Nikolic v Nationwide News Pty Ltd

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2024 0086

GORAN NIKOLIC	First Applicant
IDAZ09 PTY LTD	Second Applicant
v
NATIONWIDE NEWS PTY LIMITED TRADING AS THE AUSTRALIAN	Respondent

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JUDGE:	BEACH JA
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	16 April 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 79
JUDGMENT APPEALED FROM:	[2024] VSC 380 (Gray J)

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DEFAMATION – Injurious falsehood – Associate judge granting summary judgment for defendant – Application for extension of time for plaintiffs to appeal associate judge’s orders to judge of Trial Division – Proposed appeal from associate judge without merit – Futile to grant extension of time – Application for extension of time refused – Application for leave to appeal judge’s orders refusing extension of time application – Application for leave to appeal having no prospects of success – Application for leave to appeal totally without merit – Application for leave to appeal refused.

Supreme Court Act 1986, s 14D.

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Counsel
Applicants:		In person
Respondent:		Mr A Anderson
Solicitors
Applicants:
Respondent:	Thomson Geer

BEACH JA:

This is an application for leave to appeal an order made by a judge[1] refusing Goran Nikolic and IDAZ09 Pty Ltd (‘the plaintiffs’) an extension of time in which to appeal from orders made by an Associate Judge[2] granting summary judgment to Nationwide News Pty Ltd (‘the defendant’) and dismissing their proceeding against it. For the reasons given below, the application has no prospects of success. Indeed, the application is totally without merit.[3] Leave to appeal must be refused.
[1]Nikolic v Nationwide News Pty Ltd [2024] VSC 380 (Gray J) (‘Gray J’s Reasons’).
[2]Nikolic v Nationwide News Pty Ltd [2020] VSC 98 (Daly AsJ) (‘Daly AsJ’s Reasons’).
[3]As to the consequences of the application being determined to be totally without merit, see s 14D(3) of the Supreme Court Act 1986.

