Court of Appeal
Supreme Court
New South Wales
- Amendment notes
Medium Neutral Citation: Capilano Honey Ltd v Dowling (No 2) [2018] NSWCA 217 Hearing dates: 19 July 2018 Decision date: 03 October 2018 Before: Beazley P at [1];
McColl JA at [2];
Basten JA at [3]Decision: (1) Grant the applicants leave to appeal from orders (2)-(4) made by McCallum J on 8 June 2018.
(2) Dismiss the appeal.
(3) Order that the applicants pay the respondent’s costs in this Court, assessed as a litigant in person.
(4) Stay the operation of orders (2) and (3) for a period of 14 days from the delivery of this judgment.
(5) Direct that there be no publication of the contents of this judgement, while the stay remains in force, except by a party to an Australian lawyer for the purpose of obtaining legal advice or to a judicial officer or court for purposes related to this proceeding.Catchwords: APPEALS – appeal by way of rehearing – grounds of appeal – procedural fairness – where lack of procedural fairness in court below relied on as ground of appeal in appeal by way of rehearing – whether unfairness demonstrated
CIVIL PROCEDURE – interlocutory applications – review of interim and interlocutory orders – where trial judge revoked orders previously made ex parte – whether change of circumstances required to be shown before discretion regarding orders exercised afresh
CIVIL PROCEDURE – interlocutory applications – ex parte –when urgent ex parte orders should be made - obligation of candour and to assist court
DEFAMATION – remedies – interim and interlocutory injunctive relief – suppression orders, take-down orders and injunctive relief – circumstances in which relief should be ordered or revoked – relevance of freedom of expression – relevance of delay in pursuing proceedings – relevance of defendant’s ongoing defiance of orders
TORTS – injurious falsehood – interlocutory injunctions – freedom of expression – whether freedom of speech relevant – relationship between defamation and injurious falsehoodLegislation Cited: Court Suppression and Non-publication Orders Act 2010 (NSW), s 8
Uniform Civil Procedure Rules 2005 (NSW), r 51.18
Supreme Court Act 1970 (NSW), s 66Cases Cited: AMI Australia Holdings Pty Ltd v Fairfax Media Publications Pty Ltd [2010] NSWSC 1395
Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; [2006] HCA 46
Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44
Capilano Honey Ltd v Dowling (No 1) [2018] NSWCA 128
Capilano Honey Ltd v Dowling [2016] NSWSC 1441
Capilano Honey Ltd v Dowling [2018] NSWSC 865
Church of Scientology of California Inc v Reader’s Digest Services Pty Ltd [1980] 1 NSWLR 344
Jane Doe 1 and Jane Doe 2 v Dowling (No 2) [2016] NSWSC 1910
Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd [No 1] (1986) 161 CLR 681; [1986] HCA 84
John Fairfax Publications Pty Ltd v Gacic (2007) 230 CLR 291; [2006] HCA 28
Liu v The Age Company Ltd (2016) 92 NSWLR 679; [2016] NSWCA 115
Munsie…
Keep reading for free
Create a free CaseChat account to read Capilano Honey Ltd v Dowling (No 2) and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2018] NSWCA 217
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the Court of Appeal were whether the trial judge erred in revoking the ex parte orders, particularly in relation to the requirements for demonstrating a change of circumstances before exercising discretion afresh, and whether the applicants had established a lack of procedural fairness in the court below. The court also considered the circumstances in which urgent ex parte orders should be made, the obligation of candour owed to the court, and the relevance of freedom of expression and delay in pursuing proceedings when assessing applications for injunctive relief in defamation and injurious falsehood claims.
The Court of Appeal held that the trial judge had not erred in revoking the ex parte orders. The court found that the applicants had not demonstrated a lack of procedural fairness, nor had they established that a change of circumstances was a prerequisite for the judge to reconsider the earlier orders. The principles applied included those governing the exercise of discretion in interlocutory matters, the requirements for obtaining ex parte relief, and the balancing of freedom of expression against the need to prevent the publication of injurious falsehoods.
The Court of Appeal granted leave to appeal but dismissed the appeal, ordering the applicants to pay the respondent's costs as a litigant in person. A stay of the operation of the orders was granted for 14 days, with directions regarding the non-publication of the judgment's contents during that period.
Orders
Orders of the court
(1) Grant the applicants leave to appeal from orders (2)-(4) made by McCallum J on 8 June 2018.
(2) Dismiss the appeal.
(3) Order that the applicants pay the respondent’s costs in this Court, assessed as a litigant in person.
(4) Stay the operation of orders (2) and (3) for a period of 14 days from the delivery of this judgment.
(5) Direct that there be no publication of the contents of this judgement, while the stay remains in force, except by a party to an Australian lawyer for the purpose of obtaining legal advice or to a judicial officer or court for purposes related to this proceeding.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.