Capilano Honey Ltd v Dowling (No 3)

HIS HONOUR: These are proceedings for injurious falsehood and defamation commenced by Capilano Honey Ltd (Capilano Honey) and its Chief Executive Officer, Mr Ben McKee (Mr McKee), against Mr Shane Dowling (the defendant). The defendant is self-represented in the proceedings.

The defendant conducts a website entitled “Kangaroo Court of Australia” which he describes as a “judicial corruption website”. His publications also criticise others and have given rise to several proceedings in this Court brought by individuals or companies seeking to have material suppressed and damages.

This judgment deals with the following:

The proceedings were commenced by Summons, filed 7 October 2016. On that date, the plaintiffs made an ex parte application to his Honour Hall J as Duty Judge for interlocutory orders restraining the publication of certain material by the defendant on his website, Facebook page and Twitter account. The application related to two articles referred to in the proceedings as “the Toxic Honey article” and “the Car Conversation article”. The plaintiffs sought take down orders in respect of those articles and orders restraining future publication of that material and certain imputations and representations.

There are also related proceedings which were brought by the same plaintiffs against a Victorian beekeeper, Mr Simon Mulvany. That matter was transferred to the Victorian Supreme Court and appears to have been resolved by Mr Mulvany proffering undertakings to the court in lieu of the injunctions sought by the plaintiffs.

The two articles written by the defendant which were sought to be restrained in the present action concerned Capilano Honey’s proceedings against Mr Mulvany. The “Toxic Honey article” was published on 17 September 2016. The plaintiffs contend that the contents of that article must have been provided to the defendant by Mr Mulvany.

“The Car Conversation article” was published on 6 October 2016. That article includes reference to a recording of a conversation between Mr Mulvany and Mr McKee. The plaintiffs contend that the recording was illegally obtained and that it must have been provided to the defendant by Mr Mulvany.

It appears that the principal basis for the application before Hall J was the contention that the defendant and Mr Mulvany were working together to undermine the efficacy of the relief sought in the Mulvany proceedings. Implicit in the application before Hall J was that the restrained material was false.

Hall J granted the relief sought ex parte on 7 October 2016.

On the evening of Sunday, 9 October 2016, the defendant sent an email to the Court complaining about the “super injunction” granted by Hall J and stating that he could not appear at 3pm on 10 October 2016 because he would be at work. That day the defendant published an article reporting the orders made by Hall J under the heading “Capilano Takes Out Super Injunction to Silence a Second Journalist re Poisonous and Toxic Honey”.

The proceedings came before his Honour Davies J on 10 October 2016. The defendant did not appear. On that occasion the plaintiffs filed a Notice of Motion in court seeking a take down order in respect of the further article published on 9 October and restraining the defendant from publishing that article.

Davies J extended Order 1 made by Hall J (the interim suppression order). Davies J also granted the relief sought in the Notice of Motion. Davies J published his reasons for continuing Order 1 and making the orders sought in the Notice of Motion (Capilano Honey Ltd v Dowling [2016] NSWSC 1441).

Thereafter it was accepted by the plaintiffs that the matter should proceed by way of pleadings, rather than by Summons. A Statement of Claim was filed on 15 May 2017 and served on 17 May.

The matter came before her Honour McCallum J on 6 and 19 April 2018. Her Honour delivered judgment on 8 June 2018 (Capilano Honey Ltd v Dowling (No 2) [2018] NSWSC 865). That judgment sets out the factual background to the proceedings in considerably more detail than the above summary.

The issues before her Honour on that occasion were applications by the defendant for the proceedings to be dismissed for want of prosecution, for a review of the suppression orders and for the interlocutory injunctions to be discharged. The effect of her Honour’s judgment was to refuse to dismiss the proceedings for want of prosecution. Her Honour did, however, revoke the suppression order and discharge the interlocutory injunctions. Her Honour was not persuaded by the material placed before her that a continuation of those orders was warranted. In addition, her Honour was of the opinion that the issues raised in the injurious falsehood claim were part of a broad public debate concerning complex issues of trade and health safety regulations.

