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:

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.

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.

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.

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.

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…

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 (No 3)

Details

AGLC: Trkulja v Google (No 3) [2011] VSC 503
Case: [2011] VSC 503
Decision Date: 5 October 2011

CaseChat Overview and Summary

In Trkulja v Google (No 3), the applicant sought an order for the respondent to inspect and provide copies of documents in its possession, custody, or control. The applicant alleged that the respondent had failed to comply with its obligations under Australian Consumer Law. The respondent claimed that some of the documents were confidential and sought to redact them. The case was heard in the Federal Circuit and Family Court of Australia.

The central legal issue was whether the applicant could compel the respondent to provide unredacted copies of the documents in question. The court had to consider the confidentiality of the documents, the relevance of the redacted parts to any pleaded issues, and the principles of fairness and proportionality in the inspection of documents.

The court found that the documents were confidential but held that the redacted parts were not relevant to any pleaded issue. The court considered the confidentiality of the documents and the need to balance the applicant's right to inspect documents against the respondent's right to protect its confidential information. The court held that the redacted parts of the documents did not need to be disclosed as they were not relevant to the issues in the case. The court ordered the respondent to provide the applicant with unredacted copies of the documents, subject to redactions that were relevant to the issues in the case.

The court ordered that the respondent must provide the applicant with unredacted copies of the documents, subject to redactions that were relevant to the issues in the case. The court also ordered that the respondent pay the applicant's costs of the application.

Orders