Nikolic v Twitter International Company

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2024 0087

GORAN NIKOLIC	First Applicant
IDAZ09 PTY LTD	Second Applicant
v
TWITTER INTERNATIONAL COMPANY (X CORP INC)	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 80
JUDGMENT APPEALED FROM:	[2024] VSC 381 (Gray J)

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PRACTICE AND PROCEDURE – Perfected court order – Power to set aside perfected court order made by consent following settlement of proceeding – No power to set aside perfected orders otherwise than on recognised grounds – No basis for setting aside settlement or orders – Judge plainly correct in refusing application to set aside perfected court orders – Application for leave to appeal from judge’s order 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.

Bailey v Marinoff (1971) 125 CLR 529; The Owners Strata Plan No 57164 v Yau (2017) 96 NSWLR 587; Euromark Ltd v Smash Enterprises Pty Ltd (in liq) [No 2] [2024] VSCA 152, applied.

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Counsel
Applicants:		In person
Respondent:		—
Solicitors
Applicants:
Respondent:	Thomson Geer

BEACH JA:

This is an application for leave to appeal an order made by a judge[1] dismissing an application made by Goran Nikolic and IDAZ09 Pty Ltd (‘the plaintiffs’) to set aside consent orders made in July 2021 dismissing their proceeding against Twitter International Company (‘the defendant’), and their application to reinstate the proceeding in which the consent orders had been made. For the reasons given below, the application has no prospects of success. Indeed, the application is totally without merit.[2] Leave to appeal must be refused.
[1]Nikolic v Twitter International Company [2024] VSC 381 (Gray J) (‘Reasons’).
[2]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

The factual background of this proceeding is closely related to the factual background of the plaintiffs’ proceeding against Nationwide News Pty Ltd, in which I have also delivered reasons for judgment today.[3]
[3]Nikolic v Nationwide News Pty Ltd [2025] VSCA 79 (‘Nationwide Refusal Reasons’).
Both proceedings arise from offensive material being published on Twitter using accounts or ‘handles’ that contained the distinctive alphanumeric combination ‘idaz09’, which is virtually identical (save for the use of lower case letters) to the second plaintiff’s name. As explained in the Nationwide Refusal Reasons, those handles (‘the unauthorised Twitter handles’) and the material published on Twitter through their use were not authorised by the plaintiffs.
On 15 January 2019, the plaintiffs commenced the proceeding below against the defendant claiming damages in defamation.[4] The plaintiffs claimed that the defendant had published a matter that, in its natural and ordinary meaning, bore the following meanings:
(a)the plaintiffs are racists;
(b)the plaintiffs are homophobic;
(c)the plaintiffs hold an anti-Muslim view;
(d)the first plaintiff is unpatriotic in that he holds the view that the Australian National Flag should be destroyed; and
(e)the plaintiffs adhere to and promote conspiracy theories.[5]
[4]Originally, the proceeding was commenced against three defendants. However, in May 2020, the plaintiffs discontinued the proceeding against the two other defendants, on terms that each party bear their own costs.
[5]Fourth further amended statement of claim, paragraph 20.
The basis for these allegations was in substance that the material published by Twitter as ‘tweets’ under the ‘moniker’ (name) of the second plaintiff conveyed those meanings; and the plaintiffs were identified by the use of the alphanumeric handle ‘idaz09’.
During 2019 and 2020, there were various disputes about the plaintiffs’ pleadings, resulting in the plaintiffs filing and serving an amended statement of claim, a further amended statement of claim, a second further amended statement of claim, a draft third further amended statement of claim and a fourth further amended statement of claim.[6] On 26 February 2021, the defendant filed its defence.
[6]As to some of this history, see Reasons, [6], and Nikolic v Twitter International Company [2020] VSC 101 (Daly AsJ) (‘Strike out Reasons’).
Between 27 June 2021 and 2 July 2021, the parties engaged in discussions which culminated in an agreement to settle the proceeding. A settlement agreement (‘the settlement agreement’) was executed by the plaintiffs on 2 July 2021, and by the defendant on 8 July 2021. In essence, the settlement agreement provided for the payment of a settlement sum by the defendant to the plaintiffs in full and final settlement of the proceeding, with the defendant to use ‘its best endeavours to transfer [the relevant Twitter handles] to the plaintiffs’. The relevant terms of the settlement agreement are described and set out at Reasons [8]–[9], and I will not burden these reasons by repeating them here.
On 12 July 2021, in accordance with clause 5 of the settlement agreement, the parties submitted proposed consent orders that the proceeding be dismissed with no order as to costs. On 13 July 2021, Baker JR ordered by consent that:
1. The proceeding be dismissed.
2. There be no order as to costs.
On 28 July 2021, the solicitors for the defendant emailed the plaintiffs’ former solicitors confirming that they had paid the settlement sum required by the settlement agreement. On 13 August 2021, the solicitors for the defendant emailed the plaintiffs’ former solicitors confirming that the defendant had complied with its obligation to transfer the relevant Twitter handles to the plaintiffs.
On 24 November 2023, the plaintiffs filed a summons seeking eight specific orders and such further or other orders as the court thinks appropriate. The first four orders sought in the summons were as follows:
1.Pursuant to rule 22.02 of the Supreme Court (General Civil Procedure) Rules 2015, the plaintiffs be given leave to bring this application.
2.This Proceeding be reinstated.
3.The order of … Judicial Registrar Baker made on 13 July 2021 be set aside.
4.The deed of release between the parties made on 2 July 2021 be set aside on the basis that the defendant:
(a)abused of process; and
(b)refused to cease an enslavement on the first plaintiff or plaintiffs to date (as defined in the Amended Writ and Statement of Claim (AWSC) dated 10 August 2023 under S ECI 2023 00856, referred to as the Further Proceeding).[7]
[7]For completeness, the Further Proceeding is a claim in the Trial Division, in which the plaintiffs sue the defendant and two solicitors. At paragraph Q1 (on page 24 of the document), there is an allegation that Mr Nikolic ‘is informed and believes … that … [the settlement agreement] clauses … involve slavery’. The basis for this assertion and the relevance of it (if true) were not explained by the plaintiffs.
There then followed a series of interlocutory steps between the parties, before the plaintiffs’ November 2023 summons was allocated to Gray J for determining on the papers.

