Plaintiff v Defendant

Supreme Court of Victoria|2016-07-25|Before: GARDE J

DEFAMATION - Pleading - Republication on overseas website - Whether natural and probable consequence of original publication - Fourth amended statement of claim struck out.

1 By a writ filed on 16 April 2014, the plaintiff claims damages including aggravated damages from the defendant for defamation ('the current proceeding').[1]

2 The defendant applies by summons[2] to have the fourth amended statement of claim[3] struck out on the basis that it does not disclose a cause of action. The summons also seeks other relief which it is not necessary to consider at this time.

3 The defendant is the Bishop ('the Bishop') of the Diocese of Australia and New Zealand ('the Diocese') of the Serbian Orthodox Church ('the Church'). On 8 February 2011, the Bishop signed a ruling concerning the plaintiff ('the ruling'). When translated from Serbian to English, the ruling says:

Based on the evidence of so far antichrist and antichurch activities of Milorad Trkulja, a self-proclaimed "conjurer", who advertises himself in the Croatian press as a "natural healer" who "removes bad luck, black magic, evil eyes, voodoo, and other curses.."(...) "expert for sex and interpersonal relationships...", and who obviously does not profess the Orthodox religion and our Lord Jesus Christ in accordance with the decisions First and Second Universal Council of the Orthodox Church; as a man who is known to the Orthodox Serbian Church from before as the owner and editor of the antichurch website "Smotra", and as a person who recently announced an indictment against SPC (Serbian Orthodox Church) and HG (His Grace), Bishop Irinej, but also an application for membership in one of our subordinate CSC (Church-School Council), The Ruling Committee of the Australian-New Zealand Diocese and Diocese Council of the Australia-New Zealand Diocese, Novogracanicka Metropolitante, has found necessary to, on the presidential suggestion, by consensus issue the following

DECISION:

Milorad Trkulja is banned for life a membership in all bodies of the Australia-New Zealand Diocese and Diocese for Australia and New Zealand, Novogracanicka Metropolitante.

All Church-School Councils, missionary regions and our subordinate Dioceses to be informed of this Decision in writing.[4]

4 The ruling is signed by the Bishop as President of the Diocesan Ruling Committee and sealed with the seal of the Church. The effect of the ruling is to ban the plaintiff for life from membership of all bodies within the Diocese. The ruling directs that 'All Church-School Councils, missionary regions and our subordinate Dioceses to be informed of this Decision in writing.'[5]

5 By a writ filed on 9 January 2013, the plaintiff claimed damages for defamation from the Bishop ('the 2013 proceeding'). He alleged that the ruling contained false innuendos including innuendos that he:

(iii) owns and publishes an antichrist website; and

6 The 2013 proceeding was issued outside the one year limitation period prescribed in s 5(1AAA) of the Limitations of Actions Act 1958 (Vic). An application by the plaintiff for an extension of time was dismissed by Beach J on 21 May 2013.[6] The plaintiff was unable to satisfy the Court that it was not reasonable in the circumstances for him to have commenced an action in relation to the matter within a year from the date of publication.

7 In the current proceeding, the plaintiff pleads that on or about 15 March 2011, an article entitled 'do not touch the bishop in NATO' ('the article') was published on a website in Germany known as www.novinar.de ('the website').[7] The article is political in character and strongly critical of the Bishop and his administration of Church affairs.

8 There are four main points of note in the article. First, the article features a photograph of President Clinton who was President of the United States of America in 1999 when the North Atlantic Treaty Organisation ('NATO') was engaged in hostilities with Serbia. The Bishop is identified and circled in the photograph. The article then refers to the 'criminal aggression of NATO'. Secondly, the article states that the Bishop 'sharply warned' a priest that 'You do not need to mix politics and the Church' when the priest described the NATO intervention as 'criminal'. Thirdly, the author of the article describes the Bishop as a close friend of the Democratic Party and as 'uproariously laughing' in the courtyard of the Embassy of the United State of America in Belgrade. Fourthly, the article refers to Jasenovac (the location of a concentration camp in World War 2) suggesting that the Allied bombings of Serbia took more victims than were taken in the concentration camp.

