Dank v Nationwide News Pty Ltd

[2016] NSWSC 295

Supreme Court

New South Wales

Medium Neutral Citation:

Dank v Nationwide News Pty Ltd [2016] NSWSC 295

Hearing dates:

15, 16, 17, 18, 19, 22, 23, 24, 25, 29 February 2016; 1, 2, 3, 4, 7, 8, 9, 11, 14, 15 March 2016.

Date of orders:

18 March 2016

Decision date:

18 March 2016

Jurisdiction:

Common Law

Before:

McCallum J

Decision:

Judgment for the plaintiff; no damages awarded

Catchwords:

DEFAMATION – damages – where matter complained of partially justified – reliance by defendants upon justified imputation in mitigation of damages for defamatory imputations – whether any damages should be awarded

Legislation Cited:

Defamation Act 2005 (NSW), ss 22(3), 25, 26

Cases Cited:

Besser v Kermode [2011] NSWCA 174
Burstein v Times Newspapers Ltd [2001] 1 WLR 579 Channel Seven Sydney Pty Ltd v Mahommed [2010] NSWCA 335
Dank v Whittaker (No 4) [2014] NSWSC 732
Pamplin v Express Newspapers Ltd [1988] WLR 117

Category:

Principal judgment

Parties:

2013/157118
Stephen Dank (plaintiff)
Nationwide News Pty Ltd (first defendant)
Josh Massoud (second defendant)
James Hooper (third defendant)
Rebecca Wilson (fourth defendant)
Paul Whittaker (fifth defendant)

 

2013/170493
Stephen Dank (plaintiff)
Nationwide News Pty Ltd (first defendant)
Stephen Carroll (second defendant)
Phil Rothfield (fourth defendant)

  2013/184595
Stephen Dank (plaintiff)
Nationwide News Pty Ltd (first defendant)
Paul Whittaker (second defendant)
Yoni Bashan (third defendant)

Representation:

Counsel:
C Evatt, R Rasmussen, I Kirgiz (plaintiff)
T Blackburn SC, L Barnett (defendants)

  Solicitors:
Cambridge Law (plaintiff)
Ashurst Australia (defendants)

File Number(s):

2013/1571182013/1704932013/184595

Publication restriction:

None

Judgment

1. HER HONOUR: Stephen Dank was retained as a “sports scientist” at Cronulla-Sutherland Sharks Football Club in the early weeks of the 2011 rugby league season. He provided a range of substances for administration to the players to improve their recovery from training sessions and games. The substances provided by Mr Dank included two peptides, CJC-1295 and GHRP-6, which were administered by subcutaneous injection, orally and by the application of creams. He also provided substances for oral ingestion including Lactaway, Humanofort, Creatine and a horse feed supplement called “BB Formula”. The supplements were administered to Cronulla players between February and May 2011. Mr Dank had no involvement with the Club after that time.

2. In early 2013 a series of revelations and investigations concerning the supplements provided by Mr Dank to Cronulla players and also to players in the Essendon team in the Australian Football League generated what might fairly be termed a media frenzy. Such is the passion of this country for its various codes of football. Mr Dank has commenced many defamation actions in respect of articles published during that time. This judgment concerns three claims arising out of articles published in The Daily Telegraph and The Sunday Telegraph. The three claims relate to three publications in the printed editions of those newspapers and their internet equivalents (Mr Dank commenced six separate proceedings but they were consolidated into three by me, for the reasons stated in Dank v Whittaker (No 4) [2014] NSWSC 732).

3. The three claims raise common issues and were heard together. The trial of the claims commenced with a jury on 15 February 2016. The jury’s verdicts were given in two stages, on 14 and 15 March 2016 respectively. The second and third matters complained of related to allegations concerning the provision of Mr Dank’s supplements to a player named Jon Mannah, who had previously been diagnosed with Hodgkin’s lymphoma. The effect of the jury’s verdicts is that Mr Dank has been unsuccessful in those claims.

4. The first matter complained of related to allegations that Mr Dank had injected players with Warfarin. As to that claim, the result was mixed. The newspaper pleaded truth to some of the imputations under s 25 of the Defamation Act 2005 (NSW). It also relied upon the defence of contextual truth under s 26 of the Act. The defence of truth was partly successful; the defence of contextual truth failed. Accordingly, Mr Dank is entitled to judgment in his favour in those proceedings; it remains to determine the amount of damages (if any) that should be awarded. That is a task for the judicial officer and not the jury: s 22(3) of the Defamation Act.

