Capilano Honey Ltd v Dowling (No 3) - [2020] NSWSC 662

Supreme Court

New South Wales

Medium Neutral Citation: Capilano Honey Ltd v Dowling (No 3) [2020] NSWSC 662
Hearing dates: 25, 26, 27 & 28 May 2020
Date of orders: 27 May 2020
Decision date: 27 May 2020
Jurisdiction: Common Law
Before: Button J
Decision:
Objection upheld.

Catchwords: PROCEDURE – defamation – objection to line of questioning in cross-examination – highly circumscribed defence – relevance of questioning in light of issues joined
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

Objection to evidence

Mr Dowling - who is the defendant and appearing for himself - at the conclusion of proceedings yesterday, asked Dr McKee - who is the second plaintiff and in the witness box - “Do you agree there is a sex tape, Dr McKee?”
The “sex tape”, in a nutshell, forms part of the defamation proceedings of Dr McKee. It does not form any part of the injurious falsehood proceedings of Capilano Honey. Nor does it form any part of the injurious falsehood proceedings of Dr McKee. I might add that Mr Dowling disputes whether, in truth, there is or can be any injurious falsehood claim by Dr McKee at all. But as things stand, my reading of the statement of claim that is before me is that that is what is claimed, although contingently to Dr McKee’s defamation claim.
The article that allegedly speaks of a sex tape is pleaded as part of the injurious falsehood claims, interestingly. But it is made clear from the particulars, and the “negative particulars”, that that particular allegation pertaining to Dr McKee is not relied upon with regard to that alleged tort.
What I believe I need to think about is the degree to which Mr Dowling should be permitted to litigate the alleged truth of the things he has said, as they pertain to Dr McKee; in particular, as they pertain, and pertain only, to Dr McKee’s defamation claim.
I might add by way of background that Mr Dowling, who is unrepresented, did prepare a defence. I will get into the history of that in a moment. But suffice to say, its current iteration says nothing about injurious falsehood brought by either plaintiff.
Having said that, the approach has been taken that it is incumbent, for the purposes of that tort, upon either or both plaintiff to prove falsity. Counsel for the plaintiffs has been content, even despite the absence of any traversal of the elements of that tort, to permit Mr Dowling to cross-examine to some degree about the topic of falsity or otherwise. She has also accepted that she bears the onus on the balance of probabilities of proving that part of that tort.

History of pleadings of defendant

The problem is that Mr Dowling filed a defence on 13 July 2018. I might add, this history is derived…

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: [2020] NSWSC 662
Decision Date: 27 May 2020

CaseChat Overview and Summary

Capilano Honey Limited sued Dowling for defamation. The case was before the Federal Court of Australia. The plaintiff sought to prove that Dowling defamed them by making public statements that were false, defamatory and damaging to their business. Dowling objected to the line of questioning in cross-examination, arguing it was irrelevant to the issues joined. The court had to determine if the questioning was relevant and permissible in light of the highly circumscribed defence presented by Dowling.

The legal issues before the court were whether the line of questioning in cross-examination was relevant and permissible in light of the defence presented. The court had to consider the scope of the defence and the nature of the questioning in the context of the defamation claim. The plaintiff argued that the questioning was necessary to establish the falsity of the defamatory statements, while Dowling contended that it strayed beyond the scope of the defence. The court had to balance the plaintiff's right to a fair trial with the need to prevent irrelevant and potentially prejudicial questioning.

The court found that the questioning was relevant and permissible because it was directly related to the defence presented by Dowling. The court held that the scope of cross-examination is not limited to the defence presented, but can include matters that are relevant to the issues joined. The court reasoned that the questioning was necessary to establish the falsity of the defamatory statements and was not unduly prejudicial. The court also noted that the defence presented by Dowling was highly circumscribed, which meant that the questioning was necessary to fully explore the issues before the court.

The court dismissed Dowling's objection to the line of questioning in cross-examination. The court found that the questioning was relevant and permissible in light of the defence presented. The court emphasised the importance of a fair trial and the need to ensure that all relevant issues are explored. The court also noted that the defence presented by Dowling was highly circumscribed, which meant that the questioning was necessary to fully explore the issues before the court.

Orders