Supreme Court New South Wales Medium Neutral Citation: Capilano Honey Ltd v Mulvany [2017] NSWSC 833 Hearing dates: 16 June 2017 Decision date: 16 June 2017 Jurisdiction: Common Law Before: McCallum J Decision: Defendant referred to the Registrar for referral to a barrister or solicitor on the pro bono panel for legal assistance Catchwords: DEFAMATION – interlocutory injunctions – where defendant consented to interlocutory orders restraining publication of certain representations –defendant unrepresented – defendant seeking to have orders varied so as to permit discussion of nature of claim brought against him for purpose of raising funds to defend the claim – whether application should be dismissed in limine – desirability of obtaining pro bono legal assistance to argue defendant's application Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), r 7.36 Category: Procedural and other rulings Parties: Capilano Honey Ltd (plaintiff) Simon Mulvany (defendant) Representation: Counsel: ATS Dawson SC (plaintiff) Defendant self-represented Solicitors: Addisons (plaintiff) File Number(s): 2016/48481 Judgment 1. HER HONOUR: These are proceedings commenced by Capilano Honey Ltd, a public, listed company, against Mr Simon Mulvany. There is a second plaintiff in the proceedings, Mr Ben McKee, who is the chief executive officer of Capilano. Mr McKee sues Mr Mulvany for defamation. The company sues him for injurious falsehood and misleading or deceptive conduct. 2. The proceedings arise out of a series of statements written by Mr Mulvany broadly concerning the topic of the integrity of Australian honey. Mr Mulvany has a fervent interest in the safety of bees in Australia and holds the view that the importation of honey poses a threat to Australian bees. Whether or not there is any scientific foundation for his concerns is a matter which is not the subject of any evidence before me and as to which I have no knowledge. 3. The proceedings were listed for hearing before Rothman J on 25 May 2017. However, the day before the hearing, Mr Mulvany terminated the services of legal representatives who had agreed to appear for him on a pro bono basis, leaving himself unrepresented for the hearing. On Mr Mulvany's application, Rothman J vacated the hearing date on the basis that Mr Mulvany then consented to interlocutory orders restraining him from publishing specified representations and imputations. 4. On 14 June 2017, Mr Mulvany filed a notice of motion seeking orders vacating one of the orders restraining him from making such publications and permitting him to publish a press release attached to the notice of motion. By the press release, Mr Mulvany seeks to discuss these proceedings, characterising them as a SLAPP. That is a well-known acronym standing for Strategic Lawsuit Against Public Participation. The burden of the allegation is that these proceedings are calculated to shut down Mr Mulvany's discussion, in the public interest, of the integrity of bees in Australia. 5. Today is the first return of the notice of motion. Mr Mulvany, who still represents himself, sought to have the motion heard but has come to Court without any evidence. Mr Dawson SC, who appears for Capilano, submits that the motion may be dismissed, without proceeding to hear evidence or argument, on a number of grounds. 6. First, he submitted, I think correctly, that the Court would not contemplate making an order in terms of order 2 sought in the motion, the effect of which is to invite the Court to give pre-publication legal advice. I accept that the Court would not engage in an exercise of that kind. 7. As to order 1, however, it seems to me that a number of considerations suggest the Court should properly entertain the application. The first is that the orders made by Rothman J, although by consent, were interlocutory. It is always open to a party to move the Court to vary an interlocutory order. The second is that the orders were made at a time when Mr Mulvany was unrepresented, as he remains today. The third consideration is that, upon a review of the terms of the orders, I am persuaded that it is reasonably arguable that, depending on what the evidence shows, they may unduly constrain Mr Mulvany's entitlement to discuss a matter of public interest. Whether or not that is so is something as to which I express no opinion, emphasising, as I already have, that there is no evidence at this stage. It is enough to observe that I think it is reasonably possible that the orders might overreach in some limited extent. 8. Mr Mulvany has, in those circumstances, expressed a desire to obtain further legal representation. He has not previously had the benefit of a referral under the Court's pro bono scheme. He lives in Melbourne and, accordingly, faces an additional cost in participating in the proceedings in that he must travel to Sydney if he wishes to present his case in person, which is ordinarily a more persuasive way of presenting argument. 9. Mr Dawson informed me from the bar table that there is material on the internet revealing that Mr Mulvany has managed to collect something in the order of $23,000 through GoFundMe campaigns to defend these proceedings. I understand it is in the context of his desire to seek such public funding that he wishes to discuss the nature of the proceedings. However, assuming what Mr Dawson asserted is correct, that is a sum which would not cover the cost of legal representation of the calibre on the other side of the bar table. Mr Mulvany tells me that he is a sole parent and sole carer of his son. 10. The proceedings do potentially raise an important question of the kind considered in the SLAPP legislation in some jurisdictions. New South Wales has no such legislation, but it is not beyond the realms of possibility that the question might interest someone with a view to appearing on a pro bono basis. 11. For those reasons, pursuant to r 7.36 of the Uniform Civil Procedure Rules 2005 (NSW), I refer Mr Mulvany to the registrar for referral to a barrister or solicitor on the Pro Bono Panel for legal assistance. The kind of assistance for which the referral is made is confined to advice in relation to Mr Mulvany's notice of motion to vary the injunction by which he is currently restrained and representation at the hearing of that motion. ********** Amendments 26 June 2017 - Decision date corrected in the coversheet. 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: 26 June 2017