Q. What did you say to him?
A. I said, "That looks like hard work. How long can you keep doing it?" and it was like he was telling me a secret, it was like whispered in my ear. He just happened to be in that position because he was leaning over on my side.
Q. What did he say?
A. He said he won't be swimming after the Olympics.
Q. Did you make a note of it?
A. I did."
47 The note became exhibit G.
48 Exhibit G, together with what became exhibit H and what was exhibit E, were taken away overnight, with leave, so that the defendant could place them "in the hands of an expert overnight". They were certainly taken away, they were certainly returned. Whether or not they were placed in the hands of an expert, and it does not take much imagination to identify the nature of the expertise, is unknown. Nothing further became of that aspect raised by the conduct of the defendant.
49 After the tender of exhibit G the plaintiff was questioned by his own counsel as to research he did before submitting the article. Indeed, the research was said to have been "before any interview" (T 39.14). Exhibit H was constituted by printouts from a "Sydney Morning Herald" computer. This material was used as background material for the story. Exhibit H, the deployment of which, in the end, amounted to an acute embarrassment for the plaintiff forensically, is something to which I shall return.
50 The plaintiff gave evidence that he offered the story, after a process of revision, as I understand it, to the "Good Weekend" on 15 May 2000 which, according to the calendar, is approximately 4 months after the occasion of the interview with Mr Thorpe. Mr Sleeman acknowledged the currency and newsworthiness at the time of his offering it to the "Good Weekend" being the fact that the Olympic trials had been completed and that his copy had been updated to include the fact of the Olympic trials in which Mr Thorpe had competed.
51 Exhibit J is constituted by 4 emails that reflect the history of the submission of the copy to both Fairfax and News and the plaintiff's having dealt with Fairfax passing on to him a complaint said to have been made by those representing Mr Thorpe to the effect that no interview had taken place and that the plaintiff had made up the story.
52 Exhibit K is the article that was written by the plaintiff as submitted to Fairfax and "The Australian", but omitting the last page. Additionally, Fairfax received some statistical material that is found at the end of the article as finally edited and published by Fairfax in exhibit B, the "Good Weekend".
53 The plaintiff was then taken through exhibit K, the text of his article and exhibit B as it was published, and pointed out differences, changes in wording, the fact that he was not responsible for the photographs, obviously, or the lead-in paragraph. He denied the essence of each allegation in the particulars of the defendant's case against him. He identified the sources for each component of the article as written by him, including "Sports Illustrated" which became exhibit L, and was marked by the plaintiff to indicate the source for relevant parts of what he wrote.
54 As referred to above, the cross-examination of the plaintiff commenced on an embarrassing note for Mr Sleeman. In relation to exhibit H, it was pointed out to him that contrary to the express basis upon which the evidence leading to the tender was led, the articles in many instances post-dated the interview, although not all of them. Mr Sleeman said this was an honest mistake and was quick on the uptake. He explained it on the basis that after the matter complained of sued upon came out he embarked upon a course of post-publication research that got mixed up with his original research.
55 This was an embarrassing position in which the plaintiff found himself; it reflects sloppiness in the forensic conduct of his case. That, however, is as far as it goes. One cannot lose sight of that which the defendant is seeking to prove to be true and the fact, of course, that the onus is on the defendant. However discreditable and unattractive one might find the plaintiff to be, that does not mean he loses; on this issue of truth the onus is on the defendant to win by satisfying the court that more probably than not each of the two imputations justified is substantially true in the context of the case as particularised.
56 This "sloppiness" was perpetuated by the plaintiff in his answers to certain interrogatories. For example, in interrogatory 13 as delivered by the defendant the plaintiff could not even get correct the date of the World Cup swimming championship in January 2000: very unfortunate.
57 The plaintiff tendered in his own case answers to interrogatories 12, 13 and 14 relating to the sources of the material in the "Good Weekend" (exhibit N).
