Munsie v Dowling [No 11]

[2019] NSWSC 540

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Munsie v Dowling [No 11] [2019] NSWSC 540
Hearing dates:	3 May 2019
Date of orders:	13 May 2019
Decision date:	13 May 2019
Jurisdiction:	Common Law
Before:	Hoeben CJ at CL
Decision:	(1) Leave to file Notice of Motion refused and Motion dismissed. (2) Defendant to pay the costs of the respondents to the Notice of Motion.
Catchwords:	PRACTICE AND PROCEDURE – matter in Defamation List – judgment entered after final hearing – only costs outstanding – whether leave should be granted to defendant to file motion raising contempt of court issues – leave refused and motion dismissed.
Cases Cited:	Justine Munsie and Anor v Shane Dowling [2014] NSWSC 962 Munsie v Dowling (No 10) [2018] NSWSC 709
Category:	Procedural and other rulings
Parties:	Justine Munsie – First Plaintiff Kerry Stokes – Second Plaintiff Ryan Stokes – Third Plaintiff Shane Dowling – Defendant
Representation:	Counsel: Defendant in person PW Gray SC – Respondents to Notice of Motion   Solicitors: Addisons – 1st, 2nd and 3rd Plaintiffs Defendant in person
File Number(s):	2014/114469

JUDGMENT

1. HIS HONOUR:

Factual background

The first plaintiff in these proceedings is a solicitor and partner in the law firm Addisons; the second plaintiff is the Chairman of Seven West Media; and the third plaintiff is the son of the second plaintiff and Chief operating Officer of Seven Group Holdings Limited and a Director of Seven West Media. The defendant is the publisher of a website called Kangaroo Court of Australia which published defamatory material concerning the plaintiffs.

2. The plaintiffs sought permanent injunctive relief against the defendant to restrain him from publishing specific publications and from publishing any material of and concerning the plaintiffs, to like effect and/or containing the same imputations.

3. Further information about the background to the claim can be found in the judgments of Justine Munsie and Anor v Shane Dowling [2014] NSWSC 962 (Nicholas AJ) and Munsie v Dowling (No 10) [2018] NSWSC 709 (Rothman J).

4. The final hearing of the matter was fixed before Rothman J on 24 April 2017. When the matter was called, there was no appearance by the defendant. Mr Dawson SC appeared on behalf of the plaintiffs. The matter proceeded in the absence of the defendant.

5. Rothman J delivered judgment on 21 May 2018 (Munsie v Dowling (No 10)). The effect of that judgment was to permanently restrain the defendant from publishing the material identified in that judgment. There has been no appeal from the judgment. The only outstanding matter is the question of costs which has been fixed for hearing later this month.

6. On 17 April 2019, the defendant, without leave, purported to file in the Registry a Notice of Motion in those proceedings. The persons identified as being affected by the orders sought were the plaintiffs, Mr Dawson SC, Messrs Richard Keegan, Martin O’Connor and Alexander Latu, Seven West Media Limited and “Addisons Lawyers”. Messrs Keegan, O’Connor and Latu are not otherwise identified nor is any reason offered as to why those persons, Seven West Media Limited and Addisons Lawyers should be parties to the proceedings.

7. The orders sought in the motion were:

“1   A declaration that the plaintiffs and respondents are in contempt of court for conspiring to pervert the course of justice and/or attempting to pervert the course of justice.

2   A declaration that the second and third plaintiffs (Kerry Stokes and Ryan Stokes) are in contempt of court for bribing a witness (Justine Munsie) to pervert the course of justice and that Justine Munsie is in contempt of court for accepting a bribe to pervert the course of justice.

3   A declaration that the second and third plaintiffs (Kerry Stokes and Ryan Stokes) are in contempt of court for trying to interfere with a witness.

4.   A declaration that Justine Munsie is in contempt of court for breaching the solicitors rules and making a knowingly false statement to the other part.

5   A declaration that Justine Munsie, Richard Keegan, Sandy Dawson SC, Martin O’Connor and Alexander Latu are in contempt of court for breaching the solicitors rules and/or barrister rules.

6   That the plaintiffs and respondents pay my costs for this motion forthwith.

7   Such further or other order as the court thinks fit.”

8. Attached to the Notice of Motion, as Annexure “A”, was a document entitled “Statement of Charge”. The document purported to set out a factual basis for proceedings for contempt to be brought against the persons said to be affected by the orders sought in the Notice of Motion.

9. In support of the motion, there was an affidavit of Mr Dowling dated 17 April 2019 and filed in the Registry on that date. It purported to provide the factual background to the orders sought in the motion. It comprised a re-statement of the document entitled “Statement of Charge” attached to the Notice of Motion and had annexed to it correspondence and affidavits sworn by Ms Munsie and filed in these proceedings. That material provided no basis for the orders sought in the motion.

10. The motion came before the Court on Friday 3 May as part of the Defamation List. The defendant Mr Dowling appeared for himself and Mr Gray SC appeared on behalf of the respondents to the Notice of Motion.

11. As a preliminary matter, the defendant objected to my dealing with the Notice of Motion on the basis that by judgment dated 11 February 2015 I had struck out the defendant’s Amended Defence. The defendant submitted that by reference to apprehended bias principles I should disqualify myself.

12. I declined to recuse myself. Apart from the strike out judgment, I have had nothing to do with the matter until it appeared in the Defamation List as already referred to. The strike out matter was an interlocutory application and there was no occasion for me to consider the merits of the claim. The strike out application did not give rise to any occasion for assessing the credit of the defendant or the merits of the proceedings. In any event, having struck out the Defence, I granted leave to the defendant to re-plead.

13. The defendant was unable to offer any basis as to why he should be allowed to proceed on the Notice of Motion in circumstances where the matter had been heard and judgment entered in respect of all outstanding matters except costs. The defendant could offer no explanation for why it was sought to join for the first time, parties who had not previously played any part in the proceedings.

14. In those circumstances, I refused leave to the defendant to file the Notice of Motion and Affidavit in Support and ordered that the Notice of Motion be dismissed.

15. Given that the Notice of Motion raised an accusation of contempt of court, albeit one as misconceived as this, it was reasonable that Mr Gray SC was retained to appear on behalf of the respondents. This is particularly so in circumstances where it was not possible for Mr Dawson SC to appear since he had been named as a respondent to the Notice of Motion. Accordingly, I order that the defendant pay the costs of the respondents to the Notice of Motion.

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Amendments

14 May 2019 - Error in appearance of counsel on cover-sheet.

Decision last updated: 14 May 2019