Dank v Cronulla Sutherland District Rugby League Football Club Ltd

Rothfield dismissal application 22The initial statement of claim incorrectly pleaded that Mr Rothfield was a journalist, reporter and employee of Nine Network, as the solicitors acting for Dr Dank have conceded (see letter dated 10 May 2013). However, Dr Dank did not accede to an invitation to discontinue the proceedings against Mr Rothfield on that basis. 23By notice of motion filed 15 May 2013, Mr Rothfield then sought orders dismissing the proceedings, so far as they concerned him, pursuant to rule 13.4 of the Uniform Civil Procedure Rules on the grounds that the proceedings were frivolous or vexatious and/or an abuse of the process of the Court. He sought further and in the alternative an order pursuant to rule 14.28 striking out the statement of claim insofar as it related to him on the grounds that it had the tendency to cause prejudice, embarrassment or delay in the proceedings and/or was an abuse of process of the Court. 24Further and in the alternative, he sought an order pursuant to rule 28.2 that certain questions be determined as a separate question: namely, whether he published the material set out in Annexure A; whether Dr Dank was reasonably capable of being identified from the material that was published by him; and whether the imputations pleaded in [6] of the statement of claim were reasonably capable of being conveyed from the material published by him. 25Mr Rothfield's notice of motion was heard on 1 July 2013 by Rothman J. His Honour dismissed that application. I will refer to his Honour's reasons for so doing in due course.

Irvine respondents' objection to claim 26Meanwhile, by separate letters dated 10 May 2013, the solicitors acting for the Club wrote to Dr Dank's solicitors requesting particulars of, and giving notice of their objections to, the statement of claim. Among others, complaint was made that the words "or their substance and effect" in [3] of the pleading were embarrassing. It was asserted that Dr Dank was obliged to plead only the words allegedly spoken verbatim, not the effect of those words. 27Reference was also made to uncertainty as to whether the words set out in 3-(g) were alleged to have been said consecutively to a single person or group of persons; or whether the words in one or more, but not all, of the sub-paragraphs were said to a single person or a group of persons and other words in other paragraphs said to a single person or group of persons. The letter noted that it was apparent that not all of the words set out in 3-(g) were part of the same publication, referring to Annexure A from which it was said to be apparent that the words set out in 3 (the substance of which are contained in the extract from the broadcast at [17] above) were allegedly contained in a "tweet". 28Other objections were raised as to the allegations in [5] and [7] of the pleading. 29By letter dated 21 May 2013, the solicitors acting for Dr Dank responded both to the request for further and better particulars and the objections to the pleading. Among other things, they advised that, at that stage, Dr Dank relied only on publication of the words in [3] to Mr Rothfield but that he apprehended that the words were also spoken to other journalists/reporters who he was unable to identify and that particulars would be supplied as to the identity of the other persons who heard the defamatory words "after discovery and interrogatories". 30It was asserted that all the defendants, including the Club, "must have known that any words spoken" by the Irvine respondents "on the topic of drugs or stimulants being supplied to Cronulla-Sutherland Rugby League players by the Plaintiff would be sensational news and would be widely reported and republished". It was said that allegations in relation to the Club players being given drugs and stimulants allegedly by Dr Dank were "headline stories" in all Sydney electronic and print media virtually every day since early February 2013. 31As to the objections raised in relation to paragraph [3] of the statement of claim, Dr Dank's solicitors said (emphasis as per original): The Plaintiff does not know the exact words spoken by the Sixth Defendant [Mr Irvine]. He was not present and can only rely on what was attributed to [Mr Irvine] on the television programme. In such circumstances Gatley recommends the best course is for the Plaintiff to set out as best he can in his claim the words which he believes to have been spoken. "If the exact words cannot be pleaded, the words must at least be set out with reasonable precision" (Gatley (11th Edition at paragraph 28.17 at page 973). Gatley recommends that the Plaintiff should then apply for further information from the Defendant as to the actual words which he used on the occasion in question. Under these circumstances the Plaintiff has set out as best he can the words he believes to have been spoken and formally requests you supply the exact words of [Mr Irvine]. The Plaintiff believes that all the words complained of were spoken by [Mr Irvine] at the one time being an interview with Phil Rothfield. The interview took place just after [Mr Irvine] arrived back at the Cronulla Sutherland Leagues Club after an overseas trip. Please advise if this is incorrect. The tweeting referred to in paragraph 10 of the programme complained of is part of what [Mr Irvine] said to Mr Rothfield although the actual tweet is depicted on the programme. Our understanding is [Mr Irvine] said the [sic] all the words attributed to him in paragraph 10 but also said to Mr Rothfield that he had tweeted that allegations of doping led to the sacking of four coaching staff members last week. (The tweet is shown on the programme). Our instructions are that all of [Mr Irvine's] words were part of the same publication to Mr Rothfield. 32As to the request for context, reference was made to "what purports to be a full transcript of the ... interview" as set out in The Sunday Telegraph article of 10 March 2013. 33The letter foreshadowed that if Mr Irvine did not respond to the request to provide the exact words spoken by him, Dr Dank would seek leave to administer an interrogatory to that effect. It was suggested that any disputes in respect of the matters arising out of the response or the objections to the imputations be dealt with at the same time as the application by Mr Rothfield to be struck out of the proceedings. 34By letter dated 27 May 2013, Dr Dank's solicitors again indicated that in the absence of a response to their request for the exact words spoken by Mr Irvine they would be applying for an order that the plaintiff have leave to administer interrogatories of Dr Irvine "as to the exact words he spoke". 35On 31 May 2013, the solicitors for the Club (who were not then acting for Mr Irvine, he not having been served with the statement of claim until 5 June 2013) sought the provision of a draft of the proposed interrogatories that had been foreshadowed. None was made available until 1 August 2013. 36A formal notice of objection to the statement of claim was filed on behalf of both the Irvine respondents on 28 June 2013.

