//
[2016] WASC 320
General information, not legal advice.
Supreme Court of WA
2016-12-21
Martin J
Original judgment source is linked above.
1 There still manifests a perception in some members of the community that the laws of defamation do not apply to publications made over the internet. Consequently, there is a lingering misapprehension that anything at all can be posted concerning another person over the internet no matter how defamatory or scandalous the uploaded material may be and that the posted material will enjoy a complete immunity. That perception is wrong as these reasons for decision will illustrate.
2 What follows are my reasons for decision in four defamation actions. The actions are brought by three distinct plaintiffs: Mr Oliver George Douglas, Mr Anton Billis, and Mr Paul Matich.
3 Mr Douglas brings two of the civil actions, but against different defendants. CIV 1930 of 2012 was commenced against Mr Terence John McLernon, while CIV 2306 of 2012 was commenced against Ms Toni Fitzgerald and Mr Laurence Kerry Fitzgerald (the Fitzgeralds are siblings) (as well as further corporate defendants who are no longer parties to the action). Mr McLernon and the Fitzgeralds are the only (remaining) defendants across all four actions. For all intents and purposes, Mr Douglas' two defamation actions can be assessed in aggregate. They were trials heard together as the first of what are, effectively, three plaintiffs' individual defamation complaint scenarios against common defendants.
4 The second scenario is CIV 2307 of 2012, the defamation action commenced by Mr Billis against Mr McLernon and the Fitzgeralds (as well as further corporate defendants who are no longer parties to the action).
5 The third scenario is CIV 2308 of 2012, the defamation action commenced by Mr Matich against Mr McLernon and the Fitzgeralds (and also further corporate defendants who are no longer parties to the action).
6 I have case managed these four actions in the Commercial and Managed Cases (CMC) list since November 2014. Prior to that, they were managed by Le Miere J. The actions have been the subject of a number of prior interlocutory decisions concerning pleading issues: see Douglas v Purpose Marketing Group Pty Ltd [2013] WASC 125; Douglas v McLernon [2013] WASC 126; Matich v McLernon [2013] WASC 127; Billis v McLernon [2013] WASC 128.
7 Pursuant to my pretrial directions, the four defamation actions against Mr McLernon and the Fitzgeralds were to be conducted across consecutive hearing days, commencing on 20 June 2016. By those directions, Mr Douglas' two actions were heard together and first, for the purpose of adducing evidence. I made a further pretrial direction to the effect that the evidence adduced in one action would stand as evidence in the other actions. That occurred albeit the evidence in each of the three plaintiff's actions was heard and received discretely.
8 Closing submissions in all four actions were rendered on an aggregate basis at the close of the evidence in the last action heard, being Mr Matich's action CIV 2308 of 2012.
9 Pretrial directions were also made for the filing and serving of papers for the judge by the plaintiffs. That trial bundle (TB) included documents that were adduced as evidence in the course of the trial.
10 I should also observe that all defendants in the four actions appeared in person, without legal representation.
11 In the case of the Fitzgeralds, for most of the trial they participated under my pretrial directions via a telephone link from Sydney, New South Wales to Perth, Western Australia, where the trials were conducted. However, Ms Toni Fitzgerald had foreshadowed a no case to answer submission in respect of all three defamation actions against her by Messrs Douglas, Billis and Matich.
12 I heard and determined the no case submission of Ms Fitzgerald in the Douglas action (CIV 2306 of 2012) over a video link established to Sydney on the morning of the third day of the hearing. That 'no case' argument was conducted, effectively, at the close of all the evidence received in Mr Douglas' two actions being heard together (CIV 1930 of 2012 and CIV 2306 of 2012).
13 The publications that were the subject of the plaintiffs' complaints against the Fitzgeralds align precisely with the internet publications complained about in the three actions against Mr McLernon.
14 Liability arguments against the Fitzgeralds in all actions were articulated on a basis of submissions concerning their alleged assistance towards the publications and so, their alleged accessorial liability in tort in relation to the publications on internet websites allegedly made by Mr McLernon (ie for his authoring and causing the matter complained about to appear on three internet websites in his alleged control).
15 It was not suggested by any of the plaintiffs that either of the Fitzgeralds had ever been personally involved as individuals in compiling any of the identified publications and matters complained about by Mr Douglas, Mr Billis and Mr Matich vis-à-vis the internet websites.
16 The plaintiffs effectively contended against the Fitzgeralds that, by their associations with various websites, either personally or via website servicing corporations for which they were corporate directors, they had thereby assisted Mr McLernon in a general sense, to publish and circulate (ie to upload to the internet on the three websites complained about) the publications complained about in the period around 2011 to 2012.
17 Furthermore, it was contended that after an issue of concerns notices, under the provisions of s 14 of the Defamation Act 2005 (WA), the Fitzgeralds had thereafter neglected to take steps to halt Mr McLernon's ongoing (alleged) use of the three websites. This alleged failure of the Fitzgeralds to effectively intervene, as it was put, established their personal liability for assisting in the continuance of the defamatory publications on the internet. The submission was said to invoke a principle concerning assistance in the tort of defamation, going back to the High Court's decision in Webb v Bloch [1928] HCA 50; (1928) 41 CLR 331, 363 366.
18 After hearing from Ms Fitzgerald, I determined the no case submission in her favour. I should record that my reasons provided ex tempore at the time for upholding the no case to answer submission of Ms Fitzgerald were revised and have been published separately to these reasons as Douglas v McLernon [No 3] [2016] WASC 319.
19 Consequently, at about 11.00 am on day three of the trial, I dismissed Mr Douglas' defamation action against Ms Fitzgerald as a defendant (see ts 522 523). As a result of that determination the actions against Ms Fitzgerald, commenced by Mr Billis in CIV 2307 of 2012 and by Mr Matich in CIV 2308 of 2012, were no longer pressed by counsel (see ts 523). Accordingly, all three actions against Ms Fitzgerald were dismissed at that point (see ts 524). The consequence was then to leave Mr Fitzgerald as a residual defendant in actions CIV 2306, 2307 and 2308 of 2012.
20 Mr Fitzgerald did not put forward a no case to answer submission for the three actions in which he was a defendant. Nevertheless, his in person defences as filed in the three actions concerning him, all denied any liability in tort for assisting in any of the internet website publications complained of against Mr McLernon by the plaintiffs.
21 Mr Fitzgerald represented himself in person by telephone. His position as defendant in the three defamation actions was essentially to dispute liability, but to offer no affirmative evidence. Mr Fitzgerald simply denied all liability, referred to the denials of all allegations against him in his pleaded defences, and did not augment those pleaded defences by any further affirmative submissions.
22 I had been told at earlier directions hearings (and it does not appear to be a matter in dispute) that Mr Fitzgerald had been declared bankrupt at some earlier point and remains subject to that condition.
23 The corporation with which Mr Fitzgerald was once associated, namely Redback Studios Australia Pty Ltd (formerly a defendant in each of actions CIV 2306, 2307 and 2308 of 2012) was deregistered in May 2014. Consequently, the action brought against it by each of the plaintiffs was dismissed under earlier pretrial orders of the court, issued in September 2015.
24 I deal with the defamation exposure and arguments concerning Mr Fitzgerald in a discrete section at the end of these reasons.
25 I will now consider the three defamation actions brought against the principal defendant, Mr McLernon, under defamation actions CIV 1930, 2307 and 2308 of 2012 by Messrs Douglas, Billis and Matich, respectively. At the outset of that exercise I need to record three fundamental points.
26 In the first place it is necessary to observe that s 8 of the Defamation Act provides:
A person has a single cause of action for defamation in relation to the publication of defamatory matter about the person even if more than one defamatory imputation about the person is carried by the matter.
27 The plaintiffs complained of multiple alleged defamatory imputations published by Mr McLernon in the materials that he allegedly authored and then allegedly uploaded to the three websites in question. Accordingly, it is important to note at the outset that while there may be multiple defamatory imputations extracted from a particular publication complained about, there is only one cause of action per publication in defamation that arises, notwithstanding an aggregate manifestation of many defamatory meanings. That conclusion in turn has a repercussion: in respect of a particular publication it may be seen that some imputations are found to be established, whereas others are not. As long as one defamatory imputation is found in a publication the plaintiff will then have established a cause of action.
28 The second fundamental point is that there was no real contest before me in respect of the principles applicable under defamation law concerning the legal tests applied in order to establish whether a particular alleged meaning is carried under the natural and ordinary meaning of words, and then, whether the meaning complained of is defamatory or not. Recently, in Kingsfield Holdings Pty Ltd v Rutherford [2016] WASC 117, I collected together at some length the principles of law applicable to such an exercise. Here then, I will simply make a passing reference to the paragraphs of those reasons which collect the relevant law and legal principles: see Kingsfield [162] [172] under the heading 'General principles, defamation'.
29 The principles are somewhat different in respect of arguments towards an imputation based upon an extra ingredient of knowledge held by a particular reader, whereby such knowledge, combined with a reading of the words at issue, is said to bear an imputation, which is known as a true or legal innuendo. I also dealt with that issue in Kingsfield: see [162] [172], [304]. The law in that respect is not at issue in this litigation.
30 The first publication complained of by Mr Douglas is the subject of a surrounding true or legal innuendo argument. He argues that one of the meanings of the publication is a meaning that would have been reached by persons holding certain levels of knowledge about the management of corporations and, in particular, the content of a section of the Corporations Act 2001 (Cth), concerning the lawful nature of an act by way of management of a corporation carried out by a person who is an undischarged bankrupt. Save for that imputation (said to arise under the first publication complained about by Mr Douglas), the balance of the multiple claims of defamatory imputations brought by all of the three plaintiffs against Mr McLernon are based upon the natural and ordinary meaning of the words complained about. That genre of argued meaning, predicated upon what the ordinary reasonable reader of the words would assess them to mean (that is without any extra personal knowledge by way of augmentation to the words of the text), is called popular or false innuendo.
31 The third fundamental point to address at the outset is to observe that in defamation actions the question of identification of a particular plaintiff under words complained about can be a very significant issue. See again, for instance, my observations made in Kingsfield concerning identification, which was very much at issue in respect of the corporate plaintiff in that litigation: [110] [143].
32 Here, the question of identification of each plaintiff under the matters complained about is, in general, not a live obstacle to the establishment of the plaintiffs' claims. Usually, they are expressly identified by name, particularly their surnames. On other occasions, the publication complained of has used a prefix or nickname before referring to the plaintiffs' surname. For instance, there are references in the materials complained of to 'Dodgy Douglas', 'Dictator Billis' and 'Noddy Matich', ostensibly referring to the plaintiffs, Messrs Douglas, Billis and Matich, respectively. In the circumstances, there is no serious contention that the plaintiffs are not expressly identified under these particular publications complained about.
33 Hence, in this series of defamation actions, the issue of plaintiff identification does not present as any live obstacle to an establishment of liability, if the plaintiffs can otherwise show that they have been defamed under the publications complained of.
34 Before proceeding to evaluate each of the publications complained of, it is convenient to render some observations about the state of the law concerning the still relatively new phenomenon of internet publications. The Western Australian Court of Appeal has recently dealt with this issue in its reasons in Sims v Jooste [No 2] [2016] WASCA 83, delivered 20 May 2016.
35 In the present case the internet publications complained of are publications posted upon three websites which I will mention later in these reasons. That scenario is to be distinguished from the underlying facts in Sims v Jooste [No 2], which concerned a post made to an externally operated internet blogging site.
36 The lead reasons in that decision were delivered by Martin CJ with whom Buss JA and Mitchell J (as his Honour then was) agreed. The case concerned a posting made over an internet chat/comment/gossip website known as 'HotCopper'. Mr Sims was a selfrepresented litigant. In the end his action failed because he could not prove that any third person had viewed the post which he was complaining about as defamatory of him.
37 The Chief Justice's reasons contain the following observations concerning the bilateral nature of the concept of publication in defamation law and, then, the importance of that distinction in a context of evaluating alleged defamatory publications over the internet [7]:
Damage is the gist of an action in tort, and damage to reputation is the gist of an action in defamation. The remedies granted by a court to a successful plaintiff in a defamation case are directed to the vindication of reputation; the protection of the plaintiff from further damage to reputation; and the award of damages to compensate the plaintiff for the damage to reputation which he or she has suffered.
38 His Honour then quoted from Dow Jones & Co Inc v Gutnick [2002] HCA 56; (2002) 210 CLR 575 [26] [27] (Gleeson CJ, McHugh, Gummow & Hayne JJ) (Dow Jones):
Harm to reputation is done when a defamatory publication is comprehended by the reader, the listener, or the observer. Until then, no harm is done by it. This being so it would be wrong to treat publication as if it were a unilateral act on the part of the publisher alone. It is not. It is a bilateral act - in which the publisher makes it available and a third party has it available for his or her comprehension.
The bilateral nature of publication underpins the long-established common law rule that every communication of defamatory manner founds a separate cause of action.
39 Specifically concerning publications over the internet, the Chief Justice then said at [10] [11]:
In very general terms, the internet permits a person with a computer, or other internet-compatible device, and an internet service provider, to communicate with other such computers or devices on the world wide web, including computers or devices upon which internet sites are maintained (servers). Sites accessible via the internet are of many kinds. They include sites on which all of the available information is provided by the controller of that site. For example, all the information on the website maintained by the Supreme Court of Western Australia is uploaded to that site by officers of the court. When that information is uploaded to the server, it is published, in the non-legal sense of that word. Publication in the legal sense only occurs if and when somebody uses a browser or other device to access that site and thereby sees, and comprehends, the information which has been uploaded. Because access by a third party to the defamatory material posted on a site must be established before it can be said that the material has been 'published' in the legal sense, the High Court has held that, in the case of publication via the internet, the tort of defamation is committed in the place in which the computer or device which is used to retrieve the information from the server is located, rather than in the place at which the server is located (Dow Jones).
Other types of sites on the internet include sites to which materials, such as words or pictures, can be uploaded by persons other than the controller of the site. Some of these sites are described as 'blogs' and others as 'chat' sites. As a matter of logic, those sites might operate by permitting anybody to upload any information they wish to the site without intervention by the controller of the site. (For a more detailed description of such a site, see Metropolitan International Schools Ltd v Designtechnica Corp [2009] EWHC 1765 (QB); [2011] 1 WLR 1743 [4] [5].) Alternatively, they might operate on the basis that information or data provided by third parties is only uploaded to the site by the positive act or intervention of the controller of the site. If a site was of the latter kind, the posting of material on the site would, of itself, provide evidence of publication in the legal sense, in the form of the submission of words or data by the originator to the controller or operator of the site whose intervention is necessary for the material to be uploaded. However, if a site is of the former kind, material could be uploaded onto the server without publication in the legal sense occurring. In such a case, publication in the legal sense would only occur if and when a third party accessed the information which had been uploaded to the site.
40 Martin CJ also made the following observations upon the nature of internet sites at [17]:
Because of the vast number of internet sites, and the vast number of web pages accessible through those internet sites, in the absence of evidence it cannot be inferred that one or more persons has undertaken the steps required to identify and access any particular web page available through the internet merely from the fact that material has been posted on an internet site. There is a real prospect that many of the billions of web pages accessible via the internet have never been seen by anyone other than the person who posted the page on an internet site.
41 See also the remarks at [18] [20], concerning the state of the law as regards internet publications and the absence of the ability to draw an inference customarily drawn for publications made over the mass media of print and broadcast to establish that there had been a substantial publication within the relevant jurisdiction.
42 Unlike the facts of Sims v Jooste [No 2], for the present case there is affirmative evidence concerning a third party's downloading and review of all these internet publications complained about by each of the plaintiffs by a Western Australian resident witness (a Mr Terry Magee).
43 Each of the plaintiffs by their affidavits (exhibits 4 and 9 in the case of Mr Douglas; exhibit 19 in the case of Mr Billis; and exhibit 28 in the case of Mr Matich) gives evidence concerning the reactions of third persons towards them, by reference to an adverse reputational effect upon them by those publications. In other words, each of the three plaintiffs has described various scenarios in which the reactions of third persons in the aftermath of them having seen the internet material complained of and then reacting towards each plaintiff by a comment in relation to the reputations of each of the plaintiffs. That material assists me in concluding that, in each instance complained about as a publication by each plaintiff, the scope of the circulation of the material in Western Australia to third persons who accessed it over the internet was significant. It was not only significant in its range of internetusing recipient, but was also strongly adverse, in the sense of the negative reputational impact as against each of the plaintiffs.
44 Each of the plaintiffs relates having suffered embarrassment in terms of their interactions and dealings with third persons as a result of the circulation of the materials complained about, and of their efforts to try and deal with that situation as best they could to mitigate the adverse effects of such material against their reputations. Each of Messrs Douglas, Matich and Billis confirmed at their trials that the content of their respective affidavits (which contained their trial evidence) was true and correct, as each had sworn. Given all that, it is forensically significant that Mr McLernon, the first defendant in each of these actions, and who is alleged by the plaintiffs to have been the author and publisher over the internet to the three websites at issue, declined to crossexamine Mr Douglas (ts 408), Mr Billis (ts 659 660) and Mr Matich (ts 675). Albeit he was representing himself in person at these trials, Mr McLernon did not avail himself of the opportunity he held to crossexamine any of the plaintiffs when they gave their evidence at the trials. Hence, the evidence of Messrs Douglas, Billis and Matich was not challenged in crossexamination. Nor was it challenged by either of Mr or Ms Fitzgerald. Hence, the plaintiffs' evidence about suffering adverse reputational effects from these publications stands as wholly unchallenged.
The three defamation actions brought against Mr McLernon by Messrs Douglas, Billis and Matich
45 Mr McLernon has acted in person in defending the actions brought against him at all times. Mr McLernon appeared and represented himself in person at the trials across the hearing days of the four trials between 20 and 23 June 2016.
