| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
MAJOR TORTS LIST
No. 10096 of 2009
| MILORAD TRKULJA | Plaintiff |
| v | |
| GOOGLE INC LLC | First Defendant |
| GOOGLE AUSTRALIA PTY LTD (ACN 102 417032) | Second Defendant |
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JUDGE: | Kaye J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 May 2010 | |
DATE OF JUDGMENT: | 27 May 2010 | |
CASE MAY BE CITED AS: | Trkulja v Google Inc LLC & Anor | |
MEDIUM NEUTRAL CITATION: | [2010] VSC 226 | |
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DEFAMATION – Pleading – Publication on Internet site – Whether material published capable of giving rise to imputations pleaded by plaintiff in ordinary and natural sense or as “true” innuendos – Whether leave should be given to file further amended statement of claim.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P Cawthorn SC | Gibsons Solicitors Pty Ltd |
| For the Defendants | Mr A Strahan | Baker & McKenzie |
HIS HONOUR:
In this proceeding, the plaintiff, Milorad Trkulja, claims damages for defamation in respect of the publication by the defendants, on a website maintained by them on the internet, of material of and concerning the plaintiff. On 12 February 2010, I gave leave to the plaintiff to file and serve an amended statement of claim. The defendants, by summons, seek orders that paragraphs 16 and 17 of the amended statement of claim, delivered on 3 May 2010, be struck out pursuant to rule 23.02 of the Rules of the Supreme Court.
In paragraph 1 of the amended statement of claim, it is pleaded that the plaintiff is “known also as Michael Trkulja”. The material, about which the plaintiff makes complaint, was contained in a photographic image searching service known as “Google Image”, by which the defendants published pictures and captions on its website. The relevant parts of the material are contained in two hard copy pages of annexures to the statement of claim. The first page contains a number of photographs. On the top line there are five photographs of different persons, beneath which appears the name “Michael Trkulja”. The second photograph is a depiction of the plaintiff himself. The fourth photograph is a depiction of “BF”[1] who, it is pleaded, is an alleged murderer and drug trafficker. The fifth photograph is a depiction of Mr Dennis Tanner, who, it is pleaded, is a policeman who allegedly murdered his sister in law, Jennifer Tanner. Underneath the photographs of the plaintiff, BF and Tanner, is printed the word “Melbourne crime”. The second page contains three rows of photographs. The plaintiff’s photograph is on the first row, and adjacent to it are the same photographs of BF and Tanner.
[1]The identity of “BF” is the subject of suppression orders of the Court, and accordingly the pseudonym “BF” has been substituted for his name in this judgment.
In paragraph 6 of the amended statement of claim, the plaintiff pleads that the publication conveys the following imputations in its ordinary and natural meaning (“false innuendos”):
(a)that he is a murderer;
(b)that he is a drug trafficker;
(c)that he is…
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- AGLC
- Trkulja v Google Inc LLC & Anor [2010] VSC 226
- Case
- [2010] VSC 226
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the material published by the defendants could be interpreted as defamatory under the ordinary and natural sense or as true innuendos. The court needed to assess the content of the published material and its potential impact on the plaintiff's reputation. Additionally, the court had to consider whether the plaintiff's proposed amendments to the statement of claim were necessary and appropriate to adequately address the allegations and the evidence presented.
In reaching its decision, the court carefully examined the content of the published material and the nature of the imputations alleged by the plaintiff. The court found that the material could be interpreted in the ordinary and natural sense to convey the defamatory imputations claimed. The court also considered the concept of true innuendos but determined that the material did not require such an interpretation to convey the defamatory meaning. Regarding the application for leave to amend the statement of claim, the court held that the proposed amendments were not necessary to address the defamation claims, as the existing statement of claim sufficiently set out the allegations and the evidence. The court, therefore, denied the plaintiff leave to file a further amended statement of claim.
The court's final orders were to dismiss the plaintiff's application for leave to file a further amended statement of claim. The court found that the published material was capable of conveying the defamatory imputations in the ordinary and natural sense and that the proposed amendments were not necessary to adequately address the defamation claims. The court's decision highlighted the importance of carefully considering the nature of the published material and the potential defamatory meanings it could convey.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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