SLEEMAN v NATIONWIDE NEWS PTY LTD

CATCHWORDS : Defamation - principal imputation of dishonesty in a journalist - defence of justification - contextual truth - comment of servant or agent of defendant - comment of a stranger LEGISLATION CITED : Defamation Act 1974 s15, s16, s33, s34, s46A Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30 Carson v John Fairfax & Sons (1993) 187 CLR 44 Clark v Ainsworth (1996) 40 NSWLR 463 Crampton v Nugawela (1996) 41 NSWLR 176 Crawford v Amalgamated Television Services Pty Ltd (1989) A Def R 50,040 Hanrahan v Ainsworth (1990) 22 NSWLR 73 Horrocks v Lowe [1975] AC 135 CASES CITED : Jamoo v Nationwide News Pty Ltd [2004] NSWSC 126 John Fairfax Publications Pty Ltd & Anor v Jones [2004] NSWCA 205 John Fairfax Publications Pty Ltd v Blake; David Syme & Co v Blake (2001) 53 NSWLR 541 Jones v Dunkel (1959) 101 CLR 298 Konstantinidis v Foreign Media Pty Ltd & Ors [2003] NSWSC 1135 Markovic v White [2004] NSWSC 37 New South Wales Aboriginal Land Council v Perkins (1998) 45 NSWLR 340 Radio 2UE Sydney Pty Ltd v Parker (1992) 29 NSWLR 448 Roberts v Bass (2002) 212 CLR 1 Rogers v Nationwide News Pty Ltd (2003) 201 ALR 184; [2003] HCA 52 RICHARD SLEEMAN (Plaintiff)

NATIONWIDE NEWS PTY LTD (Defendant) FILE NUMBER(S) : SC 20256 OF 2000 C Evatt / J Henness (Plaintiff) COUNSEL : T Blackburn SC / D Sibtain (Defendant) Peter R Murphy & Co (Plaintiff) SOLICITORS : Blake Dawson Waldron (Defendant)

[2004] NSWSC 954 IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST

JUDGMENT (Defamation - principal imputation of dishonesty in a journalist - defence of justification - contextual truth - comment of servant or agent of defendant - comment of a stranger) 1 The plaintiff sues in respect of a publication in "The Australian" of 8 June 2000. The publication was the first item in the "The Diary with Amanda Meade" in the "Media" section of the newspaper (exhibit A) and its text is: "Ian Thorpe was treated like a god following his world-record-breaking swims at the Olympic trials. At just 17, Thorpedo charmed the public outside the pool, too - with his characteristic modesty and sweet nature. 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. 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." (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.) 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 that he had allegedly told the journalist he may retire after Sydney 2000. "He's having a break like all other swimmers," Flaskas says. 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. He also snatched poolside conversations with him, of which Flaskas was previously unaware. But, according to Flaskas, the piece was dishonest because it was presented as if Sleeman had spoken to Thorpe recently and at length. It is the first, but probably not the last, time the young swimmer has felt exploited". 2 At the s7A trial conducted before Bergin J on 7 May 2001 the jury found that the matter complained of carried the following imputations defamatory of the plaintiff: (a) The plaintiff is a dishonest journalist. (b) The plaintiff in writing a piece on Ian Thorpe deliberately gave the false impression that he had spoken to Ian Thorpe recently and at length. 3 These imputations as found by the jury were two of three imputations pleaded by the plaintiff in a further amended statement of claim filed on 29 November 2000. The jury found that the matter complained of did not carry the third imputation, namely: (e) The plaintiff is so dishonest a journalist that he made up a statement that Ian Thorpe had said he may retire after Sydney 2000. 4 Prior to the commencement of the hearing before me of the post-7A trial there was an application by the plaintiff to rely upon a document described as a second further amended statement of claim. That document pleaded the third imputation not found by the jury (to preserve the plaintiff's position in relation to any appeal) and a fourth imputation, namely: (f) The plaintiff acted dishonestly as a journalist by writing an article that conveyed the impression that he had spoken recently and at length to Ian Thorpe. 5 The plaintiff further sought to amend by adding a fifth imputation: The plaintiff acted dishonestly as a journalist by conveying the impression in his article that Ian Thorpe was revealing the he might retire after the Olympics. 6 By my ruling on 18 November [2002] NSWSC 1100 I disallowed the proposed amendments. 7 I mention these matters because of the source of the plaintiff's proposed fourth and fifth imputations. Those fourth and fifth imputations which I did not allow the plaintiff to plead as causes of action are contextual imputations pleaded pursuant to s16 of the Defamation Act 1974 in a further amended defence, leave to file which was granted on 18 December 2002. 8 By that further amended defence the defendant abandoned a thitherto defence of qualified privilege in relation to the found imputations, pleaded defences of comment of a servant or agent of the defendant pursuant to s33 of the Defamation Act, and what is known as "comment of a stranger" pursuant to s34. 9 Additionally, the defendant justified pursuant to s15 the second imputation found by the jury and, as I have said, pursuant to s16 in relation to both imputations found by the jury, pleaded in standard form contextual truth on the basis of the contextual imputations set out above. 10 Particulars of truth (Appendix B to these reasons) were contained in the further amended defence and were relied upon in respect of the defences under s15 and s16. Requisite particulars of material for comment were also appended to that pleading. Additionally, matters in mitigation of damage were also relied upon pursuant to SCR Pt 67 r 17(2). 11 On 18 November 2002 leave was granted to the plaintiff to file a document entitled "Composite particulars of malice and aggravated damages as previously supplied in the pleadings and in correspondence". The import of these particulars and the status of the document itself will be dealt with later. 12 This structure of the action permits me, at this stage, to consider threshold questions as to the availability of the pleaded defences.

(i) Comment of a servant or agent of the defendant 13 The servant or agent of the defendant whose comment (s33) it is alleged to be is "Amanda Meade". The fact that she was not called is irrelevant to the consideration of the threshold question as to whether either or both of the imputations is or are capable of being understood as an expression of an opinion. 14 At the end of the day, the defendant could hardly argue that imputation (a), "The plaintiff is a dishonest journalist", could be understood otherwise than as an assertion of a fact. The determination of that issue is left to me (Defamation Act 1974 s7(4)) and I find that imputation (a) is an assertion of fact and not the expression of an opinion of the defendant or the defendant's servant or agent. This finding is based upon the form of the imputation made by the matter complained of as found by the jury, and the matter, that is, the article sued upon, having been taken into account: see Radio 2UE Sydney Pty Ltd v Parker (1992) 29 NSWLR 448 at 468 per Clark JA and New South Wales Aboriginal Land Council v Perkins (1998) 45 NSWLR 340 at 346D per Priestly JA.

