Dank v Whittaker (No 2)

[2013] NSWSC 1064

Supreme Court

New South Wales

Medium Neutral Citation:

Dank v Whittaker (No 2) [2013] NSWSC 1064

Hearing dates:

6 August 2013

Decision date:

09 August 2013

Before:

McCallum J

Decision:

Rulings as to form and capacity of imputations relied upon by plaintiff; some imputations liable to be struck out; parties directed to bring in short minutes of order in accordance with reasons

Catchwords:

DEFAMATION - imputations - whether capable of arising - whether bad in form

Cases Cited:

Dank v Whittaker (No 1) [2013] NSWSC 1062
Favell v Queensland Newspapers Pty Ltd [2005] HCA 52
Lewis v Daily Telegraph [1964] AC 234
Youssoupoff v Metro-Goldwyn-Mayer Pictures Ltd (1934) 50 TLR 581

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)

2013/157118
Stephen Dank (plaintiff)
Nationwide News Pty Ltd (defendant)

2013/184586
Stephen Dank (plaintiff)
Paul Whittaker (first defendant)
Yoni Bashan (second defendant)
Professor Kenneth Ho (third defendant)

2013/184595
Stephen Dank (plaintiff)
Nationwide News Pty Ltd (defendant)

Representation:

Counsel:
2013/157114:
R Rasmussen (plaintiff)
T Blackburn SC, L Brown (first defendant)
M Richardson (second defendant)

2013/157118
R Rasmussen (plaintiff)
T Blackburn SC, L Brown (defendant)

2013/184586:
R Rasmussen (plaintiff)
T Blackburn SC with L Brown (first & second defendants)
ATS Dawson (third defendant)

2013/184595
R Rasmussen (plaintiff)
T Blackburn SC, L Brown (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)

2013/157118
Cambridge Law (plaintiff)
Ashurst Australia (defendant)

2013/184586
Cambridge Law (plaintiff)
Ashurst Australia (first & second defendants)
Minter Ellison (third defendant)

2013/184595
Cambridge Law (plaintiff)
Ashurst Australia (defendant)

File Number(s):

2013/157114 2013/157118 2013/184586 2013/184595

Publication restriction:

None

Judgment

1. 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 use of performance-enhancing supplements by footballers at the Cronulla-Sutherland District Rugby League Football Club. The articles suggest that the substances were administered to the athletes by Dr Dank, who is described as a "sports scientist".

1. In almost all of the proceedings, the defendants have taken objections to the form of the pleadings. Where objections in different proceedings raised common issues, I determined that it was preferable that they be heard together. This judgment determines the defendants' objections to the imputations relied upon by the plaintiff in four separate proceedings which have in common the fact that the matter complained of in each case reported a potential link between the administration of peptides to footballers (suggested to have been done by Dr Dank) and the death of one footballer, Mr Jon Mannah. Specifically, the articles reported that Mr Mannah had previously been diagnosed with Hodgkin's lymphoma, a form of cancer, and had been given peptides during a period when he had returned to play football while the disease was in remission. The articles reported concerns that the use of peptides might have accelerated or propagated the growth of the cancer. Following his return to football, Mr Mannah's cancer returned. He died earlier this year.

Proceedings 114 and 118

1. Owing to the large number of separate proceedings commenced by Dr Dank, it is convenient to refer to each proceeding by the last three numerals of the relevant file number.

1. Proceedings 114 and 118 arise out of the publication of different versions of the same articles. Proceedings 114 relate to their publication in the print edition of The Daily Telegraph, whilst proceedings 118 arise from publication in the Internet edition of that newspaper. The imputations relied upon in each case are identical (except for the omission of the word "death" in imputation (e) in proceedings 118, which is presumably due to oversight). The two versions are sufficiently similar that no discrete argument was directed to the Internet version at the hearing before me. The only material distinction between the two claims is the choice of different defendants. An application has been brought by the defendants to have the two proceedings consolidated (as an alternative to having six sets of proceedings commenced by Dr Dank consolidated) but that application has not yet been heard. I was informed by the parties that the Full Court of the Supreme Court of the Australian Capital Territory has heard an application that raises the same issue and has reserved its decision on that issue.

