Liability for joint publication of the television broadcast - grounds 3-5, 7
127The substance of the challenge to her Honour's decision on grounds 4-5 is as to whether her Honour applied the wrong test when assessing whether the pleading disclosed a reasonably arguable case that the Irvine respondents and Mr Rothfield were joint publishers of the television broadcast.
128The complaint in ground 7, properly understood, is as to the fact that her Honour did not reach the same conclusion in relation to the application by Mr Rothfield. I say "properly understood" because ground 7 in terms suggests that Rothman J ruled that Nine Network was a joint publisher of the television programme in question. His Honour, however, was not making any such finding in the oral reasons to which this Court was taken. Rather, his Honour was determining whether a reasonably arguable cause of action had been adequately pleaded. Similarly, her Honour cannot be said to have erred in "not finding that the respondents were joint publishers" of the television programme in circumstances where her Honour was not considering the merits of the claim but, rather, whether the pleading properly alleged a claim that they were publishers.
129The basis on which her Honour considered that the amended pleading did not properly plead a cause of action against any of the respondents to the effect that they were original publishers of the television programme was that there was no pleading of facts, matters and circumstances sufficient to establish, if proven, that each either had control over the broadcast or had assented to its final form. I draw this from her Honour's reference at [17] to what she had earlier said at [26] in Dank v Whittaker (No 1) and to the discussion by her Honour from [18]-[23].
130In Dank v Whittaker (No 1), her Honour had considered an application for pleadings to be struck out as against an individual who was sued as an original publisher of the whole of the matter there complained of. Her Honour accepted (at [22]), as a correct statement of principle, the submission that, in order to establish that a person is jointly liable as an original publisher of allegedly defamatory matter, it is necessary to establish either control or assent. Her Honour said:
The notion of control is comprehended within the role of a person such as the proprietor of a newspaper, an editor who determines what is published and, ordinarily, the author of the defamatory matter (although it is well recognised that a journalist, whilst responsible for the words written by him or her, is not necessarily liable for headlines or images added during the editorial process). Absent participation in a publication at that level of control, a person who merely contributes part of what is published will not be jointly liable as an original publisher of the whole unless he or she assents to its final form.
131Her Honour referred to Webb v Bloch [1928] HCA 50; (1928) 41 CLR 331 at 364.3 where Isaacs J said:
In Parkes v Prescott [(1869) LR 4 Ex 169 at 173], Giffard Q.C. quotes from the second edition of Starkie [Thomas Starkie, A Treatise on the Law of Slander and Libel, (2nd ed 1830, J. & W. T. Clarke), Vol 2 at 29]: "All who are in any degree accessory to the publication of a libel, and by any means whatever conduce to the publication, are to be considered as principals in the act of publication: thus if one suggest illegal matter in order that another may write or print it, and that a third may publish it, all are equally amenable for the act of publication when it has been so effected." [emphasis as per original]
132Her Honour also referred to Thiess v TCN Channel Nine at 194-195, where the Full Court of the Supreme Court of Queensland considered the context in which the passage in Webb v Bloch was made, and to Palace Films Pty Ltd v Fairfax Media Publications Pty Ltd [2010] NSWSC 415 at [24]-[25]; Craftsman Homes Australia Pty Ltd v Nine Network Australia Pty Ltd [2002] NSWSC 555 at [7]; and Seary v Molomby (Supreme Court (NSW), Sully J, 23 August 1999, unrep) at [20]-[25]). At [26], her Honour said that those authorities established:
... 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. [my emphasis]
133In Dank v Whittaker (No 1), her Honour considered at [31] that the particulars set out in the pleadings in that case were incapable of sustaining the allegation that the defendant "had control of the final version of the matters complained of or assented to them" and that, insofar as the particulars were relevant to the plea, they said no more than that the defendant had made statements which were likely to be republished. The amended pleading in this case suffers from the same problem.
134Mr Evatt refers to the articulation of the test for participation in Professor Alastair Mullis and Richard Parkes QC (joint editors), Gatley on Libel and Slander, (12th ed 2013, Sweet & Maxwell) at [6.10], namely that at common law liability extends to any person who "participated in, secured or authorised the publication". He maintains that it is not necessary, for a person to be a joint publisher of a publication, that the person have "control" over the final form of the publishing process.
135Reference is made by Mr Evatt to Thompson v Australian Capital Television Pty Ltd [1996] HCA 38; (1996) 186 CLR 574 at 580-581 as to the distinction between joint and several tortfeasors. Reference is also made by Mr Evatt to Dar Al Arken Real Estate Development v Al Refai [2013] EWHC 1630 at [30] where Smith J refers to Fish & Fish Ltd v Sea Shepherd UK [2013] EWCA Civ 544 at [54] ff in which Beatson LJ noted the two requirements to be met for a person to be liable for a tort directly committed by another on the basis that the first was party to a common design with the other or concerted action with the other: those being, first, that there must be a common design that at least one of the joint feasors would do the acts said to be tortious to which the actual perpetrator or perpetrators was or were a party and, second, that the participator must join in an act or acts in furtherance of the common design which were more than de minimis and did not merely facilitate the tort without it being necessary that the participator did something essential or of real significance to the commission of the tort.
