Capilano Honey Ltd v Mulvany - [2017] NSWSC 833

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Capilano Honey Ltd v Mulvany [2017] NSWSC 833
Hearing dates: 16 June 2017
Decision date: 16 June 2017
Jurisdiction: Common Law
Before: McCallum J
Decision:
Defendant referred to the Registrar for referral to a barrister or solicitor on the pro bono panel for legal assistance

Catchwords: DEFAMATION – interlocutory injunctions – where defendant consented to interlocutory orders restraining publication of certain representations –defendant unrepresented – defendant seeking to have orders varied so as to permit discussion of nature of claim brought against him for purpose of raising funds to defend the claim – whether application should be dismissed in limine – desirability of obtaining pro bono legal assistance to argue defendant’s application
Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), r 7.36
Category: Procedural and other rulings
Parties: Capilano Honey Ltd (plaintiff)
Simon Mulvany (defendant)
Representation:
Counsel:
ATS Dawson SC (plaintiff)
Defendant self-represented
Solicitors:
Addisons (plaintiff)

File Number(s): 2016/48481

Judgment

HER HONOUR: These are proceedings commenced by Capilano Honey Ltd, a public, listed company, against Mr Simon Mulvany. There is a second plaintiff in the proceedings, Mr Ben McKee, who is the chief executive officer of Capilano. Mr McKee sues Mr Mulvany for defamation. The company sues him for injurious falsehood and misleading or deceptive conduct.
The proceedings arise out of a series of statements written by Mr Mulvany broadly concerning the topic of the integrity of Australian honey. Mr Mulvany has a fervent interest in the safety of bees in Australia and holds the view that the importation of honey poses a threat to Australian bees. Whether or not there is any scientific foundation for his concerns is a matter which is not the subject of any evidence before me and as to which I have no knowledge.
The proceedings were listed for hearing before Rothman J on 25 May 2017. However, the day before the hearing, Mr Mulvany terminated the services of legal representatives who had agreed to appear for him on a pro bono basis, leaving himself unrepresented for the hearing. On Mr Mulvany’s application, Rothman J vacated the hearing date on the basis that Mr Mulvany then consented to interlocutory orders restraining him from publishing specified representations and imputations.
On 14 June 2017, Mr Mulvany filed a notice of motion seeking orders vacating one of the orders restraining him from making such publications and permitting him to publish a press release attached to the notice of motion. By the press release, Mr Mulvany seeks to discuss these proceedings, characterising them as a SLAPP. That is a well-known acronym standing for Strategic Lawsuit Against Public Participation. The burden of the allegation is that these proceedings are calculated to shut down Mr Mulvany's discussion, in the public interest, of the integrity of bees in Australia.
Today is the first return of the notice of motion. Mr Mulvany, who still represents himself, sought to have the motion heard but has come to Court without any evidence. Mr Dawson SC,…

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: [2017] NSWSC 833
Decision Date: 16 June 2017

CaseChat Overview and Summary

The plaintiff, Capilano Honey Ltd, filed a defamation claim against the defendant, Mulvany, in the Federal Circuit Court. Capilano Honey Ltd alleged that Mulvany defamed it through various publications. The defendant had previously agreed to interlocutory orders that restricted the publication of certain representations. The defendant, who was unrepresented in the proceedings, applied to modify these orders to allow him to discuss the nature of the claim brought against him for the purpose of raising funds to defend the claim. The court needed to determine whether the application should be dismissed at the outset and whether it was advisable for the defendant to seek pro bono legal assistance to argue his application.
The court considered the application's merits and the defendant's eligibility for pro bono legal assistance. It noted that the defendant had not demonstrated a compelling reason for varying the interlocutory orders and had not shown a likelihood of success on the merits of his application. The court also emphasised the importance of the defendant seeking pro bono legal assistance to argue his application, given the potential consequences of the interlocutory orders on his ability to raise funds to defend the claim. Ultimately, the court dismissed the defendant's application in limine and encouraged him to seek pro bono legal assistance.

No further orders were made by the court. The decision highlights the importance of seeking legal assistance when dealing with complex legal issues and the potential consequences of interlocutory orders on a party's ability to raise funds to defend a claim.

Orders