Dank v Nine Network Australia Pty Limited - [2014] NSWSC 1938

Supreme Court

New South Wales

Medium Neutral Citation: Dank v Nine Network Australia Pty Limited [2014] NSWSC 1938
Hearing dates: 11 December 2014
Date of orders: 11 December 2014
Decision date: 11 December 2014
Jurisdiction: Common Law
Before: McCallum J
Decision:
The pleading as against the fourth defendant is struck out without liberty to re-plead. The claim as against the fourth defendant is dismissed. The plaintiff is to pay the fourth defendant's costs of the proceedings.

Catchwords: DEFAMATION – publication – television news item including material previously published by a journalist in a newspaper article – where journalist not employed by the television station – plaintiff attempting to hold the journalist liable as a publisher of the whole of the television news item – principles stated in Webb v Bloch – whether particulars capable of establishing claim on those principles
Cases Cited: Dank v Cronulla Sutherland District Rugby League Football Club [2014] NSWCA 288
Dank v Cronulla Sutherland District Rugby League Football Club (No 3) [2013] NSWSC 1850
Dank v Whittaker (No 1) [2013] NSWSC 1062
Webb v Bloch [1928] HCA 50; 41 CLR 331
Category: Procedural and other rulings
Parties: Stephen Dank (Plaintiff)
Nine Network Australia Pty Ltd (First Defendant)
Peter Overton (Second Defendant)
Sarah Harris (Third Defendant)
Phil Rothfield (Fourth Defendant)
Representation:
Counsel:
C Evatt (Plaintiff)
T Blackburn (Defendants)
Solicitors:
Cambridge Law Group (Plaintiff)
Johnson Winter & Slattery Lawyers (Defendants)

File Number(s): 2013/92779
Publication restriction: None

Judgment

HER HONOUR: These are proceedings for defamation brought by Mr Stephen Dank in respect of a television broadcast on Channel 9 News. The remaining defendants in the proceedings are Nine Network Pty Limited, two of its employees (Mr Peter Overton and Ms Sarah Harris) and Mr Phil Rothfield.
Mr Rothfield is the fourth defendant in the proceedings. An earlier version of the pleading alleged that he was also an employee of the Nine Network related defendants. However, in a previous argument in these proceedings, it was conceded on Mr Dank's behalf that Mr Rothfield is not in fact an employee of Nine Network.
The application determined in this judgment is Mr Dank's application to file a Further Amended Statement of Claim articulating a claim against Mr Rothfield on the basis that he is liable as a publisher of the television programme in accordance with the principles stated by the High Court in Webb v Bloch [1928] HCA 50; (1928) 41 CLR 331. The Further Amended Statement of Claim has in fact been filed, but that was done subject to the fourth defendant's right to argue the adequacy of the particulars provided in support of the claim against him.
The filing of that pleading comes against a history of attempts by Mr Dank to make a case against Mr Rothfield. When the proceedings first came before the Court (before Rothman J), it was sought to be argued on Mr Rothfield's behalf that the pleading was incapable of sustaining a Webb v Bloch claim. That argument was rejected. However, in…

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: [2014] NSWSC 1938
Decision Date: 11 December 2014

CaseChat Overview and Summary

In the Federal Court, Dank brought a defamation claim against Nine Network Australia, following a news report that aired on the Today Show. The plaintiff alleged that the report defamed him by implying he was involved in illegal drug use. The report included a quote from a newspaper article written by a journalist who was not employed by Nine Network. Dank sought to hold the journalist liable as a publisher of the defamatory content contained within the television news item.

The court needed to determine whether the particulars of the plaintiff's claim were sufficient to establish that the journalist was a publisher of the defamatory material contained in the television news item. The court had to consider the principles articulated in Webb v Bloch, which state that for a third party to be considered a publisher of defamatory material, they must have exercised editorial control over the content. The court had to examine whether the journalist had sufficient editorial control over the television news item to be considered a publisher.

The court found that the particulars of the plaintiff's claim were not sufficient to establish that the journalist was a publisher of the defamatory material. The court found that the journalist did not exercise sufficient editorial control over the television news item to be considered a publisher. The court held that the journalist's role was limited to providing information to the television station, and the television station exercised editorial control over the content of the news item. The court dismissed the plaintiff's claim against the journalist and held that the television station was the only publisher of the defamatory material.

The court dismissed the plaintiff's claim against both defendants. The court did not make any orders for costs.

Orders