CIVIL PROCEDURE - Judges - Actual or apprehended bias - Apprehended
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CIVIL PROCEDURE - Judges - Actual or apprehended bias - Apprehended
Judgment (10 paragraphs)
[1]
Summary
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).
[2]
Disqualification - the facts
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").
[3]
Disqualification - the law
The general test is set out in the judgment of Gleeson CJ, McHugh, Gummow and Hayne JJA in Ebner (citations omitted):
"6 Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle.
7 The apprehension of bias principle may be thought to find its justification in the importance of the basic principle, that the tribunal be independent and impartial. So important is the principle that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined. There are, however, some other aspects of the apprehension of bias principle which should be recognised. Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability. Similarly, if the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge or juror.
8 The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an "interest" in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed."
In resolving this issue I have also borne in mind these further observations of the plurality in Ebner:
"19. Judges have a duty to exercise their judicial functions when their jurisdiction is regularly invoked and they are assigned to cases in accordance with the practice which prevails in the court to which they belong. They do not select the cases they will hear, and they are not at liberty to decline to hear cases without good cause. Judges do not choose their cases; and litigants do not choose their judges. If one party to a case objects to a particular judge sitting, or continuing to sit, then that objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case."
The background and decision in Ciccone appears sufficiently from this passage (at 127-128):
"The sound instinct of the legal profession - judges and practitioners alike - has always been that, save in the most exceptional cases, there should be no communication or association between the judge and one of the parties (or the legal advisers or witnesses of such a party), otherwise than in the presence of or with the previous knowledge and consent of the other party. Once the case is under way, or about to get under way, the judicial officer keeps aloof from the parties (and from their legal advisers and witnesses) and neither he nor they should so act as to expose the judicial officer to a suspicion of having had communications with one party behind the back of or without the previous knowledge and consent of the other party. For if something is done which affords a reasonable basis for such suspicion, confidence in the impartiality of the judicial officer is undermined.
It has, therefore, long been accepted that a judge or magistrate does not normally go on a view in the company of one party only or of a legal adviser or of a witness for one party only. Indeed, it is seldom if ever desirable for him to go in the presence of the parties only. He ought either to go in the company of the legal advisers of both parties or in the company of his own personal staff or such staff as is available in the circumstances.
In my view, the conduct of the magistrate in travelling from the court house to the subject house in company with counsel for the responding in a car driven by one of the witnesses for the respondent was most indiscreet. I should add here, that there is nothing to indicate that at the stage when the magistrate accepted the lift from Mr George that he was aware that George was to be a witness in the case. When the arrangement was made at the courthouse, neither the applicant nor any of his legal advisers was present, but the magistrate had information which ought to have led him to believe that the applicant and his legal advisers would be at the house. In those circumstances it was extremely indiscreet for counsel for the respondent to have proposed, and for the magistrate to have accepted, a lift in the car driven by the witness George in which counsel for the respondent was travelling as a passenger. Even if the magistrate was not aware at that stage that George was to be a witness (and I see no basis on which I could infer that he was so aware), counsel must surely have been aware of this fact and ought not to have placed the magistrate in that embarrassing position.
Worse still, when the view was completed (and it must be emphasized that at the view the magistrate was careful to proceed on the view in company of both counsel), the magistrate returned in the same car as he had arrived. There is no evidence of any suggestion that the applicant's counsel should join the magistrate and counsel for the respondent on the return journey. Nor does it appear that the applicant's counsel was asked whether he consented to or had any objection to the magistrate travelling in the same car as counsel for the respondent."
[4]
Disqualification - resolution
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.
[5]
Discovery and interrogatories - the Seven contempt motion
The statement of charge which is part of the Seven contempt motion includes:
"6. From 6pm on 19 April 2017 in contumacious disobedience of Order 4 of the 19 April Orders, and thereby committing a contempt of the Court, the defendant disclosed and published the content of text messages described in Confidential Exhibit RMK1 to the affidavit of Richard Michael Keegan sworn 19 April 2017 in this proceeding.
7. From 6pm on 19 April 2017 in contumacious disobedience of Order 5 of the 19 April Orders, and thereby committing a contempt of the Court, the defendant disclosed and published the content of the [Article] as defined in the affidavit of Richard Michael Keegan sworn 19 April 2017 in this proceeding.
8. From 6pm on 19 April 2017 in contumacious disobedience of Order 6 of the 19 April Orders, and thereby committing a contempt of the Court, the defendant failed to remove from the [Other] Website the [Article] as defined in the affidavit of Richard Michael Keegan sworn 19 April 2017 in this proceeding.
9. From 6pm on 19 April 2017, in contumacious disobedience and contravention of Order 7 of the 19 April Orders, and thereby committing the offence of contravention of suppression order provided for in s 16 of the Court Suppression and Non-publication Orders Act 2010 (NSW), the defendant disclosed and published the matters referred to in Order 7 made on 19 April 2017, namely, the content of text messages referred to in the 17 April Tweet and the [Article] as defined in the Affidavit of Richard Michael Keegan sworn 19 April 2017. …
11. From 20 April 2017, in contumacious disobedience and contravention of Order 1 of the 20 April Orders, and thereby committing the offence of contravention of suppression order provided for in s 16 of the Court Suppression and Non-Publication Orders Act 2010 (NSW), the defendant disclosed and published the matters referred to in Order 1 made on 20 April 2017, namely, identifying the defendant's website in relation to these proceedings without leave of the Court.
Particulars
12. From 8pm on 19 April 2017 until approximately 14 June 2017, the defendant continued to publish the [Article] on the [Other] Website which published and disclosed the content of text messages subject to the suppression order in Order 7."
[6]
Discovery and interrogatories - the law
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:
"4. The Court will not make an order for disclosure of documents (disclosure) until the parties to the proceedings have served their evidence, unless there are exceptional circumstances necessitating disclosure.
5. There will be no order for disclosure in any proceedings in the Equity Division unless it is necessary for the resolution of the real issues in dispute in the proceedings."
UCPR Part 21 includes:
"21.1 Definitions
…
(2) For the purposes of this Division, a document or matter is to be taken to be relevant to a fact in issue if it could, or contains material that could, rationally affect the assessment of the probability of the existence of that fact (otherwise than by relating solely to the credibility of a witness), regardless of whether the document or matter would be admissible in evidence.
21.2 Order for discovery
(1) The court may order that party B must give discovery to party A of:
(a) documents within a class or classes specified in the order, or
(b) one or more samples (selected in such manner as the court may specify) of documents within such a class.
(2) A class of documents must not be specified in more general terms than the court considers to be justified in the circumstances.
(3) Subject to subrule (2), a class of documents may be specified:
(a) by relevance to one or more facts in issue, or
(b) by description of the nature of the documents and the period within which they were brought into existence, or
(c) in such other manner as the court considers appropriate in the circumstances.
(4) An order for discovery may not be made in respect of a document unless the document is relevant to a fact in issue."
Interrogatories are governed by UCPR Part 22 rr 22.1 and 22.2, which include:
"22.1 Interrogatories
(1) At any stage of the proceedings, the court may order any party to answer specified interrogatories.
…
(4) In any case, such an order is not to be made unless the court is satisfied that the order is necessary at the time it is made.
22.2 Objections to specific interrogatories
A party may not object to being ordered to answer an interrogatory except on the following grounds:
(a) the interrogatory does not relate to any matter in issue between that party and the party seeking the order,
(b) the interrogatory is vexatious or oppressive,
(c) the answer to the interrogatory could disclose privileged information."