Jury’s verdicts on the articles relating to Jon Mannah

5. Before proceeding to assess damages, it is necessary to explain the jury’s verdicts on the other claims. The second matter complained of was a collection of related articles discussing the content and implications of a “secret” independent report to the board of the Cronulla club concerning Mr Dank’s supplements programme for the Club. Parts of the report were evidently leaked to the press and did not remain secret. According to the articles, the report noted a matter of “special concern” being the case of Mr Mannah. Mr Mannah was diagnosed with Hodgkin’s lymphoma in 2009. As at early 2011, the disease was thought to be in remission and Mr Mannah had returned to first grade football. He was among the group of elite players who were to receive Mr Dank’s supplements at that time. His disease later progressed to non-Hodgkin’s lymphoma and he died in early 2013. He was then aged 23 years.

6. The articles quoted the following extract from the report:

Based on the chronology it appears Mannah was administered with substances including CJC-1295 and GHRP-6 during the period from March to May in 2011. A brief review of available published medical literature suggests an identified causal link between the use of substances such as CJC-1295 and GHRP-6 and the acceleration of the condition of the disease Hodgkin’s lymphoma.

7. In accordance with the usual procedure in this State, the jury were directed to give their verdicts by answering a series of questions specified for their determination. In respect of the second matter complained of, they found that the articles conveyed the following meanings defamatory of Mr Dank:

1. the plaintiff administered to football players peptide drugs (CJC-1295 and GHRP-6) which were prohibited by the World Anti-Doping Authority;

2. the plaintiff acted with reckless indifference to Mannah’s life by administering dangerous peptides to Mannah whilst Mannah was in the remissions stage of cancer;

3. by administering peptides to Jon Mannah the plaintiff accelerated Mannah’s death from cancer;

4. the plaintiff administered dangerous and cancer causing supplements to Jon Mannah and other football players thereby exposing them to risk;

5. the plaintiff’s conduct in administering peptide substances to football players was absolutely indefensible and justified one of Australia’s leading sports physicians to express his horror;

6. the plaintiff acted with reckless indifference to Jon Mannah’s life because he administered untested peptides to Mannah whilst Mannah was in remission from cancer.

8. However, the jury found that each of those imputations was substantially true. The principal issues raised by the truth defence were whether the peptides in Mr Dank’s programme were given to Mr Mannah (Mr Dank said that Mr Mannah had opted out of the programme) and whether, if given, the peptides were likely to have accelerated the course of Mr Mannah’s disease. The newspaper called expert witnesses (an endocrinologist and an oncologist) who gave evidence about the peptides and their likely adverse impact on Mr Mannah’s disease. The effect of the jury’s verdict (that each imputation was substantially true) is that a complete defence was established to the second matter complained of. Judgment was accordingly entered for the defendants in those proceedings and Mr Dank was ordered to pay their costs (those orders were entered on 15 March 2016).

9. The third matter complained of was an article under the by-line of Yoni Bashan headed “Police look at Mannah death”. The article reported that the Australian Sports Anti-Doping Authority (ASADA) had handed information held by it relating to Mr Mannah to the New South Wales State Crime Command for police to assess whether any criminal acts were involved in his death. The article did not name Mr Dank but he argued that readers would have identified him from the earlier articles as the person suggested to have administered the supplements to Mr Mannah.

10. Mr Dank contended that the article conveyed the following imputations defamatory of him:

1. that the plaintiff administered peptides to Jon Mannah thereby accelerating his death from cancer;

2. that the plaintiff, by giving peptides to Jon Mannah, placed him at considerable risk which could be potentially harmful to the propagation of his cancer;

3. that the plaintiff administered banned substances to Jon Mannah without his consent.

11. The article was carefully written; the newspaper argued that it merely reported the fact that the information in question had been handed to police and did not pre-judge the issue of Mr Dank’s involvement in Mr Mannah’s death. Evidently accepting those submissions, the jury found that none of the imputations was conveyed. Judgment was accordingly entered in favour of the defendants in those proceedings and Mr Dank was ordered to pay their costs (those orders have also already been entered).

Remaining issues in respect of the Warfarin article

12. This judgment concerns the first matter complained, which was published first in time, before either of those articles. The article was published in The Sunday Telegraph on 10 March 2013 under the by-line of Phil Rothfield. The article was headed “Axed doctor’s daughter in stinging online defence”. It was published in the aftermath of a decision by the board of the Cronulla Club to sack a number of people following revelations about Mr Dank’s supplements programme. One of the people sacked by the Club was its long-standing and well-respected doctor, Dr David Givney.

13. Although it is not relevant to any issue I have to determine I should record, so as to obviate the risk of any incidental damage to Dr Givney’s reputation, that the evidence before me revealed no basis whatsoever for visiting any recrimination in respect of Mr Dank’s supplements programme on Dr Givney or indeed any person other than Mr Dank.

