Doe v Dowling

[2017] NSWSC 1793

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Doe v Dowling [2017] NSWSC 1793
Hearing dates:	10, 13 March 2017
Date of orders:	19 December 2017
Decision date:	19 December 2017
Jurisdiction:	Common Law
Before:	McCallum J
Decision:	Order 5 made by Walton J on 22 February 2017 continued until further order; non-publication orders made pursuant to s 7 of the Courts (Suppression and Non-Publication Orders) Act by Campbell J (order 4 made 21 December 2016) and Walton J (order 3 made 22 February 2017) confirmed
Catchwords:	DEFAMATION – interlocutory injunctions – where defamatory publication apparently indefensible – consideration of nature and quality of evidence required to show prospect of viable defence – defendant admittedly repeating unsubstantiated rumours from an unnamed source   NON-PUBLICATION ORDERS – where sought in aid of interlocutory injunctions to restrain apparently indefensible defamation – narrowness of orders sought – whether necessary in the public interest for the order to be made
Legislation Cited:	Courts (Suppression and Non-Publication Orders) Act 2010 (NSW), ss 7, 8(1)(e), 13 Defamation Act 2005 (NSW), ss 29, 30, 33 Sex Discrimination Act 1984 (Cth),s 92
Cases Cited:	Allan v Migration Institute of Australia Ltd [2012] NSWSC 965 Austin v Mirror Newspapers Ltd (1985) 3 NSWLR 354 Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57; [2006] HCA 46 Bissett v Deputy State Coroner [2011] NSWSC 1182; 83 NSWLR 144 Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44 Church of Scientology of California Inc v Reader’s Digest Services Pty Ltd [1980] 1 NSWLR 344 Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52; [2012] NSWCCA 125 Jane Doe 1 and Jane Doe 2 v Dowling [2016] NSWSC 1909 Jane Doe 1 and Jane Doe 2 v Dowling (No 2) [2016] NSWSC 1910 Jane Doe 1 v Dowling (No 3) [2017] NSWSC 126 Jane Doe 1 v Dowling (No 5) (Supreme Court (NSW), Fagan J, 10 February 2017, unrep) National Mutual Life Association of Australasia Ltd v GTV Corporation Pty Ltd [1989] VR 747 Rinehart v Welker (2011) 93 NSWLR 311; [2011] NSWCA 403
Category:	Principal judgment
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: K Smark (plaintiffs) Defendant self-represented   Solicitors: Addisons (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

1. HER HONOUR: These are proceedings for defamation arising out of the publication of material on a website operated by Mr Shane Dowling. The action was commenced by two plaintiffs by statement of claim filed in court on 21 December 2016. At the time the statement of claim was filed, the plaintiffs were granted leave to commence and continue the proceedings by the pseudonyms Jane Doe 1 and Jane Doe 2. The plaintiffs then made an ex parte application to Campbell J as vacation duty judge for an interim injunction restraining publication of the imputations specified in the statement of claim and of the matter complained of in any form which includes the names of the plaintiffs. Justice Campbell granted the application: see Jane Doe 1 and Jane Doe 2 v Dowling [2016] NSWSC 1909. His Honour also made a non-publication order pursuant to s 7 of the Courts (Suppression and Non-Publication Orders) Act 2010 (NSW) prohibiting publication of the names of the first and second plaintiffs on the ground stated in s 8(1)(e) of the Act.

2. The proceedings were made returnable inter partes on 23 December 2016 to give Mr Dowling an opportunity to be heard in opposition to the continuation of the orders. He did not appear. Being satisfied that the relevant documents had been duly served and that Mr Dowling was aware of the listing, and after hearing further from the plaintiffs, his Honour was persuaded that the injunction (order 6 made 21 December 2016) should continue: Jane Doe 1 and Jane Doe 2 v Dowling (No 2) [2016] NSWSC 1910 at [9].

3. The orders of 21 December 2016 also included an order requiring Mr Dowling to remove the names of the plaintiffs from the matter complained of (I will refer to that order as the take-down order). Mr Dowling had not complied with that order by the return date on 23 December 2016. Accordingly, Campbell J also made an order referring the proceedings to the Registrar for consideration as to whether to commence proceedings for contempt.

4. On 21 February 2017, following the publication of further material on Mr Dowling’s website, an amended statement of claim was filed joining two additional plaintiffs (under the pseudonyms Jane Doe 3 and Jane Doe 4). On 22 February 2017, Walton J granted an injunction and made a non-publication order in their favour in terms that mirrored the orders made by Campbell J in favour of the first and second plaintiffs: Jane Doe 1 v Dowling (No 3) [2017] NSWSC 126. [1] The orders made by Walton J relevantly included the following:

   1. The numbering of the various judgments in these proceedings is out of order. The judgment of Walton J, although named Jane Doe 1 v Dowling (No 3), was the eighth judgment in the proceedings; two judgments of Beech-Jones J and then three of Fagan J (numbered 5, 6 and 7) were published before the matter came before Walton J.

