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Trkulja v Google (No 4)

Trkulja v Google (No 4)

Case [2011] VSC 560 3 November 2011

Injunction

Discovery & Disclosure

Trial Management

Civil Litigation & Procedure

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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…

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 4)

Details

AGLC: Trkulja v Google (No 4) [2011] VSC 560
Case: [2011] VSC 560
Decision Date: 3 November 2011

CaseChat Overview and Summary

In the case of Trkulja v Google (No 4), the plaintiff, Mr Trkulja, sought an injunction against Google to compel the company to provide access to certain documents held by it. The dispute arose from a previous proceeding where Mr Trkulja was seeking damages for alleged defamation. In the course of that litigation, Mr Trkulja sought to inspect documents held by Google. The Federal Court of Australia was tasked with determining the merits of Mr Trkulja's application for an injunction compelling Google to provide access to the requested documents.

The primary legal issue before the court was whether Mr Trkulja was entitled to an injunction compelling Google to provide access to certain documents held by it. The court had to consider the scope of the discovery process in relation to documents held by third parties, and whether the injunction was an appropriate remedy in these circumstances. The court also needed to weigh the public interest in ensuring access to justice against the potential prejudice that might be caused to Google if the documents were disclosed.

The court found that Mr Trkulja was not entitled to the injunction he sought. It determined that the scope of discovery in Australian proceedings is limited to documents in the possession, custody, or power of a party to the proceeding. Since Google was not a party to the defamation action, the court held that it was not subject to the discovery process in that proceeding. Furthermore, the court found that the injunction was not an appropriate remedy in these circumstances, as it would effectively compel Google to disclose the documents in question. The court also considered the potential prejudice to Google if the documents were disclosed, and found that this was a significant factor in its decision. The court ultimately determined that the public interest in ensuring access to justice did not outweigh the potential prejudice to Google.

In conclusion, the court dismissed Mr Trkulja's application for an injunction compelling Google to provide access to the requested documents. The court held that Google was not subject to the discovery process in the defamation action, and that the injunction was not an appropriate remedy in these circumstances. The court's decision highlights the importance of considering the potential prejudice to third parties when determining the scope of discovery in Australian proceedings.

Orders