Seven Network (Operations) Ltd v Dowling

Seven Network (Operations) Ltd v Dowling - [2021] NSWSC 726 - NSWSC 2021 case summary — Zoe

[2]

Service of Orders

At 1.14 pm on 19 April 2017, Mr Keegan sent an email to the "gmx.com" address attaching the summons, motion, orders and Mr Keegan's affidavit of 19 April 2017, noting that orders had been made requiring immediate removal of the Fifth Blog Post. It was not removed.
On 22 April 2017, the defendant published a Tweet which Mr Keegan considered breached the Orders. On 24 April 2017, Mr Keegan sent an email to the defendant informing him accordingly, to which the defendant replied on 25 April 2017: I am not a party to the proceedings that you refer to nor am I in receipt of the court orders you mention. Can you please supply me with a copy of the court orders and advise which court order I have breached given I am not even involved in the matter? … Why you have not sent me the court orders this time to verify your claims is rather odd to say the least. The Orders were duly supplied on 26 April 2017 by an email from Mr Keegan to the defendant directly.
The defendant submitted that he was not properly served with the Orders as there was no service of a signed hard copy of the court orders with the court's official seal. Emailing the orders was not proper service. Nor was he named as a defendant when served.
Rule 10.14 of the Uniform Civil Procedure Rules 2005 (NSW) provides: Substituted and informal service generally (1) If a document that is required or permitted to be served on a person in connection with any proceedings - (a) cannot practicably be served on the person, or (b) cannot practicably be served on the person in the manner provided by law, the court may, by order, direct that, instead of service, such steps be taken as are specified in the order for the purpose of bringing the document to the notice of the person concerned. (2) An order under this rule may direct that the document be taken to have been served on the person concerned on the happening of a specified event or on the expiry of a specified time. … (3A) An application for an order under this rule must be supported by an affidavit by the applicant that includes - (a) a statement as to the applicant's knowledge of the whereabouts of the person to be served, and (b) a statement as to any communications that have occurred between the applicant and the person to be served since the cause of action in the proceedings arose (including any communications by telephone, fax or electronic mail). (4) Service in accordance with this rule is taken to constitute personal service.
The plaintiffs' application to Ward CJ in Eq for the Orders included an order for substituted service, supported by an affidavit complying with rule 10.14(3A). Her Honour made an order for substituted service. The Orders, together with supporting material, was served in accordance with order 9 made on 19 April 2017 to the email address associated with the Website, being the email ending "@gmx.com". The defendant was served in accordance with the order for substituted service, and thus the defendant, then named "Publisher X", is taken to have been personally served: rule 10.14(4). The Orders were in the proper form issued by the Court; the absence of a seal does not prevent service having taken place.
In addition, the defendant requested, and was provided with, the Orders on 26 April 2017 to an email address used by the defendant. By this means, the Orders were brought to the notice of the defendant. As will be seen, service of the Orders in accordance with the orders for substituted service also brought the Orders to the defendant's notice.

[4]