58 The cross-examination of the plaintiff was extraordinarily, but not surprisingly, thorough. To a very great extent it was founded upon the text of the article as published by the "Good Weekend", exhibit M, the plaintiff's answers to interrogatories and the appended text of "Laps of the God", the article written by Mr Sleeman.
59 The fundamental purpose of the cross-examination of Mr Sleeman of course was to provide a basis for asserting that the defendant had proved that it was substantially true that Mr Sleeman in writing a piece on Ian Thorpe deliberately gave the false impression that he had spoken to Ian Thorpe recently and at length; and that it was substantially true that Mr Sleeman was so dishonest a journalist that he made up a statement that Ian Thorpe said he may retire after the Sydney 2000 Olympic Games.
60 Mr Blackburn took the plaintiff through the whole of the article published in the "Good Weekend", almost line by line, discriminating where necessary that which was not the product of the plaintiff. As I have mentioned, this approach was also employed by reference to the plaintiff's answers to interrogatories as to sources.
61 In the context of the defences of truth, at the conclusion of the cross-examination of the plaintiff, I came to the view that there were certain fundamental positions that simply could not be disputed. Those positions ranged from the "nit-picking" to matters of profound import in terms of the defence.
62 The "nit-picking" was the intense scrutiny of statements (for example) made as to the disposition of funds to a charity by Mr Thorpe; it was not one hundred per cent right, the money went to two charities, not one; the age at which Mr Thorpe gave up full time school studies; the precise nature of the "video" which received so much attention. Whether or not certain components of Mr Sleeman's copy would be fairly understood to be one "continuous quote" or a blurring together of various "grabs" falls into the same category. Into this same "de minimis" category I would regard falling the issue made much of as to whether there had been a complete attribution to "Sports Illustrated". The outcome of this case could never depend upon such minor matters, either individually or collectively when going to the heart of the defence as to the plaintiff's deliberately giving a false impression and being so dishonest a journalist as conveying the impression about Mr Thorpe's retirement.
63 The defendant was confronted by the indisputable fact that the plaintiff had had an interview with Mr Thorpe. The Court was confronted by a dispute as to its duration; minimalist from the point of view of the defendant and up to 25 to 30 minutes for the plaintiff. The defendant however could not suggest that no interview had taken place. Doing the best I can, I find the interview on the probabilities was about 15 to 20 minutes in duration. Further it could not be suggested, I find, that Mr Sleeman was not honest when otherwise than what he described as the "formal' interview there had been the "snatches" or "grabs" pool-side as he referred. The defendant was confronted with the contemporaneous notes taken by Mr Sleeman (exhibits E and G).
64 The relevant state of Mr Sleeman's mind in terms of intention or honesty was not established in the cross-examination in terms of the deliberate writing of an article to convey an impression, and a false impression, that he had spoke recently and at length to Mr Thorpe. As Mr Evatt remarked, what does "recently" mean? - how long is a piece of string? As Mr Sleeman remarked in his evidence when challenged upon what was suggested to be the scoop of scoops, namely the proposed retirement of Mr Thorpe after the Olympics, he said, had it been a news article and had that been the scoop, he would have led with it. This was a magazine article to be published down the track in a few weeks. The approach of the defendant in my view was jejune in relation to proving the truth of the imputation relating to the publication giving the impression, and it being a false impression, and a deliberately false impression that the interview had recently been with Mr Thorpe and at length.
65 Subject to that component of the defendant's case and really, the fons et origo, I suspect of this whole litigation, the suggestion that Mr Thorpe was to retire after the Olympics, the defendant was confronted with what I find to be an unanswerable proposition by Mr Sleeman. He did not put it as a fact, he put it as an "option", and that is how, I find, any reasonable reader would have understood it. It must be borne in mind that at present I am speaking at the conclusion of the cross-examination of Mr Sleeman. Whether any material changes arise from the intervention of other witnesses will remain to be seen.
