The proceedings have taken what might be considered an unusual course. The action was commenced by summons filed in this Court on 15 February 2016. On that date, the plaintiffs made an ex parte application to the duty judge for an order under s 15 of the Service and Execution of Process Act 1992 (Cth) permitting service of the originating process in another State (Victoria). They also sought an order under s 17 of that Act abridging the time within which Mr Mulvany would be required to enter an appearance. The basis for seeking that abridgment of time was the alleged urgency of the interlocutory relief sought: cf s 17(2) of the Act.
The matter was stood over to 23 February 2016 for an application by the plaintiffs for interim injunctions requiring Mr Mulvany to remove certain articles from the internet and restraining him from publishing certain representations and imputations. That application came before Campbell J. Mr Mulvany was represented by a Sydney-based solicitor, Mr D Fitzpatrick. By his solicitor, Mr Mulvany proffered undertakings to the Court in lieu of the injunctions sought. Justice Campbell noted the undertaking as follows:
"The Court notes the following undertakings proffered by the Defendant, without admission, to the Court: Until final hearing or further order of the Court, the Defendant will not, after 5pm, 24 February 2016, publish the following representations and imputations, or imputations and representations to the same effect:
a. That honey marketed and sold under the "Capilano" brand is made wholly or partially from honey that has been imported;
b. That honey marketed and sold by the First Plaintiff, whether under the "Capilano", "Allowrie", "Smiths", "Wescobee" or any other brand, is toxic or poisonous;
c. That honey marketed and sold by the First Plaintiff, whether under the "Capilano", "Allowrie", "Smiths", "Wescobee" or any other brand, is contaminated by antibiotics or pollution;
d. That the Plaintiffs deliberately mislead consumers to believe that honey marketed under "Allowrie" and "Smiths" brands does not contain imported honey;
e. That the Plaintiffs deliberately mislead consumers to believe that honey marketed and sold by the First Plaintiff, whether under the "Capilano", "Allowrie", "Smiths", "Wescobee" or any other brand, is not dangerous to their health;
f. The Second Plaintiff, as CEO of the First Plaintiff, is motivated by greed to sell toxic honey dumped in Australia to Australian consumers;
g. The Second Plaintiff, as CEO of the First Plaintiff, put the health of Australian consumers at risk in order to become rich; and
h. The Second Plaintiff, as CEO of the First Plaintiff, is dishonest in that he has permitted the First Plaintiff to use inferior untested imported honey, thereby putting the reputation of Australia as a producer of honey at risk, and then lying about it."
The interlocutory hearing having been resolved on the basis of the undertakings proffered, the proceedings were assigned to the Defamation List.
It was accepted that the matter should proceed on pleadings in accordance with the usual procedure in proceedings in that list. Three separate orders were made requiring the plaintiffs to file a statement of claim (by 3 June 2016, 12 August 2016 and 23 September 2016 respectively). The statement of claim was ultimately filed on 30 September 2016. The defendant, in turn, failed to comply with two orders to file a defence (by 30 November 2016 and 27 January 2017 respectively). A defence was ultimately filed on 5 April 2017.
The defence admitted publication of the matters complained of, denied that the representations and imputations pleaded arise or were published of and concerning the relevant plaintiff and otherwise pleaded no substantive defences. There were no further pre-trial applications and no orders were sought or made for discovery or interrogatories. The proceedings were listed for hearing for two days commencing on 25 May 2017.
Prior to the hearing date, the parties participated in a mediation. Mr Mulvany was at that time represented by Mr Smark SC, a Sydney-based barrister who had accepted instructions on a pro bono basis. At the conclusion of the mediation, which I understand was the night before the hearing, Mr Mulvany terminated Mr Smark's services. The following morning, Mr Mulvany sought to have the hearing date vacated. The defendants consented to that course on the basis that the undertakings given to the Court by Mr Mulvany at the hearing before Campbell J would be replaced by interlocutory injunctions. Justice Rothman was satisfied that the injunctions sought should be granted. On the application of the plaintiffs, his honour was also persuaded to make orders imposing additional restraints.
Justice Rothman made the following orders:
"1. Until further order, the defendant is restrained from publishing the representations and imputations set out in paragraph 2a-h of the Court's Order of 24 February 2017, or representations and imputations to like effect [this order was later corrected under the slip rule to reflect the correct date of Campbell J's orders, namely, 23 February 2016].
2. Until further order, the defendant is restrained from publishing the following representations and imputations, or representations and imputations to the following effect:
a. That honey marketed and sold by the First Plaintiff, whether under the "Capilano", "Allowrie", "Smiths", "Wescobee", or any other brand is dangerous or contaminated.
b. That the First Plaintiff, or any of its officers, are corrupt.
c. That the First Plaintiff, or any of its officers, are bullies.
d. That the First Plaintiff, or any of its officers, are dishonest.
e. That the First Plaintiff illegally imports and sells honey.
f. That the First Plaintiff exploits or mistreats bees.
g. That the First Plaintiff has demanded that retailers remove competitor brands from their shelves.
h. That the First Plaintiff or any of its officers are misogynist or sexist.
i. That the First Plaintiff has bribed Choice and/or public officials.
j. That the First Plaintiff is in breach of labelling laws.
k. That the First Plaintiff has lobbied for a change to labelling laws to dilute or weaken them.
