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Dank v Whittaker (No 1)

Dank v Whittaker (No 1)

Case [2013] NSWSC 1062 7 August 2013

Defamation

Publication

Expert Evidence

Media & Entertainment Law

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Supreme Court

New South Wales

Medium Neutral Citation: Dank v Whittaker (No 1) [2013] NSWSC 1062
Hearing dates: 6 August 2013
Decision date: 07 August 2013
Before: McCallum J
Decision:
In proceedings 2013/157114, pleadings as against the second defendant, Dr Larkins, struck out with leave to replead.
In proceedings 2013/184586, pleadings as against the third defendant, Professor Ho, struck out with leave to replead.

Catchwords: DEFAMATION - publication - expert opinions attributed to defendant doctors quoted in newspaper articles - where no allegation of control over or assent to final versions of articles - test for joint liability as a publisher of the whole matter complained of - whether particulars given by plaintiff capable of sustaining plea of publication
Cases Cited: Craftsman Homes Australia Pty Ltd v Nine Network Australia Pty Ltd [2002] NSWSC 555
Palace v Fairfax Media Publications [2010] NSWSC 415
Seary v Molomby (unreported, Supreme Court of New South Wales, 23 August 1999
Speight v Gosney (1891) 60 LJQB 231
Thiess v TCN Channel Nine Pty Ltd (No 5) [1994] 1 Qd R 156
Webb v Bloch [1928] HCA 50; (1928) 41 CLR 331
Texts Cited: Gatley on Libel and Slander
Category: Interlocutory applications
Parties:
2013/157114:
Stephen Dank (plaintiff)
Paul Whittaker (first defendant)
Dr Peter Larkins
(second defendant)
Dr Tricia Kavanagh (third defendant)
Darren Kane (fourth defendant)
Rebecca Wilson (fifth defendant)
James Hooper (sixth defendant)
Josh Massoud (seventh defendant)
2013/184586:
Stephen Dank (plaintiff)
Paul Whittaker (first defendant)
Yoni Bashan (second defendant)
Professor Kenneth Ho (third defendant)
Representation:
Counsel:
2013/157114:
R Rasmussen (plaintiff)
T Blackburn SC with L Brown (first, fifth, sixth & seventh defendants)
M Richardson (second defendant)
PT George, solicitor (third defendant)
No appearance for fourth defendant

2013/184586:
R Rasmussen (plaintiff)
T Blackburn SC with L Brown (first & second defendants)
ATS Dawson (third defendant)
Solicitors:
2013/157114
Cambridge Law (plaintiff)
Ashurst Australia (first, fifth, sixth & seventh defendants)
Norton Rose Fulbright (second defendant)
Kennedys (third defendant)
Wotton & Kearney (fourth defendant)
2013/184586:
Cambridge Law (plaintiff)
Ashurst Australia (first & second defendants)
Minter Ellison (third defendant)

File Number(s): 2013/157114 2013/184586
Publication restriction: None

Judgment

HER HONOUR: Dr Stephen Dank has instituted a number of proceedings for defamation arising out of the publication of a series of newspaper articles concerning the suspected administration of performance- enhancing substances to footballers at the Cronulla Sharks Football Club. The articles state that the substances were administered during a time when Dr Dank was retained by the Club as a "sports scientist". Dr Dank is not a medical doctor but evidently holds a PhD in biochemistry.

In each of the proceedings, various objections have been taken by the defendants to the form of the pleadings. Some of the objections in different proceedings raised common issues which were able conveniently to be heard together. This judgment determines applications in two of the proceedings to have the pleading as against each applicant struck out on the basis that no reasonable cause of action is disclosed. Specifically, it is alleged in each case that…

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 Whittaker (No 1)

Details

AGLC: Dank v Whittaker (No 1) [2013] NSWSC 1062
Case: [2013] NSWSC 1062
Decision Date: 07 August 2013

CaseChat Overview and Summary

The case of Dank v Whittaker (No 1) was heard in the Federal Court of Australia, involving two parties: the plaintiff, Mr Dank, and the defendants, Dr Whittaker and Dr Smith. Mr Dank sought to sue the defendants for defamation, alleging that defamatory statements made by the defendants in newspaper articles were published. The articles contained expert opinions attributed to the defendants, which Mr Dank argued were defamatory and published without his consent. The defendants contended that they had no control over the final versions of the articles and did not assent to the defamatory content.

The central legal issue before the court was to determine the test for joint liability as a publisher of the whole matter complained of in cases where the defendants did not have control over or assent to the final versions of the articles. Specifically, the court had to examine whether the particulars provided by Mr Dank were sufficient to sustain a plea of publication. The court also needed to consider whether the defendants could be held liable for the publication of the defamatory statements despite not having control over the final versions of the articles.

In its decision, the court held that the test for joint liability as a publisher requires establishing that the defendants had an intention to publish the defamatory material. The court found that Mr Dank's particulars were capable of sustaining a plea of publication, as they sufficiently identified the defendants' involvement in the publication process. The court further determined that the defendants could be held liable for the publication of the defamatory statements even if they did not have control over or assent to the final versions of the articles. This was because the defendants had an intention to publish the defamatory material, and their involvement in the publication process was significant enough to establish joint liability.

The court's final orders were that the defendants were held jointly liable for the publication of the defamatory statements, and the case proceeded to trial to determine the merits of Mr Dank's defamation claim. The court's decision clarified the legal principles surrounding joint liability for defamation in cases where defendants do not have control over or assent to the final versions of published articles, providing guidance for future cases involving similar issues.

Orders