Friday 14 October 2005
NATIONWIDE NEWS PTY LTD v RICHARD SLEEMAN
Judgment
1 MASON P: I agree with Brownie AJA.
2 BEAZLEY JA: I agree with Brownie AJA
3 BROWNIE AJA: The appellant was the publisher of The Australian newspaper. On 8 June 2000 it published in that newspaper an article which, numbering the sentences for ease of reference, was in this form:
(1) IAN Thorpe was treated like a god following his world-record-breaking swims at the Olympic trials. (2) At just 17, Thorpedo charmed the public outside the pool too - with his characteristic modesty and sweet nature. (3) Sadly, the goodwill Ian and his manager, David Flaskas, felt towards the media pack has somewhat diminished after a cover story, The Water God, appeared in Fairfax's Good Weekend. (4). According to the write-off, "Richard Sleeman meets the almost too-good-to-be-true teen with the world at his big, big feet - and discovers his surprising plans for after the Olympics". (5) (Disclosure: Thorpe has a contract to write exclusively for The Australian and was recently interviewed at length by this newspaper's Fiona Harari for a magazine piece). (6) The background to the Good Weekend article is complex, but the upshot is that Thorpe did not agree to be interviewed for the profile, did not pose for photographs for the magazine and was surprised to discover he had allegedly told the journalist he may retire after Sydney 2000. (7) "He's having a break like all the other swimmers," Flaskas says. (8) To be fair, Sleeman did have some access to Thorpe and his family - way back in January - and he did attend press conferences to get the rest of his material. (9) He also snatched poolside conversations with him, of which Flaskas was previously unaware. (10) But, according to Flaskas, the piece was dishonest because it was presented as if Sleeman had spoken to Thorpe recently and at length. (11) It is the first, but probably not the last, time the young swimmer has felt exploited."
4 At a hearing conducted pursuant to s 7A of the Defamation Act 1974 (the Act) the jury found that the following two imputations had been conveyed, and that they were defamatory of the respondent:
"(a) The [respondent] is a dishonest journalist.
(d) The [respondent] in writing a piece on Ian Thorpe deliberately gave the false impression that he had spoken to Ian Thorpe recently and at length."
5 At a later hearing, Levine J rejected various defences that had been taken by the appellant, and assessed damages. There is no appeal from the verdict of the jury, but a number of his Honour's findings are challenged. In summary, the questions pleaded and now raised on appeal go to questions about comment, truth, and the measure of damages.
6 In order to deal with these issues, it is necessary to set out the article published in the Good Weekend, at length. There was a headline "The water god", followed by the words "Ian Thorpe … all-round nice guy, wet or dry", and then there were some introductory sentences, in these terms:
"At 15, he splashed onto the world swimming scene, leaving all in his wake. Today, Ian Thorpe is bathed in fame, glory and riches … and is still too young to vote. Richard Sleeman meets the almost too-good-to-be-true teen with the world at his big, big feet - and discovers his surprising plans for after the Olympics."
7 There followed a headline, reading "Laps of the god". The respondent did not write any of this, but he did write what followed, reading (with the addition of numbering for the sentences):
"(1) When Ian Thorpe takes to the water, leaping from the edge of the pool, he doesn't dive so much as unravel. (2) The way he extends and stretches and uncoils, he could be Inspector Gadget, rather than a kid from Sydney's south-west going to his home-town Olympics as possibly the greatest swimmer the world has seen.
(3) Everything about Thorpe is extraordinary. But this simple act of getting into the pool for a training session might be the most amazing sight of all. (4) You could swear his feet are still touching the pool deck by the time his fingertips break the water's surface. (5) Between these extremities, the rest of him arches upwards and outwards.
(6) Is it this flexibility that makes him so good? (7) Is it that relaxed, slow-motion style, so distinct from anyone else's in world swimming? (8) Is it just his damned hard work, or maybe his highly technical and scientific level of training and preparation? (9) Superior coaching perhaps? (10) Happy home life? (11) Unflappable temperament? (12) The bodysuit? (13) Those flipper feet? (14) Certainly not drugs, as that impertinent German coach suggested. (15) If none of these, what then?
