Price v Davies[2016] QDC 201

DISTRICT COURT OF QUEENSLAND

Introduction

2. [2]
   This is an appeal against the decision of the Brisbane Magistrates Court given on 18 February 2016 that pursuant to r 16(e) of the Uniform Civil Procedure Rules 1999 (“UCPR”) the originating process be set aside. 

Principles

3. [3]
   The appeal is pursuant to s 47 of the Magistrates Court Act 1921 (Q). This section provides:

“47  Jurisdiction of the District Court

On the hearing of an appeal or special case, the District Court may do any of the following—

1. (a)
   draw inferences of fact from facts found by the Magistrates Court, or from admitted facts or facts not disputed;

2. (b)
   order a new trial on such terms as it thinks just;

3. (c)
   order judgment to be entered for any party;

4. (d)
   make any other order, on such terms as it thinks proper, to ensure the determination on the merits of the real questions in controversy between the parties;

5. (e)
   as regards any special case, remit the matter to the Magistrates Court with the opinion of the District Court thereon;

6. (f)
   make such order with respect to the costs of the appeal or special case as it thinks proper.”

4. [4]
   Further, s 113 of the District Court of Queensland Act 1967 (Q) provides:

“The District Court has, for an appeal from a Magistrates Court, the same powers as the Court of Appeal has to hear an appeal.”

5. [5]
   In JJ Richards & Sons Pty Ltd v Precast Concrete Pty Ltd^[1] McGill SC DCJ noted that r 785 of the Uniform Civil Procedure Rules 1999 (Q) also applies such that r 765(1) is picked up. Therefore, this appeal is by way of rehearing. In such an appeal the Court must make up its own mind on the evidence that was before the Magistrates Court giving “due deference and weight” to the learned magistrate’s view but ultimately the appellant must show the decision appealed from was wrong.^[2]

Background

Pleadings

6. [6]
   The appellant, on 6 March 2015, filed a claim and statement of claim in the Magistrates Court at Brisbane claiming $100,000.00 for general damages for defamation, jointly and severally from the first and second respondents, $50,000.00 for aggravated damages for defamation, jointly and severally, together with interest and costs.

7. [7]
   In the statement of claim the appellant alleges that he was, at all material times, a director of the Australian company REPSIM Pty Ltd. The first respondent, Dr Davies, was employed by the second respondent, Australian Strategic Policy Institute Limited, as its Senior Analyst for Defence Capability and Director of Research. It is alleged that the second respondent was funded in part by the Commonwealth through the Department of Defence, and in part by Lockheed Martin the developer of the F-35 Joint Strike Fighter Aircraft, and was the registrant of the domain name aspi.org.au, and the employer of the first respondent.

8. [8]
   It is alleged^[3] that on or about 25 May 2013, the first respondent authored the following words:

“The most reasonable conclusion is the critics are vocal but wrong.  And the most obvious explanation for that is that their models or simulations don’t incorporate the correct assumptions and parameters.  In other words, they don’t know what they don’t know.  For example, a remarkably uncritical recent ABC1 Four Corners program presented some simulation results generated by an Australian company that showed disastrous results for the F-35 in air combat.  The firm submitted similar results to a parliamentary inquiry, explaining its work was produced at the invitation of the RAND Corporation.  A little background research would have gone a long way.  Not only has RAND publically distanced itself from the results presented to Parliament and elsewhere – including Four Corners – but any implication that the company produced the simulation as researcher, collaborator or contractor of RAND is simply not true.”

9. [9]
   It is further alleged that these defamatory words were provided to the second respondent with the intention they would be published on the aspa.org.au website.

10. [10]
    It is alleged that on or about the 25 May 2013 the second respondent caused those words to be published on the website.

11. [11]
    It is alleged that the defamatory words were downloaded in the state of Queensland by Christopher Mills on or about 2 July 2014.

12. [12]
    It is alleged that the words were published over the internet and were published of and concerning the plaintiff in that he was a director of REPSIM Pty Ltd, on or about 7February 2012 the plaintiff gave evidence to the Defence Sub Committee of the Australian Parliament’s Joint Committee on Foreign Affairs, Defence and Trade to the effect that simulations prepared by REPSIM Pty Ltd in collaboration with RAND Corporation analysts showed that the F-35A Joint Strike Fighter aircraft might be ineffective in combat against Chinese and Russian aircraft and on 18 February 2013 at 8.30pm the Australian Broadcasting Corporation broadcast a segment called “Reach for the sky” on its Four Corners program and that segment included details of the REPSIM Pty Ltd simulations.^[4]

13. [13]
    It is then alleged that the defamatory words meant and were understood to mean that the appellant was a liar, lied to the Australian Parliament and was dishonest.^[5]  It is then alleged that damage was suffered in Queensland and elsewhere.