Background

Mr Nikolic is the sole director and shareholder of IDAZ09 Pty Ltd (‘IDAZ09’). IDAZ09 conducts a business developing and providing identification and data security tools. It also owns trademarks in a number of developed countries. Mr Nikolic is the inventor of technologies used by IDAZ09, and he is closely identified with the company. Mr Nikolic considers himself to be tolerant and socially progressive, a viewpoint embodied by IDAZ09’s overarching philosophy, which is to utilise technological advances to create a more secure, open and accessible society.[4]
[4]As to this assertion, see paragraph 16 of the plaintiffs’ statement of claim. Lest anyone think that the name IDAZ09 is some random combination of characters, paragraph 18 of the statement of claim states that the name IDAZ09 ‘is an exclusive’: being an alphanumeric combination of ID (equals Identity or Identification); AZ (equals Alphabet); and 09 (equals Numeric).
Between September and November 2017, Australia conducted a marriage law postal survey relating to a proposal for legislating same-sex marriage in Australia. In the months before the marriage law postal survey, an unknown person (or persons) used Twitter accounts or ‘handles’ with names incorporating ‘idaz09’ without the authority of Mr Nikolic or IDAZ09 (‘the unauthorised Twitter handles’).
Using the unauthorised Twitter handles, the unknown person(s) ‘tweeted’ or posted information that Mr Nikolic regards as vitriolic, racist, homophobic, sexist, religiously vilifying and otherwise socially unacceptable. These posts included ‘anti-same sex sentiment, anti-Muslim sentiment, anti-immigration views, extreme far right views, anti-Australian Government opinions, and numerous other messages referencing paedophilia, rape and conspiracy theories’.[5] Mr Nikolic and IDAZ09 were not responsible for the offending material being published on Twitter.
[5]Plaintiffs’ statement of claim, paragraph 25.
On 20 September 2017, the defendant published an article in The Australian newspaper and online news service titled ‘Catholic archbishops, Islamic clerics see eye-to-eye on hazards of marriage equality’ (‘the article’). The article purported to report the views of a number of religious figures (including two archbishops and a spokesman for the Victorian Board of Imams). One of the archbishops was reported as saying, ‘Most people who believe in traditional marriage are not bigots’. The Board of Imams spokesman was reported as saying, ‘Like Catholic and Jewish people, we have always maintained marriage is between a man and a woman, and that’s widely known to people’.
At the end of the article were two versions of a cartoon featuring a rainbow-coloured, striped Trojan horse approaching the walls of a castle. Both versions of the cartoon depicted a sentry on the walls of the castle and a speech bubble.
The first version of the cartoon is the original version, drawn by Jon Kudelka. In that version, there is a speech bubble emanating from the soldiers guarding the castle, containing the words ‘To be fair, it will go down a treat at Mardi Gras …’. Below this version of the cartoon, after the words ‘The original Jon Kudelka cartoon’,[6] the article goes on to say, ‘And going postal in art: John Kudelka’s cartoon in The Australian, September 2 (above) transitions rather mysteriously to the other side (below) on the Twitter account of Rusty (@idaz09), September 18’. ‘Rusty (@idaz09)’ was one of the unauthorised Twitter handles, not being authorised by Mr Nikolic or IDAZ09.
[6]Which words are at the bottom of the first version, and form part of the image.
Below the text under the first version of the cartoon, the second version of the cartoon (a modified version of the first version of the cartoon) is reproduced. In the modified version, the words in the speech bubble have been replaced with a large ‘NO’. At the bottom of the second version, and forming part of the image, are the words, ‘and the Photoshopped version posted on Twitter’.
Because of the obvious similarity between the unauthorised Twitter handle referred to in the article and the name of the second plaintiff, Mr Nikolic was concerned that the article associated the plaintiffs with the modified cartoon displayed in it; and that people would associate the plaintiffs not only with the modified cartoon, but with the other offensive material published on the unauthorised Twitter handles.
From about 2018, Mr Nikolic communicated with the defendant, and later its solicitors, seeking the removal of the article from The Australian’s website. While the defendant removed the reference to the Twitter handle in the article in about August 2018, Google searches performed after that date showed the article linked, or adjacent, to search results and images of and/or associated with the plaintiffs, including photographs of Mr Nikolic. The defendant’s removal of the unauthorised Twitter handle from the article was not sufficient for the plaintiffs’ purposes, and so they commenced the proceeding below against the defendant.
In their writ and statement of claim, filed on 24 April 2019, the plaintiffs claimed damages from the defendant for defamation and injurious falsehood. The statement of claim is described in some detail in Daly AsJ’s Reasons.[7] For present purposes, it is sufficient to note that, in their statement of claim, the plaintiffs pleaded that, from September 2017 to April 2019, the defendant ‘republished’ the article in the various States and Territories of Australia, and in other places; and that, ‘due to a third persons (sic) being aware of the plaintiffs, and in its natural and ordinary meaning’ the article bore the following meanings:
(a)The plaintiffs are racist;
(b)the plaintiffs are homophobic;
(c)the plaintiffs hold anti-Muslim views;
(d)the plaintiffs hold the view that Australian politics is influenced by paedophiles;
(e)the plaintiffs hold the view that vaccines kill babies.
[7]Daly AsJ’s Reasons, [10]–[13].
In particulars of these imputations, the plaintiffs alleged that the imputations were ‘conveyed under the matters taken in their entirety’.
On 11 September 2019, the defendant filed a summons seeking summary judgment pursuant to s 63 of the Civil Procedure Act 2010; alternatively, seeking an order that the statement of claim be struck out pursuant to r 23.02 of the Supreme Court (General Civil Procedure) Rules 2015 (‘the Rules’).

