Supreme Court New South Wales Medium Neutral Citation: Munsie v Dowling [2014] NSWSC 1508 Hearing dates: 4, 11 and 13 June 2014 Decision date: 30 October 2014 Jurisdiction: Common Law Before: Adams J Decision: Reasons Cases Cited: Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57 Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 Church of Scientology of California Inc. v Reader's Digest Services Pty Ltd (1980) 1 NSWLR 344 Jakudo Pty Ltd v South Australian Telecasters Ltd (1997) 69 SASR 440 Munsie v Dowling [2014] NSWSC 458 Munsie v Dowling [2014] NSWSC 598 Y & Z v W [2007] NSWCA 329; (2007) 70 NSWLR 377 Texts Cited: P Young, C Croft & M L Smith, On Equity, (Thomson Reuters Lawbook Co, 2009) Category: Interlocutory applications Parties: Justine Munsie (First plaintiff) Kerry Stokes (Second plaintiff) Shane Dowling (Defendant) Representation: Counsel: A T S Dawson (Plaintiffs) Solicitors: Addisons Lawyers (Plaintiffs) Self-represented (Defendant) File Number(s): 2014/114469 Judgment Introduction 1The plaintiffs commenced an action for defamation against the defendant on 14 April 2014 in respect of a number of defamatory publications. On 4 June 2014 the plaintiffs, foreshadowing an application for leave to amend their statement of claim to add further imputations published by the defendant, sought orders in the Duty List against the defendant in relation to the additional publications. Orders were made as set out below for reasons which, I said, would be published in due course. These are those reasons. Background 2On 3 June 2014 at about 2pm the defendant was displaying a sign in the reception area of Addisons, the firm retained by the plaintiffs in the defamation proceedings, located at Level 12 in a city building. He was seen by Mr Keegan, the solicitor having carriage of the matter, who had been earlier informed by a member of the Seven Network's security team that a man matching the defendant's description had displayed a sign at two other Sydney premises, in Martin Place and Jones Bay, belonging to the Seven Network, moving away from those areas when requested to do so. A film clip was posted on the Youtube website on 3 June 2014, referring to Mr Stokes and McCallum and Harrison JJ. That clip makes scandalous allegations about Mr Stokes and Ms Munsie as well as the judges. At the beginning of the clip is depicted a large cardboard sign placed outside Selbourne Chambers in Phillip Street, Sydney. The sign is legible from the clip and refers to Mr Stokes and McCallum and Harrison JJ in grossly defamatory terms. The clip records the voice of a person speaking about the material on the clip which, Mr Keegan says, he recognised as being that of the defendant. Mr Keegan did not have the opportunity to read the defendant's sign in the reception area of Addisons on 3 June 2014, but it is reasonable to infer that the sign was that which was later displayed in Selbourne Chambers and had been displayed at the premises of Seven Network. This was the defamatory material in respect of which orders were sought on 4 June 2014. 3The plaintiffs are Mr Stokes, the chairman of a company whose assets include the Seven Television Network which broadcasts news, current affairs and other programs throughout Australia, and Ms Munsie, a solicitor and partner of the law firm Addisons retained by Mr Stokes and/or the Seven Network. Mr Keegan deposed that he is informed by Mr Stokes and believes that the allegations concerning Mr Stokes both in the sign and the website article are false. In particular, he was informed by Mr Stokes and believes that he has never committed criminal offences relating to dealings with judges of this Court. 4Mr Dawson appeared for the plaintiffs and the defendant appeared in person. The defendant sought an adjournment of the proceedings to give him time to read and understand the motion and the affidavit of Mr Keegan upon which the plaintiffs relied. Although he sought an adjournment of two days for this purpose and to enable him to obtain legal advice it was clear that he understood what orders were being sought and the reasons for them. The defendant rejected the offer of an hour's adjournment because he said, "I can't Google stuff, I can't ring anyone to get a bit of advice." On the other hand, similar applications in relation to other allegedly defamatory imputations published by him had been earlier made before Harrison J (Munsie v Dowling [2014] NSWSC 458) and Hall J (Munsie v Dowling [2014] NSWSC 598), and the judgments published setting out the relevant principles. The defendant said that he had not read all of Hall J's judgment because, "I was thinking of appealing it but I can't drop everything at all times. The bottom line to any sort of judgment is what he decides. That's the bottom line to it. So why read the lot?". I did not believe him. The defendant added that he had "plenty of other points I would like to make". Those points in substance amounted to patently false and at all events irrelevant allegations of gross misconduct against several judges