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[2024] VSC 380
General information, not legal advice.
Supreme Court of Victoria
2024-07-01
GRAY J
Original judgment source is linked above.
APPEALS - PRACTICE AND PROCEDURE - Application for extension of time in which to appeal from orders of an Associate Judge granting summary judgment to the defendant and dismissing the proceeding - Purported appeal from a costs order - Supreme Court (General Civil Procedure) Rules 2015 rr 77.06.2(2)(a), (4), (6) - Supreme Court Act 1986 s 17A(2)(b).
1 Should the plaintiffs, Mr Nikolic and IDAZ09 Ptd Ltd, be granted an extension of time in which to appeal from a determination of an Associate Judge granting summary judgment to the defendant and dismissing the proceeding? And what is the appropriate disposition of the plaintiffs' attempt to appeal a costs order made by the Associate Judge?
2 Mr Nikolic and IDAZ09 Pty Ltd filed a writ and statement of claim seeking damages from the defendant, Nationwide News, alleging the torts of injurious falsehood and defamation.
3 In giving summary judgment to Nationwide News, Daly AsJ held that there was no real prospect of either of those claims succeeding.[1]
4 As to the injurious falsehood claim, her Honour held that there was no false statement published by Nationwide News of or concerning the plaintiffs' goods or business.[2]
5 As to the defamation claim, her Honour reasoned that the imputations conveyed by Nationwide News' relevant publication were not capable of being defamatory.[3]
6 The parties entered into a settlement agreement containing a release provision relating to any related claims or appeal from Daly AsJ's judgment and a bar to further such proceedings.[4]
7 Over two years passed. Mr Nikolic and IDAZ09 Pty Ltd filed a notice of appeal seeking to appeal her Honour's judgment and a costs order, and later by filing a summons seeking an extension of time in which to commence the appeal from the judgment.
8 I have decided to refuse to extend the time in which an appeal from the judgment of Daly AsJ may be commenced, because the grounds in the notice of appeal lack merit and the appeal would be futile. I have also decided that time within which to seek leave to appeal the associated costs order made by Daly AsJ is not to be extended, and in the absence of leave the appeal notice is incompetent as regards the purported appeal from that costs order.
9 Between September and November 2017, Australia conducted a marriage law postal survey relating to a proposal for legalising same sex marriage in Australia.
10 In the months before the marriage law postal survey, an unknown person (or persons) used Twitter accounts or 'handles' with names incorporating 'idaz09' without authority to do so from Mr Nikolic or IDAZ09 Pty Ltd (the unauthorised Twitter handles).[5]
11 Using the unauthorised Twitter handles, the unknown person(s) 'tweeted' or posted information that Mr Nikolic regards as vitriolic, racist, homophobic, sexist, religiously vilifying and otherwise socially unacceptable.[6] The posts included anti-Muslim sentiment, anti-immigration views, extreme far-right views, anti-Australian Government opinions, and referenced paedophilia, rape and conspiracy theories.[7]
12 Mr Nikolic and IDAZ09 Pty Ltd were not responsible for the offending material being published on Twitter via the unauthorised Twitter handles. Naturally, Mr Nikolic was deeply perturbed at the thought of being associated with the offending material.[8]
13 Mr Nikolic 'considers himself to be socially progressive, a viewpoint embodied by the second plaintiff's overarching philosophy, which is to utilise technological advances to create a more secure, open and accessible society'.[9] The material posted using the unauthorised Twitter handles caused Mr Nikolic acute distress and embarrassment and he claimed it damaged IDAZ09 Pty Ltd.[10]
14 At the time, Mr Nikolic and IDAZ09 Pty Ltd were conducting a business developing and producing identification and data security tools. Mr Nikolic was the sole shareholder and director of IDAZ09 Pty Ltd.[11] The defendant, Nationwide News, was the publisher of The Australian newspaper and an online news service on its website.
15 On 20 September 2017, Nationwide News published an article in The Australian newspaper and online news service titled 'Catholic archbishops, Islamic clerics see eye-to-eye on hazards of marriage equality' (the article). At the end of the article were two versions of a cartoon featuring a rainbow-coloured, striped Trojan horse approaching the walls of a castle. Both versions of the cartoon depicted a sentry on the walls of the castle and a speech bubble. The article stated that the cartoon had originally been published with certain words inside the speech bubble, and that a modified version of the cartoon had recently appeared on Twitter via the Twitter handle 'Rusty(@idaz09)'. In the modified version of the cartoon, the sentry was depicted as shouting, 'NO'.[12] 'Rusty(@idaz09)' was one of the unauthorised Twitter handles; that is, it was not authorised by Mr Nikolic or IDAZ09 Pty Ltd.
16 Because of the obvious similarity between 'Rusty(@idaz09)' and his company's name, Mr Nikolic was concerned that the article associated the plaintiffs with the modified cartoon displayed in it. As he later explained to Daly AsJ through an interpreter:[13]
... when a person, it can be any person, republishes information then people learn more through it, for example, Twitter and that's how information can spread and that inference or interpretation can be drawn. People can identify a person through that process.
17 I infer that Mr Nikolic was concerned that, by reason of Nationwide News republishing the cartoon and its connection with 'Rusty(@idaz09)', people would associate the plaintiffs not only with the modified cartoon but with the other offending material published on the unauthorised Twitter handles.
18 From about April 2018, Mr Nikolic communicated with Nationwide News, and later with its solicitors, seeking the removal of the article from The Australian's website.[14] Mr Nikolic alleged that Nationwide News neglected to remove material conveying 'malicious attitudes towards members of the same sex marriage community and their associates'.[15] In July 2018, the article was linked to the company's website, showing up on the first page of results of searches using the Google News search engine. [16] In about August 2018, Nationwide News removed the reference to '@idaz09' from the article,[17] but otherwise left the article posted in amended form on its online news service (the amended article).
19 Google searches performed by or for Mr Nikolic after August 2018 showed the article (or amended article) linked or adjacent to search results and images of or associated with the plaintiffs, including photographs of Mr Nikolic.[18] In about December 2018, it remained linked to Mr Nikolic on social media platforms, and to Mr Nikolic's photograph on the first page of results of searches on the Google News search engine.[19]
20 On 15 January 2019, Mr Nikolic and IDAZ09 Pty Ptd commenced a proceeding in this Court (S ECI 2019 00126) against three defendants, including Twitter International Company, in relation to the unauthorised Twitter handles (the first proceeding).[20] Nationwide News was not a defendant in the first proceeding.
21 In March 2019, the article (or amended article) was attached to Mr Nikolic's LinkedIn account, and showed up next to Mr Nikolic's photograph on the first page of results of searches using the Google Image search engine.[21] Later in March 2019, despite Mr Nikolic removing the link to his LinkedIn account, Mr Nikolic's LinkedIn account still featured in Google searches of the article (or amended article).[22]
22 In April 2019, Mr Nikolic changed the URL[23] of IDAZ09 Pty Ltd's website in an attempt to bypass the article (or amended article). However, the image of the article or amended article still appeared on the first page of the results of the Google search engine upon a search of the name of the company, and was linked to Mr Nikolic's personal information and photograph, which were in turn linked with the company's information in Australia and overseas.[24]
23 On 24 April 2019, Mr Nikolic and his company commenced this proceeding, by writ and statement of claim, against Nationwide News.[25] They claimed damages, including aggravated damages, for injurious falsehood[26] and defamation.[27] The plaintiffs' statement of claim alleged that Nationwide News' republication of the cartoon in the article damaged his reputation and occupation and harmed IDAZ09 Pty Ltd's business.[28]
24 In July 2019, after Mr Nikolic changed his photograph on his LinkedIn account, the article or amended article was linked to his updated photograph.[29]
25 On 5 September 2019, the plaintiffs filed a summons seeking to strike out Nationwide News' defence on the basis that it was allegedly filed late.
26 On 11 September 2019, Nationwide News filed a summons seeking summary judgment pursuant to Civil Procedure Act 2010 s 63, or alternatively an order that the statement of claim be struck out pursuant to r 23.02 of the Supreme Court (General Civil Procedure) Rules 2015.
27 That application, together with the plaintiffs' application to strike out the defence, were heard by Daly AsJ on 25 September 2019.
28 On that day, before those applications were heard, Daly AsJ conducted a directions hearing in the first proceeding, involving the same legal representatives.
29 During the hearing of the applications on 25 September 2019 before Daly AsJ, counsel for Nationwide News referred at times to an affidavit of one of his instructing solicitors (Ms McGeoch), conveying hearsay information from a Mr Sanky about the workings of the Google search engine.[30]
30 On 8 October 2019, Nationwide News' solicitor Ms McGeoch filed and served a further affidavit deposing that she had obtained instructions to the effect that there was a function available via Google's website enabling a procedure called a 'cache flush', which could be conducted in relation to the article. It seemed that a cache flush would remove the original article from Google. The solicitor deposed that she believed that once the cache flush was conducted, there should no longer be any association between 'idaz09' and the article (or amended article).
31 On 29 December 2019, the plaintiffs filed an affidavit of Mr Nikolic sworn 29 December 2019 (Mr Nikolic's 29 December 2019 affidavit), which, relevantly:
(a) referred to Nationwide News being a registered third party of Google's 'Custom Search Engine' (CSE);
(b) stated that, during the hearing before Daly AsJ on 25 September 2019, Nationwide News claimed in various ways that it had 'nothing to do with' or was not responsible for the workings of Google's search engine;
(c) set out extracts of transcript in which counsel for Nationwide News drew on hearsay evidence of a Mr Sanky, referred to in an affidavit of Nationwide News' solicitor Ms McGeoch made on 24 September 2019, and also to an affidavit of The Australian's managing editor, Ms Trinca;
(d) referred to code Mr Nikolic had found in the webpage of the amended article as at 23 December 2019;
(e) suggested (on my reading of the affidavit as a whole) that features of the code in the webpage of the amended article related to, and perhaps facilitated, the operation of the Google CSE.
32 On 9 April 2020, Daly AsJ delivered the Reasons,[31] that is, her Honour's reasons for judgment in response to Nationwide News' application for summary dismissal of the plaintiffs' claims. Also on 9 April 2020, her Honour made orders that summary judgment be granted in favour of Nationwide News and set a timetable for submissions on costs. Subject to determination of the question of costs, the proceeding was dismissed.
33 The Reasons did not refer to Mr Nikolic's 29 December 2019 affidavit or its contents. The Reasons did not refer to the Google CSE either. However, the Reasons did refer to Ms McGeoch's affidavit of 8 October 2019, and to the hearsay information contained in relating to the process of 'cache flush'.[32]
(a) the plaintiffs' injurious falsehood must fail because Nationwide News' publication of the article and amended article was not of or concerning the plaintiffs' goods or business;[33]
(b) Nationwide News was not responsible for publication of the offending material on the unauthorised Twitter handles, only of the article and amended article;[34]
(c) The only imputation conveyed by the article was that the operator of the 'idaz09' Twitter handle opposes same sex marriage, or does so stridently, but this was not capable of being defamatory.[35]
35 On 22 and 29 April 2020, the parties made submissions on costs in writing to Daly AsJ.[36]
36 On or about 30 April 2020, the plaintiffs and Nationwide News entered into a written agreement titled 'Settlement and Release Agreement' (Settlement Agreement). That document is in evidence and is referred to in more detail below.[37]
37 On 1 July 2020, Daly AsJ ordered that the plaintiffs pay Nationwide News' costs of the proceeding. The recitals to her Honour's order included the following:
A. An order for costs will be made in favour of the defendant. While I accept the plaintiffs have real grievances with respect to the publication which is the subject of the proceeding, these grievances do not cause me to depart from the usual position that costs follow the event.
B. However, this is not a case where the plaintiffs should pay the defendant's costs on an indemnity basis. It is apparent from the manner in which this proceeding progressed that the question of whether the publication concerned was capable of being defamatory, while ultimately resolved in favour of the defendant, was not straightforward.
C. I would urge that the first plaintiff make an application to the Prothonotary of the Court for reimbursement of the fees paid by him to the AUSLAN interpreters who assisted him during the course of the proceeding.
38 On or about 6 July 2021, a Deputy Prothonotary of this Court wrote a letter to Mr Nikolic that contained an apology for difficulties Mr Nikolic encountered in arranging an Auslan interpreter in this proceeding.
39 Amongst other things, Mr Nikolic relies on this letter in support of his application for an extension of time in which to appeal from Daly AsJ's decision.[38]
40 Mr Nikolic's affidavits in support of the application did not exhibit the letter, so by the Court's own motion a copy was obtained from the registry, marked as an exhibit, admitted into evidence in relation to this application and retained on the court file. The letter relevantly states:
In your correspondence, you have indicated that:
1. In S ECI 2019 02003, you encountered difficulty in arranging a Auslan translator for the hearings in the proceeding, in particular that upon contacting the Registry, you were advised to engage your own interpreter which you proceeded to do for the purposes of at least two hearings in the proceeding.
...
Auslan Translation
In relation to the difficulties which you encountered in relation to arranging Auslan interpreters for the hearings conducted in proceeding S ECI 2019 02003, we apologise most sincerely. This should have been organised for you. If you could provide to us by return copies of any invoices that you received for payment of those interpretation services, we will arrange for you to be reimbursed any costs paid by you. Indeed, in this regard we refer to the orders made in that proceeding by the Honourable Associate Justice Daly of 1 July 2020 in which her Honour, in 'Other Matters', urged you to apply for reimbursement of those fees.
I note for completeness, that we are in the process of improving our internal processes regarding interpreters generally, in particular with respect to Auslan interpreters. Further, while proceeding S ECI 2019 02003 is at an end, should you have any further hearings in the Supreme Court of Victoria, please contact the Prothonotary on 8600 2023 so that we may make the necessary arrangements for you for an interpreter for any such hearings.
For completeness, as recently confirmed to you by the Major Torts List Coordinator of the Court, final judgment has been entered in proceeding S ECI 2019 02003 and accordingly that proceeding is at an end. You may have appeal rights available to you and if you wished to consider bringing an appeal, we would urge you to seek legal advice. You may also wish to contact our Self Represented Litigant Coordinators on 8600 2031 or at unrepresented@supcourt.vic.gov.au who will also be able to assist in providing procedural advice and some options for you to obtain free or low cost legal assistance, noting that they are unable to provide legal advice.
41 On 10 September 2022, Mr Nikolic and his company filed a notice of appeal against the ruling and orders of Daly AsJ made on 9 April 2020, and against her Honour's costs order made on 1 July 2020.
42 The notice of appeal went before a Judicial Registrar of the Court on 28 November 2022. The Judicial Registrar ordered that Mr Nikolic and his company were to file and serve any application for an extension of time pursuant to r 77.06.2(6) of the Supreme Court (General Civil Procedure) Rules 2015 (Rules) and any further affidavit material or submissions in support of such application and the notice of appeal by 22 December 2022. Nationwide News was to file and serve responding material by 27 January 2023, and reply material was to be filed and served by 10 February 2023. The matter was listed to be determined by a judge on the papers.
43 The 'other matters' in Judicial Registrar Baker's order on 28 November 2022 record that 'The parties have been unable to reach agreement as to the form of the timetabling orders that should be made concerning the appellants' appeal, save that it appears to be common ground between them that the parties seek that the appeal should also be determined on the papers.'
44 I am therefore satisfied that the parties agreed that I should determine the current issues between them in this proceeding on the papers and without a hearing.
46 There is no summons before me by which the plaintiffs seek an extension of time in which to seek leave to appeal from Daly AsJ's costs order made on 1 July 2020, but I infer that the plaintiffs also wish to obtain such an extension of time, to facilitate a grant of leave to appeal from Daly AsJ's costs order.
Provisions relating to the plaintiffs' application/appeal
47 Section 17(3) of the Supreme Court Act 1986 provides relevantly that, unless expressly provided otherwise by that Act or the Rules, an appeal lies to a Judge of the Court from any determination of an Associate Judge.
