Plaintiff v Defendants

3 During the course of evidence, the plaintiff was cross-examined, without objection, about the publication of a number of articles and extracts from radio broadcasts concerning his disqualification from competition for two years and his ban from the Olympic Games for life. The publicity flowed from the discovery of a bucket, in his room at the Australian Institute of Sport at Del Monte, Adelaide, containing empty vials of eGH which ultimately proved the basis for his conviction before the Court of Arbitration of Sport ("CAS").[1]

4 In the course of his defence of these charges before the CAS, the plaintiff lodged an affidavit; some of the contents became public knowledge on 25 June 2004 in an article published in The Age newspaper.[2] In part, it stated that the plaintiff had named five other cyclists as having injected legal vitamin supplements. French's penalty and the involvement of other cyclists in self-injecting whipped up a media frenzy, which is amply demonstrated by the contents of the exhibit.

5 In the course of cross-examination of the plaintiff, Senior Counsel for the defendants put the following to him:

"Q. Mr French, I am going to have you shown a bundle of documents, and again it comes from your discovery. I am going to ask you - you will see it is extensive and I want to do this - I want to do this as quickly as I can consistent with giving you a fair opportunity to look at it. You see it is a collection of newspaper articles published in the period up to broadcast of the matter complained of on 5 July, the matter complained of being the Triple M program on 5 July 2004. Now, I don't expect you to recall every article you read, but you certainly were reading the press at the time, weren't you?

A. I was - articles that I was in I would take - either I would be told about it or sometimes I would read some, but there is no way that I can recall and there is no way that I would have read every single one."[3]

6 The plaintiff was then cross-examined, again without objection, about the contents of a number of the articles contained within the exhibit. The exhibit contains far more than articles published in newspapers; it also contains what appear to be internet versions of particular articles, as well as transcripts of a number of television and radio broadcasts concerning the furore over the plaintiff's conviction and the subsequent disclosure about the naming of the other cyclists.

7 After the cross-examination of the plaintiff upon a selection of the articles,[4] the following was put to the plaintiff:

"Q. You would agree with me though that by this time[5] your reputation was, I am not asking you whether you think it was right or wrong or fair or unfair, I'm asking about what you believe people thought of you, people because of the press to your knowledge thought of you as a drug cheat?

A. I don't believe so.

Q. All right. And that's the reason why you and your father said on 60 Minutes that your life had been destroyed, isn't it, because your reputation by that stage was trash?

A. No, it was because I couldn't ride a bike, I had no choice to be able to ride a bike, everything that I'd done and loved, had no choice, it had been taken away from me, so I didn't know what I was doing, so in that sense I was destroyed on what I was going to do with myself and ...".[6]

8 Counsel for the defendants sought to tender the bundle of articles immediately after that cross-examination; the tender was deferred and has now been argued at the conclusion of the evidence and immediately prior to addresses.

9 Mr McClintock, Senior Counsel for the defendants, who appeared with Mr O'Meara, eschewed, as he had to, the proposition that the articles could be used by the jury in assessing the plaintiff's reputation as at the time of the publication of the Triple M broadcast. Rather, he relied upon the statement in Gatley to the following effect:

"The jury should not take into account in assessing damages any part of the words complained of in respect of which the defendant has made out a defence, or any damage done to the claimant's reputation or feelings by any defamatory matter or other wrong for which the defendant is not responsible."[7]

10 He also relied upon a decision of Eady J sitting in the Queen's Bench Division in Abu v MGN Limited.[8]

11 Mr Hayes, counsel for the plaintiff, who appeared with Ms Treleaven, contended on the authority of Associated Newspapers v Dingle[9] that it was irrelevant to the task of the jury to consider the publication of other material (defamatory or otherwise) concerning the plaintiff. He argued that the plaintiff had been cross-examined about the material and the jury, as a matter of commonsense, could hardly be unaware that there was considerable controversy concerning the plaintiff, particularly as the 60 Minutes program which aired the night before the defendants' publication aired many of the issues which were, to use the vernacular, "in the ether".

