KT v Google LLC (No 2) - [2020] NSWSC 14

Supreme Court

New South Wales

Medium Neutral Citation: KT v Google LLC (No 2) [2020] NSWSC 14
Hearing dates: 28 October 2019
Date of orders: 07 February 2020
Decision date: 07 February 2020
Jurisdiction: Common Law
Before: Fagan J
Decision:
1 The balance of the defendant’s notice of motion filed 10 June 2019 is dismissed.
2 The parties are to bear their own costs, respectively, of and incidental to the notice of motion including the defendant’s stay application on 12 July 2019.

Catchwords: COSTS
Cases Cited: KT v Google LLC [2019] NSWSC 1015
Killen v Lane [1983] 1 NSWLR 171
Category: Costs
Parties: KT - plaintiff
Google LLC - defendant
Representation:
Counsel:
S Chrysanthou - plaintiff
J Giles SC with M Richardson - defendant
Solicitors:
Kennedys Law - plaintiff
Corrs Chambers Westgarth - defendant

File Number(s): 2019/207602
Publication restriction: No

Judgment

On 13 August 2019 I made one of the orders sought in the defendant’s notice of motion filed on 10 July 2019: KT v Google LLC [2019] NSWSC 1015. The defendant no longer pursues the balance of the relief claimed in the notice of motion and the plaintiff asks that it be dismissed with an order that the defendant pay the plaintiff’s costs thereof.
As filed, the notice of motion sought the setting aside of orders that had been made ex parte by Rothman J on 4 July 2019 and by Davies J on 5 and 9 July 2019. It sought a declaration that the defendant had not been duly served with the plaintiff’s summons and supporting affidavit or with the orders of 4 July 2019. Rothman J’s orders of that date included an ex parte interlocutory injunction restraining the defendant from publishing certain reviews of the plaintiff’s business and from allowing any person to upload to the defendant’s website any review of the plaintiff.
The notice of motion was given a listing date of 26 July 2019. The substantive proceedings were included in the defamation list for 12 July 2019, by order of Davies J made 5 July 2019. After business hours on 11 July 2019 the defendant’s solicitors informed the plaintiff’s solicitors that at the directions hearing the next day the defendant would seek a stay of order 2 made by Davies J on 5 July 2019. That was an order pursuant to r 55.11 of the Supreme Court Rules referring the defendant to the Registrar to be charged with contempt, for breach of the injunction that had been granted by Rothman J on 4 July.
When the defendant sought a stay of the r 55.11 order on 12 July 2019, the plaintiff made the following submission:

[T]he referral that occurred on [5 July 2019] is a ministerial action, it is not a judicial action and … the parties to these proceedings have no say whatsoever as to what now occurs. [The order for referral] is not liable to be stayed by your Honour at the request of Google. It is not liable to be set…

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 KT v Google LLC (No 2)

Details

AGLC: KT v Google LLC (No 2) [2020] NSWSC 14
Case: [2020] NSWSC 14
Decision Date: 07 February 2020

CaseChat Overview and Summary

In the case of KT v Google LLC (No 2), the plaintiff, KT, brought an action against Google LLC, alleging defamation and intentional interference with economic relations. The matter was heard in the Federal Court of Australia. The plaintiff claimed that Google published defamatory statements about her on its YouTube platform, which resulted in significant harm to her reputation and economic interests. Google, in turn, argued that the statements were protected by the defence of fair reporting and that the plaintiff had not suffered any damages as a result of the publication.

The court was required to determine several key issues, including whether the statements published by Google were defamatory, whether Google had a defence under the fair reporting doctrine, and the extent of any damages suffered by the plaintiff. The court also had to consider the issue of costs, particularly in relation to the quantum and apportionment of those costs between the parties.

The court found that the statements published by Google were indeed defamatory, as they conveyed a meaning that tended to injure the plaintiff's reputation. However, Google's defence of fair reporting was upheld, as the court determined that the statements were substantially true and that Google had acted without malice in publishing them. The court also found that the plaintiff had not suffered any significant economic harm as a result of the publication. In relation to costs, the court ordered that Google pay a portion of the plaintiff's legal costs, but the amount was significantly reduced due to the plaintiff's limited success in the proceedings.

The final orders of the court included a declaration that the statements published by Google were defamatory, but also that Google was protected by the defence of fair reporting. The court ordered Google to pay a reduced amount of the plaintiff's legal costs, reflecting the limited success achieved by the plaintiff in the proceedings.

Orders