Dank v Nine Network Australia Pty Limited [2014] NSWSC 1728

Supreme Court New South Wales

Medium Neutral Citation: Dank v Nine Network Australia Pty Limited [2014] NSWSC 1728 Hearing dates: 7 November 2014 Decision date: 07 November 2014 Before: McCallum J Decision: Dr Ijaz Khan's application to set aside a subpoena issued to him is refused; Dr Khan is to pay the defendants' costs of the application. Catchwords: PROCEDURE - civil - application to set aside subpoena - whether the subpoena amounts to fishing - whether particulars of proof may be relied upon in support of the imputations - whether the subpoena is necessary for a truth defence - whether the documents sought go directly to the substantive issues in the proceedings - whether the subpoena is oppressive Cases Cited: Fried v National Australia Bank [2002] FCA 911 Category: Interlocutory applications Parties: Stephen Dank (plaintiff) Dr I Khan (applicant) Nine Network Australia Pty Ltd (defendant) Representation: Counsel: GM Gregg (applicant Dr I Khan) M Richardson (defendant) Solicitors: Kalantzis Lawyers (plaintiff) Johnson Winter Slattery (defendant) File Number(s): 2013/92772 Publication restriction: None

Judgment 1HER HONOUR: These are proceedings for defamation commenced by Mr Stephen Dank against Nine Network Australia Pty Ltd arising out of the broadcast of a news item on Channel 9 television. 2Before the Court is an application made by notice of motion filed 29 September 2014 to set aside a subpoena issued at the request of the defendants in the proceedings. This judgment determines that application. 3The applicant is Dr Ijaz Khan, who is not a party to the proceedings. Before turning to the terms of the subpoena served on Dr Khan, it is appropriate to outline the issues in the proceedings. 4The imputations specified by Mr Dank in his amended statement of claim include imputations that he offered an unauthorised substance to Josh Perry, that he was unfit to be a Manly sports scientist because he offered an unauthorised substance to Josh Perry, and that he acted improperly. 5The defendants have, among other defences, pleaded the defence of truth to each of those imputations. The particulars in support of that defence include allegations relating not to Josh Perry but to a different rugby league player, Mr Sandor Earl, who was playing for Penrith NRL Club, in particular. 6The particulars specified in the defence allege that Mr Dank provided or authorised the provision of the peptide CJC-1295 to Mr Earl, thereby endangering his career and that at Mr Dank's request, Mr Earl transported a quantity of peptides to the premises of Dr Khan in Cabramatta. 7A further allegation relied upon by way of particulars of justification notified to Mr Dank in correspondence is that Mr Dank, in the company of Mr Earl, attended upon Dr Khan at Dr Khan's medical premises in Cabramatta and that Mr Dank provided his authority or direction to Dr Khan to administer the peptide to Mr Earl. 8It is further alleged that Mr Earl continued to attend upon Dr Khan for a number of subsequent appointments at which Dr Khan continued to administer the said peptide to Mr Earl pursuant to the authority or direction of Mr Dank. 9The connection with Dr Khan which prompted the issue of the subpoena is that Mr Earl has sued Dr Khan in proceedings in the District Court. In those proceedings Mr Earl alleges: 34. The substance which the defendant injected into the plaintiff had been brought to the initial consultation by a person known to the plaintiff and the defendant, Stephen Dank. 35. On a number of occasions after the initial consultation, the plaintiff attended upon and was injected by the defendant with a substance which the defendant advised the plaintiff was CJC-1295. Particulars The plaintiff does not know the exact number or exact dates of these attendances. The plaintiff estimates he attended upon the defendant about a dozen times from the initial consultation by the end of 2007 and that on each of these occasions, he was injected by the defendant with a substance which the defendant advised the plaintiff was CJC-1295. Some of these attendances occurred at medical centres in Wetherill Park and Bankstown. The defendant gave this advice orally. 36. On or about 12 September 2011: a.the defendant said to the plaintiff that he was nearly out of CJC-1295; b.the defendant asked the plaintiff to arrange for Stephen Dank to deliver more CJC-1295 to him; c.following that exchange, the plaintiff collected from Stephen Dank at a clinic in Mascot a vial which he said contained CJC-1295; d.the plaintiff delivered that vial to the defendant at the premises; and e.the defendant injected some of the contents of that vial into the plaintiff. Particulars The defendant said to the plaintiff the matters in a. and b. in the premises. 10To those allegations Dr Khan has pleaded his defence as follows: 34. In response to paragraph 34 of the statement of claim the defendant says that the plaintiff brought the substance that the defendant injected into the plaintiff, to the first consultation, although the plaintiff and Mr Dank confirmed it had been supplied to the plaintiff by Mr Dank. 35. The defendant admits he consulted with the plaintiff on further occasions and gave further injections of CJC-1295, does not admit the advice alleged, denies any consultations with the plaintiff occurred in 2007 or at Bankstown, and otherwise does not admit paragraph 35 of the statement of claim. 36. The defendant does not admit the date or location (Cabramatta), does not admit subparagraphs (b), (c) and (d) but otherwise admits paragraphs 36 of the statement of claim. 11It appears from those pleadings that it is not in dispute in the Dr Khan proceedings that Mr Dank attended Mr Earl's first consultation with Dr Khan, that the substance (being the peptide referred to in these proceedings) was brought to that consultation and that Dr Khan injected Mr Earl with it on several occasions. 