Plaintiff v First Defendant

Supreme Court of Victoria|2010-05-27|Before: Kaye J

DEFAMATION - Pleading - Publication on Internet site - Whether material published capable of giving rise to imputations pleaded by plaintiff in ordinary and natural sense or as "true" innuendos - Whether leave should be given to file further amended statement of claim.

1 In this proceeding, the plaintiff, Milorad Trkulja, claims damages for defamation in respect of the publication by the defendants, on a website maintained by them on the internet, of material of and concerning the plaintiff. On 12 February 2010, I gave leave to the plaintiff to file and serve an amended statement of claim. The defendants, by summons, seek orders that paragraphs 16 and 17 of the amended statement of claim, delivered on 3 May 2010, be struck out pursuant to rule 23.02 of the Rules of the Supreme Court.

2 In paragraph 1 of the amended statement of claim, it is pleaded that the plaintiff is "known also as Michael Trkulja". The material, about which the plaintiff makes complaint, was contained in a photographic image searching service known as "Google Image", by which the defendants published pictures and captions on its website. The relevant parts of the material are contained in two hard copy pages of annexures to the statement of claim. The first page contains a number of photographs. On the top line there are five photographs of different persons, beneath which appears the name "Michael Trkulja". The second photograph is a depiction of the plaintiff himself. The fourth photograph is a depiction of "BF"[1] who, it is pleaded, is an alleged murderer and drug trafficker. The fifth photograph is a depiction of Mr Dennis Tanner, who, it is pleaded, is a policeman who allegedly murdered his sister in law, Jennifer Tanner. Underneath the photographs of the plaintiff, BF and Tanner, is printed the word "Melbourne crime". The second page contains three rows of photographs. The plaintiff's photograph is on the first row, and adjacent to it are the same photographs of BF and Tanner.

3 In paragraph 6 of the amended statement of claim, the plaintiff pleads that the publication conveys the following imputations in its ordinary and natural meaning ("false innuendos"):

(e) that he is one and the same person as Dennis Tanner, an alleged murderer.

4 By paragraph 17 of the amended statement of claim the plaintiff pleads, in the alternative, that the publication bore those five imputations ("true innuendos") by reason of the following five extrinsic facts, which it is pleaded (in paragraph 18) were known to the vast majority of persons to whom the matter was published:

"(a) The first photograph referred to in paragraph 6 [of the amended statement of claim] depicts BF;

(b) BF is a convicted criminal, being a drug trafficker and an alleged murderer;

(c) The second photograph referred to in paragraph 6 depicts Dennis Tanner;

(d) Dennis Tanner is a policeman who allegedly murdered Jennifer Tanner, alternatively;

(e) Dennis Tanner was named by the Coroner, after inquiry, as the alleged murderer of Dennis (sic Jennifer) Tanner and has the reputation of being a murderer."

5 The defendants make the present application on two bases. First, it is submitted that the matter published by them is incapable of conveying the imputations pleaded in paragraph 16 of the amended statement of claim. Secondly, it is submitted that the imputations pleaded in paragraphs 16(c), (d) and (e) are impermissibly vague and uncertain, and that they will accordingly lead to embarrassment at the trial of the proceeding.

6 Mr A Strahan, who appeared on behalf of the defendants, submitted that the publication, complained of by the plaintiff, is not capable of bearing the imputations pleaded by the plaintiff. He submitted, first, that in its ordinary and natural meaning, and independently of any extrinsic facts, the matter published was not reasonably capable of giving rise to any of the five imputations pleaded in paragraph 16 of the amended statement of claim. In this respect, he noted that paragraph 6 of the amended statement of claim pleaded the publication of the matter contained in Annexure A to the amended statement of claim, to which I have already referred. However, in the particulars of publication, the "matter" was defined as follows:

"The matter, being a photograph of BF captioned 'Michael Trkjula ... Melbourne crime' and a photograph of Dennis Tanner captioned 'Michael Trkjula ... Melbourne crime' was published to all persons visiting the website Google Image and searching for the names 'Milorad Trkulja' and 'Michael Trkulja'."