1. An order granting leave to file an amended statement of claim in court (order 1);

2. Order 3 as follows: “Pursuant to s 7 of the Courts (Suppression and Non-Publication Orders) Act 2010 (NSW), the names of the third and fourth plaintiffs are not to be published without the leave of the Court by reason of s 8(1)(e) of the Act in connection with these proceedings”;

3. Order 5 as follows: “the defendant be restrained, until 5pm on 3 March 2017, from publishing:

1. the imputations particularised in respect of the third and fourth plaintiff in paragraph 9 of the statement of claim filed herein;

2. the 19 February 2017 article in any form which includes the names of the third plaintiff and/or the fourth plaintiff;

3. the secondary article in any form which includes the names of the third plaintiff and/or the fourth plaintiff.

5. On 3 March 2017, order 5 made by Walton J was extended by N Adams J for a short period by consent to coincide with the hearing of an application by the plaintiffs to have the defence in respect of the claims by the first and second plaintiffs struck out. The orders were subsequently extended, again by consent, pending the resolution of the applications now before the Court.

6. This judgment determines the following applications:

1. an application by the third and fourth plaintiffs to have order 5 made by Walton J continued until further order. The plaintiffs accepted that, if the Court were not persuaded to continue that order, the injunction granted by Campbell J (order 6 made on 21 December 2016), although expressed to continue “until further order”, should also be revisited: T50.28;

2. an application by the defendant for review of the non-publication and pseudonym orders given in favour of all plaintiffs.

7. As already noted, the plaintiffs had also foreshadowed an application to have the most recently served defence struck out. However, Mr Dowling will now obviously have to be given an opportunity to file a defence to the amended statement of claim and wishes to revisit the existing defence in that context. In the circumstances, there is no utility in determining that application.

Circumstances in which the applications are brought

8. The matter complained of by the first and second plaintiffs (“the first article”) concerned allegations of sexual impropriety said to have been made in a media release by Ms Amber Harrison, a former employee of Seven West Media. The article attributed certain conduct to “at least four other employees” based on “reports” by unnamed persons. The author claimed to have been “reliably informed” that two of the employees were the first plaintiff and the second plaintiff (whom he named in the article).

9. In his second judgment, Campbell J noted at [2]-[5] that, in accordance with usual practice, the matter had been brought back to give the plaintiffs the opportunity to persuade him that the injunction should be continued and to give the defendant the opportunity to oppose that continuation. The plaintiffs accordingly submit that, although the initial order was made "until further order", his Honour treated the matter as one in which the onus of persuading the Court to extend the order was on the plaintiffs. The plaintiffs further noted that his Honour was satisfied that the defendant had been duly served and had had the opportunity to come to Court. On that basis, the plaintiffs submitted that, although Mr Dowling did not attend Court on 23 December 2016, the application heard that day was not “ex parte” in the true sense. The plaintiffs rely on the fact that his Honour expressly considered the principles stated in Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57; [2006] HCA 46 and was persuaded to continue the injunctions notwithstanding the strictures of those principles.

10. As to the risk of future publication, Campbell J said at [13]-[14]:

It is obvious from exhibit B that the defendant has no intention whatsoever of complying with the Court's orders. Indeed it is also obvious from exhibit B that he is deliberately defying the orders of the Court.

As I was moved to remark in Munsie at [38], "Mr Dowling seems to wear his disregard of this Court's orders as some kind of badge of courage." Now, as then in Munsie, I have no confidence that he will comply with the Court orders that were pronounced on Wednesday."

11. The reference to exhibit B is a reference to a further article published by Mr Dowling late on the evening of 21 December 2016 (“the second article”). That article established at least two matters. First, as Campbell J held, it established that Mr Dowling had been duly served with the relevant documents (he included them in the publication). Secondly, as the article expressly referred to the take-down order but included material that still named the first and second plaintiffs, it established a basis for Campbell J’s apprehension that the orders of 21 December would not be complied with.

12. His Honour’s apprehensions were well-founded. Over the following weeks, Mr Dowling published three further articles naming the first and second plaintiffs in the context of the original matter complained of (“the third, fourth and fifth articles”). He also published all five articles on Facebook and Twitter. On 15 March 2017 he was found guilty of contempt in respect of those acts: Doe v Dowling [2017] NSWSC 202 (Harrison J). On 10 August 2017, Harrison J sentenced Mr Dowling to a fixed term of imprisonment of four months commencing that day and expiring on 9 December 2017.

