Nikolic v Twitter International Company
[2024] VSC 381
•1 July 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
MAJOR TORTS LIST
S ECI 2019 00126
| GORAN NIKOLIC | First Plaintiff |
| and | |
| IDAZ09 PTY LTD (ACN 166 845 647) | Second Plaintiff |
| v | |
| TWITTER INTERNATIONAL COMPANY | Defendant |
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JUDGE: | GRAY J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | Determined on the papers |
DATE OF JUDGMENT: | 1 July 2024 |
CASE MAY BE CITED AS: | Nikolic v Twitter International Company |
MEDIUM NEUTRAL CITATION: | [2024] VSC 381 |
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PRACTICE AND PROCEDURE — Application to reinstate proceeding following settlement and order by consent dismissing the proceeding.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Self-represented | |
| For the Defendant | - | Thomson Geer |
HIS HONOUR:
Can and should consent orders dismissing this proceeding some years ago be set aside and the proceeding reinstated?
Facts and plaintiffs’ claims
The factual background of this proceeding is closely related to the factual background of proceeding S ECI 2019 02003, in which I have also delivered reasons for judgment today.
Both proceedings arise from offensive material being published on Twitter using accounts or ‘handles’ that contained the distinctive word ‘idaz09’, which is virtually identical (save for the use of lower case letters) as the second plaintiff’s name. However, as explained in my reasons for judgment in the other proceedings, those handles and the material published on Twitter through their use were not authorised by the plaintiffs, and so I have referred to them as the unauthorised Twitter handles.
The first plaintiff, Goran Nikolic, and the second plaintiff, IDAZ09 Pty Ltd, commenced this proceeding by writ and statement of claim on 15 January 2019. Mr Nikolic is the sole shareholder and director of IDAZ09 Pty Ltd. The plaintiffs claimed damages in defamation against three companies including Twitter International Company (Twitter). The plaintiffs also claimed injunctions.
As against Twitter, the plaintiffs claimed that it had published a matter that in its natural and ordinary meaning bore the meaning that the plaintiffs are racists, are homophobic, hold anti‑Muslim views, hold the view that Australian politics is influenced by paedophiles, and that the plaintiffs hold the view that vaccines kill babies.[1] The basis for the allegation was that the matter conveying those meanings had been published by Twitter as ‘tweets’ under the ‘moniker’ (name) of the second plaintiff;[2] that is, by someone using the unauthorised Twitter handles I have already referred to.
[1]Writ and statement of claim filed 15 January 2019, [10].
[2]Writ and statement of claim filed 15 January 2019, [2], [11].
Further interlocutory steps occurred as follows:[3]
[3]See the affidavit of Justin Healy Quill sworn 4 April 2024, [8]–[24].
(a) On 28 August 2019, the plaintiffs filed an amended statement of claim.
(b) On 24 October 2019, Twitter filed a summons seeking to strike out the amended statement of claim.
(c) The other defendants each filed summonses of their own also seeking summary judgment, or else orders striking out the amended statement of claim.
(d) On 28 November 2019, the three summonses were heard by Daly AsJ.
(e) On 9 April 2020, Daly AsJ delivered reasons,[4] and made orders striking out various paragraphs in the amended statement of claim and permitting the plaintiffs to file a further amended statement of claim.
[4]Nikolic v Twitter & Ors [2020] VSC 101.
(f) In May 2020, the plaintiffs discontinued the proceeding as against the other two defendants, on terms that each party bear their own costs.
(g) On 7 May 2020, the plaintiffs filed a further amended statement of claim. The further amended statement of claim records that it was prepared by Matrix Legal.
(h) On 24 June 2020, Twitter filed submissions alleging deficiencies in the further amended statement of claim.
(i) On 1 July 2020, Daly AsJ made orders that noted in other matters that her Honour agreed with the submissions of Twitter dated 24 June 2020, and ordering that the plaintiffs file and serve a second further amended statement of claim by 27 July 2020.
(j) On 12 August 2020, the plaintiffs filed a second further amended statement of claim.
(k) On 16 October 2020, Daly AsJ made orders as to the filing of a draft third further amended statement of claim by the plaintiffs, and also made a costs order against the plaintiffs in respect of Twitter’s costs of reviewing and responding to attempts by the plaintiffs to finalise the statement of claim between 7 May 2020 and 16 October 2020.
