Plaintiff v First Defendant

2 Some of the procedural history of this matter is set out in the judgment of Kaye J in Trkulja v Google Inc LLC & Anor.[1] For present purposes, it is sufficient to say that over the last year, the plaintiff has experienced some difficulty in pleading causes of action against the defendants. The current version of the plaintiff's statement of claim is the further amended statement of claim filed pursuant to the order of Kaye J made on 27 May 2010. This document (which I will refer to as "the statement of claim") is the plaintiff's fourth attempt to plead his causes of action.[2]

3 By summons filed 5 August 2010, the defendants sought:

(a) summary judgment for the second defendant (Google Australia), pursuant to rule 23.03;[3]

(b) an order that paragraphs 3, 4 and 5 of the statement of claim be struck out, pursuant to rule 23.02; and

(c) an order that paragraphs 6, 7, 9 and 10 of the statement of claim be struck out, pursuant to rule 23.02.

4 However, on the return of the summons, the application for summary judgment on behalf of the second defendant was abandoned. Instead, the emphasis in the argument turned to whether the allegation of publication (specifically against Google Australia) was sufficiently pleaded - or whether the plea in this regard was embarrassing.

5 Before dealing with the defendants' applications, it is necessary to describe the statement of claim in some detail. The first defendant (Google Inc) is a company incorporated in the United States of America. The second defendant (Google Australia) is a company incorporated in Australia.

6 In paragraphs 2 and 3 of the statement of claim, the plaintiff alleges that Google Inc and Google Australia are owners and/or operators of Google, an internet media and communications business. Specifically, the plaintiff alleges that:

"(i) the owner and/or operator of Google;

(ii) the owner and operator of a global internet network, including as (i) the owner and provider of internet search services by which persons with access to the internet may search for and be provided with information, images and other data owned and/or controlled by it; and (ii) a provider of such services for use in the business of Google, including use by Google Australia; and

(iii) a company carrying on or participating in the business of Google by, among other things, operating and providing online services including web text searches and web image searches (known as Google, Google Search, Google Web and Google Images) and making available and providing the results of web searches, such services being accessible at or through internet addresses including http://www.google.com, http://www.google.com.au and http://images.google.com.au and other associated search pages and search results pages (together, the Google Site).

(b) Google Australia is and was at all relevant times:

"(i) a subsidiary of, or affiliated with or related to, Google Inc;

(ii) an owner and/or an operator of Google, or in the alternative an owner and/or an operator of the Google Site in respect of persons accessing that site from locations in Australia;

(iii) a company carrying on or participating in the business of Google by, among other things, operating and providing online services including web text searches and web image searches and making available and providing the results of web searches, such services being accessible at or through the Google Site."

7 In paragraph 4 of the statement of claim, the plaintiff alleges that Google Inc and Google Australia published, of and concerning the plaintiff, the Google Images matter. The Google Images matter is described by the plaintiff in the following terms:

"(i) The Google Images matter comprises three web pages, a print reproduction of which appears in Annexure A. The first page is a Google Images search results page displaying photographs of persons with the plaintiff's name in bold beneath the images. The second image from the left in the top line of images is the plaintiff. Beneath three of the images, including that of the plaintiff, there are also the words 'melbournecrime...'.

(ii) The second page, which was displayed after clicking on the fourth image from the left in the top line of images on the first page, displays the words 'Google Michael trkulja', below which is an image, after which appears an extract from or reproduction of a webpage entitled 'Melbourne Crime', below which title was displayed 9 photographs, below which was displayed a photograph of the plaintiff and an article titled 'Shooting probe urged November 20, 2007' which refers to the plaintiff by his name Michael Trkulja.

(iii) The third page, which was displayed after clicking on the fifth image from the left in the top line of images on the first page, displays the words 'Google Michael Trkulja', below which is an image, after which appears an extract from or reproduction of a webpage entitled 'Melbourne Crime', below which title was displayed 9 photographs, below which was displayed a photograph of the plaintiff and an article titled 'Shooting probe urged November 20, 2007' which refers to the plaintiff by his name Michael Trkulja."

