Supreme Court New South Wales Medium Neutral Citation: Dank v Cronulla-Sutherland District Rugby League Football Club [2013] NSWSC 1101 Hearing dates: 8 August 2013 Decision date: 08 August 2013 Before: McCallum J Decision: Pleadings as against the first and sixth defendants struck out with leave to replead; plaintiff directed to serve any notice to the sixth defendant to answer interrogatories as to publication within two weeks; sixth defendant to answer interrogatories subject to any further objection within a further two weeks; plaintiff to serve any proposed amended statement of claim within a further two weeks. Catchwords: DEFAMATION - publication - where sixth defendant a minor contributor to matter complained of - inadequacy of pleading of publication as a publisher of the whole article - pleading of oral publication - where not purporting to be whole account of any single conversation - attempt to plead collection of statements attributed to sixth defendant from various sources. INTERROGATORIES - whether necessary or a 'fishing expedition' by plaintiff - whether plaintiff required to exhaust all opportunities to ascertain terms of oral publication before leave will be granted to interrogate as to publication. Legislation Cited: Civil Procedure Act 2005 Civil Procedure Rules 2005 Cases Cited: Atkinson v Fosbroke (1866) LR 1 QB 628 Dank v Whittaker (No 1) [2013] NSWSC 1062 Russell v Stubbs Ltd (1913) 2 KB 200 Category: Interlocutory applications Parties: Stephen Dank (plaintiff) Cronulla-Sutherland District Rugby League Football Club Ltd (first defendant) Nine Network Australia Pty Ltd (second defendant) Peter Overton (third defendant) Phil Rothfield (fourth defendant) Sarah Harris (fifth defendant) Damien Irvine (sixth defendant) Representation: Counsel: R Rasmussen (plaintiff) P Wass (first and sixth defendants) Second, third, fourth and fifth defendants excused from appearing Solicitors: Cambridge Law (plaintiff) Moray & Agnew (first and sixth defendants) Johnson Winter & Slattery (second, third and fifth defendants) Ashurst Australia (fourth defendant) File Number(s): 2013/092779 Publication restriction: None Judgment 1HER HONOUR: Dr Stephen Dank has commenced a number of proceedings for defamation arising broadly out of allegations that he administered performance-enhancing substances to footballers at Cronulla-Sutherland District Rugby League Football Club. Dr Dank is not a medical doctor but is described in some of the material I have seen this week as a "sports scientist". 2The proceedings before the Court today are brought by Dr Dank against the Club, its former chairman Mr Damien Irvine, the proprietor of Channel Nine and a number of journalists. The present application relates to disputes as to the pleading only as against the Club and Mr Irvine. 3The present claim arises primarily out of a television broadcast on Channel Nine. Before going to the terms of the pleading and the issues raised on the application, it is helpful to set out the chronology of what appear to be the events giving rise to the action. That is so because the pleading is complex and it is important to understand which of a number of publications are and are not sued on. 4At some point before 10 March 2013, Mr Irvine evidently spoke or communicated in some form to the fourth defendant, Mr Phil Rothfield, who is a journalist. It is common ground that, on 10 March 2013, information allegedly provided to Mr Rothfield by Mr Irvine was published in an article in the Daily Telegraph. However, that article is not relied upon as a separate cause of action in the present proceedings and I understood Mr Rasmussen to indicate that it has not been sued on in any other proceeding. 5On the evening of 10 March 2013, a news item was broadcast on Channel Nine which showed Mr Irvine being confronted by journalists as to the contents of the newspaper article. Separately on the same day, the same news item was posted on the Internet. The statement of claim pleads three allegedly defamatory publications arising from those events and arguably seeks to rely on a fourth. 6The first is the publication of whatever it is that Mr Irvine said to Mr Rothfield. An attempt to plead that publication is set out in paragraph 3 of the statement of claim. The second is the television broadcast. That is pleaded in paragraph 5 of the statement of claim. The posting of that broadcast on the Internet is the third publication sued upon and is pleaded in paragraph 7 of the statement of claim. 7Separately, the particulars of publication appended at the conclusion of the statement of claim include the following allegation: When the first and sixth defendants spoke and published the defamatory words or their substance and effect as referred to in paragraph 3 above they knew that the words would likely be republished in the media and the words were so published in the media including on Channel Nine on 10 March 2013 and on other television channels, radio stations and newspapers including "The Sunday Telegraph" of 10 March 2013. 