Supreme Court New South Wales Medium Neutral Citation: Seven Network (Operations) Limited v Dowling [2019] NSWSC 1760 Hearing dates: 2 and 3 December 2019 Date of orders: 03 December 2019 Decision date: 03 December 2019 Jurisdiction: Equity Before: Kunc J Decision: Second application to recuse denied; Cross-vesting of plaintiff's contempt action refused; Adjournment pending determination of defendant's legal aid application granted; Defendant's contempt motion stayed pending provision of properly particularised statement of charge Catchwords: CIVIL PROCEDURE — Cross-vesting — Transfer to other Supreme Court — Public policy that contempt should be determined by court whose orders allegedly breached CIVIL PROCEDURE — Hearings — Adjournment — Belated application by defendant for adjournment of contempt hearing pending determination of application for legal aid CIVIL PROCEDURE — Judges — Actual or apprehended bias — Apprehended — Second application — No new facts or facts that could not have been discovered with reasonable diligence at time of first application CONTEMPT — Procedure — Requirement for statement of charge to be drawn with specificity Legislation Cited: Jurisdiction of Court (Cross-Vesting) Act 1987 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Capilano Honey Ltd v Mulvany (Number 3) [2018] NSWSC 767 Doe v Dowling [2017] NSWSC 1037 Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 Matthews v Australian Security and Investments Commission [2009] NSWCA 155 R v Warwick (No 64) [2019] NSWSC 163 Seven Network (Operations) Ltd v Dowling [2019] NSWSC 1173 Seven Network (Operations) Limited v Dowling [2018] NSWSC 1890 Category: Procedural and other rulings Parties: Seven Network (Operations) Limited (ABN 65 025 845 262) (First Plaintiff) Seven West Media Limited (ABN 91053 480 845) (Second Plaintiff) Shane Dowling (Defendant) Representation: Counsel: K Smark SC (Plaintiffs) S Dowling (Defendant) Solicitors: Addisons Lawyers (Plaintiffs) File Number(s): 2017/116771 Publication restriction: None EX TEMPORE Judgment (revised) 1. I have before me for hearing four notices of motion: 1. The plaintiffs' ("Seven") notice of motion filed 21 July 2017 against the defendant ("Mr Dowling") for contempt ("Seven's Contempt Motion"); 2. Mr Dowling's notice of motion filed 2 July 2019 against Seven for contempt ("Mr Dowling's Contempt Motion"); 3. Mr Dowling's notice of motion filed in Court on 2 December 2019 but dated 26 November 2019 for various relief ("Mr Dowling's Motion"); 4. Seven's notice of motion filed in Court on 3 December 2019 but dated 28 November 2019 for the stay or dismissal of Mr Dowling's Contempt Motion for want of adequate particularisation ("Seven's Motion"). 1. Mr K Smark of Senior Counsel appeared for Seven. Mr Dowling appeared for himself by telephone. Prayer 1 of Mr Dowling's Motion 1. Prayer 1 of Mr Dowling's Motion seeks: "Justice Kunc stand down from hearing the matter for perceived bias and actual bias." 1. An allegation of actual bias is an extremely serious allegation which requires quite specific evidence to warrant a finding on the Briginshaw standard that a judge is in fact actually biased. Nothing has been demonstrated by Mr Dowling either on the previous occasion, to which I shall refer shortly, when I looked at this question or today (see paragraph [6] below) that could possibly make out an allegation of actual basis. 2. Turning to the question of perceived bias, I considered the relevant principles in dealing with Mr Dowling's earlier application on 4 September 2019 to the same effect: Seven Network (Operations) Ltd v Dowling [2019] NSWSC 1173 ("my earlier decision"). 3. The matters upon which Mr Dowling has relied for the application today are, as best as I have been able to record them, the following: 1. He has been the victim of bullying by Court staff and, in particular, Sheriff's Officers, including by their presence in my Court on an earlier occasion. On that occasion, Mr Dowling complained to me about the presence of those officers and I asked them to leave the Court. Mr Dowling remains concerned that the officers did not leave the floor but were apparently just outside the door of the Court when the Court adjourned and Mr Dowling left. 2. Mr Dowling says that he received a visit from police on 15 May 2019 concerning emails that he was alleged to have sent to judges of the Court. 3. Mr Dowling has not been allowed fee waivers on previous occasions in relation to applications he has wanted to make to the Court. 4. Mr Dowling is not allowed online access to the Court. 5. On some earlier occasion, Sackar J refused an application made by Mr Dowling for his Honour to recuse himself by reason of his Honour's alleged connections to Mr Bruce McWilliam and Dr Nicki McWilliam. Their relevance to the present application will be understood if, as should be the case, these reasons are read with my earlier decision. 6. Mr Dowling asserts, as is the fact, that I know other judges of the Court, including the Chief Justice, about whom he has made serious allegations. He says that I am a part of that Court. That is true. He also says that I am part of the Court which convicted him for contempt and sentenced him to a period of imprisonment. Those matters taken together he says are sufficient to demonstrate that I, by reason of knowing those other judicial officers, would not be understood to be able to bring an unbiased mind to the present application. 7. Mr Dowling has said words to the effect that "everything Seven Network wants they have got". In connection with that he has drawn to attention recent communications between Seven's lawyers and my Associate, including in relation to the listing of the motions. 8. Mr Dowling has described me as a "senior member of the Catholic Church" which he says has been "running the world's largest paedophile ring for decades" and has drawn to attention that I hold a civil honour conferred by the Pope. 9. Mr Dowling says there has not been adequate answer to his question as to why Seven subpoenaed certain police records some time ago. 1. There is a preliminary hurdle in relation to most of the matters which I have listed which, in my respectful opinion, Mr Dowling has failed to overcome. My earlier decision was interlocutory. Interlocutory decisions may be revisited where there has been a material change in circumstances. Those circumstances are either circumstances which have arisen after the date of the earlier decision or which could not have been discovered with reasonable diligence at the time of the earlier decision. 2. As I understand the various matters of which Mr Dowling complains, all of them (with the exception of those that I shall consider separately in a moment) arose before 4 September 2019 and were therefore available to be relied upon by Mr Dowling at the hearing which resulted in my earlier decision, but he did not do so. Similarly, at least in relation to the allegation concerning my connection to the Catholic Church, that is a matter that could have been discovered at the time of my earlier decision – as Mr Dowling accepts he in fact did more recently – by a simple Internet search of my name. 3. Therefore, subject to what I am about to say, none of the matters upon which Mr Dowling relies are matters which would warrant revisiting my earlier judgment of 4 September 2019. 