First Plaintiff v Defendant

* Leave having been granted for the first plaintiff to represent the second plaintiff for the purpose of the current applications.

1 This is one of two proceedings brought by Mr Goran Nikolic and a corporation he controls, Idaz09 Pty Ltd ('company') arising out of what seems to be a case of online identity theft. A person unknown to Mr Nikolic has been using the Twitter handles "Rusty@idaz09" and "Victory Nation:@idaz09nations" ('Twitter handles') since December 2016 to post inflammatory material online, which is said by Mr Nikolic to be racist, homophobic and anti-Muslim ('offending material'). The offending material is also said to be hateful, to represent extreme far right views, to express anti-vaccination views, and to promote conspiracy theories, such as allegations that Australian politics is controlled by paedophiles. The company, of which Mr Nikolic is the sole director and shareholder, conducts a business developing and producing identification and data security tools, and owns trademarks in a number of developed countries, with an international patent application underway. Mr Nikolic, who is also employed by the Commonwealth Government, has invented the technologies used by the company, and is closely identified with the company, which has its overarching philosophy the utilisation of technological advances to create a "more secure, open and accessible society".

2 Mr Nikolic considers himself to be tolerant and socially progressive, and is deeply perturbed at the thought of being associated with the allegedly reactionary opinions and inflammatory language used in the offending material. On 15 January 2019, the plaintiffs, then represented by solicitors, issued a proceeding in this Court against Twitter International Company ('Twitter'), Google Inc, LLC ('Google') and Oath Inc ('Yahoo'), alleging that by continuing to publish the posts from the Twitter handles, the defendants had defamed them. That proceeding ('first proceeding') was issued after Mr Nikolic had drawn each of the defendants' attention to the offending material.

3 Applications for summary judgment and/or striking out of the amended statement of claim in the first proceeding were heard on 28 November 2019, and reasons with respect to those applications will be delivered concurrently with these reasons. I mention the allegations in the first proceeding because they provide some context for the allegations made in this proceeding, which is far narrower in scope than the first proceeding.

4 This proceeding was issued on 24 April 2019. The defendant is the publisher of The Australian newspaper and online news service. Mr Nikolic's concerns focused on an article in The Australian's 'Cut and Paste' section published on 20 September 2017 ('article'), in the period leading up to the postal public opinion survey commissioned by the Commonwealth Government regarding marriage equality.

5 The article is titled 'Catholic archbishops, Islamic clerics see eye-to-eye on hazards of marriage equality', underneath which is a photograph of Sydney Catholic Archbishop Anthony Fisher in full ceremonial regalia. There follow some brief quotes from representatives of the Catholic Church, the Anglican Church, and the Islamic community in mainstream media publications published by the defendant opposing marriage equality. At the end of the article are two versions of a cartoon drawn by cartoonist Jon Kudelka, featuring a rainbow colour striped Trojan horse approaching the walls of a castle. The first version is the original cartoon drawn by Mr Kudelka, with the speech bubble emanating from the soldiers guarding the castle including (in small font) the words "To be fair, it will go down a treat at Mardi Gras...". After this cartoon, the article goes on to say "And going postal in art: Jon Kudelka's cartoon in The Australian, September 2 (above) transitions rather mysteriously to the other side (below) on the Twitter account of Rusty (@idaz09) ("Rusty Twitter handle")[1], September 18." Below that text, a modified version of the cartoon is reproduced, save that the words in the speech bubble have been replaced with a large "NO". The depiction of a Trojan horse presumably is intended to convey the possibility of a hidden hazard, notwithstanding that the words in the original cartoon are jocular and innocuous.

6 The plaintiffs consider that the article conveys 'malicious attitudes towards members of the same sex marriage community and their associates' on the part of the operator of the Twitter handle. The evidence shows that from about April 2018 Mr Nikolic communicated with the defendant and later with its solicitors seeking that the article be removed from The Australian's website. While the defendant removed the reference to the Twitter handle in the article in about August 2018, Google searches performed after that date showed the article linked or adjacent to search results and images of and/or associated with the plaintiffs, including photographs of Mr Nikolic.

