Kiefel CJ Bell J Keane J Nettle J Gordon J 13. findings of mixed fact and law in the trial of a defamation proceeding before judge alone. 37 The Court of Appeal's judgment is also replete with direct and indirect references to Google's affidavit evidence regarding the "world wide web", search engines, and the systems and processes by which Google claims that its computer search engine results are generated; and, despite the summary nature of the application and, therefore, the impracticability of affording Mr Trkulja access to an opportunity for meaningful cross-examination of Google deponents, ordinary interlocutory processes and tendering opposing evidence42, the judgment includes a range of purportedly definitive findings of mixed fact and law drawn from Google's affidavit evidence adverse to Mr Trkulja43. (i) Publication 38 McDonald J was correct to hold that it is strongly arguable that Google's intentional participation in the communication of the allegedly defamatory results to Google search engine users supports a finding that Google published the allegedly defamatory results44. Properly advised, that was all that the Court of Appeal needed to say on the subject. Instead, although the Court of Appeal did not decide the appeal on the question of publication, their Honours made a purportedly determinative finding of mixed fact and law45 that a search engine 42 See Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334 at 358 [52]-[53], 359 [56] per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ; [1999] HCA 9. 43 Google Inc v Trkulja (2016) 342 ALR 504 at 585-586 [320], 587 [332], 590 [348]-[349], 590-591 [352]. 44 See and compare Trkulja v Google (No 5) [2012] VSC 533 at [18]-[19], [27]-[31]; A v Google New Zealand Ltd [2012] NZHC 2352 at [67]-[75]; Oriental Press Group (2013) 16 HKCFAR 366 at 387-388 [50]-[54] per Ribeiro PJ (Ma CJ, Chan PJ, Litton NPJ and Gleeson NPJ agreeing at 373 [1], [2], 409 [123], 410-411 [127], 412 [133]); Dr Yeung Sau Shing Albert [2014] 4 HKLRD 493 at 534-536 [103]-[106]. 45 See Byrne v Deane [1937] 1 KB 818 at 837 per Greene LJ; Beitzel v Crabb [1992] 2 VR 121 at 128; Trkulja v Google (No 5) [2012] VSC 533 at [18]; Kenyon v Sabatino [2013] WASC 76 at [13]. See also Bass (1999) 198 CLR 334 at 358 [52]-[53] per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ.