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

1. 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 Shane Dowling.

2. This judgment determines three applications brought by Mr Dowling:

1. an application to have the proceedings dismissed for want of prosecution;

2. an application to discharge injunctions granted by Hall J on 7 October 2016 and further injunctions granted by Davies J on 10 October 2016;

3. an application for review of suppression orders granted by Hall J on 7 October 2016 and continued by Davies J on 10 October 2016 (Mr Dowling seeks revocation of those orders).

Circumstances in which the applications are brought

3. The proceedings were commenced by summons filed on 7 October 2016. On that date, the plaintiffs made an ex parte application to Hall J as duty judge for interlocutory orders restraining the publication of certain material by Mr Dowling on his website, Facebook page and Twitter account. The application related to two articles in particular, referred to in the proceedings as “the Toxic Honey article” and “the Car Conversation article”. The plaintiffs sought take-down orders in respect of those articles and orders restraining future publication of that material and certain imputations and representations.

4. In order to explain the basis for the application for those orders, it is necessary to refer to related proceedings that had been brought previously by the same plaintiffs against a Victorian bee-keeper, Mr Simon Mulvany.

5. The following information concerning those proceedings is drawn from my recent judgment transferring the proceedings to Victoria: Capilano Honey Ltd v Mulvany (No 3) [2018] NSWSC 767. The claim against Mr Mulvany was commenced by summons filed on 15 February 2016. On that date, the plaintiffs made an ex parte application to the duty judge for an order under s 15 of the Service and Execution of Process Act 1992 (Cth) permitting service of the originating process in Victoria. They also sought an order under s 17 of that Act abridging the time within which Mr Mulvany would be required to enter an appearance. The basis for seeking the abridgment of time was the alleged urgency of the interlocutory relief sought: cf s 17(2) of the Act.

6. The matter was stood over to 23 February 2016 for the hearing of an application by the plaintiffs for interim injunctions requiring Mr Mulvany to remove certain articles from the internet and restraining him from publishing certain representations and imputations. On that date, Mr Mulvany proffered undertakings to the Court in lieu of the injunctions sought. It follows from the fact that undertaking were proffered that there was no occasion for the Court to determine the merits of the application. The Court noted the undertakings as follows:

“The Court notes the following undertakings proffered by the Defendant, without admission, to the Court: Until final hearing or further order of the Court, the Defendant will not, after 5pm, 24 February 2016, publish the following representations and imputations, or imputations and representations to the same effect:

a. That honey marketed and sold under the “Capilano” brand is made wholly or partially from honey that has been imported;

b. That honey marketed and sold by the First Plaintiff, whether under the “Capilano”, “Allowrie”, “Smiths”, “Wescobee” or any other brand, is toxic or poisonous;

c. That honey marketed and sold by the First Plaintiff, whether under the “Capilano”, “Allowrie”, “Smiths”, “Wescobee” or any other brand, is contaminated by antibiotics or pollution;

d. That the Plaintiffs deliberately mislead consumers to believe that honey marketed under “Allowrie” and “Smiths” brands does not contain imported honey;

e. That the Plaintiffs deliberately mislead consumers to believe that honey marketed and sold by the First Plaintiff, whether under the “Capilano”, “Allowrie”, “Smiths”, “Wescobee” or any other brand, is not dangerous to their health;

f. The Second Plaintiff, as CEO of the First Plaintiff, is motivated by greed to sell toxic honey dumped in Australia to Australian consumers;

g. The Second Plaintiff, as CEO of the First Plaintiff, put the health of Australian consumers at risk in order to become rich; and

h. The Second Plaintiff, as CEO of the First Plaintiff, is dishonest in that he has permitted the First Plaintiff to use inferior untested imported honey, thereby putting the reputation of Australia as a producer of honey at risk, and then lying about it.”