I. That the First Plaintiff has damaged or tarnished the Australian honey producing industry and Australian beekeepers.
3. Until further order, the defendant, by 4pm on 31 May 2017, remove or cause to be removed the following publications, tweets and posts:
a. the post referred to in paragraph 1aii of the Court's Order of 24 February 2017;
b. the matters set out under the heading "Relief Claimed" in paragraph 2i-liv of the statement of claim filed herein;
c. the matters set out in Schedule A to these orders;
d. the matters set out in Schedule B to these orders.
4. Until further order, the defendant is restrained from publishing the publications, tweets and posts referred to in order 3, or any publication, tweet or post to like effect."
In a judgment publishing reasons for making those orders, Rothman J said at [3] (emphasis added):
"Notwithstanding the prejudice to the plaintiff, they were prepared to consent to the vacation of the final hearing dates, but press, in the interim, the making of interlocutory orders and the continuation of interlocutory orders. The Court has treated the application for interlocutory orders as if they were made ex parte, notwithstanding the presence in the Court of the defendant. The reason is that, as earlier stated, the defendant was no longer represented and had dismissed his legal representatives the evening before the proceedings were due to commence."
His Honour reiterated that the orders should be regarded as having been made ex parte at [5] of the judgment, saying:
"While the defendant addressed the Court on the nature of the orders and whether there had been deliberate or reckless or careless breaches of previous undertakings, the lack of opportunity for the defendant to prepare properly for the application for interlocutory orders and/or the hearing is such that these interlocutory orders ought properly to be treated as if they were made ex parte."
The proceedings came back into the Defamation List on 16 June 2017. Shortly before that date (on 14 June 2017), Mr Mulvany (still acting for himself) served a notice of motion seeking to have the orders made by Rothman J varied so as to delete the restraint in order 2(c) (which restrained him from publishing an imputation to the effect "that first plaintiff, or any of its officers, are bullies"). The motion also sought other relief which was later acknowledged to be misconceived.
On 16 June 2017, in response to a request as to whether it would assist Mr Mulvany to have a referral for pro bono legal assistance, he said:
"Absolutely. Obviously, I'm quite ignorant to how it all works, even to have the proceedings here and not Melbourne. I'm a single father. I tragically lost my partner last summer, and my son's mum. I'm actually probably his full time carer, is really what I am." (emphasis added)
Asked what connection the proceedings had with Sydney, the plaintiffs submitted "that's where everybody was ... except Mr Mulvany". I referred Mr Mulvany to the Registrar for referral to a barrister or solicitor on the pro bono panel for the purpose of obtaining advice in relation to his notice of motion and representation at the hearing of that motion: Capilano Honey Ltd v Mulvany [2017] NSWSC 833.
Mr Mulvany subsequently obtained the services of a Victorian solicitor, Mr Morehead, who appeared at the hearing of the motion on 4 August 2017. Mr Morehead pressed only the relief sought in respect of order 2(c) of the orders of Rothman J. During that hearing, Mr Morehead reiterated Mr Mulvany's concern as to having to conduct the case in Sydney and foreshadowed an application to have the proceedings transferred to that State.
The plaintiffs sought to have Mr Mulvany's motion determined by reference to a proposed amendment to their pleading which had evidently been foreshadowed at the hearing before Rothman J but never filed. The hearing of the motion was adjourned to allow the plaintiffs to make that amendment. The amended pleading was filed on 14 August 2017 and I then heard further argument on the motion.
I determined Mr Mulvany's application on 1 September 2017, granting the narrowed relief sought: Capilano Honey Ltd v Mulvany (No 2) [2017] NSWSC 1237. On the same date, I directed the defendant to file any application to transfer the proceedings to Victoria by 22 September 2017 and to file and serve his amended defence by 20 October 2017.
The notice of motion seeking transfer of the proceedings to Victoria was filed on 26 September 2017. No amended defence was filed.
On four subsequent occasions, listings were vacated by consent on the basis that the parties were attempting to resolve the proceedings. The proceedings ultimately came back before the Court on 2 March 2018. On that date, I made a further direction requiring the defendant to file and serve any amended defence by 28 March 2018. At the same time, I listed the defendant's cross-vesting application for hearing on 20 April 2018. On that date, the parties were still engaging in settlement discussions and requested a further adjournment of 2 weeks.
In the meantime, on 5 April 2018, Mr Morehead filed a notice of ceasing to act. Accordingly, at the hearing of the application to have the proceedings transferred to Victoria, Mr Mulvany was again self-represented.