1. More detail of the content of the articles is set out in my judgment in Dank v Whittaker (No 1) [2013] NSWSC 1062.

1. It should be observed at the outset that the articles are plainly capable of conveying a meaning defamatory of the plaintiff. So much was in effect conceded on behalf of the defendants.

1. Imputations (a) and (b) relied upon by the plaintiff are:

(a) the plaintiff is a murderer

(b) the plaintiff murdered Jon Mannah

1. The defendants object to those imputations on the basis that they are not reasonably capable of being conveyed. Mr Blackburn SC, who appeared with Ms Brown for the defendants, submitted that the ordinary reasonable reader would understand the term "murder" to mean a deliberate killing. It was submitted that it is made clear in each article that Mr Mannah died of cancer and that there is nothing in either matter complained of to suggest a deliberate killing or that the plaintiff's culpability (if any) in connection with the death would be such as to make him criminally responsible for murder.

1. Mr Rasmussen, who appears for the plaintiff, relied on the decision of the High Court in Favell v Queensland Newspapers Pty Ltd [2005] HCA 52. He submitted that, as in that case, the matter complained of gives an account of suspicious circumstances pointing to the likelihood of guilt. The circumstances of the two cases are not comparable, in my view. In Favell, the crime pointed to was clearly arson, the matter of suspicion being whether the plaintiff was an arsonist.

1. Mr Rasmussen accepted that the articles in the present case are not capable of conveying the meaning that the plaintiff administered peptides to Mr Mannah with the intention of killing him. That was an appropriate concession. In my view, the matter complained of is plainly incapable of conveying an imputation of deliberate killing or of an act causing death done with any intention to harm. Mr Rasmussen submitted, however, that the ordinary reasonable reader would understand the term "murder" to comprehend the alternative basis for criminal responsibility where a deliberate act causing death is committed with recklessness as the relevant state of mind.

1. That submission reveals ambiguity in the murder imputations in the context of the matters complained of in the present case. The problem is compounded by the terms of imputation (a), "that the plaintiff is a murderer". One would not ordinarily describe a person who had been found guilty of murder on the basis of recklessness as "a murderer". It is a term more apt to describe a person who has killed deliberately. I do not mean to suggest that an imputation of murder will always be ambiguous. It is a difficulty which arises in the present case owing to the limited meaning intended, as confirmed by Mr Rasmussen. In my view, imputations (a) and (b) must be struck out as being incapable of arising or else bad in form for ambiguity.

1. Imputation (c) is:

The plaintiff accelerated the death of Jon Mannah.

1. The defendants objected to that imputation on the basis that it is not reasonably capable of being conveyed and on the further basis that it is bad in form, since it fails to distil a clear defamatory act or condition allegedly attributed to the plaintiff by the article.

1. As to the question of capacity, in my view the articles are plainly capable of carrying some defamatory meaning arising from the causal link drawn in the articles between the administration of peptides to Jon Mannah (an act attributed to the plaintiff at least by inference) and the accelerated return of Mr Mannah's cancer, which ultimately caused his death. The difficulty is that the imputation in its present form fails to identify any defamatory sting.

1. Mr Rasmussen submitted that it is not necessary for an imputation to do so. He characterised imputation (c) as being in the nature of the defamation considered in the judgment of the English Court of Appeal in Youssoupoff v Metro-Goldwyn-Mayer Pictures Ltd (1934) 50 TLR 581. The decision in that case was concerned with a film entitled "Rasputin, The Mad Monk" which (as the jury evidently found) depicted Princess Irena Alexandrovna of Russia, a married woman, as having had "either relations of seduction or relations of rape" with Rasputin, a man of the worst possible character. It was argued on appeal that the film could not defame the Princess, since it does not impute unchastity to say of a woman that she was raped. The Court declined to interfere with the jury's verdict. The argument turned in part on a factual question as to whether what was depicted in the film was seduction or rape but for Mr Rasmussen's purposes it is enough to note that the Court was unanimous as to the proposition that it is defamatory of a woman (as being likely to cause her to be shunned and avoided) to say that she has been raped, even though rape involves no moral turpitude on the part of the woman.

1. Mr Rasmussen submitted that it is equally open to the plaintiff in the present case to bring a claim on the basis that he would be shunned and avoided for having administered substances that accelerated Jon Mannah's death, even if the articles attribute no moral turpitude to him on that account. Mr Rasmussen submitted that, in the case of a Youssoupoff type of imputation, there is no need for the imputation to attribute any act or condition to the plaintiff.

