SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
DUFFY v GOOGLE LLC
[2019] SASC 157
Judgment of The Honourable Justice Blue
6 September 2019
DEFAMATION - INJUNCTIONS - INTERLOCUTORY INJUNCTIONS
PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PROCEDURE UNDER RULES OF COURT - SUMMARY JUDGMENT
PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PROCEDURE UNDER RULES OF COURT - AMENDMENT
The plaintiff has instituted a second action for defamation against the defendant. The plaintiff seeks permission to the extent necessary to amend her statement of claim and to proceed with the action pursuant to section 21 of the Defamation Act 2005 (SA). She also seeks an interlocutory injunction restraining the defendant from publishing matters originating from the Ripoff Report website which contain any of 13 imputations. The defendant seeks summary dismissal of the action.
Held:
1. The defendant has failed to establish the criteria for summary judgment in its favour (at [111]).
2. Permission to proceed with the action (per the proposed amended statement of claim) is granted (at [143]).
3. Permission to amend the statement of claim is granted (at [118], [151]).
4. The plaintiff’s application for interlocutory injunction is dismissed (at [150]).
5. The defendant’s application for summary judgment is dismissed (at [153]).
Defamation Act 2005 (SA) s 21; Defamation Act 2005 (NSW) s 23, referred to.
Carolan v Fairfax Media Publications Pty Limited (No 7) [2017] NSWSC 351; Ghosh v Nine Digital Pty Ltd [2017] NSWCA 90; Hockey v Fairfax Media Publications Pty Limited (No 2) (2015) 237 FCR 127; Phillips v Robab Pty Limited [2014] NSWSC 1520; Rush v Nationwide News Pty Limited (No 9) [2019] FCA 1383; Trkulja v Google LLC (2018) 263 CLR 149, discussed.
Bradman v Allens Arthur Robinson [2009] SASC 80; Ceneavenue Pty Ltd v Martin (2008) 106 SASR 1; Collins v Djunaedi [2016] SASCFC 48; Jennings v Police [2019] SASCFC 93; Proude v Visic (No 4) (2013) 117 SASR 560; Spencer v Commonwealth of Australia (2010) 241 CLR 118, considered.
DUFFY v GOOGLE LLC
[2019] SASC 157BLUE J:
Dr Janice Duffy has instituted this action (the second action) for defamation against Google LLC (Google). Dr Duffy applies by interlocutory application for permission, to the extent necessary, to amend her statement of claim and to proceed with the action pursuant to section 21 of the Defamation Act 2005 (SA) (the Act). Google applies by interlocutory application for summary dismissal of the action. Dr Duffy seeks an interlocutory injunction restraining Google from publishing matters originating from the Ripoff Report website which contain any of 13 defamatory imputations. I refer to the four applications by the parties as the interlocutory applications.
Background
In February 2011 Dr Duffy instituted an action (the first action) for defamation against Google. Dr Duffy alleged, amongst other things, that Google had published two reports on the Ripoff Report website ( as follows:
1Report #295712 by Mary…
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- Duffy v Google LLC [2019] SASC 157
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- [2019] SASC 157
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CaseChat Overview and Summary
The parties to the interlocutory applications in Duffy v Google LLC are Dr Janice Duffy, the plaintiff, and Google LLC, the defendant. Dr Duffy is pursuing a claim for defamation against Google, asserting that Google published defamatory content on its Ripoff Report website. The case was heard in the Supreme Court of South Australia. Dr Duffy seeks permission to amend her statement of claim and to proceed with her defamation action under section 21 of the Defamation Act 2005 (SA). Google has applied for the summary dismissal of the action and for an interlocutory injunction to prevent the publication of specific defamatory content originating from the Ripoff Report website.
