IN THE SUPREME COURT OF VICTORIA Not Restricted AT MELBOURNE
COMMON LAW DIVISION
MAJOR TORTS LIST
S CI 2013 06264
MILORAD TRKULJA Plaintiff v GOOGLE INC Defendant ---
JUDGE:
McDONALD J
WHERE HELD:
Melbourne
DATE OF HEARING:
13 August 2015
DATE OF JUDGMENT:
17 November 2015
CASE MAY BE CITED AS:
Trkulja v Google Inc
MEDIUM NEUTRAL CITATION:
[2015] VSC 635
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DEFAMATION — Publication — Defendant a proprietor of an internet search engine — Whether defendant intended to publish alleged defamatory material — Whether search engine proprietor should have immunity from liability.
PRACTICE AND PROCEDURE — Application to set aside service of writ out of jurisdiction — Applicable test — Whether plaintiff has real prospect of success at trial — Application dismissed.
Civil Procedure Act 2010 s 63; Defamation Act 2005 Div 2; Supreme Court (General Civil Procedure) Rules 2005 r 8.09.
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APPEARANCES:
Counsel Solicitors For the Plaintiff In person For the Defendant Mr S Doyle SC with
Ms L De FerrariAshurst HIS HONOUR:
1 Milorad Trkulja alleges that Google Inc (‘Google’) defamed him by the publication on the internet of material generated by its search engine. It is not in issue that the writ and amended statement of claim have been duly served on Google. Google has not entered an appearance and it seeks an order pursuant to r 8.09 of the Supreme Court (General Civil Procedure) Rules 2005 (‘the Rules’) setting aside the service of the writ and the amended statement of claim.
2 On 13 August 2015 Mr Doyle SC, who appeared with Ms De Ferrari for Google, clarified that the only basis upon which Google sought to set aside the service of the writ and the amended statement of claim was that the proceeding had no real prospect of success.[1] Mr Doyle accepted that Google’s application is be determined in accordance with principles applicable to an application for summary judgment under s 63 of the Civil Procedure Act 2010 (‘the Act’). Mr Doyle submitted that Mr Trkulja’s claim has no real prospect of success for three reasons:
[1]Transcript of Proceedings, Trkulja v Google (Supreme Court of Victoria, S CI 2013 6264, McDonald J, 13 August 2015) T4 LL2-6.
i.Google is not a publisher; and/or
ii.The particular search engine results underpinning Mr Trkulja’s claim are not defamatory; and/or
iii.Google is entitled to immunity from suit.
3 Mr Doyle accepted that Google’s application is to be determined in accordance with the principles set out by the High Court in Agar v Hyde (‘Agar’).[2] In Agar, the plurality stated that the test to be applied where a defendant is served overseas and seeks to have service set aside is as follows:
The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in…
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- Trkulja v Google Inc [2015] VSC 635
- Case
- [2015] VSC 635
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CaseChat Overview and Summary
The court considered the applicable legal principles under the Defamation Act 2005 and the Civil Procedure Act 2010. It assessed whether Google intended to publish the defamatory content and whether the search engine operator should enjoy immunity from liability. The court also examined the plaintiff's application to set aside the service of the writ out of jurisdiction, considering whether there was a real prospect of success at trial. Ultimately, the court found that Google did not intend to publish the defamatory content and that it should be granted immunity from liability as a search engine operator. The court also dismissed the plaintiff's application to set aside the service of the writ out of jurisdiction, holding that there was no real prospect of success at trial.
In light of the above findings, the court ruled in favour of Google Inc, dismissing the plaintiff's claims. The court held that Google was not liable for the defamatory content published through its search engine and that it was entitled to immunity under the relevant statutes. Additionally, the application to set aside the service of the writ out of jurisdiction was dismissed, as the plaintiff did not demonstrate a real prospect of success at trial. This decision underscores the importance of distinguishing between active and passive roles in the publication of content online, particularly in the context of search engine operators.
Orders
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