Supreme Court New South Wales Medium Neutral Citation: Dank v Carroll Dank v Nationwide News Pty Limited [2013] NSWSC 1122 Hearing dates: 6 August 2013 Decision date: 16 August 2013 Before: McCallum J Decision: In proceedings 487, paragraph 4 of the statement of claim struck out with leave to replead. In proceedings 593, paragraph 3 of the statement of claim (where first appearing) struck out with leave to replead. Catchwords: DEFAMATION - imputations - whether capable of arising Cases Cited: Dank v Whittaker (No 1) [2013] NSWSC 1062 Dank v Cronulla-Sutherland District Rugby League Football Club [2013] NSWSC 1101 Dank v Whittaker (No 2) [2013] NSWSC 1064 Category: Interlocutory applications Parties: 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) Representation: Counsel: 2013/170487: R Rasmussen (plaintiff) T Blackburn SC, L Brown (first and second defendant) No appearance for third defendant 2013/170493: R Rasmussen (plaintiff) T Blackburn SC, L Brown (defendant) Solicitors: 2013/170487: Cambridge Law (plaintiff) Ashurst Australia (first and second defendant) 2013/170493: Cambridge Law (plaintiff) Ashurst Australia (defendant) File Number(s): 2013/170487 2013/170493 Publication restriction: None Judgment 1HER HONOUR: Dr Stephen Dank has instituted multiple proceedings for defamation arising out of widespread reports in the media suggesting that he administered performance-enhancing drugs to footballers at Cronulla-Sutherland District Rugby League Football Club. Objections to the form of the pleadings have been taken in a number of matters: see Dank v Whittaker (No 1) [2013] NSWSC 1062; Dank v Cronulla-Sutherland District Rugby League Football Club [2013] NSWSC 1101 and Dank v Whittaker (No 2) [2013] NSWSC 1064. 2This judgment determines objections by the defendants in two proceedings arising out of the publication of an article in The Sunday Telegraph on 10 March 2013. 3The opening paragraphs of the article reveal that it came in response to earlier reports that a medical doctor employed by the club, Dr David Givney, had been sacked. The article reported that the doctor's daughter, Ms Rachel Givney, had posted "an emphatic defence of her father's reputation" on Facebook. The article consists almost entirely of quotes from the material posted by Ms Givney. Contrary to the assertion at the outset of the article that Dr Givney had been sacked from the Club, Ms Givney stated that he had resigned in protest after the club's training manager, Trent Elkin had employed "a 'sports scientist' named Stephen Danks (sic)". The article quotes Ms Givney as saying: Shortly after, the doc discovered mysterious heavy bruising on some of his players. He discovered that Danks had been injecting them with warfarin, a blood thinning medication, in an attempt to increase oxygen flow. Concerned about the welfare of his beloved players, the doc confronted Danks and Elkin about what they were doing. When they refused to tell him, Dr Givney resigned...in protest. 4The article was published in almost identical terms in the print edition of the newspaper and in its online edition, the only difference being different headlines. Dr Danks has commenced separate proceedings for each version. In the first set of proceedings, Dr Dank sues the editor of The Sunday Telegraph, the journalist under whose by-line the article appeared (Phil Rothfield) and Ms Givney. At the time of the hearing before me, Ms Givney had not been served with the originating process and accordingly did not appear. In the second proceedings, Dr Dank sues the proprietor of the newspaper, Nationwide News Pty Ltd. The defendants allege that the commencement of separate proceedings against different defendants in respect of the same article amounts to an abuse of process and have filed a notice of motion seeking to have the proceedings consolidated. That motion has not yet been heard. 5The pleading of the defamation is identical in each proceeding. The plaintiff relies on three defamatory imputations. The defendants object to all of the imputations on the grounds of both form and capacity. 6The imputations are alleged to arise from the matter complained of in its natural and ordinary meaning and, alternatively, as true innuendoes conveyed with the aid of extrinsic facts. The defendants acknowledged that it is not appropriate to determine any capacity objection in respect of the true innuendoes but sought to have their objections as to form determined in respect of all imputations. 7The first imputation relied upon by the plaintiff is: (a) The plaintiff caused Cronulla players to be at risk of sustaining fatal injuries. 