George Defteros v Google Inc LLC
[2018] VSCA 176
•25 July 2018
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2018 0081
| GEORGE DEFTEROS | Applicant |
| v | |
| GOOGLE INC LLC | Respondent |
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| JUDGES: | BEACH, HARGRAVE JJA and SIFRIS AJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 25 July 2018 |
| DATE OF JUDGMENT: | 25 July 2018 |
| MEDIUM NEUTRAL CITATION: | [2018] VSCA 176 |
| JUDGMENT APPEALED FROM: | [2018] VSC 375 (Macaulay J) |
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DEFAMATION – Publication – Publication of results of internet search engine – Whether owner of internet search engine is a publisher of the results of searches – Google Inc v Duffy (2017) 129 SASR 304 and Trkulja v Google LLC [2018] HCA 25 referred to.
PRACTICE AND PROCEDURE – Application for leave to appeal – Pleadings – Whether judge erred in failing to strike out pleadings denying that search engine proprietor was a publisher of search results – Primary judge’s decision correct – Application for leave to appeal refused – Supreme Court (General Civil Procedure) Rules 2015, r 23.02.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr P Heywood-Smith QC with Mr E Guthrie | Defteros Lawyers |
| For the Respondent | Ms G L Schoff QC with Ms L De Ferrari SC | Johnson Winter & Slattery |
BEACH JA
HARGRAVE JA
SIFRIS AJA:
The applicant (George Defteros) is the plaintiff in a defamation proceeding currently being managed in the Common Law Division.[1] The respondent (Google Inc LLC) is the defendant in that proceeding. In his amended statement of claim, the applicant alleges that, in 2016, the respondent published certain ‘web matter’ which was defamatory of him. In broad terms, the web matter is alleged to consist of a search result returned from the entry of certain search parameters into the respondent’s search engine; and an underlying web page, accessed via a uniform resource locator (URL) hyperlink for that underlying web page. The claim for publication is confined to publication after the applicant gave notice to the respondent that publication was occurring as a result of the use of the respondent’s search engine.
[1]At the time of the order the subject of the present application, the proceeding was fixed for hearing in August 2018. That hearing date, however, has now been vacated as a result of further issues relating to discovery arising between the parties.
In its defence,[2] the respondent denies that it published the web matter. Additionally, the respondent makes a number of affirmative pleas, including that it is not the publisher of results that are returned to a user of its search engine; that it is not the publisher of any third party document hyperlinked to the result of a search using its search engine; and that it is not the publisher of any third party document to which a user of the search engine may navigate as a result of performing a search using its search engine.
[2]The current form of which is an amended defence to an amended statement of claim dated 16 October 2017.
In May 2018, the applicant filed a summons (‘the summons’) seeking to strike out, pursuant to r 23.02 of the Supreme Court (General Civil Procedure) Rules 2015 (‘the Rules’), various paragraphs of the respondent’s defence,[3] ‘to the extent that’ those paragraphs asserted that the respondent, after notification by the applicant, was not a publisher of results that were returned to a user of the respondent’s search engine, or that it was not a publisher of any third party documents connected to any such search result. The summons also sought an order for summary judgment on those paragraphs pursuant to r 22.03 and s 61 of the Civil Procedure Act 2010. The application for summary judgment was, however, subsequently abandoned.
[3]Paragraphs 4, 4A(a)-(d), 5(a), 9(a), 13, 14 and 15.
The strikeout application was heard by Macaulay J on 6 June 2018. On 8 June, his Honour dismissed the application.[4]
[4]Defteros v Google Inc [No 3] [2018] VSC 375 (‘Reasons’).
The applicant now seeks leave to appeal. In his first proposed ground of appeal, the applicant contends that the primary judge:
erred in wrongly considering, and then not following, the decision of the Full Court of South Australia in Google Inc v Duffy,[5] contrary to the reasoning of the High Court in Farah Constructions Pty Ltd v Say-Dee Pty Ltd[6] and therefore erred in not striking out the non-publisher defence [pursuant to r 23.02].
[5](2017) 129 SASR 304 (‘Duffy’).
[6](2007) 230 CLR 89, 151–2 [135] (‘Say-Dee’).
In the second of his proposed grounds of appeal, the applicant contends that the primary judge ‘erred in narrowly and therefore wrongly construing r 23.02’ when he concluded that ‘a pleading [was] only to be struck out under the rule where there is some defect in the pleading’[7] and that ‘essentially, the power to be exercised under r 23.02 concern[ed] the form of a pleading rather than the legal or factual merit or substance of what is pleaded’.[8]
[7]Reasons [11].
