Dank v Rothfield

1. [1]

   THE COURT: On 30 June 2015, the Court dismissed an application by the applicant (Dr Dank) for leave to appeal against a decision of a Judge of the Common Law Division (McCallum J) (Primary Judgment). The Court indicated that it would provide reasons later. These are the reasons.

2. [2]

   Dr Dank is the plaintiff in defamation proceedings commenced on 26 March 2013. The primary Judge struck out the paragraphs in the Further Amended Statement of Claim (FASC) pleading a case against the respondent, the fourth defendant in the defamation proceedings (Mr Rothfield). Her Honour directed that Dr Dank should not have liberty to replead his claim against Mr Rothfield. Accordingly, she dismissed the claim. [1]

3. [3]

   Dr Dank requires leave to appeal as the Primary Judgment was interlocutory, notwithstanding that the proceedings against Mr Rothfield were dismissed. [2]

Background

1. [4]

   Dr Dank is not a medical doctor but has been described in these proceedings as a “sports scientist”. In February and March 2013, allegations were reported in the media that players at the Cronulla Sharks Rugby League Club had been injected with performance enhancing substances usually given to horses.

2. [5]

   Mr Rothfield is a journalist. He wrote an article published on the front page of the Sunday Telegraph on 10 March 2013. The headline read:

3. [6]

   That evening the Channel Nine National News broadcast a news item. The broadcast showed Mr Irvine being confronted by journalists and asked about the contents of the Sunday Telegraph article. The broadcast included images of Mr Rothfield speaking on camera.

4. [7]

   The transcript of the broadcast includes the following passages:

5. [8]

   Dr Dank commenced defamation proceedings in respect of the broadcast against six defendants, as follows:

6. [9]

   The various proceedings instituted by Dr Dank have been characterised by much interlocutory disputation. As a consequence of the disputation, two defendants (the Club and Mr Irvine) have been removed from the proceedings. The effect of the Primary Judgment is that Mr Rothfield has also been removed as a defendant.

7. [10]

   Dr Dank’s application for leave to appeal is an attempt to restore Mr Rothfield as a defendant in the proceedings. The application is the second occasion on which Dr Dank’s pleading against Mr Rothfield has been before this Court. It is a matter of concern that in the period of two years and three months since the proceedings were instituted, disputes concerning the pleadings have not yet finally been resolved.

The Proceedings

1. [11]

   The disputes between Dr Dank and Mr Rothfield concerning the pleadings commenced with the Amended Statement of Claim (ASC) filed by Dr Dank on 8 October 2013. Mr Rothfield, along with the other defendants, filed a motion seeking to strike out portions of the ASC.

2. [12]

   In a judgment delivered on 6 December 2013 (Strike Out Judgment), McCallum J struck out the claim pleaded in the ASC against Mr Rothfield, but granted Dr Dank liberty to replead. [3] The paragraphs of the ASC struck out by her Honour in the Strike Out Judgment alleged that Mr Rothfield published the defamatory material in the television broadcast.

3. [13]

   The Strike Out Judgment was not the first time that the primary Judge, in proceedings commenced by Dr Dank, had considered whether a defendant who contributed to a publication, but was not responsible for the entire publication, could be regarded as an original publisher of the whole matter complained of. In an earlier decision in different proceedings, Dank v Whittaker (No 1), [4] McCallum J struck out pleadings to this effect. Her Honour did so on the ground that the pleadings did not establish that the defendants were original publishers of defamatory material within the principles stated by the High Court in Webb v Bloch [5] .

4. [14]

   In Dank v Whittaker (No 1), McCallum J formulated the relevant principle as follows: [6]

5. [15]

   Her Honour applied that principle in the Strike Out Judgment. She adhered to her view that: [7]

6. [16]

   Dr Dank sought leave to appeal from the Strike Out Decision on the ground, inter alia, that the primary Judge erred in striking out the claim pleaded in the ASC against Mr Rothfield. The Court of Appeal refused to grant leave (CA Judgment). [9]

7. [17]

   In the CA Judgment, Ward JA pointed out that the Strike Out Judgment held that the ASC did not properly plead a cause of action against Mr Rothfield as an original publisher of the television program because it was not alleged that he had control over the broadcast or had assented to its final form. [10] Ward JA then recounted in detail McCallum J’s reasoning in Dank v Whittaker (No 1), which her Honour had applied in the Strike Out Judgment.

