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.
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.
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.
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.
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).
The Further Amended Statement of Claim, filed 16 October 2014, attempts to meet the requirement referred to by the Court of Appeal of making out an arguable case that there is, in the present case, "something further" than has already been pleaded by Mr Rothfield.
The pleading sets out extensive circumstances at paragraph 10(c) of the document. The question raised by the present application is whether those particulars take the matter any further than any of the previous iterations of the pleading in accordance with the principles stated by the Court of Appeal. I have concluded that they do not.
The central proposition on the strength of which Mr Dank's pleading against Mr Rothfield was struck out in my earlier judgment in Dank v Cronulla Sutherland District Rugby League Football Club (No 3) [2013] NSWSC 1850 derived from the determination of the first round of this kind of argument in my judgment in Dank v Whittaker (No 1) [2013] NSWSC 1062. That decision was concerned with Mr Dank's attempt to make liable, as publishers of the whole of a defamatory publication, two experts to whom were attributed various quotes in the newspaper article, Dr Larkins and Dr Ho.
In striking out the pleadings as against them, I acceded to a submission put by Mr Richardson on their behalf that the authorities in this area establish that where a person merely contributes material to an article, but has no control over the publishing process, liability as a publisher will not ordinarily be established unless he or she has assented to its final form. That statement of principle was approved by the Court of Appeal at [137].
As already indicated, the matter complained of in the present case is a news broadcast on television. It may be accepted that the article draws heavily on a separate publication, an article which appeared in the Sunday Telegraph under the by-line of Mr Rothfield. Indeed, images of that newspaper article are depicted in the television broadcast.
The newspaper article is not the subject of a claim for defamation by Mr Dank. The proposition would appear to be that, by participating in an interview with the publishers of the television broadcast, and perhaps by reason of the material contained in his newspaper article, Mr Rothfield has brought himself within the scope of persons referred to by the Court of Appeal as being someone as to whom "something further" has been established so as to make the person liable as a joint publisher, notwithstanding the absence of control over the final version of the broadcast and the mere fact of having contributed material to its contents.
In defending the pleading Mr Evatt, who appears for Mr Dank, openly conceded that it was drawn exclusively from what was publicly available in the newspaper article and the content of the television broadcast. He submitted, however, that it would be necessary for me, in order to determine the application, to view the broadcast, which I have done. Mr Evatt relied on the fact that, in the television broadcast, there is not only a depiction of the newspaper article and a number of quotes drawn from it but also footage of Mr Rothfield, "there large as life being filmed by them".
Mr Evatt submitted that, without Mr Rothfield, there was no story to be published in the television broadcast and that, "he [Mr Rothfield] is the whole thing". He asked rhetorically why it should not then be concluded on the strength of the particulars now provided that Mr Rothfield in some way knowingly "conduced" to the publication of the television broadcast so as to fall within what the Court of Appeal said at [137].
It is necessary in that context to consider the precise terms of the particulars now provided. As submitted by Mr Blackburn SC, who appears for Mr Rothfield, the particulars include a large number of allegations which are simply irrelevant to the present question. Otherwise, they consist of the identification of the words printed on the screen or said in the television broadcast which Mr Evatt submits it can be inferred are drawn directly from the newspaper article and from additional information which must have been provided to the Nine Network defendants by Mr Rothfield.
Taking the particulars at their highest, Mr Evatt relied upon the fact that, whereas the newspaper article does not draw a direct link between Mr Dank and the provision of "horse drugs" to football players, the television broadcast does. Mr Evatt submitted that it must be inferred, or is at least open to be inferred, that it was Mr Rothfield who provided that information to the Nine Network defendants as so to conduce to the publication of the television broadcast.
It could scarcely be thought that the Nine Network defendants required Mr Rothfield's assistance to draw that connection. As Mr Evatt himself submitted, the story of the apprehended administration of "horse drugs" to football players was at that time well circulated within the mass media.
I have given careful consideration to the particulars now provided to sustain the Webb v Bloch pleading. I do not think they take the matter any further than was either expressly pleaded or urged in submissions in the earlier argument concerning the pleading on the Webb v Bloch basis. As has been repeatedly noted by Mr Blackburn on behalf of Mr Rothfield, this is not a republication pleading and it does not pretend to be.
I do not think the new particulars satisfy the test stated by me in Dank v Cronulla Sutherland District Rugby League Football Club (No 3) [2013] NSWSC 1850 and approved by the Court of Appeal in Dank v Cronulla Sutherland District Rugby League Football Club [2014] NSWCA 288. They do not provide anything of further substance to demonstrate the capacity of the plaintiff to establish a claim against Mr Rothfield on the strength of those authorities.
Accordingly, I have concluded that the pleading as against the fourth defendant must be struck out. The submissions did not suggest any basis on which Mr Dank would be in a position to provide further particulars to sustain the claim against Mr Rothfield. I think it follows that the striking out of the pleading must be without liberty to re-plead and, accordingly, that the proceedings against Mr Rothfield must be dismissed.
I order that the plaintiff pay the fourth defendant's costs of the proceedings.
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Decision last updated: 10 March 2015