46 Mr Douglas' action against Mr McLernon (CIV 1930 of 2012) was the first of the four defamation actions to be commenced. That was by writ of summons on 25 May 2012.
47 Mr Douglas' second action, against the Fitzgeralds as defendants (CIV 2306 of 2012), as well as Mr Billis' action (CIV 2307 of 2012) and Mr Matich's action (CIV 2308 of 2012) against all defendants, were commenced by writs filed on 1 August 2012.
48 By the terms of s 15 of the Limitation Act 2005 (WA), a plaintiff ordinarily has 12 months to commence proceedings in respect of an allegedly defamatory publication.
49 Essentially, Messrs Douglas, Billis and Matich all complain of articles published over the internet concerning them by Mr McLernon and upon three websites identified as:
50 As discussed below, the three websites were referred to in the plaintiffs' respective statements of claim in aggregate as the 'McLernon File Website'.
CIV 1930 of 2012: Mr Douglas' action against Mr McLernon
51 Mr Douglas complains about material alleged to be authored by Mr McLernon appearing on the three websites, all contended to be controlled by Mr McLernon and to which it is said that he allegedly uploaded content across the period 13 October 2011 to 18 September 2012 (a date at which it is accepted by all plaintiffs that these websites were 'shut down' - see plaintiffs' chronology, TB 1903 1914).
52 The most contemporary iteration of Mr Douglas' pleaded statement of claim, filed 25 November 2013, has four hard copy annexures (A D). Those four annexures display words published in English that, it is contended, appeared on, or were accessible via, all three of the above websites (the same content is complained about as appearing on all three websites).
53 Mr Douglas complains that these four publications over the internet defamed him. He refers to the publications as downloaded from those websites (the three websites being referred to in aggregate under par 2b of Mr Douglas' statement of claim as the 'McLernon File Website'), and viewed in Western Australia, including by Mr Magee (see particulars to par 4 of the statement of claim as to publication).
54 As I mentioned earlier, Mr Magee was a witness called at the trials. Under my pretrial directions, evidenceinchief from trial witnesses was to be by affidavits, which were exchanged prior to trial.
55 Mr Magee provided an affidavit sworn 12 March 2016 (which became exhibit 5), relating his conduct in personally downloading and then viewing all of the internet publications complained of in Western Australia for not only Mr Douglas, but also for all the publications complained about in the other actions by Messrs Billis and Matich.
56 Mr Magee attended court in person as a witness called by Mr Douglas (ts 411 439, 443 467), in order to confirm and admit his affidavit evidence.
57 Under my pretrial directions for all the actions, Mr Magee's trial evidence stands as evidence not only in the actions brought by Mr Douglas, but also in the actions brought by Mr Billis and Mr Matich. Its content goes directly towards proving and satisfying the issue of publication (in the legal sense) of all the internet material that is complained about by all three defamation plaintiffs, as explained in Sims v Jooste [No 2]. That is, it has been proven by Mr Magee's evidence that all the internet material complained of has been viewed by some third party. Hence, the obstacle that arose in Sims v Jooste [No 2] is met by evidence in these four trials.
58 Although some questions in the way of attempted crossexamination were directed at Mr Magee from Mr McLernon (acting in person), none of his questions sought to take issue with Mr Magee's evidence concerning his asserted viewing of all of the internet publications that are complained of (see pars 26 29, 30 37 and 38 41).
59 Some hostile questioning directed at Mr Magee by Mr McLernon carried the underlying suggestion that Mr Magee was a generally unreliable witness and a person whose evidence ought never be accepted. Mr Magee rejected all of Mr McLernon's contentions as to his dishonesty or suggested improprieties. There is nothing independent before me to support or to allow a basis for accepting any of Mr McLernon's attacks against Mr Magee.
60 Consequently, I will accept that Mr Magee's evidence establishes his position as that of an independent third party reader viewing, downloading or otherwise accessing and then reading in Western Australia all of the internet publications complained of (and which he attaches to his affidavit, which was confirmed and admitted as his evidenceinchief) over the relevant internet sites, essentially on an uncontradicted basis.
61 As a result, there has been proven a publication to a third party in respect of all publications complained of by each plaintiff. Moreover, I expressly conclude that the viewing, downloading and reading of all this material took place geographically within Western Australia. No suggestion to the contrary was put to Mr Magee. Mr Magee is a resident of North Fremantle, Western Australia and that was the logical interpretation of his evidence.
62 Hence, from the perspective of identifying a completed cause of action under the tort of defamation arising within the State of Western Australia, I am satisfied that all the internet publications complained of by each of the three plaintiffs have been proven as being viewed, downloaded and read by a third party (Mr Magee), thereby establishing their legal publication to at least one person under the second meaning of that term as was explained by the High Court in Dow Jones and as recently applied by the Western Australian Court of Appeal in Sims v Jooste [No 2].
Four internet website publications complained of by Mr Douglas
63 I do not wish to enshrine or perpetuate in these reasons an existence or circulation of the material complained about by the plaintiffs beyond the minimum degree necessary to resolve the subsisting issues in the four defamation actions.
64 In short, Mr Douglas complains that various meanings (defamatory imputations) injurious to his reputation are carried by this published internet material. There is no live issue about Mr Douglas' personal identification in the publications he complains about. He is expressly named in each of the four publications complained of as 'Oliver George Douglas'. For the moment I will defer dealing with the Annexure A publication, as one imputation complained of is in the nature of a legal or true innuendo. I will deal at the outset with Annexures B, C and D, which are alleged to carry only defamatory meanings arising from the natural and ordinary meaning of the words used in each publication.
65 Mr Douglas says the second publication he complains of (in hard copy as Annexure B to his statement of claim and as 'OGDH' to exhibit 4 pages 74 102 or TB 151 180), carried false imputations that Mr Douglas: threatens innocent women and children using internet sites; knowingly associates with a notorious corrupt police officer; has been convicted of a series of criminal offences in Queensland; has stolen $500,000 from a corporation of which he was a director and was found guilty by a court of that offence; has stopped officers from the Australian Securities and Investments Commission (ASIC) from investigating him by obstructing, terrorising or intimidating those officers; has set up large numbers of companies for the sole purpose of avoiding paying creditors; and has fraudulently obtained millions of dollars by false loan applications.
66 The third publication complained of by Mr Douglas (Annexure C) is said to carry multiple false and defamatory meanings (imputations) to the effect that Mr Douglas: is a member of an organised crime gang (known as the 'Fat Wallet Mob'); has been charged with civil and criminal offences in three different states; committed fraud while working as the treasurer of a named corporation; worked with a well-known deceased Perth businessman to commit fraud and perpetrate a financial scam; and stole $400,000 from a named Malaysian politician.
67 Mr Douglas then complains that the natural and ordinary meanings arising from the fourth internet publication (Annexure D) raise numerous, distinct, false and defamatory imputations as to Mr Douglas being: known by the general public to be a distributor of pornographic, degrading and immoral materials, using unregistered websites and the internet; an operator of internet sites which distribute and make available pornography for a long period; paid to post false accusations about the sexuality of business competitors on internet sites for the purpose of blackmailing them; found by a judge of the Court of Appeal to be dishonest and that a judgment was handed down to this effect; a regular poster of pornography and other immoral materials involving women and children on the internet using Facebook, Twitter and emails; likely to physically harm women and people who are infirm; and mentally unstable and needing to be committed to a mental institution because he is dangerous to others, in particular to women and the infirm, and also to his bearing a responsibility for a certain notorious former police officer in Western Australia committing suicide (by hanging himself).
68 Merely for me to set out and record the disparate and multiple abovementioned imputations should show, without need for any greater elaboration, how seriously pejorative and damaging they would be to a person's reputation. If those meanings, which are asserted to arise from the internet published materials complained of, do arise as meanings, then, almost inevitably, given their seriously pejorative gravity, they must be assessed as being statements which are defamatory of Mr Douglas' character and reputation in the legal sense of that word: see observations of Brennan J in Reader's Digest Services Pty Ltd v Lamb [1982] HCA 4; (1982) 150 CLR 500 [7]. Accordingly, there is little need to dwell unduly upon the issue of whether these meanings, if shown to arise, are defamatory of Mr Douglas. Clearly they are, if they arise.
69 The second and more substantive issue is whether the meanings said to arise by Mr Douglas from the articles complained of, do arise from the text of the words complained about. In other words, are these meanings proven as arising from the natural and ordinary meanings of the words that were published over the internet?
70 In short, I would answer that question in the affirmative, in respect of all meanings complained about, as regards the publications complained about by Mr Douglas as Annexures B, C and D to his statement of claim.
71 Under the uniform defamation Acts in Australia, and in particular under the Defamation Act 2005 (WA), operative from 1 January 2006, the law is now that a cause of action under the tort of defamation arises upon the particular publication concerned - rather than upon each particular individual imputation: see s 8 of the Defamation Act. Each of the articles complained of by Mr Douglas as the second, third and fourth publications complained of (Annexures B D to his statement of claim) constitutes a cause of action in defamation by reference to each such publication (and so, not by reference to each individual defamatory imputation within these publications).
72 Subject to showing Mr McLernon is author of all that material appearing on the three identified websites, I can conclude here that Mr Douglas has proven that he has been defamed by Mr McLernon by the publication of these materials over the internet.
73 As will be seen, the only substantive issue put into contest is whether or not Mr McLernon, as a matter of fact, was actually the author of this website material and is responsible for uploading it to the internet. The issues and the evidence in relation to proof of that substantially contested element in these trials are somewhat blurred, as I will explain.
True innuendo meanings complained of by Mr Douglas in Annexure A
74 The position in respect of Annexure A is somewhat different. In the first place there is a grievance raised by Mr Douglas under par 5 of his statement of claim concerning a popular or false innuendo meaning he asserts, to the effect that Mr Douglas 'committed a criminal offence by attempting to leave the jurisdiction so as to evade his creditors that warranted him being put in jail'. The particular words relied upon as conveying this natural and ordinary meaning are particularised under par 5 of Mr Douglas' statement of claim. The words relied upon are that: 'Dodgy Douglas, going to gaol on absconding debtor's warrants, taken off the planes and more, all in one weekend' (appearing on page 0007 of Annexure A).
75 I have little doubt that the identified words within Annexure A also carry a defamatory meaning against Mr Douglas concerning his 'going to gaol'. However, I am not persuaded, without more, that the precise imputation that is complained of as regards Mr Douglas attempting to 'evade his creditors' is capable of being derived as a natural and ordinary meaning of these words. Consequently, I do not accept that this particular meaning has been shown as a popular or false innuendo, arising from the natural and ordinary meaning of the words used.
76 Perhaps because of a perceived difficulty of the pleader in extracting that meaning from the words alone, the statement of claim then goes on, via par 6 and par 7 to contend for a legal or true innuendo - that is, for a meaning said to be capable of being derived from the words complained of by a person who has the benefit of holding some additional underlying personal knowledge that is used to add to the words in order to arrive at the meaning contended for. In this situation I again note the recent observations of the Court of Appeal in Sims v Jooste [No 2] where Martin CJ said:
There is one exception to this general principle in cases involving publication by the mass media. In cases in which the plaintiff relies upon a true innuendo - that is to say, an imputation which would only be drawn from the material complained of by persons with knowledge of facts extrinsic to the publication, the plaintiff will be required to provide particulars of, and prove, publication to persons with knowledge of those extrinsic facts [14].
(In support of that statement, Martin CJ referred to Fullam v Newcastle Chronicle & Journal Ltd [1977] 1 WLR 651, a decision itself cited with approval by Hunt J in Lazarus v Deutsche Lufthansa AG (1985) 1 NSWLR 188, 193.)
77 The true innuendo meaning as contended for under par 6 of the statement of claim is bifurcated. It contends on behalf of Mr Douglas:
Further, some persons to whom the First Publication was published knew that:
79 A second true (legal) innuendo meaning is contended for under par 7 of the statement of claim of Mr Douglas, as regards this same publication. Paragraph 7 contends:
As a matter of true innuendo to persons with knowledge of the matters referred to in paragraph 6, the First Publication meant and was understood to mean that the plaintiff had committed an offence by breaching section 206B(3) of the Corporations Act by managing a company while an undischarged bankrupt.
80 Particulars to par 7 invoke further words surrounding the extracted words from this publication which say this:
Introducing Dodgy's Missus's Xmas gift. Yes from typist to law firm partner in one bound. Perhaps a new name now Dodgy de facto Director is running the show from his home/office. [The extract continued in the second column from the left on page 0007 of Annexure A.] May I suggest: GETAWAYLAWYERS ... MAY BE MORE APPROPRIATE.
81 It is convenient to resolve now both these as contended legal innuendo meanings. No evidence emerged at the trials of any person reading the first publication (Annexure A) holding particular knowledge of the content of s 206B(3) of the Corporations Act, as regards the prohibition against management participation in corporations by disqualified persons. In other words, the extrinsic facts that are relied upon to make good to additional nuances concerning the words by persons with knowledge of such matters, was wholly absent at the trials. The more obscure reference to words concerning a Christmas gift, and presumably to Mr Douglas' wife, appear to concern her, more so than Mr Douglas. Gratuitously offensive and insulting as those statements present, they do not seem to me to be capable of conveying the precise defamatory meanings that are contended for, either under par 6 or par 7 of Mr Douglas' statement of claim, against him. The absence of any third party witness indicating that they had read the content of Annexure A (the first publication) whilst holding that level of extra knowledge as is contended for is, in the end, fatal to proving these defamatory meanings from out of the first publication.
82 Consequently then, the grievances raised as regards the first publication (Annexure A) being defamatory of Mr Douglas at any level cannot be accepted.
CIV 2307 of 2012: Mr Billis' action against Mr McLernon
83 The most recent iteration of Mr Billis' statement of claim was filed on 25 November 2013 (exhibit 14). Its structure is very similar to the statement of claim filed by Mr Douglas in CIV 1930 of 2012 against Mr McLernon.
84 Once again, it is complained that Mr McLernon is the author of defamatory material published concerning Mr Billis and over the same three websites, namely: www.mclernonfile.com, www.blackdogsbarking.com and www.herdontheterrace.com (ie the McLernon File Website).
85 However, the material complained about by Mr Billis is wholly unique, giving rise to his contentions that he was defamed under a series of eight different internet publications all alleged to have been authored, then caused to be uploaded to those websites, by Mr McLernon, in the period between 13 January 2012 and 18 September 2012 (until those three websites were shut down, on or around 18 September 2012: see par 7 of Mr Billis' statement of claim).
86 Again, no issue over Mr Billis' personal identification in these materials arises in respect of the eight internet publications. He is expressly named in all but two of the eight publications (namely the fourth and fifth). For those two publications where he is not expressly named, he is nevertheless identifiable, from surrounding references to the 'Fat Wallet Mob' (that is referred to in Annexure B as being 'headed by Anthony Billis') and by a picture of a rat, with Mr Billis having been earlier referred to as a rodent in Annexure A.
87 By par 10 of his statement of claim, Mr Billis complains that the first internet publication (a hard copy of which has been downloaded and is attached to his statement of claim as Annexure A, having been viewed by Mr Magee in July 2012) carried five distinct natural and ordinary (defamatory) meanings (false innuendos) against him. The false meanings complained of by Mr Billis were to the effect that Mr Billis in this material is said to:
88 Each of the above meanings, if they are ascertained by me to arise as a natural and ordinary meaning of the first publication, would be defamatory of Mr Billis, in terms of impacting adversely against his character and reputation. The essential question then is whether or not all those meanings do arise.
89 In short, I am satisfied that they all do arise. Once again, I do not wish to perpetuate the scope of the publication of this material by unnecessarily recording and preserving it within these reasons.
90 The second publication complained of by Mr Billis (Annexure B) is alleged to carry the meaning that he is the head of an organised crime gang called the 'Fat Wallet Mob' (par 13 of the statement of claim). First, I am satisfied that that meaning does arise from the express words used within that publication. Second and selfevidently, that pejorative meaning is defamatory of Mr Billis' reputation. Again, the only real contest at the trial was whether Mr McLernon was the author in the legal publication sense of that material. I will address that contested question separately and globally in due course.
91 The third publication complained of by Mr Billis (Annexure C) is said to carry two natural and ordinary meanings defamatory of Mr Billis (see par 16 of the statement of claim). These false innuendo meanings are that Mr Billis:
92 I am satisfied that both meanings do arise. Selfevidently again, they are meanings that damage the character and reputation of Mr Billis. Essentially then, Mr Billis has been defamed, subject to establishing that Mr McLernon is the author of the words complained of as they appeared and were viewed over the three internet websites.
93 The fourth publication complained of (Annexure D) is asserted by Mr Billis to carry three separate false innuendo meanings defamatory of his character or reputation (par 19 of the statement of claim). These are to the effect that Mr Billis:
94 First, I need to be satisfied that those imputations are established as natural and ordinary meanings of the words complained of under this publication. Again, I am satisfied that these meanings are shown to arise. Selfevidently again, they are defamatory meanings. By their seriously pejorative nature they can be seen to be damaging to Mr Billis' character and reputation in the community.
95 The fifth publication complained of (Annexure E) is alleged to carry two false innuendo meanings against Mr Billis (par 22 of the statement of claim). These are that he had, acting with a criminal gang called the Fat Wallet Mob:
96 I am satisfied that those meanings do arise from the text of the material complained about as the fifth publication. Again, selfevidently they are meanings seriously defamatory of Mr Billis' reputation, by their very nature raising as they do acts of criminal misconduct by him.
97 The sixth publication complained of (Annexure F) is said to carry only one false innuendo defamatory meaning against Mr Billis namely that he is a 'dangerous man who wears a silver pistol on his person which he uses as a weapon when he has arguments with people' (par 25 of the statement of claim).