48 Rule 77.06 governs such appeals, providing that they shall brought in accordance with rr 77.06.01 to 77.06.09 of the Rules. Rule 77.06.02(1)(a) prescribes a time limit for serving a notice of appeal: this must be done within 14 days after the judgment or order of the Associate Judge. However, r 77.06.02(6) provides:
A Judge of the Court ... may extend the time allowed under this Rule at any time.
49 Section 17A(2) of the Supreme Court Act 1986 provides relevantly that an order as to costs made by and in the discretion of the Trial Division, constituted otherwise than by a Judge, is not subject to appeal to a Judge in the Trial Division except by leave.
51 Rule 77.06.2(4) provides that if leave to appeal is necessary and a notice of appeal is served before leave has been granted, any person on whom the notice of appeal has been served may apply to a Judge of the Court for an order dismissing the appeal as incompetent.
52 The principles governing extensions of time for appeals are well established. Exercise of the discretion to extend time involves consideration of:[43]
(a) the length of and reasons for delay;
(b) prejudice to the respondent; and
(c) whether the proposed appeal so lacks merit as to be futile.
53 In the 'Consideration' section of these reasons, I consider each of these matters in turn. But first I refer to the plaintiffs' material and submissions in a little more detail.
54 In support of their notice of appeal, the plaintiffs filed a statutory declaration of Mr Nikolic bearing the date 18 September 2022 and filed 10 September 2022 (Mr Nikolic's 10 September 2022 statutory declaration), and 'Submissions' filed on 10 September 2022, which I will refer to as the plaintiffs' first submissions.
55 The plaintiffs also filed 'Supplementary Written Submissions', dated and filed 16 October 2022, which I will refer to as the plaintiffs' second submissions.
56 After the Judicial Registrar made directions as to material in support of an application for extension of time, the plaintiffs filed:
(a) a further affidavit of Mr Nikolic, dated and filed 7 December 2022 (Mr Nikolic's 7 December 2022 affidavit);
(b) 'Submissions for the Plaintiffs' dated and filed 7 December 2022, which I will refer to as the plaintiffs' third submissions;
(c) 'Plaintiffs' simplified outline of submissions in response to the defendant's submissions' filed 30 January 2023, which I will refer to as the plaintiffs' fourth submissions;
(d) a further affidavit of Mr Nikolic, bearing the date 2 May 2024 and filed 30 April 2024 (Mr Nikolic's 30 April 2024 affidavit).
57 Mr Nikolic's 10 September 2022 statutory declaration verifies his notice of appeal and the plaintiffs' first submissions.
58 The plaintiffs' first submissions make a number of points. The key contentions to be drawn from these submissions, of relevance to the matters I must decide, are as follows.
(a) The amended article was 'presented to all persons in results on Google's website by the function of the ... Google CSE'. Nationwide News provided keywords to Google CSE which produced results linking the amended article and the plaintiffs. This included an image of a Catholic archbishop being linked to the plaintiffs. 'The search results linked the [amended article and image of the Catholic archbishop] and the Content from the Twitter Handle to the first plaintiff's personal photograph on Google Website was republished to all persons who knew that the first plaintiff was the owner and proprietor of the second plaintiff, which was available to all persons through Google Website and remains accessible to the Twitter Handle under the Twitter's website ...'.[44]
(b) The defendant's affidavit material and submissions filed up to and including 8 October 2019, and the submissions made at the hearing before Daly AsJ on 25 September 2019, did not disclose the Google CSE.[45]
(c) Mr Nikolic's affidavit of 29 December 2019 was filed to inform the court that the Google CSE had not been declared or disclosed by Nationwide News. Mr Nikolic prepared that affidavit after reading of matters contained in the hearing before Daly AsJ on 25 September 2019, which his affidavit refers to as the 'First Matter Hearing'. The affidavit did so 'on the basis' that Mr Nikolic was:[46]
22.1 unable to take notes or refer to the documents while watching an Auslan interpreter, as a result, the first plaintiff missed some of what was said in the First Matter Hearing. This was determined after the First Matter Hearing by reading the transcript';
22.2 missed these statements during the First Matter Hearing due to access issue set out in 22.1 above, as a result of this Court declining to provide deaf awareness training prior to commencing the First Matter Hearing;
22.3 given the Submission of the defendant's summons in a short notice prior to commencing the First Matter Hearing;
22.4 restricted to communicate by the defendant prior to the First Matter Hearing.
(d) The judgment of Daly AsJ given on 9 April 2020 did not refer to or act upon the affidavit of Mr Nikolic dated 29 December 2019.[47]
(e) The plaintiffs entered into the Settlement Agreement after Mr Nikolic was threatened with the costs of the proceeding and with bankruptcy.[48]
(f) The Settlement Agreement was entered into on the basis that 'the defendant will remove the [amended article] from [The Australian's] website including the Images', 'the defendant will remove any links that linked the plaintiffs to the [amended article] on the Google Website', the parties will bear their own costs of the proceeding, and the plaintiffs agree not to appeal.[49]
(g) 'Before the Settlement, an appeal was rejected by an officer of this Court because the Judgement was omitted any reference to the Google CSE. The first plaintiff had to accept the Settlement in order to avoid bankruptcy.'[50]
(h) The defendant's costs submissions also failed to declare the Google CSE matter. The defendant did not enquire into the veracity of Mr Nikolic's 29 December 2019 affidavit, or the accuracy of its own affidavits, prior to the making of the costs order. The defendant failed to cooperate with, or permit communication from, Mr Nikolic, breaching the Civil Procedure Act 2010.[51]
(i) 'On or about 6 July 2021, the first plaintiff received an apology letter from the prothonotary on behalf of this Court after complaining about the incident described in paragraph 22 above, and allowing to file an appeal.'[52]
(j) The plaintiffs filed this appeal as a result of Nationwide News breaching the Settlement Agreement. The breach consisted of republishing the amended article including the image of the Catholic archbishop to all persons in results from searches of the plaintiffs' names on the Google website and by not removing the Images[53] from being online.[54]
(k) For the purposes of applying the recent case of Google LLC v Defteros [2022] HCA 27, Nationwide News 'is an originator of the Google Website by registering and providing keywords to the Google CSE in order to publish or republish ... [the amended article] to all persons ... searching for the [plaintiffs' names]'. As a result, if it is true that 'the defendant registered by providing keywords to Google CSE ...', then 'the defendant may not be entitled to an immunity [under pt 4 div 2] of the Defamation Act, or else (if it is false) 'the defendant is entitled to sue Google LLC'.
(l) The plaintiffs claim that the non-disclosure of the Google CSE was 'perjury'. The plaintiffs claim to be entitled to damages, amongst other things for contravention of the Equal Opportunity Act 2010 by reason of the failure to provide reasonable adjustments on grounds of Mr Nikolic's disability access and because there was no inquiry into, or action upon, his affidavit dated 29 December 2019, prior to the judgment of 9 April 2020 and the costs order of 1 July 2020.[55]
