The Return of Trkulja: Episode IV – Trkulja v Google LLC [2018] HCA 25

The plaintiff

The plaintiff

The Trkulja defamation franchise is into its fourth instalment, with the latest victory against the Google Empire coming with a stirring outcome arising from Mr Trkulja’s debut appearance in the High Court.

Previously in Trkulja v Google:

  • in 2012, Trkulja won $200,000 damages against Google for publication of search results that linked him with the Melbourne criminal underworld;
  • That year, Trkulja also won $225,000 for a similar claim against Yahoo!;
  • In December 2012, Trkulja wrote to Google again and asked that it take down certain image results and autocomplete search predictions. For instance, Google published images of Trkulja alongside Melbourne criminal identities when people searched “Melbourne criminal underworld”. Further, when a person searched “Michael trk” on Google, up would come search predictions like “michael trkulja criminal”, “michael trkulja Melbourne crime” and “michael trkulja underworld”;
  • In January 2013, Google removed links to some websites and, without admission, it blocked certain autocomplete predictions and search queries relating to Mr Trkulja. It declined however, to remove the images of Mr Trkulja which appeared.
  • Subsequently, Trkulja sued Google again in the Victorian Supreme Court.

The first step was that Google immediately applied to set aside the proceeding on the basis that Trkulja had no reasonable prospects of success. The application came on before His Honour Justice McDonald in 2015. Google ran three arguments:

  1. It did not publish the matter complained of;
  2. The matters were not defamatory of Trkulja; and
  3. Google was entitled to immunity from suit for public policy reasons.

Justice McDonald rejected all of Google’s submissions and the application to strike out was dismissed.

However, fans of the Trkulja franchise will recall Episode III: The Google Empire Strikes Back. In that episode, Google appealed Justice McDonald’s decision to the Court of Appeal of the Supreme Court of Victoria, and three judges wrote a judgment where the appeal was allowed and Trkulja’s claim against Google was summarily dismissed.That appeared to spell the end of the Trkulja.

The defendant was content with the outcome of Episode III

The defendant was content with the outcome of Episode III

Google was essentially successful because the Court of Appeal concluded that the images of Mr Trkulja could not be defamatory of him, being thumbnail photos of him alongside some Melbourne criminals, but also intermingled with 15 pages of photos of other people, including: actors, politicians, lawyers and a tram. The Court of Appeal concluded that no reasonable user of the internet would understand that publication of those images to mean that Mr Trkulja was a “hardened and serious criminal in Melbourne”. It also concluded that Google’s autocomplete results themselves could not convey defamatory meanings. The Google Empire succeeded.

But Trkulja was not finished. He appealed to the High Court. Episode IV. Five judges of the High Court heard the application and have unanimously agreed that the Court of Appeal was wrong. Very wrong. And too long and complicated [36], and “unacceptable” [52]. As for Justice McDonald at first instance, he was completely right. Essentially:

  • It was strongly arguable that Google’s intentional participation in the communication of the allegedly defamatory search results relating to Mr Trkulja to users of the Google search engine supported a finding that Google published the allegedly defamatory results. The High Court held that was correct at [38];
  • The inclusion of Mr Trkulja’s image in the search results for “Melbourne criminal” could also be defamatory, regardless that it was bundled in with many other images. That was a matter for trial; and
  • Google should not be immune from suit as a matter of public interest.

The High Court dealt with the Court of Appeal judgment swiftly and brutally. The five High Court justices unanimously made the following comments:

  • “… And contrary to the Court of Appeal’s approach, there can be no certainty as to the nature and extent of Google’s involvement in the compilation and publication of its search engine results until after discovery…. Given the nature of this proceeding, there should have been no thought of summary determination of issues relating to publication or possible defences, at least until after discovery, and possibly at all.” [39]
  • the test is: “whether any of the search results complained of are capable of conveying any of the defamatory imputations alleged.” Ultimately, that is a matter for trial. Not a matter for summary disposition.
  • The search results were capable of conveying the meanings pleaded by Trkulja. As set out at [60]: “And prima facie, the most obvious, logical connection between the terms of the search and the response is that those persons whose images or names appear in the response, under headings such as ‘melbourne criminal underworld photos’, ‘melbourne underworld crime’ and ‘melbourne underworld killings’, or at least some of them, are criminals or members of the Melbourne criminal underworld.”

Google.AustraliaThe High Court concluded that even if the list of persons potentially defamed by 15 pages of image search results might be large and diverse (as relied upon by the Court of Appeal to justify its conclusions), that was not the point. The conclusion was still sound. It is arguable and that is a matter for trial.

In one final fling, perhaps as an act of desperation, Google relied on at least one other search result for Mr Trkulja. At [65], the High Court referred to this: “on page three, a ‘snippet’ of a webpage which, under the heading, ‘Trkulja v Yahoo! – Defamation Watch” …… well that was never going to work.

All in all, this is the first time the High Court has considered internet publication since 2001 in Gutnick v Dow Jones. The important conclusions to take from the judgment appear to be these:

  • the High Court has upheld Justice McDonald’s decision that it is strongly arguable that Google is a publisher of its search engine results. This is also an affirmation of the decision by Justice Beach in Trkulja’s first win against Google in 2012. Ultimately, it is a matter for trial and depending on what type of defences Google might plead, it could also be a matter for discovery of documentation by Google of its processes as to publication;
  • the High Court has held conclusively that Google’s search results (whether text or image) and autocomplete search predictions, can arguably be defamatory and are matters for trial. The fact that there are many other search results (particularly images) is beside the point.

Both of these are likely to have enormous consequences for Google and other search engines in Australia. Any summary judgment application brought by Google moving forward would appear likely to fail. It will also be exposed to significant discovery obligations if it chooses to put publication in issue, or depending what other type of defence it might raise.

Meanwhile, like all good movie franchises, they end with a victory, but also with a short teaser for the next episode that is already in the works. Nothing is ever resolved. Mr Trkulja will return to the Supreme Court of Victoria for another trial next year in Episode V, and this time, Disney might want to buy the rights….








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Rebel Wilson’s Perfect Defamation Record: Wilson v Bauer Media Pty Ltd & Anor [2017] VSC 521

The plaintiff

The plaintiff

Rebel Wilson, Hollywood starlet and Australian heroine has added another chapter to her success, this time in real life Australian court. Her defamation victory is by far the largest victory in the history of Australian defamation law, and her lesson to Woman’s Day a humbling one: $4,567,472 worth humbling (plus interest and costs).

The Hollywood actress sued in the Victorian Supreme Court over a number of articles from 18-20 May 2015: one was in a printed edition of Woman’s Day (circulation 1.5 million) and seven further articles published online. The primary sting from these articles was that Rebel Wilson was a “serial liar” who invented fantastic stories about herself to make it in Hollywood and is so untrustworthy that nothing she says about herself can be taken to be true unless independently corroborated.

Defences of truth, qualified privilege and triviality all failed and a jury found that each of the articles were defamatory of Ms Wilson in June this year. It was left to Justice Dixon to assess the damages and hear evidence on that question.

His Honour’s judgment was unprecedented. It broke all records and in some places it read like an ethics piece on how journalists should not act. Publishing articles without a proper basis, with malice, publishing for the sole purpose of creating profits, lack of bona fides in the course of litigation …. all of it. Justice Dixon delivered not just a slap in the face to the publishers of Woman’s Day, but more like a politely worded decapitation. This was a verdict that will be remembered for the ages. What happened was this.

In 2012, around the time of the release of Pitch Perfect, an American box office hit that starred Ms Wilson as “Fat Amy”, a former classmate of hers posted a comment about her on the Woman’s Day website. The classmate wrote that “everything [Ms Wilson] has said about her life is a lie… what a lier (sic) she has become.”

A journalist with the defendants, Ms Nementzik reached out to this “source” in October 2012. The next day, the source asked for payment for information. Nothing progressed at that time. About a year passed and in October 2013, a Woman’s Day’s editor asked Ms Nementzik to reach out to the source again, which she did. She stated to the source that:

so many people are saying she’s completely ‘faking’ her past. So my editor wanted me to chat to you and just ask for a list of things she’s lied about… You can remain completely anonymous of course and we should be able to offer money x.”

Under cross-examination, Ms Nemenztik agreed that no-one had in fact told her that Wilson was faking her past.

The source sent a list of matters she claimed that Ms Wilson lied about. Much of it was incorrect, including claims about Ms Wilson’s name, age, birth date, where she grew up and her parents’ occupations. The next day, the source sent another email with more alleged lies. These were also found to be untrue. In any event, the source rejected an offer of $500 and said she was “looking for maximum payment” and a guarantee that her details would never be disclosed, including if Ms Wilson made a complaint.