Decision on domain name complaint

On 14 June 2017 at 5.24 pm, the plaintiffs' solicitors received an email from the WIPO case manager, copied to the "gmx.com" and "privatewho.is" email addresses, attaching two PDFs, a Decision and Annex to Decision. WIPO concluded, on the balance of probabilities and for the purposes of the complaint only, that the defendant was the person responsible for the registration of the disputed domain name, and responsible for the written submissions made in the name "Ron McDonald". WIPO ordered that the disputed domain name be transferred to the plaintiffs.
The defendant submitted that WIPO's report should be rejected as biased and indicating collusion with the plaintiffs. The relevance of WIPO's decision is not the conclusion reached, to which I pay no regard, but the fact that the Decision is on the Hard Drive, in a unique form not widely available. The Decision, as attached to WIPO's email of 14 June 2017 comprised seven pages and was signed. So far as the plaintiffs are aware, the signed Decision was only published to the plaintiffs and the other email recipients "gmx.com" and "privatewho.is". A copy of the Decision is published online by WIPO and a related webpage, but the decision as it appears on those websites is in a different format and unsigned.
The signed Decision is on the Hard Drive in two locations. First, the "Downloads" folder contains a file with the same file name as the attachment to WIPO's email. Dr Schatz has compared the email attachment and the version in the Downloads folder, "The files are exactly the same". The internal Last Modified timestamp on the file is 4.54 pm on 14 June 2017. The Last Modified timestamp of the file on the Hard Drive is 6.35 pm on 14 June 2017, being 71 minutes after the email was sent.
Second, within the "Downloads" folder on the Hard Drive is a ZIP folder, "WIPO - Decision D2017-0498-signed.zip". Within the ZIP folder are seven JPEG images, one for each page of the signed Decision. Dr Schatz says that each of these picture files appears to be an exact copy of the corresponding page of the PDF file. In his experience, while PDF files are generally the format of choice for sharing documents via email, they are unsuitable for publishing within web pages, where the format of choice is picture files such as JPEG and PNG. ZIP containers are regularly used to package together sets of related files for sharing, emailing and publishing. The Last Modified timestamp stored within each of these JPEG files ranges between 8.32.34 pm to 8.32.37 pm on 14 June 2017. The Last Modified timestamp associated with the ZIP container is 8.32.53 pm on 14 June 2017.
In Dr Schatz's opinion, the Last Modified timestamps of the JPEG files are likely the time of creation of each file through an automated process. As the ZIP file which contains the JPEG snapshots has a Last Modified timestamp 24 seconds after the JPEG files, in Dr Schatz' opinion, the Last Modified timestamp is either the time of creation of the ZIP file or download of the ZIP file.
It was also apparent that the WIPO officer contacted the defendant directly. During closing submissions, the defendant submitted: Just on that, that WIPO guy actually contacted me, and he ended up handing down a judgment - I didn't contact me; he contacted me. So he got all me details. … - and I gave a mouthful, and he ended up handing down a judgment, "Mr Dowling didn't deny it, so he must be the owner." Well, I didn't deny, but I just basically told him to piss off when he contacted me. He's thinking he's a judge. He thinks he can run around and say, "Look, I'm contacting you. Here's the allegation. Answer the questions." Who is this arsehole?

[5]

Second Website

On the same day as WIPO's decision, a second website was created, using a similar domain name (the Second Website). The registrant was, again, Private Whois. The registrar was, again, Automattic Inc. The Second Website contains the same information in the "About" page as was contained on the Website. The Fifth Blog Post was published on the Second Website. On a number of occasions since 15 June 2017, Mr Keegan has typed in the address of the Website into a browser and been automatically re-directed to the Second Website. Mr Latu has had the same experience.
At about the time that the Second Website was made available, a new article appeared on the Second Website which included the seven-page signed WIPO decision. Based on a screenshot of the Second Website's landing page, the article was published on 14 June 2017. The article published the signed copy of the WIPO decision, both by way of hyperlink ("Click here for a PDF version") and embedded in the article itself. As mentioned, there are few places where a signed copy of the WIPO decision can be found, and one of them is on the Hard Drive.
On 22 June 2017, Mr Keegan sent an email to the defendant in relation to these proceedings, advising that the matter was listed before the Duty Judge on 23 June 2017 and attaching proposed orders. "You will note that it is sought now to name you explicitly as the defendant in this proceeding." The defendant replied, "I do not own the website which I am sure you know." The defendant referred to the fact that the plaintiffs now owned the domain name, presumably because WIPO had ordered that the disputed domain name be transferred, albeit this was not achieved until several days after the defendant's email. On 23 June 2017, Slattery J granted leave to amend the Summons to refer to the defendant by name, instead of "Publisher X". On 27 June 2017, the formalities of the domain name transfer for the Website were concluded and the Website was configured to no longer publish the contentious publications, nor re-direct to the Second Website.
As already mentioned, the plaintiffs came to learn that NSW Police had executed a search warrant at the defendant's apartment and issued a subpoena to the Commissioner of Police, who produced the defendant's laptop and Hard Drive to the Court. On 17 July 2017, the laptop was returned to the defendant, which he apparently disposed of. On about 20 July 2017, material ceased to be published on the Second Website.
On 21 July 2017, the defendant put on written submissions in the Jane Does proceeding, where he submitted that the plaintiffs "have copied 2 of my articles on [Jane Doe 1 and Jane Doe 2] as per below". Extracts from three articles were then set out, of which one was The Australian Financial Review. Of the two remaining articles extracted, one was the Fourth Blog Post. The plaintiffs rely on this as an admission by the defendant that the Fourth Blog Post was one of "my articles".
On 27 September 2017, the plaintiffs' solicitors accidentally published a website containing an article about the plaintiffs and the Employee. Mr Keegan said the page was set up by a law clerk doing some work on how Go Fund Me pages work, being an internal piece of work done within the law firm to try and understand how the platform worked, under what circumstances donations were made, and the terms and conditions under which people were donating money. The law clerk cut and pasted certain material from the Employee's Go Fund Me page and, accidentally, the page went live. The website was removed immediately.
Mr Latu said that he became aware of this in a matter of days, by which time the Go Fund Me page had been taken down. As Mr Keegan remembered it, Mr Latu gave instructions to the law clerk for the work to be done, "I think it was [Mr Latu]. I don't know, but I think it was Alex that actually spoke to the clerk about the task."
The defendant submitted that the evidence of Mr Keegan and Mr Latu should be rejected given their inconsistent evidence about the Go Fund Me page. Further, it was submitted that the fact that the plaintiffs' solicitors set up a fake Go Fund Me page should lead the Court to consider that they may also have set up the Website.
I am not overly troubled by Mr Latu and Mr Keegan's evidence on this subject. Mr Keegan did not know, but thought, that Mr Latu instructed the clerk to set up a Go Fund Me page, whilst Mr Latu said he only became aware of the Go Fund Me page after it had been taken down. There is no inconsistency: Mr Keegan did not pretend to know who had instructed the clerk and what he thought was, in fact, incorrect. Nor does the fact that the plaintiffs' solicitors set up a Go Fund Me page lead to an available inference that the plaintiffs' solicitors set up the Website.