59 The plaintiffs' second submissions contain some additional points of note.
(a) The basis of the writ and statement of claim alleging defamation and injurious falsehood against Nationwide News was that Nationwide News 'registered ... the Google CSE ... in order to republish and present [the amended article] to all persons...' searching the plaintiffs' names on Google.[56]
(b) The plaintiffs entered into the Settlement Agreement 'after the defendant's threatening the first plaintiff with the costs and bankruptcy on the ground that he had no choice to do because his appeal application was unreasonable rejected by an officer of the court...'.[57]
(c) 'On 18 September 2022, the first plaintiff filed an appeal ... on the basis that the Prothonotary's apologising him on behalf of the Court for failing to provide reasonable adjustment during the Earlier Proceeding prior to commencing the First Matter Hearing pursuant to the Equal Opportunity Act 2010 because the [writ and statement of claim] was allowed to file by himself with disability.'[58]
(d) The plaintiffs seek a declaration that the Settlement Agreement is void. They do so because the defendant failed to declare the Google CSE matter in its affidavits, the defendant failed to cooperate with Mr Nikolic, the defendant threatened Mr Nikolic with costs and bankruptcy having knowingly not declared the Google CSE matter in its affidavits, the defendant failed to correct the record as soon as possible after becoming aware of the Google CSE matter through Mr Nikolic's affidavit of 29 December 2019, and the defendant failed to notify the Court to correct the record as soon as practicable after its subsequent breach of the Settlement Agreement.[59]
(e) The Court should be satisfied that the appeal be granted on the basis of any one or more of various aspects of the defendant's conduct. The matters relied upon in this regard include the concealment of facts, breaches of the Equal Opportunity Act and Civil Procedure Act, and the distress, embarrassment, humiliation and damages caused by the publication of the judgment and by the costs order. Mr Nikolic requests an award of damages for defamation from this Court, and notes that he seeks, in a separate Federal Court proceeding, further damages in respect of public disclosure of private information, defamation, disability discrimination, intentional infliction of economic loss and emotional distress, negligence, conspiracy to injure and psychological injury.[60]
(f) The plaintiffs also contend that, by reason of breach of the Settlement Agreement and failure to notify the Court to correct the record, Nationwide News is no longer entitled to the costs order.[61]
60 Mr Nikolic's 7 December 2022 affidavit exhibits 48 pages of documents referred to in his submissions.
61 The plaintiffs' third submissions contain the following additional points of relevance to my present task.
(a) The submissions state the following concerning the Deputy Prothonotary's letter of apology and its close connection with the appeal:
A.4 On 10 August[62] 2022, the plaintiffs filed a Notice of Appeal from Associate Judge in Court (the Appeal Application).
A.5 The Appeal Application was filed by the first plaintiff, on the basis that the Prothonotary of the Court apologised to him for:
A.5.1 failing to provide reasonable adjustment on the ground of his disability access prior to commencing the directions hearing on 25 September 2019...;
A.5.2 failing to act and or inquire as to the veracity of his supplementary affidavit dated 29 December 2019...;
A.5.3 failing to respond the December Affidavit prior to publishing a decision of [Daly AsJ] made on 9 April 2020 ...:
A.5.4 rejecting his previous appeal application in the Earlier Proceeding,
(collectively, the Court's Apology).
(b) The submissions also repeat the connection between the omission of the Google CSE from the judgment of Daly AsJ and breach of the Settlement Agreement by Nationwide News.[63]
(c) Further as to the alleged breach of the Settlement Agreement, the submissions allege that Nationwide News breached the Settlement by re-displaying the image under the plaintiff's name from The Australian's website on the Google website in Australia and in Germany, characterising these matters as subsequent breaches of the Settlement.[64]
(d) The submissions introduce a new defined term, the 'UCE'. They suggest it was only mentioned in communications by Nationwide News on 18 May 2021 and should have been mentioned in earlier affidavits. They state in this regard:
on 18 May 2021, the defendant mentioned that the image linked the first plaintiff's personal photograph and his business from [The Australian's website] on the Google Website via underlying coding encryption (the UCE), demonstrating that the defendant's knowledge of the fact that was not declared in its sworn affidavits ... in the Earlier Proceeding.... [65]
...if the defendant had disclosed a particular of the UCE and or the Google CSE to the First Matter Hearing, the Judgement would have delivered a different consideration, decision and outcome.[66]
(e) In terms similar to paragraph 22 of the plaintiffs' first submissions, extracted in paragraph 58(c) above, the plaintiffs' third submissions state that:
'... the December Affidavit informed the Court that the Google CSE had not been declared in the Defendant's Sworn Affidavits..., because the first plaintiff was:
C.1.1 unable to take notes or refer to the documents while watching an Auslan interpreter, as a result, the first plaintiff missed some of what was said in the First Matter Hearing. This was determined after the First Matter Hearing by reading the transcript;
C.1.2 missed these statements during the First Matter Hearing due to access issue set out in C.1.1, above, as a result of the Court declining to provide deaf awareness training prior to commencing the First Matter Hearing.
62 The plaintiffs' third submissions otherwise essentially repeat the points already made in earlier submissions, with some additions as to the forms of injury and harm the first plaintiff claims in the proceeding.
63 Pausing here, I note that the content of paragraph A.5 of the plaintiffs' third submissions is not consistent with the Deputy Prothonotary's letter extracted in paragraph 40 above. I am not aware of any other apology letter that could be relevant to this proceeding. I prefer, and place reliance on, the text of the letter as I have reproduced it. I place no reliance on the description of the letter in paragraph A.5 of the plaintiffs' third submissions.
64 There is some ambiguity in the description given of the 'December Affidavit' in the plaintiffs' third submissions at subparagraphs C.1.1 and C.1.2, extracted in paragraph 61(e) above. The 'December Affidavit' is defined as Mr Nikolic's 29 December 201[67]affidavit.67 That affidavit contains no content resembling the content of subparagraphs C.1.1 and C.1.2. However, I do not read the extract from the plaintiffs' third submissions above as asserting that the December Affidavit contained any such content; rather, I read the extract as merely giving the reasons Mr Nikolic had in mind when making that affidavit, or to the causal factors that led to that affidavit being made.
65 The plaintiffs' fourth submissions are essentially a restatement of their earlier submissions, although they introduce various ground numbers as a way of arranging the key points arising in the submissions. In addition, I note that the plaintiffs' fourth submissions state that Daly AsJ was 'made aware' of the Google CSE not only from Mr Nikolic's affidavit of 29 December 2019 but also on other occasions in February 2020, March 2020 and April 2020.[68]
66 The plaintiffs' fourth submissions also state that there was an exploitation of Mr Nikolic on the ground of his disability during the proceeding before Daly AsJ in that:
(b) On or before the date of the Judgement, the AsJ did not take steps to:
(i) act and or inquire as to the veracity of the December Affidavit which raised disability access issues.
67 I will explain how I interpret this submission. I do not consider that the December Affidavit 'raised disability access issues' in the sense of expressly raising them in the text of the affidavit.[69] I do not read the submission that way. Rather, the plaintiffs are submitting that the Court's failure to address the affidavit raises disability access issues.
68 Also, I note that the plaintiffs' fourth submissions describe the pressure brought to bear on Mr Nikolic to sign the Settlement Agreement as 'duress'.[70]
69 Mr Nikolic's 30 April 2024 affidavit deposes to an email sent by Mr Nikolic containing a formal notice letter to a solicitor acting for Nationwide News, copies of which were sent to the court and my chambers. The notice or letter stated that Nationwide News had breached the settlement by redisplaying images from Nationwide News' URL under the plaintiff's name on the Google website in Australia and Germany, failing to act on a breach of the settlement within a timely manner during the period December 2021 to January 2023, and failing to respond to the plaintiffs regarding a breach of the settlement prior to the commencement of this application.
70 The length of delay is very great: the notice of appeal was filed about two years and four-and-a-half months late, and Mr Nikolic's summons for an extension of time to appeal from Daly AsJ's decision on 9 April 2020 was filed a few months after that.
71 Nationwide News submits that the length of delay is such that the extension should not be granted. Nationwide News submits that there is no cogent explanation for that delay.
72 However, Mr Nikolic does offer an explanation. In his submissions, he says that, before the Settlement Agreement was made on 30 April 2020, he attempted to appeal the orders of Daly AsJ. He says the attempted appeal was on the basis that the reasons for judgment of Daly AsJ omitted any reference to the 'Google CSE'. Mr Nikolic says the appeal was rejected by an officer of the court. Mr Nikolic also says that he had to accept the settlement and enter into the Settlement Agreement in order to avoid bankruptcy.[71]
73 Without adjudication of the factual assertions in the preceding paragraph, I will assume they are true and turn to the other factors I must consider.
74 Nationwide News does not claim any particular prejudice.
(c) Whether the proposed appeal lacks merit and is futile
75 Nationwide News submits that the appeal so lacks merit as to be futile by reason of the Settlement Agreement and the appeal grounds themselves.
