JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: DOUGLAS -v- McLERNON [No 3] [2016] WASC 319
CORAM: KENNETH MARTIN J
HEARD: 20-22 JUNE 2016
DELIVERED : 22 JUNE 2016
FILE NO/S: CIV 1930 of 2012
BETWEEN: OLIVER GEORGE DOUGLAS
Plaintiff
AND
TERENCE JOHN McLERNON
Defendant
FILE NO/S :CIV 2306 of 2012
BETWEEN :OLIVER GEORGE DOUGLAS
Plaintiff
AND
TONI FITZGERALD
Third DefendantLAURENCE KERRY FITZGERALD
Fourth Defendant
FILE NO/S :CIV 2307 of 2012
BETWEEN :ANTHONY BILLIS
Plaintiff
AND
TERENCE JOHN McLERNON
First DefendantTONI FITZGERALD
Fourth DefendantLAURENCE KERRY FITZGERALD
Fifth Defendant
FILE NO/S :CIV 2308 of 2012
BETWEEN :PAUL MATICH
Plaintiff
AND
TERENCE JOHN McLERNON
First DefendantTONI FITZGERALD
Fourth DefendantLAURENCE KERRY FITZGERALD
Fifth Defendant
Catchwords:
Defamation - Liability based on alleged assistance in the publication of defamatory matter - No case to answer submission - Website - Concerns notice issued - Failure to take action to terminate website complained about
Legislation:
Nil
Result:
No case to answer submission upheld
Category: B
Representation:
CIV 1930 of 2012
Counsel:
Plaintiff: Mr G Mukherji
Defendant: In person
Solicitors:
Plaintiff: Tindall Gask Bentley Lawyers
Defendant: In person
CIV 2306 of 2012
Counsel:
Plaintiff: Mr G Mukherji
Third Defendant : In person
Fourth Defendant : In person
Solicitors:
Plaintiff: Tindall Gask Bentley Lawyers
Third Defendant : In person
Fourth Defendant : In person
CIV 2307 of 2012
Counsel:
Plaintiff: Mr G Mukherji
First Defendant : In person
Fourth Defendant : In person
Fifth Defendant : In person
Solicitors:
Plaintiff: Tindall Gask Bentley Lawyers
First Defendant : In person
Fourth Defendant : In person
Fifth Defendant : In person
CIV 2308 of 2012
Counsel:
Plaintiff: Mr G Mukherji
First Defendant : In person
Fourth Defendant : In person
Fifth Defendant : In person
Solicitors:
Plaintiff: Tindall Gask Bentley Lawyers
First Defendant : In person
Fourth Defendant : In person
Fifth Defendant : In person
Case(s) referred to in judgment(s):
Bleyer v Google Inc [2014] NSWSC 897; (2014) 88 NSWLR 670
Bunt v Tilley [2006] EWHC 407 (QB); [2007] 1 WLR 1243
C Evans & Sons Ltd v Spritebrand Ltd [1985] 1 WLR 317
Domain Names Australia Pty Ltd v .au Domain Administration Ltd [2004] FCAFC 247; (2004) 139 FCR 215
Douglas v Purpose Marketing Group Pty Ltd [2013] WASC 125
Dow Jones & Co Inc v Gutnick [2002] HCA 56; (2002) 210 CLR 575
Duffy v Google Inc [2015] SASC 170
Godfrey v Demon Internet Ltd [2001] QB 201
Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231
Kenyon v Sabatino [2013] WASC 76
Metropolitan International Schools Ltd v Designtechnica Corp [2009] EWHC 1765 (QB); [2011] 1 WLR 1743
Murray v Wishart [2014] NZCA 461; [2014] 3 NZLR 722
Protean (Holdings) Ltd v American Home Assurance Co (1985) VR 187
Rana v Google Australia Pty Ltd [2013] FCA 60
Sims v Jooste [No 2] [2016] WASCA 83
Smith v Marshall [2014] WASC 185
Sun v Hojunara International Group (No 2) [2013]…
Continue reading Douglas v McLernon [No 3]
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- AGLC
- Douglas v McLernon [No 3] [2016] WASC 319
- Case
- [2016] WASC 319
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether Ms Fitzgerald could be held liable for the defamatory content published on the website she had commissioned. This involved determining whether her involvement in purchasing a domain name and engaging a web designer to create the website made her an accessory to the publication of the defamatory material. The court had to consider whether such actions alone could establish her liability as a publisher of the defamatory content.