[6]

CONSIDERATION

The defendant submitted that, as the plaintiffs have owned the Website since the determination of the WIPO dispute, the plaintiffs were suing themselves and the proceedings were an abuse of process. The defendant submitted that the case was circumstantial and depended on the Hard Drive, which should not be relied upon (I have considered this submission at [56]-[61]). The fact that material in relation to the Jane Does was found on the Hard Drive was said to be unsurprising in circumstances where this was potential evidence for him to use in defending the Jane Does proceeding (this submission may not be easily reconciled with the preceding submission that the contents of the Hard Drive had been modified by others).
The defendant submitted that the plaintiffs had not proved their case to the requisite standard, noting that Dr Schatz did not believe beyond a reasonable doubt that the defendant was the one in front of the computer uploading and managing the Website. Nor did Dr Schatz look for a receipt to prove ownership of the Website.
The defendant submitted that the fact that someone other than the defendant published at least one article on the defendant's website whilst he was in gaol showed that other people had access to his accounts and his computer. The plaintiffs replied that, whilst it was admitted that there was at least one article posted on the defendant's website when the defendant was in goal, this suggests that the defendant provided some other person with the means to do so at that time and for that purpose. The fact that a person may have had access to the defendant's website in late 2017 led to no conclusion that any other person had access to the Website in April to June 2017. Whilst the defendant might have authorised such posting because of his gaoling, this said nothing about the prior period when he was at liberty. In any event, the contempt alleged was a failure to take down a particular post from the Website. If the defendant was the publisher of the Website, it scarcely mattered if some other person had power to post on it.

[8]

Content for blogs

Blogs posted on the Website contained content found on the Hard Drive, which contained the defendant's documents and files. In most cases, this content was not readily available elsewhere. The file names of the content establish that the content was uploaded from the defendant's computer to the Website rather than downloaded from the Website to his computer. This points to the defendant as providing content to the publisher of the blogs, or indeed being the publisher.
There were six items of content. The First Blog Content and Second Blog Content were on the Hard Drive. The fact that the images in the Second Blog Content (pages 5 and 6 from the Employee's complaint to the Australian Human Rights Commission) were first published online when the defendant tweeted a copy of his defence in the Jane Doe proceedings, with a "cropped" version of the Second Blog Content (see [80]), indicates that these images were not readily available.
The Third Blog Content was not only on the Hard Drive but was also brought into existence on the defendant's computer using Microsoft Publisher to combine two JPEG files before creating a composite photograph in a JPEG file which formed part of the First Blog Post. According to the internal Author metadata, the defendant was the author of the Microsoft Publisher file. The fact that this composite image of Jane Doe 3 and Jane Doe 4 has only been seen on the Website (see [90]) is also consistent with the defendant having created the composite image rather than having obtained it from another source.
The Fourth Blog Content and Fifth Blog Content were on the Hard Drive.
The Sixth Blog Content is a unique image not found elsewhere on the internet which was created on the defendant's computer, with document properties including "Author: SHANE DOWLING". It was published on the Website, rather than downloaded by the defendant from the internet. This is consistent with the defendant publishing content on the Website, either as a provider of content or, more likely, the publisher of the Website, noting that the Sixth Blog Content is an image used on the landing page of the Website rather than as part of any blog posted on the Website.