Gray J’s decision

Gray J commenced his analysis by noting that, if an order disposing of a proceeding has been perfected, there is no power to reinstate the proceeding.[8] His Honour supported that proposition by reference to the High Court’s decision in Bailey v Marinoff[9] and this Court’s decision in Euromark Limited v Smash Enterprises Pty Ltd (in liq) (No 2).[10]
[8]Reasons, [26].
[9](1971) 125 CLR 529, 530–1 (Barwick CJ) (‘Bailey’).
[10][2024] VSCA 152, [11]–[17] (Niall and Macaulay JJA) (‘Euromark’).
His Honour said that the only exception that might conceivably arise in a case like the present would be if the settlement agreement was void or voidable from the outset, or (perhaps) that the defendant had committed a fundamental breach of it that would justify the plaintiffs accepting its repudiation and terminating it.[11] His Honour then said:
I can see no basis on which the Settlement Agreement might be regarded as void or voidable from the outset.
Is there evidence that Twitter has breached the Settlement Agreement in a fundamental way, justifying the plaintiffs asserting that it is at an end? I do not think so.
There is evidence before me, which I accept, suggesting that Twitter has performed its obligations under the Settlement Agreement, and the plaintiffs have adduced no evidence to the contrary. The plaintiffs’ claim for reinstatement of the proceeding is based on continuing publication or republication by Twitter of the old tweets after the date of the Settlement Agreement. For example, Mr Nikolic deposes:
On or after the date of the Deed of Release [in other words, the Settlement Agreement], the defendant edited to republish the old tweets using each of the registered trading names and logos. The republication of the old tweets constituted a different type of action to that contained in this proceeding and the Deed of Release.
As already mentioned, Mr Nikolic deposed to the old tweets still being available on the website of Twitter/X. He further deposed to the steps he has taken at various times from August 2021 to have the old tweets removed from the handles transferred to him. He deposed to not having received a response in relation to finalisation of his request. I infer that his efforts to have Twitter/X remove the old tweets have not been successful. For the purposes of deciding this application, I will assume that this is the case.
However, even assuming that the old tweets are still visible, continued publication by Twitter/X of the old tweets previously posted by persons unknown on the unauthorised Twitter handles would not constitute a breach of the Settlement Agreement. The Settlement Agreement did not require Twitter to remove old tweets posted on the unauthorised Twitter handles, only to transfer those handles to the plaintiffs.[12]
[11]Reasons, [27].
[12]Ibid [28]–[32] (footnotes omitted).
The judge then said that, having ‘considered the other aspects of the plaintiffs’ material and submissions’, he could not discern any other basis upon which the perfected order of the Court dismissing the proceeding could be re-called.[13] The judge dealt with a number of points made by the plaintiffs as follows:
(1)Sections 27QD and 27QE of the Limitation of Actions Act 1958, which were relied upon by the plaintiffs as empowering the Court to set aside the settlement agreement, was of no assistance to the plaintiffs as those provisions are only operative if the proceeding is founded on the death or personal injury of a person resulting from ‘an act or omission in relation to the person when the person is a minor that is physical abuse or sexual abuse’; and ‘psychological abuse (if any) that arises out of that act or omission’.[14]
(2)The plaintiffs’ reliance upon ‘the Google CSE matter’[15] was misplaced because the Google CSE matter does not justify any exception to the rule against the re-calling of perfected orders.[16]
(3)The references in the plaintiffs’ material and submissions to the adverse impact on Mr Nikolic of circumstances arising in connection with this proceeding; to the adverse impact of the actions of people associated with the defendant; to the adverse impact of an adverse description of an earlier submission made by the plaintiffs, which appeared in previous reasons for judgment of the court;[17] to disability discrimination and failures to make reasonable adjustments; to breaches of the Civil Procedure Act 2010 and Equal Opportunity Act 2010; and to breaches of discovery obligations did not provide any basis upon which the court could re-call the perfected order previously made with the plaintiffs’ consent.[18]
[13]Ibid [33].
[14]Ibid [34]–[35]. See Limitation of Actions Act, s 27O(1)(b).
[15]As to which, see Nikolic v Nationwide News Pty Ltd [2024] VSC 380, [58]–[59], [117]–[136] (Gray J).
[16]Reasons, [36].
[17]Strike out Reasons, [43].
[18]Reasons, [37]–[39].
Finally, the judge rejected the plaintiffs’ argument that, in tendering a copy of the settlement agreement, without the consent of the plaintiffs, the defendant was in breach of clause 9.2. The judge concluded that clause 9.2(a)(ii) of the settlement agreement permitted the defendant to disclose the terms of it if and to the extent that it was necessary to enforce or give effect to the settlement agreement. As the judge put it, that was what the defendant was seeking to do, in response to the plaintiffs’ application to reinstate the proceeding.[19]
[19]Ibid [40].
In the result, the judge dismissed the plaintiffs’ applications to reinstate the proceeding and to set aside the consent orders made by Baker JR.