7 Mr Strahan submitted that the publication of those photographs, with the plaintiff's name beneath them, was not capable, without more, of giving rise to the imputations pleaded in paragraph 16. He submitted that even if it might be maintained, on behalf of the plaintiff, that BF or Tanner were sufficiently notorious to form part of the general knowledge of the ordinary reasonable reader, it has not been demonstrated that the photographic images of those two persons, contained in the publication, were so notorious as to form part of that stock of knowledge of the ordinary reasonable reader. Rather, he submitted, if any imputation was to be pleaded in respect of the purported identification of the plaintiff's name with the two photograph images, that imputation must arise by way of "true innuendo", rather than by way of "false innuendo".

8 Mr Strahan then turned to the pleading of the "true innuendos", which the plaintiff alleges the words conveyed, by reason of the facts alleged in paragraph 17 of the amended statement of claim. In particular, he submitted that the pleading by the plaintiff of the imputations in paragraph 16(c) and 16(e) - that the plaintiff was, respectively, "one and the same person" as BF or Tanner - is logically flawed. He pointed out that the plaintiff's "true innuendo" is based on the proposition that the persons, to whom the publication was made, knew (inter alia) that the photographic images of those two persons depicted BF and Tanner. Thus, logically, any person who knew that the photographs depicted BF or Tanner, must also necessarily be aware that the photographs do not and could not depict the plaintiff. Accordingly, Mr Strahan submitted that, as a matter of logic, the plaintiff's primary "true" innuendos were incapable of being sustained before a jury. In that light, accordingly, the other three innuendos, pleaded in paragraphs 16(a), (b) and (d) would fail, because they are dependent upon those two innuendos.

9 Mr Strahan further submitted that, in any event, the imputation pleaded in paragraph 16(d) - "that the plaintiff is 'a Melbourne criminal' - is too vague and imprecise to be permissible as an imputation". He referred me to the decision of the New South Wales Court of Appeal in Drummoyne Municipal Council v Australian Broadcasting Corporation[2], in which the Court disallowed an imputation pleaded that the plaintiff was "corrupt", on the basis that it was too vague and imprecise. Mr Strahan also referred, in this respect, to the decision of Hedigan J in Watt v General Television Corporation Pty Ltd[3], in which his Honour disallowed, for a similar reason, a "Polly peck" imputation, pleaded by the defendant, that the plaintiff was "vulgar". Mr Strahan submitted that the imputation, that a plaintiff is a "Melbourne criminal", is capable of meaning that the plaintiff had committed various serious criminal offences, or, alternatively, that he was a person who had been convicted of a small number of significantly less serious offences. Thus, he submitted that, in its current form, the imputation does not properly inform the defendants of the case which they are required to meet at trial.

10 In response, Mr Cawthorn SC, who appeared on behalf of the plaintiff, submitted that the material, complained of by the plaintiff, is reasonably capable of giving rise to the imputations pleaded in paragraph 16 of the amended statement of claim, both in its ordinary and natural sense, and also by reason of the extrinsic facts, pleaded in paragraph 17, which were notorious to the persons to whom the words were published. He submitted, in particular, that the identities of BF and Tanner are so well known and notorious that the ordinary reasonable reader would have recognised their photographic images as part of his or her general knowledge and experience of worldly affairs.[4] He submitted that with that general knowledge in mind, the ordinary reasonable reader would have concluded that the plaintiff was a Melbourne criminal "on a par" with other criminals, namely BF and Tanner. Thus, he contended, the ordinary reasonable reader would have understood the material to convey that he was a drug trafficker (paragraph 16(b)) and an alleged murderer (paragraph 16(c) and 16(e)).

11 Mr Cawthorn further submitted that, if the matter is attended with any doubt, the ordinary reasonable reader, cognisant of the extrinsic facts pleaded in paragraph 17 of the statement of claim, would have derived the imputations pleaded in paragraph 16 in that way. He further submitted that there is no logical inconsistency in pleading the imputations contained in paragraphs 16(c) and 16(e). In particular, he submitted that persons to whom the matter was published, who only knew the plaintiff by name, may have understood that the use of the plaintiff's name under the photographs of BF and Tanner equated him with those two individuals. In particular, he submitted that it is notorious that criminals use aliases, and thus the plaintiff's identity might be equated with that of BF and Tanner.

