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:

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.

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.

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.

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.

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.

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.

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Details

Case: [2019] VSC 310
Decision Date: 7 May 2019

CaseChat Overview and Summary

The case of Trkulja v Microsoft Corporation (Ruling No.2) involved an application to further amend the statement of claim. The applicant, Trkulja, sought to add new allegations to his existing claim against Microsoft Corporation. The dispute centred on claims related to defamation and privacy breaches arising from Microsoft's alleged conduct in connection with their software products. The matter was heard in the Supreme Court of New South Wales, which exercised its discretion under the Supreme Court (General Civil Procedure) Rules 2015 to determine the application. The court was required to decide whether the proposed pleading did not disclose a cause of action in respect of the imputation, and whether it might prejudice, embarrass, or delay the fair trial of the proceeding.

In assessing the application, the court considered the existing allegations in the original statement of claim and the proposed new claims. The court found that the additional claims did not disclose a cause of action, as they failed to meet the legal standards required for defamation and privacy claims. However, the court also considered whether the proposed amendment might prejudice, embarrass, or delay the fair trial of the proceeding. In this respect, the court found that while the additional claims were not well-founded, the application would not cause significant prejudice, embarrassment, or delay. Consequently, the court exercised its discretion to allow the application with the opportunity for a further amendment, ensuring that the new claims were legally sound.

The court's decision was guided by the need to balance the interests of both parties, allowing the applicant a fair opportunity to present his claims while preventing the proceedings from being unnecessarily protracted or complicated. The court recognised the importance of maintaining the efficiency and fairness of the judicial process. The Supreme Court (General Civil Procedure) Rules 2015, particularly rule 23.02, were instrumental in shaping the court's discretion in this matter. The court's ruling provided a clear pathway for the applicant to refine the claims, ensuring they met the necessary legal standards before proceeding further with the litigation.

The final orders of the court included a refusal of the application to further amend the statement of claim, with an opportunity for the applicant to amend the pleadings to address the identified deficiencies. The court directed the applicant to provide a revised statement of claim within a specified timeframe, ensuring that the new claims were legally sufficient and did not introduce unnecessary complications to the proceedings. The decision highlighted the importance of careful pleading and the role of the court in maintaining the integrity and efficiency of the legal process.

Orders