proceedings before her Honour) three people. The judgment issued by her
Honour dealt with Google’s application that the proceedings be stayed
permanently or, alternatively, summarily dismissed as an abuse of process.
109 In the course of her Honour’s reasons for judgment, her Honour dealt with the
judgment of Hunt J in Urbanchich, to which earlier reference has been made.
In so doing her Honour, after referring to [44] of the reasons for judgment in
Gutnick, referred to a passage from the judgment of Hunt J in Urbanchich.
110 With respect to her Honour, I agree with the result to which her Honour came
and, largely with the reasons therefor. However, to derive comfort from the
judgment of Hunt J in Urbanchich was, in my respectful view, to misconceive
that which was before Hunt J. Her Honour, at [76] of Bleyer, recited the
following passage from the reasons for judgment of Hunt J:
“In a case where the plaintiff seeks to make the defendant responsible for the
publication of someone else’s defamatory statement which is physically
attached to the defendant’s property, he must establish more than mere
knowledge on the part of the defendant of the existence of that statement and
the opportunity to remove it. According to the authorities, the plaintiff must
establish that the defendant consented to, or approved of, or adopted, or
promoted, or in some way ratified, the continued presence of that statement on
his property so that persons other than the plaintiff may continue to read it - in
other words, the plaintiff must establish in one way or another an acceptance
by the defendant of a responsibility for the continued publication of that
statement.”
111 The reasons for judgment of Hunt J concerned the pictorial depiction of the
plaintiff in Urbanchich as a Nazi. That depiction was in a poster that was glued
to the property of the defendant, Drummoyne Municipal Council and, it seems,
others.
112 The publication of the defamatory material bore no relationship to the location
at which it was posted. The publication was performed by whoever glued the
poster to whatever wall or bus shelter was available. Drummoyne Municipal
Council was not building bus shelters for the purpose of hosting posters,
defamatory or otherwise, and it neither agreed to nor encouraged the display of
posters of any kind on their property.
113 The damages that were sought against Drummoyne Municipal Council were
damages that depended upon that defendant publishing the material and that,
in turn, depended upon Drummoyne Municipal Council continuing the