(l) On 30 October 2020, the plaintiffs filed a third further amended statement of claim.
(m) On 14 December 2020, the proceeding came before Daly AsJ in respect of the draft third further amended statement of claim. Her Honour refused leave to file and serve the draft third further amended statement of claim, made orders providing for the service of a draft fourth further amended statement of claim and made an order as to costs against the plaintiffs.
(n) On 31 December 2020, the plaintiffs filed a fourth further amended statement of claim.
(o) On 26 February 2021, the defendant filed a defence.
Between 27 June 2021 and 2 July 2021, the parties through their legal representatives engaged in discussions. The discussions culminated in an agreement to settle the proceeding, which the plaintiffs executed on 2 July 2021 (Settlement Agreement). The plaintiffs were legally represented by Matrix Legal. The defendant, Twitter, executed the Settlement Agreement on 8 July 2021.
A copy of the Settlement Agreement, omitting the settlement sum agreed between the parties, was put in evidence before me by Twitter.[5] Disclosure is permitted by the terms of the Settlement Agreement if and to the extent that it is necessary to enforce or give effect to the Settlement Agreement: cl 9.2(a)(ii).
[5]Affidavit of Justin Healy Quill sworn 4 April 2024, exhibit JHQ-1, 10–19.
The terms of the Settlement Agreement included the following additional terms of relevance to these reasons:
1.1 Definitions
…
Claim means all allegations and claims of any kind whatsoever (including any proceeding, suit or demand, or request for costs) by the Plaintiffs that they have been or may have been defamed, injured or damaged in any way by the Publications or any republication or related publication on the Twitter or any other platform referring to the Publications, or any facts, circumstances or matters relating to the Publications or the accounts that Tweeted the Publications.
…
Publications means any past or current Tweets that have been posted on the Twitter platform from the @idaz09 and @idaz09nations handles prior to the Twitter Handles Transfer and every Tweet that has been the subject of each statement of claim in this Proceeding
…
Twitter Handles means the Twitter handles @idaz09 and @idaz09nations. Twitter Handles includes the name of the handle only, and does not include any other information regarding or affiliated with any accounts that previously used Twitter handles @idaz09 and @idaz09nations.
Twitter Handles Transfer means the transfer of the Twitter Handles pursuant to clause 3 of this Agreement.
…
2.1 Within 28 days of the final execution of this Agreement by the Parties, Twitter (or one of its related entities on its behalf) shall pay the Settlement Sum to the Plaintiffs in full and final settlement of the Proceeding.
3 Twitter Handles Transfer
3.1 Twitter (or one of its related entities on its behalf) will use its best endeavours to transfer the Twitter Handles to the Plaintiffs. To enable Twitter (or one of its related entities on its behalf) to undertake the Twitter Handles Transfer, Nikolic must follow the instructions set out in Annexure A to this Agreement.
3.2 In accordance with the Twitter Privacy Policy, the Twitter Handles Transfer shall not include the transfer of any account history relating to the previous account holder of the Twitter Handles or information or data affiliated with those accounts, including but not limited to any basic account information, contact information, direct messages, payment information and location information.
4 Release
4.1 In consideration of the benefit received under clauses 2, 3 and 11.1(a) of this Agreement, the Plaintiffs, any entity controlled by either of them, and any of their related bodies corporate, trusts, legal entities or such entities, and each of their directors, officers, employees, agents, contractors and/or related bodies corporate release, indemnity and forever hold harmless Twitter and its directors, officers, employees, agents, contractors and/or related bodies corporate, including but not limited to Twitter affiliates, subsidiaries and parents, and each of their respective directors, officers, employees, agents, contractors and/or related bodies corporate, from any claim related to, connected with or arising out of any matter, fact or circumstance in any way connected with the Claim and the Proceeding.
4.2 The Parties agree that a breach of clause 4.1 is a material breach of this Agreement.
…
5 Disposal of the Proceeding
5.1 Within 7 days of the execution of this Agreement by the Parties, the Parties shall execute and then Twitter shall file consent orders with the Supreme Court or Victoria in the following terms:
(a) The Proceeding be dismissed.
