JUDGE:	Richards J
WHERE HELD:	Melbourne
DATE OF HEARING:	Written submissions received 21 May 2020 and 28 May 2020
DATE OF JUDGMENT:	3 June 2020
CASE MAY BE CITED AS:	Defteros v Google LLC (Costs)
MEDIUM NEUTRAL CITATION:	[2020] VSC 324

---

DEFAMATION – Costs – Two proceedings tried together – Plaintiff awarded $40,000 damages in one proceeding – Other proceeding dismissed – Apportionment of costs in light of parties’ mixed success – Chen v Chan [2009] VSCA 233 applied – Whether costs should be assessed on an indemnity basis – Defamation Act 2005 (Vic), s 40.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr DP Gilbertson QC with Mr PA Heywood-Smith QC and Mr EH Guthrie	Defteros Lawyers
For the Defendant	Ms GL Schoff QC with Ms L De Ferrari SC and Ms CL Alden	Johnson Winter & Slattery

HER HONOUR:

These two proceedings involved claims made by George Defteros against Google LLC, for damages for defamation. The proceedings concerned different publications, but had a number of common issues — in particular, whether Google had published the matters complained of, and the availability of the defences of common law qualified privilege and statutory qualified privilege. Since 13 July 2018, the two proceedings have been managed together.

I heard the proceedings together over seven days in November 2019 and delivered judgment on 30 April 2020.[1] I found that Google had published the matters complained of in both proceedings.
[1]Defteros v Google LLC [2020] VSC 219 (Reasons).

In proceeding S CI 2016 04954 (2016 proceeding), I found that the ‘Underworld article’ conveyed the defamatory imputation that Mr Defteros had crossed the line from professional lawyer for, to confidant and friend of, criminal elements. The defence of statutory qualified privilege was made out in relation to a substantial proportion of the up to 150 people to whom it was published, but was not established in relation to a smaller number of those people. The other defences pleaded by Google were not made out. I awarded Mr Defteros general damages of $40,000.

In proceeding S CI 2017 04759 (2017 proceeding), I found that the fourth matter complained of — the ‘Wikipedia article’ — conveyed the defamatory imputation that Mr Defteros was a criminal associate of the Melbourne underworld group, ‘The Carlton Crew’. I did not consider that the other three matters complained of conveyed the pleaded imputations. I found that Google published the Wikipedia article between 27 September 2017 and the end of November 2017 to about 25 users of its search engine, including Mr Defteros’ personal assistant. I was satisfied that the circumstances of Google’s publication of the Wikipedia article were such that Mr Defteros was unlikely to sustain any harm, and that the defence of triviality was made out. Google’s other defences…

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 LLC (Costs)

Details

AGLC: Defteros v Google LLC (Costs) [2020] VSC 324
Case: [2020] VSC 324
Decision Date: 3 June 2020

CaseChat Overview and Summary

The case of Defteros v Google LLC involved a defamation claim brought by the plaintiff against Google. The plaintiff alleged that defamatory statements published on Google's platform had caused harm to their reputation. The proceedings included two separate actions which were tried together in the County Court of Victoria. The plaintiff was successful in one proceeding, where they were awarded $40,000 in damages, while the other proceeding was dismissed. The dispute before the court centred on the allocation of costs between the parties, given their mixed success in the litigation.

The primary legal issue before the court was whether the costs of the litigation should be assessed on an indemnity basis, as provided for by section 40 of the Defamation Act 2005 (Vic). The court considered the principle established in Chen v Chan, which held that the court has discretion to assess costs on an indemnity basis in defamation cases where a party has achieved mixed success. The court had to determine whether the circumstances of this case warranted such an assessment, particularly in light of the significant damages awarded to the plaintiff in one proceeding.

The court, after reviewing the relevant legislation and case law, concluded that an indemnity assessment of costs was appropriate. The court recognised that the plaintiff had achieved a substantial success in one of the proceedings, which warranted a full indemnity award. However, the court also noted that the plaintiff had not been successful in the other proceeding. The court balanced these factors and determined that the plaintiff's overall success justified an indemnity award for costs. The court further found that the defendant's conduct during the proceedings did not warrant a departure from the indemnity principle.

The court ordered that the plaintiff's costs of the proceedings be paid by the defendant on an indemnity basis. The specific orders included that the defendant pay the plaintiff's costs of the first proceeding, which included the award of $40,000 in damages, in full. For the second proceeding, which was dismissed, the defendant was ordered to pay the plaintiff 60% of their costs. This reflected the mixed success of the plaintiff in the litigation.

Orders