Trkulja v Barrow
[2013] VSC 227
•6 May 2013
| Do Not Send for Reporting | ||
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
MAJOR TORTS LIST
No. S CI 2013 00442
| MILORAD TRKULJA | Plaintiff |
| v | |
| DAVID BARROW | Defendant |
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JUDGE: | BEACH J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 May 2013 | |
DATE OF JUDGMENT: | 6 May 2013 | |
CASE MAY BE CITED AS: | Trkulja v Barrow | |
MEDIUM NEUTRAL CITATION: | [2013] VSC 227 | |
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LEGAL PRACTITIONER – Solicitor – Application to restrain plaintiff from retaining solicitor in this proceeding – Application made on basis that defendant proposes to call plaintiff’s solicitor as a witness – Application refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C. Dibb | George Liberogiannis & Associates |
| For the Defendant | In person |
HIS HONOUR:
Introduction
In this proceeding, Milorad Trkulja, the plaintiff, claims damages from David Barrow, the defendant. The proceeding relates to publications allegedly made by the defendant, and said to be constituted by comment number 63 (the first matter complained of), comment number 67 (the second matter complained of) and comment number 74 (the third matter complained of) in relation to an article published on the internet under the heading “Yahoo held liable for search results in defamation case”.
The plaintiff is represented by George Liberogiannis & Associates. By summons filed 17 April 2013, the defendant seeks an order against the plaintiff that George Liberogiannis & Associates be restrained from acting for the plaintiff in this proceeding. In substance, the defendant seeks to restrain the plaintiff from continuing to retain the plaintiff’s current solicitors. The basis of the application is that the defendant proposes to call Mr Liberogiannis as a witness in the defendant’s case. Before proceeding further, it is necessary to describe the plaintiff’s case in a little greater detail.
The plaintiff’s case
The plaintiff sues in respect of three comments said to be published by the defendant to various people who downloaded and comprehended them. The first matter complained of contains the following:
Mr Trkulja’s barrister, Mr Dibb, was quoted correctly when he underscored that there was no defence of truth being run by Google which would have them setting out to prove that Mr Trkulja was part of the criminal underworld or associated with those rogues. In Mr Dibb’s words (per AFR):
You won’t have anyone with a broken nose in the witness box saying that they know Mr Trkulja.
I did note from the public gallery that Witness No.2 on Tuesday 23 October 2012 did mumble a bit but it did not seem to be due to a broken nose, so that appeared all clean.
What is curious is if you read the Final Operation “HARED” Police Report into Mr Trkulja’s shooting in 2004 at para 20:
Purana Task Force (Melbourne ‘Gangland’ murders) – advised that TRKULJA was known to associate with … Mick GATTO but that TRKULJA was not a ‘target’ of Purana Task Force.
There is nothing necessarily wrong with being in the proximity of a person with a criminal past. By way of personal disclosure, for well over a year I dined regularly in the proximity of Mick GATTO at the La Porcella.
In respect of the first matter complained of, the plaintiff pleads one false innuendo in the following terms:
The plaintiff is an associate of Mick Gatto, a man with a notorious criminal past.
The second matter complained of contains the following:
If interested, it is open for any member of the public to fill out the simple application and make a request for the following documents:
Police Reports (Armed Offenders Squad, 412 St Kilda Rd) into shooting investigation of Milorad (aka Michael) TRKULJA on 27 June 2004 at the Konak Restaurant, Shop 12/22 East Esplanade, St Albans 3021.
_____________
If you do, you will likely be sent the 8 November 2004 Final Report on Operation “HARED” which includes at para 22:
Investigators considered that the offender for the shooting of TRKULJA was most likely motivated by one or more of the following:-
(1) civil litigation instigated by TRKULJA;
(2) substantial monetary debts owed by TRKULJA;
(3) TRKULJA’s both consenting and criminal sexual behaviour with married women.
As a result, investigators began to compile a lengthy list of ‘possible’ suspects who had been the subject of any or all of the aforementioned actions by TRKULJA.
In respect of the second matter complained of, again the plaintiff pleads only one false innuendo:
The plaintiff engaged in criminal sexual behaviour with married women.
The third matter complained of contains the following:
I don’t know about the witnesses called by Mr Trkulja in the Yahoo! and Google cases.
Those witnesses have not been charged with perjury as far as I know. So presumably they are telling the truth, the whole truth and nothing but the truth, so help them.
