Billis v McLernon [No 2] - [2019] WASC 157

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Billis v McLernon [No 2]

Details

AGLC: Billis v McLernon [No 2] [2019] WASC 157
Case: [2019] WASC 157
Decision Date: 13 MAY 2019

CaseChat Overview and Summary

In the Federal Circuit Court of Australia, Billis v McLernon [No 2] involved a dispute between the parties regarding the enforcement of a judgment obtained in New Zealand against the defendant, McLernon, in Australian courts. The plaintiff, Billis, sought to enforce the judgment, while the defendant contested the enforcement, arguing that there were exculpatory documents that had not been considered during the original proceedings in New Zealand. The Federal Circuit Court was tasked with determining whether the defendant had a sufficient opportunity to identify such documents and whether the judgment should be enforced.

The court was required to decide whether the defendant had a fair opportunity to identify and present exculpatory documents that could potentially negate or reduce the judgment. The legal issues revolved around the principles of finality of judgments, the scope of discovery in international proceedings, and the procedural fairness in allowing the defendant to identify documents that might have been overlooked in the original proceedings. The court had to balance the finality of the New Zealand judgment with the defendant's right to challenge the enforcement on grounds of procedural unfairness.

The court found that the defendant had ample opportunity to identify and present any exculpatory documents during the proceedings in New Zealand. It determined that there was no evidence that the defendant had been unaware of the potential existence of such documents. The court held that the defendant had not demonstrated any material that was not previously available to them, and thus, the principle of finality of judgments would be upheld. Consequently, the court ruled in favour of the plaintiff, Billis, and ordered the enforcement of the New Zealand judgment against the defendant, McLernon. The court considered that the defendant's opportunity to present exculpatory evidence had been sufficiently explored and that the judgment should not be set aside on these grounds.

Orders