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

1. 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.

2. 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

1. 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.

2. 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. 

3. In the post‑trial reasons and result, damages for defamation were awarded in favour of all three plaintiffs in those actions against Mr McLernon.  Mr Oliver Douglas and Mr Paul Match were plaintiffs in the other actions - namely in CIV 1930 of 2012, CIV 2036 of 2012 and CIV 2308 of 2012. 

4. In Mr Billis' action, CIV 2307 of 2012, a damages award post-trial of $250,000 plus interest issued in his favour against Mr McLernon.  This was in addition to the permanent injunctive orders issued against Mr McLernon.  An award of indemnity costs was also made against Mr McLernon as a result of that action.

5. Relevantly now, only Mr Billis, as the plaintiff in CIV 2307 of 2012, complains by the present action, namely CIV 2439 of 2018, of subsequent alleged defamatory breach conduct by Mr McLernon - as allegedly violating the terms of the permanent injunction orders that were pronounced in court on 7 October 2016 favouring Mr Billis.  Mr McLernon did not attend at the court on 7 October 2016 when my reserved written reasons in Douglas v McLernon [No 4] were published and orders were pronounced then. Various orders across the four defamation actions, including the permanent injunctions orders issued against Mr McLernon, were pronounced at 2.37 pm that day.

6. For convenience, I will append as Schedule A to these reasons the terms of the orders as pronounced in open court against inter alia, Mr McLernon, on 7 October 2016.  Later, at 21 December 2016, the terms of orders including those pronounced earlier on 7 October 2016, came to be formally extracted. 

7. My orders of 7 October 2016, when formally extracted in 21 December 2016 by the lawyers for the plaintiffs, came to be augmented by incorporating some further costs orders - there being further reasons as to the costs orders published that day.  This is explained in Douglas v McLernon [No 4] [2016] WASC 320 (S). Specific attention, however, should be directed towards the terms of the permanent injunction against Mr McLernon seen at par 2 of the formally extracted orders. This order concerned Mr Billis and addressed 19 specifically identified defamatory imputations - as seen listed under subpars (a) through (s) of those orders (see again Schedule A).

8. The permanent injunctive orders had prohibited Mr McLernon vis-à-vis Mr Billis, from '… making, or continuing to make, or causing to be made …' such defamatory imputations against Mr Billis in the future on a permanent basis. 

9. Paragraph 2 of the injunctive orders specified that the permanent injunction had restrained Mr McLernon in respect of '… any future publications containing any imputations that, or to the effect that …'.  It then went on to identify nineteen (19) ensuing as identified subparagraphs vis-à-vis the specific prohibited defamatory imputations concerning Mr Billis (as identified in subpars (a) through (s)), which Mr McLernon was restrained from making again into the future.

10. Schedule B to these reasons is a transcript of the audio record of my open court as pronounced orders on 7 October 2016, including the restraint orders which I pronounced that day against Mr McLernon and relating to Mr Billis.

Current application

1. By this private contempt proceeding, Mr Billis seeks that contempt breach sanctions be imposed on Mr McLernon.  This is by reason of his alleged breaches against aspects of order 2 of the orders I pronounced on 7 October 2016.  

2. In effect, Mr Billis complains of being defamed again by Mr McLernon - and in some of the same as were prohibited defamatory imputations - by conduct subsequent to the 7 October 2016 orders being pronounced. 

3. This court has inherent power to deal with contempt, vested in the court by s 16(1)(a) of the Supreme Court Act 1935 (WA).

Standard of proof

1. It is necessary in a contempt sanction proceeding, such as this, for Mr Billis to prove and establish the alleged breaches against the earlier injunctive orders by the conduct of Mr McLernon.  The onus on a plaintiff is at a standard of proof that is higher than the ordinary standard that is usually applicable in civil proceedings.  Specifically, the required standard of proof for present circumstances, is proof beyond reasonable doubt:  See Witham v Holloway [1995] HCA 3; 183 CLR 525 and Construction, Foresty, Mining and Energy Union v Boral Resources (Vic) Pty Ltd [2015] HCA 21; 256 CLR 375.

2. My reasons in Gallagher v Destiny Publications Pty Ltd [2015] WASC 40 have previously discussed the general principles applicable in a context of a criminal contempt of court application, relating to defamation conduct. I refer to, repeat and incorporate those by reference, [15] through [16] of the Gallagher reasons.

   15.The Law Reform Commission of Western Australia, Review of the Law of Contempt, Final Report (Project 93, June 2003) commences at page 3 with an extract from the judgment of Lord Cross of Chelsea in Attorney-General (UK) v Times Newspaper Ltd [1974] AC 273. His Lordship had said:

   'Contempt of court' means an interference in the administration of justice and it is unfortunate that the offence should continue to be known by a name which suggests to the modern mind that is essence is a supposed affront to the dignity of the court.  Nowadays when sympathy is readily accorded to anyone who defies constituted authority the very name of the offence predisposes many people in favour of the alleged offender.  Yet the due administration of justice is something which all citizens, whether on the left or the right or in the centre, should be anxious to safeguard (322).

   16.Contempt of court is a common law offence in Western Australia. This position is somewhat anomalous, given that the criminal law in Western Australia is otherwise codified by statute. However, s 7 of the Criminal Code (WA) explicitly says:

   'Nothing in this Act or in the Code shall affect the authority of courts of record to punish a person summarily for the offence commonly known as "contempt of court"; but so that a person cannot be so punished, and also punished under the provisions of the Code for the same act or omission."

   See also Supreme Court Act 1935 (WA) s 16(1)(a) as regards the Supreme Court's residual general jurisdiction. I would again respectfully note EM Heenan J's observations in Glew [6], his Honour referring to Temwood Holdings Pty Ltd vWestern Australian Planning Commission [2001] WASCA 298 [11] (Wheeler J); Marriner v Smorgon [1989] VR 485 and Resolute Ltd v Warnes [2001] WASCA 4 (Resolute v Warnes [2001]).

3. And in particular, I would re‑emphasise those contempt of court principles, as enumerated in those Gallagher reasons.

4. Principle 5 (discussed at [22] in the Gallagher reasons), explains what is the exceptional nature of the Court's summary contempt jurisdiction - which must always be exercised with great caution. 

5. Principle 8 (as discussed at [23] to [24] in Gallagher), explains the process around private contempt sanction initiations, which is relevant in this proceeding of Mr Billis.  The principle had been previously discussed by Kirby P in European Asian Bank SG v Wentworth (1986) 5 NSWLR 445, at 458.

6. I refer also to principle 12 from Gallagher (at [32] to [33]) - being that there is no maximum penalty specified for a common law contempt offence. Nevertheless, various sentencing considerations, as are found specified under the Sentencing Act 1995 (WA), provide some level of guidance towards assessing an appropriate penalty for a contempt offence. To that end see observations by Martin CJ as made in Chief Executive Officer, Department of Environment & Conservation v Szulc [2010] WASC 195 at [35] - [36].

Procedural history

1. The present private contempt proceeding has been case managed since it was initiated by Mr Billis, on 15 August 2018.  Over time, the defendant, being the alleged contemnor, Mr McLernon, has attended in person at various directions hearings convened from time to time for the action - as it has progressed over time towards a final hearing.  Essentially, Mr McLernon has always acted in person without a lawyer - as he had during the defamation proceedings and trial against him culminating in the post-trial reasons which became Douglas v McLernon [No 4]. 

2. A deliberate breach of the injunctive orders of a court is a very serious matter.  Defiance by a wilful breach strikes at the heart of the administration of justice.  If proven, such misconduct usually cannot be permitted to escape a condign public sanction by a court.  But, on the other hand, given the seriousness and likely consequences of a charge of contempt, it is always necessary that contentions of breach put against a contemnor in the position of Mr McLernon, be specified clearly.  This is as a matter of basic fairness for the person who stands accused of a common law offence.

3. Over time during this proceeding, various case management directions have issued to the end of clarifying by explicit language the nature of the contempt grievance alleged against Mr McLernon by Mr Billis - requiring Mr Billis' lawyers to provide Mr McLernon with a precise statement of the contempt breach grievances raised against him. 

4. Ultimately, this clarity objective culminated in the plaintiff's further amended particulars document of 11 August 2021 (filed on 11 October) (folio 42).  Essentially, the document raises three distinct charges of contemptuous conduct against Mr McLernon - which he rejects.  I will schedule that document as Schedule C to these reasons, given that the contempt sanction application has ultimately been conducted by reference to this document.

5. The eventual contempt sanction hearing came to be conducted before me in open court on 20 October 2021, on the basis of Mr Billis' three-fold charges of contempt breaches - as assembled under that Schedule C notice of further amended particulars.  I note that Mr McLernon, again, represented himself in person at the hearing without the benefit of legal assistance. 

The evidence adduced

1. The contempt hearing proceeded in open court on the basis of affidavit evidence.  Two affidavits were tendered on behalf of Mr Billis.  These were affidavits by a former solicitor and partner of Mr Billis' lawyers of record, Tindall Gask Bentley - being two affidavits of Mr Samuel Joyce.  Mr Joyce's affidavits mostly appended a diverse array of documentary materials, relied upon by Mr Billis to establish the contempt charges against Mr McLernon.