76 An appeal from a determination of an Associate Judge to a Judge in the Trial Division is an appeal by way of rehearing which, in the absence of further evidence or a change in the law, ordinarily requires the appellant to show error on the part of the Associate Judge before appellate power may be exercised.[72] It is not a rehearing de novo.[73] On such an appeal, the Judge has all the powers of the Associate Judge who heard the matter at first instance.[74] The Judge hearing the appeal has the power to give any judgment or make any order that ought to have been given or made, and make any further or other order as the case may require.[75] However, generally speaking, the task on such an appeal is the correction of error.[76]
77 Where, as here, an Associate Judge has given summary judgment, on an appeal to a Judge the Court must be satisfied that the Associate Judge's order was the result of legal, factual or discretionary error before the appeal will be allowed.[77]
78 Is there any real prospect of the plaintiffs being able to demonstrate that the judgment of Daly AsJ was affected by error? It would not be enough for the plaintiffs to establish that some aspect of the reasoning of Daly AsJ might be incorrect, unless the error could have affected the outcome. What matters is whether the plaintiffs can demonstrate a basis for concluding that the outcome might be different as a result of error.
79 I have concluded that the plaintiffs would not be able to establish material error by Daly AsJ for five reasons.
(a) First, the parties entered into the Settlement Agreement, which bars any appeal, and there is no reason to conclude that the Settlement Agreement does not remain binding on its terms.
(b) Second, even without taking into account the Settlement Agreement, the grounds in the notice of appeal have no real prospects of succeeding, and an appeal on those grounds would be futile.
(c) Third, to the extent that plaintiffs seek to appeal because of an alleged failure by Nationwide News to disclose facts relating to its involvement in the operation of the Google Custom Search Engine (Google CSE) (the Google CSE matter) or relating to underlying code encryption (the UCE matter), there is no real prospect that the appeal could succeed on those bases either.
(d) Fourth, to the extent that the plaintiffs seek to appeal because of difficulties in arranging an Auslan interpreter for the hearing before Daly AsJ (a matter acknowledged in an apology letter from a Deputy Prothonotary), there is no real prospect that the appeal could succeed on that basis either. Although the process of arranging the Auslan interpreter's services were suboptimal, in the end an Auslan interpreter was present at the hearing. There is no evidence that any particular error in interpretation occurred, or that anything occurred that could have affected the conclusions that were reached by Daly AsJ.
(e) Fifth and finally, to the extent that the plaintiffs are perhaps seeking to appeal on the basis that Nationwide News, by republishing the modified cartoon in the article, associated them with offending material on the unauthorised Twitter handles extending beyond the modified cartoon, the appeal cannot succeed on that basis either.
80 I address each of those reasons under the headings that now follow.
81 A release and bar of the kinds in the Settlement Agreement cll 4 and 6 operate as a bar to the proposed appeal and would constitute grounds on which any such appeal would be summarily dismissed, meaning that the proposed appeal has no prospects of success.[78]
82 The only possible arguments against this would be an argument that the Settlement Agreement never came into effect or is unenforceable by reason of the circumstances in which it was made; or that Nationwide News has breached a fundamental term or condition of the Settlement Agreement, enabling the plaintiffs to terminate it or otherwise rendering the release ineffective.
83 I first consider whether there is any basis for concluding that the Settlement Agreement never came into effect or is unenforceable by reason of the circumstances in which it was made.
84 In this regard, I note again that Mr Nikolic submits that he entered into the Settlement Agreement because of the risk of becoming bankrupt if he did not. The plaintiffs' fourth submissions refer to this as 'duress'. The only basis apparent from the plaintiffs' submissions in this regard, on which it appears that the Settlement Agreement might be argued to be void or voidable from the outset, is that it was obtained as the result of economic duress.
85 The law will not give effect to an apparent consent that was induced by pressure exercised upon one party by another party when the law regards that pressure as illegitimate.[79] As the Federal Court (Beach J) has recently observed, 'people often lack some freedom of choice in commercial situations. But economic duress requires a different assessment'. The 'proper approach is to ask whether any applied pressure was illegitimate, and whether such pressure induced the victim to enter into the relevant contract'.[80] After examining the authorities, Beach J accepted the test for illegitimacy expressed by McHugh JA (as his Honour then was) in 1988, with some refinements.[81] McHugh JA explained that test in the following way, which suffices for present purposes:
Pressure will be illegitimate if it consists of unlawful threats or amounts to unconscionable conduct. But the categories are not closed. Even overwhelming pressure, not amounting to unconscionable or unlawful conduct, however, will not necessarily constitute economic duress.[82]
86 There is no evidence of illegitimate pressure here. Any pressure Mr Nikolic felt to enter into the Settlement Agreement by reason of the risk of bankruptcy cannot be regarded as duress.
87 I turn now to whether the plaintiffs have made out a case that the Settlement Agreement has been breached by Nationwide News.
88 In his submissions Mr Nikolic claims that, by the Settlement Agreement, the parties agreed that Nationwide News would remove the article from its website (described as the 'TA Website'), that Nationwide News would remove any links that linked the plaintiffs to the image content from the TA Website on the Google Website, that the parties would bear their own costs of the proceeding, and that the plaintiffs would not file an appeal.[83]
89 In subsequent supporting submissions, Mr Nikolic claimed that Nationwide News was to remove 'links' on the internet as follows:
... will remove any links that linked the first plaintiff's personal photograph and his business to the image content the Twitter Handle from the TA Website on the Google Website via underlying coding encryption (the UCE)'.[84]
90 Mr Nikolic's submissions claim that Nationwide News breached the settlement agreement by failing to remove links and underlying coding encryption.
91 The plaintiffs also submit that the Settlement Agreement was breached by Nationwide News 'republishing' the article.[85]
92 Nationwide News disputes this. Nationwide News relied on an affidavit of its solicitor, Mr Quill. Mr Quill exhibited the Settlement Agreement. It relevantly required Nationwide News to do the following:[86]
Within 7 days of the execution of this Agreement by the Parties, Nationwide News will remove the Amended Publication from The Australian's website and will use its best endeavours to perform a cache flush to remove any underlying coding encryption that may link either Nikolic of IDAZ09 to the Amended Publication.
93 There is a significant difference between what Nationwide News promised to do in the Settlement Agreement and what the plaintiffs allege Nationwide News failed to do. Nationwide News did not promise to ensure that there would be no remaining linkage between the plaintiffs and the article or amended article on any Google search results. It promised to use its best endeavours to achieve this via a particular process. The fact that the plaintiffs can show that linkages remained do not prove that Nationwide News broke this promise. That is because of the complexities involved in the operation of the Google Seach engine.
94 I rely in this regard upon the description of the World Wide Web and related matters including the role of search engines given by Richards J in Defteros v Google LLC,[87] adopted in the High Court's decision in Google LLC v Defteros.[88] Her Honour explained that search engines respond to a user's search query by identifying information available on the Web using two types of programs. The first is a fully automated program that continually 'crawls' and recrawls the Web, extracting and storing data relating to webpages. The second is a program that continually organises that data into an index that may more easily be searched when the user makes a search request. When a user enters a search query, 'the words from that query are evaluated by a series of algorithms, against the information in the index, as it is at that precise point in time'. There are various things that affect the outcome of the search:
The search result that Google presents to the user is a list of links to webpages, ranked according to relevance, as estimated by the ranking algorithm. The ranking program uses various 'signals' or clues to identify what results the user is most likely looking for. Some of the signals used by the Google search engine are:
(a) the number of times one or more of the user's search terms appear on the webpage, as indexed by the indexer program;
(b) how often other web pages link to that web page, and the importance of the linking webpages (this signal is known as PageRank);
(c) how recently the content of that webpage was published or updated (freshness);
(d) evaluating the order in which the search terms appear on a webpage;
(e) the location of the user, as determined from the user's Internet Protocol or IP address; and
(f) the user's previous search history.
