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Seven Network (Operations) Ltd v Dowling (No 2)

Seven Network (Operations) Ltd v Dowling (No 2)

Case [2021] NSWSC 1106 3 September 2021

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Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Seven Network (Operations) Ltd v Dowling (No 2) [2021] NSWSC 1106
Hearing dates: 13 August 2021
Date of orders: 3 September 2021
Decision date: 03 September 2021
Jurisdiction: Equity
Before: Rees J
Decision:
Commit the contemnor to prison for ten months.

Catchwords:
CONTEMPT – criminal contempt – sentencing – principles at [2]-[12] – contemnor prosecuted for three earlier contempts for publications on his website – contemnor then established anonymous website and published blog containing plaintiffs’ confidential information – orders made to take down blog – orders served on contemnor – blog not removed until plaintiff acquired anonymous website through WIPO proceedings – contemnor then established second anonymous website and continued to publish blog – plaintiffs put to considerable cost in proving contemnor was responsible for anonymous websites, including expert witness – contemnor motivated by animus against plaintiffs and wish to portray himself as a “journalist” – no remorse – used such proceedings to promote himself and seek donations – high risk of re-offending – need for personal deterrence high – imprisonment of 10 months appropriate.

Legislation Cited:
Court Suppression and Non-Publication Orders Act 2010 (NSW)
Crimes (Administration of Sentences) Act 1999 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Supreme Court Rules 1970 (NSW) Pt 55 r 13

Cases Cited:
Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98; [1986] HCA 46
Australian Securities and Investments Commission v Matthews [2009] NSWSC 285; (2009) 71 ACSR 279
Capilano Honey Ltd v Dowling (No 4) [2021] NSWSC 264
Commissioner for Fair Trading v Partridge [2006] NSWSC 478
Doe v Dowling [2017] NSWSC 1037
Doe v Dowling [2017] NSWSC 202
Doe v Dowling [2019] NSWSC 1222
Dowling v Prothonotary of the Supreme Court of New South Wales (2018) 99 NSWLR 229; [2018] NSWCA 340
Ferguson v Dallow (No 5) [2021] FCA 698
He v Sun [2021] NSWCA 95
Hinch v Attorney-General (Vic) [1987] VR 721
In the matter of Jimmy’s Recipe Pty Ltd [2020] NSWSC 93
Kazal v Thunder Studios Inc (California) (2017) 256 FCR 90; [2017] FCAFC 111
Law Institute of Victoria v Nagle [2005] VSC 47
Munsie v Dowling (No 2) [2014] NSWSC 1042
Munsie v Dowling [2014] NSWSC 962
Porter v Australian Broadcasting Corporation [2021] FCA 863
Prothonotary of Supreme Court of New South Wales v Ceren [2016] NSWSC 1187
Prothonotary of the Supreme Court of New South Wales v Dowling [2018] NSWSC 1301
Prothonotary of the Supreme Court of New South Wales v Dowling [2017] NSWSC 664
Registrar of the Court of Appeal v Maniam (No 2) (1992) 26 NSWLR 309
Seven Network (Operations) Ltd v Dowling [2018] NSWSC 1890
Seven Network (Operations) Ltd v Dowling [2021] NSWSC 726
Smith v The Queen (1991) 25 NSWLR 1
Street v Luna Park Sydney Pty Ltd [2009] NSWSC 767
Thunder Studios Inc (California) v Kazal (No 2) [2017] FCA 202
Wood v Galea (1996) 84 A Crim R 274
Wood v Galea (1997)…

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) Ltd v Dowling (No 2)

Details

AGLC: Seven Network (Operations) Ltd v Dowling (No 2) [2021] NSWSC 1106
Case: [2021] NSWSC 1106
Decision Date: 03 September 2021

CaseChat Overview and Summary

The defendants, Seven Network (Operations) Ltd and ACP Magazines Pty Ltd, sought contempt orders against the plaintiff, who had been found in contempt of court on three previous occasions for publishing material on his website that was in breach of an interlocutory injunction. The plaintiff was subsequently found in contempt again for publishing confidential information on an anonymous blog. Orders were made requiring the blog to be taken down, but the plaintiff did not comply and instead established a new anonymous website. The plaintiffs incurred significant costs in proving the plaintiff was responsible for the anonymous websites, including the use of an expert witness. The plaintiff demonstrated a clear animus towards the plaintiffs and a desire to portray himself as a "journalist." The plaintiff showed no remorse for his actions and used the proceedings to promote himself and solicit donations. The court held that the plaintiff's conduct was egregious and that there was a high risk of re-offending. The need for personal deterrence was high, and the court found that imprisonment for 10 months was appropriate.

The legal issues before the court included the appropriate sentence for the plaintiff's contemptuous conduct and the factors that should be considered in determining that sentence. The court considered the principles of sentencing for contempt, including the need for deterrence, punishment, and the protection of the integrity of the court. The court also considered the plaintiff's conduct and motivations, the costs incurred by the plaintiffs, and the risk of re-offending. The court found that imprisonment was the appropriate sentence in this case, given the plaintiff's persistent and egregious conduct, his lack of remorse, and the high risk of re-offending. The court also noted that the plaintiff had used the proceedings to promote himself and solicit donations, which was a factor that weighed in favour of a custodial sentence.

The court held that the appropriate sentence for the plaintiff's contemptuous conduct was imprisonment for 10 months. The court found that the plaintiff's conduct was persistent and egregious, and that there was a high risk of re-offending. The need for personal deterrence was high, and the court found that imprisonment was the appropriate sentence to achieve that goal. The court also noted that the plaintiff had shown no remorse for his actions and had used the proceedings to promote himself and solicit donations, which were factors that weighed in favour of a custodial sentence. The court held that the plaintiff's conduct had caused considerable costs and inconvenience to the plaintiffs, and that the sentence should reflect the seriousness of those consequences. The court also found that the plaintiff's conduct was motivated by animus towards the plaintiffs and a desire to portray himself as a "journalist," which were factors that weighed in favour of a harsher sentence.

Orders