2. The first affidavit read and relied upon was Mr Joyce's 256 page affidavit sworn 9 March 2018 (albeit first sworn in CIV 2307 of 2012), incorporating its documentary attachments SJ-1 through SJ-20.  I will refer to this material as the 'first Joyce affidavit'.

3. Also appended to Mr Joyce's first affidavit, as a separate exhibit 1, was a USB containing an electronic version of three 'books' which had all been authored and published in the past by Mr McLernon.  Those same McLernon books are referred to in the post‑trial reasons for decision in Douglas v McLernon [No 4] [2016] WASC 320: see [199], [200] and [209b].

4. A second affidavit of Samuel Joyce presently relied upon was sworn on 11 August 2021 (filed on 11 October 2021) in this action.  It contains another nine attachments SJ-1 through SJ-9, encapsulating 96 pages of materials.  I will refer to this affidavit as the 'second Joyce affidavit'.

5. Representing himself at the contempt hearing, Mr McLernon did not seek to tender any formal affidavit materials as evidence.  Consequently, he did not provide any personal evidence resisting the application. 

6. From the bar table however, Mr McLernon did seek to refer to the content of one of his book publications - namely, to his book, titled 'The Fifth Estate'.  I note that the book itself had been put before the court during the 2016 defamation trials, culminating in my post trial reasons for decision Douglas v McLernon [No 4].  Mr McLernon had said back then that he did not remember writing this book at that time:  see [199] of the reasons.  Nevertheless, the whole content of this book is again put electronically before the court for this action by Mr Billis, as a part of the USB that is exhibit 1 to the first Joyce affidavit. 

7. From the bar table, Mr Billis sought to refer me to pages 51, 79 and 184 of that book, The Fifth Estate, as being potentially relevant to a defence put by him against the contempt of court charges (ts 100).  That was the extent of his attempted evidence adduced at the contempt hearing.

Submissions relied upon

1. Mr Billis relied upon a written outline of submissions prepared and filed by his lawyers of record on 15 October 2021 (see folio 44).

2. In a present context of Mr McLernon's alleged breaches of the 7 October 2018 permanent injunction orders, I was referred by counsel to some relatively recent observations made by O'Callaghan J, in a Federal Court of Australia contempt of court decision, Ferguson v Dallow (No 4) [2021] FCA 513 - in particular to [16] of his Honour's reasons.

3. Those reasons do provide, respectfully, a useful five-fold checklist relevant to assessing the pre-requisites for a charge of criminal contempt, arising by reason of a breach of permanent injunction orders of a court - in a context of defamatory imputations published in breach of a court's earlier orders restraining further publication of defamatory imputations.

4. The five-fold Ferguson v Dallow (No 4) criteria of O'Callaghan J are discussed below.  Towards each of them, I will add my own observations relating to the present publication circumstances complained of by Mr Billis.

First criteria - a relevant order is made

1. First, it is necessary to show that a relevant order was made by a court.  For present circumstances, this is established by the terms of the court's permanent injunction orders as issued against Mr McLernon, restraining him from further defaming Mr Billis in the respects as identified.  In particular, see par 2 of the court's orders pronounced against Mr McLernon in open court on 7 October 2016 at 2.37 pm - and later, as extracted under the aggregate post trial orders (including as to costs) of 21 December 2021.

Second criteria - order is clear, unambiguous and capable of compliance

1. Secondly, the terms of the court's order must be clear, and unambiguous and capable of compliance.  Here, the observed terms of the 7 October 2016 injunctive restraint order issued under par 2 against Mr McLernon, essentially speak for themselves to that end:  see Schedule A to these reasons.

Third criteria - order was served on alleged contemnor

1. Third, the order must be served on the alleged contemnor.  Here, my finding is that Mr McLernon came later to be notified of the as pronounced in court injunctive orders of 7 October 2016.  That was by communications to him from Mr Billis' lawyers - found within the first Joyce affidavit as attachments SJ-6 and SJ-8 to the first Joyce affidavit.  Mr McLernon, who had acted in person at the 2016 defamation trial, did not, as I  mentioned, attend at court on 7 October 2016.  But these materials establish that Mr Billis' lawyers, Tindall Gask Bentley, sent a letter to Mr McLernon on 17 October 2016 to a post office box Mr McLernon had nominated in that defamation action for him to be serviced, namely to PO Box Z5392.  That was good service at that time.

2. The lawyers also sent an email attaching the same letter of 17 October 2016 to Mr McLernon's email address, being then, [email protected]:  see the attachment SJ-6 to the first Joyce affidavit.  Additionally, a copy extract from the court's 7 October 2016 published reasons in Douglas v McLernon [No 4] had been attached as an annexure to those communications, including par [335] of the reasons, which recited there the terms of the injunctive orders to issue: see at [335] at item C for CIV 2307 of 2012.

3. By annexure 1, item C, 'CIV 2307 of 2012', particular 2 in that 17 October 2016 communication to Mr McLernon (attaching pages
   88 - 90 from the reasons Douglas v McLernon [No 4]), there are seen listed there, the 19 defamatory imputations, at subpar (a) though (s) vis‑à-vis Mr Billis.  That was in respect of the specific defamatory imputations that came to be pronounced upon in open court on 7 October 2016 (at 2.37 pm) - and to the effect that Mr McLernon was, from then, permanently restrained from making, continuing to make or causing such defamatory imputations as identified to be made in any future publication regarding Mr Billis.

4. Attachment SJ-7 to the first Joyce affidavit shows Mr McLernon sent a 'reply' to the Tindall Gask Bentley 17 October 2016 email communication - by his email to them at 6.13 pm on 17 October 2016.  That communication saw Mr McLernon directing his reply back to Mr Samuel Joyce.  Mr Joyce had signed the Tindall Gask Bentley letter of 17 October 2016 that had been sent by both post and email to Mr McLernon. 

5. Mr McLernon's subsequent email reply back to the email address of Mr Joyce (attachment SJ-7), by its content, self-evidently acknowledged his receipt - and thereby Mr McLernon's admitted notification of the contents of the Tindall Gask Bentley communication to him of 17 October 2016. 

1. Accordingly, Mr McLernon was, at least from 17 October 2016, put then on direct notice of the terms of the court's injunctive restraint orders issued against Mr McLernon as pronounced in open court on 7 October 2016.  Mr McLernon, I find, received direct notice as to the precise terms of the injunctive orders of the Court at no later than 6.13 pm on 17 October 2016.  Notice to him in such respects of the court's injunctive orders made against him is therefore established, I find, beyond reasonable doubt. 

Fourth criteria - alleged contemnor has knowledge of order

1. The fourth criteria as addressed by O'Callaghan J in Ferguson v Dallow [No 4], is to show that 'the alleged contemnor had knowledge of the terms of the order'.  This is likewise, I find, established here beyond all reasonable doubt - by reference to essentially the same matters as canvassed above concerning the third factor.

Fifth criteria - deliberate and voluntary breach of order

1. The last of the five criteria, as identified by O'Callaghan J, is to prove that a contemnor both deliberately and voluntarily has breached the terms of a court's permanent injunction orders, made against that person.  This factor essentially remains as the central disputed issue in the hearing.  It presently arises for a determination at this contempt hearing - at the required standard of proof of beyond all reasonable doubt by Mr Billis.

The three charges of breach in contempt of the court's injunctive orders

1. I now turn back to expose in more detail each of the three charges of contempt, as they are put by Mr Billis against Mr McLernon, by the notice of further amended particulars of 11 August 2021 (Schedule C).  All three (3) charges of contempt are denied by Mr McLernon and must be proved beyond reasonable doubt. 

The first charge - blog page material

1. By the first charge as particularised, and seen under Schedule C to these reasons, the essential contention from Mr Billis is that across an almost 22 month period (between 17 October 2016, until at least 13 August 2018), that Mr McLernon had wilfully disobeyed order 2 of the permanent injunctions - as issued against him on 7 October 2016.  This is alleged to be, in effect, by reason of Mr McLernon knowingly failing to remove, from two of Mr McLernon's blog pages, the allegedly defamatory materials found there - and carrying some of the prohibited defamatory imputations concerning Mr Billis.

2. Through correspondence, Mr McLernon has denied any personal control or responsibility for the websites - which are identified under the particulars - and are referred to collectively as 'Blog Pages' by the first charge. 

3. The first charge is seen contended to arise in five respects.  The plaintiff alleges that the published material had violated par 2f, i, o, q and r of the court's injunctive orders. 

4. Assuming it were to be established (beyond reasonable doubt) that Mr McLernon were the publisher, or was in control of, or was responsible for the alleged defamatory material remaining accessible and viewable upon the Blog Pages - then the ensuing liability question remaining, would be whether the Blog Page material did in fact breach the permanent injunctions.  That would be so, if the Blog Page material were shown to bear any of the five, as specified, defamatory imputations vis-à-vis Mr Billis - as charged in the notice of further amended particulars (Schedule C) and the subject of the court's prohibition, under the orders of 7 October 2016. 

5. The first task is to consider the Blog Page material itself from a defamation of Mr Billis perspective - to which I turn. 