In examining the evidence presented, the court found that there was no direct involvement by Ms Fitzgerald in the actual content uploaded by McLernon. The court drew an analogy to a seller of a motor vehicle who cannot be held liable for the actions of the purchaser once the vehicle is sold. Similarly, the purchase of a domain name and the creation of a website did not, in and of itself, make Ms Fitzgerald responsible for the content uploaded by the website's operator. The court also noted that there was no precedent suggesting that a director's involvement in a company that provides web-related services would automatically make them liable for defamatory content published on a client's website.
The court concluded that without additional evidence of direct involvement in the creation or publication of the defamatory content, Ms Fitzgerald could not be held liable for the material published on the website. The court dismissed the claim against Ms Fitzgerald, finding that there was no case to answer.
The court's final order was that the defamation claim against Ms Fitzgerald was dismissed due to no case being established against her.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
As such a taxonomy of websites might suggest, the range of services that might be provided to support websites presents as quite large ‑ hence references in this matter and in other internet publication cases to (eg) 'web design', 'web hosting', 'content platform operators', 'search engine operators', 'internet service providers', 'internet intermediaries', as well as to services relating to the sale, purchase and registration of internet 'domain names' (see, eg, Domain Names Australia Pty Ltd v .au Domain Administration Ltd [2004] FCAFC 247; (2004) 139 FCR 215). Specifically put as against Ms Fitzgerald, the essence of Mr Douglas' most recently formulated claim is found set out at par 35 of his outline of written submissions, where it is alleged that the Fitzgeralds 'assisted McLernon in uploading text and images to the internet, and assisted in creating the infrastructure which allowed this material to be displayed to the public'. Two points must be made here. First, nothing that has been contended as regards Ms Fitzgerald by way of evidence adduced in this trial to date has suggested to me that she has had anything at all personally to do with the materials that are complained about by Mr Douglas, in terms of what he says has been uploaded by Mr McLernon to the McLernon File website ( the Black Dogs Barking website ( or the Herd on the Terrace website (>Second, without more, the bare fact that someone purchases an internet domain name from a vendor, or pays for a web designer to create for them an internet website, does not ‑ on the face of it ‑ then make that vendor or web designer liable for the subsequent publications of defamatory material uploaded to that website (or upon websites linked to that domain name) by a purchaser. The analogy is to the seller of a motor vehicle, who could not reasonably be held liable for the driving of the vehicle's purchaser after the purchaser takes possession of the car. The driver must bear that sole responsibility. This case, therefore, against Ms Fitzgerald is confined and unique. I have not been referred to any particular case authority concerning a website and an allegation that somebody who has been involved in a company as a director, in controlling a company that generally sells websites, designs websites or even maintains and services websites, is ‑ by virtue of their status as a director alone ‑ themselves to be held accountable as a publisher, liable to be sued for defamatory matter later found on the website. I remain to be persuaded of the merit of that submission. In that context, I note the observations of Campbell J in Sun v Hojunara International Group (No 2) [2013] NSWSC 1050 [12] (and see also the related Sun v Hojunara International Group [2013] NSWSC 892 and Wan-Jen Sun v Hojunara International Group Pty Ltd [2013] NSWSC 2044), as to the separate or independent liability of the directors of a defendant corporation for the publication of any defamatory matter. In some contrast to the present proceedings, there had emerged in those NSW proceedings evidence (in effect, an admission), by way of a verified statement in answer to interrogatories, that two directors of the defendant corporation (which had gone into liquidation) were persons responsible for moderating forums on a website in which the alleged defamatory material was said to have been published.