[11]

Tracking email

The fact that the defendant operated the account associated with the "gmx.com" email address - being the registrant of the Website - was put beyond doubt when, on 10 May 2017, an email sent by Mr Keegan to the "gmx.com" email address that contained a tracking code sent a notification that the email was open for the first and only time using a device assigned to the IP address allocated by Telstra to the defendant.
The plaintiffs' evidence was circumstantial, as they called no witness who had seen the defendant establishing or operating the Website. That does not mean that the plaintiffs cannot discharge the burden of proof by such evidence. As McHugh J observed in Shepherd v The Queen (1990) 170 CLR 573 at 589 and 592-3; [1990] HCA 56: As Lord Simon of Glaisdale pointed out in R v Kilbourne [1973] AC 729 at 758: Circumstantial evidence … works by cumulatively, in geometrical progression, eliminating other possibilities. … Ordinarily, in a circumstantial evidence case, guilt is inferred from a number of circumstances - often numerous - which taken as a whole eliminate the hypothesis of innocence. The cogency of the inference of guilt is derived from the cumulative weight of circumstances, not the quality of proof of each circumstance.
The combined effect of these four categories of evidence is explicable in only one way: the defendant was the publisher of the Website. Whilst this evidence is circumstantial, it is also substantial and cumulatively eliminates the hypothesis of the defendant's innocence. Having regard to this evidence, I find that, from the time of the Website's creation, the defendant was responsible for maintaining the Website and the material published on the Website.
Proof beyond reasonable doubt does not require proof beyond all doubt. The test remains reasonable doubt, not any doubt at all: R v Dookheea (2017) 262 CLR 402; [2017] HCA 36 at [34], citing R v Chatzidimitriou (2000) 1 VR 493; [2000] VSCA 91 at [11]. As to reasonable doubt, "fantastic and unreal possibilities ought not to be regarded … as the source of reasonable doubt": Green v The Queen (1971) 126 CLR 28; [1971] HCA 55 per Barwick CJ, McTiernan and Owen JJ at 33. It is for the plaintiffs to prove the allegations to this standard. I am satisfied that the plaintiffs have done so. The defendant's submission that the plaintiffs or its solicitors or an unknown third party set up the Website is a possibility but one that can only be described as fantastic and unreal.

[13]