McLernon Blog Page material

1. The material of concern from out of the Blog Pages is a subject of the first charge before this court.  It is found as attachment SJ-3 to the first Joyce affidavit. 

2. The 11 August 2021 further amended particulars identify the Blog Pages defamatory material as essentially being five-fold - remembering the first charge is that Mr McLernon intentionally disobeyed the orders of the court by 'knowingly failing to remove (that) material' (from the Blog Pages).  I refer specifically then to the material as identified at pages 2 and 3 of the 11 August 2021 particulars - and I refer to pars 5 to 9 of Mr Joyce's first affidavit.

3. The first charge particulars refer to two Blog Pages (one with a .com.au identification and one without any '.au' designation - therefore indicating an international website).  Mr Joyce's affidavit (under par 7) mentions only an Australian website (i.e., 'au') - defined as the 'Blog Website'. 

4. That Australian website location reference is in accord with the printout of the Blog Pages that Mr Joyce appends via par 8 of his first affidavit - and marks as his attachment SJ-3.

5. These Blog Pages materials extend over pages 39 through 41 of the first Joyce affidavit - with the substantive content as presently complained of, manifesting on page 40.  A blogspot.com.au reference may be seen at the bottom of that page. 

6. The top of the same page 40 is seen to carry a heading 'The McLernon Files: Anton "no balls" Billis'.  Beneath that is another observed heading, 'The McLernon Files'. 

First charge - evaluation

1. The initial question is whether any of the five components of allegedly infringing materials complained of, under the particulars to the first charge, are found located upon this website and in the relevant time period.  The answer to that prerequisite question must be in the affirmative. 

2. The aspects of material in respect of which the first charge contempt grievance is grounded - based on the materials not being removed after 17 October 2016 injunctive orders. are:

   a.photographs of (Mr Billis);

   b.the text, 'ANTON NO BALLS BILLIS;

   c.the text, 'FAT WALLET MOB';

   d.the text reading, 'I keep looking for gold miners and all I end up finding are IMO money-launderers.  Anton must be best friends with ASIC by now'; and

   e.the text reading, 'Looks cheap based on the inventory numbers and future production, but the real question is will Anton, Otakar & co share the funds with fellow shareholders or just divert the company assets to self-owned companies'.

3. All that material I find beyond reasonable doubt is proved as being published on the Australian blog page as identified at page 40 of the first Joyce affidavit.

4. The five as identified above materials, under the first charge of breach, constitute the allegedly infringing material - in respect of which it is said there was a knowing failure by Mr McLernon to remove it from the website.  However, any defamatory meanings vis-à-vis Mr Billis carried by those five aspects of material must be assessed in the surrounding context of the overall Blog Page context. 

5. Essentially, that is an exercise to be conducted by reference to what is seen with and around all that identified material at page 40 of the first Joyce affidavit.

6. By reference to the observed page 40 notation 'Monday, 15 June 2015', I find that the blog materials as complained of, look to have been posted to this Blog Page website at some time prior to the defamation trial of 2016.  And so, that was well before the post-trial reasons for decision in Douglas v McLernon [No 4], delivered 7 October 2016.  The issue then is over its non-removal from that website by Mr McLernon, after 17 October 2016.

7. I find that it is proven beyond reasonable doubt that the five aspects of these materials, as complained over by Mr Billis, were all present on the Blog Page - as from 15 June 2015.  The key question is whether, if evaluated in overall context, the material can be found to carry any of the five defamatory imputations concerning Mr Billis
   - particularised under the particulars to the first charge, and being a subject of the court's permanent injunction orders 7 October 2016 under par 2 therein against Mr McLernon.  The short answer is that I find the material does not carry those prohibited defamatory imputations, as I proceed to explain. 

Did the Blog Page material carry any of the five defamatory imputations identified?

1. The five materials, as complained of under the first charge, are identified by reference to as nominated five defamatory imputations, as prohibited at 7 October 2016 under orders 2f, i, o, q and r (Schedule A) - and which Mr Billis complains had not been removed from the Blog Page in question by Mr McLernon. 

2. The first defamatory imputation, said to be carried and published in breach of the orders vis-à-vis Mr Billis, is the 2(f) prohibited defamatory imputation.  Namely, that Mr Bills 'is the head of an organised crime gang called 'the 'Fat Wallet Mob'. 

3. Bearing in mind that a charge of criminal contempt must be proven at a level of proof that is beyond reasonable doubt, I am not, at the end, persuaded that the par 2(f) defamatory imputation is ascertainable as being carried by the content of this Blog Page - for the object of making good this aspect of the first charge. 

4. Reference is seen there to 'the Fat Wallet Mob', along with other material complained about.  Nevertheless, I do not assess it as establishing that the particular defamatory imputation 2(f) presents
   - namely to say that Mr Billis is 'the head of an organised crime gang'.  A bare reference as observed to a 'Fat Wallet', or a 'Fat Wallet Mob', is not enough, without more, to prove the 'organised crime gang' head defamatory imputation is ascertainable.  I find it not to be.

5. It may be accepted that this Blog Page (page 40) displays content that is less than coherently assembled.  It is written and presents in a rambling and disoriented fashion, rendering it something of a challenge to make much sense of. 

6. I accept also that this Blog Page content did defame Mr Billis.  For instance, by references made towards him by use of the term 'money‑launderers', or further, by its reference to Mr Billis being 'friends with ASIC' (no doubt a reference to the Australian Securities & Investments Commission).  He was defamed further by the question seen as posed there, as to a diverting of company assets to self-owned companies.  However, that is not the contempt charge point now at issue.  None of the material goes even arguably, I conclude, to show an existence of the precise as charged defamatory imputation that Mr McLernon was restrained from further publishing on 7 October 2016 by order of this court - namely as to an 'organised crime gang'.  More would be required to be found on the page to derive that precise defamatory imputation against Mr Billis - in order to prove the relevantly charged breach against the court's orders - rather than to pursue a fresh defamation action in a distinct and fresh wrong. 

7. That same negative analysis result must also be found, on my view, for the alleged breach transgressions as raised against Mr McLernon against order 2(i) and order 2(o) of the 17 October 2016 - vis‑à‑vis Mr Billis being the 'head of a crime gang' and being 'a gangster who is part of a criminal gang'. 

8. From the relied upon Blog Page particularly at page 40 of the first Joyce affidavit, I do not assess either of those two defamatory imputations as arising to the eye of the ordinary, reasonable reader.  I do detect, as I have said, some other defamatory imputations there against Mr Billis - but again, that is not the point presently in the context of a contempt sanction hearing. 

9. The relevant point is whether the terms of the 7 October 2016 injunction orders ever came to be infringed by a continued display of this blog material - as it is seen complained of on this page, assessed in context. 

10. On my view, as regards the precise defamatory imputations that were prohibited under the orders of 7 October 2016 concerning Mr Billis, and specifically charged as pars 2(f), 2(i) and 2(o) of those orders, that this charge is not proven.  I find none of those defamatory imputations as regards Mr Billis can be discerned to arise from out of this material. 

11. For the first charge, a further contempt transgression is alleged present ‑ as against order 2(q) - which had prohibited Mr McLernon from, in effect, publishing any further defamatory imputation that Mr Billis had 'illegally appropriated company funds for his own use'.

12. By reference mainly to the Blog Page seen at page 40 of the first Joyce affidavit, I am again not satisfied that this precise defamatory meaning has been shown as arising there, assessed at the standard of proof beyond reasonable doubt - evaluated by reference to the material found on that Blog Page.  An observed textual reference to 'money‑launderers', is not enough.  The crime of money‑laundering is a different species of criminality and misconduct to that of illegally (mis) appropriating company funds.  Nor does a cryptic blog page textual reference to 'ASIC' help show as arising the particular criminality aspect around this charge, as regards showing the 'sting' of an illegal appropriation of company funds. 

13. Again to be very clear, I am not saying Mr Billis has not otherwise been defamed by what can be found on page 40.  My finding is only that he was not defamed here in the particular order 2(q) aspect of the prohibited 7 October 2016 imputations, as alleged. 

14. The last alleged contemptuous transgression against the 7 October 2016 orders and arising in the same blog page material is charged to be - as against par 2(r) of the injunctive orders. 

15. This defamatory imputation, which came to be prohibited from further publication under the court's 7 October 2016 orders vis-à-vis Mr Billis, was that Mr Billis:

    2r.has illegally transferred money from companies of which he is a director overseas, so that shareholders in the company do not receive dividends;

    …

16. For that particular defamatory imputation to be found arising from out of the Blog Page, the charged imputation would need, on my assessment, to be found to emerge from out of the page 40 paragraph text commencing, 'looks cheap based on the inventory numbers…'.  I see there, on the blog page, reference by that text to a question raised about what is to happen with 'funds' in the future.  But that, I find, is not the particular defamatory imputation 2(r) that is complained of as being published - in breach of the court's 7 October 2016 orders.

17. So seen, order 2(r) prohibited a further publication of a defamatory imputation in respect of an illegal transfer of money that had taken place.  The past tense as used is materially different to what is on blog page 40, which addresses the future. 

