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Doe v Dowling

Doe v Dowling

Case [2017] NSWSC 1793 19 December 2017

Defamation

Interlocutory Orders

Abuse of Process

Admissibility of Evidence

Defamation

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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

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…

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 [2017] NSWSC 1793
Case: [2017] NSWSC 1793
Decision Date: 19 December 2017

CaseChat Overview and Summary

The applicant, Doe, sought an interlocutory injunction to restrain the defendant, Dowling, from publishing defamatory material. The dispute arose from comments made by Dowling on social media about Doe, which were based on unsubstantiated rumours from an unknown source. The Federal Court was tasked with determining whether an injunction should be granted and, if so, whether non-publication orders should also be made.

The court needed to assess whether the defamatory publication was apparently indefensible and, if so, what quality of evidence was required to show a prospect of a viable defence. The court also had to consider whether non-publication orders should be made in aid of the interlocutory injunction to restrain the defamation, and whether such orders were necessary in the public interest.

The court held that the defamatory publication was apparently indefensible, as it was based on unsubstantiated rumours from an unnamed source. The court noted that the quality of evidence required to show a prospect of a viable defence needed to be high, given the defamatory nature of the publication. The court also found that the non-publication orders were necessary in the public interest, given the narrowness of the orders sought and the importance of protecting the reputation of the applicant. The court granted the interlocutory injunction and the non-publication orders.

The court ordered that Dowling be restrained from publishing the defamatory material and that any existing publication be removed. The court also ordered that any further publication be subject to non-publication orders.

Orders