Capilano Honey LTD V Dowling (No 2) (2018) NSWCA 217
Capilano Honey LTD V Dowling (No 2) (2018) NSWCA 217
Capilano Honey LTD V Dowling (No 2) (2018) NSWCA 217
(4) Stay the operation of orders (2) and (3) for a period
of 14 days from the delivery of this judgment.
Representation: Counsel:
Mr A T S Dawson SC / Ms M A Cowden (Applicants)
Respondent self-represented
Solicitors:
Addisons Lawyers (Applicants)
Respondent self-represented
Before: McCallum J
HEADNOTE
[This headnote is not to be read as part of the judgment]
On 15 May 2017, three days after directions were given with respect to a
foreshadowed application by the respondent to strike out the proceedings for
want of prosecution, the applicants filed and served a statement of claim.
(i) whether the trial judge erred in approaching the matter as a first contested
hearing on the question whether the orders should have been made.
The Court (Basten JA, Beazley P and McColl JA agreeing) dismissed the
appeal and held:
Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44; Liu v The Age
Company Ltd (2016) 92 NSWLR 679; [2016] NSWCA 115, distinguished.
2. The trial judge did not err by placing weight on free speech considerations;
there is no basis for concluding that such considerations cannot be taken into
account in determining whether to grant an interlocutory injunction in
proceedings for injurious falsehood: [53].
Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388; [2001] HCA 69;
Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; [2006] HCA
46, considered.
3. It was open to the trial judge to conclude the orders imposed significant
restraints on the respondent’s ability to engage in public debate regarding
questions of trade, and health and safety regulation: [55]. Evidence was not
required to establish the existence of public concern about these issues; if it
were required, it could be found in the corporate applicant’s own case about
the alleged damage the articles could cause it: [57].
4. It was open to the trial judge to place significant weight on the applicants’
delay in pursuing the proceedings when determining whether the orders should
be revoked. Her Honour was correct to reject as inadequate the applicants’
explanation that they had focused their resources on pursuing related
proceedings against a third party: [91]-[92].
5. The trial judge did not misconceive or disregard the evidence before her
regarding damage to the corporate applicant: [77]. In order to obtain
interlocutory injunctive relief, it is necessary to establish both a prima facie
case with respect to each element of the relevant cause of action, and a level
of damage sufficient to warrant the granting of relief. In proceedings for
injurious falsehood, the latter element cannot be elided with the requirement to
establish, prima facie, some damage or likely damage sufficient to satisfy an
element of the cause of action: [78].
6. To the extent that orders may have been available in one but not both
defamation and injurious falsehood claims, the applicants bore the onus of
distinguishing between them. As they did not do so, it was not for the Court to
attempt to draft orders that might have accommodated differences between the
causes of action: [101]; [111]; [119].
The court also made comments regarding the making of urgent ex parte
orders, and interlocutory and interim orders, at [113]-[124].
JUDGMENT
1 BEAZLEY P: I have had the advantage of reading in draft the reasons of
Basten JA. I agree with his Honour’s reasons and proposed orders.
2 McCOLL JA: I agree with Basten JA’s reasons and the orders his Honour
proposes.
3 BASTEN JA: On 8 June 2018 the Defamation List judge, McCallum J, vacated
suppression orders, take-down orders and interlocutory injunctions made in
October 2016 when the substantive proceedings were commenced.1 The
1
Capilano Honey Ltd v Dowling [2018] NSWSC 865.
applicants, Capilano Honey Ltd (“Capilano”) and its Chief Executive Officer, Mr
Ben McKee, foreshadowed an application for leave to appeal. McCallum J
stayed the operation of her orders for a short period, the stay being extended
by this Court until the determination of these proceedings.2 The application for
leave to appeal was heard on 19 July 2018.
4 The issue can be identified briefly as follows. On 7 October 2016 the corporate
applicant, Capilano, commenced proceedings against the respondent, Shane
Dowling, alleging publication on the internet of injurious falsehoods against the
company; the individual applicant, Mr McKee, commenced proceedings for
defamation in relation to the same material and one further article referring
specifically to certain comments he had made. Before commencing the
proceedings the applicants sought and obtained ex parte interim orders falling
into three categories, namely:
Leave to appeal
6 The substantive proceedings remain on foot but are unresolved; the question is
whether the primary judge erred in vacating the non-publication orders, the
take-down orders and the interlocutory injunctive relief preventing further
publication of the offending material. The orders made by McCallum J were
themselves interlocutory; accordingly, the applicants required leave to appeal.
2
Capilano Honey Ltd v Dowling (No 1) [2018] NSWCA 128.
7 There are three reasons why a grant of leave is appropriate. First, the
application of principles regarding interlocutory relief designed to remove
allegedly offending material from the internet whilst substantive claims based
on that material are agitated have not been fully worked through in the case
law. Secondly, the present case provides a convenient vehicle to address
several factors which can arise in such cases, namely, (a) the extent to which
the injurious material was already in the public domain; (b) the significance of
the refusal of the party the subject of the interlocutory orders to comply with
them and (c) the apparent unwillingness of the party which obtained the orders
to enforce them. Thirdly, the applicants’ case is more than merely arguable.
8 Accordingly, there should be a grant of leave to appeal, but, for the reasons set
out below, the appeal should be dismissed. The stay which was granted on
15 June 2018 until the determination of the appeal should be continued for a
period 14 days after delivery of this judgment. If, within that period, Capilano or
Mr McKee decides to seek special leave to appeal to the High Court, a further
application may be made to a judge of this Court for an extension of the stay, in
accordance with the practice explained by Brennan J in Jennings Construction
Ltd v Burgundy Royale Investments Pty Ltd [No 1].3
Factual background
9 The corporate applicant produces and markets honey in Australia. Its principal
brands are “Capilano”, “Allowrie”, “Smith’s” and “Wescobee”. The respondent
has established a website with the inauspicious name Kangaroo Court of
Australia. On 17 September 2016 the respondent posted an article on his
website headed “Australia’s Capilano Honey admit selling toxic and poisonous
honey to consumers”. Alongside the heading was a picture of the products as
they appear on supermarket shelves headed “Capilano and Allowrie honey”,
with a subheading in small print “filled with toxins, antibiotics and Chinese
pollen”. Underneath in large capital letters was the word “poison”. The first
paragraph of the article read as follows:
“Capilano Honey are putting the lives of Australians at risk by knowingly selling
honey that is full of antibiotics, toxins, irradiated pollen from China and
alkaloids. Capilano are also deliberately concealing from consumers the fact
3
(1986) 161 CLR 681 at 684-685; [1986] HCA 84.
that a large percentage of their honey is imported from China, Mexico,
Argentina (where they have a factory), Hungary and Brazil.”
The article contained reports of similar claims made by another person
described as a “whistleblower and consumer activist”, Simon Mulvany. The
article reported proceedings brought by Capilano against Mr Mulvany,
described as “frivolous and vexatious defamation proceedings”.
“In May 2016 Ben McKee was at a meeting with Simon Mulvany to try and
conciliate an out of court resolution in relation to the defamation case. Also at
the meeting was a documentary filmmaker Alex who is filming a documentary
with Mr Mulvany on the bee industry. For some unexplained reason Ben
McKee thought that was an appropriate forum to talk about having anal sex
with one of the Capilano female employees.”