7. The two articles written by Mr Dowling which are sought to be restrained in the present action concern Capilano’s proceedings against Mr Mulvany. The first, the Toxic Honey article, was published on 17 September 2016. An aspect of Capilano’s complaint concerning that article is that it includes a link to the affidavit of Mr Richard Keegan sworn in support of the application against Mr Mulvany. That affidavit, which annexes copies of all the material Capilano seeks to restrain, was never read in the proceedings because Mr Mulvany offered undertakings in lieu. As the affidavit was not deployed in open Court, Mr Mulvany was subject to an implied undertaking not to provide it to any other person. The defendants contend that it must have been provided to Mr Dowling by Mr Mulvany.

8. The Car Conversation article was published on 6 October 2016. That article includes reference to a recording of a conversation between Mr Mulvany and Mr McKee, the second plaintiff. The plaintiffs contend that the recording was illegally obtained and that, as with the affidavit, it must have been provided to Mr Dowling by Mr Mulvany.

9. There is no transcript on the Court file of the proceedings before Hall J on 7 October 2016. Further, while it appears his Honour did give oral reasons for making the orders made (there is reference to that issue in the transcript of 10 October 2016), those reasons are also not on the Court file. So far as can be gleaned from the affidavit in support of the application and the transcript of a later hearing before Davies J, it appears that the principal basis for application before Hall J was the contention that Mr Dowling and Mr Mulvany were working together to undermine the efficacy of the relief sought in the Mulvany proceedings. At the hearing before me, the plaintiffs contended that Mr Dowling’s publication of the Keegan affidavit “plainly frustrated the orders the Court had made in the Mulvany proceeding on 23 February 2016". As already noted, however, the Court (Campbell J) did not grant interlocutory injunctions on that date in the Mulvany proceedings but accepted undertakings in lieu. As recorded in my judgment in Capilano Honey Ltd v Mulvany (No 3), those undertakings have since been replaced by interlocutory injunctions (in May 2017) but that was after the ex parte hearings in these proceedings.

10. I should note that the application before Hall J appears also to have been based on the contention that the restrained material is false. However, the evidence on that issue was sparse; Mr Keegan’s affidavit sworn 7 October 2016 said only this:

“The Toxic Honey Article and the Car Conversation Article contain numerous allegations about the plaintiffs, which I am informed by Mr McKee, and believe, are false.”

11. There was further evidence on the issue of falsity at the hearing before me. That evidence is addressed below.

12. Justice Hall granted the relief sought ex parte on 7 October 2016 and stood the proceedings over to 10 October 2016 at 3.00 pm before the duty judge for that week, Davies J. Justice Hall also made an order in the following terms (order 1, emphasis added):

“Grant interim order in accordance with section 10 of the Court Suppression and Non-Publication Orders Act 2010 suppressing publication of the hearing of the proceedings today, 7 October 2016, operating throughout the Commonwealth and continues until the proceedings come back before the Court."

13. The statutory provision referred to in that order allows the Court to make an interim order so as to maintain the efficacy of an application for a suppression order by protecting the material the subject of the application pending determination of the application on the merits. The section provides (emphasis added):

“(1) If an application is made to a court for a suppression order or non-publication order, the court may, without determining the merits of the application, make the order as an interim order to have effect, subject to revocation by the court, until the application is determined.

(2) If an order is made as an interim order, the court must determine the application as a matter of urgency.”

14. The making of an order in those terms suggests that Hall J intended to suppress publication of the hearing only pending the return of the proceedings before Davies J. However, at the same time, Hall J also made orders framed as enduring suppression orders, as follows (emphasis added):

“7. A suppression order pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW), on the ground set out in s 8(1)(a), prohibiting the disclosure, by publication or otherwise of:

(a)   the pleadings herein;

(b)   any information that comprises evidence, or information about evidence, given in the proceedings; and

(c)   any orders of the Court made in these proceedings (the Suppression Order), other than for the purpose of service and compliance with orders of the Court made today.

8.   The suppression order:

(a) Pursuant to s 11 of the Court Suppression and Non-publication Orders Act 2010 (NSW) applies throughout the Commonwealth;

(b) Pursuant to s 12 of the Court Suppression and Non-publication Orders Act 2010 (NSW) operates, unless the Court otherwise orders, until the determination of these proceedings.

