Case Law, Australia: Douglas v McLernon, A new damages benchmark for Western Australia – Jonelle Di Lena

6 11 2016

gazetteIn the case of Douglas v McLernon ([2016] WASC 320), the Supreme Court of Western Australia awarded its highest level of general damages to date and has granted a permanent injunction as a result of the “brazen content” of a series of defamatory online publications.

In the preamble to Justice Ken Martin’s reasons, His Honour included the following caution to all internet users and bloggers:

“There still manifests a perception in some members of the community that the laws of defamation do not apply to publications made over the internet.

Consequently, there is a lingering misapprehension that anything at all can be posted concerning another person over the internet – no matter how defamatory or scandalous the uploaded material may be – and that the posted material will enjoy a complete immunity.

That perception is wrong as these reasons for decision will illustrate.”

Background

imageJustice Martin’s (pic) reasons concern three defamation actions against the principal defendant Terence McLernon (two of the matters included Toni Fitzgerald and Laurence Fitzgerald as co-defendants “the Fitzgeralds”) by three separate plaintiffs – Oliver Douglas, Anthony Billis and Paul Matich.

His Honour’s reasons also include a matter commenced by Douglas against the Fitzgeralds.

Separate reasons in Oliver Douglas v McLernon [No 3] were published by His Honour in respect of a “no case to answer” submission made by Toni Fitzgerald in one of the proceedings.

As a result of the “no case submission” being successfully resolved in Toni Fitzgerald’s favour, the other three defamation proceedings against her were dismissed.

Oliver Douglas’ action against Terence McLernon was the first of the four proceedings heard by His Honour with the evidence in the first matter standing as evidence in each of the proceedings.

The proceedings brought by Douglas, Billis and Matich concerned publications about them on three websites identified as:

(a) http://www.mclernonfile.com

(b) http://www.blackdogsbarking.com

(c) http://www.herdontheterrace.com

His Honour distinguished the facts surrounding internet publication in the proceedings before him to the recent Court of Appeal reasons in Sims v Jooste [No 2] (in which His Honour was also the trial judge) where the plaintiff had failed to establish publication on an internet site.

Douglas v McLernon

All four publications complained of by Douglas, which were not republished in their entirety, were alleged to be defamatory in their natural and ordinary meaning.

One of the publications was also said to be defamatory by way of true innuendo.

Some of the imputations alleged to arise included that Douglas threatens innocent women and children using internet sites, knowingly associates with a notorious corrupt police officer, has been convicted of a series of criminal offences in Queensland and has stolen $500,000 from a corporation of which he was a director and found guilty for that offence.

Justice Martin found that three of the four publications were defamatory of the plaintiff.

As to the true innuendo meaning, His Honour found that it was not conveyed as the extrinsic facts relied upon to “make good to additional nuances concerning the words by persons with knowledge of such matters, was wholly absent at the trials”.

The real contested issue for determination by His Honour was whether the plaintiff was the author of the defamatory material and was responsible for uploading it to the internet.

Billis v McLernon

Billis claimed that McLernon published false and defamatory material about him in eight different internet publications.

imageSome of the imputations alleged to arise included that Billis was like a rodent in that he is devious, untrustworthy and morally bankrupt, committed perjury whilst being interviewed by ASIC and makes threats to honest people.

In each of the publications, Justice Martin was satisfied that all pleaded meanings arose and were self-evidently defamatory of the plaintiff.

Again, the only real issue for determination was whether the plaintiff was the author of the defamatory material and was responsible for uploading it to the internet.

Matich v McLernon

Matich’s action concerned four allegedly defamatory publications on the internet.

Justice Martin found three of the four publications carried all or some of the pleaded imputations and that the conveyed meanings were defamatory.

In respect of the publication which His Honour found did not convey a pleaded defamatory meaning, only one imputation had been pleaded, namely that Matich “is being investigated by the Australian Securities and Investments Commission”.

His Honour stated at [115] that:

“The incoherent sentences comprising this material would seem to suggest only an inference to the effect that the author of the website is advocating that ASIC should investigate Mr Matich, rather than suggesting the fact of a subsisting investigation being undertaken by ASIC.”

At [117] His Honour found:

“By my assessment of the third publication, applying the ordinary reasonable reader template criteria, the imputation contended for (i.e. that Mr Matich is being investigated by ASIC) simply does not arise.

A distinct imputation which I would assess as being discernible, namely that there are grounds to investigate Mr Matich, would be defamatory, it is a meaning that would, I think, be extractable.”

As the plaintiff in these proceedings was self-represented, His Honour was at pains to allow Mr Matich to proceed in respect of the alternate imputation.

Publication

The plaintiffs relied on earlier pleadings where McLernon had admitted publication but had withdrawn on the eve of trial without leave of the court.

Justice Martin described McLernon’s responses while under cross-examination as “false, unbelievable and unreliable. At times, as the transcript shows, they bordered on the bizarre”.

imageHis Honour also found McLernon’s “confected memory loss” was “an attempted cloak to obscure what was his disgracefully unacceptable charade as a witness”.

“Mr McLernon’s true problem was only that the trial process had exposed him for what he was: a devious, untruthful and unreliable witness.”

His Honour found the plaintiffs had “overwhelmingly” established that McLernon authored and published the matters complained of.

Laurence Fitzgerald

The essence of the liability case against Fitzgerald was that he allegedly supplied ongoing technical assistance to McLernon in the uploading of material on the internet.

His Honour found that the actions against Fitzgerald by each of the plaintiffs for his involvement in the publication of the defamatory material had not been established.

Damages

Justice Martin acknowledged the “uncertain financial position” of McLernon, a two-time bankrupt, but stated that there was a need for an award of damages at a high level to send out a clear message to the wider community that the publications had assessed as baseless and unjustified.

Douglas and Billis were each awarded $250,000 (including aggravated damages) and Matich was awarded $200,000, including aggravated damages.

Justice Martin also granted the plaintiffs a permanent injunction.

Appearances

CIV 1930 of 2012

For the plaintiff: G. Mukherji instructed by Tindall Gask Bentley Lawyers.
For the defendant: In person.

CIV 2306 of 2012

For the plaintiff: G. Mukherji instructed by Tindall Gask Bentley Lawyers.
For the defendants: In person.

CIV 2307 of 2012

For the plaintiff: In person.
For the defendants: In person.

CIV 2308 of 2012

For the plaintiff: G. Mukherji instructed by Tindall Gask Bentley Lawyers.
For the defendants: In person.

This post originally appeared in the Gazette of Law and Journalism, Australia’s leading online media law publication and is reproduced with permission and thanks


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6 11 2016
Case Law Australia Douglas v McLernon A new damages benchmark for Western Australia Jonelle Di Lena | Real Media - The News You Don't See

[…] In the case of Douglas v McLernon ([2016] WASC 320), the Supreme Court of Western Australia awarded its highest level of general damages to date and has granted a permanent injunction as a result of the “brazen content” of a series of defamatory online publications. In the preamble to Justice Ken Martin’s reasons, His Honour […] Inforrm’s Blog […]

6 11 2016
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