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Doe v Dowling

Doe v Dowling

Case [2019] NSWSC 1222 20 September 2019

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Doe v Dowling [2019] NSWSC 1222
Hearing dates: 26-27 August 2019
Date of orders: 20 September 2019
Decision date: 20 September 2019
Jurisdiction: Common Law
Before: Fagan J
Decision:
1. Judgment for the plaintiffs for damages in the sum of $150,000 for each plaintiff.
2. Until further order the names of the plaintiffs are not to be published in connection with these proceedings.
3. The defendant is restrained from publishing any of the three articles that are the subject of the proceedings in any form which includes the name of any of the plaintiffs.
4. The defendant is restrained from publishing any matter of and concerning the plaintiffs to the same effect as the articles that are the subject of the proceedings or to the same effect as the imputations pleaded in the amended statement of claim or any imputations that do not differ in substance.
5. The defendant is to remove from the kangaroocourtofaustralia.com website the publications identified in the orders of the court as entered, including any republication by hyperlink to those publications from other electronic platforms controlled by the defendant.
6. The defendant is to pay the plaintiffs’ costs of the proceedings on the indemnity basis.

Catchwords: DEFAMATION – defamatory matter – where defendant admitted publication of defamatory material – where all imputations alleged were found to have been conveyed –justification not pleaded – no defence of absolute privilege – where defence of qualified privilege pleaded – whether conduct of defendant in publishing material was reasonable in circumstances – Defamation Act s 30 subs (1)(c) – where no attempt to verify information before publication – behaviour unreasonable in circumstances – defence of qualified privilege fails – where defendant likely to repost defamatory material – non-publication order made – permanent injunction granted – defendant to pay costs on indemnity basis
Legislation Cited: Australian Human Rights Commission Act 1986 (Cth)
Court Suppression and Non-publication Orders Act 2010 (NSW)
Defamation Act 2005 (NSW)
Disability Discrimination Act 1992 (Cth)
Evidence Act 1995 (NSW)
Uniform Civil Procedure Rules 2005
Sex Discrimination Act 1984 (Cth)
Cases Cited: Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158; [1998] NSWSC 4
Attorney General v Leveller Magazine [1979] AC 440
Attorney-General v Times Newspapers [1992] 1 AC 191
Austin v Mirror Newspapers Ltd (1985) 3 NSWLR 354
Bristow v Adams [2012] NSWCA 166
Cairns and Morosi v John Fairfax & Sons Ltd (1983) 2 NSWLR 708
Carolan v Fairfax Media Publications Pty Ltd (No 7) [2017] NSWSC 351
Doe v Dowling [2017] NSWSC 202
Doe v Dowling [2017] NSWSC 1793
Doe 1 v Dowling [2018] NSWSC 1278
Dowling v Prothonotary of the Supreme Court of New South Wales [2018] NSWCA 340
Greek Herald Pty Ltd v Nikolopoulos & Others (2002) 54 NSWLR 165; [2002] NSWCA 41
Hockey v Fairfax Media Publications Pty Limited (No 2) [2015] FCA 750
Jane Doe 1 & Jane Doe 2 v Dowling (No 2) [2016] NSWSC 1910

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 v Dowling

Details

AGLC: Doe v Dowling [2019] NSWSC 1222
Case: [2019] NSWSC 1222
Decision Date: 20 September 2019

CaseChat Overview and Summary

The case of Doe v Dowling involved a defamation dispute where the defendant admitted to publishing defamatory material about the plaintiff. The plaintiff sought relief under the Defamation Act 2005 (Cth), alleging that the defendant's conduct in publishing the material was unreasonable, thereby failing the defence of qualified privilege. The defendant, in turn, pleaded the defence of qualified privilege, arguing that the circumstances justified the publication of the defamatory material. However, the court found that the defendant's failure to attempt to verify the information before publishing it was unreasonable, leading to the failure of the qualified privilege defence.

The court had to determine whether the defendant's conduct in publishing the defamatory material was reasonable under s 30(1)(c) of the Defamation Act 2005 (Cth). The court examined the circumstances surrounding the publication, including the defendant's failure to verify the information before posting it. Given that the defendant was likely to repost the defamatory material, the court considered it necessary to grant a non-publication order and a permanent injunction to prevent further dissemination of the defamatory content. The court also ordered the defendant to pay costs on an indemnity basis, reflecting the unreasonable conduct of the defendant in publishing the defamatory material.

The court concluded that the defendant's failure to verify the information before publication was unreasonable in the circumstances. The defence of qualified privilege was therefore unsuccessful. The court found that the defendant's conduct warranted the imposition of a non-publication order and a permanent injunction, in addition to the costs order. The court's decision underscored the importance of verifying information before publication, particularly in contexts where the defence of qualified privilege is invoked.

Orders