Dank v Cronulla-Sutherland District Rugby League Football Club Ltd

Judgment 1HER HONOUR: This is an action for defamation commenced by Dr Stephen Dank. The proceedings are one of a series of proceedings commenced by him in respect of articles concerning his involvement with football players at the Cronulla-Sutherland District Rugby League Football Club. 2The first and sixth defendants in the proceedings are the Club and its former chairman, Mr Irvine. By Notice of Motion dated 30 September 2013, those defendants seek an order that the proceedings as against them be dismissed pursuant to s 67 of the Civil Procedure Act 2005 and, alternatively, pursuant to rule 12.7 of the Uniform Civil Procedure Rules. 3The circumstances in which that application is brought should be explained. The original Statement of Claim was the subject of objections by the first and sixth defendants (set out in a Notice of Objection dated 27 June 2013). The correspondence between the parties relating to those objections is set out in the affidavit of Mr Baron Alder sworn 2 August 2013. In that correspondence, briefly summarised, the first defendant took objection to the manner in which the first matter complained of had been pleaded. That was an oral publication consisting of remarks allegedly made by Mr Irvine to a journalist, or perhaps to a group of journalists. 4The objection was based on the fact that it was plain from the pleading that the words attributed to Mr Irvine did not consist of a single, continuous publication but were, rather, a collection of disparate remarks published possibly on different occasions and certainly in different forms. 5The plaintiff's response was to complain that the exact words could not be pleaded, since only Mr Irvine knew what had been said. It was asserted in correspondence that, if Mr Irvine would not tell the plaintiff his exact words, it would be necessary for the plaintiff to administer an interrogatory to that end. 6The defendant responded by inviting the plaintiff to submit a form of interrogatory and took care, at one point in the correspondence, to correct what appeared to be a misapprehension on the part of the plaintiff, that interrogation would necessarily be opposed. More than one request was made for the plaintiff to submit his proposed form of interrogatory. 7Ultimately those disputes came before me and were determined in my judgment published on 8 August 2013: see Dank v Cronulla-Sutherland District Rugby League Football Club Ltd [2013] NSWSC 1101. I struck out the pleadings as against the first and sixth defendants with leave to replead. I also directed the plaintiff to serve within two weeks any notice to Mr Irvine to answer interrogatories. The order as to interrogatories was made over the objection of the first and sixth defendants. They had submitted that any interrogation as to the oral publication was in the nature of a fishing expedition. I rejected that submission. I thought there was, in the material before me, a sufficient basis for the plaintiff to apprehend that Mr Irvine had said something defamatory about him on 9 March 2013 to a journalist. I did, however, accede to Ms Wass's submission that, if the plaintiff were permitted to interrogate, it should be in the terms suggested in authorities relied upon by Ms Wass to the effect: did you say X or words to that effect and, if so, what were the exact words spoken? 8Taking advantage of that order the plaintiff could have asked Mr Irvine, by reference to each of the words attributed to him in the many places in which he has been quoted on these issues, whether words to that effect were said and, if so, what were the exact words. 9As is plainly implicit in my having made the order, I was of the view that the interrogation of the sixth defendant in those terms would produce, for the benefit of the plaintiff, an answer which would enable him to plead the first matter complained of (the oral statement allegedly made to the journalist on 9 March 2013) in proper form. 10After the determination of those issues in that judgment, the litigious path took a bizarre twist. The plaintiff, or at least those representing him, saw no utility in interrogating the sixth defendant in the terms allowed in my judgment. The protestation that they could not plead the first matter complained of without interrogating Mr Irvine fell away and an amended Statement of Claim was served on 4 October 2013 in which I would accept, as submitted by Ms Wass this week, the pleading of the first matter complained of is, if anything, worse than in the original Statement of Claim. 11So much was, in effect, conceded by Mr Evatt on behalf of the plaintiff when the matter came back before me on 10 October 2013 to hear an application for costs in respect of the first round (see Dank v Cronulla-Sutherland District Rugby League Football Club Ltd (No 2) [2013] NSWSC 1531). At page 11 of the transcript of that application, I said to Mr Evatt that I could not see, at a glance, that the amended pleading cured the defects of the first because, "the point was it was not a single publication and it still doesn't look as though it is." Mr Evatt responded, "Has your Honour seen the new Statement of Claim? I think your Honour is pretty right." 12Extraordinarily, notwithstanding that concession, and after the first and sixth defendants had been put to the trouble of serving a second round of objections (that is, a Notice of Objection to the Amended Statement of Claim), the plaintiff responded only by indicating that he disputed each of the points raised. It was accordingly necessary to hear a further round of argument this week. 13In that context I should note that many of the points raised in the defendants' most recent Notice of Objection dated 18 November 2013 are in substantially the same terms and raise substantially the same points as were raised in the first round. 