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Dank v Whittaker (No 4)

Dank v Whittaker (No 4)

Case [2014] NSWSC 732 4 June 2014

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Supreme Court

New South Wales

Medium Neutral Citation: Dank v Whittaker (No 4) [2014] NSWSC 732
Hearing dates: 5 December 2013, 9 April 2014
Decision date: 04 June 2014
Before: McCallum J
Decision:
Proceedings 2013/157114 consolidated with proceedings 2013/157118; proceedings 2013/170487 consolidated with 2013/170493; proceedings 2013/184586 consolidated with 2013/184595

Catchwords: DEFAMATION - multiple proceedings commenced by same plaintiff against different publishers of same allegedly defamatory matter - where purpose of duplication of proceedings to attract application of statutory cap on damages in each set of proceedings - whether an abuse of process - whether duplicate proceedings should be consolidated into one
Legislation Cited: Civil Law (Wrongs) Act 2002 (ACT)
Defamation Act 1974, s 9
Defamation Act 2005, ss 22 (4), 8, 23, 35, 38
Uniform Civil Procedure Rules 2005, r 28.5
Cases Cited: Buckley v The Herald & Weekly Times Pty Ltd (2009) 24 VR 129
Davis v Nationwide News Pty Ltd [2008] NSWSC 693
Dow Jones v Gutnick (2002) 210 CLR 575
Fairfax Media Publications Pty Ltd v Cummings; Fairfax Digital Australia & New Zealand Pty Ltd v Cummings [2013] ACTCA 37
Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231
Harris v 718932 Pty Ltd [2003] NSWCA 38; (2003) 56 NSWLR 276
Maple v David Syme & Co Ltd [1975] 1 NSWLR 97
McLean v David Syme & Co Ltd (1970) 72 SR (NSW) 513
Sea Culture International Pty Ltd v Scoles (1991) 32 FCR 275
Category: Procedural and other rulings
Parties:
2013/157114
Stephen Dank (plaintiff)
Paul Whittaker (first defendant)
(proceedings discontinued as against 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)

2013/170487
Stephen Dank (plaintiff)
Mick Carroll (first defendant)
Phil Rothfield (second defendant)
Rachel Givney (third defendant)

2013/170493
Stephen Dank (plaintiff)
Nationwide News Pty Ltd (defendant)

2013/184586
Stephen Dank (plaintiff)
Paul Whittaker (first defendant)
Yoni Bashan (second defendant)
2013/184595
Stephen Dank (plaintiff)
Nationwide News Pty Ltd (defendant)
Representation:
Counsel:
2013/157114:
K Smark SC (plaintiff)
T Blackburn SC, L Barnett (first, fifth, sixth and seventh defendants)
(third and fourth defendants not appearing on motion)

2013/157118
K Smark SC (plaintiff)
T Blackburn SC, L Barnett (defendant)

2013/170487:
K Smark SC (plaintiff)
T Blackburn SC, L Barnett (first and second defendants)
(no appearance for third defendant: not yet served with originating process)

2013/170493:
K Smark SC (plaintiff)
T Blackburn SC, L Barnett (defendant)

2013/184586:
K Smark SC (plaintiff)
T Blackburn SC with L Barnett (first and second defendants)

2013/184595
K Smark SC (plaintiff)
T Blackburn SC, L Barnett (defendant)
Solicitors:
2013/157114
Cambridge Law (plaintiff)
Ashurst Australia (first, fifth, sixth and seventh defendants)
Kennedys (third defendant)
Wotton & Kearney (fourth defendant)

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

2013/170487:
Cambridge Law (plaintiff)
Ashurst Australia (first and second defendants)

2013/170493:
Cambridge Law (plaintiff)
Ashurst Australia (defendant)

2013/184586
Cambridge Law (plaintiff)
Ashurst Australia (first and second defendants)
2013/184595
Cambridge Law (plaintiff)
Ashurst Australia (defendant)

File Number(s): 2013/157114…

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 4)

Details

AGLC: Dank v Whittaker (No 4) [2014] NSWSC 732
Case: [2014] NSWSC 732
Decision Date: 04 June 2014

CaseChat Overview and Summary

In this case, Dank, the plaintiff, commenced multiple proceedings against different publishers of allegedly defamatory material. The court was tasked with determining whether these multiple proceedings constituted an abuse of process and if they should be consolidated into a single proceeding. The primary concern was the strategic initiation of multiple proceedings by the plaintiff, which appeared to be a tactic to circumvent the statutory cap on damages in defamation cases by applying it separately to each proceeding. The court had to consider the implications of this practice on the administration of justice and the rights of the defendants.

The legal issues at hand revolved around the fairness and integrity of the legal process. The court had to evaluate whether allowing multiple proceedings would lead to an unjust outcome for the defendants, given that the same defamatory material was at issue in each case. Additionally, the court considered whether the duplication of proceedings was a legitimate use of the legal system or an abuse that could undermine its principles. The court needed to balance the plaintiff's right to seek redress with the defendants' right to a fair and efficient legal process.

The court concluded that the multiple proceedings were indeed an abuse of process, as they were initiated with the purpose of circumventing the statutory cap on damages. The court emphasised that the integrity of the legal system required that such strategic litigation be avoided. It found that the proceedings should be consolidated into one proceeding to ensure a fair and efficient resolution of the issues. The court held that allowing multiple proceedings in these circumstances would lead to an unjust outcome for the defendants and would undermine the principles of the legal system. The court's decision was grounded in the need to uphold the fairness and integrity of the legal process.

Orders