Supreme Court New South Wales Medium Neutral Citation: Dank v Whittaker (No 1) [2013] NSWSC 1062 Hearing dates: 6 August 2013 Decision date: 07 August 2013 Before: McCallum J Decision: In proceedings 2013/157114, pleadings as against the second defendant, Dr Larkins, struck out with leave to replead. In proceedings 2013/184586, pleadings as against the third defendant, Professor Ho, struck out with leave to replead. Catchwords: DEFAMATION - publication - expert opinions attributed to defendant doctors quoted in newspaper articles - where no allegation of control over or assent to final versions of articles - test for joint liability as a publisher of the whole matter complained of - whether particulars given by plaintiff capable of sustaining plea of publication Cases Cited: Craftsman Homes Australia Pty Ltd v Nine Network Australia Pty Ltd [2002] NSWSC 555 Palace v Fairfax Media Publications [2010] NSWSC 415 Seary v Molomby (unreported, Supreme Court of New South Wales, 23 August 1999 Speight v Gosney (1891) 60 LJQB 231 Thiess v TCN Channel Nine Pty Ltd (No 5) [1994] 1 Qd R 156 Webb v Bloch [1928] HCA 50; (1928) 41 CLR 331 Texts Cited: Gatley on Libel and Slander 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) 2013/184586: Stephen Dank (plaintiff) Paul Whittaker (first defendant) Yoni Bashan (second defendant) Professor Kenneth Ho (third defendant) Representation: Counsel: 2013/157114: R Rasmussen (plaintiff) T Blackburn SC with L Brown (first, fifth, sixth & seventh defendants) M Richardson (second defendant) PT George, solicitor (third defendant) No appearance for fourth defendant 2013/184586: R Rasmussen (plaintiff) T Blackburn SC with L Brown (first & second defendants) ATS Dawson (third 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) 2013/184586: Cambridge Law (plaintiff) Ashurst Australia (first & second defendants) Minter Ellison (third defendant) File Number(s): 2013/157114 2013/184586 Publication restriction: None Judgment 1HER 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 administration of performance- enhancing substances to footballers at the Cronulla Sharks Football Club. The articles state that the substances were administered during a time when Dr Dank was retained by the Club as a "sports scientist". Dr Dank is not a medical doctor but evidently holds a PhD in biochemistry. 2In each of the proceedings, various objections have been taken by the defendants to the form of the pleadings. Some of the objections in different proceedings raised common issues which were able conveniently to be heard together. This judgment determines applications in two of the proceedings to have the pleading as against each applicant struck out on the basis that no reasonable cause of action is disclosed. Specifically, it is alleged in each case that the particulars provided by the plaintiff are incapable of sustaining the plea that the matter complained of was published by the relevant defendant. Proceedings 114 3Owing to the large number of separate proceedings commenced by Dr Dank, it is convenient to refer to each proceeding by the last three numerals of the relevant file number. The first application before the Court is made by the second defendant in proceedings 114, Dr Peter Larkins. Dr Larkins is a medical doctor who is quoted in the articles. The other defendants in proceedings 114 are the editor of the newspaper and the journalists under whose by-lines the articles were published; the author of a leaked report which is the focus of the articles and a solicitor apparently associated with the investigation which resulted in the production of the leaked report. 4Proceedings 114 arise out of a series of articles published in The Daily Telegraph on 26 April 2013. The articles appeared in two different sections of the newspaper (at pages 1 to 3 and pages 134 to 136) but are sued on as a single defamatory publication. No objection is taken to that course. 5Broadly speaking, the subject of the articles is the content of the leaked report, described in the articles as "explosive". The report warned the Club of an apparent causal link between the administration of peptides to its footballers and the death of one footballer, Mr Jon Mannah. The report is quoted in the articles as stating that Mr Mannah had previously been diagnosed with Hodgkin's lymphoma, a form of cancer, while under contract as a player with the club. After a period of treatment the cancer evidently went into remission and Mr Mannah was deemed fit to return to train and play in the 2011 football season. During that time, he was injected with two particular peptides over a period of several months. Mr Mannah's cancer subsequently returned. He died earlier this year. 6The report is quoted in the articles as having included the following statements: 45 A brief review of the available published medical literature suggests an identified causal link between the use of substances such as CJC-1295 and GHRP-6 and the acceleration of the condition of disease Hodgkins lymphoma. 46 Without knowing anything further about Mannah's exact medical history and without seeking expert opinion from an appropriately qualified oncologist it is difficult to take this issue further. 