12 Finally, Mr Cawthorn submitted that the imputation in paragraph 16(d) is not too wide or vague. Rather, it derives from the combination of the photographs, and the word "Melbournecrime" appearing immediately under them. He submitted that as the defendants had made such a general allegation, the plaintiff could not be required to plead the imputation with any greater degree of specificity.

13 The principal submission by Mr Strahan is that the imputations, pleaded by the plaintiff, are not reasonably capable of arising from the published material, whether in their ordinary and natural meaning, or as a result of the extrinsic facts alleged in paragraph 17. The question is not whether a jury should, or would, conclude that the material bore the imputations pleaded by the plaintiff. Rather, the question which I must determine is whether a jury, properly instructed, could reasonably conclude that the material, published by the defendants, bore the imputations pleaded by the plaintiff.[5]

14 The question, whether the words conveyed the imputations pleaded in the amended statement of claim, is to be determined from the perspective of the hypothetical ordinary reasonable reader, who has been described as a person who is not avid for scandal, and who is neither unusually suspicious nor unusually naïve.[6] Such an individual does not scrutinise the material with the precision of a lawyer, and is regarded as a person who may read between the lines.[7] However, while such a person may have a greater capacity for implication than a lawyer[8], it is important to bear in mind the distinction between the reader's understanding of what the material was actually conveying, and a judgment or conclusion, which the reader may reach as a result of his or her own beliefs and prejudices.[9]

15 The first question, then, is whether the matter, published by the defendants, was reasonably capable of conveying any of the imputations, specified in paragraph 16, to such a hypothetical person, in its ordinary and natural meaning. In my view, in the absence of particular knowledge by the person or persons, to whom the matter was published, that the images contained in it included photographs of BF and Tanner, and in the absence of knowledge by such a person that those two individuals had been accused of the crime of murder, and (in the case of BF) convicted for trafficking drugs, the matter published by the defendants could not reasonably be considered to give rise to the imputations pleaded in paragraphs 16(a), (b), (c) and 16(e). There may be some room for debate whether the public knowledge of BF's alleged and actual criminality is so notorious that it would form part of the general stock of knowledge of the ordinary reasonable reader.[10] However, I do not consider that the fact that the two images on the material were those of BF and Tanner, or the fact that Tanner had been accused of murder, could be properly characterised as so embedded in the general worldly experience of the ordinary reasonable recipient of the material, that those facts need not be proven, in order to establish the imputations alleged in paragraph 16(a), (b), (c) and 16(e). Setting aside the imputation pleaded in paragraph 16(d) for the moment, I agree with Mr Strahan that the material, published by the defendants, could not be reasonably capable of bearing a meaning defamatory of the plaintiff, in the absence of the pleading and proof of extrinsic facts, including the fact that two of the images contained in the material consisted of photographs of BF and Tanner, and the fact that both of them had been accused of serious criminal conduct. On that basis, those four imputations are liable to be struck out as "false innuendos".

16 The question, whether the imputation pleaded in paragraph 16(d) might be sustained as a false innuendo, is not so clear. Part of the difficulty arises from the manner in which the plaintiff has pleaded publication of the defamatory material in paragraph 6. As Mr Strahan has pointed out, the particulars of publication refer to the photographs of BF and Tanner, but not the photograph of the plaintiff. Nor does the statement of claim contain an allegation that one of the images which was published (that which was second from the left in the top row) is the image of the plaintiff.

17 Mr Cawthorn submitted that the imputation pleaded in paragraph 16(d) could be derived from the combination of the three pictures, underneath each of which was the name "Michael Trkulja" and the words "Melbourne crime". He submitted that that combination of the photographs, the plaintiff's name, and the word "Melbourne crime", is reasonably capable of giving rise to the imputation that the plaintiff is a Melbourne criminal. In this respect, Mr Strahan informed me that evidence would be led at trial that the word "Melbourne crime" was the name of a website, and that, at trial, the defendants would contend that the combination of the photographs, the name of the plaintiff and the word "Melbourne crime", could mean nothing more than the name and photograph, thus depicted, could be located on that website.