95 From this description, is clear that there may have been ways in which the Google search engine continued to link the plaintiffs to the article, or the article to the plaintiffs, without Nationwide News being able to prevent that from occurring, even after employing its best endeavours to do so.
96 In short, Nationwide News did not undertake in the Settlement Agreement to prevent any such linkages from remaining. It promised only to remove the amended article from its website and to use its best endeavours to perform a cache flush to ensure remaining linkages were removed.
97 I am by satisfied on the basis of Mr Quill's affidavit that Nationwide News did these things.
98 The plaintiffs have not demonstrated that Nationwide News breached the Settlement Agreement.
99 Lest there be any suggestion that the mere making of the costs order by Daly AsJ was itself evidence of some kind of breach of the Settlement Agreement by Nationwide News, I note that this is not so: Nationwide News agreed not to enforce any costs order it may receive. It did not promise to forbear from obtaining such an order.[89] In any event, the plaintiffs are not making any such argument. I mention it here only for completeness.
100 The releases and litigation bar in the Settlement Agreement therefore render the appeal futile.
(2) Appeal grounds in notice of appeal lack merit
101 In any event, even if the effects of the Settlement Agreement could be ignored, I am satisfied that the grounds in the appeal notice have no real prospects of success, and that the proposed appeal would be futile for that reason also.
102 The grounds in the appeal notice are said to relate to two questions of law.
103 The first question of law, and the grounds that relate to it, are set out as follows in the notice of appeal:
C.1. whether the learned Supreme Court erred in law by admitting into evidence four heresay statement of the first plaintiff's supplementary affidavit made on 29 December 2019 (the December Affidavit).
...
D.1. admitting the December Affidavit into evidence, when the defendant has not served reasonable notice in writing of its intention under s 67 of the Evidence Act 2008 of Victoria (the Evidence Act).
D.2. admitting the December Affidavit into evidence, when the defendant had not adduced any evidence of undue expense or undue delay of reasonable impracticability of calling the December Affidavit as required by s 64(2) of the Evidence Act.
D.3. failing to exclude the December Affidavit under s 135(a) of the Evidence Act, when the evidence contained in those statements was conditional upon an application by the plaintiffs which had not yet been granted.
D.4. failing to cooperate with the first plaintiff on the ground of his disability access knowingly the December Affidavit was not taken to act and or inquire prior to the Judgement giving pursuant to sections 10 to 31 of the Civil Procedure Act 2010 of Victoria.
104 The second question of law, and the grounds that are said to relate to it, are set out as follows in the notice of appeal:
C.2. whether the learned Supreme Court erred in law by admitting into evidence, or if not admitted, then in rely upon his reasons, transcript of the directions hearing on 25 September 2019 (the First Matter Hearing).
...
D.5. failing to provide reasons for admitting the transcript of the First Matter Hearing into evidence.
D.6. threatening to bankrupt the first plaintiff, under pressure to enter the Settlement within seven days, knowingly the defendant's sworn affidavits were not taken to correct the record of the First Matter Hearing as soon as practicable prior to the Costs Order making. A copy of which is attached Schedule.
105 As to the first question and its grounds, the affidavit defined as the December Affidavit was an affidavit of Mr Nikolic, on which he relied. Even if hearsay statements in it were taken into account by Daly AsJ, it is not explained how that would have been prohibited: s 75 of the Evidence Act 2008 provides an exception from the hearsay rule in interlocutory proceedings.
106 Further and more importantly, it is not explained how they could have affected her Honour's conclusions.
107 I will assume that the gist of this ground is a complaint that Daly AsJ heard from counsel for Nationwide News, and received the 24 September 2019 affidavit of Ms McGeoch, that contained hearsay statements on which Nationwide News relied relating to the workings of the Google search engine, and Nationwide News having no involvement in it.[90] Further or alternatively, the complaint may also include Daly AsJ's references to Ms McGeoch's 8 October 2019 affidavit.
108 Even if so, Daly AsJ's Reasons set out the reasoning leading to her conclusions, and it is clear from that reasoning that any such evidence could not have affected her conclusions. Her Honour's critical reasoning is summarised in paragraph 34 above. Even if Nationwide News had expressly associated the plaintiffs with the article or amended article, that would have made no difference.
109 It follows that the grounds in support of the first question in the notice of appeal cannot lead to the appeal succeeding.
110 As to the second question and its grounds, the focus of these matters is that the directions hearing conducted on 25 September 2019 was admitted into evidence. There is also a reference to the defendant pressuring Mr Nikolic to enter into the Settlement Agreement while knowing that there was a need to correct the record.
111 The transcript of the entirety of the hearing before Daly AsJ on 25 September 2019 was in evidence before me. I have read it. I can see that the first nine pages consist of a directions hearing in the first proceeding. There is no indication in the Reasons that her Honour relied on information conveyed during that directions hearing in any impermissible way in this proceeding. Her Honour did not, for example, reach conclusions that the claims of defamation and injurious falsehood in this proceeding were hopeless on the basis of anything that was said during that directions hearing.
112 I will assume that the second question and its first ground extends to Daly AsJ having taken into account the transcript of the hearing on 25 September 2019 more generally. For the reasons I have set out in relation to the first question and its grounds, this would not demonstrate viable grounds of appeal either.
113 In short, I cannot discern any basis for attributing appealable error to her Honour in connection with the second question and its first ground in the notice of appeal.
114 The second ground under the second question relates to two other topics, neither of which could prove error of the kind described in the first question.[91]
115 Strictly speaking, that means that the application for an extension of time must fail. However, out of abundant caution, I have carefully considered all the submissions filed by Mr Nikolic to discern any other potentially viable grounds or bases of appeal.
116 My conclusion is that there are no such grounds or bases. I will briefly explain why this is so. In what follows, I address expressly only the matters that seemed to me to be given most prominence in the plaintiffs' material and submissions. However, I have considered all the points that were raised, even those not expressly covered in what follows.
117 Reading the various submissions filed by Mr Nikolic and IDAZ09 Pty Ltd, they indicate an expectation that the proposed appeal would turn principally on a matter described as the 'Google CSE' matter. This term is explained in the plaintiffs' submissions. As already mentioned, 'CSE' stands for [Google's] 'Custom Search Engine'.[92] I will briefly recap some of the points already identified, that I have drawn from the plaintiffs' material and submissions.
118 The plaintiffs contend that at the hearing of the proceeding before Daly AsJ in September 2019, the defendant's submissions in support of its summons for summary dismissal were based on an assertion that Nationwide News was not involved in Google's search engine, and that they did not disclose any involvement in or use of the Google CSE, and this was likewise not disclosed in any of the defendant's affidavits.[93]
119 Mr Nikolic's 29 December 2019 affidavit was filed by the plaintiffs after Mr Nikolic reviewed the transcript of the hearing on 25 September 2019 to inform the Court about the Google CSE matter, and because it had not been declared in any of the defendant's affidavits.
120 In short, the Google CSE matter is a claim that Nationwide News was actively involved in linking the article (or amended article) and the plaintiffs through the Google CSE and failed to disclose this to the plaintiffs, or to the Court, at any time prior to the filing of Mr Nikolic's affidavit on or about 29 December 2019.
121 The plaintiffs further point out that Daly AsJ did not address Mr Nikolic's 29 December 2019 affidavit or the Google CSE matter in her Honour's Reasons, and contend that this raises disability access issues. They also make submissions that there were failures to make reasonable adjustments for Mr Nikolic's disability, based also on issues relating to Auslan interpretation (a matter I address further, below).
122 One of the issues I considered was whether the Google CSE matter complained of by the plaintiffs, or any failure to make adjustments for Mr Nikolic's disability in failing to take the Google CSE matter into account, could lead to the proposed appeal having prospects of success.
123 It is necessary to consider the relevance attached to the Google CSE matter in the claims Mr Nikolic and IDAZ09 Pty Ltd make in the proceeding.
