Prothonotary of the Supreme Court of NSW v Dowling [2017] NSWSC 392 (6 April 2017)

Last Updated: 11 April 2017

JUDGMENT: EX TEMPORE

Introduction

1. This matter came before me today, as Duty Judge, for directions and for the listing of the proceedings for contempt against the defendant brought by the Prothonotary of the Supreme Court of New South Wales.

The plaintiff’s evidence

2. The plaintiff, for whom Ms Mitchelmore appeared, sought, and was granted, leave to file in court the affidavit evidence on which the plaintiff proposes to rely at the hearing of this matter, being the affidavit of Richard Michael Keegan sworn 5 April 2017; the affidavit of Jillian Caldwell sworn 5 April 2017 and an exhibit JC1 to an earlier affidavit of Ms Caldwell, which is also annexed to the affidavit which was filed.
3. Ms Mitchelmore also handed up a document entitled "Particulars Document" which is the statement of charge referred to in the summons filed on the 27 March 2017. I have marked the Particulars Document for identification, MFI 2.

Application for non-disclosure orders

4. Ms Mitchelmore applies for orders pursuant to s 10 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) of the Particulars Document; and the affidavits of Mr Keegan and Ms Caldwell, including exhibit JC1. She has submitted that, by reason of the material contained therein, it is desirable in the interests of justice that they be prohibited from disclosure.
5. Mr Dowling, who appears on his own behalf, objects to the orders being made on two grounds; first, he submits that he had not received adequate notice of the application for the orders and, secondly, he contends that it would be undesirable if this matter of contempt could not be fully reported.
6. Ms Mitchelmore has raised the issue of whether the order in respect of the Particulars Document should be made under the inherent jurisdiction of the court by reason of the wording of s 7 of the Court Suppression and Non-Publication Orders Act, which may not be apt to cover such a document. Having regard to the wording of s 7, I consider that a non-disclosure order in respect of the Particulars Document ought be made in the exercise of this Court’s inherent jurisdiction. I am satisfied that non-disclosure orders should be made in the terms sought by the plaintiff and reflected in the short minutes of order. The matters referred to in those documents would, if published, merely aggravate the alleged contempt.
7. I note that the orders are only sought until further order and therefore can be reviewed by the court, including following the hearing of the charges for contempt.

Whether an interstate judge ought hear the matter

8. I note that Mr Dowling has made an application that an interstate judge be appointed for the hearing of the proceedings for contempt because the allegations made against him concern allegations which he himself made against judges and a Registrar of this Court. Ms Mitchelmore has submitted that it would not be necessary to appoint an interstate judge since such an extraordinary step is generally only taken when concerns are raised directly in the proceedings regarding the conduct of judicial officers. In reply, Mr Dowling has submitted that these proceedings do involve the conduct of judicial officers by reason of the nature of the allegations he has made against them.
9. I consider the distinction drawn by Ms Mitchelmore, on behalf of the plaintiff, to be apt. In my view, because these contempt proceedings concern the conduct of Mr Dowling in making the allegations, as opposed to the conduct of the judicial officers themselves, it is not necessary to appoint an interstate judge. Moreover, the power of a particular court to deal with proceedings for contempt is pre-eminently one which in my view ought be dealt with by the court itself as constituted by judges whose commissions are to the particular court.

Allocation of a hearing date

10. The next matter is the allocation of a hearing date for the proceedings which are estimated to take no longer than a day. Having consulted with Mr Dowling and Ms Mitchelmore, and having regard to Mr Dowling's commitments in other courts, I have decided that, although it is preferable that contempt proceedings be heard as soon as possible, it would be preferable to defer the hearing of the proceedings until 4 May 2017, as Mr Dowling has prior commitments, on dates which would otherwise be convenient to the plaintiff's counsel in April. Accordingly, I will make an order that the proceedings be listed for hearing on 4 May 2017.
11. I note, for completeness, that Mr Dowling has raised the issue of applying for a review of orders made under the Court Suppression and Non-Publication Orders Act in other proceedings. I am satisfied that it would not be appropriate for me to make those orders in these proceedings today but, of course, Mr Dowling is at liberty to apply for a review of those orders consistent with the provisions of s 13 of the Court Suppression and Non-Publication Orders Act.

Orders

12. I make the following orders:

Orders:

1 Pursuant to the Court's inherent power, the contents of the document dated 3 April 2017 and titled "Particulars Document", which is referred to in the Summons filed 27 March 2017, be prohibited from disclosure other than to the parties until further order.

2. Pursuant to s 10 of the Court Suppression and Non Publication Orders Act 2010, the contents of the affidavit of Richard Michael Keegan sworn 5 April 2017 be, prohibited from disclosure other than to the parties until further order.

3. Pursuant to s 10 of the Court Suppression and Non-Publication Orders Act 2010, the contents of the affidavit of Jillian Caldwell affirmed 5 April 2017, including Exhibit "JC-1", be prohibited from disclosure other than to the parties until further order.

4. The proceedings be listed for hearing on 4 May 2017.

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