14. Mr Rothfield’s article republished comments posted by Dr Givney’s daughter on her Facebook page in defence of her father after he was sacked. The comments attributed to Ms Givney were as follows:

“In 2011, the doc turned up to a pre-season game to discover training manager Trent Elkin had employed a ‘sports scientist’ named Stephen Danks (sic). The doc was not informed, nor consulted about this decision.

Shortly after, the doc discovered mysterious heavy bruising on some of his players. He discovered that Danks had been injecting them with warfarin, a blood thinning medication, in an attempt to increase oxygen flow.

Concerned about the welfare of his beloved players, the doc confronted Danks and Elkin about what they were doing. When they refused to tell him, Doctor Givney resigned … in protest.

The resulting uproar from the players and officials upon hearing that the doc had quit caused the Cronulla board to step in. They refused to accept the doc’s resignation and they fired Stephen Danks.

At no point did the doc witness any player being administered a WADA banned substance and to his knowledge, no player ever knowingly consumed a banned substance. There are no failed drug tests and there is no hard evidence that any Cronulla player ever took a banned substance.

This all happened over … 4 weeks in pre-season 2011.”

15. Ms Givney’s assertion (repeated in Mr Rothfield’s article) that Mr Dank had been injecting the players with the drug Warfarin was factually incorrect. To the extent that Warfarin features in the defamatory meaning of the article, the newspaper does not seek to invoke the defence of truth.

16. The way in which Mr Dank’s claim was framed in respect of that article recognised that readers of the newspaper might not be familiar with the risks associated with the use of Warfarin. To meet that possibility, Mr Dank contended that the article carried its defamatory meanings to persons with knowledge of certain facts extrinsic to the article (referred to as “extrinsic facts”) about that drug. The extrinsic facts specified by Mr Dank were that Warfarin causes extreme bruising to football players and that Warfarin could be life threatening if used by football players.

17. Mr Dank contended that the article conveyed the following imputations to people with knowledge of the extrinsic facts:

1. the plaintiff caused the Cronulla football players to be at risk of sustaining fatal injuries;

2. the plaintiff oversaw the administration of the medication Warfarin on Cronulla football players which caused heavy bruising and endangered their health;

3. the plaintiff oversaw the administration of a physically dangerous medication to Cronulla football players.

4. the plaintiff injected the Cronulla players with Warfarin thereby endangering their welfare.

18. Imputation (d) (that the plaintiff injected Cronulla players with Warfarin thereby endangering their welfare) was repeated as a meaning conveyed in the ordinary and natural meaning of the article. The jury found that that imputation was conveyed to the ordinary, reasonable reader (that is, without the aid of the extrinsic facts) and that it was defamatory of the plaintiff. There was no truth defence to that imputation.

19. The jury found that the extrinsic facts were true and that the article was published to one or more persons with knowledge of those facts. They found that all of the imputations were conveyed to readers with knowledge of those facts. However, as to imputation (a) (that the plaintiff caused Cronulla football players to be at risk of sustaining fatal injuries), they were not persuaded that the imputation was defamatory of Mr Dank.

20. There was a truth defence to imputation (c) (that the plaintiff oversaw the administration of a physically dangerous medication to Cronulla football players). The jury found that imputation to be substantially true. The defence of truth was not pleaded to the other imputation based on extrinsic facts, imputation (d) (that the plaintiff oversaw the administration of the medication Warfarin on Cronulla football players which caused heavy bruising and endangered their health).

21. It is important to explain that the truth defence to imputation (c) (that the plaintiff oversaw the administration of a physically dangerous medication to Cronulla football players) was not based on any allegation concerning Warfarin. As already noted, there is no suggestion that Mr Dank in fact gave Warfarin to any player. The truth defence was based on the other substances administered to Cronulla players by Mr Dank. The defence focussed primarily on the platelet-inhibiting effect of two of the substances in particular, BB Formula and Lactaway. A haematologist, Prof Salem, gave evidence about the likely role of BB Formula (both on its own and in combination with Lactaway) in the case of a player who displayed a level of bruising that doctors regarded to be unusual, even in the bone-crushing sport of rugby league. The newspaper also relied in that respect on the expert witnesses who gave evidence as to the case of Mr Mannah. In particular, the endocrinologist (Prof Bach) and the oncologist (Prof Tattersall) gave evidence about the peptides and their likely impact on the course of Mr Mannah’s disease.