8. [18]

   Counsel for Dr Dank had submitted on the application for leave to appeal from the Strike Out Judgment that McCallum J had erroneously applied a control test to determine whether the pleading properly alleged that Mr Rothfield was the original publisher of the defamatory matter. Ward JA rejected the submission: [11]

9. [19]

   Counsel for Dr Dank had also submitted that the fact that Mr Irvine alleged in the conversation with Mr Rothfield that Dr Dank had supplied horse drugs to football players, and the repetition of those allegations by Mr Rothfield in the television program, should have been sufficient to make Mr Rothfield liable as a publisher of the program. Counsel had contended that Mr Rothfield was pivotal to the entire television program since he had been willing to co-operate in the making of it. Ward JA pointed out, however, that insofar as these matters were said to constitute conducing or assenting to the broadcast, they were neither pleaded nor particularised in the ASC. [13]

10. [20]

    Ward JA continued as follows: [14]

11. [21]

    As has been noted, Dr Dank filed the FASC on 16 October 2014. It is not clear why it took over ten months after McCallum J granted leave to replead the case against Mr Rothfield for the fresh pleading to be filed.

12. [22]

    The FASC contains 17 particulars of the allegation that Mr Rothfield published the defamatory matter in the television program. The particulars specifically referred to in argument on the current leave application are the following:

13. [23]

    McCallum J noted in the Primary Judgment that the FASC had been filed subject to Mr Rothfield’s right to argue the adequacy of the particulars provided in support of the claim against him. Her Honour also noted that the pleading in the FASC represented an attempt to bring the case within the principles stated in the CA Judgment, which required something further than had previously been pleaded.

14. [24]

    McCallum J considered that the FASC did not materially advance the case against Mr Rothfield: [15]

Reasoning

1. [25]

   The application for leave to appeal concerns an interlocutory ruling on a matter of practice and procedure, even though the practical effect of the orders made in the Primary Judgment is to dismiss Dr Dank’s proceedings against Mr Rothfield. The CA Judgment conveniently states the relevant principles for determining an application for leave to appeal against a judgment of this kind: [16]

2. [26]

   Mr Rasmussen, who appeared for Dr Dank on the leave application, reiterated that Dr Dank was not seeking to make out a republication case, but was attempting to fit the case within the principles stated in Webb v Bloch. He contended that the leave application raised an issue of principle, namely the need to clarify the test for determining whether a defendant is liable as a co-publisher of defamatory matter. When it was put to Mr Rasmussen that the Court of Appeal had addressed that very question in the CA Judgment he said that the issue presented by the application was that McCallum J had simply applied a control test.

3. [27]

   Mr Rasmussen did not suggest that the approach taken in the CA Judgment was novel or otherwise than in accordance with the established authorities. [17] The contention that McCallum J in the Primary Judgment simply applied a control test effectively repeated the argument made in relation to the ASC. That argument was rejected in the CA Judgment. McCallum J in the Strike Out Judgment did not make the error attributed to her in the earlier application for leave to appeal. Nor did she make the error in the Primary Judgment.

4. [28]

   In our opinion, the leave application raises no issue of principle. At best, Dr Dank’s submission is that McCallum J did not correctly apply well established principles to the attempt in the FASC to remedy the pleading deficiencies identified by her Honour and endorsed by the Court of Appeal.

5. [29]

   Mr Rasmussen was also asked to identify any injustice that would be caused to Dr Dank if the application for leave to appeal was dismissed, bearing in mind that the proceedings will continue against the three remaining defendants (Nine Network, Mr Overton and Ms Harris). His response was that if Mr Rothfield is removed as a defendant, Dr Dank may be denied a forensic advantage in the proceedings. The advantage was said to flow from the likelihood that the Nine Network and its employees would rely on the defence under s 31(3) of the Defamation Act 2005 (NSW) that the defamatory matter expressed the opinion of a third party. Mr Rasmussen said that the presence of Mr Rothfield as a party would improve Dr Dank’s chances of proving that the Nine Network and its employees had reasonable grounds to believe that Mr Rothfield did not honestly hold the opinion at the time the defamatory matter was published. Precisely why this would be the case was not made clear. In our view, it has not been shown that a refusal of leave to appeal would not create any significant injustice to Dr Dank.

6. [30]

   It must be doubted whether Dr Dank could establish that McCallum J erred in concluding that the particulars in the FASC do not satisfy the principles laid down in Webb v Bloch for determining whether a defendant is a co-publisher of defamatory matter. But even if the contention is arguable, it raises no issue of principle and no significant injustice is caused to Dr Dank by denying leave to appeal.

7. [31]

   The Court reiterates that prolonged interlocutory disputation of the kind that has occurred in this case is not to be encouraged. It is time that this case proceeded to trial.

Conclusion

1. [32]

   For these reasons the Court refused leave to appeal and ordered Dr Dank to pay Mr Rothfield’s costs of the application.