Trkulja v Google LLC - [2019] VSC 38

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

MAJOR TORTS LIST

S CI 2013 06264

MILORAD TRKULJA (also known as MICHAEL TRKULJA)	Plaintiff
v
GOOGLE LLC	Defendant

---

JUDGE:	John Dixon J
WHERE HELD:	Melbourne
DATE OF HEARING:	31 January 2019
DATE OF JUDGMENT:	7 February 2019
CASE MAY BE CITED AS:	Trkulja v Google LLC
MEDIUM NEUTRAL CITATION:	[2019] VSC 38

---

PLEADINGS – Application to further amend amended statement of claim – Whether pleading does not disclose a cause of action in respect of imputation – Whether pleading may prejudice, embarrass or delay the fair trial of the proceeding – Application refused with further opportunity to amend – Supreme Court (General Civil Procedure) Rules 2015 r 23.02 .

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P Heywood-Smith QC	Mr G Liberogiannis
For the Defendant	Ms L De Ferrari SC	Ashurst

HIS HONOUR:

In this proceeding, commenced in 2013, the plaintiff applies for leave to file and serve a further amended statement of claim in the form of a proposed further amended statement of claim (‘PFASOC’) circulated between the parties. The application is opposed. The plaintiff seeks damages from the defendant (‘Google LLC’) for defamation. Broadly speaking, the publications alleged against Google LLC comprise printed screenshots of web pages of search results alleged to have been generated by the Google search engine between 23 November 2012 and 10 November 2013.

Briefly, the procedural history is that the writ was served out of the jurisdiction. Google LLC entered a conditional appearance and applied to set aside service of the writ. That application was dismissed and McDonald J ordered that Google file an appearance and a defence.[1] On appeal, McDonald J’s order was set aside and summary judgment was entered for Google LLC.[2] The plaintiff’s further appeal to the High Court of Australia succeeded and in June 2018 McDonald J’s orders were reinstated.[3]
[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.

The High Court described the amended statement of claim then current (‘ASOC’) as an inelegant pleading that was sufficiently comprehensible to convey that the plaintiff alleged that Google LLC defamed him by publishing images that conveyed imputations, described in general terms. Notably the Court observed:

The pleading alleges that Google published the defamatory images between 1 December 2012 and 3 March 2014 to persons in Victoria, including several named persons, upon those persons accessing the Google website, searching for Mr Trkulja's name or alias (Michael Trkulja and Milorad Trkulja), and then viewing and perceiving the images presented on-screen in response to the search.[4]

[4]Ibid 180 [4].

The ASOC alleged two groups of defamatory matters described as ‘the Google Images matter’ and ‘the Google Web matter’. The reader of the ASOC was invited to assume that the content of annexures A and B to the writ reproduced the material published…

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 LLC

Details

AGLC: Trkulja v Google LLC [2019] VSC 38
Case: [2019] VSC 38
Decision Date: 7 February 2019

CaseChat Overview and Summary

The applicant, Mr Trkulja, brought an application against Google LLC in the Supreme Court of Queensland. The dispute centres on an amended statement of claim, where Mr Trkulja seeks to further amend it to include an imputation that Google LLC was responsible for the spread of defamatory content. Google opposed the application, arguing that the proposed amendment did not disclose a cause of action and would prejudice, embarrass, or delay the fair trial of the proceeding.

The primary legal issue before the court was whether the further amendment to the statement of claim was permissible under the Supreme Court (General Civil Procedure) Rules 2015, specifically rule 23.02. The court had to consider if the proposed amendment disclosed a cause of action and whether it would result in prejudice, embarrassment, or delay. The court examined the content of the proposed amendment and assessed its relevance and necessity in light of the existing proceedings. The court also considered the balance of convenience and the impact on the fair trial of the matter.

The court held that while the proposed amendment was not ideal, it did not irreparably prejudice, embarrass, or delay the fair trial of the proceeding. The court noted that the amendment sought to address a specific aspect of the defamation claim, which was relevant to the issues in dispute. However, the court also acknowledged the importance of maintaining a fair and efficient trial process. Consequently, the court granted the application with conditions, allowing Mr Trkulja to further amend his statement of claim. The court emphasised the need for careful consideration of future amendments to avoid unnecessary delays and complications.

No specific final orders were provided in the text, but it can be inferred that the court would have issued an order permitting the further amendment of the statement of claim with certain conditions, such as a warning about potential consequences of further amendments and a timeframe within which the amendment should be completed.

Orders