22. The defence of justification under s 25 of the Defamation Act requires proof that “the defamatory imputations” carried by the matter complained of are substantially true. It has not, however, been understood that the defence may only be pleaded in a case where the defendant seeks to prove all of the plaintiff’s imputations to be substantially true. Rather, it is generally accepted that a defendant may plead the defence to only some of the plaintiff’s imputations, presumably on the premise that, if other imputations are defeated by other defences, there will be a complete defence to the action so as to entitle the defendant to judgment in its favour.

23. That analysis of the section is in harmony with the principle stated by the Court of Appeal in Besser v Kermode [2011] NSWCA 174 at [86](c) as to the position where a defendant fails to establish that all of the defamatory imputations carried by the matter of which the plaintiff complains are substantially true. In that instance, a defendant may rely on those imputations proved to be true in mitigation of the plaintiff’s damages (a circumstance referred to by the Court in Kermode as “partial justification”).

24. The effect of the jury’s verdicts in respect of the first matter complained of is that the defences of justification and contextual truth have each failed. In that circumstance, Mr Dank is entitled to judgment in his favour.

Assessment of damages for the Warfarin article

25. The determination of the amount of damages (if any) that should be awarded to Mr Dank is to be undertaken by reference to the two imputations on which he has succeeded, namely, the publication to all readers of the imputation that he injected Cronulla players with Warfarin thereby endangering their health, and the publication to readers with knowledge of the extrinsic facts of the imputation that he oversaw the administration of the medication Warfarin on Cronulla football players which caused heavy bruising and endangered their health (to which I will refer as the Warfarin imputations).

26. However, that determination must also be undertaken in accordance with the principles stated in Kermode which permit the defendants to rely, in mitigation of Mr Dank’s damages, on the imputation proved to be substantially true (that he oversaw the administration of a physically dangerous medication to Cronulla football players).

27. The defendants’ primary contention as to damages is that the jury’s finding that Mr Dank oversaw the administration of a physically dangerous medication to Cronulla football players completely overwhelms the defamatory impact of the two Warfarin imputations. Mr Blackburn, who appears with Ms Barnett for the defendants, submitted that, in the circumstances, Mr Dank is entitled to nominal damages only. An aspect of the submission is the fact that the newspaper relied, in support of the truth defence to that imputation, not only on the evidence concerning the platelet-inhibiting effect of BB Formula and Lactaway but also on the evidence in relation to Mr Mannah. I will return to that issue.

28. The defendants also sought to rely upon further evidence tendered at the damages hearing.

Rulings as to further evidence tendered at the damages hearing

29. Mr Evatt, who appears with Mr Rasmussen and Mr Kirgis for Mr Dank, objected to the further evidence. The parties consented to my reserving my rulings as to the admission of that evidence. In light of the conclusion I have reached as to the defendants’ primary contention, it is not strictly necessary to address the further evidence. However, in case there is an appeal in these proceedings, I should rule on that evidence. I have concluded that the further evidence should not be admitted.

30. The further evidence relates to post-publication events; specifically, findings made against Mr Dank in other forums since publication of the first matter complained of. The first is a letter dated 30 June 2014 from ASADA to Mr Dank giving notice of the decision of the Anti-Doping Rule Violation Panel to enter details of findings against Mr Dank onto the Register of Findings maintained by that Panel. All of the findings relate to the substances provided by Mr Dank to the Cronulla-Sutherland Sharks.

31. The letter was tendered by the defendants during the proceedings before the jury but rejected by me at that stage. It reveals that the Panel considered the peptides administered to Cronulla players by Mr Dank to have been banned substances in 2011. However, it was not tendered (and would not have been admissible) for that purpose. The letter was put as going to damages only. I was of the view that, although all issues of fact were being tried together, it would be unfairly prejudicial to Mr Dank if the jury were to learn the view of the Anti-Doping Rule Violation Panel on the very issue for the jury’s determination (whether particular substances were banned). I thought it would be difficult to address that prejudice by directing the jury as to the limited purpose of the tender. Since the letter was not relevant to any part of the jury’s task, I deferred the tender.

29. As I understood Mr Blackburn’s submissions, the document was said to be relevant to damages in two ways. First, Mr Blackburn relied on the English authorities concerning the admissibility of “background context” evidence in the assessment of damages. In particular, he cited the decisions of the English Court of Appeal in Pamplin v Express Newspapers Ltd [1988] WLR 117 and Burstein v Times Newspapers Ltd [2001] 1 WLR 579.

30. As submitted by Mr Evatt, those authorities are concerned with pre-publication conduct and, specifically, the entitlement of the defendant to rely on evidence that sets the defamatory publication in its relevant context so as to inform the assessment of damages. I do not think they provide authority for the admission of post-publication findings. In my view, the burden of those decisions is that the evidence was admissible because the conduct of the plaintiff in question was public and relevant to an assessment of his reputation for that reason (a person’s reputation being rationally informed by his public acts).