12 The primary contention of the defendants depends upon it being established that, notwithstanding that principle prevents a party from leading evidence of other publications to show that the plaintiff had a tarnished reputation, they are still entitled to point to such publications as being relevant to the causal link between the damage to the plaintiff's reputation and the upset suffered by him as a result of the subject publication. Whether the defendants put the argument as one based upon tarnished reputation or, alternatively, goes to the question of the causal link between the program and the damage recoverable, the basis must be to mitigate or reduce the damages for which the defendants are responsible for their defamatory publication (if so found by the jury).

13 The authorities, on proper analysis, make it clear, I think, that a defendant is not entitled to tender evidence of other articles concerning the plaintiff and published at or around the same time in an effort to reduce the damages payable by it.

14 In Dingle v Associated Newspapers[10] the House of Lords dealt with a defamatory article published by a newspaper at or around the same time that similar articles, which were the subject of privilege, were published. The trial judge took into account the effect of the other publications and reduced the amount awarded to the plaintiff. Their Lordships held that he was wrong to do so. Lord Radcliffe said as follows:

"There is, however, another and more general ground upon which all this material (and in that I include both the report itself and whatever may have been published or said about the respondent arising out of the incident dealt with in the report) should have been excluded from consideration as a matter of mitigation tending to show that the respondent suffered from a "tarnished" reputation. Whatever may be the qualifications or requirements as to evidence led on the issue of reputation by way of mitigation of damages for libel, I do not believe that it has ever yet been regarded as permissible to base such evidence on statements made by other persons about the same incident or subject as is embraced by the libel itself. In my opinion it would be directly contrary to principle to allow such an introduction. A libel action is fundamentally an action to vindicate a man's reputation on some point as to which he has been falsely defamed, and the damages awarded have to be regarded as the demonstrative mark of that vindication. If they could be whittled away by a defendant calling attention to the fact that other people had already been saying the same thing as he had said, and pleading that for this reason alone the plaintiff had the less reputation to lose, the libelled man would never get his full vindication. It is, I think a well understood rule of law that a defendant who has not justified his defamatory statements cannot mitigate the damages for which he is liable by producing evidence of other publications to the same effect as his; and it seems to me that it would involve an impossible conflict between this rule and the suggested proof of tarnished reputation to admit into consideration other contemporary publications about the same incident. A defamed man would only qualify for his full damages if he managed to sue the first defamer who set the ball rolling: and that, I think, is not and ought not to be the law."[11] (My emphasis).

"At one time in our law it was permissible for a defendant to prove, in mitigation of damages, that, previously to his publication, there were reports and rumours in circulation to the same effect as the libel. That has long since ceased to be allowed, and for a good reason. Our English law does not love tale-bearers. If the report or rumour was true, let him justify it. If it was not true, he ought not to have repeated it or aided its circulation. He must answer for it just as if he had started it himself. Newspapers in particular must not speak ill about people for the spice it gives their readers. It does a newspaper no good to say that other newspapers did the same. They must answer for the effect of their own circulation without reference to the damage done by others. They may not even refer to other newspapers in mitigation of damages. Such has been the law ever since 1829, and it cannot be called in question now. It is but a particular instance of the general rule which excludes rumours or reports to the same effect as the libel: and it has been implicitly recognised by the legislature in the statutes of 1888 and 1952 which have created some limited exceptions to it, not in question here."[12] (References omitted and emphasis added).

"Either way, if you call those who know him well, you are likely to get at the truth. None such were called here. But if you should go beyond these, you immediately get into the realms of reports and rumours, often enough spread by busybodies who know nothing of the man, or indulged in by newspapers for the benefit of their circulation, which they have no material to justify. If you should admit these in evidence, you would indeed be giving countenance to the injustice commonly supposed to exist: 'Give a dog a bad name and you might as well hang him.' Nor can the report of a particular incident, even if it be notorious, be brought up against the plaintiff. If it refers to the same matter as the libel, it tends to prove a justification and is therefore not admissible in mitigation of damages but only in support of a plea of justification. If it refers to something different from the libel, it cannot be admitted because it is specific misconduct which it is not considered fair that you should bring up against him."[13]

