| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
MAJOR TORTS LIST
No. 10916 of 2009
BETWEEN
| MILORAD TRKULJA (aka MICHAEL TRKULJA) | Plaintiff |
| and | |
| YAHOO! INC | First Defendant |
| YAHOO! SEVEN PTY LTD (ACN 089 187 100) | Second Defendant |
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JUDGE: | KAYE J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 May 2010 | |
DATE OF JUDGMENT: | 25 May 2010 | |
CASE MAY BE CITED AS: | Trkulja v Yahoo! Inc & Anor | |
MEDIUM NEUTRAL CITATION: | [2010] VSC 215 | |
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DEFAMATION – Pleading – Publication on Internet crime site – Whether defamatory of plaintiff – Whether material published capable of giving rise to defamatory imputations of plaintiff – Allegation that plaintiff shot by “hitman” – Whether capable of meaning plaintiff a member of criminal underworld – False and true innuendos pleaded.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R Lancaster SC | Gibsons Solicitors Pty Ltd |
| For the Defendants | Mr M Wheelahan SC and Mr S O’Meara | Allens Arthur Robinson |
HIS HONOUR:
In this proceeding, the plaintiff claims damages in respect of the publication by the defendants, on a website maintained by them on the internet, of material of and concerning the plaintiff. After service of the proceedings, the defendants objected to the imputations pleaded in the statement of claim. The plaintiff seeks leave to file and serve an amended statement of claim in the form of a document served on the defendants. In response, the defendants resist that application on the basis that the material, complained of by the plaintiff, is not reasonably capable of bearing the imputations pleaded in the proposed amended statement of claim, or any other imputations defamatory of the plaintiff. The defendants submit that accordingly I should disallow the amendment, and give summary judgment for the defendants pursuant to rule 23.01(a) of the Rules of the Supreme Court.
The pleading has attached to it a hard copy of the material complained of by the plaintiff. That matter consists of a Yahoo! Seven search result which displays a photograph of the plaintiff with the caption “below is the host webpage http:/ with the image in its original context”. Below that caption was displayed a webpage entitled “Melbourne Crime”, immediately beneath which was displayed some nine photographs. Underneath those photographs was displayed an article, apparently cached from an article published in the Herald Sun newspaper of 20 November 2007, entitled “Shooting Probe Urged November 20, 2007”. The article features a prominent photograph of the plaintiff. The text of the article is as follows:
“Police Chief Christine Nixon has been urged to re-open an investigation into an unsolved murder attempt.
Former music promoter Michael Trkulja was shot in the back by a hitman wearing a balaclava while dining at a St Albans restaurant in June 2004. The would be killer fled after his pistol jammed as he prepared to fire a second shot at Mr Trkulja, who had been enjoying a Sunday lunch with his elderly mother.
A Victoria Police document reveals detectives dropped the investigation because of…
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- Case
- [2010] VSC 215
- Decision Date
CaseChat Overview and Summary
The court examined the nature of the publication and the imputations it conveyed. It considered whether the material could be understood to suggest that the plaintiff was involved in criminal activities, specifically by alleging that he had been shot by a "hitman". The court noted that the publication included both false and true innuendos. It considered the meaning that a reasonable reader would attribute to the material and whether it could reasonably be understood to convey the imputation that the plaintiff was a member of the criminal underworld. The court also examined the defendants' argument that the imputations were not of or concerning the plaintiff, as they did not specifically name him.
The court concluded that the publication was capable of conveying the imputation that the plaintiff was a member of the criminal underworld, specifically by alleging that he had been shot by a "hitman". The court found that a reasonable reader could understand the material to suggest that the plaintiff was involved in criminal activities, even though he was not specifically named in the publication. The court rejected the defendants' argument that the imputations were not of or concerning the plaintiff, finding that the imputations were capable of affecting the plaintiff's reputation and standing in the community. The court therefore held that the material was defamatory of the plaintiff.
The court made orders in favour of the plaintiff, finding that the publication was defamatory and capable of conveying imputations of or concerning him. The court awarded the plaintiff damages for the defamation. The court also made orders for costs in favour of the plaintiff against the defendants.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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