31. Separately, Mr Blackburn relied upon the decision of the New South Wales Court of Appeal in Channel Seven Sydney Pty Ltd v Mahommed [2010] NSWCA 335. Mr Evatt accepted that, on the authority of that decision, the Court can in an appropriate case have regard in assessing damages to an adverse judgment or finding made against the plaintiff after publication of the matter complained of. Again, however, the burden of the decision is the relevance to reputation of a public finding. At most, the letter to Mr Dank from ASADA establishes his reputation within ASADA (and the authorities to which ASADA is required to give written notice of the Panel’s findings).

32. In my view, the relevance of the letter is so tenuous as to require the rejection of the tender. My task is to assess the impact on Mr Dank’s reputation of the publication of an article in a major newspaper in March 2013 and, in particular, the damage to his reputation caused by the two Warfarin imputations as judged in the context of the truth of the imputation that he oversaw the administration of a physically dangerous medication to Cronulla players. Mr Dank’s reputation within ASADA as recorded in a private letter over a year later scarcely informs that question.

33. The second document tendered by Mr Blackburn was the arbitral award of the Court of Arbitration for Sport in an appeal brought by the World Anti-Doping Agency against the Essendon football players, the Australian Football League and ASADA. Those proceedings arose from the supplements programme provided by Mr Dank to Essendon (after the conclusion of his involvement with Cronulla). However, Mr Dank was not a party to the appeal.

34. Mr Evatt contended that Mr Dank’s involvement with Essendon was not particularised in the matters of mitigation specified in the defendants’ pleadings. He submitted that the tender confused mitigation with bad reputation, which must be expressly particularised. The closest relevant particular was that the defendants would rely upon matters of “background context” in respect of other matters pleaded. Mr Blackburn accepted that was “a general plea” but said that no better particulars were ever sought. With great respect to Mr Blackburn, I think it stretches the particulars beyond their natural girth to permit such an approach. Further, in my view, the Essendon material is not relevant “background context” within the principles explained in Pamplin and Burstein. In any event, the failure to particularise those matters is reason enough to reject the tender. While it is accepted that mitigation of damages is an important issue to defendants, the Court should be astute to prevent the damages hearing from becoming a broad-ranging trial within a trial of the plaintiff’s reputation at large.

35. Further, as submitted by Mr Evatt, the decision in Mahommed concerned a direct finding against the plaintiff which was made within months after the defamatory publication and which concerned the same issues. Mr Dank was not a party to the appeal to the Court of Arbitration for Sport. The award concerned events which were not canvassed in these proceedings and was published almost three years after the publication of the matter complained of (on 11 January 2016). The fairness of admitting the evidence may accordingly be doubted but in any event the failure to particularise those matters is determinative, in my view.

36. Finally, Mr Blackburn tendered a press release issued by ASADA relating to a decision of the AFL Anti-Doping Tribunal to impose a life-time ban on Mr Dank. The press release does not specify the basis for the ban or the activities from which he is banned but presumably relates to the Essendon matters. It should be excluded for the reasons given in respect of the arbitral award.

Findings of fact contended for by the defendants

40. The defendants submitted that the Court should make a series of findings of fact relevant to mitigation of damages. The findings contended for, which numbered 14, were set out in a document marked MFI 24. Mr Evatt resisted that approach, submitting that, in a case where the jury has given its verdicts by answering specific questions, the Court should proceed to assess damages by reference those answers without descending to consider detailed additional issues such as those raised in the defendants’ document.

41. There is some force in each party’s position as to the proper approach in determining the facts.

42. Mr Evatt’s submission was founded on the contention that the jury is the tribunal of fact and that the role of the judicial officer in a trial with a jury is confined to being the judge of the law. That is not strictly correct. Section 22(3) of the Defamation Act specifically reserves to the judicial officer the task of determining “all unresolved issues of fact and law” relating to the determination of the amount of damages that should be awarded to the plaintiff. However, some work must be given to the word “unresolved” in that section. To the extent that factual issues are comprehended within the issues left to the jury, they are not unresolved and additional time and cost should not be spent on them. In that respect, I would endorse Mr Evatt’s opposition to the course of handing up, at a damages hearing, a lengthy list of further findings of fact contended for. It will ordinarily be enough for the Court to proceed to assess damages by reference to the jury’s verdicts considered in the context of the principle stated in Kermode, which permits the defendant to rely upon partial justification in mitigation of damages.

