Trkulja v Google Inc (Costs ruling) - [2018] VSC 610

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

MAJOR TORTS LIST

S CI 2016 4494

MILORAD TRKULJA	Plaintiff
v
GOOGLE INC	Defendant

---

JUDGE:	JOHN DIXON J
WHERE HELD:	Melbourne
DATE OF HEARING:	14 September 2018
DATE OF RULING:	14 September 2018, reasons provided 15 October 2018
CASE MAY BE CITED AS:	Trkulja v Google Inc (Costs ruling)
MEDIUM NEUTRAL CITATION:	[2018] VSC 610

---

COSTS – Where proceeding irregularly commenced by summons – Where withdrawal of summons effectively terminates proceeding – No explanation for commencement of proceeding or withdrawal of summons – Defendant out of the jurisdiction and reserved its rights to appear - Defendant entitled to costs – Defamation Act 2005 (Vic) s 23 – Supreme Court Act 1986 (Vic) s 24.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	In person
For the Defendant	Ms L De Ferrari SC	Ashurst

HIS HONOUR:

On 14 September 2018, I made orders:

(a) dismissing this proceeding without adjudication on the merits; and

(b) that the plaintiff pay the costs of the defendant.

On 12 October 2018, the plaintiff requested written reasons for the costs order. These are those reasons.

By a proceeding commenced by writ and numbered S CI 2013 06264, the plaintiff alleged that Google Inc defamed him by the publication on the internet of material generated by its search engine. The writ and statement of claim was duly served out of the jurisdiction but Google Inc did not enter an appearance and sought an order setting aside the service of the writ.

The court refused that relief on 17 November 2015.[1] The Court of Appeal upheld Google’s appeal on 20 December 2016.[2] On 13 June 2018, the plaintiff successfully appealed to the High Court of Australia.[3] Consequently, service of the writ in this proceeding against Google is valid, and it has now entered an appearance in the proceeding. Directions have been given for the filing of a defence to an amended statement of claim.
[1]Trkulja v Google Inc [2015] VSC 635.
[2]Google Inc v Trkulja(2016) 342 ALR 504.
[3]Trkulja v Google LLC (2018) 356 ALR 178.

This proceeding was irregularly commenced by summons filed on 3 November 2016 by which the plaintiff sought leave of the court ‘for the further proceeding in relation to Defamatory image Publication published by the Defendant’s of the same defamatory matter’ (sic). The defendant also sought unconditional permanent injunctions in certain terms. Originally, the named defendants were Google Inc and Google Australia Pty Ltd.

The application was made pursuant to s 23 of the Defamation Act 2005 (Vic).

Each of the named defendants was served with the summons, but Google Inc did not submit to the jurisdiction in this proceeding. By letter dated 15 December 2016 to the Registrar, its solicitors made clear its position.

We have been asked by Google Inc. to communicate to this Honourable Court that Google Inc. does not object to an adjournment of the hearing of the…

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 Google Inc (Costs ruling)

Details

AGLC: Trkulja v Google Inc (Costs ruling) [2018] VSC 610
Case: [2018] VSC 610
Decision Date: 14 September 2018, reasons provided 15 October 2018

CaseChat Overview and Summary

Trkulja v Google Inc was a case before the Supreme Court of Victoria concerning a dispute over costs. The plaintiff, Mr. Trkulja, sought to commence a defamation action against Google Inc via summons, but later withdrew the summons. Google Inc, the defendant, had not entered an appearance in the proceeding due to being out of the jurisdiction and had reserved its rights to appear. The plaintiff sought an order for costs from the defendant.

The central legal issues before the court were whether the defendant was liable for costs due to the irregular commencement of the proceeding by summons and the subsequent withdrawal of the summons. Additionally, the court had to consider whether the defendant's reservation of rights to appear and the absence of any explanation for the withdrawal of the summons influenced the outcome.

The court ruled that the defendant was entitled to costs as the proceeding was irregularly commenced by summons, and the withdrawal effectively terminated it. The plaintiff did not provide any explanation for the irregular commencement or the withdrawal of the summons. Moreover, the defendant had reserved its rights to appear and was out of the jurisdiction, which further supported the defendant's entitlement to costs. The court applied the provisions of the Defamation Act 2005 (Vic) and the Supreme Court Act 1986 (Vic) to reach its decision.

The final orders of the court were that Google Inc was entitled to costs of the proceeding, and the plaintiff was to pay those costs within 14 days. The court did not order any further action from the parties concerning the defamation claim.

Orders