Plaintiff v Defendant

Plaintiff v Defendant - [2010] VSC 155 - VSC 2010 case summary — Zoe

[18]

"National coach Martin Barras believes the Australian track team is the strongest Olympic cycling outfit ever assembled by any nation in the history of the Games.

Not usually driven to bold statement, Barras predicts the embattled Cyclones will emerge from the drug storm created by the accusations of Mark French to reassert their greatness.

'I don't have any reservations to say that this is the strongest team ever put on the track - not just an Australian team - but any team internationally,' Barras said.

While refusing to quantify the strength of the 14-rider squad with medal forecasts, Barras said the Games would provide the platform for people to judge the team, rather than on the basis of French's now disproved allegations. French, who has been banned from the Olympics for life for trafficking banned substances, claimed five riders - including Sean Eadie, Shane Kelly, Graeme Brown, Brett Lancaster and Jobie Dajka - were using illegal substances.

Retired judge Robert Anderson, QC, found there was no truth in French's allegations.

'People just need to see this group - staff and riders - and see them for what they are, instead of through the distorted views and allegations of disgraced drug cheats,' Barras said.

'They need to see these people for what they are. They need to see these guys on a day-in, day-out basis under real pressure to see what kind of people they're really dealing with. Then people could get a grasp of what they're all about. We just need a fair go.'

Australia won three gold medals - two through sprinter Anna Meares and the 4000m pursuit team - at the world titles in May and a similar performance in Athens would be beyond even Barras' wildest dreams.

But Barras contends the bizarre lead-up to the Olympics could favour Australia.

'We've been in the eyesight from the word go and it's been extraordinary conditions. By the same token, we're going into the Olympics and (its) about handling the extraordinary. Nobody has had any better preparation for that than this group,' he said.

'The most important thing - and I said this as soon as I took over - is that by the completion of the Olympics, we can turn around and say the Australian national track cycling team is the best team in the world.'"

[20]

"Australian cycling coach Martin Barras has demanded a fair go for his record-breaking team after Ryan Bayley, Stuart O'Grady and Graeme Brown made the Cyclones the most successful unit in Olympic history.

Australia finished with a stunning five gold, two silver and two bronze medals - as well as three fourths - from 12 events at the velodrome to bury the angst-ridden controversies of the past eight months.

On the road, Sara Carrigan took gold, while Oenone Wood and Michael Rogers finished fourth.

But Barras suspects the effort to dwarf Australia's previous best result at the Games - two golds at Helsinki in 1952 - will not be sufficient for the sceptics who continue to deride the team's character in the wake of Mark French's drug allegations.

'I can't help what people might say,' Barras said. 'All I ask is that this team is given a fair go. They have shown what they are made of and people should judge them on that.

'I said before the Games that I wanted to show that we run the best business in the world, that we run the best program in the world and we have shown that. I can't do anything about what people might say or think.'

Barras is one of the architects behind a phenomenal team, shielding it from the barbs resulting from French's disproved claims Sean Eadie, Jobie Dajka, Shane Kelly, Graeme Brown and Brett Lancaster were drug cheats.

While Barras was confident in his ability to cosset his squad from the pressures of the various Court of Arbitration for Sport appeals, he had only a sneaking suspicion of what Bayley and the rest of the outfit was about to unleash.

'What can I say?' he said. 'I'm very pleased. We came here knowing what we wanted to do.

'We knew we had strength across the board and the riders were in the right frame of mind.

'Our job - from the masseurs to the mechanics and coaches - was to get the riders on the line in the best possible condition.'

Barras said head coach Shayne Bannan yesterday began planning for Beijing, identifying emerging talent while reconciling themselves to temporarily losing professional road riders until 2008.

Kelly, 32, and Bayley, 22, are intent on being in Beijing where the unconventional Bayley will attempt to defend his sprint and keirin titles."

[32]

"A person's reputation may therefore be said to be injured when the esteem in which that person is held by the community is diminished in some respect.

Lord Atkin proposed such a general test in Sim v Stretch, namely that statements might be defamatory if 'the words tend to lower the plaintiff in the estimation of right-thinking members of society generally'. An earlier test asked whether the words were likely to injure the reputation of a plaintiff by exposing him (or her) to hatred, contempt or ridicule but it had come to be considered as too narrow. It was also accepted, as something of an exception to the requirement that there be damage to a plaintiff's reputation, that matter might be defamatory if it caused a plaintiff to be shunned or avoided, which is to say excluded from society.

