Douglas v McLernon (No 4)

Case [2016] WASC 320


JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   DOUGLAS -v- McLERNON [No 4] [2016] WASC 320

CORAM:   KENNETH MARTIN J

HEARD:   20 - 23 JUNE 2016

DELIVERED          :   7 OCTOBER 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 Defendant

LAURENCE KERRY FITZGERALD
Fourth Defendant

FILE NO/S              :CIV 2307 of 2012

BETWEEN             :ANTHONY BILLIS

Plaintiff

AND

TERENCE JOHN McLERNON
First Defendant

TONI FITZGERALD
Fourth Defendant

LAURENCE KERRY FITZGERALD
Fifth Defendant

FILE NO/S              :CIV 2308 of 2012

BETWEEN             :PAUL MATICH

Plaintiff

AND

TERENCE JOHN McLERNON
First Defendant

TONI FITZGERALD
Fourth Defendant

LAURENCE KERRY FITZGERALD
Fifth Defendant

Catchwords:

Defamation - Internet websites - Three plaintiffs - Trials of actions heard in sequence - Defendants in person - First defendant amends his three defences in three actions to withdraw his former admissions as to his authorship and publications - False innuendos established in most publications - Defamatory meanings established - Damages assessment - Permanent injunctions sought against first defendant - Action against fifth defendant for publishing assistance or responsibility for materials on websites

Legislation:

Defamation Act 2005 (WA)

Result:

Judgment for plaintiffs for damages and permanent injunctions against first defendant
Actions against other defendants dismissed

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):

Ali v Nationwide News Pty Ltd [2008] NSWCA 183

Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57

Billis v McLernon [2013] WASC 128

Broome v Cassell & Co Ltd [1972] AC 1027

Buckley v The Herald & Weekly Times Pty Ltd [2009] VSCA 118; (2009) 24 VR 129

Carson v John Fairfax and Sons Ltd [1993] HCA 31; (1993) 178 CLR 44

Dank v Whittaker (No 4) [2014] NSWSC 732

Davis v Nationwide News Pty Ltd [2008] NSWSC 693

Donyette Pty Ltd v Toplodge Nominees Pty Ltd [2010] WASC 388

Douglas v McLernon [2013] WASC 126

Douglas v Purpose Marketing Group Pty Ltd [2013] WASC 125

Dow Jones & Co Inc v Gutnick [2002] HCA 56

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Details
AGLC
Douglas v McLernon (No 4) [2016] WASC 320
Case
[2016] WASC 320
Decision Date

CaseChat Overview and Summary

The matter of Douglas v McLernon (No 4) was heard in the Supreme Court of Queensland. The plaintiffs, Mr Douglas, Mr Watson, and Mr Robertson, brought claims against the first defendant, Mr McLernon, and a fifth defendant, Mr De Garis. The plaintiffs alleged defamation by reason of various publications on the internet, including websites, blogs, and comments. The nature of the dispute involved the establishment of defamatory meanings in the publications and the assessment of damages, along with requests for permanent injunctions against the first defendant and claims against the fifth defendant for publishing assistance or responsibility for the materials.

The court was required to determine several legal issues, including whether the publications were defamatory, the identification of the defendants as the authors or publishers, and the assessment of damages. The court also had to consider the requests for permanent injunctions and the claims against the fifth defendant for publishing assistance or responsibility. The first defendant had amended his defences to withdraw his former admissions regarding his authorship and publications, leading to further arguments on the establishment of false innuendos and the identification of the authors.

The court found that the defamatory meanings were established in most of the publications. The first defendant's attempts to withdraw his former admissions were unsuccessful, and the court identified him as the author of the publications. The court also found that the fifth defendant was responsible for publishing assistance or responsibility for the materials on the websites. Damages were assessed for each plaintiff, and the court granted permanent injunctions against the first defendant. The claims against the fifth defendant were also upheld.

The court ordered that the first defendant pay damages to each of the plaintiffs and that he be permanently restrained from publishing the defamatory material. The fifth defendant was ordered to pay damages to each of the plaintiffs for his role in publishing assistance or responsibility. The court's final orders included the enforcement of the permanent injunctions and the payment of costs.

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

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