17 In Carson v John Fairfax & Sons Limited,[14] McHugh J made it clear, I think, that the principles stated in Dingle had direct application in this country:

"The common law is clear, rightly or wrongly, that the defendant cannot mitigate damages by tendering evidence of other defamatory publications concerning the plaintiff. A fortiori, at common law evidence is not admissible that the plaintiff has recovered damages in respect of other defamatory publications. A defendant must answer for the effect of its own circulation without regard to what others have published. If a defendant wishes to contend that the plaintiff's reputation was already damaged at the time of publication, it can do so by calling witnesses to prove the nature of the plaintiff's reputation at that time. But it cannot tender other publications for that purpose. They may or may not have damaged the plaintiff's reputation." (References omitted and emphasis added).

18 The defendants' reliance upon the decision of Eady J in Abu is, in my view, misplaced. His Honour's decision was given in the context of "the offer of amends" regime introduced by the Defamation Act 1996 of the UK, and in particular in the context of s 3(5) of that Act which picks up the common law method of assessment of damages in a defamation proceeding. His Honour said as follows:

"As the Neill Committee noted, the process of mitigating loss may in effect be aggressive or defensive. In particular, it is inherent in raising an allegation of general bad reputation that one is attacking the claimant's character. ...

Moreover, by way of defending themselves, it is generally open to defendants to demonstrate, whether by their own evidence or by cross-examination of the claimant, that some element of damage has been caused by factors other than the libel complained of; perhaps, for example, by a different libel published by someone else, or by a damaging allegation within the defendant's own article but of which the claimant makes no complaint, and of which the truth or falsity is not therefore in issue in the action. In such circumstances it would be plainly unjust if the defendant were not allowed to require the claimant to prove that the particular element of damage to reputation, or hurt to feelings, was attributable to the specific libel which he has admitted to be untrue by virtue of making an offer of amends."[15] (Citations omitted).

19 Several observations may be made about his Honour's conclusions. First, it is open to a party to attack the reputation of the plaintiff, but in a specific way. It can be done by cross-examination or by calling witnesses as to the reputation of the plaintiff. It may be in this context, I think, that his Honour was referring to the manner in which a defendant can adduce evidence in such a case. If he was not, I respectfully disagree. Associated Newspapers v Dingle is not authority for the proposition that a defendant can introduce into evidence the contents of other publications in an effort to mitigate its own loss. Indeed, it stands for the contrary proposition, as the reasons of Lord Denning demonstrate. Secondly, it is still the law, as his Honour noted, and as the jury will be directed, that the plaintiff is required to attribute his damage to the particular defamatory statement. That is not the issue. The issue is whether the defendant should be permitted to adduce evidence of other material being published at around that time concerning the plaintiff. Finally, it may be observed that his Honour was not dealing with the admission of evidence in a trial setting, but rather making an observation as to what may or may not be adduced when considering an "offer of amends".

20 The true basis for the proposed tender is to mitigate the loss which might be sustainable by the defendant. Indeed, the admission of such material raises squarely the concerns expressed by Lord Denning in Associated Newspapers v Dingle[16] as to the tender of such articles into evidence and the misuse that may occur as a result. Much of the comment or reporting in the articles and commentaries within exhibit D17 (MFI) was either ill-informed or just plain wrong.

21 I will not admit D17 (MFI) as an exhibit in the trial.

[1] The plaintiff successfully appealed this decision to the Court of Arbitration of Sport, Appeal Division.

[2] Article by Jacqueline Magnay headed "Cyclists named in hearing hits back at claims".

[7] Gatley on Libel and Slander 9th Edition [209].

[8] [2002] UKPC 46; [2003] 1 WLR 2201.

[9] [1964] AC 371.

[10] [1964] AC 371.

[11] [1964] AC 371, 396

[12] [1964] AC 371, 411. See also Chappell v Mirror Newspapers Ltd (1984) Aust Torts Reports 80-691.

[13] [1964] AC 371, 412.

[14] [1993] HCA 31; [1992] 178 CLR 44.

[15] [2003] 1 WLR 2001 [14] and [15].