Criminal contempt

The defendant is charged with criminal contempt. Drawing on my judgment in In the matter of Jimmy's Recipe Pty Ltd [2020] NSWSC 93, as Ward CJ in Eq noted in Furlong v Wise & Young [2019] NSWSC 1718 at [94]-[95]: 94 The distinction between civil and criminal contempt is described in general terms in Witham v Holloway (1995) 183 CLR 525 at 530; [1995] HCA 3 (Witham v Holloway) as being: … a civil contempt involves disobedience to a court order or breach of an undertaking in civil proceedings, whereas a criminal contempt is committed either where there is a contempt in the face of the court or there is an interference with the course of justice. 95 Criminal contempt includes contumacious disobedience to the court's order that exhibits defiance of the court (see Cohen v Double Bay Bowling Club [2019] NSWSC 1625, where Henry J noted (at [202]) that traditionally a criminal contempt is committed where, inter alia, a prima facie civil contempt involves deliberate defiance or is contumacious (citing Witham v Holloway at 530; Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483 at 489; [1965] HCA 21); and see her Honour's reasons at [203]).
As to the requisite mens rea for criminal contempt, it was sufficient for the court to be satisfied that "the acts of the alleged contemnor were intentional and were calculated to interfere with the course of justice": Farahbakht v Midas Australia Pty Ltd [2006] NSWSC 1322 per Brereton J at [38].
Garling J summarised the relevant principles in Commonwealth Bank of Australia v Salvato (No 4) [2013] NSWSC 321 at [126]-[130]: 126 It is convenient if I set out the principles relating to contempt of court, which I understand I am bound to apply: (a) Regardless of whether these proceedings are categorised in the historical sense, as criminal or civil contempt, it is clear that the charge must be proved beyond reasonable doubt: Witham at 529; (b) A contempt of court can be constituted by the breach of an undertaking as well as by breach of an order of the court: Trade Practices Commission v C G Smith Pty Ltd (1978) 30 FLR 368; at [375]; Spindler v Balog (1959) 76 WN (NSW) 391; Circuit Finance Australia v Sobbi [2010] NSWSC 789 at [10]; … (d) A person cannot be found guilty of a contempt of court for breach of an order or an undertaking where the terms of the undertaking are ambiguous: Australian Consolidated Press Ltd v Morgan [1965] HCA 21; (1965) 112 CLR 483 at 515-6 per Owen J. The ambiguity must be such that it cannot be said what it was that required compliance: Pang v Bydand Holdings Pty Ltd [2011] NSWCA 69 at [56]-[57] per Beazley JA; … 127 Where the contempt of court consists of a failure to comply with an order of the court (or an undertaking), it must be demonstrated that the contempt was wilful and not merely casual, accidental or unintentional: Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd [1986] HCA 46; (1986) 161 CLR 98. However, it is not necessary for the applicant to prove that the contemnor intended to breach an order of (or an undertaking to) the court: see Anderson v Hassett [2007] NSWSC 1310; Mudginberri at 111; Matthews at [16] per Tobias JA. … 129 As Brereton J said in Anderson v Hassett [2007] NSWSC 1310 at [6]: The statement in Mudginberri (at 111) that a deliberate commission or omission which is in breach of an injunctive order or an undertaking will constitute such wilful disobedience unless it be casual, accidental or unintentional, does not require proof of a specific intent but permits an alleged contemnor to show by way of exculpation that the default was "casual, accidental or unintentional" ...
The Orders were made by the Court. The Orders were sufficiently clear such that one can be sure beyond reasonable doubt that the order was not complied with. The defendant did not contend otherwise. Order 4 restrained the defendant from using or disclosing the text messages, identified by reference to a confidential exhibit. If regard was had to the exhibit, the text messages were clearly identified. The notion of using or disclosing those text messages was plain; posting the contents of the text messages on the internet would amount to a "use or disclosure" and involve a breach of the Orders. Order 5 restrained the defendant from using or disclosing the Fifth Blog Post, which was identified by reference to Mr Keegan's affidavit. If regard was had to that affidavit, identification was clear. As with order 4, there could be no doubt that posting the Fifth Blog Post on the internet would amount to a "use or disclosure" and so a breach of the orders. The first paragraph of the Fifth Blog Post was contrary to that order. Order 6 required the defendant to remove the Fifth Blog Post from the Website. Its meaning was plain.
Applying these principles to the case at hand, the defendant submitted that he was not properly served with the Orders, which I have considered at [128]-[133]. The defendant was served with the Orders on 19 April 2017. The presence of emails and documents, sent by the plaintiffs and WIPO to the email ending "gmx.com", on the Hard Drive confirm that the defendant received emails sent to that address. As such, the orders for substituted service made by Ward CJ in Eq did in fact bring the Orders to the defendant's notice. The defendant received the Orders again on 26 April 2017.
Having been served, the defendant had knowledge of the terms of the Orders. The defendant did not comply with the Orders. It is important to note that the charge of contempt is not that the defendant posted the Fifth Blog Post but that, as publisher of the Website, he did not remove the Fifth Blog Post once ordered to do so, where the Orders were brought to his attention. Instead, the defendant continued to publish the Fifth Blog Post, including the references to the content of the text messages, on the Website. By failing to take down the Fifth Blog Post, the defendant breached the Orders.
The defendant's breach of the Orders was deliberate and done with the intention of disobeying the Orders. The defendant had the means to take down the Fifth Blog Post. Failure to do so involved a deliberate step on his part. The Fifth Blog Post continued to be published on the Website via the Website domain/address (and published by redirection to the Second Website from 14 June 2017) until it was removed following the plaintiffs obtaining ownership and control of that domain/address pursuant to WIPO proceedings on about 27 June 2017. It remained published on the Second Website until about 20 July 2017, being about the time that the defendant apparently disposed of his laptop.
The fact that the Fifth Blog Post remained up until the domain/address was taken over by the plaintiffs following the WIPO proceedings excluded any real possibility of inadvertence or lack of wilfulness on the defendant's part. So too did the ongoing publication of the Fifth Blog Post via the Second Website after the transfer of the domain/address to the plaintiffs. The defendant's disobeyance of the Orders was wilful and exhibited defiance of the Court. The defendant intended to interfere with the course of justice by refusing to comply with the takedown order over a protracted period, going so far as to establish the Second Website to continue to publish the Fifth Blog Post when the plaintiffs took down the Website themselves.
Disobedience of a court order which constitutes a contempt of court is a matter which affects the administration of justice generally. The underlying rationale for the power of a court to punish for contempt is that it is necessary to uphold and protect the administration of justice. The administration of justice is brought into disrepute if disobedience to a court's order goes unpunished: Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98 at 106-107; [1986] HCA 46.