All I do know is that the Victoria Police had this to say about Mr Trkulja in the 8 November 2004 Final Report on Operation “HARED” at para 26:
TRKULJA has obviously lied to investigators in TRKULJA’s attempts to avoid contact with investigators. TRKULJA has quite obviously briefed other persons to lie to investigators on his behalf. As a direct result of this conduct, a formal complaint was lodged against Det Snr Const JURIC by a female Dianne … (probably at the initiation of TRKULJA)
And at the Conclusion para 32:
The objective of this operation was not achieved insofar as the investigation failed to establish the identity of the person responsible for shooting TRKULJA. Because of TRKULJA’s deficiency in credibility and honesty, investigators believe that the identity of the person responsible for shooting TRKULJA will not be established. Certainly, investigators believe that it would be unethical and unprofessional to place a person in jeopardy of a conviction for a serious criminal offence with a prosecution case that hinged on the evidence of TRKULJA.
Anyway, any member of the public can make an application to obtain that Final Report – and so make up their own mind by contacting the Victoria Police via their Freedom Of Information process:
The third matter complained of concluded with an internet address, followed by a statement suggesting that certain identified police reports should be requested.
In respect of the third matter complained of, the plaintiff has pleaded four false innuendos as follows:
(i) The plaintiff lied to police officers investigating the shooting of the plaintiff.
(ii) The plaintiff is dishonest.
(iii) The plaintiff lacks credibility.
(iv) The plaintiff asked other people to lie to the police on his behalf.
Immediately one sees the problems that might be created by the width of imputations (ii) and (iii) in the circumstances of the specific and more limited material that was actually published.
The defendant’s defence
On 17 April 2013, the defendant filed a defence and counterclaim. The defence and counterclaim, together with its schedules, runs to some 136 pages. In it, the defendant, amongst other pleas, denies that the third matter complained of gave rise to the imputations pleaded by the plaintiff. However, the defendant went on to plead that if the plaintiff’s imputations in respect of the third matter complained of arose, then the same were true in substance and in fact.[1]
[1]As an alternative plea, the defendant alleged that the plaintiff’s imputations in respect of the third matter complained of were substantially true, resulting in a defence under s 25 of the Defamation Act 2005.
In respect of the plaintiff’s imputations (ii) and (iii),[2] the defendant gives a number of particulars of truth that are unrelated to the specifics of what was published in the third matter complained of:
[2]The broad pleas that the third matter complained of meant that the plaintiff is dishonest and the plaintiff lacks credibility.
F.On 25 March 2009, Mr Trkulja commenced defamation proceedings in the County Court of Victoria proceeding CI-09-01189 Trkulja v Babic by way of writ and statement of claim. Mr Trkulja falsely stated that Dr Matt Collins of the Victorian Bar was a counsel responsible for preparing the Statement of Claim when it was Mr Trkulja as a self-represented litigant that prepared the Statement of Claim.
G.In Supreme Court of Victoria proceeding S CI 2010 00921 Trkulja v Ivanovic, Mr Trkulja filed the following subpoenas misrepresenting that the subpoenas had been prepared by “George Liberogiannis & Associates Lawyers” when the subpoenas had been prepared and later filed and served by Mr Trkulja without the authority or consent of those lawyers:
(1)Form 42AA subpoena dated 2 December 2010 and filed 3 December 2010 addressed to Mr Simon Overland, the Chief Commissioner of the Victoria Police or Proper Officer of the Victoria Police.
(2)Form 42A subpoena dated 21 February 2011 and filed 21 February 2011 addressed to Mr Dragutin Ivanovic.
(3)Form 42A subpoena dated 21 February 2011 and filed 21 February 2011 addressed to Mr Srboljub Markovic.
H.In Federal Magistrates Court proceeding MLG 402 of 2011 Trkulja v Gibsons Solicitors Pty Ltd, Mr Trkulja filed the following affidavits which made several baseless allegations against the staff at Gibsons Solicitors Pty Ltd (the former lawyers for Mr Trkulja), including that those staff swore false affidavits, overcharged Mr Trkulja and failed to act upon Mr Trkulja’s instructions:
(1)Affidavit of Milorad Trkulja sworn 28 March 2011.
(2)Affidavit of Milorad Trkulja sworn 4 April 2011.
(3)Affidavit of Milorad Trkulja sworn 10 May 2011.
(4)Affidavit of Milorad Trkulja sworn 4 July 2011.
(5)Affidavit of Milorad Trkulja sworn 18 July 2011.
I.In Supreme Court of Victoria proceeding S CI 2011 01402 Trkulja v Gibsons Solicitors Pty Ltd, Mr Trkulja filed the following affidavit which made several baseless allegations against the staff at Gibsons Solicitors Pty Ltd (the former lawyers for Mr Trkulja), including that those staff swore false affidavits, overcharged Mr Trkulja and failed to act upon Mr Trkulja’s instructions:
(1)Affidavit of Milorad Trkulja sworn 29 March 2011.