Ms Nementzik prepared a draft article entitled “Rebel Wilson’s Big Fat Lies” which was a compilation of the two emails sent from the source. The editors stated that they loved it and agreed to pay the source $3,000. However a few days later, Woman’s Day got nervous and Ms Nementzik emailed the source and stated that they had sat with lawyers and the story could not go ahead because it was too problematic. Under cross-examination, Ms Nementzik agreed that the source was considered not reliable. That was November 2013.

Pitch Perfect 2 was due to open on 15 May 2015, again starring Ms Wilson. Woman’s Day thought that would be a good time to reprise the material about her, including much of the information that was previously considered unreliable. An article was prepared by Ms Nementzik: “Rebel Wilson’s Big Lies”. It was commendable that the word “Fat” had been removed from the proposed headline. Anyway, the editors thought this was “Amazing” and “So fun!!!”, although the headline was changed to “Just who is the real Rebel Wilson?” The article was published in the 15 May 2015 edition of Woman’s Day and then online.

Ms Nementzik’s research for the article consisted of looking for information on the internet and speaking only to the

The first article

The first article

source. She did not speak to Ms Wilson, anyone connected to her, any other students from her high school or the school itself. Justice Dixon was satisfied that neither she, nor any of the editors at Woman’s Day actually believed that Ms Wilson was in fact, a serial liar. Ms Newmentzik had seen material on the internet which showed Ms Wilson’s real age.

At trial, Woman’s Day did not call anyone from the editorial process to explain the decision to publish. His Honour found that this fact alone gravely aggravated the damages.

The next article was found to carry an imputation that Ms Wilson was so untrustworthy that nothing she says about herself could be taken to be true unless independently corroborated. The article was written by a different person, Ms Caroline Overington and was headlined “Separating fact from fiction: Will the real Rebel Wilson please stand up”.

This article referred to a previous interview with Ms Wilson from October 2014 where she stated, among many other matters, that her father had recently died. Ms Overington ended the May 2015 article with this:

I didn’t ask for a death certificate. I would like to live in a world where I wouldn’t have to ask for one.”

Nice. Then after that article was uploaded online, the judgment states that Ms Overington sent a series of insulting and harassing messages to members of Ms Wilson’s family, her American agent and the Disney Corporation. His Honour found that this also aggravated the damages.

The further articles appeared online over the next few days and set in train an “international media firestorm” for Ms Wilson. She claimed that the publications damaged her career. She claimed general damages and also made a claim for special damages for loss of earnings in an 18 month period from May 2015 until the end of 2016, as she was not offered lead roles in movies in that period, just after Pitch Perfect 2 was released (which happened to be hugely successful). She claimed $6.771 million in relation to new screen roles less income she earnt in the period, having taken on less remunerative work ($877,138).

General damages

Significantly and ground-breakingly, Justice Dixon found that under the terms of the Defamation Act 2005 (Vic), the cap imposed for damages for non-economic loss ($389,500) did not apply if a plaintiff was able to show that the publisher engaged in conduct warranting an award of aggravated damages. This is the first time this interpretation of the Act has ever been applied. It is certain to cause havoc to all publishers and glee for plaintiff defamation lawyers.

Anyhow, His Honour found that the defendants’ conduct aggravated the injury to Ms Wilson’s feelings and aggravated injury to her reputation in all manners of ways. The defendants ran defences of truth, triviality and refused to apologise. When the defendants received the initial letter of demand from Ms Wilson, the defendants replied that they would not apologise and would prove that Ms Wilson was a dishonest person. In court, Ms Overington refused to apologise for her statement about the death certificate in relation to Ms Wilson’s father.

His Honour was satisfied that the defendants’ conduct in pursuing the defences was lacking in bona fides. His Honour found that the defendants pressed defences when it could not have been responsibly advised to do so and were motivated to ensure that Ms Wilson was worried all the way to verdict by the possibility of an adverse outcome. Ultimately, His Honour found that it would be difficult to imagine conduct that could aggravate damages to a greater extent.

His Honour was satisfied that Ms Wilson was honest and still raw from the attack on her. It created a really tough time for her and her family. The imputations were very serious and only a substantial sum of damages would be adequate. Further, Ms Wilson gave evidence that the conduct of the defendants in the trial was “kind of like they’re getting the knife and just sticking it further into me”, “just devastating” to her and “insulting”.

His Honour found that the defendants had “launched a calculated, baseless and unjustifiable public attack” on Ms Wilson, who is a hardworking, authentic Australian born actress. The defendants had branded her as a serial liar who had fabricated almost every aspect of her back story from her name, age, childhood and upbringing in order to make it in Hollywood. “She was held up to be a phony and a fake”.

Ms Wilson was accepted to have “an extremely high reputation as an honest person, who had made it in Hollywood through sheer hard work and tireless dedication to pursuing opportunities to make and maintain a reputation as a quality actress.” His Honour continued “Ms Wilson’s reputation as an authentic, candid and honest down-to-earth Australian, was key to her identity and appeal and her reputation with moviegoers was central to her capacity to win lead or co-lead acting roles in which she would carry the movie.”

The article written by Ms Overington got a special mention. It conveyed a meaning that Wilson was so untrustworthy that nothing she says about herself can be taken to be true unless it has been independently corroborated. That was very serious. His Honour found that the article was written without a legitimate basis and made with malice. It was written as part of a campaign against Ms Wilson.

For general damages, taking account that the cap did not apply since the damages had been aggravated by the defendants, His Honour ordered damages of $650,000 for Ms Wilson.

Special damages

Ms Wilson put her special damages case as a claim for loss of an opportunity. To support the claim she led evidence that after the publications, she was barely offered and did not secure a lead or co-lead role in any new feature film or television series, which would have been expected on the back of Pitch Perfect 2. By the beginning of 2017 she was again working in film, but her claim only related to the period from mid May 2015 to the end of 2016.

Her expert witness was Peter Principato, an LA-based talent manager. He stated that following the release of Pitch Perfect 2, Ms Wilson was highly likely to have received several offers from studios as a lead or co-lead actor in the relevant period. She could have commanded a fee of USD$5 – 6 million for those.

Ms Wilson also called Sharon Jackson, who worked for the largest talent agency in the world and also worked for Ms Wilson. She spoke to people on Ms Wilson’s behalf every day to try and get work for her. When asked why Ms Wilson was not getting offers after the release of Pitch Perfect 2, her evidence was that it was a real mystery and nonsensical.

His Honour was ultimately satisfied that in the 18 month period:

  • there was an opportunity for Ms Wilson to earn income by acting in feature films in the USA that was enabled or enhanced by the success of Pitch Perfect 2;
  • that opportunity was lost or detrimentally effected;
  • the trajectory of Ms Wilson’s career to that point had abruptly stopped;
  • the articles published by the defendants formed the roots of a grapevine that spread the defamatory sting of the articles to the USA. In that respect, Ms Wilson heard reference to the allegations on radio in New York and saw it on a talk show on CBS, the biggest network in the USA;
  • the extent of communication of the defamatory sting was very substantial. It created an “international media firestorm” and the sting was a “toxic poison”.
  • The fact that Ms Wilson was not offered any lead or co-lead roles following the release of Pitch Perfect 2 was “otherwise inexplicable”.
Happily ever after....

Happily ever after….

Finally, His Honour was prepared to make an inference from the evidence that the publications were a cause of the loss, and a cause of the fact that Ms Wilson was not offered any lead or co-lead roles comparable to her roles in Pitch Perfect and Pitch Perfect 2 in that period.

In terms of valuing the lost chance, His Honour was satisfied that the plaintiff lost lead or co-lead roles in the period and she would have earned USD$5million each. His Honour then concluded that it should be valued at 3 times that figure, which was USD$15 million, but that the figure should be discounted to take account of a whole range of variables, such as whether a film would have been completed, tax, overheads and general uncertainties. His Honour discounted the gross value of the lost opportunity by 80%, and so assessed Ms Wilson’s special damages at USD$3million, which became AU$3,917,472.

In all, damages of $4,567,472. All defamation records smashed, Ms Wilson will no doubt ride off into the sunset, the sniff of success in the air, a great new idea for a new courtroom drama possibly to be played out on the big screen awaits….






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Tweed Shire Mayor gets revenge threefold – Milne v Ell [2017] NSWSC 555

Mr Ell, defendant in 2016, plaintiff in 2014.

Mr Ell, defendant in 2017, plaintiff in 2014.

Property developer, William Robert Ell sued Tweed Shire Councillor, Katie Milne in defamation in 2014. He sued over a letter to the editor which Ms Milne had written about a contentious building development conducted by Mr Ell. While Mr Ell did not attend the trial, he won the case and was awarded damages of $15,000 plus costs. The decision was handed down on 7 March 2014.