14. [14]
    The first and second respondents filed a conditional notice to defend, in effect, alleging the appellant resided in the Australian Capital Territory (“ACT”), REPSIM Pty Ltd’s principal place of business is in the ACT and his business and/or personal reputation is wholly or, in the alternative, primarily located in the ACT. It is alleged that the substance of the publication took place in the ACT^[6] and, further, the law of the ACT is the substantive law of the proceedings.^[7]  It is then said that, by reason of these matters, the Court does not have, and should not exercise, jurisdiction in this matter.^[8] 

15. [15]
    On 4 May 2015, the first and second respondents applied to the Court, pursuant to r 16(e) of the UCPR, for the originating process be set aside or, alternatively, the proceedings be stayed.  Further, on 18 May 2015, the first and second respondents, pursuant to r 230(1) of the UCPR, sought leave to deliver interrogatories to the appellant. 

Affidavits

Respondents’ case

16. [16]
    Gregory Thomas Brackenreg, a solicitor for the respondents, swore an affidavit sworn 1 May 2015. In that affidavit he swore as follows:

1. (a)
   The second respondent’s principal place of business was in the ACT and, in that regard, produced a company extract;

2. (b)
   REPSIM Pty Ltd is a business based in the ACT and, in that regard, produced a company extract for the business;

3. (c)
   Lockheed Martin is based in the ACT;

4. (d)
   The Department of Defence involved in purchasing the aircraft is located in the ACT;

5. (e)
   The first respondent authored the article in the ACT;

6. (f)
   The oral evidence was given to the joint committee in Canberra;

7. (g)
   The respondents were only able to obtain total views of the website from the period 25 May 2013 to 9 April 2015 as follows:

1. (i)
   11 were from Canberra;

2. (ii)
   Nine were from Sydney;

3. (iii)
   Nine were from Melbourne;

4. (iv)
   Six were from Brisbane;

5. (v)
   Two were from Part Macquarie;

6. (vi)
   One was from Perth;

7. (vii)
   One was from Indonesia;

8. (viii)
   One was from South Korea; and

9. (ix)
   One was from Turkey.

17. [17]
    Mr Brackenreg was unable to determine how many of the views in Brisbane may have been from the plaintiff and, in that regard, the respondents intended to apply for an order to administer interrogatories. Christopher Mills referred to in the statement of claim was a director of REPSIM Pty Ltd during the relevant period.

18. [18]
    In paragraph 20 of the affidavit Mr Brackenreg swears that many of the witnesses to be called by the defendants/respondents were from the ACT but also included witnesses from the United States and possibly a witness based in Sydney. It is said in paragraph 21 by way of argument, that the proceedings had not been properly instituted in Queensland; the proper forum is the ACT.

19. [19]
    In a second affidavit sworn 18 May 2015, Mr Brackenreg swore that he had obtained details of REPSIM Pty Ltd from ASIC. This showed Mr Price’s address to be 7 Homann Place Flynn ACT as at 9 April 2014 and 17 June 2014.

20. [20]
    On 6 July 2015, the Magistrates Court by way of decision, ordered that the respondents be given leave to deliver interrogatories on how often the plaintiff viewed the website and the circumstances in which Mr Mills came to view the website.

21. [21]
    It became obvious by the answers to the interrogatories that, in fact, Mr Mills viewed the website whilst in the state of Victoria.^[9] 

22. [22]
    The only pleaded allegation of publication in Queensland related to Mr Mills. The respondents put the appellant on notice that the statement of claim needed to be amended, but this has not been done.

23. [23]
    Luke Wilson, an information manager from Barton in the ACT, swore an affidavit on 21 October 2015. He was employed by the second respondent as an information manager. Whilst he had no formal qualifications in IT or web design, he had managed websites professionally for over five years and is familiar with the ASPI websites. He works on them daily.