of the Court. Thus, he alleged that a judge had a private improper communication with one of the parties when, in fact (as he knew) the communication was in open Court in the course of an ex parte application. I was in no doubt that the defendant had a more than adequate understanding of both what the plaintiffs were seeking and their reasons for doing so, as well as the principles to be applied by the Court in considering whether or not to grant the relief sought. Consideration 5On 16 May 2014 Hall J made orders restraining the publication by the defendant of certain material as particularised in the statement of claim. As his Honour observed, ([2014] NSWSC 598 at [48]ff), the relevant principles applying to an application for interlocutory injunctive relief were explained in Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 at [622] (references omitted) - "The Court addresses itself ... to two main inquiries. The first is whether the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief ... How strong the probability needs to be depends, no doubt, upon the nature of the rights he asserts and the practical consequences likely to flow from the order he seeks... [623] The second inquiry is directed to... whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted." 6A "prima facie case" for this purpose does not mean one that is more probably than not a successful one but will be found if a plaintiff shows a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending a final determination: Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57 per Gummow and Hayne JJ at [65]. An important consideration is that the courts apply exceptional caution in restraining publication of allegedly defamatory material because of the public interest in free speech, issues which may arise such as privilege or truth, respect for the role of a jury or the ultimate fact finder and the possibility of nominal damages. In Y & Z v W [2007] NSWCA 329; (2007) 70 NSWLR 377 Giles JA (with whom Spigelman CJ and Ipp JA agreed) said - "[20] An injunction may nonetheless be granted if proper account is taken of the public interest in free speech and the other considerations more particular to the allegedly defamatory material, albeit that it is an "unusual form of relief"... There is still a balancing of convenience, but with the wider consideration of freedom of speech in our democracy weighing heavily against prior restraint of publication." 7In Jakudo Pty Ltd v South Australian Telecasters Ltd (1997) 69 SASR 440, Doyle CJ said at [442] - [443] - "The reason why interlocutory injunctions are rarely granted in respect of defamatory material is ... that the courts have recognised the substantial public interest in the free discussion of matters of public or general interest. That means that when the balance of convenience comes to be weighed, the public interest in free discussion of matters of public or general interest weighs heavily against the grant of an injunction. Particularly will this be so if the defendant puts forward material which shows that there are reasonable grounds to think that a defence of justification may succeed... When the real issue is not whether the words are defamatory, but that of justification, the plaintiff will have shown that there is a serious question to be tried as to the plaintiff's entitlement to relief. But, if there are reasonable grounds to suppose that a defence of justification may succeed that, coupled with the substantial public interest in the free discussion of matters of public and general interest, will usually mean that the balance of convenience is in favour of the refusal of a grant of an injunction. Of course, that assures that damages will be an adequate remedy." 8The matters of which the plaintiffs complained were published after the filing of the statement of claim on 15 April 2014 and, accordingly, an amendment to the statement of claim will be necessary to obtain final relief. However, I am satisfied that the plaintiffs propose to amend their statement of claim, for which leave of course is required, both to specify further defamatory matter and particularise further publications. 9There can be little doubt that the publications for which relief was sought are grossly defamatory. Furthermore, there is material in the publication itself which shows that the defendant in respect of at least one article appears to have (though this must necessarily be a somewhat provisional judgment) no defence either of truth or of comment. The defendant in relation to both those matters and the other imputations contained in the sign to which I have referred, did not suggest any matter capable of amounting to a defence, rather choosing to repeat those defamatory assertions and make defamatory assertions about others not relevant to the proceedings. It seems to me that the plaintiffs appear to have at least a strong case against the defendant on the basis that the amendments sought will be allowed, as I think will almost certainly happen. Furthermore it is highly unlikely, as the matter presently appears, that the imputations allegedly conveyed can be justified. 