11 The conversation apparently took place in a car whilst Mr McKee was driving.
In what appears to have been a vigorous exchange, Mr Mulvany was
suggesting that McKee name someone within Capilano with whom he could
communicate, “preferably a fucking nice woman”, to which Mr McKee
responded:
“Next minute you’ll be in the office, Hi there I’m rooting [X] from accounts. I
boned her last night in the arse. See you tomorrow.”
The article on the respondent’s webpage was arguably a misstatement of the
content of the crude exchange in the car.
12 Both articles were published on the respondent’s Facebook page with a link to
his twitter address. A number of comments by third parties also appeared on
the pages, generally expressing concern about the purity of Capilano honey.
13 The application for interlocutory relief came before Hall J in the Common Law
Division on Friday, 7 October 2016. The judge made an interim order under the
Non-publication Orders Act suppressing publication of the hearing of the
proceedings on 7 October, an order expressed to continue until the
proceedings came back before the Court. In consequential orders, the
applicants were directed to serve the respondent by email by 8pm on
7 October 2016 and advise the respondent of the time, place and date of the
further hearing and the terms of the orders. The return of the summons was
stood over until 10 October 2016 at 3pm.
17 The matter came before Davies J on 10 October, at which stage the applicants
were granted leave to file a notice of motion and supporting affidavit, seeking
orders that the respondent remove the 9 October article and be restrained from
republishing it. The judge extended the first order made by Hall J on 7 October
to operate “until further order” (order 3 of 10 October). (No similar order was
made with respect to the hearing on 10 October.) The applicants were given
leave to file the motion and the judge made the orders sought with respect to
the 9 October article “and any subsequent comments published by [the
respondent] on that publication”. No order was made preventing publication of
the proceedings on 10 October.
18 No reasons were published for the orders made on 7 October, but reasons
were given for the orders made on 10 October 2016.4
19 Davies J stated:
[2] Suppression orders were also made by Hall J…. There is some doubt …
whether those suppression orders were to continue only until today or whether
they were, with the other orders made, to continue until further order of the
Court. I am satisfied by … reason of the need for the suppression orders that if
they were interim orders only until today, they should be continued until further
order of the Court.”
No orders to that effect were made, except with respect to order 1 of October
7. Davies J also noted:
“[4] … I am entirely satisfied that [the respondent], who has not appeared this
afternoon, was aware that the proceedings were to be before the Court at
three o'clock this afternoon in the Duty Judge’s list, because he forwarded an
email to the Court complaining about the orders made by Hall J, and about
what he said was the short notice to him that the proceedings would be again
before the Court today.”
20 Although the proceedings on 10 October were not adjourned and proceeded ex
parte, the parties were given liberty to apply on two days’ notice. The judge
4
Capilano Honey Ltd v Dowling [2016] NSWSC 1441.
said that the respondent appeared to be “guilty of contempt of court in failing to
take down the articles and by the further publication” and referred the matter to
the Registrar.5
21 There are some curious aspects of the proceedings described above. First,
and somewhat unfortunately, there was no reasoned judgment available to this
Court explaining why the orders were made on 7 October, or why they took the
form that they did. For reasons which will be discussed further below, the
courts approach the issue of interlocutory injunctions in defamation
proceedings with caution. Although Capilano submitted in this Court that the
proceedings it brought were for injurious falsehood, rather than defamation, a
similar concern arises with respect to the intrusion upon freedom of speech
with respect to a matter of potential public interest. (While the car conversation
article appears to be a matter of no interest, the same cannot be said of the
toxic honey article.)
23 The second curiosity arose from the form of the orders. It is apparent from the
transcript that the judge was acutely conscious of the distinction between an
interim suppression order and an interlocutory injunction. He was also
conscious of the principles governing interlocutory injunctions in defamation
proceedings, as appears from an earlier judgment involving the respondent in
other proceedings.8 The form of the orders in fact made (including order 6 in
final terms) was almost certainly a product of the haste with which the matter
5
Davies J at [6].
6
Tcpt, 07/10/16, p 17(23).
7
Tcpt, p 17(4).
8
Munsie v Dowling [2014] NSWSC 598 (delivered 16 May 2014) (Hall J).
was prepared, presented and determined. As just noted, the proceeding was
not completed until after 5pm on Friday afternoon and must have commenced
late in the afternoon. Counsel did not have a copy of the summons on which he
sought to rely when submissions commenced;9 it appears that the judge was
first taken to the summons halfway through the hearing.10 Later the judge
inquired as to whether counsel had short minutes and was told, “[t]hey are also
on their way.”11 Draft orders were eventually supplied.12 Nothing said thereafter
adverted to the fact that, with the exception of order 1 which had been made,
the orders were in the form of interlocutory injunctive relief, or final relief. The
Associate’s record stated: “interlocutory relief contained in paragraphs (2) - (6)
of the summons granted”. It may be inferred from this record and the transcript
that little attention was given to the drafting of the orders, or indeed to the
assumed urgency.
24 The third curiosity is that, despite the parties being given liberty to apply by
Davies J, the respondent made no attempt to have the matter relisted until five
months later (March 2017) when he was appearing before McCallum J in other
proceedings. On 12 May 2017 McCallum J gave directions with respect to what
was then a foreshadowed application by the respondent to strike out the
proceedings for want of prosecution. In accordance with those directions, the
respondent gave an outline of his submissions to the applicants, on 8 June
2017. The strike out application may have been effectively thwarted by the
applicants filing a statement of claim on 15 May 2017, which was served on the
respondent two days later.
9
Tcpt, 07/10/16, pp 1(25), 2(40).
10
Tcpt, p 8(35).
11
Tcpt, p 10(40).
12
Tcpt, p 12(35).
strike out application. Somewhat belatedly, in February 2018, the judge sought
to fix the matter for hearing; there were further delays while the judge dealt with
a recusal application.
26 On 8 June 2018 McCallum J made the orders now under appeal revoking the
interim and interlocutory orders made by Hall J and Davies J. Reasons were
delivered on 12 June 2018.
27 The respondent did not comply with any of the take-down orders before they
were revoked by McCallum J.
13
(1988) 217 ALR 44.
14
(2016) 92 NSWLR 679; [2016] NSWCA 115.
primary judge had misunderstood and misapplied this Court’s decision in Liu
(ground (k)).
30 This submission ran into an immediate difficulty in that the respondent had not
had an opportunity to resist the ex parte orders made on October 7 and,
further, asserted that he had not had a reasonable opportunity to attend the
further hearing before the duty judge on October 10. Even if he had had such
an opportunity, it is one thing to mount an unsuccessful resistance, it is quite
another to miss an opportunity to do so. In one case there is a contested
hearing; in the other there is not. Further, it was arguable that the discharge
application before McCallum J was no more than an exercise of the liberty to
apply reserved by Davies J on 10 October 2016. It was therefore tolerably clear
that nothing said in Brimaud, or indeed in Liu, provided any answer to the
discharge application.
“Not all kinds of interlocutory orders attract the same considerations. For
present purposes one may put to one side orders of a merely procedural
nature … and injunctions (or undertakings) made or given by agreement and
without contest ‘until further order’ ….”