8 In paragraph 5 of the statement of claim, the plaintiff alleges that Google Inc and Google Australia published, of and concerning the plaintiff, the Google Web matter. The plaintiff describes the Google Web matter in the following terms:

"(i) The Google Web matter comprises two web pages. ... [T]he first web page is a Google Web search results page displaying as its first search result the words 'Michael Trkulja - Melbourne Crime - Underworld - Ganglands', beneath which is the sentence 'Former music promoter Michael Trkulja was shot in the back by a hitman wearing a balaclava while dining at a St Albans restaurant in June 2004. ...', beneath which is the internet address http://www.melbournecrime.bizhosting.com/michaeltrkulja.htm and the words 'Cached' and 'Similar'.

(ii) Upon clicking on the search result 'Michael Trkulja - Melbourne Crime - Underworld - Ganglands', the second page of the Google Web matter was displayed, ... [being] the extract from or reproduction of a webpage entitled 'Melbourne Crime', below which title was displayed 9 photographs, below which was displayed a photograph of the plaintiff and an article titled 'Shooting probe urged November 20, 2007' which refers to the plaintiff by his name Michael Trkulja."

9 In paragraph 6 of the statement of claim, the plaintiff sets out the false innuendos said to arise from the publication of the Google Images matter. The imputations pleaded are:

"(a) The plaintiff is a criminal.

(b) The plaintiff was so involved with crime in Melbourne that his rivals had hired a hitman to murder him.

(c) The plaintiff is such a significant figure in the Melbourne criminal underworld that events involving him are recorded on a website that chronicles crime in Melbourne."

10 In paragraph 7 of the statement of claim, the plaintiff pleads the same three imputations as true innuendos, before pleading a fourth true innuendo in the following terms:

"(d) The plaintiff is a hardened and serious criminal in Melbourne, in the same league as BF,[4] an alleged murderer and drug trafficker, and Dennis Tanner, an alleged murderer."

11 In paragraph 8 of the statement of claim, the plaintiff pleads that the Google Images matter conveys the four true innuendos as a result of the following extrinsic facts which are alleged to be known to persons to whom the Google Images matter was published:

"(a) The second image from the left in the top line of images on the first page of Google Images matter is a picture of the plaintiff;

(b) The fourth image from the left in the top line of images on the first page of Google Images matter is a picture of BF, a notorious convicted criminal, an alleged murderer and a drug trafficker;

(c) The fifth image from the left in the top line of images on the first page of Google Images matter is a picture of Dennis Tanner, a former policeman who is alleged to have murdered his sister-in-law Jennifer Tanner;

(d) The largest image in the extract from or reproduction of the 'Melbourne Crime' web site is a picture of the plaintiff;

(e) Melbourne has a notorious and violent criminal underworld operating in the central and suburban areas of Melbourne in 2009 and for many years before;

(f) In and around 2004, the Melbourne criminal underworld was involved in a violent internecine war, the prime targets of which were members of competing camps in that underworld;

(g) The nine photographs of faces of men appearing under the title 'Melbourne Crime' in the matter include photographs of persons who are or who are alleged to be engaged in serious criminal activity in Melbourne;

(h) One of the nine photographs appearing under the title 'Melbourne Crime' in the matter is a picture of BF, a notorious convicted criminal, an alleged murderer and a drug trafficker;

(i) One of the nine photographs appearing under the title 'Melbourne Crime' in the matter is a picture of Dennis Tanner, a former policeman who is alleged to have murdered his sister-in-law Jennifer Tanner; and/or

(j) 'www.melbournecrime.bizhosting.com' is an internet website which chronicles the conduct of criminal and alleged criminals involved in the Melbourne criminal underworld."

12 In paragraph 9 of the statement of claim, the plaintiff sets out the false innuendos said to arise from the publication of the Google Web matter. The three imputations pleaded are the same as the three imputations pleaded in respect of the Google Images matter.

13 In paragraph 10 of the statement of claim, the plaintiff pleads the same three imputations as true innuendos. As originally pleaded the plaintiff also relied on a fourth true innuendo in identical terms to the fourth true innuendo pleaded in respect of the Google Images matter. However, the plaintiff subsequently abandoned reliance upon this imputation so far as the Google Web matter is concerned.[5]

14 In paragraph 11 of the statement of claim, the plaintiff pleads that the Google Web matter conveys the three true innuendos, to which I have just referred, as a result of certain extrinsic facts which are alleged to be known to persons to whom the Google Web matter was published. In respect of the Google Images matter, the plaintiff relies upon ten extrinsic facts (paragraphs (a) to (j)), which I have already identified. In respect of the Google Web matter, the plaintiff relies upon seven of these extrinsic facts - being paragraphs (d) to (j).