98 I am again satisfied that this meaning arises from the words of the sixth publication, which expressly identifies Mr Billis and a silver pistol, with Mr Billis said to be engaging in conduct by the term 'battered', which is used in reference to McLernon, a cameraman and Mr McLernon's car.
99 The seventh publication complained of by Mr Billis (Annexure G) is contended to carry two defamatory imputations arising upon the natural and ordinary meaning of the words used (par 28 of the statement of claim). The two meanings are that Mr Billis is:
100 I am satisfied that those two meanings do arise on the words of the seventh publication. Selfevidently they have, yet again, meanings which of their very nature are defamatory of Mr Billis' reputation and character.
101 The final (eighth) publication that is complained of by Mr Billis (Annexure H) is said to carry three defamatory false innuendo meanings adverse to him (par 31 of the statement of claim). These are that Mr Billis has:
102 I am satisfied that these meanings do arise from the material which is complained of as the eighth publication. Again, and selfevidently, they are seriously defamatory of Mr Billis' character and reputation.
103 In conclusion, the necessary fundamentals have been proved in respect of proving that these eight internet publications were all seriously defamatory of Mr Billis. A residual evaluation arises and is necessary only upon the contested factual issue over whether Mr McLernon was in fact the author and publisher of all these materials carried upon the three websites.
CIV 2308 of 2012: Mr Matich's action against Mr McLernon
104 The most contemporary iteration of the statement of claim used for this action (after some interlocutory adjustment) was filed on 25 November 2013 (exhibit 23). Mr Matich complains about material concerning him published over the internet upon the samethree earlier as identified websites (www.mclernonfile.com; www.blackdogsbarking.com; and www.herdontheterrace.com) and in aggregate referred to at par 2b of his statement of claim as the 'the McLernon File Website'.
105 The structure of this pleading is once again similar to that of the pleadings filed by Mr Douglas and Mr Billis, attaching four allegedly defamatory publications as Annexures A to D. Each is separately complained about, as having been the subject of the publication of defamatory material between 4 August 2011 and 18 September 2012 (pars 7 and 8 of the statement of claim read in combination). Again, it is pleaded that the McLernon File Website (as defined in aggregate) was eventually shut down.
106 The first of the publications complained of (see par 8 of the statement of claim, referring to Annexure A) identifies three false innuendo meanings complained about by Mr Matich, under par 10 of his pleading. The imputations complained of respectively are that Mr Matich:
107 The words complained of as the subject matter of the first publication expressly identify Mr Paul Matich by his name. His identification as the object of the matter complained of is therefore not in any doubt.
108 In respect of other publications, Mr Matich is identified either expressly as 'Paul', or as 'Noddy' Matich. His identification is therefore proved.
109 I am next satisfied that each of the three meanings complained about by Mr Matich, does arise on the natural and ordinary meanings of this material. Moreover, and almost selfevidently, I must assess such meanings as being inherently damaging to the reputation and character of Mr Matich.
110 Consequently, this publication meets the relevant requirements to be assessed as a defamatory publication, thereby establishing the cause of action in defamation by Mr Matich against Mr McLernon. That will be so if - as once again presents as being the only real issue in serious controversy - Mr McLernon is proven to be the author and publisher of this material found across the three websites.
111 I would reiterate that it has been proven that all this internet material was, on my assessment, downloaded and read in Western Australia by at least one independent adult third person - namely by Mr Magee. Therefore, it has been proved as having been published in the relevant legal sense, from the perspective of establishing an efficacious cause of action under the tort of defamation.
112 The second publication complained of by Mr Matich (identified at par 11 of his statement of claim referring to Annexure B) is said to carry, by its natural and ordinary meaning, two false innuendo meanings against him. The first is that Mr Matich is not a fit and proper person to be a director of a named and identified corporation. Second, it is said to carry the meaning that Mr Matich has abused power entrusted to him in his role as a director by casting votes in accordance with instructions from a family member and not acting independently in the interests of a company.
113 I am satisfied that both these meanings do arise from the words complained of. I am also satisfied that selfevidently they are meanings that are, by their very nature, damaging to the character and reputation of Mr Matich. Consequently, they are defamatory of him in the relevant sense.
114 The third publication complained of (identified in par 14 of Mr Matich's statement of claim) refers to Annexure C. Annexure C is said to be a hard copy of what was downloaded from the relevant website. Only one false innuendo meaning is contended for under par 16 of the statement of claim, namely that the words complained of mean that Mr Matich 'is being investigated by the Australian Securities and Investments Commission': see par 16(a) of the statement of claim.
115 Having examined the words complained of, I am not satisfied that this particular imputation has been established, in terms of a natural and ordinary meaning of the words, when read by the hypothetical ordinary and reasonable reader who is not avid for scandal. Rather, the incoherent sentences comprising this material would seem to suggest only an inference to the effect that the author of the website is advocating that ASIC should investigate Mr Matich, rather than suggesting the fact of a subsisting investigation being undertaken by ASIC (see the word 'is' in that contended imputation, which is not supported by the text).
116 Towards that assessment, I refer generally to the observations of Lord Devlin in Lewis v Daily Telegraph Ltd [1964] AC 234, upon the effect of the words at issue in that case that the City of London fraud squad 'are enquiring into the affairs of Rubber Improvement Ltd'. A legal distinction by Lord Devlin in the House of Lords was there drawn, as between a statement that a plaintiff's affairs were being enquired into, in contrast to a statement that implied there were good grounds for inquiry or grounds for suspicion: see Lewis v Daily Telegraph (282, 285).
117 By my assessment of the third publication, applying the ordinary reasonable reader template criteria, the imputation contended for (ie that Mr Matich is being investigated by ASIC) simply does not arise. A distinct imputation which I would assess as being discernible, namely that there are grounds to investigate Mr Matich, would be defamatory. It is a meaning that would, I think, be extractable from this same material applying the same template criteria. However, that rival meaning is not pleaded. It is not the precise imputation invoked here by Mr Matich. Since Mr McLernon acts in person he could be prejudiced by an amendment to pick up that rival meaning in lieu of the meaning that fails. I am troubled over allowing Mr Matich to proceed in respect of that different imputation.
118 In the circumstances I must reject the imputation contended for under par 16(a) as not arising. Consequently, I do not find a cause of action established based upon the third publication complained of by Mr Matich. See generally as well my observations concerning what is sometimes referred to as a Chase Level 3 investigation imputation, in Shea v News Ltd [2015] WASC 1.
119 The fourth internet publication complained of by Mr Matich is referred to by par 17 of Mr Matich's statement of claim again by reference to an attached hardcopy printout of what appears on the internet (Annexure D).
120 Mr Matich contends that three false innuendo imputations arise from that material, upon the natural and ordinary meanings of the published words: see par 19 of the statement of claim.
121 The imputations complained of are, in effect, that Mr Matich:
122 I am not persuaded that the imputation under par 19(a), as regards Mr Matich having stolen everything that Mr G once owned, is capable of being extracted from the words complained of in their natural and ordinary meaning, by an ordinary and reasonable reader of those words. The relevant word used within the overall text is the word 'stripped', used in a context of the phrase, 'of all his worldly goods'. Whilst something else pejorative may be capable of being made out of those words complained of, I do assess a real conceptual difficulty in accepting the meaning of 'stole everything', measured against a lesser (in terms of gravity) terminology of text, 'stripped [Mr G] of all his worldly goods'. Albeit I am now applying the lesser assessment standards of the hypothetical ordinary reasonable reader, I am not in the end left persuaded here that this high level criminality meaning, as is contended for, can be found to arise.
123 Nevertheless, I am satisfied that the imputation under par 19(b) - that Mr Matich is not a fit and proper person to be a director - does arise, particularly by reference to the 'bar in Thailand' text. In effect, that same imputation is raised under par 19(c), albeit now with further words added to the tail of this imputation, concerning a betrayal of other board members. A casual reader could interpret the words complained of that way, particularly by reference to the text concerning Mr Matich needing to sit in a position 'where John can see him not behind Johns [sic] back'. I assess that to be a reasonable interpretation of those somewhat cryptic words, which are well capable of carrying the meaning for the ordinary person that Mr Matich is likely to betray a fellow board member.
124 Furthermore, I would also conclude that the fourth publication does carry the defamatory meaning concerning Mr Matich's unfitness to be a director. Such a meaning is defamatory of the character and professional reputation of Mr Matich, for the purpose of establishing a cause of action in defamation against Mr McLernon upon this publication with the abiding qualification, as for all matters complained of, that Mr McLernon is proven to be responsible for the material found on the websites.
125 I can now soon begin to address what presents as the only significant, contested factual issue arising in the three trials concerning Mr McLernon. This is the issue about Mr McLernon's disputed authorship and publication - in the sense of causing all the materials complained of by each plaintiff to be uploaded and placed upon the three identified websites. That is the only major residual area of contested factual disputation in need of resolution. As I proceed to explain in a separate section later in these reasons, I have been satisfied that these claims against Mr McLernon have been made out.
126 I have already rejected at the trial Mr McLernon's no case submission made in Mr Matich's action CIV 2308 of 2012: see ts 678 679.
Summary of position in respect of the three defamation actions against Mr McLernon
127 As set out above, each of the plaintiffs through their affidavits tendered at trial have spoken at length about their personal distress and concern in relation to the materials they complain of.
128 Given a long history of the plaintiffs' grievances concerning Mr McLernon and his internet publications, the plaintiffs' affidavits contain on occasions material that is either not pertinent to the matters complained of, or that serves only as background towards their frustrations arising from other internet publications by (they allege) Mr McLernon. Some of these previous encounters extend back to as early as 2003 2004. I have paid no regard to that earlier material other than by way of a historic lead in to the publications substantively complained about in these actions.
129 In the case of Mr Douglas' defamation action against Mr McLernon (CIV 1930 of 2012), his writ was issued on 25 May 2012. Essentially, I am concerned with defamatory publications about Mr Douglas, attributed to Mr McLernon as author and uploader of the materials to the three websites in question, in a twelve month period prior to the issue of that writ, ie from (at or about) the end of May 2011, through to May 2012.
130 In the case of the other plaintiffs, Messrs Billis and Matich filed their defamation writs against Mr McLernon (respectively CIV 2307 and 2308 of 2012) on 1 August 2012.
131 Again, Mr Billis' affidavit (exhibit 19) and Mr Matich's affidavit (exhibit 28) detail a significant amount of other material concerning their defamation grievances against Mr McLernon in earlier periods. That is historic background information only at best. Again, I have given it no weight. Substantively, from a defamation liability perspective in these proceedings, I am concerned with internet publications over the three websites that are attributed to Mr McLernon in the 12 month period prior to 1 August 2012.
132 I have now dealt with the publications that each plaintiff has complained about vis-à-vis Mr McLernon. I will reiterate by reference to the terms of s 8 of the Defamation Act that it is the defamatory publication which provides a cause of action in defamation, not the possible multiple distinct defamatory meanings which can be identified within any one particular publication.
133 By way of a brief summary I have essentially concluded that Mr Douglas has now established that he has been defamed under three of the four internet publications about which he complains. Each of the second, third and fourth publications he complains about contain a multitude of defamatory meanings all adversely impacting Mr Douglas' character and reputation. The adverse meanings complained about are serious, pejorative and are clearly defamatory of Mr Douglas' reputation.
134 A scope for multiple persons in the community to have seen such defamatory materials (from the perspective of a potential assessment of damages) about Mr Douglas is supported first by the evidence from Mr Magee that he personally downloaded and read all the material. Consequently, proof of publication to a third party in the legal sense, as discussed in Dow Jones, is established here. But from an overall damages perspective, what remains to be determined is the degree of exposure of this material to the community in terms of these particular second, third and fourth publications as complained of by Mr Douglas (and see s 34 of the Defamation Act).
135 As to that degree issue, I am satisfied that the extent of circulation of this material (being downloaded on the internet and read by persons in Western Australia) is, on the balance of probabilities, likely to be a lot broader than just an exposure to Mr Magee. Noting that Mr McLernon did not crossexamine Mr Douglas and therefore no challenge was made to what was admitted to evidence as Mr Douglas' affidavits which contained his evidenceinchief (exhibits 4 and 9, respectively), I would observe upon what Mr Douglas says, unchallenged, particularly at pars 37, 59, 60, 115, 118, 119 and 121. In further viva voce evidence given at the trial, Mr Douglas expanded upon the consequences of him conducting a Google search in relation to his own name, with the result of that Google search taking a person conducting the search to the three websites at issue, being where the materials complained of by him are found (see ts 405).
136 The paragraphs which I have identified in Mr Douglas' affidavit indicate his evidence about third persons, in terms of their reactions to Mr Douglas. He relates, in effect, that such persons have conducted themselves in ways with him which would indicate to him, that they have seen the material complained about as the second, third and fourth publications and that, following those reactions, Mr Douglas learnt about the impacts of the material. For instance, Mr Douglas relates the distress he suffered in relation to his membership of and participation in events of the Perth Flying Squadron Yacht Club. Specifically, Mr Douglas says that as a result of the material complained about, he was not nominated for a board position and then, in the aftermath, the embarrassment he suffered caused him to resign and not participate further with that organisation.
137 I am satisfied that the internet material complained about under the second, third and fourth publications about Mr Douglas would have been exposed to a reasonably wide section of the internetusing general public of Western Australia and to a reasonably wide degree, which has then adversely impacted against Mr Douglas' perceived reputation in that community. Moreover, I would assess his distress in relation to the impact of that material upon persons with whom he associates as being both genuine and significant. Those considerations should be reflected in the award of damages in his favour.
138 As now set out above, Mr Billis complains about eight internet publications over the three websites at issue.
139 Subject to the contested responsibility issue regarding Mr McLernon, I concluded that Mr Billis has been defamed under each of those eight internet publications he complains about. The respective meanings which I have canvassed and found to be established under that material does mostly carry strongly adverse, pejorative statements about his character and reputation. Merely to peruse the various meanings which I have now found to be carried, is to display their seriously adverse characteristics conveyed against Mr Billis.
140 The breadth of circulation of that material amongst the Western Australian community, in terms of it being accessed and read from the internet over a 12 month period prior to 1 August 2012, leads me generally to Mr Billis' affidavit (exhibit 19) and to what is said there concerning the results of a Google search of his name producing links to the websites in question (see par 63). I also note what Mr Billis has said under pars 69, 71, 72 and 73 of his affidavit concerning his own perceptions as to the impacts of this circulating material upon members of the community with whom he dealt and how this has consequently affected him. I accept this evidence. I conclude as I did in respect of Mr Douglas that the spread of this material under the eight publications complained about is likely to have been widespread and to have impacted adversely against Mr Billis' reputation and particularly in the West Australian business community.
141 I also accept that this has all been very distressing for Mr Billis and that these are again considerations which should bear upon the award of damages to Mr Billis, if made. I also note that Mr Billis entered the witness box to confirm the content of his affidavit and made himself available for crossexamination by Mr McLernon. Mr McLernon declined the opportunity he then held to crossexamine Mr Billis: see ts 659 660.
142 I also note that both Mr Douglas and Mr Billis in their affidavits go further, to complain about subsequent publications by Mr McLernon on social media such as Facebook and Twitter. They relate steps they have taken to address their concerns in that respect. They also refer to the publication of further defamatory matter, which they complain about, published over another website, TerenceMcLernon.com.au.
143 Publications over Facebook and Twitter and upon the latter website are not the direct subject matter of the present proceedings in terms of being defamatory publications complained about that themselves give rise to a potential award of compensatory damages. However, they are events nonetheless being less directly relevant, in the context of being potential aggravations of damage in respect of the primary publications complained of. Even more significantly, however, as events going to the likelihood of a serious risk of future repetition of more publications of a like nature, they do bear upon the plaintiffs' claim for permanent injunctive relief against Mr McLernon which all plaintiffs seek against Mr McLernon, above and beyond any damages awarded to them. Indeed, bearing in mind the ostensible impecuniosity of Mr McLernon, the plaintiffs' pursuit of remedy by way of permanent injunctions restraining Mr McLernon from causing or bringing about any further internet publications of a similar character, under threat of a contempt sanction, would present as perhaps the most effective tangible remedy sought by these plaintiffs from their actions against Mr McLernon.
144 All the same considerations apply in relation to Mr Matich. Mr Matich attended trial and confirmed the content of his affidavit which became exhibit 28. Once again, Mr McLernon declined his opportunity at trial to ask any questions of Mr Matich in crossexamination: see ts 675.
145 As I have already discussed, there were four publications complained about by Mr Matich. I found three of the four publications (the first, second and fourth) to be defamatory of him in terms of his character and reputation.
146 By way of general contrast as between Mr Matich and the scope and scale of the defamatory publications against Mr Douglas and Mr Billis, it is apparent to me that the scale of and seriousness of the imputations against Mr Matich are not of the same magnitude (numerically) or seriousness as those seen put as against the other two plaintiffs, which carry more grave charges against the reputations and characters of these two men.
147 That observation is not intended to diminish the harm or hurt carried by what has been published concerning Mr Matich. It is only to observe that in contrast to Mr Douglas and Mr Billis as plaintiffs, Mr Matich appears to have been something of a lesser target albeit what was said about him, particularly under the fourth publication complained about in terms of his unfitness to be a director of a corporation, concerning his character and professional reputation, carries the capacity to inflict economic harm - something about which Mr Matich complains generally in his evidence in terms of his difficulty finding work.
148 I refer generally to pars 20, 56, 62 and 70 in Mr Matich's affidavit concerning perceptions he held about his interactions with persons in Western Australia who he assessed as having been exposed to the internet matters complained about and rendering upon Mr Matich adverse effects, and Mr Matich's concern and distress which he felt as a result. I accept that evidence. These are considerations which bear upon the level of an award of damages, if made against Mr McLernon.
