Trkulja v Google LLC (Ruling No. 2)
[2019] VSC 309
•7 May 2019
| 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, the plaintiff seeks damages from Google LLC for defamation. Broadly speaking, the publications alleged against Google LLC comprised web pages of search results alleged to have been generated by the Google search engine between varying dates starting in about December 2012 and extending to March 2014. These were represented by printed screenshots.
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 LLC file an appearance and a defence.[2] On appeal, McDonald J’s order was set aside and summary judgment was entered for Google LLC.[3] The plaintiff’s appeal to the High Court of Australia succeeded and in June 2018 McDonald J’s orders were reinstated.[4]
[2]Trkulja v Google Inc [2015] VSC 635.
[3]Google Inc v Trkulja (2016) 342 ALR 504.
[4]Trkulja v Google LLC (2018) 356 ALR 178.
The High Court described the 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.[5]
[5]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 on any particular occasion. The High Court noted that, although the pleading was imprecise, the annexures identified the particular search terms that resulted in the display of the results. The search terms so identified were not Mr Trkulja's name or alias (Michael Trkulja and Milorad Trkulja).
The Court of Appeal had approached the appeal grounds on the basis that the plaintiff alleged a single composite publication in which all of the search results comprised in the Google Images matter formed the basis for a single composite claim.
The High Court rejected this approach stating:
As appears from the Amended Statement of Claim, that is not the way in which the case is pleaded. The Amended Statement of Claim conveys that each search and the result which appeared in response to it are to be considered together but separately from each other separate search and response, for the reason that each search may have been conducted by a different person without engaging in any of the other searches. That accords with the view expressed by Callinan J in Dow Jones & Co Inc v Gutnick that each hit on a website is a separate publication. Before this Court, counsel for Mr Trkulja did not seek to make anything of the point. He appeared to accept that it was open to aggregate all of the search results in Annexure A and all of the search results in Annexure B, although not A and B, but, if the matter goes to trial, the difference could prove significant.[6]
[6]Ibid 186 [34] (citations omitted).
However, for its purposes, the High Court was satisfied that at least some of the search results had the capacity to convey one or more of the defamatory imputations alleged, a conclusion unaffected by whether or not the search results were viewed individually or as a composite publication.
While that conclusion enabled the High Court to deal with the issues raised on the appeal (whether there was a tenable cause of action), the Court made clear that it was not dealing with the issues raised by r 23.02. When the proceeding was remitted, the plaintiff sought to further amend his statement of claim, which resulted in the orders made on 20 November 2018. The subsequent applications have been concerned with that question — does the pleading disclose a cause of action or may the pleading prejudice, embarrass or delay the fair trial of the proceeding.
Google LLC’s objections to the 2PFASOC fell into four categories. First, the matter in which the plaintiff proposes to plead publication will prejudice, embarrass or delay the fair trial of the proceeding. The plaintiff has changed the manner of pleading publication from the PFASOC. Secondly, the publications alleged are incapable of conveying the particular imputation specified in paragraphs 9(f) and 10(f) of the 2PFASOC. These sub-paragraphs repeat paragraphs 8(f) and 9(f) respectively of the PFASOC. I refused leave for the pleading to make these allegations on 7 February 2019. Thirdly, the particular manner in which the plaintiff alleged that Google LLC was put on notice by the plaintiff of its publication of defamatory matter is untenable. These allegations, by paragraphs 11 – 16 of the 2PFASOC, repeat, without material modification, paragraphs 10 – 15 of the PFASOC. Again, I refused leave for the pleading to make these allegations on 7 February 2019. In respect of the second and third objections, the 2PFASOC does not respond to my reasoning and remains objectionable in the same or similar ways. The fourth category concerned the pleading of the damages claim.
As to the second and third categories, the basis on which the objection to the form of paragraphs 8(f), 9(f) and 10 – 15 of the PFASOC, which are repeated in the 2PFASOC, have been stated in my earlier ruling. I need not repeat myself.[7]
[7]Trkulja v Google LLC [2019] VSC 38 [28]–[35].