The hearing before Daly AsJ

The defendant’s summons, together with a summons issued by the plaintiffs seeking to strike the defendant’s defence out on the grounds that it was filed two days late,[8] came on for hearing before Daly AsJ on 25 September 2019. The application proceeded into a second day (28 November 2019).
[8]An application which appears to have been misconceived because, by the operation of r 3.01(5) of the Rules, the defendant’s defence was not late: see Daly AsJ’s Reasons, [18]–[19].
On 9 April 2020, pursuant to Daly AsJ’s reasons, her Honour ordered that there be summary judgment in favour of the defendant.
In ordering summary judgment for the defendant, the associate judge concluded that the plaintiffs would be unable to establish the necessary elements of the tort of injurious falsehood. Specifically, her Honour noted that the article made no representations concerning the plaintiffs’ goods or business, let alone any false representations about such matters.[9]
[9]Daly AsJ’s Reasons, [37].
In relation to the cause of action in defamation, the associate judge said that it could not be inferred from the article that the plaintiffs held or condoned views which were racist or supportive of any of the other sentiments expressed by the person or persons using the unauthorised Twitter handles. Her Honour concluded that the only imputation that the article conveyed was that the operator of the ‘idaz09’ Twitter handle opposed same-sex marriage (perhaps, opposed it stridently).[10]
[10]Ibid [38].
Next, her Honour concluded that, without more, it was not defamatory to say of somebody that they opposed same-sex marriage. As her Honour put it, the result of the 2017 postal survey, in which nearly 40% of the respondents to the survey voted against marriage equality, demonstrated that the community was deeply divided on the question of same-sex marriage; and ‘many people in the community [were] opposed to same-sex marriage for reasons which are not motivated by antipathy towards gays and lesbians, such as by reason of their religious convictions’.[11]
[11]Ibid [39]–[47].
Thus, her Honour concluded that the plaintiffs’ claims in defamation and injurious falsehood had no real prospect of success, and ordered that there be summary judgment for the defendant.[12]
[12]Ibid [48].
Summary judgment having been entered for the defendant, on 22 and 29 April 2020, the parties filed written submissions on costs. On 1 July 2020, after considering those written submissions, her Honour ordered the plaintiffs to pay the defendant’s costs of the proceeding on the standard basis.

The parties enter into a settlement agreement

On 30 April 2020, the parties entered into a settlement and release agreement (‘the settlement agreement’). In recital G, the settlement agreement provided that the parties had agreed to settle the plaintiffs’ claim and any possible appeal from the orders of Daly AsJ.
Clause 3 of the settlement agreement relevantly provided:
Within seven days of the execution of this Agreement by the Parties, Nationwide News will remove [the article][13] from The Australian’s website and will use its best endeavours to perform a cache flush to remove any underlying coding encryption that may link either Nikolic or IDAZ09 to [the article].
[13]The settlement agreement referred to the article as the version of the article modified in about August 2018 to remove the unauthorised Twitter handle.
Clause 4 of the settlement agreement contained a release given by the plaintiffs to the defendant from any claim connected or arising out of the article and any appeal from the judgment of Daly AsJ.
Clause 6 of the settlement agreement provided that the settlement agreement could be pleaded by the defendant ‘as a bar to and/or a full and complete defence to any proceeding or claim which is the subject of the release in clause 4 … except for any claim commenced at any time by a party against another party to enforce the terms of this Agreement’.
Clause 8.1(a) provided that the defendant agreed not to enforce any costs order it may receive in its favour arising out of or in connection with Daly AsJ’s judgment against the plaintiffs.

