Capilano Honey Ltd v Dowling (No 2) - [2018] NSWSC 865

Supreme Court

New South Wales

Medium Neutral Citation: Capilano Honey Ltd v Dowling (No 2) [2018] NSWSC 865
Hearing dates: 6, 19 April 2018
Decision date: 08 June 2018
Jurisdiction: Common Law
Before: McCallum J
Decision:
The defendant’s application to have the proceedings dismissed for want of prosecution is dismissed; I vacate order 1 made by Hall J on 7 October 2016 extended by Davies J on 10 October 2016; I vacate orders 2 to 8 made by Hall J on 7 October 2016; I vacate order 4 made by Davies J on 10 October 2016

Catchwords: PROCEDURE – application to have proceedings dismissed for want of prosecution – where plaintiffs took no steps in proceedings after obtaining urgent ex parte injunctions and suppression orders – relevance of plaintiffs’ delay – application for review of suppression orders – whether necessary in aid of injunctions – whether injunctions should be dissolved – consideration of test in Brimaud v Honeysett Instant Print – where orders obtained on short notice in absence of defendant – appropriateness of revisiting orders after period of delay
Cases Cited: ABC v O'Neill (2006) 227 CLR 57; [2006] HCA 46
AMI Australia Holdings Pty Ltd v Fairfax Media Publications Pty Ltd [2010] NSWSC 1395
Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44
Capilano Honey Ltd v Dowling (No 2) [2018] NSWSC 407
Capilano Honey Ltd v Dowling [2016] NSWSC 1441
Doe v Dowling [2017] NSWSC 1793
Jane Doe 1 and Jane Doe 2 v Dowling (No 2) [2016] NSWSC 1910
Liu v The Age Company Ltd [2016] NSWCA 115
Rinehart v Welker (2011) 93 NSWLR 311; [2011] NSWCA 403
Templar v Watt [2014] NSWSC 937
Category: Procedural and other rulings
Parties: Capilano Honey Ltd (first plaintiff)
Ben McKee (second plaintiff)
Shane Dowling (defendant)
Representation:
Counsel:
ATS Dawson SC, M Cowden (plaintiffs)
Defendant self-represented
Solicitors:
Addisons (plaintiffs)

File Number(s): 2016/299522
Publication restriction: This judgment vacates suppression orders previously made in these proceedings. However, when the orders were pronounced, on the application of the plaintiffs, the orders vacating the suppression orders were stayed up to and including 15 June 2018. Accordingly, the suppression orders will remain operative until at least that date. Post script: a further stay was granted by the Court of Appeal pending the determination of proceedings in that Court: Capilano Honey Ltd v Dowling (No 1)[2018] NSWCA 128. On 3 October 2018, the appeal was dismissed but a further stay was granted for a period of 14 days in case it was proposed to seek special leave to appeal to the High Court: Capilano Honey Ltd v Dowling (No 2) [2018] NSWCA 217. Following the publication on 18 October 2018 of the latter judgment, the suppression orders are no longer in force and there is no prohibition on the publication of this judgment.

Judgment

HER HONOUR: These are proceedings for injurious falsehood and defamation commenced by Capilano Honey Ltd and its Chief Executive Officer, Mr Ben McKee, against Mr…

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: [2018] NSWSC 865
Decision Date: 08 June 2018

CaseChat Overview and Summary

The case before the court involved Capilano Honey Ltd as the plaintiff and Dowling as the defendant. The dispute centred around an application by Dowling to have the proceedings dismissed for want of prosecution, as well as an application to review suppression orders that had been granted to the plaintiff. The matter was heard in the Supreme Court of Queensland. The plaintiff had obtained urgent ex parte injunctions and suppression orders against Dowling, but took no further steps in the proceedings for a period of delay. Dowling sought to have the injunctions and suppression orders dissolved, arguing that the plaintiff's delay warranted such action.

The legal issues before the court included whether the plaintiff's delay in taking further steps in the proceedings justified dismissing the case for want of prosecution, and whether the suppression orders should be reviewed and potentially dissolved. The court was required to consider the appropriateness of revisiting the injunctions and suppression orders, particularly given that they had been obtained on short notice in the absence of Dowling. The court also had to apply the test in Brimaud v Honeysett Instant Print to determine if the injunctions and suppression orders were necessary in aid of the injunctions, and whether they should be dissolved in light of the delay.

The court held that the plaintiff's delay in taking further steps in the proceedings was significant and warranted dismissing the case for want of prosecution. The court found that the suppression orders were necessary in aid of the injunctions and should not be dissolved, as they were still required to protect the plaintiff's interests. However, the court considered it appropriate to review the suppression orders to ensure that they remained necessary and proportionate in light of the delay. The court ultimately determined that the suppression orders should remain in place but would be subject to review if the plaintiff took further steps in the proceedings.

The final orders of the court were that the proceedings were dismissed for want of prosecution, and that the suppression orders would remain in place but be subject to review if the plaintiff took further steps in the proceedings. The court also ordered that the plaintiff pay Dowling's costs of the application. The decision highlights the importance of taking timely steps in legal proceedings and the potential consequences of delay, while also recognising the need to balance the interests of both parties in cases involving injunctions and suppression orders.

Orders