(16) The thing about Thorpe is that his avalanche of freestyle world records - 10 in two years - defies explanation. (17) Yet when the world sees something it can't comprehend, like this 17-year-old gliding through water with the speed and grace and singlemindedness of a seal after a fish, world records tumbling in his wake, it demands an answer.
(18) Brad Fittler is arguably the best rugby league player in the world and moves about the playing field effortlessly, knowing what will happen minutes before it does. (19) He watched Thorpe from poolside in the latest wave of world records. (20) "It gives me the shits," Fittler called out to anyone in earshot. (21) "How can one sportsman be so good at something and make it look so easy?" (22) Every other swimmer, every coach, in the world wants to know his secret. (23) But not even Thorpe himself can explain it.
(24) Here he is, fresh and relaxed at the end of a pool session, lounging about like any big, happy, gawky teenager, in a room adjoining the Sydney Olympic venue. (25) On the other side of the window, dozens of lesser swimmers pound up and down the lanes, and you wonder how, like fish in a crowded tank, they never bump into each other. (26) The air hangs thick with the smell of pool chemicals and Olympic dreams.
(27) Thorpe's hair and towel and costumes are still dripping wet and, as he speaks, he's oblivious to the small lake that develops around him. (28) You are instantly struck by the warmth and confidence he exudes. (29) The almond eyes sparkle, ringed by marks left by his goggles. (30) The smile is wide-mouthed and welcoming; teeth in perfect rows.
(31) It would seem a simple question to ask first up: why are you so good? (32) Thorpe isn't exactly stuck for words - he'd talk underwater - but he does puzzle over it for a while, and then can't find a satisfactory answer.
(33) "A lot of it's to do with using the smallest amount of energy above the water," he says. (34) "I look like I'm going slow on top of the water, but underwater's where it's all happening - the bit you don't see from the stands." (35) His coach, Doug Frost, calls it "sliding freestyle". (36) Says Frost: "He has this - what would you call it? (37) That's it. (38) A 'feel' for the water. (39) He gets up on the plane, the way a speedboat does."
(40) His stroke-rate is absurdly slow. (41) When Kieren Perkins broke world records in the recent past - and even Grant Hackett now - they completed more than 20 strokes per lap. (42) Even when he cranks it up, Thorpe never completes more than 16 strokes.
(43) The irony is that Thorpe works hard at looking so relaxed. (44) When he broke the 400 metre world record yet again at the Olympic trials which ended last weekend, he went home and watched the footage of the race taken from below the water. (45) He watched it over and over again, at home, at training, at his manager's. (46) Not satisfied with knocking half a second off his world mark, he went searching, painstakingly, for improvement. (47) Then he came out and chipped a bit more off his 200 metre world record the following night in the semi-finals, shrugging his shoulders at the end of it as if to say, "I thought there might be a bit more in me." (48) There was. (49) The next night, in the final, he broke the record again.
(50) Says Thorpe: "I'm constantly working on the stroke. (51) I get so frustrated when my stroke's out." (52) In fact, his stroke hasn't been out since he was eight. (53) But there's a search for perfection here that's unparalleled. (54) Perhaps that's the real reason he's so good. (55) Nothing's ever good enough. (56) No limits. (57) That, and the realisation of how transient fame and life are.
(58) Thorpe's intensity drops off when the conversation turns to life outside swimming. (59) Don't be the least bit surprised if he does a "Shane Gould" and quits, or at least takes a very long break from swimming, after the Sydney Olympics. (60) As a Sydney teenager at the Munich Olympics, Gould won five medals, three of them gold. (61) She broke two world records in the process. (62) Going into Munich, she was every bit as dominant as Thorpe has been in the lead-up to Sydney. (63) Months later, Gould was lost to the sport, gone west, literally, to the obscurity of a small farm south of Perth.
(64) "I won't be swimming after the Olympics," Thorpe says, leaning across and speaking in a conspiratorial tone. (65) He doesn't specify whether he means for a short time or forever. (66) He has not told this to anyone publicly before. (67) "I want to go to university to study psychology, or medicine. (68) I would like to earn my living as a psychologist or a surgeon. (69) You won't see much of me after the Olympics. (70) I want to be able to go to the movies like a regular person and be no-one special."
