Billis v McLernon [No 2]
[2019] WASC 157
•13 MAY 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: BILLIS -v- McLERNON [No 2] [2019] WASC 157
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 - Final inquiry - Opportunity for defendant to identify exculpatory documents - No material identified - Final orders to issue
Legislation:
Evidence Act 1906 (WA)
Result:
Final orders to issue
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):
Billis v McLernon [2019] WASC 156
KENNETH MARTIN J:
These reasons follow from my earlier decision in Billis v McLernon [2019] WASC 156 (Billis [No 1]). They concern the subsequent events to the hearing of the plaintiff's application on 3 May 2019.
Hearing of the plaintiff's application
At the hearing of the plaintiff's application I foreshadowed I would grant the application of the plaintiff.
I also indicated that it was appropriate to proceed on the basis of s 110(1)(c) of the Evidence Act 1906 (WA) with a view of a letter of request being issued to the judicial authority of the United States of America to gather evidence about the identity of any person or persons responsible for the posting of the allegedly infringing content on the blogs on websites owned by Google LLC.
At the hearing, the defendant in person, Mr McLernon, after I had indicated that intention, then said that such orders were futile. As I understood Mr McLernon, the basis of that submission was that there were materials brought before the court by him which identified a person who had accepted responsibility for posting the allegedly infringing content.
However, at the time of making his submission, Mr McLernon could not indicate what materials he referred to. Nor was he able to direct me to particular material on the court file, even though he seemed to be verbally insistent that there were materials filed by him (possibly in an affidavit of his) that supported the submission he had just made.
I also enquired of counsel for the plaintiff, Mr Mukherji, as to what the defendant was referring to. He also was unable to assist in terms of identifying materials which might fall within the ambit of this unspecified submission made by Mr McLernon.
Since Mr McLernon was acting in person, I then said I would afford to him the opportunity to identify specifically the materials he referred to and to notify me through my Associate of the exact documents he was referring to.
I allowed Mr McLernon until midday Monday, 7 May 2019 to provide such clarification.
Advice from Mr McLernon
My Associate subsequently received a series of emails from Mr McLernon.
The first email was received on Friday, 3 May 2019 at 8.32 pm. It read:
Subject: Google to deliver documents
Upon reflection " ,great idea ".
Great to see what they come up with.. The sworn documents I alluded to compiled by my expert witness Joseph Brown and further documents were provided by Philip Harshaw and filed at Supreme Court registry as well. All parties were notified some months ago by email. I can do no more. ..let's see what the google people can provide the court with.. Please proceed with haste. Regards.
On the basis of that communication, it appeared that Mr McLernon had withdrawn his position opposing the plaintiff's application and was no longer resistant to the making of the orders that I had foreshadowed.
There are also no documents on the court file that match the description of the documents alluded to by Mr McLernon.
Subsequent to that initial advice, a further series of emails were received from Mr McLernon on:
i.Saturday, 4 May 2019 at 8.18 am;
ii. Sunday, 5 May 2019 at 9.52 am; and
iii. Monday, 6 May 2019 at 8.35 am.
Mr McLernon's subsequent emails are generally offensive in parts and putting the matter as kindly as I can, less than coherent in content. They do not engage with the opportunity afforded to Mr McLernon to direct the court to materials that allegedly supported his proposition that another person other than Mr McLernon had admitted responsibility for uploading the allegedly infringing content to the blog sites complained about by the plaintiff.
The court did not receive any further filed documents or communication prior to the midday, 7 May 2019 deadline.
Final orders
In all those circumstances, I have now determined that the orders foreshadowed at the directions hearing on Friday, 3 May 2019 (and outlined in Billis [No 1]), but postponed for Mr McLernon's benefit, should issue.
Orders will now issue in the following terms:
1.A letter of request be issued by the Principal Registrar of this court to the judicial authorities of the United States of America to take, or cause to be taken, evidence, including the provision of documents, from the proper officer of Google LLC pursuant to the Hague Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters. The letter of request is to be in substantially the form of Annexure A of these orders.
2.When the Principal Registrar receives the evidence pursuant to the letter of request referred to in order 1, any party to these proceedings shall be at liberty to read the written evidence of the witness and any documents produced, except where the court orders otherwise.
3.The trial of these proceedings shall be adjourned until the Principal Registrar receives the written evidence of the witness and any document produced contemplated in order 1.
4.The costs of the application be reserved.
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
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