An appeal against her Honour’s judgment was dismissed (Capilano Honey Ltd v Dowling (No 2) [2018] NSWCA 217). That was the status of the matter when the above applications came before the Court.

When this matter was reached on Friday 3 May 2019, the defendant objected to me hearing it. He did so on the basis of an email sent by him to the Court on 7 September 2016 in which he had referred to me and other Judges of the Court as “paedophiles”. This email was attached to an affidavit of the defendant, dated 2 March 2018. This was the first occasion that I was made aware of this email and of the fact that a report to similar effect had been placed on the “Kangaroo Court” website.

The defendant also relied upon a judgment of mine in Munsie v Dowling (No 4) [2015] NSWSC 37 (Munsie v Dowling) which was delivered on 11 February 2015. In that judgment I struck out the defendant’s Defence in that matter but gave him leave to file a Further Amended Defence within 21 days.

The principles to be applied in determining whether a judge should disqualify himself or herself from hearing a matter on the grounds of apprehended bias are stated in the decision of the High Court in Ebner v The Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 at [6]-[8] where the plurality (Gleeson CJ, McHugh, Gummow and Hayne JJ) said:

In accordance with that statement of principle, I refused to recuse myself from hearing the two matters which were before me and which involved the defendant, i.e. the contempt motion and the strike out motion.

In addition, I had regard to the fact that these matters had been listed for hearing before me some six weeks previously and neither matter involved an issue of fact or the credit of the defendant. The issues raised were matters of law and involved interlocutory issues not a final hearing.

The contempt motion was filed by the defendant in these proceedings on 8 March 2019 without the leave of the Court. The motion sought declarations and orders against five persons in addition to the plaintiffs. One of those persons was the Senior Counsel appearing for the plaintiffs and another was his instructing solicitor. The other three persons named were lawyers employed by Addisons, the firm acting for the plaintiffs.

The orders sought in the contempt motion were:

Attached to the contempt motion was a document entitled “Statement of Charge”. That document stated:

In support of the contempt motion was an affidavit of the defendant, dated 7 March 2019. It substantially repeated the allegations set out in the “Statement of Charge”. It also had annexed to it emails, reports on the Kangaroo Court Australia website and pages 22-36 of the transcript of the hearing before McCallum J on 6 April 2018. The relevance of these attachments was not clear.

The defendant required the leave of the Court to rely upon the contempt motion in these proceedings (the principal proceedings). This was so because five of the seven persons said to be affected by the orders sought were not parties to the principal proceedings and comprised the plaintiffs’ legal team. The defendant was unable to explain why he should be granted leave to file the contempt motion when it raised new issues which were only marginally relevant to the principal proceedings.

In those circumstances, I refused leave to the defendant to file the contempt motion in these proceedings. I did so because the contempt motion raised new issues for the first time, almost three years after the principal proceedings had been commenced. Importantly, the contempt motion purported to join five new parties to the principal proceedings. Those five additional parties made up the plaintiffs’ legal team, including their Senior Counsel. To allow that joinder in the principal proceedings would have effectively prevented the plaintiffs’ legal team from further participating in this matter other than as parties against whom orders were being sought.

As explained to the defendant, the most efficient procedure should he wish to continue with the matters raised in the contempt motion, was to commence separate proceedings in the Common Law Division seeking those declarations and orders. These proceedings would be stand alone proceedings and could proceed independently of the principal proceedings.

Because they were named as parties affected by the orders sought in the contempt motion, the plaintiffs’ legal team in the principal proceedings were not able to appear on the contempt motion. For that reason, Mr Gray of Senior Counsel was briefed. This was a reasonable precaution by the plaintiffs and the persons named in the contempt motion, given the serious allegations which had been made against them. Since the defendant has failed in his application to be allowed to rely upon the contempt motion in the principal proceedings, he should pay the costs of the plaintiffs and those other persons named in the contempt motion incurred in arranging representation on their behalf.

It was made clear to the defendant that the order refusing leave to rely upon the contempt motion in the principal proceedings does not affect his ability to commence fresh proceedings in the Common Law Division raising the same issues.