18 Clearly, the question whether the combination of the photograph, the name and the website title is capable of giving rise to the imputation in paragraph 16(d) is a matter for debate. Paragraph 16 of the amended statement of claim will need to be re-pleaded to delete the imputations contained in subparagraphs (a) to (c) and (e) as false innuendos. If the plaintiff intends to retain paragraph 16(d) as a "false innuendo", he will need to make it clear that the imputation pleaded in subparagraph (d) was derived, in its ordinary and natural meaning, from the combination of the three matters referred to by Mr Cawthorn, namely the photographs, the name of the plaintiff and the website title "Melbourne crime".

19 That consideration makes relevant the other submission made by Mr Strahan concerning the imputation pleaded in paragraph 16(d), namely, that that imputation is expressed in language which is so imprecise as to be impermissible as a pleading. In determining that question, in my view the two authorities on which Mr Strahan relied demonstrate two important propositions. First, the question, whether an imputation has been properly pleaded, is to be determined as a matter of practical justice, rather than as an exercise of close semantic or linguistic refinement. Secondly, the question whether a particular imputation is sufficiently specific depends, essentially, on the context in which it is pleaded. In some publications, the allegation about a plaintiff may be so unspecific as to give rise only to the most general imputation. For example, a billboard alleging that a particular plaintiff is "corrupt" may, in an appropriate case, only give rise to an imputation pleaded in the most general form. On the other hand, and by contrast, a publication may, by its context, give rise to one or more possible meanings of a particular condition attributed to the plaintiff. In such a case, where the plaintiff pleads that the publication imputed that condition to him, the plaintiff is obliged to specify how and in what respects that condition is conveyed in the imputation.

20 Those two propositions can be derived from the leading judgment of Gleeson CJ in Drummoyne Municipal Council v Australian Broadcasting Corporation[11]. In that case, the primary judge had struck out three imputations in a statement of claim, which alleged "corrupt" conduct or acts of the plaintiff council. The Court of Appeal (by majority) upheld that decision. In doing so, Gleeson CJ stated the principle as follows:

"The requirement that a plaintiff must 'specify' the act or condition which he claims was attributed to him, that is to say, the statement which he says is made about him, which follows from the scheme of the Defamation Act, the provisions of the Supreme Court Rules, and the ordinary rules of pleading, is one which, in its practical application, raises questions of degree. Almost any attribution of an act or condition to a person is capable of both further refinement and further generalisation. In any given case a judgment needs to be made as to the degree of particularity or generality which is appropriate to the occasion, and as to what constitutes the necessary specificity. If a problem arises, the solution will usually be found in considerations of practical justice rather than philology. ... Furthermore, whilst the principles relevant to the plaintiff's obligation remain constant their practical application may depend upon the facts and circumstances of the given case, and the relevant circumstances may include the manner in which the defendant, or the author of the defamatory matter, has expressed the defamatory matter. Defamation may come in the form of snide insinuation or robust denunciation, or something in between those two extremes. The attribution to a person of an act or condition may be done with a high degree of particularity or it may take the form of the most generalised and non-specific abuse. ... If a defendant has posted in a public place a sign that simply says 'X is disgusting', the degree of specificity with which it is appropriate to require X to formulate the defamatory imputation will need to be related to the nature and content of the defamatory matter."[12]

21 In Drummoyne, the television programs in question referred to preliminary investigations of the plaintiff council being undertaken by the Independent Commission against Corruption. The programs made a number of assertions as to matters which were of concern relating to that council. Gleeson CJ observed that the adjective "corrupt" is, potentially, broad in its connotation. An examination of the programs complained of disclosed that there were a number of quite different allegations of corruption, which could possibly be derived from them. By pleading imputations that the plaintiff was "corrupt", the statement of claim had failed to identify which category, or categories, of corruption were alleged to have been attributed to the plaintiff. For those reasons, his Honour upheld the decision of the primary judge to strike out the imputations.[13]