13. Meanwhile, the third and fourth plaintiffs were joined in the proceedings. They were named in articles dated 21 January 2017 and 19 February 2017 published on the defendant’s website. A further application was brought before Walton J ex parte on 21 February 2017. On 22 February 2017, his Honour made orders in respect of the third and fourth plaintiffs in substantially the same terms as those made by Campbell J in respect of the first and second plaintiffs. The matters complained of in the amended statement of claim make allegations similar to those made in the first article.

14. Mr Dowling raised an issue at the hearing before me as to whether the third and fourth plaintiffs were ever formally joined. The mechanism by which that occurred was that, on 21 February 2017, Walton J granted leave to file the amended statement of claim in Court. The effect of the amendment was to join the third and fourth plaintiffs as plaintiffs by the pseudonyms Jane Doe 3 and Jane Doe 4 and to plead their cause of action. The filing of that pleading accordingly effected their joinder.

15. The plaintiffs drew my attention to the fact that there are separate proceedings in the Equity Division in which non-publication orders have also been made in respect of the names of three of the four plaintiffs. However, Mr Dowling is not a party to those proceedings and was not present when those orders were made; he first became aware of them during the hearing before me. I do not think the existence of those orders is relevant to the plaintiffs’ application in these proceedings.

Application to have order 5 made by Walton J continued until further order

16. The plaintiffs provided written submissions referring to the relevant principles. As noted in those submissions, the principles relating to the granting of interlocutory injunctions in proceedings for defamation are well-settled. It is uncontroversial that the court must exercise great caution in the grant of such injunctions, giving due weight to the public interest in the protection of freedom of speech.

17. A threshold issue is whether the plaintiff has a prima facie cause of action. The matter complained of by the third and fourth plaintiffs in the present case is plainly capable of being found to be defamatory of them in the sense specified in the amended statement of claim.

18. It is then necessary to consider whether, on the evidence or having regard to the circumstances of publication, there is any real ground for supposing that the defendant might succeed. If it appears the publication may be defensible on the ground of privilege or truth or some other defence, or that only nominal damages might be awarded, an injunction should not be granted, because of the public interest in free speech: Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57, per Gleeson CJ and Crennan J at [18]-[19].

19. An important consideration in the present case is the question of the nature and quality of evidence required concerning the issue whether there is likely to be a real defence. The plaintiffs relied on the decision of Hunt J in Church of Scientology of California Inc v Reader’s Digest Services Pty Ltd [1980] 1 NSWLR 344 where his Honour observed at 354C-D that, while a defendant is not required on such an application to lead the evidence upon which he will rely to establish the defences asserted, in some cases it will be advisable for a defendant to produce some evidence to permit the Court to say that those defences have some prospect of success. His Honour concluded by saying:

Even then, the evidence need not be such that the defence is thereby proved; all that is needed is sufficient to suggest the defence in a manner and with circumstances which show that there is a case for consideration by a jury or the trial judge, as the case may be.

20. Justice Hunt’s remarks in that case were recently applied by Hall J in Munsie v Dowling [2014] NSWSC 598 at [56]-[57].

21. In some instances, the circumstances of a publication, without more, will point to the prospect of a good defence, such as a communication made on what is likely to be recognised as an occasion of qualified privilege. In cases where, as here, no obvious defence emerges from the circumstances of publication, the proper approach is to consider any defences pointed to by the defendant and the apparent prospects of those defences on the material before the Court.

22. The plaintiffs relied in that context on the observations of Ormiston J in National Mutual Life Association of Australasia Ltd v GTV Corporation Pty Ltd [1989] VR 747, at 754:

In the context of the present case, therefore, I do not accept that it is necessarily sufficient for a defendant to assert that it proposes to plead justification and prove the truth of its allegations at the trial. The nature of the material which will be sufficient to deny a plaintiff interlocutory relief must vary according to the sources of the defendant's information and according to the form of discussion which the publication of the defamatory material will take and the extent to which it may be seen to be genuine, serious and in the public interest.

23. The plaintiffs submitted on that basis that a bare assertion by a defendant that he proposes to defend a matter is not sufficient to prevent an injunction from issuing. It is perhaps undesirable to venture a principle of such broad application. Each case will of course turn on its own facts.

24. The plaintiffs acknowledged that, where it is clear there is a triable defence, that will ordinarily be fatal to an application for an interlocutory injunction: cf Allan v Migration Institute of Australia Ltd [2012] NSWSC 965 (where the circumstances of publication revealed a reasonable prospect of a successful defence of qualified privilege). The plaintiffs submitted however that if no defence is apparent an injunction may be granted. They cited a number of examples of cases (some involving the present defendant) in which interlocutory injunctions for defamation have been granted despite the caution which the Courts must apply: Hemmes v Seven Network Ltd [2000] NSWSC 246 (Hulme J); Munsie v Dowling [2014] NSWSC 598 (Hall J); Goldsmith v Ghosh [2015] NSWSC 631 (Hamill J); Munsie v Dowling [2015] NSWSC 808 (Campbell J); Sydney Security Services Pty Ltd v iGuard Australia Pty Ltd [2016] NSWSC 1808 (McCallum J).

