Billis v McLernon
[2019] WASC 156
•13 MAY 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: BILLIS -v- McLERNON [2019] WASC 156
CORAM: KENNETH MARTIN J
HEARD: 3 MAY 2019
DELIVERED : 13 MAY 2019
FILE NO/S: CIV 2439 of 2018
BETWEEN: ANTHONY BILLIS
Plaintiff
AND
TERENCE JOHN McLERNON
Defendant
Catchwords:
Practice and procedure - Taking of evidence abroad - Application for court to issue letter of request to foreign judicial authority - Evidence Act 1906 (WA) s 110(2) considered - Interests of justice - Order for letter to issue subject to a final inquiry
Legislation:
Evidence Act 1906 (WA)
Rules of the Supreme Court 1971 (WA)
Result:
Prima facie application granted
Category: B
Representation:
Counsel:
| Plaintiff | : | Mr G Mukherji |
| Defendant | : | In person |
Solicitors:
| Plaintiff | : | Tindall Gask Bentley Lawyers |
| Defendant | : | In person |
Case(s) referred to in decision(s):
Novotny v Todd [2002] WASCA 79
KENNETH MARTIN J:
(This judgment was delivered extemporaneously on 3 May 2019 and has been edited from the transcript.)
I am dealing with the plaintiff's application made by a chamber summons on 2 May 2019. I have given leave for the chamber summons to be made returnable on 3 May 2019.
By his application, the plaintiff seeks to rely upon s 110(1)(c) of the Evidence Act 1906 (WA) in order to have the court issue a letter of request to the judicial authorities of the United States of America to take or cause to be taken evidence, including the provision of documents from a proper officer of the international corporation Google LLC, pursuant to the Hague Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil and Commercial Matters (Hague Evidence Convention).
Legislative background
The particular provisions of s 110(1)(c) of the Evidence Act provides:
In any civil or criminal proceedings before a superior court, the court may, in its discretion and where it appears in the interests of justice to do so, on the application of a party to the proceeding, make, in relation to a person outside the State, an order -
...
(c)for the issue of a request to the judicial authorities of a place outside the State to take, or cause to be taken, the evidence of the person.
Section 110(2) of the Evidence Act is also relevant to this application because it provides that:
In determining whether it is in the interests of justice to make an order under subsection (1) in relation to the taking of evidence of a person, the matters to which the court shall have regard include the following -
(a)whether the person is willing or able to come to Western Australia to give evidence in the proceeding;
(b)whether the person will be able to give evidence material to any issue to be tried in the proceeding;
(c)whether, having regard to the interests of justice to the proceeding, justice will be better served by granting or refusing the order.
In Novotny v Todd [2002] WASCA 79, McLure J (as her Honour then was) made the observation concerning s 110(2) that the matters to which the court is directed to have regard by the word 'shall' are not exclusive. Rather they are in addition to other considerations that the court may take into account.
I also note the requirements of s 110(4) of the Evidence Act in relation to what the court may, in its discretion, include in an order by way of request in relation to any matter concerning the taking of evidence, including matters dealing with re-examination, cross‑examination, examination-in-chief, the attendance of legal representatives and any other prescribed matter. See also McLure J's observations about s 110(4) made in Novotny.
The Rules of the Supreme Court 1971 (WA) (RSC) specify how an application under s 110 of the Evidence Act is to be made. Order 38A r 3 provides that such an application in relation to civil proceedings before the court must be made by summons supported by affidavit.
Order 38A r 3 continues to provide as follows:
(3)The affidavit in support of an application must -
(a)address the matters referred to in section 110(2) of the [Evidence] Act; and
(b)exhibit all such documents in the proceedings as are necessary to inform the Court of the questions at issue between the parties.
I also note O 38A r 3(4) concerning the requirement for the affidavit to exhibit a draft of the letter of request to be issued by the court.
The present application
In the present case, the application was originally commenced by a notice of motion dated 23 April 2019. That irregularity was cured by the filing of the subsequent chamber summons on 2 May 2019, which addresses the formality under O 38A r 3.
In support of his application, the plaintiff reads and relies on an affidavit of Mr Samuel Joyce sworn 23 April 2019 (Joyce Affidavit). Mr Joyce is a solicitor with the plaintiff's lawyers.
Appended to the Joyce Affidavit, at SJ-12, commencing at page 153, is a draft proposed letter of request to be issued by the Principal Registrar of this court to the Office of International Judicial Assistance of the United States Department of Justice in the terms as there seen (the draft letter). Paragraph 3 of the draft letter relates that the proceedings concern this situation:
(a)The Plaintiff has brought contempt proceedings against the Defendant for alleged breaches of orders made by the Supreme Court of Western Australia.
(b)Permanent injunctions were granted by the Supreme Court of Western Australia in CIV 2307 of 2012 against the Defendant, restraining him from publishing statements containing various defamatory imputations in relation to the Plaintiff, or statements to a similar effect.
In the present proceedings in which the application is brought, CIV 2439 of 2018, it is the case that the plaintiff alleges that Mr McLernon has acted in breach of permanent injunction orders made by this court by a publishing of certain statements (that I will refer to as the 'allegedly infringing content') on websites. These websites are identified in the draft letter in par 3(c), by reference to http blogspot references.
It is also noted in subpar (3)(d) of the draft letter that Mr McLernon has denied any involvement in relation to the blog pages.
It is further observed at subpars (3)(e) and (f) of the draft letter that the blogging service which contains the allegedly infringing content is owned by Google, and that the blog pages are hosted by Google Limited Liability Corporation (Google LLC) for that international organisation.
The plaintiff then contends, under subpar (3)(g) of the draft letter, that, as the owner and operator of the blogging service and the hosting site associated with the blogger, Google LLC holds information and documentation which is likely to identify the person or persons in control and involved in the operation of the blog pages.