149 Likewise, Mr Matich's affidavit speaks more generally about other internet material of concern to him issuing from Mr McLernon but temporally only after the particular publications complained about. Those matters raise issues relevant to potential aggravation of damages and to Mr Matich's claim for relief by way of permanent injunction against Mr McLernon, bearing in mind what presents to be the ongoing continuance of defamatory publications issuing against Mr Matich, and which he attributes to Mr McLernon.
Key contested issue: the authorship and publication of the internet materials complained of as against Mr McLernon (first defendant in CIV 1930 of 2012, CIV 2307 of 2012 and CIV 2308 of 2012)
150 Mr McLernon has acted for himself without legal representation in all three defamation actions concerning him since the actions were variously commenced in May and then August 2012. Currently, as filed, his three defence pleadings in each of the actions against him (CIV 1930, 2307 and 2308 of 2012) each manifest only three paragraphs of content, ostensibly carrying his signature at the end.
151 On the court file for each of the three actions there is to be found a document entitled 'Amended Pleading of Defendant' showing the date 22 April 2016, and carrying at the bottom a signature seen above a straight line, under which appears the words 'Terence John McLernon, First Defendant', then, adjacent to that, the words 'Page 1 of 1'.
152 Copies of these three amended defence documents were received as exhibits at the trial, in somewhat unusual circumstances. They were received in CIV 1930, 2307 and 2308 of 2012 as exhibit 3, exhibit 18 and exhibit 27 respectively (all carry the date 22 April 2016 and a signature above a typed name, 'Terence John McLernon, First Defendant').
154 The reference under par 3 above to 'publication or responsibility' is significant to the forensic running of the three defamation trials concerning Mr McLernon.
155 Up until the time on day three of the trials when Mr McLernon (still representing himself in person) entered the witness box to give his evidence in Mr Douglas' action against him, I had been under the impression that the amended defence, as pleadings, had articulated Mr McLernon's formally responsive 'new' (see par 2) defence position, by responding to the allegations made against him respectively by Messrs Douglas, Billis and Matich in their most recent 2013 statements of claim (exhibits 1, 14 and 23). But, as I shall explain, Mr McLernon's evidence whilst under crossexamination on day three of the trial did not support that initial assessment.
156 Before going further I should note that exhibits 2, 15 and 24, respectively tendered in the Douglas, Billis and Matich actions, are the predecessor pleaded defences (each dated 18 February 2014) that were filed - ostensibly by Mr McLernon. Each is noted on its face to carry the indorsement 'Prepared By: Terence John McLernon'. Each identifies a post office box number in Perth with a prefix Z, then a mobile telephone number commencing with the prefix numbers 0411. Mr McLernon accepted in evidence that the post office box and the mobile phone number, either were or had been his.
157 Each of the February 2014 typewritten defence pleadings appears on its last page to carry a signature above the typed indorsement of the name Terence John McLernon, as either defendant in the Douglas action against him, or as first defendant in the Billis and Matich actions.
158 The defence pleas seen under pars 2 and 3 of the earlier defence document are seen to be structured to respond pars 2 and 3 of the respective statements of claim of Messrs Douglas, Billis or Matich in each of the three relevant actions.
159 To assist a better understanding, I will compare in the table below the plea from Mr Douglas' statement of claim (left column) with Mr McLernon's responsive plea under the defence (right column). The essential points to note are the matters admitted or denied in the 18 February 2014 defence pleadings. Mr Douglas' statement of claim of 25 November 2013 pleads in similar fashion to Mr Billis' statement of claim in CIV 2307 of 2012 and to Mr Matich's statement of claim CIV 2308 of 2012. It is sufficient for present purposes to conduct this exercise only in relation to Mr Douglas' statement of claim in CIV 1930 of 2012 - in other words juxtaposing the statement of claim against the defence response from a comparison of the two pleadings as regards pars 1, 2 and 3, from each.
Statement of claim of Oliver Douglas in CIV 1930 of 2012
Mr McLernon's earlier filed defence of 18 February 2014
1. The plaintiff is and was at all material times a financial services consultant
1. The Defendant admits paragraph 1 of the Statement of Claim dated 22 November 2013 ('the statement of claim')
2. The defendant is and was at all material times:
a) a twice bankrupted former policeman and private investigator;
b) the author of all works appearing on websites titled 'The McLernon File' located at www.mclernonfile.com, www.blackdogsbarking.com and www.herdontheterrace.com (McLernon File Website);
c) in control of the operation and content of the McLernon File Websites;
d) the registrant, and administrative and technical contact for the domain names mclernonfile.com, blackdogsbarking.com and herdontheterrace.com;
Domain name searches in relation to the McLernon File Website are available for inspection at the offices of the plaintiff's solicitors by prior appointment.
e) a publisher of material published on the McLernon File Website
The McLernon File Website comprised a varied array of pages, articles, stories, comments, alleged rumours, alleged facts, alleged documents and pictures concerning various Perth businessmen, police, former police, former politicians and alleged criminal identities.
The material on the McLernon File Website was available from a date unknown to the plaintiff till on or around 18 September 2012. From 18 September 2012, no material has been available for downloading and visitors looking for the McLernon File Website can instead only view the following message
'This account has been suspended. Please contact the billing department as soon as possible.
Site owner please note: After 30 days of suspension the site will be considered dormant and all files including emails and database, etc, will be deleted from the server permanently and the account terminated.'
2. As to paragraph 2 of the statement of claim, the Defendant admits paragraphs 2(a), (b), (c) and (e) but denies paragraph 2(d) and states further that the registrants, technical and administrative contacts for the domain names mclernonfile.com, blackdogsbarking.com and herdontheterrace.com were Toni Fitzgerald and Laurence Kerry Fitzgerald.
[My Comment: It may be seen readily from this defence plea that admissions are made in respect of the pleas put against Mr McLernon as defendant under subpars 2(a), 2(b), 2(c) and 2(e) of the statement of claim.
The only plea seen as put in contention is subpar 2(d) as regards the express denial as to who is the registrant and administrative and technical contact for the three domain names identified in subpar 2(d) of the statement of claim.]
3. On various dates from at least 13 October 2011 until 18 September 2012 the defendant has designed, uploaded and modified, or caused to be designed uploaded or modified the words and images on the McLernon File Website, so that the following matters of and concerning the plaintiff appeared on the McLernon File Websites on 18 September 2012 ...
[There follow references to pages of annexures which as may be seen are then appended to the statement of claim.]
3. As to paragraph 3 of the statement of claim, the Defendant:
(i) on or about 18 September 2012, he published by means that he designed, uploaded and modified, or caused to be designed, uploaded or modified the words and images on the McLernon File Websites and appearing as Annexures A, B, C and D at pages 1 to 23 of the statement of claim;
(ii) the words and images so published by him referred to the Plaintiff;
[My Comment: Without quoting further, I note in the defence document (exhibit 2) the ensuing admissions as to the publication by Mr McLernon of the nominated first, second, third and fourth publications as seen under pars 4, 8, 10 and 12 of the statement of claim by those paragraphs in the defendant's defence.]
160 Comparison of Mr Billis' statement of claim in CIV 2307 of 2012 (exhibit 14) and the earlier filed defence plea of Mr McLernon (exhibit 15) of 18 February 2014 displays a similar regime of responses. The defence once again admits publication of the internet publications complained about.
161 Likewise, the same process of comparison as between Mr Matich's statement of claim in CIV 2308 of 2012 (exhibit 23) and Mr McLernon's defence of 18 February 2014 (exhibit 24) reveals similar responsive pleas by way of admissions and the like, akin to that seen in the table above in the Douglas action.
162 So, emerging from the earlier defence documents as filed, at least ostensibly on behalf of Mr McLernon on 18 February 2014 (which are now trial exhibits 2, 15 and 24), the only responsively disputed aspect of the pleas by Messrs Douglas, Billis and Matich (which were in like terms) concerned subpar 2(d) of the statement of claim, as regards the relevant registrant's technical and administrative contacts for the domain names. In other words, there was no issue taken at all about publication by that relevant defendant in fact quite the contrary. So it was presented at 18 February 2014 that the publications upon all the internet matters as were complained about by all three plaintiffs looked to be admitted expressly by Mr McLernon, under his then pleaded defences in these three actions.
163 That was an admitted position for Mr McLernon as I discerned it on the pleadings, as I issued case management directions for the trials of these actions on 18 March 2016, effectively ordering sequential trials and for such trials to proceed on the basis of exchanged affidavit materials as the evidenceinchief of the witnesses at trial.
164 By way of further background I ought to note here that after I became case manager in respect of each of these four defamation actions (in the CMC list), I then convened a series of special appointments to deal with the pleading strike out applications advanced by the plaintiffs against various defence pleas formerly seen articulated in Mr McLernon's in person defence pleadings of the day.
165 Following arguments before me on 4 February 2015 in chambers, I issued orders that various defence pleas seen under Mr McLernon's defences of 18 February 2014 be struck out in each of the Douglas, Billis and Matich actions. That was as regards Mr McLernon's then attempted defence pleas of fair comment towards most publications.
166 A third order I made at that appointment refused Mr McLernon leave to amend his defence to raise any further defence of fair comment either at common law, or by the statutory defence of honest opinion via s 31 of the Defamation Act. By further orders at that time I did allow Mr McLernon a further opportunity, until 4.00 pm on Monday, 9 March 2015 to provide a minute of his proposed further defences of justification, or his pleas of bad reputation against the plaintiffs.
167 Mr McLernon did file some opposing material at that time against those applications to strike out but he in the end did not attend that special appointment to oppose the plaintiffs' pleading strike out applications.
168 There was a further interlocutory appointment in chambers convened before me on 18 September 2015. At that time I struck out justification pleas by Mr McLernon (who then appeared in person) on the plaintiffs' applications and the further attempted plea of defence(s) of bad reputation, under par 14 of his 18 February 2014 defence. I then refused Mr McLernon leave to amend his defence(s) to raise any future pleas of justification or of bad character in light of those events and the opportunities he had received to file coherent defences, but had not.
169 Subsequently, on 18 March 2016, I issued programming directions in respect of the four defamation trials. That directions hearing was attended by counsel on behalf of the plaintiffs; by the Fitzgeralds via telephone link; and by Mr McLernon appearing in person. I add in respect of all the prior interlocutory orders I issued at various times on strike out applications and the like, after hearing the applications concerning Mr McLernon's defence pleadings, that no challenges by appeal against my interlocutory determinations were ever taken.
170 Essentially then, as the matters presented on 18 March 2016, each of the three looming trials involving Mr McLernon as defendant then looked to be proceeding only upon the basis of defence resistance raised solely in the form of what remained of Mr McLernon's 18 February 2014 defence pleading, following the struck out excisions made to various pleas within that defence which had been adversely ruled upon against him at the preceding interlocutory strike out applications (striking out his attempted, but inadequately pleaded, defences of fair comment, honest opinion, justification and his attempted, but legally misconceived, pleas as to the plaintiffs' bad reputations).
171 That all changed on 22 April 2016, eight weeks prior to the allocated June 2016 trial dates, when the three defence documents each entitled 'Amended Pleading of Defendant' were received at court for filing and stamped accordingly and (I assume) sent to each of the participant parties in each action.
172 Three affidavits of Terence John McLernon were subsequently filed, corresponding to the civil action numbers for three actions concerning Mr McLernon. The affidavits appear to have been filed and served in compliance with my 18 March 2016 trial directions (allowing the defendants until 30 May 2016 to file any affidavit materials on their part as their evidenceinchief for use in the trials). Each affidavit received at court on its face appeared to have been sworn by Mr McLernon, in the three respective actions with each carrying the date 22 May 2016 (see MFI 8A), the document being entitled (in CIV 1930 of 2012) 'Trial Affidavit of Terence John McLernon Sworn on 22 May 2016 and Annexures TJMA to TJMJ'.
173 That document is seen to carry on its face the notation:
Prepared by First Defendant Terence John McLernon
PO Box Z [redacted]
[email address redacted]
174 Objections to the admissibility in evidence of most of the content of that affidavit were taken at trial by counsel for Mr Douglas. The legal objections taken were mostly correct and were mostly upheld, leaving surviving only the content of pars 1, 2, 44, 47, 48 and 68 (save for its last sentence). I chose to separately identify that very limited surviving evidence as exhibit 8. However, for the purposes of identification, and at finding some level of attempted coherency by reference to the trial transcript, I chose to designate the balance of that affidavit by Mr McLernon (which on the basis of its mostly inadmissible contents was not admitted to evidence) as MFI 8A.
175 It has been necessary to undertake this rather tedious analysis of Mr McLernon's prior and current defence pleadings across the three defamation actions concerning him due to what arose at the trial in somewhat bizarre circumstances, involving Mr McLernon's then asserted lack of any memory in respect of any of these in person defence pleadings, each of which otherwise bears his name.
176 As mentioned, the trials for Mr Douglas' two actions commenced at 10.30 am on 20 June 2016, with Mr McLernon appearing in person. At 9.30 am that day, in chambers, I had dealt with an application by Mr McLernon seeking that I disqualify myself as trial judge, on the basis of what I assessed to be his argument as to my ostensible bias. I dealt with and resolved that argument ex tempore at the time. I rejected the application of Mr McLernon and resolved to conduct the trials which subsequently commenced at 10.30 am that morning: see ts 235 242.
177 Whilst counsel for the plaintiffs, Mr Mukherji, was opening the Douglas actions at 2.43 pm on the afternoon of day one of the trial (see ts 328), this exchange occurred with Mr McLernon, then at the bar table and representing himself:
KENNETH MARTIN J: We're dealing with one issue at the moment, and that is by reason of the defence that you've put in this case, you've basically said you're not the publisher or it's not proven.
MR MCLERNON: It's not proven.
178 After Mr Douglas' evidenceinchief was completed (there being no crossexamination by Mr McLernon) the next witness called in those two actions was Mr Magee (see ts 431). His affidavit became exhibit 5. As mentioned, Mr Magee was the subject of some hostile questioning by Mr McLernon.
179 A character witness for Mr Douglas was then called over a video link from Guernsey in the Channel Islands. The evidence was from Mr Gregory John Archer. His short affidavit concerning Mr Douglas' good character became exhibit 6 (in the end, after some excisions, only pars 1 to 9 of his affidavit were admitted as exhibit 6). Mr McLernon declined to crossexamine Mr Archer at that time (ts 442).
180 At the completion of Mr Magee's evidence, a further character witness was called a Mr Charles Bellow. An affidavit sworn by Mr Bellow was admitted as exhibit 7. Mr Bellow was also not crossexamined by Mr McLernon (ts 469).
181 Mr Douglas' cases were therefore closed at about 3.08 pm on day two of the trial (ts 469).
182 Mr McLernon then attempted to advance a no case to answer submission (ts 470). Clearly, there was a case to answer as regards Mr Douglas by Mr McLernon. Hence, I rejected that submission (ts 472 473).
Events prior to Mr McLernon being crossexamined in the Douglas actions
183 There ensued, as I mentioned, the series of objections by counsel for Mr Douglas to most of the paragraphs within Mr McLernon's proposed affidavit sworn in the Douglas action. In the course of dealing with one objection raised to proposed par 29 of Mr McLernon's affidavit evidence, this exchange followed with Mr McLernon (ts 484):
KENNETH MARTIN J: ... In order to prove publication by you on the Barking Dog website on the whatever it is website and the McLernon file website, the[ir] contention is not based on expert evidence. The[ir] contention is that when you look at the content of that material, what's in it, when you look at your previous admissions in this case in the defence that you once filed and then withdrew, that I should draw the overwhelming conclusion that you are responsible for it.
That's the argument that they make. It's not based on an expert and they don't propose to call an expert because they've closed their case ...
184 I then delivered my rulings concerning the few admissible paragraphs in Mr McLernon's proposed affidavit: see affidavit of 22 May 2016 sworn in the Douglas action, CIV 2306 of 2012.
185 As day two was drawing to a close, I allowed Mr McLernon an opportunity overnight to decide whether he would enter the witness box to give evidence or not to confirm and admit to evidence the residual paragraphs from his affidavit in the Douglas action that had survived objections (and would become exhibit 8) (ts 490).
186 At the commencement of day three I said to Mr McLernon (ts 507 508):
KENNETH MARTIN J: ... [W]e need to deal with the status of the affidavit of yours that we dealt with yesterday. What do you want to do about that?
MR MCLERNON: Do you mean, do I want to go in the witness box?
KENNETH MARTIN J: Yes.
MR MCLERNON: Yes, certainly.
KENNETH MARTIN J: You do want to give evidence ...
MR MCLERNON: Why not?
KENNETH MARTIN J: ... and be crossexamined?
MRMCLERNON: I've got nothing to fear.
187 This entry to the witness box of Mr McLernon was deferred until after the (ultimately successful) no case submission of Ms Fitzgerald was heard and resolved.
188 Eventually, Mr McLernon entered the witness box at 11.14 am on day three. The few residual admissible components of his affidavit then became exhibit 8. For identification, convenience and logistical purposes the balance of his affidavit, as I mentioned, was marked as MFI 8A (ts 527). The crossexamination commenced at ts 528. I deal with that event in the next component of these reasons. I will observe that up to this point, being halfway through the morning of day three, there had been no indication of Mr McLernon labouring under any health issue, or from a memory problem. His conduct to that point, albeit unique, had not suggested he was suffering from any medical problems affecting or detracting from his active participation in the trials on an in person basis.
189 Since he was unrepresented by counsel, I had endeavoured to elicit from Mr McLernon whilst he was giving his evidenceinchief, the confirmation of the evidence which survived objection in relation to his exchanged affidavit of 22 May 2016.
