This decision is another interlocutory judgment in a long line of interlocutory decisions made by judges of this Division in relation to a defamation case brought by Kerry Stokes and his solicitor, Ms Munsie, against Mr Dowling, the publisher and author of material published on a website known as Kangaroo Court of Australia. I do not propose to recite in any detail the background facts giving rise to either the principal proceedings or the dispute that I am called upon to resolve. In respect of that latter matter, I will refer to certain publications to the extent necessary to explain the reasons for the decision I am going to give.
I simply record that amongst the many decisions given in the Common Law Division are the decision of Harrison J in [2014] NSWSC 458; a decision of Hall J in [2014] NSWSC 598, a decision of Nicholas AJ in [2014] NSWSC 962 (his Honour gave a second decision in relation to penalty for contempt); the decision of Adams J in [2014] NSWSC 1508; and a decision of the Chief Judge at Common Law in [2015] NSWSC 37.
The broader factual background to this litigation can be gleaned by interested parties by reference to those previous decisions. The facts were, however, with respect, succinctly stated in summary form by Hoeben CJ at CL in his decision at [7] to [14].
The only principal relief sought by the plaintiffs is a permanent injunction restraining the defendant from publishing the material that they say is defamatory of them and a mandatory injunction requiring him to remove, or take down, that material from his website. Interlocutory injunctions to that effect have been pronounced by Hall J on 16 May 2014 and by Adams J on 11 June 2014.
It should be recorded, because Mr Dowling relies upon it, that Harrison J declined to make such orders relying upon the great caution, or restraint, with which the power to grant interlocutory injunctions is exercised in defamation cases. See Australian Broadcasting Corporation v O'Neill [2006] HCA 46; 227 CLR 57 at 66[16] Gleeson CJ and Crennan J.
The application before me, in effect, is to extend the ambit of the interlocutory injunctions made by Hall J and Adams J. To put the matter shortly, on the evidence read before me consisting of a number of affidavits of Richard Michael Keegan, the solicitor with the carriage of the matter on behalf of the plaintiffs, Mr Dowling has both omitted to take down material the subject of previous interlocutory injunctions and published further articles and other matter which the plaintiffs say is equally defamatory of them. Indeed, when the matter was before me for hearing on Wednesday, 17 June 2015 I gave leave to add a Mr Ryan Stokes as a third plaintiff as some of the additional material appears to be defamatory of him.
The new material may be given short titles in accordance with the method that has been adopted in the principal pleadings. They may be referred to as:
1. the 29 March article;
2. the 10 May article;
3. the Stokes tweets;
4. the judicial favours tweet;
5. the judicial favours article and
6. the ICAC article.
Without attempting to overly extend this oral judgment, it may be said that the material is clearly defamatory of the plaintiffs subject to any defence that may be raised. Mr Dowling certainly purports to raise every defence known to the law of defamation. I will return to that matter in a moment. But dealing with the 29 March 2015 article, on the whole, it purports to be a report of a success Mr Dowling enjoyed under the federal freedom of information legislation in obtaining copies of some documents from the National Library of Australia.
A little background needs to be provided. Mr Ryan Stokes, the third plaintiff, a person well known in business is also the chairman of the National Library. After the publication of the original material which has given rise to, perhaps launched might be another way of putting it, this litigation the solicitor for Mr Stokes, who is the first plaintiff, wrote to the National Library invoking its policy in relation to removing from access material found to have been defamatory. A decision to comply with the request was made.
Mr Dowling sought access to documents relating to that matter from the library. Initially his request was substantially refused and, as I have said, he was successful in his application to the Office of the Australian Information Commissioner; the Privacy Commissioner, Mr Tim Pilgrim, making a decision mostly in his favour on 27 March 2015.
The 29 March article purports to record that result and to discuss it. However, in the course of that apparently innocent purpose Mr Dowling wrote after referring to Messrs Stokes:
It's a stick of dynamite that has the potential to drag in a lot of the people who is evolving into a national corruption scandal. The FOI fight involves myself, the NLA, Kerry Stokes and now many others.