You would think that one defamation trial was enough for the parties, but no, there is more. After his win, Mr Ell was contacted by a journalist from the Gold Coast Bulletin. He told the journalist that Ms Milne was not a “fit and proper person to be a councillor” and that he also hoped that the judgment and costs that she had to pay would bankrupt her. On 13 March, the Gold Coast Bulletin played down the result in typical Gold Coast fashion: “KATIE LOSES BILLIONAIRE BOB BATTLE ‘I HOPE THIS SENDS HER BROKE” on the front page.

Ms Milne sued Ell for the statement to the journalist and also for the article that appeared in the paper. She also sued the Gold Coast Bulletin, although she ultimately settled with it on the basis that it published an apology and paid some costs.

The trial ran and Ms Milne gave evidence of how, as a member of the Tweed Shire Council, she got the record number of votes that had ever been recorded in the Shire and since the Gold Coast Bulletin article, she had been elected Mayor. She pleaded that the article meant that she was “not a fit and proper person to be a councillor”, which Justice Rothman held was carried by the article and was defamatory of her.

Mr Ell relied on the defence of honest opinion or fair comment. His Honour stated that the imputation could be either one of fact or opinion, depending on the context. The context was that the imputation was not based on her conduct in defaming Mr Ell, but was a statement of fact to justify the indirect consequence of the previous defamation case and her inability to meet the costs of those proceedings and the damages. At [54], His Honour then concluded it was a statement of fact. This must have been a close run thing.His Honour then concluded that Mr Ell was liable for the republication in the Gold Coast Bulletin because it was the

Katie Milne, plaintiff in 2017, defendant in 2014.

Katie Milne, plaintiff in 2017, defendant in 2014.

natural and probable consequence of him speaking to the journalist. No issue there. In assessing damages, His Honour was at pains to make the point that the earlier defamation proceeding was irrelevant to that issue, but there was no evidence that Ms Milne had been shunned or avoided and indeed since the publication, she had become Mayor. In all though, His Honour noted that it was hard to escape the suspicion that the case was a “tit for tat” exercise [83], but that too was not relevant. After considering all of the principles, His Honour settled on a figure for damages: $45,000 plus costs.

No doubt the Gold Coast journalists contacted Ms Milne for her reaction…..

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Melbourne defamation lawyer loses to Google: Defteros v Google LLC & Google Australia Pty Ltd [2017] VSC 158

Google Australia Pty Ltd – it looks like Google, smells like Google and it very much tries to act like it is not Google. For several years there have been several people who have all tried to sue Google Australia or Google New Zealand or Google UK, perhaps trying to get a local defendant when it is Google LLC in America that produces the search results which they complain about. Consistently, courts have found that those plaintiffs have over-reached. Consistently, those claims have been struck out on a summary basis.

Google Australia PL

Google Australia PL

Melbourne lawyer George Defteros believed his claim was different. Thankfully, he also sued Google LLC for the publication of search results for his name, and not just Google Australia, since the latter claim was, as His Honour Justice Dixon concluded – hopeless.

The plaintiff sued the two Google entities as a result of the publication of search results on the Google website. These included a hyperlink to an article that was written in 2004 entitled “Underworld loses valuable friend at court”, that referred to him.

After he sued, Google Australia wrote to the plaintiff and stated that the case against the Australian entity was hopeless. It asked that the plaintiff agree to discontinue that claim and it would agree that there be no orders as to costs. In hindsight, a good offer. The plaintiff rejected it and Google Australia applied for summary judgment.

The plaintiff alleged there were a number of different arguments, which made his case different from every other case before it in Australia and around the world. He argued that Google Australia participated in the business of Google USA and therefore was a publisher of search results. Creative.  The evidence, at its highest, showed that Google Australia provided sales and marketing support to Google USA, it provided advertising services, it provided research and it received payment from Google USA for those services.

However, this had nothing to do with the search results on which the plaintiff sued. His Honour concluded that this was not participation in the publication at all. The contention that Google Australia was a publisher as a result of those matters was “fanciful”. His Honour noted that there would be many aspects of the business of a publisher that were unrelated to the actions of communication or publication. In the case of Google, there were presumably thousands of companies participating in its business in advertising, marketing, assistance, revenue collection and so on. None of those would be publishers, such an outcome would be absurd.

As an example, His Honour noted that if the plaintiff was right, then if a vendor were to sell a car in a newspaper, and in an unrelated article in that edition, a person was defamed, the car vendor, like the newspaper employee who sold the advertising space, would have arguably participated in the business and would arguably be publishers. Absurd.

So the case against Google Australia was struck out, with an order that the plaintiff pay its costs on an indemnity basis. It may have only been a battle in a broader war, but having to pay for Google’s QC and its other lawyers on this application …. not a good start for this plaintiff at all.



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Trkulja III not as good as the originals: Google Inc v Trkulja [2016] VSCA 333

By 2008, Indiana Jones had fought, flown and fallen through several great adventures: all against great odds, in the face of powerful empires and despite significant hurdles, he ploughed on… ultimately to victory. Then came Indiana Jones and the Crystal Skull. One movie too many.

In 2012, Michael Trkulja famously scored defamation victories against Yahoo! and Google for publishing search results arising from searches of his name on their websites. Those results wrongly linked him to the Melbourne criminal underworld. Trkulja won $225,000 and $200,000 against these giants respectively.  For the internet giants, the Victorian Supreme Court really was the Temple of Doom.

Like Dr Jones, Trkulja felt he had another big win in him. He sued Google again. But like Dr Jones at the box office, the Court of Appeal concluded that this was just one adventure too many.

This time, Trkulja’s statement of claim asserted that he was defamed by:

  1. Compilations of thumbnail images returned by Google’s search engine in response to certain terms searched, usually related to the Melbourne criminal underworld (the Images Matter);
  2. Search results returned by the Google search engine to a range of searches that also involved the Melbourne criminal underworld (the Web Matter); and
  3. Autocomplete predictions that appeared at different stages of Trkulja’s name. Those predictions also involved the Melbourne criminal underworld.

Trkulja essentially claimed that these search results/ publications were defamatory of him because they carried imputations including that he was:

  • A hardened and serious criminal in Melbourne;
  • An associate of notorious criminals such as Andrew Veniamin, Carl Williams, Tony Mokbel; and
  • Such a significant figure in the Melbourne criminal underworld that events involving him are recorded on a website that chronicles crime in the Melbourne criminal underworld.
Victorian Supreme Court of Appeal

Victorian Supreme Court of Appeal

Earlier, Google had unsuccessfully applied to the Trial Division to have Trkulja’s case against it struck out. At that stage, Justice McDonald dismissed the application [2015] VSC 635.

Not to be denied, Google appealed. To win, it had to persuade the Court of Appeal that Trkulja had no real prospect of success.  It was a significant obstacle, but one that it ultimately met.

Google ran three arguments: firstly, that as a matter of law, it could not be held to have published the search results that Trkulja sued on, secondly that in any event, those search results were not defamatory of Trkulja and thirdly, that a search engine provider should be immune from a proceeding such as this. The last of these arguments was very ambitious and dismissed very quickly by the court. The first two arguments however, were dealt with in great detail and ultimately in Google’s favour.

The Images matter comprised image search results from the Google search engine. Those results were attached to the statement of claim and ran for 20 pages, mostly comprising thumbnail pictures. The search terms were a variety of terms that included Melbourne criminal underworld and variations to that theme. Of the many images displayed, an image of Trkulja was included, alongside many others, including specific Melbourne underworld figures.

However, the pictures also included a raft of apparently random people: the Chief Commissioner of

Marlon Brando

Marlon Brando

Police, a barrister, a solicitor, a murder victim, a journalist, Marlon Brando, earlier reports of other defamation proceedings instituted by Trkulja, the St Kilda pier and a Melbourne tram. Trkulja claimed that the search terms themselves, taken together with the thumbnail photos of himself alongside Melbourne underworld criminals, were defamatory of him. Justice McDonald had originally concluded that this was arguable.

As for the Web Matter, Trkulja’s statement of claim referred to a number of Google autocomplete predictions, if a person searched Trkulja’s name and a range of Google search results for terms like “Melbourne underworld criminals” and the like. Trkulja claimed that all of these Google results, including the autocomplete predictions, without more, were defamatory of him.

Trkulja gave notice of these complaints to Google on 3 December 2012 and asked Google to take them down. Notice is normally very important, because in previous cases, in order to establish publication, the plaintiff had argued that once Google received notice, if it did not remove the material within a reasonable time, it became a primary publisher of the material complained of.

Justice McDonald found that Trkulja had arguably been defamed and that it was a matter for trial.

The crux of Google’s appeal were its contentions that it could not be held to be a publisher of the matter complained of, and that Trkulja had no prospect of proving that the matter was defamatory of him.

Is Google a publisher of its search results?

