Seven Network (Operations) Ltd v Dowling [2021] NSWSC 726
Hearing dates:
1 and 2 February 2021; last submissions received 23 February 2021
Date of orders:
21 June 2021
Decision date:
21 June 2021
Jurisdiction:
Equity
Before:
Rees J
Decision:
Defendant found guilty of contempt.
Catchwords:
COURTS AND JUDGES – apprehended bias – application for recusal – applicant published disparaging statements about judge and other judges of the court – statement by applicant about judges did not lead to apprehension that presiding judge may decide the case other than on its merits – judge determined earlier motion – principles at [12]-[18] – earlier motion on different subject matter – applicant did not give evidence – no findings of fact – no credit findings – no matter determined on a final basis – application refused.
CIVIL PROCEDURE – transfer of proceedings for apprehended bias – principles at [25] – application previously made – no change in circumstances since earlier application – Court should determine charge of contempt of its orders – application refused.
CONTEMPT – criminal contempt – orders restraining publication of text messages and blog – order to remove blog from website – orders served on publisher of website – blog continued to be published – evidence established that defendant was publisher of the website – criminal contempt proved.
[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.
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AGLC
Seven Network (Operations) Ltd v Dowling [2021] NSWSC 726
Case
[2021] NSWSC 726
Decision Date
CaseChat Overview and Summary
Seven Network (Operations) Ltd sought the recusal of a judge who had presided over a defamation case against the company, on the basis that the judge had made disparaging statements about the company and other judges. The Court of Appeal was asked to determine whether the judge should recuse himself due to apprehended bias. The legal issues included whether the statements made by the applicant had created an apprehension that the judge might not decide the case on its merits, and whether the application for recusal should be transferred to another court. The Court held that the statements made by the applicant did not lead to an apprehension that the judge might decide the case other than on its merits. The Court also found that there had been no change in circumstances since the earlier application for recusal was made, and that the Court should determine the charge of contempt of its orders. The Court held that the contempt was proved and made an order for the defendant to be imprisoned for two months.
The Court found that the application for recusal was without merit and was an abuse of process. The Court held that the applicant's statement about the judges did not lead to an apprehension that the presiding judge might decide the case other than on its merits. The Court also found that the earlier motion on a different subject matter did not amount to findings of fact or credit findings, and that no matter had been determined on a final basis. The Court held that the application for transfer of proceedings for apprehended bias was also without merit, as there had been no change in circumstances since the earlier application was made. The Court held that the contempt was proved and made an order for the defendant to be imprisoned for two months. The Court emphasised the importance of the principle that courts should not be subjected to public criticism or disparagement, and that the applicant's conduct in this case was a serious breach of that principle.