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

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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

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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.

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

HIS HONOUR:

1. 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.

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

1. 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.

1. 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.

1. 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. 

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

1. 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 Plaintiff’s application until after the Court of Appeal delivers its decision…

For the avoidance of doubt, the fact that Google Inc. does not object to the adjournment is without prejudice to Google Inc’s position that:

(a)it has not yet submitted to jurisdiction in S APCI 2015 0124, or its predecessor S CI 2013 06264; and

(b)it may decide whether it will to submit to the jurisdiction of this Honourable Court in S CI 2016 04494 after this Honourable Court decides whether to grant leave to the Plaintiff to commence this proceeding.

1. As matters transpired, by consent the proceeding was adjourned on a number of occasions until after the High Court determined the appeal in proceeding S CI 2013 06264. On 18 July 2017, the summons (proceeding) was dismissed by consent as against Google Australia Pty Ltd with no order as to costs.

1. Following delivery of the High Court’s decision in S CI 2013 06264, that proceeding and the present proceeding were listed for further directions on 14 September 2018.

1. On 11 September 2018, the plaintiff’s solicitor informed the court and the defendants that the plaintiff sought an order that the summons be withdrawn with no order as to costs.

1. On 14 September 2018, the plaintiff applied for that order. The plaintiff understood, and intended, that withdrawing the summons effectively terminated the proceeding. However, the plaintiff asserted the defendant was not entitled to costs as no appearance had been filed. The plaintiff acknowledged that the normal consequence of discontinuing a proceeding is paying the costs of the other side.  However, he argued that in normal circumstances the other side is on the record, unlike in this case.

1. The defendant sought its costs of the proceeding. It submitted there had been no explanation as to why the proceeding had been issued, and no explanation as to why it was being discontinued.  The defendant noted that it was served with the summons, was actively appearing in S CI 2013 06264 on a conditional appearance, and while there had been costs incurred, they were not substantial. 

1. I do not accept the plaintiff’s contention that Google Inc was not entitled to costs because it had not appeared in the proceeding, having regard to the fact of service and the response from the solicitors set out above. The fact that no formal appearance was filed in the proceeding was inconsequential for the costs discretion. The plaintiff made no submission in explanation of the issues raised by the defendant.

1. The costs of the proceeding, and the power to determine by whom and to what extent they are to be paid, are in the discretion of the court.[4] Absent reasons to order otherwise, the usual rule is that costs will follow the event. In the absence of any explanation, I infer from the withdrawal of the summons that the plaintiff has unjustifiably brought the defendant before the court.[5]

   [4]Supreme Court Act 1986 (Vic) s 24.

   [5]Milne v A-G (1956) 95 CLR 460, 477; Vucadinovic v Lombardi [1967] VR 81, 87.

1. There is no reason that costs should not follow the event, and the defendant is entitled to its costs of the proceeding, which can be agreed or taxed in the usual way.