Trkulja v Google (No 4)
[2011] VSC 560
•3 November 2011
| 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: | 3 November 2011 | |
DATE OF JUDGMENT: | 3 November 2011 | |
CASE MAY BE CITED AS: | Trkulja v Google (No 4) | |
MEDIUM NEUTRAL CITATION: | [2011] VSC 560 | |
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PRACTICE AND PROCEDURE – Injunction – Discovery – Inspection of documents – Trial management.
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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 Trkulja v Google [2010] VSC 226, Trkulja v Google (No 2) [2010] VSC 490 and Trkulja v Google (No 3) [2011] VSC 503.
Like the dispute in Trkulja v Google (No 3), the present dispute concerns discovery. It is necessary to set out some of the history of the discovery issues in this case.
On 21 May 2010, Kaye J ordered the parties to file and serve sworn affidavits of documents on each other by 6 September 2010. That order was not complied with. On 11 February 2011, I ordered the parties to make file and serve affidavits of discoverable documents by 1 April 2011. Whilst various affidavits (including the affidavit of the plaintiff headed “Affidavit of discoverable documents”) were filed following the making of this order, affidavits of documents in accordance with the Supreme Court (General Civil Procedure) Rules 2005 (“the Rules”) were not filed or served.
Between 11 February 2011 and 10 June 2011, disputes between the parties concerning discovery provoked extensive correspondence and a number of affidavits. On 6 June 2011, the plaintiff sent a letter to the defendants’ solicitors stating that the only discovery he required from the defendants consisted of documents identified in a Notice to Produce dated 4 April 2011 (“the first notice to produce”).
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 first notice to produce. 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.
Having ordered the defendants to provide the plaintiff with copies of the various documents identified in the first notice to produce, I made an order that compliance with this order would be treated as compliance with the discovery order made on 11 February 2011. I further ordered that the defendants would not be required to make, file and serve a formal affidavit of discovery.
Following the making of these orders, there was then a dispute between the parties concerning the redaction of confidential and irrelevant material. I have already resolved that dispute (subject to an application by the plaintiff for leave to appeal).[1]
[1]See Trkulja v Google (No 3) [2011] VSC 503.
On 25 October 2001, the plaintiff sent a letter to the defendant’s solicitors enclosing a further notice to produce (“the second notice to produce”). The second notice to produce did not require the production of documents at any particular hearing or the trial of the proceeding. Rather, the second notice to produce appears to be an attempt by the plaintiff to obtain further discovery. Whilst a number of paragraphs in the second notice to produce are difficult to understand (if not in fact being unintelligible), the tenor of the second notice to produce is that the plaintiff requires the production of further documents. The second notice to produce does not comply with the Rules. Some of its paragraphs purport to require the provision of what is described as “evidence document”. In another paragraph of the second notice to produce, s 254 of the Crimes Act 1958 is set out. In the penultimate paragraph of the second notice to produce, it is asserted that the defendants have breached s 254 of the Crimes Act. In the final paragraph of the second notice to produce, the following appears (as typed in the original):
Please be advised if the Defendants do not provide this evidence and documents by 31 October 2011 at 2.00pm. Plaintiff will issue Summons under Crimes Act 1958 SECT 254.
On 26 October 2011, the plaintiff sent the defendants’ solicitors a further document headed “Second Notice to Produce”(“The Third Notice to Produce”). The third notice to produce suffers from many of the defects that the second notice to produce suffers from. Like the second notice to produce, the third notice to produce does not comply with the Rules.
On 28 October 2011, the defendants issued a summons seeking an injunction to restrain the plaintiff from preferring any charges against the defendants, their solicitors, barristers, employees or agents. By this summons, the defendants also seek to have the second and third notices to produce set aside.
On 31 October 2011, I made an order in the following terms:
Without the leave of a judge of this Court, the plaintiff, whether by himself, his employees or agents or howsoever otherwise, be restrained until further order from laying or preferring any charges for summary or indictable offences in the Magistrates’ Court of Victoria or any other court against the defendants, their solicitors or barristers or any employee or agent of the defendants.[2]
[2]Cf National Australia Bank v McFarlane [2005] VSC 438 and McFarlane v National Australia Bank Ltd [2007] VSCA 275.
