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

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.
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.
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.
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.
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…

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.

Keep reading for free

Create a free CaseChat account to read Jane Doe 1 and Jane Doe 2 v Dowling and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2016] NSWSC 1909
Decision Date: 21 December 2016

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, the plaintiffs, Jane Doe 1 and Jane Doe 2, sought an urgent interim injunction against the defendant, Dowling, over allegations of defamation. The plaintiffs claimed that Dowling had made defamatory statements about them, causing them significant harm and distress. They sought the injunction on an ex parte basis, meaning that Dowling was not present in court when the application was made.

The court was required to determine whether the power to grant an interim injunction ex parte should be exercised in this case, considering the balance of convenience and the need for exceptional caution. The court needed to assess whether the plaintiffs had demonstrated a strong likelihood of success on the merits, and whether granting the injunction would cause more harm to the defendant than withholding it would cause to the plaintiffs.

The court recognised the exceptional circumstances of the case, noting the urgency and the potential for irreparable harm to the plaintiffs if the injunction was not granted. The court found that the plaintiffs had made out a strong case for the injunction, given the nature of the defamatory statements and their potential impact. The balance of convenience was found to favour the plaintiffs, as the harm they would suffer without the injunction outweighed any potential harm to the defendant. The court exercised its power with the necessary caution and granted the interim injunction, recognising the importance of protecting the plaintiffs' reputations and mitigating further harm.

Orders