Thus, neither the circumstances nor the principle stated in Brimaud had any
direct application in the present case.
33 The primary judge stated, in a passage with which the applicants took issue:
“[50] Secondly, it is far from clear that the orders were made in contemplation
that they would operate until the final disposition of the proceedings (in the
15
Brimaud at 46(25).
16
Liu at [13] (Beazley P), [199] (McColl JA) and [294] (Ward JA).
17
Brimaud at 46(35)-(40).
language of Brimaud). … I am left with the apprehension that Hall J intended
only to preserve an interim position until a contested hearing before Davies J,
whereas Davies J assumed (not unreasonably, since the orders of Hall J had
been made ‘until further order’) that Hall J had satisfied himself that
interlocutory orders until final disposition of the proceedings were appropriate
on the merits.”
34 This finding was said to be erroneous: ground (l). The challenge should not be
accepted for two reasons. First, while Davies J expressed some surprise as to
the form of the orders and wondered whether interlocutory relief had been
intended, he made no order varying the form of the relief, or directing its
continuation. Indeed, had he thought such a step necessary, he would have
needed to consider an adjournment to allow the respondent to be heard in
opposition. Secondly, the erroneous form of the orders simply reflected the
language in the summons (and apparently the short minutes) handed up at the
hearing before Hall J.
35 Perhaps noting that Davies J had given liberty to apply on short notice, the
applicants “relied on the fact that the respondent, having declined to appear on
10 October 2016, took no step to relist the proceedings shortly thereafter to
seek a contest hearing.”18 Because the written submissions did not expressly
address ground 2(l), it is unclear whether that proposition was merely a
statement of a submission made before McCallum J, or whether it was relied
on in this Court. If relied upon in this Court, it took the matter no further. The
respondent was not required to exercise the liberty to apply within a specified
time frame; nor did the applicants rely on his disobedience of the ex parte
orders as in some way revoking his right to challenge them.
36 It follows that there was no error in the primary judge approaching the matter
as a first contested hearing of the question whether the interlocutory orders
should have been made.
18
Applicants’ written submissions, par 38 (emphasis added).
challenging the admission into evidence of two Today Tonight segments, said
to have been broadcast on Channel 7 in 2007 and 2011: ground (f). These
segments contained reported allegations of impurities and toxins in honey
marketed by Capilano.
38 There was a debate about the admissibility of that material. There was a
dispute as to the dates on which they went to air, and as to whether they were
still available on the Channel 7 website. The respondent stated (without
evidence) that they were first aired in 2007 and 2011 respectively and
remained available on the Channel 7 website. The applicants accepted that
one of them went to air in 2007 but claimed that the other went to air in 2003,
on instructions, but again without evidence.19 Counsel for the applicants
accepted that the 2007 video was available at the date of the hearing, but was
not in a position to test the availability of the earlier video.20 It appears that this
was the element of unfairness of which the applicants complained.
“if there are archived materials on the Today Tonight website it’s not an
indication of what is currently in the public domain. If something is in a library
on a bookshelf, unless someone goes looking for it, your Honour, it is not in
the public domain. It doesn’t evidence a current public discussion where
information of that kind is doing the rounds, as it were.”
40 To the extent that the procedural unfairness submission related to the lack of
opportunity for the applicants to establish the provenance of the video clips
from Today Tonight, the complaint must be judged by reference to the currently
available material. On an appeal by way of rehearing an appellant should be in
a position to demonstrate that any potential unfairness was in fact realised.
Since the hearing before McCallum J the applicants have had ample
opportunity to present evidence to demonstrate that the situation in fact differed
from that accepted by her on the basis of the limited challenge to the material.
No evidence was presented to that end.
19
Tcpt, 19/04/18, p 37(5).
20
Tcpt p 37(30).
21
Tcpt pp 37-38.
41 The same reasoning applies with respect to the complaint that McCallum J
provided inadequate reasons for her decision. If the reasons provided
addressed an issue, it is open to the unsuccessful party to challenge the
reasoning on appeal. If they did not address an issue, it is open to the
unsuccessful party to contend that the matter was not considered by the trial
judge and, if materiality is established, the omission demonstrates error on that
basis. The reasons given are the judge’s actual reasons for deciding a point.
Usually the appeal court can address the substance of the matter and will not
remit because the reasons were “inadequate”. (In any event, no submissions
were directed to the ground alleging inadequate reasons.)
42 The relevance of the Today Tonight video clips will be considered below. On
the challenges based on procedural unfairness and inadmissibility, subject to
the question of relevance, grounds (f), (o) and (p) are rejected.
22
Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; [2006] HCA 46.
e. Equating a restriction upon the respondent’s ability to publish injuriously
false and defamatory statements about the appellants with a complete denial
of his ability to participate in the ‘debate’ about the toxicity of honey (which her
Honour characterised, without evidence, as one ‘of broad public concern
raising complex questions of trade regulation and health [and] safety
regulation’ (Judgment at [57]).”
44 Given that what was in issue was the formation of an evaluative judgment in
relation to a discretionary power, it is unhelpful to state a supposed error in
such vague terms. First, it is necessary to identify what may properly be taken
into account, then to consider the factual basis for such concerns and, finally,
the way in which they should be addressed in balancing the respective
interests of the competing parties.
45 Dealing first with ground (e), the offending paragraph in the judgment below,
namely [57], was not concerned with defamatory statements, but only with the
injunction sought to protect Capilano with respect to the alleged injurious
falsehoods. The complaint in that respect is, it would appear, the same as that
identified in ground (d)(i), namely taking into account considerations of free
speech in respect of the claim in injurious falsehood.
46 The written submissions identified the debate about trade regulation and health
and safety regulation as an irrelevant consideration, as was the freedom of the
respondent to participate in discussion of the related Mulvany proceedings.
The consideration was irrelevant, it may be inferred, in the sense that it could
not properly have played any part in the determination of whether or not to
grant an injunction. That was said to be for two reasons, namely “because it (a)
did not address any of the elements of the tort of injurious falsehood … and (b)
it overlooked High Court authority which recognises that the restraint exercised
in the grant of injunctive relief in defamation cases does not apply in cases of
injurious falsehood. Considerations of free speech or other special
considerations are irrelevant to a determination of injunctive relief in relation to
a claim for injurious falsehood.”23
47 The authority relied upon for the last two propositions was a passage in the
reasoning of Brereton J in AMI Australia Holdings Pty Ltd v Fairfax Media
23
Applicants’ written submissions, par 51.
Publications Pty Ltd.24 However, it is not necessary to deal with those
paragraphs; Brereton J, discussing the elements of the tort of injurious
falsehood, extracted passages from two judgments in the High Court without
adding further exposition of present relevance.
“[58] It is for the plaintiff in injurious falsehood to establish falsity, malice and
special damage, burdens not imposed upon the plaintiff by defamation. On the
other hand, the inhibition upon the use of the injunction to restrain further
publication of defamatory material does not apply to injurious falsehood; a
rationale for the distinction is said to be that the latter tort protects proprietary
and commercial rather than personal interests.”
