Federal Court of Australia

Nikolic v Twitter International Company [2025] FCA 345

ORDERS

THE COURT ORDERS THAT:

1.    The Applicants’ further amended interlocutory application lodged on 31 August 2024 be dismissed.

2.    The Respondent’s interlocutory application lodged on 8 November 2024 be dismissed.

3.    The Applicants’ interlocutory application lodged on 28 November 2024 be dismissed.

4.    By 4pm on 17 April 2025, the Respondent file any written submissions, not exceeding five pages, in respect of the costs of the interlocutory applications referred to in order 1-3 above.

5.    By 4pm on 1 May 2025, the Applicants file written submissions in reply, not exceeding five pages.

6.    The question of costs be referred to a Registrar.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

ANDERSON J:

Introduction

1    The first applicant in this proceeding (Mr Nikolic) is an individual who is resident in Victoria.  The second applicant (the Company) is an Australian company of which Mr Nikolic is the sole director and shareholder.  The respondent is an Irish company whose registered office is in Dublin in the Republic of Ireland.

2    In 2019, the applicants commenced a proceeding in the Supreme Court of Victoria (S ECI 2019 00126) (Supreme Court Proceeding).  That litigation concerned claims in defamation arising from a number of “Tweets” posted in about 2017 to the digital platform X (formerly Twitter), hosted by the respondent.  The Tweets emanated from two “Twitter handles” which had not been established by the applicants, but which bore a name which the applicants considered represented an association with them or their brand.  The applicants alleged that the subject matter of the Tweets, emanating from the Twitter handles that implied an association with them, were defamatory of them and has caused them loss and damage.  The respondent defended the Supreme Court Proceeding.

3    On 2 July 2021, pursuant to terms of a written settlement agreement, the applicants and the respondent agreed to settle the Supreme Court Proceeding (Settlement Agreement).  The Supreme Court Proceeding was dismissed by consent with no order as to costs.  The terms of settlement involved:

(a)    a payment by the respondent to the applicants of a sum of money;

(b)    the respondent’s facilitation of the transfer to the applicants of the Twitter handles;

(c)    a release by the applicants of the respondent “from any claim related to, connected with, or arising out of any matter, fact or circumstances in any way connected with the” Supreme Court Proceeding and allegations of defamation regarding the Tweets.  The Settlement Agreement noted that the release could be used as a bar to any claims which was the subject of the release;

(d)    the dismissal, with no order as to costs, of the Supreme Court Proceeding; and

(e)    no admission of liability.

4    The terms of the Settlement Agreement were subsequently performed, and the Supreme Court Proceeding dismissed by consent with no order as to costs.

5    Notably, the terms of the Settlement Agreement did not require the respondent to remove any of the relevant material from X.  Around August 2021, the applicants complained that a number of responses to the Tweets which had also been posted in about 2017 were still visible on X.

6    By their originating application filed in this proceeding on 8 September 2021 (Originating Application), the applicants sought relief from this Court arising from certain materials remaining accessible on X, including orders that:

(a)    the Settlement Agreement be permanently stayed;

(b)    the respondent remove certain responses “or any matter to the same effect” from the platform; and

(c)    the respondent pay equitable compensation to be assessed by the Court pursuant to r 30.41 of the Federal Court Rules 2011 (Cth) (Rules).

7    The respondent contended that it had not been properly served with the Originating Application under the Rules, being a person outside Australia, and filed a conditional appearance in this proceeding.

8    By an interlocutory application dated 12 October 2021, the applicants sought “procedural orders” to confirm effective service of the Originating Application on the respondent under r 10.43(6) of the Rules, as well as “substantive interlocutory orders” that reflect the substantive relief sought in the Originating Application.

9    By an interlocutory application filed on 1 April 2022, the respondent sought an order pursuant to r 13.01(1)(a) of the Rules that the Originating Application be set aside, or alternatively, a declaration pursuant to r 13.01(1)(c) that the Originating Application was not duly served on the respondent.  The substance of the respondent’s submission regarding r 13.01(1)(a) was that the material before the Court did not demonstrate that the applicants have a prima facie case for all or any of the relief claimed, nor did the Court have jurisdiction in the proceeding.

10    On 26 August 2022, I referred the applicants’ and the respondent’s interlocutory applications to Senior National Judicial Registrar Alison Legge for hearing and determination.