25. The defendant has not yet filed defences to the third and fourth plaintiffs’ claims. He filed a defence to the claims brought by the first and second plaintiffs, but that was struck out by Fagan J on 10 February 2017 for the reasons stated by his Honour in Jane Doe 1 v Dowling (No 5) (Supreme Court (NSW), Fagan J, 10 February 2017, unrep). As noted above, a second defence produced by Mr Dowling was to be the subject of a further strike-out application, but the filing of the amended statement of claim intervened.

26. The argument before me proceeded principally by reference to the defences referred to in the defence struck out by Fagan J, namely, truth, absolute privilege, qualified privilege and triviality. For completeness, Mr Smark SC, who appears for the plaintiffs, also briefly addressed the prospect of defences of honest opinion and fair protected report. Each of those defences is addressed in turn below. It should be noted that nothing said in this judgment determines the fate of any future defence. The only question at this stage of the proceedings is whether there appears to be a viable defence; if there is, the plaintiffs’ application must fail.

Truth

27. I am satisfied that there is little prospect that the defendant will be in a position to prove the truth of the imputations at trial. The solicitor for the plaintiffs swore an affidavit on information and belief that the imputations are untrue. The prospect of proving otherwise arises from Mr Dowling’s reliance upon a statement by Ms Harrison in which she repeated rumours as to the truth or falsity of which she evidently had no personal knowledge.

28. During the hearing before me, I had the following exchange with Mr Dowling:

HER HONOUR: Are you going to plead truth?

DEFENDANT: Yes.

HER HONOUR: What is your basis for thinking you know anything one way or the other about the truth of those allegations?

DEFENDANT: Because they've instituted these proceedings. They want a suppression order, which if you look at the…

HER HONOUR: Have you ever spoken to any one of these women?

DEFENDANT: No.

HER HONOUR: How could you possibly know anything about the truth of the allegations you make in the article?

DEFENDANT: Your Honour, because they've instituted privilege [scil: frivolous] and vexatious proceedings.

HER HONOUR: And that proves they've had sex with someone?

DEFENDANT: No, but I'm going to argue and I'm going to try and get some evidence, your Honour.

HER HONOUR: But you have never spoken to any of the women?

DEFENDANT: No.

HER HONOUR: Have you ever spoken to Tim Worner?

DEFENDANT: No.

HER HONOUR: Have you ever worked at Channel Seven?

DEFENDANT: No.

HER HONOUR: Have you spoken to Amber Harrison?

DEFENDANT: No.

HER HONOUR: How could you possibly think you know anything about the truth of these allegations?

DEFENDANT: Because she's made serious allegations. They haven't even challenged the allegations against Tim Worner. If you read the allegations against Tim Worner, you think it's bad.

HER HONOUR: How does that tell you anything about whether these women had sex with Tim Worner?

DEFENDANT: Because I believe her document.

HER HONOUR: So it is based on you adopting what Amber Harrison said?

DEFENDANT: Yes.

HER HONOUR: If you look at what she has said, she hasn't claimed to have direct knowledge of it. She has just reported things other people have said. How do you know whether to believe those people?

DEFENDANT: Amber Harrison has made a lot of allegations against Tim Worner and they have not challenged it, and the allegations against him are about ten thousand times worse.

HER HONOUR: We are not talking about Tim Worner. We are talking about whether these four women had sex with Tim Worner, which is what you have accused them of, and you have never spoken to a single witness.

DEFENDANT: I haven't accused them of it at all. All I did was repeat Amber Harrison's allegation.

HER HONOUR: That's not a defence in defamation. Just to say I'm just repeating something someone else said, that's not a defence.

DEFENDANT: Your Honour, I put down a number of defences and I'm happy to stick by them.

29. It is clear from that exchange that this is a case falling squarely within the scope of the remarks of Ormiston J in the decision referred to above. In the circumstances of this case, it is not sufficient for Mr Dowling to assert that he proposes to plead truth and to seek to prove the truth of the allegations at trial. He has no rational basis for thinking that will be achievable. His information is unsubstantiated rumour from unknown sources.

30. Mr Dowling came close to accepting that himself. During his submissions, he said:

They need to go to the source and they won't do that, and if you want to ask me, before I wrote that article, I had no opinion about whether they had a sexual relationship with Tim Worner. My main evidence is that they're suing me but they won't sue her, and my viewpoint is if they won't sue her it's probably because she's got a lot of evidence. That's my main perception of whether they're guilty or not. Whether they're guilty or not's in the truth defence.

