The NSW Supreme Court of Appeal has found that Capilano Honey’s lawyers lied and deceived the court about their poisonous and toxic honey defamation and injurious falsehood claim against journalist Shane Dowling. The court also found that Capilano Honey’s lies and deception in gaining a super-injunction and wide-ranging suppression orders have had “an unjustifiable chilling effect on freedom of speech“.
The Court of Appeal handed down its judgment on the 3rd of October 2018 in the middle of the media storm over Capilano Honey selling fake honey but the Court of Appeal judgment went unreported by the old media even though it was a key issue. Not only has Capilano Honey been selling dodgy honey for years but they lied and deceived the Supreme Court of NSW to try to conceal it from the public in the long-running battle between myself and Capilano. Capilano Honey has also lied and deceived the court in their almost identical claim against Beekeeper Simon Mulvany which is now before the Supreme Court of Victoria.
Background to the Super-Injunction suppression orders:
I wrote an article in September 2016 titled “Australia’s Capilano Honey admit selling toxic and poisonous honey to consumers” about Capilano Honey suing Beekeeper Simon Mulvany who runs the Save the Bees Australia Facebook page. The article started going viral here and in Asia. I wrote another article a few weeks later about their CEO Ben McKee and Capilano Honey and Mr McKee took legal action.
Capilano shareholder Kerry Stokes has been suing me since April 2014 using the same lawyers and the same tactics in frivolous and vexatious defamation proceedings. Stokes is also the major shareholder of Capilano Honey although that seems to have changed as of a few weeks ago but he is still a substantial shareholder at least.
The Court of Appeal judgment raises numerous issues some of which are:
- How did Capilano Honey manage to get the super-injunction, non-publication orders and suppression orders in the first place and how did they keep the dodgy court orders for over 2 years?
- Why did the old media not report the judgment especially given it was clearly relevant to the media storm in September / October 2018?
- Why have Capilano Honey never filed in court their evidence to prove their honey is safe for humans to support the injurious falsehood claim given there is a reverse onus of proof? For over 2 years why has the court not made Capilano Honey file their evidence?
- Why has the ACCC stopped its investigation into Capilano Honey’s fake honey when Capilano are refusing to provide the court with the required evidence they claim shows their honey is not poisonous?
- It a blatant SLAPP lawsuit (strategic lawsuit against public participation) so what are the Federal and State governments doing?
- The judgment by the 3 judges of the Court of Appeal shows evidence of judicial corruption, given there was no legal basis for the super-injunction and suppression orders, by Justice David Davies and former Supreme Court judge Peter Hall who is now the Commissioner of the NSW Independent Commission Against Corruption. So why no action?
Key parts of the unanimous judgment by Justice Margaret Beazley, Justice John Basten and Justice Ruth McColl: (Click here to read the full judgment: Capilano Honey Ltd v Dowling (No 2)  NSWCA 217 (3 October 2018))
The super-injunction and suppression orders against me were issued by the Supreme Court on behalf of Capilano Honey in October 2016 and were lifted in June 2018. Capilano Honey appealed and it was heard by the Court of Appeal on the 19th July 2018 with the judgment given on the 3rd of October 2018. It starts off with the background.
Background as per the judgment
On 17 September 2016, Shane Dowling (the respondent) posted an article on his website accusing Capilano Honey Ltd (the corporate applicant) of “selling toxic and poisonous honey”. On 6 October 2016, the respondent posted a further article on the website making allegations about the corporate applicant’s Chief Executive Officer, Ben McKee (the individual applicant).
On 7 October 2016, the applicants commenced proceedings against the respondent for injurious falsehood and defamation. Prior to commencing proceedings, they sought and were granted ex parte interim orders including take-down orders, interlocutory injunctive relief restraining republication, and orders prohibiting publication of any aspect of the proceedings. On 10 October 2016, similar ex parte interim orders were made regarding a further article published by the respondent on his website on 9 October 2016.
(On the 10th of October 2016 Capilano Honey’s lawyers also asked the court to charge me with contempt of court)
On 15 May 2017, three days after directions were given with respect to a foreshadowed application by the respondent to strike out the proceedings for want of prosecution, the applicants filed and served a statement of claim.
On 8 June 2018, on the respondent’s application, and following a contested hearing in April 2018, the primary judge (McCallum J) made orders revoking the interim and interlocutory orders.
At paragraph 56 of the judgment it says:
“The second difficulty arises from the phrase “false statements”. In pursuing a claim in injurious falsehood, the burden will be upon Capilano to prove that the allegations were false, were made maliciously and caused damage to the company.”
Capilano Honey failed dismally to make out their case. They used hearsay evidence, second-hand hearsay evidence in affidavits by their lawyer Richard Keegan and in many instances no evidence at all. Why were there no affidavits from any Capilano Honey employees? And where is all the evidence showing their honey is not poisonous, toxic and polluted?