10In the judgment to which I have already referred, Hall J noted that the defendant does not have to prove a defence in order to successfully resist an application for an injunction and referred to the observations in Church of Scientology of California Inc. v Reader's Digest Services Pty Ltd (1980) 1 NSWLR 344 per Hunt J - "[42] I conclude that a defendant is not required on an application such as this to lead the evidence upon which he relies to establish the defences asserted. In some cases, particularly where such defences are not clear from the matter complained of itself, or from the circumstances of its publication as established by the plaintiff, or otherwise, it will be advisable for a defendant to produce some evidence to permit the Court to say that those defences have some prospect of success. Even then, the evidence need not be such that the defence is thereby proved; all that is needed is sufficient to suggest the defence in a manner and with circumstances which show that there is a case for consideration by a jury or the trial judge, as the case may be." The defendant said that his defence was going to be that the plaintiffs bribed a judge of this Court and circumstantial evidence supporting that fact is that the plaintiffs bribed another judge of the Court. It remains to be seen whether such a defence will be pleaded (or, more to the point, successfully pleaded) but, even if it were pleaded the mere allegation is a very long way from giving rise to evidence of truth. Although the articles themselves purport to make good the imputations, they manifestly fail, in their own terms to provide a rational basis for them. The defendant has not adduced any evidence suggesting he has any prospects of success of any defence which might be relied upon by him. Of course, until the amendments are made, the occasion for filing a defence will not have arrived. That is why I have considered this matter in the light of possible available defences. The plaintiffs submit, in substance, the defamatory material was false, precluding any defence of truth or opinion and patently was not published on any occasion of qualified privilege with no other defence arguably available, it being patent from the material that there are no reasonable grounds to think that a defence of justification might succeed. Since, as it seems to me, the falsity of the imputations is apparent, certainly well exceeding the prima facie level, the likelihood that, on further examination, the defendant might successfully defend the proceedings is minimal. 11In respect of prejudice, the defendant said that his business was that of a journalist and that this material was part, as it were, of his stock in trade and that if he were prevented from publishing it his financial position would be adversely affected. However, it is patent from the exhibited material that this line of allegations is but one of many affecting other persons and there is nothing which gives rise to any real likelihood of financial consequences for the defendant's livelihood if he were forbidden from republishing the material complained of or required to remove the publications from Youtube. Furthermore, the orders are made subject to the usual undertaking as to damages. 12The defendant said, when asked why he wished to be able to repeat the material complained of, that the first reason was that the plaintiffs had charged him with contempt of court and he needed to defend himself on that charge. The charge of contempt was brought because he failed to comply with an order of the Court. I infer from his response that he regarded the making of further allegations of gross impropriety as assisting him to defend the charge. Since it is clear that re-publication could not provide a defence for publishing material in defiance of an order of the Court, which I have no doubt the defendant well understands, the only way in which his proffered reason can be interpreted is that, in some way, he sees it as assisting him in an extra curial manner. The argument must be rejected. The defendant then argued that the published material "shows evidence of a criminal offence". Leaving aside the point that the material is not any evidence of a criminal offence and discloses no such evidence, that cannot be a reason for not permitting republication except, possibly, to the police for the purpose of investigation. However, it is plain that the defendant did not propose to take this course. Lastly, the defendant submits that some of the material was published on the internet since April 2014 and that being so it was unreasonable now to take any action in relation to at least that part of the publication. 