9 At the end of the article there is a postscript in Serbian. When translated, the postscript states:

PS How Australian Bishop Irinej Dobrijevic punish Serbs benefactors and founders of the Serbian Orthodox Church in Australia, read the act EUO and the Bishop where the DECISION EUS / EO no. 17/11 of 08 February 2011 says "Milorad Trkulja lifetime ban membership in all bodies of the Diocese of Australia and New Zealand, and of the Diocese of Australia in New Zealand New Gracanica Metropolitanante".[8]

10 The postscript criticises the Bishop for punishing 'Serb benefactors and founders of the [Church] in Australia'. At the end of the postscript there is a reference to the ruling followed by the statement that:

That decision stems from the Sydney Diocesan circles of the Management Committee concerned Eaprhije. The complete decision as a pdf document can be reviewed HERE (click here).[9]

11 The words 'HERE (click here)'are hyperlinked, and when clicked, generate a pdf document containing the ruling.

12 The plaintiff alleges that the article was still being published on 15 March 2016, and that the current proceeding is within time. It is common ground that there is no extension of time to rely upon publication on the website prior to 16 April 2013 (one year prior to the date the writ was filed in the current proceeding).

13 The plaintiff seeks to rely on the principle that the original publisher of defamatory material may be liable for republication of a defamation by another person if the republication by the second person is the natural and probable consequence of the original publication.[10]

14 The plaintiff does not suggest that the Bishop had any influence or sway over the website. Nor does the plaintiff allege that the Bishop requested, authorised, or knew of the publication on the website, or that the owner or controller of the website was under any obligation or beholden to the Bishop in any way.

15 Rather, the plaintiff seeks to contend that it was the natural and probable consequence of the publication of the ruling within the Diocese that it would appear on the website. The plaintiff intends to allege that the website publishes news and current affairs articles of interest to Serbian people, and that Australians of Serbian extraction have downloaded the article and identified the plaintiff in Australia, and in Victoria.

16 Clearly, there are a number of fundamental legal and factual issues concerning the plaintiff's case. They include:

(2) whether the defences under the Defamation Act 2005 (Vic) are available to the Bishop;

(3) whether the voluntary act of an unidentified third party in sending or uploading the ruling to the website breaks the chain of causation;

(4) whether the alleged republication was the natural and probable result of the original publication;

(5) whether the Bishop is responsible for the republication of the alleged defamatory statements by a third party overseas; and

(6) the significance of the fact that the ruling as originally published within the Diocese is not actionable.

17 It is a fundamental principle that a party must be made aware of the nature of the case that the party is called upon to meet.[11] The object of particulars is to make the party's case plain so that the other side may know what are the issues of fact to be investigated at the hearing.[12]

18 The need to fully and carefully plead and particularise a claim in defamation founded in repetition or republication is well described in Sims v Wran,[13] where Hunt J said:

Where a prominent politician such as the defendant makes a statement at a press conference, it may be taken without doubt that the natural and probable result of his act will be that his statement will be republished in the media, thereby making him responsible for that republication: ... and usually in whatever form in which that republication takes place: ... But, if the plaintiff intends to complain separately of that republication, he must plead each such republication in haec verba as a separate paragraph in his statement of claim, to enable the defendant to plead to it whatever defence may be appropriate to that particular publication.