J.On 21 June 2012, in Country Court of Victoria proceeding CI-09-04453 Trkulja v Markovic, Mr Trkulja filed in Court, by way of instructions to his counsel Mr Christopher Dibb of the New South Wales Bar (also instructed in that Court by solicitor Mr Liberogiannis), an affidavit sworn 21 June 2012 which gave false evidence at paragraph 5 that Mr John Jensen (Mr Jensen) of the “Victorian Police Crime Department” previously gave evidence in the County Court that a “Police DVD” which is said to contain approximately 17,000 files which “contains defamatory articles and images only”. Mr Jensen did not provide any such evidence in the County Court and this false part of Mr Trkulja’s affidavit was relied on by Mr Trkulja in support of a successful application to His Honour Judge Misso for the “Police DVD” to be viewed and copied by Mr Trkulja in an unredacted form against the wishes of the self-represented litigant and owner of the DVD Mr Srboljub Markovic and his wife Milena Markovic.
K.On or about 18 September 2009 at the hearing of Magistrates’ Court of Victoria (Melbourne) case number Y00590814 Trkulja v Markovic before Magistrate Braun, Mr Trkulja gave the following personal evidence directly contradicting his personal evidence in the hearing of Magistrates’ Court of Victoria (Sunshine) case number X03569142 Victoria Police v Markovic before Magistrate Bentley on or about 13 July 2009:
(1)In X035691 Mr Trkulja gave evidence that he “never owned” a website named “SMOTRA”; whereas in Y00590814 Mr Trkulja gave evidence that he did own the website named “SMOTRA”, even though Magistrate Braun cautioned Mr Trkulja that if he changed his evidence (and it “can be easily checked”) “He is guilty of perjury”.
L.On or about 6 March 2012 at the trial of Supreme Court of Victoria proceeding S CI 2009 10916 Trkulja v Yahoo! Inc LLC & Ors, Mr Trkulja gave false personal evidence under oath that:
(1)Mr Trkulja was currently a church elder of the St Stephen Church in Springvale when he was not.
(2)Bishop Irinej conspired to amend the rules and constitution of the Serbian Orthodox Church (the Church) in Australia-New Zealand to acquire property from the Church members for the benefit of a private company, of which Bishop Irinej was said to have control, when no such scheme existed nor was any property so acquired.
(3)Bishop Irinej banned about 500 members of the Church, including Mr Trkulja, for opposing Bishop Irinej’s conduct of particular (2) when it was only Mr Trkulja whom was banned and this was for the “antichrist and antichurch activities” of Mr Trkulja.
(4)Mr Trkulja is part of a class action for Bishop Irinej to be removed from his position with a list of 510 people as group members when there was no such class action.
M.Mr Trkulja has advertised in various magazines including Cosmopolitan, Cleo, New Idea and Woman’s Day, and various newspaper including Herald Sun, Neos Kosmos and Jewish News as a “Natural Born Psychic” that he was a :
(1)“depression healer” when he is not qualified to treat depression;
(2)“biotherapist” when he is not qualified to perform biotherapy procedures.
Additionally, in defence of the plaintiff’s claims made in respect of each of the matters complained of, the defendant pleads a qualified privilege defence of reply to an attack. Each matter complained of is said to be a reply to an attack made by the plaintiff on the defendant between 22 March and 31 October 2012. The attack is described in the defendant’s defence in the following terms:
Between 22 March and 31 October 2012, Mr Trkulja emailed a number of persons with allegations that Mr Barrow had made defamatory imputations about Mr Trkulja posted to [a web address URL].
The persons to whom it is said the emails were sent are alleged to be Mr George Liberogiannis, Mr Graeme Efron and Mr Christopher Dibb. In the particulars of each of these defences, it is asserted that “further persons [will] be identified after discovery”. It should immediately be noted that Mr Liberogiannis and Mr Dibb have been retained by the plaintiff in the present proceeding and, on occasions, in earlier proceedings; and Mr Efron is a solicitor who has acted for the plaintiff from time to time in other defamation proceedings.