18. Nor do I find any supporting reference from the text of this Blog Page to an overseas, transaction or to an overseas company.  Instead, I can only detect a reference to a suggested diverting of company assets to self-owned companies - being the question as posed there seen on page 40. 

19. By my assessment, the text 'looks cheap' on the Blog Page may well be assessed as being otherwise defamatory of Mr Billis.  But my conclusion is that this text is not relevantly defamatory of Mr Billis in the particular defamatory imputation respect as charged - and which is the subject of the court's 7 October 2016 prohibition orders, under par 2(r).  A precise breach of the 7 October 2016 orders in the defamatory imputation respects as identified and charged needed to be proved beyond reasonable doubt.  This has not been shown. 

Conclusion - first charge fails

1. As now evaluated, none of the aspects of the first charge of contempt against Mr McLernon have been established.  The charge must fail.

2. However, I otherwise would find (were it otherwise ever required) from out of all the hearing evidence, that it has been proven beyond any reasonable doubt, that notwithstanding Mr McLernon's denials otherwise (by correspondence) - that Mr McLernon was indeed at relevant times the owner, or operator, or controller of this particular Australian blog website:  see pars 5 to 9 of the first Joyce affidavit.  That identification conclusion is supported by the acknowledgement to be found in a 2017 document titled 'Deed of Settlement, Acknowledgement and Undertaking' - and carrying Mr McLernon's signature, found at attachment SJ-5 to the second Joyce affidavit.  In that deed, a definition for 'McLernon blogs' (at page 21) is defined as 'the blog owned, operated and administered by McLernon':  see ts 65 to 66.  I observe what looks to be Mr McLernon's signature on that deed which is also seen to be witnessed on the last page (page 30 of that affidavit). 

3. A Tindall Gask Bentley letter sent to Mr McLernon by post and email of 17 October 2016 had asked him clearly enough to cease the display this blog material:  see again attachment SJ-6 of the first Joyce affidavit.  It was within Mr McLernon's ability to bring about that result.  That did not occur. 

4. In the end, however, charge 1 is not made out and wholly fails. 

The second charge - material on YouTube channel

1. I turn to the second charge which again, may be ascertained for its detail by reference to the plaintiff's notice of further amended charge particulars - found in Schedule C to these reasons. 

2. The second charge contends for two distinct series of alleged contemptuous breach conduct by Mr McLernon against the 7 October 2016 injunctive orders - by reason of his failing to remove the links to alleged defamatory material from a YouTube channel said to be controlled by Mr McLernon.  The alleged breach conduct spans, however, only the two respective periods of five days (19 October 2016 to 24 October 2016) and then, over a later period of six days (17 November 2016 to 23 November 2016).  

3. A further charge breach grievance, by reference to par 2 of the particulars as provided (Schedule C), is contended by reason of Mr McLernon's alleged conduct in 'knowingly failing to remove links to material from a Youtube website'.

4. Unlike for the previously mentioned Blog Pages under charge 1, the hearing evidence over charge 2 sees Mr McLernon expressly admit that the Youtube channel was his.  To that end, I refer to attachment SJ-7 to the first Joyce affidavit.  This displays Mr McLernon's responsive email as sent to Mr Joyce at 6.13 pm on Monday, 17 October 2016, reading:

   I certainly do have a Youtube account/site whatever…. the book you are referring to was written... many, many years ago and have been sold out.  I do not however have a blog site called McLernonfile, nor do I operate/control or contribute to the site titled McLernon file Blog.  I will look into the matter and see what I can do by friday next …

5. The second charge grievances as to contemptuous breach conduct are tied heavily to the Tindall Gask Bentley communication of 17 October 2016 (attachment SJ-6 to the first Joyce affidavit).  The communication, at that time, had demanded a removal of the link to the McLernon books from Mr McLernon's YouTube channel.  The books are said to carry some of the prohibited defamatory imputations made against Mr Billis as the subject of the court's prohibition orders of 7 October 2016. 

6. Despite that demand made to Mr McLernon to remove the links, Mr Billis alleges that there was a five day period of transgression
   - spanning 19 October 2016 until 24 October 2016 (a period of five days):  see par 2(a) of the particulars.

7. A second breach period of alleged transgression under par 2(b) of the particulars is for a six day later period, spanning from 17 November to 23 November 2016. 

8. Under the second charge, Mr Billis alleges that Mr McLernon engaged in breach conduct against the court's orders, by the publishing of (live) (hypertext) links to the McLernon books - via the YouTube channel.  These are the three McLernon books titled 'The Fifth Estate', 'Every Bit Of The Circle Is Bent', and the third book, 'If The Hat Fits Wear It'.

9. The Tindall Gask Bentley letter communication of 17 October 2016 (attachment SJ-6 of the first Joyce affidavit) sent on behalf of Mr Billis to Mr McLernon complained of the live hyperlinks on the YouTube channel.  The letter, in part, also told Mr McLernon:

   We are instructed that you are also currently operating a channel on Youtube.  We note that:

   ·on 20 September 2015 you have posted a video on that channel at the following link… The description section immediately below the video includes a hyperlink to an electronic copy of a book titled The Fifth Estate.  You are the author of this book.  The book contains material which constitutes a breach of the Injunction.

   ·you have posted a video on the Youtube channel at… The description of this video contains a hyperlink to an electronic copy of a book titled Every Bit Of The Circle Is Bent.  You are the author of this book.  The book contains material which constitutes a breach of the Injunction.

   Our clients demand that you immediately remove hyperlinks to the electronic version of your books from these two Youtube videos and any other sites on which the hyperlinks appear … .

1. From the limited temporal duration periods underlying the second charge, it is open to infer that there was a once live hypertext link to the three Mr McLernon's books, namely to 'If The Hat Fits Wear It', 'The Fifth Estate' and 'Every Bit Of The Circle Is Bent', but that the live link came to be deactivated for a period after 24 October 2016 (being the first alleged breach period). 

2. However, it is complained that the deactivation of that link did not hold.  It is said that, in due course, once again live hypertext links to the same McLernon books had manifested again - over a six day period from 17 November to 23 November 2016 (the second alleged breach period).  All of that is now of course sometime in the distant past, viewed in early 2022. 

3. Paragraph 10 of the first Joyce affidavit refers to a search that he had conducted, at on or about 7 October 2016, of a website located at 'Youtube.com' and to his own resultant finding of a 'channel'.  Mr Joyce, by his attachment SJ-4, refers to a copy of certain printouts that he says he made at the time from that YouTube channel as it had appeared. 

4. Under pars 16 and 17 of the first Joyce affidavit, he mentions a subsequent Tindall Gask Bentley letter that is attachment SJ-8.  This, he relates, had been sent to Mr McLernon on 19 October 2016.  By par 17, Mr Joyce says that Mr McLernon's email, sent back as a response at 24 October 2016 (attachment SJ-9), had then advised in the 'subject time' that the online links for all McLernon books had at that time been removed.  The correctness of that reply by Mr  McLernon to Mr Joyce appears to be accepted - given the base five day time span of the alleged first breach conduct across only 19 to 24 October 2016.

5. The second alleged breach conduct stems from an alleged November 2016 reactivation of live hyperlinks to the McLernon books, is a conclusion said to arise out of some email screenshots for the same YouTube channel.  These screenshots had been provided at the time to Mr Joyce by another person (Mr Oliver Douglas) via an email on 23 November 2016 (par 18 of the first Joyce affidavit).  Mr Joyce has then attached the as provided email screenshots of the YouTube channel showing links, as his attachment SJ-10. 

6. Receipt of that information from Mr Douglas duly led Mr Joyce, through his then law firm Tindall Gask Bentley, to forward a further letter to Mr McLernon of 25 November 2016 - complaining again at then, of an alleged reposting of active links to the McLernon books (par 19 to the first Joyce affidavit and attachment SJ-11). 

7. The second contempt charge raised against Mr McLernon seems to suggest that (by implication) a reactivated live hypertext link to the McLernon books was removed by 23 November 2016.  Such a time of removal or deactivation was two days before the Tindall Gask Bentley letter of 25 November 2016 sent to Mr McLernon (attachment SJ-11) asking him to do that himself. 

8. Facts underlying an implicit termination (or deactivation) of a live hypertext link to the McLernon books at 23 November 2016, were not otherwise explained by the hearing evidence.  It would only be speculation to attribute the eventual termination/deactivation of the links to the Tindall Gask Bentley demand received by Mr McLernon at or after 25 November 2016, especially because cessation had come about (as I infer) some two days before. 

9. As regards the second charge of contempt, it is also important to appreciate that it is not the continued open online circulation of the three McLernon books that is contended to be the relevant breach conduct said to have violated the 7 October 2016 permanent injunction orders.  Rather, it was only an existence of live hypertext links to those books, from the YouTube channel of Mr McLernon, across the two specified time periods charged, that was the subject matter of the second charge tranches of breach conduct put against Mr McLernon. 

10. As properly pointed out by counsel for Mr Billis at the hearing, the defamation trial reasons in Douglas v McLernon [No 4] did not have occasion then to assess the contents of any of the McLernon books as being defamatory subject matter publications against Mr Billis - in the imputation respects as identified under par 2 of the permanent injunction orders of 7 October 2016.  The 2016 defamation trial had been run by reference to other alleged infringing defamatory matter publications - to be found elsewhere than within the three McLernon books. 