49 The “rationale” may be an historical explanation, rather than a justification. As
noted in a leading text, injunctions were available in equity to protect a legal
right of a proprietary nature. Although that constraint has been removed by
statute, it was “the undoubted basis or, more accurately, one of the bases of,
inter alia, the rule that a court of equity will not grant an injunction to restrain a
libel, other than a trade libel.”26
50 The second passage relied upon (indirectly) by the applicants was to be found
in the judgment of Gummow and Hayne JJ in ABC v O’Neill, in the following
terms:
“[56] The qualification expressed by Lord Cairns LC allowed, for example, for
injunctive relief in respect of those torts of slander of title and slander of goods,
where property interests were involved, and which were classified as ‘trade
libel’,27 and later, after Ratcliffe v Evans,28 were developed as the tort of
injurious falsehood, elements of which were malice and special damage. The
logical consequence was that, where causes of action both for defamation and
injurious falsehood lay in the same situation, an injunction might be granted in
respect of the injurious falsehood claim.29”
51 That passage occurs in a discussion of the statutory jurisdiction of the
Supreme Court and was addressing the question whether, following the
24
[2010] NSWSC 1395 at [39]-[41] (Brereton J).
25
(2001) 208 CLR 388; [2001] HCA 69.
26
J D Heydon, M J Leeming and P G Turner, Meagher, Gummow and Lehane’s Equity: Doctrines and
Remedies (LexisNexis, 5th ed, 2015) at [21-040] and [21-135].
27
See Lee v Gibbings (1892) 67 LT 263; White v Mellin [1895] AC 154.
28
[1892] 2 QB 524.
29
See Collard v Marshall [1892] 1 Ch 571.
Common Law Procedure Act 1854 (UK) (the terms of which are now reflected
in s 66 of the Supreme Court Act), statute conferred power to grant injunctive
relief to restrain the publication of defamatory matter. The jurisdiction in equity
extended to injunctive relief with respect to the publication of words, not on the
basis that they were potentially libellous, but because they would involve the
disclosure of confidential information. Gummow and Hayne JJ concluded that
the jurisdiction to restrain publication of defamatory matter must be taken as
settled.30
54 The second limb to this challenge was the assertion that a constraint on the
respondent’s ability to publish “false statements” was wrongly equated with “a
complete denial” of his ability to express opinions on a matter of public
importance.
55 This ground encountered two difficulties. First, the phrase “a complete denial”
was a rhetorical flourish and did not reflect the reasoning of the primary judge
in the passage referred to in ground (e). No doubt there are questions of
30
ABC v O’Neill at [64].
31
(2007) 230 CLR 291; [2007] HCA 28.
32
Gacic at [2].
degree as to the extent to which the respondent is able, in the light of the
constraints imposed by the court orders, to engage in public debate regarding
the safety of Capilano honey and the truth of the representations made about
it. In part that depends upon how one identifies the topic under consideration.
Assuming that the topic involves, as the primary judge expressed it, “complex
questions of trade regulation and health [and] safety regulation” in relation to
food products, including honey, it was open to the judge to accept that the
present orders impose very significant restraints on the respondent’s ability to
express opinions.
56 The second difficulty arises from the phrase “false statements”. In pursuing a
claim in injurious falsehood, the burden will be upon Capilano to prove that the
allegations were false, were made maliciously and caused damage to the
company. The applicants submitted that McCallum J had made a finding, on a
prima facie basis, that the allegations were false. They relied on a passage in
her reasons stating that the evidence presented by Capilano “establishes a
prima facie case that the … concerns over toxic honey circulated by
Mr Mulvany and Mr Dowling are misplaced.”33 She also described Mr Dowling’s
views as “wrongheaded”. That finding (based on evidence of falsity which
ground (a) alleged the judge “disregarded”) was relied on for the purpose of
ground (e) as support for the view that the allegations were “false”. However,
the finding did not go so far, nor would one expect it to do so on an
interlocutory application. Further, falsity is but one element of the tort of
injurious falsehood; there is no legal basis for injuncting publication of false
statements as such. To the extent that Capilano must prove malice to establish
its cause of action, the reference to the respondent’s views as “wrongheaded”
does not provide support with respect to that aspect of the cause of action.
57 The submissions in this regard did not, in any event, accurately reflect the
terms of ground (e). Ground (e), somewhat ambiguously, stated that the judge
had identified an issue of “broad public concern”, “without evidence”. The
submissions repeated that language without explaining the nature of the error.
The complaint provided one illustration of the internally inconsistent
approaches adopted by Capilano on the appeal. Ground (c) alleged that the
33
Applicants’ written submissions, par 52.
primary judge had disregarded “the evidence as to the damage caused and
likely to be caused by the restrained publications”. Why any damage would
arise if there were no public concern about health and safety issues regarding
honey was not explained. In any event, assuming that the judge needed
evidence to make such a finding (which is implausible) the evidence was to be
found in the corporate applicant’s own case and in the comments by third
parties on the articles which themselves were the subject of the restraining
orders.
60 The trial judge’s reasons dealt separately with the respondent’s motion to have
the proceedings dismissed for want of prosecution. (The motion was
dismissed, the dismissal not being the subject of challenge in this Court.) The
connection between the Mulvany proceedings and the present proceedings
was described by McCallum J in disposing of the motion for want of
prosecution. That primacy of Mr Mulvany as the source of the misinformation
had been relied on by Capilano’s solicitor, Mr Keegan, as the reason for the
delay in pursuing proceedings against the respondent.
34
Affidavit, 6 April 2018, par 16.
2016 until shortly prior to the time allocated for the hearing in the Mulvany
proceedings, [on] pursuing Mr Mulvany and his claims, given they were and
continue to be the original and only source of Mr Dowling’s publications.”35
35
Affidavit, par 17.
36
Judgment at [54].
64 The thrust of the applicants’ challenge was, however, to McCallum J’s
statement that “the principal basis for the application for interlocutory
injunctions in these proceedings is to preserve the efficacy of the relief sought
against Mr Mulvany.” In setting out the history of the proceedings, the primary
judge had said:
“[9] … So far as can be gleaned from the affidavit in support of the application
and the transcript of a later hearing before Davies J, it appears that the
principal basis for application before Hall J was the contention that Mr Dowling
and Mr Mulvany were working together to undermine the efficacy of the relief
sought in the Mulvany proceedings. At the hearing before me, the plaintiffs
contended that Mr Dowling’s publication of the Keegan affidavit ‘plainly
frustrated the orders the court had made in the Mulvany proceedings on
23 February 2016’.”
65 The statements under challenge were made in explanation of the applicants’
inactivity in pursuing the proceedings against the respondent. Read in context,
it is tolerably clear that the primary judge was referring to two propositions
expressly relied on by the applicants in the proceedings before her, namely
that (a) Mr Mulvany was the sole source of the information being published by
the respondent and (b) for that reason, the applicants had focused their time
and resources on pursuing the proceedings against Mr Mulvany.
66 No doubt, in so far as they saw Messrs Mulvany and Dowling as working co-
operatively against them, it was true that they sought to silence both. However,
the primary judge plainly understood that to be the case and was not casting
doubt upon it by identifying the “principal” basis of the application as relating to
the proceedings against Mr Mulvany. The challenge amounts to little more than
a semantic point of no significance and should be dismissed.