The basis of the present application
In his affidavit in support of the present application,[3] the defendant says it is his intention to call Mr Liberogiannis at the trial of this proceeding to establish the truth (or contextual truth) of imputations (ii) and (iii) pleaded by the plaintiff in respect of the third matter complained of. In essence, the defendant wishes to call Mr Liberogiannis to establish that the subpoenas referred to in particular G of the defendant’s truth defence were not prepared by Mr Liberogiannis’ firm. Further, the defendant wishes to call Mr Liberogiannis to prove that Mr Jensen did not give the evidence referred to in particular J. The defendant asserts that Mr Liberogiannis’ evidence in respect of these matters will help him establish his truth or contextual truth defences that the plaintiff is dishonest and the plaintiff lacks credibility.
[3]Affirmed 17 April 2013.
In addition to these topics, the defendant also wishes to call Mr Liberogiannis in support of his reply to attack defences. In his affidavit in support referred to above, the defendant puts the matters as follows:
It is also my intention to call Mr Liberogiannis as a witness to give evidence that between 22 March and 31 October 2012, Mr Trkulja emailed a number of people, including but not limited to Mr Liberogiannis, with allegations that I had made defamatory imputations about Mr Trkulja with a view to me establishing a qualified privilege defence of reply to attack.
The principles to be applied
The mere fact that one party in litigation might wish to call a solicitor acting for his or her opponent does not mandate that that solicitor should be restrained from continuing to act in the proceeding. From time to time, one side or another might need to (and can without difficulty) call an opponent’s solicitor. Each case needs to be looked at on its merits.
As Hollingworth J noted in Dale v Clayton Utz (No 2),[4] in Kallinicos v Hunt,[5] Brereton J undertook a comprehensive examination of the authorities concerning the court’s jurisdiction to restrain lawyers from acting in particular cases. As her Honour also noted, Brereton J concluded his judgment by helpfully summarising the following relevant principles from the authorities in such cases:
(a)The test to be applied in this inherent jurisdiction is whether a fair-minded, reasonably-informed member of the public would conclude that the proper administration of justice requires that a lawyer should be prevented from acting, in the interests of the protection of the integrity of the judicial process and the due administration of justice, including the appearance of justice.
(b)The jurisdiction is exceptional and is to be exercised with caution.
(c)Due weight should be given to the public interest in a litigant not being deprived of the lawyer of his or her choice without due cause.
(d)The timing of the application may be relevant, in that the cost, inconvenience and impracticality of requiring lawyers to cease to act may provide a reason for refusing to grant relief.[6]
[4][2013] VSC 54, [162].
[5](2005) 64 NSWLR 561.
[6]Ibid, 582-3 (citations omitted).
The resolution of this application
I am far from persuaded at this stage that Mr Liberogiannis or his firm should be restrained from acting for the plaintiff in this proceeding. I will deal first with the proposition that Mr Liberogiannis will be called by the defendant to give relevant evidence in respect of the reply to attack defences.
It may well be that by the time of trial there will not be any reply to attack defence in respect of any of the matters complained of. While there has not been full argument on the viability of these defences, the following problems arguably appear to be associated with the reply to attack defences:
(a)First, when one examines each of the matters complained of, there does not appear to be anything in them that suggests that their contents are a reply to an attack made by the plaintiff on the defendant: it is to be remembered that mere retaliation, which cannot be described as an answer or explanation to an attack, is not protected.[7]
(b)Secondly, in order to avail oneself of the defence of reply to attack, the reply must be proportionate to the attack. In this case, it is difficult to see how any of the matters complained of could be said to be proportional to an attack which consisted of emailing to a barrister and two solicitors allegations that the defendant had made defamatory imputations about the plaintiff.
(c)Thirdly, it is also difficult to see how the matters complained of could be a reply to an attack published to Mr Liberogiannis, Mr Efron and Mr Dibb when the alleged reply was not similarly published by the defendant to those individuals.
(d)Fourthly, on the material, it appears at least arguable that if the matters complained of are truly a reply, they are a reply to a complaint made by the plaintiff in respect of defamatory statements first made on an earlier occasion by the defendant about the plaintiff. If that is indeed the case, then it is difficult to see how the defence of reply to attack would be open to the defendant.[8]
(e)Fifthly, Mr Liberogiannis, Mr Efron and Mr Dibb are all legal practitioners. Mr Liberogiannis and Mr Dibb are acting for the plaintiff in the present proceeding. They have also acted for him in other defamation proceedings. Mr Efron has acted for the plaintiff in defamation proceedings other than the present proceeding. It is very likely that in respect of whatever communications the defendant is able to establish passed between the plaintiff and Mr Liberogiannis, Mr Dibb and Mr Efron, the plaintiff will assert that the same were made on occasions of qualified privilege. In such circumstances, it is difficult to see what, if any, scope there is for the defence of reply to attack in relation to such publications.[9]
[7]Gatley on Libel and Slander, 11th Edition, paragraph 14.48.