On the other hand, as I say, a plaintiff is entitled if he wishes to complain only of the original publication, but to seek to recover as a consequence of that original publication the damage which he suffered by reason of its repetition or republication where the defendant is responsible for that repetition or republication: ... But, if the plaintiff intends to do so, he is obliged to make his intention clear in his statement of claim: ...[14]

19 A second informative case as to the pleading of claims of repetition or republication is Habib v Radio 2UE Sydney Ltd,[15] where the New South Wales Court of Appeal said:

Nevertheless, an original publisher of defamatory matter may be liable for its republication where the republication was the natural and probable result of the original publication: ... In those circumstances, a plaintiff is entitled to complain only of the original publication, but to seek also to recover as a consequence of that original publication, the damage the plaintiff says was suffered by reason of its repetition or republication where the defendant is responsible for that repetition or republication: ...

The question whether the original publisher is liable for the voluntary republication of its defamatory statement or for the damage its republication caused is the same causation question which arises in "any other tort case where it is sought to make the defendant liable for harm which is directly attributable to the voluntary act of a third person": ...

Thus, because a plaintiff seeking to recover damages from an original publisher of defamatory matter is seeking to establish that the republication of that matter by a third party was the foreseeable consequence of its original publication and did not break the chain of causation so as to constitute a novus actus interveniens, it is appropriate when pleading such a case to plead that the original publication "caused" the republication. I shall refer to the latter category of a complaint of republication as a case of "republication as damages".[16]

20 Pivotal issues that must be fully addressed by pleading the material facts and all necessary particulars in a republication claim of the present nature include that:

(1) the original publication caused the republication;

(2) the republication was the natural and probable consequence of the original publication; and

(3) the republication caused the plaintiff to suffer damage.

21 Leave was granted by Dixon J on 22 March 2016 for the plaintiff to seek to rely on a further amended statement of claim.

22 Omitting claims relating to damages, the fourth amended statement of claim states:

1. The plaintiff is also known as Michael Trkulja. The plaintiff is:

(a) Show Promoter of musical and entertainment event from the former Yugoslavia to Australia;

(b) An organiser and leader of the Yugoslavia Community within Australia;

(d) Well known within the Serbian Community in Australia and former Yugoslavia.

2. The defendant is also known as Mirko Dobrijevic. The defendant is a USA citizen who worked as a Serbian priest in Cleveland USA and in 2007, the Serbian Orthodox Churches SV Sinod in Belgrade Serbia appointed the Bishop of the Serbian Orthodox Church in Australia and New Zealand.

3. On or about 15 March 2011, the defendant published or caused to be published on website www.novinar.de the article "Do not touch the bishop in NATO!", of and concerning the plaintiff, the matter set out in Annexure A, ("the article").

3.1 On 8 February 2011 the defendant published a letter in Serbian appearing as the second document in Annexure B. An English version which appears in Annexure A (the letter).

3.2 The letter was published to the Serbian Orthodox Church "St Archdeacon Stefan Church Committee Keysborough Victoria" (the plaintiff's own Church) and to all other (some 40) Serbian Orthodox Churches, Schools and Committees in Australia and New Zealand.

3.3 The letter contained infamous allegations of and concerning a well known member of the Serbian Community and Yugoslavian community.

3.4 The natural and probable consequence of the publication of the letter is that it would be posted up and republished by Serbian news outlets in Serbia and Australia.

3.5 "Novinar Online" is a website which publishes news and current affairs, articles of interest to Serbian people including Australia of Serbian extraction.

3.6 The website of "Novinar Online" is www.novinar.de (the website).

3.7 The website is viewed by Australians of Serbian extraction and articles published by Novinar are the subject of discussion within the Serbian community in Australia.

4. The article towards its end includes a 'P.S.' specifically referring to the plaintiff which refers to a decision No. 17/11 of 08/02/2011 of the Sydney Diocesan and asserts that "The complete decision as a pdf document can be viewed HERE (click here". When clicked the article in Serbian appears. The English translation appears in Annexure A.

5. The article continues to be published as at 15 March 2016 on the world wide web at the pleaded website. The continuing publication of the article and letter is a republication of the original publication of the letter for which the defendant is responsible.

