Google’s dream comes true: plaintiff fails because trial would cost too much to run: Bleyer v Google Inc [2014] NSWSC 897

Roland Bleyer alleged that Google Inc published seven items about him, three in the form of search results and others in relation to articles that those search results hyperlinked to. For instance, the first matter that Bleyer sued on said this:

 “The State of California v Roland Frank Bleyer: Felony Complaint for…

… offshorealert.com/roland-bleyer-rold-husner-cocaine-arrest…

Felony Complaint for Arrest Warrant in The State of California v Roland Frank Bleyer, aka Roland Husner, at Beverly Hills Municipal Court, Los Angeles…

The Defendant (again)

The Defendant (again)

Bleyer pleaded that three people read the search results, two of which occurred before Google was notified of his claim that those search results were defamatory of him. He then pleaded the usual: “Further particulars will be provided after discovery and interrogatories.”

Google brought on an application to dismiss the proceedings or have them permanently stayed. It argued that:

  1. There was an obvious and substantial disproportion between the cost of the exercise and the conceivable vindication for the plaintiff, and accordingly, the Court should apply the proportionality principle applied in the UK;
  2. Google was not a publisher of the search results or alternatively had the defence of innocent dissemination; and
  3. A judgment in Mr Bleyer’s favour would be unenforceable in the USA.

Most of the argument at the application was on whether an English Court of Appeal decision, Jameel, where a defamation claim was stayed as an abuse of process, was applicable in the NSW Supreme Court. This was based largely on the fact that the plaintiff had pleaded that only three people had read the publications complained of.

The plaintiff argued that he might find that further people had read it, once discovery and interrogatories were completed.  This was crucial, but this was rejected by Her Honour Justice Macallum.

Her Honour found that proportionality was an important aspect of justice and that the claim should be limited to what was pleaded by the plaintiff and not any speculation about who else might have read the results. Harsh. However, Her Honour did state that that it was open for a plaintiff to plead additional facts, matters and circumstances from which it could be inferred that there was broader publication, such as the popularity of the website, the public profile of the plaintiff and any other fact pointing to the conclusion that the web page would have been downloaded by a broader range of people.

As for the proportionality principle, Her Honour broke new ground in terms of Australian defamation law. She concluded that considerations of proportionality  between the value or utility of the remedy sought and the resources required to prosecute its determination may in some instances warrant the conclusion that such a remedy should not be allowed to be pursued [39], [56].

Her Honour considered the NSW Civil Procedure Act and concluded that there would be cases where the disproportion is so vast as to warrant the stay or dismissal of proceedings [57], [62]. Although such cases would be rare, this was such a case. The factors Her Honour relied on were: the fact that 2 out of 3 publications were before Google was notified of their existence, and so Google had a complete defence to those (the defence of innocent dissemination), the fact that the case would involve complicated issues of law and fact and also that, if the plaintiff won, the judgment would not be enforceable in the USA.

In terms of whether Google was a publisher of the search results, Her Honour preferred English authority which held that it was not, at least prior to notification, as opposed to the rulings of His Honour Justice Beach in Trkulja in November 2012 [77]. Another win for Google. However, the UK Court of Appeal had concluded that the situation was different for circumstances where Google had been notified of the publication. Another argument for another day.

Overall, a harsh decision. How is a plaintiff supposed to know how many people read the search engine results? If the plaintiff were to attend a job interview, and searches were conducted of his name, no doubt that these search results would appear. So the decision makes things difficult for plaintiffs.

Clearly, this was a massive win for Google. No doubt that since Trkulja, when it was ordered to pay damages of $200,000 (and did pay it), Google Inc has changed its approach to litigation in Australia. Now it argues that , being an American entity, it need not pay any judgment. How this position sits with Google’s founders’ intentions of being a good corporate citizen is another matter…

 

 

 

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Mildura Water Corporation Appeal hosed down: Lower Murray Urban and Rural Water Corporation v Di Masi & Ors [2014] VSCA 104

The appellants

Two of the winning plaintiffs

In 2012, a jury in the Supreme Court of Victoria sat in Mildura, a small orange-picking town on the border of NSW, for 22 days (there were a further four days of legal argument) and heard a defamation case. At the end of it all, left with a list of pages of questions to answer, the jury found for the four plaintiffs, three of whom were awarded $70,000 and the other $85,000.

The defendant, who had turned down an offer of compromise where the plaintiffs said that they would accept $20,000 (in hindsight: not a good call), appealed.

What happened was this:

  • In August 2008, the Minister for Water at the time, made a decision to appoint the appellant to take over the operations of the First Mildura Irrigation Trust (FMIT);
  • The plaintiffs were on the board of the FMIT at the time
  • In September 2008, the Minister wrote a letter and addressed it to all of the former customers of the FMIT about this decision. The jury found that the letter carried the following defamatory imputations:
  1. That the plaintiffs broke the law by investing $2.2 million of Victorian Government money without Treasury approval;
  2. That the plaintiffs acted irresponsibly and outside the law by investing money loaned from the Victorian Government in the United States Sub-Prime Mortgage market;
  3. That the plaintiffs approved secret, last minute adjustments to senior management contracts in the event of the First Mildura Irrigation Trust being taken over.
  • In September 2008, the managing director of the appellant uploaded the letter onto the appellant’s website.
  • The plaintiffs argued that the letter was defamatory of them and sued the appellant.

