Prothonotary of the Supreme Court of New South Wales v Dowling (No 6)

[2018] NSWSC 1715

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Prothonotary of the Supreme Court of New South Wales v Dowling (No 6) [2018] NSWSC 1715
Hearing dates:	8 November 2018
Date of orders:	12 November 2018
Decision date:	12 November 2018
Jurisdiction:	Common Law
Before:	Wilson J
Decision:	The orders that the Court makes are these: (1) Vacate the orders of the Court, as listed in the Schedule to these orders. (2) Otherwise, dismiss the Further Amended Notice of Motion filed on 8 November 2018.
Catchwords:	CONTEMPT – interim non-publication orders – review of orders – primary objective of safeguarding the public interest in open justice – question of necessity of final order in more limited terms than earlier orders
Legislation Cited:	Court Suppression and Non-Publication Orders Act 2010 (NSW)
Cases Cited:	Dowling v Prothonotary of the Supreme Court of New South Wales [2018] NSWCA 233 Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52; [2012] NSWCCA 125 Jane Doe 1 v Dowling [2017] NSWSC 57 Prothonotary of the Supreme Court of New South Wales v Shane Dowling [2017] NSWSC 664 Prothonotary of the Supreme Court of New South Wales v Shane Dowling [2018] NSWSC 1301 Raybos Australia Pty Ltd & Another v Jones (1985) 2 NSWLR 45 Reinhart v Welker (2011) 93 NSWLR 311; [2011] NSWCA 403 Russell v Russell (1976) 134 CLR 495 at 520; [1976] HCA 23 Scott v Scott (1930) 44 CLR 22
Category:	Principal judgment
Parties:	The Prothonotary of the Supreme Court of New South Wales (applicant) Shane Francis Dowling (defendant)
Representation:	Counsel: Mr D. Kell SC with Ms E Jones for the Prothonotary Defendant self-represented   Solicitors: Crown Solicitor (NSW) (applicant)
File Number(s):	2017/94322
Publication restriction:	None

Judgment

1. HER HONOUR: On 3 February 2017 during the course of a call-over before this Court of the civil list, the defendant, Shane Dowling, made a number of empty and scurrilous claims concerning a registrar and a judge of the Court. The proceedings before the Court were disrupted and delayed whilst that occurred. Mr Dowling’s actions were referred for consideration of the commencement of proceedings against him for contempt of court.

2. On the afternoon of that day, on the application of the Prothonotary of the Supreme Court of New South Wales, Beech-Jones J (sitting as Duty Judge) made an interim order suppressing the content of the claims made by the defendant and the fact of his making them, pursuant to s 10 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) (“the Act”). Despite being notified of the suppression order and of its terms, Mr Dowling promptly breached it, publishing full details of the suppressed material on a website he operates.

3. He was subsequently charged with three counts of contempt of court, allegations that went to hearing before me on 4 May 2017.

4. With respect to the suppression order made by Beech-Jones J there followed either, the continuation of that interim order, or the making of further, ancillary orders intended to ensure compliance, until such time as all orders could be fully reviewed.

5. That time has been significantly delayed. The origins of the delay rest principally in the link between the non-publication orders and the contempt proceedings against the defendant, and Mr Dowling’s need for legal representation, at least with respect to the latter, but preferably for both.

6. Although initially unrepresented in both the contempt and the non-publication proceedings, Mr Dowling (sensibly) sought to obtain legal representation. He stood in some jeopardy as a consequence of the contempt proceedings, particularly in circumstances where he had previously been convicted for contempt offences, and he argued that the validity or otherwise of the non-publication orders was a salient feature in assessing whether he had been in contempt of court and, if he had, in assessing the gravity of his contempt.

7. The defendant experienced considerable difficulty in obtaining legal representation. He made application for legal aid, an application that was initially refused because the proceedings fell outside the guidelines of the Legal Aid Commission, even though he was at risk of receiving a sentence of imprisonment. After appeals both moral and legal against that refusal, and after the passage of much time, legal aid was ultimately granted to Mr Dowling for the contempt proceedings, but not with respect to proceedings relevant to the non-publication orders. Later still, and after the defendant had withdrawn instructions from two publically funded solicitors and counsel, the grant of aid to him was terminated.

8. Ultimately, Mr Dowling represented himself during the review of the non-publication orders, as it was clear that nothing was to be served in taking further time for exploration of other avenues of legal assistance available to him.