Publication
I am satisfied that the manner in which the plaintiff has pleaded publication is unnecessarily confusing and imprecise. I am satisfied that permitting the proceeding to go to trial on this pleading may prejudice, embarrass or delay the fair trial of the proceeding. That is particularly so because two matters are clear from prior interlocutory applications in the proceedings. Expert evidence about the design, function and processes of the Google search engine is likely to be called that will need to be confined and focussed by precisely pleaded allegations. Whether Google published any defamatory matter will also be in contest. As I will presently explain, the internal structure of the pleading in the way that it seeks to relate publication to the allegations of both false and true innuendo is also confused and imprecise and likely to prejudice, embarrass or delay the fair trial of the proceeding.
The root source of confusion in the allegations the plaintiff makes is in his failure to distinctly allege how he contends the defendant’s search engine operated on any particular date in response to any particular search terms before identifying the specific circumstances of publication on which the claim is to be based.
Accordingly I will not grant leave for the plaintiff to proceed to amend the pleading to include paragraphs 4 – 8 inclusive in their present form.
In its previous form paragraph 4 was an allegation of publication by the defendant of defamatory images constituted by search results. The following features of paragraph 4 as it currently stands caused the pleading to attract r 23.02.
The date range for publication is alleged as ‘from on or about 1 December 2012 to 3 March 2014 and to the date hereof’ (27 February 2019). This confusingly expressed date range varies from the allegations made in prior iterations of the statement of claim. The plaintiff provides no explanation for the date range presently proposed. There is some resemblance between the first part of the date range and the particulars that are provided but there are no particulars of publications after 3 March 2014. The date range is not capable of being rationally understood because the central allegation is that the defamatory matter is published consequent upon a search using the Google search engine.
As I will presently explain, a search using the Google search engine is a central material allegation of fact in this claim that needs to be pleaded and particularised.
The paragraph alleges that the defendant ‘published defamatory images’. Pausing there, if that was all that the paragraph alleged it might comply with r 13.01(2), however there are a number of further allegations rolled into the paragraph. That alone is sufficient reason to refuse leave. The rolled up and incomplete nature of the allegations that the plaintiff makes will produce nothing more than general denials from Google LLC. The issues that need to be addressed by experts and resolved by the court at trial will remain obscured. That is the essence of the defendant’s complaints about this pleading.
This paragraph also does some work in alleging how the Google search engine works. Allegations are made of downloads, by the conduct of searches, that resulted in the 20 pages of search results (that are annexed to the statement of claim and described in this paragraph as ‘the Google Images’) being viewed, but each search has not been pleaded as a separate material fact.
Greater specificity of the material allegations about the operation of the Google search engine is necessary in order to properly address both technical issues that are likely to be the subject of expert evidence and legal issues. For that reason, the manner of its operation and the fact of publication must be pleaded separately as material facts and not rolled up.
It is important to respect the distinction between a traditional publication, for example, an article in a daily newspaper, with publication through a Google images search. While the former involves the conduct of a series of players from the journalist through editors, printers, publishers and distributors, a final product is produced that retains a constant form. With a Google images search, what is published on the occasion of each search is a unique collection of digital images appearing on a computer screen. Although they may be transformed into a printed image, and that image viewed by others who thereby become exposed to any defamatory imputation conveyed by those images, that is not alleged in this case. The plaintiff alleges publication of the Google Images by operation of the search engine and that they convey and continue to convey defamatory imputations by reason of a search conducted by a person who has accessed the Google search engine.
Notwithstanding the uncertainty that has been identified about whether the Google Images are comprised of multiple single publications or a composite publication, the pleading fails to provide appropriate clarity. The plaintiff submitted that the issues would become clearer once a defence was filed. I disagree. The plaintiff must identify the separate acts of publication on which this claim is based.
The twenty pages of search results are firstly described in the particulars of publication that are given to paragraph 4 and are represented in documents purporting to be extracts from or reproductions of what appeared on an unidentified web browser. The crux of the plaintiff’s allegation would appear to be that on a nominated date an images search using the Google search engine and a nominated search term generated a web page of thumbnail images that included one or more images of the plaintiff and other images. There is no explicit allegation in those terms. The particulars incorrectly describe the title of the webpage by reference to what appears to be the search terms, although the search terms entered on any particular occasion by any particular user have not been alleged. The title of the webpage is its URL, which is a better descriptor. In argument, it emerged that what had previously been assumed, namely that the words appearing in a box immediately to the left of the search button were the relevant search terms that produced the represented images, was not necessarily the case being put by the plaintiff. Not all pages in annexure A show the search box. The plaintiff has chosen in paragraph 4 of the pleading to suggest the search terms were ‘the plaintiff’s names “Millorad Trkulja and Michael Trkulja” or search terms such as “Melbourne underworld” or “Melbourne criminal underworld”, or variants thereof or accessing autocomplete options, or, having taking the cue from the autocomplete searching the indicated search term on each of the results’.
