Munsie v Dowling - [2014] NSWSC 1508

Supreme Court

New South Wales

Medium Neutral Citation: Munsie v Dowling [2014] NSWSC 1508
Hearing dates: 4, 11 and 13 June 2014
Decision date: 30 October 2014
Jurisdiction: Common Law
Before: Adams J
Decision:
Reasons

Cases Cited: Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57
Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618
Church of Scientology of California Inc. v Reader's Digest Services Pty Ltd (1980) 1 NSWLR 344
Jakudo Pty Ltd v South Australian Telecasters Ltd (1997) 69 SASR 440
Munsie v Dowling [2014] NSWSC 458
Munsie v Dowling [2014] NSWSC 598
Y & Z v W [2007] NSWCA 329; (2007) 70 NSWLR 377
Texts Cited: P Young, C Croft & M L Smith, On Equity, (Thomson Reuters Lawbook Co, 2009)
Category: Interlocutory applications
Parties: Justine Munsie (First plaintiff)
Kerry Stokes (Second plaintiff)
Shane Dowling (Defendant)
Representation: Counsel:
A T S Dawson (Plaintiffs)
Solicitors:
Addisons Lawyers (Plaintiffs)
Self-represented (Defendant)

File Number(s): 2014/114469

Judgment

Introduction

The plaintiffs commenced an action for defamation against the defendant on 14 April 2014 in respect of a number of defamatory publications. On 4 June 2014 the plaintiffs, foreshadowing an application for leave to amend their statement of claim to add further imputations published by the defendant, sought orders in the Duty List against the defendant in relation to the additional publications. Orders were made as set out below for reasons which, I said, would be published in due course. These are those reasons.

Background

On 3 June 2014 at about 2pm the defendant was displaying a sign in the reception area of Addisons, the firm retained by the plaintiffs in the defamation proceedings, located at Level 12 in a city building. He was seen by Mr Keegan, the solicitor having carriage of the matter, who had been earlier informed by a member of the Seven Network's security team that a man matching the defendant's description had displayed a sign at two other Sydney premises, in Martin Place and Jones Bay, belonging to the Seven Network, moving away from those areas when requested to do so. A film clip was posted on the Youtube website on 3 June 2014, referring to Mr Stokes and McCallum and Harrison JJ. That clip makes scandalous allegations about Mr Stokes and Ms Munsie as well as the judges. At the beginning of the clip is depicted a large cardboard sign placed outside Selbourne Chambers in Phillip Street, Sydney. The sign is legible from the clip and refers to Mr Stokes and McCallum and Harrison JJ in grossly defamatory terms. The clip records the voice of a person speaking about the material on the clip which, Mr Keegan says, he recognised as being that of the defendant. Mr Keegan did not have the opportunity to read the defendant's sign in the reception area of Addisons on 3 June 2014, but it is reasonable to infer that the sign was that which was later displayed in Selbourne Chambers and had been displayed at the premises…

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 Munsie v Dowling

Details

AGLC: Munsie v Dowling [2014] NSWSC 1508
Case: [2014] NSWSC 1508
Decision Date: 30 October 2014

CaseChat Overview and Summary

The Supreme Court of New South Wales heard an application by Justine Munsie and Kerry Stokes against Shane Dowling, seeking interlocutory orders to prevent the further publication of defamatory material. The plaintiffs sought to amend their statement of claim to include additional defamatory publications made by Dowling. The central legal issues involved determining whether the plaintiffs had established a prima facie case for defamation and whether the balance of convenience favoured granting the injunctions.

The Court found that the plaintiffs had made out a strong prima facie case for defamation, as the defamatory material was grossly false and there were no reasonable grounds for Dowling to believe a defence of justification might succeed. The Court also concluded that the balance of convenience favoured granting the injunctions because the defamatory publications were likely to continue causing harm to the plaintiffs' reputations unless restrained. Dowling's arguments that he needed to republish the material to defend himself against contempt charges and that the publication showed evidence of a criminal offence were rejected as irrelevant and without merit.

The Court granted the interlocutory orders, restraining Dowling from publishing the specified defamatory material and requiring him to remove it from his websites. The orders were made effective immediately and were to remain in place until further order of the Court. The matter was relisted for further hearing to allow Dowling an opportunity to respond to the amended notice of motion. The Court emphasised the importance of balancing the public interest in free speech with the need to protect individuals from defamatory harm, particularly in cases where the defamatory material was demonstrably false and likely to cause significant reputational damage.

Orders