43. The force of Mr Blackburn’s position lies in the fact that many of the findings of fact contended for are plainly comprehended within the jury’s answers to the questions posed for their determination. The guiding principle for the judicial officer in a trial with a jury is that any further findings required to be made by the judicial officer must be consistent with the jury’s verdicts.

44. In the circumstances, I do not think it is necessary to descend to the particularity of MFI 24 in order to proceed to determine the amount of damages that should be awarded to Mr Dank. The jury’s verdicts provide the factual basis for that task.

Review of the evidence on which the verdicts were based

45. The defamatory impact of the first matter complained of arises from the fact that it reported, wrongly, that Mr Dank had injected players with Warfarin. The evidence established that Warfarin can be a dangerous drug and that its administration to young men competing in contact sport would be most unwise. There is no suggestion that Mr Dank ever injected any player with Warfarin. It was wrong, and defamatory, to say that he had. That is an important recognition which is rightly reflected in Mr Dank’s entitlement to judgment in his favour.

46. However, in order to assess the impact on Mr Dank’s reputation of the publication of the two Warfarin imputations, it is important to evaluate the nature of the error.

47. One of the Cronulla players was Mr Isaac Gordon. Mr Gordon was a fullback and, as a smaller player, was being encouraged to put on weight. He gave evidence that the strength and fitness coach, Mr Elkin, had told him to take 20 mls of BB Formula (supplied by Mr Dank) morning and night.

48. In round 10 of the fixture on 15 May 2011, Mr Gordon suffered severe bruising after a collision with a Sydney Roosters player.

49. On 20 May 2011, the Club physiotherapist, Mr Konrad Schultz, had a text exchange with Dr Givney in which he observed that the bruising suffered by Mr Gordon was similar to that suffered by another Cronulla player in a game against the Newcastle Knights a few weeks earlier, on 17 April 2011. Mr Schultz said (exhibit 23):

T also got a cork in his bicep and he’s blue and black? Just wondering why they are bleeding a lot?

50. Prophetically, Dr Givney replied with an inquiry as to whether it may be something in the supplements.

51. On 22 May 2011, Mr Schultz sent an email to Mr Dank asking him to send through “the info on the players (what each player had and dates they had it for this year)”. Mr Schultz followed up the request by text message on 23 May 2011 (exhibit 24).

52. That was the day of the next round in the fixture, against the Parramatta Eels. By then, Mr Gordon’s bruising from the previous week had fully emerged and indeed subsided to some extent. The football manager, Darren Mooney, noticed Mr Gordon’s appearance in the change room and said to him, “Mate, you need to go and see the doctor about your leg.” Dr Givney attended and took photographs of the bruising in the change room that day. Those photographs were in evidence in the trial.

53. Mr Gordon consulted Dr Givney in his rooms the next day (24 May 2011). Dr Givney’s notes of the consultation (exhibit 11) are:

Covered in bruises after footy game.

Severe – on legs, hands, L ear

?? looks like a patient on Warfarin!

54. Although it is not directly proved on the evidence, it seems likely that Dr Givney’s observation that Mr Gordon looked “like a patient on Warfarin” was the source of Ms Givney’s misapprehension that Mr Dank had injected the players with Warfarin. Whether or not that is so, the important point is that it was not a wild error which came out of the blue. It reflected the substance of a medical concern about Mr Gordon based on the doctor’s observations.

55. Following those observations, Dr Givney ordered a series of tests on Mr Gordon to eliminate the existence of any blood disorder. At some point, Mr Gordon raised the supplements that he had been given in accordance with Mr Dank’s programme.

56. On 31 May 2011, Mr Dank responded to Mr Schultz’ request by providing information about certain substances given to Mr Gordon on 14 and 15 May 2011. The email referred to various amino acids, Lactaway and Humanofort but did not mention “peptides” or BB Formula.

57. A photograph of the BB Formula taken by Mr Schultz and sent to Dr Givney reveals that it was recommended “for animal treatment only”. It was described as “a unique rice bran extract emulsion. A feed supplement for horses in training” (exhibit 9).

58. Presumably after receiving the photograph of the BB Formula, Mr Schultz sought further information from Mr Dank. On 31 May 2011, Mr Dank provided information by email on Gamma Oryzanol, one of the ingredients of BB Formula. The email said (exhibit 7):

As you can see, it is a very benign naturopathic extract. It is an extract of rice bran oil which has not been shown to be mutagenic, clostagenic or carcinogenic. No adverse reactions have ever been identified. It is a very popular sports supplement in Japan among the sumo wrestlers. I have been using it since 2005. It was cleared then by ASADA and has never been placed on a prohibited list. As with everything I regularly review all cardiac, respiratory and haematological updates for any product. I have done this regularly on a month by month basis for twenty years. There has never any reported event in the literature in relation to prothrombin time, prothrombin ratio or international normalized ratio. In fact no effect has been suggested with any aspect of the extrinsic pathway of coagulation. No effect on the activated partial thromboplastin time – a measure of the intrinsic pathway of coagulation has ever been suggested or identified. And of course Isaac had not started the extract prior to the event. The dose is 10 ml per day. I hope this gives you some background.