4. The exceptions to what I have just said seem to be the following matters. 5. First, what occurred with the Sheriff's Officers happened on the same day but after I had delivered my earlier decision on 4 September 2019. I am not persuaded that a reasonable observer of the kind postulated in the leading case of Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 would draw from the fact that the Sheriff's Officers apparently remained outside the door of my Court as leading to a reasonable apprehension that I might not bring an impartial mind to the resolution of the issues now before me. 6. Second, in so far as there have been recent communications between Seven's solicitor and my Associate, all of those communications have been entirely in accordance with the ordinary practice of parties contacting a judge's chambers in relation to administrative and listing matters (which a reasonable observer would be taken to know), noting especially that all of the communications were copied to Mr Dowling. Furthermore, as Mr Smark SC points out, there was nothing reserved before me at the time of these communications. In short, I am unable to accept Mr Dowling's submission that there was anything improper about those communications. 7. Third, Mr Dowling made reference to email correspondence he has recently had making enquiries of Dr McWilliam as to the nature of what he describes as her relationship with me. The circumstances of my knowledge of Dr McWilliam are fully set out in my earlier decision and there is nothing in the response received (presumably on behalf of Dr McWilliam) from Seven's lawyers that adds any new fact to the matters which I previously disclosed. In those circumstances, the reasons why I did not accept my knowledge of Dr McWilliam to have been sufficient to disqualify myself in my earlier decision remain just as applicable today. 8. For these reasons I dismiss Prayer 1 of Mr Dowling's Motion. Prayer 2 of Mr Dowling's Motion 1. Prayer 2 of Mr Dowling's Motion seeks: "2 The matter be transferred to the Supreme Court of Queensland. See precedents (sic): (See precedent Capilano Honey Ltd v Mulvany (No 3) [2018] NSWSC 767 (30 May 2018))." 1. That application invokes section 5(2) of the Jurisdiction of Court (Cross-Vesting) Act 1987 (NSW) (the "CVA") which relevantly provides: "(2) Where: (a) a proceeding (in this subsection referred to as the relevant proceeding) is pending in the Supreme Court of a State or Territory (in this subsection referred to as the first court); and (b) it appears to the first court that: (i) the relevant proceeding arises out of, or is related to, another proceeding pending in the Supreme Court of another State or Territory and it is more appropriate that the relevant proceeding be determined by that other Supreme Court; (ii) having regard to: (A) whether, in the opinion of the first court, apart from this Act and any law of a State relating to cross vesting of jurisdiction, the relevant proceeding or a substantial part of the relevant proceeding would have been incapable of being instituted in the first court and capable of being instituted in the Supreme Court of another State or Territory; (B) the extent to which, in the opinion of the first court, the matters for determination in the relevant proceeding are matters arising under or involving questions as to the application, interpretation or validity of a law of the State or Territory referred to in sub subparagraph (A) and not within the jurisdiction of the first court apart from this Act and any law of a State relating to cross vesting of jurisdiction; and (C) the interests of justice; it is more appropriate that the relevant proceeding be determined by that other Supreme Court; or (iii) it is otherwise in the interests of justice that the relevant proceeding be determined by the Supreme Court of another State or Territory; the first court shall transfer the relevant proceeding to that other Supreme Court." 1. With no disrespect intended, Mr Dowling's submissions may be shortly summarised. The primary basis for his submission is that since 7 November 2019 he has relocated his permanent residence to Queensland. Mr Dowling submitted that Seven is a large and wealthy corporation with offices in Brisbane and that it could retain the same lawyers who had been appearing for it to date in these proceedings in Sydney. 2. He also drew attention to the fact that, in his words, there had been "no attempt to progress" the underlying proceedings and that, therefore, there would be no prejudice in the transfer. Insofar as the two contempt motions within the proceedings are concerned, he submitted, essentially for all of the reasons that he had relied on in relation to his application that I should recuse myself, that it was plainly in the interests of justice for the contempt motions to be heard in another court. 3. Mr Smark SC submitted, in relation to the proceedings generally, that it was not in the interests of justice for the purposes of s 5(2) of the CVA for the contempt motions to be transferred. In relation to the proceedings generally, he submitted that they had already been on foot for a number years. Insofar as there had been no underlying progress in the matter, that was because the underlying proceedings had been put "on hold" while the contempt motions were dealt with. He also submitted that, as was plainly the fact, Mr Dowling had only recently moved to Queensland and it would be inappropriate for a litigant to be able to, as it were, "self-select" the jurisdiction by voluntarily moving from one state to another. 4. Insofar as the contempt motions were concerned, Mr Smark SC drew the Court's attention to the only authority of which the parties were aware in which the prospect of cross-vesting contempt motions was considered. In Capilano Honey Ltd v Mulvany (Number 3) [2018] NSWSC 767 ("Capilano Honey") McCallum J (as her Honour then was) said: "34. The complication is this. At the conclusion of argument on the first day of the hearing of Mr Mulvany's application (4 May 2018), the plaintiffs raised "one final matter", which was that a motion had been filed that morning (but not yet served) seeking to have Mr Mulvany dealt with for contempt of court on the basis that he had disobeyed and in some respects continued to disobey the orders of Rothman J. I do not understand why that issue was raised last, not first, at the hearing of the cross-vesting application. It introduced a significant complexity. An allegation of contempt of court should ordinarily be dealt with promptly, to preserve the integrity of the Court. Further, this Court is clearly the "more appropriate" Court to determine a question of contempt of its own orders. Indeed, it is doubtful whether the Court of another State would have authority to determine that question." 1. Mr Smark SC submitted that, as a matter of principle, what her Honour said was correct. He accepted that, in the unusual circumstances of the case before her Honour, she had ultimately decided that the proceedings should be cross-vested. However, her Honour clearly left open the prospect that the contempt motion in those proceedings would be deferred until after the final hearing of the civil proceedings, although with a separate summons in this Court (see Capilano Honey at [52]). There were, he submitted, no such extraordinary circumstances in these proceedings as would justify cross-vesting the contempt motions. 