13The relief sought in the statement of claim is not damages but, rather, a permanent injunction. Hall J noted that the defendant himself had asserted that he had no capacity to pay any damages award. There is no evidence of that before me but the defendant effectively declined to answer a query about his capacity to pay damages, from which I infer that, at least, he was not contending that damages would be an adequate remedy in circumstances where this was a matter peculiarly in his knowledge. Whether damages are an appropriate and adequate remedy is a question of fact, "to be answered from a practical rather than a theoretical perspective". Accordingly, that a defendant is impoverished or insolvent or doubtfully solvent is significant (see P Young, C Croft & M L Smith, On Equity, (Thomson Reuters Lawbook Co, 2009) at [16.60]). 14It is also obvious that the defendant intends to continue to publish both by use of the internet and signs physically presented in the plaintiffs' premises one way or another aimed directly, of course, to all persons entering those premises including clients and employees. This form of publication, plainly amounting to harassment, shows that the defendant is intent upon gaining notoriety at the expense of the reputations of the plaintiffs and that, unless restrained, the defamations will continue up to the trial. It also appears calculated to intimidate the plaintiffs both in relation to pressing the contempt proceedings commenced against the defendant as well as undertaking the defamation proceedings. 15There will be little point in restraint some year or so hence when the trial has been finalised if there has not been effective restraint in the meantime. Orders 16For the above reasons I made the orders set out below but, to give the defendant a further opportunity to respond to the notice of motion, they were effective, as will be seen, only for two days and the matter was relisted for further hearing on 11 June 2014. 1. This motion be returnable instanter. 2. Service of this motion be effected by service on the defendant by email today. 3. The defendant be restrained, until 4pm Wednesday 11 June 2014, from publishing: (a) the Sign referred to in the affidavit of Richard Michael Keegan sworn 4 June 2014; (b) the imputations, or imputations to the same effect, as those set out in the proposed amendment to the statement of claim. 4. The defendant immediately remove from the website "www.youtube.com" and be restrained, until 4pm Wednesday 11 June 2014, from publishing: (a) the Film Clip referred to in the affidavit of Richard Michael Keegan sworn 4 June 2014, in so far as the Film Clip contains images of the Sign; and (b) the first sentence of the text accompanying the Film Clip under the heading "Published on 3 Jun 2014". 5. The defendant be restrained, until 4pm Wednesday 11 June 2014, from publishing: (a) the Website Article referred to in the affidavit of Richard Michael Keegan sworn 4 June 2014; (b) the imputations, or imputations to the same effect, as those set out in the proposed amendment to the statement of claim. 6. Re-listed for hearing at 2pm on Wednesday 11 June 2014. 7. Costs reserved. 8. Orders to be entered forthwith. Proceedings on 11 June 2014 17At the outset of this hearing the defendant submitted that I should disqualify myself. I rejected this application and gave ex tempore reasons, which do not require repeating, for so doing. The plaintiffs moved on an amended notice which added to the matters sought to be restrained the publication of an article published on the defendant's website which describes the contents of the sign which was the subject of my previous orders. Furthermore, the article contains a hyperlink which, when activated, redirects the screen to another website named which repeats an earlier publication defaming Mr Stokes, also the subject of earlier restraining orders. Also sought to be restrained is a video clip allegedly posted by the defendant on Youtube and on his website (called the Addisons Film Clip) which carried serious defamatory imputations against the plaintiffs, that being the sign, the contents of which were restrained from publication in my earlier orders. On about 5 June 2014 the defendant posted a video taken by him earlier that day of counsel for the plaintiffs, Mr Dawson, whilst he was returning to chambers from this Court on Youtube and his website. That video contained a serious defamatory imputation against the first plaintiff. On 8 June 2014 the defendant published an article making serious defamatory imputations against the second plaintiff on his website. 