12The subpoena issued by the defendants to Dr Khan seeks the following documents: "1. One copy of all documents referring to and/or evidencing the supply to and/or obtaining by you of the substance CJC-1295 for the purpose of administering the substance to Sandor Earl during the period 1 July 2011 to 30 June 2012, or any part thereof, including, but not limited to, any file notes, receipts, invoices, certificates, memoranda, statements, reports, minutes of meetings, authorisations by any medical practitioners and/or coaches and any other documents. 2. One copy of all documents referring to and/or evidencing the administration by you of the substance CJC-1295 to Sandor Earl during the period 1 July 2011 to 30 June 2012 including, but not limited to, any file notes, receipts, invoices, certificates, memoranda, statements, reports, minutes of meetings, authorisations by any medical practitioners and/or coaches, emails, text messages and any other documents. 3. One copy of all documents referring to and/or evidencing any NSW District Court proceedings brought against you by Sandor Earl referring to any claim and/or allegation that you had administered the substance CJC-1295 to Mr Earl including, but not limited to, pleadings, particulars, correspondence, insurance claim forms, statements, expert reports and any other documents." 13The application to have the subpoena set aside is based on the contention that the subpoena amounts to fishing, in the sense in which that term is understood in the context of this area of jurisprudence, that it is oppressive, and a submission based on the decision of the Federal Court in Fried v National Australia Bank [2002] FCA 911. 14As to the contention that the subpoena amounts to fishing, I am not persuaded that it does. As already noted, in the District Court proceedings it appears that Dr Khan admits that Mr Dank attended with Mr Earl and that Mr Earl was injected with a peptide. 15An aspect of the defendants' case in these proceedings is that the particulars of proof referring to those events may be relied upon in support of the imputations referring to the offering of unauthorised substances to Josh Perry, a rugby league player at a different club. That argument may be ambitious, but I accept, as submitted by Mr Richardson, that it is arguable. 16Separately, however, the particulars are, in my view, plainly capable of being relied upon in support of the defence of justification, in answer to imputation (e), which is that the plaintiff acted improperly. 17Assuming that the truth defence is arguable in the manner contended for by Mr Richardson, I am satisfied that it is on the cards that if Dr Khan holds documents relevant to those issues there is a basis for compelling their production in these proceedings. 18As to the application of Fried's case, Mr Gregg relied in particular on the judgment given by Wineberg J from paragraphs 25 to 29 and especially paragraph [29] where his Honour said: "It is not appropriate, in my view, for a court to permit a subpoena to stand which does little more than trawl for documents which may be used to impugn the credit of a particular witness. This is particularly so when the documents sought have nothing to do with any of the issues in dispute in the proceeding. The court must be alert to ensure that any subpoena which is issued has a legitimate forensic purpose. That purpose must be identifiable, and likely to facilitate the conduct of the proceeding, not merely to oppress a party or witness." 19However, having analysed the argument put by Mr Richardson by reference to the truth defence, which I have already referred to, it seems to me that the subpoena seeks documents going beyond merely an exercise in trawling to impugn the witness' credit. 20On the strength of Mr Richardson's submissions, I am satisfied that the documents sought go directly to the substantive issues in the proceedings; namely, whether Mr Dank acted improperly and whether he offered an unauthorised substance to rugby league players. 21It remains to consider the argument that the subpoena is oppressive. Two propositions were put by Mr Gregg, who appears for Dr Khan in support of that contention. 22The first was based on the wording of the subpoena itself, with particular focus on paragraph 3. Those instructing Mr Gregg understood paragraph 3 in a very broad sense as seeking all documents in the litigation. The basis for that understanding was that the words "referring to any claim or allegation that you had administered the substance CJC-1295 to Mr Earl" to describe the litigation rather than the documents sought. 23It was clarified in correspondence on behalf of the defendants in these proceedings that the paragraph was intended to be understood in the narrower sense of seeking only documents referring to or evidencing the claim in the District Court, confined to such documents that referred to the allegation of administering the peptide. 24In my view, the sense in which the defendants intended the paragraph to be understood is clear from its terms and I do not accept that the subpoena is oppressive on that account. 25Separately, Mr Gregg read an affidavit sworn by his instructing solicitor in which she deposed to the fact that she has 12 lever arch folders relating to the proceedings in the District Court. I do not think the task of going through those folders is unduly oppressive, but I note in that context that the defendant accepts, and will be held to, its liability to meet the reasonable expenses of Dr Khan undertaking that task, presumably with the assistance of his solicitor. 26For those reasons, the application to set aside the subpoena is refused. 27I have, after determining Dr Khan's application to set aside a subpoena issued to him, heard the parties further as to costs. 28Mr Gregg notes that Dr Khan endeavoured, in an exchange of correspondence, to negotiate a resolution of the subpoena and that of course is commendable. 29However, it seems to me, having regard to the basis on which the application has been rejected, that there is no warrant for departing from the usual order that costs follow the event and, accordingly, I order Dr Khan to pay the defendants' costs of the application.