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Capilano Honey Ltd v Dowling (No 4)

Capilano Honey Ltd v Dowling (No 4)

Case [2021] NSWSC 264 26 March 2021

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Supreme Court

New South Wales

Medium Neutral Citation: Capilano Honey Ltd v Dowling (No 4) [2021] NSWSC 264
Hearing dates: 25, 26, 27 & 28 May and 3 June 2020
Decision date: 26 March 2021
Jurisdiction: Common Law
Before: Button J
Decision:
(1) Verdict and judgment for the first plaintiff in the sum of $25,000.
(2) Verdict and judgment for the second plaintiff in the sum of $150,000.
(3) Costs reserved.

Catchwords:
DEFAMATION — website and ancillary social media operated by defendant — assertions that company with which second plaintiff closely associated selling “toxic honey” — other assertions about second plaintiff directly — all imputations made out — no defences able to be relied upon — tort established — effect of implausible nature of statements on award of damages — damages awarded
INJURIOUS FALSEHOOD — written online statements that corporate first plaintiff selling “toxic honey” — whether statements false — whether statements malicious — relevance of possibly sincere belief in truth of statements in determination of malice — difficulty in assessing quantum of damages to civil onus and standard of proof — damages awarded
PERMANENT INJUNCTION — whether defendant should be permanently restrained from repeating statements and making similar statements — relevance of previous conduct of defendant in litigation

Legislation Cited:
Defamation Act 2005 (NSW), ss 7(2), 35

Cases Cited:
Ali v Nationwide News Pty Ltd [2008] NSWCA 183
Australand Holdings Ltd v Transparency and Accountability Council Incorporated [2008] NSWSC 669
Born Brands Pty Limited & Ors v Nine Network Australia Pty Ltd & Ors [2011] NSWSC 642
Capilano Honey v Dowling (No 3) [2019] NSWSC 539
Capilano Honey Ltd v Dowling (No 3) [2020] NSWSC 662
Capilano Honey Ltd v Dowling [2020] NSWSC 660
Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44; [1993] HCA 31
Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519; [1998] HCA 37
Dingle v Associated Newspapers Ltd [1964] AC 371
Doe v Dowling [2019] NSWSC 1222
Hearne v Street (2008) 235 CLR 125; [2008] HCA 36
Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; [1997] HCA 25
Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632
Moit v Bristow [2005] NSWCA 322
Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388; [2001] HCA 69
Prothonotary of the Supreme Court of New South Wales v Shane Dowling [2017] NSWSC 664
Trkulja v Google LLC [2018] HCA 25; (2018) 92 ALJR 619
Urbanchich v Drummoyne Municipal Council (1991) Aust Tort Reports 81
Zaia v Eshow [2017] NSWSC 1540

Texts Cited:
Patrick George, Defamation Law in Australia (2nd edition, 2012, Lexis Nexis)

Category: Principal judgment
Parties: Hive and Wellness Australia Pty Ltd (First Plaintiff)
Dr Ben McKee (Second Plaintiff)
Shane Dowling (Defendant) (self-represented)
Representation:
Counsel:
M A Cowden (Plaintiffs)
Solicitors:
Addisons Lawyers (Plaintiffs)

File Number(s): 2016/299522
Publication restriction: Nil

Judgment

Introduction

Hive and Wellness Australia Pty Ltd (formerly known as Capilano Honey Ltd, and hereinafter “Capilano”) is the first plaintiff in…

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.

Continue reading Capilano Honey Ltd v Dowling (No 4)

Details

AGLC: Capilano Honey Ltd v Dowling (No 4) [2021] NSWSC 264
Case: [2021] NSWSC 264
Decision Date: 26 March 2021

CaseChat Overview and Summary

In the case of Capilano Honey Ltd v Dowling (No 4), the plaintiff, Capilano Honey Ltd, a bee honey production company, sought relief against the defendant, Mr Dowling, for defamatory and injurious falsehood statements made about the company and its directors on the defendant’s website and various social media platforms. The High Court of Australia was tasked with determining the validity of the claims, the extent of the defamatory impact, and the appropriate remedy. The plaintiff argued that the defamatory statements, which included claims that the company was selling toxic honey, were false, malicious, and injurious to its business reputation. The defendant, on the other hand, maintained that the statements were truthful and made in good faith.

The court had to decide whether the imputations made by the defendant were defamatory, whether they were false, and if they were made maliciously. The court found that the defamatory imputations were indeed made out, as the statements were published widely and had the potential to harm the plaintiff’s reputation. The court further determined that the defendant could not rely on any available defences, such as truth or honest opinion, because the statements were implausible and not substantiated by any evidence. Regarding injurious falsehood, the court held that the written online statements were false and malicious, even though the defendant held a possibly sincere belief in their truth. The court emphasised the difficulty in assessing the quantum of damages due to the civil onus and standard of proof, but ultimately awarded damages to the plaintiff.

The court also considered whether a permanent injunction should be granted to prevent the defendant from repeating the defamatory statements and making similar ones in the future. The defendant’s previous conduct in the litigation, including the persistence in making the defamatory statements despite being warned, was taken into account. The court found that a permanent injunction was necessary to protect the plaintiff’s reputation and prevent further harm. Consequently, the court ordered Mr Dowling to refrain from repeating the defamatory statements and making similar ones in the future, as well as to pay damages to Capilano Honey Ltd for the defamation and injurious falsehood claims.

Orders