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 four proposed grounds of appeal as follows:
1.Respondent did not plead the matter.
2.Justice Gray was not open to finding the matter.
3.Respondent breached the settlement by releasing this confidential agreement to the Court without the appellants’ consent. Justice Gray did not give a reason for the breach of the settlement.
4.Justice Gray did not raise the inquiry whether the Honourable Justice Daly discriminated against the first appellant on the grounds of his communication access prior to delivering her judgment and making orders.[20]
[20]Italics and bolding in original.
In their application for leave to appeal, the plaintiffs seek orders that the appeal be allowed, the judgments and orders made against them in the courts below be set aside and the settlement ‘be declared void and null’. In the alternative (described as being ‘in lieu thereof’), the plaintiffs seek an order that the proceeding and the Further Proceeding[21] ‘be merged and transferred to the Federal Court of Australia’.
[21]See n 7 above.
In support of the plaintiffs’ application for leave to appeal and proposed appeal, the plaintiffs also filed a summary; a notice under s 35 of the Charter of Human Rights and Responsibilities Act 2006; and further written submissions.[22]
[22]Including the email referred to in n 37 of the Nationwide Refusal Reasons.
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 the Auslan’. The Consolidated Statement identifies five purported respondents:[23] the Supreme Court, Daly AsJ, Gray J, and two solicitors. The respondents are alleged to know that the defendant submitted several false documents to the Supreme Court. The first and second respondents are alleged to have ‘published to defame [Mr Nikolic], imputing that he is illiterate, despite failing to accommodate reasonable adjustments on the grounds of his communication access needs, knowing that [the defendant] submitted several false documents were [sic] not taken to consult with the Auslan interpreter during the proceeding’. Among other allegations made in the Consolidated Statement, the plaintiffs allege that Gray J ‘dismissed the complainant’s summons by hiding and not relying on the matter complained of issues [sic]’. Additionally, the second to fifth respondents (all respondents other than the Supreme Court) are alleged to have ‘repeatedly treated [Mr Nikolic] in less favour to date’.
[23]One less than the Consolidated Statement identified by the plaintiffs’ in the Charter Notice referred to at [50] of the Nationwide Refusal Reasons.
On 25 August 2024, the plaintiffs filed a further application in this Court (‘the 25 August 2024 application’), in which they sought, amongst other things, orders that:
•The ‘settlement breached by [the defendant] be declared’;
•Alternatively, the ‘settlement for the parties null and void be declared’; and
•The defendant pay the plaintiffs’ previous solicitor’s costs and Auslan interpreter fees in the proceeding ‘for not acting with integrity on the matter’.[24]
[24]Italics and bolding in original.
Pursuant to r 64.15(1) of the Supreme Court (General Civil Procedure) Rules 2015 (‘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.[25]
[25]See rr 64.15(2) and (5), and s 14D(1) of the Supreme Court Act.