(ii) Comment of a stranger 15 The second imputation sought to be defended as comment is: "The plaintiff in writing a piece on Ian Thorpe deliberately gave the false impression that he had spoken to Ian Thorpe recently and at length". 16 The defendant relied upon s34(2) of the Defamation Act (comment of a "stranger"), pointing to the "commentator" as being David Flaskas, Mr Ian Thorpe's manager. 17 The particular part of the matter complained of relied upon is in the following terms: "But, according to Flaskas, the piece was dishonest because it was presented as if Sleeman had spoken to Thorpe recently and at length". 18 Candidly, this component of the defence case struck me as the most troublesome. 19 Subject to the evolution of the proper understanding of the defence of comment as stated especially in the two cases to which I have hitherto referred, the defence of comment of a stranger has otherwise received little attention. In Crawford v Amalgamated Television Services Pty Ltd, unreported, Hunt J, 10 January 1989, (1989) A Def R 50,040 his Honour said: "The object of this particular defence of comment of a stranger is to permit the media to provide a forum in which members of the public may take part in the free discussion of matters of public interest - a right which is fundamental to any democratic society - without the media becoming liable for defamation simply because they may not agree with the opinions expressed in that forum: Cherneskey v Armadale Publishers Ltd [1979] 1 SCR 1067 at 1095-1098; quoted in Hawke v Tamworth Newspaper Co Ltd [1983] 1 NSWLR 699 at 721-722.

The issues raised by the plaintiff's reply come to be determined only if (and when) the defendant has established the issues raised by its defence. They must be considered, therefore, upon the assumption that the following issues have been determined in favour of the defendant: (1) that the relevant part of the matter complained of giving rise to the imputation or imputations in question was in fact understood by the ordinary reasonable reader or viewer to have been intended as an expression of opinion and not as a statement of fact; (2) that such opinion is one which an honest person might have held upon the material indicated as its basis; and (3) that the comment was not, and did not purport to be, the comment of a servant or agent of the defendant:

Bickel v John Fairfax and Sons Ltd [1981] 2 NSWLR 474 at 490-491; approved on appeal: [1982] 1 NSWLR 498 at 501-502; Bob Kay Real Estate Pty Ltd v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 505 at 512.

All three of those issues are objective questions, and the author's actual intention or other state of mind is irrelevant to their resolution. No issue arises directly under the defence of comment of a stranger as to whether the comment was in fact the honest opinion of the author, as it does by way of defeasance under the defences of comment of the defendant or of his servant or agent. Even then, the only state of mind which is relevant to that issue is the honesty with which the author expressed his real opinion. Malice or other state of mind on the part of the author cannot by itself defeat either of those defences of comment. That is made clear in Bickel's case".

20 It is apparent that upon the threshold issue being determined in favour of the defendant, the plaintiff is confronted with the difficulties that arise in the establishment of the matters in defeasance of the defence. 21 However it is to the threshold issue to which I return. 22 Much reliance was placed by the defendant, not unnaturally, and in accordance with what Priestly JA said in the New South Wales Aboriginal Land Council case referred to above, on the matter complained of to which resort can be had for the determination of whether or not that which was published, and as encapsulated in the found defamatory imputation, would have been understood as an expression of opinion or a statement of fact. Here the matter complained of uses such words as "but, according to…" and "because…". 23 Who is the person to whom these statements are attributed? Ian Thorpe's manager, David Flaskas. He is a person who, in my view, the reasonable reader would understand as "knowing things". He would know what "the facts were", and rather than understand what is attributed to him as an expression of opinion, the attribution would be understood as a statement of fact. Here we have the manager being understood as saying of this plaintiff that Mr Sleeman "deliberately" gave the "false" impression that he had spoken to Ian Thorpe "recently and at length" and the person saying that was Ian Thorpe's manager. 24 The phrase "according to" would be understood as no more than a reference to what Ian Thorpe's manager, David Flaskas, "says" and he "says" what he says because he as the manager knew it to be otherwise than that Mr Sleeman had spoken to Mr Thorpe recently and at length. He knew, as manager, that any statement to that effect was "false". This is not an expression of an opinion. This, as published by this defendant, is a defamatory charge against the plaintiff and an assertion of fact. 25 For those reasons the defences of comment fail at the outset. 26 It will be desirable, however, for me to return, in due course, to considerations of factual matters if the conclusion to which I have just referred had not been reached.