15 In paragraphs 12 to 16 of the statement of claim, the plaintiff pleads his claim for damages.[6]

The dispute between the parties concerning the allegation of publication

16 In order to understand the issues between the parties concerning the allegations of publication, it is necessary to set out some of the history of Google Australia's now abandoned application for summary judgment.

17 Google Australia's application for summary judgment was supported by an affidavit of Karim Temsamani.[7] The attack made upon the plaintiff's claim by Google Australia concerned the issue of publication. Google Australia contended that it is apparent from the statement of claim that the allegations of publication made against it derive from the allegations that Google Australia is an owner or operator of Google or the Google Site. It was then contended that the plaintiff's allegations of publication by Google Australia were untenable because Google Australia "is simply not an owner or operator of 'Google' or the 'Google site' as the plaintiff alleges".

18 In support of its now abandoned application, Google Australia contended that the Temsamani affidavit established:

(a) Google Australia does not own or operate an internet media and communication business known as "Google" as alleged;

(b) Google Australia does not own or operate the Google site in respect of persons accessing that site from locations in Australia (or otherwise); and

(c) Google Australia does not operate and provide online search services, or make available and provide the results of web searches, such services being accessible at or through the Google site.

19 Additionally, Google Australia contended that these allegations were capable of clear determination; and the facts alleged by the plaintiff were "simply wrong". Again, relying upon the Temsamani affidavit, Google Australia contended that the evidence disclosed that Google Australia's operations are limited to providing:

(a) marketing, business development and sales support services to Google Inc; and

(b) research and development services to Google Inc.

20 In response to Google Australia's now abandoned application for summary judgment, the plaintiff relied upon a number of authorities which were said to establish that the responsibility for the publication of defamatory matter attaches to a broad range of parties who take part in the communication of the matter to a third person. For example, in R v Gutch,[8] Lord Tenterden CJ said:[9]

"...A person who derives profit from, and who furnishes means for carrying on the concern, and entrusts the conduct of the publication to one whom he selects, and in whom he confides, may be said to cause to be published what actually appears, and ought to be answerable, although you cannot shew that he was individually concerned in the particular publication."

21 In Webb v Bloch,[10] Isaacs J adopted the meaning of "publication" set out in Folkard on Slander and Libel, 5th edition (1891)[11] as follows:

"The term published is the proper and technical term to be used in the case of libel, without reference to the precise degree in which the defendant has been instrumental to such publication; since, if he has intentionally lent his assistance to its existence for the purpose of being published, his instrumentality is evidence to show a publication by him."[12]

22 Isaacs J then went on to approve the following statement adopted in Parkes v Prescott:[13]

"All who are in any degree accessory to the publication of a libel, and by any means whatsoever conduce to the publication, are to be considered as principals in the act of publication...."[14]

23 In essence, subject to the defence of innocent dissemination available to distributors,[15] all those who might be described as in "any degree accessory" to the publication are liable in defamation. This includes all participants in, and enablers of, the dissemination of defamatory matter.[16]

24 The plaintiff contended that this line of authority showed a sufficient basis for the allegation of publication made against Google Australia, so that Google Australia was not entitled to summary judgment. There was force in this submission. However, there was also some force in Google Australia's submission that this line of authority is not presently relevant because the plea of publication in this case is based on an allegation of ownership of Google and/or the Google site - rather than some form of accessorial conduct which is capable of being described as a form of publication. The plaintiff's answer to this submission was that the allegation of publication against Google Australia was not limited to one involving the ownership or operation of Google or the Google Site. The plaintiff contended that his allegation of publication was also based upon the allegation that Google Australia operated and provided on-line services including web text searches and web image searches and made available and provided the results of web searches.[17]

25 Whilst it might have been contended that the allegations that Google Australia owned or operated Google and/or the Google site are untenable in the face of the Temsamani affidavit, the same cannot be said about the broader allegation of publication. The real difficulty with the statement of claim is the lack of a plea of any facts which might establish that Google Australia was an enabler or "in any degree accessory" to the publications.[18] That is not to say that I would have struck out the allegations of ownership/operation currently pleaded by the plaintiff. It seems to me that this is one of those cases where one could not be confident that the position sworn to in the Temsamani affidavit is the only evidence that will ever be capable of being led at trial. Further, it would not have been appropriate to strike out a selection of the allegations upon which a case of publication might be made on evidence (so far as the total issue of publication is concerned) which was as likely as not to be incomplete.