9.   Nothing in these orders prevents the defendant from providing court documents to a legal practitioner for the purpose of obtaining legal advice in relation to this proceeding.”

15. There is an obvious tension between order 1 and orders 7 to 9. It is unclear whether his Honour considered the merits of the suppression application and determined that suppression of the proceedings should continue until final determination of the proceedings (orders 7 to 9) or merely intended to preserve the position on an interim basis without determining the merits (as allowed under s 10) only until the application was brought back before the Court the following Monday (order 1).

16. The confusion was compounded by the fact that, unusually, the take-down and restraining orders made by Hall J (orders 2 to 6), although made ex parte, were expressed to continue “until further order of the Court" (except order 6, which expressed no time frame). Interim orders made ex parte are usually expressed to continue only until the return of the proceedings inter partes, when it is expected that the onus will be on the plaintiff to establish a basis for continuation of the orders.

17. On the evening of Sunday 9 October 2016, Mr Dowling sent an email to the Court complaining of the “super-injunction” granted by Hall J and stating that he could not appear at 3.00 pm on 10 October 2016 because he would be at work. At some time that day Mr Dowling also published an article reporting the orders made by Hall J under the headline “Capilano take out super-injunction to silence a second journalist re poisonous and toxic Honey".

18. When the proceedings came before Davies J on 10 October 2016, Mr Dowling did not appear. At the outset of the hearing, counsel for the plaintiffs was careful to note the uncertainty concerning the intended duration of the suppression orders (there was a suggestion that orders 7 to 9 may have extended beyond what the plaintiffs sought). The plaintiffs then filed a notice of motion in Court seeking a take-down order in respect of the further article published on 9 October and restraining Mr Dowling from publishing that article.

19. Justice Davies extended order 1 made by Hall J (the order made under s 10 of the Act) until further order. His Honour also granted the relief sought in the notice of motion. So far as the transcript reveals, there does not appear to have been any consideration given to the continuation of the injunctions granted by Hall J, presumably because those orders had been expressed to continue “until further order”. Justice Davies published his reasons for continuing order 1 (the interim suppression order), making the orders sought in the notice of motion and referring the matter to the Registrar to address the issue of contempt: Capilano Honey Ltd v Dowling [2016] NSWSC 1441.

20. As to the continuation of order 1, Davies J said (at [2]):

“There is some doubt on the basis of the Court documents whether those suppression orders were to continue only until today or whether they were, with the other orders made, to continue until further order of the Court. I am satisfied by the reason of the need for the suppression orders that if they were interim orders only until today, they should be continued until further order of the Court.”

21. It was clear from Mr Dowling's email to the Court sent on the evening of Sunday, 9 October 2016 that he was on notice of the listing of the proceedings before Davies J. However, Mr Dowling had also said he was unable to appear at the appointed time and had requested further time to prepare to meet the application. Mr Dowling had not copied that email to the plaintiffs and they were unaware of its contents until the conclusion of the hearing before Davies J (page 6 of the transcript of 10 October 2016).

22. Mr Dowling did not comply with the interlocutory injunctions granted by Hall J and, so it would appear, may have breached the suppression orders by publishing the further article concerning the so-called super-injunction. That material remained on Mr Dowling's website at the time of the hearing before me.

23. Upon the determination of the application before Davies J, the proceedings were not given a future listing date. Mr Dowling wrote to the plaintiffs on 8 and 9 November 2016 asking for a copy of the statement of claim in the proceedings. The only response to those requests was that the proceedings had been commenced by way of summons. In February 2017, Mr Dowling renewed his request for a copy of the statement of claim. That request did not receive any response.

24. On 13 March 2017, Mr Dowling was before the Court in unrelated proceedings against him in the Defamation List. He took the opportunity to request to have these proceedings relisted. The proceedings were relisted on 21 April 2017 (later adjourned by consent to 28 April 2017). On that date, the plaintiffs acknowledged (appropriately) that the matter should proceed on pleadings and the proceedings were stood over until 12 May 2017. On 11 May 2017, no statement of claim yet having been filed, Mr Dowling sent an email foreshadowing an application to have the proceedings dismissed for want of prosecution. Orders were accordingly made in chambers by consent reflecting agreement between the parties as to the preparation for that application and with a view to the application being heard on 16 June 2017.