18Essentially, the plaintiffs sought an injunction against the defendant restraining him until further order from publishing any of this material or imputations to the same effect and requiring him to remove the videos and the text from Youtube and, in effect, the same material from his own website and from the other site. 19Amongst other submissions, which I rejected as irrelevant, the defendant contended that his accusations concerning corruption were covered by qualified privilege. This, as he said in oral submissions, is based upon what he calls "private communications" which occurred in open Court during an ex parte hearing. No question of qualified privilege arises, in my view. He sought to tender other accounts of his allegations as evidence of their truth. I rejected this material. The defendant also produced proposed orders which, in substance, sought dismissal of the notices of motion with costs, the sum of $100,000 be paid by the plaintiffs to him, the judgment and orders of Hall J to which I referred above be quashed, the plaintiffs' defamation proceedings be dismissed as frivolous and vexatious, that the plaintiffs and two other persons be charged with contempt of Court for communicating with two Judges "without my knowledge or consent" and contempt proceedings against him be dismissed for being an abuse of process. I had no jurisdiction to make any orders except in respect of the motions which were before me. The defendant also submitted that, in respect of the interview with Mr Dawson (the Dawson Film Clip), barristers are interviewed all the time and no honest judge would "even look at" the pressed application. He further submitted that the order requiring him to remove one of the publications was inconsistent with the refusal of Harrison J to make such an order. It is not, Harrison J made no determination as to whether such an order should be made because of the defamatory content of the published material. Conclusion 20Certainly freedom of speech is a fundamental value of Australian democracy and should not be interfered with without good reason. However, the law of defamation is itself an impediment, and a right and proper impediment, to any notion of unfettered freedom of speech. The additional material sought to be made the subject of further orders is of a piece with the material subject to the earlier orders and, for the same reasons, I consider that the additional orders sought should be made. Nothing that the defendant said or produced was relevantly different to his earlier submissions and, accordingly, whether I should reconsider those orders did not arise, except in respect of the time limitation which, as will be seen, has been removed. Additional Orders 21Orders made on 11 June 2014 - Orders in respect of notice of motion filed 6 June 2014 - 1. The orders made on 4 June 2014 are continued until further order of the Court. Orders in respect of the amended notice of motion filed in Court on 11 June 2014 - 1. This motion be returnable at 2pm on Wednesday 11 June 2014. 2. The defendant be restrained, until further order, from publishing: (a) the Addisons Film Clip referred to in the affidavit of Richard Michael Keegan sworn 6 June 2014; (b) the Dawson Film Clip referred to in the affidavit of Richard Michael Keegan sworn 6 June 2014; (c) the Corruption Article referred to in the affidavit of Richard Michael Keegan sworn 11 June 2014; (d) the imputations, or imputations to the same effect, as those set out in the proposed amendment to the statement of claim. 3. The defendant immediately remove from the website "www.youtube.com" and be restrained, until further order, from publishing: (a) the Addisons Film Clip and the Dawson Film Clip referred to in the affidavit of Richard Michael Keegan sworn 6 June 2014; and (b) the text accompanying the Addisons Film Clip beginning with the words "Kerry Stokes lawyers". 4. The defendant immediately remove from the website www.kangaroocourtofaustralia.com.au and be restrained, until further order, from publishing: (a) The entirety of the Private Communication Article referred to in the affidavit of Richard Michael Keegan sworn 6 June 2014, including: i. its headline; ii. the Addisons Film Clip; iii. the Dawson Film Clip; iv. the comments at the end of article, (b) The entirety of the Suppression Order Article referred to in the affidavit of Richard Michael Keegan sworn 6 June 2014, including: i. Its headline; ii. The comments at the end of the article, (c) The entirety of the Schapelle Corby Article referred to in the affidavit of Richard Michael Keegan sworn 6 June 2014, including: i. Its headline; ii. The comments at the end of the article, (d) The entirety of the Corruption Article referred to in the affidavit of Richard Michael Keegan sworn 11 June 2014, including: i. Its headline; ii. The comments at the end of the article. 5. The defendant immediately remove, or cause to be removed, from the website www.pn.i-uv.com (One Peoples' Public Notice Board) and be restrained until further order, from publishing: (a) The Private Communication Article referred to in the affidavits of Richard Michael Keegan sworn 6 June 2014 and 11 June 2014. 6. By "entirety" in these orders is meant the headline, any sidebar comment, as well as the body of the article. 7. Orders to be entered forthwith. 22On 13 June 2014 order 4(b) was varied to add "except when republishing the judgment of Harrison J dated 24 April 2014 in its entirety" and adding the same exception to paragraph (c). I direct the defendant, if he wished to make further submission relating to this clarification, do so by filing them on or before 27 June 2014. He has not done so. ********** 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: 31 October 2014