190 After being taken to some paragraphs of his affidavit, Mr McLernon then began to refer to a memory loss problem. I had asked him to confirm the reference to three websites at par 44 of his affidavit, by reference to a domain name search (ts 526). His response was:
MR MCLERNON: I've got a bad memory, but I put it in here at the time, so I ...
KENNETH MARTIN J: ... Well, do you stand by it or not?
MR MCLERNON: Well, I have am getting treated for memory loss and I'm supposed to be there now. And I also are being looked at for dementia, but I can't remember most of this, or any of it, but this is my affidavit and it was prepared by myself and others so that's as you know.
191 Asked again by me about his par 44, he responded:
MR MCLERNON: I have memory loss and if I put that in there at the time, but I can't remember much about anything these days.
192 Those responses asserting claims of a bad memory or memory loss were a surprise. There had been no indication at all to that point that Mr McLernon was labouring under any memory or cognitive disability. I detected no basis to intervene on the basis of Mr McLernon suffering from an impairment.
193 Mr McLernon's crossexamination by counsel for Mr Douglas commenced shortly afterwards (see ts 528 and following).
194 Mr McLernon was shown the iterations of his defence pleadings as filed in the Douglas action: see exhibit 2 Mr McLernon's defence of 18 February 2014 (ts 528 532). There ensued from Mr McLernon a series of responses, all to the effect that he said he now had no memory of those defences. Nor, he now said, could he remember the statement of claim (the current iteration of 25 November 2013 being exhibit 1: ts 529). Towards that penultimate defence pleading document of 18 February 2014 (on its face expressed to be 'filed on behalf of the defendant' and 'prepared by Terence John McLernon' and carrying a signature) he responded to questions about it this way (ts 530 531):
MR MUKHERJI: And that's your signature? ...
MR MCLERNON: My signature changes all the time, but it's certainly looks like one.
MR MUKHERJI: Yes. So all of those indications on that document seem to point to the fact that this is a defence that you filed on 18 February 2014 in response to the statement of claim dated 22 November 2013?
MR MCLERNON: It may well, but I'm saying I can't I don't remember.
MR MUKHERJI: Yes, but given that you've signed it and you've also stated that you prepared it, you would expect that that's what you did?
MR MCLERNON: Well, that's what you're saying I did.
MR MUKHERJI: I'm asking you. Would you ... ?
MR MCLERNON: Well, I I don't accept anything.
MR MUKHERJI: So you would say to the court that you didn't file this document?
MR MCLERNON: I'm saying to the court precisely what I've said. I can't remember this document.
195 Mr McLernon was then asked about the most recent (three paragraph) filed defence document of 22 April 2016 (exhibit 3; see ts 552) (noting that similarly structured amended defence documents had been filed on the same date in Mr Billis' action CIV 2307 of 2012 and in Mr Matich's action CIV 2308 of 2012). Asked about this most recent defence document of April 2016 in the Douglas action, Mr McLernon said that he did not remember this pleading either (ts 533):
MR MUKHERJI: And you don't remember signing that document either?
MR MCLERNON: No, I don't and it's completely different to the last one you showed me.
196 Mr McLernon was taken to the same defence pleading documents after the luncheon adjournment. He was asked a series of further questions (ts 568). Again he asserted memory difficulties (ts 569):
MR MUKHERJI: And if you look at what is exhibit 3 first, which is the amended pleading of defendant, which is dated 22 April?
MR MCLERNON: Yes.
MR MUKHERJI: Your evidence earlier was that you can't recall filing this document; is that right?
MR MCLERNON: Yes.
MR MUKHERJI: And that you do not accept it as your defence in this matter?
MR MCLERNON: Like I said before, you know ...
MR MUKHERJI: Sorry. It's a ...
MR MCLERNON: I can't remember.
MR MUKHERJI: Your evidence earlier was that you don't accept that as your defence. Isn't that right, Mr McLernon?
MR MCLERNON: I don't accept it as my defence?
MR MUKHERJI: Yes?
MR MCLERNON: Well, how could it be a defence when it's it's an annulment, but sorry. What do you mean by I don't accept it as my defence?
MR MUKHERJI: Yes?
MR MCLERNON: This is I've got a one page thing that says this is an annulment and replacement of my previous pleadings.
MR MUKHERJI: Yes, but that's not your document, you say?
MR MCLERNON: Well, you know, I can't remember it at the moment, but ...
MR MUKHERJI: So do you say it is your document? Do you adopt that document? Do you accept that document?
MR MCLERNON: No. No, I don't. No.
197 Under further crossexamination on a different issue, Mr McLernon said that he could not remember having a Facebook page (ts 562):
MR MUKHERJI: You have a Facebook Page?
MR MCLERNON: I'm told so but I can't really ... I can't remember having one in the past, but I can say for absolute certain I haven't got one at the moment or in the last ...
198 Mr McLernon also said he had 'no memory of operating a Twitter account' (ts 564):
MR MUKHERJI: ... So the Twitter account, terencejmclernon@2671949, that's not your Twitter account?
MR MCLERNON: Not to my memory.
199 Mr McLernon did accept he was the author of several books including a book titled The Fifth Estate (ts 540), albeit he also said he could not remember writing the book. Mr McLernon accepted he had written four books including that one just mentioned (ts 543):
MR MCLERNON: ... And I wrote every bit of A Circle is Bent and The Fourth Man in the Room ...
200 He was then asked a series of questions about passages in articles complained of which referred to 'stories by Terence J McLernon', followed by references to the same books under a heading 'About Terence J McLernon'. But Mr McLernon would not accept any connection between himself as admitted author of those books and his alleged authorship of all the defamatory material on the internet complained about by Mr Douglas in the present action (ts 543). At one point Mr McLernon even referred to the potentiality of a socalled cousin, who he said was also known as Terence J McLernon (ts 540).
201 After Mr McLernon had completed his evidence and returned to the bar table, I attempted to clarify with him (given his answers) what his defence to Mr Douglas' action actually was - bearing in mind his evidence just given under oath, asserting his lack of memory in respect of both of exhibits 2 and 3 (the February 2014 and April 2016 defences filed at court, ostensibly bearing his signature, but towards which Mr McLernon had just sworn in crossexamination that he had no memory) (ts 610 611). I now thought it necessary to attempt to clarify with Mr McLernon after he had completed his evidence what the content of his defence actually was (if anything). Mr McLernon's response to me was rambling and incoherent (ts 612). He seemed to me to be greatly offended that counsel for Mr Douglas had dared suggest to him under crossexamination that his expressed memory difficulties were only a 'useful tool that you're seeking to use in order not to give direct answers and truthful answers to the court today?' (ts 600). The response to that question had been 'rubbish' (ts 600). When I afforded Mr McLernon the opportunity, whilst under reexamination, to respond to that challenge, he reiterated that it was 'absolute rubbish'. But nothing emerged other than the indignant denial (ts 602).
202 Mr McLernon had been questioned in crossexamination about some medical materials he had put before the court on his pretrial application seeking that I should recuse myself on the basis of bias. Many pages of Mr McLernon's medical records had been appended to that application, including copies of his medical records associated with his treatment at Waikiki Private Hospital. They show that an assessment was carried out in relation to Mr McLernon's health between 20 May and 10 June 2015 (ts 598 599). One of the assessments rendered at that time, regarding the level of Mr McLernon's comprehension, was by reference to a scale for assessing patient memory. Those documents adduced by Mr McLernon show that on 20 May 2015 Mr McLernon had then been given a score of seven out of seven - which translated to the highest score achievable on the scale for memory and indicating his 'complete independence'. Mr McLernon had achieved a similar score on 10 June 2015.
203 Mr McLernon's responses in relation to all this material when put to him included his response, 'I've never had any tests ... ' (ts 600). He also said, in effect, that the material put to him was 'irrelevant' (ts 600).
204 Mr McLernon's responses collected above whilst under crossexamination were, on my assessment, false, unbelievable and unreliable. At times, as the transcript shows, they bordered on the bizarre.
205 Mr McLernon's expressed memory loss problems extended, very selectively, to the defences filed on his behalf as defendant. My assessment was that Mr McLernon, under crossexamination, chose to attempt a ruse as to the true state of his memory, with a view to his seeking to deflect or blunt questions when confronted, as he always was going to be at trial, by the sheer untenable position that he was adopting in denying an association with this material under the April 2016 defences. In short, I assessed his conduct whilst under crossexamination as an intentional and disgracefully false attempt by a defendant witness to shield himself from adverse questioning by adopting the convenient pretext of asserted memory loss.
206 There is no independent support from the evidence for the base assertions by Mr McLernon that he was suffering a memory loss problem of this magnitude. The trial evidence and my daytoday observations of Mr McLernon acting in person at the trial (and at previous directions hearings where he represented himself in his usual rather gruff and iconoclastic fashion), is not consistent with such a finding about a memory problem.
207 By my assessment, Mr McLernon's crossexamination displayed only an act of attempted deceit, ineptly perpetrated by an intrinsically defiant and unreliable person. Consequently, Mr McLernon will not be accepted by me as a witness of truth.
208 I reject as false or unreliable all Mr McLernon's responses to questions put to him in crossexamination. When he was rightly pressed over this confected memory loss strategy, Mr McLernon became hostile and ostensibly resentful that such an assertion would be put to him by counsel. But I assessed this overblown reaction was just another attempted cloak to obscure what was his disgracefully unacceptable charade as a witness. This was high level misconduct by a witness whilst under oath.
Determinations as to Mr McLernon's authorship and publication of the internet publications complained of
209 I conclude that Mr McLernon's authorship and consequent publication of the matters complained of by Messrs Douglas, Billis and Matich is reliably established on the trial evidence. That conclusion is effectively overwhelming, upon the totality of the evidence adduced across all actions. In summary, the evidence on the issues includes:
210 In the end, Mr McLernon's denial as to his publications of the materials complained of by reference to exhibits 3, 18 and 27, as his last articulated defence position (albeit then said not to be remembered under crossexamination, which I do not believe), is untenable.
211 That factual conclusion removes the only real forensic evidentiary obstacle to a necessary conclusion that each of the plaintiffs has now proven that they have been seriously defamed by Mr McLernon from the internet website publications that are complained of as defamatory.
Postscript to my assessment of Mr McLernon as a witness
212 I add that had I assessed Mr McLernon as genuinely suffering from a memory impairment disability inhibiting his capacity to selfrepresent himself at these trials, I would have given active consideration to adjourning the trial and to seeking to make some kind of O 70 of the Rules of the Supreme Court 1971 (WA) disability order in relation to Mr McLernon, possibly for an appointment of a guardian ad litem or even an appointment of the Public Trustee: see the orders by Pullin J in the matter of Farrell v Allregal Enterprises Pty Ltd [No 2] [2009] WASC 65. However, an interruption to the trial on such consideration was never warranted. I did not assess Mr McLernon at any point to be genuinely suffering from any level of memory impairment rendering him under a disability. On the contrary, I assessed him as engaging in a poorly implemented charade, in an effort to blunt his crossexamination exposures.
213 Mr McLernon's true problem was only that the trial process had exposed him for what he was: a devious, untruthful and unreliable witness.
Circumstances bearing upon an aggravation of the plaintiffs' damages
214 Materials which I have identified as factors in rejecting Mr McLernon's position as regards his denials of publication (on the basis of an assorted lack of memory of his pleaded defences) are factors which contributed to the drawing out of these trials and an inflaming of the underlying civil disputes - particularly by his defence pleas at one time (subsequently struck out) concerning his assertions of legal justification to defamation and of the plaintiffs' bad characters, as were attempted to be raised against all three plaintiffs by Mr McLernon.
215 Mr McLernon did not at any point seek to back down, recant or apologise to any of the plaintiffs for the material complained of, notwithstanding the issuing to him of concerns notices. Quite the opposite in fact Mr McLernon dug in and then threw more mud.
216 My assessment of Mr McLernon since I have been case manager and during these trials is that too often he conducts himself offensively, defiantly and brazenly acting in person against the plaintiffs - seeking to draw out and uphold completely untenable positions. It would appear that over time Mr McLernon has sought to act as some sort of selfappointed internet crusader, proceeding on a basis that he should be fully at liberty to expose the plaintiffs' asserted misdeeds to the world, whilst at the same time injecting a commercial element of selfpromotion for the sale of his books. This is in an overall context of him dispensing liberal amounts of poison over the internet concerning each of these plaintiffs on an ongoing basis - as a person who himself has nothing to lose in a material sense financially and does not care about the consequences of his publications.
217 Through these proceedings, the plaintiffs have sought to hold Mr McLernon to account for the publications that have defamed them. Circumstances of aggravation through the severe and brazen content of these publications and the lack of any remorse about them, followed by the defiant and sustained conduct of an unmeritorious defence, are all considerations which are likely to have exacerbated the hurt and harm done to each plaintiff by the publications complained of, and thereby contribute to circumstances supporting awards of aggravated damages for all plaintiffs. Likewise, they are considerations ultimately indicating a basis for an award of the indemnity costs for these actions against Mr McLernon.
218 Monetary damages, in present circumstances, may prove an inadequate remedy against Mr McLernon given his previously twice bankrupted status and his ostensible lack of financial wherewithal to actually satisfy monetary awards of damages made against him. Nevertheless, the magnitude of an award of damages in terms of quantum goes beyond the end issue of ultimate recovery of the damages sum by a judgment creditor. An award of damages in defamation seeks to 'nail the lie', in a quantitative sense, to reflect a public reputational vindication arising from the plaintiffs' successful outcomes at a trial. Given that, the unlikely prospect of an ultimate recovery of the award in a monetary sense, should not detract from the quantum of the award.
219 From a practical perspective, the more effective relief now sought which, as I will explain, is warranted - is by way of the permanent injunctions sought against Mr McLernon. I deal with that relief in a discrete portion of these reasons.
220 I divert from that task to assess the position of Mr Fitzgerald.
Liability of Laurence Fitzgerald for publication Fate of the corporate co-defendants
221 The three actions involving Mr Fitzgerald - CIV 2306, 2307 and 2308 of 2012 were commenced by writs of summons, filed for each matter on 1 August 2012. Each writ named two corporate entities as codefendants, namely: (a) Purpose Marketing Group Pty Ltd as the first named defendant in CIV 2306 of 2012 and as the second named defendant in CIV 2307 of 2012 and CIV 2308 of 2012 and (b) Redback Studios Australia Pty Ltd as the second named defendant in CIV 2306 of 2012 and as the third named defendant in CIV 2307 and CIV 2308 of 2012. For reasons which are not clear to me, the statement of claim filed for CIV 2307 of 2012 on 7 August 2012, identified the second defendant in that matter as 'Purpose Hosting'. That was followed by the filing of an amended writ of summons for CIV 2307 of 2012 on 9 August 2012, which named 'Purpose Hosting' as the second defendant.
222 In any event, at a status conference for the four actions on 20 November 2012, Master Sanderson made orders that Purpose Marketing Group Pty Ltd be removed as a party in CIV 2306 of 2012 and in CIV 2308 of 2012 and that Purpose Hosting be removed as a party in CIV 2307 of 2012. Those orders were apparently issued at the behest of the plaintiffs, who sought to discontinue their respective actions against the Purpose entities on the basis that Purpose Marketing Group Pty Ltd had been deregistered - see Douglas v Purpose Marketing Group Pty Ltd [3].
223 Subsequently, at a special appointment on 18 September 2015, I made orders that the plaintiffs' claims against the defendant party Redback Studios Australia Pty Ltd be dismissed in each of the three actions. That was on the basis that Redback Studios Australia Pty Ltd had by then also been deregistered, on 11 May 2014 (see attachment 'OGD5' to exhibit 9, affidavit of Mr Douglas, sworn 3 June 2016).
Allegations against Redback Studios Australia Pty Ltd
224 Final versions of the statements of claim in CIV 2306, 2307 and 2308 of 2012, each filed on 25 November 2013 (those documents being exhibits 10, 14, and 23, respectively), all alleged that Redback Studios Australia Pty Ltd had been:
(a) a company incorporated at law and capable of being sued;
(b) web host, web designer, and/or operator of the website titled 'The McLernon File', accessible from www.mclernonfile.com, www.blackdogsbarking.com and www.herdontheterrace.com;
(c) registrant of the trading name Purpose Hosting;
(d) operator of web design and web hosting business variously called Purpose, Purpose Hosting, the Purpose Group and/or Redback Studios ('the Business'); and
(e) registrant of the domain name www.redbackstudios.com.au which is linked to www.purpose.com.au.
225 I referred to the problematic nature of the aggregated or rolled-up term 'the Business' in my reasons in Douglas v McLernon [No 3] at [15] [18] and repeat those observations here for context, although of course the position of Mr Fitzgerald is somewhat different from his sister and calls for a different, stand-alone evaluation of his alleged liability to the plaintiffs in the three actions which concern him.
226 The statements of claim in CIV 2307 of 2012 and CIV 2308 of 2012 use the phrase 'is and was at all relevant times' in relation to the five allegations made against Redback Studios Australia Pty Ltd. That phrase provides context for the responses to those allegations by Mr Fitzgerald under his pleaded defences in CIV 2306, 2307 and 2308 of 2012, each filed on either 1 or 2 July 2014 (and being exhibits 11, 16 and 26, respectively).
227 As regards allegations (a) (c) put against Redback Studios Australia Pty Ltd, Mr Fitzgerald responds in each of his three defences to deny those allegations on the basis that 'the company is deregistered'. As regards allegation (d), Mr Fitzgerald denies Redback had any association with any 'Purpose companies/businesses', but accepts Redback was its 'own design business'. Finally, as regards allegation (e), Mr Fitzgerald denies Redback had any 'links to Purpose', but accepts that Redback was the registrant of its own domain name 'redbackstudios.com.au'.