24. [24]
    He understood that the first respondent published the article “F 35 will be a capable All-Rounder” originally in the Weekend Australian defence supplement on 25-26 May 2013. He uploaded that article to the aspi.org.au website on 27 May 2013. A user could view the full content of the article, which was viewable as a PDF document, by clicking on the hyperlink which read “read his opinion piece here”, or by entering the URL of the PDF, or by clicking on a link from a third party website.

25. [25]
    He is able to retrieve user access for the website from Google Analytics. He has more than 5 years’ experience with this.

26. [26]
    He was able to retrieve 266 downloads of the article between 27 May 2013 and 17 September 2013.

27. [27]
    Using some programmatic formulas in Microsoft Excel on the logs that were available to him, he was able to filter out the IP addresses from which downloads of the articles originated which, effectively, generated a list of 263 IP addresses from which downloads of the articles were requested.^[10] 

28. [28]
    He was able to then obtain geological data for each of the user IP addresses. A spreadsheet for each of the user IP addresses is at pages 25-33 of Exhibit LW1.

29. [29]
    He was able to obtain geological data for the IP addresses using the web based service provided by IPligence.

30. [30]
    He says in paragraph 24:

“I have no independent way to verify the accuracy of the geolocational data that I obtained from the IPligence.  However I tested the accuracy of the geological data provided by IPligence by entering ASPA’s external IP address into the IPligence service and the geolocational data that it returned for that IP address was accurate.”

31. [31]
    He alleges that only two downloads originated from Queensland on 14.8.13 and 30.8.13 and his searches revealed that one of those IP addresses was the Queensland Government and the other was through Optus.

32. [32]
    Data from Google Analytics indicated that between 18 September 2013 and 7 August 2015 there were a total of 19 downloads of the article from the website, only two being from Queensland.^[11] 

33. [33]
    He noted that with respect to the two Queensland downloads, both were on 2 March 2015.

34. [34]
    He sets out the features of the two downloads and states at paragraph 31:

“On the basis of my experience and knowledge I am of the opinion the information in the preceding paragraph shows that the two Queensland downloads of the articles from the new ASPA website were from the same user clicking twice.”

35. [35]
    He then says that the discrepancy with the affidavit of Mr Brackenreg sworn 1 May 2015 is explained by the time pressure and represents incomplete information that he had at the time.^[12]  He alleges that the actual article was only downloaded from Queensland a total of four (and most likely three) times altogether.^[13]

36. [36]
    No evidence was put before the Court by the appellant to answer the matters raised in the respondents’ affidavit material. There is no evidence that he was not the person who looked at the article in Queensland.

37. [37]
    Mr Nelson conceded in this appeal that there was no evidence before the Court that anyone other than the appellant had viewed the article in Queensland during the limitation period, i.e. 7 March 2014 and 6 March 2015.

Appellant’s case

38. [38]
    Mr Price in an affidavit sworn 18 July 2015 swore that he has lived in Queensland since December 2012. He says his reputation or part of it is in Queensland. In answers to interrogatories he swore he looked at the website once in June or July 2014 in Queensland and once in February or March 2015 in Queensland. It was conceded that Mr Mills looked at the website while in Victoria.

Submissions below

Plaintiff’s submissions

39. [39]
    The appellant^[14] objected to the admission of second hand evidence of Mr Brackenreg regarding the number and location of downloads of the offending article and, further, objected to much of Mr Wilson’s affidavit.  It was submitted that Mr Wilson was not an expert, his evidence was flawed and inadmissible.  It was submitted that the Court had jurisdiction to hear and determine the claim because at least a part of the damage was suffered in Queensland, i.e. the distress to the appellant.

Defendants’ submissions

40. [40]
    The respondents^[15] submitted that the appellant’s pleaded case would fail. The appellant had not amended to address this defect.  It was submitted that there was no publication proved to any third party in Queensland in the limitation period.  The publication on 2 March 2015 was likely to be the plaintiff himself.  Alternatively, it was submitted that Queensland was not the convenient forum.

Magistrate’s decision

41. [41]
    The magistrate handed down her decision on 18 February 2016. The magistrate determined that Mr Wilson’s affidavit should be admitted. She noted there was no evidence contradicting or challenging the results of the various searches and observations made by him. Her Honour found that the pleading at paragraph 6 of the statement of claim could not stand, there had been no indication by the respondent of any intention to file an amended statement of claim and on the state of the current statement of claim no sustainable pleading of a connection to Queensland in the former publication to any person. Her Honour held that as a result of the answer to an interrogatory, the appellant’s sole pleaded publication has been shown to be incorrect and there had been no amendment to the statement of claim. She held it was difficult to see how the appellant could have had a reputation in Queensland damaged and, in all those circumstances, she decided that the originating process should be set aside.