47 However the issue of Mannah has the potential to be as serious as matters could get. 48 The club should be prepared for the potential for sections of the media making the same causal connection between the program administered and the illness suffered by Mannah. 7The articles stated that the peptides referred to in the report were administered "after sports scientist Stephen Dank was recruited to Cronulla by ex Sharks head trainer Trent Elkin at the beginning of the 2011 season." The articles stated that it was not known whether the drugs were part of Dr Dank's program. 8As apprehended by the author of the report (in the passage set out above), the media swarmed in on the issue of a potential connection between the administration of the two peptides and the death of Mr Mannah. The articles explored the issue referred to in the report of the need to seek expert opinion from an appropriately qualified doctor and, in that context, quoted a number of statements attributed to Dr Larkins. At paragraph 71 of the matter complained of, the following words are attributed to him against the description of his being a "leading Australian sports doctor": I would have thought if I had any player or any patient that had any history of any cancer process the last thing I would even contemplate giving them is anything that increased cell growth. That would be an incontestable thing to do. If I had a woman with breast cancer who was in remission-phase, you would never contemplate giving her any medical treatment that had the potential to reactivate or stimulate cell multiplication. 9The last three pages of the matter complained of, which probably appeared at the back of the newspaper in the Sports section, explored that issue in greater detail. Under the heading "Supplement Link to Mannah's Relapse", the articles reported Dr Larkins' horror at the possibility that Mr Mannah was given "growth accelerants" during the remission of his disease. However, the comments attributed to Dr Larkins by no means make up the whole of the matter complained of. There is a great deal of input from other sources as well as substantial contribution by the journalists themselves. 10The statement of claim pleads the element of publication as against all defendants in simple terms, as follows: In "The Daily Telegraph" of 26 April 2013 the defendants published or caused to be published of and concerning the plaintiff certain defamatory material a copy of which is annexed hereto and marked 'A'. 11In response to an objection by those representing Dr Larkins that he could only be liable for what he himself published (in accordance with the principles considered in Speight v Gosney (1891) 60 LJQB 231) and a request for particulars to support the contention that Dr Larkins published the whole article, the plaintiff said: Your client became a co-publisher of the article complained of when he made the statements to journalists about how horrified he was over the administration of supplements to Mr Mannah which were linked to his death. Dr Larkins knew that what he said would be republished in the newspaper and his statements were the rock on which the defamatory imputations were based. Dr Larkins made his statements at a time when media allegations that our client administered substances to football players were at their peak. Mr Dank's name was incorporated in headlines in the print media and he was featured in the electronic media almost daily. This was particularly so at the end of April 2013. It is noted that Dr Larkins made no complaint about the article until he received the statement of claim. It is well settled that all persons who procure or participate in the publication of a libel therefore are jointly and severally liable for the whole damage suffered by the plaintiff. Your attention is drawn to what Isaacs J said in Webb v Bloch (1928 41 CLR 331): "All who are in any degree accessory to the publication of a libel, and by any means whatever conduce to the publication are to be considered as principals in the art of publication ... Thus if one suggests illegal matter in order that another may write or print it, and that a third may publish it, all are equally amendable for the act of publication when it has been so effected". (Webb v Bloch (ibid) per Isaacs J at 364). ...It's not that Dr Larkins said every word of the article complained of, but that he published or materially contributed to the publication of the eight defamatory imputations. 12The imputations relied upon by the plaintiff in respect of the articles include imputations that the plaintiff is a murderer and that he murdered Jon Mannah. Proceedings 586 13The second application presently before the Court is made by Professor Kenneth Ho, the third defendant in proceedings 586. Professor Ho is sued over a single article published in The Daily Telegraph on 4 June 2013. The article again focuses on the potential link between Mr Mannah's death and the administration of peptides to him during his period of remission from the disease. The article further reports that information has been handed to the New South Wales Police to assess whether any criminal acts were involved in his death. The article states: It is understood detectives are assessing the information and any 'potential criminal action' over Mannah's death from cancer in January. 