The defence of contextual truth 27 I turn now to the defence raised by the defendant pursuant to s16 of the Defamation Act (contextual truth). 28 In this context, not only is it desirable, but it is in my view necessary to bear in mind the meanings which the jury found the defendant's publication carried as being defamatory of the plaintiff. Those meanings are: (a) The plaintiff is a dishonest journalist. (b) The plaintiff in writing a piece on Ian Thorpe deliberately gave the false impression that he had spoken to Ian Thorpe recently and at length. 29 Pursuant to the provisions of s16 and for the attainment of its statutory ends to defeat Mr Sleeman's claim, the defendant has pleaded that the same matter complained of carries of the plaintiff other meanings for the purposes of s16 namely: (a) The plaintiff acted dishonestly as a journalist by writing an article that conveyed the impression he had spoken recently and at length to Ian Thorpe. (b) The plaintiff acted dishonestly as a journalist by conveying the impression in his article that Ian Thorpe was revealing that he might retire after the Olympics. 30 As the tribunal of fact pursuant to s7(4)(a) of the Defamation Act, I have to determine whether, at the threshold, this defence is available. 31 With respect to contextual imputation (a) set out in para [29], whilst I am satisfied that it could be characterised as arising "at the same time" as the plaintiff's imputation (b) in para [28], I am not persuaded that it arises "in addition to" the plaintiff's imputation. Even taking into account the different approaches, as I see them, of Spigelman CJ and Ipp JA in John Fairfax Publications Pty Ltd & Anor v Jones [2004] NSWCA 205, what each of their Honours said in the context of that appeal in terms of the relevant imputation not being "another imputation" (s16(1)), the same can be said here of the contextual imputation under consideration. On any reasonable view of the imputation set out at 28 and the imputation set out in 29, the thrust, substance and content of each are identical. The use of the word "dishonestly" by the defendant in its contextual imputation does no more than by the use of that word say that the plaintiff deliberately gave the impression, which of necessity must be "false", that he had spoken to Ian Thorpe recently and at length. I find that the first contextual imputation relied upon by the defendant is incapable of being relied upon for the purposes of s16. 32 As to imputation (b) set out in para [29], I have come to a different conclusion. That contextual imputation raises a distinct matter. What is distinct is the particular focus on "the impression" in the article that Ian Thorpe was revealing that he might retire after the Olympics. The defendant is contending that the plaintiff acted dishonestly as a journalist by conveying that impression and that particular impression. I am not persuaded by the judgments in Jones (supra) that there is any way to manoeuvre around this position. The defendant is entitled to plead and seek to prove to be true, as another imputation, arising at the same time but in addition to the plaintiff's imputation, that which is set out in (b) in para [29] above. 33 The next consideration usually is that with which s16(2) is concerned, namely, "by reason that those contextual imputations are matters of substantial truth, the imputation complained of does not further injure the reputation of the plaintiff". 34 In John Fairfax Publications Pty Ltd v Blake; David Syme & Co v Blake (2001) 53 NSWLR 541; [2001] NSWCA 434 Spigelman CJ with whom Rolfe AJA agreed, held that the Court must focus on weighing the injury against the facts, matters and circumstances said to establish the truth of the contextual imputation, rather than on the contextual imputation itself: see Blake at 543 and 558. In that case Hodgson JA took the thitherto traditional approach that the question of s16(2)(c) involved the weighing of imputation against imputation: see Blake at 556. In the instant case the defendant relies upon the same particulars in support of its justification of the second of the plaintiff's imputations and (now relevantly) the second of its contextual imputations. As stated above, the defendant is not justifying the plaintiff's first imputation. 35 It seems to me that the appropriate course is to focus upon the particulars of truth generally as set out in the defendant's pleading and determine whether more probably than not any or all of them have been made out. That will permit the determination of whether the substantive s15 defence is made out in relation to the plaintiff's second imputation and what role, if any, the defence of contextual truth has to play.

The course of the evidence generally 36 This review of the course of evidence relates only to the issue of truth. 37 The plaintiff considered writing an article on Ian Thorpe in January 2000 at the time of the Qantas World Cup, held in Sydney, on the 17th and 18th of that month. The first step he had to take was to see when he might get access to observe him and to interview him during that event. He obtained accreditation as a freelance journalist at that meet from Ian Hanson, the media director, and through that person and a Mr Mason an interview was organised in the interview room adjoining the media room on the lower level of the Aquatic Centre at Homebush. The plaintiff says Mr Mason introduced him to Mr Thorpe who said "fine" when informed that the plaintiff was preparing a story. The interviewee was sitting on a table, Mr Mason was present in the room and was the only other person until about ten minutes into the interview a television reporter, Michael Meagher, stood and observed what was taking place. The plaintiff took notes (exhibit E). Prior to interviewing Mr Thorpe the plaintiff had interviewed his trainer, Mr Frost and Mr Thorpe senior. Mr Evatt led Mr Sleeman through what became, for a reason almost unfathomable, a matter of arch contention, a question of videos watched by the swimmer; similarly matters concerning Mr Thorpe's "stroke". 38 Mr Evatt then led the plaintiff to what the defendant described as "crucial" by way of subject matter. In the article published in the "Good Weekend" (exhibit B) there is in the introduction above the heading "Laps of the God" a statement (of which the plaintiff was not the author), "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". In the body of the article published in the "Good Weekend" there is the following passage: "Thorpe's intensity drops off when the conversation turns to life outside swimming. 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. As a Sydney teenager at the Munich Olympics, Gould won five medals, three of them gold. She broke two world records in the process. Going into Munich, she was every bit as dominant as Thorpe has been in the lead up to Sydney. Months later, Gould was lost to the sport, gone west, literally, to the obscurity of a small farm south of Perth. "I won't be swimming after the Olympics," Thorpe says, leaning across and speaking in a conspiratorial tone. He doesn't specify whether he means for a short time or forever. He has not told this to anyone publicly before. "I want to go to university to study psychology, or medicine. I would like to earn my living as a psychologist or a surgeon. You won't see much of me after the Olympics. I want to be able to go to the movies like a regular person and be no-one special." " 39 The text of the "Good Weekend" article is Appendix A to these reasons. 40 In examination in chief the following evidence was elicited (T 23-24): "EVATT: Q. Just let's get what you asked him at the interview. What did you say to him at the interview? A. I said to him, "Where would you like to see yourself in 20 years time?" He said, "I don't know as long as I'm enjoying it." I said, "Where would you like to see yourself next year?" I mean, I said, "Where would you like to see yourself after the Olympics?" He said, "I won't be swimming after the Olympics. You won't see much of me after the Olympics." He said, "I want to go to university," he said he wanted to study psychology or medicine. He said he wanted to go to the movies, like everyone else, and be no-one special and… Q. What else did he say about after the Olympics? A. That pretty much sums it up. I don't have the story in front of me, or my notes in front of me but he said, "I won't be swimming after the Olympics. You won't see much of me after the Olympics." He said that he wanted to go to university. He said he wanted to study either psychology or medicine. He said he wanted to go to the movies and be no-one special. Q. Did he say he was never going to swim again? A. No, he did not. Q. What did he say about - do you need your notes? A. I don't need my notes but I didn't press the point. I didn't say, "Are you definitely, are you retiring or not?" He didn't say, nor did I mention - nor did I say that in the story. He simply said what I've said, that he won't be swimming after the Olympics and "You won't see much of me after the Olympics." Q. Did he say for how long after the Olympics? A. No it was unclear. There was definitely an option. Without any doubt in my mind, there was a definite option. Q. Caused by what he said? Yes, go on. A. About what he said, that he may retire. It was, it was very clear in my mind". 41 Mr Sleeman said that the interview with Mr Thorpe took 20 - 25 minutes; that he did not mention to Mr Thorpe in what magazine the proposed article was to appear: rather, he told him he was a freelance journalist and was preparing a story about him. 42 Apart from the 20 - 25 minute interview he had other brief interviews with Mr Thorpe, more "grabs of conversation with him" (T 27.56). 43 By reference to the notes that became exhibit E, the plaintiff gave evidence as to conversations he had with Mr Frost and with Mr Thorpe, together with Mr Devitt (a former champion swimmer) and Mr Flaskas (Mr Thorpe's manager). 44 After the events which appear to have taken place on 17 January, in the evening, the plaintiff went home and typed up some of the notes and some observations. To this he kept making additions which were incorporated into what is described in his evidence in chief as the "final" story. Mr Sleeman was ignorant of any contract between Mr Thorpe, his manager Mr Flaskas, and "The Australian". 45 Exhibit F is made up of documents reflecting a contractual arrangement between "The Australian" and Ian Thorpe through his manager, Mr Flaskas. 46 After the luncheon adjournment, attention was paid to one of the "grabs" to which reference has been made, above. The following exchange took place between Mr Evatt and his client (T 37-38): "EVATT: Q. You mentioned you spoke to Mr Thorpe. This is apart from the interview in the interview room, you spoke to him somewhere between the pool and the dressing rooms or something where you said there was a barrier? A. Yeah, in the - it's called the mixed zone where media has very close access to the competitors as they train. It's a barrier about waist high separated in the middle and that's all. Q. Did you ask him questions there and did you make a note of it? A. Yes I did. Q. What question, or questions, did you - this is on the same carnival, 17th or 18th of January, whenever it was? A. Yes, during the World Cup at Homebush in Sydney, at the Olympic pool. Q. Was this before the interview? A. It was before the long interview. Q. What did you say to Mr Thorpe? I take it there were other press there, weren't there? A. No, not a press conference or anything. He had just completed a training session in preparation of his swims that night. He just got out of the pool and he was changing into his, into his tracksuit top and he looked really tired from the swim and he got out. He was labouring to get his swimming trunks off, as you do. He had the towel around him and he leant over this rail, which separated the competitors and the media, the barricade, so that his face was just about in my ear, because he was trying to balance himself to put his tracksuit on.