9. By way of a Further Amended Notice of Motion filed on 8 November 2018, the Prothonotary now seeks a final order, being a non-publication order rather than a suppression order, and one which significantly reduces the material it is contended should remain the subject of non-publication. The order sought by the Prothonotary is one which would vacate all remaining suppression and non-publication orders and, in lieu, make a final order pursuant to s 7(b) of the Act which prohibits publication of the names of the registrar and judicial officer about whom scurrilous claims were made, and details and the name of the website operated by the defendant on which he publicised his claims. Mr Dowling opposes any non-publication order, no matter how confined, arguing that the order as sought is “a total joke”, and an attempt to prevent him from exercising his “right to political communication”.

The Arguments of the Parties

10. The Prothonotary’s application is one brought pursuant to s 13(1) of the Act, which provides:

13 Review of orders

(1) The court that made a suppression order or non-publication order may review the order on the court’s own initiative or on the application of a person who is entitled to apply for review.

11. It is argued that, whilst the earlier orders were necessary in the context of the on-going contempt proceedings to ensure fidelity to the orders made by Beech-Jones J and to protect the administration of justice until such time as the contempt proceedings were finalised, with the finalisation of those proceedings an order of the breadth of the current orders is no longer necessary. It is submitted that, in compliance with the primary objective of the Act, all earlier orders should now be vacated.

12. Upon the vacation of those earlier orders, the decisions dealing with the contempt allegations, being Prothonotary of the Supreme Court of New South Wales v Shane Dowling [2017] NSWSC 664 and Prothonotary of the Supreme Court of New South Wales v Shane Dowling [2018] NSWSC 1301, of 3 August 2017 and 22 August 2018 respectively, can be published and, with that information available in the public domain, publication of all but the identified material will not any longer pose a risk undermining the administration of justice.

13. It is argued that, pursuant to s 8(1)(a) of the Act, there remains a need to prohibit publication of the names of the relevant officers and details of the website upon which the information has been made public, because the publication of scandalising material about named judicial officers could or would have the tendency to prejudice public confidence in proceedings that come before those individuals, and thus the administration of justice.

14. Although the defendant has maintained publication of all of the previously suppressed material on his web-site in breach of earlier orders, and continues to do so, the Prothonotary argues that there remains utility in the proposed order. It may be that the information can be found by searching for it, but a continuing order of the limited kind sought would limit the availability of the information nevertheless. In any event, to allow the defendant’s defiance of court orders to provide a basis for arguing that any final order lacks utility is to reward that defiance.

15. Mr Dowling contends that the Court should vacate all existing interim or final orders, and make no further order. He says that to do otherwise is to damage public confidence in the open administration of justice, and to embarrass the Court itself. He argues that suppressing information concerning proceedings before the Court gives rise to a perception of corrupt conduct by the Court and, more widely, has an unjustifiable chilling effect on the freedom of speech. It is submitted that there is neither a public interest in making the order sought, nor an exceptional circumstance to justify it.

16. The reference to an exceptional circumstance being required before a non-publication order can be made is derived from Reinhart v Welker (2011) 93 NSWLR 311; [2011] NSWCA 403, at [27], where the Court of Appeal said,

“The operative condition for making a suppression order under s 8 of the CSPO Act is that it be "necessary" to do so, which "... is a strong word [which, in] collocation [with] necessity to prevent prejudice to the administration of justice ...'suggests Parliament was not dealing with trivialities'": Hogan v Australian Crime Commission[2010] HCA 21; (2010) 240 CLR 651 (at [30]). The observations in Hogan v Australian Crime Commissionwere made in relation to a legislative scheme which, while it required the jurisdiction of the Court to be exercised in open court (s 17, Federal Court of Australia Act) did not contain a provision in like terms to s 6 of the CSPO Act. That provision, in our view, reinforces the legislative intention that CSPO Act orders should only be made in exceptional circumstances, a position which prevailed at common law: John Fairfax Publications Pty Ltd v District Court of NSW(at [21]).”

17. Further Mr Dowling submits that his website is not the only place in which information concerning the assertions the subject of the contempt proceedings may be found and, accordingly, there cannot be utility in even the more limited orders that the Prothonotary seeks. He has referred the Court to the decisions in Jane Doe 1 v Dowling [2017] NSWSC 57, and Dowling v Prothonotary of the Supreme Court of New South Wales [2018] NSWCA 233, in which, he says, material that breaches earlier orders of the Court has been published [although I cannot find such information in the latter decision]. He points to the inconsistency between two decisions of the Court which publish material suppressed by another decision of the Court as diminishing the stature of the justice system, and impairing public confidence in it.