On the same day I adjourned the further hearing of the defendants’ summons. This is the further return of the defendants’ summons.
So far as the second notice to produce is concerned, the short point of the defendants’ current application is that the second notice to produce should never have been served. Apart from the fact that it does not comply with the Rules, it was served in contravention of the orders made on 10 June 2011. The plaintiff is not entitled to any further discovery. The parties’ rights in this regard are governed by the order of 10 June 2011. Further, the second notice to produce is, in any event, an abuse of process. Additionally, any prosecution that might be brought as threatened in it would likewise be an abuse of process. It cannot be doubted that it is an abuse of process to bring a proceeding where the purpose of bringing the proceeding is not to prosecute it to a conclusion, but to use the proceeding as a means of obtaining a collateral advantage beyond that which is offered by the law.[3]
[3]See generally Williams & ors v Spautz (1992) 174 CLR 509, 526-527 (Mason CJ, Dawson, Toohey and McHugh JJ).
Whilst the third notice to produce requires production of evidence or documents or matters described as “evidence document” at a hearing before Zammit AsJ and therefore may not be an attempt to obtain further discovery, the third notice to produce, in its form and in its failure to comply with the Rules, is manifestly defective. It should be set aside on that ground alone. That is not to say that the plaintiff may not, if so advised, issue an appropriate and relevant notice to produce documents at the trial or any further application in, or hearing of, this proceeding. Whether the defendants will be required to comply with any such document will depend upon whether the document complies with the Rules, has a legitimate forensic purpose and is not merely an attempt to obtain additional discovery.
It follows that the second and third notices to produce must be set aside, and the injunction continued until further order.
Costs
Having succeeded on their summons, the defendants are entitled to their costs. However, the defendants seeks the costs of their summons on an indemnity basis. Their application is put on the basis that the plaintiff has made serious and unsubstantiated allegations of criminal conduct against the defendants and, on the further ground, that the plaintiff should have known that he had no entitlement to file or serve the second notice to produce. There is force in these submissions. However, as was noted in Macedon Ranges Shire Council v Thompson,[4] a court has to make allowances for the position of litigants in person. That said, as has also been noted, litigants in person can cause great hardship and expense to other parties through making allegations and claims that lawyers would recognise as allegations and claims that could not reasonably or even properly be made, and through making proceedings much longer and much more expensive than they would otherwise be.
[4][2009] VSCA 209.
Giving full weight to the fact that the plaintiff is a litigant in person, in my view it is appropriate to order the defendants’ costs to be paid on a solicitor/client basis. The plaintiff has not insignificant experience in pursuing litigation.[5] That is, of course, not to be held against him. The real point is whether he should have known that he should not have served the second notice to produce. Having regard to the various hearings and applications in this matter in which the plaintiff has appeared for himself, I am satisfied that the plaintiff knew that his entitlement to additional discovery terminated when I acceded to his application in respect of the first notice to produce on 10 June 2011. For these reasons there will be an order that the plaintiff pay the defendants’ costs of and incidental to their summons filed 28 October 2011 on a solicitor client basis.
[5]See for example Raul Amon International Pty Ltd and Another v Telstra Corporation Ltd [1998] 4 VR 798, in which the plaintiff was the only moving appellant; Abeyratne v Trkulja (1998) 90 FCR 253; Trkulja v Ethnic Broadcasting Association of Victoria Ltd [2000] VSC 219; Trkulja v State of Victoria [2001] VSC 63; Trkulja v Morton [2005] FCAFC 259; Trkulja v Administrative Appeals Tribunal (2006) 43 AAR 285; Trkulja v Trajkovska [2010] VCC 10; Trkulja v Yahoo! Inc [2010] VSC 215; Trkulja v State of Victoria [2011] VSCA 255 (involving different subject matter from [2001] VSC 63); Trkulja v Gibsons Solicitors Pty Ltd [2011] FMCA 655; and Trkulja v Ivanovic [2011] VSC 455.
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