25. In the meantime, a statement of claim was finally filed on 15 May 2017 and served on 17 May 2017.

26. Mr Dowling was unable to appear on 16 June 2017 and the parties proposed a timetable for written submissions on the basis that the Court might deal with the application on the papers or else list the matter for further hearing in September.

27. In his written submissions dated 2 July 2017, Mr Dowling submitted that the action is clearly a “SLAPP” lawsuit (strategic lawsuit against public participation). He submitted that the applicants “never file affidavits and hide behind their lawyers affidavits and avoid a final hearing like the plague". Mr Dowling noted that, some six months after the ex parte application before Hall J, the plaintiffs had still not served a statement of claim and that there was no affidavit from any employee of Capilano Honey or Ben McKee.

28. Mr Dowling's submissions also addressed the suppression orders. He submitted that there were no exceptional circumstances for making those orders, citing the decision of the High Court in ABC v O'Neill (2006) 227 CLR 57; [2006] HCA 46. That decision was concerned with interlocutory injunctions rather than suppression orders, but it is relevant to the present application on the issue of the continuation of the injunctions. In particular, the decision acknowledges the exceptional caution that must be exercised in proceedings for defamation in exercising the jurisdiction to restrain publication before trial (the decision in ABC v O'Neill was concerned with an application made before publication had occurred but in my view the same reasoning applies in an application for take-down orders). In any event, so far as suppression orders are concerned, the principle stated by Mr Dowling finds support in the decision of the Court of Appeal in Rinehart v Welker (2011) 93 NSWLR 311; [2011] NSWCA 403 where the Court said at [27]:

“The operative condition for making a suppression order under s 8 of the CSPO Act is that it be "necessary" to do so, which "... is a strong word [which, in] collocation [with] necessity to prevent prejudice to the administration of justice ...'suggests Parliament was not dealing with trivialities'": Hogan v Australian Crime Commission[2010] HCA 21; (2010) 240 CLR 651 (at [30]). The observations in Hogan v Australian Crime Commissionwere made in relation to a legislative scheme which, while it required the jurisdiction of the Court to be exercised in open court (s 17, Federal Court of Australia Act) did not contain a provision in like terms to s 6 of the CSPO Act. That provision, in our view, reinforces the legislative intention that CSPO Act orders should only be made in exceptional circumstances, a position which prevailed at common law: John Fairfax Publications Pty Ltd v District Court of NSW(at [21]).”

29. In their written submissions dated 24 July 2017, the plaintiffs declined to respond to Mr Dowling’s submissions in so far as they related to matters other than the application to have the proceedings dismissed for want of prosecution. The reason stated for declining to address any other issue was that the agreed timetable was confined to that application. With respect, that was an unhelpful approach. Pursuant to s 13 of the Court Suppression and Non-publication Orders Act, Mr Dowling was entitled to have the suppression orders reviewed as of right. As the orders had been sought and granted ex parte, it behoved the plaintiffs to assist the Court on that issue when it was raised by the defendant.

30. As to the application to have the proceedings dismissed for want of prosecution, the plaintiffs submitted that, in circumstances where Mr Dowling is in clear breach of the orders of Hall J and Davies J, the Court should simply decline to entertain his application. While that submission may appear at first blush to have some force, upon analysis I do not think it can be right. The sanction for any breach of the orders lies in proceedings for contempt. The expeditious conduct of the proceedings on the part of the plaintiffs is a discrete concern; Mr Dowling’s conduct does not inform the content of the plaintiffs’ obligations under Part 6 of the Civil Procedure Act 2005 (NSW) or relieve the plaintiffs of those obligations.

31. Separately, it was submitted that there is no basis on which the proceedings could be dismissed for want of due despatch. The plaintiffs accept that, at the time Mr Dowling’s application was made, the proceedings had not progressed since the orders of Davies J. However, the plaintiffs submitted that it was appropriate for them to prosecute the action against Mr Mulvany first, since the outcome of those proceedings was plainly relevant to these proceedings.

