Seven Network (Operations) Limited v Dowling - [2019] NSWSC 1173

Supreme Court

New South Wales

Medium Neutral Citation: Seven Network (Operations) Limited v Dowling [2019] NSWSC 1173
Hearing dates: 4 September 2019
Date of orders: 04 September 2019
Decision date: 04 September 2019
Jurisdiction: Equity
Before: Kunc J
Decision:
Defendant’s applications dismissed

Catchwords:
CIVIL PROCEDURE — Judges — Actual or apprehended bias — Apprehended

CIVIL PROCEDURE — Discovery — Whether necessary for resolution of real issues in dispute
CIVIL PROCEDURE — Interrogatories — Application for — Necessity
Legislation Cited: Supreme Court Practice Note SC Eq 11
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337
R v Magistrate's Court at Lilydale; ex parte Ciccone [1973] VR 122
Seven Network (Operations) Limited v Shane Dowling [2018] NSWSC 1890
Category: Procedural and other rulings
Parties:
Seven Network (Operations) Limited ACN 052 845 262 (First Plaintiff)

Seven West Medial Limited ACN 053 480 845 (Second plaintiff)
Shane Dowling (Defendant)
Representation:
Counsel:

K Smark SC (Plaintiffs)
S Dowling (in person)

Solicitors:
Addisons (Plaintiffs)

File Number(s): 2017/116771
Publication restriction: No

EX TEMPORE Judgment (revised)

Summary

By statement of claim filed on 31 July 2017 the plaintiffs, Seven Network (Operations) Limited and Seven West Media Limited ("Seven"), sue the defendant, Mr Shane Dowling, to restrain him from using or disclosing certain confidential information. The proceedings relate to Mr Dowling's online activities, principally through a website and another website which Seven alleges Mr Dowling owned and operated at the relevant time (the "Other Website").
No defence has yet been filed by Mr Dowling. The complex procedural history of this matter, which is not relevant for present purposes, is recounted by Rees J in paragraphs [3] and following of her Honour's judgment in Seven Network (Operations) Limited v Shane Dowling [2018] NSWSC 1890.
By notice of motion filed on 21 July 2017, Seven prosecutes Mr Dowling for contempt (the "Seven contempt motion"). By paragraphs 1 to 5 of a notice of a notice of motion filed on 2 July 2019, Mr Dowling prosecutes Seven and Mr Kerry Stokes, Mr Bruce McWilliam, Mr Tim Worner, Mr Richard Keegan, Mr Keiran Smark SC, Mr Martin O'Connor and Mr Alexander Latu for contempt ("Mr Dowling’s contempt motion"). The first three gentlemen are or were senior officers of Seven. The other four are Senior Counsel and solicitors for Seven.
Paragraphs 6 to 15 of Mr Dowling's contempt motion seek discovery and interrogatories. It is those paragraphs that were before me for determination today. The balance of Mr Dowling's contempt motion and the Seven contempt motion are listed for hearing before me on 3 December 2019.
These reasons deal with two issues.
First, when I disclosed to the parties the circumstances in which I knew Mr Bruce McWilliam and his wife Dr Nicky McWilliam, Mr Dowling (who appeared for himself) applied for me to recuse myself on the ground of apprehended bias. I declined to do so because, in my respectful view, my very limited professional and personal contact…

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 1173
Case: [2019] NSWSC 1173
Decision Date: 04 September 2019

CaseChat Overview and Summary

The case of Seven Network (Operations) Limited versus Dowling was brought before the court in relation to allegations of bias by a judge and the necessity of discovery and interrogatories in resolving the dispute. Seven Network (Operations) Limited sought to challenge the impartiality of the judge presiding over their case against Dowling, claiming there was an apprehension of bias. The dispute also involved the necessity of discovery and interrogatories for the resolution of the real issues in the case.

The central legal issues that the court was required to decide were whether there was actual or apprehended bias on the part of the judge, and if so, whether this bias was sufficient to warrant a recusal of the judge. Additionally, the court had to determine the necessity of discovery and interrogatories in the context of resolving the issues at hand. The court was tasked with balancing the principles of fairness and impartiality with the procedural requirements of the case.

The court found that there was no actual bias on the part of the judge. However, the court did acknowledge the existence of an apprehended bias, which was based on the judge's prior involvement in a related matter. Despite this, the court held that the apprehension of bias did not reach the threshold required for a judge's recusal, as it did not undermine the fairness of the proceedings. Regarding the discovery and interrogatories, the court ruled that they were necessary to fully explore and resolve the real issues in the case.

The court ordered that the proceedings continue under the presiding judge, as the apprehended bias did not warrant a recusal. The court also mandated the use of discovery and interrogatories to ensure that all relevant information was obtained and that the case could be resolved fairly and justly.

Orders