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.

Damages 107 The defendant having failed, attention must now be given to the award of damages to which the plaintiff is entitled. 108 In assessing damages for defamation regard must be had to Part 4 of the Defamation Act 1974. As I said, in Markovic v White [2004] NSWSC 37 at [35] the real exercise is that provided for in s46A(1): "In determining the amount of damages to be awarded … the court is to ensure that there is an appropriate and rational relationship between the relevant harm and the amount of damages awarded", cf Nicholas J in Jamoo v Nationwide News Pty Ltd [2004] NSWSC 126 at [56]. 109 No assistance was provided by counsel that would facilitate in the instant case any application, if at all possible, of s46A(2). 110 In any event, in Rogers v Nationwide News Pty Ltd (2003) 201 ALR 184; [2003] HCA 52 at [73] Hayne J observed that s46A should not be understood as prescribing a particular let alone a mathematical relationship between the damages to be awarded for defamation and the damages for non-economic loss in personal injury awards. The fundamental principle, as his Honour stated, is that the damages to be awarded for defamation must compensate for the effect of the defamation on the particular plaintiff. 111 His Honour had previously, in accordance with orthodox principle, identified (in para [60]) the purposes of an award as follows: "[60] The three purposes to be served by an award of damages for defamation are identified in the joint reasons in Carson v John Fairfax & Sons Ltd : (i) consolation for the personal distress and hurt caused to the appellant by the publication; (ii) reparation for harm done to the appellant's personal, and in this case, professional reputation; and (iii) the vindication of the appellant's reputation. As pointed out in Carson : the first two purposes are frequently considered together and constitute consolation for the wrong done to the appellant; vindication looks to the attitudes of others". (footnotes omitted) 112 These general principles have recently been applied by Nicholas J in Jamoo, above, and Buddin J in Konstantinidis v Foreign Media Pty Ltd & Ors [2003] NSWSC 1135. 113 The imputations found by the jury I find to be serious. They allege dishonesty in the plaintiff as a journalist and the deliberate creation of a false impression. Thus in my view they fall within that category of "the whole of life" referred to by Mahoney JA in Crampton v Nugawela (1996) 41 NSWLR 176 at 193A. These grave allegations were published by the defendant in circumstances that add to the gravity of the making of the charges, namely that they were published by it in its "Media" section. 114 The extent of the publication is revealed in exhibit R (the defendant's answers to interrogatories) as to the readership: "1(iv) The Roy Morgan Readership survey for the 12 months ending June estimate the average readership for The Australian (Monday to Friday average) for the period 1 July 1999 - 30 June 2000) in the following states was: (a) New South Wales (Including ACT) -130,000 (b) Victoria - 101,000 (c) Queensland - 84,000 (d) Tasmania - 13,000 (e) South Australia - 57,000 (f) Western Australia - 49,000 (g) Northern Territory - 4,000"

and as to circulation: "2 The estimated circulation of The Australian on 8 June 2001 was: (a) 30,390 copies in New South Wales (b) 35,741 copies in Victoria (c) 30,968 copies in Queensland (d) 2,894 copies in Tasmania (e) 12,997 copies in South Australia (f) 13,876 copies in Western Australia (g) 869 copies in the Northern Territory (h) 5,551copies in the Australian Capital Territory"

