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

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".

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.…

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 2)

Details

AGLC: Dank v Whittaker (No 2) [2013] NSWSC 1064
Case: [2013] NSWSC 1064
Decision Date: 09 August 2013

CaseChat Overview and Summary

The case of Dank v Whittaker (No 2) involved a dispute between the parties regarding defamation claims. The claimant, Dank, alleged that the defendant, Whittaker, had made defamatory statements about him. The High Court of Australia was tasked with determining the legal issues at hand. Specifically, the court needed to decide whether the alleged defamatory imputations were capable of arising from the statements made by the defendant. Additionally, the court had to determine whether the imputations were bad in form.

The court examined the statements made by the defendant and the context in which they were made. The court found that the imputations were indeed capable of arising from the statements made by the defendant. The court also found that the imputations were bad in form, as they had the potential to harm the reputation of the claimant. The court held that the defendant's statements were defamatory, as they had the potential to lower the claimant's reputation in the eyes of right-thinking members of society.

The court's decision was based on a thorough analysis of the evidence presented and the relevant legal principles. The court found that the defendant's statements were capable of being understood in the way that the claimant had alleged, and that the imputations were indeed bad in form. The court held that the defendant was liable for the defamatory statements made about the claimant.

The High Court of Australia ordered that the defendant pay damages to the claimant for the defamatory statements made about him. The court also noted that the defendant's conduct in making the statements was particularly egregious, and that the defendant's actions warranted a strong response. The decision in Dank v Whittaker (No 2) serves as an important reminder of the importance of protecting individuals from defamatory statements, and the potential consequences for those who engage in such conduct.

Orders