Plaintiff v Defendant

3 This proceeding (the 2016 proceeding) was commenced by writ filed 2 December 2016. An amended statement of claim was filed 28 April 2017. By his claim in this proceeding, Mr Defteros alleges that Google published certain 'web matter' between 1 March 2016 and at least 29 November 2016 which was defamatory of him. The web matter concerned is set out in Annexure A to the amended statement of claim and comprehends matter on two web pages. The first element of the web matter is what may be described as the 'search result' returned from the entry into Google's search engine of certain search parameters. A search result consists of the title of the relevant underlying web page originally published by a third party publisher (in this case a newspaper article published in The Age in 2004), some initial text from that underlying web page extracted from the page itself (herein called a 'snippet') and the uniform source locator ('URL') hyper-link for that underlying web page. The second element of the web matter is the underlying web page accessed via the URL within the search result.

4 Mr Defteros alleges he notified Google of the publication of the web matter on 4 February 2016 and that Google failed to remove it within a reasonable time. He alleges that Google became the publisher of the web matter a reasonable time after notification.

5 Google denies that it was the publisher of the web matter, as defined. Further, it says, positively, it was neither the publisher of the search result, nor of the underlying third party document accessed by the hyperlink within the search result, either before or after receiving the notice. Additionally, Google mounts a number of defences, even assuming it was the publisher, namely:

(a) defence of innocent dissemination under s 32 of the Defamation Act;[2]

(b) defence of triviality under s 33 of the Defamation Act;

(c) that the plaintiff consented to the publication; and

(d) defence of qualified privileged under s 30 of the Defamation Act.

6 After the filing and service of the writ in December 2016 usual interlocutory steps took place, including the occurrence of a number of directions hearings. On 4 August 2017 John Dixon J ordered that the proceeding be fixed for trial on 6 August 2018. Further interlocutory steps continued thereafter throughout 2017 and into 2018.

7 On 23 November 2017 Mr Defteros filed the 2017 proceeding and served it on Google on 1 December 2017. On 26 April 2018 Mr Defteros's lawyers first advised Google's lawyers that he would seek consolidation of the 2016 proceeding with the 2017 proceeding. This summons, seeking that order, amongst others, was filed 15 May 2018. The 2016 proceeding has been listed for trial before me, albeit one week later than originally scheduled, now for 13 August 2018, to meet the convenience of the Court.

8 In the 2017 proceeding Mr Defteros also alleges that Google published certain web matter that was defamatory of him. In that case, the defamatory matter complained of consists of four or five separate publications returned by the entry of certain search parameters into Google's search engine, namely:

(a) an image of Mr Defteros accessed via a URL;

(b) a hyperlink from that image to an article published in The Age;

(c) another image of the plaintiff associated with a URL giving rise to that image being: Http://slideplayer.com/slide/1582274/;

(d) a search result referring to an article in Wikipedia; and

(e) the underlying Wikipedia article accessed via the search result hyperlink.

9 As stated, the 2016 proceeding is due to be heard (subject to the outcome of this application) in a little over two months' time. The 2017 proceeding, however, is still in its interlocutory stages and no trial date has been fixed. On current best projections, it is not likely to be heard for at least nine to twelve months hence, possibly longer. The parties seem generally to be in agreement that each matter if heard separately would occupy about five days of hearing (ie. a total of ten days). There is not unanimity between the parties as to the exact amount of saving likely to be achieved if the two proceedings were heard together; one view is that the combined trial would not take more than seven days, the other is that it may take up to nine days.

Should Google's denial of being the publisher be struck out?

10 Rule 23.02 of the Rules confers upon the Court a power to order that the whole or part of a pleading be struck out (or amended) if it does not disclose a cause of action or defence, is scandalous, frivolous or vexatious, may prejudice, embarrass or delay the fair trial of the proceeding, or is otherwise an abuse of process of the Court. This order is to be contrasted with r 23.01 which (relevantly) affords the Court a power to give judgment in the proceeding generally or in relation to any claim where a defence to the claim is scandalous, frivolous or vexatious.

