Doe 1 v Dowling - [2018] NSWSC 1278

Supreme Court

New South Wales

Medium Neutral Citation: Doe 1 v Dowling [2018] NSWSC 1278
Hearing dates: 14 June 2018
Date of orders: 17 August 2018
Decision date: 17 August 2018
Jurisdiction: Common Law
Before: Walton J
Decision:
The plaintiffs are directed to bring in short minutes of order reflecting this judgment within 7 days of the publication of this judgment.

Catchwords: PRACTICE AND PROCEDURE – application for strike out – r 14.28 Uniform Civil Procedure Rules 2005 (NSW) – whether a reasonable defence is disclosed – whether the defence has a tendency to cause prejudice, embarrassment or delay in the proceedings – whether the court may strike out pleadings – defences in defamation proceedings – whether the court should permit the defendant to re-plead the defence – defence of absolute privilege – defence of qualified privilege – defence of truth – defence of triviality – defence of honest opinion – absence of viable defence – whether it is inappropriate to make orders for discovery or interrogatories prior to the pleadings closing – defence struck out – defendant not permitted to re-plead
Legislation Cited: Courts Suppression and Non-publication Orders Act 2010 (NSW)
Defamation Act 2005 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Doe v Dowling [2017] NSWSC 1793
Jane Doe 1 v Dowling (No 5) (Unreported, Supreme Court New South Wales, Fagan J, 10 February 2017)
Jane Doe 1 and Jane Doe 2 v Dowling [2016] NSWSC 1909
Texts Cited: Supreme Court of New South Wales, Practice Note SC CL 4 – Defamation List, 5 September 2014
Category: Procedural and other rulings
Parties: Jane Doe 1 (First Plaintiff)
Jane Doe 2 (Second Plaintiff)
Jane Doe 3 (Third Plaintiff)
Jane Doe 4 (Fourth Plaintiff)
Shane Dowling (Defendant)
Representation:
Counsel:
S Dawson SC (Plaintiffs)
Solicitors:
Addisons Lawyers (Plaintiffs)

File Number(s): 2016/383575
Publication restriction: Pseudonym and non-publication orders have been made in respect of the true names of the plaintiffs in these proceedings

Judgment

HIS HONOUR: By a notice of motion filed on 10 May 2018, the plaintiffs sought an order that a defence filed by Shane Dowling (“the defendant”) filed on 30 April 2018 (“the amended defence”) be struck out pursuant to r 14.28(1) of the Uniform Civil Procedure Rules (NSW) (“UCPR”) on the basis that no reasonable defence was disclosed and/or the defence has a tendency to cause prejudice, embarrassment or delay in the proceedings.
That description of the subject matter of this judgment requires explanation by recourse to the history of the proceedings. That history is set out extensively in the judgment of McCallum J in Doe v Dowling [2017] NSWSC 1793 at [1]-[26].
An action for defamation was commenced by two plaintiffs by statement of claim on 21 December 2016. Those proceedings arose out of the publication of material on a website operated by the defendant. At that time the plaintiffs were Jane Doe 1 and Jane Doe 2 (Campbell J made an order pursuant to s 7 of the Courts Suppression and Non-publication Orders Act 2010

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 Doe 1 v Dowling

Details

AGLC: Doe 1 v Dowling [2018] NSWSC 1278
Case: [2018] NSWSC 1278
Decision Date: 17 August 2018

CaseChat Overview and Summary

In the matter of Doe 1 v Dowling, the court was asked to consider an application by the plaintiff to strike out the defendant’s defence on the basis that it did not disclose a reasonable defence. The case was heard in the Supreme Court of New South Wales. The plaintiff, Doe 1, brought an action for defamation against the defendant, Dowling, who responded with various defences including absolute privilege, qualified privilege, truth, triviality, and honest opinion. The plaintiff argued that the defences were not viable and that their inclusion would cause prejudice, embarrassment, or delay in the proceedings.

The court was required to determine whether the defences disclosed a reasonable defence and whether they had a tendency to cause prejudice, embarrassment, or delay. Additionally, the court considered whether it should strike out the pleadings and if it was appropriate to make orders for discovery or interrogatories before the pleadings closed. The court examined the defences in light of the principles outlined in the Uniform Civil Procedure Rules 2005 (NSW) and previous case law.

The court found that the defences did not disclose a reasonable defence and that they had a tendency to cause prejudice, embarrassment, or delay. The court held that the defences were not viable and that the defendant had no reasonable prospect of success. The court exercised its discretion under r 14.28 of the Uniform Civil Procedure Rules 2005 (NSW) to strike out the defences. The court also held that it was inappropriate to make orders for discovery or interrogatories before the pleadings closed.

Accordingly, the court struck out the defendant’s defences and did not permit the defendant to re-plead. The court ordered that the plaintiff’s application for strike out be allowed and that the defendant’s defences be struck out. The court also ordered that the parties were to proceed with the pleadings as if the defences had never been pleaded.

Orders