At trial, the appellant ran several defences, including that the letter written by the Minister was “issued” by the government and was therefore a public document, within the meaning of section 28 of the Defamation Act. The trial judge rejected this argument and this was one of the main aspects of the appeal.

The Court of Appeal upheld the trial judge’s findings in virtually all respects. It agreed that the letter was not “issued”, because it was only sent to former customers of FMIT, it was not of a genuinely official nature and it was not published to the public. Therefore, that s.28 defence failed: [70].

The appellant also argued that the trial judge was wrong when he rejected the section 30 Defamation Act defence, namely that the recipients had an interest in the subject matter and the appellant had a duty to publish. That was rejected because it was held that the appellant’s conduct was not reasonable, which is required by section 30(3) of the Act.

To answer that question, it was held that the Court could look at the subjective intent or purpose of the publisher [87]. The appellant had acted unreasonably because at the time of uploading the letter, the appellant had information that showed that, contrary to the letter, the board had not invested the money borrowed from the government in the United States, and the appellant did nothing to put the plaintiffs’ side of the story.

The appellant also complained about the amount of damages, since the trial judge had relied on the “grapevine effect” in a rural community. This too was rejected.

So the trial judge was validated in virtually all respects and the appeal was dismissed. Since then, defamation judges in Victoria have always been cautious about the barristers’ trial length estimates. Fortunately for Mildura, the case was not remitted back to determine a question or two, and presuming no leave was sought to appeal to the High Court, the case has now come to an end.

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420,000 reasons why Gallery Owner is no Racist: Cripps v Vakras [2014] VSC 279

In June 2009, two surrealist artists, Demetrios Vakras and Anne Raymond hired out gallery space at Guildford Lane Gallery for a 2-week exhibition. The operator of the gallery was Redleg Museum Services Pty Ltd and the owner was Raymond Cripps, a Vietnam veteran who returned in 1969 and had worked his way into the arts transportation business with his brother.  His brother worked for the National Gallery of Victoria. In 2008, Cripps and his brother opened the Gallery, having spent around $1 million fitting it out.

This painting was not done by the defendants.

This painting was not done by the defendants.

The exhibition opened, but it is fair to say that the parties were not happy. In a nutshell, and doing my best not to oversimplify what was obviously a complicated, multi-dimensional war of a trial, each thought that the other was a racist. On the one hand, Cripps thought that the artists’ works could be construed as racist, blaming Palestinian people for the situation in Israel. The artists were affronted by this and claimed that their works criticized four religions. The parties argued about the situation in Israel. Highly volatile issues were involved: anti-semitism, whether Islam was to blame, the Koran… This really became the source of the entire dispute in this case.  Within the context of this fundamental, intractable dispute, came a defamation trial before His Honour Justice Kyrou and then a lengthy judgment.

Back to the exhibition, after it ran its course, the artists sued Cripps for breach of contract in a VCAT proceeding, seeking payment of around $13,000.  They also used their two websites to upload material that attacked Cripps. For instance, on 21 August 2009, Vakras uploaded an article onto his website entitled “Exhibition in 2009 Human Transhumanist: the fiasco of Guildford Lane Gallery of Melbourne the extended version”. The article ran for 7 pages, if printed out, and included text, photos and images. Among it, were the following words:

 “… There are several words which I can describe Cripps: poisonous, vile, repellent, malignant, racist, liar, bellicose, bully, stupid … Cripps is a self-confessed racist … He is a manifestation of the new left who have adopted sentiments Hitler expressed in Mein Kampf, but who believe that, though theirs and Hitler’s sentiments are the same, their racisim is a ‘justifiable’ one.

Cripps and his company then sued the artists in defamation and the trial was heard over 2 weeks in March 2014.

Many defences were argued, and in June, Justice Kyrou delivered a tour de force, epic 789 paragraph judgment. His Honour found that Vakras’ website carried the following imputations where the defences failed [667]:

  1. the plaintiff is a disgraceful individual who is to be avoided assiduously;
  2. the plaintiff engaged in conduct which inhibited the Artists’ capacity to promote the Exhibition, causing it to fail, but the plaintiff still made a profit from the Exhibition:
  3. the plaintiff is a racist who holds views that are similar to those of Adolf Hitler;
  4. the plaintiff is a bellicose bully;
  5. the plaintiff’s pattern of intimidating behavior has left other artists reticent to describe publicly their own negative experiences with him;
  6. the plaintiff has sexually harassed volunteers and staff at the Gallery and unless he is stopped, he will continue to do so.