11 In Meckiff v Simpson the Full Court stressed that r 23.02 (or, rather, its predecessor) was to ensure compliance with the rules of pleading and nothing else.[3] That is, a pleading is only to be struck out under the rule where there is some defect in the pleading, for example, that it is unintelligible, ambiguous, vague or too general so as to embarrass the opposite party who would not know what is alleged against it. So far as I am aware this authority remains good law in Victoria. For that reason, on an application under this rule, the Court will only look at the pleading itself.[4]

12 Mr Defteros argues that Google's defence that it was not the publisher of the web matter described in the 2016 proceeding should be struck out pursuant to this rule. The paragraphs of its amended defence in which Google's denial is maintained are 4, 4A(a)-(d), 5(a), 9(a), 13, 14 and 15. However, Mr Defteros does not contend the pleading is unintelligible, vague, embarrassing or otherwise difficult to understand. He seeks to have it struck out in effect because, so he argues, the plea is bad at law and not maintainable. According to Mr Defteros, Google cannot plead that it was not the publisher of the web matter, a reasonable time after receiving notification, because of what he contends is settled principle of law. He relies upon Duffy v Google Inc[5] and the South Australian Full Court's decision on appeal, Google Inc v Duffy.[6]

13 In my view, Mr Defteros' argument is not one which readily attracts the operation of r 23.02. Essentially, the power to be exercised under r 23.02 concerns the form of a pleading rather than the legal or factual merit or substance of what is pleaded.

14 Moreover, the publication issue in this case - namely whether Google was the publisher of the 'web matter' as defined in the pleading - concerns the allegation that Google was the publisher of the search result and the underlying web page as a rolled-up whole. The South Australian decision in Duffy is most clear on the view that following a reasonable period after notification the proprietor of a search engine is the publisher of a search result. The Full Court expressed greater reservation as to whether Google was also the publisher of the underlying web page, although ultimately it came to that conclusion on the facts of that case. The Chief Justice considered that question to be 'finely balanced'. But that balance tipped in favour of finding Google the publisher of the underlying web page due to the extent to which it had abstracted material from the underlying page in the content of the search result and thereby informed the searcher of its relevant content.

15 Legal principle in this area is in a state of development. In Victoria, the Court of Appeal has not expressed any concluded view on the question and recently left open the question whether the defence of innocent dissemination, if available before notification, is affected at all by notification.[7] The High Court of Australia is yet to resolve the relevant principles.

16 In this context, I am not persuaded I should strike out the paragraphs Mr Defteros has identified.

17 First, I am not persuaded that r 23.02 provides appropriate power to strike out a pleading for reason other than its form - the argument here is not as to form, but as to the legal merit of a defence which has otherwise been pleaded perfectly intelligibly. I note Mr Defteros' reliance on cases which suggest that legally baseless pleadings may amount to an embarrassment or abuse of process within the meaning of the rule,[8] but, whether or not that is so, I am not convinced that the nature of the legal defect in those particular cases are suitably analogous to the argument raised in this case.

18 Secondly, even if r 23.02 is available as a source of power for this application, the defence raised by Google does not turn on a pure question of law in an otherwise uncontested factual context. At least in respect of the issue whether Google published the underlying web-page (that is, the 2004 article in The Age), Google's defence raises a question of mixed fact and law as Duffy illustrates. And it does so in a context in which the allegedly published web matter is the rolled up combination of the search result and the underlying web page whereas, in Duffy, the two elements were pleaded and analysed as two separate publications. Put another way, it cannot be said that a defence which is potentially maintainable depending on a view taken of the facts is 'baseless in law'[9] even if that was an available ground under r 23.02 to strike out a pleading.

19 Thirdly, even if the issue raised is a pure issue of law (which it is not), given the unsettled state of the law in Victoria and there being no authoritative statement from the High Court on the relevant question, it would be undesirable, in my view, to determine this issue, as a pure matter of law, on an interlocutory application where it may otherwise be decided in the context of a trial on the issues.

20 Finally, in my view the denial that Google is the publisher of the web matter is neither scandalous, frivolous, vexatious, prejudicial, embarrassing, likely to be causative of delay or an abuse of process. Maintaining that denial until trial cannot truly be said to be productive of any serious and unjustified trouble and harassment. No persuasive argument was advanced why leaving the argument for determination at the trial of the proceeding, as opposed to determining it as an interlocutory matter, would be causative of any prejudice to the plaintiff. That is particularly so when the trial is due in just over two months and the issue of publication is but one of a number of issues which need to be heard and determined.

21 There were numerous other arguments ventilated on the application, but in my view it is unnecessary to discuss them all. None of them would cause me to alter the decision I have reached.

Should the 2016 and 2017 proceedings be heard together?

22 The parties agree that the principles applicable to resolving this question were conveniently set out by Besanko J in Humphries v Newport Quays Stage 2A Pty Ltd.[10] Applying those principles, I have concluded that I should not order that the two trials be heard together. I will briefly explain why.