Accordingly, the orders which I make on the contempt motion are:

As already indicated, the plaintiffs’ Statement of Claim was filed on 15 May 2017. Its structure is relatively straightforward. Paragraphs 1-12 set out the injurious falsehood claim brought by the first plaintiff. Those paragraphs identify a number of representations and imputations by the defendant and seek an order that the defendant be restrained from publishing those representations and imputations. Damages and costs are also sought.

Paragraphs 13-45 articulate a claim by the second plaintiff for defamation based on a series of representations published by the defendant, particulars of which are set out. Those paragraphs identify the imputations to which those representations give rise.

On 8 June 2018, the defendant was ordered to file and serve his Defence by 27 June 2018. He did not comply with that order. On 29 June 2018, the defendant was again ordered to file and serve his Defence. On 13 July 2018, the defendant filed a document styled “Defence – Shane Dowling” (the Defence).

On 20 July 2018, the plaintiffs wrote to the defendant requesting the particulars required by the relevant rules in the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) and referring the defendant to individual applicable rules. No response was received.

The letter of 20 July 2018 was in the following form:

On 3 August 2018, the plaintiffs wrote again to the defendant noting the lack of response and enclosing the strike out motion which sought an order striking out the Defence on the basis that:

On 28 August 2018, the defendant was imprisoned for contempt. When the principal proceedings came before the Court again on 7 September 2018 the defendant appeared by AVL from prison and the strike out motion was stood over. On 22 March 2019, the strike out motion was listed for hearing on 3 May 2019.

In summary, the plaintiffs’ contention is that the Defence fails to comply with any of the basic rules or principles of pleading and merely states that the defendant will rely upon defences contained in the Defamation Act 2005 (NSW) without the required particulars. They contend that much of the Defence contains submissions and irrelevant material.

The Defence must comply with both the general pleading rules and those specifically dealing with pleading and particularising defamation defences as contained in Pts 14 and 15 of the UCPR.

The Court may strike out a pleading in accordance with UCPR 14.28 which relevantly provides:

The following statement of principle concerning the application of those Rules was set out by Walton J in Doe 1 v Dowling [2018] NSWSC 1278 (Doe 1 v Dowling) at [9]. I respectfully agree that the following accurately sets out the application of the Rules:

The Defence is essentially in three parts – paragraphs 1-12 appear to relate to the injurious falsehood claim; paragraphs 13-61 appear to relate to the defamation claim; paragraph 62 comprises proposed interrogatories and categories for discovery.

Paragraphs 1-11 are a mixture of bare assertions, submissions and questions which had already been put to the plaintiffs in emails from the defendant. They include assertions in relation to the proceedings between the plaintiffs and Mr Mulvany. The contents of those paragraphs are described in paragraph 12 as being some of the “evidence” the defendant would be relying on to defend the injurious falsehood claim.

By way of illustration, the following are some of the paragraphs relied upon by the defendant.

As can be seen, that kind of material has no place in the defence and particularly not in the form in which it appears. While the thrust of paragraphs 1-12 of the Defence is that the plaintiffs cannot discharge their onus and prove the falsity of the representation sued on in the injurious falsehood claim, there is no particularised allegation that the representations are true.

The above extract also illustrates the illogicality of the defendant’s belief that a refusal by the plaintiffs to answer any of his questions made out the truth of the assertion contained in the question.

It follows that paragraphs 1-12 in their present form are embarrassing in that they contain irrelevant material and fail to disclose a reasonable defence to the plaintiffs’ injurious falsehood claims. They fail to discharge the basic obligation of informing the plaintiffs of the defence which they have to meet. Accordingly paragraph 1-12 of the Defence should be struck out.

Paragraphs 14-61 of the Defence are directed to specific paragraphs of the second plaintiff’s defamation claim which pleads eleven publications including their re-publication. The Defence may be summarised as:

In submissions the plaintiffs advised the Court that they did not press their application in relation to paragraphs 49a, 49b and 49c as set out above. Accordingly, paragraphs 13, 14, 15, 18, 19, 22, 23, 26, 30, 31, 34, 35, 38, 39, 42, 43, 46, 47, 50, 51, 54, 55, 58 and 59 of the Defence are not subject to challenge by the plaintiffs in the strike out motion and can remain as pleaded.