The appellant

The appellant

Addressing publication at common law, the Court of Appeal laboured through its history. The critical difference was between a primary publisher and a secondary publisher. The Court noted that even if a person did not take part in the original chain of distribution, a person could still be held to be a primary publisher of material from the date when they were taken to have authorized or acquiesced in the earlier publication of that material by another [112]. This normally happened because the publisher was held to have acquiesced, ratified or taken responsibility for the publication. To establish this, a plaintiff normally had to show that the publisher had notice of the matter complained of, had the authority to remove that matter and did not do so.

The main example was the Byrne v Deane case when a letter was stuck to a noticeboard belonging to a golf club and officeholders at the golf club were sued as publishers because they knew about the letter being up, they had the power to remove it and they did not.

This was different to situations where a person intendedly, but unwittingly, distributed material within which defamatory matter appeared. In those instances, a person could be described as a secondary or subordinate publisher [113].  For a secondary publisher, it seemed that notice of the publication took less of a role and those publishers often relied on an innocent dissemination defence.

In this case, Trkulja ran the argument that Google was a primary publisher and that was all. That was critical. He did not argue that Google was a secondary publisher [225].

The Court of Appeal analysed many decisions relating to defamation claims brought against search engines, blogging sites, Facebook sites and Youtube sites, and noted that claims against site operators are to be treated differently to cases against search engines [285]. The question remained whether Google was a publisher of its search results. The Court concluded that the role of the search engine was not as a “passive instrument” [342] and at [348]-[349]:

[348] On first principles, we consider that a search engine, when it publishes search results in response to a user’s enquiry, should be accounted as a publisher of those results – and in this we include autocomplete predictions. It is a participant in a chain of distribution of material.”

[349] We also consider that a search engine should be accounted a secondary publisher….”

In all, the opinion of the Court was that Google was a secondary publisher of the search results and could avail itself of the innocent dissemination defence, at least before it was notified of the material and arguably after that too. It was not a primary publisher [357].

In this matter, the claim by Trkulja did not allege that Google was a secondary publisher, which the Court considered would have been arguable [370]. Trkulja only argued primary publication, and the Court concluded that this was not arguable. This meant that the way that Trkulja had put his case was not arguable and on that basis alone, the case ought to be dismissed.

Could the Images Matter or autocomplete predictions be defamatory?

Regardless of the Court’s conclusions on publication, these ultimately did not matter because the Court concluded that, in any event, the publications complained about were not capable of being defamatory [372].

The Court concluded that in determining meaning arising from the internet, the question must be determined by reference to the understanding of an ordinary reasonable user of a search engine such as Google [390].

On that basis, Trkulja would have no prospect of establishing that the Images matter conveyed any of the defamatory meanings asserted. Twenty pages of random images meant that the reader would not understand them in the way the plaintiff claimed. The plaintiff’s picture was simply one within a random compilation of images [400]. A reasonable user would be aware of the unpredictable results generated by an image search.

The Court concluded that the user of the internet, in context, would understand a disconnect between the images and the search terms and a repeat user would understand that the search results in their entirety did not reflect the meaning of the inputted words considered as a phrase [151].

The Court also concluded that autocomplete predictions could not be understood in a defamatory way [393], they are simply a collection of words that had been entered by previous searches.  Further, the other material sued upon were simply references to Trkulja’s previous defamation successes and the Court did not understand those to be defamatory. Overall, the matter sued on was incapable of being defamatory [412] – the case was dismissed.

So when the dust settles on all of this, unless Mr Trkulja seeks and obtains leave from the High Court, it looks like it might be his last case against an internet giant. Although one never knows. Indiana Jones 5 is apparently set for the screens in 2019…..

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Strip club owner is no brothel madam: Hardie v Herald & Weekly Times [2016] VSCA 103

The plaintiff, Ms Raelene Hardie, was a part owner and manager of a strip club in rural Victoria called “Club Rawhide”. On 16 May 2013, the Herald Sun ran an article written by Andrew Rule, a journalist, on its front page and on page 4.

The plaintiff's club

The plaintiff’s club

The article related to a story that Victoria Police were or ought to have been investigating corrupt or improper relationships between police officers and outlaw motorcycle gangs in the area.

Ms Hardie complained that the article portrayed that her strip club was a place where the outlaw motorcycle gangs fought and where they dealt with police. The article included these snippets:

  • Not just any outlaws – The Outlaws, one of the oldest ‘one percenter’ biker clubs around. They have two local chapters – one in Shepparton and one across the river at Kyabram. The whisper is these bands of brothers disagree on the issue of manufacturing and selling drugs.
  • They certainly have no objections to the local strip joint, Club Rawhide, set up in an industrial building next to a car yard overlooking the railway line.
  • Members of both groups are regulars at a raunchy strip venue, named Club Rawhide, in an industrial estate that’s walking distance from Shepparton police station and two popular hotels;
  • Of course, its good that police arrested the bikies and brawlers so efficiently at Club Rawhide. Madam Black Mercedes, who runs the place, will be grateful.
  • The Outlaws and a few country police officers seem to have a healthy mutual respect. Locals suggest Rawhide is a convenient common ground for the two groups to unwind after a hard day at the office. As drinkers do the world over, they probably talk shop and swap business cards and phone numbers…..
  • Whether Eagles dare wreck the chummy Club Rawhide ambience is yet to be seen.

There was no specific reference in the article to Ms Hardie, and only a handful of references to Club Rawhide. The plaintiff was simply referred to once as “Madam Black Mercedes”.

Ms Hardie was very upset by the article and rang the journalist that day to complain. They had a conversation where apparently, he agreed to apologise. During the conversation Ms Hardie strenuously denied that the Club was a brothel and was, among other matters, very hurt that the article had referred to her as a “Madam”.

The next day, Mr Rule went onto a radio breakfast show and apparently “apologised” as per their agreement. The transcript (EM, LD and MM were the radio presenters) included this:

RULE: I’ve got another apology, from Madam Rawhide.

EM:     We’ve got a second edition, Madam Rawhide, ok…

LD:      That’s the northern town that Andrew was on the front page of the paper talking about.

ALL:     It’s a strip club.

RULE: It’s a strip club – it’s a respectable strip club….

The radio breakfast team

The radio breakfast team


EM:     Do you do anything other than apologise for stuff you say in your articles?

RULE: Not much….


RULE: I had a call yesterday from the proprietor of Club Rawhide, who is a lady….. And she was referred to in the story as “Madam Black Mercedes”….. Madam Black Mercedes has called and she said: [in a growly voice]; ‘I’m not um, Madam Black Mercedes’. And she said ‘I’m not a madam’. And I said ‘M’amm, I meant that in a most respectful way, as people do when they talk about the Queen. In no other connotation’. So she swallowed that but she’s not that happy….

[Stifled laughter]….

EM:     As a professional communicator, you’re having trouble getting your meanings in your writings across at the moment aren’t you?

RULE: Well I am or I aren’t. I’m not sure Ed, maybe I’m getting them through too well. So first things was the Madam bit and we sorted that out and she said, as for Black Mercedes, I used to have a Black Mercedes, and then she explained to me that she no longer does. So I’m here to apologise about that, to the proprietor of Club Rawhide, which is a family friendly strip venue…


So he not only repeated the allegation that the plaintiff was a Madam, but he also made more of a joke of her. This may have made good radio, but as for court: no-one likes a smartaleck.

Ms Hardie sued on the newspaper article and the radio broadcast, although she did not sue the radio station, only Mr Rule for his words. She alleged that these imputations arose:

  1. The plaintiff runs a venue that is regularly attended by members of an outlaw motorcycle gang;
  2. The plaintiff runs a venue in which police give secret tip-offs to members of outlaw motorcycle gangs that hinder police investigations and frustrate search warrants;
  3. The plaintiff is a brothel Madam;
  4. The plaintiff runs a brothel at Club Rawhide in Shepparton.

At trial in July 2015, the trial judge found that the articles conveyed imputations 1 and 2, but not the brothel imputations in 3 and 4. Justice Whelan held that imputation 1 was true, but that imputation 2 was defamatory and not true. Win for Ms Hardie.

As for the radio broadcast, the trial judge found that none of the imputations were conveyed. In assessing damages, the trial judge awarded $90,000 damages.

So Ms Hardie appealed. The media cross-appealed and argued that none of the imputations were conveyed.

Firstly, the Court of Appeal found that imputation 2 was defamatory of Ms Hardie and that the trial judge was not in error there. It was defamatory simply because of what was said, even if it did not suggest a state or condition that was attributed to Ms Hardie personally. Strike one for the media.

The Court indicated that it would not have re-assessed the damages that the trial judge awarded in respect of that imputation and kept the damages at that stage to $90,000. However, the Court then went on to consider whether the article and broadcast meant that the plaintiff ran a brothel (which the trial judge had rejected).