8I will refer to that global allegation as the republication allegation. 9The first and sixth defendants move to have the statement of claim as against them struck out on the basis that it is embarrassing. It is convenient to deal first with two contentions which, as the argument developed, may be disposed of briefly. 10In the case of the second and third matters complained of, that is, the television broadcast and its reproduction on the Internet, the plaintiff pleads that all defendants including the first and sixth defendants "published and/or caused to be published of and concerning the plaintiff" the television broadcast and "caused to be published of and concerning the plaintiff" the Internet publication. 11The intention of the pleading is accordingly to fix the first and sixth defendants with liability as original publishers of the whole of the broadcast on Channel Nine. It may be seen at a glance from viewing the broadcast and the transcript of it annexed as A to the statement of claim that there is a great deal of material in the broadcast apart from the words attributed to the sixth defendant (for which the first defendant is said to be liable). 12In other defamation proceedings commenced by Mr Dank, I have this week heard applications by defendants in a similar position, that is, defendants sued as original publishers of the whole of an article where those defendants had only contributed a small part of the material reproduced in the article and were not proprietors, editors or journalists of the relevant newspaper. I held that the pleadings as against those defendants should be struck out: Dank v Whittaker (No 1) [2013] NSWSC 1062. 13Mr Rasmussen, without conceding the point (which was vigorously opposed in those applications) very properly acknowledged at the outset of the hearing of the argument today that the position of the first and sixth defendants in the present case would be governed by my rulings in those other applications. Accordingly, for the reasons expressed in that judgment, I would accede to the first and sixth defendants' contention in the present application that the plea of publication of the second and third matters complained of by those defendants cannot be sustained. Indeed the position is a fortiori in the present case, where the only fact, matter or circumstance that has been identified in support of the allegation that those defendants are liable as original publishers of the news broadcast is that "the sixth defendant is depicted on the program complained of". 14For the reasons explained in Dank v Whitaker (No 1), in my view the particulars are plainly incapable of sustaining the allegation of liability as an original publisher. 15The second objection can also be dealt with briefly. It relates to the republication allegation. It may be seen from the particulars of republication set out above that it is sought to rely upon republication in the broadcast of the words said by Mr Irvine to Mr Rothfield; republication either of those words or of what was said in the television broadcast by other media outlets and republication in the article in The Sunday Telegraph (which is not sued on) of the words said by Mr Irvine to Mr Rothfield. Mr Rasmussen conceded that the pleading in that form was inadequate and sought leave to replead. 16It remains to deal with the principal objection dealt with in argument today, which relates to the manner in which the oral publication has been pleaded in paragraph 3 of the statement of claim. 17The publication is pleaded as follows: On or about 9 March 2013 the first defendant by itself and by its servant and agent the Chairman of the first defendant (the sixth defendant) and the sixth defendant spoke and published of and concerning the plaintiff certain defamatory words or their substance and effect, to wit: (a) "In 2011 under the supervision of sports scientist Stephen Dank, several Sharks players were injected with TB-500, a banned endurance and muscle repair drug usually given to horses." (b) "Mate, when paid staff fail to report a rogue bloke who was injecting players with equine substances I can't help". (c) "The players and staff were well aware of it. It happened over a few weeks". (d) "There's a massive failing in the system if those boys had something else in bottles". (e) "Some of the Cronulla players have been injected with horse drugs". (f) "Stephen Dank gave players horse drugs". (g) "Four coaching staff members have been sacked and the coach suspended because they did not reveal that Stephen Dank had injected players with drugs used on horses". 