6. The article is defamatory of the plaintiff in its natural and ordinary meaning and conveys the following defamatory meanings of and concerning him:

(iii) owns and publishes and antichrist website "Smotra"

7. The article has been downloaded from the world wide (website www.novinar.de) and read by persons resident in the State of Victoria and the other States and Territories of Australia and other places particulars of which will be provided. The persons who have downloaded the article and identified the plaintiff include: [names are listed].

8. The plaintiff will invite this Honourable Court to infer that the article has been downloaded by a large but unidentifiable number of other persons during the period between March 2011 and March 2016.[17]

23 Counsel for the defendant advances numerous criticisms of the fourth amended statement of claim. While admitting that there is an error in the second sentence of paragraph 4 of the fourth amended statement of claim, which should read 'When clicked the letter in Serbian appears', and accepting that the claims made in the pleading must be confined to publication on the website on or after 16 April 2013, Senior Counsel for the plaintiff seeks to uphold the fourth amended statement of claim.

24 Turning to the fourth amended statement of claim, I am on the view that paragraph 3 must be struck out. It suffers from many defects:

(1) In the opening three lines, the plaintiff purports to allege that the Bishop published the article or caused the article to be published on the website. This allegation is embarrassing and misconceived. Contrary to s 18(d) of the Civil Procedure Act 2010 (Vic) this allegation has no proper basis in the factual and legal material available to the plaintiff. The plaintiff does not say that the website is under the Bishop's control or authority. It is not suggested that the Bishop or anyone under his authority published or caused the article to be published. The article is in fact highly critical of the Bishop, including the postscript.

(2) No allegation has been made as to how the ruling within the Diocese came to be published on the website.

(3) Pivotal allegations that should be pleaded as paragraphs of the fourth amended statement of claim are concealed as particulars. They include the allegation that the ruling was published within Australia, and that it was a natural and probable consequence of the publication of the ruling that it would be republished on the website. No facts relating to the publication of the ruling within the Diocese are pleaded.

(4) The allegations are unclear and ambiguous as to whether the plaintiff relies on the initial publication of the ruling within the Diocese or solely on the alleged republication.

(5) Other allegations are mistaken or confusing. It is the article in Annexure B that is alleged to have been published - not that in Annexure A as alleged in the third line.

(6) The 'infamous allegations' and identity of the 'well known member' referred to in particular [3.3] are unclear.

(7) The proprietorship and control of the website is a material fact but has not been pleaded.

(8) Particular [3.4] refers to news outlets in Serbia and Australia, but not in Germany.

(9) The allegations as they relate to Annexures A and B are not clear in relation to:

b) what the hand written deletions, circling, colouring and changes are intended to portray.

(10) The fourth amended statement of claim does not clarify:

a) when the images of the internet material were obtained; and

b) whether what is portrayed are screen shots, printed pages or photocopies.

25 Paragraph 4 is also defective. Accepting that the reference to 'the article' should be to 'the ruling', the status of the pdf document said to be available after clicking in the designated location is unclear.

26 Paragraph 6 is embarrassing, misleading and confusing. It alleges the article is defamatory of the plaintiff. This is not what is meant. The only document said by the plaintiff to be defamatory of the plaintiff is the pdf document.

27 Paragraph 8 reads as a plea to the Court to draw the factual conclusions suggested. The factual allegations that are sought to be advanced should be properly pleaded and particularised in lieu of a plea to the Court.

28 It is well established that in the case of defamatory statements on a website, the defamation only occurs when the defamatory statements are downloaded onto the computer of a person viewing the website.[18] The republications relied on are important material facts and should be fully pleaded with all necessary dates and particulars.