136Mr Evatt submits that Thiess is not authority that control has to be exercised over the contents of the publication before there can be a finding that an entity is a co-publisher. He argues that the conclusive argument against the "control" test is its perceived inconsistency with the principles relating to joint tortfeasors. He submits that, paradoxically, under the control test only Nine Network would be liable for publishing the television programme because it was the producer and that the reporters who it is said were undoubtedly principals in the publication would not be liable. It is submitted that all six defendants were joint tortfeasors and that the publication was the result of them acting in concert to achieve a common end.
137The difficulty with these proposed grounds of appeal is that they are predicated on her Honour having applied some new form of control test, whereas, properly understood, what her Honour was doing was applying the test in Webb v Bloch and Thiess; namely that, for there to be liability as a publisher of defamatory material, the defendant must in some way knowingly "conduce" and be responsible for the publication complained of. Her Honour was going no further than saying that mere contribution to an article by someone with no control over the publishing process will not ordinarily establish liability as a publisher "unless he or she has assented to its final form". Her Honour's comments in Dank v Whittaker (No 1), which were incorporated by reference into her Honour's judgment, made reference not merely to control but also to assent to the publication.
138Mr Evatt further submits that her Honour's reference (at [22]) to persons to whom quotes are attributed in a television broadcast misdescribes the essential role that Mr Irvine and Mr Rothfield played in the television broadcast. He submits that Mr Irvine's allegations to Mr Rothfield that Dr Dank had supplied horse drugs to football players, which were repeated by Mr Rothfield on the television broadcast, should have been sufficient to make both Mr Irvine and Mr Rothfield liable as publishers of the program. However, the pleading does not make clear that this is the basis for the allegation of joint publication.
139The particulars of publication in relation to the second and third matters complained of, even in the amended pleading, go no further than that, when the words were spoken by Mr Irvine to unidentified journalists and Mr Rothfield, the Irvine respondents knew that they would be likely to be repeated and quoted either on the Channel Nine News (in the case of the second matter complained of) and in the media and on websites including the website of The Sunday Telegraph (in the case of the third matter complained of).
140The Irvine respondents emphasise that it has not been pleaded that any of the respondents volunteered to be part of the broadcast or the internet posting or took responsibility for its content in some fashion or took any concerted action to a concerted end; nor has it been pleaded that any of them knowingly conduced, authorised or controlled the broadcast or the internet posting. I agree. Her Honour's reasoning does not disclose error in this regard.
141As to the pleading against Mr Rothfield, in his response to the Notice of Objections filed by Mr Rothfield (WB 112), Dr Dank refers to Mr Rothfield being filmed "at least three times" for the television broadcast; to the writing of the newspaper article the day before; and asserts that Mr Rothfield was "in fact pivotal to the entire programme" and "deeply involved in the programme". Dr Dank describes Mr Rothfield as "a willing participant who placed himself before the Channel Nine cameras, spoke into their microphones and co-operated with the making of the programme which included a copy of the front page of his article in "The Sunday Telegraph"". Insofar as it is submitted that those matters amount to Mr Rothfield having in some way conduced or assented to the broadcast (whether as a whole or in part), they are not pleaded or particularised in the amended pleading.
142Mr Evatt says that the liberty to re-plead the claim against Mr Rothfield is of no use because that was confined to a re-pleading of the claim with particulars of "control" of the kind referred to by her Honour. With respect, that appears to misapprehend the import of her Honour's ruling in that regard. Her Honour does not, in my opinion, suggest that Mr Rothfield could only be liable as a joint publisher if he had control over the broadcast. Her Honour makes it clear that if he had no such control then ordinarily the mere contribution of material to the programme will not establish liability as a joint publisher and that what would be necessary would be something further (such as assent to its final form).
143The only allegation against Mr Rothfield is that he published the material set out in paragraphs 1-23 of Annexure A on television [6] and on the Internet [8A]. In a response to a request for further and better particulars, the applicant advised that he alleged that Mr Rothfield published the material in paragraphs 1-11 of Annexure A and provided the following particular in support of that allegation:
The plaintiff relies upon the participation of the fourth defendant in the broadcast program paragraphs 1-11.
It is submitted that the terms of the amended statement of claim read together with the further and better particulars leads to the conclusion that the applicant seeks to make the second respondent responsible for the whole of the broadcast or at least the whole of the material set out in paragraphs 1 - 11 of Annexure A whereas second respondents spoke only the words attributable to him at paragraphs 9 and 16.
144That is not sufficient to establish liability within the principles set out in Webb v Bloch. No error warranting appellate review has been established. Leave to appeal on these grounds should be refused.
145As to ground 7 of the grounds of appeal, there is no error shown on the part of her Honour in not coming to the same view as had Rothman J on the first dismissal application by Mr Rothfield. Their Honours were considering different versions of the pleading and, relevantly, his Honour's reasons suggest that his Honour understood the gravamen of the complaint against Mr Rothfield in a way that is not now contended for by Dr Dank. In their answers to Mr Rothfield's request for particulars of 28 November 2013, Dr Dank's lawyers identified paragraphs 1 - 11 of Annexure A as being the part or parts of Annexure A that it was alleged were published by Mr Rothfield and the particular of publication was limited to "[t]he plaintiff relies upon the participation of the fourth defendant in the broadcast program paragraphs 1 - 11".
146In any event, in circumstances where her Honour gave Dr Dank leave to replead his claim against Mr Rothfield, and I consider that Dr Dank is not constrained in the manner that he apprehended he was in that regard, there is no utility in granting leave to appeal on this ground.