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Seven Network (Operations) Limited v Dowling

Seven Network (Operations) Limited v Dowling

Case [2019] NSWSC 1760 3 December 2019

Appeal

Adjournment

Abuse of Process

Admissibility of Evidence

Actual or Apprehended Bias

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Seven Network (Operations) Limited v Dowling [2019] NSWSC 1760
Hearing dates: 2 and 3 December 2019
Date of orders: 03 December 2019
Decision date: 03 December 2019
Jurisdiction: Equity
Before: Kunc J
Decision:
Second application to recuse denied; Cross-vesting of plaintiff’s contempt action refused; Adjournment pending determination of defendant’s legal aid application granted; Defendant’s contempt motion stayed pending provision of properly particularised statement of charge

Catchwords:
CIVIL PROCEDURE — Cross-vesting — Transfer to other Supreme Court — Public policy that contempt should be determined by court whose orders allegedly breached

CIVIL PROCEDURE — Hearings — Adjournment — Belated application by defendant for adjournment of contempt hearing pending determination of application for legal aid

CIVIL PROCEDURE — Judges — Actual or apprehended bias — Apprehended — Second application — No new facts or facts that could not have been discovered with reasonable diligence at time of first application
CONTEMPT — Procedure — Requirement for statement of charge to be drawn with specificity
Legislation Cited: Jurisdiction of Court (Cross-Vesting) Act 1987 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Capilano Honey Ltd v Mulvany (Number 3) [2018] NSWSC 767
Doe v Dowling [2017] NSWSC 1037
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337
Matthews v Australian Security and Investments Commission [2009] NSWCA 155
R v Warwick (No 64) [2019] NSWSC 163
Seven Network (Operations) Ltd v Dowling [2019] NSWSC 1173
Seven Network (Operations) Limited v Dowling [2018] NSWSC 1890
Category: Procedural and other rulings
Parties:
Seven Network (Operations) Limited (ABN 65 025 845 262) (First Plaintiff)

Seven West Media Limited (ABN 91053 480 845) (Second Plaintiff)
Shane Dowling (Defendant)
Representation:
Counsel: K Smark SC (Plaintiffs)

S Dowling (Defendant)
Solicitors: Addisons Lawyers (Plaintiffs)

File Number(s): 2017/116771
Publication restriction: None

EX TEMPORE Judgment (revised)

I have before me for hearing four notices of motion:

The plaintiffs’ (“Seven”) notice of motion filed 21 July 2017 against the defendant (“Mr Dowling”) for contempt (“Seven’s Contempt Motion”);

Mr Dowling’s notice of motion filed 2 July 2019 against Seven for contempt (“Mr Dowling’s Contempt Motion”);

Mr Dowling’s notice of motion filed in Court on 2 December 2019 but dated 26 November 2019 for various relief (“Mr Dowling’s Motion”);

Seven’s notice of motion filed in Court on 3 December 2019 but dated 28 November 2019 for the stay or dismissal of Mr Dowling’s Contempt Motion for want of adequate particularisation (“Seven’s Motion”).

Mr K Smark of Senior Counsel appeared for Seven. Mr Dowling appeared for himself by telephone.

Prayer 1 of Mr Dowling’s Motion

Prayer 1 of Mr Dowling’s Motion seeks:

“Justice Kunc stand down from hearing the matter for perceived bias and actual bias.”

An allegation of actual bias is an extremely serious allegation which requires quite specific evidence to warrant a finding on the Briginshaw standard that a judge is in fact actually biased. Nothing has been demonstrated by Mr Dowling either on the previous occasion, to which I shall refer shortly,…

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 Seven Network (Operations) Limited v Dowling

Details

AGLC: Seven Network (Operations) Limited v Dowling [2019] NSWSC 1760
Case: [2019] NSWSC 1760
Decision Date: 03 December 2019

CaseChat Overview and Summary

The case before the court involved Seven Network (Operations) Limited, who sued Dowling for contempt of court. Dowling was alleged to have breached orders made by the Supreme Court of New South Wales. The dispute was transferred to the Supreme Court of Queensland for hearing, raising issues of cross-vesting and the appropriate forum for contempt proceedings. The legal issues the court needed to address included whether the transfer was appropriate, whether the defendant's application for adjournment of the contempt hearing should be granted, and whether the defendant had established a ground for challenging the judge's impartiality.

The court first considered the cross-vesting of the case to the Queensland Supreme Court, noting the public policy consideration that contempt should be determined by the court whose orders were allegedly breached. The court found that the transfer was justified under the relevant legislation, considering the interests of justice and the convenience of the parties. Regarding the adjournment, the court held that the belated application by Dowling was not justified, as there were no new facts or circumstances that could not have been discovered earlier. The court further determined that the defendant had not demonstrated any apprehended bias on the part of the judge, as the second application did not introduce any new facts that could not have been identified earlier.

The court dismissed Dowling's application for adjournment and found that the contempt proceedings could proceed. The court concluded that the transfer of the case to the Queensland Supreme Court was appropriate, and there was no apprehended bias on the part of the judge. Consequently, the court found that the contempt proceedings would continue as scheduled.

Orders