26 In my view, the appropriate course is to order the plaintiff to provide further and better particulars of the allegations in paragraphs 4 and 5 of the statement of claim that Google Australia published the Google Images matter and the Google Web matter. Whilst the question of whether an allegation of publication in a defamation pleading is a conclusion from material facts, or a material fact requiring particulars, can be debated, in the circumstances of the present case, I am of the view that it is sufficient to order full and proper particulars of publication.

27 During the course of argument, I was told that there has been an exchange of correspondence between the parties concerning the basis for the plaintiff's case of publication against Google Australia and the issue of particulars. In a letter,[19] the solicitors for the plaintiff have provided some particulars which contain references to the plaintiff's written submissions in the present application. In my view, a proper stand alone set of particulars should be provided in respect of the plaintiff's allegation of publication against Google Australia.

28 I should mention one further matter that occurred during argument. In the course of his submissions, counsel for the plaintiff sought to call on a Notice to Produce seeking production of "the service agreements between Google Australia and Google Inc (and other subsidiaries of Google Inc), referred to on pages 11 and 14 of Google Australia's financial statements for the year ended 31 December 2009". However, production of these documents was not necessary for the hearing of the defendants' applications. They may be necessary in order to provide fuller particulars than the plaintiff might otherwise be able to provide as presently advised. However, that is a matter that (if necessary) can be debated on another occasion.

29 As part of their application, the defendants also contend that the statement of claim is embarrassing because each of the Google Images matter and Google Web matter contain a combination of what is described as "primary" publication (material appearing on a Google website) and "secondary" publication (material appearing on a third party website). The defendants contend:

"Material appearing on the Google websites is clearly separate and distinct from material appearing on the secondary website. The secondary publication comprises an article written by a Herald Sun journalist, re-published (with further material) in a website operated by another party. Plainly, these sources of material have different authors and are published on separate occasions for different purposes. Different defences might apply to imputations arising from the secondary part of the alleged publication and the part appearing on the Google website. By alleging as a single publication material appearing on different websites, hosted by separate parties and drawn from distinct sources, the plaintiff's pleading is embarrassing."[20]

30 The plaintiff's response to this submission is that there are no "primary" or "secondary" publications in the material complained of. Each web page of the Google Images matter and the Google Web matter is a Google website page. Copies of the web pages comprising the Google Images matter and the Google Web matter are annexed to the statement of claim.[21] On its face each web page said to be part of the Google Images matter and the Google Web matter is a Google website page. In the circumstances (and noting that[22] there may be expert evidence on this topic at trial), I reject the defendants' complaint that the statement of claim is embarrassing because of a grouping together of what are said to be primary and secondary publications. The fact that a part of the Google Images matter or the Google Web matter may have originally been written or published by a third party does not make the statement of claim embarrassing in its current form.

31 The defendants make complaint about each of the imputations said to arise from the Google Images matter and the Google Web matter (whether by way of false innuendo or true innuendo). There are three complaints. At least one complaint is made in respect of each occasion on which any of the four discrete imputations relied upon by the plaintiff are pleaded. The complaints are as follows:

(a) first, the particular imputation is incapable of arising;

(b) secondly, the particular imputation is impermissibly vague and/or imprecise; and

(c) thirdly, the particular imputation is not defamatory.

32 The principles for determining whether or not a matter complained of is capable of conveying particular imputations were summarised by Hunt J in Farquhar v Bottom.[23] His Honour said:[24]

"In deciding whether the matter complained of is capable of conveying to the ordinary reasonable reader the imputations relied upon by the plaintiff, I must be guided and directed by the test of reasonableness. I must reject any strained, or forced, or utterly unreasonable interpretation: Jones v Skelton ([1063] SR (NSW) 644). I must proceed upon the basis that the ordinary reasonable reader is a person of fair, average intelligence: Slatyer v Daily Telegraph Newspaper Co Ltd ((1908) [1908] HCA 22; 6 CLR 1 at 7); who is neither perverse: ibid; nor morbid or suspicious of mind: Keogh v Incorporated Dental Hospital of Ireland ((1910) 2 Ir R 577 at 586); nor avid for scandal: Lewis v Daily Telegraph Ltd ([1964] AC 234 at 260).