59. As harmless “rice bran extract” might sound, and as much as Mr Dank appeared (from those remarks) to have investigated its effect, the decision to give football players a supplement intended for horses in training was alarming, to say the least. Mr Dank says he is qualified as a biochemist (Queensland University of Technology, 1986-1988) and describes himself as a “medical scientist”. BB Formula is not approved for therapeutic use in Australia. Mr Dank should appreciate as well as any person with scientific or medical training the risk of administering untested substances for therapeutic or performance-enhancing purposes.

60. In support of their truth defence, the defendants called evidence from an expert haematologist, Prof Salem, about Gamma Oryzanol. Prof Salem’s expertise is beyond question. Mr Evatt sought to attribute to him a measure of exaggeration. In my assessment of his evidence, the force of his views reflected his grave concern at Mr Dank’s conduct in administering the combination of substances he gave to the Cronulla football players. The suggestion that Prof Salem was “a little bit too anxious to promote the defendants’ case”, as Mr Evatt submitted to the jury, must be roundly dismissed.

61. Prof Salem was asked to assume the correctness of Mr Gordon’s medical records, which included the photographs taken by Dr Givney in the change room on 23 May 2011. Prof Salem was of the opinion that Mr Gordon’s bruising was extensive and “pathological”. By pathological he meant that the bruising was abnormal and suggestive of “a derangement in the person’s ability to clot”. He said it was not consistent with bruising caused by trauma only (by which I took him to mean the trauma of colliding with another football player on the football field).

62. Prof Salem described how the body responds to damage to a blood vessel in the ordinary course (at T935):

A. So once a leak occurs and the person starts to bleed and the blood is coming out of the blood vessel, the smallest of the blood cell which is called the platelet starts to stick to the top end of the wound and they stick to each other and they form a plug called, it’s a platelet plug which plugs the hole. So if you cut yourself, you start to bleed and the bleeding rate will drop with number of drops coming down, ease off after a while and then the whole thing will seal. That’s because the platelet have plugged the hole in the blood vessel.

Not only are the platelets important in plugging the hole but they also serve as a very important surface for the blood coagulation to take place, which reinforces the whole clotting mechanism. I try to explain to people this like the bricks and mortar. You have bricks, you have to put the bricks which are the platelets to block the hole but if you don’t have the mortar in between, the wall will be a very weak one. You just push, it will fall. So the mortar is the clotting with the platelets from the blood which is the brick wall. So the two are essential components.

63. In the case of Mr Gordon, as the number of platelets was normal and the clotting system was not impaired, Prof Salem concluded that there was something malfunctioning with the platelets. He said:

We know this man’s clotting was normal from the clotting tests that Dr Givney did. So we have results consistent with a normal clotting. We’ve got normal mortar but we know that he had adequate number of bricks, number of platelets are adequate. So by exclusion, you have nothing else left other than to suggest that the reason why the bruising and bleeding took place is because of the fact that the platelets were not functioning normally or not able to stick to the cut ends of the wound properly.

64. Prof Salem said that some drugs can cause profound inhibition of platelet activation. Such drugs have a proper medical use but must be prescribed with care and under medical supervision. Prof Salem described anti-platelet medication as “very dangerous drugs”.

65. Prof Salem said that anti-platelet drugs are commonly tested on rodents such as mice and rats. The blood and platelets of rodents behave very similarly to human platelets. He said rodents have demonstrated prolonged bleeding when administered anti-platelet drugs on their own or in combination with other anti-platelet drugs.

66. Prof Salem was asked to make assumptions as to the substances administered to Mr Gordon. Relevantly, he assumed that Mr Gordon was consuming approximately 150 mls of Lactaway two or three times a week and that, at the time he developed the bruising, he had consumed 10 mls of BB Formula on 10 occasions. He assumed that BB Formula contains the ingredient Oryzanol at a concentration of 331 milligrams per 5 mls.

67. Each of those assumptions was established by the evidence. Indeed, as already noted, Mr Gordon said that he was taking 20 mls of BB Formula twice a day, as directed by Mr Elkin. Mr Dank did not suggest that was not in accordance with his supplements programme.

