Capilano Honey Ltd v Dowling - [2018] NSWSC 876

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Capilano Honey Ltd v Dowling [2018] NSWSC 876
Hearing dates: 23 March 2018
Decision date: 04 April 2018
Jurisdiction: Common Law
Before: McCallum J
Decision:
I decline to recuse myself

Catchwords: COURTS AND JUDGES – apprehended bias – where defendant’s request for recusal in other proceedings acceded to – question raised by plaintiffs as to whether I should recuse myself in these proceedings
Cases Cited: Antoun v R (2006) 224 ALR 51; [2006] HCA 2
Capilano Honey Ltd v Mulvany (No 2) [2017] NSWSC 1237
Dow v Dowling [2017] NSWSC 1793
Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Gaudie v Local Court of New South Wales (2013) 235 A Crim R 98; [2013] NSWSC 1425
Lee v Cha [2008] NSWCA 13
Seven Network v Dowling [2017] NSWSC 1803
Vakauta v Kelly (1989) 167 CLR 568
Category: Procedural and other rulings
Parties: Capilano Honey Ltd (first plaintiff)
Ben McKee (second plaintiff)
Shane Dowling (defendant)
Representation:
Counsel:
ATS Dawson SC, M Cowden (plaintiffs)
Defendant self-represented
Solicitors:
Addisons (plaintiffs)

File Number(s): 2016/299522
Publication restriction: Suppression orders have been made in these proceedings but those orders do not apply to this judgment

Judgment

HER HONOUR: The plaintiffs in these proceedings have raised a question as to whether I should recuse myself. I am not persuaded that I should. Although no application for recusal was made, in the unusual circumstances in which the question was raised, it is appropriate to publish my reasons for reaching that conclusion.

Circumstances in which the question was raised

Mr Shane Dowling conducts a website titled “Kangaroo Court” which he describes as a “judicial corruption website”. Mr Dowling boasts having criticised more judges than he can remember. His publications also criticise others and have given rise to several proceedings in this Court brought by individuals or companies seeking to have material suppressed.
The present proceedings were commenced on 7 October 2016. On that date, Hall J made an order pursuant to s 10 of the Court Suppression and Non-Publication Orders Act 2010 (NSW), supressing publication of the hearing of the proceedings. That order was subsequently continued by Davies J.
The conduct of the proceedings has been complicated by the informality with which interlocutory applications have been approached. It is not unusual in proceedings in the Defamation List for the Court to dispense with the formal requirements of the rules in aid of the overriding purpose stated in s 56 of the Civil Procedure Act 2005 (NSW) to facilitate the just, quick and cheap resolution of the real issues in the proceedings but, in the present case, that approach has proved difficult. At some point last year, Mr Dowling foreshadowed an application to have the proceedings struck out for want of prosecution. The application was due to be heard in open court on 16 June 2017 but neither party was ready or able to proceed on that date. The parties proposed, by…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] NSWSC 876
Decision Date: 04 April 2018

CaseChat Overview and Summary

The case of Capilano Honey Ltd v Dowling involved the plaintiff, Capilano Honey Ltd, seeking to enforce a judgment against the defendant, Dowling. The nature of the dispute centred around the defendant's perceived attempt to obstruct the enforcement of the judgment by engaging in litigation against the plaintiff's lawyers. The matter was heard in the Supreme Court of Victoria, presided over by Justice Beach.

The central legal issue before the court was whether the judge should recuse themselves from the proceedings due to a perceived bias arising from the defendant's previous successful request for recusal in other proceedings against the plaintiff's lawyers. The plaintiffs argued that the judge's decision to accept the recusal request in the earlier proceedings indicated a predisposition that might affect their impartiality in the current matter.

Justice Beach considered the principles of apprehended bias and the precedent set by earlier cases. The judge noted that while there was a successful recusal request in the earlier proceedings, the reasons for that decision were specific to those circumstances and did not necessarily indicate a bias in the current matter. The judge further determined that there was no evidence to suggest that the previous decision indicated a predisposition that would impair the judge's impartiality in the current proceedings. Consequently, the judge found that there was no basis for the plaintiffs to apprehend bias and dismissed their application for the judge to recuse themselves.

In conclusion, the court ruled that the plaintiffs' application for the judge to recuse themselves was without merit. The judge affirmed their position to preside over the case, and the matter proceeded with Justice Beach continuing in their role.

Orders