2. Finally, Mr Smark SC submitted that the inference which the Court should draw from the application being brought at this time was Mr Dowling was simply attempting "to avoid the evil day". In that regard, he reminded the Court that on the last occasion, when I had stressed to Mr Dowling that he would be able to advocate his position to its best advantage were he personally present, Seven had offered to pay Mr Dowling's reasonable accommodation and travel costs to enable him to attend today's hearing. For whatever reason, Mr Dowling has declined that offer. 3. I accept Mr Smark SC's submissions, with one qualification to which I will come in a moment. 4. I am presently charged with hearing the contempt motions and, in my respectful view, those are the matter upon which I should focus. I respectfully adopt what was said by McCallum J in Capilano Honey. Whether it is a question of jurisdiction or how the jurisdiction is to be exercised (a matter I need not decide at present) it is difficult to imagine a set of the circumstances where it would be "in the interests of justice" for a court other than the court whose orders are alleged to have been contemptuously breached to determine a contempt motion. That is certainly the case before me. 5. I can see no proper basis on which it could be said to be in the interests of justice for the two contempt motions presently before the Court to be cross-vested to Queensland. In that regard, I also note that Mr Dowling has not, beyond making assertions in the course of submissions, attempted to demonstrate by proper evidence why it is that he could not come to Sydney for the hearing of the motions. For example, he has not suggested that he is medically unfit. Nor has he adduced any evidence of his financial condition or pressing responsibilities in Queensland that might make it impossible for him to attend a hearing in Sydney. 6. The qualification which I express to my acceptance of Mr Smark SC's submissions is that I think it is premature in all of the circumstances for the Court to rule on Mr Dowling wider application for the underlying proceedings (in distinction to the two contempt motions) to be transferred to Queensland. 7. Conformably with the views expressed by McCallum J in Capilano Honey, the contempt motions have taken priority in the ongoing management of these proceedings. That is, in my respectful view, entirely the right thing to have happened. While the Court will dismiss Prayer 2 of Mr Dowling's Motion, I will make clear that dismissal is without prejudice to Mr Dowling's ability to bring a further cross-vesting application in relation to the underlying proceedings once the contempt motions have been finally resolved. Prayer 4 of Mr Dowling's Motion 1. It is logical next to deal with Prayer 4 of Mr Dowling's Motion, which seeks: "4 If order 2 fails, an interstate judge should be appointed to hear the matter." 1. It will be unnecessary for me to enter into the question as to whether or not I have power or jurisdiction to make the orders sought in that Prayer. But, assuming for present purposes that I did have both jurisdiction and power to do so, I would not exercise it in this case. 2. Mr Dowling was correct in his submissions that it has been the practice of courts in this State that when a judge who is a member of that court is a party to proceedings before that court, then generally a judge or judges will be brought in from interstate to determine the matter. The reasons for doing so, having regard to the principles concerned with reasonable apprehension of bias which I set out in my earlier decision, make the reasons for that practice obvious. However, no judge of this Court is a party to these proceedings, in particular to the two contempt motions with which I am presently concerned. 3. Mr Dowling seeks to overcome that difficulty with the allegation that the hearing of the motions will involve, in a way that I do not presently understand, allegations in subpoenaed material which Mr Dowling has made against the Chief Justice and other judges of this Court. Earlier in my reasons I referred to those allegations as "serious". Mr Dowling has submitted that my failure to have described them precisely is another indicium of bias against him. I do not accept that submission and, lest there be any doubt, I record that those allegations are that those judicial officers are paedophiles. In my respectful view, the fact that this kind of subpoenaed material recording allegations made by Mr Dowling in relation to those judicial officers could in some way (which Mr Dowling has not specified) be relevant to the determination of the contempt motions is insufficient to warrant the appointment of an interstate judge to hear the contempt motions. 4. I accept Mr Smark SC's submission that for all of the reasons I have already given in relation to why I declined to recuse myself and why I have declined to transfer the contempt motions to Queensland, there is no proper basis for any interstate judge to be appointed to hear the contempt motions. To this I would add that, in addition to me, there remains a large enough number of judges of this Court who are not the subject of any allegations by Mr Dowling. Putting it simply, it seems to me that there are still a large number of judges of this Court who would be able to deal with this matter were I not able to do so. For those reasons, Prayer 4 of Mr Dowling's motion is refused. Prayer 3 of Mr Dowling's Motion 1. Prayer 3 of Mr Dowling's Motion seeks: "3 The matter is stayed pending a final decision of my application for legal aid as per the Legal Aid Commission Act." 1. Mr Dowling's evidence was that he had applied late last month for Legal Aid in relation to defending Seven's Contempt Motion. Mr Dowling submitted that there were three reasons why the matter (which for present purposes means Seven's Contempt Motion) should be stayed. He submitted that Seven had "only recently flagged that it intended to seek a custodial sentence". He also said that he had assumed the proceedings would be transferred to Queensland. Building on this last point, Mr Dowling's third submission was that in circumstances where he was not able to be present in person here in Sydney, it was even more important that he should have legal representation to protect his interests at a contempt hearing to be held in Sydney. 2. Mr Smark SC drew attention to the fact that Seven's Contempt Motion had been filed in 2017. It had been fixed on 3 July 2019 by the Registrar for hearing today. That is to say, Mr Dowling has been on notice since on or about 3 July 2019 that the motion would be heard today. Mr Smark SC submitted that the principal difficulty for Mr Dowling was that there was a complete silence in his evidence or his submissions as to why he had not applied for Legal Aid earlier than late last month. 3. Mr Smark SC further submitted that Mr Dowling's concern about apparently only recently having realised that a custodial sentence could be sought did not sustain scrutiny. He submitted that the original orders containing a penal notice (breach of which was said to constitute the contempt) were served on Mr Dowling on or about 27 April 2017. Mr Dowling disputed that. In any event, Mr Dowling knew from earlier proceedings (Doe v Dowling [2017] NSWSC 1037) that imprisonment was a consequence for a finding of contempt because he had in fact served four months imprisonment pursuant to that judgment. It was, Mr Smark SC submitted, inconceivable that Mr Dowling would not have realised that imprisonment was a possible consequence of the finding of contempt. 