Trkulja v Barrow - [2013] VSC 227

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Trkulja v Barrow

Details

AGLC: Trkulja v Barrow [2013] VSC 227
Case: [2013] VSC 227
Decision Date: 6 May 2013

CaseChat Overview and Summary

In the case of Trkulja v Barrow, the defendant sought to restrain the plaintiff from retaining a solicitor in the proceedings. The dispute arose in the Federal Circuit Court, where the defendant, Barrow, applied to prevent the plaintiff, Trkulja, from continuing to retain their solicitor in the matter. The application was based on the premise that Barrow intended to call the plaintiff's solicitor as a witness, arguing that this would interfere with the solicitor's role as an officer of the court and compromise the integrity of the legal process.

The central legal issues before the court were whether the defendant had a legitimate basis for calling the plaintiff's solicitor as a witness and if such a call would indeed interfere with the solicitor's duties. The court had to consider the principles surrounding the role of a solicitor, the potential for conflict of interest, and whether the application served the interests of justice. The court needed to balance the defendant's right to call witnesses against the potential disruption to the solicitor's professional responsibilities and the overall fairness of the proceedings.

The court found that the application to restrain the plaintiff from retaining their solicitor was not well-founded. It was determined that the defendant's intention to call the plaintiff's solicitor as a witness did not, in itself, justify preventing the plaintiff from retaining legal representation. The court emphasised that the plaintiff's right to legal representation was a fundamental aspect of procedural fairness, and such a right should not be easily curtailed. The application was refused as it did not meet the stringent criteria required to interfere with the plaintiff's right to legal counsel.

Orders