31. Other exchanges with Mr Dowling confirmed my impression that, although he is clearly intelligent and passionate about freedom of speech, he is prone to drawing extravagant conclusions on the strength of scant evidence, applying little intellectual discipline or forensic rigour. For example, in respect of the resignation of a director of Seven West following a “so called independent investigation” into the Amber Harrison dispute, he said:

…she resigned because she thought it was a dodgy. Well, she hasn't said, but I assume, and everyone's surmising, that she thought it was a dodgy investigation, it was just a cover-up.

32. On the strength of the bare fact that a director resigned after an investigation, Mr Dowling was prepared to attribute her with the opinion that the investigation was dodgy and was “just a cover-up”. Yet when the plaintiffs invited the Court to draw inferences, he was quick to accuse them of speculating (T80.9). It is fair to observe that there was a measure of speculation in the relevant submission by the plaintiffs (considered below). My point here is to note the mercurial quality of Mr Dowling’s rhetoric. His preparedness to adopt an intellectually rigorous approach varies according to his immediate objective.

33. On the evidence before me, I am not persuaded that Mr Dowling has any proper basis for asserting that the imputations concerning the third and fourth plaintiffs are substantially true. The matter complained of does no more than to repeat rumours. As noted by Mr Smark in his submissions, it is no defence for a defendant to a defamation action to say he was merely repeating a rumour. A defence of justification in respect of the repetition of a rumour requires proof of its truth.

Absolute privilege

34. Mr Dowling contends that the defence of absolute privilege would be available to him on the basis that the defamatory document published on his website has been deployed elsewhere in circumstances which would attract absolute privilege. In particular, he relies on the fact that the document was deployed in proceedings in the Australian Human Rights Commission. Separately, and with some ingenuity, he relies on the fact that it was pleaded by him in his original defence. The submission misconceives the defence. Even if either of those occasions was one of absolute privilege, it would not follow that the repetition of the contents of the document on Mr Dowling’s website enjoyed the same protection (as I endeavoured to explain to Mr Dowling at T29-30).

Qualified privilege

35. Mr Dowling submits that he has a viable defence under s 30 of the Defamation Act 2005 (NSW). That section provides:

30 Defence of qualified privilege for provision of certain information

(1) There is a defence of qualified privilege for the publication of defamatory matter to a person (the "recipient") if the defendant proves that:

(a) the recipient has an interest or apparent interest in having information on some subject, and

(b) the matter is published to the recipient in the course of giving to the recipient information on that subject, and

(c) the conduct of the defendant in publishing that matter is reasonable in the circumstances.

36. As to s 30(1)(a), Mr Dowling said “I have email followers on my web site. They subscribe to my web site. They want the information that I write about.” As to s 30(1)(b), he said “that's why I publish it, I'm giving the people information on my web site” (T45). The fact that Mr Dowling publishes information to people on subjects they want to read about could not satisfy those elements of the defence. It is well established that having an “interest” in having information means more than merely being interested in the information. The interest must be founded in some legitimate concern, not mere prurience.

37. As to s 30(1)(c), if I have understood the submission, Mr Dowling’s position is that he is “covered” (presumably by s 30) because “it's been raised in the Australian Human Rights Commission” (a reference to Ms Harrison’s claim). Mr Dowling said: “I believe I have the right to publish it. Whether I'm right or wrong is neither here nor there in relation to (c), I believe. Was my conduct reasonable in the circumstances? Yes.”

38. A difficulty with that submission is that, as Mr Dowling frankly acknowledges (in the exchange set out above), he has no direct or reliable information as to the truth or otherwise of the rumours repeated in his articles and did not speak to any of the plaintiffs prior to publication to obtain their version of events. That is fatal to the defence: cf Austin v Mirror Newspapers Ltd (1985) 3 NSWLR 354 at 364C.

39. For those reasons, I am not persuaded that there is any real prospect of a viable defence of qualified privilege.

Triviality

40. As to the prospect of a defence of triviality, Mr Dowling said: “these type of rumours fly around in the entertainment industry all the time”. He sought to establish that worse things have been said about the plaintiffs. That may be so, but it hardly establishes a viable defence. The defence of triviality under s 33 of the Defamation Act focusses on whether “the circumstances of publication were such that the plaintiff was unlikely to sustain any harm”. To establish that the plaintiff had suffered more serious harm by other conduct would not establish that he or she was unlikely to sustain any harm by reason of the publication of the matter complained of.

