Munsie v Dowling [No 11]

HIS HONOUR:

The plaintiffs sought permanent injunctive relief against the defendant to restrain him from publishing specific publications and from publishing any material of and concerning the plaintiffs, to like effect and/or containing the same imputations.

Further information about the background to the claim can be found in the judgments of Justine Munsie and Anor v Shane Dowling [2014] NSWSC 962 (Nicholas AJ) and Munsie v Dowling (No 10) [2018] NSWSC 709 (Rothman J).

The final hearing of the matter was fixed before Rothman J on 24 April 2017. When the matter was called, there was no appearance by the defendant. Mr Dawson SC appeared on behalf of the plaintiffs. The matter proceeded in the absence of the defendant.

Rothman J delivered judgment on 21 May 2018 (Munsie v Dowling (No 10)). The effect of that judgment was to permanently restrain the defendant from publishing the material identified in that judgment. There has been no appeal from the judgment. The only outstanding matter is the question of costs which has been fixed for hearing later this month.

On 17 April 2019, the defendant, without leave, purported to file in the Registry a Notice of Motion in those proceedings. The persons identified as being affected by the orders sought were the plaintiffs, Mr Dawson SC, Messrs Richard Keegan, Martin O’Connor and Alexander Latu, Seven West Media Limited and “Addisons Lawyers”. Messrs Keegan, O’Connor and Latu are not otherwise identified nor is any reason offered as to why those persons, Seven West Media Limited and Addisons Lawyers should be parties to the proceedings.

The orders sought in the motion were:

Attached to the Notice of Motion, as Annexure “A”, was a document entitled “Statement of Charge”. The document purported to set out a factual basis for proceedings for contempt to be brought against the persons said to be affected by the orders sought in the Notice of Motion.

In support of the motion, there was an affidavit of Mr Dowling dated 17 April 2019 and filed in the Registry on that date. It purported to provide the factual background to the orders sought in the motion. It comprised a re-statement of the document entitled “Statement of Charge” attached to the Notice of Motion and had annexed to it correspondence and affidavits sworn by Ms Munsie and filed in these proceedings. That material provided no basis for the orders sought in the motion.

The motion came before the Court on Friday 3 May as part of the Defamation List. The defendant Mr Dowling appeared for himself and Mr Gray SC appeared on behalf of the respondents to the Notice of Motion.

As a preliminary matter, the defendant objected to my dealing with the Notice of Motion on the basis that by judgment dated 11 February 2015 I had struck out the defendant’s Amended Defence. The defendant submitted that by reference to apprehended bias principles I should disqualify myself.

I declined to recuse myself. Apart from the strike out judgment, I have had nothing to do with the matter until it appeared in the Defamation List as already referred to. The strike out matter was an interlocutory application and there was no occasion for me to consider the merits of the claim. The strike out application did not give rise to any occasion for assessing the credit of the defendant or the merits of the proceedings. In any event, having struck out the Defence, I granted leave to the defendant to re-plead.

The defendant was unable to offer any basis as to why he should be allowed to proceed on the Notice of Motion in circumstances where the matter had been heard and judgment entered in respect of all outstanding matters except costs. The defendant could offer no explanation for why it was sought to join for the first time, parties who had not previously played any part in the proceedings.

In those circumstances, I refused leave to the defendant to file the Notice of Motion and Affidavit in Support and ordered that the Notice of Motion be dismissed.

Given that the Notice of Motion raised an accusation of contempt of court, albeit one as misconceived as this, it was reasonable that Mr Gray SC was retained to appear on behalf of the respondents. This is particularly so in circumstances where it was not possible for Mr Dawson SC to appear since he had been named as a respondent to the Notice of Motion. Accordingly, I order that the defendant pay the costs of the respondents to the Notice of Motion.