JUDGE:	GARDE J
WHERE HELD:	Melbourne
DATE OF HEARING:	24 May 2016
DATE OF JUDGMENT:	25 July 2016
CASE MAY BE CITED AS:	Trkulja v Dobrijevic
MEDIUM NEUTRAL CITATION:	[2016] VSC 421

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DEFAMATION – Pleading – Republication on overseas website – Whether natural and probable consequence of original publication – Fourth amended statement of claim struck out.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	P. Heywood-Smith QC	George Liberogiannis & Associates
For the Defendant	D. Bracken	Marsh & Maher

HIS HONOUR:

Introduction

By a writ filed on 16 April 2014, the plaintiff claims damages including aggravated damages from the defendant for defamation (‘the current proceeding’).[1]
[1]The facts as published in this judgment are the facts as they appear from the fourth amended statement of claim, and may be denied or disputed at trial.

The defendant applies by summons[2] to have the fourth amended statement of claim[3] struck out on the basis that it does not disclose a cause of action. The summons also seeks other relief which it is not necessary to consider at this time.
[2]Dated 22 April 2016.
[3]Dated 4 April 2016.

The defendant is the Bishop (‘the Bishop’) of the Diocese of Australia and New Zealand (‘the Diocese’) of the Serbian Orthodox Church (‘the Church’). On 8 February 2011, the Bishop signed a ruling concerning the plaintiff (‘the ruling’). When translated from Serbian to English, the ruling says:

Based on the evidence of so far antichrist and antichurch activities of Milorad Trkulja, a self-proclaimed “conjurer”, who advertises himself in the Croatian press as a “natural healer” who “removes bad luck, black magic, evil eyes, voodoo, and other curses..”(…) “expert for sex and interpersonal relationships…”, and who obviously does not profess the Orthodox religion and our Lord Jesus Christ in accordance with the decisions First and Second Universal Council of the Orthodox Church; as a man who is known to the Orthodox Serbian Church from before as the owner and editor of the antichurch website “Smotra”, and as a person who recently announced an indictment against SPC (Serbian Orthodox Church) and HG (His Grace), Bishop Irinej, but also an application for membership in one of our subordinate CSC (Church-School Council), The Ruling Committee of the Australian-New Zealand Diocese and Diocese Council of the Australia-New Zealand Diocese, Novogracanicka Metropolitante, has found necessary to, on the presidential suggestion, by consensus issue the following
DECISION:
Milorad Trkulja is banned for life a membership in all bodies of the Australia-New Zealand Diocese and Diocese for Australia and New Zealand, Novogracanicka Metropolitante.
All Church-School Councils, missionary regions and our subordinate Dioceses to be informed of this Decision in writing.[4]

[4]Annexure A to the Plaintiff’s Proposed Further Amended Statement of Claim dated 4 April 2016.

The ruling is signed by the Bishop as President of the Diocesan Ruling Committee and sealed with…

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 Dobrijevic

Details

AGLC: Trkulja v Dobrijevic [2016] VSC 421
Case: [2016] VSC 421
Decision Date: 25 July 2016

CaseChat Overview and Summary

Trkulja v Dobrijevic involved a defamation claim against Dobrijevic, who republished a defamatory statement originally made by a third party. The case was heard in the Supreme Court of Victoria. The primary issue before the court was whether the republishing of the defamatory statement on an overseas website constituted republication, and if so, whether it was a natural and probable consequence of the original publication. The court also had to consider whether the fourth amended statement of claim was appropriate and if it should be struck out.

The court examined the relationship between the original publication and the republishing to determine if the latter was a natural and probable consequence of the former. It was noted that the republishing occurred outside Australia, raising questions about the jurisdictional reach of Australian defamation laws. The court scrutinised the pleadings to assess whether the amended statement of claim sufficiently addressed these issues. Ultimately, the court concluded that the republishing was not a natural and probable consequence of the original publication, and that the fourth amended statement of claim did not adequately address the jurisdictional concerns.

The court found that the fourth amended statement of claim was deficient and struck it out. The reasoning focused on the lack of a direct causal link between the original publication and the overseas republishing, as well as the jurisdictional implications of applying Australian defamation laws to an overseas act. The court held that the plaintiff needed to provide a more robust argument to establish the republication as a natural and probable consequence. Consequently, the court ordered that the fourth amended statement of claim be struck out and directed the parties to further refine their pleadings.

Orders