7 In their written outline of submissions, the plaintiffs summarised the factual background to the proceeding as follows:

(a) in July 2018, the article was linked to the company's website, showing upon the first page of the Google News search engine;

(b) between July and December 2018 (that is, after the defendant altered the article to remove the reference to the company), the original article was linked to Mr Nikolic on social media platforms, and to Mr Nikolic's photograph on the first page of the Google News search engine;

(c) in March 2019, the article is attached to Mr Nikolic's LinkedIn account, and shows up next to Mr Nikolic's photograph on the first page of the Google Image search engine;

(d) despite Mr Nikolic removing the link to his LinkedIn account, in March 2019 the article was again linked to Mr Nikolic's LinkedIn account in a Google search;

(e) in April 2019, Mr Nikolic changed the URL of the company's website in an attempt to bypass the article. However, the article's image still appears on the first page of the results of the Google search engine upon a search of the name of the company, and is linked to Mr Nikolic's personal information and photograph, which is in turn linked with the company's information in Australia and overseas; and

(f) after Mr Nikolic changed his photograph on his LinkedIn account in July 2019, the article was linked to his updated photograph.

8 The defendant did not dispute the plaintiffs' contention that the plaintiffs continue to be associated with the article, and by extension, the offending material, on the internet. The evidence in support of the defendant's application details the attempts made by the defendant to remove the link between the article and the name of the company. At the hearing of the application on 25 September 2019, the defendant submitted that it had done all it could to remove the plaintiffs' association with the article, but it had no control over what emerged upon internet searches and other social media platforms. However, on 8 October 2019, after the hearing of the applications, the defendant's solicitor filed and served a further affidavit, deposing that, following the hearing, she obtained instructions from Mr Ramakrishna Gudipudi, Head of Audience at The Australian, to the effect that:

there is a function available via Google's website whereby [the defendant] is able to have a procedure called a 'cache flush' conducted in relation to [the article]. A cache flush would remove the original article from Google. [The defendant] is able to lodge a request through an online Google URL removal tool to have the outdated cache of [the article] removed from Google's search results. The URL remove tool requests provision of the word or content that no longer appears in the article to ensure that Google search function no longer recognises the original version of the article. It also ensure that the Google search results recognise and return the Amended Article once the cache flush has been conducted.

I ... believe that once the cache flush is conducted using the Google URL remove tool in relation to the Amended Article, there should no longer be any association between 'idaz09' and the Amended Article.

9 While the affidavit does not expressly state that the defendant intends to conduct the 'cache flush' referred to above, I can infer that the defendant intends to do so, such that the plaintiffs' concerns will be resolved, at least going forward.

10 The statement of claim, which was drafted by Mr Nikolic, commences with an allegation that the defendant has republished 'the matter' set out in the annexure to the statement of claim. However, there is no annexure to the statement of claim. Rather, in affidavits filed and served after the issue of the proceeding, the plaintiffs have exhibited large bundles of screenshots, which appear to be the results of Google searches, which contain the offending material. The defendant has proceeded on the basis that the publication complained of is the article, not the offending material. However, one of the plaintiff's grievances is that people who know or know of Mr Nikolic and the company would recognise the Twitter handle, and not only associate the plaintiffs with the article, but also with the offending material.

11 The statement of claim then goes on to make the following allegations:

(a) the plaintiffs brought the republication of the article to the defendant's attention, and 'demanded that the defendant remove the matter from its computers and servers and or to remove link or direction from its computers and servers linking or directing Internet users to the matter';

(b) the article was not removed from the defendant's website until around April 2019;

(c) the republication of the article, along with associated republications, means that third parties who are aware of the plaintiffs would conclude that:

(i) the plaintiffs are racist;

(ii) the plaintiffs are homophobic;

(iii) the plaintiffs hold anti-Muslim views;

(iv) the plaintiffs hold the view that Australian politics is influenced by paedophiles; and

(v) the plaintiffs hold views that vaccines kill babies;

(d) the article was of and concerning the plaintiffs, as the article was published under the moniker of the company's registered corporate and trading name, and the name and business of the company is synonymous with Mr Nikolic;

(e) the plaintiffs referred to the Twitter handles, and the publication of the offending material by the operator of the Twitter handles, which continue to damage the plaintiffs and cause acute distress and embarrassment;

(f) Mr Nikolic's efforts to bring a halt to the publication of the offending material;

(g) the nature of the business and reputation of the company;

(h) the plaintiffs alleged that because of the name of the Twitter handles, and the unusual name of the company, reasonable persons will presume, and have in fact presumed, that the Twitter handles were operated by the company and Mr Nikolic, and the offending material reflects Mr Nikolic's views;

(i) the plaintiffs set out the relevant principles governing the action for injurious falsehood, and stated as follows:

The Plaintiffs instructed that the republication of the Materials has caused, and continues to cause, the Plaintiffs significant damage by way of loss of clients and business opportunities. The republication of the Materials is further damaging the reputation and goodwill of the second plaintiff, and the first plaintiff's previously unsullied reputation.

The Company relies heavily on its reputation to secure new customer and supplier relationships. Accordingly, republishing the Materials, the defendant, has significantly impact and compromise the second plaintiff's ability to do so.