This allegation is not fully consistent with the particulars of publication nor does it identify with sufficient particularity the material allegation that is being put. The plaintiff must allege the date and search term used, for each publication said to carry defamatory imputations and describe the relationship between the search results and what is included in the annexure. Only one page of the annexure appears to involve an autocomplete allegation and the use of the plaintiff’s names but it is not an ‘image search result page’. As with many of the pages of the annexure, critical details are cut off in the reproduction process.
The description in the particulars does not always correlate with the relevant page of the annexure or reveal the circumstances of its creation. Material facts relevant to understanding the options generated by the autocomplete have not been alleged.
It is not always clear what part of the webpage of search results generated by a particular search are represented by a page of the annexure. For example, page 4, which would appear to be a search using the search terms ‘Melbourne Criminal Underworld Photos’ produced about 74,200 results, while the page reproduced in the annexure shows 34 thumbnail images. The material in the annexure is but a selection, meaning that what is presented has been edited. This is embarrassing for the defendant and will not be permitted.
Paragraph 4 concludes by alleging publication by individual download in the sense identified in Dow Jones & Co Inc v Gutnick.[8]
[8](2002) 210 CLR 575 (‘Gutnick’).
It is unnecessary to document all of the discrepancies that appear from the material allegations of fact contained in the pleading, the particulars that have been provided, and the documents that form annexure A. What I have referred to is sufficient to demonstrate that from the perspective of both the defendant and the court, the allegations are embarrassing in the sense identified by the rule.
Next, paragraph 5 of the pleading again alleges publication in the sense identified in Gutnick. It alleges that individual persons conducted searches by accessing the Google site and entering a search term. What search term was used, and when, by any individual is not identified. It may be noted that there is no allegation of publication here on any date other than dates identified from the pages in annexure A. That said, although the words of paragraph 4 are substantially replicated in paragraph 5, and although the particulars to paragraph 5 state ‘the named persons each viewed one or more of the 20 results such that all 20 results were downloaded by at least one of the named persons’, some particulars with greater, although inadequate, detail were given under paragraph 4. That different particulars are given under paragraph 4 under the heading ‘particulars of publication to the named person’ of the same allegation as is made in paragraph 5 creates embarrassment for the defendant in responding to paragraph 5. Insufficient attention was paid to rr 13.01 and 13.02.
Next, in paragraph 6, it is alleged that the ‘20 results or one or more of them’ were also published worldwide. Several observations can be made about this paragraph. First, when challenged about it in respect of an earlier pleading the plaintiff stated that that particular allegation is relevant only to the question of damages. It was pointed out to the plaintiff that its location within the pleading was liable to create confusion on that point and that it ought to be relocated in the pleading with the allegations in relation to damages. Its positioning is unchanged.
However, it would not be appropriate for it to be re-positioned in its present form because the notion of publication that it alleges is nonsensical. Assuming the reference to 20 results is a reference to the 20 pages of annexure A, such results can only be published if an internet browser conducts 20 searches. It is entirely unclear what might be the material facts in issue in relation to worldwide publication. As a minimum, it would be necessary to identify the date and place of the search and the search term used.
In paragraph 7 of the pleading, the plaintiff invites the court to infer ‘from the public interest in stories appertaining to the Melbourne criminal underworld, and Melbourne crime amongst large sections of the population’ that the Google Images were further published to a substantial but unidentified number of persons, at least to some extent sufficient to convey the defamatory imputations. It is alleged that such persons would search by reference to the plaintiff’s name, autocomplete options identified from a search commencing with the plaintiff’s name or by use of the search terms to be implied from the material that forms annexure A, whether directly or with assistance from the autocomplete function. The plaintiff continues by paragraph 8 to allege that the court can infer that the material in annexure A or material substantially similar thereto ‘was available for access’ to users of the Google sites continuously from December 2012 to at least December 2013.