Rothman J judgment 37As adverted to earlier, on 1 July 2013, Rothman J heard, and gave ex tempore reasons for dismissing, Mr Rothfield's notice of motion seeking, among others, orders dismissing the proceedings so far as they concerned him. 38His Honour's reasons were transcribed but have not been published in final form. Evidence as to the content of his Honour's oral reasons was in the form of a draft judgment obtained by the respondents from his Honour's associate, presumably with his Honour's consent. It was not suggested by any party that this did not accurately record the substance of his Honour's oral reasons for judgment. 39The draft judgment records at [4] that his Honour read [5] of the statement of claim, so far as it concerned Mr Rothfield, not as an allegation that Mr Rothfield had published the whole of the second matter complained of but, rather, as an allegation that Mr Rothfield had published certain defamatory materials set out in Annexure A; and that the material published by him contained the imputations in 6-(f) of the pleading. 40At [10] of the draft judgment, his Honour is recorded as having accepted 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 was contended that the defamatory material was published had been set out and that, to the extent that further particulars were required, a letter of 20 June 2013 from Dr Dank's solicitors set out those particulars. 41At [12], the draft judgment records his Honour's acceptance that the whole of the news programme was not the publication of Mr Rothfield. Nevertheless, his Honour thought it at least arguable that that which was alleged to be defamatory arose from that which was alleged to be statements of Mr Rothfield, including statements (other than those that were published in the newspaper article) provided to Nine Network and published by them in that course of conduct. 42His Honour dismissed Mr Rothfield's motion. Relevantly, when regard is had to the draft notice of appeal, his Honour did not make any findings as to Mr Rothfield being a joint publisher of the television programme; nor would it have been appropriate for his Honour on an interlocutory basis to have done so. What his Honour was there determining was whether the pleading disclosed a reasonably arguable cause of action.

Notice to answer interrogatories 43Following the dismissal of Mr Rothfield's application, further directions were made by the Registrar on 15 July 2013 for the conduct of the proceedings. Those included a direction for draft interrogatories to be served by Dr Dank. After some delay in compliance with those directions, a draft notice to answer interrogatories was served on the Irvine respondents by letter dated 1 August 2013 (this being what I have referred to as the August interrogatories). That notice sought answers to a number of interrogatories, which may be summarised as: (1)whether Mr Irvine had any conversation and/or communication with Mr Rothfield on or about 9 March 2013 "relating" to the Club and/or Dr Dank and/or the administration of substances to club players and/or the administration of substances to club players which were usually given to horses and/or the failure of the club staff to reveal allegations that some players were administered with drugs and/or drugs used on horses; (2)if so, the words said to each other or in each other's hearing, the number of conversations and their duration; (3)if any communications were by means of email, text messages, twitter "and/or other similar means", what was said by each in those communications; (4)whether the Irvine respondents still retained copies of the emails, text, tweets and/or other similar methods of communication and, if so, where they might be inspected; and (5)the motive of the Irvine respondents in having conversations with or communicating with Mr Rothfield on or about 9 March 2013. 44These are the interrogatories for which Dr Dank now contends leave should have been granted by her Honour. Needless to say, the Irvine respondents did not answer them.

Irvine respondents' strike-out application 45By notice of motion dated 2 August 2013, the Irvine respondents sought to have the statement of claim struck out as against them, pursuant to rule 14.28, on the basis that it was embarrassing. 46That application was heard and determined by McCallum J on 8 August 2013 ([2013] NSWSC 1101). Her Honour struck out the pleading as against the Irvine respondents but gave Dr Dank leave to replead. Her Honour refused leave for the administration of the August interrogatories but put in place a regime whereby a more limited set of interrogatories could be formulated and, subject perhaps to the need for a further leave application if the Irvine respondents objected thereto, administered. Dr Dank chose not to avail himself of this opportunity. I will come back to this issue in due course.

Further dismissal application by Irvine respondents 47Orders were made on 8 August 2013 for the service of any proposed amended statement of claim by 19 September 2013. No amended pleading was served by that date. By notice of motion filed 30 September 2013, the Irvine respondents then sought the dismissal of the proceedings against them, inter alia, pursuant to rule 12.7 of the Uniform Civil Procedure Rules and pursuant to s 61 of the Civil Procedure Act. That notice of motion was listed for hearing on 8 October 2013 but ultimately heard on 5 December 2013.

