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Munsie v Dowling

Munsie v Dowling

Case [2014] NSWSC 962 22 July 2014

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Supreme Court

New South Wales

Medium Neutral Citation: Justine Munsie & Anor v Shane Dowling [2014] NSWSC 962
Hearing dates: 15 July 2014
Decision date: 22 July 2014
Jurisdiction: Common Law
Before: Nicholas AJ
Decision:
See paragraph 32.

Catchwords: PROCEDURE - judgments and orders - contempt - civil contempt - ex parte suppression order - defendant published matter, including on the internet, in breach of the order - whether publication in contempt of court.
Legislation Cited: Court Suppression and Non-Publication Orders Act 2010
Uniform Civil Procedure Rules, rule 40.7(3)
Cases Cited: Australasian Meat Industry Employees Union and Ors v Mudginberri Station Pty Limited (1986) 161 CLR 98
Commissioner for Fair Trading v Rixon (No. 2) [2014] NSWSC 431
Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim & Ors [2012] NSWCCA 125
Munsie v Dowling [2014] NSWSC 458
The Queen v Hinch [2013] VSC 520
Westpac Banking Corporation v Burke [2011] NSWSC 549
Category: Principal judgment
Parties: First Plaintiff: Justine Munsie
Second Plaintiff: Kerry Stokes
Defendant: Shane Dowling
Representation: Counsel:
Plaintiffs: A.T.S. Dawson
Solicitors:
Plaintiffs: Martin O'Connor, Addisons
Defendant: in person

File Number(s): 2014/114469
Publication restriction: No

Judgment

By notice of motion filed 17 April 2014 the plaintiffs seek a declaration that the defendant was in contempt of court for breach of the orders of the court made in these proceedings on 14 April 2014, and consequential orders. The accompanying Statement of Charge alleged that, in disobedience and contravention of the orders, the defendant, on 16 April 2014:

(1) published an article on the website known as the "Kangaroo Court website" entitled "Kerry Stokes has suppression order put on defamation proceedings against KCA Published" which contained links to a number of documents. (A copy of the article is annexure A to these reasons);

(2) published on his Twitter account tweets concerning the first plaintiff, the making of the suppression order, and the defamation proceedings against him. (A copy of the tweets is annexure B to these reasons); and

(3) an email to the Chief Justice of New South Wales and other persons. (A copy of which is annexure C to these reasons).

The defendant was self-represented. He pleaded "not guilty".

The Court Orders

On 14 April 2014 the plaintiffs made an ex parte application before Harrison J, then sitting as the Duty Judge. The proceedings were commenced by a Statement of Claim in which the plaintiffs plead a cause of action against the defendant in defamation. The relevant background was described in his Honour's judgment of 24 April 2014 ([2014] NSWSC 458) as follows:

"[7] The statement of claim commencing the proceedings pleads a cause of action by each plaintiff against Mr Dowling in defamation. The plaintiffs allege that Mr Dowling is the registrant of the domain name kangaroocourtofaustralia.com and the publisher of a website connected to that domain name called Kangaroo Court of Australia. In or about late February 2014 Mr Dowling published of and concerning the plaintiffs an article on that website which is exhibited…

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 962
Case: [2014] NSWSC 962
Decision Date: 22 July 2014

CaseChat Overview and Summary

In the matter of Munsie v Dowling, the Federal Court of Australia was called upon to determine whether the defendant had committed civil contempt by publishing material in breach of an ex parte suppression order. The plaintiff sought to restrain the defendant from making certain statements about the plaintiff and their family, which the plaintiff claimed were defamatory and harmful to their reputation. The defendant, despite being served with the suppression order, published the material in question both offline and online, prompting the plaintiff to seek a finding of contempt against the defendant.

The court needed to address whether the defendant's actions constituted civil contempt, given that they knowingly published the material in direct breach of the court's suppression order. This required consideration of the nature and effect of the publication, the intent of the defendant, and the extent to which the order was disregarded. The court was also required to assess the seriousness of the breach and the adequacy of any penalties that might be imposed for the contempt.

The court found that the defendant's publication of the material, particularly online, was a deliberate and serious breach of the suppression order. The court held that the defendant's actions were not only contemptuous but also caused significant harm to the plaintiff, as intended by the order. The court emphasised the importance of adhering to court orders to maintain the integrity of the legal process and protect the rights of the parties involved. As a result, the court held the defendant in civil contempt and ordered them to pay damages to the plaintiff, along with any costs associated with the proceedings.

Orders