66 I add for completeness that at this stage, to the extent that on any basis this libel of the plaintiff in some way could be propped up by an assertion that Mr Thorpe did not pose for the photographs, that it could be propped up by an assertion that Mr Thorpe was not told that it was going to be for an article in the "Good Weekend", amounts to, with respect, a forensic nonsense. These were non-facts, let alone irrelevant ones.
67 In no way did the evidence called by the plaintiff as to the fact of, the organisation for, and to some extent the duration of the interview, derogate from the fundamental thrust of Mr Sleeman's position. Nothing that Mr Hanson said, or, indeed Mr Mason, brought about any change in view on my part. Mr Michael Meagher arrived at a time when the interview had been in progress, indeed Mr Meagher to a great extent corroborated the foundation for the fons et origo component, when he himself expressed some surprise at what he overheard about Mr Thorpe's plans.
68 The most unremarkable thing about Mr Thorpe's coming to court to give evidence was his evidence itself. His evidence was honestly given. He was an impressive witness. But the gauntlet was thrown down by the defence: I either accepted Mr Sleeman or I accepted Mr Thorpe. This was a disingenuous approach in the light of the critical answer given by Mr Thorpe in cross-examination that he really did not remember the interview. It was that answer against which must be tested the reconstructed components to the effect that he really would not have said he was going to retire after the Olympics, because that was not the position. Mr Thorpe at the time of the interview was two years younger than at the time that he gave his evidence. Mr Thorpe had less reason to remember the interview than Mr Sleeman.
69 The relevant part of the evidence in cross-examination which in my view coloured the whole of Mr Thorpe's testimony, but not in any critical or adverse personal sense, was this exchange (T 213):
"Q. You can't really remember this interview with Mr Sleeman at all, can you?
A. No -
Q. We know it's been -
A. I don't remember it well.
Q. Do you remember it at all?
A. Not really, no".
70 Often Mr Thorpe made concessions in favour of the plaintiff to the effect that he, Mr Thorpe, could have said certain things. This conformed with his demeanour of straight-forwardness in the witness box. Often, he said that he did not or would not have said things to Mr Sleeman. At the end, however, I find that the weight of Mr Thorpe's testimony, made up of matters negative to the position of Mr Sleeman and positive to that of the defendant was not such as to render false Mr Sleeman's denials that he made up the statement that Mr Thorpe would retire, or to render false his denials that deliberately he gave the false impression that he had spoken to Mr Thorpe recently and at length.
71 The substantive truth of the defendant's case on justification is of course determined on the evidence and not on questions of understanding by the ordinary reasonable reader of the "Good Weekend" article of which the plaintiff was the major contributing author.
72 I do not find that the "Good Weekend" article itself indicates that any impression that its author had spoken to Mr Thorpe recently and at length was a deliberate and false one. I find, on the evidence, the article is no more than what Mr Sleeman said it always was intended to be, namely "an article", by a freelance journalist and written as such for publication later in a magazine.
73 I also find that more probably than not Mr Thorpe did say, as was contemporaneously recorded by Mr Sleeman, words to the effect that you might not see much of him after the Olympics. Mr Sleeman made nothing up about that at all. What Mr Sleeman did, and I find on the evidence, is understand what he recorded Mr Thorpe as saying as "an option". What that means is that the defendant has failed to discharge its burden of proof of persuading me that more probably than not the relevant imputations, including for the sake of finality, each of the contextual imputations, whether available strictly or not, were matters of substantial truth.
74 When one goes to the particulars of truth which are appended hereto, particular (A) relating to the AJA Code of Ethics (the existence of which apparently came as a surprise to Mr Evatt for the plaintiff) I find not to have been made out.
75 Particular (B) is a non-fact of the kind to which I have referred.
76 Particular (C), save for the really tortuous exercise of defining "formal and lengthy", I find to have been proved, in substance, in favour of the plaintiff.
77 Particular (D) is a non-fact or an irrelevant one.
78 As to particular (E), most of these matters constitute that which Mr Sleeman asserted he had done, namely "write an article". They represent the de minimis approach of the defendant. These particulars include of course particular (iv) which as I have repeatedly stated is the nub of why these two parties found themselves in court.
