| 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…
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- AGLC
- Defteros v Google Inc (No 3) [2018] VSC 375
- Case
- [2018] VSC 375
- Decision Date
CaseChat Overview and Summary
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
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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