In that respect, the three appeal judges found that the article did convey imputations 3 and 4. They found that the reference to Club Rawhide as a “raunchy strip venue…. In an industrial estate” and the description of Ms Hardie as Madam Black Mercedes would have conveyed one meaning to the ordinary reasonable person: namely that Ms Hardie was a brothel madam. Strike two for the media.

Then the Court of Appeal turned to the radio broadcast. This was where the media’s problems exacerbated. The Court of Appeal found that Mr Rule:

  • Was disrespectful and called Ms Hardie “Madam Rawhide” knowing of her complaint about the use of the term “Madam”;
  • The journalist, second defendant

    The journalist, second defendant

    Stated that Ms Hardie “swallowed” his explanation for calling her Madam Black Mercedes, meaning that his explanation was false and that her concern that it meant she ran a brothel, was true;

  • Stated that he was getting his meanings across too well, also meaning that Ms Hardie was right when she told him the article meant he was referring to her as a brothel Madam;
  • Basically informed the listeners that everything he had said about the situation was false when he finally referred to Club Rawhide as a “family friendly strip venue”, which was greeted with laughter.

So the Court of Appeal found that imputation 3 was conveyed and the trial judge’s findings there were overturned. Imputation 4 was largely the same. It then became necessary to re-assess the damages. The Court of Appeal found that Mr Rule’s conduct was unsatisfactory and this was mostly apparent during the radio broadcast:

If there had been any doubt about what the second respondent in fact conveyed to the ordinary reader about the applicant in the articles, that doubt was dispelled during the course of the radio interview. The second respondent had agreed to make an apology with respect to the description of the applicant as Madam Black Mercedes. Instead, he participated in a jocular session which a reasonable listener would plainly have understood was asserting that the applicant was a brothel madam….”

Strike three: media is out.

While the Court of Appeal did not make a finding for aggravated damages, it concluded that the imputations were seriously defamatory and the newspaper article remained online for more than two years after the article. For the articles, Ms Hardie won $150,000 and for the radio broadcast, a further $100,000. A big advancement on the $90,000 which she won at trial.

As for the journalist, the moral of the story can only be this: if an apology is greeted with laughter, that is not a good thing …




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Barrister’s internet defamation: He fought the law and the law won: Dods v McDonald [2016] VSC 201

During the evening of 11 December 2008, Tyler Cassidy, a 15 year old boy had stolen two large knives from Kmart at Northcote Plaza Shopping Centre, near All Nations Park. He moved through the shopping centre, its shops and car park, threating people with the knives and demanding that the police be called.

By the time he was in the park, four officers, including the plaintiff, Leading Senior Constable Colin Dods arrived at the scene. There was a confrontation between Cassidy and the police, and Cassidy refused to obey their calls to throw down the knives. He started to slowly advance towards the police in a threatening manner. Dods was separated from the other officers and Cassidy advanced towards him with knives in hand. Dods gave a warning shot which Cassidy ignored and continued to advance.

Dods feared for his life and fired two shots into Cassidy’s legs. When Cassidy continued to advance, the other officers fired several shots towards him. Cassidy was hit and died at the scene minutes later.

The Coroner

The Coroner

There was public outrage, there was media and eventually there was a Coroner’s Inquest that was held to investigate the death in late 2010. The hearing took 36 days, the findings ran for 129 pages and had 696 paragraphs. The findings were publicly available and the Coroner found that:

  • Dods did not contribute to Cassidy’s death;
  • Cassidy was shot when Dods was at risk of serious injury or death;
  • Dods was a dedicated police officer and had responded within the limitations of his training.

The defendant, a Queensland barrister, uploaded a website:  On it, he wrote a whole raft of allegations, including material that was published about Dods. The plaintiff sued on the website, which included the following words:

Who, or what, then, is Colin DODS?

Why do we know absolutely NOTHING about the individual who holds the record for killing the youngest person in Australian history, ever killed by a Police Officer?

Dods argued that the first publication meant and was understood to mean that he:

  1. Executed Tyler Cassidy;
  2. Shot and killed Tyler Cassidy without any or any adequate reason;
  3. Committed manslaughter.

The second publication that Dods sued on, also on the website, included the following words:

Tyler Cassidy did nothing to give 3 Victorian Police Officers the licence to execute him on 11 December 2008. He was a good, 15 year old kid, having a bad day, who acted impulsively and emotionally, under provocation. For that one bad decision, he was executed.”


Who killed Tyler & why has nobody been charged?

It seems that the Victorian Attorney-General and the Victorian Police Minister are unaware that Victorian Police Officers are subject to the Law. It is unlawful for them to use force that is out of proportion to any threat posed by an alleged perpetrator. It is clear that, at least 1 of the 3 Victorian Police officers, Sergeant Dods, used excessive force which was out of proportion to any threat posed by Tyler Cassidy, when he fired 6 shots at Tyler and killed him…..

Tyler would have been blinded by the capsicum spray and, as experienced Police Officersm those 4 police officers, especially Sgt Dods, would have known that fact. In the circumstances, it should have been a relatively simple matter for the 4 trained Police officers, one of whom was an experienced Sergeant, to overpower Tyler, without anybody being harmed. It may have taken longer than 3 minutes to do so, but it should have been possible. They were in a 13 hectare park. There were no members of the public around; there were 4 highly trained and heavily armed Police Officers on the one hand and a slightly built, agitated and half-blinded teenage boy on the other.

The question that must be answered is why did 4 trained Police Officers fail to subdue a slightly built, inexperienced and partially blinded teenager, other than by shooting 6 bullets into him and killing him!

…… they should ensure that, at the very least, Sgt Colin Dods is charged with the offence of manslaughter.”

Dods alleged that this meant that:

  1. He executed Tyler Cassidy;
  2. He shot and killed Tyler Cassidy like he was a monster and a dangerous mongrel dog;
  3. In shooting at Tyler Cassidy six times and killing him, he unlawfully used excessive force out of proportion to any threat posed by Tyler Cassidy;
  4. He chose to shoot Tyler Cassidy, a slightly built, inexperienced and partially blinded boy, six times when he knew or ought to have known that he and other police present could have otherwise overpowered Tyler Cassidy without anybody being harmed.

In July 2012 and January 2013, Dods emailed the defendant and stated that, in light of the Coroner’s findings, the allegations against him on the website ought to be withdrawn and the defendant should apologise. He never apologised. The matter went to trial.

The defendant was a barrister from Queensland

The defendant was a barrister from Queensland

In the course of the litigation, the defendant  pleaded four versions of a defence, the last of which was filed at the start of the trial. He variously claimed the following defences at various times: qualified privilege for discussion of government and political matters, truth, contextual truth,  fair comment, honest opinion, fair report of proceedings of public concern and triviality. He also alleged that the claim was statute-barred.

By the time the trial came around, the defendant argued only that the claim was statute-barred because there had been no publication in the 12 months before proceedings were issued and claimed triviality. All other defences were dumped.

The trial proceeded in front of a jury in late 2015 and ran for 6 days. The defendant himself did not give evidence and at the end of the plaintiff’s case, made a submission that he had no case to answer and did not have to call any evidence at all.

The basis for that was a claim that the plaintiff had only called evidence from one person, a friend, who had read the website during the 12 months before proceedings were issued. It also was the case that she had read the material previously and so the defendant argued because she had read it before, re-reading it was not enough to prove publication.

Justice Bell dismissed the application to have the case thrown out. His Honour concluded:

  • The plaintiff’s case was not just based on evidence of publication to one person, but was also based on an inference from the rest of the evidence that other people had read the website. His Honour found that given the public notoriety of the case, such an inference could be made and directed the jury in that way; and
  • As a matter of law, evidence of the witness who downloaded and read pages from the website containing the statements inside the limitation period was evidence of publication to her even though she had previously downloaded and read the page. This was because it was a case of continuing publication by the defendant.

The matter then went to the jury to answer the questions:  did the website convey the imputations complained of? Did the defendant have the defence of triviality? In layman’s terms: the pie in the sky defence.

The plaintiff was a member of Victoria Police

The plaintiff was a member of Victoria Police

The jury found for Sergeant Dods. Yes, the website was defamatory. For starters, it meant that Sergeant Dods had executed Tyler Cassidy: That is defamatory. It also meant that he gunned down Tyler Cassidy like he was a monster and a dangerous mongrel dog: That is defamatory. Further, it meant that by shooting him, he had committed manslaughter: Very defamatory.

It was then for Justice Bell to assess damages. His Honour found that Sergeant Dods had a good reputation as a respected member of the community and sergeant of police. That he had suffered intense distress, humiliation and embarrassment. That it caused great harm to his reputation and that despite a limited scope of publication, it was necessary to award him a sum to vindicate his reputation and to “nail the lie”. It was necessary to demonstrate to all the world that the defamatory publication represented a baseless challenge to the moral foundation of the plaintiff’s personal integrity and to his public standing. All nice reading for the plaintiff.

