Dank v Rothfield - [2015] NSWCA 193

Court of Appeal
Supreme Court

New South Wales

Case Name:	Dank v Rothfield
Medium Neutral Citation:	[2015] NSWCA 193
Hearing Date(s):	30 June 2015
Decision Date:	30 June 2015
Before:	McColl JA, Simpson JA, Sackville AJA
Decision:	1. Dismiss the application for leave to appeal. 2. The applicant pay the respondent’s costs of the application.
Catchwords:	PRACTICE AND PROCEDURE – pleading of publication in a defamation case struck out for the second time and proceedings dismissed – application for leave to appeal – whether application involves any point of principle – no significant injustice as proceedings will continue against other defendants.
Legislation Cited:	Defamation Act 2005 (NSW), s 31 Supreme Court Act 1970 (NSW), s 101(2)
Cases Cited:	Dank v Cronulla Sutherland District Rugby League Football Club Ltd [2014] NSWCA 288 Dank v Cronulla-Sutherland District Rugby League Football Club Ltd (No 3) [2013] NSWSC 1850 Dank v Nine Network Australia Pty Ltd [2014] NSWSC 1938 Dank v Whittaker (No 1) [2013] NSWSC 1062 Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231 Thiess v TCN Channel Nine Pty Ltd (No 5) [1994] 1 Qd R 156 Webb v Bloch [1928] HCA 50; 41 CLR 331
Category:	Principal judgment
Parties:	Stephen Dank (Applicant) Phil Rothfield (Respondent)
Representation:	Counsel: R Rasmussen (Applicant) TD Blackburn SC/Ms L Barnett (Respondent) Solicitors: Cambridge Law (Applicant) Ashurst Australia (Respondent)
File Number(s):	2014/369941
Decision under appeal:
Court or Tribunal:	Supreme Court of New South Wales
Jurisdiction:	Common Law
Citation:	[2014] NSWSC 1938
Date of Decision:	11 December 2014
Before:	McCallum J
File Number(s):	2013/92779

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

JUDGMENT

THE COURT: On 30 June 2015, the Court dismissed an application by the applicant (Dr Dank) for leave to appeal against a decision of a Judge of the Common Law Division (McCallum J) (Primary Judgment). The Court indicated that it would provide reasons later. These are the reasons.
Dr Dank is the plaintiff in defamation proceedings commenced on 26 March 2013. The primary Judge struck out the paragraphs in the Further Amended Statement of Claim (FASC) pleading a case against the respondent, the fourth defendant in the defamation proceedings (Mr Rothfield). Her Honour directed that Dr Dank should not have liberty to replead his claim against Mr Rothfield. Accordingly, she dismissed the claim.[1]
[1] Dank v Nine Network Australia Pty Ltd [2014] NSWSC 1938.
Dr Dank requires leave to appeal as the Primary Judgment was interlocutory, notwithstanding that the proceedings against Mr Rothfield were dismissed.[2]
[2] Supreme Court Act 1970 (NSW), s 101(2)(e) and (l). Dank v Cronulla Sutherland District Rugby League Football…

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.

Continue reading Dank v Rothfield

Details

AGLC: Dank v Rothfield [2015] NSWCA 193
Case: [2015] NSWCA 193
Decision Date: 30 June 2015

CaseChat Overview and Summary

Dr Dank sought leave to appeal from a decision of the primary judge that struck out his defamation claim against Mr Rothfield for the second time. The Court of Appeal of New South Wales considered whether the application for leave to appeal involved any point of principle, noting that the proceedings would continue against other defendants.

The central legal issue was whether the primary judge had erred in striking out the claim against Mr Rothfield, specifically concerning the pleading of Mr Rothfield as an original publisher of the television program. Dr Dank argued that the primary judge had erroneously applied a "control test" to determine publisher liability, and that Mr Rothfield's contribution to and cooperation with the program should have been sufficient to establish his liability.