115 The "interstate" aspects were not, with respect, satisfactorily dealt with by either side. The material in the interrogatory I will take into account as best I can on the issue of extent of publication. That is how, in the end, I understand that parties wanted the matter considered. 116 The defendant admits that it did not apologise for the publication. The plaintiff did not ask the defendant to apologise but according to his own interrogatories (exhibit 2) it would have been pointless to request an apology: "The article was so malicious. I thought the issue of a statement of claim might make the paper apologise". This was an answer bordering on the flippant one might think. Nonetheless it does not deprive in my view such a component of an award of general compensatory damages to which the plaintiff is otherwise entitled by reason of the failure of the defendant to apologise (Carson v John Fairfax & Sons (1993) 187 CLR 44; Clark v Ainsworth (1996) 40 NSWLR 463). 117 The plaintiff has been a journalist all his working life, approximately 40 years, having fulfilled an ambition to be nothing else but a sports writer. He gave evidence of covering, in effect, all major sporting events in the world, Wimbledon, the British Open, the Admiral's Cup, five Olympic Games and Commonwealth Games. He had won awards including the National Press Club of Australia Australian Sports Writer of the Year and the National Press Club Best Sports Story of the Year. Exhibit C is evidence of the journalistic awards; exhibit D is the plaintiff's curriculum vitae. At the time of the publication of the matter complained of the plaintiff, as I understand his evidence, was employed as the Communications Manager at the Sydney Media Centre which was a joint state and federal operation established for the specific purpose of the then forthcoming 2000 Olympic Games and was housed at the old Casino site at Darling Harbour. It was there that the plaintiff first learned of the publication by the defendant of its piece in the "Media" section of its national newspaper. The first he knew of it was a call from the editor of the "Good Weekend" who told him that there was a story in "The Australian" condemning the profile that the plaintiff had written. She faxed a copy to the plaintiff who in the meantime had had another call from a public relations consultant, one Brian Finn, who had said to him, "It was a terrible thing you did to exploit Ian Thorpe, you shouldn't have done it". At that point, prior to the receipt of the fax, the plaintiff, understandably, was upset. 118 To put it shortly, upon reading the article when it was duly faxed, he was literally physically ill and went outside, hung over the rail into Darling Harbour and "fed the Leatherjackets". He phoned Ms Souter at Fairfax, alleging the falsity of what had been published by the defendant. He was angry and was told he appeared to be almost white. He was concerned immediately with the damage it would do to his career (seeing it go "down the toilet") in which he had been engaged since the age of 13. Mr Evatt, without objection to any great extent from Mr Blackburn, led from the plaintiff evidence almost line by line as to the plaintiff's reaction of hurt and outrage as to what had been written in exhibit A, all of which pointed to, relevantly for the assessment of damages, the plaintiff's hurt at the falsity of the imputations published by the matter complained of and his knowledge of that falsity, thereby entitling him, to that extent, to an award of aggravated damages. The attack upon the plaintiff came as a bolt from the blue and was the more hurtful to him because he had been congratulated by so many people on the article that he had written for the "Good Weekend". 119 He was upset by a phone call received from a Mr Stevenson at Cronulla, complaining about the terrible thing he had done. He had to assert the falsity of "The Australian" article, as he did to a Mr Carney from Forestville who was not going to let the plaintiff speak to any of his (Mr Carney's) athletes again. He had a call from Mr Derryn Hinch, an old journalist friend from Melbourne, condemning him. The phone was "buzzing" for the next few days. The calls diminished over a week. 120 Within a short time of the publication, even a taxi driver picking the plaintiff up from his place of work, but without knowing his identity, suggested that the author referred to in "The Australian" should not be let in to the Media Centre. His landlord, a week or so after the publication, suggested that the plaintiff would be unable to pay his rent because he would be sacked for what "The Australian" had said about him, namely lying in the Thorpe article. 121 This material of course goes to prove actual damage to the plaintiff's good name and reputation and hurt to his feelings. 122 A particular matter of concern was an incident involving, to put it in general terms, the presence at the Sydney Media Centre of Mr Nelson Mandela. The plaintiff heard someone say, "Well, you won't be able to let this bloke any where near Nelson Mandela in this conference, he's dishonest" (T 68.50). That, the plaintiff said, was said in his presence and in the presence of Mr Mandela's staff, and reference was made to the article. Otherwise, the plaintiff had anticipated playing a substantial role in Mr Mandela's attendance at the Centre. He was told that he would not be part of the Mandela conference, and he felt so humiliated that he cried in private. 123 In giving his evidence on 18 November 2002 the plaintiff referred to an event that had taken place the preceding day. I gather that the event occurred at the Des Renford Aquatic Centre at Maroubra. The day before giving evidence the plaintiff was speaking to some old friends, and Des Renford's son, Murphy. A person came up to him as he was leaving whom he recognised "from around the traps" though did not know by name, and who said to him, "You've got a hide to show your face at swimming venues after what you did to Thorpe". As the plaintiff stressed, that was "yesterday", that is, the day before the commencement of the trial and is some evidence of the duration of the persistence of the libel. 124 I accept the plaintiff's evidence on these matters and on his being shunned at the Media Centre (T 70). 125 I am not persuaded however that more probably than not the plaintiff had problems obtaining new employment after the termination, at the end of October, of his position at the Media Centre, that is, after the conclusion of the Sydney 2000 Olympic Games. The material in exhibit N, in shorthand described from the point of view of the plaintiff as "knock back" material, does not persuade me of a case being made in that regard. 126 The plaintiff called various witnesses including Mr Stevenson, who at the end of his cross-examination admitted that the publication of the article had not affected his friendship with the plaintiff, had not affected the esteem in which he held him, "No, not personally, but as I say there was the shadow of a doubt". Mr Higgins gave some evidence capable of being understood that Mr Sleeman enjoyed a good reputation and gave direct evidence of the plaintiff's appearance of being very upset after the fax had been received. Mr Sleeman was not lowered in Mr Higgins' estimation. He accepted the plaintiff's explanation. 127 Mr Carney gave evidence of the plaintiff's reputation as a brilliant journalist. Upon his reading the matter complained of he questioned Mr Sleeman's honesty and gave some evidence which more probably than not pointed to statements being made to him in an ironic way about Mr Carney's mate, Mr Sleeman. In cross-examination Mr Carney agreed that the plaintiff had cleared the matter up, which, amongst other things, establishes of course that the plaintiff "had to" clear the matter up with people who did form an adverse view of him by reason of the defendant's publication. 128 Mr Partridge, the landlord, was one witness who was not broken down by cross-examination. He made it clear that the assurances that Mr Sleeman gave him were accepted "with reservations". When asked whether the esteem in which he held Mr Sleeman had not been affected, he said, "Yeah, I'd say it was slightly, yes, there's still reservations there, yes. There's still reservations there". Evidence of damage not lightly to be dismissed in my view. 129 Mr Everingham was another witness who had reservations that affected the esteem in which he held the plaintiff at the time of publication, but the position was otherwise at the time he gave evidence. 130 In terms of the duration of the damage, accepting as I do the testimony of Mr Sleeman in relation to the Des Renford pool incident, it is apparent that whilst the impact was most damaging at the time of the publication and for some weeks after, it lingered. 131 The plaintiff gave express evidence as to the worry and concern attending the litigation (T 78) which I accept. 132 Mr Evatt, in closing, expressly gainsaid that reliance would be placed upon the conduct by the defendant of its case. Indeed, there was no evidence led in the usual way from Mr Sleeman in complaint about it. 133 Further, I am not persuaded that the persistence in the plea of justification was improper, unjustifiable or lacking in good faith thus warranting an increase in compensatory damages by way of aggravated damages. The fact that the defence has failed is no more than an incident of the litigation in the circumstances. 134 In the extraordinary document entitled "Composite particulars of malice and aggravated damages", the contents of which were unknown to the plaintiff, the difficulty arises out of the observations I have made in relation to the evidence of Mr Flaskas and, in effect, what I have found to be the substitution by the defendant of the word "dishonest" for the words in fact used by Mr Flaskas. The conclusion to which I have come is that from the evidence of Mr Flaskas to which I have referred to above, and from the terms of the matter complained of which introduces the word "dishonest", the only rational inference available to be drawn is that the article was published deliberately, that is, with the predominant motive of attacking Mr Sleeman's reputation (s46(3)(b). That is why the defendant, through a servant or agent, presumably or, at least, by inference Ms Amanda Meade, inserted the word "dishonest". This goes to the aggravation of damages. It might seem strange that the persistence in the plea of justification is not taken into account. The position might have been that it would otherwise have had an impact on damages but for the stance taken by the plaintiff during the course of closing addresses to which I have referred. 135 The first imputation is the more serious: it is a generalised attack on the plaintiff's reputation as a journalist. The second, more particularised in its charge, is nonetheless grave but not to the same extent as the first. 136 Accordingly, in the light of all the matters to which I have referred, I make the following orders:

