Trkulja v Google (No 3)

[2011] VSC 503

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 10096  of 2009

MILORAD TRKULJA	Plaintiff
v
GOOGLE  INC & GOOGLE AUSTRALIA PTY LTD	Defendants

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JUDGE:	BEACH J
WHERE HELD:	Melbourne
DATE OF HEARING:	5 October 2011
DATE OF JUDGMENT:	5 October 2011
CASE MAY BE CITED AS:	Trkulja v Google (No 3)
MEDIUM NEUTRAL CITATION:	[2011] VSC 503

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PRACTICE AND PROCEDURE – Inspection of documents – Redacted documents – Confidentiality – Redacted parts of confidential documents not relevant to any pleaded issue.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	In person
For the Defendant	Mr A.T. Strahan	Baker & McKenzie

HIS HONOUR:

1. 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.

1. This proceeding has been the subject of a number of interlocutory applications.  Some of the procedural history of this matter is set out in TrkuljavGoogle [2010] VSC 226 and TrkuljavGoogle (No 2) [2010] VSC 490. It is not necessary to rehearse these matters of history here.

1. The present dispute concerns discovery.  On 10 June 2011, in order to resolve the then current disputes between the parties concerning discovery, I ordered the defendants to provide to the plaintiff copies of the documents identified in paragraphs 1, 2, 3, 8 and 9 of the plaintiff’s notice to produce dated 4 April 2011.  I made this order over the objection of the defendants as part of what I thought would be a practical resolution to the discovery issues that then existed between the parties, the plaintiff having indicated that if this order was made he would not seek any further discovery from the defendants other than discovery and production of documents on which the defendants intended to rely at trial.

1. Whilst the defendants were not opposed to a practical resolution of the discovery issues that then existed between them and the plaintiff, they contended that the relevant documents were irrelevant.  Additionally, they contended that the relevant documents contained matters which were highly confidential.  In the result, a confidentiality regime was put in place in relation to the inspection of the documents.  Additionally, I permitted the defendants, at first instance, to redact from the documents those parts which contained figures and like material over which a claim for confidentiality was made.  I permitted this to occur because it seemed to me that such material as might be redacted which was confidential would be unlikely to be relevant to any pleaded issue.

1. The plaintiff seeks inspection of unredacted versions of the relevant documents.  The defendants resist such inspection on the basis of confidentiality and relevance.  It is clear the defendants do not trust the plaintiff (a currently unrepresented litigant) in respect of confidential figures or commercial processes referred to in the relevant documents.

1. A central issue in this litigation is whether the second defendant participated in any relevant way in the publication of the Google images matter or the Google web matter.  The plaintiff seeks inspection of unredacted copies of the relevant documents for the purpose of assisting him in establishing that the second defendant is (in addition to the first defendant) a publisher of the Google images matter and the Google web matter.

1. I have been provided with unredacted versions of the relevant documents for the purpose of resolving the present dispute between the parties (although there is no document 8, the affidavit of  Mr Stewart sworn 4 October 2011 deposing to the non-existence of any joint venture agreement between Google Australia Pty Ltd and Google Ireland Ltd).  The redactions are described (without disclosing the actual information the defendants claim confidentiality over) in the affidavit of Mr Stewart to which I have just referred. This affidavit has been served on the plaintiff. Having examined the documents produced, I am not satisfied that there is any reasonable basis upon which it might be contended that the redacted portions are relevant to the issue of publication (or indeed any other issue in the case).  I appreciate that I have only had limited assistance from the plaintiff as I have not permitted him to inspect the unredacted versions of the documents –although he was able to make submissions about Mr Stewart’s affidavit.  However, I am sufficiently confident that the redacted parts of the documents are not relevant to any issue between the parties so as to refuse the plaintiff inspection at this stage.

1. The plaintiff has foreshadowed that at some time in the future he will employ lawyers to again act on his behalf in this proceeding.  It may be that such lawyers might persuade me at some point in the future to re-open this issue on the basis that they be given confidential access to unredacted copies of the relevant documents for the purpose of making such application as they see fit to this Court (see generally News CorporationvNational Companies and Securities Commission (1984) 57 ALR 550, Mobil Oil Australia LtdvGuina Developments Pty Ltd [1996] 2 VR 34 at p 40 and Gunns Ltd v Marr & ors [2008] VSC 464 at [28]-[36]). I leave that matter for another day. It is sufficient at this stage to say that I accept the defendants’ claims as to confidentiality in relation to the redacted portions of the relevant documents and that there is no basis for giving Mr Trkulja inspection of the redacted portions at the present time.