Supreme Court New South Wales Medium Neutral Citation: Jane Doe 1 and Jane Doe 2 v Dowling (No 2) [2016] NSWSC 1910 Hearing dates: 23 December 2016 Date of orders: 23 December 2016 Decision date: 23 December 2016 Jurisdiction: Common Law Before: Campbell J Decision: I will make orders in accordance with the short minutes of order handed up by Mr Dawson SC dated today, order 7 as amended by me. Catchwords: DEFAMATION – interlocutory injunction - ex parte -defendant properly served and aware of listing – absence of any defence of justification – freedom of speech - where defendant continues to defy previous orders for removal by court – substituted performance order – interlocutory relief granted PROCEDURE – contempt of court - referral to registrar pursuant to Supreme Court Rules Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW) r 40.8 Supreme Court Rules 1970 (NSW) Part 55 r 11 Cases Cited: Australian Broadcasting Corporation v O'Neill 2006 227 CLR 57; Munsie v Dowling 2015 NSWSC 808; Speedo Holdings v Evans (No. 2) [2011] FCA 1227 Category: Procedural and other rulings Parties: Jane Doe 1 Jane Doe 2 (Plaintiffs) Shane Dowling (Defendant) Representation: Counsel: A.T.S. Dawson SC (Plaintiffs) No appearance (Defendant) Solicitors: Addisons Lawyers (Plaintiffs) No appearance (Defendant) File Number(s): 2016/373575 EX TEMPORE JUDGMENT - Revised 1. This matter came before me on Wednesday 21 December 2016 in my capacity as vacation judge. For reasons which I then gave ([2016] NSWSC 1909) and I will not repeat - I was persuaded that the case was an appropriate one in which to make an interim injunction, on an ex parte basis, in a defamation case. 2. In accordance with usual practice, I made directions as to short service of the pleadings and the orders I had made, and brought the matter back before me today to give the plaintiff an opportunity to persuade me that the orders I then made should be continued. The reason for this practice is to give the defendant the opportunity to be heard in opposition to the continuation of the orders. 3. When the matter was called for hearing today shortly after 10am, there was no appearance on behalf of the defendant. There was still no appearance after his name was called outside the Court three times in accordance with longstanding convention. 4. I am satisfied from the evidence contained in exhibit A and exhibit B admitted today that Mr Dowling was duly served in accordance with the orders I had made and is aware of the re-listing of the matter today. That is abundantly clear from the contents of exhibit B. In the circumstances I am satisfied that the defendant has had a fair opportunity to attend court today and to put arguments and, if he wished, evidence before the Court as to what defence he may have to the asserted case of defamation. He has chosen not to take that opportunity. 5. I have spoken about the opportunity afforded to the defendant, but it remains for the plaintiff to persuade me that the injunction I made should be continued in the interim and until final determination of the case. That is so regardless of the category of case in which an interim or interlocutory injunction is granted. 6. In cases of defamation it may be said there are somewhat special rules. It is probably more accurate to say that the general rules are afforded a special application. It is unnecessary to go into the reasons for this which were fully explained by the High Court of Australia in Australian Broadcasting Corporation v O'Neill [2006] 227 CLR 57, for instance, by Gleeson CJ and Crennan J at [66]. I think they may be summarised in this way, if I may quote from my previous decision in Munsie v Dowling [2015] NSWSC 808 at [21]: "It is worth simply reciting that the fundamental reason why the court's powers are exercised with great caution is to uphold the fundamental value of freedom of speech and to bolster the sanctity of a jury's decision on the defence of justification. Normally, at least at the time that ABC v O'Neill was decided, such matters were decided by a jury rather than a judge. However that may be, and bearing that caution firmly in mind, as the joint judgment of Gummow J and Hayne J demonstrates, the usual principles concerning the grant of interlocutory injunctions as established by the joint judgment in Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1; 118 CLR 618 apply." 1. The caution I have referred to informs the application of both limbs of the rule established in Beecham v Bristol. That is to say, the applicant for an interlocutory injunction must satisfy the Court first that he or she has a prima facie case which, if accepted at the trial, will entitle him or her to final relief, and secondly, that the balance of convenience favours granting the injunction. 2. In a defamation case, as I have already pointed out, the application of both those limbs is informed by "great caution" mainly because of the importance of the defence of justification and its part in giving effect to the fundamental value of freedom of speech. The defence of justification is made out by demonstration of the substantial truth of the imputations of which the plaintiff complains. The failure of the defendant to appear has entirely deprived the Court of any opportunity to assess whether such a defence is likely to be made, and if so, whether it has any, and I emphasise 'any', prospect of success at a hearing. Had he appeared and demonstrated on the basis of any credible material that there was likely to be evidence available at the trial to make good the defence, it would have been extremely difficult for the plaintiffs to successfully argue that the interim injunctions made should continue. 3. In the absence of any material whatsoever that suggests the imputations complained of by the plaintiff are true, I adhere to the decision I made on Wednesday 21 December that the injunctions I then granted should be made and should continue. The matter complained of is a flagrant and obvious case of defamation. 4. In the absence of any defence of justification, the plaintiffs have a strong prima facie case. Given the absence of any material from which I might form the view that justification has some prospects at the trial, I am also of the view that the balance of convenience favours granting the injunctions. It is far from clear that the defendant is in a position to pay damages to vindicate the reputations of the plaintiffs if they are successful at the trial. It is also clear that in the context in which the defamatory material was published the statements or representations made about the plaintiffs were entirely gratuitous and not part of the general narrative the writer was providing. Those considerations are, to my mind, made stronger by the publication of exhibit B which repeats, expands and amplifies the prima facie defamatory material originally published. 