41. I do not share Mr Dowling’s view as to the triviality of the imputations. Ironically, one of Mr Dowling’s criticisms of Channel Seven management is their poor treatment of Ms Harrison, yet Mr Dowling’s treatment of the plaintiffs scarcely shows any more tender concern. I am not persuaded that there would be a viable defence under s 33 of the Defamation Act. 

Honest opinion

42. The prospect of there being a “real defence” of honest opinion may confidently be put to one side. As set out at [30] above, Mr Dowling expressly stated during argument that, when the matter complained of was published, he did not hold the opinion expressed in the imputations.

Fair protected report

43. The plaintiffs noted that Mr Dowling’s defence did not raise any defence of fair report of proceedings of public concern under s 29 of the Defamation Act but nonetheless addressed the issue whether a "real defence” could be raised on that basis. They submitted that there would be an insuperable problem in respect of any such defence, namely, that there is no evidence that the document in question was ever deployed in proceedings in public of a relevant body. On the contrary, so far as the evidence reveals, the document is not merely not public but is subject to a statutory obligation of confidence under s 92 of the Sex Discrimination Act 1984 (Cth).

Balance of convenience

44. As to the balance of convenience, the plaintiffs noted that the scope of the injunctions is very narrow. They do not preclude Mr Dowling from discussing the issue which is evidently so important to him, namely, alleged fraud in the governance of Channel Seven. All that is prohibited is identification of the plaintiffs. The plaintiffs submitted that removing their names from the articles would not cause any tangible harm to Mr Dowling or his cause. It would remain open to him to publish the substance of his articles with little change.

45. Secondly, it was submitted that the allegations are inherently offensive to the plaintiffs. In the absence of any apparent defence, the continued publication of the imputations is likely to cause them harm, especially if extended to mainstream publishers.

46. Thirdly, the plaintiffs submitted that there is little indication that Mr Dowling has the financial capacity to meet a substantial award for damages in favour of any of the plaintiffs. In that circumstance, the balance of convenience favours containing the damage caused by his publications at this stage.

47. On the first day of the hearing before me, Mr Dowling foreshadowed adducing evidence that the continuation of the injunction would be futile because the allegations made in his articles are "all over the internet". The evidence, such as it was, fell well short of establishing that. He produced no evidence that the allegations have been published in the mass media in any matter that includes the plaintiffs’ names. I accept that, in that circumstance, the continuation of the injunctions would have real efficacy.

48. Mr Dowling’s evidence did establish that the allegations have been published on a non-mainstream website in material in which the plaintiffs are named. Mr Smark submitted, given the timing of the latter article, that I should infer it was drawn from the defendant’s own publications. It was submitted on that basis that the plaintiffs should not be denied relief on the strength of Mr Dowling’s own wrongdoing. The submission invited speculation. I do not think there is any basis on which I can conclude one way or the other the source of the material identified.

49. The significant point, however, is that there is no basis to conclude that material was read by a significant audience; indeed, it seems unlikely that it was. As to mainstream, respected media outlets, the evidence was all one way; they have declined to name the plaintiffs in the context of the allegations.

50. A curious aspect of Mr Dowling’s submissions on this application is the tenacity with which he railed against what is, in truth, a relatively small intrusion on his freedom to report on the subjects that concern him. All he is precluded from doing is identifying the plaintiffs. In circumstances where, on his own admission, he has no evidence as to the truth of the imputations and does not hold the opinion that they are true, one cannot help wondering what end of free speech would be served by naming them. As submitted by Mr Smark, it is a freedom that attaches to truth, not untruth.

51. For those reasons, I have concluded that the injunction granted by Walton J should be continued until further order.

Pseudonym and Non-Publication Orders

52. As already noted, there have been several orders made in these proceedings under the Courts (Suppression and Non-Publication Orders) Act. They include both pseudonym orders and non-publication orders. Mr Dowling seeks to have those orders reviewed under s 13 of the Act, which relevantly provides:

(1) The court that made a suppression order or non-publication order may review the order on the court's own initiative or on the application of a person who is entitled to apply for the review.

(2) Each of the following persons is entitled to apply for and to appear and be heard by the court on the review of an order under this section:

…

(b) a party to the proceedings in connection with which the order was made,

….

(3) On a review, the court may confirm, vary or revoke the order and may in addition make any other order that the court may make under this Act.

53. Review is sought of both the orders made by Campbell J in respect of the first and second plaintiffs and the orders made by Walton J in respect of the third and fourth plaintiffs.

54. Mr Dowling has standing to apply for the review as a party to the proceedings: s 13(2)(b). However, the plaintiffs submitted that a question nonetheless arises as to whether the Court should embark on such reviews, invoking the principle that, at least where there has been a contested hearing, an interlocutory order will not ordinarily be revisited unless there has been a material change of circumstances since it was made or there has been new material found which could not reasonably have been adduced at that time: Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44, per McLelland J at 46.

