Seven Network (Operations) Ltd v Dowling

Case [2021] NSWSC 726


Supreme Court


New South Wales

Medium Neutral Citation: 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.

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW) r 10.14

Cases Cited:

Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98; [1986] HCA 46

Australian National Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 411

Barakat v Goritsas (No 2) [2012] NSWCA 36

British American Tobacco Australia Services Ltd v Cowell (2002) 7 VR 524; [2002] VSCA 197

Capilano Honey Ltd v Mulvany (No 3) [2018] NSWSC 767

Chamoun v District Court of New South Wales [2018] NSWCA 187

Commonwealth Bank of Australia v Salvato (No 4) [2013] NSWSC 321

Doe v Dowling [2017] NSWSC 1793

Doe v Dowling [2017] NSWSC 202

Doe v Dowling [2019] NSWSC 1222

Dowling v Seven Network (Operations) Ltd; Dowling v Capilano Honey Ltd; Dowling v Jane [2019] HCASL 311

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63

Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52; [2012] NSWCCA 125

Farahbakht v Midas Australia Pty Ltd [2006] NSWSC 1322

Furlong v Wise & Young [2019] NSWSC 1718

Green v The Queen (1971) 126 CLR 28; [1971] HCA 55

Hills Shire Council v Mouawad [2014] NSWLEC 59; (2014) 203 LGERA 233

In the matter of Jimmy’s Recipe Pty Ltd [2020] NSWSC 93

Kirby v Centro Properties Ltd (No 2) (2011) 202 FCR 439; [2011] FCA 1144

Lunn v The Commissioner for Public Employment [2009] NSWSC 19

McLean v Nicholson [2002] VSC 446

Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48

Mirus Australia Pty Ltd v Gage [2017] NSWSC…

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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.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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