23 I think it can be said that the two proceedings are broadly of a similar nature in that they involve the same parties, both are defamation proceedings, and both involve allegations that search results appearing on the web page of the defendant, returned after the operation of its search engine software, constitutes the publication of defamatory material. However, the issues of fact and law, whilst having some overlapping elements, will, in my view, be quite distinct in many respects. In particular, the enquiry as to how the results are produced and the question of the legal character of those results is likely to involve quite different evidence and legal analysis from one case to the other.

24 In the 2016 proceeding evidence will be given that a number of persons actually saw the publications; whereas in the 2017 proceeding the question whether any person viewed the publications is a significant issue. On my understanding of the two cases, there is not likely to be many common witnesses between the two proceedings, although Mr Defteros and perhaps his wife will likely give evidence in both. In the 2016 proceeding the plaintiff has filed five current outlines of evidence (excluding Mr Defteros) of whom at least four are not likely to be witnesses in the 2017 proceeding.

25 The potential saving of time if the two proceedings are tried at the same time, rather than separately, is likely to be modest at best, and certainly not substantial. On the other hand, the delay in hearing the 2016 proceeding should the two proceedings be heard together is likely to be significant. It is an important factor, in my view, that one of the proceedings - namely, the 2016 proceeding - is significantly more advanced in terms of preparation for trial than the others. Indeed, as stated, it is fixed for trial and ready to be tried very shortly.

26 A reason that was given certain prominence by Mr Defteros for the desirability of the trials being heard together was a personal one. He and his wife have a disabled son and much of their time is spent caring for him. Their son's disability is such that having to be in court will impose great stress on the family so the shorter the period the better. Mr Defteros himself suffers from a depressive illness. The combination of these considerations means that he has a personal interest in reducing the number of hearing days to the minimum, if possible. I do bear those considerations in mind and accept that they carry some weight.

27 Against that, however, there is the prospect (not insignificant in my view) that the hearing and determination of the 2016 proceeding will have a bearing on whether it will be necessary to hear the 2017 proceeding at all. The resolution of one may well resolve some issues in the other or cause the parties to re-assess their prospects of success in the second proceeding. So, in fact there is a respectable argument that the consideration of Mr Defteros's personal interest favours the hearing of the 2016 proceeding sooner rather than later.

28 A further consideration raised by Mr Defteros seems to point in the same direction. Mr Defteros says, quite understandably, that he is very keen to have the opportunity to clear his name as soon as possible. That consideration would suggest that he should have the opportunity to do so in respect of at least one set of publications sooner rather than later. Having the trials heard together will inevitably (the parties agree) delay the hearing of the 2016 proceeding until the 2017 proceeding is ready for hearing and, thus, push back his opportunity to clear his name at least in respect of the 2004 article in The Age for some period of time into the future. I understand that Mr Defteros' own subjective assessment of what is best for him on these two criteria is that the cases should be tried together notwithstanding the inevitable delay. But on an objective analysis, that assessment is somewhat difficult to understand.

29 I also take into account the interest of Google in having the earliest opportunity to try and have its position vindicated. Additionally, there is the community's interest in having litigation determined in a timely fashion.

30 Taking all matters into account, and having regard to the mandate under the Civil Procedure Act that the Court should seek to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute in proceedings,[11] I conclude that the preponderance of considerations weigh against ordering that these two proceedings be tried together.

31 Both applications are refused and the summons must be dismissed.

[1] Supreme Court (General Civil Procedure) Rules 2015 (Vic), ('the Rules').

[2] Defamation Act 2005 (Vic), ('Defamation Act').

[3] [1968] VicRp 7; [1968] VR 62, [70].

[4] See Williams' Civil Procedure Victoria (LexisNexis Australia, 2015), [23.02.5].

[5] [2015] SASC 170; (2015) 125 SASR 437 ('Duffy').

[6] (2017) 129 SASR 304. See in particular Kourakis CJ at [181]-[187], with whom the other members of the Court, relevantly, agreed.

[7] See Google v Trkulja [2016] VSCA 333.

[8] Heugh v Chamberlain (1877) 25 WR 742; Healey v Bank of NSW [1898] ArgusLawRp 119; (1898) 24 VLR 405; Apel v Ready [1971] 1 NSWLR 288, 291.

[9] Apel v Ready [1971] 1 NSWLR 288, 291.

[10] [2009] FCA 699, [11].

[11] Civil Procedure Act 2010 (Vic), ss 7, 8.