Keeping in mind that Capilano has to also prove damage to their company as part of proving their injurious falsehood claim the judgment says at paragraph 75: “the applicants made no attempt to assess any financial loss, or likely loss, in Australia.“. That in itself says Capilano Honey could not make out their claim for injurious falsehood and have deliberately and knowingly misled the court.
A prime example of the scandalous attempt to use evidence that can only be described as total dribble can be found at paragraph 73 of the judgment where it quotes so-called evidence by Capilano Honey’s lawyer Richard Keegan:
- In his 13 April 2018 affidavit Mr Keegan stated:
“I am informed by Mr McKee and believe that he has received communications from a manager at one of Australia’s largest supermarket chains who has read the toxic honey article and has told Mr McKee that the article is posing ‘a very serious risk to our brand.’
And at paragraph 77 it says:
- In these circumstances, it cannot be said that the judge either misconceived or disregarded the evidence before her. It is true that she did not refer to the second-hand hearsay evidence of a conversation with a manager at a supermarket chain, but there is little that can be said about it. The content was vague, there was no indication of when the statement was made or in what context and the statement contained no particular reference to the source of the concern.
Using hearsay evidence is a joke but for a qualified lawyer using second-hand hearsay evidence is scandalous. As the judges said: “there is little that can be said about it“. Richard Keegan should be struck off as a solicitor. This is a lawyer who is lying and perjuring himself in court to help Capilano sell poisonous, polluted and fake honey to the public.
Capilano Honey would also have to prove malice by me to make out their injurious falsehood claim but provided bugger all evidence of it. But it’s worth noting that at paragraph 82 of the judgment they said “An ulterior motive was alleged, namely that the respondent was “fixated on attacking Mr Kerry Stokes”, a part owner of Capilano.” How paranoid is Kerry Stokes?
The lawyers representing Capilano Honey are also Kerry Stokes’ and Channel 7’s lawyers (Stokes controls Seven) and they would have had to get Kerry Stokes’ approval to put the reference to him in their submissions. It shows a powerful prima facie case that Kerry Stokes is running Capilano Honey’s legal case against me. Given that, any likely future class action against Capilano Honey for poisoning the Australian public could also go after Kerry Stokes’ $Billions as well.
Another reference to the judgment to reinforce what I previously quoted is at paragraph 122 which points out that the super-injunction and suppression orders had “an unjustifiable chilling effect on freedom of speech“. It was always blatantly a SLAPP lawsuit and the government should investigate. From what I have read INTERPOL are investigating the international food fraud element which one would think would include investigating Capilano Honey and Kerry Stokes role.
Capilano Honey has 2 Barristers and numerous lawyers who specialize in this area of law representing them and they knew they had no justification for the super-injunction and non-publication orders. That is why they went to court ex-parte (by themselves and without my knowledge) on the 7th of October 2016 to get the suppression orders and a super-injunction so I could not tell anyone. They knew they could not defend the court orders in a contested hearing and it should not have been allowed by the judge Peter Hall and Justice David Davies and the appeal judgment says so. At paragraph 114 of the judgment it says: “On the evidence before the Court, there was no reason why the matter had to be dealt with on the spot and a number of reasons why it should not have been.“
I didn’t report the Court of Appeal decision in October 2018 because I was in jail for 3 counts of contempt of court of which 2 were for breaching suppression orders. Those suppression orders no longer exist because they were invalid in the first place the same as Capilano Honey’s suppression orders which adds further weight to my allegations that NSW judges are corruptly issuing invalid suppression orders and selling suppression orders to companies and individuals to help hide crimes they want hidden from the public and law enforcement agencies.
The Capilano Honey matter against me is a prime example of the judicial corruption issuing invalid suppression orders. It is so corrupt even the 3 appeals court judges wouldn’t defend it. But even though Justice Lucy McCallum found in my favour as the initial judge overturning the suppression orders she needs to explain why she helped keep the suppression orders going for over 2 years and why she has never issued orders for Capilano Honey to file their evidence.
Justice McCallum has also deliberately ignored for over 12 months and failed ordering the interrogatory questions and discovery I have requested from Capilano Honey be complied with. I have written articles about it before accusing Justice McCallum of taking bribes from Capilano which she is well aware as the articles are before the court as evidence and she has never refuted the allegations.
I thought I would start the year off with a positive post. The judgment is well worth a read and a big win for this website, its supporter and freedom of speech. The battle isn’t over yet as the defamation and injurious falsehood case continues but we’re in a strong legal position to win it and we’ve managed to do that with me as a self-represented litigant up against a multi-million-dollar company with shareholders with deep pockets. The support of the followers of this website has been crucial in the battle, so thank you.
Please use the Twitter, Facebook and email etc. buttons below and help promote this post.
Kangaroo Court of Australia is an independent website and is reliant on donations to keep publishing. If you would like to support the continuance of this site, please click on the button below to donate via PayPal or go to the donations page for other donation options. (Click here to go to the Donations page)
If you would like to follow this website, you can by email notification at the top right of this page and about twice a week you will be notified when there is a new article.
Thank you for your support.