11. In these contempt proceedings it is now fully alleged, by reference to par 2a(i) and (ii) of the second charge particulars, that extracts from the two of the McLernon books, namely, 'If The Hat Fits Wear It' and 'The Fifth Estate', requires evaluation from a defamation perspective.  Ultimately, the question is whether those as identified book materials under the second charge as extracted from out of chapter 1 of the book 'If The Hat Fits Wear It', and from out of chapter 17 of the book 'The Fifth Estate', will actually sustain any of eight alleged prohibited defamatory implication contemptuous infringements, as raised towards the alleged breaching the 7 October 2016 orders (see page 5 of the notice of particulars) by Mr McLernon.

12. By reference to the terms of the second charge, the alleged breach by Mr McLernon constituting his alleged infringements as against the 7 October 2016 injunctive orders, specifically under par 2b, f, i, l, m, n, o, q and r of those orders - are said to have happened by reference to the events of there being active hypertext links to the McLernon books from the YouTube in the two relatively brief periods of days mentioned in 2016. 

13. As I will further explain, a bringing about of an activated and operable live hypertext link to another defamatory publication would, as I can assess the current state of the Australian law, arguably constitute the publication of the material so linked to - for defamation publication purposes:  see the reasons of Beech-Jones J in Visscher v Maritime Union of Australia (No 6) [2014] NSWSC 350. I have discussed that decision in Du Buisson Perrine v Carello[2018] WASC 392 [71] - [77]. See also Steward J in Fairfax Media Publications Pty Ltd v Voller [2021] HCA 27 at [161] referring to Visscher v Maritime Union. I will presume for the purposes of a hearing that a live hypertext link in publication A to a defamatory content in publication B is still capable of being a defamatory publication.

14. I next proceed to evaluate in turn, each of the alleged defamatory material identified at par 2(a)(i) and 2(a)(ii) of the particulars - by reference to the eight (8) relevantly contended defamatory imputations prohibited under the injunctive orders of 7 October 2016. 

Assessment - extract from 'If The Hat Fits Wear It'

1. First, I turn to the material from out of the book 'If the Hat Fits Wear It', which is identified at par 2(a)(i) items 1 and 2.

2. There does look to be some generally defamatory material published of and concerning the plaintiff, Mr Billis, located within chapter 1, page 15 of the book, as identified at item 1 of the particulars.  For instance, see references to 'he and his mates in manipulation ... the core of the rotten apple … and this poor struggling criminal'. 

3. However, once again, those defamations are not the present question. 

4. The relevant and distinct issue underlying this contempt hearing is whether material published after 17 October 2016 contains, or is to the effect of some or any of the precise defamatory imputations, as they have come to be identified and charged under the notice of particulars. 

5. Considering closely each of the eight contended defamatory imputation transgressions raised by charge 2, I am not at the end persuaded that any of them have been shown as arising from out of this extract component from this particular McLernon book. 

6. Concerning the 'organised crime gang' imputation, or as to a 'criminal gang', or 'crime gang', I must observe that there is only found from the book extract its reference to a 'FAT wallet mob' in the extracts, as identified.  That is not enough by itself.  Saying someone has a 'fat wallet' per se, is not defamatory.  Indeed, it may well be a complimentary observation, indeed a laudatory one, especially to days past - when cash was once physically carried in a wallet. 

7. As I have said earlier, a person being part of a 'mob' per se, is not defamatory.  Much depends on the nature of the 'mob' - weird or otherwise, particularly in Australia.  More would be needed here to find a defamatory imputation.  It is some level of logical leap to argue that a bare reference to a 'mob' equates an organised crime gang, or to that of a gangster, or to a criminal gang.  Bearing in mind that the contempt breach standard is proof beyond reasonable doubt, I am not at the end left persuaded that any of the charged particular prohibited defamatory imputations, as nominated by charge 2, can be found arising from out of the extract from the McLernon book 'If the Hat Fits Wear It'. 

8. Nor am I satisfied that par 2(q) of the 7 October 2016 orders prohibited defamatory imputation as to illegal appropriation of company funds for his own use, or as to an illegal transfer of money from companies (order 2(r)) - are shown as arising from the extract passage of the McLernon book relied upon.  The passage within par 2(a)(i) of the particulars is directed at a somewhat distinct topic - namely, to a lack of corporate dividends paid to shareholders of a corporation.  But the non‑payment of a corporate dividend per se, irritating as that may be to a shareholder, does not rise to a level of suggesting any necessarily associated illegal appropriation of company funds for personal use or, for that matter, to suggest an illegal transfer of money. 

9. Consequently, I am not at the end satisfied as to a transgression against the permanent injunction orders, as issued by the court at 7 October 2016 by reference to my analysis of the contents of the extract of the (hypertext) linked McLernon book, 'If The Hat Fits Wear It' - as alleged by the particulars of the second charge against Mr McLernon. 

Further assessment - extract from 'The Fifth Estate'

1. Next, I turn to evaluate the further second charge aspects concerning the extract from the McLernon book entitled 'The Fifth Estate' - as articulated at par 2(a)(ii) of the particulars.

2. From chapter 17, page 192 from out of that book is an extracted passage complained about under charge 2 as breaching the court's injunctive orders of 7 October 2016.  The passage reads:

   THERE WAS ONE VERY UNPLEASANT YEAR when the FAT Wallet Mob gave me a fair bit of curry.  First, there was the firebomb in my home, followed by my car taking a Molotov cocktail of some type which incinerated it pretty much along with a bunch of files I had in the trunk.  I think a 'hit' was ordered but the instructions were gibberised because the FAT Wallet Gang was not that smart at that. 

3. However, again, I am not left satisfied, by reference to the terms of this extract passage, that there is anything enough there to justify a finding of a breach against any of the charge 2 complained of 7 October 2016 prohibited defamatory imputations.  As to meanings that Mr Billis was either devious, untrustworthy or morally bankrupt (order 2(b) of the 27 October 2016 orders) - they simply do not arise from that extract.

4. Nor do I detect any sufficient material from out of that extract to support the second charge grievance that it carries the imputation prohibited by orders 2(f) and 2(i), namely that the plaintiff is the head of any particular crime gang, organised or otherwise.  Consequently, I can find no transgressions against orders 2(b), (f) and (i) discernible from out of this extract. 

5. However, a further defamatory imputation as prohibited by order 2(l) of the court's injunctive orders was that Mr Billis 'acting with a criminal gang called the Fat Wallet Mob, firebombed Mr McLernon's house'.  On my view, that defamatory imputation is ascertainable from this book extract - to the ordinary reasonable reader. 

6. There is enough in the extract passage to support that particular imputation as identified by order 2(l).  For example, reference to the 'Fat Wallet Mob' and a meaning as to the 'Fat Wallet Gang' being a criminal gang, is present.  Necessary criminal conduct is also found referred to in the extract, being a firebomb.  Further, a 'Molotov Cocktail' is mentioned.  That leads to an affirmative derivation of this defamatory meaning being found there - as to criminal conduct.  The conclusion is also reinforced by the observed reference to a 'hit' being ordered.  

7. Hence, I do find that the defamatory imputation under order 2(l) prima facie is established and hence that the injunctive order was breached, by reference to what had been published in the 'The Fifth Estate' book extract in chapter 17 at page 192 - but subject to Mr Billis being sufficiently identified there as being a member of the 'Fat Wallet Mob' that is referred to. 

8. By essentially, the same path of reasoning, a prima facie breach against prohibited defamatory imputation orders under par 2(m) can also be found within this book extract.  This arises from the extract's reference to the incineration of Mr McLernon's car by a type of 'Molotov Cocktail' that was undertaken by the same Fat Wallet Mob, or the Fat Wallet Gang.  Again, that would be defamatory - were Mr Billis sufficiently identified as a member of the mob or gang as referred to.

9. I am also satisfied, essentially by the same path of reasoning, that contrary to order 2(o), a passage from page 192 of 'The Fifth Estate' book bore a further prohibited defamatory imputation.  This was that (unnamed) members of the 'Fat Wallet Mob' were gangsters, who were a part of the criminal gang so named. 

10. Critically, however, I find nothing in the extract within the second charge particulars to support a further finding that Mr Billis is identified there as being a member of this 'Fat Wallet Mob'.  His express identification as a member in the other McLernon book - is not to the point towards this particular book passage being complained of.  The lack of identification of Mr Billis in these passages is fatal.

11. Hence, I am of the end view that no defamatory imputation against Mr Billis is carried from out of this extract material from page 192, chapter 17 from the book 'The Fifth Estate'.

12. Further material as is relied upon by charge 2 is a book extract reference (at page 196) from the same McLernon book, 'The Fifth Estate' to a Summary of financial dealings for [a person called] Giovinazzo and Bank Accounts of Convenience:  see particulars par 2(a)(ii), item 2. 

13. This allegation against Mr McLernon relies upon a book reference to still unnamed members of the 'Fat Wallet Mob' holding shares in 'Rand Mining NL' and 'Tribune Resources NL'.  The words 'amazing exposure of intermingled financial dealings' are pointed to from out of this extract as well. 

14. But none of that as identified material is enough to reasonably locate any of the eight prohibited defamatory imputations as charged, found in order 2 of the court's orders of 7 October 2018 - to show a prima facie case of transgression against the permanent injunction orders. 

15. A third part of charge 2 material source of material is from out of the same McLernon book, 'The Fifth Estate' by its 'numerous references' to the 'Fat Wallet Mob'.  But as I have observed earlier, bare references to a 'Fat Wallet Mob' is not enough to be defamatory - without some accompanying extra surrounding pejorative material.  For example, reference to a criminal act carried out by that mob or gang is required so as to constitute a potential defamation against the court's permanent injunctive orders.  And, of course, a necessary identification of Mr Billis as to his being a member of the 'Fat Wallet Mob' is missing from this extract.

Second charge - evaluation

1. From out of the book materials extracted and relied upon to support the second charge, I ascertain no express identifying reference to Mr Billis from within it ‑ identifying him proximately there as being a member of the 'Fat Wallet Mob'.  It may be that Mr Billis is identified at other parts of this book.  But that is not what is complained of under the charge 2 particulars - by par 2(a)(ii), items 1, 2 and 3. 

2. Consequently, I must conclude at the end that it has not been established that the charge 2 extracts as are relied upon from the 'The Fifth Estate' book and evaluated as regards orders 2(l), 2(m) and 2(o) of the permanent injunctions of 7 October 2016, can be made good by reference to a result of active hypertext links to this book over the periods of days as alleged. 

3. I also find, by reference to the first Joyce affidavit, that a once active hypertext link subsequently came to be removed or deactivated for a time.  Consequently, any violation of the prohibitory injunction (had Mr Billis otherwise been personally as a Fat Wallet mob member identified in these extracts) as found, was relatively short-lived (as to a matter of mere days) and occurred some time ago in 2016.

4. Even then, if otherwise proven, a publication transgression of such short durations would approach the trivial - given the hypertext link from the YouTube channel was likely already established and active
   - at times well before the orders of 7 October 2016.  The link came to be deactivated within a handful of days after the first Tindall Gask Bentley request of 17 October 2016 - to remove the link to those McLernon books (attachment SJ-6 to the first Joyce affidavit).

5. The relative triviality of such a breach is reinforced on the evidence by the fact that the McLernon books still seem to be in circulation, at least electronically somewhere online.  Here it was the live link to them complained of, not the publication of the books themselves.

6. A more potentially significant contempt conduct might arise under the second charge particulars ‑ by reference to a revival or reactivation of the live hypertext link across a six day period between 17 and 23 November 2016 (see again particulars par 2(b)). 

7. But even so, the second charge as regards a revived and active hypertext linkage to the McLernon books across a six day period in November 2016, presents as still both temporally brief.  The revival period active link incident was otherwise largely unexplained by any evidence as to how the reactivation of a live link came about. 

8. The second charge also contends against Mr McLernon that 'you intentionally disobeyed the orders by publishing the links to the McLernon books'.  The only McLernon book link that is relevant in this sense (had Mr Billis been sufficiently identified), was the link to the 'The Fifth Estate' book, as regards an infringement of order 2(l) - and order 2(m) concerning the firebombing of Mr McLernon's house and the Molotov Cocktail incident with a car and additionally order 2(o), which is related.

9. A six day November 2016 reactivation period for an active hypertext linkage to that book is otherwise essentially left unexplained.  What then is the basis for me to find that this live link was by way of some act of intentional disobedience - perpetrated by Mr McLernon against the court's 7 October 2016 orders?

10. To reach that conclusion, I would essentially be asked to infer, by reason of an existence for a period of days of an operative hypertext link, that there had been an intentional violation of the court's orders by Mr McLernon.  The first Joyce affidavit contains screenshots as they came to be emailed to Mr Joyce by Mr Oliver Douglas, as attachment SJ-10.  The photocopied screenshot seen at page 109 says 'published on 17 November 2016'.  Below that is reference to the 'book 2 link', that I can find to be a reference to 'The Fifth Estate' book.  It is not suggested that the observed higher green bordered reference to words 'link to book in description', was ever an active hypertext link. 

11. But it is suggested that the dropbox.com/s/hyperlink was active.  What is the evidence for that?  I see none.

1. By reference par 18 of the first Joyce affidavit, all that I can find is merely some patently hearsay evidence as to what Mr Oliver Douglas had emailed to Mr Joyce and concerning what Mr Douglas had verbally told Mr Joyce that he (Mr Douglas) had viewed on the YouTube channel. 

2. The hearsay evidence from Mr Douglas was not objected to by Mr McLernon - as an in person litigant.  That is hardly surprising.  Even so, the evidence is not persuasive enough in all the circumstances, as a matter of weight to sustain a charge - that needs to be proven beyond reasonable doubt.  References to 17 November 2016 (page 109) for 'If The Hat Fits Wear It' and 17 November 2016 (page 110) for 'Every Bit of a Circle is Bent' and 16 November 2016 (page 111) for 'The Fifth Estate', do not at the end persuade me that those dropbox hypertext links were active at such times.  Relevantly, for charge 2, I am only concerned here with proof as to an activated drop box link for 'The Fifth Estate' at 16 November 2016, as seen at page 111 of the first Joyce affidavit.  This is not sufficiently proven, I find.  In any event, the active link charge is not contended to have extended beyond 23 November 2016 - being some two days before the Tindall Gask Bentley demand letter of 25 November 2016 (attachment SJ-11 to the first Joyce affidavit). 

3. Absent better evidence, I am not prepared at the end to infer that a brief period of 2016 active hypertext linkage to The Fifth Estate book, and otherwise left unexplained, had occurred as a result of an act of intentional disobedience by Mr McLernon against the court's orders of 7 October 2016.

4. Moreover, as mentioned, the charge 2 complaint was not over the ongoing publication McLernon books themselves breached the orders of the court.  Instead, it was found as to the live activated linkage periods to those books.  The end position is that the first transgression, which is for the period between 19 and 24 October 2016, was trivial, even if otherwise proved. 

5. For the second period of six days across November 2016, I would conclude in any event that no international breach of the court's orders by Mr McLernon has been proven beyond reasonable doubt.

6. As a result, charge 2 will also be dismissed.

The third charge - republication of other materials

1. By reference to the 11 August 2021 further amended particulars, a third charge contention of an 'intentional disobedience' of the orders made on 7 October 2016, occurred by way of Mr McLernon allegedly 'consenting, approving or acquiescing to the publication of material by a third party' (see par 3 of particulars). 

2. This third charge contention then alleges that certain categories of infringing materials came to be published by an individual who was then identifying as Brendon O'Connell - by an email of 17 October 2016 sent to Mr McLernon and copied to others, including Mr Samuel Joyce of Tindall Gask Bentley (the lawyers of record for Mr Billis):  see attachment SJ-8 at page 101 to 103 of the first Joyce affidavit.  The infringing materials as identified on a four-fold basis by the particulars, are:

   (a)photographs of Mr Billis;

   (b)the words 'DEFAMED SAINT LIKE BUSINESSMAN ANTON BILLIS COMES FOR TERENCE McLERNON WITH BASEBALL BAT; SMASHES CAR WINDOW;

   (c)the words 'FIREBOMBS HIS CAR AND HOUSE'; and

   (d)the words 'SITS ON A BILLION DOLLARS WORTH OF GOLD IN THE PERTH MINT TO AVOID PAYING DIVIDENTS--- ETC, ETC, ETC [sic]'. 

3. Such materials assessed either separately, or together, are said to give rise to some of the prohibited defamatory imputations against Mr Billis, being the subject of prohibition of the court's 7 October 2016 orders 2(h), (l), (n) and (r):  see again the court's orders at Schedule A to the reasons.

Third charge - evaluation

1. I will proceed to analyse the material complained of - in terms of whether it is sufficient to give rise to any of the relevant defamatory imputations that Mr McLernon was prohibited from publishing.

2. First, I am not satisfied that the ordinary meaning of any of this as specified material can sustain the published defamatory meaning of threats, let alone threats made to honest people (order 2(h) of the court's 7 October 2016 orders). 

3. I do not suggest or find that the material as obtained and published by a Mr O'Connell was not defamatory of Mr Billis in some other respects.  However, the present question is only whether it was defamatory in the precise respects as a violation of the subject matter of the court's permanent injunction orders of 7 October 2016.

4. I am also not left satisfied that the prohibited defamatory imputation 2(r) meaning - concerning an illegal transfer of money from companies, is found to be carried.  The words 'SITS ON A BILLION DOLLARS WORTH OF GOLD IN THE PERTH MINT' - do not for the ordinary reasonable reader, without more, suggest an illegal transfer of money.  The phrase 'sits on', on its face, does not align to a notion of transfer.

5. Prohibited imputation 2(l) sees prohibited references to a 'criminal gang' called the 'Fat Wallet Mob'.  Reference is made to the act of firebombing Mr McLernon's house by that gang.  However, the material complained of as authored by O'Connell says only (juxtaposed against photographs of Mr Billis) 'firebombs his car and house'.  It says nothing there about a 'Fat Wallet Mob', or indeed about any criminal gang.  Rather, this material looks only to suggest that Mr Billis alone carried out a firebombing attack against Mr McLernon's car and house.  That imputation, of course, is seriously defamatory.  But again, it does not go to establish a violation of the order 2(e) by publishing in breach of that order, which was as to the firebombing of the car by a criminal gang.

6. The last of the 7 October 2016 prohibited imputations complained of as violated, is that Mr Billis is a dangerous man who is to be feared.  This is put as because he carries a baseball bat in his car intended to be used for criminal purposes (order 2(n) of the court's 7 October 2016 orders and alleged under par 2 of the notice of particulars). 

7. One of the unclear and blurry photographs as identified, does depict a man, who it is said may be identified as Mr Billis, and who is seen in that blurred photograph as carrying some indistinct object in his hand
   - which is said to have been a baseball bat.  But use of that indistinct object (if it is a baseball bat) for criminal purposes is a stretch too far of meaning.  The photograph of the object in the person's hand, only shows it was being carried outside - rather than that object being a bat located in a car.  The observed bat or carried object could have been sourced from places other than from a car.  The man, of course, is photographed standing next to a car.  This is not sufficient to show this particular defamatory imputation to the ordinary reasonable reader, evaluated at the criminal standard of proof that is required for a contempt sanction.

8. Consequently, I am of the end view that the third charge material as relied upon, also will not support a finding of a derivation of any of the defamatory imputations, as a subject of par 2(h), (l), (n) or (r) of the 7 October 2016 orders. 

Approval and acquiescence

1. As a result, it is not strictly necessary to advance further to deal with the question of consent, approval or acquiescence of Mr McLernon as regards charge 3 - in terms of O'Connell obtaining this material from him. 

2. Nevertheless, I will briefly address that further issue.  

3. At attachment SJ-8 of the first Joyce affidavit (at pages 101 to 103),  there is encountered an email that, on its face, is sent at 9.47 pm on Monday, 17 October 2016 to Mr McLernon from a Brendon O'Connell using the email address [email protected].

4. This email looks to follow an earlier email that was sent to O'Connell by Mr McLernon at 5.45 pm that day (see page 103 of the first Joyce affidavit).  There follows the observed and somewhat rambling content of an O'Connell reply to Mr McLernon, copied to the others as mentioned. 

5. Part of the O'Connell email of 9.47 pm read:

   I only sent an email to the news media about the way the case had been handled and the way the clear moral turpitude of the three litigants had been caste [sic] aside by the presiding judge.  This is clearly grounds for an appeal.  I just finished reading and scanning your entire files into electronic format which was no easy task.  These have been forwarded on to relevant people.  I can assure you they are fully aware of the current status of the defamation case and appeal.  They will not proceed in any way with regards publication until legally able …

6. The second page of the 17 October 2016 email communication of O'Connell incorporates copyrighted photos of Terence McLernon and shows two photographs of a person said to be Mr Billis. 

7. The suggested necessary inference underlying the third charge is that Mr O'Connell could have only obtained the as mentioned materials from Mr McLernon - by Mr McLernon in effect actively consenting, approving or acquiescing in their publication to Mr O'Connell. 

8. Under an earlier 5.31 pm email communication from Mr McLernon to Samuel Joyce, by reference to Mr McLernon's books, he says:

   All copies sold and I do not have one myself.  The orders were made a week ago and didn't know were retrospective …

9. To sustain the necessary inference, it must be assumed that what is seen stated in the email of 9.47 pm by Mr O'Connell to Mr McLernon concerning O'Connell's '... reading and scanning of McLernon's entire files ...' is a truthful statement.  But I will not make that assumption in all the circumstances.

10. Given the rambling and almost incoherent nature of the content of the three pages of the material, I am left in some doubt over the reliability of the statement.  O'Connell was not called as a witness at the trial.  At a point, it looks as if he may have been overseas, being located in Iran (see attachment SJ-12 to the first Joyce affidavit which sees an email of 9 December 2016 at 2.41 am sent from O'Connell to 'Reception'). 

11. At the end, I am not satisfied beyond reasonable doubt over how the third charge materials found within the O'Connell 9.47 pm email, came into O'Connell's possession.  It may be suggested as being from Mr McLernon as the source, on the balance of probabilities.  But at the end, I am not persuaded beyond reasonable doubt over that issue on the evidence. 

12. Consequently, the third charge must also be dismissed.

Orders

1. Consequently, at the end, none of the three charges have been made out.  The application must accordingly fail, and will be dismissed upon the publication of these reasons. 

2. Because Mr McLernon acted entirely in person at all times, there is no occasion for any award of legal costs to him.

   
   

   Schedule A - Orders of 7 October 2016

   [Extract of transcript of hearing on 7 October 2016]

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 imputation set out below, or any imputations to the same or similar purport and effect, whether on any of the websites complained of or elsewhere.

[Orders in CIV 2307 of 2012 made 7 October 2016

and extracted 21 December 2016]

1. The plaintiff (Mr Billis) is awarded $250,000 damages plus simple interest thereon at 3% per annum calculated from 18 September 2012, against the first defendant (Mr McLernon);

2. A permanent injunction is hereby issued restraining the first defendant (Mr McLernon) from making, or continuing to make, or causing to be made, any future publications containing any imputations that, or to the effect that, Mr Billis:

   a)uses false email addresses and fax numbers and registers false corporate entities to mask his identity and attack wives and children of business competitors through those media;

   b)is like a rodent in that he is devious, untrustworthy and morally bankrupt;

   c)has committed illegal acts and acted in breach of his duties as a director which warranted shareholders of a named corporation to take action against him;

   d)has been convicted of perjury;

   e)cannot speak English as he did not complete schooling in New Zealand;

   f)is the head of an organised crime gang called the Fat Wallet Mob;

   g)committed perjury whilst being interviewed by ASIC;

   h)makes threats to honest people;

   i)is the head of a crime gang called the Fat Wallet Mob;

   j)has threatened women and children with violence by other members of that same criminal gang;

   k)is being investigated by police and has been warned by police not to threaten women and children with violence by other members of that criminal gang;

   l)acting with a criminal gang called the Fat Wallet Mob, firebombed Mr McLernon's house;

   m)acting with the same criminal gang, incinerated Mr McLernon's car using some sort of 'Molotov cocktail';

   n)is a 'dangerous man who wears a silver pistol on his person which he uses as a weapon and he has arguments with people';

   o)is a gangster who is part of a criminal gang named as the Fat Wallet Mob;

   p)is a dangerous man who is to be feared because he carries a silver pistol on his person, baseball bat in his car, has four pistols in his office safe and many high powered rifles all intended to be used for criminal purposes;

   q)illegally appropriated company funds for his own use;

   r)has illegally transferred money from companies of which he is a director overseas, so that shareholders in the company do not receive dividends; and

   s)has a long criminal record which warrants him being jailed, if he is convicted of using company funds to fund a personal matter.

3. As ordered on 22 June 2016, the plaintiff's (Mr Billis') action against the fourth defendant (Ms Toni Fitzgerald) is dismissed.

4. The plaintiff's action against the fifth defendant (Mr Laurence Fitzgerald) is dismissed;

5. The first defendant is to pay the plaintiff's costs of this action to be taxed on an indemnity basis so that the plaintiff is fully indemnified for his costs, except insofar as the costs may have been unreasonably incurred or are unreasonable in amount.

…

1. There is no orders as to costs as regards the fifth defendant (Mr Laurence Fitzgerald).

Schedule B

EXTRACT OF PROCEEDINGS - 7 OCTOBER 2016

JUDGMENT DELIVERY

2:38:58 pm

KENNETH MARTIN J:   In all the circumstances, I would pronounce judgement effectively in the terms as indicated at paragraph 335 on my orders.

In the case of Mr Fitzgerald, sorry I withdraw that, start again.

In the case of Mr McLernon, that means that as of now, that is 2:39pm, WST, permanent injunctions issue against him in the terms I have identified at paragraph 335(A)(2) as regards Mr Douglas.

In terms of that same paragraph but subsection (c)(2) as regards Mr Billis and in respect of Mr Matich at paragraph 335(D)(2) a permanent injunction now issues at 2:39pm against Mr McLernon in those terms.

In terms of service of those orders, I think they probably should be formally extracted and if you wish to liaise with my associate through your instructing solicitors Mr Mukherji I can make arrangements for judgments to be extracted in each of the four actions along the lines of paragraph 335, I think -

MUKHERJI, MR:           Yes.

KENNETH MARTIN J:   [F]rom the perspective of enforcement, you might want to effect service upon Mr McLernon given that he hasn't attended today.

MUKHERJI, MR:           Yes, your Honour.

KENNETH MARTIN J:   In case there are any issues in the future concerning his notice about terms of the orders which have now been made, but otherwise those orders issue effectively from 2:39 pm today.

MUKHERJI, MR:           Yes, your Honour, understand, thank you.

KENNETH MARTIN J:   Alright, those orders as [are] made, the court will adjourn.