Amended statement of claim 48On 4 October 2013, shortly before the Irvine respondents' further dismissal application had been listed for hearing, Dr Dank served an amended statement of claim. 49Relevantly, in that amended pleading, the slander allegation (at [3]) was amended by deleting the words "spoke and" which had appeared before "published"; by re-ordering the sub-paragraphs; and by adding, in each sub-paragraph, after the defamatory words of which complaint was made, material as to the source of the words. Although described in submissions as particulars, in the form in which they appear in the amended statement of claim they are strictly part of the pleading. 50In place of 3 in the initial pleading, to which I have referred at [17] and [27] above, the amended pleading contains 3, which commences (as had the earlier version of the pleading) with the offending words but which adds detail as to the source of the publication. Paragraph 3 of the amended pleading reads as follows: "Mate, when paid staff failed to report a rogue bloke who was injecting players with equine substances I can't help". These words were tweeted by [Mr Irvine] and the tweet was read by Phil Rothfield, Sarah Harris and other journalists, staff and employees of the Second Defendant. The words were published in "The Sunday Telegraph" (with the exception of the words "a rogues [sic] bloke who was" which were deleted) in an interview between [Mr Irvine] and Phil Rothfield. The interview was oral and by other means such as tweets. The complete interview is set out in pages 1 and 46 of "The Sunday Telegraph" which said pages are annexed hereto and marked "I". The Plaintiff relies on all words attributed to Mr Irvine in Annexure "I" being paragraphs 1, 2, 4-6, 9, 10, 12, 14, 16, 18, 20, 22, 24, 26, 28, 30, 32, 34, 36, 38, 40, 42, 43 and 44. These paragraphs set out the exact words used by Mr Irvine or the substance or effect of his words or a fair summary of them. The words "Mate, when paid staff fail to report a rogue bloke who was injecting players with equine substances I can't help" were quoted by Sarah Harris on the National Nine News (paragraph 10 of annexure "A") and appear on the programme in writing next to a photograph of [Mr Irvine] simultaneously to when Ms Harris was quoting the words on air. [emphasis as per original] 51Similarly, the words previously appearing at 3 are included in the amended pleading at 3. Those words ("[i]n 2001 under the supervision of sports scientist Stephen Dank, several Sharks players were injected with TB-500, a banned endurance and muscle repair drug usually given to horses") are alleged to have been quoted by Ms Harris "or their substance and effect as written by Phil Rothfield". The amended pleading further states that Mr Rothfield wrote that it was Mr Irvine who said or "tweeted" these words some of which were quoted by Ms Harris in paragraph 8 of Annexure "A". 52The particulars of publication in the amended pleading (with my emphasis added) are as follows: (a)The publication by the [Irvine respondents] referred to in paragraph 3 above was made to journalists and reporters including the Fourth Defendant, Phil Rothfield with the knowledge that the words would be likely to be republished in the media and the words were republished in "The Sunday Telegraph" of 10 March 2013 as set out in paragraphs 1-45 of annexure "I" and on the Channel Nine news as set out in paragraphs 1-11 of annexure "A". (b)The publication referred to in paragraph 5 above was made or caused to be made by [the Irvine respondents] in that they knew when [Mr Irvine] spoke the words to journalists including Phil Rothfield as set out in paragraphs 1-45 of annexure "I" and 1-11 of annexure "A" that those words or their substance and effect would be likely to be repeated and quoted on the Channel Nine News and the words were so repeated and quoted on the Channel Nine News. (c)The publication referred to in paragraph 7 ([sic]; scil [6]) above was made by the Third, Fourth [Mr Rothfield] and Fifth Defendants on the Channel Nine News which was put to air for general reception by the Second Defendant. (d)The publication on the internet referred to in paragraph 7 was made or caused to be made by the [Club] through and by its servant and agent being its Chairman, [Mr Irvine] and by [Mr Irvine] because [Mr Irvine] knew that when he said the words to journalists and Phil Rothfield as set out in paragraphs 1-45 of annexure "I" and 1-11 of annexure "A" that those words or their substance and effect would be likely to be repeated in the media and on websites including the website of "The Sunday Telegraph" and the said words were so repeated on the website of "The Sunday Telegraph". (e)The publication on the internet referred to in paragraph 8A was made or causes [sic] to be made by the Second, Third, Fourth [Mr Rothfield] and Fifth Defendants.

6 December 2013 judgment 53Following a hearing on 5 December 2013, McCallum J published her reasons on 6 December 2013 for dismissing Dr Dank's claim against the Irvine respondents. 54Her Honour noted (at [4]) that objection had been taken to the initial statement of claim "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". 55Her Honour then summarised the orders that she had made on 8 August 2013 and said (at [10]) that following the determination of the issue as to administration of interrogatories "the litigious path took a bizarre twist" in that Dr Dank, or those representing him, saw no utility in interrogating Mr Irvine in the terms allowed by her Honour. Her Honour said that "[t]he protestation that they could not plead the first matter complained of without interrogating Mr Irvine fell away". 56As to the first matter complained of, her Honour accepted the submission for the Irvine respondents that the pleading of that claim in the amended statement of claim was, if anything, worse than in the original statement of claim. Her Honour said (at [11]) that so much had, in effect, been conceded by Mr Evatt when the matter had come before her Honour on 10 October 2013 in relation to an application for costs of the August interlocutory hearing. Certainly, the transcript records an acceptance by Mr Evatt that the amended pleading was in substance the same as that which had initially been pleaded. 57Her Honour considered at [14] that the amended statement of claim repeated the vices identified in the original statement of claim as to the pleading of the first matter complained of and said: 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. It simply cannot be relied upon as a single matter complained of and there is no basis for contending that they can. [my emphasis] 58Her Honour said at [15]: The 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. 59At [16], her Honour concluded that the pleading of the first matter complained of remained in embarrassing form and must be struck out. 60As to the second matter complained of (at [5] of the amended statement of claim) and the pleading of the same matter as published on the internet (at [7]), her Honour said that those raised issues which echoed those determined in her August 2013 judgment as to the attribution of liability as an original publisher for the whole of the television broadcast. In that judgment, her Honour had concluded that the plea of publication of the second and third matters complained of by the Irvine respondents could not be sustained for the reasons expressed in her earlier judgment in other proceedings brought by Dr Dank (Dank v Whittaker (No 1) [2013] NSWSC 1062). 61Contrasting the position between the pleading in its initial form and the pleading in Dank v Whittaker (No 1), her Honour had commented in her August reasons (at [13]) that: Indeed the position is a fortiori in the present case, where the only fact, matter or circumstance that has been identified in support of the allegation that those defendants are liable as original publishers of the news broadcast is that "the sixth defendant [Mr Irvine] is depicted on the program complained of". 62I pause here to note that Mr Evatt contends that it has never been alleged that Mr Irvine is liable only because he was depicted on the programme. Her Honour may have made that observation by reference to the particulars of publication appended at the conclusion of the initial statement of claim, to which reference was made at [7] of the August reasons, namely that: When the first and sixth defendants [the Irvine respondents] spoke and published the defamatory words or their substance and effect as referred to in paragraph 3 above they knew that the words would likely be republished in the media and the words were so published in the media including on Channel Nine on 10 March 2013 and on other television channels, radio stations and newspapers including "The Sunday Telegraph" of 10 March 2013 [the republication allegation]. 63In the December judgment, her Honour made reference (at [20]) to Webb v Bloch and Thiess v TCN Channel Nine Pty Ltd (No 5) [1994] 1 Qd R 156. Her Honour rejected the submission by Mr Evatt as to the import of the test in Thiess for pleading purposes and concluded (at [22]) that what was absent in the present case was a cause of action pleaded with sufficient facts, matters and circumstances to establish a basis for a case to go to a jury; her Honour there noting that Thiess was concerned with the question as to what had been the task for the jury but that was premised on there being a case to go to the jury. Her Honour said at [22]: I adhere to my view in the earlier judgments [there clearly referring to the August reasons and her Honour's judgment in Dank v Whittaker (No 1) and some of the cases referred to therein] 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. [my emphasis] 64At [23], her Honour said: In 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. [my emphasis] 65Turning then to the question whether there should be leave to re-plead, her Honour accepted the submission for the Irvine respondents that the time had come for the action against them to be dismissed, saying (at [26]): ... 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. The 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 [Mr Irvine] 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 property form. 66What her Honour does not record, but which is apparent from the transcript, is that during the course of argument on the dismissal application Mr Evatt declined an opportunity, before her Honour ruled on that application, to address the issues that had again been raised as to the adequacy of the pleading. 67Her Honour was of the view that the reference in rule 12.7 to a failure on the part of a plaintiff to prosecute an action with "due despatch" was amply able to comprehend a circumstance where there was a failure to bring pleadings into good order. Her Honour considered that failure had derived 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 [Irvine respondents]" ([28]). On that basis, her Honour dismissed the proceedings against the Irvine respondents and ordered that Dr Dank pay costs to be assessed on an indemnity basis. 68Her Honour then turned to the position against Mr Rothfield. There had been no notice of motion filed by Mr Rothfield similar to that of the Irvine respondents but an oral submission was made to the effect that the proceedings against him should be struck out on the basis of the arguments that had been put forward for the Irvine respondents. Reference was made to the objections that Mr Rothfield had made to the amended pleading in a formal notice of objection dated 29 November 2013. 69Her Honour noted (at [30]) that what was left standing, in light of the concessions that Mr Rothfield was not an employee of Nine Network, was an allegation in [6] and in 8 that he, along with the Nine Network defendants, had published the television broadcast, i.e., that he was an original publisher of the whole of the broadcast. 70Her Honour said (at [31]): Consistently 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). 71Her Honour then considered whether it was inappropriate to strike out the pleading against Mr Rothfield having regard to the fact that an application on the same basis had come before Rothman J on 1 July 2013 in respect of the initial statement of claim and concluded that it was not, stating (at [32]) that it was tolerably clear from the amended statement of claim, taken in combination with some particulars provided of the pleading, that the basis on which the claim was now sought to be brought as against Mr Rothfield (i.e., that he was liable as an original publisher for the whole of the broadcast) was precisely the basis on which Rothman J had said he did not read the initial pleading as alleging. 72Her Honour struck out the allegation against Mr Rothfield "with leave to replead if particulars of the kind referred to in my earlier judgment can be provided" (my emphasis). It is the qualification placed on the liberty to replead with which Dr Dank in substance takes issue.