It also states:
What is disturbing is that Mr Stoke's son, Ryan, is the chairman of the Australian National Library and even worse is that there was no legal basis for the NLA to stop archiving my website.
The clear input of what is written, suggesting an unlawful arrangement, for corrupt purposes, is made clearer yet by the 10 May article. It states that the documents that Mr Dowling obtained under the freedom of information legislation: "show, Seven Group CEO Ryan Stokes, lying, deceiving and acting corruptly as chairman of the National Library of Australia (NLA) for the benefit of his father Kerry Stokes". It also says that the library, its Director General and Kerry Stokes "fought hard to conceal the documents which shows corrupt and criminal conduct".
An allegation is made that the library spent taxpayers' money trying to conceal Mr Stokes Senior's identity when they knew they had no legal basis for doing so. It asserts that that conduct is "plain corruption". I need not multiply the examples. Matters of that tenor continue throughout the material.
The so called Stokes tweets are tweets which repeat and recite similar information to those matters drawing attention to Mr Dowling's website. I will permit myself to say that the judicial favours tweet and judicial favours article include the most scurrilous and baseless allegations against a judge of this Division. I will leave that to one side. They also are clearly defamatory of the plaintiffs. The gravamen is that a judge of this Division takes bribes and does judicial favours for the judge's friends. Not only does that matter defame the judge, it defames the persons who are said to be the judge's friends, and, for what it is worth, including learned counsel for the plaintiffs.
The clear import of the matter, although again it is rather dressed up by including long quotes from the transcript of proceedings taken in court, is that the first and second plaintiffs, bribe judicial officers in exchange for a beneficial exercise of judicial power. Anyone would recognise that matter as an odious form of corruption, were it true. And if not as defamatory.
The ICAC article continues the judicial favours theme. Again, it purports to suggest that ICAC is investigating the matters, the subject of the judicial favours article and is asking Mr Dowling to provide evidence or information to it.
From the letter from ICAC tendered as Exhibit 1 by Mr Dowling it is clear that ICAC's "involvement" arose because Mr Dowling copied ICAC officers into an e-mail to third persons. Those third persons were judges of this court. There is no formal complaint by Mr Dowling at all and, indeed, the letter indicates that given the indirect notification ICAC is bound to assess the matter but "not all matters received by the Commission result in an investigation".
The allegations he makes about bribery and judicial favours are recorded and he is asked to provide the information that substantiates those allegations. This a far cry, it might be said, from the suggestion that ICAC are requesting evidence about the second and third plaintiffs receiving judicial favours.
Mr Dowling states accurately that ICAC is doing an assessment but he claims this is due to a documented complaint that he made, which as I have said is not true. The allegations about judicial corruption for the benefit of the plaintiffs are extended to the third plaintiff. Essentially the article re-hashes, and re-states, and re-publishes much of the material the subject of the orders made by Hall J and Adams J at different times in 2004. He frankly alleges that the plaintiffs are colluding to suppress the truth and that ICAC have no choice but to investigate given the gravity of the allegations and the powerful evidence of weight showing favouritism, and corruption, by the judges in favour of the plaintiffs.
Special rules apply to the exercise of the court's power to grant interlocutory relief in cases of defamation as the reference to ABC v O'Neill I have made amply demonstrates. The relevant principles were, with great respect, pithily summarised by Hall J in his decision at [54] to [60] and in particular, at [57] to [59].
It is worth simply reciting that the fundamental reason why the court's powers are exercised with great caution is to uphold the fundamental value of freedom of speech and to bolster the sanctity of a jury's decision on the defence of justification. Normally, at least at the time that ABC v O'Neill was decided, such matters were decided by a jury rather than a judge. However that may be, and bearing that caution firmly in mind, as the joint judgment of Gummow J and Hayne J demonstrates, the usual principles concerning the grant of interlocutory injunctions as established by the joint judgment in Beechman Group Ltd v Bristol Laboratories Pty Limited [1968] HCA 1; 118 CLR 618 apply.