1. Mr Blackburn submitted that the Youssoupoff type of imputation does attribute a condition to the plaintiff, namely, that she is a victim of rape. The appeal in Youssoupoff (decided in 1934) was plainly determined on that basis. Slesser LJ was prepared to take judicial notice of the fact that "a lady of whom it has been said that she has been ravished, albeit against her will, has suffered in social reputation and in opportunities of receiving respectful consideration from the world". Scrutton LJ had "no language" to express his opinion of the contrary argument, and rejected it (at 584); and see Greer LJ at 585.

1. Mr Blackburn submitted, correctly in my view, that it is an essential feature of a defamatory imputation that it should identify the defamatory act or condition allegedly attributed to the plaintiff by the matter complained of by reason of which it is said that his or her reputation has been damaged. If authority is needed for that proposition, Mr Blackburn submitted that it may be found in the decision of Hunt J in Jackson v John Fairfax & Sons [1981] 1 NSWLR 36. As explained in the judgment of Scrutton LJ in Youssoupoff at 584, the notion of what is defamatory can be described in different ways and includes a statement which causes a person to be shunned and avoided, although due to no moral turpitude on his or her own part. But it remains necessary, in my view, to identify some condition allegedly attributed to the plaintiff by reason of which damage to reputation has occurred.

1. In my view, imputation (c) fails to identify any condition of the kind which was held to sustain the jury's verdict in Youssoupoff. Even if that is wrong, the imputation has the vice of also suggesting a more sinister meaning and is accordingly ambiguous. It is liable to be struck out for that additional reason.

1. Imputation (d) is:

The plaintiff wrongfully administered peptides to Jon Mannah thereby aggravating his cancerous condition.

1. Mr Rasmussen acknowledged that the imputation is bad in form by reason of the inclusion of the word "wrongfully", the precise import of which is unclear in the context of these publications.

1. Imputation (e) is:

The plaintiff is liable for the manslaughter of Jon Mannah because of his horrific conduct in administering dangerous substances to him which brought about his death.

1. Mr Rasmussen accepted, after hearing Mr Blackburn's argument, that there was some difficulty in the formulation of that imputation and sought leave to re-plead it.

1. Imputation (f) is:

The plaintiff administered dangerous and cancer-causing supplements to football players thereby exposing them to risk.

1. The difficulty with the imputation is the phrase "cancer-causing". Mr Blackburn submitted that the import of those words is that the substance administered to football players was a carcinogen. He submitted that there is nothing in the matter complained of which says that Mr Mannah's cancer was caused by the supplements. Rather, the sting of the article is that the substance administered to him accelerated or revived his cancer at a time when it was in remission. Mr Blackburn further submitted that nothing in the articles suggests that any other players were exposed to a risk of developing cancer by reason of the administration of the supplements.

1. Mr Rasmussen relied in particular on paragraphs 69 and 70 of the matter complained of, where the following quote is attributed to "a six year study by the Harvard Medical School released in 1999 reporting a link between IGF-1 and cancer":

The growth factor, known as insulin-like growth factor-1 or IGF-1, is necessary for proper growth in children, but studies of men and women more than 40 years old raise the possibility that it contributes to the growth of tumours.

1. Whilst Mr Blackburn's point about the distinction between causing cancer and contributing to its growth is well made, I do not think that it can be concluded that the imputation is incapable of being carried by the matters complained of. Whilst a scientist or lawyer might easily make that distinction without the need to have it drawn to his or her attention, the ordinary reasonable reader may not analyse the content of the matter complained of with such intellectual discipline. Apart from anything else, in my view it would be open to the ordinary reasonable reader to think that Mr Mannah's Hodgkin's lymphoma may not have returned if not for the stimulation of cell-growth attributed to the peptides. The focus of the imputation is on the qualities of the substance administered. In my view is would be open to the jury to conclude from the material reported (noting the sensational tone of parts of the articles) that the substance in question could be characterised as "cancer-causing". Although the imputation is perhaps tenuous, I am not persuaded that it is liable to be struck out on a capacity basis.

1. Imputation (h) is:

The plaintiff injected football players with peptides CJC-1295 and GHRP-6 in the period March to May 2011 thereby exposing them to illness or death.