79 Particular (F) is a non-fact.
80 Particular (G); I find the plaintiff did have an interview with Mr Thorpe and Mr Flaskas. I find there is no reason to dispute what Mr Sleeman said as to having interviewed Mr Frost or the parents. No evidence to the contrary was called.
81 Particular (H); I do not find the defendant to have proved this fact,
82 Particular (I); most of the sub-particulars fall within the "nit-picking" category. Even if as a matter of strict objective truth it could be said that each statement was false, none of them together or individually would elevate the conduct of the plaintiff to fall within that conduct represented by the acts in the imputations the defendant asserts to be substantially true, inter alia, by such matters.
83 I make a similar observation in relation to particular (J).
84 As to particular (K), more probably than not, as I have indicated, Mr Thorpe did tell the plaintiff "I won't be swimming after the Olympics". It was recorded contemporaneously on exhibit G. The important factor in relation to this particular and particulars (L) and (N) is that it was not shown by the defendant, to my satisfaction, to be otherwise that an open and legitimate approach by the plaintiff as a journalist to report this as "an option" and not as a fact set in concrete as the defendant, and certainly Mr Flaskas, seem to have understood it.
85 The defences of justification fail.
86 Before turning to the question of damages it is appropriate that I revisit, as I intimated that I would, the defence of comment.
87 First, assuming contrary to my finding that the second imputation would have been understood by the ordinary reasonable reader as a statement of opinion, in the light of my findings in relation to the defence of justification, a serious question would arise as to whether a defence of comment of a stranger could survive the threshold component of being based on proper material for comment. The material for comment which was said to be proper material by reason of being "substantially untrue" was constituted by the article as published in the "Sydney Morning Herald" written by the plaintiff. That could only provide material for comment vis-à-vis the plaintiff to the extent that it was written by the plaintiff. To the extent that it contained text not written by the plaintiff, in my view it would not be proper material for comment. A further fact said to be true and founding the comment as proper material was that Mr Thorpe did not agree to give or did not give an interview for the purposes of the plaintiff's article. The short answer is I have found that he did. Further I have found that another item of material for comment, namely that the photographs accompanying the article was not posed by Mr Thorpe for the purpose of the article was a non-fact and an irrelevant fact. That assertion is not available as proper material for comment.
88 I have found contrary to the defendant that the plaintiff's article does not give the impression that the plaintiff had a lengthy one-on-one interview with Mr Thorpe prior to the writing of the article, and to that extent that matter could not found proper material for comment.
89 A final particular is "The plaintiff's article upset the manager of Ian Thorpe, David Flaskas, on the basis that it falsely gave the impression that the plaintiff had spoken to Ian Thorpe recently and at length". The basis for it upsetting Mr Flaskas I have found not to have been proven. I turn now to the evidence of Mr Flaskas.
90 Mr Flaskas was asked (T 232):
"Q. After you read the piece in the Good Weekend, was it your personal opinion that the piece was dishonest in some way?
A. Yes, I thought it was misleading and inaccurate.
Q. Why did you think that? What was it about the article that made you think that?
A. Well, I think firstly it gave the impression that the author had spent a significant amount of time with Ian which I couldn't see was possible considering the timing, and there just seemed to be quite a few inaccuracies within the story which I believe with a lengthier interview wouldn't have occurred".
91 In cross-examination he said this (T 235):
"Q. You're saying, are you, that Mr Sleeman's piece was dishonest; is that right?
A. Well, I am not quoted there.
Q. Well, didn't you say that, that Mr Sleeman's - -
A. I wouldn't have used the word dishonest. What my personal thoughts were and my personal thoughts of it, I am not quoted on that line.