124 The legal significance the plaintiffs attach to the Google CSE matter appears from their submissions. They argued that the defendant was not entitled to an 'immunity' in the form of a 'duty to republish' under Part IV of the Defamation Act 2005 because 'the defendant violated the TOS by linking the Content from the Twitter Handle to the plaintiffs ... by providing keywords to the Google CSE'.[94] The plaintiffs referred in particular to s 32(2)(b) of the Defamation Act, which is an element of the defence of innocent dissemination.[95]
125 Further, as to the Google CSE matter, the plaintiffs rely on Google LLC v Defteros [2022] HCA 27. The plaintiffs contend that either the defendant in this case or Google itself must have generated the keywords which linked the plaintiffs to the amended article. The plaintiffs contend that if the defendant in this proceeding performed this function, then the appeal should be allowed. If not, then 'the defendant is entitled to sue Google LLC'.
126 On my analysis of Daly AsJ's Reasons, none of these arguments demonstrate an arguable ground of appealable error affecting her Honour's conclusions.
127 It can be seen from the Reasons that Daly AsJ's determination was not based on Nationwide News having a duty to republish, being an innocent disseminator or establishing any other defence.
128 Rather, the key conclusion of Daly AsJ was that none of the imputations pleaded by the plaintiffs as arising from the publication by Nationwide News of the article were capable of being defamatory.[96]
129 If the article was not capable of being defamatory, then no matter what Nationwide News might have done to link the articles with the plaintiffs so that that the plaintiffs would likely show up in searches of the article (or vice-versa), no claim in defamation could be made out.
(a) Daly AsJ concluded that the modified form of the cartoon in the article including the speech bubble stating 'NO' was not capable of being seen as defamatory of the person who modified or posted it;
(b) so, even if Nationwide News took active steps to link Mr Nikolic and IDAZ09 Pty Ltd through the Google CSE to the article, that would not undermine the conclusion reached by Daly AsJ.
131 The arguments based on the Google CSE matter therefore do not establish that that matter could lead to a successful appeal. Google LLC v Defteros [2022] HCA 27 has no relevance to this conclusion.
132 For completeness, nothing in any of these arguments could affect the conclusion that the article (or amended article) lacked the necessary connection to the plaintiffs' business to be actionable as an injurious falsehood, either.
133 There is no other apparent basis on which it appears the Google CSE matter could lead to a successful appeal.
134 The plaintiffs also made related and similar arguments about the UCE matter. They said that there were links between the plaintiffs and the article (or amended article) by reason of underlying code encryption between the two which meant that the plaintiffs were likely to appear in the results of Google CSE searches of the article (and vice-versa). The plaintiffs seemed to suggest that Nationwide News had not disclosed this until 18 May 2021 whereas it should have been disclosed in Nationwide News' affidavits before Daly AsJ.
135 Insofar as the plaintiffs seemed to be suggesting that the UCE matter had not been mentioned by Nationwide News until 18 May 2021, this would not be correct. In fact, the Settlement Agreement itself refers to underlying code encryption and implies the possibility that there were links through underlying code encryption between the article and the plaintiffs. I infer from this that Nationwide News made references to the possibility that UCE might be a cause of the plaintiffs being shown in Google searches of the article (and vice-versa) at about the time the Settlement Agreement was negotiated and made.
136 Further, what matters more is that the UCE matter could not have had any impact on the Reasons of Daly AsJ. For the reasons I have explained by reference to the Google CSE matter, even if the UCE matter had been concealed from Daly AsJ, it could have made no difference to the conclusions reached by Daly AsJ. Her Honour's conclusion was that the amended article was not capable of being seen as defamatory of the person who posted the modified cartoon. And it was not of or concerning the plaintiffs' business. The UCE matter can therefore have had no impact on her Honour's critical reasoning.
(4) Difficulties in arranging Auslan interpreters and apology letter from the Court
137 Another matter relied upon by the plaintiffs is the letter of apology from the Deputy Prothonotary relating to the difficulties Mr Nikolic encountered in arranging an Auslan interpreter. I have also considered whether this could lead to the success of the grounds in the notice of appeal, and have concluded that there is no real prospect that it could do so.
138 Although, as acknowledged in the letter from the Deputy Prothonotary, the process Mr Nikolic went through to arrange an Auslan interpreter's services was difficult, in the end an Auslan interpreter was present at the hearing. The Court should have arranged, and paid, for that to occur, and failed to do so. However, fortunately, Mr Nikolic was able to arrange one himself. That is what counts when it comes to considering whether any appealable error might have occurred.
139 There is no evidence that any particular error in interpretation occurred, or that anything else occurred relating to the involvement of the Auslan interpreter that could have affected the conclusions that were reached by Daly AsJ. Mr Nikolic has submitted that his 29 December 2019 affidavit was made because of the difficulties he had following the hearing on 25 September 2019 and his need to watch the Auslan interpreter. However, even if I were to assume that he might have been able to make a submission about the Google CSE matter at that hearing, it would have made no difference to her Honour's critical path of reasoning, leading to her granting summary judgment to the defendant. As I have already explained, that path of reasoning could not have been affected by the Google CSE matter.
(5) Association with offending material on the unauthorised Twitter handles
140 Daly AsJ found that the publication of the article (or amended article) could not defame the plaintiffs or give rise to an injurious falsehood about them. But what of the concern Mr Nikolic has of being associated with the other offensive posts on the unauthorised Twitter handles? Her Honour also addressed this possibility, dismissing this as a basis for a claim of defamation.[97]
141 For completeness, I have also considered whether the appeal could succeed on the basis of an argument that Nationwide News defamed the plaintiffs, or injured them by injurious falsehood, by associating the plaintiffs with other offensive tweets posted on the unauthorised Twitter handles.
142 I have concluded that there are no real prospects of the appeal succeeding on such a ground, either. Nationwide News did no more than publish the article (and, later, the amended article). It did no more than refer to one of the unauthorised Twitter handles, and the modified cartoon having been posted on it. This is not capable of being characterised as the publication of an association between the plaintiffs and any other material posted on that handle.
143 For these reasons, the appeal would be futile, and so I will refuse an extension of time in which to bring it.
144 Nationwide News submitted, correctly, that Daly AsJ's costs order is an order of a kind that cannot be appealed except with a grant of leave, pursuant to s 17A(2) of the Supreme Court Act. Nationwide News also correctly submitted that a notice of appeal from such an order was incompetent under Rules r 77.06.2(4), and it would be open to Nationwide News to apply to have it declared as such. Nationwide News pointed out that the plaintiffs had not sought an extension of time in which to seek such leave.
145 Nevertheless, I would have treated the plaintiffs has having impliedly sought such an extension of time, conditional on the success of their application for an extension of time to appeal the substantive orders against them. Had their application for an extension of time to appeal from the substantive orders made by Daly AsJ on 9 April 2020 been successful, I would have gone on to consider whether their implied application for an extension of time for leave to appeal from her Honour's costs order of 1 July 2020 should also be granted, for the same reasons.
146 Now that I have concluded that no extension of time to appeal from her Honour's orders of 9 April 2020 is to be granted, I will not make any order facilitating a grant of extension in time in which to seek leave to appeal from the costs order. In the absence of an extension of time or grant of leave, insofar as the appeal notice purports to appeal the costs order, the notice of appeal is incompetent.
147 I refuse to extend the time, pursuant to r 77.06.2(6), in which the plaintiffs may lodge their notice of appeal from the orders of Daly AsJ made on 9 April 2020.
148 For completeness, it is also appropriate to otherwise dismiss the plaintiffs' summons dated and filed 7 December 2022. Paragraph 1 of that summons sought the extension of time that I have now refused. Paragraph 2 sought an order against the defendant that I regard as contingent upon the outcome under paragraph 1. I will make an order making it clear that the summons is dismissed in its entirety.
149 The outcome is that the orders made by Daly AsJ on 9 April 2020, and her Honour's costs order made on 1 July 2020, remain in place, and the proceeding remains dismissed. The proceeding is not reinstated.
150 For completeness, I should mention one other matter. In the course of my reasoning above, I have referred to various claims the plaintiffs made against lawyers acting for Nationwide News and people who made affidavits. My key conclusion is that, even if those claims were to be accepted, the appeal would be futile. However, I stress that I have made no such findings against any of those people. The factual foundation on which the various allegations were made would not permit any such findings to be made.
