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 ([email protected], [email protected]) 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

1. 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.

2. 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 any matters concerning the articles or the orders requiring them to be removed from his web site. There is some doubt on the basis of the Court documents 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 the 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.

3. The Plaintiffs move by Motion today for further orders against the Defendant requiring him to remove an article which, on its face, is in clear breach of the orders made by Hall J, including the suppression orders. That article is entitled "Capilano take out super-injunction to silence a second journalist, re: Poisonous and toxic honey."

4. The Defendant was served in accordance with Hall J's orders with the orders made last Friday, and those orders included an order standing the proceedings over to 3pm today. I am entirely satisfied that the Defendant, 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.

5. The affidavit of Richard Michael Keegan sworn 10 October 2016 in support of the present Motion has satisfied me that the orders made by Hall J have not been complied with because they are still on the Defendant’s website. The evidence in the affidavit also satisfies me that the further article to which I have referred is an article that effectively discloses the material that was both required by Hall J to be taken down from the website and was enjoined by him from being published in any form, including the related material.

6. I am satisfied therefore that orders should be made requiring the Defendant to remove the further article to which I have referred and that he should also be restrained from publishing that article. I am also satisfied in accordance with Pt 55 r 11 of the Supreme Court Rules 1970 (NSW) that on the face of the material before the Court the Defendant appears to be guilty of contempt of Court in failing to take down the articles and by the further publication that I have referred to. Accordingly, I refer the matter to the Registrar of the Court with a view to the Registrar applying to commence proceedings for punishment of the Defendant for the contempt of Hall J's orders.

7. I make a direction under r 40.7 Uniform Civil Procedure Rules 2005 (NSW). I vary the requirement in r 40.7 for personal service on the Defendant to the extent that in the first instance the Defendant is to be served with a copy of the orders I will make today at the email address <shanedowling@hotmail > and <[email protected]>. Thereafter, the Defendant is to be served in person, if practicable, with copies of the notice of motion filed in Court today, the affidavit of Richard Michael Keegan sworn 10 October 2016 and a copy of the orders that I will make.

8. The orders I make are these:

1.   I grant leave to file the notice of motion dated 10 October 2016. Such notice of motion to be returnable instanter.

2.   I grant leave to the Plaintiffs to file and read the affidavit of Richard Michael Keegan sworn 10 October 2016.

3.   I extend order 1 by Justice Hall on 7 October 2016 until further order.

4.   Upon the usual undertaking as to damages given by the Plaintiffs, 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 are pages 7 to 15 of confidential exhibit RMK 1 of the Richard Michael Keegan affidavit sworn 10 October 2016.

5. The Plaintiffs are to serve the Defendant by email at [email protected] and [email protected] 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 two days’ notice.

7.   Costs reserved.

8.   The orders may be entered forthwith.

9. I direct that the sequestration notice pursuant to r 40.7 form part of the orders of the Court and be annexed thereto.

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Amendments

11 October 2016 - Typographical error