[8]Ibid [13].
There is no substance in either of the applicant’s proposed grounds of appeal. In relation to the first proposed ground of appeal, it may be accepted that insofar as the Full Court of South Australia’s decision in Duffy contains any legal principle, the primary judge was bound by the decision unless he was convinced that it was plainly wrong.[9] Duffy did not, however, either at first instance,[10] or on appeal, articulate any relevant principle of law that required the judge to strike out the respondent’s pleas that it was not a publisher.
[9]Say-Dee (2007) 230 CLR 89, 151–2 [135].
[10]See Duffy v Google Inc (2015) 125 SASR 437 (Blue J).
The primary judgment in Duffy was the product of a trial at which both sides called evidence. In his judgment at first instance, Blue J set out a detailed description of the way in which Google’s search engine operated. That description came, at least in part, from the evidence of witnesses called at trial.[11] On appeal, the Full Court determined that there was no error in the judge’s conclusion that, on the evidence called at trial, Google was a publisher of the results of searches performed by the use of its search engine. Contrary to the applicant’s submissions, the question of whether the owner of a search engine is to be held as a publisher of the results of searches made using that search engine is not purely a question of law but is one of mixed fact and law.[12] Duffy does not stand for some principle that, no matter the evidence that might be capable of being called at a trial, the owner of an internet search engine is as a matter of law a publisher of material produced in response to the initiation of a search.
[11]Duffy (2015) 125 SASR 437, 448–451 [27]–[42], 470 [140]–[144].
[12]Trkulja v Google LLC [2018] HCA 25 [38].
At the trial of the applicant’s proceeding, it will be open to both sides to produce relevant evidence concerning the operation of the internet and search engines so as to enable the Court to determine whether or not, on the evidence in this case, the respondent was a publisher of any material produced by the operation of its search engine. The primary judge’s determination that he was not bound by the Full Court’s decision in Duffy to strike out any parts of the respondent’s defence was correct.
We turn now to the applicant’s second proposed ground of appeal. As the judge observed, there is no defect in the form of those parts of the respondent’s defence that the applicant seeks to impugn. Moreover, as we have said, there is no legal principle that makes the respondent’s pleas untenable (either as not disclosing a defence, or being vexatious, or being such as to prejudice or embarrass the fair trial of the proceeding, or as being an abuse of process).[13] It follows that, like proposed ground 1, proposed ground 2 has no real prospect of success. Accordingly, leave to appeal must be refused.[14]
[13]See paras (a)–(d) of r 23.02.
[14]See s 14C of the Supreme Court Act 1986.
The decision the applicant seeks leave to appeal is an interlocutory decision on a question of practice and procedure. For the sake of completeness, we should say that, even if we were of the view that there was any merit in the applicant’s arguments, we are unpersuaded that there is any prejudice or injustice to the applicant in leaving the decision of the primary judge unreversed. At the conclusion of the trial, the trial judge will be able to determine on the whole of the evidence whether or not the respondent was a publisher of any of the material about which the applicant makes complaint. In our view that is the appropriate course which this proceeding should take. We are not persuaded that such additional time as might be required for the calling of relevant evidence and the making of submissions constitutes a relevant prejudice to the applicant. This provides an additional basis for refusing the applicant leave to appeal.[15]
[15]See Bensons Funds Management Pty Ltd v Body in Balance Chiropractic Pty Ltd [2015] VSCA 198 [7]-[9]; Anderson v Westpac Banking Corporation [2016] VSCA 172 [37]; Dog at the Bridge Pty Ltd v Bridge Bar Investments Pty Ltd [2017] VSCA 45 [26]; Molonglo Group (Australia) Pty Ltd v Cahill [2018] VSCA 147 [97].
Finally, in support of his application for leave to appeal, the applicant sought to have admitted into evidence a notice to admit served by the respondent 11 days after the primary judge delivered his ruling.
The notice to admit contains 80 paragraphs. It appears to be a detailed description concerning the operation of Webpages, URLs, browsers and search engines. We are not persuaded that there is any basis for the admission of this document on this application.[16] It may be that some of the material in this document is capable (if admitted or accepted) of telling in favour of a conclusion that the owner of an internet search engine is a publisher of the results of searches made using that search engine. Equally, there may be material that tells in the other direction. What remains is that there is no basis upon the authorities as they currently stand for preventing the respondent from pleading, and leading evidence at trial, contesting that it is a publisher of material that is produced following the use of its search engine.
[16]As to the principles concerning the admission of fresh evidence in this Court, see Bennett v Talacko [2017] VSCA 163 [59]–[60].
It follows that the application for leave to appeal must be refused.
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