“[10] I should note that the application before Hall J appears also to have
been based on the contention that the restrained material is false. However,
the evidence on that issue was sparse; Mr Keegan’s affidavit sworn 7 October
2016 said only this:
‘The Toxic Honey Article and the Car Conversation Article contain
numerous allegations about the plaintiffs, which I am informed by
Mr McKee, and believe, are false.’
[11] There was further evidence on the issue of falsity at the hearing before
me. That evidence is addressed below.”
69 McCallum J noted further that, before her, the plaintiffs had submitted that “if
the idea of ‘toxicity’ gains any currency, the commercial risk to Capilano is
potentially enormous.”38 In discussing the injunctions to protect Capilano’s
business, McCallum J stated:39
“On the application before me, the plaintiffs’ adduced more detailed evidence
than was put before Hall J as to the falsity of the allegations made in the Toxic
Honey article. The affidavit also addressed the issue of potential damage to
the Capilano brand. That evidence establishes a prima facie case that the
concerns over toxic honey circulated by Mr Mulvany and Mr Dowling are
misplaced.”
However, the judge also stated, “the evidence of damage or likely damage was
scant.”40
70 With respect to the falsity of the allegations (ground (a)) and the damage likely
to be caused by the publications (ground (c)) the proposition that the primary
judge disregarded the applicants’ evidence is untenable. So far as the falsity of
the allegations was concerned, she accepted it at a prima facie level. Subject
to one matter, ground (a) must be rejected. The qualification relates to the
evidence from Mr McKee (transmitted by Mr Keegan) that “[a]ll ‘Capilano’
branded honey sold in Australia is 100% pure Australian honey”. In the course
of the appeal, it appeared that the respondent accepted as “quite possibly true”
37
Uniform Civil Procedure Rules 2005 (NSW), r 51.18(1)(e).
38
Judgment at [43].
39
Judgment at [57].
40
Judgment at [58].
that honey sold under the Capilano brand was 100% Australian honey. 41 If the
respondent accepts that honey sold under the Capilano brand is “pure
Australian honey” in the sense that it contains no imported honey, it would be
open for the applicants to seek an undertaking, or injunctive relief that a
representation to the contrary will not be made. However, that has not been
done; this Court is concerned only with the challenge to the comprehensive
injunctive relief put in place two years ago, being the subject of the discharge
order made by McCallum J.
41
Tcpt, 19/07/18, p 81(20) and p 83(20) and (30).
42
Affidavit of Richard Michael Keegan, 13 April 2018, par 40.
43
Affidavit, pars 44 and 45.
the toxic honey article and has told Mr McKee that the article is posing ‘a very
serious risk to our brand.’
I am also informed by Mr McKee and believe that Capilano will shortly embark
on a new marketing and promotional campaign for its Capilano honey
throughout Australia with a very significant (multi-million dollar) budget.
Mr McKee is concerned that the investment to be made by Capilano in this
campaign will be seriously diminished by the continued publication of the toxic
honey article.”
74 Mr Keegan then stated that he had spoken to “an employee of Capilano about
the publications of Mr Dowling and Mr Mulvany about Capilano’s honey.”44 The
employee told him that he or she had received “many communications” from
“suppliers who have been personally affected” by the publications and “third
parties which consist of abuse.” An attempt to publish “correct information” on
the respondent’s Facebook page had failed because it had been removed.
75 The primary judge did not find that the respondent’s publications had done no
damage to the applicants; rather, she found the evidence of damage or likely
damage to be “scant.” That was true, although, no doubt, in a fully reserved
judgment a more detailed analysis of the evidence might have been provided.
For example, although the applicants relied upon the need to respond to the
investigation in Malaysia, there was no evidence that the publicity had
damaged sales. As the incident occurred in September 2016, such evidence, if
available, could have been provided by April 2018. Similarly, the applicants
made no attempt to assess any financial loss, or likely loss, in Australia.
44
Affidavit, pars 47-49.
supermarket chain, but there is little that can be said about it. The content was
vague, there was no indication of when the statement was made or in what
context and the statement contained no particular reference to the source of
the concern.
78 Before turning to the next matter raised on the appeal, it should be noted that
there was an element of possible confusion lurking under the applicants’
submissions. To obtain interlocutory injunctive relief, the applicants had to take
two separate steps. First, they needed to establish a prima facie case with
respect to each element of the respective causes of action. As to the corporate
applicant’s claim for injurious falsehood, that meant establishing that the
allegations relied on were false, that the publisher was malicious and that the
statements caused damage. It may be accepted that the primary judge was
satisfied with respect to each of those elements of the cause of action, on a
prima facie basis. However, establishing some damage or likely damage, for
the purposes of the third element of the cause of action, was not the same
thing as establishing a level of damage which warranted interlocutory injunctive
relief of the kind sought. That was the second step: it required more than a
prima facie case of some damage or likely damage sufficient to satisfy an
element of the cause of action.
79 There remains the question of malice, raised by ground (b). The finding in that
regard was directed (and, as it appears, only directed) to the second relevant
element of the cause of action. While it is true that the judge did not address
“malice” in terms, beyond noting that it was an element of the cause of action in
injurious falsehood, and describing the respondent’s views as “wrongheaded”,
it is not clear what evidence was disregarded or misconceived.
80 Although little was said about this ground, or ground (d)(iii) regarding the
respondent’s failure “to articulate any defence to or to adduce any relevant
evidence in relation to the appellants’ claims”, the grounds appear to be
related. Thus the written submissions (which dealt briefly with the question of
the respondent’s malice) noted that the respondent had provided no evidence
to support the truth of his statements, from which omission it could be inferred,
the submission proceeded, that he is “recklessly indifferent to whether or not
[they are] true because of an ulterior motive”.45
81 It is correct to say that submissions were made to the primary judge on the
question of the respondent’s malice, because it was necessary to establish a
prima facie case of malice as an essential element of the tort of injurious
falsehood. It did not follow that there was any error on the part of the trial judge
in failing to deal with that element, unless it could be inferred that the judgment
depended upon a failure to establish that element. Capilano accepted that it
bore the onus of establishing that element of the cause of action on which it
relied.
82 However, there is no basis for thinking that the trial judge determined the
interlocutory application on the basis that no prima facie case of malice had
been established. To the extent that any complaint about failing to address
evidence is relevant, there was no specific evidence relied on by the applicants
demonstrating malice, but rather a series of inferences sought to be drawn
from the respondent’s publications. An ulterior motive was alleged, namely that
the respondent was “fixated on attacking Mr Kerry Stokes”, a part owner of
Capilano.46
45
Applicants’ written submissions, par 61(b).
46
Applicants’ written submissions, par 61(a).
85 Before turning to the relevant passages in the judgment, a number of steps in
the chronology need to be noted. The proceedings against the respondent
were commenced on 7 October 2016. Following the ex parte hearing on that
date and the further ex parte hearing before Davies J on 10 October 2016,
nothing happened until 28 April 2017 when the proceedings were relisted at the
respondent’s request (the request having been made in the course of other
proceedings on 13 March 2017). On 11 May 2017 the respondent advised that
he intended to apply for dismissal of the proceedings for want of prosecution.
The parties agreed to a timetable for that application, but on 15 May 2017 the
applicants filed a statement of claim, which was served on the respondent two
days later. Accordingly, it may be said that the applicants took no substantive
step in the proceedings between 10 October 2016 and 15 May 2017.
