Dank v Rothfield

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.