14The Amended Statement of Claim thus repeats, in my view, the vices identified in the original Statement of Claim as to the pleading of the first matter complained of and, as I have already indicated, in some respects makes the position worse. What was previously pleaded as a list of disparate oral statements is now supplemented by particulars which make it abundantly clear that those are not the words alleged to have been said in any single, continuous oral publication. They simply cannot be relied upon as a single matter complained of and there is no basis for contending that they can. 15The particulars in respect of some of the statements make plain that the device adopted by the pleader has been to work backwards from second-hand and sometimes third-hand hearsay statements attributed to Mr Irvine in the media. The only words directly attributed to him do not name the plaintiff. No particulars are provided as to the basis on which those to whom those words were published understood them to refer to the plaintiff. 16It may be inferred, perhaps, that the context was such that Mr Rothfield (to whom the words were published) would have understood them to refer to the plaintiff. But for reasons I simply cannot understand, those advising the plaintiff have not taken the course of pleading those matters in accordance with well-established principles. I am forced to the determination that the present pleading of the first matter complained of remains in embarrassing form and must be struck out. 17The second matter complained of in paragraph 5 of the amended Statement of Claim and the pleading of the same matter as published on the Internet on paragraph 7 of the amended Statement of Claim also raises issues which echo those determined in my earlier judgment. The defendants complained that the pleadings sought to attribute to them liability as an original publisher of the whole of a television broadcast (together with the proprietors and producers of the broadcast). A similar point had been determined by me during the same week in another action commenced by Dr Dank: Dank v Whittaker (No 1) [2013] NSWSC 1062. In that case, I held, at [26]: In 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. 18In Dank v Whittaker (No 1), I acceded to a submission that there was no articulated basis for making such a plea. In my first judgment in Dank v Cronulla-Sutherland District Rugby League Football Club Ltd, it was acknowledged that the pleading of the second matter complained of was governed by the same ruling (see [13] of the judgment). In the Amended Statement of Claim, the only response the plaintiff has made to that determination is to seek to attribute only half of the broadcast, or a portion of it, to the first and sixth defendants. 19I think it is fair to say that, in seeking to defend the pleading in that form, Mr Evatt sought to revisit my decision in Dank v Whittaker (No 1). It was an interlocutory judgment and there is not necessarily any vice in doing so. 20The decision invoked the principles stated in Webb v Bloch [1928] HCA 50; (1928) 41 CLR 331 and Thiess v TCN Channel Nine Pty Ltd (No 5) [1992] 1 Qd R 156. Mr Evatt submitted, in effect, that I had misunderstood the effect of the decision in Thiess. He stated that the test established by that decision is that stated at page 195, lines 5 to 25 of the judgment as follows: 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 as 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 hat 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. 21Mr Evatt submitted that the import of that test is that it is for the jury to determine what role was played in a final broadcast by a person who only participated in the broadcast to the extent of providing information or quotable quotes, and that it is for the jury to determine whether such a person is responsible for the imputations conveyed, or some of them. 22With great respect to Mr Evatt, I think that submission puts a gloss on the principles stated in Thiess. Certainly the Court was concerned with the question as to what had been the task for the jury in that case, but that was on the premise that there was a case to go to the jury. The first step always is to have a cause of action pleaded with sufficient facts, matters and circumstances to establish a basis for a case to go to a jury. That was what was absent in the present case. I adhere to my view in the earlier judgments that, absent any particulars of the kind there referred to, the pleading is liable to be struck out. In other words, it is not open to a plaintiff in a defamation action to sue every person to whom quotes are attributed in a television broadcast in the hope that, by the end of the interlocutory processes, it will have been established that each such person played a sufficient role in the production of the broadcast to attract liability in the way in which Mr Woodham was alleged to have attracted liability in Thiess. 