Jane Doe 1 v Dowling (No 3) [2017] NSWSC 126 (22 February 2017)

Last Updated: 16 April 2018

EX TEMPORE JUDGMENT

1. On 21 December 2016 Campbell J granted leave to file in court a statement of claim and notice of motion returnable instanter in proceedings. Given the further orders made by his Honour on the same day, the matter was entitled “Jane Doe 1 and Another v Shane Dowling”. His Honour made suppression orders under s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) together with interim orders requiring certain entries on a blog operated by the defendant to be removed. An interlocutory injunction was granted with the proceedings being made returnable before his Honour on 23 December 2016.
2. In the accompanying reasons given by his Honour on 21 December 2016: Jane Doe 1 v Dowling [2016] NSWSC 1909, his Honour noted that the plaintiffs were two well-known personalities in Australia and the defendant regularly published a blog of some kind. It was noted that the defendant had published an article about an employment case which had been widely reported in the established media and was “well and truly in the public domain” at [3]. His Honour also found (at [4]) that the article published by the defendant had made egregious allegations about the plaintiffs and that he was satisfied that the plaintiffs’ case in defamation was more than fairly arguable bearing in mind the constraints upon the Court’s general power to issue interlocutory injunctions in defamation cases as explained in Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57 (ABC v O'Neill). His Honour referred to the judgment of Hall J in Munsie v Dowling [2014] NSWSC 598.
3. Campbell J could see no possible defence of justification being available at the time (in the proceedings brought by Jane Doe 1 and Jane Doe 2) although he had not had the benefit of hearing from the defendant. As mentioned, his Honour made provision for the matter to be returned for the defendant to argue that the interim junction be dissolved.
4. The proceedings came before me yesterday afternoon as Duty Judge with the first and second plaintiffs together with two further plaintiffs, who were employees or former employees of Seven West Media, moved upon a notice of motion dated 21 February 2017. The motion was supported by the affidavit of Richard Michael Keegan sworn 20 February 2017. The matter proceeded ex parte for reasons which appear in the record of proceedings on that day.
5. Leave was given to file in Court the notice of motion dated 21 February 2017 and an amended statement of claim. Orders were made joining two further plaintiffs under the pseudonyms “Jane Doe 3” and “Jane Doe 4” and suppression orders made with respect to those persons for reasons again given during the course of the proceedings.
6. This judgment deals with two further orders sought by the plaintiffs each having a similar character to the orders made by Campbell J on 21 December 2016 (the hearing of which occurred yesterday and briefly this morning). The first concerned certain statements made by the defendant in an article published on 19 February 2017 and an article obtained by link within that article. The order sought that statements be removed from the publication. By the second order, the plaintiffs sought the defendant be restrained by an interlocutory injunction, from publishing certain imputations with respect to the third and fourth plaintiffs which appeared in para 9 of the amended statement of claim.
7. Those imputations concerned egregious allegations made with respect to the third and fourth plaintiffs whilst employees of Seven West Media.
8. In defamation cases, applications for interlocutory orders of the kind here sought need to be approached with considerable caution. The relevant principles are amply set out in a further judgment of Campbell J in these proceedings which was issued when the matter was returned on 23 December: Jane Doe 1 and Jane Doe 2 v Dowling (No 2) [2016] NSWSC 1910. I refer, in particular, to paras [6] and [7] thereof as follows:

“[6] In cases of defamation it may be said there are somewhat special rules. It is probably more accurate to say that the general rules are afforded a special application. It is unnecessary to go into the reasons for this which were fully explained by the High Court of Australia in Australian Broadcasting Corporation v O’Neill [2006] HCA 46; [2006] 227 CLR 57, for instance, by Gleeson CJ and Crennan J at [66]. I think they may be summarised in this way, if I may quote from my previous decision in Munsie v Dowling [2015] NSWSC 808 at [21]:

It is worth simply reciting that the fundamental reason why the court’s powers are exercised with great caution is to uphold the fundamental value of freedom of speech and to bolster the sanctity of a jury’s decision on the defence of justification. Normally, at least at the time that ABC v O’Neill was decided, such matters were decided by a jury rather than a judge. However that may be, and bearing that caution firmly in mind, as the joint judgment of Gummow J and Hayne J demonstrates, the usual principles concerning the grant of interlocutory injunctions as established by the joint judgment in Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1 ; 118 CLR 618 apply.

[7] The caution I have referred to informs the application of both limbs of the rule established in Beecham v Bristol. That is to say, the applicant for an interlocutory injunction must satisfy the Court first that he or she has a prima facie case which, if accepted at the trial, will entitle him or her to final relief, and secondly, that the balance of convenience favours granting the injunction.”

9. As to the principles relevant to the determination of applications for interlocutory injunctions, reference might also be given to the judgment of Gleeson CJ and Crennan J in ABC v O'Neill at [19].
10. In my view, the interim orders sought by the plaintiffs should be granted having full regard to the special application of the general rules concerning the making of interlocutory injunctions in defamation cases as identified in ABC v O'Neill.
11. The plaintiffs, and in particular the third and fourth plaintiffs, have demonstrated that there is a serious question to be tried as to the plaintiffs' entitlement to relief. Further, there does seem to be a very limited prospect of a defence of justification at this time. The defence of “fair report of proceedings of a public concern” seems unlikely to be established given the alleged source of the material seems to be the claim by a Miss Harrison in the Australian Human Rights Commission. The evidence of Mr Keegan demonstrates that no part of the record of those proceedings have been published and there has been no hearing of the claim.
12. I also agree with Mr Smark SC who submitted, in the course of identifying possible defences for the defendant, that there is little prospect of the court exercising a discretion to refuse orders in the defamation proceedings upon the basis that the third and fourth respondents did not take action with respect to an earlier published article in January, given the article largely concerned the content of an e-mail from the plaintiffs’ solicitors.
13. The balance of convenience lies in favour of the plaintiffs given the nature of the statements made against them and the relative ease of re-establishing the contents of the blog if the interim orders were to be dissolved.
14. I make the orders proposed in the short minutes of order filed in court this morning dated 22 February 2017. The matter shall be returnable before the Duty Judge on 3 March 2017 or at earlier date as appointed by this Court.

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Amendments

24 February 2017 - Citation corrected.