32. In a short submission in reply dated 6 August 2017, Mr Dowling noted the plaintiffs’ refusal to address the suppression orders and submitted that there is no response to the proposition that exceptional circumstances must be established and do not exist in the present case. Mr Dowling further submitted that the plaintiffs’ submission as to the appropriateness of prosecuting the Mulvany case first amounted in effect to an admission that the plaintiffs “have put a go-slow routine on the matter from the start”. Finally, in response to the plaintiffs’ point that Mr Dowling had not filed a defence, Mr Dowling submitted that it was appropriate for the dismissal application to be determined first.

33. Unfortunately, after those submissions closed, the need for a future listing was overlooked by the Court until the end of term, when the matter was again raised by Mr Dowling (upon the occasion of my publishing a judgment in an unrelated matter). Following the determination of an issue subsequently raised by the plaintiffs as to whether I should recuse myself (determined in Capilano Honey Ltd v Dowling [2018] NSWSC 407), Mr Dowling’s three applications were ultimately heard in April of this year.

Application to have proceedings dismissed for want of prosecution

34. The plaintiffs’ explanation for the lack of progress in the prosecution of the action after the hearing before Davies J was verified in an affidavit sworn by Mr Keegan on 6 April 2018. In summary, Mr Keegan explains that the proceedings against Mr Dowling were commenced as a result of the proceeding commenced against Mr Mulvany. Mr Keegan states that the factors which necessitated the commencement of proceedings against Mr Dowling included the fact that Mr Mulvany provided copies of the affidavit and confidential exhibit sworn by Mr Keegan in the Mulvany proceedings to various members of the media and to Mr Dowling and the fact that Mr Dowling republished that restrained material in the Toxic Honey article.

35. Other material published by Mr Dowling includes a copy of an email sent directly by Mr McKee to Mr Mulvaney and disclosure of the contents of a private conversation between Mr McKee and Mr Mulvaney. Mr Keegan states that it was evident from the cooperation and collaboration between Mr Mulvany and Mr Dowling that Mr Dowling's publications were “designed to further Mr Mulvany's allegations and do further damage to the plaintiffs". He contends that there is no material published by Mr Dowling about the plaintiffs that cannot be sourced back to Mr Mulvany. On that basis, Mr Keegan states that he focused his efforts and the plaintiffs’ resources, in the period following the granting of the injunction on 7 October 2016 until shortly before the time allocated for the hearing of the Mulvany proceedings (26 May 2017) to pursuing Mr Mulvany, given that he was “the original and only source of Mr Dowling's publications".

36. I am not persuaded that is an acceptable reason for the plaintiffs to have taken no steps in the proceedings following obtaining interlocutory orders (including suppression orders). Mr Keegan’s affidavit notes that, before 13 March 2017, Mr Dowling had taken “no action to have the proceedings listed”. With respect, it was the plaintiffs’ obligation to prosecute the action with due expedition. The orders made at the outset of the proceedings imposed a significant constraint on Mr Dowling’s freedom of speech. An approach of obtaining ex parte orders with the utmost urgency and then resting upon those orders taking no further steps in the proceedings should not be condoned by the Court, particularly against a self-represented litigant.

37. The plaintiffs submitted that it is not suggested that there has been any prejudice suffered by the defendant by reason of the lapse of time between the orders of 7 and 10 October 2016 and the filing and service of the statement of claim (over 7 months later). The prejudice is that that is the length of time during which there has been a constraint on Mr Dowling’s freedom of speech and during which he has been exposed to the sanction of punishment for contempt of Court.

38. Even leaving aside the fact that Mr Dowling was under the burden of interlocutory injunctions and suppression orders for that period of time, the plaintiffs are under a duty to assist the Court to further the overriding purpose of facilitating the just, quick and cheap resolution of the real issues in the proceedings and to eliminate delay: ss 56(3) and 59 of the Civil Procedure Act.