Appellant’s submissions

42. [42]
    The appellant submits that, at all material times, the appellant resided in Queensland and the first and second respondents resided in the ACT. It is firstly submitted the magistrate erred in law when she failed to find the respondents had submitted to the jurisdiction of the Court when they applied for leave to interrogate. It is submitted the magistrate next erred in law when she found the publication was required to have occurred in Queensland. The fact is, the appellant gave evidence he lived in Queensland since 2012 and alleged that he suffered personal distress and hurt by reason of the publication. It is submitted that the magistrate erred when she rejected the appellant’s evidence that he had lived in Queensland since 2012. It is submitted that the magistrate erred in finding the appellant had the onus of proving the Court had jurisdiction to hear the claim. Rather, it was for the respondents to prove this.

43. [43]
    Finally, it is submitted that the magistrate erred in accepting, over objection, the hearsay opinion evidence of Mr Brackenreg and the opinion evidence of Mr Wilson. It is submitted that neither men were experts in any field and, applying the principles expressed in Thiess Pty Ltd & Anor v Arup Pty Ltd & Ors,^[16] the evidence was not admissible.

Respondents’ submissions

44. [44]
    The respondents, on the other hand, submit that the appellant pleaded a solitary publication in Queensland to a Mr Mills as the foundation for jurisdiction. This was found to be false when the appellant admitted in answers to interrogatories that Mr Mills had viewed the website in Victoria. The appellant did not amend his pleading despite multiple invitations. It is submitted that the reputation damaged by way of defamation must have the attribute that it is damaged by publication in Queensland. It is submitted that the magistrate was entitled to rely on the evidence of Mr Wilson as his evidence was about observations resulting from his knowledge and use of the computer system and, further, the appellant failed to take any opportunity which would challenge Mr Wilson’s evidence. It is submitted that there was no submission to jurisdiction by the application to deliver interrogatories; the mere fact he suffered injuries to his feelings in Queensland is not sufficient; the magistrate correctly identified the respondents bore the onus of proof and the appellant’s submissions ignore the fact that Mr Wilson was familiar with the computer system operated by the second respondent and his evidence was admissible under s 92 of the Evidence Act 1977 but, in any event, his experience and knowledge qualified him as ad hoc expert.

Discussion

45. [45]
    The UCPR r 16(e) provides “The court may set aside an originating process”.

46. [46]
    In Edington v Board of Trustees of the State Public Sector Superannuation Scheme^[17] Mullins J dismissed an application under r 16 and said in relation to such applications the approach should be no less stringent than applications brought under r 293 and authoritative statements about exercising caution and terminating proceedings summarily remain applicable. 

47. [47]
    I consider the Magistrate correctly applied these principles in her approach to the matter^[18].

Ground 1(a) – submission to jurisdiction

48. [48]
    The first ground to be considered is whether the respondents submitted to the jurisdiction of the court.

49. [49]
    As I have noted, the appellant submits that, by engaging in the application for interrogatories, the respondents did submit to the court’s jurisdiction.

50. [50]
    I agree with the respondents’ submissions. The ground has no merit in light of the pleaded case on publications. The purpose of the application for interrogatories was a step in the challenge to jurisdiction notified in accordance with the UCPR by filing a conditional notice to defend.

51. [51]
    I do not consider the outline of submissions relied on by the respondents below^[19] constituted any waiver of their part. At all times the respondents objected to jurisdiction.  Every step taken was designed to object to jurisdiction.

52. [52]
    In Williams v Society of Lloyds^[20] McDonald J noted that for there to be submission to jurisdiction there must be a voluntary act unequivocally evincing an intention to abandon or to not assert a right.

53. [53]
    Where one is endeavouring to set aside the process this does not demonstrate an intention to submit to jurisdiction.^[21] 

54. [54]
    I reject this ground of appeal.

Ground 1 (b) – the Magistrate erred in finding that there had to be publication in Queensland

55. [55]
    The appellant concedes that there was no positive evidence in this case that a third party viewed the material in Queensland and concedes that Mr Mills viewed the material in Victoria.