The plaintiffs seek to appeal the orders of Daly AsJ

On 10 September 2022, some two years and five months after Daly AsJ gave summary judgment for the defendant, the plaintiffs filed a notice of appeal, in which they gave notice that they sought to appeal: (1) the summary judgment order made against them on 9 April 2020; and (2) the costs order made against them on 1 July 2020. The notice of appeal identified two questions of law, in which it was asserted that Daly AsJ erred: first, by admitting into evidence four hearsay statements in a supplementary affidavit sworn by Mr Nikolic on 29 December 2019 (‘the December affidavit’); and secondly, by admitting into evidence, or relying upon, transcript of the hearing on 25 September 2019 (‘the first matter hearing’).
The notice of appeal identified six grounds of appeal, the first four of which related to the first asserted question of law, and the last two of which related to the second asserted question of law. Those grounds of appeal were as follows:
1.Admitting the December Affidavit into evidence, when the defendant has not served reasonable notice in writing of its intention under s 67 of the Evidence Act 2008 of Victoria (the Evidence Act).
2.Admitting the December Affidavit into evidence, when the defendant had not adduced any evidence of undue expense or undue delay of reasonable impracticability of calling the December Affidavit as required by s 64(2) of the Evidence Act.
3.Failing to exclude the December Affidavit under s 135(a) of the Evidence Act, when the evidence contained in those statements was conditional upon an application by the plaintiffs which had not yet been granted.
4.Failing to cooperate with the first plaintiff on the ground of his disability access knowingly the December Affidavit was not taken to act and or inquire prior to the Judgement giving pursuant to sections 10 to 31 of the Civil Procedure Act 2010 of Victoria.
5.Failing to provide reasons for admitting the transcript of the First Matter Hearing into evidence.
6.Threatening to bankrupt the first plaintiff, under pressure to enter the Settlement within seven days, knowingly the defendant’s sworn affidavits were not taken to correct the record of the First Matter Hearing as soon as practicable prior to the Costs Order making. A copy of which is attached Schedule.
The threat of bankruptcy referred to in ground 6 was alleged by the plaintiffs to have been made by the solicitor for the defendant in an email sent on 27 April 2020. The topic of the email was the possible settlement of the proceeding between the parties. In the course of the email, the defendant’s solicitor said:
Our client’s costs to date in this proceeding are approximately $130,000. Should you be ordered to pay our client’s costs on the standard basis (being approximately 70% of our client’s costs) then we anticipate that will total approximately $91,000. Conversely, should you be ordered to pay our client’s costs on an indemnity basis (being approximately 90% of our client’s costs) then we anticipate that will total approximately $117,000.
That money will be due and payable to our client once an order has been made for costs. Any appeal does not stay the obligation on you to pay our client’s costs.
Our client will not hesitate to recover its costs against the plaintiffs in full. Should it become necessary, that may include the sale of any property owned by either of the plaintiffs. In that regard, we are aware that a ‘Goran Nikolic’ owners property in Victoria. Alternatively, if that property is not owned by you, our client may commence bankruptcy proceedings against you to recover its costs.
The plaintiffs’ appeal being out of time by more than two years, on 28 November 2022, Baker JR ordered the plaintiffs to file and serve an application for an extension of time pursuant to r 77.06.2(6) of the Rules. On 7 December 2022, the plaintiffs filed a summons seeking an extension of time within which to appeal from the orders of Daly AsJ. The parties were, however, unable to agree as to the form of the timetabling orders that should be made concerning the appeal — other than it was common ground between them that the appeal should be determined on the papers.[14]
[14]Gray J’s Reasons, [43].

