New South Wales Supreme Court CITATION : SLEEMAN v NATIONWIDE NEWS PTY LTD [2002] NSWSC 826 FILE NUMBER(S) : SC 20256 OF 2000 HEARING DATE(S) : 2 September 2002 JUDGMENT DATE : 2 September 2002 RICHARD SLEEMAN (Plaintiff) PARTIES : v NATIONWIDE NEWS (Defendant) JUDGMENT OF : Levine J C Evatt (Plaintiff) COUNSEL : T Blackburn (Defendant) Peter R Murphy & Co (Plaintiff) SOLICITORS : Blake Dawson Waldron (Defendant) CATCHWORDS : Reply - express malice - adequacy of particulars - discovery DECISION : See paragraphs 11, 12 and 13 DLJ:1 Ex tempore revised IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION list JUSTICE DAVID LEVINE MONDAY 2 SEPTEMBER 2002 20256 OF 2000 RICHARD SLEEMAN (Plaintiff) v NATIONWIDE NEWS (Defendant) JUDGMENT (Reply - express malice - adequacy of particulars – discovery) 1 HIS HONOUR: The plaintiff has instituted proceedings against the defendant in respect of a publication that has been dealt with pursuant to s 7A of the Defamation Act. The matter complained of is in the following terms: "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 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, bur probably not the last time the young swimmer has felt exploited". 2 As I understand it, On 9 May 2001 in a trial before Bergin J, the jury found that the matter complained of carried two defamatory imputations: (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 The defences filed by the defendant, in general terms, are privilege, comment, justification and contextual justification. 4 The plaintiff has filed a Reply inter alia in defeasance of the defence of privilege, asserting that the defendant was actuated by express malice. In the reply itself there are five particulars: (a) The Defendant bore ill will against the Plaintiff because he scooped "The Australian" with his article about Ian Thorpe in "The Good Weekend". (b) The Defendant was jealous of the Plaintiff because he was a superior journalist than the journalists of "the Australian. (c) The Defendant's defence of truth (if it fails at the hearing). (d) Knowingly false allegations made against the Plaintiff in particulars B-I of the Defendant's particulars of truth. (e) The Plaintiff also relies on the particulars of aggravated damages. 5 The plaintiff, however, proposes to add four more four more. (f) "The Australian" had a contract with Ian Thorpe for him to write exclusively for that newspaper. (g) "The Australian" believed that the Plaintiff had induced a breach of the contract between the newspaper and Ian Thorpe. (h) The Defendant's motive in publishing the material complained of was to denigrate the Plaintiff and preserve its rights under the contract with Ian Thorpe. (i) While publishing the material complained of the Defendant sought to infer that the Plaintiff and Ian Thorpe were in breach of the contract between Ian Thorpe and "The Australian". 6 It is the contract referred to in the matter complained of and referred to in the additional particulars of express malice that is the subject of contention. The question is whether or not the defendant is required to give discovery of it and otherwise is to produce it pursuant to a notice to produce which I understand has been delivered. 7 Complaint is made for the defendant that the particularisation of the plaintiff's case in malice is wanting in requisite detail. Thus the Court should be disinclined to exercise a discretion requiring the production of the document. 8 I really think it is unreasonable for the defendant to assert that there is no foundation at all in the particulars on the issues joined between them, to resist at first the production of the document, not least because the defendant as publisher made the reference to the contractual relationship expressly in the article sued upon. That is sufficient for me to order the defendant to produce the document. 9 The defendant contends, however, that there is some confidentiality attaching to it which, on its face I suppose at first blush one can understand. 10 The defendant is required within 14 days to provide a clean photocopy, unedited, to the solicitors for the plaintiff. It is a term and condition of production that inspection of the photocopy be limited to the plaintiff's legal advisers until further order. 11 The defendant is to pay the plaintiff's costs. 12 The defendant has raised one matter with which the plaintiff should deal and it really is the kind of matter that one would expect a plaintiff to have dealt with, with particularity, in his Reply. Without derogating from the effect of the order I have just made as to production or the order for costs, I would direct the plaintiff within 14 days to particularise the person or persons on behalf of the defendant, that is, its servants or agents, in respect of whom the particulars of malice has set out in the Reply as filed and in the Amended Reply. 13 In addition to the identification of the servant and agents of the defendant, the plaintiff is to provide particulars of the facts, matters and circumstances relied upon vis-a-vis such servants and agents of the defendant in support of the particulars of malice. ********** Last Modified: 09/11/2002 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.