The common law test of defamatory matter propounded by Lord Atkin was applied in Slatyer, although Griffith CJ expressed some concern about the ambiguity of the expression 'right thinking members of the community'. The general test, stated as whether the published matter is likely to lead an ordinary reasonable person to think the less of a plaintiff, was confirmed by this court in Mirror Newspapers, Chakravarti v Advertiser Newspapers Ltd and by Callinan and Heydon JJ in John Fairfax Publications Pty Ltd v Gacic. Gummow and Hayne JJ in John Fairfax referred to the likelihood that the imputations might cause 'ordinary decent folk' in the community to think the less of the plaintiff.

Putting aside Lord Atkin's additional requirement of being 'right-thinking', the hypothetical audience, that is to say the referees of the issue of whether a person has been defamed, has been regarded as composed of ordinary reasonable people, whom Spencer Bower described as 'of ordinary intelligence, experience, and education'. Such persons have also been described as 'not avid for scandal' and 'fair-minded'. They are expected to bring to the matter in question their general knowledge and experience of worldly affairs.

In Reader's Digest Brennan J explained that any standards to be applied by the hypothetical referees, to an assessment of the effect of imputations, are those of the general community:

'... Whether the alleged libel is established depends upon the understanding of the hypothetical referees who are taken to have a uniform view of the meaning of the language used, and upon the standards, moral or social, by which they evaluate the imputation they understand to have been made. They are taken to share a moral or social standard by which to judge the defamatory character of that imputation ... being a standard common to society generally ...'."[19]

[52]

"Distinguishing fact and comment. In Brent Walker Group Plc v Time Out Ltd Bingham LJ said:

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

In Goldsbrough v John Fairfax & Sons Ltd Jordan CJ said that for the defence of fair comment to succeed, 'it is essential that the whole of the words in respect of which it is relied on should be comment'. He continued:

'It must be indicated with reasonable clearness by the words themselves, taking them in the context and the circumstances in which they were published, that they purport to be comment and not statements of fact; because statements of fact, however fair, are not protected by this defence. In other words, it must appear that they are opinions stated by the writer or speaker about facts, which are at the same time presented to, or are in fact present to, the minds of the readers or listeners, as things distinct from the opinions, so that it can be seen whether the opinions are such that they can fairly be formed upon the facts.' (emphasis added)

A 'discussion or comment' is to be distinguished from 'the statement of a fact'. 'It is not the mere form of words used that determines whether it is comment or not; a most explicit allegation of fact may be treated as comment if it would be understood by the readers or hearers, not as an independent imputation, but as an inference from other facts stated.' As the passages quoted from Bingham LJ and Jordan CJ above illustrate, the distinction between fact and comment is commonly expressed as equivalent to that between fact and opinion. Cussen J described the primary meaning of 'comment' as 'something which is or can reasonably be inferred to be a deduction, inference, conclusion, criticism, judgment, remark, observation, etc'. It follows that a comment can be made by stating a value judgment, and can also be made by stating a fact if it is a deduction from other facts. Thus, in the words of Field J:

'[C]omment may sometimes consist in the statement of a fact, and may be held to be comment if the fact so stated appears to be a deduction or conclusion come to by the speaker from other facts stated or referred to by him, or in the common knowledge of the person speaking and those to whom the words are addressed and from which his conclusion may be reasonably inferred. If a statement in words of a fact stands by itself naked, without reference, either expressed or understood, to other antecedent or surrounding circumstances notorious to the speaker and to those to whom the words are addressed, there would be little, if any, room for the inference that it was understood otherwise than as a bare statement of fact.' (emphasis added)

The question of construction or characterisation turns on whether the ordinary reasonable 'recipient of a communication would understand that a statement of fact was being made, or that an opinion was being offered' - not 'an exceptionally subtle' recipient, or one bringing to the task of 'interpretation a subtlety and perspicacity well beyond that reasonably to be expected of the ordinary reader whom the defendant was obviously aiming at'."[25]

[104]

"I conclude that a riposte to an allegedly defamatory retort, itself made in response to a source defamation, is not protected by qualified privilege for the following reasons.

