Seven Network (Operations) Limited v Dowling

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").

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.

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.

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.

These reasons deal with two issues.

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.

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).

In addition to being a respondent to Mr Dowling's contempt motion, two of the orders sought by Mr Dowling today were directed to Mr Bruce McWilliam (that Mr McWilliam deliver up his computer and that he be subpoenaed to give evidence at the hearing). While the Seven contempt motion has been before me on earlier occasions, I only became aware of any specific involvement of Mr McWilliam when I saw for the first time Mr Dowling's contempt motion in preparation for today's hearing.

Having noted the role of Mr Bruce McWilliam in Mr Dowling's contempt motion, at the outset of the hearing I raised with the parties the fact that I knew Mr Bruce McWilliam and his wife Dr Nicky McWilliam. I will here summarise (and, for the avoidance of doubt, add some more chronological detail to) what I said this morning.

I first met Mr McWilliam in the mid to late 1980s when he was a partner at the firm then known as Allen Allen & Hemsley where I was employed as a solicitor. We were not in the same sections of the firm, and for at least some of the time I was at the firm I think Mr McWilliam was in the firm's London office. We are casual professional acquaintances. By that I mean we do not deliberately socialise together. In recent years I have seen Mr McWilliam not more than three or four times a year at large legal or other events at which, if we encounter each other, we exchange friendly greetings and social pleasantries on a first name basis. By chance, the last such occasion happened to be two nights ago at a dinner at St Paul's College within the University of Sydney for the legal profession, judiciary and students which was addressed by the President of the Court of Appeal. I estimate that at least a hundred people were present and Mr McWilliam and I did no more than happen to walk past each other, shake hands, say hello and move on.

Beyond seeing and greeting Dr McWilliam on a handful of legal and other public occasions over the years, my only substantive contact with her has been in her capacity as a legal academic. In June 2015 I met with her and one of her students once in my chambers and completed an academic survey she was coordinating about the judiciary's attitude to mediation. At that meeting I encouraged her to submit an article on that topic to The Australian Law Journal, of which I am General Editor. She did so by email in November 2018. The following month I chaired the editorial committee which accepted her article for publication.

Mr Dowling submitted that I should disqualify myself for apprehended bias. He relied on the decision of McInerney J in R v Magistrate's Court at Lilydale; ex parte Ciccone [1973] VR 122 ("Ciccone"). That was a case in which a magistrate was hearing an appeal as to whether a certain house was unfit for human habitation. The magistrate travelled from the court to view the house in a car in which counsel for one of the parties was a passenger and which was driven by a person who was subsequently called as a witness for that party. The magistrate returned to the court in the same car with the same driver and passenger. McInerney J held (at 131) that the magistrate’s decision was “vitiated by the circumstance that his indiscretion in travelling to and from the view in a car driven by a principal witness for the Housing Commission, in the company of counsel for the Housing Commission and in the absence of any representative of the applicant, gave rise to a ‘reasonable suspicion that a proper hearing and a proper determination would not be afforded to’ the applicant”. Mr Dowling submitted that the connections to Mr McWilliam and Dr McWilliam which I had disclosed were closer than those of the magistrate to the party with whom the magistrate had travelled in Ciccone.

Mr K Smark of Senior Counsel, who appeared for Seven, submitted that what he described as the “slender” connections I had disclosed did not satisfy the test for disqualification of a judicial officer on the ground of apprehended bias as set out by the High Court in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 ("Ebner").

The general test is set out in the judgment of Gleeson CJ, McHugh, Gummow and Hayne JJA in Ebner (citations omitted):

In resolving this issue I have also borne in mind these further observations of the plurality in Ebner:

The background and decision in Ciccone appears sufficiently from this passage (at 127-128):

Two matters may be dealt with shortly.

First, I am unable to see how, on any view, my limited connection with Dr McWilliam would warrant recusal. She is not a party to the proceedings. As it happens, her husband is a respondent to Mr Dowling's contempt motion. He is also a senior executive and director of Seven. However, taking into account what I have disclosed about my connection to both of them, I cannot conclude that a fair-minded lay observer might reasonably apprehend that I would not bring an impartial mind to the resolution of these proceedings by reason of what I have disclosed about my connection, such as it has been, to Dr McWilliam.

Second, in relation to both of them, the circumstances I have disclosed are completely different to those considered in Ciccone. I have not been engaged in hearing or part heard in this matter at any time when I have met Mr McWilliam or Dr McWilliam. Furthermore, such encounters as I have had, particularly with Mr McWilliam, who is the person directly concerned in these proceedings, have been fleeting, public social events. The circumstances considered in Ciccone are far removed from the facts of this case and do not assist Mr Dowling.

