Capilano Honey Ltd v Dowling [2020] NSWSC 660

Supreme Court New South Wales

Medium Neutral Citation: Capilano Honey Ltd v Dowling [2020] NSWSC 660 Hearing dates: 25, 26, 27 & 28 May 2020 Date of orders: 25 May 2020 Decision date: 25 May 2020 Jurisdiction: Common Law Before: Button J Decision: Defendant to be digitally excluded in the absence of undertaking not to record proceedings without permission. Catchwords: PROCEDURE – defendant recording digital proceedings without permission – seeming commission of criminal offence – refusal to stop doing so Legislation Cited: Court Security Act 2005 (NSW), s 9(2)(a), s 12(1)(a)(iii) Surveillance Devices Act 2007 (NSW), s 7(3)(b)(i) Category: Procedural and other rulings Parties: Capilano Honey Ltd (First Plaintiff) Ben McKee (Second Plaintiff) Shane Dowling (Defendant) Representation: Counsel: M Cowden (Plaintiff) Self-represented Defendant

Solicitors: Addisons (Plaintiff) File Number(s): 2016/299522

EX TEMPORE Judgment – REVISED

Recording of proceedings by the defendant 1. This matter is listed for a three day hearing with regard to defamation and injurious falsehood alleged variously by the plaintiffs against Mr Shane Dowling, who appears for himself. 2. In accordance with the public health emergency, both counsel for the plaintiff and Mr Dowling appeared remotely by way of audio and video link. That had attended to it the usual regrettable disruptions, but I think it has the potential to work quite well. 3. At an early stage, I emphasised that there was to be no recording made, whether that be audio, or visual or both, or indeed a still image. Mr Dowling revealed not only that he was making a recording, but that he intended to keep making a recording despite my request that he not. 4. He spoke of the need to protect himself legally. He spoke of the need for there to be an exact record of what passes in court, and in particular, of what he might say or not say. He also pointed to the fact that it seems that he has been gaoled for contempt in the past for things he said in court. He also submitted that, speaking generally, there should be an exact record of what is said in court, and that such a record is useful. He has also submitted that there is a public interest in this matter and that, because of the current public health emergency, many would like to attend but they simply cannot. 5. Ms Cowden for the plaintiffs has simply said that nothing that Mr Dowling has said would lead me to provide an exemption, pursuant to s 9(2)(a) of the Court Security Act 2005 (NSW), whereby a judicial officer can expressly permit the use of a recording device.