From the summary I have given of the new material, I think it clear that the plaintiff has well and truly established that there is a serious question to be tried in relation to the vindication of their reputation. That is to say, they have shown a serious question arising about the infringement of their rights. The question of the balance of convenience, as Hall J indicated, largely depends upon whether it can be seen that the apparently seriously defamatory material published by the defendant can be defended. As Hunt J (as his Honour then was) put in Church of Scientology of California Inc v Reader's Digest Services Pty Ltd [1980] 1 NSWLR 344 at 354:
...a defendant is not required on an application such as this to lead the evidence upon which he relies to establish the defences asserted. In some cases, particularly where such defences are not clear from the matter complained of itself, or from the circumstances of its publication as established by the plaintiff, or otherwise, it will be advisable for a defendant to produce some evidence to permit the Court to say that those defences have some prospect of success. Even then, the evidence need not be such that the defence is thereby proved; all that is needed is sufficient to suggest the defence in a manner and with circumstances which show that there is a case for consideration by a jury or the trial judge, as the case may be...
I think however that this amounts to more than what might be necessary for a defence to show or demonstrate a triable issue in the case where summary judgment is sought.
As Harrison J pointed out in his decision at [50], the judgment of Lord Denning MR in Hubbard v Vosper [1972] 2 QB 84 at 96 provides considerable insight. His Lordship said:
In considering whether to grant an interlocutory injunction, the right course for a judge is to look at the whole case. He must have regard not only to the strength of the claim but also to the strength of the defence, and then decide what is best to be done. Sometimes it is best to grant an injunction so as to maintain the status quo until the trial. At other times it is best not to impose a restraint upon the defendant but leave him free to go ahead...The remedy by interlocutory injunction is so useful that it should be kept flexible and discretionary. It must not be made the subject of strict rules.
It seems to me looking at the whole case the balance of convenience favours the grant of an interlocutory injunction of the type granted by Hall J and Adams J extending to these additional publications in the circumstances of this case.
Mr Dowling relied upon justification but in respect, none of the publications with which I am concerned did he put forward any material from which I could infer that at any trial of this matter, there will be evidence available which, if accepted by the tribunal of fact, will make good the truth of the matters I have referred to as the subject of these further publications.
Indeed, the correspondence he obtained from the National Library under his successful freedom of information application, which he tendered in his case, rather tends to establish the opposite of the truth of the allegations he makes in his articles. It tends to demonstrate that a complaint was received through proper channels from a solicitor acting for a client and that a decision was made by the internal management of the library in accordance with its established procedures. There is not a steric of any suggestions in any way that decision was influenced by the second plaintiff or, for that matter, the third plaintiff.
There is nothing to suggest the truth of any of the matters complained of by the plaintiffs in various additional publications the subject of this judgment.
Mr Dowling also relies upon qualified privilege and says that only people interested in what he has to say access the information he publishes on his website. From that, one can see that he entirely misconceives the purport of the conveying of information to a person with a legitimate interest in it for the purpose that defence. There is nothing from which I can infer that such a defence can be made good at trial.
The same may be said of his reliance upon the so called implied freedom of contribution to political debate arising out of the system of representative government established by the Constitution.
None of the plaintiffs can properly be regarded as engaged in governmental process notwithstanding the third plaintiff's position as chairman of the National Library. Nor can the subject matter of Mr Dowling's articles be seen, on the material he has lead before me, as being a contribution to that political debate. It is unnecessary to refer to any of the case law on the matter. The evidence before me, or lack of it, speaks for itself.
(HIS HONOUR: Mr Dawson was there another matter that he relied upon by way of a defence?
DAWSON: Yes, your Honour. He referred to the cases of Lange and Colman I think that's your Honour just dealt with.
HIS HONOUR: It is, yes.
DAWSON: The defence of public documents under section I think it's 28 of the Defamation Act.
HIS HONOUR: Thank you.)
