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

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.
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).
The three claims raise common issues…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] NSWSC 295
Decision Date: 18 March 2016

CaseChat Overview and Summary

The case before the Federal Court of Australia involved Dank suing Nationwide News for defamation. Dank alleged that Nationwide News published statements that were defamatory and caused him harm. The dispute centred on the publication of articles in newspapers that implied Dank was involved in illegal activities, specifically the use of performance-enhancing drugs. The defendants argued that some of the imputations were justified, and they relied on these justified imputations to mitigate the impact of the defamatory statements. The court had to determine whether any damages should be awarded to Dank given that the matter complained of was only partially justified.

The central legal issues revolved around the principles of defamation law in Australia, specifically the defence of justification and the assessment of damages. The court had to decide whether the imputations were substantially true and if the defendants had acted reasonably in publishing them. Additionally, the court had to weigh the impact of the justified imputations on the overall assessment of damages. The court considered whether the defendants' reliance on the justified imputations in mitigation of the defamatory imputations should affect the calculation of damages.

The court found that while some of the imputations were justified, the defendants did not act reasonably in publishing them, and therefore, they were defamatory. The court assessed the impact of the justified imputations on the overall harm caused to Dank and determined that despite the reliance on these imputations, damages should still be awarded. The court held that the defendants' actions were unreasonable and the defamatory imputations caused harm to Dank's reputation. Consequently, the court awarded Dank damages, reflecting the harm caused by the defamatory statements.

The final orders of the court were that Nationwide News Pty Ltd was liable for defamation and was ordered to pay damages to Dank. The court quantified the damages based on the harm to Dank's reputation and his loss of income due to the defamatory publications. The court also considered the impact of the justified imputations in its assessment of the overall harm and determined that despite the defendants' reliance on these imputations, the damages should not be significantly reduced.

Orders