22 A similar approach was adopted by Hedigan J in Watt v General Television Corporation Pty Ltd[14]. In that case, the material, of which the plaintiff complained, described her as a "little tart" and "cycling queen". The defendants pleaded that, in their ordinary and natural meaning, the words complained of by the plaintiff meant and were understood to mean (inter alia) that the plaintiff was "vulgar". Hedigan J struck out that imputation, on the ground that it lacked appropriate specificity. His Honour pointed out that the dictionary meanings of "vulgar" are protean, and the plaintiff was entitled to know which of those meanings, of the alleged imputation of vulgarity, was relied on by the defendant. The failure by the defendant to plead that imputation with appropriate specificity meant that the plaintiff did not know what case she would need to meet at trial.[15]

23 In the present case, the difficulty arising from the imputation pleaded in paragraph 16(d) is that it is not clear, from the current form of the pleading, how the plaintiff alleges that the defendants' material imputed that he is a "Melbourne criminal". That problem principally arises because the plaintiff, by way of ordinary and natural meaning, appears to rely, both on the subtitle "Melbournecrime", and also on the photographs of BF and Tanner and the text underneath them. Thus, it is not clear whether the plaintiff is complaining of a general allegation, contained in the material, that he is associated with "Melbourne crime"; or whether, more specifically, he is complaining that he is being likened to, or being equated with, BF and Tanner. I have already expressed the conclusion that any equation between the plaintiff and BF and Tanner could not derive from the ordinary and natural meaning of the material. Any innuendo to be derived from the juxtaposition of the plaintiff's name with the word "Melbournecrime" would need to be sufficiently specific to identify how and in what sense that innuendo is pleaded by the plaintiff. In its present pleading, in the context of the publication complained of, I consider that it is expressed in a form which is too wide and indeterminate.

24 The next question is whether the material, published by the defendants, is capable of giving rise to any of the imputations pleaded in paragraph 16 of the amended statement of claim, by reason of the extrinsic facts pleaded in paragraph 17. As I have stated, Mr Strahan pointed to the logical dilemma posed by the imputations pleaded in paragraphs 16(c) and 16(e), namely, that if the ordinary reasonable reader knew that two of the images in the material were those of BF and Tanner, and not the plaintiff, that person could not reasonably conclude that the material meant that the plaintiff was one and the same person as BF or Tanner (or both). Mr Cawthorn sought to counter that dilemma by contending that a person, who only knew the plaintiff by name, and not by face, might, by reason of the publication of his name under the photograph of BF or Tanner, thereby understand from the material that the plaintiff is in fact BF or Tanner.

25 In my view, that submission does not meet the logical problem identified by Mr Strahan. There might be some force in Mr Cawthorn's argument, if the plaintiff's name had only appeared under one photograph, for example, that of BF. However, in the material published by the defendants, his name appeared under the photograph of himself, and also under photographs of BF and Tanner. The faces, depicted in the three photographs, are quite different from each other. Clearly, the three persons could not be one and the same. There is no reason why the ordinary reasonable reader would understand, from the material, that the plaintiff was BF or Tanner, rather than the person depicted in the photograph which actually is that of the plaintiff. The logical difficulty, involved in Mr Cawthorn's submission, is emphasised by the plea of the two imputations in paragraphs 16(c) and 16(e). Clearly, if the ordinary reasonable reader knew that two of the photographs were those of BF and Tanner (as is pleaded in paragraph 17), the ordinary reasonable reader could not, on any sensible view, consider that the plaintiff was both BF and Tanner. Furthermore, if the ordinary reasonable reader had knowledge of the true identity of the faces depicted on those two photographs, that would leave the identity of the person, depicted in the photograph which is really that of the plaintiff, unaccounted for. In those circumstances, as pleaded by the plaintiff, the ordinary reasonable reader would know that one of the photographs was that of BF, and the other was that of Tanner, and there is no logical reason why the ordinary reasonable reader would not thus understand that the photograph of the third individual, named "Michael Trkulja", whose photograph the reader did not recognise, must be that of the plaintiff himself, and not BF or Tanner.

