Stephen Dank v Cronulla-Sutherland District Rugby League Football Club Ltd [2013] NSWSC 2054

Supreme Court New South Wales

Medium Neutral Citation: Stephen Dank v Cronulla-Sutherland District Rugby League Football Club Ltd [2013] NSWSC 2054 Hearing dates: 1 July 2013 Decision date: 01 July 2013 Before: Rothman J Decision: (1)Motion be dismissed; (2)The fourth defendant to pay the plaintiff's costs of and incidental to the motion. Catchwords: DEFAMATION - publication - statements by fourth defendant Cases Cited: Palace Films Pty Ltd v Fairfax Media Publications Pty Ltd [2010] NSWSC 415 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: C. Evatt/with R. Rasmussen (Plaintiff) No appearance (First Defendant) No appearance (Second Defendant) No appearance (Third Defendant) D.L Brown (Fourth Defendant) No appearance (Fifht Defendant) No appearance (Sixth Defendant) Solicitors: File Number(s): 2013/92779 Publication restriction: None

EX TEMPORE Judgment 1HIS HONOUR: In this matter the fourth defendant applies by motion, notice of which was given on or before 15 May 2013, for orders striking out the statement of claim insofar as it relates to the fourth defendant or, it seems as an alternative, parts of the statement of claim insofar as those parts relate to the fourth defendant. 2The publication about which complaint is made is a publication of Nine Network Pty Limited, published on its news programme at or about 6pm on 10 March 2013. The news story related to allegations relating to the provision or administration of unapproved substances to sportspersons. 3The allegation relates to conduct of Mr Dank. It is said in paragraph 5 of the statement of claim that, inter alia, the fourth defendant published, of or concerning the plaintiff, certain defamatory material set out in annexure A. Particulars are then given of the natural and ordinary meaning conveyed that are said to be defamatory imputations and they are set out in subparagraphs 6(a) through to 6(f). 4Complaint is made because it is said, first, that the allegation suggests that the fourth defendant published the whole of the publication that was the news item. I do not read paragraph 5 in that way. I read paragraph 5 to mean that the fourth defendant published certain defamatory material that is set out in annexure A and that material published by the fourth defendant contains the allegations contained in paragraph 6(a) to 6(f) as earlier stated. 5Secondly, it is said that the allegations and statement of claim cause prejudice, embarrassment or delay and are otherwise an abuse of the process. Authority is relied upon. I accept that liability as a principal for publication depends upon the participation in the original publication and the person who originally published would not ordinarily be liable for a republication. 6The fourth defendant relies upon the fact that the news item is a republication of material earlier given. I do not see the publication, nor the allegation in the Statement of Claim, in that way. 7The fourth defendant is sued for the material published during the course of the news programme, not for the publication made initially in The Daily Telegraph to which the news programme refers. 8I accept, as put by her Honour McCallum J in Palace Films Pty Ltd v Fairfax Media Publications Pty Ltd [2010] NSWSC 415, at [26] that: "...confusion may be eliminated if a pleading is subjected to the discipline of articulating: (a) each communication of defamatory matter (that is, each publication) sued on as a separate cause of action; (b) as to each such cause of action, and as to each defendant to that cause of action, a statement of the facts, matters and circumstances on the basis of which it is contended that he or she published the defamatory matter complained of (where that is not otherwise obvious); (c) as to any republication sued on as a separate cause of action, a separate paragraph alleging that the original publication was republished and pleading the words of the alleged republication in terms (Sims v Wran at 320D; Toomey at 182C); (d) as to each defendant to each separate cause of action for republication, the facts, matters and circumstances on the basis of which it is contended that he or she is liable for the republication (in accordance with the principles stated in Speight v Gosnay or otherwise in accordance with the principles as to who is a publisher); (e)any republication relied upon only as damage flowing from the original publication, with an appropriate pleading of causation (Habib at [125]) together with a statement of the facts, matters and circumstances on the basis of which it is contended that the original publication caused the republication, where appropriate." 9It seems to me that each communication of defamatory material in this case has been sued as a separate cause of action. Indeed, in a somewhat bizarre twist, it seems that the fourth defendant wants different defamatory material to be sued on in the same set of proceedings. 10Further, I accept that, as to each cause of action, and as to each defendant, a statement of facts, matters and circumstances on the basis of which it is contended that the applicant published the defamatory material has been set out. To the extent that further particulars are required, I accept that the letter from Cambridge Law of 20 June 2013, which forms part of exhibit 1 on the motion, sets out those particulars. 11This is not a republication. This is not a situation where the publication in The Daily Telegraph has been republished by Channel 9 News. On the contrary, this is in addition to, and a new publication to, that which was contained in The Daily Telegraph. 12While it is true that all of the publication, that is the whole of the news programme, is not the publication of the fourth defendant, it is at least arguable that that which is alleged to be defamatory, that is the imputation which is alleged to be defamatory, arises from that which is alleged to be the statements of the fourth defendant including statements provided to Channel 9 News and published by them in that course of conduct. I mean by that statements other than those that were published in the newspaper article, which is the subject of separate proceedings. For all of those reasons I dismiss the motion. The fourth defendant will pay the plaintiff's costs of and incidental to the motion.