The determination of the application for an extension of time

At the commencement of Gray J’s Reasons, his Honour identified the issues as being: (1) whether the plaintiffs should be granted an extension of time in which to appeal from Daly AsJ’s orders granting summary judgment to the defendant and dismissing the proceeding; and (2) the appropriate disposition of the plaintiffs’ attempt to appeal the costs order made by her Honour.[15]
[15]Ibid [1].
After setting out the facts and history of the proceeding,[16] the judge identified the relevant provisions relating to the plaintiffs’ ‘applications/appeal’, summarising ss 17(3) and 17A(2) of the Supreme Court Act and the relevant parts of r 77.06 of the Rules. In the course of this, his Honour noted that s 17A(2) relevantly provided that an order as to costs made by and in the discretion of the Trial Division, constituted otherwise than by a Judge, is not subject to appeal to a Judge in the Trial Division except by leave.[17]
[16]Ibid [2]–[46].
[17]Ibid [49].
The judge observed that the principles governing extensions of time for appeals are well-established; and that the exercise of the discretion to extend time involves consideration of the length of and reasons for delay, prejudice to the respondent, and whether the proposed appeal so lacks merit as to be futile.[18]
[18]Ibid [42].
Next, the judge set out at some length the plaintiffs’ affidavit material and submissions, identifying what he referred to as ‘the plaintiffs’ first submissions’, ‘the plaintiffs’ second submissions’, ‘the plaintiffs’ third submissions’, and ‘the plaintiffs’ fourth submissions’, as well as the material underlying those submissions.[19]
[19]Ibid [54]–[69].
In relation to the length of and reasons for delay, the judge said that the length of the delay was ‘very great’. After recording the defendant’s submission that there was no cogent explanation for that delay, the judge noted that Mr Nikolic offered the explanation that, before the settlement agreement was made on 30 April 2020, he attempted to appeal the orders of Daly AsJ, but that the appeal ‘was rejected by an officer of the court’. The judge also noted Mr Nikolic’s assertion that he ‘had to accept the settlement and enter into the settlement agreement in order to avoid bankruptcy’.[20] The judge decided that, without adjudicating on Mr Nikolic’s assertions, he would assume that they were true and turn to the other factors he was required to consider.[21]
[20]Ibid [70]–[72].
[21]Ibid [73].
In relation to the prejudice to the defendant, the judge simply observed that the defendant did not claim any particular prejudice.[22]
[22]Ibid [74].
In relation to whether the appeal lacked merit and was futile, the judge, after noting that the appeal was not a rehearing de novo,[23] said that he had to be satisfied that Daly AsJ’s order was the result of legal, factual or discretionary error before any appeal could be allowed.[24] The judge said:
Is there any real prospect of the plaintiffs being able to demonstrate that the judgment of Daly AsJ was affected by error? It would not be enough for the plaintiffs to establish that some aspect of the reasoning of Daly AsJ might be incorrect, unless the error could have affected the outcome. What matters is whether the plaintiffs can demonstrate a basis for concluding that the outcome might be different as a result of error.[25]
[23]Ibid [76].
[24]Ibid [77].
[25]Ibid [78].