The Court of Appeal dismissed Dr Dank's application for leave to appeal. The court reasoned that the primary judge had not applied a novel "control test" but rather the established principle that a defendant must knowingly "conduce" and be responsible for the publication complained of, which may include assent to its final form. The court found that the allegations regarding Mr Rothfield's contribution and cooperation were neither pleaded nor particularised in a way that would establish liability as a publisher, and that the primary judge's ruling did not preclude Dr Dank from re-pleading the claim with sufficient particulars of conducing or assenting to the publication.

The application for leave to appeal was dismissed, and Dr Dank was ordered to pay Mr Rothfield's costs of the application.

Orders

Orders of the court

1. Dismiss the application for leave to appeal.

2. The applicant pay the respondent’s costs of the application.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Dr Dank sought leave to appeal from the Strike Out Decision on the ground, inter alia, that the primary Judge erred in striking out the claim pleaded in the ASC against Mr Rothfield. The Court of Appeal refused to grant leave (CA Judgment).[9][9] Dank v Cronulla Sutherland District Rugby League Football Club Ltd [2014] NSWCA 288 at [144] (Ward JA, Emmett and Gleeson JJA agreeing). In the CA Judgment, Ward JA pointed out that the Strike Out Judgment held that the ASC did not properly plead a cause of action against Mr Rothfield as an original publisher of the television program because it was not alleged that he had control over the broadcast or had assented to its final form.[10] Ward JA then recounted in detail McCallum J’s reasoning in Dank v Whittaker (No 1), which her Honour had applied in the Strike Out Judgment.[10] CA Judgment at [129]. Counsel for Dr Dank had submitted on the application for leave to appeal from the Strike Out Judgment that McCallum J had erroneously applied a control test to determine whether the pleading properly alleged that Mr Rothfield was the original publisher of the defamatory matter. Ward JA rejected the submission:[11]“The difficulty with these proposed grounds of appeal is that they are predicated on her Honour having applied some new form of control test, whereas, properly understood, what her Honour was doing was applying the test in Webb v Bloch and Thiess[12]; namely that, for there to be liability as a publisher of defamatory material, the defendant must in some way knowingly ‘conduce’ and be responsible for the publication complained of. Her Honour was going no further than saying that mere contribution to an article by someone with no control over the publishing process will not ordinarily establish liability as a publisher ‘unless he or she has assented to its final form’. Her Honour’s comments in Dank v Whittaker (No 1), which were incorporated by reference into her Honour’s judgment, made reference not merely to control but also to assent to the publication.”[11] CA Judgment at [137].[12] Thiess v TCN Channel Nine Pty Ltd (No 5) [1994] 1 Qd R 156. Counsel for Dr Dank had also submitted that the fact that Mr Irvine alleged in the conversation with Mr Rothfield that Dr Dank had supplied horse drugs to football players, and the repetition of those allegations by Mr Rothfield in the television program, should have been sufficient to make Mr Rothfield liable as a publisher of the program. Counsel had contended that Mr Rothfield was pivotal to the entire television program since he had been willing to co-operate in the making of it. Ward JA pointed out, however, that insofar as these matters were said to constitute conducing or assenting to the broadcast, they were neither pleaded nor particularised in the ASC.[13][13] CA Judgment at [141]. Ward JA continued as follows:[14]“Mr Evatt [counsel for Dr Dank] says that the liberty to re-plead the claim against Mr Rothfield is of no use because that was confined to a re-pleading of the claim with particulars of ‘control’ of the kind referred to by her Honour. With respect, that appears to misapprehend the import of her Honour’s ruling in that regard. Her Honour does not, in my opinion, suggest that Mr Rothfield could only be liable as a joint publisher if he had control over the broadcast. Her Honour makes it clear that if he had no such control then ordinarily the mere contribution of material to the programme will not establish liability as a joint publisher and that what would be necessary would be something further (such as assent to its final form).”[14] CA Judgment at [142].

Ratio Decidendi

Legal Principle Established

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