Framing the relevant allegations in this way is unclear and positively confusing in the context of how the trial of the issues raised on this proceeding is to be conducted. Each of the representations of search results comprised by the pages of annexure A were not searches under ‘Milorad Trkulja or Michael Trkulja’. In that sense, the pleading is embarrassing.
This is demonstrable by looking at the allegedly defamatory imputations carried by the Google Images. First it may be noted that at this point the pleading does not distinguish any particular publication and the pleader adopted the language of composite publication. If the pleading alleges that each and every publication carried each and every of the imputations, then it should make that allegation distinctly. In failing to do so it is vague and embarrassing. It does not admit of a proper response from the defendant. The pleader must identify what imputations arise from each publication alleged.
Secondly, the pleader alleged imputations arising by false innuendo and imputations in the alternative arising from true innuendo. The intrinsic facts on which the plaintiff relies for the allegation of true innuendo are limited and make no reference to any image of the plaintiff, being confined to an allegation that persons searching using these terms would identify the images of convicted notorious murderers Carl Williams, Andrew ‘Benji’ Veniamin, Tony Mokbel, the Carlton Crew mafia boss Mario Rocco Condello, Judy Moran, and Mark Moran.
The allegations are obscure and embarrassing in the relevant sense in moving from single distinct acts of publication by different individuals apparently using different search terms, some of which may be common, to the composite allegation of the imputations conveyed by the ‘matter’. That is particularly so in respect of the imputations that are said to arise by way of innuendo. For example, it could not be said that any defamatory imputation about the plaintiff could be drawn from an images search published to a person who did not know what the plaintiff looked like, yet there is no extrinsic fact of that sort alleged.
Damages
In pleading that damage was suffered, the pleader has returned to the use of the composite publication concept. Google LLC took objection to the fourth particular of aggravated damages that alleged that the continuing publication by the defendant of the Google Images and similar material, which it can be inferred remained accessible on the Google sites following the first proceedings and following notification in December 2012, was an aggravating factor. This allegation is impermissibly vague and is embarrassing in the relevant sense.
In my earlier ruling I refused to permit the plaintiff to make reference to ‘the first proceeding’ on the question of notice and for like reasons its use to allege an aggravating factor is impermissibly vague.[9] There is a material distinction between matter that remained accessible because it was on the world wide web and visible by way of a Google search and matter that was actually downloaded by conducting a Google search. The particular confuses, as does the whole pleading, the concept of publication with the concepts relating to how the Google search engine operates. I would not permit the inclusion of a particular in this form in any future pleading.
[9]Trkulja v Google LLC [2019] VSC 38 [35].
Conclusion
On several occasions the plaintiff has referred me to the dicta of Kirby J in Favell v Queensland Newspapers Pty Ltd.[10] I reject the submission that the objections taken by Google LLC to the plaintiff’s repeated attempts to plead this claim constitute excessive refinement or unfairly oppress the plaintiff, preventing presentation of a just claim. As I have noted, the proceeding will raise both complex evidentiary questions likely to require resolution by reference to expert evidence and the application of legal principle in a relatively novel situation that will also present some complexity. The proceeding is to be tried before a jury and it is particularly important that the issues to be raised before the jury are identified with precision and clarity in order that a just, efficient, timely and cost effective resolution of the real issues in dispute in the proceeding is achieved.
[10](2005) 221 ALR 186, 193 [22].
Finally, I would note that a number of other valid objections to the pleading were put by Google LLC in submission that have not been expressly referred to in these reasons. What I have said is sufficient to justify the orders I have made. On further re‑pleading, the transcript of argument will repay study.
The plaintiff’s pleadings have now been the subject of two rulings and extensive discussion between counsel and the bench about the deficiencies recorded in transcript. The proposition expressed by the High Court that the plaintiff may have a claim against the defendant appropriate for determination by a court has not been disputed at this stage. However, the time may be approaching where the plaintiff’s continuing inability to properly frame that claim might become oppressive. It is in this context that the apparent financial standing of the defendant compared with that of the plaintiff may be relevant and I have allowed several indulgencies. That said, the court’s patience in providing opportunities for a claim to be properly articulated in a pleading is not unlimited.
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