151 I will consider any affidavit material or submissions the parties chose to file and serve on the question of the costs incurred in or incidental to this proceeding since the beginning of September 2022. I will make directions in that regard.
[1] Nikolic v Nationwide News Pty Ltd [2020] VSC 98 (Reasons) and associated orders of Daly AsJ made on 9 April 2020. Her Honour later made a costs order against the plaintiffs, on 1 July 2020.
[4] Settlement and Release Agreement dated 30 April 2020, cll 4, 6.
[7] Statement of claim, [25]. See also Reasons, [1].
[13] Transcript 25 September 2019, 89-90.
[16] Reasons [7](a), based on the summary of the facts in the plaintiffs' submissions.
[19] See Reasons, [6] and [7(b)], the latter based on the summary of the facts in the plaintiffs' submissions.
[20] Reasons, [2]. At the same time as delivering these reasons for judgment, I am delivering reasons for judgment in relation to an application by Mr Nikolic and IDAZ09 Pty Ltd in the first proceeding.
[21] Reasons, [7(c)], based on the summary of the facts in the plaintiffs' submissions.
[22] Reasons, [7(d)], based on the summary of the facts in the plaintiffs' submissions.
[24] Reasons, [7(e)], based on the summary of the facts in the plaintiffs' submissions.
[27] Statement of claim [1]-[10], [41]-[44].
[28] Statement of claim [29]-[32], [41]-[44].
[29] Reasons, [7(f)], based on the summary of the facts in the plaintiffs' submissions.
[30] Transcript 25 September 2019, referring to exhibit JHQ-1 to the affidavit of Justin Healy Quill sworn 27 January 2023.
[36] Noted in costs order made by Daly AsJ on 1 July 2020.
[37] Affidavit of Justin Healy Quill sworn 27 January 2023, exhibit JHQ-1, 105-113; Affidavit of Goran Nikolic filed 30 April 2024, exhibit 1, 7-15.
[38] Submissions filed 10 September 2022, [37].
[39] Summons dated and filed 7 December 2022, [1]; 'Affidavit of First Plaintiff' dated and filed 7 December 2022; and 'Submissions for the Plaintiffs' dated and filed 7 December 2022. The Court has also noted the following documents filed before the Judicial Registrar's orders: statutory declaration filed 10 September 2022, 'Submissions' filed on 10 September 2022, 'Supplementary Written Submissions' dated and filed 16 October 2022, and the following filed after the timetable directed by the Judicial Registrar: 'Plaintiffs' simplified outline of submissions in response to the defendant's submissions' filed 30 January 2023 and 'Affidavit of First Plaintiff' filed 30 April 2024. Mr Nikolic has also filed a further summons, dated 24 November 2023, which is not considered in these reasons.
[40] Affidavit of Justin Healey Quill dated and filed 27 January 2023 and Respondent's outline of submissions dated and filed 27 January 2023.
[43] Spanovic v Carter Holt Harvey Ltd [2014] VSCA 240, [4] per Ashley JA (Almond AJA agreeing).
[44] Plaintiffs' first submissions, [10]-[14].
[45] Plaintiffs' first submissions, [18]-[20].
[46] Plaintiffs' first submissions, [22].
[47] Plaintiffs' first submissions, [23]-[26].
[48] Plaintiffs' first submissions, [27]-[28].
[49] Plaintiffs' first submissions, [29].
[50] Plaintiffs' first submissions, [30].
[51] Plaintiffs' first submissions, [32]-[36].
[52] Plaintiffs' first submissions, [37].
[53] Plaintiffs' first submissions, [5], defined the Images as including the photo of the Catholic archbishop, the cartoon in its original form, and also the 'Content' from Twitter Handle, defined as the modified cartoon as attributed to one of the unauthorised Twitter handles.
[54] Plaintiffs' first submissions, [38].
[55] Plaintiffs' first submissions, [42]-[45].
[56] Plaintiffs' second submissions, [1].
[57] Plaintiffs' second submissions, [5].
[58] Plaintiffs' second submissions, [7].
[59] Plaintiffs' second submissions, [8.3], [11].
[60] Plaintiffs' second submissions, [12].
[61] Plaintiffs' second submissions, [13].
[63] Plaintiffs' third submissions, [A.6], [A.7].
[64] Plaintiffs' third submissions, [B.1.4].
[65] Plaintiffs' third submissions, [B.1.5].
[66] Plaintiffs' third submissions, [B.1.7].
[67] Plaintiffs' third submissions, [A.5.2].
[68] Plaintiffs' fourth submissions, [B.3(c)].
[69] Plaintiffs' fourth submissions, [B.4(b)(i)].
[70] Plaintiffs' fourth submissions, [B.6].
[71] Plaintiffs' first submissions, [30].
[72] Oswal v Carson [2013] VSC 355, [11] (Oswal) (Ferguson J, as her Honour then was), citing Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194, [14] (Coal and Allied Operations). See also Wilson v Building Commission of Victoria [2015] VSC 629, [8] (John Dixon J); Weber v Deakin University [2016] VSC 147, [25] (Zammit J).
[73] Oswal, [11], citing Coal and Allied Operations, [14] (Gleeson CJ, Gaudron and Hayne JJ). See Practice Note No 4 of 2012 'Appeals from Associate Judges to a Judge of the Trial Division', [2].
[74] Rules r 77.06.9(1); Re IPO Wealth Holdings No 2 Pty Ltd (in liq); Mawhinney v Giasoumi [2022] VSC 199, [53] (Elliott J).
[76] See Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424, [22], citing: CDJ v VAJ (1998) 197 CLR 172, [111]; Allesch v Maunz (2000) 203 CLR 172, [22]; Coal and Allied Operations, [14]; Crampton v R (2000) 206 CLR 161, [147]. See also Fox v Percy (2003) 214 CLR 118, [20], [27].
[77] Humphris v ConnectEast Nominee Company Pty Ltd [2014] VSC 174, [28], [61] (Ginnane J).
[78] O'Bryan v Lindholm [2024] VSCA 130, [98]-[110] (Kennedy, Walker and Macaulay JJA).
[79] See, for example, the explanation of economic duress given by McHugh JA in Crescendo Management Pty Ltd v Westpac Banking Corporation (1988) 19 NSWLR 40, 45-46.
[80] AHG WA (2015) Pty Ltd v Mercedes-Benz Australia/Pacific Pty Ltd [2023] FCA 1022, [3365]-[3366].
[81] AHG WA (2015) Pty Ltd v Mercedes-Benz Australia/Pacific Pty Ltd [2023] FCA 1022, [3367]-[3389].
[82] Crescendo Management Pty Ltd v Westpac Banking Corporation (1988) 19 NSWLR 40, 45-46.
[83] Plaintiffs' third submissions, [B.1.1].
[84] Plaintiffs' fourth submissions, [B.6(a)(i)].
[85] Plaintiffs' first submissions, [38].
[88] [2022] HCA 27, [11] (Kiefel CJ and Gleeson J, in whose orders Gageler J agreed, as did Edelman and Steward JJ); see also [117]‑-[125] (Gordon J).
[89] See cl 8.1(a) of the Settlement Agreement.
[91] I address those two other topics, whether Mr Nikolic made the Settlement Agreement under duress and whether there was any material non-disclosure or failure to correct the record by Nationwide News, under headings (1) above and (3) below.
[92] Plaintiffs' third submissions, top of page 2.
[93] Plaintiffs' first submissions, [18]-[20].
[94] Plaintiffs' first submissions, [16].
[95] Plaintiffs' third submissions, top of page 2.
Nikolic
Nationwide News Pty Limited [2024] VSC 380
(2000) 203 CLR 194
(2001) 117 FCR 424
(1998) 197 CLR 172
(2000) 203 CLR 172
(2000) 206 CLR 161
(2003) 214 CLR 118
(1988) 19 NSWLR 40