Previous attempts
Some further material appended to the Joyce Affidavit indicates earlier unsuccessful attempts to afford this plaintiff the opportunity to engage a solicitor in the United States to obtain this same information from Google LLC ‑ but without the plaintiff operating under the particular Hague Evidence Convention relied upon here. As it transpired, those earlier attempts were unsuccessful.
The Joyce Affidavit (at SJ-9, pages 115 - 122) contains a communication from the United States Department of Justice Civil Division, dated 27 November 2018, that was sent to the Registrar of this court. In the letter, the author, a Ms Jeanne E Davidson, director of the department, indicates that even if a request had been submitted pursuant to the Hague Evidence Convention 'we would be unable to execute the request as received'. She continues:
Article 3 of the Hague Evidence Convention sets forth the information that is to be included in a proper Letter of Request. This includes 'the nature of the proceedings for which the evidence is required, giving all necessary information in regard thereto'. Hague Evidence Convention, art 3(c). The current request does not provide any information regarding the nature of the lawsuit between the parties; thus we are unable to execute it.
Please note that it takes on average three to six months to execute a request for evidence since internet service providers require a subpoena, issued in accordance with a US district court order, before they can release any records.
If the Court still requires this evidence, the request may be resubmitted to the Office of International Judicial Assistance in accordance with the Hague Evidence Convention.
Ms Davidson then directs further attention to a website which contains an Evidence and Service Guideline.
The prior unsuccessful attempt by the plaintiff to obtain the evidence has now been sought to be addressed by the present application which does proceed by reference to the Hague Evidence Convention.
The issues for determination
The question is whether the material as submitted under the Joyce Affidavit satisfies this court, as a matter of discretion as a superior court, that it would be favourable to the interests of justice to issue a letter of request to the judicial authorities of the United States of America under the Hague Evidence Convention. I have already identified the matters that I am obliged to take into account under s 110(2) of the Evidence Act.
In short summary, the position is this. The allegedly infringing content is material posted on an internationally‑based website (Google LLC). Mr McLernon, who is alleged in these proceedings to have breached permanent injunction orders of this court by the publication or the causing of the publication of that material, denies that he is the person responsible.
First, taking into account s 110(2)(a), I am satisfied that in the circumstances, which are that:
(a)Google LLC is a United States, California‑based corporation;
(b)the request is directed towards having a proper officer of that corporation; and
(c)the request essentially seeks the proper officer attend to give evidence about authenticating documents to be produced on an ancillary basis
it is unlikely that the proper officer of Google LLC would be willing to come to Western Australia to give relevant evidence.
Secondly, considering s 110(2)(b), I am also satisfied that there may well be - indeed, should be - a person within Google LLC who should be able to cast light in relation to the identity of the person or persons responsible for the allegedly infringing content which is clearly material to a significant issue to be tried in these proceedings.
Finally, I turn to s 110(2)(c). If there is evidence which identifies the correct person or persons responsible for posting allegedly infringing content going on the blog site under circumstances which could amount to a breach of the court's injunctions issued in the 2012 proceedings, it is in the interests of justice for that information to be obtained and exposed. It seems to me it is in everyone's interests ‑ not just the plaintiff's, but, given his denials, also in also Mr McLernon's interest ‑ for the evidence, if it exists, to be provided by Google LLC so as to clarify that issue.
What is proposed by the plaintiff now seems to be a sensible way of possibly getting to the heart and truth of the matter concerning who is or is not responsible for the allegedly infringing content.
Contempt of court allegations are serious matters. If disobeyed, ignored or breached with impunity, a court's orders will lose their authority and respect in the eyes of the community. Therefore, it is overwhelmingly in the interests of justice for an alleged transgression against an order of the court to be pursued and for the person responsible to be properly identified if at all possible. Where there has been a proved breach, punishment may be appropriate.
Final inquiry
However, there is a qualification to that determination. This is based upon what has just been verbally put to me today at the hearing by Mr McLernon. It appears the tenor of what he attempted to submit is that he has previously put material before the court which would, he suggests, disclose that someone else other than he has openly accepted responsibility or is responsible in some way that would exonerate or exculpate Mr McLernon from any responsibility from the publishing of the allegedly infringing content.
I do not, as yet, understand the full import of that submission because Mr McLernon has been unable to direct my attention precisely to where on the court file that material is. He is today unable to produce or point me to the precise document or documents he is referring to.
I have given Mr McLernon leave to communicate through my Associate, so as to precisely identify that material which, once I receive his communication, I should look at to evaluate what he has just submitted as to this third person.
Prima facie, and subject to that final inquiry, I am satisfied that the requirements of the Evidence Act, under s 110(1) and (2) are otherwise met and I am also satisfied, based upon the material contained within the substantial Joyce Affidavit that the other requirements of the section and of O 38A RSC are all met.
Final orders
As such, I will then foreshadow that I would, subject to the qualification I explain, grant the plaintiff's application. It would be appropriate for orders to issue in terms of the chambers summons dated 2 May 2019. Orders will direct the Principal Registrar of this court issue a request in the terms of SJ-12 of the Joyce Affidavit to the judicial authorities of the United States of America. However, the qualification is that if I find, having looked at materials to be identified by Mr McLernon, that I need further assistance from the parties, then I will not make any orders. I will simply convene a further directions hearing in order for the parties to assist me with further submission about that issue. Hence no orders will presently issue until this outstanding issue raised by Mr McLernon is further pursued. I have allowed Mr McLernon until noon on Monday, 7 May 2019 to advise my Associate of the precise materials to which he was referring.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
DW
Associate to the Honourable Justice Martin13 MAY 2019