Anne Raymond also published her own website. His Honour found that this second website carried the following imputations where the defences failed [745]:

  1. as the operator of the Guildford Lane Gallery, the plaintiff has repeatedly engaged in behavior that destroys the exhibitions of the artists who exhibit their works there;
  2. as the operator of the Guildford Lane Gallery, the plaintiff has repeatedly engaged in behavior that sullies the reputations of the artists he represents;
  3. the plaintiff, a professional Gallerist, ceases to support and actively sabotages the exhibitions of artists who exhibit their works at the Gallery once he can no longer make any further profit from them;
  4. the plaintiff, in his arts transportation business, is universally despised;
  5. the plaintiff, by reason of his ignorance of art, is not a fit and proper person to be a gallerist.

The main reason there was no defence was because His Honour rejected the

Victorian Supreme Court

Victorian Supreme Court

evidence of the defendants. Putting to one side the allegations about Cripps’ conduct/capabilities as a gallerist, His Honour made a number of factual findings on the racism issue arising from two meetings that took place on 18 June 2009 and 24 June 2009. His Honour found that:

  • Cripps did not say that he disliked Jews;
  • Cripps did say that he opposed Israeli policy in the Palestinian areas, but this was not anti-semitism;

As a result, the artists’ websites that likened Cripps to Hitler were not based on truth. Once that finding was made, this was a serious defamation. It is fair to say that for the defendants, the judgment did not read well. Their evidence was comprehensively rejected by the judge and after that, it was never going to end well for them.

His Honour also relied on the grapevine effect and launched into a number of substantial awards of damages, namely:

  • As against Vakras: $250,000, plus a further $100,000 for aggravated damages;
  • As against Raymond: $50,000, plus a further $20,000 for aggravated damages.

This is the highest total of damages in Victoria since the cap was introduced. Whether the artists can pay or not, well that might be another thing… although it might help that on the contract claim, the artists were awarded $3.15…

In any event, it appears that appeal papers have been lodged. But what was the moral of the story? If anything, it appears to be this: if you are going to write that someone has similar views to Hitler, you might want written evidence of that before doing so, just a thought….

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2014: That Was the Season That Was

Unsaved Preview DocumentFirst of all, a big mea culpa from myself. Yes, it is true that my efforts to maintain a proper updating of this website across 2014 have ranged from abysmal to downright pathetic, but 2015 is a new year, full of promise, hope and wide-ranging resolutions.

One of which is to get back to writing up reasonably prompt casenotes when interesting cases are handed down. This will mean putting to one side the many time commitments consumed by the demands of my own practice, child-rearing, swimming, fixing the broken door, avoiding organic watermelon and re-watching the DVD of Hawthorn’s 2014 premiership glory.

Anyway, the resolution starts with a summary of the most prominent and important cases of 2014. While in the UK, the new Defamation Act 2013 commenced, in Australia, there were a number of large verdicts arising from publications on the internet, as well as a number of significant interlocutory judgments which involved injunctions, strike out applications and claims for loss of business.

The following cases were noteable in 2014:

  1. Cripps v Vakras [2014] VSC 279: a successful claim by a gallery owner against two artists arising from publications on two webpages that asserted that, among other things, the plaintiff held views similar to Hitler. Justice Kyrou awarded him $420,000 in all.
  2. Lower Murray Urban and Rural Water Corporation v Di Masi & Ors [2014] VSCA 104: an appeal to the Victorian Court of Appeal against judgments made by Justice Kaye in the plaintiff’s favour in a 2013 trial that ran for 22 days in Mildura;
  3. Bleyer v Google Inc [2014] NSWSC 897: an application by Google Inc to permanently stay a case, partly on the grounds that the costs that would be involved in running the case would be disproportionate to the remedy sought by the plaintiff.
  4. Polias v Ryall & Ors [2014] NSWSC 1692: a poker player that won $340,000 in damages for publications made by a number of other poker playing defendants on Facebook and in oral statements.
  5. Moran v Schwartz Publishing Pty Ltd & Anor [2014] WASC 334: an urgent claim brought by a person seeking to prevent the publication of a book relating to an unsolved murder from 2005.
  6. North Coast Children’s Home Inc & Ors v Martin [2014] NSWDC 125: successful claims made a foster care home, its manager and CEO against a former foster carer for publications on Facebook and in email.
  7. Setka v Abbott & Ors [2014] VSCA 287: an appeal by a plaintiff to the Victorian Court of Appeal in respect of how the defendants had pleaded a fancy type of truth defence.
  8. Dabrowski v Greeuw [2014] WADC 175:  a claim for damages by a man against his estranged former wife for publications on Facebook.

So for the first part of my 2015 resolution, these will be done. Then all I have to do is watch less T20 cricket …

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Google: “I Tort I Misused Private Information”: Vidal-Hall & Ors v Google Inc [2014[ EWHC 13 (QB)

As everyone knows, Google knows everything. Google collates and compiles information on virtually every search ever done on every computer, and uses this information to create money from selling advertising space on user’s screens. Google analyses that information to deduce from it what the interests of the users of that computer might be and then flashes those ads before our very eyes. A brilliant business model that yields to it more gross domestic product than all of Africa combined. It is a contract with all of us that Gen Y seems very comfortable with, but Gens X, W, V and any other unnamed preceding Gen for people born before 1912 …. well, not so much.

The Defendant (again)

The Defendant (again)

Is Google allowed to use this information in this way? In England, a small group of Claimants are putting it to the test. They have sued Google and allege that Google has misused their private information and acted in breach of confidence.

The three Claimants variously work as an editor, an IT security company person and an IT services company person. They, like pretty much every other person born after 1912, use the Google search engine, Google maps and Gmail.

On 12 June 2013, a Master granted permission to the Claimants to serve Google Inc with these proceedings in the USA. In this case, Google appealed to a Judge of the High Court. To establish that they could serve the proceedings outside England, the Claimants basically had to show, among other matters, that the claims arose from a tort where damage was sustained in the jurisdiction.

They also had a show a raft of other things like, for instance, that they had a good arguable case, with real, as opposed to fanciful prospects of success.

The claims were that Google Inc wrongfully collected information from their computers and then used that information to generate advertisements that were displayed on screens. They alleged that there were circumstances where the targeted advertisements might reveal information about their personalities, desires and ambitions, which might be sensitive or relate to protected characteristics. None of them claimed financial or special damage. Just that they suffered acute distress and anxiety. Nor did they claim that they were shunned or discriminated against as a result of anyone seeing anything on their screens.

Justice Tugendhaft considered how the Google brower worked, how Safari worked and then a whole range of different types of Cookies. His Honour also noted that the affidavit material referred to 170 other claimants who used Safari, but they were not claimants in this case. Why they were mentioned by the Claimants? Well maybe it sounded good.

His Honour also noted how, in the USA, Google had agreed to pay a civil penalty of $22.5 million to the United States Federal Trade Commission and also $17 million to settle US state consumer-based actions brought by the United States attorneys general representing 37 States and the District of Colombia.

Going back to the interesting question for the common law: is the claim for misuse of private information a claim in tort? …. A. Yes.

His Honour referred back to Naomi Campbell’s case, which was a claim for breach of confidence because some paparazzi took photos (that were published) of the supermodel leaving Alcoholics’ Anonymous. The conclusion from that case included this statement: “the essence of the tort is better encapsulated now as misuse of private information.”

That was all His Honour needed. After analysis of other cases, conflicting, convoluted and otherwise, His Honour ultimately accepted that the tort of misuse of private information was a tort. Hurrah!

Addressing further questions, His Honour concluded that the damage alleged, being for distress and anxiety, was sufficient to create a claim for damage within the jurisdiction, and the claim was sufficiently serious for it to be brought. However, for all of the class action lawyers around the world who are salivating like Pavlov’s dogs, His Honour put a slight dampener on it:

  • at [107]: “And for the avoidance of misunderstanding, I have not decided that any other user of the Safari browser in the Relevant Period would have a sufficiently strong case on damage.”
  • at [118]: “… what is specific about the complaints in this case is that the information was, or may have been, apparent from the screens was, on particular occasions, private information. The particular types of information specified in each of the Confidential Schedules is information for which each Claimant has a sufficiently strong case that that information was private.

Google also tried on the argument that England was an inappropriate forum and that the Claimants should sue in the USA. Pretty hard pressed to argue this when its own business is so omnipresent that it includes close-up maps of the Moon. Anyhow, Google did not suggest which State the Claimants should sue in, and His Honour rejected that argument quickly. England was the appropriate forum.

So the matter will head to trial in the UK. Google have stated that they have ceased using the Claimants’ information in the matter complained of, but somehow, this one looks like it will go all the way. As for the position in Australia, one cannot help but think that a similar-style writ will soon be finding its way to Silicon Valley…

 

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Setka further set back by the Prime Minister in Court of Appeal: Setka v Abbott & Anor [2013] VSCA 345

 

The appellant

The appellant

John Setka is the Divisional Branch Assistant Secretary of the Victorian Branch of the Construction, Forestry, Mining and Energy Union (CFMEU). On 10 February 2012, the now Prime Minister (then Leader of the Opposition), attended a conference of the Masters Builders Association of Victoria (MBA) and said the following:

Question: “How do you propose the MBA actually move forward with, some sort of campaign to support the Australian Building and Construction Commission (ABCC)?”

Abbott: “…Because so many of you have got to go onto sites every day and you’ve got to deal with the John Setkos of this world every day and the last thing you need is home visits from some of the gentlemen associated with some of the industrial organisations that you have to deal with every day and those home visits we know take place. Now the MBA is one step removed from that and it’s very very important that the MBA takes a forthright and uncompromising position and I’m pleased to say that in all my dealings with the Victorian MBA, particularly with your Executive Director Brian Welch, that is exactly what we’ve had. I can remember when I first proposed the establishment of the Cole Royal Commission, senior building industry managers who knew just how bad things were, who knew just how much intimidation their workforce were exposed to, who knew how many tens and hundreds of millions of cost overruns their projects were liable to because of unlawful behaviour and thuggery were against it. They were against the establishment of the Cole Royal Commission. They said this was a problem that could not be fixed. Well it was fixed, if not entirely, then in large measure and it was getting better all the time. It was getting better all the time and in some ways it was getting better because the companies themselves were being told ‘You’ve got to lift your game’ as well the union officials being told ‘You’ve got to lift your game’. If the manager says ‘Look I just can’t do this anymore because I will go to jail if I do it’ well then it’s that much harder for the union official to get away with demands bordering, or indeed that are in fact, extortion, so I think the MBA has a very important role and I’m confident that Brian Welch knows exactly what it is. Welch by name but not Welch by nature.”

Setka’s statement of claim alleged that the words carried the following imputations:

(a) the plaintiff engages in unlawful behaviour by visiting the homes of people working in the construction industry for the purpose of intimidating them;

(b) the plaintiff visits the home of people working in the construction industry for the purpose of making demands that amount to extortion;

(c) the plaintiff is a thug in that he visits the homes of people working in the construction industry for the purpose of intimidating them;

(d) the plaintiff is a self-confessed thug, who has admitted visiting the homes of people working in the construction industry for the purpose of engaging in the conduct referred to in (a) and (b) above.

The defendants pleaded Polly Peck defences and alleged that the words meant that the plaintiff was a person who had engaged in:

  • intimidation;
  • unlawful behaviour;
  • thuggery; and
  • extortion.

Which the defendants alleged were true. The defendants provided particulars that referred to a rally that was

The First Respondent, on his way to court

The First Respondent, on his way to court

alleged to have occurred on about 20 July 2010 outside the offices of the ABCC; a further blockade that it was alleged that the plaintiff participated in on 12 December 2008 and a second blockade on 18, 20 and 22 February 2009.

The plaintiff sought to strike out the Polly Peck defences, and the application was heard by Justice Beach on 31 October 2012. The plaintiff argued that the Polly Peck imputations were incapable of arising and that the imputations were not permissible variants on the plaintiff’s pleaded meanings. He also sought to strike out some particulars of truth as being unable to support the relevant plea of truth.

The plaintiff argued that the words were not capable of bearing the broader meanings submitted by the defendants, but Justice Beach found that they were arguable and were matters for the jury at trial. The meanings were capable of arising and not substantially different from the plaintiff’s meanings.

The plaintiff’s application was dismissed by Justice Beach on 12 November 2012.

Not set back by this, Setka filed a Notice of Appeal and took the matter to the Court of Appeal. A brave step, but the result was not good. The main problem faced by the legal representatives for Setka was that, on the appeal, they sought to argue 4 grounds which had not been argued before Justice Beach. They wanted to argue that the Polly Peck defence was not available in law and that the defence was bad in form because it was “entirely vague and general”.

The Court of Appeal were not impressed. They did not even answer the new grounds that were argued by the plaintiff and their decision was based virtually entirely on the proposition that the plaintiff should not be allowed to run the new grounds. That was it. The Court concluded that the plaintiff could bring the application before a single judge, and could even argued the points at trial, but not in the Court of Appeal when the points had not been run below. Harsh.

And so, after a year of waiting for the appeal to get on, Setka is back where he was more one year ago: the defences stand and he still does not know if his new grounds of appeal are any good or not. Whether he brings another application to run those new grounds remains to be seen. Maybe the Court of Appeal will like them better second time around.

As for Tony Abbott, he is Prime Minister: life could not be better.

 

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Dank’s defamation juggernaut faces first hurdles: [2013] NSWSC 1122; [2013] NSWSC 1064

Dr Dank

Dr Dank

The biggest name in Australian sport this year is not a footballer, a cricketer or even an athlete. The biggest name in Australian sport is Dr Stephen Dank, a “sports scientist”.  He is not a medical doctor, but in 2011 and 2012, he was brought in to help at least two clubs: the Essendon Football Club in the AFL and the Cronulla Sharks in the NRL, the National Rugby League.

Why he was brought in, one can only ask those who decided to, but the ultimate purpose seemed to be this: put in place programs of injecting players with peptides that were not WADA-banned, with a view to helping the performance of those teams.

This year, the biggest story in sport has been the investigations by the Australian Crime Commission and the Australian Sports And Doping Agency (ASADA), into what happened at these two clubs in those periods. Did their players receive performance enhancing drugs? Did their players receive drugs that were banned by WADA? At the centre of these stories has been one mysterious figure, Dr Stephen Dank, the plaintiff in this, and several other defamation cases recently issued in NSW.

In Melbourne, virtually every day has seen page one of the newspapers taken up with the investigation into the Essendon Football Club and the face of James Hird, the coach of Essendon, shrugging his shoulders and wondering what all of the fuss is about. He claims he had no idea what Dank was doing, with those 15,000 injections and that according to Hird’s understanding, everything done was above board. The AFL charged Essendon and Hird, among others, for bringing the game into disrepute. There do not appear to be any records anywhere, of what the players actually received, while the AFL charges allege that the players received WADA-banned substances.

Despite being in the press more often than all of the Royals put together, Dank has not issued any defamation proceedings against any media outlet in Victoria.

However, in New South Wales, Dank has issued 8 separate proceedings, in what Her Honour Justice McCallum has described as a “juggernaut”. One of the main differences between Victoria and NSW, is that in NSW, the Cronulla Sharks had a player, John Mannah, who died of cancer. Various articles appeared to allege that there might have been a link between the death and the drugs given by Dank. So he has sued the publishers of those articles.

The defendants have variously applied to strike out the imputations pleaded by Dank, and a number of those strike out applications were heard by Her Honour Justice McCallum. Using the last 3 numbers from each of the proceedings, this is what happened.

487 and 493

There had been reports that a medical doctor at the Cronulla Sharks was sacked, Dr Givney. On 10 March 2013, The Sunday Telegraph reported that Dr Givney’s daughter, stated on Facebook that her father had resigned in protest after the club’s training manager, Trent Elkin had employed a “sports scientist named Stephen Dank.”. The article quoted the daughter as saying:

Shortly after, the doc discovered mysterious heavy bruising on some of his players. He discovered that Danks had been injecting them with warfarin, a blood thinning medication, in an attempt to increase oxygen flow.

Concerned about the welfare of his beloved players, the doc confronted Danks and Elkin about what they were doing. When they refused to tell him, Dr Givney resigned … in protest.

Proceeding No. 487 is for publication of this article in the newspaper and proceeding no, 493 is for publication of it online. Whether Dank is allowed to run separate proceedings for these publications will be determined later, as the defendants have made an application that this is an abuse of process.

Dank pleaded three imputations from the article:

  • The plaintiff caused Cronulla players to be at risk of sustaining fatal injuries.
  • The plaintiff oversaw the administration of the medication warfarin on Cronulla football players which endangered their health.
  • The plaintiff acted dangerously by injecting Cronulla players with warfarin thereby endangering their welfare.

The first imputation was struck out because there was no reference in the article to any injury which might have been considered fatal.  It was held that the second imputation was capable of arising, and that the third imputation was so similar to the second that the plaintiff should elect which one he wishes to press.

114 and 118

Again, Dank sued in separate proceedings for the publication of a newspaper edition of The Daily Telegraph, and then a separate claim for the online publication of that article. Her Honour stated that the articles were plainly capable of conveying a defamatory meaning. Dank pleaded the following imputations:

  1. The plaintiff is a murderer.
  2. The plaintiff murdered Jon Mannah;
  3. The plaintiff accelerated the death of Jon Mannah;
  4. The plaintiff wrongfully administered peptides to Jon Mannah thereby aggravating his cancerous condition;
  5. The plaintiff is liable for the manslaughter of Jon Mannah because of his horrific conduct in administering dangerous substances to him which brought about his death;
  6. The plaintiff administered dangerous and cancer-causing supplements to football players thereby exposing them to risk.
  7. The plaintiff thereby injected football players with peptides CJC-1295 and GHRP-6 in the period March to May 2011 thereby exposing them to illness or death.

Her Honour held that the first two imputations were struck out because nowhere in the article did it say anything about the plaintiff’s intention to deliberately kill Mannah. They were also bad in form for ambiguity. The third imputation was struck out because it did not say anything defamatory about Dank. There was no condition attached to the plaintiff from the imputation. The plaintiff withdrew the fourth imputation, conceding that the word “wrongfully” was unclear. The plaintiff also accepted that the fifth imputation needed to be repleaded. Her Honour then concluded that the sixth imputation, although tenuous, was not liable to be struck out. However, the seventh imputation was struck out because there was nothing in the article that suggested any exposure to death, and so the meaning could only arise from a forced  or unreasonable reading of the article.

586 and 595

Again, Dank sued separately for the newspaper edition and the online publication. The article was entitled: “Police Look at Mannah’s death”. The article stated:

“Medical experts have stated that peptides, such as those given to Mannah, just two years after he was diagnosed with Hodgkin’s Lymphona, and while he was in remission, could potentially be harmful and accelerate the condition.”

The article quoted Professor Kenneth Ho, an endocrinologist, as stating that, based on the property of growth hormones, there was a risk that cancer growth could be propagated if a person with an established cancer was given such a peptide. The plaintiff pleaded the following imputations, which the defendants challenged:

  1. The plaintiff is a murderer;
  2. The plaintiff murdered Jon Mannah;
  3. The plaintiff accelerated the death of Jon Mannah;
  4. The plaintiff wrongfully administered peptides to Jon Mannah thereby accelerating his cancerous condition.
  5. The plaintiff faces potential criminal action by NSW Police Force detectives over Jon Mannah’s death from cancer.