Turning to the two steps referred to in paragraph [8] of Ebner set out in paragraph [14] above, presumably Mr Dowling's argument is that the connection I have identified, especially with Mr McWilliam, is what might be said to lead me to decide these proceedings other than on its legal and factual merits. However, in my view, Mr Dowling fails at the second step because he has not articulated the logical connection between the type of relationship which I have disclosed (for example, to be contrasted with close personal friendship) and the possibility of departure from impartial decision-making.

In my respectful view, a casual professional acquaintance of the kind I have identified would not cause a fair-minded lay observer reasonably to apprehend that I might not bring an impartial mind to these proceedings. I have worked in and around Phillip Street as a law clerk, solicitor, barrister and now judge for nearly forty years. The fair-minded lay observer would understand that a person in my position would get to know by sight, and become casually acquainted with, many other people in the profession. These are not people who you would describe as friends in the sense of seeking out their company deliberately, or regularly speaking to, or dining with them, in private. They are people with whom one will exchange a friendly greeting or engage in passing social conversation in the street or at a public event, having become socially familiar with them because it happens that over many years we see each other in the same professional or other circles. Such relationships would not excite the concern of the fair-minded lay observer postulated by Ebner.

For these reasons, I declined to disqualify myself from dealing with the application today and proceeded to hear the matter.

I should also record that while Mr Dowling's application was focused on today's hearing, I have approached the question of disqualification on the basis that the determination to which I came today would also apply to the hearing of the contempt motions fixed before me on 3 December 2019.

The statement of charge which is part of the Seven contempt motion includes:

In the Equity Division, discovery is governed by Practice Note SC Equity 11 and UCPR Part 21 rr 21.1 and 2. The practice note includes:

UCPR Part 21 includes:

Interrogatories are governed by UCPR Part 22 rr 22.1 and 22.2, which include:

Mr Dowling submitted that the discovery and interrogatories which he sought were for the purposes of his defence to the Seven contempt motion. Noting that Mr Dowling is not a lawyer, I warned him that he was under no obligation to say anything about his defence to that motion or give any indication as to whether he was intending to go into evidence. Notwithstanding my observations, Mr Dowling did not hesitate to inform the Court that his defence would be that he was not the owner of the Other Website, but that Seven was the owner of the Other Website.

There is no dispute that from on or about 27 June 2017, ownership of the Other Website passed to Seven by reason of a decision made pursuant to a Universal Domain Name Dispute Resolution Procedure Complaint made by Seven to the World Intellectual Property Organisation. However, it will be recalled from what I have extracted in paragraph [24] above from the Seven contempt motion that the relevant period for the conduct said to constitute Mr Dowling's contempt is between 19 April 2017 and approximately 14 June 2017. Mr Dowling did not suggest that he had any evidence (as opposed to what I might neutrally refer to as surmise) that Seven owned the Other Website at the time Seven alleges Mr Dowling engaged in the conduct said to constitute a contempt.

It is necessary to consider each of the paragraphs of Mr Dowling's request for discovery and interrogatories individually. However, in relation to most of those paragraphs my reasons for rejecting them are that I have accepted Seven’s submissions that they are:

Paragraph 7 of Mr Dowling’s contempt motion seeks:

The basis on which Mr Dowling sought this order appeared to be that, by reason of a subpoena issued to the New South Wales Commissioner of Police, Seven had come into the possession of Mr Dowling's computer. That, in and of itself, is not a reason to grant Mr Dowling an order in the terms of paragraph 7. I accept Mr Smark's submissions that the relief sought in paragraph 7 is unsustainable by reason of the fact that it is addressed to non-parties and for the Reasons. It is, by its very terms, radically oppressive.

Paragraphs 8 and 9 seek:

I accept Mr Smark's submission that those paragraphs are deficient because they are plainly not relevant to anything after June 2017 when it is conceded ownership of the Other Website passed to Seven, and otherwise for the Reasons.

Paragraph 10 seeks:

I accept Mr Smark's submission that whatever might be caught by this paragraph does not have any relevance to any fact in issue that the Court will have to consider in determining the Seven contempt motion. Furthermore, this paragraph is one of several which Mr Dowling submitted were directed towards attacking the credibility of Seven's lawyers. As is apparent from the definition of relevance to a fact in issue in rule 21.1 (see paragraph [26] above), quite apart from irrelevance, the paragraph is deficient insofar as it seeks material directed only to credit.