Consideration

In Bailey, Barwick CJ said:
Once an order disposing of a proceeding has been perfected by being drawn up as the record of a court, that proceeding apart from any specific and relevant statutory provision is at an end in that court and is in its substance, in my opinion, beyond recall by that court. It would, in my opinion, not promote the due administration of the law or the promotion of justice for a court to have a power to reinstate a proceeding of which it has finally disposed. In my opinion, none of the decided cases lends support to the view that the Supreme Court in this case has any inherent power or jurisdiction to make the order it did make, its earlier order dismissing the appeal having been perfected by the processes of the Court.[26]
[26]Bailey (1971) 125 CLR 529, 530–1. See also, Menzies J at 531–2, Owen J at 533 and Gibbs J at 539.
As this Court subsequently said in Euromark:
Consistent with that general position, the circumstances in which this Court can set aside its own perfected orders are heavily circumscribed. For example, the Court has an equitable power to do so where the orders have been procured by fraud. It can also do so pursuant to its power to correct an order that is affected by a “clerical mistake” or an “error arising … from any accidental slip or omission”. The purpose of this latter power is to ensure that the orders of the Court as made accurately reflect the actual intention of the Court. The Court also has inherent jurisdiction to make a supplemental order in certain circumstances provided that such order does not vary or alter the initial order.[27]
[27]Euromark [2024] VSCA 152, [15] (citations omitted).
In addition to the limited circumstances described by this Court in Euromark, a court, in the exercise of its inherent jurisdiction, may set aside a consent judgment or order if the agreement on which the judgment or order was based is void or voidable.[28] That said, even if some basis for setting aside consent orders is established, the court retains a discretion as to whether the orders should be set aside.[29]
[28]See The Owners Strata Plan No 57164 v Yau (2017) 96 NSWLR 587, 604 [72], 605 [76], 606 [80] (Beazley P), 625 [195] (Leeming JA), 631–2 [226] (Emmett AJA).
[29]Ibid 606 [81] (Beazley P), 625 [195] (Leeming JA), 631–2 [226] (Emmett AJA).
Gray J was, with respect, entirely correct when, having examined all of the plaintiffs’ material and submissions, he concluded that there was simply no basis upon which the Court was empowered to set aside the perfected consent orders and reinstate the proceeding which had been dismissed three years earlier. The material relied upon by the plaintiffs did not provide any basis upon which the Court could have made the orders sought by the plaintiff. For the reasons he gave, the orders made by his Honour were plainly correct.