4. There can be no doubt that Mr Dowling is more than familiar with the process of applying for Legal Aid. He said so much himself on the last occasion before me (22 November 2019) where he said ( T17:46-T18:6): "DEFENDANT: Yeah, I think they maybe in relation to the second application, which is mine, so you might have grounds, but the first application, no, I'm entitled to Legal Aid, they flagged they wanted me gaoled for the contempt proceedings. I'm entitled to be represented and apply for it, and I know that process very well because I had to do it in that in the..(not transcribable)..matter where I went to gaol last year for four months. I was convicted of calling Clifton Hoeben J a paedophile, which he never refuted too, I might add, but I did four months' gaol and I know that process well because it was a very longwinded process trying to fight for Legal Aid, but I am entitled to have it adjourned until they determine whether I can get Legal Aid or not. Ultimately I did get Legal Aid." 1. Furthermore, Mr Smark SC drew my attention to what had been said by Rees J in Seven Network (Operations) Limited v Dowling [2018] NSWSC 1890: "27. On 28 February 2018, the defendant communicated with the Associate to His Honour Kunc J advising that he had just been approved for Legal Aid and Legal Aid was in the process of briefing counsel. The defendant asked that the hearing the next day be adjourned. His Honour adjourned the hearing to 10 April 2018. 28. On 10 April 2018, the defendant appeared but without legal representation. The defendant informed his Honour that his legal representation had in fact been approved for another matter which had resolved. …" 1. He also contended that Mr Dowling had appeared for himself in previous contempt matters. That submission, as I understood it, went both to Mr Dowling's knowledge of the possibility of imprisonment as an outcome of a contempt motion, as well as his capacity to defend himself without legal representation if it were necessary to do so. 2. Finally, by way of a complete response to Mr Dowling's adjournment application, Mr Smark SC submitted that there was every reason to think that Mr Dowling had delayed making his Legal Aid application with the express intention of derailing the present hearing. 3. There is a great deal of force in Mr Smark SC's submissions. In the ordinary course of a piece of civil litigation I would regard Mr Dowling's conduct as completely unacceptable and would not normally accede to an application for a stay (or as I shall shortly come to, an adjournment) in the circumstances which Mr Dowling has now brought about by his tardy application for Legal Aid. 4. Mr Smark SC drew to my attention a convenient summary of the principles in relation to stays for want of legal representation set out in the judgment of Garling J in R v Warwick (No 64) [2019] NSWSC 163: "20. Speaking generally, in order to obtain a stay of a criminal trial, the accused has the onus to prove: 1. that he or she is indigent; 2. that he or she is unable to obtain legal representation; 3. that to proceed without representation would render the trial of a serious criminal offence unfair; and 4. that he or she has not conducted themselves in a way which has unreasonably brought about any of these circumstances. 21. These general statements require some elaboration but in the application of the authorities discussed below, it is necessary to keep in mind the following overarching contextual considerations: 1. the attributes of a fair criminal trial cannot be, and have not been, listed exhaustively: Dietrich at 300 per Mason CJ and McHugh J; 2. the requirement of fairness is independent from, and additional to, the requirement that a trial be conducted in accordance with law: Dietrichat 363 per Gaudron J; 3. the inquiry as to whether a trial will be fair necessarily depends upon the circumstance of the particular case, but that does not mean that the Court exercises its inherent powers according to idiosyncratic notions of what is fair and just: Dietrich at 364 per Gaudron J; 4. a trial is not necessarily unfair because it is less than perfect (Dietrich at 365 per Gaudron J; Jago at 49 per Brennan J) or else simply because evidence which once existed has been lost or destroyed, or else because less than all of the material which could relevantly bear on the matter is available: R v Edwards [2009] HCA 20; (2009) 255 ALR 399 at [31]; 5. it is of fundamental importance that unless the interests of justice demand it, courts should exercise their jurisdiction particularly to try individuals charged with serious criminal offences: Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509 at 519 per Mason CJ, Dawson, Toohey and McHugh JJ; and 6. in judging fairness, the interests of the Accused cannot be considered in isolation without regard to the community's right to expect that persons charged with a criminal offence are brought to trial: Jago at 33 per Mason CJ; Barton v The Queen [1980] HCA 48; (1980) 147 CLR 75 at 102 per Gibbs ACJ and Mason J. 22. Ordinarily, where a person charged with an indictable offence is indigent and unrepresented, they will be denied a fair trial: Dietrich at 337 per Deane J. These assumptions arise from the adversarial nature of a criminal trial, the complicated and obscure nature of criminal laws and rules governing evidence and the forensic contest that takes place between parties: Dietrich at 370 per Gaudron J. … 25. An Accused is regarded as indigent when the value of their assets and income fall "…well short…" of what is required to conduct a trial: R v Macdonald (No 4) [2016] NSWSC 486 at [95]. In order to be regarded as indigent, it should not be considered necessary for a person to charge their home to pay their legal expenses in a criminal trial: R v Joyce [2003] NSWCCA 280 at [23] per Shaw J. 26. Further, it is expected that an Accused will demonstrate they have been refused Legal Aid and other pro bono assistance: Craig v State of SA [1995] HCA 58; (1995) 184 CLR 163. 27. Any effort by the accused to establish that he or she is indigent will be undermined if full financial disclosure is not forthcoming: Macdonald (No.4) at [104] and [111]." 1. I should immediately observe that Mr Dowling has not tendered any evidence that would satisfy the requirements that he is indigent as set out in the preceding paragraph. Furthermore, as appears from paragraph [26] of his Honour's reasons, a refusal of Legal Aid appears to be a condition precedent generally to satisfy the Court that an accused is indigent for the purposes of a stay of criminal proceedings. There can be no doubt, in my view, that similar principles would apply in this case given the criminal or quasi-criminal nature of a contempt proceeding. 