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

1. 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.

1. 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).

1. 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.

1. 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.

1. 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, for reasons that are difficult to understand, apart I think from an earlier reference to the availability of counsel, the matters properly raised were never responded to until the matter came before me in this week's defamation list.

1. When that occurred the plaintiff was for the first time (in my experience of these matters) represented by Mr Smark. Mr Smark promptly, and in my view appropriately, made a number of concessions as to the form of the new pleading, with the result that Dr Larkins is again left having to await a further iteration of the pleading.

1. In those circumstances, Dr Larkins seeks payments of his costs on an indemnity basis and assessable forthwith on the strength of the principles stated in my decision in another defamation action also commenced by Dr Dank: Dank v Cronulla-Sutherland District Rugby League Football Club (No 2) [2013] NSWSC 1531.

1. Mr Smark did not oppose the payment of costs thrown away but submitted that such costs should not be assessable on an indemnity basis or forthwith. He submitted, in effect, that there is nothing out of the ordinary in there being objections to pleadings determined at the outset of the proceedings and contended that the manner in which the disputes had been dealt with had not been "especially obstructive".

1. The difficulty is that when one gives close consideration to the points taken in the correspondence and the plain lack of attention given on behalf of the plaintiff to those points the matter, in my view, does rise outside or above the ordinary category. The points taken are simply ones which ought not to have been required to be taken, if proper attention had been given to the pleading in the first instance.

1. As already noted, a similar application was made in another proceeding commenced by Dr Dank against Cronulla-Sutherland District Rugby League Football Club. Although the circumstances of that case were different, nonetheless in my view the experience Dr Larkins has faced thus far of the litigation against him has been unhappy. I am satisfied that the plaintiff ought now to pay his costs on an indemnity basis.

1. I also think, having regard to the stage of the proceedings and the little progress the matter has made up to this point, that those costs ought to be assessed forthwith and those are the orders I make.

**********

Amendments

19 February 2014 - Incorrect decision date

Amended paragraphs: Coversheet