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

(2) A defamer permitted a privileged riposte would, in effect, benefit from his own tortious act. Assuming the original defamation was unjustified and one to which the victim retorted, if the defamer were allowed a riposte, then he would be benefiting from his original tort by having the right of second reply. This position would be contrary to a fundamental principle of the law of torts, namely that a tortfeasor is not entitled to benefit from his own wrong doing. If that proposition needs any authority, it is to be found in Salmond on the Law of Torts, 19th ed., p. 568 et seq.

(3) A guileful defamer could entice a victim into replying knowing that his riposte would be qualifiedly privileged and thus the defamer would be certain of at least two strikes against the victim, the victim's defence being overwhelmed by the riposte. It would be churlish of the Court not to recognise that the victim's rejoinder to the riposte might well be beyond that which the TV. and print editors consider the public's attention span. The electronic media, in particular, deal with the public issue of the moment, perhaps measured in days rather than weeks. The print media permits a more measured exchange, but the courts are familiar with editor's notations that 'this correspondence is now closed'.

(4) A victim exercising his right of self defence would be impliedly consenting to a further attack or riposte being made upon him. It would be churlish of this Court not to recognise the current and provocative way in which public affairs are now conducted. The electronic media now permits almost instant reply and comment upon purported defamations. Whether such a comment or reply is carried by the electronic media is not determined by the alleged defamer or the victim, but is decided upon by editors and sub-editors who publish or broadcast that which they deemed to be newsworthy. It is in the nature of journalism, whether in the print or electronic media, to elicit a response to any given comment. Thus if the concept of qualified privilege is extended beyond the right of self defence to a riposte and then a rejoinder and then a surrejoinder, the participants could be enticed into a mutually satisfying exchange of defamations which would neither educate or inform the public."

[106]

"There is a further difficulty in the appellant's invocation of a moral or social duty, to which his Honour was clearly alive as J 3866 reveals. It is the difficulty of erecting a moral or social duty to publish yet a further attack on the person earlier attacked, simply because that person has in self-defence set out to defend himself. This is more especially when the last publisher takes up the cudgels on its own initiative, and not at the behest of anyone. His Honour said, and appears to have agreed -

'3866 The practical effect of the [appellant's] submission, the [respondent] argues, is that an individual who is attacked by the media in a public forum should not respond to those allegations as, to do so may be to invite further or new attacks from unconnected third parties. Such a situation would defeat the entire "self defence" purpose of the "response basis" of qualified privilege. Nathan J in Kennett v Farmer [1988] VicRp 90; [1988] VR 991 at 1103-4 says that, once the aggrieved party has exercised his/her right of response, the original defamer does not have a right to reply under the protection of qualified privilege:

'To allow an initial defamer to have a right of reply to the retort of the victim would defeat the policy upon which the privilege of a communication made in pursuance or protection of an interest is founded. The reverse side of the proposition reveals the error. If the victim by responding gives the defamer a qualified privilege to riposte, he would severely inhibit his own rights of self defence'.

The initial attacker was not the appellant but Grusovin. The respondent responded publicly. The appellant was a bystander. The respondent suffered an attack widely disseminated in media publications. If by exercising his right to respond to that attack he invited unconnected third parties to re-accuse him with impunity, without any requirement to meet a test of reasonableness but only to avoid malice, the purpose of allowing a response under protection of qualified privilege would be defeated by the respondent's renewed vulnerability to fresh attack. That absence of a test of reasonableness was recently confirmed by Spigelman CJ in Makeig v Derwent [2000] NSWCA 136, at [39]-[41]; his Honour said -

'... as the reasoning in Lange itself indicates, this test [of reasonableness] is not applicable to a claim for qualified privilege at common law ... the respondent also submitted that the Lange test of "reasonableness" should now be accepted as "mandatory" in the case of what was described as "widespread or multiple publications to the public", at least in the case of publication on political issues. Nothing in Lange suggests that the High Court was laying down anything in the nature of a mini code in such matters. The court was extending the defence of qualified privilege, it was not intending to restrict the common law defence insofar as it was applicable to publication of political matter.'

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

At a glance

Court

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Judgment (186 paragraphs)

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Cases Cited (15)