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. History of pleadings of defendant 1. The problem is that Mr Dowling filed a defence on 13 July 2018. I might add, this history is derived from my reading of the judgments of Hoeben CJ at CL and Fagan J about this very topic: see Capilano Honey Ltd v Dowling (No 3) [2019] NSWSC 539. I might further add that there have been a plethora of judgments pertaining to Mr Dowling in this Court with regard to this cause of action and more generally. I certainly do not claim that I have read all of them. But I do think it is important that I have an understanding of the interlocutory orders that have been made in the lead up to this hearing. 2. As I say, the defence was filed on 13 July 2018. On 20 July 2018, the solicitors for his opponents wrote to him inviting his attention to the Uniform Civil Procedure Rules 2005 (NSW) (the Rules) about particulars, not just generally but specifically the several rules about particulars in defamation actions. 3. Quite apart from the fact that those are indeed the Rules, there is an obvious sense to them in my opinion. In any civil matter, indeed in criminal matters nowadays, one's opponent is entitled to know what one is going to say and what one is going to rely upon, so that it can be prepared for, and so that there can be appropriate investigation. 4. In particular, in the setting of defamation where there can be different discrete defences, and perhaps most importantly the simple defence of truth, there is an obvious sense, I think, in there being special rules that mean that one needs to explain what one is going to say, so that one's opponent understands it, can prepare for it, and can investigate it. 5. The position of the plaintiffs was that the defence was defective and that it was not repaired. Accordingly, a strikeout motion was filed on 3 August 2018. It was heard on 3 May 2019 by Hoeben CJ at CL. In a judgment of 13 May 2019, Hoeben CJ at CL struck out very large parts of the defence. In particular, at [55] of his Honour's judgment, he spoke of the theoretical need for particulars and the practical need for particulars, especially in a defamation claim. 6. It is important, I think, that Hoeben CJ at CL granted Mr Dowling leave to file an amended defence. In other words, his Honour permitted an opportunity for Mr Dowling to comply with the requirements that Hoeben CJ at CL had delineated in that judgment. 7. A further defence was filed on 11 June 2019. It came before Fagan J. Again, there was a motion to strike it out brought by the plaintiffs. In a judgment of 26 July 2019 - that is, getting on for ten months ago - Fagan J struck out the entirety of the new defence as a whole, admittedly for various reasons (the judgment is not on Caselaw, but is on the court file). 8. That left Mr Dowling, as Fagan J remarked, with the defence of 13 July 2018, as reduced by Hoeben CJ at CL. 9. The other piece of background is that Mr Dowling has not put on an evidentiary statement, even though he was asked to do that by 12 December 2019, getting on for six months ago. He has explained today that he is unrepresented, and also he moved to Queensland, things have been rather disrupted, and he asked that an indulgence be granted in that regard. 10. I think the truth is though that, in interlocutory decisions that have been quite longstanding (one of them was delivered over two years ago [as said], and one of them was delivered getting on for a year ago), it has been clear that Mr Dowling is limited to a very restricted defence; to repeat, the defence of 13 July 2018 as "whittled down". Determination 1. I think I have to give weight to that, despite Mr Dowling's unrepresented position. In particular, I think it is correct to say that that state of affairs is able to be relied upon by the plaintiffs, especially since it was getting on for two years ago that they complained about the defence and its lack of particularity. 2. The result of that really is that the pleaded defence, as cut down, really commences at page 11 and [13]. It admits, in a nutshell, the "Toxic Honey" article of 17 September 2016. Notably, it admits that various imputations pleaded by the plaintiff arising from that are capable of being conveyed by that article. The same is said at [18] of the extant defence, whereby [15] of the statement of claim is admitted, which speaks of what has been called "The Judicial Favours Scam" article. 3. Notably also, at [19] of the defence, Mr Dowling admits the capability of the conveyance of the imputations complained of in the subparagraphs in [16] of the statement of claim. 4. Thereafter, throughout the defence, to state things in nutshell, publications are admitted but imputations or the capability of conveyance of imputations are denied. 5. In particular, it is noteworthy from the defence that many defences were relied upon, but none of them were the subject of particulars. None of them have ever been the subject of particulars. None of them have been the subject of an effort at putting on evidence. 6. I think then that, with regard to the defamation claim, to which the "sex tape article," it has been explained, is solely relevant, Mr Dowling is prohibited from asserting the truth of the article as a defence. 7. I think, speaking generally, if any part of the defamation proceedings is not bound up in the injurious falsehood proceedings, the same approach needs to be taken. To repeat: with regard to injurious falsehood, although it was not traversed at all, the approach has been taken by counsel, with which I respectfully agree, that there should be latitude about exploration in cross-examination of proof on the balance of probabilities of falsity. But I do think that this is in a different setting. Conclusion 1. In a nutshell, I think that, really for months if not years, it was clear that, if Mr Dowling wished to run all these defences, he needed to particularise them by way of explaining what material he was going to rely upon in order to pursue them. 2. That has not been done. I think that those topics are, therefore, not part of what I need to resolve. I think they are therefore irrelevant, as that term is defined in s 55 of the Evidence Act 1995 (NSW). With regard to the particular question that is pressed it is therefore rejected. 3. Finally, it is possible that this ruling will have application to other questions. If so, we will cross those bridges when we come to them. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 June 2020