86 The primary judge addressed the issue of delay primarily in the context of the
respondent’s application to have the proceedings dismissed for want of
prosecution. However, before addressing that question, the judge noted:
“[29] In their written submissions dated 24 July 2017, the plaintiffs declined to
respond to Mr Dowling’s submissions in so far as they related to matters other
than the application to have the proceedings dismissed for want of
prosecution. The reason stated for declining to address any other issue was
that the agreed timetable was confined to that application. With respect, that
was an unhelpful approach. Pursuant to s 13 of the [Non-publication Orders
Act], Mr Dowling was entitled to have the suppression orders reviewed as of
right. As the orders had been sought and granted ex parte, it behoved the
plaintiffs to assist the Court on that issue when it was raised by the defendant.”
The judge might also have noted that the orders were subject to liberty to apply
on short notice.
87 It is convenient to set out the judge’s identification of the evidence before her
as to the lack of progress:
“[34] The plaintiff’s explanation for the lack of progress in the prosecution of
the action after the hearing before Davies J was verified in an affidavit sworn
by Mr Keegan on 6 April 2018. In summary, Mr Keegan explains that the
proceedings against Mr Dowling were commenced as a result of the
proceeding commenced against Mr Mulvany. Mr Keegan states that the
factors which necessitated the commencement of proceedings against
Mr Dowling included the fact that Mr Mulvany provided copies of the affidavit
and confidential exhibit sworn by Mr Keegan in the Mulvany proceedings to
various members of the media and to Mr Dowling and the fact that Mr Dowling
republished that restrained material in the Toxic Honey article.
[35] Other material published by Mr Dowling includes a copy of an email sent
directly by Mr McKee to Mr Mulvany and disclosure of the contents of a private
conversation between Mr McKee and [Mr Mulvany]. Mr Keegan states that it
was evidence from the cooperation and collaboration between Mr Mulvany and
Mr Dowling that Mr Dowling’s publications were ‘designed to further
Mr Mulvany’s allegations and do further damage to the plaintiffs’. He contends
that there is no material published by Mr Dowling about the plaintiffs that
cannot be sourced back to Mr Mulvany. On that basis, Mr Keegan states that
he focused his efforts and the plaintiffs’ resources, in the period following the
granting of the injunction on 7 October 2016 until shortly before the time
allocated for the hearing of the Mulvany proceedings (26 May 2017) to
pursuing Mr Mulvany, given that he was ‘the original and only source of
Mr Dowling’s publications’.”
88 The judge rejected the applicants’ submissions:
[36] I am not persuaded that is an acceptable reason for the plaintiffs to have
taken no steps in the proceedings following obtaining interlocutory orders
(including suppression orders). … With respect, it was the plaintiffs’ obligation
to prosecute the action with due expedition. The orders made at the outset of
the proceedings imposed a significant constraint on Mr Dowling’s freedom of
speech. An approach of obtaining ex parte orders with the utmost urgency and
then resting upon those orders taking no further steps in the proceedings
should not be condoned by the court, particularly against a self-represented
litigant.
…
[38] Even leaving aside the fact that Mr Dowling was under the burden of
interlocutory injunctions and suppression orders for that period of time, the
plaintiff are under a duty to assist the court to further the overriding purpose of
facilitating the just, quick and cheap resolution of the real issues in the
proceedings and to eliminate delay: ss 56(3) and 59 of the Civil Procedure
Act.”
89 The judge then rejected the delay as warranting dismissal of the proceedings,
but said that it was “a significant factor in the review of the suppression orders
and the application to have the interlocutory injunctions dissolved.”47
90 The judge then turned to the application for review of the suppression orders
(at [40]-[45]), followed by the application to have the interlocutory injunctions
discharged (at [46]-[54]). Against a general consideration of the issues raised
in submissions, she addressed separately the injunctions to protect Capilano
(at [55]-[58]) and those to protect Mr McKee (at [59]-[63]). With respect to
Capilano, in the last sentence of the four paragraphs, the judge stated:
47
Judgment at [39].
With respect to the injunctions regarding the recorded conversation between
Messrs McKee and Mulvany, the final paragraph of the reasoning stated that
“[t]he plaintiffs’ delay is relevant in this context as well”, and referred to remarks
to the same effect made by Campbell J in other proceedings involving the
present respondent.48
91 To the extent that McCallum J rejected the explanation given by the appellants
for the delay in prosecuting the proceedings, the premise underlying ground (g)
may be accepted. However, it was patently wrong to say that she failed to take
the explanation into account. The reason for rejecting the explanation was
undoubtedly correct. There was no evidence that the applicants were unable to
pursue separate proceedings which they had commenced against two
individuals at once. Had there been such evidence, a large question might
have arisen as to the propriety of commencing two separate proceedings
without the resources to pursue them. That question does not presently arise.
Ground (g) must be rejected.
92 So far as ground (h) is concerned, the judge was well justified in giving
“significant weight” to the failure of the applicants to pursue with a degree of
expedition the substantive proceedings, having obtained orders with the
purpose and effect of silencing their critic. However, to assert that this factor
effectively determined the respondent’s discharge application was to ignore the
express reasoning of the primary judge, at [55]-[63] in relation to each
applicant. Ground (h) must be rejected.
48
Judgment at [62], citing Jane Doe 1 and Jane Doe 2 v Dowling (No 2) [2016] NSWSC 1910 at [23].
94 Dealing with the first matter, the applicants’ written submissions did little more
than restate the complaint, without explaining why it was a significant
consideration in resisting the discharge application. No doubt limited weight
should have been given to any reliance by the respondent on the lengthy
period during which he had been subject to the injunctions and take-down
orders, had they in fact caused prejudice. However, as the applicants
separately noted, the orders had not been complied with and no submission
was made in those terms by the respondent.
95 While it was true that the respondent could have had the matter relisted at any
time after 10 October 2016, it was not unreasonable for him to wait to see what
steps would be taken by the applicants. As the judge noted, he had on two
occasions asked the applicants to provide their statement of claim, invitations
which had been rejected. Whether the respondent should have exercised his
right to have the interlocutory orders discharged on an earlier occasion is not,
in the circumstances of this case, significant with respect to the proper
disposition of the application when made.
96 Further, to suggest that the respondent was remiss in not appearing before
Davies J on 10 October is both unjustified and beside the point. There was a
reasonable argument that those proceedings should have been adjourned,
though no doubt Davies J assumed that the grant of liberty to apply would
cover the situation. The rejection of that opportunity was of little consequence,
whether the period of notice was inadequate or not.
49
Judgment at [30].
from the question of the applicants’ obligations to proceed expeditiously. 50 It
does not appear that the primary judge placed any further weight on the non-
compliance with the orders in considering their discharge.
100 This submission was untenable. As the applicants correctly identified in ground
(g), the “delay” which was taken into account was the applicants’ delay
between October 2016 and April 2017. There was no basis to suggest that the
judge in some way took into account, against the applicants, the period from
August 2017 to February 2018. Nor was there any attempt to base the
submission in fact. Finally, to the extent that the restraining orders remained in
place throughout that period, the sole beneficiaries were the applicants.
Ground (j) was misconceived and must be rejected.
50
See also [37].
51
Appellants’ written submissions, par 65(c).
