Capilano Honey Ltd v Dowling (No 2)

[2020] NSWSC 661

Supreme Court

New South Wales

Medium Neutral Citation:	Capilano Honey Ltd v Dowling (No 2) [2020] NSWSC 661
Hearing dates:	25, 26, 27 & 28 May 2020
Date of orders:	25 May 2020
Decision date:	25 May 2020
Jurisdiction:	Common Law
Before:	Button J
Decision:	Defendant’s application to transfer proceedings to Queensland refused.
Catchwords:	PROCEDURE – whether to transfer proceedings to Queensland – interests of justice – application made on first day of hearing
Category:	Procedural and other rulings
Parties:	Capilano Honey Ltd (First Plaintiff) Ben McKee (Second Plaintiff) Shane Dowling (Defendant)
Representation:	Counsel: M Cowden (Plaintiff) Self-represented Defendant   Solicitors: Addisons (Plaintiff)
File Number(s):	2016/299522

EX TEMPORE JUDGMENT – REVISED

Application to transfer hearing to Queensland

1. Mr Dowling is the defendant in these defamation and injurious falsehood proceedings. It is submitted that they should be transferred to Queensland.

2. He has made the point that he lives up there now and it seems that Capilano Honey (the corporate plaintiff) is based there, and perhaps the plaintiff who is a natural person as well.

3. He has spoken of having sought this in the past from Sackar J and being refused. He has also explained that he moved to Queensland quite recently, towards the end of last year. He has also submitted that he just cannot get a fair trial in New South Wales, because of all the negative interactions that he has had with other Supreme Court judges. He has also submitted that, if he were to fail in these proceedings, he would like to appeal, he is impecunious, he would seek a waiver of fees, and he knows from experience that he is not granted waivers anymore in New South Wales.

Discussion

4. I think that, focusing on the interests of justice, as I am called upon to do by s 5(2)(b)(iii) of the Jurisdiction of Courts (Cross‑Vesting) Act 1987 (NSW), really if this went to Queensland, the whole dispute - which has been on foot objectively since the statement of claim was filed on 15 May 2017 - would be delayed by many, many more months, simply by going to the “bottom of the queue” of matters in Queensland.

5. I also think that, making due allowance for the fact that Mr Dowling is unrepresented and impecunious and in another jurisdiction, this application has really come far too late, in terms of it being placed before me in the afternoon of the first day of a three‑day hearing that was set down some time ago.

6. As for a fair trial, it is true that Mr Dowling has had let us say adverse interactions with other judges. So much is clear from what one reads in other judgments, as one does in terms of keeping up with the developing common law.

7. But he and I had a perfectly personally pleasant interaction late last year with regard to a legal question about the rule in Hearne v Street (2008) 235 CLR 125; [2008] HCA 36. Other than that, I think that he and counsel for the plaintiffs and I are all agreed that I have had nothing whatsoever to do with his matter in the past except, something that, as I say, was a legal question.

8. As for waiver of fees, I think that that is in a sense “putting the cart before the horse”; that is, thinking about an appeal before the first instance hearing has started. And as I said to Mr Dowling, it is really unclear whether his interactions with judges in Queensland might be any less adverse than they have been in this jurisdiction.

9. I think that: with the matter listed for hearing; counsel present; Mr Dowling present; evidence served; many, many interlocutory steps taken; the statement of claim filed a little over three years ago (without litigating the rights and wrongs of any such delay), the time has come where this matter simply must proceed.

10. It is noteworthy that Mr Dowling is connected to us remotely, as indeed is his opponent. Although we have had some tiring and tiresome digital problems, he is perfectly able to make submissions, I am able to hear him clearly, and he is able to hear me and his opponent. We now have pretty good audio‑visual contact, and I do not think the fact that he is a thousand kilometres away is having any prejudicial effect whatsoever. Indeed, if he were around the corner in Martin Place, he would still be appearing remotely, because of the public health emergency.

Conclusion

11. In all the circumstances that I have set out, I think that it is in the interests of justice for this matter to continue to proceed today. There might be some due allowance made to Mr Dowling in terms of not “forcing him on” at various stages precipitously, but I think it must proceed.

12. I think for that reason it is not in the interests of justice for it to move to Queensland. For that reason Mr Dowling's application is refused.

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Decision last updated: 01 June 2020