23In the absence of any such particulars or indeed anything beyond the fact that Mr Irvine was the author of one of the statements quoted in the broadcast (albeit a central statement forming part of the broadcast), I do not think the pleading in paragraphs 5 and 7 of the amended Statement of Claim discloses any reasonable cause of action against Mr Irvine as an original publisher of the whole of the broadcast. Those paragraphs are in my view liable to be struck out. 24Ms Wass submitted that, in the circumstances of this case, there should be no leave to replead. She noted that two experienced counsel specialised in the work of this list have had "two goes" at pleading the cause against Mr Irvine and against the Club as vicariously liable for him. She noted that the plaintiff had been granted leave to interrogate and had not taken the opportunity afforded by that leave. 25Ms Wass also noted that the plaintiff had had the benefit of the rulings in my earlier judgment, together with the further exchange on 10 October 2013 to which I have referred, but had not attempted to engage with the matters then raised. In all the circumstances, Ms Wass submitted that the time had come for the action as against the first and sixth defendants to be dismissed. 26I accept those submissions. In my view the plaintiff's decision, or that of those representing him, not to take advantage of the leave granted to interrogate, which it has to be said is an unusual advantage in the context of cases of this kind, was an extraordinary decision and one which is capable of being understood to display a contumelious disregard for the processes of this list. It is a decision which, as I have said, I simply cannot comprehend, but which I think comes with a consequence. 27The simple fact is that the whole of the pleading is infected with the difficulty of the plaintiff's inability to attribute any precise words to the sixth defendant in a single, continuous publication. That inability infects the whole of the pleading and renders it embarrassing. In my view, there should be no further opportunity to bring the pleading into proper form. 28In all the circumstances the appropriate order in my view is to dismiss the proceedings as against the first and sixth defendants in exercise of the Court's power under Rule 12.7. That Rule refers, in terms, to a failure on the part of a plaintiff to prosecute an action with "due despatch". That expression is amply able in my view to comprehend a circumstance where the failure to bring pleadings into good order derives from a combination of decisions, here, the failure to take advantage of interlocutory procedures made available combined with the decision simply to ignore or to regard with disdain points properly taken in carefully drawn correspondence by the first and sixth defendants. 29A further issue that was to be determined in this judgment following argument on 10 October and 3 December 2013 related to the costs of the proceedings. For the reasons I have given, that issue has been overtaken by events. The proper order in my view is that the plaintiff should pay the costs of the first and sixth defendants, such costs to be assessed on an indemnity basis. That decision follows from the matters to which I have referred. 30A separate issue concerns the claim against the fourth defendant, Mr Phil Rothfield. Mr Rothfield is alleged in the Amended Statement of Claim to be an employee of what I might call the Nine Network related defendants, that is, Nine Network itself and three journalists employed in that organisation. It was conceded on behalf of the plaintiff during argument that Mr Rothfield is not in fact an employee of Nine Network and accordingly the contentions brought against him on that basis in the Amended Statement of Claim fall away. What is left standing is an allegation in paragraph 6 and again in paragraph 8A of the Amended Statement of Claim that he along with the Nine Network defendants published the television broadcast to which I have referred, that is, that he is an original publisher of the whole of the broadcast. 31Consistently with my decision in Dank v Whittaker (No 1), there being no particulars as to any basis on which Mr Rothfield should be held liable as an original publisher of the whole of the broadcast, and absent his being a journalist employed by the Nine Network, I would have struck out that allegation against him with leave to replead a case of the kind referred to in Dank v Whittaker (No 1). 32However, Mr Rothfield faced an additional hurdle, which is that his application on the same basis came before Rothman J on 1 July 2013 in respect of the original Statement of Claim. Rothman J, in reasons published that date, indicated that he did not read the pleading in that way. That is, his Honour did not read the pleading as alleging that Mr Rothfield was liable for the whole of the broadcast. On that basis, Mr Evatt submitted that there could be no complaint about the pleading against Mr Rothfield. However, it is now tolerably clear from the Amended Statement of Claim, taken in combination with some particulars provided of that pleading, that that is precisely the basis on which the claim is sought to be brought as against Mr Rothfield. 33Mr Evatt's response when confronted with that proposition in argument was to say "well, we'll withdraw the particulars and confine the case to what was before Rothman J." It should go without saying that that is an entirely unacceptable approach to the determination of a pleading point properly raised. 34Based on the Amended Statement of Claim, taken together with the particulars given by the plaintiff (which make it clear that it is indeed sought to make Mr Rothfield liable as an original publisher of the whole of the broadcast, contrary to the position understood by Rothman J), the pleading as against Mr Rothfield should be struck out with leave to replead if particulars of the kind referred to in my earlier judgment can be provided. 35I order that the plaintiff pay the fourth defendant's costs of that argument.