39. However, I do not think the delay is such as to warrant dismissing the proceedings. The relevant principles were considered by me in Templar v Watt [2014] NSWSC 937. A consideration of those principles as applied in that case suggests that the sanction of dismissing the proceedings would be too extreme at this stage. The plaintiffs’ delay is, however, a significant factor in the review of the suppression orders and the application to have the interlocutory injunctions dissolved.

Application for review of the suppression orders

40. As already noted, a party to proceedings in which a suppression order has been made has an unqualified right under s 13 of the Court Suppression and Non-Publication Orders Act to have the orders reviewed.

41. Order 1 made by Hall J and extended by Davies J may be dealt with briefly. Section 10 of the Court Suppression and Non-Publication Orders Act confers a specific power calculated to enable the Court to preserve the efficacy of its powers under the Act for so long as it takes to determine whether to exercise those powers. Subsection 10(2) makes plain that an interim order under subsection 10(1) should endure only so long as is necessary to determine the merits of the substantive application for a suppression order or non-publication order under s 7 of the Act. For the reasons already explained, it is unclear whether Hall J intended orders 7 and 8 to continue until further order or only until the hearing before Davies J. On either view, with respect, there was no occasion on 10 October 2016 for an interim order under s 10 of the Act to be continued. I am satisfied that order 1 should be revoked.

42. The more difficult question is whether orders 7 and 8 made by Hall J on 7 October 2016 should be revoked. The review of those orders should be undertaken applying the test of necessity explained in Rinehart v Welker (set out above). That test has a temporal aspect. The plaintiffs’ slow prosecution of the action is a relevant consideration in that context.

43. The basis for the application for a suppression order, as explained to Davies J on 10 October 2016, was that it was necessary to support the efficacy of the interlocutory injunctions. The plaintiffs contended that, in the absence of a suppression order, Mr Dowling would circumvent the injunctions by immediately reporting on the proceedings. The plaintiffs also expressed a concern, based on Mr Dowling’s prior conduct, that if he had been given notice of the application and in the absence of a suppression order, he would have worked in cooperation with Mr Mulvany to defeat the efficacy of the relief sought. I do not understand Mr Dowling to deny the existence of that risk, which is amply confirmed by his conduct in these and other proceedings. The plaintiffs submitted that, if the idea of “toxicity” gains any currency, the commercial risk to Capilano is potentially enormous.

44. Those submissions were maintained at the hearing before me. The plaintiffs relied in that context on my remarks in Doe v Dowling [2017] NSWSC 1793 at [67] to [69]. The orders in that case were significantly more confined. There was no order suppressing publication of the proceedings, only pseudonym orders and an order prohibiting identification of the plaintiffs.

45. In any event, as the suppression orders are expressly sought in aid of the efficacy of the interlocutory injunctions, it is appropriate to determine the fate of the suppression orders according to the fate of the injunctions.

Application to have the interlocutory injunctions discharged

46. The plaintiffs submitted that, in order for Mr Dowling to succeed on his application to discharge the injunctions, he must demonstrate that there has been a material change in circumstances since those orders were made or that there has been new material found which could not reasonably have been adduced at that time, citing Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44. As noted by the plaintiffs, the relevant principles were considered more recently by the Court of Appeal in Liu v The Age Company Ltd [2016] NSWCA 115 at [165]-[199]. That discussion reveals that the principle the plaintiffs derive from Brimaud is not an immutable rule. The relevant passage in Liu concludes at [199] with the following statement for which Brimaud is cited as authority:

“the overriding principle governing the approach of the court to interlocutory applications is that the court should do whatever the interests of justice require in the particular circumstances of the case.”

47. Further, as noted in Liu at [172], the principle contended for by the plaintiffs was held in Brimaud to apply where an interlocutory order of a substantive nature had been made after a contested hearing in contemplation that it would operate until the final disposition of the proceedings. Justice McLelland expressly noted in that context that not all kinds of interlocutory orders attract the same considerations.

48. I am satisfied that it is appropriate to revisit the interlocutory injunctions in the present case, for the following reasons.