This ordinary reasonable reader does not, we are told, live in an ivory tower. He can, and does, read between the lines, in the light of his general knowledge and experience of worldly affairs: Lewis v Daily Telegraph Ltd (supra at 258); Jones v Skelton (supra at 650); Lang v Australian Consolidated Press Ltd ([1970] 2 NSWR 408 at 412). It is important to bear in mind that the ordinary reasonable reader is a layman, not a lawyer, and that his capacity for implication is much greater than that of the lawyer: Lewis v Daily Telegraph Ltd (supra at 277); Morgan v Odhams Press Ltd ([1971] 2 All ER 1156 at 1163); Lang v Australian Consolidated Press Ltd ([1970] 2 NSWR 408 at 412); Middle East Airlines Airliban SAL v Sungravure Pty Ltd ([1974] 1 NSWLR 323 at 34)."

33 In Soultonov v The Age Company Limited & Another,[25] Kaye J described the hypothetical ordinary reasonable reader in the following terms:[26]

"The issue which I must determine on the defendants' summons is a question of law, namely, whether the article was reasonably capable of conveying the imputation, pleaded by the plaintiff, to the ordinary reasonable reader. The hypothetical "ordinary reasonable" reader has been described as an ordinary person who does not live in an ivory tower, and who reads between the lines in the light of his or her general knowledge and experience of worldly affairs. Such a reader is described by the law as someone who is not "avid for scandal" and who is neither "unusually suspicious nor unusually naïve". He (or she) does engage in a degree of loose thinking, and is understood to read between the lines. In particular, it is important to take into account that the ordinary reasonable reader is a lay person, and not a lawyer, and that his or her capacity for implication is much greater than that of a lawyer. On the other hand, as observed by Mason J in Mirror Newspapers Limited v Harrison, it is necessary to draw a distinction between the reader's understanding of what the article is actually saying, and a judgment or conclusion which the reader may reach as a result of his or her own beliefs and prejudices after reading the particular matter in question."[27]

34 The principals to be applied when determining whether an imputation has been properly pleaded on the one hand, or is too vague and imprecise on the other hand, were discussed by Kaye J in Trkulja v Google Inc Llc & Anor.[28] His Honour said:[29]

"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.

Those two propositions can be derived from the leading judgment of Gleeson CJ in Drummoyne Municipal Council v Australian Broadcasting Corporation. 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'."[30]

35 As part of their complaints concerning the imputations (and specifically the first three imputations), the defendants point to the fact that the imputations pleaded in respect of each publication are in identical terms. The defendants submit that this is illustrative of the difficulties posed by these imputations. The assumption underlying this submission appears to be that publications in different terms cannot give rise to identical imputations. There is no substance in this submission. Each imputation alleged by the plaintiff must be looked at separately in respect of each publication from which it is said to arise. If the imputation is capable of arising from the publication under examination, and is not impermissibly vague and/or imprecise, and is defamatory, then it will be allowed to stand.

36 Finally, as to whether a publication is defamatory, the test of what is defamatory was set out and explained by French CJ, Gummow, Kiefel and Bell JJ in Radio 2UE Sydney Pty Ltd v Chesterton[31] as follows:

"A person's reputation may therefore be said to be injured when the esteem in which that person is held by the community is diminished in some respect.

Lord Atkin proposed such a general test in Sim v Stretch, namely that statements might be defamatory if 'the words tend to lower the plaintiff in the estimation of right-thinking members of society generally'. An earlier test asked whether the words were likely to injure the reputation of a plaintiff by exposing him (or her) to hatred, contempt or ridicule but it had come to be considered as too narrow. It was also accepted, as something of an exception to the requirement that there be damage to a plaintiff's reputation, that matter might be defamatory if it caused a plaintiff to be shunned or avoided, which is to say excluded from society.

The common law test of defamatory matter propounded by Lord Atkin was applied in Slatyer, although Griffith CJ expressed some concern about the ambiguity of the expression 'right thinking members of the community'. The general test, stated as whether the published matter is likely to lead an ordinary reasonable person to think the less of a plaintiff, was confirmed by this court in Mirror Newspapers, Chakravarti v Advertiser Newspapers Ltd and by Callinan and Heydon JJ in John Fairfax Publications Pty Ltd v Gacic. Gummow and Hayne JJ in John Fairfax referred to the likelihood that the imputations might cause 'ordinary decent folk' in the community to think the less of the plaintiff.