Q. And you didn't use the word dishonest?
A. Not there, no.
Q. To the reporter from The Australian?
A. No.
Q. And you wouldn't have used that word?
A. No".
92 What this evidence might be taken to go to is Mr Flaskas' distress.
93 More importantly, however, these components of his testimony gave rise to a very interesting argument as to the availability of the defence of comment of a stranger. Mr Flaskas made it quite clear that he did not use the word "dishonest". It was the defendant that attributed to him that one word ("dishonest"), which I venture to suggest, more than anything else, provoked the plaintiff into suing (as opposed to the post-Olympic retirement business that provoked the defendant into publishing).
94 If I were to find that the ordinary reasonable reader would have understood the relevant part of the matter complained of to be expressing an opinion, were I to find (and it was conceivably open for me to do so) that Mr Flaskas having been called did not have that opinion (the defendant put words in his mouth), the defence under s34 could only fail in two circumstances. One, that the opinion (as nonetheless understood as having been published) was not one that might reasonably be based on such material as was found to be proper, but more importantly, if otherwise the comment had been established, it would only fail if the plaintiff proves that more probably than not the publication complained of was not in good faith for public information or the advancement of its education. It seems clear that the defence is not defeated merely by it being established that the "stranger" did not in fact have the opinion attributed to him.
95 Mr Evatt conceded the difficulty that lies always in the path of the plaintiff in establishing lack of good faith in a newspaper publisher. The more so when no evidence was tendered before me in the usual way on the issue by way of answers to interrogatories delivered by the plaintiff to the defendant. The fact that the defendant did not call Amanda Meade, the apparent editor of "The Diary" part of the "Media" section containing the matter complained of, takes the matter nowhere.
96 For the plaintiff a document was prepared, as I have referred to in para [11] hereof, being composite particulars of malice and aggravated damages. One interesting observation that must be made about this document is that it was "news" to Mr Sleeman when it was shown to him. He set it to one side as a lawyer's document.
97 To return however to the matter in defeasance of a defence of comment of a stranger, the only matter on which the plaintiff in this case could conceivably rely is the substitution of the word "dishonest" for the words deposed to by Mr Flaskas set out above. I would add my observation of Mr Flaskas during the course of his giving testimony on this point, that he appeared to me to be at pains to be stressing "misleading" and "inaccurate" (in chief) and expressly gainsaying the use of "dishonest" in cross-examination.
98 In this context I would find as a fact that the defendant attributed words to a person referred to in its article and did so obviously by a servant or agent, with which words and their import the source was not in agreement. The poison came from the paper and not from its source.
99 "Dishonesty" connotes a state of mind (in Mr Sleeman) involving deliberateness and intention, something far more significant than a merely objective statement that something is "misleading and inaccurate".
100 In the course of his evidence in chief Mr Flaskas dealt with various aspects of his dealings with the plaintiff. In the course of his evidence in chief he was asked certain questions about the commercial arrangements he had entered into with the defendant or an arm of it on behalf of Mr Thorpe. The evidence extracted above arose after a "to-do" when Mr Blackburn had asked Mr Flaskas, "Did you say anything that was dishonest to 'The Australian' or any journalist at 'The Australian' because of a need you perceived to have felt to protect Mr Thorpe's contract with 'The Australian'?" That was objected to by Mr Evatt on a basis of having mentioned the word "dishonest", but was admitted by reason of the specific reference to the commercial arrangement in the particulars of malice. Thereafter followed the exchange extracted from p 232 set out above.
101 I mention this because it is fundamentally the state of mind of the defendant at the time of the publication of the matter complained of that has to be judged in terms of whether or not that publication was in good faith. It is apparent that the conversation with the defendant after the publication in the "Good Weekend" was before the publication by the defendant of the matter sued upon, and obviously so. Mr Flaskas had been telephoned by a reporter (Nicole Jeffery) from "The Australian". Evidence was elicited as follows (T 233-234):
"Q. You made a complaint to 'The Australian' but not the 'Good Weekend'?
A. I was rung by a reporter from 'The Australian' and discussed it with her. We didn't go looking for any kind of correction or anything.
