Capilano Honey Ltd v Dowling (No 3) [2020] NSWSC 662

Supreme Court New South Wales

Medium Neutral Citation: Capilano Honey Ltd v Dowling (No 3) [2020] NSWSC 662 Hearing dates: 25, 26, 27 & 28 May 2020 Date of orders: 27 May 2020 Decision date: 27 May 2020 Jurisdiction: Common Law Before: Button J Decision: Objection upheld. Catchwords: PROCEDURE – defamation – objection to line of questioning in cross-examination – highly circumscribed defence – relevance of questioning in light of issues joined 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

Objection to evidence 1. Mr Dowling - who is the defendant and appearing for himself - at the conclusion of proceedings yesterday, asked Dr McKee - who is the second plaintiff and in the witness box - "Do you agree there is a sex tape, Dr McKee?" 2. The "sex tape", in a nutshell, forms part of the defamation proceedings of Dr McKee. It does not form any part of the injurious falsehood proceedings of Capilano Honey. Nor does it form any part of the injurious falsehood proceedings of Dr McKee. I might add that Mr Dowling disputes whether, in truth, there is or can be any injurious falsehood claim by Dr McKee at all. But as things stand, my reading of the statement of claim that is before me is that that is what is claimed, although contingently to Dr McKee's defamation claim. 3. The article that allegedly speaks of a sex tape is pleaded as part of the injurious falsehood claims, interestingly. But it is made clear from the particulars, and the "negative particulars", that that particular allegation pertaining to Dr McKee is not relied upon with regard to that alleged tort. 4. What I believe I need to think about is the degree to which Mr Dowling should be permitted to litigate the alleged truth of the things he has said, as they pertain to Dr McKee; in particular, as they pertain, and pertain only, to Dr McKee's defamation claim. 5. I might add by way of background that Mr Dowling, who is unrepresented, did prepare a defence. I will get into the history of that in a moment. But suffice to say, its current iteration says nothing about injurious falsehood brought by either plaintiff. 6. Having said that, the approach has been taken that it is incumbent, for the purposes of that tort, upon either or both plaintiff to prove falsity. Counsel for the plaintiffs has been content, even despite the absence of any traversal of the elements of that tort, to permit Mr Dowling to cross-examine to some degree about the topic of falsity or otherwise. She has also accepted that she bears the onus on the balance of probabilities of proving that part of that tort.