Moreover, the account @idaz09 features as the third result of a search of the defendant. The longer the Accounts are permitted on the defendant, the further damage that is caused to the second plaintiff's reputation and subsequently, its business.

(j) by reason of this proceeding, the defendant is on notice of the statements conveyed by the offending material, which evidences malice;

(k) the plaintiffs referred to the communications between Mr Nikolic, the defendant, and the defendant's solicitors. While the defendant changed the reference to the Twitter handle in the article, the article was still linked with Mr Nikolic and the company when Google searches of these names were conducted in April 2019; and

(l) the statement of claim identifies what are said to be questions of law or fact common to the plaintiffs, in the manner required by the class action provisions of the Supreme Court Act 1986 (Vic) (notwithstanding that it is not necessary for the current proceeding to be conducted as a class action).

12 Paragraph 43 from the Statement of Claim provides as follows:

To date, the consequences that has been endured by the first plaintiff are:

(a) suffering the embarrassment and problems associated with his future employment prospects to section 13 of the Public Service Act 1999, the Value and Code of Conduct, both internal and external of the department. The first plaintiff is currently employment with the Australian Federal Government, since September 2009;

(b) unable to rebuild his personal life and business from scratch;

(c) feeling isolated from his friends, colleagues and social networks;

(d) Facing difficulty for possible opportunities of his employment, and social networks in the future;

(e) negative impact on prospects of future success; and

(f) income would be significantly impaired because of the deformation of character; facts:

(i) cautioned of the first plaintiff;

(ii) cautioned of the Plaintiffs;

(iii) enhanced career opportunities limited and potentially scrutinised;

(iv) costs involved in relation to establishing technological patent works;

(v) costs associated with Australian Sign Language (Auslan) interpreters for meetings with the legal team, lost;

(vi) costs involved in relation to professional treatment for distress and anxiety; and

(vii) lack of business partnerships due to a damaged reputation;

13 As I understand the plaintiffs' case, it seems that, by publishing the article making reference to the Twitter handle, the publication of the sentiments expressed in the modified cartoon are said to be attributed to the plaintiffs. Further, given that the Twitter handle is associated with the offending material, any internet search of the names of Mr Nikolic and the company will reveal the offending material, and the article will appear along with or adjacent to genuine images and publications of the plaintiffs.

14 Accordingly, even though the defendant has removed the reference to the Twitter handle in the version of the article now available online, the prior content of the article, combined with the operation of the Google search engine, means that the plaintiffs are still associated with the sentiments expressed in the modified cartoon, and the offending material.

15 There are two summonses before me: the first in time is a summons filed by the plaintiffs on 24 July 2019, seeking to strike out the defendant's defence, on the grounds that the defence was filed two days late. The second summons, filed by the defendant on 11 September 2019, seeks summary judgment pursuant to s 63 of the Civil Procedure Act 2010 (Vic), or, alternatively, that the statement of claim be struck out pursuant to rule 23.02 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) ('Rules'). The main focus of the hearing on 25 September 2019 was the defendant's summary judgment application.

16 A preliminary matter raised by the defendant in its written submissions concerned the questions of the standing of the company to prosecute the proceeding in the absence of a solicitor on the record for the company. Rule 1.17(1) of the Rules provides that a corporation shall not take any step in a proceeding without solicitor. The Court has the power to disperse with the requirements of the Rules. The defendant neither consented to or opposed the Court granting leave to Mr Nikolic to represent the company.

17 During the course of the hearing I determined to grant leave for Mr Nikolic to represent the company for the purposes of the current applications. I consider that it is appropriate to extend that leave to encompass the hearing and determination of any appeals from my decision in these applications, or until further order. Mr Nikolic is the sole director and shareholder of the company. Having regard to the relevant considerations identified by J Forrest J in Worldwide Enterprises v Silberman,[2] I would make the following observations regarding the circumstances of the current case:

(a) the proceeding is at an early stage;

(b) the process of discovery and interrogation is unlikely to be particularly onerous or complex (although this consideration may have greater relevance further down the track if the matter proceeds);

(c) while the pleadings could be better expressed, there is nothing about the conduct of the proceeding to date which suggests that having Mr Nikolic represent the company as well as himself will, of itself, unduly burden the defendant or the Court; and

(d) from my experience to date, it is difficult to see how any disciplinary issues may arise with Mr Nikolic's conduct of the proceeding.

18 Turning to the plaintiffs' application, the defence was due on 20 July 2019, a Saturday. Rule 3.01(5) of the Rules provides that:

Where the last day for doing any act at the office of the Court is a day on which the office is closed, the act may be done on the next day the office is open.

