Capilano Honey Ltd v Dowling (No 2) [2018] NSWSC 865

Capilano Honey Ltd v Dowling (No 2) [2018] NSWSC 865

Although the plaintiffs' failure to progress the proceedings after obtaining urgent ex parte injunctions and suppression orders was unacceptable and prejudiced Mr Dowling by constraining his speech, the delay did not justify the extreme sanction of dismissal. However, the delay, the absence of any prior contested hearing, uncertainty as to whether the orders were intended to operate until final disposition, and the temporal aspect of the necessity test for suppression orders justified revisiting the restraints. The interim suppression order under s 10 should not have continued once the substantive suppression issue had to be determined. The suppression orders were sought only in aid of...

Jurisdiction
Australia
Judgment Date
08 June 2018
Procedural Posture
Proceedings for Injurious Falsehood and Defamation / Defendant's Applications to Dismiss for Want of Prosecution, to Discharge Interlocutory Injunctions, and to Review and Revoke Suppression Orders
Outcome
The application to dismiss for want of prosecution was dismissed; the interim suppression order, suppression orders, and interlocutory injunctions were revoked or vacated; the defendant was directed to file a defence.
Legal Topics
['want of Prosecution' 'interlocutory Injunctions' 'suppression Orders' 'non Publication Orders' 'freedom of Speech' 'ex Parte Orders']
['procedure' 'defamation' 'injurious Falsehood'] ['want of Prosecution' 'interlocutory Injunctions' 'suppression Orders' 'non Publication Orders' 'freedom of Speech' 'ex Parte Orders']

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Procedural Posture

Proceedings for Injurious Falsehood and Defamation / Defendant's Applications to Dismiss for Want of Prosecution, to Discharge Interlocutory Injunctions, and to Review and Revoke Suppression Orders

Legal Issues

  1. 1 ['Whether the proceedings should be dismissed for want of prosecution because the plaintiffs took no steps after obtaining urgent ex parte injunctions and suppression orders.' 'Whether suppression orders made by Hall J and continued by Davies J should be revoked on review under the Court Suppression and Non-Publication Orders Act 2010 (NSW).' "Whether interlocutory injunctions restraining Mr Dowling's publications should be discharged." 'Whether the Brimaud v Honeysett Instant Print approach prevented reconsideration of the injunctions in the circumstances.' 'Whether the evidence justified continuing restraints in injurious falsehood and defamation proceedings.']

Ratio Decidendi

Although the plaintiffs' failure to progress the proceedings after obtaining urgent ex parte injunctions and suppression orders was unacceptable and prejudiced Mr Dowling by constraining his speech, the delay did not justify the extreme sanction of dismissal. However, the delay, the absence of any prior contested hearing, uncertainty as to whether the orders were intended to operate until final disposition, and the temporal aspect of the necessity test for suppression orders justified revisiting the restraints. The interim suppression order under s 10 should not have continued once the substantive suppression issue had to be determined. The suppression orders were sought only in aid of...

Court Disposition

The application to dismiss for want of prosecution was dismissed; the interim suppression order, suppression orders, and interlocutory injunctions were revoked or vacated; the defendant was directed to file a defence.

Orders

  • ["The defendant's application to have the proceedings dismissed for want of prosecution is dismissed." 'I revoke order 1 made by Hall J on 7 October 2016 extended by Davies J on 10 October 2016 (the interim suppression order).' 'I revoke orders 7 and 8 made by Hall J on 7 October 2016 (the suppression orders).' 'I...