Putting aside Lord Atkin's additional requirement of being 'right-thinking', the hypothetical audience, that is to say the referees of the issue of whether a person has been defamed, has been regarded as composed of ordinary reasonable people, whom Spencer Bower described as 'of ordinary intelligence, experience, and education'. Such persons have also been described as 'not avid for scandal' and 'fair-minded'. They are expected to bring to the matter in question their general knowledge and experience of worldly affairs.

In Reader's Digest Brennan J explained that any standards to be applied by the hypothetical referees, to an assessment of the effect of imputations, are those of the general community:

'... Whether the alleged libel is established depends upon the understanding of the hypothetical referees who are taken to have a uniform view of the meaning of the language used, and upon the standards, moral or social, by which they evaluate the imputation they understand to have been made. They are taken to share a moral or social standard by which to judge the defamatory character of that imputation ... being a standard common to society generally ...'."[32]

37 I turn now to consider the four discrete imputations relied upon by the plaintiff

The first imputation: "The plaintiff is a criminal"

38 The first imputation ("the plaintiff is a criminal") is pleaded as a false innuendo in relation to the Google Images matter,[33] a true innuendo in respect of the Google Images matter,[34] a false innuendo in respect of the Google Web matter,[35] and a true innuendo in respect of the Google Web matter.[36]

39 The defendants' complaint about the first imputation is that it is "impermissibly vague and imprecise". In Trkulja v Google Inc LLC & Anor[37] ("the first strike out decision"), Kaye J struck out an earlier version of the plaintiff's statement of claim, which pleaded an imputation that the plaintiff "is a Melbourne criminal". Kaye J held that, in the context of the publication complained of, the imputation, "the plaintiff is a Melbourne criminal", was expressed in a form which was too wide and indeterminate.[38]

40 There is no material difference between the imputation that the plaintiff is a Melbourne criminal and the imputation that the plaintiff is a criminal. I agree with the reasoning of Kaye J in respect of the earlier imputation (the plaintiff is a Melbourne criminal). By the same reasoning, the current imputation (the plaintiff is a criminal) is expressed in a form which is too wide and indeterminate. Accordingly, this imputation cannot be allowed to stand (either as a false innuendo or a true innuendo in respect of either of the publications complained of).[39]

41 Whilst counsel for the plaintiff sought to distinguish Kaye J's conclusion in the first strike out decision on the basis that his Honour was concerned about whether the plaintiff was complaining of a general allegation that he is associated with "Melbourne crime"; or whether, more specifically, he was complaining that he was being likened to, or equated to, BF and Tanner, in my view there is no relevant distinction between the first strike out decision on this issue and the present complaint in relation to the first imputation. The first imputation suffers from the same defect found by Kaye J in the first strike out decision - namely that it is not sufficiently specific to identify how and in what sense that innuendo is pleaded by the plaintiff.[40] To quote Kaye J, the "problem principally arises because the plaintiff ... appears to rely both on the subtitle 'Melbournecrime' and also on the photographs of BF and Tanner". This problem was not cured by a statement from the Bar table that the first imputation is a "general allegation of criminality". Notwithstanding the differences between the impugned publications in the current version of the statement of claim and the matter complained of in the version of the statement of claim considered by Kaye J, the first imputation is (again to borrow the words of Kaye J) "in a form which is too wide and indeterminate".

The second imputation: "The plaintiff was so involved with crime in Melbourne that his rivals had hired a hit man to murder him"

42 The second imputation is pleaded as a false innuendo in respect of the Google Images matter,[41] a true innuendo in respect of the Google Images matter,[42] a false innuendo in respect of the Google Web matter,[43] and a true innuendo in respect of the Google Web matter.[44] The defendants make two complaints in respect of the second imputation: first, it is submitted that the second imputation is not defamatory of the plaintiff; and secondly, it is submitted that the imputation is "impermissibly vague and imprecise".

43 The defendants' complaints in respect of the second imputation are, to some extent, interrelated. The defendants submit that the words "involved with" are "so broad as to be near meaningless". The defendants ask, rhetorically: "Involved in what sense?" However, the answer to the defendants' question lies within the second imputation - viz: "So involved ... that his rivals had hired a hit man to murder him".