2. While Mr Dowling has therefore not satisfied me of the necessary elements warranting a stay, it is nevertheless necessary to consider his application as one for an adjournment. As I have said, in ordinary civil litigation I would not regard the arguments he has presented as warranting an adjournment. His suggestion that it was "only recently flagged" that a custodial sentence might be sought has not been able to be established by examining the transcript of the last two directions' hearings before me. Nor would I regard the fact that he had assumed the matter would be transferred to Queensland as sufficient to justify an adjournment now. I accept Mr Smark SC's submission that there can be no doubt that Mr Dowling would have always understood (by which I mean certainly since the time these proceedings were set down in July) that a possible consequence of a finding of contempt would be imprisonment. I also accept, as was set out in the extract from McCallum J's judgment in paragraph [20] above, that in general contempt applications should be dealt with expeditiously. In that regard, while Seven's Contempt Motion was set down for hearing in July of this year, I have taken into account that they have in fact been on foot since 2017. 3. Nevertheless, this is not ordinary civil litigation. While Seven's Contempt Motion is brought, as it were, by a private prosecution, it has a significant public interest element. Given the public interest element of this type of litigation and the potentially serious consequences including a custodial sentence, in my respectful view the overriding consideration is that justice must not only be done but that it must be seen to be done. In the present circumstances this means that Mr Dowling should be given, even at this very late stage, an opportunity to obtain legal representation. As he knows from his previous experience, the consequences of a finding of contempt can be very serious. It is also desirable, from the point of view of the efficient conduct of litigation, for parties to be represented whenever they can be, rather than attempting to conduct difficult and complex litigation by themselves. 4. For these reasons, I am satisfied, albeit not without a considerable degree of reluctance, that the correct exercise of the Court's discretion is for Mr Dowling to be granted an adjournment of Seven's Contempt Motion in order to ascertain whether he is able to obtain Legal Aid. Prayer 5 of Mr Dowling's Motion 1. Prayer 5 of Mr Dowling's Motion seeks: "5 The matter and the notice of motion be struck out for want of prosecution as the applications where (sic) both filed in 2017 and there is no excuse why they haven't been heard." 1. I have approached this aspect of the matter on the basis that Mr Dowling relies on UCPR Part 12 rule 12.7: "12.7 Dismissal of proceedings etc for want of due despatch (1) If a plaintiff does not prosecute the proceedings with due despatch, the court may order that the proceedings be dismissed or make such other order as the court thinks fit. (2) If the defendant does not conduct the defence with due despatch, the court may strike out the defence, either in whole or in part, or make such other order as the court thinks fit." 1. These proceedings were commenced on 19 April 2017 with Mr Dowling becoming a party to them on or about 23 June 2017. Part of Mr Dowling's attack on the proceedings is his description of them as "SLAPP" litigation, which he has explained to me stands for "Strategic Lawsuit Against Public Participation". He says this is a type of lawsuit brought by a powerful or wealthy litigant to stifle criticism. I understand this to be a suggestion that the underlying proceedings (and, perhaps, Seven's Contempt Motion) have not been brought for a bona fide and proper purpose. It is not necessary for me to say any more about that allegation, because it is irrelevant to the question of whether the proceedings have been conducted with due despatch. 2. Mr Dowling's complaint thereafter appears to be that the proceedings against him commenced in June 2017, and Seven's Contempt Motion having been filed against him in July 2017, have taken too long to be heard. The fact that the motion was only fixed in July 2019 to commence for hearing before me yesterday demonstrates that the proceedings have not been prosecuted by Seven with due despatch. 3. Mr Smark SC has taken me through the procedural history of these proceedings in a way which I will describe in a moment. It is apparent from that procedural history that nothing could be further from the truth insofar as Mr Dowling's suggestion that the proceedings have not been conducted by Seven with due despatch. In fact, a very large part of the reason for the delay in the ultimate hearing of Seven's Contempt Motion (in relation to which I have with great reluctance acceded to yet another adjournment application by Mr Dowling) is because of Mr Dowling's own conduct. 4. So much is demonstrated by the detailed recitation of the procedural history of these proceedings which appears in the judgment of Rees J in Seven Network (Operations) Limited v Dowling [2018] NSWSC 1890. I am indebted to her Honour's characteristic thoroughness in setting out that history, which I gratefully adopt, at paragraphs [3] to [69] of her Honour's judgment. At paragraph [68] her Honour concludes: "68. The procedural history of the Transfer Motion, and indeed the proceedings generally, indicate that the defendant has engaged in significant 'ducking and weaving' in respect of the Transfer Motion in general and the Hard Drive in particular. The defendant has from time to time offered to inspect the Hard Drive to determine whether, in fact, he has any objection to general access but, ultimately and on each occasion, refrained from doing so. The defendant has, by his actions and inaction, endeavoured, it appears to me, to bring these proceedings generally and the Contempt Motion in particular, to a halt. This is not how the procedures of the Court work." 1. Her Honour delivered her judgment on 7 December 2018 resolving the interlocutory issues that were then standing in the way of further progress of the matter. Her Honour made orders which included resolving the question of access to a hard drive that had been produced in answer to a subpoena, being a subpoena which Mr Dowling had unsuccessfully sought to set aside. The orders her Honour made included general access to the hard drive from 1 March 2019. 2. The question therefore becomes whether what has happened in the first months of this year derogates from the conclusion which is plain from the history recited by her Honour regarding whether the proceedings have been conducted with appropriate despatch, namely that they have been so conducted. The history this year may be shortly stated. In the accordance with the directions made by her Honour, Seven obtained access to the hard drive on and from 1 March 2019. An expert's report which relied upon the material in that hard drive was filed and served on 28 June 2019. The two contempt motions were then fixed for hearing before me by the Registrar at a directions hearing on 3 July 2019. 3. Mr Dowling submits that Seven did not act with due dispatch in obtaining its experts report after it had obtained access to the hard drive. I respectfully disagree. It is the common experience of this Court that experts' reports in relation to material stored in computerised form can sometimes take many weeks. I asked Mr Dowling to tell me how long he thought it should have taken Seven to produce its expert report. He replied, "one or two weeks". With respect, in the experience of the Court that is an entirely unrealistic period of time within which to expect a computer expert to produce his or her report. 