Citation: Doe v Dowling [2017] NSWSC 202
Court: Supreme Court of New South Wales
Date: 15 March 2017
Judge(s): Harrison J
Background
The plaintiffs commenced defamation proceedings against the defendant, a blogger who operates a website publishing commentary and opinion pieces. On 21 December 2016, Campbell J made suppression orders requiring the defendant to remove the plaintiffs' names from an existing article and restraining him from publishing those names without the court's leave.
The defendant did not remove the names from the original article and proceeded to publish at least four further articles on his website, Facebook, and Twitter that republished the plaintiffs' names. Each of those articles was published with explicit references to the suppression orders. The orders also carried a notation warning the defendant that non-compliance could render him liable to imprisonment.
The plaintiffs filed a notice of motion for contempt on 2 February 2017. The defendant appeared unrepresented and did not challenge service or procedural compliance, but argued throughout that Campbell J's orders were invalid because the underlying defamation proceedings were themselves allegedly flawed, frivolous, or brought for an improper purpose.
Legal Issues
- Whether Campbell J's suppression orders were valid and enforceable, particularly in circumstances where the defendant challenged the propriety of the underlying proceedings
- Whether the defendant published the offending articles within the meaning of the Court Suppression and Non-Publication Orders Act 2010
- Whether the defendant's conduct constituted contempt proved to the criminal standard of beyond reasonable doubt
- Whether the contempt was contumacious (that is, deliberate defiance, as distinct from merely technical or inadvertent non-compliance)
Decision
Issue 1: Validity and enforceability of Campbell J's orders
The court rejected the defendant's central argument that the suppression orders were invalid or unenforceable because the underlying proceedings were allegedly improper, malicious, or destined to fail (at [52]). Harrison J held that the orders were validly made, had never been appealed or challenged through proper channels, and remained in force (at [8], [52]). The defendant's proposition, that the enforceability of the orders depended on the plaintiffs ultimately succeeding in the defamation suit, was expressly rejected (at [52]). The court noted that if the orders were later set aside, that fact might be relevant to penalty, but it was not relevant to the liability inquiry (at [33]).
Issue 2: Publication
The court was satisfied beyond reasonable doubt that the defendant published each of the offending articles (at [51]). Harrison J confirmed that, under the Court Suppression and Non-Publication Orders Act 2010, proof that any third party actually read the material is not required to establish publication (at [50]). The defendant's own admissions and the evidence of Mr Keegan, which was not meaningfully challenged in cross-examination, together established publication (at [51]).
Issue 3: Wilfulness and knowledge
The court found that the defendant's failures to comply were intentional, wilful, and deliberate rather than casual or accidental (at [57]). The repetition of the conduct was itself sufficient to demonstrate this. Critically, the articles themselves contained references to the suppression orders, demonstrating that the defendant published the plaintiffs' names with full knowledge that doing so breached those orders (at [57]-[58]). The orders were clear and unambiguous, and the defendant never contended otherwise (at [56]).
Issue 4: Contumacious contempt
Harrison J found that the contempt was contumacious (at [59]). The defendant deliberately set out to disobey and, in the court's assessment, apparently to flaunt the court's orders. The defendant was accordingly found guilty of contempt as charged in the Amended Statement of Charge (at [60]). The question of penalty was reserved for a further hearing (at [61]).
Orders Made
- The defendant Shane Dowling was found guilty of contempt.
- A further date was to be appointed to hear submissions on penalty.
Key Takeaways
- An existing and enforceable court order must be obeyed even if the party subject to it believes the underlying proceedings are improper, frivolous, or likely to fail. The appropriate course is to seek to have the order set aside or appealed, not to disregard it (at [8], [52]).
- Under the Court Suppression and Non-Publication Orders Act 2010, establishing a contravention by "publication" does not require proof that any third party actually read the material (at [50]).
- Both criminal and civil contempt must be proved to the criminal standard of beyond reasonable doubt (at [44]).
- Where a defendant's own publications expressly acknowledge the existence of a suppression order and nonetheless reproduce the prohibited content, those publications are strong evidence of wilful and knowing breach (at [57]-[58]).
- Contumacious contempt, the most serious category, is established where the court is satisfied beyond reasonable doubt that a defendant deliberately set out to disobey and defy the court's orders rather than merely failing through inadvertence or misunderstanding (at [59]).
Legislation and Cases Referenced
Legislation
- Court Suppression and Non-Publication Orders Act 2010
- Criminal Procedure Act 1986
- Supreme Court Rules 1970
Cases
- Australasian Meat Industry Employees’ Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98; [1986] HCA 46
- Commissioner for Fair Trading v Rixon (No.2) [2014] NSWSC 431
- Commonwealth Bank of Australia v Salvato (No.4) [2014] NSWSC 321
- Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575; [2002] HCA 56
- Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim [2012] NSWCCA 125
- Hinch and Macquarie Broadcasting Holdings Ltd v Attorney-General (Vic) (1987) 164 CLR 15; [1987] HCA 56
- McGuirk v University of NSW [2009] NSWSC 1058 Mosman Municipal Council v Kelly (No3) [2009] NSWLEC 92
- News Digital Media Pty Ltd v Mokbel (2010) 30 VR 248
- Pelechowski v The Registrar, Court of Appeal (1999) 198 CLR 435; [1999] HCA 19
- R v Metal Trades Employers’ Association; Ex parte Amalgamated Engineering Union (1951) 82 CLR 208; [1951] HCA 3
- Registrar of the Court of Criminal Appeal v Willesee [1984] 2 NSWLR 378
- Seymour v Migration Agents Registration Authority [2006] FCA 965
- The Queen v Hinch [2013] VSC 520
- Witham v Holloway (1995) 183 CLR 525; [1995] HCA 3