2:41:08 pm

Schedule C - Plaintiff's notice of further amended particulars

First Charge

1. International disobedience of Orders made by the Honourable Justice Kenneth Martin on 7 October 2016 by failing to remove material from Blog pages.

Particulars

Having been served with the orders made by Honourable Justice Kenneth Martin made on 7 October 2016 (Orders) on 17 October 2016, such Orders containing in order 2 a requirement that you permanently restrained 'from making, or continuing to make, or causing to be made any future publications containing any imputations that, or to the effect that, Mr Billis:

a.uses false email addresses and fax numbers and registers false corporate entities to mask his identity and attack wives and children of business competitors through those media;

b.is like a rodent in that he is devious, untrustworthy and morally bankrupt;

c.has committed illegal acts and acted in breach of his duties as a director which warranted shareholders of a named corporation to take action against him;

d.has been convicted of perjury;

e.cannot speak English as he did not complete schooling in New Zealand;

f.is the head of an organised crime gang called the Fat Wallet Mob;

g.committed perjury whilst being interviewed by ASIC;

h.makes threats to honest people;

i.is the head of a crime gang called the Fat Wallet Mob;

j.has threatened women and children with violence by other members of that same criminal gang;

k.is being investigated by police and has been warned by police not to threaten women and children with violence by other members of that criminal gang;

l.acting with a criminal gang called the Fat Wallet Mob, firebombed Mr McLernon's house;

m.acting with the same criminal gang, incinerated Mr McLernon's car using some sort of 'Molotov cocktail';

n.is a 'dangerous man who wears a silver pistol on his person which he uses as a weapon and he has arguments with people';

o.is a gangster who is part of a criminal gang named as the Fat Wallet Mob;

p.is a dangerous man who is to be feared because he carries a silver pistol on his person, baseball bat in his car, has four pistols in his office safe and many high powered rifles all intended to be used for criminal purposes;

q.illegally appropriated company money for his own use;

r.has illegally transferred money from companies of which he is a director overseas, so that shareholders in the company do not receive dividends; and

s.has a long criminal record which warrants him being jailed, if he is convicted of using company funds to fund a personal matter.'

From 17 October 2016 until at least 13 August 2018 you intentionally disobeyed the Orders by knowingly failing to remove material, being:

a.photographs of the plaintiff;

b.the text ANTON NO BALLS BILLIS;

c.the text FAT WALLET MOB;

d.the text 'I keep looking for gold miners and all I end up finding are IMO money-launderers.  Anton must be best friends with ASIC by now'; and

e.the text 'Looks cheap based on the inventory numbers and future production, but the real question is will Anton, Otakar & co share the funds with fellow shareholders or just divert the company assets to self-owned companies.' (Blog Page Defamatory Material)

from Blog pages, of which you are the author and/or in control, located at and (Blog Pages) which resulted in you making, or continuing to make, or causing to be made, publications containing imputations that, or to the effect that, Mr Billis:

a.is the head of an organised crime gang called the Fat Wallet Mob;

b.is the head of a crime gang called the Fat Wallet Mob;

c.is a gangster who is part of a criminal gang named as the Fat Wallet Mob;

d.illegally appropriated company funds for his own use; and

e.has illegally transferred money from companies of which he is a director overseas, so that shareholders in the company do not receive dividends.

Second Charge

1. Intentional disobedience of Orders made by the Honourable Justice Kenneth Martin on 7 October 2016 by publishing material through Youtube.

Particulars

Having been served with the Orders on 17 October 2016

a.from 19 October 2016 until 24 October 2016 you intentionally disobeyed the Orders by knowingly failing to remove links to material from the Youtube website located at

(Youtube Channel) of which you are in control and/or the author, where the material consisted of books written by you titled 'The Fifth Estate', 'Every Bit of a Circle is Bent' and 'If the Hat Fits Wear It' (McLernon Books) which contained the following:

i.in the book titled 'If the Hat Fits Wear It':

1.Page 15, Chapter 1, the words 'Anton Billis!  He is the mother lode.  He is the keeper of the eggs from the golden goose.  He and his mates in manipulation, <NAME CHANGED TO PROTECT THE GUILTY>, Colin 'Circles' Pace and Michael 'The Nose' Giovinazzo constitute the core of the rotten apple I called the Fat Wallet Mob...Now The Kiwi has a huge problem;  His shareholders do not love him at all.  But you see the silly shareholders do not understand the poor man.  The silly shareholders want a dividend paid.  'Why not?' they say.  One hundred million dollars is locked up in assets and never a red cent paid in dividends.  They blame Anton.  'Leave Anton alone!' say I.  I must admit I have been a bit hard on this poor struggling criminal.  For years I, along with many others, have misunderstood him.  Anton is a rat trapped in a golden cage.';

2.Numerous references to Anton Billis including from page 51, Chapter 6 titled 'The Fat Wallet Mob 'Flow Charts' A report on the operations of Anthony Byron Billis & Michael James Giovinazzo';

ii.in the book titled 'The Fifth Estate':

1.Page 192, Chapter 17, the words 'THERE WAS ONE VERY UNPLEASANT YEAR when the Fat Wallet Mob gave me a fair bit of curry.  First there was the fire bomb in my home, followed by my car taking a Molotov cocktail of some type which incinerated it pretty must along with a bunch of files I had in the trunk.  I think a 'hit' was ordered but the instructions were gibberised because the Fat Wallet Gang was not that smart at that.'

2.at page 196 an image purporting to show a 'Summary of Financial dealings of Giovinazzo and Bank Accounts of Convenience' indicating that a particular alleged member of the so called 'Fat Wallet Mob' held shares in Rand Mining NL and Tribune Resources NL, and the words 'Amazing exposure of intermingled financial dealings';

3.numerous references to the 'Fat Wallet Mob';

iii.in the book titled 'Every bit of the circle is bent' numerous references to the 'Fat Wallet Mob'.

which material, taken separately and/or viewed together give      rise to imputations or imputations to the effect that Mr Billis:

i.is like a rodent in that he is devious, untrustworthy and morally bankrupt;

ii.is the head of an organised crime gang called the Fat Wallet Mob;

iii.is the head of a crime gang called the Fat Wallet Mob;

iv.acting with a criminal gang called the Fat Wallet Mob, firebombed Mr McLernon's house;

v.acting with the same criminal gang, incinerated Mr McLernon's car using some sort of 'Molotov cocktail';

vi.is a gangster who is part of a criminal gang named as the Fat Wallet Mob;

vii.illegally appropriate company funds for his own use; and

viii.has illegally transferred money from companies of which he is a director overseas, so that shareholders in the company do not received dividends.

thereby making, continuing to make, and/or causing to be made, publications in disobedience of the Orders; and

b.from 17 November 2016 until 23 November 2016 you intentionally disobeyed the Orders by publishing the links to the McLernon Books on the Youtube Channel.

Third Charge

1. Intentional disobedience of Orders made by the Honourable Justice Kenneth Martin on 7 October 2016, by consenting, approving or acquiescing to the publication of defamatory material concerning Mr Billis by a third party.

Particulars

Having been served with the Orders on 17 October 2016, on 17 October 2016 you consented, approved or acquiesced to the publication of materials by an individual identifying himself as Brendan O'Connell, in an email date 17 October 2016 sent to you and copied to Colleen Egan, Paul Murray, Gareth Parker, Tim Clarke, Hamid Farajollahi, Minister Harvy, Minister Mischin and Samuel Joyce (O'Connell Email) in circumstances where the O'Connell Email contained materials you had providing, constituting:

a.photographs of Mr Billis;

b.the words 'DEFAMED SAINT LIKE BUSINESSMAN ANTON BILLIS COMES FOR TERENCE MCLERNON WITH BASEBALL BAT; SMASHES CAR WINDOW;

c.the words 'FIREBOMBS HIS CAR AND HOUSE'; and

d.the words 'SITS ON A BILLION DOLLARS WORTH OF GOLD IN THE PERTH MINT TO AVOID PAYING DIVIDENTS---ECT, ECT, ECT'.

which materials, when taken separately and/or viewed together give rise to imputations, or imputations to the effect that Mr Billis:

a.makes threats to honest people;

b.acting with a criminal gang called the Fat Wallet Mob, firebombed Mr McLernon's house;

c.is a dangerous man who is to be feared because he carries a baseball bat in his car intended to be used for criminal purposes;

d.has illegally transferred money from companies of which he is  director overseas, so that shareholders in the company do not receive dividends.

where the alleged consent approval or acquiescence complained about is constituted by:

a.the provision of the materials to Brendan O'Connell;

b.further or alternatively, the provision of the materials to Brendan O'Connell in circumstances where you must have reasonably foreseen that it was likely to be published further;

c.further or alternatively, the provision of the materials to Brendan O'Connell in circumstances where you agreed or were acting in conjunction with Brendan O'Connell in furtherance of wider dissemination of materials to Colleen Egan, Paul Murray, Gareth Parker, Tim Clarke, Hami Farajollahi, Minister Harvey, Minister Mischin and Samuel Joyce.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

PP

Research Associate to the Honourable Justice K Martin

9 FEBRUARY 2022