19 As the defence was filed on Monday 22 July 2019, the defence was filed within the time period prescribed by the Rules. In any event, even if the defence had been filed one or two days late, I would have granted leave to the defendants to file and serve the defence out of time, given that the plaintiffs could point to no prejudice caused to them by any delay. To the extent that the plaintiffs criticise the substance of the defence, I accept that the defendant was entitled to file a "holding defence" pending the outcome of the defendant's summary judgment application. Accordingly, the applications in the plaintiffs' summons filed 24 July 2019 should be dismissed.

20 The defendant has applied for summary judgment in its favour on the basis that the proceeding has no real prospects of success. In summary, the defendant submits:

(a) the article is not capable of being found to be defamatory as any imputation conveyed that Mr Nikolic is opposed to same sex marriage or marriage equality is not capable of being found to be defamatory by a properly instructed jury;

(b) the article is incapable of being found to be of and concerning the plaintiffs' goods or business for the purposes of the plaintiffs' injurious falsehood claim; and

(c) there is no real prospect of the plaintiffs establishing malice on the part of the defendant for the purposes of the plaintiffs' injurious falsehood claim.

21 Alternatively, the defendant submitted that, should summary judgment not be granted, the statement of claim be struck out as failing to disclose a cause of action, and because allowing the statement of claim to go forward in its present form will prejudice and delay the fair trial of the proceeding.

22 The statement of claim does suffer in some respects from having been drawn by a self-represented litigant. Some of the criticisms of the statement of claim are minor, some are more substantial. Save for one aspect of the defendant's application, where it was said that certain imputations pleaded by the plaintiff are not capable of being defamatory, the criticisms are legitimate. However, I expect that the plaintiffs, with some guidance, would be able to prepare an amended statement of claim in a satisfactory form, should the defendant's application for summary judgment be unsuccessful.

23 In its application for summary judgment, the defendant relies upon s 63 of the Civil Procedure Act 2010 (Vic) ('CPA'), which provides as follows:

Summary judgment if no real prospect of success

(1) Subject to section 64, a court may give summary judgment in any civil proceeding if satisfied that a claim, a defence or a counterclaim or part of the claim, defence or counterclaim, as the case requires, has no real prospect of success.

(2) A court may give summary judgment in any civil proceeding under subsection (1) -

(a) on the application of a plaintiff in a civil proceeding;

(b) on the application of a defendant in a civil proceeding;

(c) on the court's own motion, if satisfied that it is desirable to summarily dispose of the civil proceeding.

Where an indorsement of claim on a writ or originating motion or a pleading or any part of an indorsement of claim or pleading -

(a) does not disclose a cause of action or defence;

(b) is scandalous, frivolous or vexatious;

(c) may prejudice, embarrass or delay the fair trial of the proceeding; or

(d) is otherwise an abuse of the process of the Court -

the Court may order that the whole or part of the indorsement or pleading be struck out or amended.

25 The test under s 63 of the CPA is governed by the statement of the Court of Appeal in the oft-cited decision of Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd,[3] as follows:

(a) the test for summary judgment under section 63 of the CPA is whether the respondent to the application for summary judgment has a 'real' as opposed to 'fanciful' chance of success;

(b) the test is to be applied by reference to its own language and without paraphrase or comparison with the 'hopeless' or 'bound to fail test' essayed in General Steel;

(c) it should be understood, however, that the test is to some degree a more liberal test than the 'hopeless' or 'bound to fail test' essayed in General Steel and, therefore, permits of the possibility that there might be cases, yet to be identified, in which it appears that, although the respondent's case is not hopeless or bound to fail, it does not have a real prospect of success;

(d) at the same time, it must be borne in mind that the power to terminate proceedings summarily should be exercised with caution and thus should not be exercised unless it is clear that there is no real question to be tried; and that is so regardless whether the application for summary judgment is made on the basis that the pleadings fail to disclose a reasonable cause of action (and the defect cannot be cured by amendment) or on the basis that the action is frivolous or vexatious or an abuse of process or where the application is supported by evidence.[4]

26 Further, Neave JA (who otherwise concurred with the statements made by the majority above) stated as follows:

... I am concerned that undue emphasis on the caution with which a Court must exercise the power of summary dismissal runs the risk of reinforcing the historical approach to summary dismissal and may result in the legislative liberalisation of the test in s.63 have little impact in practice. That approach would be inconsistent with the objective of reforming the law relating to summary judgment, expressed in s.1(2)(e) of the Civil Procedure Act, and with the requirement that the Court give effect to the over-arching purposing of [the CPA], imposed by s.8.[5]

27 In contrast with s 63 of the CPA, r 23.02 of the Rules is concerned with the sufficiency of a pleading rather than the viability of a claim.