55. The plaintiffs relied on the fact that the orders made by Campbell J in respect of the first and second plaintiffs, although initially made in the absence of the defendant, were confirmed at a further hearing of which the defendant had proper notice. In those circumstances, it was submitted that the Court should first consider whether the defendant can point to any material change of circumstances, or to any evidence which he would not have been able to bring forward when the orders were confirmed on 23 December 2016, before proceeding to review those orders. Similarly, in respect of the application concerning the orders made in favour of the third and fourth plaintiffs by Walton J, it was noted that the defendant was informed of the hearing before his Honour but did not appear.

56. I am not confident that the principle asserted should apply in the case of orders under the Courts (Suppression and Non-Publication Orders) Act. Since the concern of the Act is the public interest, it might be a wrong approach to impose an onus of the kind suggested on an applicant for review.

57. In any event, it is not necessary to determine that issue. I took the view that, as the application before Campbell J was made and determined within a short time frame against an unrepresented litigant, I should review the non-publication order made by his Honour, as sought by Mr Dowling. As the order of Walton J effectively mirrored that made by Campbell J, I took the view that it was appropriate to review it as well.

58. In each case, the orders were made on the ground stated in s 8(1)(e) of the Act. Section 8 provides:

8 Grounds for making an order

(1) A court may make a suppression order or non-publication order on one or more of the following grounds:

(a) the order is necessary to prevent prejudice to the proper administration of justice,

(b) the order is necessary to prevent prejudice to the interests of the Commonwealth or a State or Territory in relation to national or international security,

(c) the order is necessary to protect the safety of any person,

(d) the order is necessary to avoid causing undue distress or embarrassment to a party to or witness in criminal proceedings involving an offence of a sexual nature (including an act of indecency),

(e) it is otherwise necessary in the public interest for the order to be made and that public interest significantly outweighs the public interest in open justice.

59. Mr Dowling noted that the principle of open justice is a fundamental aspect of our system of justice and that decisions considering the Courts (Suppression and Non-Publication Orders) Act have confirmed the continuing importance of that principle. He relied on the decision of the Court of Appeal in Rinehart v Welker (2011) 93 NSWLR 311; [2011] NSWCA 403 where the Court considered the meaning of the word “necessary” in s 8(1)(e), saying at [27] (Bathurst CJ, McColl JA):

The operative condition for making a suppression order under s 8 of the CSPO Act is that it be "necessary" to do so, which "... is a strong word [which, in] collocation [with] necessity to prevent prejudice to the administration of justice ...'suggests Parliament was not dealing with trivialities'": Hogan v Australian Crime Commission [2010] HCA 21; (2010) 240 CLR 651 (at [30]). The observations in Hogan v Australian Crime Commission were made in relation to a legislative scheme which, while it required the jurisdiction of the Court to be exercised in open court (s 17, Federal Court of Australia Act ) did not contain a provision in like terms to s 6 of the CSPO Act. That provision, in our view, reinforces the legislative intention that CSPO Act orders should only be made in exceptional circumstances, a position which prevailed at common law: John Fairfax Publications Pty Ltd v District Court of NSW (at [21]).

60. Mr Dowling submitted that the plaintiffs in the present case had not established “exceptional circumstances”. That expression, of course, is not a statement of a rule in itself; it is a description of the manner in which the statute should be approached.

61. Mr Smark submitted that an important starting point is to consider the terms of the orders under review. The orders prevent only the publication of the names of the plaintiffs. As in the case of the injunctions against Mr Dowling, the orders under the Act are narrowly drawn. They do not prevent Mr Dowling from making publications referring to the proceedings against him, or expressing his opinions about those proceedings, nor from referring to the fact of the orders themselves (or other orders of the Court). They do not prevent him from disseminating his strong views about Channel Seven, so long as he does not publish the names of the plaintiffs. Mr Smark further noted that the form of the order is a non-publication order rather than a suppression order, which is the narrower form of order under the Act.

62. The remarks from Welker set out above must be read in that context. The order under appeal in that case was a suppression order (not merely a non-publication order) and was expressed in the widest terms: it prohibited “disclosure by publication or otherwise of information as to any relief claimed in the proceedings or any pleading, evidence or argument filed read or given in the proceedings”. The intrusion of such an order on the principle of open justice is significantly greater than in the present case.

63. It may be accepted that, in accordance with s 6 of the Act, the Court must have regard to the primary objective of the administration of justice to safeguard the public interest in open justice. Mr Dowling’s submissions on that issue appeared at times to suggest that the public was being excluded from these proceedings or that he is precluded from reporting on them. That is not the case. All that has been kept from the public eye is the identity of four women against whom Mr Dowling seeks to repeat scurrilous, unsubstantiated rumours. The identity of the plaintiffs lends nothing to the issues Mr Dowling seeks to ventilate in his articles.

