Capilano Honey Ltd v Dowling (No 1)

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Capilano Honey Ltd v Dowling (No 1) [2018] NSWCA 128
Hearing dates:	15 June 2018
Date of orders:	15 June 2018
Decision date:	15 June 2018
Before:	Basten JA
Decision:	(1)   Stay the operation of orders 2, 3 and 4 made and entered by McCallum J on 8 June 2018 until the determination of the proceedings in this Court. (2)   Direct that the application for leave to appeal and the proposed appeal be heard concurrently. (3)   Order that the costs of this motion be costs in the application for leave to appeal or, if leave be granted, the appeal. (4)   Direct that a timetable be fixed in relation to the summons, which is listed before the Registrar on Monday 25 June, that will accommodate a concurrent hearing in late July 2018.
Catchwords:	CIVIL PROCEDURE – appeal – stay of orders – brief stay granted by primary judge – continuation of stay pending hearing of leave application and appeal – whether appeal entirely without merit – whether failure to grant stay would significantly diminish value of appeal – effect of stay on respondent’s freedom of speech – whether stay futile
Legislation Cited:	Court Suppression and Non-publication Orders Act 2010 (NSW)
Cases Cited:	Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd [No 1] (1986) 161 CLR 681; [1986] HCA 84
Category:	Procedural and other rulings
Parties:	Capilano Honey Limited (First Applicant) Ben McKee (Second Applicant) Shane Dowling (Respondent)
Representation:	Counsel: A T S Dawson SC (Applicants) Respondent self-represented   Solicitors: Addisons (Applicants) Respondent self-represented
File Number(s):	2018/184407
Decision under appeal	Court or tribunal: Supreme Court of NSW Jurisdiction: Common Law Division Citation: [2018] NSWSC 865 Date of Decision: 08 June 2018 Before: McCallum J File Number(s): 2016/299522

Judgment

1. BASTEN JA: On 8 June 2018 the primary judge (McCallum J) made interlocutory orders in proceedings presently pending in the Common Law Division. Shortly stated, the applicants commenced proceedings in relation to certain publications posted by the respondent on various websites. The causes of action pursued by the corporate applicant are for the publication of injurious falsehoods and, by the individual applicant, for defamation.

2. On the day the substantive proceedings were commenced, being 7 October 2016, Hall J made orders ex parte which fell into three categories, namely:

1. orders under the Court Suppression and Non-publication Orders Act 2010 (NSW) prohibiting publication of the matters addressed in the proceedings on 7 October 2016 and in the pleadings and evidence;

2. take-down orders with respect to material displayed on certain identified websites, and

3. interlocutory injunctive relief restraining the defendant from publishing identified articles or “posts”.

3. The suppression order with respect to the proceedings before Hall J (order 1) was expressly formulated as an interim order. However, a further suppression order (order 7) which prohibited disclosure of the pleadings, evidence and orders of the court, was in the form of interlocutory injunctive relief. Similarly, the orders restraining publication, said to operate “until further order of…