28 The defendant filed and served a number of affidavits, and detailed written submissions in support of its application, and counsel for the defendant elaborated upon those submissions at the hearing of the applications. The plaintiffs' submissions did not directly engage with the key issues in the application, being whether the defendant's publication of the article was capable of amounting to injurious falsehood, and whether the imputation that the plaintiffs were opposed to marriage equality is capable of being found by a properly instructed jury to be defamatory. Rather, the plaintiffs, in Mr Nikolic's written and oral submissions, further articulated their grievances regarding the defendant's conduct, namely:

(a) the defendant failed to investigate the true facts, in particular, the correct identity of the plaintiffs, prior to publishing the article;

(b) the defendant has taken no steps to resolve the matter;

(c) the defendant has failed to apologise for and/or retract the publication of the article and/or the meaning the article and the offending material conveys; and

(d) despite the plaintiffs' complaints, the defendant has continued to cause the article and the offending materials to be republished.

29 The defendant relied upon the following affidavits:

(a) an affidavit sworn by Mr Justin Quill of Macpherson Kelley, the solicitors for the defendant, on 11 September 2019;

(b) an affidavit sworn by Ms Helen Trinca, the managing editor of The Australian, on 19 September 2019; and

(c) an affidavit affirmed by Ms Samantha de Bussey McGeoch of Macpherson Kelley on 24 September 2019.

30 Mr Quill deposed as to the correspondence between him and Mr Nikolic prior to and after the issue of the proceeding. He exhibited, among other things, a letter he sent to Mr Nikolic on 17 July 2019, which outlined what he described as a number of deficiencies with the statement of claim, invited the plaintiffs to discontinue the proceeding with each party bearing their own costs, and stating that the defendant did not, in all of the circumstances, propose to incur the expense of filing a defence.

(a) the article is part of The Australian's regular 'Cut and Paste' column. This series is written and compiled by a number of different editors. She deposed as follows:

The Original Article was part of The Australian's regular 'Cut and Paste' column. The Cut and Paste column is published in the Commentary section of The Australian daily from Monday through Saturday. This section of The Australian does not have a single responsible editor. The responsibility of editing this section of the newspaper can fall on different editors at different times. The Cut and Paste column is not always written by the same person and does not carry a byline.

Each Cut and Paste column is generally a collection of quotes or excerpts taken from articles previously published by newspapers or other forms of media. The purpose of the column is to illustrate the threat and direction of public discussion or debate on a particular topic of public interest and the way the media has reported on that issue. So, using the Original Article as an example, the purpose of the Original Article was to track and document the thread of recent discussion on the topic of same‑sex marriage, which, at the time of the Original Article, was a topic of widespread public discussion and debate which ultimately resulted in an Australia‑wide postal vote.

Except for the words which appear in bold print, all the material contained within each Cut and Paste piece has previously been published elsewhere before The Australian reprises an excerpt and includes it in Cut and Paste. The words in bold print are drafted by the journalist who prepares the Cut and Paste piece, and are intended to simply introduce the various excerpts.

Prior to and at the time of the publication of the Original Article, I did not know who the plaintiffs were nor that they were engaged in any business of any kind, let alone what that business was or what it was called. I did not know what the first plaintiff looked like, what were the plaintiffs' views on same-sex marriage, nor the identity of the person with the Twitter handle 'Rusty (@idaz09').

(b) despite making enquiries, she has been unable to conclusively determine who compiled the article, although it may have been Ms Jennifer Campbell, a senior editor at The Australian. Ms Campbell and the other editors consulted by Ms Trinca, including the editor of The Australian, told her that they did not know:

(i) who the plaintiffs were;

(ii) that the plaintiffs were engaged in any business;

(iii) what business the plaintiffs were engaged in and the name or names of any such business;

(iv) what the first plaintiff looked like;

(v) the plaintiffs' views on same-sex marriage; and

(vi) the identity of the person with the Twitter handle 'Rusty(@idoz09)'.

(c) her communications with Mr Nikolic in 2017 and 2018, including The Australian's receipt of a 'concerns notice' on 18 July 2018;

(d) she deposed as follows (with respect to the defendant's decision to remove the reference to the Rusty Twitter handle in the article);

The reason why Nationwide News was willing to amend the Original Article to remove reference to the '@idaz09' Twitter handle was because neither I (as Managing Editor) nor the newspaper had any interest or desire to cause the plaintiffs any damage or offence. The Original Article was a collation of material publicly available - including, in the present case, from Twitter. It was intended to be a summation of the thread of recent public discussion on the issue of same‑sex marriage. It appears that the plaintiffs now consider that they were inadvertently caught up in that discussion due to someone using a Twitter handle that is similar to the trading name of the second plaintiff. It was not Nationwide News' intention to injure, damage or cause offence to the plaintiffs in any way and, as I have stated, neither I nor any of the people I have spoken to within the organisation even knew who the plaintiffs were, what their business was called, or what were their views on same-sex marriage, at the time the Original Article was published. Ultimately, I agreed to remove the reference to '@idaz09' because, whilst I still did not believe it was defamatory of anyone, I thought it would satisfactorily finalise the complaint for Nationwide News if we made the amendment to the Original Article.

