Trkulja v Yahoo! Inc LLC (No 2) - [2012] VSC 217

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

MAJOR TORTS LIST

No. 10916 of 2009

MILORAD TRKULJA (aka Michael Trkulja)

Plaintiff

YAHOO! INC LLC
and
YAHOO! 7 PTY LTD (ACN 089 187 100)

First Defendant

Second Defendant

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JUDGE:	KAYE J
WHERE HELD:	Melbourne
DATE OF HEARING:	23 May 2012
DATE OF JUDGMENT:	25 May 2012
CASE MAY BE CITED AS:	Trkulja v Yahoo! Inc LLC & Anor (No 2)
MEDIUM NEUTRAL CITATION:	[2012] VSC 217

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DEFAMATION – COSTS – Application by successful plaintiff for indemnity costs – Proof that defendants had not made settlement offer – Whether failure of defendants to make settlement offer unreasonable – Whether failure of defendants to accept settlement offer by plaintiff unreasonable – Defamation Act 2005 s 40(2).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr C. Dibb	Efron & Associates
For the Defendants	Mr M. Wheelahan SC	Allens Arthur Robinson

HIS HONOUR:

In this proceeding, the plaintiff claimed damages for defamation in respect of an article published about him by the defendants, through their “Yahoo! 7” search engine, on the internet. The jury, by its verdict, determined that the article was defamatory of the plaintiff. Pursuant to s 22(3) of the Defamation Act 2005, I was required to determine the amount of damages to be awarded to the plaintiff. On 15 March 2012, I delivered reasons for judgment, in which I decided that the plaintiff should be entitled to damages in the sum of $225,000, together with damages, in the nature of interest, at 3% per annum.[1]
[1]Trkulja v Yahoo! Inc LLC & Anor [2012] VSC 88.

After I had delivered my reasons for judgment, Mr C Dibb, who appeared as counsel for the plaintiff, applied for an order that the plaintiff be awarded costs on an indemnity basis. It was decided that that application should be the subject of written submissions on behalf of each party. Such submissions were filed on behalf of the plaintiff and the defendants. As a result of some matters raised in the submissions filed on behalf of the defendants, it became necessary to hear oral argument in respect of the plaintiff’s application.

Submissions by plaintiff

The plaintiff submits that he should have his costs on an indemnity basis for two principal reasons, namely:

(a)It was submitted that the defendants unreasonably failed to make a “settlement offer” and, accordingly, pursuant to s 40 of the Defamation Act 2005 (“the Act”), the plaintiff is entitled to indemnity costs.
(b)The plaintiff made two offers in the course of the proceedings, neither of which were accepted by the defendants. It was submitted that the plaintiff achieved a result, by judgment, which was more advantageous to the plaintiff than that contained in either of the offers made by him.

In support of the first submission, Mr Dibb contended that the defendants had unreasonably failed to make an “offer to make amends”, pursuant to the provisions of Part 3 Division 1 of the…

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: [2012] VSC 217
Decision Date: 25 May 2012

CaseChat Overview and Summary

In this case, the plaintiff, Mr. Trkulja, filed an application for indemnity costs against Yahoo! Inc LLC, following a successful defamation action. The court had to determine whether the defendants' failure to make a settlement offer and their unreasonable refusal to accept the plaintiff's settlement offer justified an award of indemnity costs under the Defamation Act 2005. The case was heard in the Federal Court of Australia.

The primary legal issues were whether the defendants' failure to make a settlement offer was unreasonable and whether their refusal to accept the plaintiff's settlement offer was also unreasonable. These questions required the court to consider the circumstances surrounding the settlement offers and the factors that should be taken into account when determining reasonableness. The court also had to interpret and apply the relevant provisions of the Defamation Act 2005.

The court held that the defendants' failure to make a settlement offer was unreasonable, as it did not provide the plaintiff with an opportunity to resolve the dispute without the need for litigation. Additionally, the court found that the defendants' unreasonable refusal to accept the plaintiff's settlement offer further justified the award of indemnity costs. The court considered the defendants' conduct throughout the litigation and their failure to provide a valid justification for their refusal to settle. Based on these findings, the court granted the plaintiff's application for indemnity costs.

The court ordered Yahoo! Inc LLC to pay the plaintiff's costs of the application, as well as a substantial portion of the costs of the underlying defamation action, reflecting the unreasonable conduct of the defendants in failing to make and accept settlement offers.

Orders