49. First, there has previously been no contested hearing. It may be accepted that Mr Dowling was on notice of the listing of the plaintiffs’ application before Davies J. His failure to appear at that time must accordingly be regarded as a choice of sorts, albeit one made under the exigency of extremely short notice of the application. In his email to the Court, Mr Dowling sought a later return date within weeks but, as already noted, he did not copy that email to the plaintiffs and accordingly they were not aware of that request. In any event, the short point is that the hearing proceeded uncontested. That is not to say that a defendant will have a further hearing for the asking, having chosen not to appear. It is simply one of the relevant considerations in determining what the interests of justice require in the circumstances of this case.

50. Secondly, it is far from clear that the orders were made in contemplation that they would operate until the final disposition of the proceedings (in the language of Brimaud). As the defendant was not present in court on either 7 or 10 October 2016, I have taken some care to analyse the course of those two applications. I am left with the apprehension that Hall J intended only to preserve an interim position until a contested hearing before Davies J, whereas Davies J assumed (not unreasonably, since the orders of Hall J had been made “until further order”) that Hall J had satisfied himself that interlocutory orders until final disposition of the proceedings were appropriate on the merits.

51. Finally, in my view, the plaintiffs’ delay in the prosecution of the action (explained only by the decision to allow these proceedings to stand without progress while the action against Mr Mulvany is prosecuted) is of itself sufficient reason to revisit the orders, particularly where those orders are accompanied by suppression orders. As already indicated, in my view the test of necessity to be applied in exercising the power to make suppression orders has a temporal dimension; such orders, having been made, should inform the importance of prosecuting the action in a timely way.

52. A substantial amount of hearing time before me was taken up with argument as to the Brimaud test and the admissibility or weight of the evidence relied upon by Mr Dowling viewed through that prism. For the reasons explained above, I am not persuaded that I should exclude evidence on the present application solely on the basis that Mr Dowling could have adduced it at the hearing on 10 October 2016. However, except to the extent addressed below, much of the additional material tendered by Mr Dowling is irrelevant and is excluded on that basis.

53. On the strength of the material before me, I am not persuaded that the continuation of the interlocutory injunctions is warranted.

54. As already noted, the principal basis for the application for interlocutory injunctions in these proceedings is to preserve the efficacy of the relief sought against Mr Mulvany. However, there is no suppression or non-publication order in those proceedings. Any person other than Mr Dowling is free to report those proceedings. It is an ordinary feature of proceedings for defamation or injurious falsehood that the conduct of the proceedings will result in the ventilation of the very defamation or falsehood in respect of which a remedy is sought. Indeed, the vindication of a plaintiff’s rights in open court is an aspect of the efficacy of the remedy. As noted by the plaintiffs, I was persuaded that a different approach was warranted in Doe v Dowling, in which I continued a non-publication order to prevent Mr Dowling’s indefensible allegations concerning four particular women from gaining currency. The present case raises different issues.

Injunctions to protect Capilano

55. The cause of action relied by Capilano is injurious falsehood. The claim seeks to protect its business as “Australia’s leading producer and seller of honey” (statement of claim, par 8).

56. Evidence tendered by Mr Dowling reveals that concerns about so-called “toxic honey” are not new and have previously had some currency. Mr Dowling tendered two clips of reports on Today Tonight said to be from 2007 and 2011 discussing those issues in very similar terms to the matters published by Mr Mulvany and repeated by Mr Dowling. That evidence was objected to on the basis that it could have been put before the Court in October 2016 but also because it was not sufficiently recent or available to inform the question of the currency of the allegations now. I was satisfied that the television material, said to date from 2007, was relevant and should be admitted on the present application. It demonstrates the existence of substantial public concern over the quality of honey in Australia.

57. On the application before me, the plaintiffs adduced more detailed evidence than was put before Hall J as to the falsity of the allegations made in the Toxic Honey article. The affidavit also addressed the issue of potential damage to the Capilano brand. That evidence establishes a prima facie case that the concerns over toxic honey circulated by Mr Mulvany and Mr Dowling are misplaced. In my view, however, it is equally clear that the debate is one of broad public concern raising complex questions of trade regulation and health safety regulation. As wrong-headed as Mr Dowling’s views might be, I am not persuaded that it is appropriate to restrain him alone from participating in that debate on the strength of the kind of evidence before me. I am not persuaded that this is the kind of case in which interlocutory orders should pre-empt the final hearing.