(e) she deposed that as from 24 August 2018, the article has been amended to refer simply to the Twitter account of 'Rusty';

(f) to the best of her knowledge, the exhibits to her affidavit (which included the plaintiffs' concerns notice, internal communications regarding Mr Nikolic's complaint, and other communications between the defendant and Mr Nikolic), are the only non‑privileged documents relevant to the issues raised by the defendant's summons; and

(g) she deposed that the defendant has no control over or involvement with the Google search engine, the Yahoo! Search engine, or the Twitter social media platform.

32 In her affidavit affirmed on 24 September 2019, Ms de Bussey McGeoch deposed, in summary, as follows:

(a) her location of a document on the website of the Australian Bureau of Statistics which provided a detailed report regarding the Australian Marriage Law Postal Survey conducted in 2017;

(b) referring to some pages of an annexure to Mr Nikolic's affidavit of 23 September 2013, which were screen grabs from a search carried out on The Australian's website on 20 April 2019, she noted that it appears that a search for the terms 'IDAZ09' or 'IDA209 nation' refers to the article. She deposed that the Digital Editor of The Australian told her that this is likely to be as a result of the Google cache mechanism, which would have retained the original version of the article, as the Google search function does not automatically recognise an amendment to an online article; and

(c) owing to The Australian ceasing to use the Google search function on or around 3 July 2019, a search of the terms 'idaz09' and 'idaz09 nation' on The Australian website carried out after that date does not return any results, there being no ongoing relationship between those search terms and the article.

33 Mr Nikolic filed and served a number of affidavits in connection with the current applications: on 24 June 2019, 25 July 2019, 19 August 2019, and 23 September 2019. Some of these affidavits simply annexed the offending material, and the results of internet searches evidencing the ongoing connection between the plaintiffs and the article. The affidavits were also concerned with the plaintiffs' application for summary judgment in default of a defence, and criticisms of the defendant's 'holding defence', which have been dealt with earlier in these reasons, and the communications between him, Ms Trinca, and Mr Quill in the lead up to and the aftermath of the issue of this proceeding. In his affidavit sworn on 23 September 2019, Mr Nikolic deposed as to the connection between the plaintiffs and the article up until July 2019, his attempts to try and mitigate the issue, and his concerns regarding the defendant's handling of his complaints.

34 Turning first to the plaintiffs' injurious falsehood claim, the defendant submitted that:

(a) the subject of the injurious falsehood claim is not the article, but rather the offending material. The plaintiffs have no prospect of proving at trial that the defendant is responsible for the publication of the offending material via the Google search engine or Twitter;

(b) the article makes no statement concerning the plaintiffs' goods or business: rather, at its highest, the article conveys a meaning that the operator of the Twitter handle opposes same-sex marriage; and

(c) given the evidence advanced by the defendant in support of its summary judgment application, the prospects of the plaintiff succeeding in proving malice at trial are fanciful.

35 I agree with the submissions advanced on behalf of the defendant that the plaintiffs will be unable to establish the necessary elements of the tort of injurious falsehood, being:

(a) a false statement published of and concerning the plaintiffs' goods or business (emphasis added);

(b) malice on the part of the defendant in publishing the false statement; and

(c) actual financial loss and damage caused to the plaintiffs' business.

36 The question of whether the defendant's publication of the article was actuated by malice, and the question of whether the plaintiffs have suffered loss and damage, are quintessentially questions for trial. That said, while I understand that the plaintiffs submit that malice can be inferred from the publication of the article, and the defendant's failure to apologise for or retract the article, I agree that on the basis of the evidence advanced by the defendant in support of its application, that it would be very difficult for the plaintiffs to establish malice on the part of the defendant in the circumstances of the current case.

37 However, it is not necessary for me to deal with the question of malice and/or loss and damage, as on the face of the article, the publication of the article makes no representations concerning the plaintiffs' goods or business, let alone false representations. The fact that Mr Nikolic believes that the publication of the article has harmed his business reputation, and has harmed the business of the company, does not alter the fact that the article makes no reference to the goods or business of the company, or either of them. The defendant should have summary judgment in its favour on the plaintiffs' claim for injurious falsehood.