14The article further states: Medical experts have stated that peptides such as those given to Mr Mannah just two years after he was diagnosed with Hodgkin's lymphoma and while he was in remission could potentially be harmful and accelerate the condition. 15There is then a quote attributed to Professor Ho, as follows: If someone unknowingly had an established cancer and is given such a peptide, what is the risk of propagating cancer growth? Based on the property of growth hormones there is a risk that cancer growth can be propagated. 16Separately the article reports that Professor Ho, when asked whether a patient was placing themself at "considerable risk" taking these peptides if they previously suffered from cancer, said, "Correct". 17The imputations relied upon by the plaintiff in respect of that article extend not only to imputations that the plaintiff is a murderer and murdered Jon Mannah but also to imputations concerning his facing potential criminal action by the New South Wales Police Force. 18As with the claim against Dr Larkins, the pleading of the element of publication against Professor Ho is spare. The statement of claim asserts, at paragraph 2: In "The Daily Telegraph" of 4 June 2013 the defendants published or caused to be published of and concerning the plaintiff certain defamatory material a copy of which is annexed hereto and marked 'A'. 19A request for particulars of the claim was responded to by the plaintiff in the following terms: The third defendant conduced to the publication in the sense anticipated by Webb v Bloch. Professor Ho was interviewed by a journalist of the Daily Telegraph in April and provided specific information about the administration of peptides to persons who have cancer and the risk that they are put at. The interview was given at a time when the April 2013 articles about the link to Jon Mannah's death and the administration of peptides at Cronulla apparently by the plaintiff was broken by that same paper. When the Professor gave that interview he impliedly authorised The Daily Telegraph to use the information that he provided for whatever purpose they deemed appropriate, which included its use in the matter complained of in quotes. He authorised the paper to use his name, status and title as a leading Endocrinologist of a major Brisbane Hospital. He could have provided the information anonymously or not authorised any attribution to him. The information attributed to the Professor at [12], [13] and [14] is integral to the article. It reinforces the likelihood of guilt of the plaintiff over the death of Jon Mannah. It quotes a well respected Medical Expert expressing the view that cancer growth can be propagated by peptides and that this places a patient who is administered with peptides at considerable risk. Jon Mannah was apparently given peptides whilst he was in remission from cancer and subsequently died of that disease. Joint liability as a publisher 20It was submitted Mr Richardson, who appears for Dr Larkins, that the pleading as fleshed out by the particulars set out above is incapable of sustaining the plea of publication against Dr Larkins. Mr Richardson sought an order that the pleading be struck out as against Dr Larkins but accepted that he could not oppose a grant of leave to re-plead. 21Mr Richardson noted that the plaintiff expressly does not put the case as one of republication. Dr Larkins is sued as an original publisher of the whole of the matter complained of, that is, not only his own comments but also the words of the journalists and other contributors to the articles (including the reproduced parts of the confidential report of Dr Kavanagh's investigation). Mr Rasmussen, who appears for the plaintiff, confirmed that the plaintiff does not wish to restrict his cause of action to the words communicated by Dr Larkins to the journalist as reported in the articles. He acknowledged that the plaintiff eschews any kind of plea of the nature considered in Speight v Gosney (1891) 60 LJQB 231. 22Mr Richardson's submissions were supported by a careful review of the authorities dealing with the issue of joint liability as a publisher. He submitted that those authorities hold that, in order to establish that a person is jointly liable as an original publisher of allegedly defamatory matter, it is necessary to establish either control or assent. Having reviewed the authorities relied upon, I accept that to be a correct statement of principle. The notion of control is comprehended within the role of a person such as the proprietor of a newspaper, an editor who determines what is published and, ordinarily, the author of the defamatory matter (although it is well recognised that a journalist, whilst responsible for the words written by him or her, is not necessarily liable for headlines or images added during the editorial process). Absent participation in a publication at that level of control, a person who merely contributes part of what is published will not be jointly liable as an original publisher of the whole unless he or she assents to its final form. 23The starting point in considering the relevant principles is the well-known statement in Webb v Bloch [1928] HCA 50; (1928) 41 CLR 331 relied upon by the plaintiff in the correspondence set out above (at 364.3 per Isaacs J, emphasis in original): In Parkes v Prescott, Giffard QC quotes from the second edition of Starkie: "All who are in any degree accessory to the publication of a libel, and by any means whatever conduce to the publication, are to be considered as principals in the act of publication: thus if one suggest illegal matter in order that another may write or print it, and that a third may publish it, all are equally amenable for the act of publication when it has been so effected." 