Dank v Nine Network Australia Pty Limited

Judgment

1. HER HONOUR: These are proceedings for defamation brought by Mr Stephen Dank in respect of a television broadcast on Channel 9 News. The remaining defendants in the proceedings are Nine Network Pty Limited, two of its employees (Mr Peter Overton and Ms Sarah Harris) and Mr Phil Rothfield.
2. Mr Rothfield is the fourth defendant in the proceedings. An earlier version of the pleading alleged that he was also an employee of the Nine Network related defendants. However, in a previous argument in these proceedings, it was conceded on Mr Dank's behalf that Mr Rothfield is not in fact an employee of Nine Network.
3. The application determined in this judgment is Mr Dank's application to file a Further Amended Statement of Claim articulating a claim against Mr Rothfield on the basis that he is liable as a publisher of the television programme in accordance with the principles stated by the High Court in Webb v Bloch [1928] HCA 50; (1928) 41 CLR 331. The Further Amended Statement of Claim has in fact been filed, but that was done subject to the fourth defendant's right to argue the adequacy of the particulars provided in support of the claim against him.
4. The filing of that pleading comes against a history of attempts by Mr Dank to make a case against Mr Rothfield. When the proceedings first came before the Court (before Rothman J), it was sought to be argued on Mr Rothfield's behalf that the pleading was incapable of sustaining a Webb v Bloch claim. That argument was rejected. However, in the circumstances recorded in my later judgment in Dank v Cronulla Sutherland District Rugby League Football Club (No 3) [2013] NSWSC 1850, it became apparent that the argument before his Honour had proceeded on the strength of a misconception. It is now plain that the case is sought to be brought against Mr Rothfield on a Webb v Bloch basis.
5. In that judgment, published just over a year ago, I struck out the pleading as against Mr Rothfield with leave to replead. Mr Dank appealed the decision to the Court of Appeal, which upheld my decision: see Dank v Cronulla Sutherland District Rugby League Football Club [2014] NSWCA 288. The Court of Appeal noted the liberty to re-plead granted by me and said: Mr 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).