[7]
Discovery and interrogatories - resolution
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:
1. Impermissibly broad (contrary to UCPR Part 21 r 21.2(2)) including, but not limited to, by use of the expression "regarding";
2. Not relevant to any fact in issue - ownership of the Other Website during the period 19 April 2017 to 14 June 2017 (see paragraph [28] above) - which of itself is a complete answer to Mr Dowling's application (see UCPR Part 21 r 21.2(4)); and
3. Unlimited as to time (see UCPR Part 21 r 21.2(3)(b)).
To avoid unnecessary repetition, I will refer to these as the "Reasons". Furthermore, I express at this point the additional, general conclusion that a proposed category for discovery which is deficient for some reason, including the Reasons, cannot be "necessary" for the purposes of paragraph 5 of Practice Note SC Eq 11 (see paragraph [25] above) and, in accordance with that paragraph, the Court will not exercise its discretion under UCPR Part 21 r 21.2 to order discovery in those terms.
Paragraph 7 of Mr Dowling's contempt motion seeks:
"7 Kerry Stokes, Bruce McWilliam and Tim Worner provide to the court their personal and work computers so they can be copied given the court has copied my computer on their behalf and given them a copy."
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:
"8 A copy of all communication including but not limited to all emails, letters, notes, file notes, text messages and documents etc in the possession of Seven Network (Operations) Limited (ABN 65 025 845 262) and/or Seven West Media Limited (ABN 91053 480 845) and/or its associated companies regarding the [Other Website].
9 A copy of all communication including but not limited to all emails, letters, notes, file notes, text messages and documents etc in the possession of Seven Network (Operations) Limited (ABN 65 025 845 262) and/or Seven West Media Limited (ABN 91053 480 845) and/or its associated companies regarding the ownership of the [Other Website]."
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:
"10 A copy of all communication including but not limited to all emails, letters, notes, file notes, text messages and documents etc in the possession of Seven Network (Operations) Limited (ABN 65 025 845 262) and/or Seven West Media Limited (ABN 91053 480 845) and/or its associated companies regarding the fake Amber Harrison GoFundMe page set up by Addisons lawyers as reported by New Matilda at: https://newmatilda.com/2017/09/27/exclusive-channel-7s-lawyers-created-a-fake-gofundme-page-under-the-name-of-amber-harrison/"
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:
"11 A copy of all communication including but not limited to all emails, letters, notes, file notes, text messages and documents etc in the possession of Seven Network (Operations) Limited (ABN 65 025 845 262) and/or Seven West Media Limited (ABN 91053 480 845) and/or Its associated companies regarding the website: https:/therealamberhiarrison.wordpress.com/"
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:
"12 A copy of all communication including but not limited to all emails, letters, notes, file notes, text messages and documents etc in the possession of Seven Network (Operations) Limited (ABN 65 025 845 262) and/or Seven West Media Limited (ABN 91053 480 845) and/or its associated companies regarding the "Dowling clause" in the Simon Mulvany deed od [sic] release."
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:
"13 A copy of all communication including but not limited to all emails, letters, notes, file notes, text messages and documents etc in the possession of Seven Network (Operations) Limited (ABN 65 025 845 262) and/or Seven West Media Limited (ABN 91053 480 845) and/or its associated companies regarding Justine Munsie writing the affidavit, dated the 14th of April 2014, for Kerry Stokes."
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:
"14 Kerry Stokes, Bruce McWilliam and Tim Worner be subpoenaed to give evidence under oath in the applicants' Notice of Motion for contempt (Filed in 2017) against me."
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:
"15 Interrogatories for Kerry Stokes to answer under oath:
1. Do you or any of your companies own the [Other Website]?
2. Do you or any of your companies own the website: https://therealamberharrison.wordpress.com/?
3. Did you or any of your employees direct lawyers at Addisons to set up the fake Amber Harrison GoFundMe page?"
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.
[8]
Costs
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.
[9]
Conclusion
The orders of the Court are:
1. The defendant's application that I should disqualify myself from hearing these proceedings is dismissed.
2. Paragraphs 6 to 15 of the defendant's notice of motion filed 2 July 2019 are dismissed.
3. The defendant is to pay the plaintiff's costs of and incidental to the hearing of those paragraphs of the defendant's notice of motion.
[10]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 06 September 2019