Trkulja v Google LLC (Ruling No. 2) - [2019] VSC 309

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

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JUDGE:	John Dixon J
WHERE HELD:	Melbourne
DATE OF HEARING:	22 March 2019
DATE OF JUDGMENT:	7 May 2019
CASE MAY BE CITED AS:	Trkulja v Google LLC (Ruling No. 2)
MEDIUM NEUTRAL CITATION:	[2019] VSC 309

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PLEADINGS – Application to further amend 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 .

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

HIS HONOUR:

In this proceeding, commenced in 2013, the plaintiff applied for leave to file and serve a further amended statement of claim in the form of a second proposed further amended statement of claim dated 27 February 2019 (‘2PFASOC’) circulated between the parties. The application was opposed.

I start with a brief outline of the history of the pleading.

On 20 November 2018, I was satisfied that the plaintiff’s amended statement of claim (‘ASOC’) fell within r 23.02 of the Supreme Court (General Civil Procedure) Rules2015. I struck out the ASOC and gave the plaintiff leave to re-plead his claim by submitting his proposed further amended statement of claim to the solicitors for Google LLC. Directions were given for the plaintiff to apply for leave to amend in the event that Google LLC refused its consent.

The plaintiff served a proposed further amended statement of claim dated 11 December 2018 (‘PFASOC’). Google LLC refused to consent to the amendment and on 31 January 2019, the plaintiff applied for leave to file and serve the PFASOC. On 7 February 2019, I refused that leave with published reasons.[1] I granted the plaintiff the opportunity to serve a second proposed further amended statement of claim on the defendant, with directions that the plaintiff apply for leave to amend in the event that Google LLC refused its consent.
[1]Trkulja v Google LLC [2019] VSC 38.

The plaintiff served his 2PFASOC. Google LLC refused to consent to this further amended pleading and on 22 March 2019, the plaintiff applied for leave to file and serve the 2PFASOC. On that day, I announced that leave would not be granted for the reasons earlier articulated (because the 2PFASOC included passages that I had ruled out on prior occasions). There also was, I noted, elucidating discussion of the issues recorded on the transcripts of the hearings on 20 November 2018 and 31 January 2019. However, I stated that I would publish my reasons as soon as other commitments permitted me to do so. These are those reasons.

To briefly recap,…

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 (Ruling No. 2)

Details

AGLC: Trkulja v Google LLC (Ruling No. 2) [2019] VSC 309
Case: [2019] VSC 309
Decision Date: 7 May 2019

CaseChat Overview and Summary

The plaintiff, Trkulja, brought proceedings against Google LLC in the Supreme Court of New South Wales seeking damages for defamation. The dispute arose from the publication of a blog post by Google, which Trkulja alleged contained defamatory imputations about him. Trkulja sought to further amend his statement of claim to include additional imputations. Google opposed the application on the basis that the proposed pleading did not disclose a cause of action and that it might prejudice, embarrass or delay the fair trial of the proceeding.

The court considered the criteria for allowing further amendments to pleadings under the Supreme Court (General Civil Procedure) Rules 2015. The court noted that a plaintiff is not entitled to amend their pleadings as a matter of course and that the court must consider whether the amendment would prejudice, embarrass or delay the fair trial of the proceeding. The court also noted that the amendment must disclose a cause of action that is not frivolous or vexatious.

The court held that the proposed amendment did not disclose a cause of action in respect of the additional imputations. The court found that the additional imputations did not amount to defamation as they were not capable of lowering the plaintiff in the estimation of right-thinking members of society. The court also found that the proposed amendment might prejudice, embarrass or delay the fair trial of the proceeding as it would require the defendant to defend additional claims that had not been previously raised. However, the court granted the plaintiff an opportunity to further amend his statement of claim to include additional imputations that did disclose a cause of action.

The court refused the application to further amend the statement of claim but granted the plaintiff an opportunity to amend the pleadings to include additional imputations that did disclose a cause of action. The court ordered that the plaintiff file an amended statement of claim within 28 days of the date of the judgment.

Orders