Capilano Honey Ltd v Dowling (No 2) [2018] NSWCA 217

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Capilano Honey Ltd v Dowling (No 2) [2018] NSWCA 217 Hearing dates: 19 July 2018 Decision date: 03 October 2018 Before: Beazley P at [1]; McColl JA at [2]; Basten JA at [3] Decision: (1) Grant the applicants leave to appeal from orders (2)-(4) made by McCallum J on 8 June 2018.

(2) Dismiss the appeal.

(3) Order that the applicants pay the respondent's costs in this Court, assessed as a litigant in person.

(4) Stay the operation of orders (2) and (3) for a period of 14 days from the delivery of this judgment.

(5) Direct that there be no publication of the contents of this judgement, while the stay remains in force, except by a party to an Australian lawyer for the purpose of obtaining legal advice or to a judicial officer or court for purposes related to this proceeding. Catchwords: APPEALS – appeal by way of rehearing – grounds of appeal – procedural fairness – where lack of procedural fairness in court below relied on as ground of appeal in appeal by way of rehearing – whether unfairness demonstrated

CIVIL PROCEDURE – interlocutory applications – review of interim and interlocutory orders – where trial judge revoked orders previously made ex parte – whether change of circumstances required to be shown before discretion regarding orders exercised afresh

CIVIL PROCEDURE – interlocutory applications – ex parte –when urgent ex parte orders should be made - obligation of candour and to assist court

DEFAMATION – remedies – interim and interlocutory injunctive relief – suppression orders, take-down orders and injunctive relief – circumstances in which relief should be ordered or revoked – relevance of freedom of expression – relevance of delay in pursuing proceedings – relevance of defendant's ongoing defiance of orders