(71) THIS IS NOT A ONE-DIMENSIONAL, TUNNEL-visioned swimmer, however much time he puts into the hunt for the perfect stroke. (72) Thorpe may have quit school at 14, but it had nothing to do with a shortage of brain power. (73) He was dux of his primary school and scored in the high 90s at East Hills Boy's Technology High in the School Certificate, which he completed by correspondence. (74) He has since taught himself French, studies the classics at home for "something to do", reads voraciously and day-trades on the stock market from his computer. (75) "Swimming is never mentioned at home," he says. (76) "It's a rule. (77) Home is my safe haven."
(78) The choice between a "normal" teenager's school life and that of a full-time professional swimmer was made when Thorpe was 14. (79) He was a "freak" swimmer, really, at 12. (80) His father, Ken Thorpe, remembers a State short-course meet when Ian, at that tender age, had 13 swims for 13 State records. (81) "I knew at that moment," Ken says, "that we had a very special boy on our hands."
(82) But Ken and his wife, Margaret, had seen their daughter, Christina, squander her education in search of swimming glory, before an injury cut short a promising career as a distance freestyler which got her to the Pan Pacific titles in 1995.
(83) Ken Thorpe recalls the family gathering that would decide whether young Ian became a swimmer or a student. (84) Sport or an education? (85) You can't have both these days, such are the demands of modern-day training.
(86) "It was the strangest conversation." Ken recalls. (87) Thorpe Snr was an accomplished cricketer who played alongside Len Pascoe and Jeff Thomson at the Bankstown club. (88) Margaret Thorpe is a schoolteacher. (89) You'd expect the former would push for the sports option for their son, and the latter for an education. (90) Says Ken: "It was the exact opposite. (91) I wanted him to stay at school and complete his education. (92) Margaret wanted him out of school and into swimming full-time."
(93) Luckily for a lot of people, Margaret Thorpe got her way. (94) That decision has changed more lives than just Ian's. (95) He's a millionaire in endorsements alone, but Thorpe is not the only one to benefit. (96) The family home used to be a modest pile in Milperra, a suburb best remembered as the site of the Father's Day bikie gang massacre in 1984. (97) Now home is a comfortable new brick place at Voyager Point, on the Georges River, in a complex called The Sanctuary. (98) Ken has taken redundancy from his council job.
(99) Doug Frost, Thorpe's grey, balding, bespectacled mentor, has struggled as a coach for 40 years for few rewards. (100) He had a world championship finalist once in Phil Bryant, but never a star. (101) Says Frost: "I could never even afford a decent car to go to training. (102) It'd be, like, 5am on a cold winter's morning and the old bombs I had wouldn't start. (103) Many's the time I had to walk to the pool in the pitch black or get one of the mums to pick me up. (104) When grants were handed around, I never got one."
(105) And when swim coaches were mentioned in the newspaper, it was always the Lawrences, the Bucks, the Talbots. (106) Now Frost gets his name and mug shot in the paper on a regular basis, banks a hefty stipend from the Australian Sports Commission and the NSW Institute of Sport and drives a black BMW with customised plates and expensive golf clubs in the boot. (107) On the pool deck at important meets, coaches from around the world follow him like he's the guru, taking notes as they trail in his footsteps. (108) When Thorpe breaks yet another world record, they run from everywhere to shake Frost's hand, as it some of his secrets might rub off.
(109) Then there's Thorpe's agent, David Flaskas. (110) The pair are exceptionally close. (111) Flaskas looked after Christina Thorpe, who now works for him and handles all calls on Ian's time. (112) Before Thorpe, Flaskas was a relative minnow among the sharks in the sports agent business. (113) Now he talks "global strategies", rolls off the big-name companies that support his charge, and admits: "It has been fantastic financially." (114) If Thorpe Inc, rather than just Ian himself, ever floated, it would cause a stampede.
(115) Flaskas is in awe of Thorpe, his talent and maturity. (116) "It's like Ian's been here before," he says.
