Jane Doe 1 and Jane Doe 2 v Dowling

[2016] NSWSC 1909

Supreme Court

New South Wales

Medium Neutral Citation:	Jane Doe 1 and Jane Doe 2 v Dowling [2016] NSWSC 1909
Hearing dates:	21 December 2016
Date of orders:	21 December 2016
Decision date:	21 December 2016
Jurisdiction:	Common Law
Before:	Campbell J
Decision:	I make the orders contained in the short minutes of order signed by me and dated today. I direct counsel to bring in a re-engrossed copy. I direct that the orders may be entered forthwith. Under s 7 of the Court Suppression and Non-Publication Orders Act, again on the ground expressed in s 8(1)(e) of that Act, I order that the document marked "confidential RMK1" may not be accessed by any non-party to this litigation, except with the prior leave granted by order of a Judge of this Court.
Catchwords:	DEFAMATION – urgent interim injunction – ex parte - power must be exercised with exceptional caution - balance of convenience – relief granted
Legislation Cited:	Court Suppression and Non-Publication Orders Act 2010 (NSW) ss 7, 8
Cases Cited:	Australian Broadcasting Corporation v O'Neill [2006] 227 CLR 57; Munsie v Dowling [2014] NSWSC 598
Category:	Procedural and other rulings
Parties:	Jane Doe 1 Jane Doe 2 (Plaintiffs) Shane Dowling (Defendant)
Representation:	Counsel: A.T.S. Dawson SC (Plaintiffs) No appearance (Defendant) Solicitors: Richard Keegan, Addisons Lawyers (Plaintiffs)
File Number(s):	2016/383575

EX TEMPORE JUDGMENT - Revised

1. I will deal with this matter briefly. Mr Dawson of learned senior counsel, seeks urgent interim relief in a case of defamation. It is proposed to commence the action by statement of claim he seeks leave to file in court, upon the undertaking of his solicitor to pay the requisite fee. I grant that leave.

2. He also applies to file in court, returnable instanter, a notice of motion supported by affidavit seeking that urgent interim relief. I grant leave for the notice of motion to be filed in court and order that it may be returnable instanter.

3. The plaintiffs are two well-known personalities in Australia. The defendant regularly publishes a blog of some kind. Today he has published an article about an employment case which has been widely reported in the established media and is well and truly in the public domain.

4. In the fourth paragraph of that article he allows himself to make egregious and entirely gratuitous allegations about the plaintiffs. The comment, I say, is gratuitous as well as egregious because it seems to have nothing to do with the general run of his article about the other case.

5. I am satisfied that the plaintiffs' case in defamation is more than fairly arguable, but obviously I bear in mind the important constraints upon the court's general power to issue interlocutory injunctions in defamation cases, authoritatively explained by the High Court of Australia in Australian Broadcasting Corporation v O'Neill [2006] 227 CLR 57. The exceptional caution with which courts grant this relief pervades both the arguable case limb and the balance of convenience limb of the conditions a plaintiff must satisfy to obtain an interlocutory injunction.

6. I have been assisted by the judgment of Hall J in Munsie v Dowling [2014] NSWSC 598, where his Honour, in a careful analysis of O'Neill and other authorities, points out that the exceptional caution is hinged upon the pre-condition that there appeared to be available a plea of justification.

7. On the material which I have before me in the affidavit of the plaintiffs' solicitor, I can see no possible defence of justification being available at this time. However, given that I have not had the benefit of hearing the defendant take the opportunity of putting his side of the story, although I am persuaded that an interim injunction should be granted, it should only be for a short time at this stage. By that I mean the matter should come back before this Court in the very short term to allow the defendant, if he wishes, to argue that the interim injunction I propose to grant should be dissolved.

8. Courts ought to be very slow to grant interim relief of this kind in defamation cases, having regard to the great public interest in freedom of speech. At the same time, in a case which seems as palpable as this one, where there is a great risk that the usual remedy of damages may be inadequate because of the inability of the defendant to satisfy them, the exceptional caution restraint on power is satisfied.

9. I propose to grant the interim relief sought. In making this order, and in particular having regard to the balance of convenience, I bare firmly in mind that the matter complained of consists of only one three-line paragraph in an article that, when printed out, runs for about five pages and, as I have said, that matter has nothing to do with the main story that the article seeks to tell.

10. I will bring the matter back before me at 10 am on Friday. I also propose to make the orders sought that the plaintiffs be given leave to proceed by pseudonym and that pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) that the names are not to be published without leave on the ground expressed in s 8(1)(e) of that Act.

11. It seems to me that as I am persuaded it is appropriate to allow this interim relief, the utility would be entirely undermined if what appears to be an obvious defamation could be republished under the guise of fair report of proceedings in court.

12. I make the orders contained in the short minutes of order signed by me and dated today. I direct counsel to bring in a re-engrossed copy. I direct that the orders may be entered forthwith.

13. Under s 7 of the Court Suppression and Non-Publication Orders Act, again on the ground expressed in s 8(1)(e) of that Act, I order that the document marked "confidential RMK1" may not be accessed by any non-party to this litigation, except with the prior leave granted by order of a Judge of this Court.

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Decision last updated: 19 April 2018