Also, His Honour found that the circumstances justified an award of aggravated damages. The reasons included that the defendant had failed to apologise, despite knowing of the Coroner’s findings and had persisted with a raft of defences, including truth, right up until the commencement of the trial, when they were abandoned.

As for the damages, His Honour landed on the figure of $150,000. A hefty price for the defendant to pay. Pretty sure that he will also be left with costs of the trial, and perhaps considering whether he should have relied on his discussion of government and political matters defence after all.



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Dank v Nationwide News Pty Ltd [2016] NSWSC 295. Number of days in Stephen Dank’s defamation trial – 20. Judgment Awarded – Priceless

The plaintiff

The plaintiff

Since 2013, the Australian sporting landscape has been dominated, not by any particularly amazing footballer, cricketer or athlete. No, it has been dominated by Stephen Dank – “sports scientist”. He is the man responsible for bringing into the Australian conscience a range of strange sounding peptides, unknown Mexican amino acids and apparently useful horse supplements. He also brought them into the bloodstreams of elite sportsmen across different footballing codes in different states and for different teams.

Most noteably in the AFL, where Essendon had 34 of its players found guilty of taking performance enhancing drugs in 2012. That regime was created by Dank and those players cannot play football this year, having been suspended by the Court of Arbitration for Sport in Lausanne. They can only commentate on tv….Meanwhile, the coach of Essendon from that time, James Hird, continues to familiarise himself with the expanses of the Australian legal landscape and either gets benefactors to pay his legal costs or he sues other people to pay them.

As for Dank, from 2013 he took up more column inches than any politician, actress or country in the Middle East. But to date, he has remained silent. He has left it to his barristers to do the talking, which they have had to do a lot of recently in NSW.

In that State, Dank had plied his wares at the Cronulla Football Club in 2011. The result of that jaunt was that players there accepted bans and a media frenzy ensued. Among the frenzy were six articles published by The Daily Telegraph and the Sunday Telegraph at various times in 2013. Dank sued on all of them and his juggernaut of cases were rolled into 3 proceedings that were heard by a jury in the NSW Supreme Court in one hit over 20 days in February and March this year.

First matter

Very broadly, the first matter complained of related to allegations published in The Sunday Telegraph that Dank had injected players at Cronulla with Warfurin, a blood-thinning medication.

The article published comments by the club doctor’s daughter on her Facebook page that:

In 2011, the doc turned up to a pre-season game to discover training manager Trent Elkin had employed a ‘sports scientist’ named Stephen Danks (sic). The doc was not informed, nor consulted about this decision.

Shortly after, the doc discovered mysterious heavy bruising on some of his players. He discovered that Danks had been injecting them with warfarin, a blood thinning medication, in an attempt to increase oxygen flow.

Concerned about the welfare of his beloved players, the doc confronted Danks and Elkin about what they were doing. When they refused to tell him, Doctor Givney resigned … in protest.”

The allegation that Dank had been injecting players with Warfurin was wrong. There was



no evidence that the drug was used.

Dank pleaded four imputations arose from the article and won on two of them. The imputations pleaded were:

  1. The plaintiff caused the Cronulla football players to be at risk of sustaining fatal injuries: Jury held that this was conveyed, but not defamatory of Dank;
  2. The plaintiff oversaw the administration of the medication Warfurin on Cronulla football players which caused heavy bruising and endangered their health: Jury found this was conveyed, was defamatory and was not true;
  3. The plaintiff oversaw the administration of a physically dangerous medication to Cronulla football players: jury found this was conveyed and defamatory, but that it was true; and
  4. The plaintiff injected the Cronulla players with Warfurin thereby endangering their welfare: jury found this was conveyed, defamatory and not true.

The defendants did not run a truth defence in relation to the injection of Warfurin, and so Dank won on those imputations in the first article. Just a matter of assessing the damages.

Second and third matters

The second and third matters concerned the provision of Dank’s supplements to a player named Jon Mannah, who had been diagnosed with Hodgkin’s lymphoma in 2009. He was among the group of players that received Dank’s supplements and his disease later progressed to non-Hodgkin’s lymphoma and he died in early 2013 at the age of 23.

For these matters, the media quoted from a secret independent report provided to the Board of the Cronulla Football Club. The following extract from the report was published:

Based on the chronology it appears Mannah was administered with substances including CJC-1295 and GHRP-6 during the period from March to May in 2011. A brief review of available published medical literature suggests an identified causal link between the use of substances such as CJC-1295 and GHRP-6 and the acceleration of the condition of the disease Hodgkin’s lymphoma.”

So for the second matter, the jury found that the articles conveyed the following meanings, which were defamatory of Dank:

  1. The plaintiff administered to football players peptide drugs (CJC-1295 and GHRP-6) which were prohibited by the World Anti-Doping Authority;
  2. The plaintiff acted with reckless indifference to Mannah’s life by administering dangerous peptides to Mannah whilst Mannah was in the remissions stage of cancer;
  3. By administering peptides to Jon Mannah the plaintiff accelerated Mannah’s death from cancer;
  4. The plaintiff administered dangerous and cancer causing supplements to Jon Mannah and other football players thereby exposing them to risk;
  5. The plaintiff’s conduct in administering peptide substances to football players was absolutely indefensible and justified one of Australia’s leading sports physicians to express his horror;
  6. The plaintiff acted with reckless indifference to Jon Mannah’s life because he administered untested peptides to Mannah whilst Mannah was in remission from cancer.

Seriously defamatory stuff….  But the jury found that it was all true. Dank lost.



The third matter was an article headed “Police look at Mannah death”, and it reported that the Australian Sports Anti-Doping Authority (ASADA) had handed information it held relating to Mr Mannah to the NSW police to assess whether criminal charges should be brought. The article did not name Dank, but he sued on it all the same. The jury found that the article conveyed none of the meanings alleged by Dank. Another loss for him.

Assessment of damages on the two Warfurin imputations

The assessment of damages was then a matter for Her Honour Justice Maccallum, in light of the jury’s findings. Dank won the two imputations relating to the injection of Warfurin, but lost on everything else. The defendants relied on all of the true imputations, essentially submitting that the  truth of all of them overwhelmed the defamatory impact of the two Warfurin imputations and submitted that damages should be nominal.

The evidence established that Warfurin was a dangerous drug and that its administration to young men competing in contact sport “would be most unwise”. There was no evidence that Dank had injected any player with Warfurin.

There was evidence instead that Dank supplied “BB Formula” to Cronulla, which the club doctor stated was recommended “for animal treatment only” and described as “a unique rice bran extract emulsion. A feed supplement for horses in training.” BB Formula was not approved for therapeutic use in Australia.

The defendants called expert evidence from Professor Salem, who gave evidence that the administration of BB Formula would be akin to a person receiving a platelet-inhibiting drug, which was “very dangerous”, its effect being that blood clotting and bruising would not repair properly. Professor Salem also gave evidence that the combining of different anti-platelet drugs without strict medical supervision was dangerous because it invited a major bleeding, and said:

People are well known to die from this [a combination of anti-platelet drugs]. It can bleed in the brain, have a major stroke and die from it.”

Counsel for the plaintiff attempted to show that Professor Salem was exaggerating. He did so by stating in cross-examining that the combination of BB Formula and Lactaway (another supplement that had been referred to) was “a dangerous cocktail, almost as bad as cyanide”.

Professor Salem agreed.

Not good for Dank.

Based on that evidence, the jury found that Dank had overseen the administration of a physically dangerous medication to Cronulla football players.

Her Honour concluded that she was satisfied that the sting of the two Warfurin imputations was substantially true, even though there was no evidence of injecting actual Warfurin. Her Honour stated:

The substance in question was not Warfurin; it was a substance intended as a feed supplement for horses. It might have sounded harmless but it had not been appropriately tested for therapeutic use by humans. It should not have been used on football players.”

This meant that the mitigating impact of the true imputations reduced the damages, not

In 2012, Essendon's Jobe Watson won the Brownlow Medal for the AFL's Best and Fairest. He is now suspended for taking performance enhancing drugs that year.

In 2012, Essendon’s Jobe Watson won the Brownlow Medal for the AFL’s Best and Fairest. He is now suspended for taking performance enhancing drugs that year.

just to a nominal amount, but worse for Dank: zero. Plus he has to pay the media’s costs of the 20-day trial. Even Shane Warne could not spin that result. Unmitigated disaster for Dank.

Maybe he can ask James Hird if he knows anyone who could pay the costs?