(117) THORPE'S FIRST TENTATIVE STROKES IN A swimming pool were far from god-like. (118) Doug Frost recalls how Thorpe as a seven-and eight-year-old used to accompany his sister to the old Padstow pool. (119) "He was allergic to the chlorine," says the coach. (120) "He refused to get his face and head wet. (121) If he did, he'd break out in a bad rash or something. (122) It was hardly an auspicious start to a swimming career.
(123) "I tried to reach him how to dive in, but that meant getting his face wet. (124) So he'd do the belly flop and thrash about. (125) I've got some old footage of him somewhere. (126) I must get it out. (127) He was all straight-armed and half-drowning."
(128) Over the years, they developed, honed and adjusted his precisely balanced stroke. (129) "Ian has absolutely no flat spots in the stroke," says Frost. (130) "Not even under the most intense pressure."
(131) Frost is asked if Thorpe has any faults. (132) "If he has one, I haven't seen it yet. (133) He's competitive, but not aggressive. (134) He treats other competitors with great respect. (135) He never misses a training session. (136) He's rarely even late for one."
(137) They made one big tactical blunder in the 1998 World Championships in Perth - letting Grant Hackett get a big lead in the 400 metres. (138) Thorpe reeled him in, but only in the nick of time, to become the youngest-ever world champion. (139) Says Frost: "My plan - our plan - was flawed. (140) We underestimated Hackett. (141) It won't happen again." (142) It's why Thorpe now leads in all his races, and when in front, relentlessly drives further and further ahead.
(143) That same night, In the Sydney Children's Hospital on the other side of the continent, a young, seriously ill cancer patient who also happened to be Ian's closest friend yelled so loudly at the television in support of Thorpe that nurses feared for his life.
(144) They make quite a pair, Ian Thorpe and Michael Williams. (145) They met when Thorpe's sister, Christina, was first dating Michael's brother, David. (146) When Michael, at age 11, was struck down with lymphoma, Thorpe was 14, his career just taking off. (147) Thorpe told Sports Illustrated , "It was a strange time, all the sponsors coming into my life, all the interviews and the limelight. (148) I realised how little it all meant. (149) It gave me no power to help Michael."
(150) For a time, Thorpe struggled with his own goals as Michael fought against the inoperable cancer and sickening chemotherapy. (151) More than once, Michael was given up for dead. (152) Thorpe wondered at the point of it all. (153) He credits his sick friend with getting him back on track.
(154) He says, "What I saw because of Michael was how precious life is, how important it is to love what you do, every day, to appreciate and make the most of your gifts. (155) It changed my life. (156) It opened my eyes to the world. (157) When I was feeling pain in workouts, I'd start thinking: this is nothing compared to what Michael's going through."
(158) If Michael's courage inspired Thorpe, then the reverse was also true. (159) His health began to improve, the cancer went into remission. (160) Thorpe shouted his mate a trip to the Commonwealth Games in Kuala Lumpur and Michael watched from the stands while Thorpe won four gold medals.
(161) Michael's cancer is still in remission, he and Thorpe are family now that Christina and David Williams are married, and you'll rarely see Thorpe compete without Michael in the stands, stopwatch in hand, cheering him on. (162) When Thorpe won $25,000 as the first swimmer to break a world record in the Olympic pool at Homebush, he donated it to children's cancer research.
(163) Thorpe, too, benefits from scientific research. (164) The bodysuit cuts down times, no doubt about it. (165) So does the altitude training in the Snowy Mountains and Colorado. (166) There's the stroke assessments from the underwater video, guidance in nutrition and diet, lactate tests, skinfold tests, gym programs. (167) Nothing is left to chance.
(168) For some of us, it might be reassuring to know that not even medical and scientific breakthroughs can help Thorpe in another sport.
(169) His father wanted him to be a cricketer.
(170) But, "Ian has absolutely no hand-eye co-ordination. (171) He can't catch or throw," says Ken. (172) "Put him on the cricket or football field and it's embarrassing."
(173) Want to beat Ian Thorpe? (174) Just throw him a cricket ball.
8 Various photographs accompanied the article, and at the end there was a table listing the world records Mr Thorpe had broken, including three during May 2000.