There does not appear to be any fact in issue in the Seven contempt motion that relates to the website referred to in paragraph 11:

For the reasons given in paragraph [36] above in relation to paragraph 10, I decline to make an order in those terms.

Paragraph 12 seeks:

Mr Dowling submitted that this paragraph was directed to a deed of release in other proceedings concerning Seven and was intended to elicit what he described as circumstantial evidence. That submission in and of itself demonstrates the paragraph is completely lacking in relevance to the facts in issue in the Seven contempt motion. I also rely on the Reasons. I therefore decline to make an order in those terms.

Paragraph 13 seeks:

It will be noted that the affidavit which is referred to in this paragraph predates the allegedly contemptuous conduct by approximately three years. It is also directed to the conduct not of any party to the proceedings or even to a respondent to Mr Dowling's contempt motion, but to another legal representative of Seven. Mr Dowling submitted that the purpose of paragraph 13 was to elicit material to demonstrate that Mr Stokes and his lawyers (or both) were engaging in a conspiracy to pervert the course of justice. Considering that submission, I again accept Mr Smark's submission that paragraph 13 is defective for the Reasons, in particular for being directed to matters which are completely irrelevant to any fact in issue.

Paragraph 14 seeks:

Because Mr Dowling is not legally represented, he requires leave to issue any subpoenas (see UCPR Part 7 r 7.3). Mr Dowling submitted that he wished to subpoena the three named gentlemen because they would be able to give evidence about "what has and hasn't happened in relation to this matter". Mr Dowling tendered only one piece of evidence in support of his application, and that piece of evidence did not relate to this paragraph. He has not presented the Court with any evidence upon which the Court could conclude, even at the lowest level of satisfaction, that any of these gentlemen would be able to give evidence relevant to a fact in issue in the Seven contempt motion. This is especially so when it is recalled that what Seven will have to prove is that at the relevant time the Other Website was owned and operated Mr Dowling. If those gentlemen had any knowledge about that fact - highly unlikely as it may seem - it would in any event, as Mr Smark conceded, be hearsay.

In reaching the conclusion that the Court should not grant leave, I have taken into account that a contempt charge is a serious matter and that Mr Dowling is not legally represented. Either or both of those matters could be sufficient for the Court in a given case to take a generous view in favour of a litigant as to the extent to which the litigant would need to satisfy the Court that there was a proper purpose in requiring persons to be subpoenaed to give evidence in the litigant's case. Considering the question as generously as I can towards Mr Dowling, he has not provided any evidence on the basis of which the Court could conclude that he has a proper purpose for requiring those gentlemen to be subpoenaed to give evidence in his case (as opposed to an improper purpose including fishing or the possibility of scandalising or embarrassing the Court, about which I was not invited to make any finding and I do not do so).

In paragraph 15 Mr Dowling seeks these interrogatories:

These proposed interrogatories are immediately objectionable because they are directed to Mr Kerry Stokes, who is not a party to the proceedings (see UCPR Part 22 r 22.1(1) set out in paragraph [27] above). That is sufficient to dispose of them. However, I also accept Mr Smark’s submissions that the proposed interrogatories suffer from further fatal difficulties. The first two proposed interrogatories are unlimited as to time. Proposed interrogatory 2 goes to an irrelevant matter. Proposed interrogatory 3 also goes to an irrelevant matter and, in any event, appears to be solely directed to a question of credit. Given those deficiencies, even if the proposed interrogatories were directed to a party, the Court could not be satisfied for the purposes of UCPR Part 22 r 22.1(4) (see paragraph [27] above) that the order sought by Mr Dowling for interrogatories is necessary at this time. Therefore, on any view, cannot make the order.

The hearing concluded at 1pm, at which time I informed the parties that I would deliver these reasons at 3.30pm. Mr Dowling subsequently sent an email to my Associate indicating that it was not convenient for him to remain in the city. He said he would not appear at the time I was delivering ex tempore reasons and that my staff should email him a copy of this judgment. These reasons have therefore been delivered only in the presence of Seven's legal representatives.

At the conclusion of my delivering these reasons Mr Smark applied for his clients’ costs. Mr Dowling has failed to obtain any of the orders for which he pressed. Costs follow the event and Seven is accordingly entitled to its costs. I propose to make an order to that effect.

No reason to depart from that usual course was put to me. However, if Mr Dowling wishes to be heard against the costs order, he will be given an opportunity to be heard on that question at the hearing on 3 December 2019, provided he has given to Seven at least seven days’ prior notice of his intention to address on that question. I am unable to identify any prejudice to Mr Dowling by following this course, given that Seven has not sought an order that the costs be payable forthwith.

The orders of the Court are: