepting that Ms Foulkes was ill when she heard of the comment, I think that this was an overreaction to which it was not reasonable to suppose the plaintiff should have adverted. As to bullying, Ms Foulkes was not, and none of the crew were, bullied by the plaintiff. I have already commented that the defendants' submissions misstate the evidence on this matter. As to Ms Doyle, she was bound - and rightly bound - by the media guidelines to which she had agreed as a condition of her selection in the team. To have criticised Ms Robbins further would have undermined the line that the crew had agreed should be adopted and destroyed the unity which they wished to demonstrate. Insofar as she was influenced by the plaintiff's insistence on compliance with the guidelines, this was salutary in the circumstances. The plaintiff was entitled to give priority to the line that the team wished to adopt: it was plainly right and it was plainly in their interests. 195 The defendants' submit that all the imputations are to the same purport or effect and therefore that the damages awarded in respect of each should be taken into account in mitigation of the damages of the others. In a sense, the imputations are connected: the bullying was the mode by which the cover-up was attempted and both bullying and cover-up reflected badly, if true, on the plaintiff's management and leadership. Nevertheless, each is a distinct attack on different aspects of the plaintiff's reputation. In setting the damages, I have stood back to consider whether the total awarded involves double counting or a sum greater than that justified by the total effect of the imputations and needed to compensate him appropriately for the defamatory publications.

Aggravated damages 196 The plaintiff seeks aggravated damages for the following reasons. Following the first two broadcasts, Mr Eales telephoned Mr Jones to tell him that the allegations were false. Mr Jones responded with language about the plaintiff that was characterised by Mr Eales as "not highly complimentary" and which, I infer, were offensive. On 9 December 2004 Mr Jones, despite what he had been told by Mr Eales, attacked the plaintiff again although he did not repeat in terms the cover up allegations, he adopted what he had said the previous day in introducing the attack on the plaintiff's competence. It is submitted that this conduct was "improper, unjustifiable and lacking in bone fides" such as to justify aggravated damages. 197 The plaintiff was upset by Mr Jones' response to Mr Eales' intervention: not only was there was no correction of what had been previously said, but the attack was pressed and the previous allegations adopted. 198 The plaintiff also relies on the email from Mr Jones to Mr Tancred to which I have already referred. The third matter is the inconsistency between the broadcasts and the article in the Sun Herald upon which it was said to be based. Furthermore, Mr Jones did not make any inquiries of the plaintiff and did not refer to Mr Tancred's denial as reported by the journalist in the article. This, it is contended, indicates such a gross disregard for principles of ordinary decency and fairness in the context of an attack upon the reputation of a person as to indicate an indifference to the truth and an indulgence in the powerful platform provided by the first defendant to the second. 199 Although I think there is a proper basis for the submissions in this regard made by the plaintiff, and the case mounted by the defendants on the issue of truth was tissue thin, I do not think that it has been established to the appropriate standard that the defendants have acted so egregiously as to justify the award of aggravated damages. The lack of any apology and the persistence by the defendants in their plea of truth may be taken into account appropriately in the award of compensatory damages.

Conclusion 200 The damages to which the plaintiff is entitled is such sum as will place him in the same position as he would have been in had he not been wronged, to the extent that money can do this. This requires consideration, not only of his injured feelings but the amount that will vindicate his reputation. To some extent, this judgment should do so, but it is unreal to suppose that it will be read, or even come to the attention, of many. A substantial sum must be awarded, in my view, to satisfy the purposes of the law. It is unreal to award separate sums for each imputation or each publication. I propose to award an amount in respect of each class of defamatory matter. 201 Accordingly, in respect of the bullying imputations, I award the sum of $130,000, in respect of the cover-up imputations, the sum of $130,000 and, in respect of the incompetence imputations, the sum of $100,000. 202 I will deal with the questions of interest and costs after submissions on the point.

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