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Artists’ appeal upheld, record verdict set aside and re-trial ordered: Vakras v Cripps [2015] VSCA 193

In 2014, a gallery owner, Raymond Cripps was awarded a record $420,000 defamation verdict in the Victorian Supreme Court. The verdict was made by His Honour Justice Kyrou against two surrealist artists, Demetrios Vakras and Lee-Anne Raymond. They held an exhibition with Cripps’ gallery in 2009 and were so unhappy about their experience that they each published websites that were critical of Mr Cripps. He sued them in defamation.

There were three publications and the websites were found to be defamatory. The most significant imputation that was found in favour of the plaintiff related to a comparison by Mr Vakras of Mr Cripps with Hitler. It was referred to as “the Hitler Imputation” and no doubt that it was a critical foundation in the verdict of $350,000 damages for Mr Cripps as against Mr Vakras. The remaining $70,000 was awarded to Mr Cripps as against Ms Raymond for a separate website publication which did not mention Hitler, but was otherwise critical of Mr Cripps and his ability and actions as a gallery owner.

The artists appealed to the Victorian Court of Appeal, and before Chief Justice Warren and Appeal Justices Ashley and Digby, they were largely successful. The damages verdict against Mr Vakras was set aside and a new trial was ordered. However, the damages verdict as against Ms Raymond remained in tact.

Victorian Supreme Court

Victorian Supreme Court

Certain meanings were pleaded by Mr Cripps to have been conveyed by the three publications complained of, and the Court of Appeal noted that the trial judge was entitled to find for the plaintiffs on a meaning which was not pleaded, but was a permissible variant, so long as it was “not substantially different from and not more injurious than” the pleaded meaning. However, the problem for Mr Cripps was that the trial judge went further and in six instances, found that the publications conveyed defamatory imputations that were neither pleaded by the plaintiff, nor by the defendant. Further, the judge gave no indication that he might make a finding on his own meanings [31].

Counsel for Mr Vakras claimed that three of the meanings were outside the plaintiffs’ pleaded case and outside the meanings pleaded by the defendants, including the Hitler Imputation. This infected many of the imputations that were run and won by the plaintiff at trial … but were then lost on appeal.

There were a number of imputations pleaded in the case against both defendants, including that Mr Cripps:

  • was a disgraceful individual (the Disgraceful Imputation;
  • was a bellicose bully (the Bully Imputation);
  • made a profit from the exhibitions, and deliberately inhibited the artists’ capacity to promote the exhibition and caused it to fail (the Profit Imputation);
  • had a pattern of intimidating behaviour that left artists too fearful to describe their own negative experiences to the public (the Intimidating Imputation);
  • sexually harassed volunteers and staff at the gallery (the Harassment Imputation); and
  • repeatedly destroyed exhibitions of artists who exhibit with his gallery (the Destruction Imputation).

But it seems that the Hitler Imputation was the most significant. Once that was overturned on appeal, it seemed that a re-trial became a formality.

The Hitler imputation

Turning to the publication itself, the Court of Appeal referred to a passage in Mr Vakras’ publication that began by describing Mr Cripps as a self-confessed racist and that he was a “manifestation of the new-left who have adopted the sentiments Hitler expressed in Mein Kampf, but who believe that, though theirs and Hitler’s sentiments are the same, their racism is a `justifiable’ one.” Mr Vakras had also hyperlinked from his website to an article: “Hitler’s disciples: the new racism of the political left”.

The plaintiff pleaded that the first publication by Mr Vakras carried the meaning that: Mr Cripps is a racist who has embraced the view of National Socialism [133]. The defendants then pleaded that it meant that: Mr Cripps is a racist who holds views that are similar to those of Adolf Hitler, which they asserted was true [134].

In considering this, the trial judge asked: “Is Mr Cripps a racist or an anti-semite?”, and answered in the negative. He concluded that criticism of Israel did not mean that a person was necessarily anti-semitic.  The trial judge also had regard to evidence from other people that Mr Cripps was not a racist and did not hate Jews, and then concluded that Mr Cripps did not say what the defendants attributed to him in disputed conversations with the artists on 18 and 24 June 2009. Credit was a big part of the findings in relation to those conversations.

The trial judge made all sorts of findings on the credibility of the parties and they were largely adversely made against the defendants. But the Court of Appeal did not feel the need to address those because the resolution of the appeal did not require it [83]. However, it was noted by the Court of Appeal that the trial judge made findings that the defendants had deliberately lied in their evidence, even though they were not even cross-examined on that, no final submission was ever made to that effect and the trial judge made those findings without any indication at trial that he might do so [76].

Back to the Hitler Imputation, despite what the parties pleaded, the trial judge found that the sting of this imputation was that: Mr Cripps was a racist who condoned the atrocities that Hitler committed based on his views that the Aryan race was superior to all other races and that Jews should be exterminated [142].

Counsel  for Mr Vakras submitted that such an imputation did not arise and that the credit findings which the trial judge made had also led him into error. The Court of Appeal accepted those submissions [149].

At [150], the Court of Appeal unpacked Mr Vakras’ first publication and concluded that it must have been evident that he had embarked on a “philosophical exercise” with a “chain of reasoning” and was as follows:

The thesis – whether or not it was logical, attractive or correct – was not difficult to understand, as the reader would see. It went this way: (1) Hitler resorted to Biblical text to justify his racial exterminations – specifically, of the Jews. (2) Muslim Palestinians who kill Jews justify what they do by resort to text in the Koran; (3) the common feature of the killing of Jews by Hitler and of Jews by Muslim Palestinians is justification by resort to religious texts; (4) `new-left Nazis’ who support Palestine, who regard the Palestinians as oppressed by the Jews, and do not disapprove the killing of Jews by Muslims, are racists. Their sentiments are the same as Hitler’s, but they consider their racism justifiable; and (5) for Cripps, the killing of innocent Jews by Muslim Palestinians was justified. Thus, he was a racist, a manifestation of `new-left Nazis”.

The Court of Appeal found that this was what was imputed. So the meaning was not that Mr Cripps condoned Hitler’s atrocities based on his Aryan race superiority and the trial judge made an error in finding that. There were then consequences from that error. The trial judge found a meaning that went beyond the plaintiff’s case, and it also led to the truth defence being considered on a false basis. This then meant that the damages verdict had to be set aside and a new trial ordered [151-155].

Other issues

There were several other imputations fought over and other errors found, but really, once the error was found in relation to the Hitler imputation, the matter always had to be remitted for a new trial. This was clearly the most serious and probably the most significant basis of the fight between the parties.

Otherwise, the Court of Appeal concluded that the trial judge was correct in rejecting the defendants’ qualified privilege defence [91], even though the artists had a moral or social duty to inform other artists who might have been considering exhibiting at the gallery about Mr Cripps, and those artists had a reciprocal interest in receiving the information [339]. But the publication by the defendants on websites was to the world at large, they were not specialised types of websites and therefore not protected by qualified privilege [344, 346].

The Court of Appeal also dismissed the appeal by Ms Raymond in relation to damages awarded against her in relation to other imputations.

All in all, the Court of Appeal ordered a new trial on two of the five causes of action, including Mr Cripps’ action against Mr Vakras with respect to the first article [112]. In all:

  • Mr Vakras’ appeal against the judgment in favour of Mr Cripps was allowed and judgment set aside.
  • On the first article, there would be a re-trial of the “profit” and “Hitler” imputations and the plaintiff could re-plead on the “disgraceful imputation
  • On the second article, there would be a re-trial of the “intimidating” imputation and if the plaintiff was allowed to re-plead, on the “harassment” imputation.
  • Raymond’s appeal  against judgment in favour of Cripps was dismissed
  • Costs orders were set aside.

So the matter will return to the Supreme Court for another trial. Maybe this will be the Victorian Supreme Court’s answer to the Gacic proceeding in NSW that went for a decade…


Posted in contextual truth, Damages, Defamatory meaning, Qualified privilege, Trial, Uncategorized | Tagged , , , | Leave a comment

Hockey hoists Fairfax on its own placard: Hockey v Fairfax Media Publications Pty Ltd [2015] FCA 652

Joe Hockey

Joe Hockey

On 5 May 2014, Fairfax, through the Sydney Morning Herald, The Age and the Canberra Times, ran a series of articles about a Liberal Party fundraising entity called the North Sydney Forum. North Sydney is the seat held by Australia’s current Treasurer, Joe Hockey. The articles were headed “Treasurer for Sale” or “Treasurer Hockey for Sale” and Hockey was infuriated. So infuriated that he sued. Three separate proceedings were heard as one, in a trial which took place in the Federal Court (which is itself unusual) in March this year.