44 As to the complaint that the second imputation is not defamatory, the defendants contend that the words "involved with crime" say nothing defamatory about the plaintiff. It is submitted that the words "involved with crime" could be used to describe the Chief Commissioner of Police as much as any criminal. The answer to this submission is that, according to the second imputation, it is the plaintiff's rivals that have hired a hit man to murder him. The plaintiff's rivals are his competitors - and clearly criminals, rather than those involved with crime as law enforcement officers.

45 It follows that, in my view, the second imputation is (at least arguably) defamatory. Further, in the circumstances of the publications complained of, the second imputation is not impermissibly vague or imprecise (either as a false innuendo or a true innuendo).[45] Accordingly, the second imputation will be allowed to stand.

The third imputation: "The plaintiff is such a significant figure in the Melbourne criminal underworld that events involving him are recorded on a website that chronicles crime in Melbourne"

46 The third imputation is pleaded as a false innuendo in respect of the Google Images matter,[46] a true innuendo in respect of the Google Images matter,[47] a false innuendo in respect of the Google Web matter,[48] and a true innuendo in respect of the Google Web matter.[49] The plaintiff makes the same complaints about the third imputation as are made in respect of the second imputation: namely, that the third imputation is not defamatory and that the third imputation is "impermissibly vague and imprecise".

47 To say that a person is "a significant figure in [a specified] criminal underworld" is at least arguably (if not clearly) defamatory of that person. To the extent that the defendants submit that such a statement says nothing disparaging of the plaintiff, I reject that submission. The real question in respect of the third imputation is whether the jury will ultimately find that it was conveyed (either as a true innuendo or a false innuendo) by the publication of either the Google Images matter or the Google Web matter.

48 Further, the third imputation is given (in the context of the publications complained of) sufficient precision in the circumstances by defining the plaintiff's significance in the Melbourne criminal underworld by reference to the fact that events involving him are recorded on a website that chronicles crime in Melbourne. Accordingly, and for similar reasons to those given in relation to the second imputation, I do not propose to strike out the third imputation (either as a false innuendo or a true innuendo) in respect of either the Google Images matter or the Google Web matter.

The fourth imputation: "The plaintiff is a hardened and serious criminal in Melbourne, in the same league as BF, an alleged murderer and a drug trafficker, and Dennis Tanner, an alleged murderer.

49 The fourth imputation is now only relied upon as a true innuendo in respect of the Google Images matter.[50] The complaint made in respect of the fourth imputation is that it is incapable of arising from the Google Images matter - notwithstanding the extrinsic facts alleged to be known to persons to whom the Google Images matter was published.[51] Further, the defendants contend that the adjectives "hardened and serious" in the fourth imputation are strained and extravagant - and for this additional reason contend that the fourth imputation is incapable of arising.

50 Much of the defendants' argument in relation to the fourth innuendo proceeds on the premise that there is a "primary publication" and "secondary publication" within the Google Images matter. I have already rejected the defendants' submissions on that issue. The question of what imputation is actually conveyed by the Google Images matter to those with knowledge of the relevant extrinsic facts is, of course, not for consideration at this stage. The issue is whether the fourth imputation is capable of being conveyed, having regard to the principles I have set out above. Undoubtedly, a certain amount of reading between the lines has to be engaged in to arrive at the fourth imputation. However, I am not prepared to conclude that the fourth imputation is "utterly unreasonable" or so strained or forced as to be incapable of arising. It is not to the point that the defendants might ultimately persuade a jury that the Google Images matter (or a part thereof) portrays the plaintiff as having been the victim of a crime: even criminals can be the victim of a crime. Further, I am not prepared to strike out the words "hardened and serious". These adjectives give greater specificity to the fourth imputation and are, in my view, capable of arising to those with knowledge of the pleaded extrinsic facts.

51 During the course or argument, the defendants raised two further pleadings issues:

(a) First, Annexure B of the statement of claim is a hard copy of part of the Google Web matter. The defendants contend that there is a potential for confusion in that the second page of the Google Web matter is described in the particulars of publication under paragraph 5 of the statement of claim - but no hard copy is contained within Annexure B.

(b) Secondly, there is a potential for embarrassment in respect of what part or parts of the Google Images matter and the Google Web matter are relied upon to support the imputations pleaded. In this regard, the defendants rely on Kerney v Optimus Holdings Pty Ltd,[52] as authority for the proposition that a plaintiff in a defamation case should provide particulars of which word or words or parts of a publication are alleged to be defamatory.