Parties

Applicant/Plaintiff:

Seven Network (Operations) Ltd

Respondent/Defendant:

Dowling

Legislation Cited (2)

Uniform Civil Procedure Rules 2005(NSW)r 10.14

Evidence Act 1995(NSW)

Cases Cited (61)

New South Wales v Dowling [2017] NSWSC 392 R v Chatzidimitriou (2000) 1 VR 493; [2000] VSCA 91 R v Dookheea (2017) 262 CLR 402; [2017] HCA 36 R v Hinch [2013] VSC 520 RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3 Seven Network (Operations) Ltd v Dowling [2018] NSWSC 1890 Seven Network (Operations) Ltd v Dowling [2019] NSWSC 1760 Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56 Trustees of the Christian Brothers v Cardone (1995) 57 FCR 327 Category: Principal judgment Parties: Seven Network (Operations) Ltd (First Plaintiff) Seven West Media Ltd (Second Plaintiff) Shane Dowling (Defendant) Representation: Counsel: Mr K Smark SC (Plaintiffs) Defendant (Self Represented)

Judgment

By motion dated 21 July 2017, the plaintiffs, Seven Network (Operations) Limited and Seven West Media Limited, seek to prosecute the defendant, Shane Dowling, for contempt. It is said that, in contempt of orders made by this Court on 19 April 2017 (the Orders), the defendant used or disclosed the content of text messages in a blog (the Fifth Blog Post) posted on a website of which the defendant was the sole owner or publisher (the Website) and, contrary to the Orders, did not remove the Fifth Blog Post from the Website.
Rather, the Fifth Blog Post remained published on the Website until the plaintiffs obtained the domain name for the Website, following which the defendant established another website (the Second Website) on which the Fifth Blog Post continued to be published until 20 July 2017, being three months from the date of the Orders. The defendant disputes that he operated the Website or the Second Website and, further, that he was served with the Orders.
Before the hearing had progressed beyond the plaintiffs moving on their motion, the defendant made an application that I disqualify myself for perceived bias and renewed an earlier application made to Kunc J (Seven Network (Operations) Ltd v Dowling [2019] NSWSC 1760) that these proceedings be transferred to Queensland. I refused both applications and said that I would publish my reasons with my judgment. My reasons follow.

APPLICATION FOR RECUSAL

The relevant principles concerning recusal for apprehended bias are stated by Gleeson JA (with whom Hulme and Button JJ agreed) in Chamoun v District Court of New South Wales [2018] NSWCA 187 at [35]-[38]: 35 The test for determining whether a judge is disqualified by reason of the appearance of bias is "whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide": Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 at [11]; Michael Wilson & Partners v Nicholls (2011) 244 CLR 427; [2011] HCA 48 at [31]. 36 The test of apprehension of bias is objective. It does not require an assessment of the state of mind of the judge in question, as is necessary on an inquiry about actual bias: Johnson v Johnson at [12]; Michael Wilson & Partners v Nicholls at [33]. 37 The application of the apprehension of bias principle requires two steps. The first is the identification of what it is said might lead the judge to decide a case other than on its legal and factual merits. The second is that there must be an articulation of the logical connection between that matter and the feared deviation from the course of deciding the case on its merits: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [8]; Michael Wilson & Partners v Nicholls at [63]. 38 Accordingly, an allegation of apprehended bias requires an objective assessment of the connection between the facts and circumstances said to give rise to the apprehension and the asserted conclusion that the judge might not bring an impartial mind to bear upon the issues that are to be decided. The question is not whether the judge had in fact prejudged an issue: Michael Wilson & Partners v Nicholls at [67].
The defendant applied for my recusal on, essentially, two bases.

