Supreme Court New South Wales Medium Neutral Citation: Jane Doe 1 v Dowling [2017] NSWSC 57 Hearing dates: 8 February 2017 Date of orders: 08 February 2017 Decision date: 08 February 2017 Jurisdiction: Common Law Before: Beech-Jones J Decision: Orders made in the following terms: 1. Pursuant to Part 55 r.11(1) of the Supreme Court Rules 1970, that the Prothonotary apply by motion, or commence proceedings, against the defendant for punishment of contempt by his conduct: (i) in making allegations about Registrar Bradford and judges of the Supreme Court of New South Wales ('the allegations') in open court before Registrar Bradford on 3 February 2017; (ii) in contravening order 1 of the orders made by his Honour Justice Beech-Jones on 3 February 2017 by disclosing the contents of Exhibit 1 to persons other than the parties without leave of the Court; and (iii) in contravening order 2 of the orders made his Honour Justice Beech-Jones on 3 February 2017 by publishing: (a) the content of the allegations; (b) that Mr Bradford and judges of the Supreme Court of New South Wales were the subject of the allegations; and (c) that the allegations were made. 2. Order 1 made on 3 February 2017 (at 3:00pm) be vacated. 3. In lieu thereof, pursuant to s 7(b) of the Court Suppression and Non-publication Orders Act 2010 and pending further order, publication of the contents of Exhibit 1 tendered on 3 February 2017 be suppressed (save for the proper purposes of the proceedings and any related contempt proceedings). 4. Pursuant to s 7(b) of the Court Suppression and Non-publication Orders Act 2010 and pending further order, publication of the contents of the affidavit of Jillian Caldwell affirmed on 8 February 2017 be suppressed (save for the proper purposes of the proceedings and any related contempt proceedings). 5. Orders 3 and 4 are made on the grounds of s 8(1)(a) of the Court Suppression and Non-publication Orders Act 2010. 6. Orders 3 and 4 apply throughout the Commonwealth. The Court further ordered that: 7. Any motion or fresh proceedings commenced against Mr Dowling for punishment for contempt in the respects identified in the orders made today, shall be made first returnable before a judge of this Division and not a Registrar. Catchwords: CONTEMPT – application under Part 55 rule 11(1) of Supreme Court Rules – direction to Registrar to commence proceedings for contempt – notice given to defendant of proposed orders – defendant did not attend –orders made Legislation Cited: Supreme Court Rules 1970 Court Suppression and Non-publication Orders Act 2010 Category: Procedural and other rulings Parties: The Prothonotary of the Supreme Court of NSW (Applicant) Jane Doe 1 (First Plaintiff) Jane Doe 2 (Second Plaintiff) Shane Dowling (Defendant/Respondent) Representation: Counsel: MT England (Applicant) K Smark (Plaintiffs) No Appearance (Defendant/Respondent) Solicitors: Crown Solicitor's Office (Applicant) Addisons (Plaintiffs) Self-Represented (Defendant/Respondent) File Number(s): 2016/383575 EX TEMPORE Judgment 1. HIS HONOUR: Listed today before me is the return of two Notices of Motion seeking orders under Part 55 rule 11(1) of the Supreme Court Rules 1970 that the Court, by order, direct the Prothonotary to apply by motion or commence proceedings against the defendant, Shane Dowling, for punishment for contempt. 2. As I will explain, Mr Dowling has been placed on notice that these orders will be sought and has decided not to attend today. He has given reasons for his non‑attendance which I will describe. 3. First, however, it is necessary to set out the background to the two motions. There is, in this Division, proceedings on foot between two plaintiffs, whose names have been suppressed, and Mr Dowling, being proceedings number 2016/383575. It is not necessary to describe the subject‑matter of those proceedings. 4. Those proceedings were listed before a Registrar of this Court on Friday 3 February 2017 for the return of two Notices of Motion. One of the Notices of Motion sought to strike out Mr Dowling's Defence. The other Notice of Motion sought to punish him for contempt. The transcript records that when the motions were called on before the Registrar at 9:30am, Mr Dowling made scurrilous and groundless allegations against judicial officers. 5. The matter was then referred to me as Duty Judge at 10:00am. When the matter was called on before me at 10:00am, there was no reference made to Mr Dowling's conduct before the Registrar. Orders were made which had the effect of standing over both Notices of Motion in the substantive proceedings to the Duty Judge's list this Friday. 6. Upon the transcript of the proceedings before the Registrar becoming available, the Prothonotary applied to me as Duty Judge at 3:00pm that day for a suppression order in respect of the statements made by Mr Dowling and for an order under Part 55 rule 11(1) which provides: "Where it is alleged, or appears to the Court on its own view, that a person is guilty of contempt of the Court or of any other Court, the Court may, by order, direct the Registrar to apply by motion for, or to commence proceedings for punishment of the contempt." 1. As Mr Dowling did not attend at 3:00pm that afternoon, I considered it prudent to stand over that motion to today at 3:30pm to give him the opportunity to consider his position. A telephone message had been left with Mr Dowling that day advising that the matter was to be listed at 3:00pm although it is not clear whether he received the message prior to that application being made. 2. Following my standing over the balance of the Notice of Motion, the solicitor for the Prothonotary wrote an email at 6:17pm on 3 February 2017 advising Mr Dowling of what had occurred and the fact that the balance of the Notice of Motion had been stood over to today. The email advised Mr Dowling: "[a]t that hearing, an order will be sought that the Prothonotary apply by motion, or commence proceedings, for punishment for contempt in relation to your conduct in Court this morning." 