29 There are other general concerns about the way in which the fourth amended statement of claim is drawn:

(1) it variously refers to 'original publication' [5], 'publication' [5] and [9], and 'republication' [5]. It is far from clear what these allegations are intended to convey;

(2) the alleged defamatory publication, the form of publication or republication, and whether publication or republication is relied on, are unclear;

(3) there is a general absence of material facts and particulars as to what in all likelihood will be a strongly contested issue viz whether the republication on the overseas website could be said to be the natural and probable consequence of the publication of a ruling by the Bishop within the Diocese; and

(4) there is no allegation that republication of the ruling on the website (written in Serbian) took place within the time frame set out in s 5(1AAA) of the Limitation of Actions Act 1958 (Vic) to any person in Victoria.

30 There was a further argument made by counsel for the Bishop that the meanings particularised in paragraph 6 are not defamatory of the plaintiff. Limited argument occurred on this issue. Given that the fourth amended statement of claim will not be allowed for the reasons that I have already given, it is not necessary to decide this issue at this time.

31 The fourth amended statement of claim is embarrassing, confused, misleading and will prejudice, embarrass or delay the fair trial of the proceeding. Based on the factual and legal material contained in the fourth amended statement of claim, there is not a proper basis for the allegations made therein.

32 The fourth amended statement of claim will be struck out.

[1] The facts as published in this judgment are the facts as they appear from the fourth amended statement of claim, and may be denied or disputed at trial.

[4] Annexure A to the Plaintiff's Proposed Further Amended Statement of Claim dated 4 April 2016.

[6] Trkulja v Dobrijevic [2013] VSC 261.

[7] Plaintiff's Proposed Further Amended Statement of Claim dated 4 April 2016, p 2.

[8] Annexure A to the Plaintiff's Proposed Further Amended Statement of Claim dated 4 April 2016.

[10] Relying on Patrick George, Defamation Law in Australia (LexisNexis Butterworths, 2nd ed, 2012) 142-143. See also Webb v Bloch [1928] HCA 50; [1928] 41 CLR 331, 363-364; Sims v Wran [1984] 1 NSWLR 317, 320; Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231 [123]-[125]; Cutler v McPhail [1962] 2 QB 272, 298-299; Re Application of Cojuangco [1986] 4 NSWLR 513, 517-518_; Dempster v Coates_ [1990] NSWCA 52 [12]; Wen Yue He v Australian Chinese Newspapers Pty Ltd [2005] NSWSC 253 [3]; Dods v McDonald (No 1) [2016] VSC 200 [15]; Richards v State of New South Wales [2004] VSC 198 [20]-[23].

[11] Supreme Court (General Civil Procedure) Rules 2015 (Vic) rr 13.02(1)(a), 13.10(1), (5). See Bruce v Odhams Press Ltd [1936] 1 KB 697, 712; Trade Practices Commission v David Jones (Aust) Pty Ltd [1985] FCA 228; (1985) 7 FCR 109, 112-114; Mitanis v Pioneer Concrete (Vic) Pty Ltd [ 1997] FCA 1040; Multigroup Distribution Services Pty Limited v TNT Australia Pty Limited [ 1996] FCA 1758 [2].

[12] See Sims v Wran [1984] 1 NSWLR 317, 321; Saunders v Jones (1877) LR 7 Ch D 435, 451; R v Associated Northern Collieries [1910] HCA 61; (1910) 11 CLR 738, 740; Dare v Pulham [1982] HCA 70; (1982) 148 CLR 658, 664; Kelly v Kelly [1950] NSWStRp 19; (1950) 50 SR (NSW) 261, 265; Bailey v Federal Commissioner of Taxation [1977] HCA 11; (1977) 136 CLR 214, 219.

[16] Ibid [123]-[125] (citations omitted).

[17] Plaintiff's Proposed Further Amended Statement of Claim dated 4 April 2016, pp 7-8.

[18] Dods v McDonald, (No 1) [2016] VSC 200 [8]-[9]; Dow Jones & Co Inc v Gutnik (2002) 210 CLR 575 [26], [44].

Limitations of Actions Act 1958(Vic)

Court (General Civil Procedure) Rules 2015

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