The judge then concluded that the plaintiffs would not be able to establish material error by Daly AsJ.[26] His Honour gave five reasons as follows:
(a)First, the parties entered into the Settlement Agreement, which bars any appeal, and there is no reason to conclude that the Settlement Agreement does not remain binding on its terms.
(b)Second, even without taking into account the Settlement Agreement, the grounds in the notice of appeal have no real prospects of succeeding, and an appeal on those grounds would be futile.
(c)Third, to the extent that plaintiffs seek to appeal because of an alleged failure by Nationwide News to disclose facts relating to its involvement in the operation of the Google Custom Search Engine (Google CSE) (the Google CSE matter) or relating to underlying code encryption (the UCE matter), there is no real prospect that the appeal could succeed on those bases either.
(d)Fourth, to the extent that the plaintiffs seek to appeal because of difficulties in arranging an Auslan interpreter for the hearing before Daly AsJ (a matter acknowledged in an apology letter from a Deputy Prothonotary), there is no real prospect that the appeal could succeed on that basis either. Although the process of arranging the Auslan interpreter’s services were suboptimal, in the end an Auslan interpreter was present at the hearing. There is no evidence that any particular error in interpretation occurred, or that anything occurred that could have affected the conclusions that were reached by Daly AsJ.
(e)Fifth and finally, to the extent that the plaintiffs are perhaps seeking to appeal on the basis that Nationwide News, by republishing the modified cartoon in the article, associated them with offending material on the unauthorised Twitter handles extending beyond the modified cartoon, the appeal cannot succeed on that basis either.[27]
[26]Ibid [79]. See also [80]–[142].
[27]Ibid. Bolding in original.
While his Honour then provided a detailed analysis in support of each of these reasons,[28] for present purposes, it is only necessary to refer to his Honour’s analysis in support of the second of his Honour’s five reasons.
[28]Ibid [81]–[142].
In relation to the first question of law (and related grounds of appeal 1 to 4), the judge noted that the affidavit which allegedly contained the hearsay statements objected to by the plaintiffs was Mr Nikolic’s own affidavit. The judge then made the following points:
(1)Even if hearsay statements in it were taken into account by Daly AsJ, it was not explained by the plaintiffs how that would have been prohibited — s 75 of the Evidence Act 2008 providing an exception from the hearsay rule in interlocutory proceedings.
(2)Additionally, it was not explained how any hearsay statements could have affected Daly AsJ’s conclusions, namely: first, the plaintiffs’ injurious falsehood claim must fail because the article was not of and concerning the plaintiffs’ goods or business; secondly, the defendant was not responsible for publication of the offending material on the unauthorised Twitter handles, only for the article; and thirdly, the only imputation conveyed by the article was not capable of being defamatory.[29]
[29]Ibid [103]–[108]. See also [34].
In relation to the second question of law (and related grounds 5 and 6), the judge noted that the first nine pages of the transcript of 25 September 2019 consisted of a directions hearing in a proceeding brought by the plaintiffs against three defendants, including Twitter International Company (‘the Twitter proceeding’).[30] The judge observed that there was no indication in Daly AsJ’s Reasons that her Honour relied on information conveyed during that directions hearing in any impermissible way in the present proceeding.[31]
[30]Ibid [20], [111].
[31]Ibid [111].
After further analysis, his Honour was unable to discern any basis for attributing appealable error to Daly AsJ in connection with the second question of law and its first ground in the notice of appeal (ground 5).[32] The judge then went on to reject ground 6, for reasons he gave in more detail at Gray J’s Reasons [81]–[100], [114], [117]–[136].
[32]Ibid [111]–[113].
Having determined that the plaintiffs’ appeal would be futile, the judge refused the plaintiffs’ application for an extension of time in relation to her Honour’s orders granting the defendant summary judgment.[33]
[33]Ibid [143].
In relation to the plaintiffs’ complaint about Daly AsJ’s costs order, the judge noted the defendant’s submission that it was open to it to have the plaintiffs’ notice of appeal declared incompetent under r 77.06.2(4) — the plaintiffs not having sought an extension of time within which to seek leave to appeal against the costs order.[34]
[34]Ibid [144].
The judge said, however, that he ‘would have treated the plaintiffs as having impliedly sought such an extension of time, conditional on the success of their application for an extension of time to appeal the substantive orders against them’.[35] The judge said that now that he had concluded that no extension of time to appeal from Daly AsJ’s orders of 9 April 2020 would be granted, he would not make any order facilitating a grant of an extension of time in which to seek leave to appeal from the costs order; and that, in the absence of an extension of time or grant of leave, insofar as the notice of appeal purported to appeal the costs order, the notice of appeal was incompetent.[36]
[35]Ibid [145].
[36]Ibid [146].
In the result, the judge refused the extension of time sought by the plaintiffs and dismissed the plaintiffs’ summons filed 7 December 2022.