Interlocutory injunction and suppression order relating to Mr McKee’s claim
101 The interlocutory orders sought and obtained ex parte did not purport to
distinguish between the applicants seeking the orders. In short, both jointly
sought orders applicable to each other. Nor were the orders themselves readily
distinguishable on this basis.
102 However, McCallum J did distinguish between the applicants, noting that
Mr McKee’s cause of action was in defamation and accordingly, in relation to
interlocutory injunctive relief, attracted the principles considered in ABC v
O’Neill.52 The judge had discussed the principles set out in ABC v O’Neill
earlier in her judgment, referring also to the reasoning in this Court in Rinehart
v Welker53 with respect to non-publication orders. The passage relied upon in
Rinehart related to the need for “exceptional circumstances” before a non-
publication order should be made under s 8 of the Non-publication Orders Act.
McCallum J noted that ABC v O’Neill was concerned with a pre-publication
application, but stated that the same reasoning should apply in an application
for a take-down order.
103 The only ground of appeal which related specifically to the decision with
respect to Mr McKee was ground (d), which alleged that the judge misstated
and misapplied the principles explained in ABC v O’Neill by “finding that
considerations of free speech were engaged in relation to the injunctions in
respect of the claim in defamation”: ground (d)(ii). In written submissions,
ground (d)(iii) (alleging a failure to have regard to the respondent’s failure to
articulate any defence to or to adduce any relevant evidence in relation to “the
appellants’ claims”) was specifically relied upon in relation to the injunctions
obtained by Mr McKee.
104 The applicants’ written submissions accepted that “in the context of enjoining
an allegedly defamatory publication, caution must be exercised primarily
because of the consideration of free speech.”54 That proposition was, as the
submission acknowledged, identified in both the joint reasons of Gleeson CJ
52
Primary judgment at [59].
53
(2011) 93 NSWLR 311; [2011] NSWCA 403 at [27]; primary judgment at [28].
54
Appellants’ written submissions, par 69.
and Crennan J and of Gummow and Hayne JJ in ABC v O’Neill.55 The point
relied upon in the applicants’ submissions was that:
106 While it is true that in some cases justification will be the primary defence relied
upon by a respondent, that is not a condition of the exercise of extreme caution
in granting interlocutory relief. Gummow and Hayne JJ referred to a statement
of Walsh J in Stocker v McElhinney [No 2],56 and a more recent judgment of
Hunt J in Church of Scientology of California Inc v Reader’s Digest Services
Pty Ltd;57 it is sufficient to set out the passage from the latter case:
“I accept as the settled law that the power to grant interlocutory injunctions in
defamation cases must be exercised with great caution, and only in very clear
cases. A plaintiff must establish that a subsequent finding by a jury that the
matter complained of was not defamatory of him would be set aside as
unreasonable; that there is no real ground for supposing that the defendant
may succeed upon any defence of justification, privilege or comment, and that
he, the plaintiff, is likely to recover more than nominal damages only. In
particular, questions of privilege and malice are not normally appropriate to be
decided upon an interlocutory application. Nor will an injunction go which will
have the effect of restraining the discussion in the press of matters of public
interest or concern.”
55
ABC v O’Neill at [16] and [52].
56
[1961] NSWR 1043 at 1048.
57
[1980] 1 NSWLR 344 at 349-350.
107 Clearly matters other than justification may be taken into account, but may not
require proof or assessment on an interlocutory application. Indeed, as
Gleeson CJ and Crennan J explained in ABC v O’Neill:
“[30] It is difficult to resist the conclusion that, in their natural and proper
concern for fairness to the respondent, the judges who decided the case in his
favour have fallen into the error of treating the criminal trial process as the only
proper context in which matters of the kind presently in question may be
ventilated. More fundamentally, however, it is apparent that they failed to take
proper account of the public interest in free communication of information and
opinion, which is basic to the caution with which courts have approached the
topic of prior restraint of allegedly defamatory matter.”
108 There is no support for the view that the primary judge adopted an incorrect
approach in considering the defamation claim brought by Mr McKee. There are
three further factors which support that conclusion.
109 First, the statements in the article purporting to comment on the conversation in
the car, to the extent that they did not involve gratuitous abuse, supported an
entirely conventional claim in defamation. The source of the remarks was
correctly characterised by senior counsel for the applicants before the primary
judge as “unedifying locker room banter”,58 not to justify it but to deplore it.
Secondly, a significant basis for the interlocutory injunction appears to have
been that the recording was made in breach of the provisions of the
Surveillance Devices Act 2007 (NSW). Whether that was so or not might well
be disputed, as the third person in the car was described in some of the
material as a film maker. The respondent was not in the car and was not
suggested as being in any way responsible for the recording, whether legal or
illegal.
110 Thirdly, it is not entirely clear why a specific restraining order was made in
relation to publication of “any part of the car conversation”. Publication of the
conversation would, on one view, and presumably on Mr McKee’s case,
remove any justification for the imputations derived from the respondent’s
published comments. Subject to the importance of the Court not condoning a
continuing contravention of court orders, it is difficult to see any personal or
public benefit in continuing a restraint on publication of this material.
58
Tcpt, 07/10/16, p 275(15).
111 Little was said with respect to the defamation proceedings brought by
Mr McKee in the course of argument in this Court. If more careful attention had
been paid by the applicants to distinguishing the orders sought solely on behalf
of Mr McKee and those sought on behalf of the applicants jointly, it might have
been possible to craft a form of order which would be capable of satisfying the
stringent requirements of the law with respect to interlocutory injunctive relief in
defamation. The applicants did not do this and it is not for the Court to do it on
their behalf.
112 The submissions did not explain why, in vacating the interlocutory relief
granted with respect to Mr McKee, the judge either misunderstood or
misapplied the principles in ABC v O’Neill. There is no reason to suppose that
she did. Ground (d), in so far as it applies to Mr McKee’s proceedings, should
be dismissed.
Other considerations
113 The foregoing discussion is sufficient to dispose of the appeal. However, the
case raises broader issues which need to be identified.
114 Careful consideration must be given to any application which prevents the
reporting of court proceedings and which effectively provides an applicant with
the principal benefit it seeks to obtain by way of final relief, before a hearing
inter partes to determine the validity of the claims. In particular, it has been said
on many occasions that, where orders are sought ex parte, counsel seeking
the orders is subject to a strict obligation of candour. That includes, where
possible, ensuring that the court is given sufficient information and time to form
a considered view as to the appropriateness of the orders sought and the
appropriateness of them being made ex parte. In the present case, the orders
were lengthy and complex. Although the applicants had moved quickly
following the posting of a comment covering the recorded conversation in the
car, there had been a period of almost three weeks since the substantive
article concerning “toxic” honey had been published. Further, when counsel
approached the Court, late on a Friday afternoon, he had no copy of a
summons, no statement of claim and no short minutes of order. On the
evidence before the Court, there was no reason why the matter had to be dealt
with on the spot and a number of reasons why it should not have been.
115 For example, there was little if any evidence of damage or likely damage
resulting from what was, on its face, a website purveying scandal in
inflammatory terms. Further, the judge was not told that the topics of the
inflammatory statements had been the subject of prior publication by
Mr Mulvany and by Channel 7. It is almost inconceivable that a company which
is clearly jealous of its reputation, did not have that information available to it.
