JUDGE:	BEACH J
WHERE HELD:	Melbourne
DATE OF HEARING:	28 October 2010
DATE OF JUDGMENT:	3 November 2010
CASE MAY BE CITED AS:	Trkulja v Google (No. 2)
MEDIUM NEUTRAL CITATION:	[2010] VSC 490

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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 imputations impermissibly vague and/or imprecise – Whether imputations defamatory.

PRACTICE AND PROCEDURE – Pleading material facts – Particulars of publication - Whether pleading embarrassing – Necessity for identifying words complained of in impugned publication.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R. Lancaster SC	George Liberogiannis & Associates
For the Defendants	Mr A.T. Strahan	Baker & McKenzie

HIS HONOUR:

Introduction

In this proceeding, the plaintiff, Milorad Trkulja, claims damages for defamation in respect of publications which he describes as “the Google Images matter” and “the Google Web matter”. The plaintiff alleges that, during 2009, the Google Images matter and the Google Web matter were each published on the internet by the defendants, Google Inc and Google Australia Pty Ltd.

Some of the procedural history of this matter is set out in the judgment of Kaye J in Trkulja v Google Inc LLC & Anor.[1] For present purposes, it is sufficient to say that over the last year, the plaintiff has experienced some difficulty in pleading causes of action against the defendants. The current version of the plaintiff’s statement of claim is the further amended statement of claim filed pursuant to the order of Kaye J made on 27 May 2010. This document (which I will refer to as “the statement of claim”) is the plaintiff’s fourth attempt to plead his causes of action.[2]
[1][2010] VSC 226.
[2]Trkulja v Google Inc LLC & Anor [2010] VSC 226, [27].

By summons filed 5 August 2010, the defendants sought:

(a)summary judgment for the second defendant (Google Australia), pursuant to rule 23.03;[3]
(b)an order that paragraphs 3, 4 and 5 of the statement of claim be struck out, pursuant to rule 23.02; and
(c)an order that paragraphs 6, 7, 9 and 10 of the statement of claim be struck out, pursuant to rule 23.02.

[3]Of the Supreme Court (General Civil Procedure) Rules 2005.

However, on the return of the summons, the application for summary judgment on behalf of the second defendant was abandoned. Instead, the emphasis in the argument turned to whether the allegation of publication (specifically against Google Australia) was sufficiently pleaded – or whether the plea in this regard was embarrassing.

The statement of claim

Before dealing with the defendants’ applications, it is necessary to describe the statement of claim in some detail. The first defendant (Google Inc) is a company incorporated in 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 (No 2)

Details

AGLC: Trkulja v Google Inc (No 2) [2010] VSC 490
Case: [2010] VSC 490
Decision Date: 3 November 2010

CaseChat Overview and Summary

The case of Trkulja v Google Inc (No 2) involved the plaintiff, Trkulja, suing Google Inc for defamation over content published on its YouTube platform. The court had to determine whether the content published by Google could reasonably be interpreted as defamatory in the ordinary and natural sense, or as a "true" innuendo. Further, the court considered if the imputations raised by Trkulja were vague or imprecise, and whether they were defamatory. The plaintiff sought particulars of the publication, emphasising the need to identify the specific words complained of in the impugned publication.

The legal issues before the court included whether the defamatory material was adequately pleaded and if the particulars of the publication were embarrassing. The court was tasked with determining the necessity for identifying the words complained of in the impugned publication. The central concern was whether the plaintiff had sufficiently identified the defamatory content to enable a fair response from the defendant.

The court found that the plaintiff had not adequately pleaded the defamatory material, resulting in the embarrassing particulars of publication. The court held that the imputations were not vague or imprecise, and that they could be defamatory. It was concluded that the plaintiff had not identified the words complained of in the impugned publication with the necessary precision, which was essential for a defamation claim. Consequently, the court dismissed the plaintiff's claim.

The court ordered that the plaintiff take no further steps in the proceeding without first obtaining leave from the court. This ruling underscores the importance of precise pleading in defamation cases, particularly when the alleged defamatory content is published on an internet platform.

Orders