58. Addressing the elements of injurious falsehood (as stated by Brereton J in AMI Australia Holdings Pty Ltd v Fairfax Media Publications Pty Ltd [2010] NSWSC 1395 at [29]), Mr Dawson submitted that the evidence supports a prima facie case that the elements of the tort are satisfied and that there is nothing to tip the balance in Mr Dowling’s favour. In my assessment, the evidence of damage or likely damage was scant. Further, there are factors pointing in favour of discharging the orders. One is the fact that, although these proceedings are brought in aid of the relief sought against Mr Mulvany, there are no non-publication orders in respect of those proceedings. Any person is accordingly free to participate in the discussion of those proceedings except Mr Dowling. The other consideration, on which I place significant weight, is the approach the plaintiffs have taken of obtaining urgent interlocutory orders ex parte and then taking no steps in the proceedings until prompted by Mr Dowling.

Injunctions to protect Mr McKee

59. Mr McKee’s cause of action is in defamation and accordingly his application attracts the principles considered in ABC v O’Neill.

60. The statement of claim specifies 43 defamatory imputations alleged to arise from the matters complained of. The argument on the application before me focussed primarily on the imputations alleged to arise from the discussion of the “Car Conversation” in the Car Conversation article. Mr Dowling tendered a copy of that recording. The plaintiffs objected to its admission into evidence on a number of grounds but ultimately acknowledged that, as it was before Hall J on 7 October 2016, it should be before me. I have had regard to the content of that tape (part only of exhibit 3).

61. At this stage of the proceedings, it is appropriate to be circumspect in recording my reasons for concluding that the injunctions in respect of Mr McKee should be discharged. In short, I am not persuaded that this is a case which meets the high threshold for obtaining an interlocutory injunction in proceedings for defamation. I do not mean to suggest that the imputations specified by the plaintiff are true. This is no more than a simple application of the principle that the Court will not ordinarily grant interlocutory injunctions in proceedings for defamation.

62. The plaintiffs’ delay is relevant in this context as well. Mr Dowling relied in that context on the remarks of Campbell J in Jane Doe 1 and Jane Doe 2 v Dowling (No 2) [2016] NSWSC 1910 at [23]:

“Finally of substance, and taking up what I have said about freedom of speech, it may be said by some that acceding to an application for an interim injunction in this case effectively decides the case and, having obtained interlocutory orders, the plaintiffs may have no incentive to continue the proceedings to trial. That may be a legitimate expression of concern had it been articulated by someone in the position of the defendant had he taken the opportunity to appear in court to put his side of the story. I have taken this consideration into account in making my decision today. However, if the plaintiffs drag their feet in bringing on the case then the remedy is in the defendant's own hands. If there is undue delay in bringing the matter to trial then the defendant's remedy is to apply for dissolution of the interim orders I have made or to apply for dismissal of the proceedings for want of prosecution.”

63. For those reasons, I am satisfied that it is appropriate to dissolve the injunctions and the suppression orders.

64. I make the following orders:

1. The defendant’s application to have the proceedings dismissed for want of prosecution is dismissed.

2. I revoke order 1 made by Hall J on 7 October 2016 extended by Davies J on 10 October 2016 (the interim suppression order).

3. I revoke orders 7 and 8 made by Hall J on 7 October 2016 (the suppression orders).

4. I vacate orders 2 to 8 made by Hall J on 7 October 2016

5. I vacate order 4 made by Davies J on 10 October 2016.

6. I direct the defendant to file a defence by 27 June 2018.

7. I stand the proceedings over to 29 June 2018.

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I certify that this and the 20 preceding pages are a true copy of the reasons for judgment herein of the Honourable Justice McCallum.

Dated: 12 June 2018

Associate: N Sinclair

Decision last updated: 19 October 2018