Lynch v News Ltd [2000] NSWSC 128

New South Wales Supreme Court

CITATION : Lynch v News Ltd [2000] NSWSC 128 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20275/99 HEARING DATE(S) : 3 March 2000 JUDGMENT DATE : 9 March 2000

PARTIES : Alistair Lynch (Plaintiff) News Limited (Defendant) JUDGMENT OF : Studdert J

COUNSEL : J. Sackar QC (Plaintiff) T. Blackburn (Defendant) SOLICITORS : Ebsworth & Ebsworth (Plaintiff) Blake Dawson Waldron (Defendant) CASES CITED : Amalgamated Television Services Pty Limited v Marsden (1998) 43 NSWLR 158 Mirror Newspapers Limited v Harrison (1982) 149 CLR 293 DECISION : Application dismissed

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

STUDDERT J

8 March 2000 20275/99 ALISTAIR LYNCH v NEWS LTD

JUDGMENT

1 HIS HONOUR: The plaintiff, Alistair Lynch, claims that he was defamed in an article published in The Australian newspaper on 16 June 1998. In his amended statement of claim the plaintiff has pleaded that the article complained of conveyed the following imputations: "(a) That the plaintiff, a professional footballer, cheated at his sport by using a performance-enhancing drug.

(b) That the plaintiff was one of a number of Australian sports people who had brought disgrace on their sports by taking performance-enhancing or recreational drugs." 2 The article in question comprises schedule A to the amended statement of claim and is in these terms: "Australians to Test Positive The crackdown on drugs in sport - both performance-enhancing and recreational - has resulted in cases against prominent Australian sportspeople. The Australian Sports Drug Agency revealed recently that seven international athletes had tested positive to banned substances in Australia in the first three months of 1998. Since Samantha Riley was given a warning after testing positive to dextropropoxyphene in 1995, a number of Australians in a wide variety of sports have tested positive to various banned substances. They include: · Olympic athlete Dean Capobianco tested positive to atanozolol before the Atlanta Olympics and was banned for two years. · Swimmer Richard Upton was fined $2000 after testing positive to probenecid earlier this year. · Swimmer Scott Miller was banned for three months last September after traces of marijuana were detected in his system. · Richmond Australian footballer Justin Charles received a 16-match penalty last season for testing positive to boldenone. · Brisbane Lion Alastair Lynch was recently cleared after testing positive to DHEA, a drug used to help control chronic fatigue syndrome. · Clinton Schifcofske escaped Australian Rugby League censure last year while playing for Gold Coast after testing positive and admitting to steroid use. His club imposed a four-week ban. · Three members of the Australian bobsleigh team were caught late last year after positive tests: Martin Harland and Nathan Whaldon tested positive to stanozolol and Jon Morrison tested positive to metandlenone. Whaldon was banned for two years but Harland escaped censure. Morrison was recently banned for two years from selection in any Australian Olympic team. · Australian weightlifting champion Harvey Goodman was banned for two years earlier this year for recording an illegal testosterone level." 3 The defendant has made application to have each of the imputations pleaded struck out upon the basis that the content of the article is not reasonably capable of carrying the imputations pleaded. Mr Blackburn also indicated an intention to challenge the form of the second imputation, but that was not pursued and the issue the subject of argument was the capacity argument as to both imputations.