Seven Network (Operations) Limited v Dowling [2019] NSWSC 1173

Supreme Court New South Wales

Medium Neutral Citation: Seven Network (Operations) Limited v Dowling [2019] NSWSC 1173 Hearing dates: 4 September 2019 Date of orders: 04 September 2019 Decision date: 04 September 2019 Jurisdiction: Equity Before: Kunc J Decision: Defendant's applications dismissed Catchwords: CIVIL PROCEDURE — Judges — Actual or apprehended bias — Apprehended

CIVIL PROCEDURE — Discovery — Whether necessary for resolution of real issues in dispute

CIVIL PROCEDURE — Interrogatories — Application for — Necessity Legislation Cited: Supreme Court Practice Note SC Eq 11 Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 R v Magistrate's Court at Lilydale; ex parte Ciccone [1973] VR 122 Seven Network (Operations) Limited v Shane Dowling [2018] NSWSC 1890 Category: Procedural and other rulings Parties: Seven Network (Operations) Limited ACN 052 845 262 (First Plaintiff)

Seven West Medial Limited ACN 053 480 845 (Second plaintiff)

Shane Dowling (Defendant) Representation: Counsel:

K Smark SC (Plaintiffs) S Dowling (in person)

Solicitors:

Addisons (Plaintiffs) File Number(s): 2017/116771 Publication restriction: No

EX TEMPORE Judgment (revised)

Summary 1. By statement of claim filed on 31 July 2017 the plaintiffs, Seven Network (Operations) Limited and Seven West Media Limited ("Seven"), sue the defendant, Mr Shane Dowling, to restrain him from using or disclosing certain confidential information. The proceedings relate to Mr Dowling's online activities, principally through a website www.kangaroocourt.com.au, and another website which Seven alleges Mr Dowling owned and operated at the relevant time (the "Other Website"). 2. No defence has yet been filed by Mr Dowling. The complex procedural history of this matter, which is not relevant for present purposes, is recounted by Rees J in paragraphs [3] and following of her Honour's judgment in Seven Network (Operations) Limited v Shane Dowling [2018] NSWSC 1890. 3. By notice of motion filed on 21 July 2017, Seven prosecutes Mr Dowling for contempt (the "Seven contempt motion"). By paragraphs 1 to 5 of a notice of a notice of motion filed on 2 July 2019, Mr Dowling prosecutes Seven and Mr Kerry Stokes, Mr Bruce McWilliam, Mr Tim Worner, Mr Richard Keegan, Mr Keiran Smark SC, Mr Martin O'Connor and Mr Alexander Latu for contempt ("Mr Dowling's contempt motion"). The first three gentlemen are or were senior officers of Seven. The other four are Senior Counsel and solicitors for Seven. 4. Paragraphs 6 to 15 of Mr Dowling's contempt motion seek discovery and interrogatories. It is those paragraphs that were before me for determination today. The balance of Mr Dowling's contempt motion and the Seven contempt motion are listed for hearing before me on 3 December 2019. 5. These reasons deal with two issues. 6. First, when I disclosed to the parties the circumstances in which I knew Mr Bruce McWilliam and his wife Dr Nicky McWilliam, Mr Dowling (who appeared for himself) applied for me to recuse myself on the ground of apprehended bias. I declined to do so because, in my respectful view, my very limited professional and personal contact with Mr McWilliam and his wife is an insufficient basis upon which a fair-minded lay observer might reasonably apprehend that I might not bring an impartial mind to the resolution of these proceedings. 7. Second, the Court will refuse Mr Dowling the discovery and interrogatories which he seeks. This is because what he seeks is bad in form, too broad, unspecified as to time and not demonstrably relevant to any fact in issue in the Seven contempt motion. Therefore, the discovery he seeks is not necessary for the resolution of the real issues in dispute for the purposes of paragraph 5 of Supreme Court Practice Note SC Eq 11. Nor, for essentially the same reasons, are the interrogatories in the form he seeks necessary for the purposes of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) Part 22 r 22.1(4).