Trkulja v Yahoo! Inc & Anor - [2010] VSC 215

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…

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: [2010] VSC 215
Decision Date: 25 May 2010

CaseChat Overview and Summary

The matter before the court involved a defamation claim brought by the plaintiff, Trkulja, against Yahoo! Inc and another defendant, concerning material published on an internet crime site. The plaintiff alleged that the publication was defamatory and capable of conveying imputations that he was a member of the criminal underworld, specifically by alleging that he had been shot by a "hitman". The defendants argued that the material was not defamatory and that any imputations were not of or concerning the plaintiff. The court was required to determine whether the material published was capable of giving rise to defamatory imputations of the plaintiff and whether any such imputations were false and of or concerning him.

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