The court had to decide several legal issues, including whether Dr Duffy needed permission to amend her statement of claim under section 21 of the Defamation Act 2005 (SA), whether there was a reasonable basis for Dr Duffy's defamation claim against Google, and whether an interlocutory injunction should be granted to restrain Google from publishing defamatory content from the Ripoff Report website. The court considered the principles governing summary judgment and interlocutory injunctions, including the requirement for there to be no reasonable basis for the claim or defence and the need for the court to assess whether the claim or defence has reasonable prospects of success.
The court found that Dr Duffy did not need permission to amend her statement of claim under section 21 of the Defamation Act 2005 (SA) as the amendment did not introduce new claims but rather clarified and supplemented the existing allegations. The court further determined that Dr Duffy's defamation claim had reasonable prospects of success as the defamatory content had been published by Google and was accessible via search results. Consequently, the court denied Google's application for summary judgment. Regarding the interlocutory injunction, the court held that there was no immediate threat to Dr Duffy's reputation that warranted an injunction at that stage of the proceedings.
The court's decision concludes that Dr Duffy is granted permission to amend her statement of claim and to proceed with the action. Google's application for summary dismissal is dismissed, and its application for an interlocutory injunction is also dismissed. The court's final orders allow Dr Duffy to continue with her defamation action against Google, with the opportunity to present her amended statement of claim.
The court had to decide several legal issues, including whether Dr Duffy needed permission to amend her statement of claim under section 21 of the Defamation Act 2005 (SA), whether there was a reasonable basis for Dr Duffy's defamation claim against Google, and whether an interlocutory injunction should be granted to restrain Google from publishing defamatory content from the Ripoff Report website. The court considered the principles governing summary judgment and interlocutory injunctions, including the requirement for there to be no reasonable basis for the claim or defence and the need for the court to assess whether the claim or defence has reasonable prospects of success.
The court found that Dr Duffy did not need permission to amend her statement of claim under section 21 of the Defamation Act 2005 (SA) as the amendment did not introduce new claims but rather clarified and supplemented the existing allegations. The court further determined that Dr Duffy's defamation claim had reasonable prospects of success as the defamatory content had been published by Google and was accessible via search results. Consequently, the court denied Google's application for summary judgment. Regarding the interlocutory injunction, the court held that there was no immediate threat to Dr Duffy's reputation that warranted an injunction at that stage of the proceedings.
The court's decision concludes that Dr Duffy is granted permission to amend her statement of claim and to proceed with the action. Google's application for summary dismissal is dismissed, and its application for an interlocutory injunction is also dismissed. The court's final orders allow Dr Duffy to continue with her defamation action against Google, with the opportunity to present her amended statement of claim.
Orders
Orders of the court
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Background
Background to the litigation
Dr Janice Duffy has instituted this action (the second action) for defamation against Google LLC (Google). Dr Duffy applies by interlocutory application for permission, to the extent necessary, to amend her statement of claim and to proceed with the action pursuant to section 21 of the Defamation Act 2005 (SA) (the Act). Google applies by interlocutory application for summary dismissal of the action. Dr Duffy seeks an interlocutory injunction restraining Google from publishing matters originating from the Ripoff Report website which contain any of 13 defamatory imputations. I refer to the four applications by the parties as the interlocutory applications.Background In February 2011 Dr Duffy instituted an action (the first action) for defamation against Google. Dr Duffy alleged, amongst other things, that Google had published two reports on the Ripoff Report website ( as follows:1Report #295712 by Mary anne of Riverton Wyoming originally dated 30 December 2007 (with updates and comments) entitled “Report: Janice Duffy – Psychic Stalker! Psychics Beware of Australian Psychic Stalker!” (the first original ROR report) which had the following universal resource locator (URL) (the first original ROR URL): #295925 by Mary anne of Riverton Wyoming originally dated 31 December 2007 (with subsequent updates and comments) entitled “Report: Dr. Janice Duffy” (the second original ROR report) which had the following URL (the second original ROR URL):>Dr Duffy also alleged that Google published various paragraphs returned as search results on searches for iterations of her name, including:1the following paragraph (the first original