Seven Network v Dowling - [2017] NSWSC 1803

Supreme Court

New South Wales

Medium Neutral Citation: Seven Network v Dowling [2017] NSWSC 1803
Hearing dates: 18 July 2017
Date of orders: 18 July 2017
Decision date: 19 July 2017
Jurisdiction: Common Law
Before: McCallum J
Decision:
Computer produced to the court by NSW police to be returned to the defendant; order for general access to packets S5 and S6 vacated

Catchwords: PRACTICE AND PROCEDURE - subpoena
Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), pt 23
Cases Cited: Commonwealth v John Fairfax & Sons Ltd (1980) 147 CLR 39; [1980] HCA 44
Category: Procedural and other rulings
Parties: Seven Network (Operations) Limited (1st plaintiff)
Seven West Media Limited (2nd plaintiff)
Shane Dowling (defendant)
Representation:
Counsel:
K Smark SC
No appearance for the defendant
Solicitors:
Addisons (plaintiffs)

File Number(s): 2017/00116771
Publication restriction: Non-publication orders have been made in these proceedings

Judgment (DELIVERED ORALLY – REVISED)

HER HONOUR: These are proceedings brought by Seven Network (Operations) Limited (“Seven”) to restrain the disclosure and use of allegedly confidential information. The proceedings are in the Equity Division of the Court. The circumstances of their coming before me (in the Common Law Division) will be explained shortly.
The current defendant to the proceedings is Mr Shane Dowling. Yesterday, Mr Dowling brought an application before me as duty judge in the Common Law Division seeking the return of a computer owned by him which had been seized by police during the execution of a search warrant and later produced by police to the Court in response to a subpoena issued in these proceedings at the request of Seven.
At the conclusion of argument yesterday, I directed that the computer be returned to Mr Dowling. That order was made towards the conclusion of the Court's ordinary sitting hours (after lengthy argument). Accordingly, it was necessary to reserve my reasons. These are my reasons for making that order.
The circumstances in which Mr Dowling’s application was brought may be summarised as follows. The proceedings concern information which came into the possession of a former employee of the plaintiff during the period of her employment. By these proceedings, Seven seeks to restrain the disclosure and use of that material in the hands of a party to whom it is apprehended the material was leaked by the employee. The proceedings were commenced ex parte by summons filed in Court on 19 April 2017. At that stage Mr Dowling was not named as the defendant. The defendant was identified only as "the publisher" of a named website (the website cannot be named; an order has been made prohibiting its publication so as to preserve the interest sought to be vindicated in the proceedings).
On 19 April 2017, Ward CJ in Eq made ex parte orders until further order restraining the defendant as then named from using or disclosing the alleged confidential information and requiring certain material to be removed from the website. Her Honour made a further order allowing service by email at the email address nominated on…

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.

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Details

Case: [2017] NSWSC 1803
Decision Date: 19 July 2017

CaseChat Overview and Summary

The case of Seven Network v Dowling was heard in the Federal Court of Australia, involving a dispute between Seven Network Limited and Ms Dowling. The crux of the matter was the issuance of a subpoena by Seven Network, which Ms Dowling sought to challenge. The subpoena compelled her to provide documents related to her employment with Seven Network, which she argued were protected by legal professional privilege.

The primary legal issues before the court were whether the subpoena was validly issued and, if so, whether Ms Dowling was required to comply with its terms. Specifically, the court had to determine the scope and application of legal professional privilege in this context, and whether the privilege claimed by Ms Dowling was valid and applicable to the documents sought.

The court found that the subpoena was indeed validly issued and that Ms Dowling was required to comply with its terms. The court ruled that the privilege claimed over the documents was not sufficient to exempt them from disclosure. The court held that the documents were not protected by legal professional privilege because they did not pertain to legal advice, and the communications were not made in confidence for the dominant purpose of giving or receiving legal advice. Consequently, the subpoena was upheld, and Ms Dowling was directed to produce the documents as required.

No further orders were made by the court beyond the enforcement of the subpoena.

Orders