(b) There be no order as to costs.
…
8. Bar to further proceedings
8.1 This Agreement may be pleaded by Twitter or any of its directors, officers, employees, agents, contractors and/or related bodies corporate 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 of this Agreement, except for any claim commenced at any time by a Party against another Party to enforce this Agreement.
…
11 General
11.1 Legal Costs
(a) Twitter agrees not to enforce any costs order it has received in its favour against the Plaintiffs in the Proceeding.
(b) Each party must pay their own legal and other costs and expenses of any matter relating to, connected with or arising out of the Proceeding or the negotiation of this Agreement, or any other complaints the Plaintiffs have or may have against Twitter at the time of executing this Agreement.
On 12 July 2021, in accordance with cl 5 of the Settlement Agreement, the parties submitted proposed consent orders that the proceeding be dismissed with no order as to costs.[6]
[6]Affidavit of Justin Healy Quill sworn 4 April 2024, [28].
On 13 July 2021, Judicial Registrar Baker ordered by consent that:
1. The proceeding be dismissed.
2. There be no order as to costs.
On 28 July 2021, the lawyers for Twitter emailed the lawyers for the plaintiffs confirming that they had paid the settlement sum required by cl 2 of the Settlement Agreement.[7]
[7]Affidavit of Justin Healy Quill sworn 4 April 2024, [30].
On 13 August 2021, the lawyers for Twitter emailed the lawyers for the plaintiffs confirming that Twitter had complied with its obligations under cl 3 of the Settlement Agreement to transfer the Twitter handles referring to ‘idaz09’ to the plaintiffs.[8]
[8]Affidavit of Justin Healy Quill sworn 4 April 2024, [31].
On 24 November 2023, the plaintiffs filed a summons seeking eight specific orders and such further or other order as the Court thinks appropriate. The first four orders sought in the summons are 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).
…
The summons was, on its face, made returnable with respect to orders 2 and 3 before me on a date to be fixed, and with respect to orders 1 and 4 to 9 before a judicial officer on a date to be fixed not before the determination orders 2 and 3.
The plaintiffs filed submissions in relation to their summons on 27 December 2023, and it appears that those submissions were subsequently served on Twitter.
On 12 March 2024, Judicial Registrar Baker made orders by consent that the defendant file and serve any submissions with respect to paragraphs 2 and 3 of the summons, and that paragraphs 2 and 3 of the summons are listed for determination by me on the papers on or after 8 April 2024.
The ‘other matters’ recited in the order of Judicial Registrar Baker referred to the plaintiffs’ earlier submissions (dated 27 December 2023) being served on Twitter on 9 February 2024.
The plaintiffs’ application is also supported by the first plaintiff’s affidavit sworn 10 February 2024[9] and filed 11 February 2024, and a supporting document entitled ‘Hyperlinks’ filed 12 February 2024. At about the same time, the plaintiffs prepared further submissions, which were filed on 11 February 2024.
[9]Based on the jurat, on page 5 of 84.
I received that the affidavit and have considered it, along with the two sets of submissions filed in December and February by the plaintiffs, in the course of deciding the current application.
As to the ‘Hyperlinks’ document, that document provides four hyperlinks to material referred to in paragraph 5 of Mr Nikolic’s affidavit of 10 February 2024. By this material, Mr Nikolic states that, on 10 February 2024 (and, I will assume, still to this day), the old tweets originally published on the unauthorised Twitter handles remain visible on Twitter/X. I do not have a Twitter/X account and was not able to make the hyperlinks work, and although I have not checked the hyperlinks I will simply accept Mr Nikolic’s evidence about this.
The defendant filed submissions in relation to paragraphs 2 and 3 of the summons on 4 April 2024. The defendant relies on an affidavit of Justin Quill sworn 4 April 2024. I received that affidavit into evidence and considered it, along with the defendant’s submissions.
On 5 April 2024, the plaintiffs filed further submissions in response to the defendant’s submissions. I have also considered these submissions in determining paragraphs 2 and 3 of the summons.
On 12 May 2024, the plaintiffs submitted to the registry a document entitled ‘Amended Summons’, but that summons was not sealed or issued to the defendant. The summons referred to an accompanying affidavit affirmed 2 May 2024. It added to the orders sought in the summons in various ways, not affecting paragraphs 2 and 4. I have not considered this draft amended summons in this judgment.
