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 937Category: Procedural and other rulings Parties: Capilano Honey Ltd (first plaintiff)
Ben McKee (second plaintiff)
Shane Dowling (defendant)Representation: Counsel:
Solicitors:
ATS Dawson SC, M Cowden (plaintiffs)
Defendant self-represented
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
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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…
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- Case
- [2018] NSWSC 865
- Decision Date
CaseChat Overview and Summary
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.
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