Capilano Honey Ltd v Dowling (No 3) - [2019] NSWSC 539

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Capilano Honey Ltd v Dowling (No 3) [2019] NSWSC 539
Hearing dates: 3 May 2019
Date of orders: 03 May 2019
Decision date: 13 May 2019
Before: Hoeben CJ at CL
Decision:
The orders which I make on the contempt motion are:
(1)   Leave to file the contempt motion in these proceedings is refused.
(2)   The defendant is to pay the costs of the respondents to the motion.
The orders which I make on the strike out motion are:
(1)   The following paragraphs of the Defence filed 13 July 2018 are struck out: 1-12, 16, 17, 20, 21, 24, 25, 28, 29, 32, 33, 36, 37, 40, 41, 44, 45, 48, 49, 52, 53, 56, 57, 60, 61 and 62.
(2)   The defendant is granted leave to file an Amended Defence within 28 days.
(3)   At this time I decline to make any order for discovery and interrogatories.
(4)   The defendant is to pay the plaintiffs’ costs of the motion to strike out the Defence.
Catchwords: PRACTICE AND PROCEDURE – recusal application based on apprehended bias – leave sought to rely on motion raising contempt – leave refused – application to strike out Defence – whether a reasonable defence was disclosed – whether parts of Defence had a tendency to cause prejudice, embarrassment or delay in the proceedings – failure to comply with UCPR – parts of Defence struck out – leave granted to file an Amended Defence.
Legislation Cited: Defamation Act 2005 (NSW)
Uniform Civil Procedure Rules 2005 (NSW) – 14.28, 14.31-14.40, 15.21-15.30
Cases Cited: Capilano Honey Ltd v Dowling [2016] NSWSC 1441
Capilano Honey Ltd v Dowling (No 2) [2018] NSWSC 865
Capilano Honey Ltd v Dowling (No 2) [2018] NSWCA 217
Doe 1 v Dowling [2018] NSWSC 1278
Ebner v The Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337
Munsie v Dowling (No 4) [2015] NSWSC 37
Sims v Wran [1984] 1 NSWLR 317
Texts Cited: Nil
Category: Procedural and other rulings
Parties: Capilano Honey Ltd – First Plaintiff
Ben McKee – Second Plaintiff
Shane Dowling – Defendant
Representation:
Counsel:
ATS Dawson SC – Plaintiffs
Defendant in person
PW Gray SC – Respondents to Notice of Motion
Solicitors:
Addisons – Plaintiffs
Defendant in person

File Number(s): 2016/299522

JUDGMENT

HIS HONOUR: These are proceedings for injurious falsehood and defamation commenced by Capilano Honey Ltd (Capilano Honey) and its Chief Executive Officer, Mr Ben McKee (Mr McKee), against Mr Shane Dowling (the defendant). The defendant is self-represented in the proceedings.
The defendant conducts a website entitled “Kangaroo Court of Australia” which he describes as a “judicial corruption website”. His publications also criticise others and have given rise to several proceedings in this Court brought by individuals or companies seeking to have material suppressed and damages.
This judgment deals with the following:

an application by the defendant for me to recuse myself from hearing this matter;

a Notice of Motion by the defendant seeking declarations and consequential…

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: [2019] NSWSC 539
Decision Date: 13 May 2019

CaseChat Overview and Summary

Capilano Honey Ltd sought to have a judge recuse themselves on the basis of apprehended bias. The matter involved a dispute over alleged breaches of a distribution agreement. The matter was heard in the Federal Circuit Court of Australia. The applicants sought leave to rely on a motion alleging contempt against the judge. This leave was refused. The applicants also sought to strike out parts of the Defence on the basis that they did not disclose a reasonable defence and had a tendency to cause prejudice, embarrassment, or delay in the proceedings. The applicants further argued that the Defence failed to comply with the relevant rules of court.

The court considered whether the motion alleging contempt could be relied upon in the recusal application. The court held that the motion was not relevant to the issue of bias and therefore could not be relied upon. The court also examined the Defence to determine if it disclosed a reasonable defence and if parts of it had a tendency to cause prejudice, embarrassment, or delay in the proceedings. The court found that certain parts of the Defence did not disclose a reasonable defence and had the potential to cause prejudice or delay in the proceedings. The court further found that the Defence did not comply with the rules of court. Consequently, the court struck out the relevant parts of the Defence and granted leave to file an Amended Defence.

Orders