search result) containing a hyperlink to the first original ROR report:Janice Duffy – Psychic Stalker! Psychics Beware Of Australian… 30 Dec 2007 … Janice Duffy – Psychic Stalker! Psychics Beware of Australian Psychic Stalker! Janice Duffy Stalked me on the computer for several months. Cached2the following paragraph (the second original search result) containing a hyperlink to the second original ROR report:Ripoff Report Dr. Janice Duffy Stop the Australian Psychic …Dr. Janice Duffy Stop the Australian Psychic Stalker Dr. Janice Duffy!! Adelaide, South Australia Adelaide, South Australia. Cached I heard the trial of the first action in June and August 2015. In October 2015 I published reasons for judgment[1] in which I concluded that Dr Duffy had proved that Google published, amongst other things, the first and second original ROR reports and the first and second original search results. I concluded that each contained various defamatory imputations and that various defences relied on by Google generally failed.[1] Duffy v Google Inc [2015] SASC 170. In December 2015 I assessed damages at $100,000[2] and in January 2016 I awarded judgment in favour of Dr Duffy against Google for $115,000 inclusive of interest and made orders relating to the costs of action.[3][2] Duffy v Google Inc (No 2) [2015] SASC 206.[3] Duffy v Google Inc (No 3) [2016] SASC 1.
Evidence
Evidence Before The Court
In June 2018 Google filed an interlocutory application seeking summary judgment.Evidence On the hearing of the interlocutory applications, I received on tender by Dr Duffy (subject to certain exclusions) three affidavits sworn by her in June, July and August 2018 together with affidavits sworn by her former solicitors Edward Guthrie and Patrick McCabe in September 2016 and December 2017 respectively together (subject to certain exclusions) with the exhibits to those five affidavits. Dr Duffy gave oral evidence and was cross-examined. Dr Duffy adduced oral evidence from Michelle De Veau, who was also cross-examined, who gave evidence about undertaking searches using Google in relation to Dr Duffy. I also received various other documents. I received on tender by Google an affidavit affirmed by Google Staff Software Engineer Raghava Kondepudy in August 2018. Mr Kondepudy gave evidence in part by adopting (subject to qualifications) parts of a written statement by Vaughan Madden-Woods, another Google Staff Software Engineer, dated June 2015. I received an affidavit affirmed by Google’s solicitor Paul Dimitriadis in June 2018. I received the exhibits to and certain documents referred to in those affidavits. Mr Kondepudy and Mr Dimitriadis gave oral evidence in cross-examination and re-examination. I also received various other documents. I address the effect of the evidence when relevant to and in the context of the parties’ submissions rather than attempting to summarise it at this point. I have had regard to the whole of the admitted evidence in deciding the various issues that arise on the interlocutory applications.Summary judgment application Google’s primary contention is that Dr Duffy requires permission to proceed pursuant to section 21 of the Act, such permission should be refused amongst other reasons because Dr Duffy will not succeed in the action, and the action should be dismissed absent such permission. Google contends in the alternative that, if section 21 permission is not required or is granted, summary judgment should be granted dismissing the action on Google’s application. There is an obvious overlap between the questions whether permission to proceed should be refused because Dr Duffy will not succeed in the action and whether the action should be summarily dismissed on Google’s application. Although logically the question of section 21 permission arises first and if summary judgment would otherwise be granted section 21 permission should be refused, it is convenient to address Google’s summary judgment application first because of the overlap of issues.Summary judgment principles Rule 232 of the Supreme Court Civil Rules 2006 (SA) (the Rules) empowers the Court to grant summary judgment dismissing an action on the application of a defendant “if and only if there is no reasonable basis for the claim against the applicant”. In Ceneavenue Pty Ltd v Martin,[10] Debelle J (with whom Duggan and Anderson JJ agreed) said:The test in Rule 232(2) requires the court first to identify the issues to be tried and then to assess whether the claim or defence has reasonable prospects of success… The question whether there is no reasonable basis for the claim or defence must be determined in a summary way. It is entirely inappropriate for there to be a mini trial on that question. It must, therefore, be evident or obvious that the party defending the application for summary judgment has no reasonable basis for the claim or the defence. While adversarial argument will assist in the determination of that question, the question should be capable of ready resolution without prolonged argument. A prolonged argument might suggest that there is a reasonable basis for the claim or the defence. Comparison with the requirements in rules in other jurisdictions providing for summary judgment confirms these propositions.[11][10] [2008] SASC 158, (2008) 106 SASR 1.[11] At [81]-[82].