The application for leave to appeal to this Court

On 28 July 2024, the plaintiffs filed an application for leave to appeal to this Court, together with a written case. The application for leave to appeal identifies six proposed grounds of appeal which, by reference to the written case, assert that the defendant did not plead a particular matter; Gray J did not raise a particular matter; it was not open to Gray J to find a particular matter; Daly AsJ did not raise a particular matter; it was not open to Daly AsJ to find a particular matter;[37] and Gray J ‘treated [Mr Nikolic] in a different colour, as defined in [particular paragraphs] of the written case’.
[37]The word ‘matter’ was defined in each of the first five proposed grounds of appeal by reference to different groups of paragraphs (ranging from two to seven in number) in the plaintiffs’ written case.
One of the paragraphs of the written case relied upon in support of proposed ground 6 asserts:
His Honour breached his oath, integrity and duty to the Court as described in the paragraphs above, accompanied by an affidavit of [Mr Nikolic] affirmed on 21 July 2024. Is that true?
In support of the plaintiffs’ application for leave to appeal and proposed appeal, the plaintiffs have also filed a summary; a notice under s 35 of the Charter of Human Rights and Responsibilities Act 2006; a notice under s 78B of the Judiciary Act 1903 (Cth); and further written submissions.[38]
[38]See, for example, ‘Plaintiffs’ Summary Submissions’ filed 4 August 2024; and the email from Mr Nikolic to the Court on 27 February 2025 at 12:04 pm, attaching a further affidavit affirmed by him on 18 February 2025. While the Registry rejected Mr Nikolic’s attempt to file that affidavit for reasons explained to Mr Nikolic in an email of 28 February 2025, I was provided with a copy of his 18 February 2025 affidavit and took it into account as part of the material that the plaintiffs rely upon in this Court.
On 6 September 2024, the plaintiffs filed a further application in this Court (‘the 6 September 2024 application’), in which they sought, amongst other things, orders that:
•the order made by Gray J on 30 August 2024[39] be stayed until the plaintiffs’ application for leave to appeal is determined by this Court;
•a proceeding filed by Mr Nikolic on 29 January 2024 in the Trial Division (in which he sues the defendant and two other parties for ‘Torts’, ‘Defamation’, ‘Negligence’ and ‘Personal Injury’, be ‘removed’ to this Court;
•the ‘settlement breached by [the defendant] be declared’;
•the defendant pay the plaintiffs ‘for a breach of the settlement to be assessed by [this Court]’; and
•the defendant pay the plaintiffs’ costs and Auslan interpreter fees in the proceeding ‘for not acting with integrity on the matter’.[40]
[39]This was a costs order made against the plaintiffs, pursuant to reasons given by his Honour in Nikolic v Nationwide News Pty Ltd (Costs) [2024] VSC 531.
[40]Italics and bolding in original.
In a Consolidated Statement, forming part of the Charter Notice, Mr Nikolic identifies himself as the complainant, a person ‘over 18 years of age and an individual whose first language is Australian Sign Language (Auslan) … [who] requires an interpreter at the hearing in Auslan’. The Consolidated Statement identifies six purported respondents: the Supreme Court, Daly AsJ, Gray J, a barrister, and two solicitors. The respondents are alleged to know that the defendant submitted several false affidavits to the Supreme Court. The first and second respondents are alleged to have ‘published to defame the complainant imputing that he is illiterate, despite failing to accommodate reasonable adjustments on the grounds of his communication access needs, knowing that [the defendant’s] false affidavits were not taken to consult with the Auslan interpreter during the proceeding’. The second to sixth respondents (all respondents other than the Supreme Court) are alleged to have ‘repeatedly treated [Mr Nikolic] in less favour to date’.
In the s 78B Notice, Mr Nikolic identifies the same six parties identified as respondents in the Charter Notice. This time, they are referred to as the first to sixth interested party. The s 78B Notice makes the same allegations against the six interested parties as are made against the six respondents in the Charter Notice.[41]
[41]The s 78B Notice was filed by the plaintiffs on 9 September 2024. To date, notwithstanding the elapse of a reasonable time since the giving of the notice (see s 78B(1) of the Judiciary Act), no Attorney-General has sought to intervene in the proceeding or removal of the cause to the High Court.
Pursuant to r 64.15(1) of the Rules, the Registrar of the Court of Appeal has referred the application for leave to appeal to a single Judge of Appeal for it to be considered and dealt with under r 64.15. Upon the Registrar’s referral, I considered that it was neither necessary nor desirable to have an oral hearing of the application.[42]
[42]See rr 64.15(2) and (5), and s 14D(1) of the Supreme Court Act.