56. [56]
    There is no evidence that there was publication of the alleged defamatory material in Queensland, nor is this pleaded. The appellant, though, says that since 2012 he was a resident of Queensland^[22] and wishes to protect his reputation in Queensland.  He submits then that because of his distress in this state, part of the tort has occurred here.

57. [57]
    It must be remembered that for an individual an action for defamation may be brought without proof of damage. Libel and Slander is actionable per se.^[23]  It is the publication of defamatory material which gives rise to the cause of action.^[24] Damage is not an element of the cause of action.^[25] 

58. [58]
    In Dow Jones & Company Inc v Gutnick,^[26] the plurality noted at [25] that the tort of defamation focusses upon publications causing damage to reputation.  It is the publication, not the composition of the libel, which is the actionable wrong.

59. [59]
    It was said at [44]:

“…ordinarily defamation is to be located at the place where the damage to reputation occurs.  Ordinarily that will be where the material which is alleged to be defamatory is available in comprehensible form assuming, of course, that the person defamed has in that place a reputation which is thereby damaged.  It is only when the material is in comprehensible form that the damage to reputation is done and it is damage to reputation which is the principal focus of defamation, not any quality of the defendant's conduct.  In the case of material on the World Wide Web, it is not available in comprehensible form until downloaded on to the computer of a person who has used a web browser to pull the material from the web server.  It is where that person downloads the material that the damage to reputation may be done.  Ordinarily then, that will be the place where the tort of defamation is committed.”

60. [60]
    Kirby J at [151] said:

“In a cause of action framed in defamation, the publication of the material which damages the reputation of the plaintiff is essential… The material has to be accessed or communicated in a jurisdiction where the plaintiff has a reputation.  That will usually be the place where the plaintiff is resident.”

61. [61]
    As damage is not an element of this tort the fact he may have suffered distress in Queensland is not a sufficient basis to found jurisdiction. This is not like a matter where damages are sought for personal injuries.^[27]  The reference to Carson v John Fairfax^[28] does not assist the appellant.  The quotation relied on makes it clear that it is the publication which causes the harm.

62. [62]
    Accordingly, to determine whether or not the Queensland Magistrates Court had jurisdiction it was necessary to determine where publication occurred.

63. [63]
    The solitary publication pleaded in the statement of claim was alleged to be Mr Mills. The answers to interrogatories proved that allegation to be incorrect.  The appellant did not amend his pleading despite multiple invitations. 

64. [64]
    The inference to be drawn is that the appellant was not in a position to plead that other publications to other parties occurred in the state of Queensland.

65. [65]
    The magistrate crucially found:

1. (a)
   The appellant’s pleading relied on the single publication in Queensland to Mr Mills;^[29]

2. (b)
   This was incorrect, having regard to the fact that this publication occurred in Victoria;^[30]

3. (c)
   When the true position was elicited the appellant refused to amend his statement of claim;^[31]

4. (d)
   The respondents had the onus on the application to set aside;^[32]

5. (e)
   Publication in Queensland is a necessary jurisdictional prerequisite;^[33]

6. (f)
   By reason of the incorrect pleading at paragraph 6 of the statement of claim, the appellant could not, on his pleaded case, establish a jurisdictional connection by publication in Queensland; and

7. (g)
   Apart from the pleaded case, the evidence did not support a finding of publication in Queensland.^[34]

66. [66]
    These conclusions reached by the magistrate were supported by the evidence before her.

67. [67]
    Leaving aside the evidence of Mr Wilson, discussed below, there was no evidence of publication in Queensland to any third party. The appellant refused to re-plead his case.

68. [68]
    The jurisdictional threshold was not established.

69. [69]
    There was no error by the magistrate.

70. [70]
    I reject this ground of appeal.

Ground 1 (c) – the magistrate erred in finding that the appellant had the onus to prove that the court had jurisdiction

71. [71]
    In this regard, it is my opinion that the onus was on the respondents.

72. [72]
    At paragraph [34] of the reasons the magistrate noted that the respondents had the onus to set aside the proceedings.

73. [73]
    It is true that the magistrate at [39] said the “plaintiff has failed to show that this court has jurisdiction to decide the claim”, but this must be read in its full context.

74. [74]
    The magistrate, after having referred to the respondents carrying the onus, then referred to the opportunities the appellant had to challenge the matters in Mr Wilson’s affidavit but noted that he had not done so. She noted at [37]:

“Even though the applicants carry the onus in the application, the respondent’s failure to have responded to Mr Wilson’s affidavit is noteworthy.”