8The defendants object to that imputation on the basis that it is not reasonably capable of being conveyed by the matter complained of. 9There is no reference whatsoever in the article to any injury which might be considered fatal. The only injury referred to is the "mysterious heavy bruising" described by Ms Givney in the passage set out above. Mr Rasmussen, who appeared for the plaintiff, submitted that the ordinary reasonable reader, reading between the lines, would infer from the concerns expressed by Dr Givney as to the players' welfare that the warfarin injections were putting the players at risk. He noted that the article describes warfarin as "a blood thinning medication". 10Mr Rasmussen further submitted that the ordinary reasonable reader knows that rugby league played at the national level is a physically damaging sport and that players who had been given a blood-thinning agent would be at risk of serious injury such as internal bleeding. He said "heavy internal bleeding is fatal and the ordinary reasonable reader would know this". 11In my view, imputation (a) plainly overstretches any reasonable reading of the article. There is simply nothing in the language or the tone of the article to suggest to the ordinary reasonable reader that the footballers were exposed to fatal injuries. Imputation (a) will not go to the jury. 12Imputation (b) is: The plaintiff oversaw the administration of the medication warfarin on Cronulla football players which caused heavy bruising and endangered their health. 13The defendants submitted that the imputation is not reasonably capable of being conveyed. It was submitted that there is nothing in the matter complained of to suggest that the administration of warfarin endangered the players' health. It was further submitted that, to the extent that the words "endangered their health" in the imputation refer to heavy bruising, they are rhetorical and do not add to the sting of the imputation. 14Mr Rasmussen responded to the second point by proposing to delete not the words "endangered their health" but the words "caused heavy bruising", so that the imputation would read: The plaintiff oversaw the administration of the medication warfarin on Cronulla football players which endangered their health. 15Mr Blackburn, who appears for the defendants, submitted that the imputation is nonetheless incapable of arising, since there is nothing in the article to suggest risk to health other than causing bruising. He maintained the capacity objection on that basis. 16In my view, the matter complained of is reasonably capable of carrying the imputation as amended during argument. The article reports that Dr Givney resigned in protest after Dank and Elkin refused to tell him what they were doing. It reports that he was "concerned about the welfare of his beloved players". I am not persuaded that a jury could not reasonably understand the article to mean that the administration of warfarin endangered the footballers' health. The defendants' objection to that imputation is rejected. 17The plaintiff initially sought to rely upon a third imputation as follows: The plaintiff oversaw the administration of a physically dangerous medication to Cronulla football players. 18However, at the hearing of the application, the plaintiff indicated that it was proposed to replace that imputation with the following imputation: (c) the plaintiff injected Cronulla players with warfarin without medical approval thereby endangering their welfare. 19Mr Blackburn objected that the new imputation (c) is ambiguous in that it is not clear whether the reference to an injection of warfarin "without medical approval" is intended to assert that the plaintiff acted unlawfully, negligently or in some other wrong way. Mr Rasmussen proposed a number of further reformulations during argument, ultimately pressing the following form: The plaintiff acted dangerously by injecting Cronulla players with warfarin thereby endangering their welfare. 20The defendants objected that the ultimate form of the imputation does not differ from imputation (b). There is probably some force in that complaint. The difficulty is that it is not clear what level of culpability is meant by the imputation that the plaintiff oversaw the administration of warfarin. I will hear the plaintiff as to whether he should have to elect between those two imputations. 21Since none of the existing imputations has survived intact, the appropriate orders are: (1)In proceedings 487, that paragraph 4 of the statement of claim be struck out with leave to replead; (2)In proceedings 593, that paragraph 3 of the statement of claim (where first appearing) be struck out with leave to replead. ********** 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: 16 August 2013