Capilano Honey Ltd v Dowling

[2020] NSWSC 660

Supreme Court

New South Wales

Medium Neutral Citation:	Capilano Honey Ltd v Dowling [2020] NSWSC 660
Hearing dates:	25, 26, 27 & 28 May 2020
Date of orders:	25 May 2020
Decision date:	25 May 2020
Jurisdiction:	Common Law
Before:	Button J
Decision:	Defendant to be digitally excluded in the absence of undertaking not to record proceedings without permission.
Catchwords:	PROCEDURE – defendant recording digital proceedings without permission – seeming commission of criminal offence – refusal to stop doing so
Legislation Cited:	Court Security Act 2005 (NSW), s 9(2)(a), s 12(1)(a)(iii) Surveillance Devices Act 2007 (NSW), s 7(3)(b)(i)
Category:	Procedural and other rulings
Parties:	Capilano Honey Ltd (First Plaintiff) Ben McKee (Second Plaintiff) Shane Dowling (Defendant)
Representation:	Counsel: M Cowden (Plaintiff) Self-represented Defendant   Solicitors: Addisons (Plaintiff)
File Number(s):	2016/299522

EX TEMPORE Judgment – REVISED

Recording of proceedings by the defendant

1. This matter is listed for a three day hearing with regard to defamation and injurious falsehood alleged variously by the plaintiffs against Mr Shane Dowling, who appears for himself.

2. In accordance with the public health emergency, both counsel for the plaintiff and Mr Dowling appeared remotely by way of audio and video link. That had attended to it the usual regrettable disruptions, but I think it has the potential to work quite well.

3. At an early stage, I emphasised that there was to be no recording made, whether that be audio, or visual or both, or indeed a still image. Mr Dowling revealed not only that he was making a recording, but that he intended to keep making a recording despite my request that he not.

4. He spoke of the need to protect himself legally. He spoke of the need for there to be an exact record of what passes in court, and in particular, of what he might say or not say. He also pointed to the fact that it seems that he has been gaoled for contempt in the past for things he said in court. He also submitted that, speaking generally, there should be an exact record of what is said in court, and that such a record is useful. He has also submitted that there is a public interest in this matter and that, because of the current public health emergency, many would like to attend but they simply cannot.

5. Ms Cowden for the plaintiffs has simply said that nothing that Mr Dowling has said would lead me to provide an exemption, pursuant to s 9(2)(a) of the Court Security Act2005 (NSW), whereby a judicial officer can expressly permit the use of a recording device.

Discussion

6. I think that the starting point here is that since digital recording systems, including cameras, became available to society, they have not been permitted, except in most exceptional circumstances, in courtrooms. That has been the situation in Australia for, I would have thought, at least a hundred years.

7. As well as that, it is an offence punishable by imprisonment for a person to use such a device pursuant to s 9 of the Court Security Act without any of the exemptions in subs (2) thereof applying. It is quite clear in my opinion that, by way of the definition in s 4 of that Act, court premises, by way of sub-definition (c), include the location where Mr Dowling is currently.

8. Mr Dowling has spoken of his need to protect his lawful interests, which I infer is a reference to s 7(3)(b)(i) of the Surveillance Devices Act 2007 (NSW). But there are two problems with that.

9. One is that the offence created there, to which there is an exception along the lines of which Mr Dowling spoke, pertains to private conversations, and obviously courtroom proceedings are not private conversations.

10. But secondly, that concept is a defence to a particular piece of offence-creating legislation in a different Act. It does not speak to the Court Security Act.

11. As the transcript will show, I have explained to Mr Dowling that my normal practice, and the practice that I certainly would adopt in this matter, is that, each morning, my associate would send an unrevised transcript to the parties, and they would be asked to provide their suggestions in writing as to how that should be altered, and as needs be, we would have a discussion about that in court.

12. In other words, (a) Mr Dowling would very promptly have a record of what occurred, and (b) very promptly, if he were unhappy with that record, would have the right to draw that to my attention, and to seek to have the transcript corrected.

13. The other aspect is that, as things stand, Mr Dowling is hundreds of kilometres away at a remote location, and as best one can, one is trying to replicate, in that kind of hearing, how things would occur in court. If Mr Dowling were in court, and if he made it clear that he were recording, and if that were contrary to my request, or rather, order, pursuant to s 12(1)(a)(iii) of the Court Security Act, he would have the recording device confiscated from him, and possibly retained for a time. And if Mr Dowling insisted on not handing it over, or if it was somehow incapable of being handed over, or if it were secreted on him, Mr Dowling would simply be escorted out by the sheriffs.

14. In other words, I do not think that the current undoubted public health emergency should lead one to forget that, really, what Mr Dowling is seeking to do here is simply to disobey a court order and disobey a criminal prohibition in the Court Security Act, simply by way of the logistics of him being many hundreds of kilometres away.

15. Obviously, there are security questions about images, in particular moving images, of judicial officers and members of their staff. The objective fact is –without casting the slightest aspersion on Mr Dowling personally – that there are malefactors in Australian society who wish judicial officers harm, and think ill of them. There is an obvious security issue to my mind about there being images, and extended video recordings, of the appearance of judicial officers, even in wig and gown. I think to some degree there is also some issue pertaining to that with regard to counsel, and also, unquestionably, with regard to court staff.

16. I think it is regrettable if things get off on this negative foot whereby, as I have explained to Mr Dowling, if he intransigently insists on this course - despite what began as an inquiry, then became a request, and thereafter became an order, and also a reference to the possible commission of a criminal offence - digitally, as it were, he is bodily removed from the courtroom, and the proceedings commenced ex parte, for a time at least.

17. But I think that, respectfully, that is a situation entirely of Mr Dowling’s own making. He is perfectly entitled to be present from a distance; he is perfectly entitled to hear and be heard; and to see and be seen. But he is not entitled, in my respectful opinion, wantonly and knowingly to break the law and disregard, as I say, a judicial inquiry which became a request, which became an order.

Conclusion

18. I think the way forward is that, because Mr Dowling will not undertake to stop recording, he must be excluded from the courtroom, at least for a time, and that means that the proceedings will have to proceed, at least for a time, ex parte.

19. My proposal is that at each adjournment my associate will send an email to Mr Dowling, cc’d to his opponent of course, inquiring whether he is prepared to give a written undertaking (a) that he will not record in any form into the future; and (b) that he will destroy the recordings already made.

20. Until that time, I regret to say Mr Dowling will have to be excluded from his own proceedings. I appreciate entirely that that is an extreme measure, but I feel like I have been left with no choice.

21. [The written undertakings were subsequently provided, and the matter did not proceed ex parte.]

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Decision last updated: 01 June 2020