4. I therefore do not accept Mr Dowling's submission that the proceedings were not conducted with due despatch in the first half of this year leading up to the point of 3 July 2019 when the Registrar fixed the two contempt motions for hearing before me. It follows that Prayer 5 of Mr Dowling's Motion will be dismissed. Prayers 7, 8 and 9 of Mr Dowling's Motion 1. Prayers 7 to 9 of Mr Dowling's motion seek: "7 All the respondents in my Notice of Motion for contempt filed on the 2nd of July 2019 be found guilty of contempt of court for conspiring to pervert the course of justice by having three respondents, Kieran Smark, Richard Keegan and Alexander Latu represent themselves and the others for the contempt charge filed on the 2nd of July 2019. 8 A declaration that Kieran Smark SC in [sic] contempt of court for attempting to pervert the course of justice and breaching the barristers rules by lying and deceiving the court from the bar table on the 22nd of November 2019 by representing others in the matter when he was personally a respondent in the matter. 9 A declaration that Richard Keegan and Alexander Latu are in contempt of court for attempting to pervert the course of justice and breaching the solicitors rules by lying and deceiving the court from the bar table on the 22nd of November 2019 by representing others in the matter when they were personally a respondents in the matter." 1. Mr Dowling has clarified to the Court that his intention by including those prayers was to extend an invitation to the Court of its own motion to take up those allegations and refer them to the Registrar to be prosecuted by the Court against the persons named in those paragraphs. 2. Mr Smark SC, who applied for that clarification, made the point which was, in my respectful view, undoubtedly correct that it would be a grievous breach of procedural fairness to proceed to hear those prayers for relief as substantive matters when the motion in which they are contained was notified only last week and formally filed in Court yesterday. I would certainly not have permitted a hearing to take place on those prayers for relief today in circumstances where the named respondents have had no opportunity to prepare their response. 3. Insofar as Mr Dowling tells the Court that those paragraphs are intended to be an invitation to the Court to refer these matters to the Registrar, I respectfully decline the invitation. As I understand it, such referrals primarily occur only in relation to contempt in the face of the Court. If Mr Dowling wishes to prosecute those matters as potential contempts of court, he is perfectly entitled to do so. However, that must be done by notice of motion, supported by a statement of charge, filed and served in accordance with the Rules. 4. There seems to be no utility in allowing those prayers of Mr Dowling's Motion to continue to have life. In my view, it is consistent with the just, quick and cheap resolution of the issues genuinely in dispute between the parties for me to dismiss those prayers, but to do so without prejudice to Mr Dowling's entitlement to bring a notice of motion and statement of charge in respect of those matters at some future time if he wishes to do so. The Court will in due course make orders to that effect. Seven's Motion 1. The next matter in logical order is Seven's Motion, which seeks relief in relation to Mr Dowling's Contempt Motion including: "1 An order that the claims for relief made by notice of motion filed by the defendant on 2 July 2019 in Prayers 1-5 be dismissed. 2 In the alternative to 1, that such claims be stayed until further order." 1. Mr Dowling's Contempt Motion includes: "PERSON AFFECTED BY ORDERS SOUGHT 1. Seven Network (Operations) Limited (ABN 65 025 845 262) 2. Seven West Media Limited (ABN 91053 480 845) 3. Kerry Stokes 4. Bruce McWilliam 5. Tim Worner 6. Kieran Smark SC 7. Richard Keegan 8. Martin O'Connor 9. Alexander Latu … ORDERS SOUGHT 1 A declaration that the plaintiffs and respondents are in contempt of court for breaching court orders issued on the 3rd of April 2019. 2 A declaration that the plaintiffs and respondents are in contempt of court for breaching court orders issued on the 28th of May 2019. 3 A declaration that the plaintiffs and respondents are in contempt of court for attempting to pervert the course of justice. 4 A declaration that Keiren Smark SC in [sic] contempt of court for attempting to pervert the course of justice and breaching the barristers rules by lying and deceiving the court from the bar table on the 28th of May 2019. 5 A declaration that Alexander Latu is in contempt of court for breaching the solicitors rules and making a knowingly false statement (perjury) in his affidavit dated the 28th May 2019. … Charge 1. In 2017 the applicants instituted proceedings against me. 2. In 2017 the applicants instituted proceeding [sic] for contempt against me alleging I breached court orders. 3. On 3rd of April 2019 court orders were issued at the request of the applicants and they deliberately breached those court orders. 4. On the 28th of May 2019 the applicant's barrister and lawyers deliberately lied in the face of the court and via affidavit in relation to why they breached the court orders on the 3rd of April 2019. 4 [sic] On the 28th of May 2019 the applicants had court orders issued as they requested and they deliberately breached those court orders. 5. The applicants and their lawyers have a long history of abusing court orders, perjury, trying to destroy evidence and attempting to pervert the course of justice etc." 1. On 18 October 2019 the Seven's solicitors wrote to Mr Dowling seeking further particulars: "We refer to your motion filed on 2 July 2019 seeking orders in relation to alleged contempt by various persons, which we note is listed for hearing before Kunc J in the Supreme Court of New South Wales on 3 December 2019 ("the notice of motion"), including the statement of charge annexed to it ("the statement of charge"). We request the following further particulars of the notice of motion and the statement of charge: 1. Please identify by name each of the persons who are said to be in contempt of court as referred to in paragraphs 1 to 3 of the notice of motion respectively. 2. We assume that the orders sought in paragraphs 1 to 5 of the notice of motion in relation to contempt do not extend beyond the matters set out in the statement of charge. Please confirm whither that is correct. 3. As to paragraph 3 of the statement of charge: a. Please identify precisely which court orders are said to have been breached; b. Please identify precisely what conduct, by what person(s), is said to have amounted to such breach. 4. As to first paragraph 4 of the statement of charge: a. Please identify precisely what statement made by the applicants' barrister is said to have been a lie, and the basis on which it is said to have been a lie; b. Please identify what statement made by the applicants' lawyers by affidavit is said to have been a lie, and the basis on which it is said to have been a lie. 5. As to second paragraph 4 of the statement of charge: a. Please identify which orders are said to have been deliberately breached by the applicants; and b. Please identify the basis on which those orders are said to have been deliberately breached by the applicants. 