24As has previously been observed, however, that statement needs to be approached with an understanding of the context in which it was made. Mr Richardson relied on the following passage from the decision of the Full Court of the Supreme Court of Queensland in Thiess v TCN Channel Nine Pty Ltd (No 5) [1994] 1 Qd R 156 at 194 to 195 where, after referring to a statement of the principles of publication from Gatley on Libel and Slander and the statement from Webb v Bloch set out above, the Court said: So much must be accepted. It is necessary, however, to use care in applying general statements of this kind. Those who made them were directing attention to identifiable defamatory statements, to the publication of which in the completed form the defendant in question was held to have given his authority or approval or to the final form of which he had contributed. Webb v. Bloch was an instance of that kind. The defamatory circular in that action was drafted by the solicitor Norman on instructions from the defendant Bloch. Bloch received the draft on 10 February 1926 although none of the other defendants saw it then. On 16 February 1926 Bloch instructed Norman to issue the circulars and his action in doing so was confirmed on 22 February by the Victorian committee, of which all the defendants were members. Starke J. (41 C.L.R. 331, 340) regarded this act of confirmation as rendering all the defendants responsible in law for the issue of the circular. His Honour considered Norman not as the author of the circular "but rather as the amanuensis of the defendants" (41 C.L.R. 331, 342). On appeal, Knox C.J. agreed with Starke J. in thinking that all defendants were responsible in law for the publication of the circular (ibid., at 347). Gavan Duffy J. would have dismissed the appeal from the judgment given by Starke J. in favour of the defendants (ibid., at 375). Only Isaacs J. found it necessary to examine the authorities in order to discover what may have been a wider basis of liability. What is said in Webb v. Bloch and Gatley would perhaps suffice to make Woodham liable with TCN 9 if he had seen the script or viewed the programmes before publication; but the evidence is that he did not do so. The decision in Webb v. Bloch is concerned with a case that is in some ways the direct converse of this. There the question was whether the defendants were principals of the solicitor Norman, who was the author and publisher of the defamatory circulars. No one suggests that Woodham was the principal of TCN 9 as author and publisher of the television programmes. He is not shown to have exercised control over its final form. At most he played a subsidiary and intermediate, if important, part in the creation of the product that in its finished state ultimately went to air. It is true that Woodham himself, or the visual image of Woodham, appeared in one or more of the programmes (principally the first ACA programme) broadcast by TCN 9, and that he was visible and audible to viewers as saying words that may have formed part of "the matter supporting the imputations or any of them". However, as we have seen, and despite the form of question 1, what the jury were asked to do was not to say whether Woodham published some, but whether he published all, of the matter supporting the defamatory imputations. Unless he was a co-publisher of all, the jury were, having regard to the way in which that question was left to them, entitled and indeed bound to find that he was not a co-publisher "with" TCN 9. As to that, the evidence is that there were some matters published about which Woodham knew little or nothing. 25Mr Richardson also relied upon statements to like effect in my decision in Palace v Fairfax Media Publications [2010] NSWSC 415 at [24] to [25] and the judgment of Levine J in Craftsman Homes Australia Pty Ltd v Nine Network Australia Pty Ltd [2002] NSWSC 555 at [7]. He also relied upon the decision in Seary v Molomby (unreported, Supreme Court of New South Wales, 23 August 1999) where Sully J accepted the proposition that either some form of control over the editorial process or assent to the final form of the publication was essential to establish joint liability for a publication: at [20] to [25]. 26In my view, the authorities relied upon by Mr Richardson establish that, where a person merely contributes material to an article but has no control over the publishing process, liability as a publisher will not ordinarily be established unless he or she has assented to its final form. 27Mr Rasmussen took issue with that principle. He submitted that the authorities support a broader view. However, when pressed to cite authority for any broader proposition, Mr Rasmussen relied only on the relevant extracts from Gatley. In saying that he relied "only" on that material, I mean no disrespect to the authors of that well-respected text but only to point to the fact that a law text does not stand as authority (in the relevant sense) for any legal principle. In any event, a close review of the passages of the text relied upon by Mr Rasmussen reveals little more than a discussion of some of the authorities relied upon by Mr Richardson. As already stated, upon careful analysis those authorities support the principle contended for by Mr Richardson, in my view. Mr Rasmussen made no attempt to go to any of the authorities cited in Gatley to establish any different proposition. 