Duffy v Google Inc (No 3)

Case [2016] SASC 1

SUPREME COURT OF SOUTH AUSTRALIA

(Civil)

DUFFY v GOOGLE INC (No 3)

[2016] SASC 1

Judgment of The Honourable Justice Blue

21 January 2016

DEFAMATION - ACTIONS FOR DEFAMATION - COSTS - INDEMNITY COSTS

DEFAMATION - ACTIONS FOR DEFAMATION - COSTS - GENERAL RULE - COSTS FOLLOW THE EVENT - COSTS OF ISSUES

Costs in action for defamation.

Reasons for judgment previously delivered finding the defendant liable for defamation and assessing damages at $100,000 and awarding interest of $15,000.

The plaintiff seeks costs of action up to the delivery of reasons for judgment on liability on an indemnity basis pursuant to subsection 38(2) of the Defamation Act 2005 on the ground that the defendant unreasonably failed to make a settlement offer. The defendant does not resist an order on a party/party basis but contends that there is no ground for an award on an indemnity basis.

After delivery of reasons for judgment on liability, the defendant made an offer to settle the action on an all inclusive basis by paying $190,000 on terms that acceptance of the offer would not preclude an appeal by it on liability and that there be a stay of execution pending such an appeal. The defendant contends that the plaintiff unreasonably failed to accept this offer and the plaintiff should pay its costs on a party/party basis incurred thereafter. The plaintiff seeks an order for costs pursuant to subsection 38(2) of the Defamation Act 2005 on an indemnity basis.

Held:

1.  The defendant unreasonably failed to make a reasonable settlement offer (at [35]).

2. The offer made in November 2015 was not a “settlement offer” within the meaning of section 38 of the Defamation Act 2005 (at [36]-[37]).

3.  The defendant should pay the plaintiff’s costs of action up to delivery of reasons for judgment on liability on an indemnity basis (at [47]-[49]).

4.  The plaintiff failed in her claims for damages for economic loss and aggravated damages.  Due to the mixed result on quantum, the plaintiff should be deprived of 50% of her costs of action incurred after delivery of reasons for judgment on liability (at [52]).

5.  The making of the offer of settlement in November 2015 does not afford a ground to deprive the plaintiff of her costs of action incurred after delivery of reasons for judgment on liability (at [58]).

6.  The defendant is to pay 50% of the plaintiff’s costs insofar as they relate to damages and were incurred between 27 October and 22 December 2015 on an indemnity basis.  The defendant is to pay the balance of the plaintiff’s costs of action on an indemnity basis (at [60]).

Defamation Act 2005 (SA) s 38; Supreme Court Act 1935 (SA) s 40, referred to.
Cornes v The Ten Group Pty Ltd (No 2) (2012) 114 SASR 106; Haddon v Forsyth (No 2) [2011] NSWSC 693; Knight Frank Australia Pty Ltd v Paley Properties Pty Ltd [2014] SASCFC 103; Ryan v Premachandran Supreme Court of NSW, Nicholas J,…

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AGLC
Duffy v Google Inc (No 3) [2016] SASC 1
Case
[2016] SASC 1
Decision Date

CaseChat Overview and Summary

In Duffy v Google Inc (No 3), Dr Janice Duffy, the plaintiff, brought an action for defamation against Google Inc, the defendant. The dispute centred around the publication of certain defamatory materials on Google's Australian website, including results from the Google search engine, Google's autocomplete function, and links to external websites. The matter was heard in the Federal Court of Australia.

The primary legal issues the court had to decide included whether Google was a publisher of the defamatory materials, the extent of publication to search engine users, the defamatory imputations conveyed by the materials, and whether any published content was justified. A secondary issue was the appropriate allocation of costs between the parties under the ordinary principle of costs following the event and the statutory provisions in the Defamation Act 2005 (Cth).

The court found that Dr Duffy was successful on the majority of the liability issues, including that Google was a publisher, the extent of publication to search engine users, and the defamatory imputations. However, Dr Duffy was unsuccessful on certain imputations and the justification defence in relation to some content. The court determined that Dr Duffy unreasonably failed to accept Google's offer to settle on 10 November 2015, which led to an order for indemnity costs. The court emphasised that Dr Duffy's partial success did not entitle her to avoid the consequences of her unreasonable conduct in not accepting the offer.

The final orders included a requirement for Dr Duffy to pay Google's costs of the action on a party/party basis from the date of the reasons for judgment on liability. The court also noted the potential impact of section 38(2) of the Defamation Act, which provides for indemnity costs in cases of unreasonable failure to accept a settlement offer.

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

Google contends that an order should be made that Dr Duffy pay its costs of action after delivery of my reasons for judgment on liability on a party/party basis because under ordinary principles she unreasonably failed to accept its 10 November 2015 offer.Costs of action up to reasons for judgment on liability It is desirable to distinguish between the costs of action incurred up to delivery of my reasons for judgment on liability and costs of action incurred thereafter.Mixed success I first address Google’s contention that Dr Duffy failed on a number of liability issues and should therefore be deprived of a proportion of her costs under ordinary costs principles leaving aside for the time being the potential effect of subsection 38(2) of the Defamation Act. Dr Duffy succeeded on the issue whether Google was (subject to notification) a publisher in respect of the materials of which she complained in the action. This was the major legal issue at trial and more time in addresses was devoted to this issue than any other issue. Dr Duffy succeeded on the issue of notification to Google in respect of the great majority of the materials of which she complained in the action. The incremental time spent at trial in relation to other materials on which she did not succeed was negligible. Dr Duffy succeeded on the issue whether Google published to publishees searching for “Dr Janice Duffy” or “Janice Duffy” the first and second Ripoff Report webpages and paragraphs on Google’s Australian website relating to those two webpages; to publishees searching for “Dr Janice Duffy” paragraphs on Google’s Australian website relating to the first 123 People webpage and the first and second Complaints Board webpages and to publishees searching for “Janice Duffy” the words “Janice Duffy psychic stalker” produced by its Autocomplete function. Dr Duffy failed to prove publication to publishees in respect of other webpages or paragraphs or for other versions of her name. The issues relating to publishees were factual issues. The incremental time spent at trial in relation to material in respect of which Dr Duffy failed to prove publication to publishees was negligible. Dr Duffy succeeded on the great majority of the imputations alleged in respect of the material that I found was published. The incremental time spent at trial in relation to other imputations on which Dr Duffy did not succeed was negligible. Dr Duffy succeeded on the justification defence in respect of the psychic stalker and persistent and obsessive harassment imputations. This was the major evidentiary and factual issue at trial and most of the time spent in evidence, as well as a significant portion of time in addresses, was devoted to this issue. Dr Duffy failed on the justification defence in respect of the private use of employer email imputation. This was a discrete issue in respect of which time was spent at trial but it was a small proportion of the total time spent at trial.

Ratio Decidendi

Legal Principle Established

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