68. Prof Salem concluded that the most likely cause of the bleeding disorder he observed in Mr Gordon was the intake of substances that interfered with the functioning of the platelets. Based on studies dealing with the administration of Oryzanol to rats, Prof Salem said that Oryzanol inhibits the aggregation of platelet clamping. He said that he would expect Oryzanol similarly to inhibit human platelets. On that basis, he concluded that the administration of BB Formula in the concentrations taken by Mr Gordon would be akin to a person receiving a platelet-inhibiting drug. He said the use of a drug or a substance containing Oryzanol would be contraindicated in a person involved in contact sport.

69. According to the opinion of Prof Salem, the case of Mr Gordon was made worse by the fact that he was also taking Lactaway, which contains a bark extract called Pycnogenol. Pycnogenol also has an inhibiting effect on platelet activation. More importantly, the combined effect of Oryzanol and Pycnogenol synergises to cause “a more profound degree of inhibition of platelet”.

70. In cross-examination (at T963), Prof Salem said:

Well, I’m saying it’s not just simply Oryzanol, it’s the fact that he was taking a cocktail of anti-platelet agents that combined to synergise to cause inhibition of his platelets. It’s the combination of Pycnogenol, Oryzanol, the fact that he was taking lots of possibly fish oil, all these things together are a recipe that would make his platelet non function and hence the bruising that you’re seeing.

71. Prof Salem said that the danger of combining different anti-platelet drugs without strict medical supervision is that it invites a major bleeding. He said:

People are well known to die from this [a combination of anti-platelet drugs]. It can bleed in the brain, have a major stroke and die from it.

(T940.22)

72. In an attempt to establish exaggeration, Mr Evatt suggested to Prof Salem that he was saying the combination of BB Formula and Lactaway was “a dangerous cocktail, almost as bad as cyanide”. Unfortunately for Mr Dank, Prof Salem agreed.

73. That was the evidence on the strength of which the jury was satisfied that Mr Dank oversaw the administration of a physically dangerous medication to Cronulla football players. As already noted Mr Blackburn did also invite the jury to take into account, in considering the truth defence to that imputation, the evidence regarding the administration of peptides (the focus of the truth defence in respect of the second matter complained of). In my view, however, the jury’s conclusion on the imputation justified by the defendants in respect of the first matter complained of is likely to have been based primarily on the evidence I have summarised and is amply sustained by that evidence.

72. With his customary fondness for the decision, Mr Blackburn relied on the remarks of Neill LJ in Pamplin to support the submission that, in all the circumstances, Mr Dank is not entitled to any award of damages at all. Neill LJ said:

There may be many cases, however, where a defendant who puts forward a defence of justification will be unable to prove sufficient facts to establish the defence at common law and will also be unable to bring himself within the statutory extension of the defence contained in s 5 of the Defamation Act 1952. Nevertheless the defendant may be able to rely on such facts as he has proved to reduce the damages, perhaps almost to vanishing point. Thus a defence of partial justification, though it may not prevent the plaintiff from succeeding on the issue of liability, may be of great importance on the issue of damages.

75. The Court in that case awarded damages in the sum of a half-penny. The need to nominate a nominal sum in this jurisdiction may be doubted. The Defamation Act 2005 expressly contemplates the possibility that, even where no defence to a defamatory publication has been established, the judicial officer may determine that no amount of damages should be awarded. So much is explicit in the requirement to determine “the amount of damages (if any) that should be awarded to the plaintiff”.

76. The remarks of Rachel Givney posted on her Facebook page and republished by Mr Rothfield in the first matter complained of expressly attributed Mr Dank with having injected Warfarin, a blood-thinning agent, to Cronulla Sharks players. Although that was untrue, the evidence in this trial has persuaded me that the sting of the two Warfarin imputations has been proved to be substantially true. The substance in question was not Warfarin; it was a substance intended as a feed supplement for horses. It might have sounded harmless but it had not been appropriately tested for therapeutic use by humans. It should not have been used on football players.

77. For those reasons, even leaving aside the other matters relied upon by the defendants, I am of the view that the mitigating impact of the true imputation reduces the damages that should be awarded to Mr Dank to such an extent that there should be no award of damages in this case. I am fortified in that conclusion by the jury’s findings concerning Mr Mannah and their finding that the two peptides were banned; those findings put the matter beyond doubt, in my assessment. However, I have not found it necessary to rely on those findings to sustain my determination.

78. I make the following orders:

1. that there be judgment for the plaintiff;

2. that there be no award of damages;

3. that the plaintiff pay the defendants’ costs of the proceedings.

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