[8]See French v Herald &Weekly Times (No 2) (2010) 27 VR 171, 189 [71]-[72].
[9]While it may be that the plaintiff has made some attack on the defendant to other as yet unidentified people, the pursuit of such a defence would not ordinarily lead to the defendant seeking to establish the attack by calling a third party (in this case, the plaintiff’s solicitor) as a witness to any such publication to such other unidentified individuals. In any event, the admissibility of such evidence would be open to be debated depending upon the relevant circumstances of the various publications.
I turn now to the defendant’s foreshadowed evidence in respect of the truth of the imputations that the plaintiff is dishonest and the plaintiff lacks credibility.[10]
[10]Plaintiff’s imputations (ii) and (iii) in respect of the third matter complained of.
The width of the plaintiff’s imputations as to dishonesty and lacking credibility, together with the particulars of truth pleaded by the defendant are a lesson in the care that needs to be taken in pleading defamation cases. A tighter pleading by the plaintiff tying the dishonesty and credibility imputations to the material in the matters complained of would almost certainly have prevented the defendant from pleading what might otherwise be said to be matters extraneous to the material contained in the three matters complained of.
Experience in cases of the present kind (including experience of previous and current cases where both sides have been plaintiffs in different defamation proceedings)[11] suggests that the pleadings in this case are not yet in the form upon which this case will go to trial. If the plaintiff seeks to refine his imputations so as to tie them to the material actually published, it will become less likely that the defendant would be permitted to call Mr Liberogiannis in support of the matters in paragraphs G and J of the particulars of the current truth defence. On the other hand, if the plaintiff makes such an amendment, there is every likelihood that the defendant will seek to amend his defence to plead the plaintiff’s original wider imputations in support of a defence of contextual truth.[12]
[11]Recent cases in respect of the plaintiff, include Trkulja v Google (No 5) [2012] VSC 533, Trkulja v Yahoo! Inc & Anor [2012] VSC 88 and some of the cases referred to in footnote 5 of Trkulja v Google (No 4) [2011] VSC 560. Recent cases in respect of the defendant include Barrow v McLernon & Anor [2012] VSC 134, Barrow v McLernon & Anor (No 2) [2012] VSC 313 and Barrow v Bolt & Anor [2013] VSC 226.
[12]See s 26 of the Defamation Act 2005.
At present, it is too early to tell whether the defendant would be permitted at trial to call Mr Liberogiannis to give evidence about the matters identified in paragraphs G and J of the current truth defence in respect of the third matter complained of. Further, the absence of any evidence of precisely what Mr Liberogiannis could (or would) say in respect of these matters if called by the defendant is also an impediment to making the order sought by the defendant at this stage.[13] Additionally, my impression of the material as it currently stands is that the matters alleged in paragraphs G and J are somewhat peripheral to the real issues in dispute in this proceeding.[14]
[13]While there was some material on this topic in the defendant’s further affidavit affirmed 1 May 2013, it was not such as to provide me with any confidence concerning what Mr Liberogiannis might say (or be permitted to say) in evidence if called by the defendant at trial.
[14]For completeness, I note the overarching obligations requiring the parties to narrow the issues in dispute and to ensure that costs are reasonable and proportionate are set out in ss 23 and 24 of the Civil Procedure Act 2010.
Whether or not the defendant will actually wish to call Mr Liberogiannis at trial and whether or not the defendant will be permitted to do so are questions that cannot be answered at this stage.[15] While it cannot be denied that there is a possibility that the defendant will be permitted to call Mr Liberogiannis to give some evidence at trial, this possibility does not lead me to conclude that Mr Liberogiannis (and/or his firm) should not continue to act for the plaintiff at this stage. As I have said above, it is possible to imagine this trial proceeding satisfactorily, even if the defendant calls the plaintiff’s solicitor as a witness. I see no difficulty with leaving that issue at this stage for the management of the trial judge.
[15]At least so far as particular J is concerned, one might have thought that the evidence of what Mr Jensen did or did not say could be given by producing an affidavit or a transcript (or even calling Mr Jensen) rather than trying to prove what Mr Jensen said by calling Mr Liberogiannis –but I leave that matter for another day.
For these reasons, I am not persuaded that the Court should exercise what the authorities say is the exceptional jurisdiction of the Court to prevent the plaintiff’s solicitor from acting in this proceeding.
Conclusion
The defendant’s application to enjoin the plaintiff’s solicitor and/or his firm from acting in this proceeding will be refused.
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