Consideration of application for leave to appeal 73Appellate courts exercise particular caution in reviewing interlocutory rulings on matters of practice and procedure (Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; (1981) 148 CLR 170 at [9] 177; Re Will of Gilbert (1946) 46 SR (NSW) 318 at 322-3). The task of a party challenging a discretionary interlocutory ruling on such a matter is recognised as being a difficult one (Warragamba Winery Pty Ltd v State of New South Wales [2010] NSWCA 174 at [6]; Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 at [45]). 74To succeed in challenging the exercise of a discretion, it is necessary to establish an error of legal principle; material error of fact; that the decision maker took into account some irrelevant consideration or failed to take into account or give sufficient weight to a relevant consideration; or arrived at a result so unreasonable or unjust as to suggest such an error (Micallef per Heydon JA, as his Honour then was, at [45]). 75Furthermore, ordinarily it is appropriate to grant leave to appeal from such a decision only where there is an issue of principle involved, or a question of general importance, or an injustice which is reasonably clear in the sense of going beyond what is reasonably arguable (Carolan v AMF Bowling Pty Ltd t/as Bennetts Green Bowl [1995] NSWCA 69 at [5]; Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 at [46]; Zelden v Sewell; Henamast Pty Ltd v Sewell [2011] NSWCA 56 at [22]; Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 at [32]). 76It is submitted by Mr Evatt that leave should be granted for a number of reasons. First, because it is necessary to decide whether the "new control test" for liability for publication is correct and whether it has replaced the participation/authority test. Second, because there were conflicting rulings by Rothman J and McCallum J as to whether a valid cause of action was pleaded against the respondents as joint publishers of the television programme. Third, because this Court should define the extent of rule 12.7 and whether it covers cases outside failure to prosecute proceedings with due despatch. Fourth, because a definitive ruling is required as to the circumstances in which it is not necessary for a plaintiff to plead the exact words allegedly said by a defendant in a case of slander. 77The respective respondents submit that leave should not be granted because no error of principle is disclosed by her Honour's reasons and her Honour's application of well established principles to uncontested facts was not attended by sufficient doubt to warrant a grant of leave (House v The King [1936] HCA 40; (1936) 55 CLR 499 at 504-5; Micallef v ICI Australia Operations). 78I turn to the grounds of appeal sought to be raised by Dr Dank in order to determine whether they raise an issue for which leave to appeal should be granted on the tests set out above and, if so, whether the ground is made out.

General grounds of appeal 79Grounds 1 and 3 of the draft notice of appeal seek to challenge as a general matter the dismissal of the whole of the proceedings against the Irvine respondents and Mr Rothfield respectively and will be considered after the more specific grounds of appeal.

