Trkulja v Microsoft Corporation (Ruling No.2)

[2019] VSC 310

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
MAJOR TORTS LIST

S CI 2015 05714

BETWEEN

MILORAD TRKULJA (aka MICHAEL TRKULJA)	Plaintiff
v
MICROSOFT CORPORATION	Defendant

AND

S CI 2015 05718

BETWEEN

MILORAD TRKULJA (aka MICHAEL TRKULJA)	Plaintiff
v
YAHOO! INC	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 Microsoft Corporation (Ruling No.2)
MEDIUM NEUTRAL CITATION:	[2019] VSC 310

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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	Mr S Mukerjea	Johnson Winter & Slattery

HIS HONOUR:

1. In these two proceedings, Mr Trkulja sues for damages for defamation against the defendants Microsoft Corporation (proceeding S CI 2015 05714), and Yahoo! Inc (proceeding S CI 2015 05718). The publications that were alleged to convey the defamatory imputations consisted of pages of image search results generated by internet search engines operated by each defendant, respectively the Microsoft Bing Search Engine and the Yahoo Search Engine, and printed on paper.

1. I refused the defendants’ applications for summary judgment on 3 August 2018. At that time, I directed that these proceedings be managed with, and subject to any direction of the trial judge, be tried at the same time or consecutively with Trkulja v Google LLC (proceeding S CI 2013 06264). All matters were listed for trial to commence on 12 August 2019 and directions for preparation for trial were given.

1. I have broadly described the nature and course of the proceedings in my earlier ruling.[1] To avoid repetition these reasons must be read with those earlier reasons.

   [1]Trkulja v Microsoft [2018] VSC 399.

1. There was a substantial correlation between the allegations made by the plaintiff in each of these proceedings and the allegations made in the Google proceeding.[2] The plaintiff himself accepted as much on the summary judgment application when he relied on the decision of the High Court in Google Inc v Trkulja[3] as conclusively determinative of the defendants’ applications. I noted a number of the common features between the allegations in these three proceedings in the summary judgment ruling.

   [2]As to which see Trkulja v Google LLC [2019] VSC 38.

   [3](2016) 342 ALR 504.

1. The defendants pressed an alternative claim pursuant to r 23.02 of the Supreme Court (General Civil Procedure) Rules 2015 (‘Rules’) that paragraphs 4 to 10 of the amended statement of claim be struck out.  In the wake of the High Court’s decision, this application was pared back to a contention that paragraphs 6(d) and 6(g) be struck out.

1. Since the orders of 3 August 2018, Google LLC has successfully challenged the pleading of the statement of claim in separate applications. Currently, the plaintiff has not filed a viable pleading in that proceeding. These applications successfully challenged the like pleadings of the allegations made in the Google proceeding by paragraphs 4 – 10 of the pleadings in the Yahoo! and Microsoft proceedings. Those pleadings were, in each proceeding, an amended statement of claim dated 15 September 2016 (‘ASOC’).

1. When all proceedings returned for directions on 22 March 2019, the plaintiff applied for leave to serve a further amended statement of claim in the form of a proposed pleading dated 20 March 2019 (‘PFASOC’). Those proposed pleadings attempted to address some of the deficiencies in the ASOC identified by reference to my rulings in the Google proceeding. I struck out the ASOC in each of these proceedings. I announced that leave would not be granted to file and serve the PFASOC for the reasons articulated in argument, but leave to serve a further proposed amended statement of claim was granted.  However, I stated that I would publish my reasons as soon as other commitments permitted me to do so. These are those reasons.

1. My reasons for refusing the plaintiff’s leave to amend in these proceedings are substantially set out in my ruling in Trkulja v Google LLC (Ruling No. 2).[4] Those reasons must be read in conjunction with what follows.

   [4][2019] VSC 309.

1. Microsoft and Yahoo! objected to the filing of the proposed amended pleadings on three bases. First, they identified an ongoing failure to properly plead the act of publication in paragraph 4 of the pleading. Secondly, the plaintiff failed to identify which imputations were said to arise from which publications and thirdly the plaintiff has failed to provide the necessary extrinsic facts in connection with the allegations of imputations by true innuendo.

1. The defendants identified that the plaintiff had failed to comply with directions given on 3 August 2018. In particular, he had failed to regularise his pleadings to achieve consistency between the allegations he advances in each of the three proceedings and he had failed to provide further and better particulars or a schedule identifying which imputations pleaded in each statement of claim was alleged to arise from which of the search results identified in Annexure A.

1. The defendants submitted that the plaintiff’s failure to attend to three ongoing deficiencies in his pleadings provided ample ground to conclude that the pleading did not comply with r. 23.02 of the Rules. Firstly, there was an ongoing failure to properly plead the act of publication in paragraph 4. Secondly, the plaintiff continued to fail to identify which imputations were said to arise from which publications. Thirdly, the plaintiff failed to provide particulars of the necessary extrinsic facts supporting the allegation that imputations arose by true innuendo.

1. In summary the defendants’ contentions in these respects mirrored the objections raised by Google LLC to the pleading against it. The defendant noted firstly, the plaintiff had not put an allegation squarely that some person, at some date and place went to a particular website and executed a search by the use of particular identified search terms that produced a particular result. His failure to do so infected the whole pleading with ambiguity and confusion.

1. Secondly, the date range alleged by the plaintiff was inconsistent with the allegations made in the pleading and, in particular, with the particularised allegations of fact about search results and publication of defamatory matter. Thirdly, the pleading referred to publication to a ‘substantial body of persons’. Identifying who that substantial body of persons was and how the defamatory matter was alleged to have been published to them was embarrassing. Accepting the plaintiff was not required to plead his evidence, it was nonetheless incumbent on him to identify the inferences that the court would be invited to draw with particulars of the facts, matters and circumstances from which such inferences would be drawn. The crux of this submission was that defamatory imputations could only arise from published material and material could only be published by the defendants, according to the plaintiff’s allegations, by using the search engine to conduct a particular search.

1. The defendants’ third point was that the particulars of publication to named persons provided under paragraph 4 of the pleading were vague and inconsistent.

1. Fourthly, the plaintiff’s allegations put in issue the location of each search without pleading the relevant material fact. The defendants were challenging the plaintiff’s attempts to assert that publication to the ‘substantial body of persons’ occurred worldwide.

1. Finally, the defendants identified numerous inconsistencies between the particulars of publication to the named persons, the particulars of publication generally, and the information that was provided by the material comprising the annexure. I was satisfied that such inconsistencies were readily identifiable on analysis of the proposed pleading as a whole.

1. Each of these objections substantively arose in respect of the 2PFASOC that the plaintiff sought leave to file in the Google proceeding and my reasons for refusing that leave, which are set out in Trkulja v Google LLC (Ruling No. 2),[5] apply with equal force when ruling on these objections. It is unnecessary to repeat that reasoning. These reasons must be read in conjunction with my decision in the Google proceeding.

   [5][2019] VSC 309.