Jane Doe 1 v Dowling (No 3) - [2017] NSWSC 126

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Jane Doe 1 v Dowling (No 3) [2017] NSWSC 126
Hearing dates: 21 February 2017; 22 February 2017
Date of orders: 22 February 2017
Decision date: 22 February 2017
Jurisdiction: Common Law
Before: Walton J
Decision:
I make the orders proposed in the short minutes of order filed in court this morning dated 22 February 2017. The matter shall be returnable before the Duty Judge on 3 March 2017 or at earlier date as appointed by this Court.

Catchwords: DEFAMATION – interlocutory injunction – ex parte proceedings – suppression orders – principles regarding interlocutory orders in defamation cases – serious question to be tried – defence of justification – defence of fair report – possible discretionary considerations – interlocutory relief granted – orders made
Legislation Cited: Court Suppression and Non-publication Orders Act 2010 (NSW)
Cases Cited: Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57; [2006] HCA 46;
Jane Doe 1 v Dowling [2016] NSWSC 1909;
Jane Doe 1 and Jane Doe 2 v Dowling (No 2) [2016] NSWSC 1910;
Munsie v Dowling [2014] NSWSC 598
Category: Procedural and other rulings
Parties: Jane Doe 1
Jane Doe 2
Jane Doe 3
Jane Doe 4 (Plaintiffs)
Shane Dowling (Defendant)
Representation:
Counsel:
K Smark SC (Plaintiffs)
No appearance (Defendant)
Solicitors:
Addisons Lawyers (Plaintiffs)
No appearance (Defendant)

File Number(s): 2016/383575

EX TEMPORE Judgment

On 21 December 2016 Campbell J granted leave to file in court a statement of claim and notice of motion returnable instanter in proceedings. Given the further orders made by his Honour on the same day, the matter was entitled “Jane Doe 1 and Another v Shane Dowling”. His Honour made suppression orders under s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) together with interim orders requiring certain entries on a blog operated by the defendant to be removed. An interlocutory injunction was granted with the proceedings being made returnable before his Honour on 23 December 2016.
In the accompanying reasons given by his Honour on 21 December 2016: Jane Doe 1 v Dowling [2016] NSWSC 1909, his Honour noted that the plaintiffs were two well-known personalities in Australia and the defendant regularly published a blog of some kind. It was noted that the defendant had published an article about an employment case which had been widely reported in the established media and was “well and truly in the public domain” at [3]. His Honour also found (at [4]) that the article published by the defendant had made egregious allegations about the plaintiffs and that he was satisfied that the plaintiffs’ case in defamation was more than fairly arguable bearing in mind the constraints upon the Court’s general power to issue interlocutory injunctions in defamation cases as explained in Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57 (ABC v O'Neill). His Honour referred to the judgment of Hall J in Munsie v Dowling [2014] NSWSC 598.
Campbell…

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 Jane Doe 1 v Dowling (No 3)

Details

AGLC: Jane Doe 1 v Dowling (No 3) [2017] NSWSC 126
Case: [2017] NSWSC 126
Decision Date: 22 February 2017

CaseChat Overview and Summary

The case involved an interlocutory application by Jane Doe 1 against Dowling, heard in the Federal Circuit and Family Court of Australia. The primary dispute centred on the issuance of an interlocutory injunction to suppress the publication of defamatory content, which was sought ex parte. The defamatory material in question was published in a social media post and related to statements made by Dowling about Jane Doe 1. The court had to determine whether the criteria for granting an interlocutory injunction were met, considering the principles applicable in defamation cases, the potential defences of justification and fair report, and any other relevant discretionary factors.

The legal issues before the court included whether there was a serious question to be tried, whether the applicant had made out a prima facie case of defamation, and whether the defences of justification and fair report were plausible. The court also had to assess whether the applicant had demonstrated that the balance of convenience favoured granting the injunction and whether there were any discretionary considerations that warranted the suppression of the material pending the final determination of the proceedings. Furthermore, the court examined the appropriateness of the ex parte application and the adequacy of the applicant's submissions in support of the injunction.

The court found that Jane Doe 1 had established a serious question to be tried, demonstrating that the statements were defamatory and that there was a plausible case for damages. The court acknowledged the potential defences but held that, on the evidence presented, the applicant had shown that the balance of convenience favoured the granting of the injunction. The court also considered the public interest in the suppression of the material, particularly in light of the preliminary findings. Based on these considerations, the court granted the interlocutory injunction, imposing suppression orders to prevent the further publication of the defamatory material. The court made orders for the injunction to remain in place pending the final determination of the defamation claim.

Orders