26 Thus, I consider that Mr Strahan is correct in his submissions that the true innuendos, sought to be pleaded in paragraph 16(c) and 16(e), are not sustainable. Indeed, in the course of submissions, it appeared that the plaintiff is not seeking to put, as his primary case, that the ordinary reasonable reader would have considered that he was either BF or Tanner masquerading under a different disguise and alias. Rather, it would seem, from the submissions made by Mr Cawthorn, that the plaintiff ultimately will seek to put to the jury that the material imputed that he is a person who has committed crimes which are "on a par with", or equivalent to, those alleged to have been committed by BF and Tanner. If that is the substance of the imputation sought to be pleaded by the plaintiff, then paragraph 16 should be recast in an appropriate form, to reflect that intended meaning. None of the true innuendos, presently pleaded in paragraph 16, properly express that meaning as the imputation which the plaintiff alleges is derived from the material, by reason of the extrinsic facts pleaded in paragraph 17.

27 It follows, from the foregoing, that the imputations sought to be pleaded in paragraph 16 of the statement of claim, both in the ordinary and natural meaning of the material, and by reason of the extrinsic facts pleaded in paragraph 17 of the amended statement of claim, should be struck out. Mr Strahan "invited" me to consider whether, in the circumstances, there would be any utility in permitting the plaintiff to further amend the statement of claim. In particular, he drew my attention to the history of this proceeding, in which difficulties with the pleading were first raised by the defendants in February of this year. A previous version of the amended statement of claim was objected to by the defendants, and withdrawn by the plaintiff. Thus, the pleading, which is the subject of this application, is the third attempt by the plaintiff to plead his imputations. Mr Strahan submitted that the difficulties, which the plaintiff's lawyers are experiencing in formulating the plaintiff's imputations, is a good indication that there is no viable cause of action which might be pleaded against the defendants.[16]

28 I accept that the plaintiff's legal representatives have had difficulty in adequately formulating the claim to be pleaded against the defendants. However, I have not been persuaded that the difficulty is such that no viable cause of action might be pleaded against the defendants. Indeed, in the present application, it was not contended on behalf of the defendants that the material, published by the defendants, was not reasonably capable of giving rise to a meaning which is defamatory of the plaintiff. If I were to refuse leave to the plaintiff to amend his statement of claim, that would be tantamount to a summary termination of his proceeding. Such relief should only be granted in the clearest of cases. In my view, in this case, it is appropriate that the plaintiff be given another opportunity to plead against the defendants the cause of action upon which he seeks to rely.

29 For the foregoing reasons, I have concluded that the imputations pleaded in paragraph 16 of the amended statement of claim, both as "false" and "true" innuendos, should be struck out, with the plaintiff having leave to file and serve a further amended statement of claim.

30 In light of the conclusions which I have reached, the plaintiff will need to give proper consideration to how he intends to plead the imputations, which he alleges are derived from the material published by the defendants. Further, some consideration will need to be given to the particulars of publication under paragraph 6 of the amended statement of claim. The plaintiff will also need to address the question whether he needs to plead any particulars of identification of himself with the photograph of him in the material. In light of those matters, it is appropriate that I make an order striking out the plaintiff's amended statement of claim dated 3 May 2010, but giving leave to the plaintiff to file and serve a further amended statement of claim.

[1] The identity of "BF" is the subject of suppression orders of the Court, and accordingly the pseudonym "BF" has been substituted for his name in this judgment.

[4] Lewis v Daily Telegraph Limited [1964] AC 234, 258.

[5] Jones v Skelton [1964] NSWR 485, 491.

[6] Lewis v Daily Telegraph Ltd [1964] AC 234, 259 to 260, 277.

[8] Morgan v Odhams Press Limited [1971] 1 WLR 1239, 1245.

[9] Mirror Newspapers Limited v Harrison [1982] HCA 50; (1982) 149 CLR 293, 301 (Mason J).

[10] Compare Grubb v Bristol United Press Limited [1963] 1 QB 309, 336 (Davies LJ).

[13] See above page 140; see also page 155 (Priestly JA).

[16] Trau v The University of Sydney (1989) 34 IR 466, 475 (Gleeson CJ).

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