228 The statements of claim in CIV 2306, 2307 and 2308 of 2012 each allege that Mr Fitzgerald is and was at all relevant times:
(a) sole director and shareholder of Redback and a person able to control or influence decisions associated with 'the Business'; and
(b) registrant contact and technical contact for the domain name www.purposehosting.com.au which is associated with 'the Business'.
The statements of claim in CIV 2307 of 2012 and CIV 2308 of 2012 made the additional allegation that Mr Fitzgerald was:
(c) the registered owner of the business name 'Purpose Hosting'.
229 By his three defences, Mr Fitzgerald accepts those three allegations, though he asserts in his defence in CIV 2308 of 2012 that Redback was deregistered and that the registration of Purpose Hosting was cancelled in July 2012.
230 Ultimately, the relevant facts that emerge from those admissions, given the problematic nature of any admission in relation to the rolled-up term 'the Business', is an acceptance by Mr Fitzgerald that he was the sole director and shareholder of Redback, and that Redback had its own 'design' business and was also the registrant of its own domain name redbackstudios.com.au.
Allegations against Mr Fitzgerald as to liability for publication - upload, design or modification of material on websites
231 The statements of claim in CIV 2306, 2307 and 2308 of 2012 allege, in essence, that on various dates - said to be from at least 29 September 2011 until 18 September 2012 in CIV 2306 of 2012; from at least 13 January 2012 until 18 September 2012 in CIV 2307 of 2012; and from at least 4 August 2011 until 18 September 2012 in CIV 2308 of 2012 that Redback, Laurence Fitzgerald and Toni Fitzgerald uploaded, designed and/or modified the words or images on the McLernon Website, so that the various publications complained of appeared on the McLernon Website on 18 September 2012.
232 Concerning that allegation as to publication, Mr Fitzgerald responds, in his defences in each of the three actions, to deny that Ms Fitzgerald had any association with Redback, or with Mr McLernon or his website, and to make a further denial on the basis that he has no recollection/knowledge of the publication(s) on the 'unspecified dates'.
Alternative allegations against Mr Fitzgerald as to liability for publication
233 The plaintiffs advance a further or alternative allegation as regards Mr Fitzgerald's liability for publication, on the basis that from a specific date (the date being 13 October 2011 in CIV 2306 of 2012, 13 January 2012 in CIV 2307 of 2012 and 3 August 2012 in CIV 2308 of 2012) until the McLernon File Website was 'shut down' (on or around 18 September 2012), the following applied:
(a) each of the publications was available for viewing and downloading from servers operated or facilitated or controlled by, or accessible through, Redback Studios, Toni Fitzgerald or Laurence Fitzgerald; and/or
(b) Redback Studios, Toni Fitzgerald or Laurence Fitzgerald consented, approved or acquiesced to the publication of each of the publications.
234 The plaintiffs contend that the defendants' alleged consent, approval and acquiescence can be 'inferred from':
(i) the matters pleaded in respect of each of the five allegations pleaded against Redback Studios Australia Pty Ltd, the allegations pleaded against Ms Fitzgerald, the (two or three) allegations pleaded against Mr Fitzgerald, and the first allegation as regards publication; and
(ii) the defendants' knowledge of various concerns notices sent in 2011 or 2012 and/or the writ which was filed and served in each matter.
235 As regards the allegation in (a) above (relating to material on servers), Mr Fitzgerald directly responds under his defences in each of the three actions to deny this further or alternative allegation and to assert that Redback was 'simply a reseller of hosting from the USA. Whether any items on that site/server were viewed I have no knowledge of'. That traverse puts a positive assertion (ie it pleads as a material fact that Redback was a reseller of hosting from the USA) and it would have been open for Mr Fitzgerald to have adduced evidence at trial about it. However, Mr Fitzgerald ultimately elected not to give evidence at the trials.
236 As regards the allegation in (b) above (relating to his consent, approval and acquiescence), Mr Fitzgerald denies that allegation and adds that he had no recollection/knowledge of the publications and that neither Redback nor he had ever 'approved' anything from Mr McLernon. Mr Fitzgerald also pleads his denial of ever receiving any concerns notices and indicates that he only became aware of the 'issue' in each action upon receiving the writs for each. Those writs were said to have been served on 14 August 2012.
Issuing and receipt of concerns notices: evidence summary
237 As regards concerns notices and their issuing to the Fitzgeralds and to corporate entities said to have been related to them, it is pleaded in the plaintiffs' respective statements of claim, that concerns notices were sent to nonMcLernon defendant parties on the following dates (see exhibits 10, 14 and 23):
238 The writs in the three actions (CIV 2306, 2307 and 2308) are said to have been served on 14 August 2012.
239 Several points may be made about the pleadings and the state of the evidence relating to the issuing of concerns notices.
240 First, the pleadings do not allege that any concern notices were issued personally to either Mr or Ms Fitzgerald, or to Redback Studios, prior to 13 June 2012.
241 Second, neither Mr Billis nor Mr Matich gave any relevant, admissible evidence, whether by way of affidavit (exhibits 19 and 28, respectively) or viva voce at trial, as to their issuing (in their respective actions) of concerns notices to the nonMcLernon defendant parties.
242 Third, there is no evidence as to the issuing of any concerns notice in relation to matters complained of by Mr Billis, whether in any affidavit evidence of Mr Douglas or of Mr Billis, or in their viva voce evidence at the trials, except possibly for one expansive statement made by Mr Douglas in exhibit 9 (his affidavit sworn 3 June 2016).
243 Fourth, Mr Matich avers, in his statement of claim for CIV 2308 of 2012, to issuing concerns notices to only two defendant parties - to Mr McLernon and to www.purposehosting.com/Purpose Hosting. Copies of the concerns notices dated 20 January 2012 and addressed to Mr McLernon and to Purpose Hosting, and presenting as documents prepared by Stephens Lawyers on behalf of Mr Matich, appear in exhibit 9 at TB 906 913 and TB 914 921, respectively. The nonplea as to an issuing of concerns notices to any other party is significant, to the extent that Mr Matich seeks to rely, as a further or alternative allegation of liability for publication against Mr Fitzgerald, upon an inference that Mr Fitzgerald had knowledge as to matters complained of by Mr Matich, by virtue of a receipt of a relevant concerns notice.
244 Finally, the affidavit evidence of Mr Douglas presents some difficulties on this issue. In his affidavit sworn 29 February 2016 (exhibit 4), Mr Douglas says at par 67 that: 'In October 2011 I instructed my solicitors at the time to commence legal action by sending concerns notices to the defendants. Now produced and shown to me and marked "OGDI" [sic, OGDG] are copies of these concerns notices dated 12 October 2012'. The annexure 'OGDG' of that document (see TB 118 150) contains two letters dated 12 October 2011 which present as concerns notices prepared by Stephens Lawyers on behalf of Mr Douglas, being addressed to Mr McLernon and the other to 'Purposehosting.com'.
245 At par 4 in his reply affidavit sworn 3 June 2016 (exhibit 9), Mr Douglas states:
In paragraph 67 of the First Affidavit [his affidavit of 29 February 2016] I referred to concern notices sent to Mr McLernon and Mr and Ms Fitzgerald in October 2011. After this I caused further concerns notices to be sent to Mr McLernon, Mr Fitzgerald, Ms Fitzgerald, Purpose Hosting, Redback Studios Australia Pty Ltd, and Purpose Marketing Group Pty Ltd on 20 January 2012 and on 13 June 2012. No response was received in relation to the concerns notices. Now produced and shown to me and marked OGD-1 are copies of the concerns notices dated 20 January 2012 and 13 June 2012.
246 It is not entirely clear how to interpret that statement, in terms of a potential application to an issue of concerns notices in relation to the matters complained of by Mr Billis and Mr Matich, in light of the documents that are seen attached (or not attached, as the case might be) at annexure 'OGD1' (seen at TB 905 1020). Two letters in annexure OGD1 bear the date 20 January 2012. They present as concerns notices addressed to Purpose Hosting and to Mr McLernon, prepared by Stephens Lawyers on behalf of Mr Paul Matich and identifying defamatory material complained of relating to Mr Matich, only. There are no concerns notices found in annexure OGD1 that would present as being prepared on behalf of Mr Billis. The four letters in annexure OGD1 that bear the date 13 June 2012, present as concerns notices addressed to the director of Redback Studios Australia Pty Ltd (TB 922 980), the director of Purpose Marketing Group Pty Ltd (TB 981 994), Mr Laurence Fitzgerald (TB 995 1007) and to Ms Fitzgerald (TB 1008 1020), prepared by Get Lawyers Pty Ltd and identifying defamatory material complained of concerning Mr Douglas only.
247 During crossexamination of Mr Douglas on day two of the trial, both Ms and Mr Fitzgerald each directed only one query to him. This question was to the effect of whether Mr Douglas had any 'proof', such as an affidavit of service, that a concerns notice was ever sent to either of them (see ts 408 411). Mr Douglas' evidence responding to those questions mentioned only letters said to be sent to each of the Fitzgeralds on 13 June 2012. Mr Douglas' evidence was that he had personally addressed and then posted (at the Post Office) each of the two letters on that date. No mention was made of Mr Douglas preparing or despatching any other concerns notices.
248 At par 69 in the plaintiffs' written closing submissions, it is said that 'on or about 13 June 2012 Redback Studios and Laurence Fitzgerald were provided with concerns notices in relation to the operation of the McLernon Websites and the complaints in relation to material published thereon which is substantially the same material complained about in these proceedings'. Then, it is submitted at par 73 of those submissions, that 'the Court should be satisfied at least from the date on which the concerns notice [sic, issued], being 13 June 2012, that Mr Fitzgerald was involved in publication'.
249 That submission was augmented in the oral submissions by plaintiffs' counsel by the further submission that: 'In the absence of evidence rebutting the services provided by Redback Studios in circumstances where your Honour has a clear indication that Redback Studios is involved with the website - with the websites in some way - we would say certainly if your Honour is not minded to accept that Mr Fitzgerald was as intimately involved as we say he was, he was certainly aware of the website, him being in charge of Redback Studios and then by the time he received the concerns notice he is certainly on notice of the defamatory material and in control' (ts 709).
250 In the end, as I will explain, little may turn on the state of the evidence about the issuing and receipt of concerns notices, although given the resultant state of the all the trial evidence as I have recounted above concerning Mr Billis' and Mr Matich's actions, I would be troubled, in such circumstances, by accepting allegations, in either CIV 2307 of 2012 or CIV 2308 of 2012, which press for liability for publication against Mr Fitzgerald on a basis that he could be said to have knowledge of the relevant matter complained of in those two actions by virtue of an issuing of a relevant concerns notice to him in June 2012.
251 As a general principle any person who knowingly participates in the communication of defamatory material, in whatever degree, is a publisher and is therefore exposed to potential liability under the tort of defamation. Here, the plaintiffs must prove, on the balance of probabilities, that Mr Fitzgerald took part in, or had some connection to, the publication of the defamatory material complained of. The plaintiffs also allege, further or alternatively, that liability could be established on the basis that Mr Fitzgerald approved, acquiesced or consented to the publication of the materials. Since there is no direct evidence in the trials that Mr Fitzgerald ever took part in (or approved/acquiesced/consented to) the communication of any defamatory material, proof of Mr Fitzgerald's connection, if any, must be established by inference - see Kenyon v Sabatino [2013] WASC 76.
252 The essence of the plaintiffs' case advancing Mr Fitzgerald's liability for publication appears to be their contention that Mr Fitzgerald supplied ongoing technical assistance to Mr McLernon, as regards the uploading and manifestation of defamatory material appearing on the McLernon File Website (noting the aggregate nature of that term). At trial, counsel for the plaintiffs submitted:
(T)he plaintiffs' case against the Fitzgeralds is not comparable to the position of an internet search engine such as Google. The plaintiffs' case against the Fitzgeralds is that they were far more intimately involved with the presentation and form of the material that is the subject of this complaint than could be said of a search engine. And though they weren't involved in the creating of content, our view would be, as the web designers, that they assisted in the presentation of the content (ts 382).
253 It also alleged that Mr Fitzgerald, further or alternatively, possessed the capacity to somehow control the availability of the McLernon Website (or of materials found on there) to the internet, such that the court might find, at least from the time that Mr Fitzgerald was provided with concerns notice (or notices) on 13 June 2012, that he could be said to have been participating in a publication of the matters complained of (plaintiffs' written closing submissions, par 73).
254 No material was put before me at the trials as to a relevant difference, if any, as between the services of 'web design' and 'web hosting' and the particular services that might be rendered to a client in terms of each. The terms are not defined in the Macquarie Dictionary. However, the online Cambridge Dictionary, operated by the Cambridge University Press, defines 'web design' as the 'art or process of designing websites' and 'web hosting' as the 'service of keeping and managing websites on a server'.
255 Little may turn on the distinction, if any, between the two activities, as it is implicit in the plaintiffs' case that Mr Fitzgerald provided 'web design' services to Mr McLernon that were ongoing (ie, in contrast to a person's mere construction of a website that a recipient client might, from then, operate independently) and which involved Mr Fitzgerald's direct input or assistance to place defamatory material on to a website and thus to be accessed from there by third parties over the internet (plaintiffs' written closing submissions, par 59).
256 As regards the creation of a website, the uploading of materials to that website, and the infrastructure needed to maintain that website on the internet over time, I would respectfully adopt and repeat the observations made by Kirby J in Dow Jones [81] [82]:
The World Wide Web: The Web is a forum consisting of millions of individual 'sites'. Each site contains information provided by, or to, the creator of that site. When a publisher of information and opinion wishes to make its content available on the Web, it commonly does so by creating a 'website' and 'posting' information to that site. Such a website is a collection of electronic messages maintained on a type of computer known as a 'web server'. Typically, this is controlled either by the publisher concerned or by a third party contracted by the publisher to provide 'web hosting' services.
An Internet user may access the information maintained on a website provided the user knows, or can ascertain, the Internet address of the relevant website. By entering that address into the user's web browser, the user will be directed to that website. Once the user locates the website in this way, the user may be required to take additional steps to access information stored on the web server associated with the website. Thus, to post an article to a website, a publisher must prepare a version in digital (computer readable) format. Such an article becomes part of the digital collection of data known as a web page. Such a web page is transmitted to a web server. It, along with the other web pages, comprises the website.
257 As to the evidence supporting the alleged participation of Mr Fitzgerald in the defamatory publications that are complained of, the plaintiffs submitted that Mr Fitzgerald's participation could be inferred from:
(1) The identification of Redback Studios as the 'web designers' on web pages of the McLernon File Website. For example, the expression 'Our Web Designers are www.redbackstudios.com.au' appears at the base of the web page in the first, third, and fourth publications complained of in CIV 2306 of 2012.
(2) The status of Mr Fitzgerald as the sole director and shareholder of Redback Studios at all relevant times and the absence of any evidence that Redback Studios was operated by, or employed anyone other than, Laurence Fitzgerald.
(3) The continued operation of a business under the name of 'Redback Studios' (see exhibit 9, TB 1185 1191), with the website for that business containing:
(a) a testimonials page for the business indicating a customer's satisfaction with the services provided by Laurence Fitzgerald (with the testamentary comment being said to have been expressed in 2012); and
(b) information as to services said to be provided by the business, which include web design, content writing, online photo galleries, web hosting, data entry, and emarketing strategy and consulting.
(4) Statements by Mr McLernon under cross-examination at the trials indicating that Mr McLernon:
(a) lacked the ability to create, upload content to, or maintain the McLernon File Website (see ts 536 537 and 546 552); and
(b) accepted that he had had a relationship of some kind with Mr Laurence Fitzgerald five or more years ago (see ts 550 551).
258 Whilst, for coherence, I will assess each area of such evidence as is relied upon in turn, I remain mindful of my need at the end of the process to view the evidence as a whole, particularly as regards inferences the plaintiffs claim can be drawn.
(1) Testimonials Page: A placement, on certain web pages of the McLernon File Website, of the statement identifying Redback Studios as the 'web designers' does not provide me with any clear insights towards the nature of, or timeframe for, the specific 'web design' services that were provided in relation to those web pages. Placement of such a 'branding' statement does support, at least, an inference of an underlying contractual relationship at some point and, further, that Redback Studios initially created certain web pages for or on the McLernon File Website. However, this evidence cannot by itself support, in my view, any inference as to an ongoing web site maintenance or 'web hosting' arrangement by Redback Studios or Mr Fitzgerald that continued after the initial web site construction.
(2) Corporate Structure of Redback: If allied with other evidence, the status of Redback Studios Australia Pty Ltd as a small company might, in tandem with that other evidence, support an inference that any services provided by that company were either performed by Mr Fitzgerald or were carried out with his direct knowledge and oversight. But two difficulties arise here. The first problem is that the mere fact that a person was a director of a defendant company cannot, by itself, support a conclusion as to the director's personal liability for a publication - see my reasons at [36] and [43] [46] in Douglas v McLernon [No 3]. The second issue is that even if the inference was drawn that any services provided by Redback Studios were either performed by Mr Fitzgerald or were carried out with his direct knowledge and oversight, that inference alone cannot, without more, provide insight towards the precise nature of the services that Redback Studios provided, or the timeframe in which those services were provided.
(3) Current Operation of 'Redback Studios': Likewise, the fact that Mr Fitzgerald might now (ie in 2016) still operate a business offering web design, web hosting and other internet services allows for no clear inference as to the particular services that he or a corporate entity associated with him - might in the past have provided to Mr McLernon, or to the timeframe in which those services might have been provided. The testimonial, which is dated to 2012 (and noting that slightly different versions of the testimonial appear in exhibit 9, at TB 1185 and TB 1191), does suggest that a 2012 operating business called 'Redback Studios' could have provided the web design services that the plaintiffs allege were offered by Mr Fitzgerald to Mr McLernon. However, there is nothing in the testimonial, or in the material appearing elsewhere on the other web pages provided as part of exhibit 9 for the 2016 incarnation of a 'Redback Studios' business, that compels me towards any inference other than a possible conclusion that Redback Studios is likely, particularly in light of the other evidence adduced, to have built at least some webpages for the McLernon File Website.