Refusal to permit interrogatories to be administered in the form sought - ground 8 80As this, chronologically, is the first decision that is sought to be challenged, I will deal with it first. It is clearly a decision on a matter of practice and procedure. Her Honour was required to decide, among other things, whether she considered it necessary for interrogatories to be administered (rule 22.1(4)). 81There is no complaint as to her Honour's conclusion (at [27]) that, of the Irvine respondents, the only party that should be required to answer interrogatories should be Mr Irvine (since the only words over which the Club is sued are those alleged to have been said by him and he is no longer the chairman of the Club). Rather, the complaint is that her Honour should not have restricted the interrogatories for which leave was granted in the way that she did. 82As noted by her Honour at [28], the objection that had been made by the Irvine respondents to the August interrogatories, other than as to who should be required to answer them, had been put on three bases: that they were unnecessary; that they were in the nature of a fishing expedition; and that they were confusing so as to be apt to mislead. 83Her Honour considered the last of those objections to be well-founded, describing the form of the interrogatories as dense and confusing; and complicated by the inclusion of the phrase "relating to" and the conjunction "and/or" ([29]). It was in that context, namely when considering the form of the interrogatories, that her Honour said (at [29]) that: The plaintiff in my view is entitled to no more than leave to administer an interrogatory (if at all) in the terms proposed by Ms Wass [Counsel for the Irvine respondents], as follows: "Did you say [X] or words to that effect?" and "If so, what were the exact words spoken?" 84The Irvine respondents had submitted that, in slander, interrogatories were limited as to whether the defendant spoke the words complained of and as to the exact words spoken or words to that effect (citing Dalgleish v Lowther [1899] 2 QB 590; Saunderson v Von Radeck (1905) 119 LTJ 33; Barham v Lord Huntingfield [1913] 2 KB 193). 85Her Honour went on to consider together the remaining two objections, namely whether interrogatories were necessary and whether such interrogatories would be in the nature of a fishing expedition in the present case. Her Honour concluded that Dr Dank could demonstrate, by reference to the transcript of the broadcast, that he had a good cause of action but was unable to find out the precise form in which to frame it. Her Honour said (at [35]): The transcript establishes the making of a slanderous imputation of a particular character, but a question has arisen as to its accuracy particularly given that part of it purports to be words spoken by Mr Irvine where as the television broadcast has characterised those words as having been published not orally but in a tweet. 86In those circumstances, her Honour considered that the appropriate course was to afford Dr Dank an opportunity to draft a further form of interrogatory which he would seek to have answered. Her Honour indicated that if there was objection to the further interrogatories proposed, leave would not be granted to administer any interrogatory that went further than to pose a question in the terms suggested as being appropriate by Senior Counsel for the Irvine respondents in her written submissions (i.e. as summarised above [83]). Her Honour also noted that, absent agreement, the transcript of the interview in The Sunday Telegraph appeared to be the appropriate point of reference for Dr Dank's proposed claim against Mr Irvine. 87Accordingly, after making orders striking out paragraphs [3], [5] and [7] of the statement of claim and the particulars of re-publication as against the Irvine respondents, with leave to re-plead, her Honour ordered that any further notice to Mr Irvine to answer interrogatories be served within two weeks and, subject to any further objection, that Mr Irvine answer the interrogatories within a further two weeks and that any proposed amended statement of claim be served within a further two weeks. No such notice to answer interrogatories was ever served. 88The irony of the challenge now made by Dr Dank is that, having persuaded her Honour (over the objection of the Irvine respondents) that it was necessary that he be permitted to interrogate Mr Irvine as to what was said by him to Mr Rothfield so as to be able to plead his claim properly, and having asserted in correspondence as long ago as May 2013 that such interrogation was necessary, it is now contended for Dr Dank that the amended statement of claim (prepared without the benefit of any such interrogation) properly pleads a valid cause of action against the Irvine respondents. If that contention is correct, then, whatever the content of the interrogatories, it could not be said that they were necessary at the time that leave for their administration was sought and there could be no utility in granting leave to appeal from the decision not to allow the August interrogatories to be administered. That is fatal to the application now brought by Dr Dank for leave to appeal on this ground. 89In any event, no error of principle or other relevant error has been identified in the exercise of her Honour's discretion as to the administration of interrogatories, namely as to the form in which the interrogatories were permitted to be administered, such as to provide a basis for appellate intervention. 90Mr Evatt referred to Kaiser v George Laurens (NSW) Pty Ltd [1982] 1 NSWLR 294 as an example of a case where the plaintiff was permitted to administer interrogatories of a type that he submits were similar to the ones for which leave was sought in the present case. There, where there was a basis for inferring that the defendant would have published the alleged defamatory statement (that the plaintiff had been declared bankrupt) to persons other than a particular finance company to persons and on occasions that the plaintiff was unable to identify and specify until after discovery, Hunt J (as his Honour then was) considered that the application for discovery and interrogatories could not be characterised as a fishing expedition (at 296). 91Relevantly, however, the interrogatories that his Honour there gave leave to administer were not far removed in content from that which her Honour here gave leave to Dr Dank to administer: namely, an interrogatory as to whether the defendant within the last six years had published or caused to be published to any person other than the plaintiff "words imputing or to the effect that the plaintiff had been declared bankrupt" and, if so, as to each such publication information as to whether it was oral or in writing or partly oral and partly in writing and information consequential on the answer thereto. In the case of an oral or partly oral communication, that consequential information included precisely what was published, when and to whom, by whom, where and in whose presence it took place (at 298-299). 92Mr Evatt points out that in Kaiser his Honour did not there limit the permitted interrogatories to a question "did you say that?" and, if so, "what did you say?". Neither, however, did her Honour so limit the interrogatories in the present case although the indication was given that she would not grant leave to administer any interrogatory that went further than to pose a question in the terms suggested by the Irvine respondents as being appropriate. 93Ultimately what her Honour did, as the transcript shows was made clear to Counsel appearing for Dr Dank on that occasion, was to put in place a regime whereby Dr Dank was to serve draft interrogatories and if there were to be an objection thereto then her Honour's leave would be necessary. 94Her Honour raised the possibility that the question could be posed by reference to the transcript of the interview from the article in The Sunday Telegraph (the transcript of which she noted was in the circumstances the best record available to Dr Dank of the oral publication sought to be sued on) ([34]). 95It is clear from her Honour's reasons that what her Honour accepted was necessary, for pleading purposes, by way of interrogation was that which would enable Dr Dank to identify exactly what was said by Mr Irvine to Mr Rothfield. It was clearly open to her Honour to conclude that it was not necessary for Dr Dank's pleading purposes that he be permitted to interrogate beyond that which he had originally indicated was necessary, namely as to the exact words that had been said by Mr Irvine to Mr Rothfield. 96It was also open to her Honour to take into account that there were other avenues available to Dr Dank if what he also sought was to obtain documentary records of such communications (a basis on which the Irvine respondents had argued the interrogatories were unnecessary). Similarly, it would have been open to her Honour to conclude that interrogation as to other matters such as the motive for the making of the publications in question was not necessary for the purposes of pleading Dr Dank's defamation case. 97In my opinion, no error of the kind that would give rise to appellate intervention in relation to the decision as to the form of the interrogatories that would be permitted was shown by Dr Dank. Nor was there any issue of principle or of general public importance raised that would warrant the grant of leave to appeal from this decision. Leave should not be granted where, as here, an appeal is bound to fail.