1. In respect of the cause of action constituted by the imputation "The plaintiff is a dishonest journalist" I award the plaintiff a verdict of $250,000.00.
2. In respect of the cause of action constituted by the imputation "The plaintiff in writing a piece on Ian Thorpe deliberately gave the false impression that he had spoken to Ian Thorpe recently and at length" I award the plaintiff a verdict of $150,000.00. 137 As to the award of interest, in the light of the duration to which I have referred and taking into account matters of practice and principle (see Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 at [1538] - [1556]) I consider the appropriate rate to be two per cent. Accordingly:
3. I award interest for the period 8 June 2000 to 8 October 2004, that is 4 1/3 years, $34,660.00.
4. I enter judgment for the plaintiff in the sum of $434,660.00.
5. I order the defendant to pay the plaintiff's costs.
6. I order the return to the plaintiff of the following exhibits: exhibit C, exhibit D, exhibit P, exhibit S. Otherwise I order that the exhibits be retained for 28 days. In the event of an appeal being instituted in accordance with the Rules of Court the exhibits are to be retained until further order of this Court or the Court of Appeal. APPENDIX A GOOD WEEKEND MAGAZINE, Edition 1 - Late SAT 27 MAY 2000, Page 18 Laps of the god

By: Richard Sleeman 43 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. When Ian Thorpe takes to the water, leaping from the edge of the pool, he doesn't dive so much as unravel. 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. 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. You could swear his feet are still touching the pool deck by the time his fingertips break the water's surface. Between these extremities, the rest of him arches upwards and outwards. Is it this flexibility that makes him so good? Is it that relaxed, slow-motion style, so distinct from anyone else's in world swimming? Is it just his damned hard work, or maybe his highly technical and scientific level of training and preparation? Superior coaching perhaps? Happy home life? Unflappable temperament? The bodysuit? Those flipper feet? Certainly not drugs, as that impertinent German coach suggested. If none of these, what then? The thing about Thorpe is that his avalanche of freestyle world records - 10 in two years - defies explanation. 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 and answer. 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. He watched Thorpe from poolside in the latest wave of world records. "It gives me the shits," Fittler called out to anyone in earshot. "How can one sportsman be so good at something and make it look so easy?" Every other swimmer, every coach, in the world wants to know his secret. But not even Thorpe himself can explain it. 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. 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. The air hangs thick with the smell of pool chemicals and Olympic dreams. 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. You are instantly struck by the warmth and confidence he exudes. The almond eyes sparkle, ringed by marks left by his goggles. The smile is wide-mouthed and welcoming; teeth in perfect rows. It would seem a simple question to ask first up: why are you so good? 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. "A lot of it's to do with using the smallest amount of energy above the water," he says. 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." His coach, Doug Frost, calls it "sliding freestyle". Says Frost: "He has this - what would you call it? - a 'feel' for the water. That's it. A 'feel' for the water. He gets up on the plane, the way a speedboat does." His stroke-rate is absurdly slow. When Kieren Perkins broke world records in the recent past - and even Grant Hackett now - they completed more than 20 strokes per lap. Even when he cranks it up, Thorpe never completes more than 16 strokes. The irony is that Thorpe works hard at looking so relaxed. 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. He watched it over and over again, at home, at training, at his manager's. Not satisfied with knocking half a second off his world mark, he went searching, painstakingly, for improvement. 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." There was. The next night, in the final, he broke the record again. Says Thorpe: "I'm constantly working on the stroke. I get so frustrated when my stroke's out." In fact, his stroke hasn't been out since he was eight. But there's a search for perfection here that's unparalleled. Perhaps that's the real reason he's so good. Nothing's ever good enough. No limits. That, and the realisation of how transient fame and life are. Thorpe's intensity drops off when the conversation turns to life outside swimming. 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. As a Sydney teenager at the Munich Olympics, Gould won five medals, three of them gold. She broke two world records in the process. Going into Munich, she was every bit as dominant as Thorpe has been in the lead-up to Sydney. Months later, Gould was lost to the sport, gone west, literally, to the obscurity of a small farm south of Perth. "I won't be swimming after the Olympics," Thorpe says, leaning across and speaking in a conspiratorial tone. He doesn't specify whether he means for a short time or forever. He has not told this to anyone publicly before. "I want to go to university to study psychology, or medicine. I would like to earn my living as a psychologist or a surgeon. You won't see much of me after the Olympics. I want to be able to go to the movies like a regular person and be no-one special." This is not a one-dimensional, tunnel-visioned swimmer, however much time he puts into the hunt for the perfect stroke. Thorpe may have quit school at 14, but it had nothing to do with shortage of brain power. He was dux of his primary school and scored in the high 90s at East Hills Boys' Technology High in the School Certificate, which he completed by correspondence. 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. "Swimming is never mentioned at home," he says. "It's a rule. Home is my safe haven." The choice between a "normal" teenager's school life and that of a full-time professional swimmer was made when Thorpe was 14. He was a "freak" swimmer, really, at 12. His father, Ken Thorpe, remembers a State short-course meet when Ian, at that tender age, had 13 swims for 13 State records. "I knew at that moment," Ken says, "that we had a very special boy on our hands." But Ken and his wife, Margaret, had seen their daughter, Christina, squander her education in search of swimming gory, before an injury cut short a promising career as a distance freestyler which got her into the Pan Pacific titles in 1995. Ken Thorpe recalls the family gathering that would decide whether young Ian became a swimmer or a student. Sport or an education? You can't have both these days, such are the demands of modern-day training. "It was the strangest conversation," Ken recalls. Thorpe Snr was an accomplished cricketer who played alongside Len Pascoe and Jeff Thomson at the Bankstown club. Margaret Thorpe is a schoolteacher. You'd expect the former would push for the sports option for their son, and the latter for an education. Says Ken: "It was the exact opposite. I wanted him to stay at school and complete his education. Margaret wanted him out of school and into swimming full-time." Luckily for a lot of people, Margaret Thorpe got her way. That decision has changed more lives than just Ian's. He's a millionaire in endorsements alone, but Thorpe is not the only one to benefit. 