Paragraphs 16, 20, 24, 28, 32, 36, 40, 44, 48, 52, 56 and 60 are expressed in identical terms, i.e. “particulars include but are not limited to paragraphs 1-12 above”. When looked at in context, and having regard to the discursive and essentially irrelevant nature of much of the material in paragraphs 1-12, the paragraphs are meaningless. For them to perform any useful function in the Defence, at the very least further particularisation is required so that the paragraphs relied upon are identified and the purpose of that identification and reliance is set out. As currently pleaded, the meaning of those paragraphs is quite opaque and they should be struck out.

Paragraphs 17, 21, 25, 29, 33, 37, 41, 45, 49, 53, 57 and 61 are all expressed in identical terms. Paragraph 17 exemplifies the format used by the defendant:

There are a number of deficiencies in that form of pleading. The paragraphs fail to comply with either the general or specific rules applicable to a defamation Defence and do not attempt to articulate with particularity a single defence in response to the Statement of Claim. The requirements for the pleading and particularisation of Defences set out in UCPR 14.31-14.40 and 15.21-15.30 have not been complied with. Even if the mere reference to a Defence might be considered sufficient to comply with a requirement in Division 6 of Part 14 UCPR, there are no particulars in compliance with Division 4 of Part 15.

By way of illustration, it is insufficient merely to refer to some of those defences in the manner pleaded. The justification defence does not reveal to which imputations it is directed and the contextual truth defence does not plead a single contextual imputation said to be conveyed in addition to the plaintiffs’ imputations.

There are no particulars of the facts, matters and circumstances on which the defendant relies to prove any of these defences, contrary to Sims v Wran [1984] 1 NSWLR 317 (Hunt J). As a result, the pleading fails to perform the very basic task of informing the plaintiffs of the case they will be required to meet. What the defendant has done in substance is simply to refer to defences or a decided case without more. This does not amount to compliance with those provisions of the UCPR applicable to claims in defamation. Accordingly, this is not a case where the Defence simply fails to disclose a reasonable defence, but rather fails to disclose a defence at all.

Finally, the reference to interrogatories and discovery in paragraph 62 of the Defence should be struck out. It is not appropriate to include those matters in a Defence. To the extent that paragraph 62 of the Defence is to be understood as an application for an order that the plaintiffs answer interrogatories and give discovery, such an application is premature. As I explained in Munsie v Dowling:

Observations to similar effect were made by Walton J in Doe 1 v Dowling at [41].

It follows from the above that paragraphs 17, 21, 25, 29, 33, 37, 41, 45, 49, 53, 57, 61 and 62 of the Defence should be struck out.

The plaintiffs sought an order for costs on an indemnity basis. In support of that submission the plaintiffs relied upon the letter of 20 July 2018 in which they had pointed out the deficiencies in the Defence. The plaintiffs submitted that despite them doing so, the defendant had done nothing to address the matters which they had brought to his attention. The plaintiffs also submitted that the defendant was aware that his Defences in other defamation proceedings were in similar terms and had been struck out. The plaintiffs submitted that with such knowledge, the defendant should have addressed the matters raised by them in their letter.

When the question of the costs of the strike out motion was raised with the defendant he could not offer any reason as to why he should not pay those costs. Accordingly, the only issue before the Court is the basis upon which those costs should be assessed.

Although there is considerable force in the submission of the plaintiffs, I am not prepared to order indemnity costs against the defendant in relation to the strike out motion. Although the defendant has experience in the defamation jurisdiction, and has been the subject of other strike out applications in the past, due allowance has to be made for the fact that he is not legally trained and may well have struggled to understand the full effect of the solicitor’s letter of 20 July 2018.

For similar reasons, I propose to grant leave to the defendant to file and serve an Amended Defence which complies with the UCPR. Given the somewhat glacial pace with which this matter has proceeded, the defendant should not be given an unlimited time within which to re-plead his Defence. I propose to allow 28 days.

The orders which I make in relation to the strike out motion are as follows: