A recent defamation case heard by the Supreme Court of New South Wales has highlighted the importance of carefully constructing your case for defamation and who the parties you wish to sue are. Taking legal action can be a very expensive and time consuming process, so the last thing you want to do is waste money casting your net too wide and suing people or organisations who aren’t responsible for the damage done to your reputation.
In the case of Dank v Whitaker (No 1), the plaintiff sued for damages in relation to defamation he suffered as a result of a series of articles published in the Daily Telegraph. The case involved former Essendon Sports Scientist Stephen Dank and the fallout from the doping scandal that embroiled the club. He brought a defamation case due to his reputation being tarnished as a result of the articles published by the newspaper.
In an interim decision in the case a judge struck out claims brought by the Plaintiff against two individual doctors, whose comments on the medical aspects of the use of the banned substances were sought by the newspaper and published in its articles. However the court struck out the claims against the doctors due to the fact that the merely contributed material to the articles and had no control over the publishing process.
The judge relied on precedents, which set out the principle that a person who has no control over the publishing process of their comments will not ordinarily be liable as a ‘publisher’ of any defamatory comments, unless they gave approval for the article to be printed in its final form.
The Judge allowed the Plaintiff the opportunity to re-plead his claims against the doctors, but stated:
“It is, of course, a matter for [the plaintiff] how he wishes to conduct his defamation actions (hopefully on the strength of sensible and complete legal advice). … however, … the full collection of proceedings commenced by [the plaintiff] has launched something of a juggernaut. There are multiple proceedings, multiple defendants, multiple legal teams and a vast number of imputations relied upon in all. The objections that are now taken by the defendants in the present application and other applications … will afford the plaintiff an opportunity … to reassess the ambit of the fight he wishes to take on. I would urge the plaintiff … to give careful consideration to the way in which the claims are framed with a view to bringing before the court a manageable dispute calculated to raise the real issues required to be determined…”
This case highlights the need not to cast a net so wide when bringing an action for defamation that you attempt to sue every person or company that commented. It is important when commencing any legal action that you build a strong case that is very targeted and that you know you have a legitimate claim against those you wish to bring action against. Otherwise you can end up spending a lot of time and money and receive no benefit.