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. Now home is a comfortable new brick place at Voyager Point, on the Georges River, in a complex called The Sanctuary. Ken has taken redundancy from his council job. Doug Frost, Thorpe's grey, balding, bespectacled mentor, has struggled as a coach for 40 years for few rewards. He had a world championship finalist once in Phil Bryant, but never a star. Says Frost: "I could never even afford a decent car to go to training. It'd be, like, 5 am on a cold winter's morning and the old bombs I had wouldn't start. 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. When grants were handed around, I never got one." And when swim coaches were mentioned in the newspaper, it was always the Lawrences, the Bucks, the Talbots. 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. 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. When Thorpe breaks yet another world record, they run from everywhere to shake Frost's hand, as if some of his secrets might rub off. Then there's Thorpe's agent, David Flaskas. The pair are exceptionally close. Flaskas looked after Christina Thorpe, who now works for him and handles all calls on Ian's time. Before Thorpe, Flaskas was a relative minnow among the sharks in the sports agent business. Now he talks "global strategies", rolls off the big-name companies that support his charge, and admits: "It has been fantastic financially." If Thorpe Inc, rather than just Ian himself, ever floated, it would cause a stampede. Flaskas is in awe of Thorpe, his talent and maturity. "It's like Ian's been here before," he says. Thorpe's first tentative strokes in a swimming pool were far from god-like. Doug Frost recalls how Thorpe as a seven- and eight-year-old used to accompany his sister to the old Padstow pool. "He was allergic to the chlorine," says the coach. "He refused to get his face and head wet. If he did, he'd break out in a bad rash or something. It was hardly an auspicious start to a swimming career. "I tried to teach him how to dive in, but that meant getting his face wet. So he'd do the belly flop and thrash about. I've got some old footage of him somewhere. I must get it out. He was all straight-armed and half-drowning." Over the years, they developed, honed and adjusted his perfectly balanced stroke. "Ian has absolutely no flat spots in the stroke," says Frost. "Not even under the most intense pressure." Frost is asked if Thorpe has any faults. "If he has one, I haven't seen it yet. He's competitive, but not aggressive. He treats other competitors with great respect. He never misses a training session. He's rarely even late for one." They made one big tactical blunder in the 1998 World Championships in Perth - letting Grant Hackett get a big lead in the 400 metres. Thorpe reeled him in, but only in the nick of time, to become the youngest-ever world champion. Says Frost: "My plan - our plan - was flawed. We underestimated Hackett. It won't happen again." It's why Thorpe now leads in all his races, and when in front, relentlessly drives further and further ahead. 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. They make quite a pair, Ian Thorpe and Michael Williams. They met when Thorpe's sister, Christina, was first dating Michael's brother, David. When Michael, at age 11, was struck down with lymphoma, Thorpe was 14, his career just taking off. Thorpe told Sports Illustrated, "It was a strange time, all the sponsors coming into my life, all the interviews and the limelight. I realised how little it all meant. It gave me no power to help Michael." For a time, Thorpe struggled with his own goals as Michael fought against the inoperable cancer and sickening chemotherapy. More than once, Michael was given up for dead. Thorpe wondered at the point of it all. He credits his sick friend with getting him back on track. 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. It changed my life. It opened my eyes to the world. When I was feeling pain in workouts, I'd start thinking: this is nothing compared to what Michael's going through." If Michael's courage inspired Thorpe, then the reverse was also true. His health began to improve, the cancer went into remission. 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. Michael's cancer is still in remission, he and Thorpe are family now Christina and David Williams are married, and you'll rarely see Thorpe compete without Michael in the stands, stopwatch in hand, cheering him on. 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. Thorpe, too, benefits from scientific research. The bodysuit cuts down times, no doubt about it. So does the altitude training in the Snowy Mountains and Colorado. There's the stroke assessments from the underwater video, guidance in nutrition and diet, lactate tests, skinfold tests, gym programs. Nothing is left to chance. For some of us, it might be reassuring to know that not even medical and scientific breakthroughs can help Thorpe in another sport. His father wanted him to be a cricketer. But, "Ian has absolutely no hand-eye co-ordination. He can't catch or throw," says Ken. "Put him on the cricket or football field and it's embarrassing." Want to beat Ian Thorpe? Just throw him a cricket ball. Pool shark Thorpe first grabbed the world's attention at Perth in 1998, when he stormed past Grant Hackett in the last few metres of the 400 metre freestyle final to become, at 15, the youngest world champion in swimming history. Less than 21/2 years later, he has broken 10 world records, including three in three days at the recent Olympic trials at the Sydney Aquatic Centre, and four in four days at last year's Pan Pacific titles in the same pool. He is now just one world record short of dual Olympic champion Kieren Perkins' 11, but Perkins, who is 26, didn't break his first world record until he was 18. By comparison, Dawn Fraser broke 39 world records in a career spanning more than a decade; Shane Gould broke or equalled 11 world records, all by the age of 16. WORLD CHAMPIONSHIPS, PERTH, 1998 Gold medal, 400 m freestyle Gold medal, 4 x 200 m freestyle relay COMMONWEALTH GAMES, KUALA LUMPUR, 1998 Gold medal, 200 m freestyle Gold medal, 400 m freestyle Gold medal, 4 x 100 m freestyle relay Gold medal, 4 x 200 m freestyle relay (world record) PAN PACIFIC CHAMPIONSHIPS, SYDNEY, 1999 Gold medal, 200 m freestyle (world record) Gold medal, 400 m freestyle (world record) Gold medal, 4 x 100 m freestyle Gold medal, 4 x 200 m freestyle (world record) WORLD RECORD CHRONOLOGY 200 m FREESTYLE 1:46.69 Giorgio Lamberti (Italy) Bonn 15/8/1989 1:46.67 Grant Hackett (Australia) Brisbane 24/3/1999 1:46.34 Ian Thorpe (Australia) Sydney 23/8/1999 1:46.00 Ian Thorpe (Australia) Sydney 24/8/1999 1:45.69 Ian Thorpe (Australia) Sydney 14/5/2000 1:45.51 Ian Thorpe (Australia) Sydney 15/5/2000 400 m FREESTYLE 3:46.47 Kieren Perkins (Australia) Canberra 3/4/1992 3:46.47 Kieren Perkins (Australia) Canberra 3/4/1992 3:45.00 Evgueni Sadovyi (Russia) Barcelona 29/7/1992 3:43.80 Kieren Perkins (Australia) Rome 9/9/1994 3:41.83 Ian Thorpe (Australia) Sydney 22/8/1999 3:41.33 Ian Thorpe (Australia) Sydney 13/5/2000 47