Dismissal of the proceedings against the Irvine respondents - grounds 2, 6 and 9

Rule 12.7 - ground 2 98As noted above, her Honour considered that this rule was able to encompass circumstances where the failure to bring pleadings into good order derived from the failure to take advantage of interlocutory procedures and "the decision to ignore or to regard with disdain points properly taken in carefully drawn correspondence" by the Irvine respondents ([28]). For Dr Dank, it is contended that the circumstances of the case were outside the scope of what is understood by a failure to prosecute the proceedings with due despatch. 99The Irvine respondents point to the fact that over a period of approximately nine months, during which there had not been timely compliance by Dr Dank with various directions, there had been two attempts to articulate a cause of action against them; that there had been a recognition by Counsel that the pleadings were deficient (as to the initial statement of claim - WB 140; as to the amended statement of claim - WB 22-23); and that Dr Dank had declined to avail himself of an opportunity to have a further attempt at re-pleading the claim. 100It is further submitted that the decision not to utilise a court order permitting service of interrogatories, having taken steps to secure that order, amounted to an intentional and contumelious procedural default; and that, in relation to the first matter complained of, what Dr Dank had done was in effect to argue the same pleading issue twice before her Honour. 101The submission that there was an intentional and contumelious default on the part of Dr Dank echoes the statement in Birkett v James [1978] AC 297 at 318 to the effect that the power to dismiss proceedings for want of prosecution should be exercised only in such a case or where there has been inordinate or inexcusable delay giving rise to a substantial risk that a fair trial would not be possible or of serious prejudice to the defendant. 102Having regard to the introduction of ss 56-60 of the Civil Procedure Act, it has been suggested that the above statement of principle must be seen as having been modified (see for example State of New South Wales v Plaintiff A [2012] NSWCA 248 at [17] per Basten JA; Hobbs v Australian Securities and Investments Commission [2013] NSWCA 432 at [52] per Barrett JA). 103The authorities make clear that what is involved in the exercise of the power under rule 12.7 is a balancing exercise, in the course of which a variety of factors may be considered (see, for example, Hoser v Hartcher [1999] NSWSC 527). 104In the present case, her Honour was faced with an amended pleading that Dr Dank's Counsel had argued was sufficient for pleading purposes and did not wish to re-plead. Her Honour did not accept that the pleading was adequate. In those circumstances, there was in effect a stalemate from a pleading point of view. There had been delay in the process of seeking leave to interrogate and in the amendment of the pleading. Her Honour concluded that there had been a failure to conduct the proceedings with due despatch. That conclusion was open to her Honour. There was no error of principle demonstrated in that conclusion nor was there other error of the kind to warrant appellate intervention. Leave to appeal on this ground should be refused.

Irvine respondents' notice of contention 105As to the Irvine respondents' notice of contention, her Honour made it clear that, as to the first matter complained of, she considered that it remained embarrassing and must be struck out (see [24]-[25] of the August judgment and [16] of the December judgment). That conclusion, in circumstances where Dr Dank had made it clear that he did not wish to re-plead the claim, would amply have supported an order striking out the claim and permanently staying the proceedings under s 67 of the Civil Procedure Act or summarily dismissing the proceedings pursuant to rules 13.4 and 14.28. Hence, were leave to have been granted to appeal on this issue, I would have been of the view that the decision should nevertheless be affirmed on the grounds set out in the Irvine respondents' notice of contention.

Adverse inferences from failure to administer interrogatories - ground 9 106Dr Dank contends (in the additional ground 9) that her Honour erred in drawing adverse inferences from the fact that he did not administer interrogatories in the form she had prescribed. He emphasises that he made a forensic decision not to take up the leave granted in relation to the administration of interrogatories. 107It is submitted by Mr Evatt that Mr Irvine's answers to the interrogatories for which leave was given "would not have assisted the Applicant and would have prevented him from administering further interrogatories to Irvine at a later stage in the proceedings". In essence, the complaint is that the permitted interrogatories were too narrow and that if Mr Irvine's answers to questions of the kind permitted under her Honour's ruling were in the negative then "the Applicant may not have been able to plead his case" and hence the administration of the interrogatories could have been prejudicial. It is also said that Dr Dank formed the view interrogatories should wait until after discovery when both Mr Rothfield and Mr Irvine could be fully interrogated as to what was tweeted or said by each of them. (The last submission assumes that leave to administer interrogatories could have been obtained at a later stage in the proceedings, notwithstanding that the opportunity to administer some interrogatories had already been granted and not pursued.) 108Her Honour clearly considered the decision not to take the advantage of the leave that had been granted to be an extraordinary one ([26]), referring to the "bizarre" twist that the litigious path had taken ([10]). However, although her Honour suggested that this decision could be understood as displaying a contumelious disregard for the processes of the defamation list, no such finding was expressly made nor was any adverse inference expressly drawn from what had occurred. 109Whether or not there was a sound forensic basis for the decision not to pursue the leave that had been granted in relation to the administration of interrogatories, the fact remains that Dr Dank had proceeded in August 2013 on the basis that it was necessary that he be granted leave to interrogate the Irvine respondents; he had previously articulated that need in correspondence by reference to a complaint that he was not present at the conversation and did not know the exact words that had been said; and, having persuaded her Honour that it was necessary in order to address the complaints made as to the pleading of the first matter complained of that he administer interrogatories, he proceeded to file an amended pleading without any attempt to make use of the leave so granted. 110Her Honour clearly took the view that in those circumstances, where she considered that the pleading problems previously identified had not been remedied (and had in fact worsened), there should be no further opportunity to remedy the pleading and hence the proceedings should be dismissed against the Irvine respondents. That was a discretionary decision open to her Honour. 111Assuming that the pleading was deficient, as to which issue I turn next, no error warranting appellate review was shown in her Honour's conclusion that, in effect, "enough was enough" and Dr Dank should have no further opportunity to re-plead his claim against the Irvine respondents. Leave to appeal should not be granted for this additional ground.

