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

---

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.

---

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…

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 LLC & Anor

Details

AGLC: Trkulja v Google Inc LLC & Anor [2010] VSC 226
Case: [2010] VSC 226
Decision Date: 27 May 2010

CaseChat Overview and Summary

The case of Trkulja v Google Inc LLC & Anor involved a defamation claim brought by the plaintiff against the defendants, Google Inc LLC and another. The plaintiff alleged that the defendants published defamatory material about him on an internet site, leading to reputational harm. The dispute reached the court, which was tasked with determining whether the published material was capable of giving rise to the imputations claimed by the plaintiff in the ordinary and natural sense or as true innuendos. Furthermore, the court had to decide whether the plaintiff should be granted leave to file a further amended statement of claim.

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