1. Mr Dowling responded to that email on Monday, 6 February 2017 at around 11:28am. The content of that email makes it clear that he was by that stage aware of the hearing today and the nature of the application. He complained that he had to work and he could not be there on short notice. Shortly after that, the solicitor for the Prothonotary, Ms Caldwell, searched a website maintained by Mr Dowling which made reference to what had occurred before me on the afternoon of 3 February 2017 including the suppression order I had made in respect of the events that occurred before the Registrar on the morning of 3 February 2017. Despite that, the website also displayed an audio visual recording that Mr Dowling had apparently taken of what had occurred before the Registrar. Leaving aside any question about his conduct in making the recording in the first place, this appears to be prima facie a breach of the suppression order. The website also recounted details of what had occurred before the Registrar. 2. Having viewed this and sought instructions, another Notice of Motion was filed seeking further orders under Part 55 rule 11(1) requiring the commencement of proceedings against Mr Dowling in respect of his conduct in allegedly breaching the suppression order that had been made on 3 February 2017. That Notice of Motion was initially returnable before me yesterday morning. I ordered that it stand over to today and directed that Mr Dowling be advised that that proposed order would be considered today. I also directed that the materials in support of it be brought to his attention. 3. Consistent with the orders for service that were made, Ms Caldwell telephoned Mr Dowling at 11:42am on 7 February 2017 and advised him that a further motion seeking orders that contempt proceedings be commenced against him was returnable this afternoon. A file note of that conversation records that Mr Dowling again complained that he could not get time off work and that it was inconvenient for him to attend bearing in mind that he had to attend Court in the substantive proceedings this Friday. 4. Just prior to that conversation, Ms Caldwell had sent Mr Dowling an email attaching all the materials concerning the further motion filed that morning. This email also included the following which recounted statements made by me in Court: "In giving reasons for making the above orders, Beech‑Jones J referred to the fact that you indicate in the article that you are unable to attend the hearing tomorrow due to work commitments. His Honour noted that, if the orders sought by the Prothonotary are made, this will set in train very serious proceedings against you for criminal contempt. His Honour stated that you are best advised to focus on the Prothonotary's applications and attend Court tomorrow. His Honour also stated that a consideration of whether to make the orders sought in the Prothonotary's motion will proceed tomorrow whether or not you are in attendance." 1. Otherwise, I note that one of the complaints made by Mr Dowling about the listing of the matter today is that he has to attend Court this Friday in relation to the substantive proceedings. What he fails to appreciate is that the orders, if made, will have the effect that separate proceedings will be commenced against him, all of which have their genesis in his conduct before the Registrar on the morning of 3 February 2017. 2. Generally, having regard to the notice that has been given to Mr Dowling, the seriousness of the allegations against him and the fact that he is clearly on notice of what orders will be sought, why they will be sought and the potential consequences for him if the proceedings are pursued, I consider that he has had more than adequate notice to attend today and argue why they should not be made. Otherwise there is a strong interest in ensuring that an allegation of contempt arising out of conduct of a person in Court should be dealt with as soon as possible, provided the relevant person has a fair opportunity to be heard. 3. The power conferred by Part 55 rule 11(1) arises where it is alleged, or it appears to the Court on its own view, that a person is guilty of contempt. The conduct of Mr Dowling before the Registrar as revealed by the transcript, certainly answers that test. Further, the fact that, in full knowledge of the existence of a suppression order, he nevertheless appears to have published on his website the very material that was the subject of the order again appears to more than satisfy the requirements of that rule. 4. Accordingly, in my view the orders sought under Part 55 rule 11(1) should be made. Otherwise, I note that the Short Minutes of Order sought by the Prothonotary include suppression orders under s 7 of the Court Suppression and Non-publication Orders Act 2010. In respect of Exhibit 1 tendered on 3 February 2017, being the transcript of the hearing before the Registrar, and the contents of the affidavit of Ms Caldwell affirmed on 8 February 2017 and read on this application, the basis for the making of those orders was set out in the reasons I gave on the afternoon of 3 February 2017. That suppression order does not extend to these reasons. 5. Accordingly I will make Orders 1 to 6 in the Short Minutes of Order that I will initial and date today and place with the papers. 6. I will also make a further order, namely that any motion or fresh proceedings that are commenced against Mr Dowling for punishment for contempt in the respects identified in the orders I have just made shall be made first returnable before a Judge of this Division and not a Registrar ********** Amendments 15 February 2017 - Correction made to counsel's name 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: 15 February 2017