I should also add to what I said about qualified privilege that even were I wrong in the approach I have expressed, there is nothing in the material before me that suggests that his publication of this new material in the circumstances of which it occurred was, in any way, reasonable.
The other matters he refers to are matters under s 28 in relation to public documents and I suppose matters of fair comment that may go with that. To some extent, as I have tried to point out in my description of the content of the articles, he purports to be making comments upon matters such as the decision of the Privacy Commissioner and proceedings before judges of this court.
The simple fact of the matter is his comments cannot be said to be in any way mere fair reporting of that matter or fair comment or opinion that can be supported by the material that he has put before me, which involves the transcript of the proceedings before the judge of this Division to whom I have referred, and the proceedings before the Privacy Commissioner.
In short, I am not satisfied that Mr Dowling has put any material before this court which would excite the caution and restraint that is a feature of the exercise of this power in defamation cases. It also seems to me pertinent to say that I am satisfied that damages in due course are unlikely to be an adequate remedy for the plaintiffs. Quite simply there is nothing about the circumstances of Mr Dowling or the case to suggest to me that, to borrow an expression from another area of the law, Mr Dowling is "a good common law defendant".
Moreover he has made it clear that he has failed to pay the $2,000 fine imposed upon him by Nicholas AJ. His articles also indicate, especially the ICAC article, that he has, in fact, failed to comply with previous orders of this court, that to quote him from the ICAC article, that he "take down the posts".
When I asked him whether he will comply with any order I make his response was less than clear and certainly less than a spontaneous affirmation that he would comply. I am satisfied that damages are not an adequate remedy in the current case and that the interlocutory relief previously granted should be extended to the articles the subject of this decision.
That conveniently leads me to another point which is the application under rule 40.8 Uniform Civil Procedures Rules 2005 (NSW) for a substituted performance order. That rule is in the following terms:
If a judgment requires a person to do an act and a person does not do the act, the Court:
(a) may direct that the Act be done by a person appointed by the Court, and
(b) may order the person to pay the costs incurred pursuant the direction.
As I have said, Mr Dowling seems to wear his disregard of the previous orders of this court as some kind of badge of courage. I have no confidence that he will be more compliant with the orders I pronounce than he has been with the orders pronounced previously by my colleagues. That does not mean that the court is powerless, or that the court should refrain from making orders which may be futile because of the defendant's likely complete disregard of them. I think that the application in relation to rule 40.8 in the particular circumstances of this case has considerable merit.
It seems to me that that power has particular application to a case like this where there is a long history of a certain defiance on the part of the person to whom the orders are directed.
Mr Dawson referred to a number of decisions of various courts applying the order or its equivalent. In particular I refer to Speedo Holdings BV v Evans (No 2) [2011] FCA 1227 per Flick J at [35]. Although the factors referred to there were peculiar to that case, as were the factual circumstances which engaged the exercise of the discretion there, what his Honour said about those matters provides sufficient guidance to persuade me that this too is an appropriate case to exercise that power; and I will make orders in that regard.
There is one thing that I need to address before concluding these reasons.
Mr Dowling on a number of occasions made the submission that acceding to the plaintiff's application effectively decides the case and that if the plaintiffs obtain interlocutory orders of the nature sought they have no incentive to continue with the proceedings to trial. That may be a legitimate expression of concern on the part of someone in the position of a defendant. However, it seems to me, having given that matter anxious consideration since the case was argued, that the remedy in that regard is in the defendant's own hands. If there is undue delay in bringing the matter to trial, then the defendant's remedy is to apply for a dissolution of the interim orders made by Hall J, Adams J and those that I am about to make. I do not regard that argument, on reflection, as being one which provides a discretionary reason to refuse the relief sought by the plaintiffs.
(His Honour directed the plaintiffs counsel to bring in short minutes of order giving effect to these reasons. This was done at 3:55pm and his Honour made orders in accordance with the short minutes of order dated 19 June 2015)
[3]
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Decision last updated: 24 June 2015