Defendant's allegations against other judges of this Court

First, no judge of this Court is said to be able to bring an impartial mind to the matter given allegations which the defendant has made against officers of this Court, including the Chief Justice of New South Wales. These allegations were repeated during the hearing, albeit unaccompanied by any evidence to support the substance of the allegations.
As I observed in Seven Network (Operations) Ltd v Dowling [2018] NSWSC 1890 at [58]-[62], ordinarily, an application that a judge recuse themselves for bias is based upon something that the judge has said or done. Here, the defendant does not point to anything said by a judicial officer but, rather, to what he has said about judicial officers as somehow preventing other judges of this Court fairly deciding proceedings in which he is a party. Similar applications failed in Attorney General v Markisic [2011] NSWSC 1436 and Prothonotary of the Supreme Court of New South Wales v Dowling [2017] NSWSC 392.
I do not consider that a reasonable bystander would apprehend that, as a consequence of the defendant's remarks about judicial officers, my ability to determine a case concerning the defendant in a neutral and dispassionate manner would be impeded. Indeed, a reasonable bystander would be unlikely to assume that I was particularly interested in the defendant's remarks. Were it otherwise, all someone would need to do to avoid their matter being heard would be to make allegations about the Court. As Gleeson CJ, McHugh, Gummow and Hayne JJ observed in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [19]-[20]: 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. 20 … if the mere making of an insubstantial objection were sufficient to lead a judge to decline to hear or decide a case, the system would soon reach a stage where, for practical purposes, individual parties could influence the composition of the bench. That would be intolerable.
I declined to recuse myself on this basis.

Judge has determined another interlocutory application

Second, the defendant contended that I could not hear the matter given my earlier judgment and orders in Seven v Dowling [2018], when I determined an interlocutory motion filed by the defendant seeking orders that an interstate judge be appointed to hear the matter or that the matter be transferred to the Federal Court of Australia, and that a subpoena issued by the plaintiffs to the Commissioner of Police be set aside (the subpoena sought production of material including a hard drive belonging to the defendant (the Hard Drive)). At that hearing, the defendant contends that I denied him natural justice and his human rights and gave instructions to prison guards to threaten him "to participate, to go get the court books from my cell and all that". The defendant elaborated on his concerns in an article published on his website shortly before this hearing, which included his views about my ability to hear the motion and my abilities generally.
The plaintiffs submitted that the steps taken in Seven v Dowling [2018] were to dispose of the Court's business, including to ensure that the defendant had the court book and was in a position to deal with the matter. The fact that the defendant had made strong criticisms of me in his recent article would not lead ordinary people to assume that I could not deal with this matter properly: Ebner at [20].
As the High Court noted in Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48, the making of an interlocutory order does not, of itself, preclude the judge from sitting on the trial of that matter, as an interlocutory order will not usually require a judge to determine any matter on a final basis: at [68] per Gummow ACJ, Hayne, Crennan and Bell JJ. Something more is required, such as making a determination on an issue that is to be decided at trial, making a finding about the reliability of a party or witness, making a choice between competing versions of events, or making a decision as to the credit of a witness beyond determining that unchallenged evidence given on an interlocutory application was apparently credible: at [72]-[73].
The example oft-cited is Australian National Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 411, where a series of cases arising from complex company litigation were assigned to Cole J of the Commercial Division. In some of the proceedings, Cole J made findings in which he was critical of the recollection, credit and commercial conduct of the parties. Mahoney JA (with whom Meagher JA agreed) considered that it was proper to approach a question of this kind upon the basis that, where decisions of fact or credibility had been made, a lay person may consider the judge will subsequently decide the same issue in the same way, that is, to have pre-judged the matter, contrary to the duty of impartiality imposed upon judges in the Australian court system: 435, 442. As Mahoney JA summarised the relevant principles at 438: (a) the disqualification of a judge for apprehended pre-judgment depends on form rather than substance; (b) whether there is an unacceptable appearance of pre-judgment is to be decided, not according to likelihood, but according to possibility; (c) it is to be judged, not according to what the court and the parties know, but according to the impressions of a lay person who does not know the facts; and (d) there will be an unacceptable appearance of pre-judgment if the judge has previously dealt with the issue of fact or credibility which is before him in the instant case.