For the same reasons as the previous set of proceedings, the first three imputations were struck out and the plaintiff conceded that the fourth imputation was bad in form. As for the fifth imputation, Her Honour concluded that it did not distill any defamatory act or condition and was liable to be struck out on that basis.

So where to for these cases? A lot of work still for the plaintiff’s legal team and no doubt, there will be more instalments from Dr Dank’s legal team and their opponents, that we will read about this year.

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Cronulla’s legal advice on ASADA kept confidential: Cronulla-Sutherland District Rugby League Football Club Ltd v Nationwide News Pty Ltd [2013] NSWSC 494

The biggest news in Australian sport this year has been the investigation by the Australian Crime Commission and the Australian Sports Anti-Doping Authority (ASADA) into the alleged use by athletes and members of sporting teams of peptides and similar so-called alleged performance enhancing products.

Cronulla Sharks

Cronulla Sharks

While players from the Essendon Football Club in the AFL have recently been interviewed by ASADA, in terms of the National Rugby League, the club that seems to be most in the spotlight is the Cronulla Sharks. The Club retained a former judge of the Industrial Relations Commission, the Honourable Dr Tricia Kavanagh to conduct an inquiry in relation to its team. Dr Kavanagh provided a report, and Justice Fein indicated that it was really just a chronology with an accompanying summary.

Anyway, on 27 February 2013, the Club’s solicitor, Mr Darren Kane gave a written advice and on 6 March 2013, another advice was given by Mr Allan Sullivan QC.

The Club claimed that the defendants (the publisher of the Daily Telegraph and a number of its journalists) published material from the Kane Advice, particularly in 13 items on 26-27 April, and that they indicated that they intended to publish future material from those advices. The Club sought the extension of an injunction to prevent the publication of that material, on the basis that the material was confidential legal advice. The Club did not seek to restrain any material from the Kavanagh report.

Justice Rein examined the advices and concluded that all 13 items were taken from the Kane advice, and that none of those 13 items were referred to in the Kavanagh report. There was still a question whether the defendants had the advices and no documents were produced by them after the plaintiff served a notice to produce them. It was noted that the journalists might have transcribed portions of the advice.

There was evidence that the defendants were intending to publish the advices in the future. In a radio interview on 27 April 2013, the second defendant, a journalist stated that:

  • There was a lot more to come in the next couple of weeks;
  • The report was leaked, and another lawyer had gone over the Kavanagh report and added to it with the possible legal ramifications for the Club’s Board;
  • The document was identified as a 60-page document;
  • It was not reported but would be in the following week, once it was legalled.

Justice Rein concluded that it was clear that the material published came from the Kane advice and that it was confidential advice given by a lawyer to his client. There was sufficient material to establish that some of the defendants knew that this was the case.

The defendants argued that the advices were not confidential because they had been identified in previous publications in the public domain. That argument was rejected. While there was no clear evidence that the defendants had the Sullivan advice, there were several indications that this was the case.

While the defendants had not explained exactly what they held, Justice Rein still concluded that the Club was entitled to an order preventing any further publication of any of the legal advice given by Mr Kane or Mr Sullivan.

So for now, the players and Clubs all around Australia still wait for ASADA’s findings. The media no doubt, will be holding their front pages when the time comes.

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Journalist’s source can be served as a pseudonym: Ultrasonic Slimming Pty Ltd & Anor v Fairfax Media Publications Pty Ltd [2013] NSWSC 547

Justice Nicholas was asked a question that has been troubling humankind since the dawn of time: If a tree falls in a forest and no-one hears it, does it make a sound? Or put in terms of the defamation list, if a statement of claim is served on a pseudonym, has the case started?

SMHOn 6 March 2013, the Sydney Morning Herald ran a story: “investigation of cheap Botox `sausage factory’.” The journalist, Melissa Davey, had a source for the story, and she promised to keep the identity of that source a secret. She wrote the following in her article:

“A patient, Susie Driver, complained to the college after she developed thrush and a two-week headache after treatment in December. She had previously bought a voucher from the discount website Groupon to receive `anti-wrinkle injections’ for $139….

Ms Driver said that when she redeemed the voucher she was told she would receive 30 units of Botox over two facial areas, working out at $4.63 a unit. According to the college, in Australia genuine Botox costs a doctor about $5.67 a unit…..

Ms Driver said she was told Botox would be used in the injections.

The Gladesville clinic eventually refunded the price of Ms Driver’s voucher.”

The first plaintiff ran the business, Ultrasonic Slimming Clinics and the second plaintiff was the owner and sole director of the business. They sued the Sydney Morning Herald, Melissa Davey and also Susie Driver, who as it turned out, is not her real name.

In serving the statement of claim, given that the plaintiffs had no idea who the mysterious Susie Driver was, they applied to the court for an order for substituted service. They intended to send the statement of claim pm her, by serving the solicitors for the first two defendants. The media objected.