Valid cause of action pleaded against the Irvine respondents - ground 6 112Dr Dank's complaint in ground 6 of the draft notice of appeal is that her Honour dismissed the proceedings in circumstances where he had pleaded a valid cause of action against the Irvine respondents. 113The Irvine respondents contend that the pleading of the first matter complained of is defective for two reasons. First, it is said that the pleading fails to plead adequately or at all the whole of the matter complained of, instead pleading an amalgam of phrases said to be partly oral statements (sourced from the newspaper article) and partly tweets by Mr Irvine and by "other means" which are not particularised. Second, it is said that the pleading fails to plead the precise words said to convey the defamatory meanings (there referring to Harris v Warre (1879) 4 CPD 125 at 128; Coles Supermarkets Australia Pty Ltd v Clarke [2013] NSWCA 272 at [89]-[94]; and ABC v Obeid [2006] NSWCA 231 at [59], [64] and [69]). 114The Irvine respondents contend that Dr Dank was required to plead separately each publication allegedly made by Mr Irvine and, in so doing, to set out all the words allegedly said to any one person or group of persons so that the context of all of those words could be taken into account in ascertaining the meaning of all of those words published to that person or group of persons. 115Her Honour's criticism of the initial pleading (at [18] of the August reasons) was that the pleading at [3] did not purport to be an account of the whole of the single conversation but, rather, was a collection of statements attributed to Mr Irvine derived from a number of sources. Dr Dank's then Counsel, Mr Rasmussen, had referred to various sources from which the particular words pleaded had been derived. Her Honour said at [24] - [25]: It is plain, and I did not understand Mr Rasmussen to contend otherwise, that the pleading of the words attributed to Mr Irvine does not plead the whole of the words said by him on any single occasion and does not plead the context in which the words were allegedly said, in circumstances where it is clear enough that some of [sic] statements were responsive to statements by another person. Mr Rasmussen accepted that the plaintiff is unable to plead the precise words spoken by Mr Irvine to Mr Rothfield, since he was not present at the interview. He submitted that the plaintiff can only glean the words from third parties. In my view, the pleading of the oral publication in its present form is embarrassing because it does not provide the whole of any single publication sought to be sued on or the context. It is, in my view, liable to be struck out for that reason. [my emphasis] 116Her Honour considered that the amended pleading did not remedy that problem. At [27] of the December reasons, her Honour said that: ... the whole of the pleading is infected with the difficulty of the plaintiff's inability to attribute any precise words to [Mr Irvine] in a single, continuous publication and that this rendered the pleading embarrassing. 117Mr Evatt contends that the criticism made of the pleading (at [27]) as to the inability of Dr Dank to attribute any precise words to Mr Irvine in a "single, continuous publication" is not justified because there is no obligation on a plaintiff in a defamation suit so to plead. Complaint is also made as to her Honour's characterisation of the words in [3] as a collection of disparate remarks, on the basis that all the words related to the horse drugs allegation and all were set out in the newspaper article. 118Mr Evatt contends that it is permissible to plead, as Dr Dank had done, alternative words and to do so in terms that those words or words to the substance and effect of those words had been published. Reliance is placed on De Jong v State of Victoria (2006) VSC 274 for the proposition that if a plaintiff does not know the exact words then an approximation or inference will suffice. 119Whether or not, as the Irvine respondents submit, Dr Dank's reliance on De Jong is misplaced because there the defendant was complicit in the defamation and had taken material steps to incite publication, the complaint by Dr Dank focuses on the ability to plead the publication of particular defamatory words "or their substance and effect". That, with respect, was not the matter that her Honour considered rendered the pleading embarrassing. 120It is clear that what her Honour was criticising was the fact that one could not discern from the pleading what was alleged to be the whole of the matter complained of, in the context of the relevant publication. Nor is it apparent whether the allegation in the pleading is that the matter complained of at [3] is one matter, i.e., a single publication, or a succession of separate publications on different occasions and in different forms. That confusion persisted during the hearing of the present application. 121By way of example, in the course of argument it appeared to be suggested that the subject matter of the tweet was part of an oral or other communication during the course of the interview rather than a separate publication. Apart from the fact that it does not seem likely, although I accept it is not outside the realm of possibility, that Mr Irvine might have chosen to use Twitter to convey a message to the very person to whom he was then talking (as opposed to using Twitter while talking to that person to convey a message to others, perhaps including that person, more generally), the real problem is that the pleading does not make it clear precisely what is each publication comprising the first matter complained of at [3] or whether there was more than one such publication. 122Reliance is placed by the Irvine respondents on Hall v Swan [2009] NSWCA 371 for the proposition that it was necessary for Dr Dank to plead the whole of the relevant conversation. They submit that Dr Dank has failed to include in the pleading any of the words that materially altered or qualified the complexion of the imputation complained of, as required to do, and that pleading those words is necessary to enable the Court properly to understand what the ordinary reasonable person would have understood from the matter complained of (referring to Gordon v Amalgamated Television Services Pty Ltd [1980] 2 NSWLR 410 at 413-415; Morosi v Broadcasting Station 2GB Pty Ltd [1980] 2 NSWLR 418 at 420). 123Insofar as reliance is placed on what was attributed to Mr Irvine in the newspaper article, it is submitted that Dr Dank was required to plead all questions and answers, as well as the surrounding context, not just selected excerpts of the interview. The Irvine respondents note that the newspaper article itself demonstrates that Mr Rothfield heard more than that which was pleaded. 124Her Honour's finding was that the pleading of the first matter complained of was embarrassing because it did not provide the whole of any single publication sought to be sued on or the context of that publication. That conclusion was well open to her Honour and does not disclose an error of the kind that would warrant appellate review. The amended pleading, though providing further details, still includes references to other unidentified journalists and continues to fail to make clear whether the matter complained of at [3] was one publication or a number of separate publications. 125Leave should not be granted to appeal on this ground. 126As to the second and third matters complained of, her Honour's conclusion at [23] was that, in the absence of particulars of the kind referred to in Thiess "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)" the pleading did not disclose any reasonable cause of action against Mr Irvine as an original publisher of the whole of the broadcast. I consider that complaint below together with the similar complaint made in relation to the striking out of the claim against Mr Rothfield.