WITNESSES

The plaintiffs relied on the evidence of solicitors, Richard Keegan and Alexander Latu, and digital forensic expert, Dr Bradley Schatz, each of whom were cross-examined.
Mr Keegan was an honest and credible witness.
Mr Latu was an honest, impressive witness and I accept his evidence.
Dr Schatz has a Bachelor of Science (Computer Science) from the University of Queensland and a Doctor of Philosophy (Digital Forensic) from Queensland University of Technology. He is widely published, sits on the board of professional journals and conferences and is Adjunct Associate Professor at the Queensland University of Technology. Dr Schatz gave evidence in a fair and reasonable manner. He was an impressive witness and I accept his evidence.
The defendant called no witnesses. It should be immediately noted that, this being a charge of criminal charge, the defendant has a right to silence and a privilege against self-incrimination: British American Tobacco Australia Services Ltd v Cowell (2002) 7 VR 524; [2002] VSCA 197 at [174]; Mirus Australia Pty Ltd v Gage [2017] NSWSC 1046, Ward CJ in Eq at [120]-[122]. As to the inference, if any, which may be drawn against a person who choses to exercise that right, Gaudron ACJ, Gummow, Kirby and Hayne JJ explained in RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3, at [27]-[28]: (emphasis in original) 27 … it will seldom, if ever, be reasonable to conclude that an accused in a criminal trial would be expected to give evidence. The most that can be said in criminal matters is that there are some cases in which evidence (or an explanation) contradicting an apparently damning inference to be drawn from proven facts could come only from the accused. In the absence of such evidence or explanation, the jury may more readily draw the conclusion which the prosecution seeks. As was said in Weissensteiner v The Queen: "[I]n a criminal trial, hypotheses consistent with innocence may cease to be rational or reasonable in the absence of evidence to support them when that evidence, if it exists at all, must be within the knowledge of the accused." 28 … The observations by the Court in Jones v Dunkel must not be applied in criminal cases without taking account of those considerations.
As such, I draw no adverse inference against the defendant by reason of his decision not to give evidence.

Jane Does proceedings

On 21 December 2016, the defendant published an article on the internet which, as I understand it, made similar allegations to those contained in the Employee's complaint to the Australian Human Rights Commission. The same day, the two women referred to in the article - and photographed in the First Blog Content - commenced defamation proceedings against the defendant in the Common Law Division of this Court. The women were permitted to sue by the names "Jane Doe 1" and "Jane Doe 2" in order to ensure that they would not suffer further damage through publicity that might be given to the proceedings: Doe v Dowling [2019] NSWSC 1222 at [2] per Fagan J. (Two further women were later added to the proceedings as "Jane Doe 3" and "Jane Doe 4".)

Third Blog Content

On the Hard Drive are five files dated from 17 February 2017 in which a composite picture of Jane Doe 3 and Jane Doe 4 was compiled.
First, the Hard Drive has a JPEG file containing a photograph of Jane Doe 3, with a Last Modified timestamp of 10.37 pm on 17 February 2017.
Second, the Hard Drive had a JPEG file containing a photograph of Jane Doe 4, with the Last Modified timestamp of 10.38 pm on 17 February 2017.
Third, the Hard Drive had a JPEG file containing the two photographs referred to at [70]-[71] aligned side-by-side, with a Last Modified timestamp of 10.46 pm on 17 February 2017. The file is called "[Jane Doe 3 and Jane Doe 4].jpg".
Fourth, the Hard Drive has a Microsoft Publisher file entitled "[Jane Doe 3 and Jane Doe 4].pub", with the Last Modified timestamp of 10.47.08pm on 17 February 2017. The internal Last Modified timestamp for the "[Jane Doe 3 and Jane Doe 4].pub" file was also 10.47.08 pm on 17 February 2017.
The internal Author metadata for the "[Jane Doe 3 and Jane Doe 4].pub" file is "SHANE DOWLING". Dr Schatz says that the internal metadata "Author" field is generally set when a file is created, based on the User Name that a copy of Microsoft Office is personalised to. This is generally set once and forgotten about but can be changed by the user.
Dr Schatz filtered the Word Excel and Publisher documents on the Hard Drive for documents which had their "Author" or "Last Author" internal metadata as "SHANE DOWLING". There were 769 such documents on the Hard Drive. The most straightforward explanation is that the documents were authored on the defendant's computer. Other possibilities include that the documents were purposefully modified to reflect the defendant as the author, or the documents are derivatives of wholly different documents authorised by the defendant.
Fifth, the Hard Drive has a JPEG file containing a photograph of Jane Doe 3 and a photograph of Jane Doe 4, aligned side-by-side. The file name is "[Jane Doe 3 and Jane Doe 4] 2.jpg" (Third Blog Content). The Last Modified timestamp of the Third Blog Content is 10.49 pm on 17 February 2017. The Third Blog Content was used in the First Blog Post: see [88(c)].
Dr Schatz regarded the internal and external Last Modified timestamps as equivalent and best explained by the file having come into existence on the computer from which the Hard Drive is derived. Other less likely possibilities include that the files were copied from a third-party hard drive with the same temporal precision characteristics, for example, an external NTFS formatted USB drive, although external hard drives generally do not have this characteristic. Or, the files could have been transported to the computer via an unknown server that accurately preserved timestamps of such precision. Dr Schatz is not aware of any generally used file transfer methods which are able to preserve such precision when transferring files. Based on the timestamps, Dr Schatz is of the opinion that it is unlikely that this is consistent with a download.