18It emerged during argument that the pleading does not purport to be an account of the whole of a single conversation but is rather a collection of statements which the plaintiff attributes to Mr Irvine derived from a number of sources. Specifically, Mr Rasmussen stated that 3(a) is derived from paragraph 8 of annexure A to the statement of claim, which is the transcript of the broadcast. One difficulty is that the broadcast does not purport to quote what was said verbatim. 19Paragraph 3(b) of the statement of claim is derived from paragraph 10 of annexure A, notwithstanding the fact that it is clear enough from the terms of the annexure that those words were described in the broadcast as having been published not orally in a meeting between Mr Irvine and Mr Rothfield but in a tweet. 20Paragraph 3(c) is alleged to have been derived from what is described as a transcript of the full Irvine/Rothfield interview, set out in the article in The Daily Telegraph to which I have referred. It is clear from a comparison of that transcript with 3(c) of the statement of claim that there has been some embellishment, to this extent. The transcript attributes to Mr Irvine the words, "they were well aware of it. It happened over a few weeks", whereas the statement of claim attributes to him the words, "the players and staff were well aware of it. It happened over a few weeks." 21Paragraph 3(d) of the statement of claim is also derived from the transcript but pleads only part of the statement attributed to Mr Irvine in the transcript. 22Paragraph 3(e) is said to be derived from the broadcast. Upon analysis, it must entail a measure of speculation since the broadcast depicts Mr Rothfield attributing words to Mr Irvine but nowhere in the alleged transcript do the words allegedly said by Mr Irvine appear. 23Paragraphs 3(f) and (g) are also said to come from parts of the broadcast. Upon examination, the pleading of those words also necessarily entails an element of speculation as to the words in fact said by Mr Irvine. 24It is plain, and I did not understand Mr Rasmussen to contend otherwise, that the pleading of the words attributed to Mr Irvine does not plead the whole of the words said by him on any single occasion and does not plead the context in which the words were allegedly said, in circumstances where it is clear enough that some of statements were responsive to statements by another person. Mr Rasmussen accepted that the plaintiff is unable to plead the precise words spoken by Mr Irvine to Mr Rothfield, since he was not present at the interview. He submitted that the plaintiff can only glean the words from third parties. 25In my view, the pleading of the oral publication in its present form is embarrassing because it does not provide the whole of any single publication sought to be sued on or the context. It is, in my view, liable to be struck out for that reason. 26The more difficult question is what should happen next? Mr Rasmussen, in the event of the plea being struck out, sought an order pursuant to rule 22.1 of the Uniform Civil Procedure Rules 2005 that the first and sixth defendants answer interrogatories in the form sent to them on 1 August 2013. The notice to answer interrogatories was before the Court. 27Ms Wass, who appears for the first and sixth defendants, responded to that application with a number of contentions. First, it was submitted that the first defendant should not have to answer any interrogatories, since the only words over which it is sued are those purported to have been said by Mr Irvine and he is no longer the chairman of the club. In my view, there is force in the objection on that ground. If any party should answer interrogatories, it should only be the sixth defendant. 28Secondly, Ms Wass objected to the interrogatories on the grounds that they are unnecessary; that they are in the nature of a fishing expedition and that they are confusing so as to mislead. 29Dealing with the last point first, in my view no order should be made for the sixth defendant to answer interrogatories in the terms served. As submitted on his behalf, the form of the interrogatories is dense and confusing and is complicated by the inclusion of the phrases "relating to" and the phrase I have elsewhere described as "the rogue conjunction", namely "and/or". The plaintiff in my view is entitled to no more than leave to administer an interrogatory (if at all) in the terms proposed by Ms Wass, as follows: "Did you say [X] or words to that effect?" and "If so, what were the exact words spoken?" 