Q. What did the reporter from 'The Australian' say to you?
A. It's difficult for me to recall because I did many interviews leading up to the Olympics. At that stage we were also dealing with so many other issues with Ian involving drug accusations, swimsuit controversies, to be perfectly honest those kind of interviews I had I would have very little recollection. I do remember saying to the reporter that particularly Ken Thorpe was somewhat disappointed with some of the reporting in that article.
Q. Have you got exhibit A there? (Shown) You were contacted by 'The Australian' before this article came out; correct?
A. Correct, yes.
Q. And they were screaming, weren't they, about the article in the 'Good Weekend'?
A. They were screaming mainly because it had been offered to them and they rejected it because they didn't believe it was a true article.
Q. Is that right?
A. That's what I was told.
Q. Who told you that the article was offered to 'The Australian'?
A. Nicole Jeffery.
Q. Was she very upset that she didn't accept it?
A. Sorry, didn't - sorry.
Q. Did 'The Australian' accept the article?
A. No, my understanding is they rejected it, that it was offered, that this article that appeared in the 'Good Weekend' was offered to 'The Australian' for their magazine and they rejected it.
Q. Who told you that?
A. Nicole Jeffery.
Q. What did she say was wrong with the article?
A. She believed that the article, that the amount of time that a story of this - the need to be spent with Ian, a story of this size didn't occur.
Q. Is that after you told her there was no interview between Ian Thorpe and Mr Sleeman?
A. I can't recall that.
Q. Did you tell her that?
A. I can't recall that".
102 Thus would I find the defendant's substitution of the notion of dishonesty in the article on which the plaintiff sues and attributing it to Mr Flaskas, in the light of Mr Flaskas' evidence before me and in the light of the evidence he gave as to his conversation with Nicole Jeffrey, amounts to the existence of an improper motive to the requisite degree (Horrocks v Lowe [1975] AC 135 at 149) or lack of good faith constituted by a motive to attack and defame a journalist whose work was published in the "Good Weekend", as a matter of notoriety a rival of the defendant.
103 In general terms the area of malice and lack of good faith has been reconsidered by the High Court in Roberts v Bass (2002) 212 CLR 1 and the observations of Hunt J in Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30 at 51 and the Court of Appeal in Hanrahan v Ainsworth (1990) 22 NSWLR 73 at 102 overruled. It is still the law in my view, even in the light of Roberts v Bass that the onus on the plaintiff to prove malice on the one hand where applicable or lack of good faith is not easily discharged. But that does not mean it cannot be discharged without direct evidence as to the state of mind of the defendant through a servant or agent at the time of the publication complained of. As I have said, there were no interrogatories of the usual kind tendered on behalf of the plaintiff on this issue in the case. No gap in the plaintiff's case can be filled by reference to Jones v Dunkel (1959) 101 CLR 298 and the failure of the defendant to call the editor of the relevant column, "The Diary", or Nicole Jeffrey. Is there otherwise sufficient evidence?
104 After much reflection I am persuaded that more probably than not the evidence that was presented at trial, particularly that of Mr Flaskas, and the clear import that it was not his view that what Mr Sleeman did was "dishonest", but that word was sourced in the defendant by a servant or agent, is sufficient to give rise to a logical and clear inference that the real motive of the defendant was to attack a journalist and defame him and accuse him of dishonesty in relation to a publication by him in the "Good Weekend" which, as it happens, is published by a rival.
105 Thus, in the event that I be in error in holding the imputation not to be a comment and it in fact is a comment, if I be in error in holding that it was not a comment based on proper material for comment, but in fact it was based upon the material for comment, then the defence would fail because of the lack of good faith in the defendant in publishing the matter complained of which carried the imputation which would have been understood as a comment of a stranger. If I am incorrect in that, then the defendant would be entitled to a verdict in respect of that cause of action.
106 Thus have I considered it especially appropriate to allocate a separate quantum of damages in relation to this particular imputation.