(4) Evidence of Mr McLernon: Finally, there is little comfort, if any, that might be drawn from statements by Mr McLernon under crossexamination. His trial testimony, as I have related, was obstructive and, at times, outwardly mendacious. As I related earlier his evidence was generally obtuse and unhelpful. In the light of the overall unreliability of Mr McLernon's evidence, it is very unsafe to reliably infer anything from his apparent acceptance that he had some kind of relationship with Mr Fitzgerald approximately five years ago. Even if I did accept Mr McLernon's assertions that he was essentially computer illiterate in 2011 and 2012, the only inference that can be drawn from that conclusion is that someone may have assisted Mr McLernon to place material on his McLernon File Website. But there is insufficient evidence overall persuading me, on the balance of probabilities, that Mr Laurence Fitzgerald was that person.
259 The additional, or alternative, way on which the plaintiffs seek to demonstrate Mr Fitzgerald's liability for the McLernon defamatory publications is on the basis that Mr Fitzgerald in some way held the capacity to control (or to gain control of) whether a publication occurred (eg that Mr Fitzgerald allegedly controlled the server through which the web pages were made available on the internet) and, at least after the concerns notices were served upon him, had then also acquired knowledge of the existence of the defamatory publications complained of.
260 As regards the question of consent to publication (as opposed to liability) that is alleged here, I respectfully agree with and adopt what was said by Beach J in Trkulja v Google (No 5) [2012] VSC 533 [31]:
The question is whether, after relevant notice, the failure of an entity with the power to stop publication and which fails to stop publication after a reasonable time, is capable of leading to an inference that that entity consents to the publication. Such an inference is clearly capable of being drawn in the right circumstances ... Further, if that inference is drawn then the trier of fact is entitled (but not bound) to conclude that the relevant entity is a publisher.
261 Beach J cited Webb v Bloch and Urbanchich v Drummoyne Municipal Council (Unreported, NSWSC, 22 December 1988) (Hunt J) as authority for the latter proposition. In this context, I also note the observations by Blue J in Duffy v Google Inc [2015] SASC 170 [184].
262 I would also seek to briefly summarise what I said in Douglas v McLernon [No 3] [13], to the effect that:
(1) There is implicit in the construction of s 14(1) of the Defamation Act, a provision of a reasonable period of time for a person in receipt of the concerns notice to respond to the content of that notice;
(2) It may be that, after expiry of a reasonable period of time for the person who receives a concerns notice to respond, an appropriately structured concerns notice could then function, in some circumstances, as some evidence that the recipient has been aware of the existence of the alleged publications from a particular date;
(3) However, an awareness of the alleged publication(s) would then need to be coupled with some further evidence that the recipient person also possessed the capacity to 'stop' an ongoing publication in the relevant time period, in order for it to be possible to draw any adverse inference as towards possible participation in or acquiescence in a publication by another person.
263 A key question, then, as regards Mr Fitzgerald's alleged involvement in publication, is whether there is any evidence to support an inference that Mr Fitzgerald had some ability to control the publications. Here, I am not persuaded, on the available evidence, that Mr Fitzgerald held that ability. There needs to be something more tangible identified as to an involvement of Redback or Mr Fitzgerald in the operation of the McLernon File Website in the relevant time period.
264 In summary, I am not in the end persuaded that the available evidence supports a conclusion that Mr Fitzgerald participated in publication(s) of the defamatory material complained of at any time prior to the communication of those notices to Mr Fitzgerald in June 2012. To the extent that the plaintiffs seek to allege his liability for the publications on a basis of a failure of Mr Fitzgerald to appropriately respond after his receipt of a concerns notice, I am not persuaded that it has been established on the evidence that Mr Fitzgerald held a requisite degree of control over web pages on the McLernon Files Website at that time.
265 Finally, I would note that even if Mr Fitzgerald's decision not to give evidence could somehow be said to represent an unexplained failure of a party to call a relevant witness, the present is not a situation in which any Jones v Dunkel (1959) 101 CLR 298 inference would have availed the plaintiffs. As Gleeson CJ and McHugh J observed in Schellenberg v Tunnel Holdings Pty Ltd [2000] HCA 18; 200 CLR 121 [53], a Jones v Dunkel inference can only make certain evidence more probable. It cannot be used to make up a deficiency of evidence, with their Honours citing Menzies J in Jones v Dunkel (312) for that latter proposition. Here, it was the case that Mr Fitzgerald, acting in person, put forward at the trials no positive defence as to his liability (or as to his damages exposure) and the plaintiffs were thus put to a formal proof of their respective cases. His decision not to give evidence there was a tactical, forensic election, rather than an unexpected outcome.
266 In the end, the defamatory involvement actions brought against Mr Laurence Fitzgerald by each of the plaintiffs are not established to my satisfaction and must be dismissed.
267 Each of the plaintiffs has established that they have been defamed by Mr McLernon - that is, that Mr McLernon published the matters complained of and that the publications conveyed most of the defamatory imputations pleaded by the plaintiffs, albeit with some exceptions, as I have explained earlier in these reasons.
268 The plaintiffs' respective statements of claim in the actions against Mr McLernon, filed 25 November 2013, contain identical prayers for relief. Messrs Douglas, Billis and Matich each seek:
269 I am minded to award to the plaintiffs each remedy, albeit with adjustments to the terms of the permanent injunction that is sought against Mr McLernon.
270 I will address, first, the issue of the appropriate quantum of damages to be awarded to each plaintiff. This is a several exercise. But the underlying legal principles are common. Hence, it is convenient to deal with the several plaintiffs' damages awards, in aggregate in the reasons as follows.
271 As explained by the High Court in Carson v John Fairfax and Sons Ltd [1993] HCA 31; (1993) 178 CLR 44, the award of damages for defamation has multiple purposes:
Specific economic loss and exemplary or punitive damages aside, there are three purposes to be served by damages awarded for defamation. The three purposes no doubt overlap considerably in reality and ensure that 'the amount of a verdict is the product of a mixture of inextricable considerations'. The three purposes are consolation for the personal distress and hurt caused to the appellant by the publication, reparation for the harm done to the appellant's personal and (if relevant) business reputation and vindication of the appellant's reputation. The first two purposes are frequently considered together and constitute consolation for the wrong done to the appellant. Vindication looks to the attitude of others to the appellant: the sum awarded must be at least the minimum necessary to signal to the public the vindication of the appellant's reputation. 'The gravity of the libel, the social standing of the parties and the availability of alternative remedies' are all relevant to assessing the quantum of damages necessary to vindicate the appellant (60 61). (citations omitted)
272 In defamation cases there is rarely evidence available of actual damage caused to the plaintiff's reputation by the publication. Such damage should be assumed: Ratcliffe v Evans [1892] 2 QB 524, 528. In Ley v Hamilton (1935) 153 LT 384, Lord Atkin had explained:
It is precisely because the 'real' damage cannot be ascertained and established that the damages are at large. It is impossible to track the scandal, to know what quarters the poison may reach: it is impossible to weigh at all closely the compensation which will recompense a man or a woman for the insult offered or the pain of a false accusation (386).
273 In Broome v Cassell & Co Ltd [1972] UKHL 3; [1972] AC 1027, Lord Diplock rendered the following observations towards the rationale underlying an award of damages in a defamation action:
The harm caused to the plaintiff by the [defamatory] publication ... often lies more in his own feelings, what he thinks other people are thinking of him, than in any actual change made manifest in their attitude towards him. A solatium for injured feelings, however innocent the publication by the defendant may have been, forms a large element in the damages ... (1125).
274 Evidence of actual harm suffered is unnecessary to justify an award of damages as compensation for defamation. However, affirmative evidence of damage sustained, if it is available, is relevant and bears upon the assessment of the quantum of damages to be awarded.
275 The present evaluation of damages is governed in an overarching sense by s 34 of the Defamation Act. It relevantly provides:
In determining the amount of damages to be awarded in any defamation proceedings, the court is to ensure that there is an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded.
276 In other words, the assessment of damages is a question of proportionality, focussing on the harm ultimately sustained by the plaintiffs. Here I am satisfied, as I explained earlier, that each plaintiff has been reputationally harmed by the internet publications complained of and in a substantial way, causing them personal distress and hurt as a result.
277 As I discussed at the outset, a single cause of action arises in respect of each defamatory publication that is proven, notwithstanding that several imputations may arise out of each publication: Defamation Act, s 8.
278 In Mr Douglas' action, 20 different imputations have been proved within causes of action arising out of these publications. In Mr Billis' action, 19 proven imputations have been found across his eight causes of action. And in Mr Matich's action, seven proven imputations arise from his three causes of action.
279 I note further that s 39 of the Defamation Act provides:
If the court in defamation proceedings finds for the plaintiff as to more than one cause of action, the judicial officer may assess damages in a single sum.
280 In the case of each separate plaintiff, I do consider it appropriate here, as s 39 allows me, to assess damages for all causes of action in defamation as a single sum.
281 A maximum damages award has been capped by the statute: Defamation Act, s 35. The cap is adjusted on 1 July each year: s 35(3). The relevant cap amount here is that applicable at the time damages are awarded: s 35(1). On 1 July 2016 the cap amount was reset at $381,000 (Western Australia, Government Gazette, No 88 (31 May 2016) 1633). That figure, as an upper limit, bears upon a calculation of damages for the claims of each plaintiff in the proceedings, even though each plaintiff has in the end been successful in respect of several defamatory publications: see Davis v Nationwide News Pty Ltd [2008] NSWSC 693 [8] [10] (McClellan CJ at CL); Buckley v The Herald & Weekly Times Pty Ltd [2009] VSCA 118; (2009) 24 VR 129 [4] (Nettle JA, Ashely & Weinberg JJA agreeing); Dank v Whittaker (No 4) [2014] NSWSC 732 [34] [35] (McCallum J).
282 Closing written submissions from the plaintiffs in all four actions were delivered collectively, following the close of evidence in the last action that was heard in the sequence of successive trials (ie CIV 2308 of 2012). Those closing submissions were primarily in a written submissions document handed up on the final day of the trial entitled, 'Plaintiffs' Outline of Closing Submissions' (plaintiffs' written closing submissions) (ts 686 687). Those written submissions augmented the verbal closing submissions of counsel for the plaintiffs, and identified a number of matters relevant to an assessment of damages in favour of each plaintiff.
283 The collective submissions summarised the evidence of the alleged harm suffered by Messrs Douglas, Billis and Matich. They addressed each of the 'three purposes' underlying the awarding of general damages in defamation actions as described in Carson v Fairfax - namely, consolation for personal distress; reparation for harm done to personal and business reputation; and vindication.
284 In the plaintiffs' written closing submissions, this was said in respect of Mr Douglas at par 135(a):
286 In the plaintiffs' written closing submissions, it was said in respect of Mr Billis at par 135(b):
288 In the oral submissions of his counsel, it was said on behalf of Mr Matich (see ts 688 689):
[T]here's evidence that he was well known in the mining community after a career commencing in 1995. [See exhibit 28, pars 2 4].
...
There's further evidence that Mr Matich was concerned that the material would cause his business associates to think less of him and that this would damage his prospects of future employment in the industry. [See exhibit 28, par 20]. Mr Matich also gives evidence of what he called the irreparable damage to his reputation and his business standing. [See exhibit 28, par 51].
The various elements of that damage are that he was forced to step down as a director of Grand Resources due to Mr McLernon's prior publications. He was forced to resign as a director of Paynes Find Gold as a direct result of the publications, which attacked his credibility as a director. He has had significant difficulty obtaining employment in the mining industry as a result of the websites. When Mr Matich has been able to find employment, the damage to his reputation has dictated the type of employment. Specifically, he hasn't been able to continue his career as a director. He's unable to be a public face for any company in circumstances where these publications have been made available. And Mr Matich also gives evidence in relation to having suffered significant financial loss as a result of these, including lost employment opportunities.
289 I accept those submissions convey the position of Mr Matich.
290 At par 135(d) of the plaintiffs' written closing submissions, it was put generally in respect of all plaintiffs that:
291 Those submissions must also be accepted on the evidence adduced in these trials.
292 During the plaintiffs' closing submissions, I raised a question as to the scale of exposure of the three websites to members of the Western Australian community, for the purposes of an assessment of damages (ts 689). Counsel for the plaintiffs submitted that in the absence of direct evidence of scale, I should draw an inference from the evidence of Mr Magee (as one member of the general community from Western Australia who was exposed to the material). I have accepted Mr Magee's trial evidence.
293 The plaintiffs further submitted by counsel that, independent of Mr Magee's evidence, there was a 'substratum of facts' (ts 690) to indicate that the publications complained of were available to the general public and had been viewed by others: plaintiffs' written closing submissions, par 33. I accept that submission.
294 It was further submitted that, by virtue of the fact that the websites had existed since 2004, there was a potential for 'return visitors', thereby broadening distribution (ts 691). I do not think that I am able to draw such a conclusion without more evidence. There would surely be a vast number of websites that have probably existed for similar periods of time and which, I would expect, have only ever been visited by their creators. The duration of a website's existence without more, is not an accurate metric for assessing the distribution of its content.
295 I nevertheless do accept, based on the evidence of Mr Magee and the plaintiffs' affidavits setting out their personal positions as regards the defamatory materials, that here there was enough exposure to the wider community to bring out high levels of detriment to each of the plaintiffs' reputations and then to cause them to suffer understandable personal distress as a result.
296 The plaintiffs submitted that their actions have been pursued for a 'primary purpose' of seeking their vindication (the third purpose explained in Carson v Fairfax): see plaintiffs' written closing submissions, par 139. I also accept that to be the case. Consequently, I accept that there arises here the need for an award of damages at a high level to send out a clear message to the wider community that these publications have been assessed as baseless and unjustified, and in so doing, adopting the alternative phrase, to 'nail the lie[s]': see, eg, French v Herald and Weekly Times Pty Ltd (No 2) [2010] VSC 155; (2010) 27 VR 171 [87].
297 A focus on vindication also means that mathematical precision towards a distribution across each of the offending publications is less important here than might otherwise be the case: see French v Herald and Weekly Times (No 2) [87].
298 The plaintiffs submit, and I would again accept, that in all the circumstances, in assessing an appropriate quantum of damages, I should not pay undue regard to the uncertain financial position of Mr McLernon (in terms of him ever satisfying the payment of substantial awards of damages ordered against him): plaintiffs' written closing submissions, par 140. The plaintiffs have proceeded to their trials on what looks to be their understandings that they are unlikely in the end to recover much in the way of damages from Mr McLernon (or even their legal costs): par 139.
299 The plaintiffs also submit and I accept, that their damages awards should be in the upper range of the amount for each publication: plaintiffs' written closing submissions, par 140. Each plaintiff also seeks an award of 3% interest from the date of publication (see par 157) and that on my assessment is also proper in present circumstances.
300 Since the introduction of the Defamation Act, a plaintiff cannot be awarded exemplary or punitive damages for defamation: s 37. However, aggravated damages remain open to be pursued: s 35(2). Aggravated damages in concept remain as being compensatory, rather than punitive in character.
301 In Ali v Nationwide News Pty Ltd [2008] NSWCA 183 [79] [85], Tobias and McColl JJA summarised the following applicable principles towards the calculation of aggravated damages which are of utility to the present exercise:
An award of aggravated damages may be made if the defendant has acted in a manner which demonstrates a lack of bona fides or in a manner which is improper or unjustifiable ... Conduct which demonstrates those characteristics will be such as will increase the harm which the publication of the libel has caused or may be supposed to have caused: Mirror Newspapers Ltd v Fitzpatrick [1984] 1 NSWLR 643 at 653 per Samuels JA.
Aggravated compensatory damages are usually awarded only in relation to the injury to the plaintiff's feelings but are not necessarily so limited, and there may be conduct which also has the effect of increasing the injury to the plaintiff's reputation: Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58 at 75 per Hunt J.
...
In awarding aggravated damages, the court remains restricted to compensating the plaintiff for the loss actually suffered by him or her as the result of the defamation but, in assessing those damages, it may adopt the highest level of damages open as compensatory damages: Cassell at 1085 per Lord Reid; see also Lord Hailsham at 1073 and Lord Diplock at 1124.
A defendant's conduct right up to the moment of verdict is relevant to aggravated damages: Roberts v Bass [2002] HCA 57; (2002) 212 CLR 1 at 103 [287] per Callinan J.
302 The failure by the defendant to offer an apology to a plaintiff (as is the case here) may also be taken into account as one potentially aggravating factor: The Herald and Weekly Times Ltd v McGregor [1928] HCA 36; (1928) 41 CLR 254, 263.
303 The plaintiffs have pointed to a number of other circumstances of alleged aggravation that they submit give rise to an increase in the level of the compensatory damages awarded to each.
304 It is said first that Mr McLernon had initially admitted to his publication and authorship of each matter complained of in running fair comment (or honest opinion under s 31 of the Defamation Act), justification and truth defences (that were never properly particularised). The paragraphs attempting to raise these defences in Mr McLernon's earlier pleadings were respectively struck out by me over time upon successive interlocutory applications by the plaintiffs. Mr McLernon was given leave to re-plead defences until such time as it became apparent that his defences were untenable and could not be adequately particularised. Ultimately, Mr McLernon was barred by me from continuing his attempts to plead out such misconceived defences. Enough was enough.