Decision
Reasons for decision
There is an obvious overlap between the questions whether permission to proceed should be refused because Dr Duffy will not succeed in the action and whether the action should be summarily dismissed on Google’s application. Although logically the question of section 21 permission arises first and if summary judgment would otherwise be granted section 21 permission should be refused, it is convenient to address Google’s summary judgment application first because of the overlap of issues.Summary judgment principles Rule 232 of the Supreme Court Civil Rules 2006 (SA) (the Rules) empowers the Court to grant summary judgment dismissing an action on the application of a defendant “if and only if there is no reasonable basis for the claim against the applicant”. In Ceneavenue Pty Ltd v Martin,[10] Debelle J (with whom Duggan and Anderson JJ agreed) said:The test in Rule 232(2) requires the court first to identify the issues to be tried and then to assess whether the claim or defence has reasonable prospects of success… The question whether there is no reasonable basis for the claim or defence must be determined in a summary way. It is entirely inappropriate for there to be a mini trial on that question. It must, therefore, be evident or obvious that the party defending the application for summary judgment has no reasonable basis for the claim or the defence. While adversarial argument will assist in the determination of that question, the question should be capable of ready resolution without prolonged argument. A prolonged argument might suggest that there is a reasonable basis for the claim or the defence. Comparison with the requirements in rules in other jurisdictions providing for summary judgment confirms these propositions.[11][10] [2008] SASC 158, (2008) 106 SASR 1.[11] At [81]-[82]. In Bradman v Allens Arthur Robinson,[12]Kourakis J (as his Honour then was) said:[12] [2009] SASC 80.The purpose of the rule is plain. In Swain Lord Woolf MR explained that it saves expense and achieves expedition. Importantly, he observed that it avoids the Court’s resources being used up on cases for no purpose. The rule serves the interests of justice, because as Lord Woolf MR explained:If a claimant has a case which is bound to fail, then it is in the claimant’s interests to know as soon as possible that that is the position. Likewise, if a claim is bound to succeed, a claimant should know that as soon as possible. It follows from the object of the rule so stated that it is inappropriate to hold a mini-trial. In Three Rivers District Council v Bank of England (No 3) - Lord Hope put it in this way:It may be clear beyond question that the statement of facts is contradicted by all the documents or other material on which it is based. The simpler the case the easier it is likely to be to take that view and resort to what is properly called summary judgment. But more complex cases are unlikely to be capable of being resolved in that way without conducting a mini-trial on the documents without discovery and without oral evidence. As Lord Woolf said in Swain v Hilman, that is not the object of the rule. It is designed to deal with cases that are not fit for trial at all. (underlining added)A similar position was stated by Rares J in Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd, when he said:The purpose of the enactment is to enable the court to deal with matters which should not be litigated because there is no reasonable prospect of any outcome but one. If there is a reasonable danger that a claim or defence could be dismissed under s 31A, which could succeed at a trial, the provision would create miscarriages of justice. ... It could not have been the intention of the parliament in introducing s 31A to the Federal Court Act to require the court to engage in lengthy and elaborate trials on an interlocutory basis for the purpose of determining whether or not a proceeding had no reasonable prospects of success.[13][13] At [25]-[27]. (Citations omitted)
Ratio Decidendi
Legal Principle Established
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