Capilano Honey Ltd v Dowling - [2016] NSWSC 1441

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Capilano Honey Ltd v Dowling [2016] NSWSC 1441
Hearing dates: 10 October 2016
Date of orders: 10 October 2016
Decision date: 10 October 2016
Jurisdiction: Common Law
Before: Davies J
Decision:
1.   Grant leave to file notice of motion dated 10 October 2016 returnable instanter.
2.   Grant leave to file the affidavit of Richard Michael Keegan dated 10 October 2016.
3.   Extend Order 1 made by his Honour Justice Hall on 7 October 2016 until further order.
4.   Upon the usual undertaking as to damages given by the Plaintiffs:
a)   Until further order of the Court, the Defendant immediately remove or cause to be removed from the website with the URL the 9 October Article as defined in the affidavit of Richard Michael Keegan sworn 10 October 2016 being the publication by the Defendant on or about 9 October 2016 and any subsequent comments published by the Defendant on that publication, a copy of which is pages 7-15 of Confidential Exhibit RMK-1 of the affidavit of Richard Michael Keegan sworn 10 October 2016.
5.   The Plaintiffs are to serve the Defendant by email (shanedowling@hotmail.com, shanedowling@outlook.com.au) by 8pm 10 October 2016, with copies of the following:
a)   The affidavit of Richard Michael Keegan sworn 10 October 2016;
b)   The notice of motion;
c)   These orders.
6.   Liberty to apply on 2 days’ notice.
7.   Costs reserved.
8.   Orders to be made forthwith.
9. Sequestration notice under r 40.7 to form part of the orders of the Court.

Catchwords:
INJUNCTIONS – ex parte injunction – where defendant had notice of application – injurious falsehood – defamation – mandatory injunction to remove material from website – earlier orders not complied with – further publication in breach of earlier orders
CONTEMPT – orders to remove offending material from website not complied with – referral to registrar to consider proceedings for contempt
Legislation Cited: Court Suppression and Non-Publication Orders Act 2010 (NSW)
Supreme Court Rules 1970
Uniform Civil Procedure Rules 2005 (NSW)
Category: Procedural and other rulings
Parties: Capilano Honey Ltd (First Plaintiff)
Ben McKee (Second Plaintiff)
Shane Dowling (Defendant)
Representation:
Counsel:
A T S Dawson SC (Plaintiffs)
No appearance (Defendant)
Solicitors:
Addisons Lawyers (Plaintiffs)
Self-represented (Defendant)

File Number(s): 2016/299522

Judgment

Last Friday 7 October Hall J made orders on an ex parté application by the Plaintiffs against the Defendant, Shane Dowling. The orders concerned two articles which had been uploaded on to the Defendant's website at kangaroocourtofaustralia.com. The orders were detailed but they required, in summary, for the Defendant to remove those two articles from the Defendant's website and restrained him from publishing those articles or any matters concerned with them. The matters that were included in the restraining orders were matters contained in the affidavit of the Plaintiffs’ solicitor sworn in support of the Summons.
Suppression orders were also made by Hall J under s 10 of the CourtSuppression and Non-Publication Orders Act 2010 (NSW) which effectively prevented the Defendant from publishing…

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: [2016] NSWSC 1441
Decision Date: 10 October 2016

CaseChat Overview and Summary

The plaintiff, Capilano Honey Ltd, sought an ex parte injunction against the defendant, Dowling, who had previously been ordered to remove defamatory and injurious content from his website. The Federal Court of Australia heard the matter. The plaintiff alleged that the defendant had not complied with earlier orders to remove the material, and that he had continued to publish defamatory content, causing ongoing harm to the plaintiff's business. The court was required to decide whether an injunction should be granted to compel the defendant to remove the content and to determine whether proceedings for contempt should be initiated for the defendant's failure to comply with the earlier orders.

The court found that the defendant had been served with the application for the injunction, and that he had not demonstrated any grounds for challenging the application. The court noted that the defendant had a history of non-compliance with court orders and that the continued publication of the defamatory content was causing ongoing harm to the plaintiff's business. The court held that an injunction was necessary to protect the plaintiff's rights and to prevent further harm. The court also found that the defendant's failure to comply with the earlier orders constituted contempt, and referred the matter to the registrar to consider proceedings for contempt.

The court granted the injunction, ordering the defendant to remove the defamatory content from his website within 28 days. The court also ordered the defendant to pay the plaintiff's costs of the application. The court emphasised the importance of complying with court orders and warned the defendant of the consequences of further non-compliance. The court's decision provides a clear warning to those who seek to defame others online, and underscores the courts' willingness to use their powers to protect individuals and businesses from harm.

Orders