305 Mr McLernon clearly knows - and I would find as a fact that he always knew - that his publications complained of here by each plaintiff were false. His sustained and defiant in person efforts over time to support his work by running defences ultimately assessed as untenable is evidence of, and displays his intent to, resist, frustrate, delay and complicate any resolution of these proceedings for as long as he could. Ultimately, he has been made to account for his publications.
306 The plaintiffs also contend that throughout the course of these proceedings, Mr McLernon has continued to launch collateral attacks on the plaintiffs through various online mediums, including Twitter, Facebook and a Google blog website. That has also been proven to my satisfaction in these trials. Records of these websites show posts from accounts belonging to a 'Terence J McLernon' and making reference to the 'Fat Wallet Mob' and to Messrs Douglas, Billis and Matich. Whilst Mr McLernon stated at trial that he had no memory of these accounts (ts 554, 563 564), once again I do not accept that evidence. I find these were attributable to him as well.
307 As noted, Mr McLernon has at no point apologised for publishing the defamatory materials that each plaintiff complain of. His conduct suggests the exact opposite.
308 By my assessment, the harm suffered by Messrs Douglas, Billis and Matich has undoubtedly been aggravated here by Mr McLernon's conduct as described. These circumstances warrant an award of extra compensatory (ie aggravated) damages as well. However, I will include that amount in the aggregate sum awarded to the plaintiffs.
309 In the end, I award $250,000 damages (including aggravated damages) to each of Messrs Douglas and Billis.
310 For Mr Matich, the publications were of a lesser magnitude, as I earlier discussed. I award him the amount of $200,000, inclusive of aggravated damages.
311 In addition, interest will be awarded on each amount at 3% per annum. Absent evidence as to precise dates of publication, interest should run from and be calculated from 18 September 2012 in each case. That date, when the internet publications were taken down, is the most favourable to Mr McLernon, in the circumstances.
312 There should also be an award of the costs in each action involving Mr McLernon as defendant, as against him. Albeit probably theoretical in end effect, these costs should be assessed against him on an indemnity basis as an indication of the Court's displeasure at his conduct in his defences of this litigation, including during the trials as I have presented in these reasons: see Swansdale Pty Ltd v Whitcrest Pty Ltd [2010] WASCA 129 (S) [10].
313 In addition, Messrs Douglas, Billis and Matich each seek a permanent injunction to restrain Mr McLernon from publishing or continuing to publish any matters conveying the imputations that they have complained of, or any imputations to the same or similar purport and effect, whether on any of the websites complained of or elsewhere. In my view, injunctions in those terms would be too wide and too general to be viably enforced - should a need manifest in the future. The terms must be adjusted accordingly.
314 Permanent injunctions, properly framed to be effective - in the event that an occasion to enforce by a contempt sanction arises in the future need to set out with some workable specificity the defamatory matters that are subject to the restraint, which is in perpetuity. I will take that course in substantially the same terms as seen earlier - again noting the importance of not restating verbatim or capturing for posterity the offensive materials complained of, to avoid any further public dissemination in this process than is absolutely necessary.
315 The plaintiffs submit that factors relevant to the award of a permanent injunction are substantially the same as those outlined in relation to aggravated damages. In other words, Mr McLernon's ongoing, unrepentant and defiant conduct as earlier recounted in the context of giving rise to aggravated damages should, in turn, justify an award of a permanent injunction.
316 I broadly accept that submission, albeit I note the need (in the absence of more detailed submissions on the point) to review at some greater depth the law governing the award of permanent injunctions when issued in defamation claims.
317 As a preliminary observation, I would distinguish the present situation from other circumstances in which a court is asked to grant an interlocutory injunction to restrain an allegedly defamatory publication. Courts are somewhat cautious towards issuing interlocutory injunctions in defamation actions: Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57 [16] and see also my observations in Moran v Schwartz Publishing Pty Ltd [2014] WASC 334. However, this principle cannot be said to apply equally in the context of a prayer for a final and permanent injunction issued in perpetuity.
318 In Hockey v Fairfax Media Publications Pty Ltd (No 2) [2015] FCA 750; (2015) 237 FCR 127, White J reiterated that, for Australia, permanent injunctions restraining repetition of a publication of matters found to be defamatory are not usually issued as a matter of course. But, as his Honour noted at [15], this general principle is subject to exception:
The authorities show that injunctions are issued only when some additional factor is evident, usually, an apprehension that the respondent may, by reason of irrationality, defiance, disrespect of the Court's judgment or otherwise, publish allegations similar to those found to be defamatory unless restrained from doing so: Higgins v Sinclair [2011] NSWSC 163; [2011] ASAL 55-214 at [245]; Royal Society for the Prevention of Cruelty to Animals New South Wales v Davies [2011] NSWSC 1445 at [63]- [66]; Polias v Ryall [2014] NSWSC 1692 at [99]; Sierocki v Klerck (No 2) [2015] QSC 92 at [52] - [53].
319 In Higgins v Sinclair [2011] NSWSC 163, Johnson J determined that, in the circumstances of that case, the plaintiffs had demonstrated a proper foundation for the grant of permanent injunctive relief in respect of that defamation action. His Honour accepted a series of considerations as identified by those plaintiffs as being relevant to his decision in the end to award a permanent injunction [271]. He said:
[I]n many cases, damages will be an adequate remedy, leaving no need for a final injunction. However, it was submitted that some defendants may, for a variety of reasons, be likely to publish similar allegations unless restrained, despite having been afforded the opportunity to defend those allegations, and despite having those allegations found by a court of competent jurisdiction to be unwarranted.
In some cases, it was submitted that this may be because a defendant has an irrational view of the truth of the allegations he makes. In others, it may be because he does not take a damages award seriously, perhaps because he may lack substantial resources against which a judgment may be executed. In other cases, a defendant may reveal a disinclination to conform to anticipated findings of the court which may verge on disrespect for legal process.
... [I]f a defendant is likely to repeat the defamatory allegations and has failed to prove them true, then he should be restrained from repeating them. If he wishes to do so in the future, the onus will be on him to approach the Court and seek to be relieved of the orders, upon adducing admissible evidence that satisfies the Court that the orders should not remain in place [245] [247].
320 These are particularly pertinent statements for the circumstances of the present trials. At the close of his submissions at the end of the trials, counsel for the plaintiffs submitted that permanent injunctions akin to the terms of those issued by Johnson J should issue here (ts 712): see Higgins v Sinclair (No 2) [2011] NSWSC 238.
321 The Higgins v Sinclair approach to evaluating the need for permanent injunctive relief in a defamation action has been followed by Latham J in Royal Society for the Prevention of Cruelty to Animals New South Wales v Davies [2011] NSWSC 1445 [64], [77] (RSPCA v Davies).
322 RSPCA v Davies was more recently cited with approval by McCallum J in Graham v Powell (No 4) [2014] NSWSC 1319 [45]. Her Honour observed that while damages are an adequate remedy in many defamation cases, the defendant's 'persistence in making repeated defamatory publications had the flavour of a vendetta against the plaintiff' that made the grant of a permanent injunction appropriate in the circumstances: see [45] [48].
323 Both RSPCA v Davies and Graham v Powell (No 4) have been cited with approval by Flanagan J in Sierocki v Klerek (No 2) [2015] QSC 92, where his Honour awarded a permanent injunction on the basis that financial consequences alone were unlikely to be a deterrent to the defendants.
324 My evaluation of the case authorities now discussed above, and considered in the context of the present trials against Mr McLernon, has led me to conclude that an ordering of permanent injunctions against Mr McLernon is necessary and appropriate in the present circumstances, particularly given what I would infer to be a strong risk as to the likelihood in the future of repeat publications of such material concerning each plaintiff by Mr McLernon if not restrained.
325 I have commented on Mr McLernon's observed behaviour in some detail already both over the course of pre-trial hearings and throughout the trial itself. It can be appropriately described as defiant and erratic. Mr McLernon's sudden, unsubstantiated (alleged) asserted memory loss application under crossexamination was a convenient fabrication. That attempted ruse exemplifies a basis for my evaluation of his overall character, namely as defiant, hostile and unpredictable.
326 Mr McLernon's financial position looks problematic. There presents the real prospect that the plaintiffs may never recover any of the damages I award against him. In such circumstances, a public vindication from the magnitude of those awards aside, the effectiveness of the award of damages as an appropriate remedy to address Mr McLernon's wrongs is diminished.
327 I am left in no doubt that without an additional remedy for the plaintiffs, there remains a substantial risk of further future publication of the defamatory matters now proven (or material akin) against each plaintiff. There has been established, then, a demonstrated basis to protect the plaintiffs from the likelihood of a potential future publication of the same genre of damaging defamatory matter. These proceedings have been ongoing since 2012. It is now necessary to issue a tangible remedy that will provide some element of protection to the plaintiffs against an unnecessary burden of needing to commence future defamatory actions against Mr McLernon.
328 As such, I propose to issue permanent injunctions in broadly the following terms (subject to any submissions from the plaintiffs): Mr McLernon be permanently restrained from publishing or continuing to publish any matters conveying the imputations set out below, or any imputations to the same or similar purport and effect, whether on any of the websites complained of or elsewhere.
329 In Mr Douglas' action, CIV 1930 of 2012, the permanent injunction extends to restrain any publication by Mr McLernon of imputations that Mr Douglas:
330 In Mr Billis' action, CIV 2307 of 2012, the permanent injunction extends to restrain any publication by Mr McLernon of imputations that Mr Billis:
331 For Mr Matich in CIV 2308 of 2012, the permanent injunction extends to restrain any publication by Mr McLernon of imputations that Mr Matich:
332 As successful parties, the plaintiffs should receive their costs of the trials against Mr McLernon. Prima facie, as discussed these costs should be on an indemnity basis.
333 The plaintiffs should provide a minute of orders for each action giving effect to these reasons within seven days of their publication, except as otherwise indicated below.
334 The actions against Mr Fitzgerald, as discussed, are dismissed.
335 In light of these reasons, the following orders should issue, prima facie, in respect of the four defamation actions by Messrs Douglas, Billis and Matich.
Postscript regarding the Fitzgeralds' costs circumstances
336 The Fitzgeralds have acted in person at all material times from 4 September 2012. I will allow a period of seven days following publication of these reasons, in which time Ms Fitzgerald and Mr Fitzgerald have leave to make written submissions within that time as to costs orders. The plaintiffs are afforded a further seven days to respond in that event. In the absence of any written submissions from them, any prima facie orders as to costs and disbursements as seen above will issue.
CITATION : DOUGLAS -v- McLERNON [No 4] [2016] WASC 320 (S)
Practice and procedure - Costs application - Unrepresented defendant - Case dismissed at trial on the basis of no case to answer - Previous periods of legal representation - Application for costs
1 KENNETH MARTIN J: Under [336] of my substantive reasons for decision in relation to the actions CIV 1930 of 2012, CIV 2306 of 2012, CIV 2307 of 2012 and CIV 2308 of 2012, which were heard together at trial in June 2016, Douglas v McLernon [No 4] [2016] WASC 320, I reserved a period of time (subsequently extended) to allow two of the three in person defendants (Ms Toni Fitzgerald and her brother, Mr Laurence Fitzgerald, who were defendants in three of the four actions that were determined) to make written submissions in relation to costs orders, given trial outcomes in their favour.
2 Mr Laurence Fitzgerald has not made any submission concerning his costs. On that basis, dismissal of the three actions against him has been effected on the basis that there be no orders as to costs concerning him. Those orders will stand.
3 Ms Toni Fitzgerald has availed herself of the opportunity to file affidavit material seeking an award of costs in her favour in a number of respects as enumerated in her affidavits of 19 and 28 October 2016, then 14 November 2016.
4 It is apparent that in the filing of this affidavit material Ms Fitzgerald still acts in person, with a consequence that there is something of an imperfect understanding about the nature of the exercise. It will be remembered (see my separate reasons, Douglas v McLernon [No 3] [2016] WASC 319) that I dismissed all three actions brought against Ms Fitzgerald by the plaintiffs on the basis I was not satisfied that the plaintiffs had established a case for her to answer. At that time during the trials she was appearing in person and over a video link from New South Wales.
5 It now appears by material appended to Ms Fitzgerald's affidavit that she outlaid $192.50 as a disbursement to a corporation, Whygo Pty Ltd, on 22 June 2016 in order to use a video link facility for the purposes of participating in her ultimately successful no case to answer submission at the trials. At other periods as the trials proceeded she and Mr Laurence Fitzgerald were participants by telephone link. In these circumstances, it is appropriate that a disbursement which she has incurred in respect of accessing a video conference facility in New South Wales, which was necessary for her to participate in the trials, should be met by the plaintiffs. Ms Fitzgerald should be reimbursed for that out of pocket disbursement. As I read the written submissions filed on behalf of the plaintiffs (of 26 October 2016 and then 10 November 2016) that disbursement aspect of her application is not opposed by them: see par 23 of the plaintiffs' written submissions of 10 November 2016.
6 More substantive legal costs claims as are now foreshadowed under Ms Fitzgerald's affidavit material concern the following three payments which she seeks to recoup, namely:
(a) a payment of $1,302.40 to Ms Sue Chrysanthou, a barrister of Blackstone Chambers at Martin Place, Sydney. Ms Fitzgerald appends a copy of that barrister's tax invoice, as sent to a Mr Purcell of O P O'Neill Partners (solicitors of Hunter Street, Sydney). This is invoice 2623 of 3 September 2012. But O P O'Neill Partners do not appear to have ever been solicitors of record for Ms Fitzgerald in those actions. I set out the court's record concerning her period of legal representation in due course;
(b) an amount of $1,122 that was paid to Hotchkin Hanly Lawyers. The claim in respect of these moneys on the face of it would appear to be misconceived. Hotchkin Hanly were at a point solicitors of record for the plaintiffs. What appears to have occurred is that at some earlier point the former case manager, Le Miere J, had issued an adverse interlocutory costs order against Ms Fitzgerald as defendant, favouring each plaintiff. Orders were made against her then in respect of a payment of $374 to each plaintiff (ie, $374 x 3 = $1,122). The interlocutory costs amounts then appear to have been paid to Hotchkin Hanly on Ms Fitzgerald's behalf by a Mr Brownlee, some time thereafter. In those circumstances, a pursuit of a claim in respect of this adverse interlocutory costs order is not a feature that can be disturbed by the later successful trial outcome for Ms Fitzgerald. The underlying interlocutory circumstances surrounding the making of those adverse costs orders by Le Miere J are not entirely clear to me, although there is speculation in the opposing materials filed on the part of the plaintiffs, to the effect that the adverse interlocutory costs order against Ms Fitzgerald issued by Le Miere J following an event of nonappearance at a scheduled interlocutory hearing. I say no more about that other than the paid amount is not recoverable by reason of the trial outcomes in her favour;
(c) perhaps most substantively, Ms Fitzgerald seeks a costs order in respect of an amount of $15,000 which she says was paid on her behalf to the West Australian law firm CS Legal, a trading name for the corporation 'The Pier Group Pty Ltd'. Materials before the court appended to Mr Joyce's affidavit filed on behalf of the plaintiffs, as attachment SJ 3 (pages 13 - 14 of Mr Joyce's affidavit of 26 October 2016) indicates that CS Legal became solicitors of record for Ms Fitzgerald and Mr Laurence Fitzgerald on 24 February 2014. The court's integrated case management system (ICMS) record show that CS Legal were the solicitors of record for Ms Fitzgerald, only in the period from 24 February 2014 to 20 May 2014. After that they ceased to be solicitors of record. Furthermore, the ICMS records of the court show that at all other times, namely, in the period between 4 September 2012 to the present time, Ms Fitzgerald has been selfrepresented in the three actions concerning her - at least as regards the state of the court record.
7 Various issues are raised by the exchanged materials and rival submissions concerning the account of CS Legal, including as to whether that law firm was acting for Ms Fitzgerald as well as her brother, whether there ever was a settlement of the account, and whether the account was, in fact, met by Ms Fitzgerald. As to the latter point, however, the significant issue would appear to be whether there was a liability for the account which she incurred an exposure to: see the reasons of the Court of Appeal in Marsh v Baxter [No 2] [2016] WASCA 51 as regards legal costs liabilities.
8 In the presenting circumstances, it is not appropriate I resolve these contested issues concerning Ms Fitzgerald's claimed costs. The appropriate forum for that to occur is on a taxation of costs conducted before a Registrar of this court.
9 In the circumstances, the appropriate order which will issue to cater for the contingency of Ms Fitzgerald pursuing a claim of taxed costs in respect of an account paid in respect of advice received from barrister Sue Chrysanthou and for the period of legal representation provided just short of three months by CS Legal, is an order allowing her to claim and tax those costs.
10 Consequently, I would resolve the present application in respect of each of the three actions where Ms Fitzgerald was a participant defendant on a basis that she will receive her taxed legal costs of those actions from the plaintiffs, including any appropriate disbursements she has incurred, on a partyparty basis. Any taxation would necessarily proceed, however, on a basis that by reason of the principle explained in Cachia v Hanes [1994] HCA 14; (1994) 179 CLR 403, such a recoupment on a taxation in respect of legal costs has no application towards periods when a participant party is selfrepresented.
11 Effectively then, the claim for costs by Ms Fitzgerald as foreshadowed concerning the invoice of barrister Sue Chrysanthou and the invoice of CS Legal will fall to be assessed at a taxation.
(2002) 210 CLR 575
(1982) 150 CLR 500
(2015) 237 FCR 127
(1928) 41 CLR 331
(1959) 101 CLR 298
(1985) 1 NSWLR 58
(1928) 41 CLR 254
(2006) 227 CLR 57
(2009) 24 VR 129
(1993) 178 CLR 44
(2010) 27 VR 171
(1985) 1 NSWLR 188
(2002) 212 CLR 1
(1994) 179 CLR 403