1. The defendants submitted that imputation (h) is not reasonably capable of being conveyed. As with imputation (f), it was submitted that there is nothing in the matters complained of to suggest that players (plural) were exposed to illness or death by the administration of the substances identified. Mr Blackburn submitted that the matter complained of refers only to "a bare possibility that Mr Mannah may have been so exposed as a result of his underlying cancerous condition". Translating the well-known principles stated by Lord Reid in Lewis v Daily Telegraph [1964] AC 234 at 258 into the language of his own generation, Mr Blackburn submitted that the ordinary reasonable reader is "not a ninny".

1. In my view, the meaning that the injection of the peptides exposed multiple players to death can only be derived from a forced or unreasonable reading of the matter complained of. Although imputation (h) has some similarity to imputation (f), I do not think my ruling on that imputation dictates allowing imputation (h). The focus of the articles is the particular condition of Mr Mannah and the risks associated with the use of peptides in a person with pre-existing cancer. Nothing in the articles suggests exposure to death except by the mechanism identified of prompting the return of a pre-existing condition. Imputation (h) should be struck out.

Proceedings 586 and 595

1. As with proceedings 114 and 118, proceedings 586 and 595 are based on the same article published with minor differences in the print version of the newspaper and in its online edition. In the print version of the paper, the article was published under the headline "police look at Mannah death". The article reported that the NSW Police Force had been handed information relating to former NRL star Jon Mannah to assess whether any criminal acts were involved in his death. The article explained:

Medical experts have stated that peptides, such as those given to Mannah, just two years after he was diagnosed with Hodgkin's Lymphona, and while he was in remission, could potentially be harmful and accelerate the condition.

1. The article then quoted Professor Kenneth Ho, an endocrinologist, as stating that, based on the property of growth hormones, there was a risk that cancer growth could be propagated if a person with an established cancer was given such a peptide. Professor Ho was quoted as having accepted that a patient who had previously suffered from cancer was placing himself at "considerable risk" taking the peptides.

1. Imputations (a) and (b) relied upon by the plaintiff as arising from that article are the same as for proceedings 114 and 118:

(a) the plaintiff is a murderer

(b) the plaintiff murdered Jon Mannah

1. For the reasons given above in respect of proceedings 114 and 118, I accept the defendants' submission that any imputation alleging intentional killing is not reasonably capable of being conveyed by the article. Mr Blackburn submitted that, even if the imputations are understood to mean that the plaintiff committed an act which caused the death of Jon Mannah with recklessness, that is a forced or strained meaning not capable of being carried by the matter complained of. Whilst there is considerable force in that submission, the plaintiff should in my view be given leave to reformulate the imputation if so advised. I do not think a pre-emptive ruling can be given on that issue.

1. Imputation (c) is:

the plaintiff accelerated the death of Jon Mannah.

1. For the reasons given above in respect of proceedings 114 and 118, I accept that imputation (c) is bad in form in that it fails to distil any act or condition allegedly attributed to the plaintiff by the article.

1. Imputation (d) is:

the plaintiff wrongfully administered peptides to Jon Mannah thereby accelerating his cancerous condition.

1. Mr Rasmussen accepted that the imputation should be reformulated, being bad in form by reason of the inclusion of the word "wrongfully".

1. Imputation (e) is:

the plaintiff faces potential criminal action by NSW Police Force detectives over Jon Mannah's death from cancer.

1. The defendant submitted that the imputation is not reasonably capable of being conveyed and is bad in form. In my view, the imputation is capable of being carried by the matter complained of but suffers from the vice of failing to distil any clear defamatory act or condition allegedly attributed to the plaintiff by the article. Mr Rasmussen submitted, by similar reasoning to the argument in respect of the "acceleration" imputation considered above, that it is defamatory to say of a person that he is "under investigation" even if that statement attributes no moral turpitude to the person, since it is likely to cause the person to be shunned and avoided. He characterised it as another Youssopoff kind of imputation. For substantially the same grounds on which I rejected the "acceleration" imputation, I would reject that submission. I do not think the imputation successfully distils any defamatory act of condition. It is liable to be struck out on that basis.

1. I direct the parties to bring in short minutes of order in accordance with these reasons and proposing a timetable for the future conduct of the proceedings.

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Decision last updated: 16 August 2013