30Leaving aside the form of the interrogatories, it remains to consider whether interrogation is necessary and whether such interrogatories would be in the nature of a fishing expedition in the present case. 31Rule 22.1(4) provides that an order requiring a party to answer interrogatories is not to be made unless the court is satisfied that the order is necessary at the time it is made. Ms Wass submitted that interrogatories of the kind proposed in the present case should only be allowed where a plaintiff can provide evidence that the defendant has, at a certain place and in the presence of certain persons, made against the plaintiff a slanderous imputation of a definite character. It was submitted that the Court will only assist the plaintiff with such interrogatories who can demonstrate that he has a good cause of action but is unable to find out the precise form in which to frame it, citing Atkinson v Fosbroke (1866) LR 1 QB 628 and Russell v Stubbs Ltd [1913] 2 KB 200. I do not think this is a case in which the answers are sought to enable the plaintiff "to see if he can find a case...of which at present he knows nothing" (cf Russell v Stubbs at 204). 32Ms Wass submitted that the plaintiff's difficulty in pleading the oral publication at this stage derived from problems of his own making because he has been unwilling to make inquiries of anyone, including Mr Rothfield, notwithstanding the fact that the particulars of publication assert that the publication was made to journalists and reporters including Mr Rothfield. Ms Wass further submitted that the problem is of the plaintiff's own making because he has "made a foe" of Mr Rothfield by suing him over the broadcast and its posting on the Internet. In those circumstances, she submitted that it would be premature to order interrogatories at this stage. 33Mr Rasmussen relied on s 56 of the Civil Procedure Act 2005 and the duty of the Court to further the overriding purpose of facilitating the just, quick and cheap resolution of the real issues in the proceedings. He submitted that the plaintiff should not have to exhaust all opportunities, such as by approaching Mr Rothfield, before being allowed to interrogate the sixth defendant. 34I confess I have found it difficult to decide this issue. I acknowledge that authority cautions against requiring a party to answer interrogatories unless that is "necessary". The use of that term in the rules must of course be understood in the context of the Court's obligation to act in accordance with the dictates of justice and the difficulties faced in this litigation: see s 58 of the Civil Procedure Act 2005. Whilst I would accept that the plaintiff could have approached Mr Rothfield with a view to ascertaining his version of events, one can understand that there may be difficulties in taking that course in circumstances where Mr Rothfield is a defendant in the proceedings. Questions may arise as to whether Mr Rothfield would be likely to say anything other than to confirm the accuracy of the supposed transcript of the Irvine/Rothfield interview set out in the article in The Sunday Telegraph of 10 March 2013. That transcript stands as the best record available to the plaintiff of the oral publication sought to be sued on. 35In my view, the plaintiff can demonstrate by reference to that document that he has a good cause of action but is unable to find out the precise form in which to frame it. The transcript establishes the making of a slanderous imputation of a particular character, but a question has arisen as to its accuracy particularly given that part of it purports to be words spoken by Mr Irvine whereas the television broadcast has characterised those words as having been published not orally but in a tweet. 36The appropriate course in my view is to afford the plaintiff an opportunity to draft a further form of interrogatory which he would seek to have answered. I would indicate that, if the sixth defendant objects to the further interrogatories proposed, I would not grant leave to administer any interrogatory that went further than to pose a question in the terms suggested as being appropriate by Ms Wass in her written submissions at paragraph 6. Whether that question should be posed by reference to the transcript of the interview from The Sunday Telegraph or some other material is perhaps a matter upon which the parties could agree. But absent agreement, the transcript of the interview in The Sunday Telegraph appears to me to be the appropriate point of reference for the plaintiff's proposed claim against Mr Irvine. ORDERS: (1)that paragraphs 3, 5 and 7 and the particulars of republication be struck out as against the first and sixth defendants with leave to replead. (2)that the plaintiff serve any further notice to the sixth defendant to answer interrogatories within two weeks. (3)that, subject to any further objection, the sixth defendant answer the interrogatories within a further two weeks. (4)that the plaintiff serve any proposed amended statement of claim within a further two weeks. (5)that the proceedings be stood over to 8 October 2013 in the next defamation list. ********** 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: 14 August 2013