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.

Notice of contention by Mr Rothfield 147The notice of contention filed by Mr Rothfield contends that her Honour's decision should be affirmed on the basis that the words spoken by him in the television broadcast and relied upon by Dr Dank are not "of and concerning [Dr Dank]" or reasonably capable of conveying any imputation defamatory of him. There is considerable force in that contention. However, in circumstances where her Honour gave leave to replead the claim that Mr Rothfield was a joint publisher of the broadcast, and where leave to appeal from that decision is not granted, it is neither appropriate nor necessary to deal with this contention.

Conclusion 148It follows from the reasons set out above that the general grounds of appeal (grounds 1 and 3) would in my opinion be bound to fail. No error warranting appellate intervention has been disclosed so as to ground a grant of leave to appeal. The summons for leave to appeal should be dismissed. The applicant should pay the costs of the Irvine respondents on the ordinary basis. Given the inutility of the leave sought by the applicant to appeal from the striking out of the pleading against Mr Rothfield in circumstances where leave to re-plead had been granted, I accept the submissions made by his Counsel that this is an appropriate case for the applicant to pay Mr Rothfield's costs on the indemnity basis and would order accordingly. 149EMMETT JA: Dr Stephen Dank seeks leave to appeal from orders made by McCallum J on 6 December 2013 in defamation proceedings brought by Dr Dank against six defendants. On 6 December 2013, her Honour ordered that the proceedings against the first and sixth defendants be dismissed and that the statement of claim be struck out as against the fourth defendant, with leave to re-plead. 150The defendants in the proceedings are Cronulla-Sutherland District Rugby League Football Club Ltd (the Club), Nine Network Pty Ltd (Nine), Mr Peter Overton, Mr Phil Rothfield, Ms Sarah Harris, and Mr Damien Irvine. The Club is sued as being vicariously liable for statements made by Mr Irvine, who, at relevant times, was the chairman of directors of the Club. Nine is the operator of television stations that broadcast under the name "Channel 9" and Mr Overton and Ms Harris are employees of Nine. Mr Rothfield is an independent journalist. 151In his statement of claim, Dr Dank made various allegations against the Club and Mr Irvine, on the one hand, and Mr Rothfield, on the other, as well as against the other defendants. The other defendants are not concerned with the application for leave. 152The allegations against the Club and Mr Irvine may be summarised as follows:

• On or about 9 March 2013, the Club and Mr Irvine published certain defamatory words of and concerning Dr Dank, either by oral interview or by "tweets", which conveyed or were understood to have conveyed certain defamatory imputations concerning Dr Dank;
• On or about 10 March 2013, the Club and Mr Irvine published certain defamatory material on Channel 9 of and concerning Dr Dank, which material conveyed or was understood to have conveyed the same defamatory imputations, plus an additional imputation;
• On or about 10 March 2013, the Club and Mr Irvine caused to be published certain defamatory material of or concerning Dr Dank on the Internet, which material conveyed or was understood to have conveyed the same defamatory imputations as those in the second allegation. 153The allegations against Mr Rothfield may be summarised as follows:
• On or about 10 March 2013, Mr Rothfield published certain defamatory material on Channel 9 of and concerning Dr Dank, which material conveyed or was understood to have conveyed the same defamatory imputations as the second and third allegations against the Club and Mr Irvine;
• On or about 10 March 2013, Mr Rothfield caused to be published certain defamatory material of and concerning Dr Dank on the Internet, which material conveyed or was understood to have conveyed the same defamatory imputations. 154The primary judge concluded that the statement of claim was embarrassing in relation to the allegations made against the Club and Mr Irvine in that it did not specify the alleged defamatory material that was published orally, on one hand, or by "tweet", on the other hand. Further, the statement of claim did not specify how it was alleged that the Club and Mr Irvine participated in the publication of the defamatory material on the Channel 9 broadcast and on the Internet. Secondly, in relation to the allegations made against Mr Rothfield, her Honour concluded that the statement of claim did not adequately particularise the facts as a result of which it was said that Mr Rothfield published defamatory material on the Channel 9 broadcast or on the Internet, in circumstances where he was not an employee of Nine, but an independent journalist. 155The statement of claim is clearly defective in relation to all of those matters. Dr Dank was granted leave to re-plead his case against Mr Rothfield. In the course of argument before the primary judge, counsel for Dr Dank was offered the opportunity of re-pleading his case against the Club and Mr Irvine, but that offer was declined. 156I have had the advantage of reading in draft form the proposed reasons of Ward JA. I agree with Ward JA, for the reasons proposed by her Honour, that leave to appeal should be refused with costs. 157So far as Mr Rothfield is concerned, no basis whatsoever has been shown for granting leave and I agree with Ward JA that Dr Dank should be required to pay Mr Rothfield's costs on an indemnity basis. The primary judge ordered Dr Dank to pay the costs of the Club and Mr Irvine on an indemnity basis. No application was made for their costs of the application for leave to be paid on a special basis. The costs to be paid by Dr Dank to the Club and Mr Irvine should be on the ordinary basis. 158GLEESON JA: I agree with the orders proposed by Ward JA for the reasons given by her Honour. 159I would add the following observation. It would be a rare case indeed in which leave to appeal would be granted in respect of a challenge to a primary judge's ruling as to the form of interrogatories permitted to be administered. This is a quintessential matter of practice and procedure on which the judge administering the defamation list was best placed to decide. Moreover, here the appellant's complaint was entirely misconceived because, as Ward JA explains at [92]-[94], ultimately the primary judge had put in place a regime for the service by Dr Dank of draft interrogatories and if there was an objection then her Honour's leave would have been necessary. But Dr Dank did not take up that opportunity. In these circumstances no injustice could be said to arise in relation to this ruling.

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