52 The short answer to the first point is that the content of the Google Web matter is sufficiently identified by Annexure B and the particulars of publication (specifically paragraph (ii)) under paragraph 5 of the statement of claim. In any event, counsel for the plaintiff agreed during the course of argument to provide a full hard copy of the material relied upon as constituting the Google Web matter.

53 So far as the second point is concerned, it is trite to say that in an appropriate case a plaintiff will be ordered to provide particulars of which word or words, or part or parts, of an impugned publication are relied upon as being defamatory. However, this is ordinarily not done where the publication is short and confined to one subject-matter. In the present case, the matters complained of are relatively short and confined to one subject-matter. In the circumstances, I see no utility in ordering the plaintiff to provide particulars of the part or parts of each matter that are alleged to be defamatory. It seems to me tolerably clear that the plaintiff relies upon the entirety of each of the Google Images matter and the Google Web matter as supporting his imputations. In the event that I am wrong about this, then, as part of his obligations to make clear the case he is bringing, it will be incumbent on the plaintiff to advise the defendants which part of each publication it relies upon in support of his claim that the same is defamatory.

(a) the plaintiff will be ordered to provide further and better particulars of the allegation of publication in paragraphs 4 and 5 of the statement of claim; and

(b) paragraphs 6(a), 7(a), 9(a) and 10(a) of the statement of claim will be struck out.

55 I will hear the parties further on the appropriate form of orders, any question of leave to re-plead and costs.

[1] [2010] VSC 226.

[2] Trkulja v Google Inc LLC & Anor [2010] VSC 226, [27].

[3] Of the Supreme Court (General Civil Procedure) Rules 2005.

[4] 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 (see generally Trkulja v Google Inc LLC & Anor [2010] VSC 226, [2]).

[5] See paragraph 38 of the plaintiff's outline of submissions dated 7 October 2010.

[6] Including a claim for aggravated damages.

[8] (1829) M & M 432; 173 ER 1214.

[10] [1928] HCA 50; (1928) 41 CLR 331.

[12] 41 CLR 363-364.

[14] 41 CLR 364.

[15] Or indeed any other relevant defence.

[16] See generally Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575, 647 [180] (Per Callinan J); John Fairfax Publications Pty Ltd v Obeid [2005] NSWCA 60; (2005) 64 NSWLR 485, 503 [89] (per McColl JA) and Ayan v Islamic Coordinating Council of Victoria Pty Ltd [2009] VSC 119, [26] (Beach J).

[17] Para 3(d) of the statement of claim.

[18] Save possibly for the reference to the provision of services in paragraph 3(d) of the statement of claim.

[20] First and Second defendants' outline of submissions dated 16 September 2010 at paragraph [16].

[22] According to counsel for the defendants.

[23] [1980] 2 NSWLR 380.

[25] [2009] VSC 145; (2009) 23 VR 182.

[28] [2010] VSC 226.

[29] Ibid at paragraphs [19] and [20].

[31] [2009] HCA 16; (2009) 238 CLR 460, [3] - [7].

[33] Para 6(a) of the statement of claim.

[34] Para 7(a) of the statement of claim.

[35] Para 9(a) of the statement of claim.

[36] Para 10(a) of the statement of claim.

[37] [2010] VSC 226.

[39] Whilst in Trkulja v Yahoo! Inc & Anor [2010] VSC 215, an imputation "the plaintiff is a criminal" was allowed to stand, the question of whether that imputation in that case was too wide and indeterminate was not argued. In that case the argument was whether the imputation was capable of arising. In the result, Kaye J held that it was capable of arising from the publication complained of in that case.

[40] Trkulja v Google Inc LLC & Anor [2010] VSC 226, [23].

[41] Para 6(b) of the statement of claim.

[42] Para 7(b) of the statement of claim.

[43] Para 9(b) of the statement of claim.

[44] Para 10(b) of the statement of claim.

[45] See generally Trkulja v Google Inc LLC & Anor [2010] VSC 226, [19] and [20] and Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135,137.

[46] Para 6(c) of the statement of claim.

[47] Para 7(c) of the statement of claim.

[48] Para 9(c) of the statement of claim.

[49] Para 10(c) of the statement of claim.

[50] Para 7(d) of the statement of claim.

[51] See para 8 of the statement of claim.

[52] [1976] VicRp 37; [1976] VR 399.