Consideration

In the various documents they rely upon in this Court, the plaintiffs make a myriad of complaints about the defendant, its lawyers, and the judicial officers who have heard and determined the matter to date. A central complaint appears in the plaintiffs’ written case as follows:
The defendant and its lawyers directed an insult towards calling the first appellant [Mr Nikolic] ‘unintelligible’ despite failing to make reasonable accommodations for communication access, such as an Auslan interpreter.[43] The insult was published by Daly’s judgment, which is defamatory and has severely affected his morale, performance, and self-confidence during [the Twitter proceeding], in which the respondent’s lawyer, admitted the insult.[44]
[43]For completeness, I note that the Auslan interpreter issue was discussed in more detail in Gray J’s Reasons, [37]–[40], [58(c)], [58(l)], [59(c)], [59(e)], [61(a)], [61(e)], [63], [66]–[67] and [137]–[139].
[44]Emphasis in original. Footnote added.
The defamatory publication alleged to have been made by Daly AsJ was made in her Honour’s judgment in the Twitter proceeding,[45] wherein her Honour recorded a submission made by the defendants in that case that the allegations in paragraphs [7] to [11] of the amended statement of claim were ‘vague and unintelligible’.[46]
[45]Nikolic v Twitter [2020] VSC 101.
[46]Ibid [43].
The admission of the insult appears to be a statement in a defendant’s submission made in the Twitter proceeding that:
The words ‘vague and unintelligible’ are a standard and anodyne form of words in relation to the adequacy of court documents such as pleadings. The use of the words is not in any way directed towards the plaintiffs. … It is regrettable the plaintiffs have taken the use of those words as a personal insult when there was no such intention.
As might immediately be observed, at this point in the plaintiffs’ argument, we are deeply in the heart of the periphery. Much, if not the vast bulk, of the plaintiffs’ submissions (including complaints they make about false affidavits) have no bearing on the question of whether Daly AsJ erred in granting summary judgment with costs in favour of the defendant.
Turning back to the more relevant, the tort of injurious falsehood has four elements:
(1)a false statement of or concerning the plaintiff’s goods or business;
(2)publication of that statement by the defendant to a third person;
(3)malice on the part of the defendant; and
(4)proof by the plaintiff of actual damage (which may include a general loss of business) suffered as a result of the statement.[47]
[47]Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388, 404 [52] (Gummow J). See also Jay v Petrikas [2023] NSWCA 297, [45] (Griffiths AJA, with whom Payne JA agreed, [1], and Kirk JA agreed, [2]).
Daly AsJ granted summary judgment on the plaintiffs’ claim for damages for injurious falsehood on the basis that the plaintiffs would be unable to establish the first element of the injurious falsehood cause of action. Her Honour was plainly correct in arriving at that conclusion. Nothing was said in the article which could be described as of and concerning the plaintiffs’ goods or business.
It is equally plain that Daly AsJ was correct when she concluded that the only possible imputation the article conveyed in relation to the operator of the ‘idaz09’ Twitter handle was that that person or persons opposed same-sex marriage; but that that imputation, without more, was incapable of being defamatory.
As a result of the conclusions set out in [58] and [59] above, everything else falls away. Any appeal from Daly AsJ’s orders was bound to fail. It follows inexorably that the orders made by Gray J refusing the plaintiffs’ application for an extension of time were plainly correct; and any appeal from those orders to this Court would also be foredoomed to fail.
Having said that, for completeness, I should say that having examined all of the plaintiffs’ complaints about the hearings and determination of their proceeding to date, there is nothing in any of them;[48] alternatively, nothing which would justify this Court in granting the plaintiffs leave to appeal from the orders of Gray J.
[48]Save for the matters which led to Recital C of Daly AsJ’s orders of 1 July 2020, and the apology set out at [40] of Gray J’s Reasons. These matters, while less than satisfactory, could not, however, justify a grant of leave to appeal from Gray J’s orders refusing the plaintiffs the extension of time they sought.

Conclusion

The orders made by Daly AsJ were plainly correct. The orders made by Gray J were plainly correct. The proposed appeal has no prospects of success. It is totally without merit within the meaning of s 14D(3) of the Supreme Court Act. It must be dismissed.
Dismissing the plaintiffs’ application for leave to appeal obviates the need to consider whether any of the orders sought by the plaintiffs in the 6 September 2024 application should be made. However, for the avoidance of doubt, that application will also be dismissed. The plaintiffs have not established any basis upon which any of the orders sought in that application could possibly be made by this Court.
I will give the parties an opportunity to file any material and submissions they wish to make about the costs of this application.
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[2025] VSCA 79

16 April 2025