Dank v Whittaker (No 1) [2013] NSWSC 1062

Dank v Whittaker (No 1) [2013] NSWSC 1062

The particulars set out by the plaintiff were incapable of sustaining the allegation that Dr Larkins or Professor Ho had control of or assented to the final version of the matters complained of. In the absence of facts showing control or assent, the pleadings against them as joint publishers should be struck out; however, the plaintiff was given leave to re-plead.

Jurisdiction
Australia
Judgment Date
07 August 2013
Procedural Posture
Interlocutory Applications / Application to Strike Out Pleadings With Leave to Re Plead
Outcome
Pleadings as against Dr Larkins (2013/157114) and Professor Ho (2013/184586) struck out with leave to re-plead. Plaintiff ordered to pay the costs of the applicant in each matter.
Legal Topics
['publication' 'joint Liability as Publisher' 'pleadings' 'control and Assent in Publication' 'strike Out Applications']
['defamation'] ['publication' 'joint Liability as Publisher' 'pleadings' 'control and Assent in Publication' 'strike Out Applications']

Case Brief

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Procedural Posture

Interlocutory Applications / Application to Strike Out Pleadings With Leave to Re Plead

Legal Issues

  1. 1 ['Whether the particulars provided by the plaintiff are capable of sustaining a plea that the matter complained of was published by Dr Larkins and Professor Ho as joint publishers of the whole allegedly defamatory publication']

Ratio Decidendi

The particulars set out by the plaintiff were incapable of sustaining the allegation that Dr Larkins or Professor Ho had control of or assented to the final version of the matters complained of. In the absence of facts showing control or assent, the pleadings against them as joint publishers should be struck out; however, the plaintiff was given leave to re-plead.

Court Disposition

Pleadings as against Dr Larkins (2013/157114) and Professor Ho (2013/184586) struck out with leave to re-plead. Plaintiff ordered to pay the costs of the applicant in each matter.

Orders

  • ['In proceedings 2013/157114, pleadings as against Dr Larkins struck out with leave to re-plead.' 'In proceedings 2013/184586, pleadings as against Professor Ho struck out with leave to re-plead.' "Plaintiff to pay the applicant's costs of the argument in each matter."]