Determination

18. Section 8 of the Act provides the grounds upon which a suppression or non-publication order may be made. In the instant case, the Prothonotary relies upon s 8(1)(a) as providing a basis for the order which is sought. That provision is as follows:

8 Grounds for making an order

(1) A court may make a suppression order or non-publication order on one or more of the following grounds:

(a) the order is necessary to prevent prejudice to the proper administration of justice

19. What is “necessary” to prevent prejudice to the proper administration of justice will be dependent upon the particular circumstances of the case. In Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52; [2012] NSWCCA 125 Basten JA considered the meaning of “necessary”, as follows (at [46]):

“The meaning of "necessary" depends on the context in which it is used. In s 8(1), it is used in relation to an order of the court, or, in practical terms, a proposed order, because it identifies a standard as to which the court must be satisfied before making an order. In each paragraph of that provision, the word "necessary" is used to describe the connection between the proposed order and an identified purpose. It may not take the same place on the variable scale of meaning in each case. In paragraph (a), the purpose of the order will be "to prevent prejudice to the proper administration of justice". That language will, in its turn, have a colour which will depend upon the circumstances. The prejudice may be a possibility or a certainty; its effect, if it eventuates, may be minor or it may cause a trial to miscarry. Similarly, prevention will involve matters of degree: the proposed order may diminish a risk of prejudice or it may obviate the risk entirely. All of these variables may affect what is considered "necessary" in particular circumstances.”

20. The power to make an order, found at s 7, on any of the grounds set out in s 8, must be exercised consistent with s 6 of the Act.

21. Although, as the Prothonotary points out, s 6 of the Act does not prohibit the making of non-publication or suppression orders, it does provide the keystone of the legislation, and must be firmly borne in mind whenever consideration is given to the making of such an order. The section is more than an expression of best-practice; it is a statutory command to the courts to ensure that the primary objective of the Act in safeguarding the public interest in open justice is met.

22. Section 6 provides:

In deciding whether to make a suppression order or non-publication order, a court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice.

23. The primacy of open justice is well settled and has its origins in the strong public interest in the community being able to participate in the work of the courts, if only by the opportunity to scrutinise that work. The ordinary rule of the courts is that proceedings should be conducted publically and in open view: Scott v Scott (1930) 44 CLR 22.

24. In Russell v Russell (1976) 134 CLR 495 at 520; [1976] HCA 23, Gibbs J observed that the principle of open justice ensures that proceedings before the courts are,

[…] fully exposed to public and professional scrutiny and criticism, without which abuses may flourish undetected. Further, the public administration of justice tends to maintain confidence in the integrity and independence of the courts. The fact that courts of law are held openly and not in secret is an essential aspect of their character.

25. It is in neither the interests of the courts nor the interests of the community that judicial decisions are made in secrecy; secrecy of that kind tends to foster (necessarily) uninformed rumour and speculation.

26. There are, of course, some circumstances where the balance of interests does support a suppression or non-publication order. In the instant case, the Prothonotary’s contention that the administration of justice could be prejudiced by permitting the widespread reporting of the names of the judicial officers the subject of the defendant’s tirade of abuse on 3 February 2017 is not without merit. One can readily foresee a situation where an individual litigant, becoming aware of the content of the abuse through something as simple as an internet search, would feel concern at his or her proceedings coming before the particular judicial officer. In that way, confidence in the judiciary and the Court could be impaired, and the proper administration of justice impeded.

27. However, that is a danger that must be balanced against the importance of the principle of open justice. The issues here were not insignificant, particularly in circumstances where the proceedings resulted in the defendant facing charges of contempt, and ultimately the prospect of being incarcerated for his conduct, as he in fact was at first instance. There is real importance in matters of that nature being completely open to public scrutiny. As Kirby P said in Raybos Australia Pty Ltd & Another v Jones (1985) 2 NSWLR 45 at 60A-D,

Widespread publicity, through the modern media of communications, may do great harm. Sometimes quite unjustifiable damage can be inflicted on individuals. […] However that may be, a price must be paid for the open administration, particularly of criminal justice. The alternative of secret trials, where important public rights may be in competition and individual liberty may be at risk is so unacceptable that courts of our tradition will tend to avoid the consequence.

28. That is not to trivialise the harm that can be done to the conduct of the justice system when judicial officers and, in other circumstances, jurors or other officials of the courts, are subjected to baseless allegations. However, in my view the court as an institution is more robust than the Prothonotary’s application would imply, and better able to withstand the possible adverse impact upon its work if matters such as this are conducted openly, such that interested members of the public may judge the issues for themselves, in possession of all material facts.

29. Many judicial officers have had experience of being the subject of abuse, either in the face of the court or by means of some publication, particularly through the internet. Regrettably, to lash out at a judge disrespectfully or with a tirade of profanity is the not unknown resort of the unhappy, the uninformed, or merely the uncouth. In an environment where, even in our highest institutions, civilised discourse and well-informed debate are unusual, and courtesy aspirational, the quick insult is an easy response to the decision of a court which is unwelcome or misunderstood. Rather than grapple with the issues in the judgment, for some it is simpler to disparage or denigrate the judge.