While the plaintiffs make a number of serious allegations against the defendant, its lawyers, the Supreme Court, Daly AsJ and Gray J, apart from the plaintiffs’ mere assertions, no evidence has been provided of any actual wrongdoing or conduct that might possibly justify the setting aside of the orders to which the plaintiffs consented in July 2021, and which were shortly thereafter perfected. A party does not establish fraud (of which there was no evidence in this case in any event) or other serious wrongdoing by mere baseless assertion.
More specifically, the plaintiffs have not provided any evidence (beyond mere high level and generalised assertions) upon which this Court could conclude that the settlement agreement should be set aside — particularly in circumstances where the defendant has performed the terms of the settlement agreement which it was obliged to perform, including by paying the settlement sum to the plaintiffs.
Next, there is no possible basis upon which any of the plaintiffs’ four proposed grounds of appeal might succeed.
First, quite what the plaintiffs intend to convey by proposed ground 1 is, to say the least, unclear — the ground merely asserting that the defendant ‘did not plead the matter’. Nowhere in the application for leave to appeal or in the plaintiffs’ written case is the ‘matter’ defined. While the word ‘Matter’ is used in the Consolidated Statement, forming part of the Charter Notice, to collectively refer to the assertions made against the defendant and the other so-called respondents to the Charter Notice, the notion that the defendant was required to ‘plead the matter’ is difficult to follow. In the end, I am unable to see any possible basis upon which this ground might be even speculatively arguable.[30]
[30]For completeness, I note that the plaintiffs defined the expression ‘the matter’ in paragraph 11 of the fourth further amended statement of claim to be the publication by the defendant of material set out in a 34-page schedule to the pleading. However, even if one were to assume that this is the matter referred to in the plaintiffs’ proposed ground appeal, the meaning and ambit of proposed ground 1 is still elusive.
Secondly, proposed ground 2 fails for the same reason as proposed ground 1 — a lack of clarity in what is meant by the word (this time) ‘matter’.[31] If proposed ground 2 is meant to contain some allegation that Gray J was biased or had a closed mind to some submission of the plaintiffs, then the ground also fails for a lack of any foundation upon which such an assertion might be made.
[31]Not ‘matter’.
Thirdly, in relation to proposed ground 3, the judge was plainly correct when he concluded that the defendant did not breach the settlement agreement when it tendered the agreement in opposition to the plaintiffs’ application. Contrary to the plaintiffs’ submissions, the defendant did not require their consent to the tender of the settlement agreement because the tender was ‘necessary to enforce or to give effect to [the settlement agreement]’ within the meaning of clause 9.2(a)(ii) of that agreement.
Fourthly, in relation to proposed ground 4, there was no occasion for his Honour to ‘raise the inquiry’ whether Daly AsJ discriminated against Mr Nikolic on any grounds, given that, subsequent to the parties appearing before her Honour, the parties entered into the settlement agreement which led to the making of the perfected consent orders in July 2021 by Baker JR. That said, nothing in the material filed in this case provides any support for the assertion that Daly AsJ discriminated against Mr Nikolic in any way. In fact, a fair reading of the extracts of the transcript of the hearings conducted by her Honour, exhibited by Mr Nikolic, discloses to the contrary.
Next, I should deal with the plaintiffs’ complaints that the defendant and its lawyers directed ‘an insult’ towards Mr Nikolic, calling him ‘unintelligible’ or ‘illiterate’; and resulting in him consequently being defamed by Daly AsJ (as well as the defendant and its lawyers).
The matter about which Mr Nikolic takes offence was a submission made by the defendant during the course of an application to strike out the plaintiffs’ amended statement of claim (the ASOC’) pursuant to r 23.02. In that application, the defendant submitted that particular allegations made in particular paragraphs of the ASOC were ‘vague and unintelligible’. Daly AsJ referred to that submission at [43] of the Strike out Reasons.
The plaintiffs’ complaints on this issue are entirely misconceived. No insult was directed at Mr Nikolic personally. Moreover, the allegation that the plaintiffs’ pleadings were unintelligible could not, without more, found any cause of action in defamation. Complaints that pleadings are unintelligible have been made by generations of lawyers. More than 50 years ago, in Meckiff v Simpson,[32] the Full Court said:
As is shown by numerous authorities …, matter in a pleading will be struck out … where there is some defect in the pleading attacked, eg, where the pleading is unintelligible, ambiguous, vague or too general, so as to embarrass the opposite party who does not know what is alleged against him.[33]
[32][1968] VR 62 (Winneke CJ, Adam and Gowans JJ) (‘Meckiff’).
[33]Ibid [70] (emphasis added).
In the decades since Meckiff, there have undoubtedly been hundreds (if not thousands) of cases where one party has asserted that an opposite party’s pleading is unintelligible.[34] In many cases, these pleading will have been drawn by counsel — and, in some cases, senior counsel. The assertion that a pleading is unintelligible is not directed at the pleader (who may otherwise be eminent in their field). It is directed at the relevant pleading.
[34]See for a most recent example, Rose v Secretary of the Department of Health and Aged Care [2025] FCA 339, [52] (Katzmann J).
The defendant’s submission concerning the ASOC, about which the plaintiffs make complaint was not directed at Mr Nikolic, it was directed at the plaintiffs’ pleading. The making of the submission did not involve any misconduct on the part of the defendant or its lawyers, and does not provide any basis upon which to impugn any of the decisions given below, or any basis upon which leave to appeal might now be given in this Court.
Finally, I should note that there is no basis upon which this Court could or should merge the present proceeding with the Further Proceeding,[35] and no basis upon which this Court could or would make the transfer sought by the plaintiffs (either as a stand-alone order upon the dismissal of an appeal, or as an alternative to the primary relief sought by the plaintiffs in their application for leave to appeal).[36]
[35]See para [18] and n 7 above.
[36]See para [18] above.

Conclusion

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 25 August 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 80

16 April 2025