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

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.

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.
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).
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.
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.
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…

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 [No 11]

Details

AGLC: Munsie v Dowling [No 11] [2019] NSWSC 540
Case: [2019] NSWSC 540
Decision Date: 13 May 2019

CaseChat Overview and Summary

The case of Munsie v Dowling [No 11] was before the court to address a matter that arose out of a defamation dispute. The plaintiff, Munsie, had previously obtained a judgment against the defendant, Dowling, in defamation proceedings. With only costs outstanding, the court was required to determine whether leave should be granted to Dowling to file a motion raising issues of contempt of court against Munsie. This decision was crucial in ensuring the integrity of the judicial process and the enforcement of court orders.

The primary legal issue before the court was whether the defendant, Dowling, should be permitted to raise contempt of court allegations in a motion, despite the absence of any findings of contempt in the initial defamation proceedings. The court needed to balance the principles of finality and the right of a party to challenge contemptuous conduct against the potential for unnecessary prolongation of litigation.

In determining the matter, the court considered the established case law on the granting of leave to file additional motions in defamation cases and the criteria for assessing applications for leave. The court concluded that Dowling's motion did not meet the threshold for leave to be granted, as the allegations of contempt were not supported by sufficient evidence and did not constitute a substantial cause of action. The court also noted that the application appeared to be an attempt to re-litigate issues that had already been decided. Consequently, the court refused leave and dismissed the motion.

No specific orders were made beyond the refusal of leave and the dismissal of the motion. The court's decision reinforced the importance of adhering to the finality of judgments and the necessity for parties to address any allegations of contempt through appropriate legal channels.

Orders