75. [75]
    Mr Wilson had given evidence that within the period of limitation there had been two downloads in Queensland. At paragraph [30] of his affidavit he pointed out the similarities in the downloads. These occurred on 2 March 2015, a few days before the filing of the claim. Mr Price had sworn that he accessed the article in February or March 2015. There was a reasonable inference on the material that the only downloading in Queensland during the limitation period was by the plaintiff himself.

76. [76]
    In those circumstances, I consider that an evidential onus shifted to the appellant. He chose not to put in any evidence refuting Mr Wilson’s affidavit, did not seek to cross-examine Mr Wilson, and did not seek to amend his pleadings.

77. [77]
    The magistrate at [39] was, in effect, referring to the evidential material in the case.

78. [78]
    I do not consider an error or any material error can be established.

79. [79]
    I reject this ground of appeal.

Ground 1 (d) – the magistrate erred in rejecting the appellant’s claim that he had been domiciled in Queensland since 2012  

80. [80]
    I do not think this issue is of much moment. The issue in this case was the place of publication. The issue of residence was really only relevant to the convenience argument.

81. [81]
    If there was an error, it was immaterial. The issue was whether there was publication in Queensland.

Ground 1 (e) – the magistrate erred in accepting the evidence of Mr Brackenreg at the first hearing as to the number of downloads that occurred in Queensland 

82. [82]
    This ground need not be considered. The determinations at the first hearing are not relevant to this appeal. It was the evidence of Mr Wilson which is of some importance.

Ground 1 (f) – the magistrate erred in accepting the evidence of Mr Wilson

83. [83]
    The determination to be made is whether a person is giving evidence about facts or opinions. A person is entitled to give of facts observed which is not necessarily opinion evidence.^[35]

84. [84]
    In any event, long experience in an area may be sufficient to qualify one to give expert opinion.^[36]

85. [85]
    In Thiess Pty Ltd and Anor v Arup Pty Ltd and ors^[37] objection was taken to the report of an expert accountant. Applegarth J noted that a witness called as an expert must have specialised knowledge based on training, study or experience in a field of specialised knowledge and the opinion expressed must be wholly or substantially based upon that knowledge.

86. [86]
    If Mr Wilson is to be regarded as an expert I consider his affidavit sufficiently sets out his experience in a field of specialised knowledge.

87. [87]
    In my opinion, Mr Wilson gave evidence of information that he obtained from the computer system with which he was familiar and which he superintended for the second respondent. He produced printed records of the results of his search of the system and gave evidence of the results from the analytics tracker software with which he was familiar and which was used to obtain geolocational data about users of the site. At Paragraph 30 of his affidavit he gave evidence of what he ascertained about simultaneous downloads on 2 March 2015 located to Queensland, this event occurring in the period the appellant admitted to viewing information on his computer. I do consider his conclusions at paragraph 31 to be admissible but the magistrate did not rely on this.

88. [88]
    Mr Wilson’s evidence was of facts which speak for themselves and there was no cross-examination or contradicting evidence to challenge those facts. His evidence was unchallenged, apparently reliable, and required no real independent judgement to be exercised. In any event, his experience and knowledge qualified him as an ad hoc expert.^[38]  He was equipped to give opinions by previous habit.  A person can be an expert in an area by reason of skill or knowledge and it can be practical experience.

89. [89]
    I also agree with the respondents’ submissions that s 95 of the Evidence Act is a permissive provision allowing for a certificate as an evidentiary aid.^[39] 

90. [90]
    In my opinion therefore, Mr Wilson’s evidence was admissible and the magistrate was entitled to rely on that evidence.

91. [91]
    It is significant that, as the respondents point out, the appellant did not respond by going into evidence when it was within his capacity to refute any of the 12 unique identifying factors that could have distanced him from the recorded simultaneous views. The appellant, for instance, did not swear that he did not use the internet service provider “TPG Internet Pty Ltd” and put on contradicting evidence when it was simple for him to have done so if that were the fact.

92. [92]
    Also the evidence of what Mr Wilson found when he viewed and used the system was supported by the printouts and was alternatively admissible in my view under s 92 of the Evidence Act. 

93. [93]
    I reject this ground of appeal.

Orders

94. [94]
    In the circumstances, I order:

1. The appeal is dismissed.

2. I order the appellant pay the respondents’ costs of and incidental to the appeal as agreed or taxed.