30. That does not oblige reasonable people to accept as accurate every scurrilous or senseless allegation or insult levelled at a judicial officer.

31. Here, the two officials abused before the Court on 3 February 2017 join a large number of judicial officers against whom identical allegations have been made by Mr Dowling, in each instance with no evidence of any sort to make good the allegations. Indeed, the very purpose of Mr Dowling’s website appears to be to air his personal opinion about the corruption of the judiciary generally, together with his more recent assertions that a large number of named judicial officers, both men and women, are “paedophiles” or “suspected paedophiles”. The only basis for any of the claims published seems to be dissatisfaction on Mr Dowling’s part with some order made by individual judges or registrars in the exercise of the relevant officer’s duties.

32. I am unable to conclude that any reasonable observer with access to the whole of the relevant information would see the generic accusations regularly made by Mr Dowling against judicial officers as accusations which should be taken seriously. If that analysis is correct, it is impossible to conclude that the administration of justice could be prejudiced by all information being made available for public scrutiny, and thus that an order is “necessary”.

33. There is also the issue raised by Mr Dowling as to the lack of utility in making the order sought by the Prothonotary. There are two aspects to that argument. The first is that the defendant’s website continues to maintain publications of material previously suppressed, or the subject of a non-publication order, and thus it is pointless to persevere with orders prohibiting that which has been done and will continue to be done. If this were the only foundation of an argument about the lack of utility in an order, I would be loath to reward contempt by recognising its continuance as inevitable, and declining to make a non-publication order that was otherwise necessary.

34. There is, however, more substance to the second aspect of Mr Dowling’s argument on this point. Although I do not accept his assertion with respect to the judgment of the Court of Appeal (referred to at [17] above), as he correctly observed, some of the material the subject of the Prothonotary’s application forms part of the published orders of the Court in the Jane Doe proceedings, (also referred to at [17]). In promoting a situation where one order of the Court breaches another is, as Mr Dowling observed, to risk embarrassing the Court.

28. On the whole, and balancing all of the competing interests, I cannot conclude that the order sought by the Prothonotary, in the circumstances as they now prevail, is necessary. Neither can the earlier orders in the changed circumstances now be regarded as necessary. Accordingly, I propose to vacate all earlier orders of this Court which suppress or prohibit publication of aspects of these proceedings, being those orders listed in a schedule to the Orders I am about to make. I do not propose to make any alternative order.

orders

36. The orders that the Court makes are these:

1. Vacate the orders of the Court, as listed in the Schedule to these orders.

2. Otherwise, dismiss the Further Amended Notice of Motion filed on 8 November 2018.

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SCHEDULE TO ORDER (1) OF THE ORDERS OF 12 NOVEMBER 2018

2017/94322

1. Order 2 made by the Court as constituted by Beech-Jones J on 3 February 2017 in proceedings 2016/383575;

2. Orders 3 to 5 made by the Court as constituted by Beech-Jones J on 8 February 2017 in proceedings 2016/383575;

3. Orders 2 and 3 made by the Court as constituted by Adamson J on 6 April 2017 in proceedings 2017/94322;

4. Order made by the Court as constituted by Wilson J on 4 May 2017 in proceedings 2017/94322, relating to proceedings before the Court on that date;

5. Order made by the Court as constituted by Wilson J on 4 May 2017 in proceedings 2017/94322, relating to the affidavit of Claudia Pendlebury affirmed 28 April 2017;

6. Order made by the Court as constituted by Wilson J on 7 February 2018 in proceedings 2017/94322, relating to the affidavit of Brett Thomson affirmed 2 February 20188 April 2017;

7. Order made by the Court as constituted by Lonergan J on 28 May 2018 in proceedings 2017/94322, relating to the affidavit of Brett Frederick Thomson affirmed 25 May 2018;

8. Order made by the Court as constituted by Wilson J on 25 July 2018 in proceedings 2017/94322, relating to proceedings before the Court on that date;

9. Order made by the Court as constituted by Wilson J on 17 August 2018 in proceedings 2017/94322, relating to the affidavit of Brett Frederick Thomson affirmed 29 June 2018, and the confidential exhibit marked RMK-1 to the affidavit of Richard Keegan sworn 28 September 2017 [noting that the latter continues to be the subject of non-publication orders in other proceedings]; and

10. Order made by the Court as constituted by Wilson J on 17 August 2018 in proceedings 2017/94322, relating to proceedings before the Court on that date.

Amendments

12 November 2018 - Ms E Jones included in Representation field.

Decision last updated: 12 November 2018