60. The orders in the present case were made on the ground stated in s 8(1)(e) of the Act, that "it is otherwise necessary in the public interest for the order to be made and that public interest significantly outweighs the public interest in open justice". Mr Smark submitted that their Honours could equally have relied on s 8(1)(a), that "the order is necessary to prevent prejudice to the proper administration of justice", but I do not think it is necessary to consider that ground.

61. As noted by the plaintiffs, the notion of necessity has been considered in various statutory contexts. It can have shades of meaning: Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52; [2012] NSWCCA 125 at [45] per Basten JA. It does not mean that, without the order in question, the proceedings will not be able to continue: Ibrahim at [8]-[9] per Bathurst CJ (citing Mahoney JA in John Fairfax Group Pty Ltd (Receivers and Managers Appointed) v Local Court of New South Wales (1991) 26 NSWLR 131).

62. It is necessary to consider the nature of "the public interest in open justice" referred to in s 8(1)(e). The plaintiffs relied on the following remarks of R S Hulme J in Bissett v Deputy State Coroner [2011] NSWSC 1182; 83 NSWLR 144 at [30]-[31]:

The expression "public interest" has a number of connotations. On the one hand, there is the public interest, that is benefit, in court proceedings being conducted in the open so that decisions can be seen to be rational, the result of evidence and reasoning and the results a demonstration of justice. A further advantage is that those involved in the proceedings know that their conduct is liable to public scrutiny. On the other, there is public interest in the sense of the public being interested or curious about a person, evidence or topic who or which is a subject being dealt with in proceedings. Of course, commonly the public interest in both senses will be served in the one report.

Rarely in applications of the nature of that with which I am concerned is attention given to the difference yet I venture to suggest that public interest of the first type I have mentioned is by far the most important. Public interest of the second type is not uncommonly the product of the media itself which chooses what court proceedings and what aspect of any court proceedings will be brought to the public's attention and in fact by ignoring the vast bulk of court proceedings - I venture to suggest well over 99% - contributes to the result that the public hear little of what transpires in courts. Claims by the media that the public interest demands that non-publication orders should not be made should be considered in light of the fact that the media itself elects not to publish nearly everything that occurs and the selection of what is published is commonly not the most important.

67. The plaintiffs submitted that, in the present case, the principal reason the non-publication orders are necessary is that, without them, the conduct of the proceedings is likely to be the subject of reporting in the mass media including the repetition of the allegations against the plaintiffs in connection with their names. Such reports (if fair) would be defensible no matter how indefensible or scandalous the underlying rumours may be. On that basis, the plaintiffs submitted that, without the protection afforded by the non-publication orders, the defendant's indefensible allegations against the plaintiffs are likely to be published on a widespread basis, thereby undermining the Court's jurisdiction to prevent such harm.

68. Mr Smark submitted that, in the circumstances of the present case, it is no answer (or no complete answer) to point to the availability of damages or injunctions at final hearing because, by that time, substantial avoidable harm will have been done to the plaintiffs’ reputations and they will have suffered significantly in the process. On that basis, it was submitted that the present case is in the category of cases where non-publication orders (or like relief) are necessary to prevent the very purpose of the proceedings being undermined or rendered futile, such as proceedings where a confidence is sought to be protected and where, absent special orders, the reporting of the proceedings would destroy the confidentiality in question.

69. I am satisfied that, as submitted by the plaintiffs, the non-publication orders in the present case are needed because, without them, the defendant's apparently indefensible allegations will gain currency by the very process invoked for the purpose of preventing that from occurring. There is a very real public interest in upholding the efficacy of the processes of the Court. In the circumstances of this case, where a defendant irrationally maintains a right to publish an indefensible defamation, it is appropriate to allow the plaintiffs to continue the proceedings under pseudonyms. Without the protection of such orders, the whole object of the cause of action they invoke would be defeated by the fact of their invoking it. To allow that to occur would be inimical to the public interest. The public interest in enabling the plaintiffs to seek effective relief significantly outweighs the public interest in knowing their names.

70. For those reasons, I have concluded that the orders should be confirmed.

71. I make the following orders:

1. order 5 made by Walton J on 22 February 2017 is continued until further order;

2. the non-publication orders made in these proceedings pursuant to s 7 of the Courts (Suppression and Non-Publication Orders) Act by Campbell J (order 4 made 21 December 2016) and Walton J (order 3 made 22 February 2017) are confirmed.

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Endnote

Amendments

15 January 2018 - Associate's certification stamp removed.

Decision last updated: 15 January 2018