Billis v McLernon [No 3] - [2022] WASC 38

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   BILLIS -v- McLERNON [No 3] [2022] WASC 38
CORAM:   KENNETH MARTIN J
HEARD:   20 OCTOBER 2021
DELIVERED          :   9 FEBRUARY 2022
FILE NO/S:   CIV 2439 of 2018
BETWEEN:   ANTHONY BILLIS
Plaintiff
AND
TERENCE JOHN McLERNON
Defendant

Catchwords:

Contempt of court application - Contempt alleged by plaintiff - Alleged breaches of permanent injunction orders - Permanent restraints against further defamatory imputation publications as enumerated in permanent injunction orders - Proof of breach at criminal standard - Proof required beyond reasonable doubt - Three charges of intentional breach of injunctive orders - Contemnor in person - Liability assessment before penalty phase

Legislation:

Sentencing Act 1995 (WA)
Supreme Court Act 1935 (WA)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Plaintiff	:	Mr G Mukherji (by video-link)
Defendant	:	In person

Solicitors:

Plaintiff	:	Tindall Gask Bentley Lawyers
Defendant	:	In person

Cases referred to in decision:

Chief Executive Officer, Department of Environment & Conservation v Szulc [2010] WASC 195
Construction, Foresty, Mining and Energy Union v Boral Resources (Vic) Pty Ltd [2015] HCA 21; 256 CLR 375
Douglas v McLernon [No 4] [2016] WASC 320
Douglas v McLernon [No 4] [2016] WASC 320 (S)
Du Buisson Perrine v Carello [2018] WASC 392
European Asian Bank SG v Wentworth (1986) 5 NSWLR 445
Fairfax Media Publications Pty Ltd v Voller [2021] HCA 27
Ferguson v Dallow (No 4) [2021] FCA 513
Gallagher v Destiny Publications Pty Ltd 2015 WASC 40
Visscher v Maritime Union of Australia (No 6) [2014] NSWSC 350
Witham v Holloway [1995] HCA 3; 183 CLR 525

KENNETH MARTIN J:

Introduction

This is a contempt of court application privately moved by the plaintiff, Mr Anthony Billis, against the defendant, Mr Terence John McLernon, in these proceedings - which commenced on 15 August 2018. Mr McLernon acts in person in resisting the allegations advanced against him.
The application is advanced by Mr Billis by reference to multiple alleged breaches by Mr McLernon against terms of permanent injunction orders - that this court has previously issued against Mr McLernon. Those restraint orders were pronounced in the aftermath of a defamation trial in the civil proceedings, being CIV 2307 of 2012.

CIV 2307 of 2012 defamation trial

The trial comprised four civil defamation actions against Mr McLernon and other defendants, heard together. The reasons for decision post trial culminated in my reasons, published as Douglas v McLernon[No 4] [2016] WASC 320. Those reasons were delivered in open court on 7 October 2016. At that time I pronounced injunctive restraint orders in open court, as foreshadowed by the reasons. Such orders were formally pronounced then against Mr McLernon. Mr McLernon was a defendant in all four actions.
One of the four defamation actions, CIV 2037 of 2012, was between Mr Billis as the plaintiff and various defendants, but relevantly, against Mr McLernon as first defendant.
In the post‑trial reasons and result, damages for defamation were awarded in favour of all…

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 3]

Details

AGLC: Billis v McLernon [No 3] [2022] WASC 38
Case: [2022] WASC 38
Decision Date

CaseChat Overview and Summary

In Billis v McLernon [No 3], the plaintiff, Mr Anthony Billis, brought a contempt of court application against the defendant, Mr Terence John McLernon, alleging multiple breaches of permanent injunction orders that had been issued against Mr McLernon. The orders had been pronounced by Kenneth Martin J following a defamation trial, in which Mr McLernon was found to have defamed Mr Billis. The permanent injunction orders restrained Mr McLernon from making any future publications containing certain specified defamatory imputations concerning Mr Billis. Mr Billis alleged that Mr McLernon had breached these orders in three ways. The court dismissed the application, finding that none of the alleged breaches had been proven beyond reasonable doubt. The first alleged breach was the failure to remove certain material from blog pages. The court found that while some defamatory material was present on the blog pages, it did not carry the specific defamatory imputations that were the subject of the permanent injunction orders. The second alleged breach was the failure to remove links to certain books from a YouTube channel. The court found that while some defamatory material was present in the books, it did not carry the specific defamatory imputations that were the subject of the permanent injunction orders. The third alleged breach was the approval or acquiescence in the publication of certain material by a third party. The court found that it could not be proven beyond reasonable doubt that Mr McLernon had approved or acquiesced in the publication of the material. The application was dismissed.

Orders