38 Turning now to the defamation claim, I agree that the pleading of the statement of claim is confusing, and I agree that the defendant cannot be held responsible for publications made by other entities, such as Google or Twitter, and as such, the publication of the offending material is not relevant to any claim by the plaintiffs against the defendant. Further, it cannot be inferred from the article that the plaintiffs hold or condone views which are racist, or the other sentiments expressed in the offending material. The only imputation that the article conveys is that the operator of the 'idaz09' Twitter handle opposes same sex marriage, perhaps, as I indicated during the course of the hearing of the applications, opposes it stridently.

39 The test for whether an imputation pleaded by a plaintiff should proceed to trial is set out by Kaye J in Soultanov v The Age Company Limited & anor:[6]

The issue which I must determine on the defendants' summons is a question of law, namely, whether the article was reasonably capable of conveying the imputation, pleaded by the plaintiff, to the ordinary reasonable reader. The hypothetical "ordinary reasonable" reader has been described as an ordinary person who does not live in an ivory tower, and who reads between the lines in the light of his or her general knowledge and experience of worldly affairs. Such a reader is described by the law as someone who is not "avid for scandal" and who is neither "unusually suspicious nor unusually naïve". He (or she) does engage in a degree of loose thinking, and is understood to read between the lines. In particular, it is important to take into account that the ordinary reasonable reader is a lay person, and not a lawyer, and that his or her capacity for implication is much greater than that of a lawyer. On the other hand, as observed by Mason J in Mirror Newspapers Limited v Harrison, it is necessary to draw a distinction between the reader's understanding of what the article is actually saying, and a judgment or conclusion which the reader may reach as a result of his or her own beliefs and prejudices after reading the particular matter in question.

40 The defendant submitted that summary judgment ought to be granted, on the basis that no properly instructed jury could find that the article gave rise to the imputation that the author of the modified cartoon is homophobic. In order to do so, a reader would need to bring their own views and prejudices to bear when drawing such an inference from the article, which the authorities state is not permissible.[7] As illustrated by the comments of the various religious and community leaders referenced in the text of the article, people may be opposed to marriage equality for a range of reasons, not simply hostility towards gay and lesbian people. The result of the 2017 postal survey, in which nearly forty per cent of the respondents to the survey voted against marriage equality, demonstrates the community is deeply divided on the question of same‑sex marriage. Counsel for the defendant submitted that the fact that so large a section of the community was opposed to same sex marriage points suggests that prevailing moral and social mores and community standards have not developed to a point where merely to state that a person is or was opposed to same sex marriage would lower them in the estimation of right-thinking members of the community.

41 Counsel for the defendant submitted that there are a range of legitimate bases for opposition to same-sex marriage which are not founded in bigotry or homophobia. In his written outline of submissions, counsel for the defendant submitted as follows:

The plaintiffs could only persuade a judge or jury at trial that the [article] conveys a meaning of homophobia by inviting the judge or jury to find that ordinary reasonable readers would engage in a process of reasoning involving speculative inferences, one upon the other, based on their own beliefs and prejudices. The necessary inferences that would be required in order to arrive at an imputation of homophobia are:

1. that the original publisher of the tweet is the person who altered Mr Kudelka's cartoon (as opposed to someone who simply stumbled across the altered cartoon);
2. that the original publisher of the tweet altered the cartoon and published it because they are opposed to same-sex marriage (as opposed to publishing it for some other reason - for example, to expose a breach of copyright or to criticise the altered cartoon); and

1. if the original publisher of the tweet is opposed to same-sex marriage, they must, therefore, be homophobic.

It is (faintly) arguable that the first two inferences are capable of being drawn by an ordinary reader from the contents of the [article]. But the final inference requires the ordinary reader to make a leap based on their own beliefs and prejudices rather than anything grounded in the [article]. The flaw in the pleaded imputation can be seen by asking what other inferences might equally have been arrived at by readers by an impermissible process of speculative reasoning. A reader engaging in such a process of reasoning might just as easily have concluded that the publisher of the tweet is opposed to same-sex marriage not because they are homophobic but because they:

1. like many others in the community, are devoutly religious and their religion forbids same-sex marriage;
2. like the Catholic Archbishop quoted in the [article], view the concept of marriage to be intrinsically linked to the idea of pro‑creation, such that marriage, definitionally, can only ever be between a man and a woman;

1. consider that the concept of marriage has for so long been defined in society, culture and/or the law as being between a man and a woman that it is now not appropriate to change the law; or

1. were opposed to the nationwide postal vote as the mechanism for seeking to introduce same-sex marriage, but were not opposed to same‑sex marriage per se.