The media relied on the tried and trusted privilege relating to the identity of the journalist’s source. They referred to sections 126J 126K and 131A  of the Evidence Act 1995 (NSW). Those sections basically provide that if a journalist has promised an informant not to disclose the informant’s identity, then neither the journalist nor the employer is compellable to give evidence that would disclose the identity of the informant or enable that identity to be ascertained.

The media defendants argued that what the plaintiffs were doing, was simply trying to get the source’s identity through other means, in that the source would have to put in an appearance and thus reveal her secret identity.

However, His Honour Justice Nicholas disagreed that this would necessarily happen. He concluded that the application was just one of procedure and of bringing notice of the case to “Ms Driver”. The journalist-source privilege provisions had no application to what the plaintiffs were trying to do, and substituted service ought to be allowed. Nothing in the application sought disclosure of anything from anyone.

So Ms Driver could be served with the proceedings and it was really up to her as to what their next step would be. His Honour pointed out that Ms Driver could apply for a suppression order or a non-publication order (not sure what the point of that would be, the person would still be liable for damages, just no-one would know about it).

So apparently, a plaintiff can sue a person under their pseudonym. Lucky they didn’t have this rule in Gotham City, Batman would have been bankrupted six times over.

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Talk-back caller’s claim does not get on: Casley v ABC [2013] VSC 251

Jon Faine is the talk-show host on ABC Radio in the morning in Melbourne. On 2 July 2010, he took a call from a self-described “well known and frequent caller to radio talkback programs” and the “secretary of the People Yes Party.” Faine had asked listeners to ring in and express their views about the mining tax.

According to the plaintiff, who was the caller, the conversation went like this:

Jon Faine

Jon Faine

Faine: John in Sandringham. Morning to you John.

Casley: Oh good morning, Jon. Look, er the tax doesn’t stop the profits being taken out by the bucketful every year and this is the enormous problem that’s facing Australia.

Faine: Its John from Brighton isn’t it?

Casley: Er no, Sandringham.

Faine: Yeah Brighton. Its John Casley. Good morning how are you?

Casley: Hello Jon.

Faine: Have you moved?

Casley: Ah, yes.

Faine: OK. Well, John from Brighton in Sandringham. But let’s just be clear, your um – status with ABC talkback I don’t think has changed, John.

Casley: Well, all I wanted to say was that the People Yes Party has a policy which puts a tax…

Faine: You’re not welcome to come on and spruik a political party and, John, owing to your repeated racist utterances on the program, as you well are aware, you have been banned. So John from Sandringham or John from Brighton, its still the same guy.”

Putting to one side the imputations that the broadcast carried, the first problem that Casley faced was the timing of his case. The limitation period is 12 months from the time of publication and the plaintiff filed his statement of claim on 27 March 2013, more than two and a half years after the event. The ABC applied to strike the case out.

To get the claim off the ground, the plaintiff had to show that it would not have been reasonable for him to have brought the proceedings within 12 months of the broadcast. So the issue was this: what is the excuse?

The plaintiff said that he had made a complaint to the Australian Communications and Media Authority (ACMA) and spent most of his time waiting for a response from them.

The problem with that was that on his own timeline, there were still large gaps when the plaintiff did not act. At first, he wrote to ACMA on 20 August 2010 to complain. ACMA responded on 18 October and 19 November 2010 saying that the plaintiff had to raise the matter with the ABC first. So the plaintiff raised it with the ABC and on 19 May 2011, ACMA wrote to the plaintiff again and expressed a preliminary view that there had been no breach of the ABC’s Code of Practice. The plaintiff was invited to comment before a final decision was reached.

There was further correspondence and then on 6 July 2011, just over a year after the broadcast, ACMA gave the plaintiff a final report. It concluded there had been no breach of the ABC’s Code of Practice.

The plaintiff said that he had not brought proceedings to that stage because he did not want to jeopardise the ACMA investigation. However, no steps were taken by the plaintiff between July 2011 and December 2011. On 23 December 2011, he again wrote to ACMA and said that he wanted ACMA’s decision to be appealed to the Administrative Appeals Tribunal.

On 7 May 2012, ACMA wrote back and told him that he had no formal right to have ACMA review its decision, and could not appeal to the AAT. Thereafter, the plaintiff did not act further until 27 March 2013, when he issued these defamation proceedings.

Justice Beach concluded that it is not easy for a plaintiff to get an extension of time, and that there were no circumstances which made it unreasonable for the plaintiff to bring the proceedings within the twelve month period. The ACMA complaint route was not an alternative to litigation and it was not the same as settlement negotiations. Therefore, the plaintiff lost.

His Honour went further and stated that, even if he had been satisfied that it was not reasonable for the plaintiff to have commenced the proceedings within a year of the broadcast, as a matter of discretion, he would not have extended the limitation period to 27 March 2013, but the proper exercise of His Honour’s discretion would have extended the period to 12 months from 6 July 2011, when ACMA sent its final report to the plaintiff. On any view, the case was statute barred and struck out.

Next caller please.

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