This was high stakes litigation, probably the biggest defamation trial in Australia for the last decade. He claimed that the articles conveyed some or all of the following imputations about him:

  1. He accepted bribes paid to influence the decisions he made as Treasurer of the Commonwealth of Australia
  2. He was prepared to accept bribes paid to influence the decisions he made as Treasurer of the Commonwealth of Australia;
  3. He corruptly solicited payments to influence his decisions as Treasurer of the Commonwealth of Australia;
  4. He is corrupt in that he was prepared to accept payments to influence his decisions as Treasurer of the Commonwealth of Australia;
  5. He corruptly sells privileged access to himself to a select group which includes business people and business lobbyists in return for donations to the Liberal Party;
  6. He knowingly permitted a Liberal Party fundraising forum with which he was associated to accept money from the corrupt Obeid family.

This is serious stuff. Hockey put his political career on the line. Even if he lost as a result of a clever technical defence, what would the public perception be? Could he then possibly become Prime Minister?

It was a massive gamble by the Treasurer but at the end of it, on 30 June, Hockey emerged with a $200,000 victory, a nice end of financial year bonus for him and probably a massive relief.

The win will undoubtedly be characterized by Hockey and the Liberal Party as emphatic, but for lawyers who read the judgment, the full story is not so clear. If anything, Hockey was very clever about how he pleaded his case and Fairfax might have been a bit unlucky.

The reason is simple. Justice White of the Federal Court concluded that none of the actual articles written about Hockey and published nationwide in hard copy or on the internet, were actually defamatory of him.

No doubt those articles were thoroughly vetted by Fairfax’s lawyers before they were published, and in His Honour’s view, the articles did enough to water down the effect of the controversial headline “Treasurer for Sale”. Justice White concluded that the actual content of the articles, when read as a whole, were not about Joe Hockey being bought, they did not mean that he accepted bribes or was corrupt [95], [150], they did not mean that Joe Hockey corruptly solicited payments [101]-[102], they did not mean that Joe Hockey actually received payments personally [127], but the articles, when read as a whole, were actually about the process where the North Sydney Forum offered “private access” to Joe Hockey at seminars and private functions, for the payment of political donations to the Liberal Party, and this was not corrupt but an acceptable form of political fundraising [118], [123], [129], [151]. It was really the headline that Hockey relied on.

So here comes the clever bit: besides the articles themselves, Hockey also sued on at least

North Sydney Forum

North Sydney Forum

two other separate publications, being Fairfax’s promotions of the articles apart from the newspaper. They were snippets where Fairfax tried to get people in to read the full story:

  • 2,466 placards were put up outside newsagencies throughout Australia, mainly in New South Wales. These placards only carried the headline: “Exclusive Treasurer for Sale Herald Investigation”, in large letters, and nothing else.
  • Two Fairfax Tweets which also stated “Treasurer for Sale” and then hyperlinked to the full articles.

Whether Fairfax ran these separate publications past their lawyers before going ahead is unclear, but without the supporting content of the articles themselves, once Justice White concluded that they were to be treated as separate publications, Fairfax were in a world of trouble. What does it mean to simply state “Treasurer for Sale” or “Treasurer Hockey for Sale”? How could that not be defamatory? Justice White concluded simply that it was.

His Honour concluded that the placards meant that Fairfax had carried out an investigation which had revealed matters indicating that Joe Hockey was “for sale” and that the newspaper contained a report of what the investigation uncovered. It did not state that what was “for sale” was a form of access to Hockey in the context of a means of commonly accepted political fundraising [167]. His Honour went on to find that these words meant that Hockey engaged in conduct that involved his willing receipt of payment of an improper kind, being a form of corrupt conduct [168], [171].

Justice White also made an important finding that the Tweets were separate publications to the articles that they hyperlinked to. Their meaning ought to be determined separately from the content of the hyperlinked article. The evidence showed that The Age had around 280,000 followers on its Twitter account and only 789 of those downloaded the hyperlinked article. Clearly, people may have read the Tweet without going further [207]. His Honour then concluded that the Tweets bore the same meaning as the placards, essentially being that Hockey engaged in corrupt conduct [209], [211].

Fairfax did not claim truth, fair comment or honest opinion as a defence. It could not. It claimed defences of qualified privilege at common law and pursuant to section 30 of the Defamation Act. To win on these defences, Fairfax had to basically prove that it had acted reasonably in publishing the placards and the Tweets. Hockey also asserted that Fairfax should be denied the defences because it acted with malice.

Strictly, these issues only needed to be decided in relation to the placards and the Tweets, but His Honour went further and considered whether Fairfax acted reasonably in publishing the articles. It was conceded that the publications contained discussion of government and political matter [222], but His Honour concluded that Fairfax would be unable to rely upon a defence of qualified privilege (either at common law or under section 30 of the Act) because Fairfax, through its journalists:

  • did not act reasonably [238]; and
  • alternatively, was actuated by malice [415],[420].

This was because His Honour found that Joe Hockey was not given sufficient opportunity by Fairfax to respond to the allegations before publication [246], [247], [360], [372] and that although Fairfax provided a set of questions for Hockey to answer before publication, none of them raised, among other matters, the question of sale by Hockey of access to him in return for political donations, which was a big part of the story [362].

Fairfax Media

Fairfax Media

Further, His Honour reached the conclusion on malice because Mr Darren Goodsir, the Editor in Chief of the Sydney Morning Herald, acted with the improper purpose of seeking to injure Joe Hockey’s reputation [406], [411], [415]. A blow for Fairfax and its journalistic independence. The nub of the criticism was that, although Goodsir was found to be a generally reliable witness, a good deal of the contemporaneous evidence indicated that he was intent on getting back at Hockey [399]. His Honour concluded that Goodsir had lost objectivity and if not for his desire to get back at Hockey, he would have probably had gone for a less provocative headline [411].

What happened was this: in March 2014, Fairfax carried an article which stated that a company that had links to the Obeid family (which name is synonymous with corruption in NSW [77]), was previously a member of the North Sydney Forum and had received a refund of its membership fees. The article claimed that Hockey had refunded that company’s membership fees. Fairfax were wrong because Hockey had never received nor refunded those funds personally [257]. Hockey’s office immediately complained and demanded a retraction.

After a series of telephone calls that were made around 1am in the morning following publication of the article, Fairfax decided to “apologise” and it published a statement [272] which Justice White described as “not really an apology at all…. no more than a statement of regret” and “bore a begrudging quality about it” [402].

Hockey’s barristers claimed that the “Treasurer for Sale” articles, which appeared in May 2014, were acts of payback by Fairfax because they were unhappy at having had to apologise to Hockey in March [376]. This was based on the internal Fairfax documentation, namely that after having published the “apology” in March, Goodsir then instructed the Fairfax journalists to “drop everything and start digging into NSF” [278], which he described as a “slush fund” [403]. His initial view after the complaint in March was not to provide an apology, but to instead publish a “critical story” [267].

After the digging request, the journalist subsequently came up with this: “The best angle at present I think is that the Treasurer is granting privileged and secret access to a select group of business people in return for their donations to his fundraising machine, the North Sydney Forum, in the form of annual membership fees.” [292].

Goodsir replied that day [293]:

Fxyyxz!@ing (sic) brilliant!

….. Given what Andrew and I endured last week with Hockey, I want to have this nailed to the cross in more ways than one.

…. I have long dreamed (well, actually only since last Friday), of a headline that screams: Sloppy Joe!

I think we are not far off, but perhaps even more serious than that.”

 Then later [296]:

I will be back on Mon 28 and want to be in a spot to launch our dirt on Hockey then.

This one ain’t over yet!

Against that background, His Honour held that Fairfax’s conduct in publishing the articles was not reasonable [332], [357], and that Fairfax were actuated by malice in publishing the articles. Any defence of qualified privilege would fail.

At the end of day then, the articles were held not to be defamatory, but the placards would have been read by many people who did not read the articles ($120,000 damages) and the Tweets would have been read by many people who did not download the articles ($80,000 damages). Sigh of relief from the Hockey camp, his chances of becoming Prime Minister remain intact.

But this may not be the end. Regardless of whoever won, the winds of appeal have always circled around this case. So while the ball is in Fairfax’s court, there may still be risks that if it appeals, it could end up worse for it. The risk being that the Full Federal Court might overrule Justice White’s findings that the actual articles were not defamatory. There is also a reasonable chance that the findings of malice might remain undisturbed, being findings of fact. So then it would all come down to the meaning of the articles, the placards and the Tweets. If the Full Federal Court found that the articles were also defamatory, it would only increase the damages.

But it looks like the real problems for Fairfax are the placards and the Tweets. People would have walked the streets of Sydney and seen those placards without ever opening the newspaper. 280,000 people would have received the Tweets and only 789 of them read the full article that was hyperlinked. On appeal, Fairfax would have to have another go at explaining away the discrete headline “Treasurer for Sale” to the Full Federal Court. It will be interesting to see what happens.

Posted in Damages, Defamatory meaning, government and political matter, News, Qualified privilege, Trial, Uncategorized | Tagged , , , | Leave a comment