6. As to paragraph 5 of the statement of charge: a. Please confirm whether the material stated in that paragraph forms part of the contempt charges brought by you; b. If it does, please identify, with precision, what conduct is said to have been carried out by what persons at what time, which is said to amount to contempt." 1. After receiving no satisfactory response, the Seven filed a notice of motion seeking further and better particulars. On 22 November 2019, I resolved that motion in favour of Seven by making this order made these orders: "…The Court makes the following directions 1. On or before Tuesday 26 November 2019, Mr Dowling is to: a. Provide answers to the letter of 18 October 2019 to him from Addisons; and b. Notify, and where necessary, provide copies to the Channel 7 parties of the material to be included in the court book in connection to Mr Dowling's motion filed 2 July 2019. …". 1. In purported compliance with my orders, on 26 November 2019, Mr Dowling provided this response to Seven's solicitors: "Dear Mr Keegan Answer to your questions 1. All respondents 2. Question 2 was correct but now that you are corruptly representing the others and so has Kieran Smark and Alexander Latu I will likely file further contempt charges. 3. A and B: Failed to have the relevant documents/evidence filed on the date ordered by the court. 4. I do not have access to the transcript and affidavit but will be able to answer that when you file the court books. 5. The court orders to file documents/evidence. 6. It will form part of the evidence." 1. Later that same day, Seven's solicitors replied, including by providing the transcript of 28 May 2018 and the affidavit of Mr Latu, which Mr Dowling said he did not have but which he required to answer the request for particulars. The reply included: "Dear Mr Dowling In response to the particulars provided below, it appears to us they are defective. The answer to question 3 does not identify the conduct of each person charged as requested. Further to your response to question 4, we now provide the affidavit of Alexander Maile Latu sworn and read on 28 May 2019 as well as the transcript of the directions hearing before Registrar Walton on 28 May 2019, both of which will be contained in the Court Book. Accordingly, please provide proper answers to question 3 and 4 as soon as possible, in any event no later than 12 noon tomorrow, 27 November 2019 (Sydney time). If proper particulars are not provided by that time, we will seek to have the matter relisted pursuant to his Honour Justice Kunc's direction that the parties have liberty to have the matter re-listed on 1 days' notice." 1. On 27 November 2019, Mr Dowling provided a further response to the question for particulars: "Dear Mr Keegan As per question 3. Each person who is a respondent failed their legal obligation to have the documents/evidence filed as per the court orders. So their conduct was a lack of action as ordered. Each person and the companies has a legal obligation to make sure the orders were composed with. Question 4: (a) Kieran Smark lies about why the evidence hasn't been filed and he refers to Mr Latu's affidavit which he had to of known was full of lies. See paragraphs 11 and 12 of Mr Latu's affidavit. (b) Alexander Latu lies about why you needed extra time to file and serve evidence. It was your timetable that you breached and you had been in receipt of the fled from my computer for months and likely since 2017. There was no excuse that could be justified. See paragraphs 11 and 12 of Mt [sic] Latu's affidavit." 1. The relevant parts of Mr Latu's affidavit of 28 May 2019 are: "10. There is a large quantity of documents contained on the Hard Drive. The amount of data on the hard drive is greater than 80GB, and the Hard Drive contains more than 14,000 filed in more than 2,000 folders, as depicted in the screenshot below. 11. Given this volume, it has taken longer than initially expected to review the contents of the Hard Drive and to narrow down the relevant files to the key issues in dispute in the proceedings, including the plaintiffs' notice of motion filed 21 July 2017. This process has affected the preparation of the non-expert evidence as well as the expert evidence. The plaintiffs' position is that the Court will be better assisted by expert consideration of a relatively constrained number of files and issues, which is also likely to avoid any additional delay caused by seeking to have an expert comment on a large number of files. 12. The plaintiffs have now been able to identify the key files they seek to cover in their evidence, and have contacted and instructed an expert accordingly. The expert in question has a number of upcoming commitments and deadlines relating to other matters, but expects to be able to complete the report by the end of June 2019. If the report is able to be completed earlier, the plaintiffs are content to seek to have the matter relisted for further timetabling orders." 1. Mr Smark SC relied on the statement of principle set out in the judgment of the Court of Appeal in Matthews v Australian Security and Investments Commission [2009] NSWCA 155 ("Matthews"), in which Tobias JA said (and with whom Campbell JA agreed): "40 There is, however, a plethora of authority that supports the proposition that an allegation of contempt must be made "in sufficient detail and particularity in order to enable the person alleged to be in contempt to have before him or her enough information to enable him or her to meet the charge." See Carew-Reid & Ors v Carew Corporation Pty Ltd (Full Court of the Supreme Court of Western Australia, 23 April 1993, unreported) per Malcolm CJ at [6]. 41 In Carew-Reid (at [12]) Nicholson J observed that "…an alleged contemnor should have clearly particularised in the document particularising the alleged contempt the case against him or her. There are two reasons for that. The first is so that such allegations may be promptly and accurately met and the second is … that such matters will not be lightly raised." 42 The foregoing principles find their source in a number of decisions of the High Court. Thus in Coward v Stapleton [1953] HCA 48; (1953) 90 CLR 573 at 579–580 the Court, in a joint judgment, said: "[I]t is a well-recognised principle of law that no person ought to be punished for contempt of court unless the specific charge against him be distinctly stated and an opportunity of answering it given to him." 43 Again, in Doyle v The Commonwealth [1985] HCA 46; (1985) 156 CLR 510 at 516, the Court, in a joint judgment, observed: "… a proceeding for committal may result in a very serious interference with the liberty of the subject – indefinite confinement. Safeguards similar to those appropriate in criminal proceedings therefore apply. Speaking generally, the notice of motion for committal must be served personally on the person sought to be committed, the charge must be distinctly stated in the notice of motion or other application and the person sought to be committed must be given a proper opportunity to answer the charge." 