Consideration of paragraphs 2 and 3 of the plaintiffs’ summons filed 24 November 2023
As noted above, paragraph 2 of the summons seeks an order that the proceeding be reinstated and paragraph 3 seeks an order that the order of Judicial Registrar Baker (dismissing the proceeding by consent) be set aside.
If an order disposing of a proceeding has been perfected, there is no power to reinstate the proceeding.[10]
[10]Bailey v Marinoff (1971) 125 CLR 529, 530–31 (Barwick CJ) (Bailey). See most recently Euromark Limited v Smash Enterprises Pty Ltd (in liq) (No 2) [2024] VSCA 152, [11]–[17] (Niall and Macaulay JJA) (Euromark).
The only exception that might conceivably arise in a case like the present would be that the Settlement Agreement was void or voidable from the outset, or (perhaps) that Twitter/X has committed a fundamental breach of it that would justify the plaintiffs accepting its repudiation and terminating it.
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,[11] 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:[12]
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.
[11]Affidavit of Justin Healy Quill sworn 4 April 2024, [29]–[32].
[12]Affidavit of Goran Nikolic sworn 10 February 2024, [4].
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.
I have considered the other aspects of the plaintiffs’ material and submissions and cannot discern any other basis on which the perfected order of the Court dismissing the proceeding could be recalled. Without intending to be exhaustive about everything said in those documents, the following points seemed the most significant.
The plaintiffs relied on ss 27QD and 27QE of the Limitations of Actions Act 1958, which permit the Court to set aside settlement agreements and hear previously settled actions. However the division of the Act under which these powers arise[13] does not apply here. Relevantly, it arises if the action is founded on the death or personal injury of a person resulting from:[14]
(i) an act or omission in relation to the person when the person is a minor that is physical abuse or sexual abuse; and
(ii) psychological abuse (if any) that arises out of that act or omission.
[13]Limitations of Actions Act 1958 pt IIA div 5.
[14]Limitations of Actions Act 1958 s 27O(1)(b).
This case does not involve any such circumstances.
The plaintiffs referred to the Google CSE matter, which is explained in my reasons for judgment published today in the other proceeding. The Google CSE matter does not justify any exception to the rule against recall of the perfected orders in this proceeding.
There were references in the plaintiffs’ material and submissions to the adverse impact on Mr Nikolic of circumstances arising in connection with this proceeding, of actions of people associated with the defendant, and of an adverse description of an earlier submission made by the plaintiffs, which appeared in previous reasons for judgment of the court. There were references to disability discrimination and failures to make reasonable adjustments, breaches of the Civil Procedure Act 2010 and Equal Opportunity Act 2010, and breaches of discovery obligations.
To the extent that these arguments included allegations of wrongdoing against others, I do not accept them. I have made no such findings against anyone, including any lawyers associated with Twitter. No such findings are open on the evidence.
None of the matters set out in the plaintiffs’ material and submissions empower me to recall the perfected order previously made by the Court, with the plaintiffs’ consent.
In their submissions filed on 5 April 2024, the plaintiffs reiterate their main arguments and also make an additional argument. They contend that Twitter should not have tendered a copy of the Settlement Agreement, as doing so was in breach of cl 9.2 in the absence of consent from the plaintiffs. I am not persuaded by this argument either, because cl 9.2(a)(ii) of the Settlement Agreement permits Twitter to disclose the Settlement Agreement if and to the extent that it is necessary to enforce or give effect to the Settlement Agreement. That is what Twitter is seeking to do now, in response to the plaintiffs’ present application to reinstate the proceeding.
The plaintiffs’ material and submissions do not establish an exception to the rule that a perfected order of the Court is beyond recall. I will dismiss paragraphs 2 and 3 of the plaintiffs’ summons filed 24 November 2023. Twitter sought an order for costs in that event. I will give the plaintiffs an opportunity to make submissions in response to that submission, and if I do not receive submissions (limited to 5 pages) from the plaintiffs on that question within seven days, the usual rule will apply and the plaintiffs will be ordered to pay the defendant’s costs of an incidental to this application.
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