5. I confirm orders 4, 5 and 6 pronounced on 21 December 2016. 6. Mr Dawson SC also applies for other relief. Substantially that relief relates to what is referred to as a substituted performance order under the terms of r 40.8 Uniform Civil Procedure Rules 2005 (NSW). That rule is in the following terms: "If a judgment requires a person to do an act and the person does not do the act, the court: (a) may direct that the act be done by a person appointed by the court, and (b) may order the person to pay the costs incurred pursuant to the direction." Judgment in this context includes an interlocutory judgment, or order, of the Court. 1. It is obvious from exhibit B that the defendant has no intention whatsoever of complying with the Court's orders. Indeed it is also obvious from exhibit B that he is deliberately defying the orders of the Court. 2. As I was moved to remark in Munsie at [38], "Mr Dowling seems to wear his disregard of this Court's orders as some kind of badge of courage." Now, as then in Munsie, I have no confidence that he will comply with the Court orders that were pronounced on Wednesday. 3. I am persuaded that the power in r 40.8 has particular application to a case like this where there is a long history of a certain defiance on the part of a person to whom orders are directed. 4. Mr Dawson referred me to the decision of Flick J in the Federal Court in Speedo Holdings v Evans (No 2) [2011] FCA 1227. After referring to the relevant authorities at [34], his Honour summarised the purport and intent of the power in this way: "The power, is an essential power especially in those circumstances where one party is refusing or unwilling to cooperate or assist the Court in their resolution of the claims made." 1. Like Flick J at [35], I am convinced in this case that the conduct of Mr Dowling, "as has been brought to the attention of the court establishes that [he] has no intention of either actively defending the case brought against him by the applicants or complying with orders of the Court or otherwise attending in court to provide such assistance as he considers may be appropriate in opposition to the applicants' case." I am persuaded that an order should be made in this case for like reasons. 1. I am informed that a person with the relevant IT skills can be appointed to ensure compliance by removing the offending material from the website remotely. That person, however, does require, it might be regrettable to say, the co-operation of the defendant and it will be necessary for me to make an order that the defendant provide other information which will enable the website to be accessed so that the Court's orders may be carried into effect. 2. I propose to make the orders sought by the plaintiffs as expressed in the short minutes of order handed up by Mr Dawson today. 3. There were two other things I would wish to say before concluding this decision. The first is that the plaintiffs have asked for an order that the matter be referred to the Prothonotary under the Supreme Court Rules 1970, Part 55 r 11, for consideration to be given as to whether proceedings for punishment for contempt of court should be commenced against the defendant. As I have said in the course of these reasons, his conduct has the flavour of deliberate defiance of the orders. In Munsie I summarized some of his history of defiance to previous court orders related to that litigation. As with the exceptional caution applied by the Court in granting interlocutory injunctions in defamation cases the Court too is slow to move to suppress, by proceedings for contempt, what might be legitimate comment and discussion of its powers and how they are exercised. The Court is of course a public institution forming the third branch of government in this State. It operates under the open justice principle which requires that its proceedings be conducted in public and that members of the public and, of particular significance, members of the press might attend and report upon its proceedings. It is important that the press should not only report but in appropriate cases comment on the way the Court does its business. This is part of the 'disinfecting sunlight' referred to historically as a fundamental reason for the open justice principle. 4. As with all freedoms, freedom of speech should not be a complete licence and the law of defamation and of contempt of court establish appropriately wide boundaries within which the freedom, fundamental as it is, especially in a secular liberal democracy, may be exercised. Nonetheless, there are times, just as in the law of defamation, when practitioners of freedom of speech will cross that line. And when that occurs it is appropriate that the authority of the law and the authority of the Court be vindicated. 5. I am accordingly satisfied that this case is an appropriate one to refer to the Prothonotary so that consideration may be given to, and advice taken about, whether proceedings for contempt should be brought against the defendant. I make no comment on whether they should, or should not, be taken for that is not my role as a Judge of this Court. 6. Finally of substance, and taking up what I have said about freedom of speech, it may be said by some that acceding to an application for an interim injunction in this case effectively decides the case and, having obtained interlocutory orders, the plaintiffs may have no incentive to continue the proceedings to trial. That may be a legitimate expression of concern had it been articulated by someone in the position of the defendant had he taken the opportunity to appear in court to put his side of the story. I have taken this consideration into account in making my decision today. However, if the plaintiffs drag their feet in bringing on the case then the remedy is in the defendant's own hands. If there is undue delay in bringing the matter to trial then the defendant's remedy is to apply for dissolution of the interim orders I have made or to apply for dismissal of the proceedings for want of prosecution. 7. I wish to make it quite clear that in my view exhibit B is covered by the terms of orders 4 and 6 pronounced by me on 21 December 2016. 8. I will make orders in accordance with the short minutes of order handed up by Mr Dawson SC dated today, order 7 as amended by me. 9. I direct that the seal of the Court be affixed to the form of order and that it may be entered forthwith. ********** 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: 09 January 2017