116 It was necessary to take care in seeking take-down orders with respect to
websites that the websites were amenable to the court’s jurisdiction and the
respondent’s control. In addition, any order restraining publication of opinions
and information must be formulated in clear terms.
117 The interlocutory orders in the present case did not meet these standards.
Although the Court had evidence sufficient to satisfy it that the respondent
controlled the named website, referred to in order 2(a) made on 7 October
2016, it is very doubtful that it could meaningfully order the respondent to
remove “from the website bearing the address ‘facebook.com’ any
republication of [the offending material published by the respondent] on such a
republication”. There were five orders in similar terms, which assumed that the
respondent had control of some non-specific internet address. Such orders
were not self-evidently enforceable. It was also unclear as to what was meant
by “republication”.
118 As already noted, there were four interlocutory injunctions granted ex parte, of
which two were in apparently identical terms except that one was expressed as
being “until further order of the Court”, whereas the other purported to be a final
injunction. The latter was unjustifiable and could only have been made through
inadvertence due to haste. Suppression orders were made in final form. The
two general injunctions referred to “representations and imputations or
imputations and representations to the same effect” as a list of 25 propositions.
In ordinary parlance (and the order was to be understood by a person who was
not known to have any legal training), one does not publish an imputation. One
can publish a representation, although that language is better suited to
describing a representation made by another person than a statement by the
publisher. This may have been intentional, but the formulation is at best
ambiguous.
119 It was the applicants’ own case that different considerations applied with
respect to the separate causes of action brought by the company and
Mr McKee. Yet no attempt was made to distinguish between those causes of
action in seeking the interlocutory injunctions, in circumstances where there
was no doubt that the Court was required to apply great caution in suppressing
information about defamation proceedings and in injuncting repetition of an
allegedly defamatory publication, principles which the applicants contended did
not apply in relation to injurious falsehood.
120 In the course of the hearing, it was suggested to senior counsel for the
applicants that they could have taken contempt proceedings but did not,
preferring to shift the burden to take that step onto the court. Further, despite
not having sought to enforce the existing orders, the applicants invited the
court to keep the orders on foot, knowing that they had not been complied with.
Counsel submitted that that was not correct for two reasons, namely: 59
“… (1) we were not seeking to shift the burden to the Court by inviting Davies J
to refer the matter to the registrar, which his Honour sought fit to do; the
second reason … is because the orders do, despite Mr Dowling's defiance of
them, still have efficacy in this sense: what they do is they prevent
Mr Dowling's publications gaining currency, to use McCallum J’s language in
the context of suppression orders. … What all of that leads to is this
proposition: Mr Dowling might find himself unrestrained notwithstanding the
orders of a superior Court, but other publishers who do respect the Court's
authority are not prepared to give this material wider dissemination because
they know there is an injunction in place and they know that there is a
suppression order in place.”
121 The Court could not accept the factual premises of the last proposition without
evidence. First, the suppression order could not be revealed without breach of
itself: it expressly prohibited disclosure of itself by publication or otherwise. It is
true that the prohibition on publication was mentioned by the respondent in a
piece on his website, but the terms of the order were not set out and it is far
from clear whether it was in terms which applied to anyone except the
respondent. Even if the existence of the suppression order were accurately
59
Tcpt, 19/07/18, pp 20-21.
known, if there are “other publishers” (whatever that may mean) who would
understand such an order had been made and that they were bound by it
without service or official knowledge of it, their attitude would not be a matter of
which the Court could take judicial notice. They might have servers outside
Australia, or might be located outside Australia. In its terms, the suppression
order does not apply outside Australia.
123 Finally, the suppression order was said to be justified only on the ground that
“the order is necessary to prevent prejudice to the proper administration of
justice”.60 No argument was put to this Court as to why the suppression order
was justified on that ground. As McCallum J noted, the suppression order could
only be made in support of the grant of injunctive relief. That is, it depended
upon there being no available source of the allegations against the company
other than those which might be revealed in the course of the proceedings,
either by way of pleadings, evidence, submissions or orders. It must follow that
the applicants, although they could not suppress the information or have it
removed from the internet otherwise than in support of proceedings,
nevertheless claim that any publication of the same information in the course of
those proceedings must be prohibited or they would be effectively discouraged
from bringing proceedings. That is a large proposition which requires
justification. If the proceedings were brought to protect confidential information,
no doubt a non-publication order may be obtained to prevent the disclosure of
the very confidentiality which is sought to be protected. However, in this case
60
Non-publication Orders Act, s 8(1)(a).
the allegations are not unknown; the cause of action (injurious falsehood)
depended upon them being known and having caused harm. Whether or not a
non-publication order as to the existence of the proceedings could fall within
the terms of s 8(1)(a) should have been explored before the order was made.
124 There was an alternative ground upon which the order might have been based,
namely that it was “otherwise necessary in the public interest for the order to
be made”; but in that case the applicant would have had to establish that “that
public interest significantly outweighs the public interest in open justice.” 61 It is
not necessary to consider whether that ground could have been invoked
because in fact it was not.
Orders
125 Whether all of the grounds were intended to be pursued was unclear. Some
were the subject of submissions, some were merely restated and others were
not expressly addressed. Counsel appearing on an application for leave to
appeal, especially in circumstances where the respondent is a litigant in
person, is obliged to give careful consideration to the grounds which are to be
pursued and to give notice, preferably in writing and before the hearing of the
appeal, of any grounds which are not pursued. That did not happen. In the
result, all the grounds have been considered and have been rejected.
126 For the reasons explained above, there should be a grant of leave to appeal,
but the appeal should be dismissed. In case the applicants, or either of them,
propose to seek special leave to appeal from this decision, they should have
14 days within which to consider their positions. Accordingly, the stay of the
orders made by McCallum J which was in place prior to the hearing of the
appeal and continued to its determination should be continued for a period of
14 days from the date of delivery of judgment. So there may be no doubt about
the intended effect, there will be a non-publication order on the contents of this
judgment, as being necessary for the proper administration of justice, while the
stay remains in force.62 If no further step is taken within that period, the stay will
then automatically expire. If the applicants, or either of them, decide to seek
special leave to appeal to the High Court, they will have to approach a judge of
61
Non-Publication Orders Act, s 8(1)(e).
62
Court Suppression and Non-publication Orders Act, s 8(1)(a).
this Court for an extension of the stay. Such an extension will only be
considered on the basis of a draft special leave application indicating a
reasonably arguable basis for appeal.
(1) Grant the applicants leave to appeal from orders (2)-(4) made by
McCallum J on 8 June 2018.
(2) Dismiss the appeal.
(3) Order that the applicants pay the respondent’s costs in this Court,
assessed as a litigant in person.
(4) Stay the operation of orders (2) and (3) for a period of 14 days from the
delivery of this judgment.
(5) Direct that there be no publication of the contents of this judgement,
while the stay remains in force, except by a party to an Australian
lawyer for the purpose of obtaining legal advice or to a judicial officer or
court for purposes related to this proceeding.
**********
Amendments
18 October 2018 - [33] - inserted "judge" after "primary"
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provisions prohibiting publication that may apply to this judgment or decision. The onus remains on
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