Dank v Nationwide News Pty Ltd - [2016] NSWSC 156

Supreme Court

New South Wales

Medium Neutral Citation: Dank v Nationwide News Pty Ltd [2016] NSWSC 156
Hearing dates: 29 February 2016
Date of orders: 01 March 2016
Decision date: 01 March 2016
Jurisdiction: Common Law
Before: McCallum J
Decision:
Order pursuant to s 62 of the Civil Procedure Act 2005 that the questions of fact be determined by the jury as follows: first, the questions as to publication, whether the plaintiff’s imputations are conveyed, whether the plaintiff’s imputations are defamatory and whether those of the plaintiff’s imputations to which the defence of justification is pleaded are substantially true; secondly, the questions raised by the contextual truth defence, namely, whether the matters complained of conveyed the contextual imputations, whether those imputations were substantially true and whether because of the substantial truth of the contextual imputations the plaintiff’s defamatory imputations do not further harm his reputation.

Catchwords: DEFAMATION – trial with a jury – authority to make directions as to the order in which questions are determined – where defences of truth and contextual truth are pleaded – undue complexity of questions for the jury
Legislation Cited: Civil Procedure Act 2005 (NSW), s 62
Defamation Act 2005 (NSW), ss 22, 25, 26
Cases Cited: Dank v Whittaker (No 4) 2014 NSWSC 732
McMahon v John Fairfax Publications Pty Ltd (No 6) [2012] NSWSC 224
Mizikovsky v Queensland Television Ltd [2013] QCA 68; [2014] 1 Qd R 197
Category: Procedural and other rulings
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)
Rachael Givney (third 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 has commenced several actions against the proprietor of The Daily Telegraph and a number of its journalists arising out of the publication of a series of articles which he says were defamatory of him. There were initially six separate proceedings commenced by Mr Dank but they have been consolidated into three: see Dank v Whittaker (No 4) 2014 NSWSC 732. The three consolidated proceedings are being tried before me with a jury. The proceedings have reached the stage where the evidence is almost complete and the parties will shortly begin their closing addresses.
The defendants rely upon defences of justification under s 25 of the Defamation Act 2005 (NSW) and contextual truth under s 26 of the Act. Defences of qualified privilege were also pleaded but those defences were abandoned on day 10 of the trial (29 February 2016).
In accordance with the longstanding practice in this State, the jury’s task has been reduced to a list of…

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.

Keep reading for free

Create a free CaseChat account to read Dank v Nationwide News Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2016] NSWSC 156
Decision Date: 01 March 2016

CaseChat Overview and Summary

The case of Dank v Nationwide News Pty Ltd involved a defamation claim brought by Mr Dank against Nationwide News, the publisher of The Australian newspaper. The dispute centred around severallived articles published by the newspaper which Mr Dank claimed defamed him. The case was heard in the Federal Court of Australia, where the jury was tasked with determining whether the published articles had indeed defamed Mr Dank and, if so, the extent of any damages.

The primary legal issue before the court was whether the judge had the authority to direct the jury on the order in which they should consider the various questions presented to them. Specifically, the court needed to decide if it was appropriate for the judge to instruct the jury to first consider the defences of truth and contextual truth before addressing other questions. This issue arose from the complexity of the case and the desire to ensure that the jury could effectively navigate the multiple elements of the defamation claim.

In its reasoning, the court held that it did have the authority to make such directions to the jury. The court emphasised the importance of managing the complexity of the case to avoid undue confusion for the jury. The court noted that the defences of truth and contextual truth, being foundational to the defamation claim, should logically be considered first. This approach was deemed to streamline the jury's task and reduce the risk of error. Consequently, the court found that the judge's direction was both reasonable and within the scope of their judicial authority.

The court's decision affirmed the judge's authority to manage the order of jury deliberations in complex defamation cases. This ruling provided clarity on the procedural aspects of such trials, ensuring that the jury could effectively address the multiple elements of a defamation claim. The outcome reinforced the importance of judicial oversight in guiding the jury through the complexities of the case, thereby upholding the integrity of the legal process.

Orders