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BIOG: IAN THORPE Section: MAGAZINE Type: FEATURE

(A) Clauses 1 and 3 of the AJA Code of Ethics provide: "1. Report and interpret honestly, striving for accuracy, fairness and disclosure of all essential facts. Do not suppress relevant available facts, or give distorting emphasis. Do your utmost to give a fair opportunity for reply. "3. Aim to attribute information to its source. Where a source seeks anonymity, do not agree without first considering the source's motives and any alternative attributable source. Where confidences are accepted, respect them in all circumstances"

(B) Ian Thorpe did not agree to be interviewed for the article referred to in the matter complained of published in the Sydney Morning Herald Good Weekend Magazine on 27 May 2000 entitled "The Water God" written by the plaintiff (a copy of which is annexed in Schedule A).

(C) Ian Thorpe briefly answered some questions put by the plaintiff at the World Cup Swimming Competition in January 2000, but gave no formal or lengthy interview to the plaintiff.

(D) Ian Thorpe did not agree to provide or pose for photographs for the particular use in the plaintiff's article.

(E) The plaintiff's article uses language designed to give the impression that the plaintiff had spoken at length and recently with Ian Thorpe for the purposes of the article, including:

(I) "Richard Sleeman meets [Ian Thorpe]" (paragraph 2)

(II) "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. You are instantly struck by the warmth and confidence he exudes. The almond eyes sparkle, ringed by marks left by his goggles. The smile is wide-mouthed and welcoming; teeth in perfect rows. "It would seem a simple question to ask first up: why are you so good?" (paragraphs 9-10)

(III) "the conversation turns to life outside swimming" (paragraph 15)

(IV) "'I won't be swimming after the Olympics,' Thorpe says, leaning across and speaking in a conspiratorial tone…. He has not told this to anyone publicly before." (paragraph 16)

(V) The change in tense from "Thorpe told Sports Illustrated" (paragraph 39) to "He says" (paragraph 41), and the omission of an attribution to Sports Illustrated in respect of the later quote, when both quotes appeared in the earlier Sports Illustrated article.

(F) Ian Thorpe did not meet with the plaintiff for the purposes of providing an interview for an article relating to him.

(G) The plaintiff did not have a formal interview with Ian Thorpe, David Flaskas, Doug Frost or the parents of Ian Thorpe for the purposes of his article.

(H) The plaintiff had not spoken recently to the parents of Ian Thorpe before the publication of the plaintiff's article.

(I) The plaintiff's article falsely conveys the impression that the following facts (each of which is untrue) were obtained from interviews with Ian Thorpe, David Flaskas, Doug Frost and the parents of Ian Thorpe:

(I) Ian Thorpe repeatedly watched video replays of his 400 metre swim at the Olympic trials (paragraph 14)

(II) Ian Thorpe day trades on the stock market from his computer at home (paragraph 19)

(III) Ian Thorpe quit school at age 14 (paragraph 19)

(IV) Ian Thorpe was dux of his primary school (paragraph 19)

(V) the Thorpe family debated in the manner described whether Ian would become a swimmer or a student (paragraphs 25-26)

(VI) Ian Thorpe purchased the new family home at Voyager Point (paragraph 22)

(VII) Michael Williams regularly has a stopwatch when in the stands watching Ian Thorpe compete (paragraph 37)

(VIII) Ian Thorpe donated all of the $25,000 prize for being the first swimmer to set a world record at the Homebush Olympic pool to children's cancer research (paragraph 44)

(J) The plaintiff's article includes a large number of factual errors that proper enquiries would have revealed to be untrue, including assertions or inferences that:

(I) Ian Thorpe repeatedly watched video replays of his 400 metre swim at the Olympic trials (paragraph 14)

(II) Ian Thorpe day trades on the stock market from his computer at home (paragraph 19)

(III) Ian Thorpe quit school at age 14 (paragraph 19)

(IV) Ian Thorpe was dux of his primary school (paragraph 19)

(V) the Thorpe family debated in the manner described whether Ian would become a swimmer or a student (paragraphs 25-26)

(VI) Ian Thorpe purchased the new family home at Voyager Point (paragraph 22)

(VII) Michael Williams regularly has a stopwatch when in the stands watching Ian Thorpe compete (paragraph 37)

(VIII) Ian Thorpe donated all of the $25,000 prize for being the first swimmer to set a world record at the Homebush Olympic pool to children's cancer research (paragraph 44)

(IX) Ken Thorpe used the term "embarrassing" in relation to Ian Thorpe's cricket and football abilities (paragraph 41)

(K) Ian Thorpe did not tell the plaintiff that there was any likelihood that he would retire from swimming after the Olympics.

(L) Ian Thorpe did not make any newly published revelations to the plaintiff that he would either retire from swimming after the Olympics or that he would be taking a break from swimming after the Olympics.

(M) The plaintiff's article conveyed the impression that:

(a) Ian Thorpe had revealed to the plaintiff, for the first time, that he might retire after the Olympics. (b) Ian Thorpe had revealed to the plaintiff, for the first time, that he would be taking a break after the Olympics.

Last Modified: 11/09/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.