Article – Supreme Court of Victoria
IN THE SUPREME COURT OF VICTORIA Not Restricted AT MELBOURNE COMMON LAW DIVISION MAJOR TORTS LIST No. 10096 of 2009IN THE SUPREME COURT OF VICTORIA Not Restricted
COMMON LAW DIVISION
MAJOR TORTS LIST
No. 10096 of 2009
GOOGLE INC LLC First Defendant
GOOGLE AUSTRALIA PTY LTD
Introduction and background
1 During 2009, there was material on the internet about the plaintiff, Mr Milorad Trkulja (also known as Michael Trkulja), which was available for downloading and viewing in Australia. In this proceeding, the plaintiff claims damages from Google Inc LLC, the first defendant, and Google Australia Pty Ltd, the second defendant, in respect of material described by the parties as “the images matter” and “the web matter”.
2 The images matter consisted of four pages of material. On the first page there were pictures of the plaintiff, Tony Mokbel and Denis Tanner. Underneath each of these pictures was the name “Michael Trkulja”. On the third page of the images matter, there was an article (“the article”) headed “Shooting probe urged November 20, 2007” with a larger photograph of the plaintiff. On this page, and above the article, was the heading “Melbourne crime”. Under this heading there were nine photographs of various people either known to have committed serious criminal offences or against whom serious criminal allegations had been made.
3 The web matter consisted of three pages. The first page of the web matter consisted of the first ten results of 185,000 results for the search term “Michael Trkulja”. The third page of the web matter consisted of the article under the same heading with the same nine photographs and the larger photograph of Mr Trkulja as contained in the images matter.
4 The article was 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 hit-man 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 a lack of evidence.
But Mr Trkulja, 58, now claims to know the identity of the hit man and those who hired him.
He says he has passed the names to the police.
‘He (the hit man) was offered $10,000 to kill me. I know who sent him and they know that I know who they are’, Trkulja told the Herald Sun.
‘I’ve told the police. I just want justice.’
‘Nobody should be shot like this.’
Mr Trkulja’s lawyer, high profile solicitor George Defteros, has written to Ms Nixon seeking a fresh investigation and the request is being considered.”
5 In respect of the images matter, the plaintiff pleaded three imputations, both as false innuendos and also as true innuendos. Those imputations were:
(a) the plaintiff was a prominent figure in the Melbourne criminal underworld;
(b) the plaintiff was so involved with crime in Melbourne that his rivals had hired a hit man to murder him;
(c) the plaintiff was such a significant figure in the Melbourne criminal underworld that events involving him were recorded on a website that chronicled crime in Melbourne.
6 Additionally, the plaintiff pleaded a further imputation as a true innuendo, namely “The plaintiff is a hardened and serious criminal in Melbourne, in the same league as Tony Mokbel, an alleged murderer and a drug trafficker, and Denis Tanner, an alleged murderer”.
7 In respect of the web matter, the plaintiff pleaded the imputations set out in paragraph 5(b) and (c) above, both as false innuendos and also as true innuendos. Further, he pleaded as an additional true innuendo, the imputation set out in paragraph 6 above.
8 By their pleadings, both defendants denied publication, denied that the meanings alleged by the plaintiff were conveyed, put in issue the extrinsic facts relied upon by the plaintiff to support the true innuendo claims, and pleaded defences of innocent dissemination at common law and pursuant to s 32 of the Defamation Act 2005.
9 The plaintiff issued this proceeding for trial by judge and jury. Shortly prior to trial, the defendants made application to change the mode of trial from judge and jury to judge alone. That application was rejected for reasons then given.
10 Section 22(2) of the Defamation Act provides that, where defamation proceedings are tried by a jury, the jury is to determine whether the defendant has published defamatory matters about the plaintiff and, if so, whether any defence raised by the defendant has been established. Section 22(3) provides that if the jury finds that the defendant has published defamatory matter about the plaintiff and that no defence has been established, then the judge is to determine the amount of any damages. At the commencement of this trial, the parties were in dispute as to whether there should be separate trials of the liability and damages issue, or whether all of the evidence relevant to both liability and damages should be called before the jury. After hearing argument, I ruled in favour of the plaintiff’s submission that all of the evidence should be called before the jury.More>>