42 Counsel for the defendant submitted that the only way a reader can fix upon homophobia as explanatory of a person's opposition to same‑sex marriage is by applying some belief or prejudice of their own: that is, opponents of same sex marriage can only be motivated by homophobia.

43 The defendant's submissions raise two issues: first, whether the article is capable of conveying the imputation that the author of the modified cartoon is homophobic (as opposed to simply being opposed to same‑sex marriage), and whether an imputation that the author is opposed to same‑sex marriage is capable of lowering the estimation of the author among right‑thinking members of society. The defendant contends that, while the day may come when making an allegation that a person is opposed to same‑sex marriage could be considered defamatory, recent history, and in particular the large minority of Australian voters who voted against marriage equality as recently as two years ago, suggests that day has not yet arrived.

44 In an earlier version of these reasons ('earlier reasons'), provided to the parties prior to making any orders concerning the defendants' application in this proceeding, and prior to hearing the submissions of the defendants to the first proceeding in support of their summary judgment/strike-out applications, I formed the view that the question of whether the imputations arising from the article was defamatory was a question best left to trial, saying:

Accordingly, I would be loath to refuse to allow the plaintiffs' case to go forward merely because the issue of marriage equality is one which divides the community on social and/or religious grounds. It is telling that the evidence relied upon by the defendant in this application (regarding the results of the postal survey) would not ordinarily be admissible for the purpose of determining, as a factual matter, prevailing community standards: the task of determining and applying those standards is a task left to the trier of fact.

45 In the earlier reasons, I referred to a number of authorities which supported my view that the questions of whether a publication conveys to the imputation pleaded by the plaintiff, and whether the imputation conveyed is capable of being defamatory of the plaintiff are quintessentially matters for trial, save in very clear cases, and went on to say:[8]

It seems to me to be treading on dangerous ground to shut the plaintiffs out from asserting that the publication of anti-marriage equality sentiments cannot in any circumstances be equated with homophobia, and that an allegation that a person is homophobic would lower him or her in the estimation of an 'appreciable and reputable section of the community', at least on a summary basis. This is particularly so given that the evidence relied upon by the defendant to seek summary determination of this question would not be admissible at trial for the purpose of determining the question of whether the article means what is alleged, and if so, whether that meaning is defamatory.

46 However, upon reflection, and having considered further the relevant authorities[9], I formed the view that an ordinary reasonable reader, when reaching a conclusion that an imputation that a person is opposed to same sex marriage is capable of being defamatory of the plaintiffs, would fall into the trap of drawing "inferences upon inferences", which the authorities say is impermissible.

47 In my reasons concerning the defendants' applications in the first proceeding, insofar as they concerned the alleged imputation that the plaintiffs were homophobic, I said as follows:

I have come to the view that in reaching a view that opposition to same sex marriage equates to homophobia involves the impermissible drawing of 'inferences upon inferences'. As submitted by the defendants in their submissions, many people in the community are opposed to same sex marriage for reasons which are not motivated by antipathy towards gays and lesbians, such as by reason of their religious convictions. Accordingly, summary judgment should be granted in favour of the defendants, insofar as the search results include links to the Australian article, or other publications which merely express opposition to same sex marriage, without more.

48 Accordingly, as none of the imputations pleaded by the plaintiffs are capable of being defamatory, summary judgment should be granted in favour of the defendant. Accordingly, it is not necessary to consider further the defendant's strike-out application.

[2] [2009] VSC 165 [20]; see also [2010] VSCA 17; (2010) 26 VR 595.

[3] [2013] VSCA 158; [2013] 42 VR 27.

[6] [2009] VSC 145; (2009) 23 VR 182.

[7] See Lewis v Daily Telegraph Ltd [1964] AC 234; Mirror Newspapers Limited v Harrison [1982] HCA 50; (1982) 149 CLR 293; Amalgamated Television Services Pty Ltd v Marsden [1998] NSWSC 4; (1998) 43 NSWLR 158.

[8] See for example, Ecclestone v Telegraph Media Group Limited [2009] EWHC 2779 (QB) [8]; Hanson-Young v Bauer Media Limited [2013] NSWSC 1306 [11]; John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50 [18]; Reader's Digest Services Pty Ltd v Lamb [1982] HCA 4; (1982) 150 CLR 500.

[9] See, for example, Mirror Newspapers Limited v Harrison [1982] HCA 50; (1982) 149 CLR 293; Amalgamated Television Services Pty Ltd v Marsden [1998] NSWSC 4; (1998) 43 NSWLR 158; Barrow v The Herald & Weekly Times Pty Ltd [2015] VSC 263