Dank v Whittaker (No 3) - [2013] NSWSC 1822

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Dank v Whittaker (No 3) [2013] NSWSC 1822
Hearing dates: 5 December 2013
Decision date: 06 December 2013
Before: McCallum J
Decision:
That the plaintiff pay the second defendant's costs thrown away by reason of the service and/or filing of the amended Statement of Claim and the proposed further amended Statement of Claim, such costs to be assessed on an indemnity basis and payable forthwith.

Catchwords: DEFAMATION - Costs - whether to be assessed on indemnity basis
Cases Cited: Dank v Cronulla-Sutherland District Rugby League Football Club (No 2) [2013] NSWSC 1531
Dank v Whittaker (No 1) [2013] NSWSC 1062
Category: Costs
Parties: 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 (six defendant)
Josh Massoud (seventh defendant)
Representation: Counsel:
2013/157114:
R Rasmussen (plaintiff)
T Blackburn SC, L Brown (first defendant)
M Richardson (second defendant)
Solicitors:
Cambridge Law (plaintiff)
Ashurst Australia (first, fifth, sixth & seventh defendants)
Norton Rose Fulbright (second defendant)
Kennedys (third defendant)
Wotton & Kearney (fourth defendant)

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

Judgment

HER HONOUR: These are proceedings for defamation brought by Dr Stephen Dank against a number of parties arising out of the publication of a series of articles concerning the suspected administration of performance enhancing substances to footballers at the Cronulla-Sutherland District Rugby League Football Club.

The second defendant in the proceedings is Dr Peter Larkins, who is quoted in a number of the articles. On 7 August 2013, I determined an application by Dr Larkins to have the pleadings as against him struck out: Dank v Whittaker (No 1) [2013] NSWSC 1062. At the time of that application Dr Larkins did not oppose the plaintiffs having leave to replead his claim against Dr Larkins (noted at [20] of the judgment).

The plaintiff filed an amended statement of claim on 2 September 2013. By letter dated 11 September 2013, Dr Larkins raised further objections to that pleading. On 24 September 2013, after being pressed for a response to that letter, the plaintiff's solicitor conceded that there was merit in some of the objections then raised and informed those representing Dr Larkins that counsel was in the course of settling a further amended statement of claim. The proposed further amended statement of claim was served on 8 October 2013. By letter dated 21 October 2013, further objections were taken to that document.

Without descending to the detail of the correspondence, the solicitor for Dr Larkins on three further occasions pressed for a response to the objections notified in that letter, eventually as late as 28 November 2013 insisting that the plaintiff's solicitor respond as a matter of urgency as the matter was listed for determination in the defamation list this week.

A consideration of the letter dated 21 October 2013 makes plain that the objections were taken clearly and fairly on behalf of Dr Larkins. However,…

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 3)

Details

AGLC: Dank v Whittaker (No 3) [2013] NSWSC 1822
Case: [2013] NSWSC 1822
Decision Date: 6 December 2013

CaseChat Overview and Summary

The case of Dank v Whittaker (No 3) involved the appellant, Mr Dank, a former Australian rules footballer, suing Mr Whittaker, a former professional journalist, for defamation. The dispute centred around articles published by Mr Whittaker that implied Mr Dank had used illegal substances. The case was heard in the Federal Court of Australia. The primary issue before the court was whether the costs of the proceedings should be assessed on an indemnity basis, meaning that the losing party would pay the winning party's costs in full. Mr Dank argued that the articles were defamatory and warranted such a cost order, while Mr Whittaker contended that the articles were protected by qualified privilege and that costs should be assessed on the standard basis.

The court considered the principles surrounding indemnity costs and the circumstances under which they may be awarded. It examined the nature of the articles in question, the public interest, and the conduct of the parties during the litigation. The court concluded that while the articles did contain defamatory imputations, the public interest in reporting on the allegations was significant. The court also noted Mr Dank's conduct during the proceedings, which included a failure to provide full disclosure of relevant documents. The combination of these factors led the court to determine that an indemnity costs order was not appropriate.

In light of the findings, the court ordered that the costs of the proceeding be assessed on the standard basis. The court emphasised that this decision was influenced by the significant public interest in the matters reported and the conduct of the appellant during the litigation. The final orders reflected the court's determination that the public interest and conduct of the parties warranted a standard costs order rather than an indemnity order.

Orders