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. Imputation (a) 4 Mr Blackburn submitted that the article was not reasonably capable of conveying the meaning that the plaintiff cheated at his sport. To cheat implies dishonesty or subterfuge or deliberate concealment and nowhere does the article convey expressly or by implication the notion that the plaintiff had cheated. 5 Mr Blackburn referred to Amalgamated Television Services Pty Limited v Marsden (1998) 43 NSWLR 158 and in particular to the judgment of Hunt CJ at CL at 164 when defining the test to be applied on an application such as the present one. His Honour said (at 164): "The Privy Council, sitting on appeal from this Court, has held variously that the issue of the capacity of the matter complained of in a defamation action is both a question of law (Jones v Skelton (1963) 63 SR 644 at 650; 80 WN (NSW) 1061 at 1065) and a question which is not strictly speaking one of law: Lloyd v David Syme & Co Ltd (1985) 3 NSWLR 728 at 733. In both cases, however, their Lordships have described the task itself as one of deciding whether it is or was open to the jury in the particular case to find that ordinary reasonable readers (or listeners or viewers) would have understood the matter complained of in the defamatory sense pleaded. That is also the issue posed by s 7A(1) of the Defamation Act 1974, which is merely declaratory of the common law. In other words, the issue is the familiar one — one which is often made the subject of a ruling by the trial judge — as to whether there is or was a case to go to the jury: Jones v Skelton (at 656; 1070); Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348 at 372; Farquhar v Bottom [1980] 2 NSWLR 380 at 386; Lloyd v David Syme & Co Ltd (at 733)… Although "designed to illuminate a different area" (namely, negligence), the function of both the trial judge and of this Court on appeal in determining whether there is or was a case to go to the jury is well-stated in Prosser's Handbook of the Law of Torts, 5th ed (1984) by Prosser & Keeton (at 238): 'The most common statement is that if reasonable persons may differ as to the conclusion to be drawn, the issue must be left to the jury; otherwise it is for the court.'…" 6 Is this particular imputation reasonably capable of being conveyed? 7 Mr Blackburn submitted that only a person avid for scandal could read the imputation pleaded into the article. Counsel also drew attention to the principle that a publication is not to be held responsible for an inference which the reader draws from an inference already drawn by the reader: see Mirror Newspapers Limited v Harrison (1982) 149 CLR 293 and Marsden (supra) in particular at 167. 8 Mr Blackburn also referred to what Mason J, as he then was, said in Harrison (supra) at 301: "A distinction needs to be drawn between the reader's understanding of what the newspaper is saying and judgments or conclusions which he may reach as a result of his own beliefs and prejudices. It is one thing to say that a statement is capable of bearing an imputation defamatory of the plaintiff because the ordinary reasonable reader would understand it in that sense, drawing on his own knowledge and experience of human affairs in order to reach that result. It is quite another thing to say that a statement is capable of bearing such an imputation merely because it excites in some readers a belief or prejudice from which they proceed to arrive at a conclusion unfavourable to the plaintiff. The defamatory quality of the published material is to be determined by the first, not by the second, proposition…" 9 It was submitted that it was only by taking the impermissible course identified in the above passage that the reader could find the subject imputation was conveyed. 10 In his contrary submissions, Mr Sackar of Queen's Counsel argued that the test on the present application does not set a high threshold for the plaintiff and that the imputation of cheating was open in the relevant sense, because it would be open to a jury to conclude that the article conveyed to the ordinary reasonable reader that what was being said was that the plaintiff took a drug which enhanced his performance to gain an unfair advantage and this amounted to cheating. What was conveyed was that there was a deliberate use of a banned substance to improve performance. That it was stated that the plaintiff was "cleared" after testing positive did not eliminate the concept of cheating. 11 In brief, they are the competing submissions in relation to this first imputation. 12 Not without some hesitation I have concluded that Mr Sackar's submissions should prevail and that this imputation should be considered by the jury. 13 The matter complained of has to be considered, of course, in its entirety. It nominates the plaintiff and nine other sportsmen. It addresses "the crackdown on drugs in sport", and "this has resulted in cases against prominent Australian sports people." It identifies "a number of Australians in a wide variety of sports" who "have tested positive to various banned substances." There then follows a list, not expressed as being exhaustive but as including the athletes it proceeds to name. The manner in which each of the athletes named was disciplined is recorded. It is not without significance that seven of the ten athletes named were punished by periods of bans, and an eighth athlete was punished by a fine. The plaintiff was described as having been "recently cleared" (whatever that may mean) and the tenth athlete was described as having "escaped censure" after having earlier been described as having been "caught late last year." 14 The article expressly informs the reader that these named sportsmen were not the only sportspersons who had tested positive to banned substances. The drug which the plaintiff had taken, or to which he had tested positive, was a drug used to help control chronic fatigue syndrome and was thus performance-enhancing. In context, it seems to me, that there is some merit in the submission that the article may have conveyed to an ordinary reasonable reader that the plaintiff had taken a performance-enhancing drug to gain an unfair advantage and that this amounted to cheating. The plaintiff has been named with eight other sportsmen who were punished for taking a banned substance and a ninth sportsman who "escaped censure." Because the plaintiff had tested positive to the specified drug and that he was "recently cleared" may, in context, convey no more to the ordinary reasonable reader, who may read between the lines, than that he escaped penalty. 15 It seems to me that there is room for reasonable persons to differ as to whether the matter complained of is capable of carrying the imputation pleaded. It has not been contended that the imputation, if conveyed, is not reasonably capable of bearing a defamatory meaning. In consequence, I conclude that the challenge to this imputation fails and that it should go to the jury. Imputation (b) 16 Mr Blackburn did not pursue a challenge to the form of the imputation. 17 As to the issue of capacity, the features of the matter complained of upon which I have remarked in considering imputation (a) are equally relevant in addressing imputation (b). That is not to say that the imputations are indistinguishable. Clearly they differ in substance, and Mr Blackburn has not contended otherwise. 18 Once again it is significant in considering this imputation that the plaintiff's name is listed with and thus linked to the eight sportsmen who, having tested positive to banned substances, were punished and the ninth sportsman who "escaped censure". All the named sportsmen, and the reader is informed that the list was not an exhaustive one, were "prominent Australian sportspeople." 19 I consider that the matter complained of is reasonably capable of bearing the meaning expressed in this imputation. Clearly the imputation, if found to be conveyed, is capable of a defamatory meaning. Once again therefore, I have concluded that this imputation should go to the jury. Formal orders 20 1. The application to strike out the imputations pleaded is dismissed. 2. I order the defendant to pay the plaintiff's costs of the application. ******** Last Modified: 09/25/2000 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.