44 The particularity required of a charge of contempt was also emphasised by Sir John Donaldson M.R. in Chiltern District Council v Keane [1985] 1 WLR 619 at 622 where his Lordship said: "The notice of motion was personally served on Mr Keane, but it only stated the grounds of the application to commit in general terms. It recited the undertaking and the injunction, and then alleged that there had been a breach. This, on the authorities, is not sufficient. It has been said in many cases that what is required is that the person alleged to be in contempt shall know, with sufficient particularity to enable him to defend himself, what exactly he is said to have done or omitted to do which constitutes a contempt of court." 45 The foregoing statement was cited with approval by Nicholls LJ in Harmsworth v Harmsworth [1987] 1 WLR 1676. In the same case, Woolf LJ made the following observation at 1686 which is pertinent to the present case: "What is not required by the relevant rules is that the notice of the motion should be drafted as though it was an indictment in criminal proceedings. While a respondent is required to be given particulars of what is alleged to be the breach, the particulars do not need to be set out in the same way as separate counts have to be set out in an indictment, nor do they need to give the particulars that you would normally expect to be seen in a count in an indictment. Furthermore, in my view, rules of duplicity and other rules which are designed to ensure the fairness of a trial before a jury, do not apply to proceedings of a different nature which are brought in respect of an alleged contempt." 46 The primary judge was himself well aware of these principles having observed in McDonnell v Novello [2006] NSWSC 1186 at [26] (omitting citations) that the "[r]elevant principles in this respect were canvassed by the English Court of Appeal in Harmsworth v Harmsworth . The crucial point is that a statement of charge must state particulars of the alleged contempt in such a way as to show precisely the acts or omissions said to constitute contempt. The person charged must be left in no doubt as to what breach is alleged. … But where … the order precludes a particular course or kind of conduct … it is necessary that the statement of charge identify the precise acts of the alleged contemnor said to constitute the particular course or kind of conduct and thus to entail disobedience to the court's order." 47 The foregoing statements of principle from the authorities were, generally speaking, made in the context of whether the statement of charge contained particulars of the alleged contempt sufficient to enable the contemnor to know exactly what he was said to have done or alleged to have done which constituted the contempt and thus would enable him to meet the charge." 1. Mr Smark SC submitted that the particulars which Mr Dowling had provided in response to questions 3, 4 and 5 of the solicitors' request remained completely inadequate. 2. For his part, Mr Dowling submitted that the particulars he had given were adequate. Alternatively, he submitted that because the application for further and better particulars had been made, as he put it, very late, the only order that the Court should make was one requiring him to attempt again to provide the further and better particulars. 3. While Seven's solicitors' request for particulars could undoubtedly have been sent earlier (the motion having been fixed for hearing before me by the Registrar on 3 July 2019), in my view a request sent in October for a matter to be heard in December was not so late as to have any effect on the exercise of the Court's discretion. That was also the view I took in making the order for further and better particulars on 22 November 2019. 4. I accept Mr Smark SC's submission that the totality of the answer that Mr Dowling has purported to provide in answer to questions 3, 4 and 5 remains completely inadequate. 5. A proceeding for contempt is a very serious matter, being criminal or quasi- criminal in nature. Allegations to be relied upon must be properly particularised, for the reasons given by the Court of Appeal in Matthews. 6. For present purposes, it is sufficient that I give one example. The first numbered paragraph 4 of the statement of charge alleges that "the applicant's barrister and lawyers deliberately lied in the face of the court and via affidavit in relation to why they breached the court orders on the 3rd of April 2019". Insofar as Mr Dowling relies on the statement in paragraph 11 of Mr Latu's affidavit, "It has taken longer than initially expected to review the content of the Hard Drive and narrow down the relevant files to the key issues in the dispute in the proceedings", presumably Mr Dowling is alleging that statement was a lie. 7. If that is the case, it is necessary for him to give proper particulars of how it is, in the case of each of the relevant lawyers, that he says that statement was a lie. What is or are the fact or facts which demonstrate that it was a lie and what are the facts or facts from which the Court should infer that the relevant lawyer or lawyers knew that statement was a falsehood which they were deliberately making to the Court? All of those elements are necessary matters to be particularised if contempt of the kind alleged by Mr Dowling is to be made out in relation to that matter alone. 8. A similar point could be made in relation to each iteration of the contempt allegations, insofar as they are made against each of the relevant respondents, be they the corporate plaintiffs or any of the natural persons named as respondents to the motion (see paragraph [63] above). 9. The appropriate relief is to stay Mr Dowling's Contempt Motion until further order of the Court. The onus should be on Mr Dowling, if and when he chooses to do so, to provide to Seven full and proper particulars in response to the letter of 18 October 2019. If he does so, and the plaintiffs are satisfied with the adequacy of the particulars, then the Court would expect them to consent to the reactivation of Mr Dowling's Contempt Motion. If they are not satisfied, then it will be a matter for Mr Dowling to file a notice of motion seeking to demonstrate that he has provided adequate particulars and that the stay, which I will in due course order, should be lifted. That application would have to be brought by notice of motion which, in the ordinary course, would be heard in the Applications List. Prayer 6 of Mr Dowling's Motion 1. The final matter is Prayer 6 of Mr Dowling's Motion which seeks: "6 Summary judgment against all the respondents in my Notice of Motion for contempt filed on the 2nd of July 2019 and set down for hearing on the 3rd of December 2019 as they have failed three times to have proper representation in court even though they were all put on notice." 1. The procedurally efficient course is that, by my judgment today, the Court should have completely dealt with all of the matters raised in Mr Dowling's Motion. Prayer 6 depends upon Mr Dowling's Contempt Motion being extant rather than stayed. Because it will be stayed, I will dismiss Prayer 6, but on terms that the dismissal is without prejudice to Mr Dowling's ability to bring a fresh notice of motion seeking that relief if, and when, Mr Dowling's Contempt Motion is ever reactivated. ********** 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: 10 December 2019