Defteros v Google Inc (No 3) - [2018] VSC 375

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

MAJOR TORTS LIST

S CI 2016 04954

GEORGE DEFTEROS	Plaintiff
v
GOOGLE INC LLC	Defendant

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JUDGE:	MACAULAY J
WHERE HELD:	Melbourne
DATE OF HEARING:	6 June 2018
DATE OF RULING:	8 June 2018
CASE MAY BE CITED AS:	Defteros v Google Inc (No 3)
MEDIUM NEUTRAL CITATION:	[2018] VSC 375

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	D Gilbertson QC with T Guthrie	Defteros Lawyers
For the Defendant	L De Ferrari SC with C Alden	Johnson Winter & Slattery

TABLE OF CONTENTS

Introduction......................................................................................................................................... 1

Background......................................................................................................................................... 1

Should Google’s denial of being the publisher be struck out?................................................ 3

Should the 2016 and 2017 proceedings be heard together?....................................................... 6

Conclusion........................................................................................................................................... 9

HIS HONOUR:

Introduction

By summons dated 14 May 2018 the plaintiff, George Defteros, applied under r 23.02 of the Supreme Court (General Civil Procedure) Rules 2015[1] for an order that certain paragraphs of the amended defence of the defendant, Google Inc LLC (Google), be struck out. He also applied for an order under r 9.12 of the Rules that this proceeding be tried at the same time as proceeding number S CI 2017 04759 in which he is plaintiff and Google is also defendant (the 2017 proceeding).
[1]Supreme Court (General Civil Procedure) Rules 2015 (Vic), (‘the Rules’).

Mr Defteros’s summons also sought summary judgment on the same paragraphs of the amended defence and, in the alternative to the two proceedings being tried together, consolidation of the proceedings. Those applications were abandoned.

Background

This proceeding (the 2016 proceeding) was commenced by writ filed 2 December 2016. An amended statement of claim was filed 28 April 2017. By his claim in this proceeding, Mr Defteros alleges that Google published certain ‘web matter’ between 1 March 2016 and at least 29 November 2016 which was defamatory of him. The web matter concerned is set out in Annexure A to the amended statement of claim and comprehends matter on two web pages. The first element of the web matter is what may be described as the ‘search result’ returned from the entry into Google’s search engine of certain search parameters. A search result consists of the title of the relevant underlying web page originally published by a third party publisher (in this case a newspaper article published in The Age in 2004), some initial text from that underlying web page extracted from the page itself (herein called a ‘snippet’) and the uniform source locator (‘URL’) hyper-link for that underlying web page. The second element of the web matter is the underlying web page accessed via the URL within the search result.

Mr Defteros alleges he notified Google of the publication of the web matter on 4 February 2016 and that Google failed to remove it within a reasonable time. He alleges that Google became the publisher of the web matter a reasonable time after notification.

Google denies that it was the publisher…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Defteros v Google Inc (No 3)

Details

AGLC: Defteros v Google Inc (No 3) [2018] VSC 375
Case: [2018] VSC 375
Decision Date: 8 June 2018

CaseChat Overview and Summary

The plaintiff, George Defteros, sought an order that certain paragraphs of the defendant, Google Inc LLC's amended defence be struck out and that the 2016 and 2017 proceedings be heard together. The 2016 proceeding was filed in December 2016, alleging that Google published defamatory "web matter" between 1 March 2016 and at least 29 November 2016. The 2017 proceeding was filed in November 2017, alleging that Google published further defamatory web matter. Google denied that it was the publisher of the web matter in both cases and raised various defences. The Court considered whether Google's denial of being the publisher should be struck out and whether the 2016 and 2017 proceedings should be heard together.

The Court found that Google's denial of being the publisher should not be struck out. The Court held that the power to strike out a pleading under r 23.02 of the Rules concerns the form of a pleading rather than the legal merit of a defence. The Court also found that the issue of whether Google was the publisher of the web matter was a question of mixed fact and law in a context in which the allegedly published web matter was a rolled up combination of the search result and the underlying web page. The Court held that it would be undesirable to determine this issue on an interlocutory application where it may otherwise be decided in the context of a trial on the issues.

The Court found that the 2016 and 2017 proceedings should not be heard together. The Court found that the issues of fact and law in the two proceedings would be quite distinct in many respects. The Court also found that the potential saving of time if the two proceedings were tried at the same time was likely to be modest at best, and certainly not substantial. The Court held that the delay in hearing the 2016 proceeding should the two proceedings be heard together was likely to be significant.

Both applications were refused and the summons dismissed.

Orders