Dank v Whittaker

Judgment 1HER HONOUR: Dr Stephen Dank has instituted a number of proceedings for defamation arising out of the publication of a series of newspaper articles concerning the suspected administration of performance- enhancing substances to footballers at the Cronulla Sharks Football Club. The articles state that the substances were administered during a time when Dr Dank was retained by the Club as a "sports scientist". Dr Dank is not a medical doctor but evidently holds a PhD in biochemistry. 2In each of the proceedings, various objections have been taken by the defendants to the form of the pleadings. Some of the objections in different proceedings raised common issues which were able conveniently to be heard together. This judgment determines applications in two of the proceedings to have the pleading as against each applicant struck out on the basis that no reasonable cause of action is disclosed. Specifically, it is alleged in each case that the particulars provided by the plaintiff are incapable of sustaining the plea that the matter complained of was published by the relevant defendant.

Proceedings 114 3Owing to the large number of separate proceedings commenced by Dr Dank, it is convenient to refer to each proceeding by the last three numerals of the relevant file number. The first application before the Court is made by the second defendant in proceedings 114, Dr Peter Larkins. Dr Larkins is a medical doctor who is quoted in the articles. The other defendants in proceedings 114 are the editor of the newspaper and the journalists under whose by-lines the articles were published; the author of a leaked report which is the focus of the articles and a solicitor apparently associated with the investigation which resulted in the production of the leaked report. 4Proceedings 114 arise out of a series of articles published in The Daily Telegraph on 26 April 2013. The articles appeared in two different sections of the newspaper (at pages 1 to 3 and pages 134 to 136) but are sued on as a single defamatory publication. No objection is taken to that course. 5Broadly speaking, the subject of the articles is the content of the leaked report, described in the articles as "explosive". The report warned the Club of an apparent causal link between the administration of peptides to its footballers and the death of one footballer, Mr Jon Mannah. The report is quoted in the articles as stating that Mr Mannah had previously been diagnosed with Hodgkin's lymphoma, a form of cancer, while under contract as a player with the club. After a period of treatment the cancer evidently went into remission and Mr Mannah was deemed fit to return to train and play in the 2011 football season. During that time, he was injected with two particular peptides over a period of several months. Mr Mannah's cancer subsequently returned. He died earlier this year. 6The report is quoted in the articles as having included the following statements: 45 A brief review of the available published medical literature suggests an identified causal link between the use of substances such as CJC-1295 and GHRP-6 and the acceleration of the condition of disease Hodgkins lymphoma. 46 Without knowing anything further about Mannah's exact medical history and without seeking expert opinion from an appropriately qualified oncologist it is difficult to take this issue further. 47 However the issue of Mannah has the potential to be as serious as matters could get. 48 The club should be prepared for the potential for sections of the media making the same causal connection between the program administered and the illness suffered by Mannah. 7The articles stated that the peptides referred to in the report were administered "after sports scientist Stephen Dank was recruited to Cronulla by ex Sharks head trainer Trent Elkin at the beginning of the 2011 season." The articles stated that it was not known whether the drugs were part of Dr Dank's program. 8As apprehended by the author of the report (in the passage set out above), the media swarmed in on the issue of a potential connection between the administration of the two peptides and the death of Mr Mannah. The articles explored the issue referred to in the report of the need to seek expert opinion from an appropriately qualified doctor and, in that context, quoted a number of statements attributed to Dr Larkins. At paragraph 71 of the matter complained of, the following words are attributed to him against the description of his being a "leading Australian sports doctor": I would have thought if I had any player or any patient that had any history of any cancer process the last thing I would even contemplate giving them is anything that increased cell growth. That would be an incontestable thing to do. If I had a woman with breast cancer who was in remission-phase, you would never contemplate giving her any medical treatment that had the potential to reactivate or stimulate cell multiplication. 9The last three pages of the matter complained of, which probably appeared at the back of the newspaper in the Sports section, explored that issue in greater detail. Under the heading "Supplement Link to Mannah's Relapse", the articles reported Dr Larkins' horror at the possibility that Mr Mannah was given "growth accelerants" during the remission of his disease. However, the comments attributed to Dr Larkins by no means make up the whole of the matter complained of. There is a great deal of input from other sources as well as substantial contribution by the journalists themselves. 10The statement of claim pleads the element of publication as against all defendants in simple terms, as follows: In "The Daily Telegraph" of 26 April 2013 the defendants published or caused to be published of and concerning the plaintiff certain defamatory material a copy of which is annexed hereto and marked 'A'. 11In response to an objection by those representing Dr Larkins that he could only be liable for what he himself published (in accordance with the principles considered in Speight v Gosney (1891) 60 LJQB 231) and a request for particulars to support the contention that Dr Larkins published the whole article, the plaintiff said: Your client became a co-publisher of the article complained of when he made the statements to journalists about how horrified he was over the administration of supplements to Mr Mannah which were linked to his death. Dr Larkins knew that what he said would be republished in the newspaper and his statements were the rock on which the defamatory imputations were based. Dr Larkins made his statements at a time when media allegations that our client administered substances to football players were at their peak. Mr Dank's name was incorporated in headlines in the print media and he was featured in the electronic media almost daily. This was particularly so at the end of April 2013. It is noted that Dr Larkins made no complaint about the article until he received the statement of claim. It is well settled that all persons who procure or participate in the publication of a libel therefore are jointly and severally liable for the whole damage suffered by the plaintiff. Your attention is drawn to what Isaacs J said in Webb v Bloch (1928 41 CLR 331): "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 art of publication ... Thus if one suggests illegal matter in order that another may write or print it, and that a third may publish it, all are equally amendable for the act of publication when it has been so effected". (Webb v Bloch (ibid) per Isaacs J at 364). ...It's not that Dr Larkins said every word of the article complained of, but that he published or materially contributed to the publication of the eight defamatory imputations. 12The imputations relied upon by the plaintiff in respect of the articles include imputations that the plaintiff is a murderer and that he murdered Jon Mannah.