28Separately, Mr Rasmussen submitted that Mr Richardson's contention is not a strike-out point but rather a matter for evidence. He relied as authority for that proposition on the following statement in Thiess at page 194: The question to be decided is whether the evidence was such as to require the jury, acting reasonably, to find that Woodham was a co-publisher with TCN Nine of the same matter and so make him liable at law for the consequences of doing so. 29To the extent that that passage was sought to be relied upon as authority for the proposition that it is not necessary to plead material facts to establish a basis for alleging that a person is liable as a joint publisher, the submission was misconceived. The remarks in Thiess reflect nothing more than the fact that the present application is brought at a different stage of the proceedings than the issue under consideration in Thiess, which was after a jury trial. That said, the defendants acknowledge that they must satisfy the General Steele test in the present application. 30Mr Rasmussen complained that the plaintiff cannot provide further particulars of material facts to support the publication allegation against the two doctors, since the plaintiff can know no more than what is reported in the matters complained of. If that is a difficulty, it is one which must fall at the feet of the plaintiff, not the doctors. That is presumably the reason it is uncommon to see a plea of this kind, attempting to fix a person who has merely contributed part of the information reported in an article with liability for the whole of the finished piece uncontrolled by him or her. 31In my view the particulars set out above are incapable of sustaining the allegation that Dr Larkins had control of the final version of the matters complained of or assented to them. Insofar as the particulars are relevant to the plea, they say no more than that he made statements which were likely to be republished. In light of Mr Richardson's very fair concession, I propose to grant leave to the plaintiff to re-plead but I would wish to make a number of observations in that context. I will return to that issue. 32Turning to proceedings 586, Mr Dawson, who appeared for Professor Ho, submitted that in the case of that article the particulars are so plainly incapable of establishing a case of liability against Professor Ho as a publisher of the whole of the matter complained of that there should be no grant of leave to re-plead and that the proceedings should be dismissed as against him. 33I accept that the particulars are plainly incapable of sustaining an allegation of either control or assent. However, I am loathe to dismiss the proceedings without a grant of leave to re-plead, since the plaintiff may choose to take the course of recasting the claim by reference only to the words attributed to Professor Ho. It is not appropriate for me to comment whether or not there would be any merit in such a plea, but I do not think this is a case in which it is appropriate to dismiss the claim altogether without affording that opportunity. 34I wish only to return to the question of re-pleading. A number of observations can be made about these proceedings and I would expect them to be reported to the plaintiff personally. It is, of course, a matter for him how he wishes to conduct his defamation actions (hopefully on the strength of sensible and complete legal advice). It may be observed, however, that the full collection of proceedings commenced by Dr Dank has launched something of a juggernaut. There are multiple proceedings, multiple defendants, multiple legal teams and a vast number of imputations relied upon in all. The objections that are now taken by the defendants in the present application and other applications I have heard this week will afford the plaintiff an opportunity not only to recast his claims in response to my rulings but also to reassess the ambit of the fight he wishes to take on. I would urge the plaintiff and those representing him to give careful consideration to the way in which the claims are framed with a view to bringing before the court a manageable dispute calculated to raise the real issues required to be determined for the purpose of vindicating Dr Dank's reputation. 35In proceedings 114, the order is that the pleading as against Dr Larkins be struck out with leave to re-plead. 36In proceedings 586, the order is that the proceedings as against Professor Ho be struck out with leave to re-plead. RICHARDSON: I seek the costs of the argument. HER HONOUR: Yes. Can you be heard against costs, Mr Rasmussen? RASMUSSEN: No, your Honour. HER HONOUR: In each case I order the plaintiff to pay the costs of the applicant in the two matters I have just determined. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 August 2013