11    The applications were heard before Registrar Legge on 16 November 2022.  The two critical questions for determination before Registrar Legge were:

(a)    first, whether the Originating Application had been duly served on the respondent; and

(b)    second, whether the issues identified by the respondent in relation to the claimed relief were so fundamental that the Court should set aside the Originating Application altogether.

12    Registrar Legge, in detailed and cogent reasons, determined that the Originating Application had not been duly served on the respondent.  Registrar Legge further determined that the Court did not have jurisdiction in the proceeding and that the applicants did not have a prima facie case for any of the relief sought in the Originating Application.  Registrar Legge found that the applicants did not have a prima facie case for relief because the settlement agreement had been performed, there was no breach of its terms by the respondent, nor any vitiating conduct such that the settlement agreement had fully extinguished the applicants’ claim.  Registrar Legge also noted that the Originating Application was filed well outside the relevant limitation period.

13    As a consequence, on 22 November 2022, Registrar Legge made orders setting aside the Originating Application and declaring that it had not been duly served on the respondent.

14    Following the parties filing submissions as to costs, on 14 December 2022, Registrar Legge ordered that the applicants pay the respondent’s costs fixed as a lump sum of $25,324 (Costs Order).  The applicants have failed to pay the Costs Order.

15    On 4 April 2023, the applicants’ filed an application seeking to review, pursuant to s 35(A)(5) of the Federal Court of Australia Act 1976 (Cth) (Act), Registrar Legge’s 22 November 2022 and 14 December 2022 orders, and an extension of time to bring the review.

16    Section 35A(5) of the Act provides that an application to review the exercise of power by a Registrar be made within the time proscribed by the Rules.  Rule 3.11(2) provides that an application must be made within 21 days after the day on which the power was exercised.  Registrar Legge exercised the relevant powers on 22 November 2022 and 14 December 2022.  The review period for those orders expired on 13 December 2022, and 27 January 2023 respectively.  The Applicants’ application was therefore filed some 16 weeks after the time proscribed for making an application to review Registrar’s Legge’s orders dated 22 November 2022.  As a consequence, the applicants need leave pursuant to r 1.39 of the Rules to extend the time in which to file the application.

17    On 19 February 2024, the applicants filed an amended interlocutory application in which the applicants sought, in addition to the review of Registrar Legge’s orders, further interlocutory relief including:

(a)    pursuant to s 23 of the Act, an order that Mr Justin Quill and Ms Samantha McGeoch, being the solicitors of the respondent, be restrained from acting for the respondent in the proceeding;

(b)    suppression orders under s 37AF of the Act;

(c)    an order that the named respondent be amended from Twitter International Company to X (known as Twitter) International Unlimited Company;

(d)    leave to file and serve an amended originating application and amended statement of claim; and

(e)    pursuant to s 23B of the Limitations of Actions Act 1958 (Vic), an order that the limitation period for the matters in this proceeding be extended to 6 September 2021.

18    On 31 August 2024, the applicant filed a further amended interlocutory application in which the applicants also sought a stay of Registrar Legge’s Costs Order.  The further amended interlocutory application was spurred by a letter dated 15 August 2024 from the respondent’s solicitors seeking payment of the Costs Order and interest.

19    On 8 November 2024, the respondent filed an interlocutory application seeking for the proceeding to be dismissed pursuant to r 10.43A(1) of the Rules, on the basis that the claim had insufficient prospects of success.

20    On 28 November 2024, the applicants filed an additional interlocutory application in which they sought the following various forms of relief:

(a)    that order 8 of the orders I made on 31 October 2024 (providing for the respondent to file its proposed interlocutory application by 8 November 2024) be vacated on the grounds that the applicants’ (amended) originating application and statement of claim have not been duly served on the respondent;

(b)    that I be recused and/or disqualified from this proceeding;

(c)    the applicants’ [further] amended interlocutory application dated 31 August 2024 be necessarily determined and/or finalised first, with respect to the originating application and statement of claim that have not been duly served on the respondent;

(d)    the [first] applicant be granted leave to appear for the second applicant;

(e)    the respondent’s solicitors, Mr Justin Quill and Ms Samantha McGeoch, be joined as parties to the proceeding;

(f)    the respondent’s solicitors pay the applicants’ costs in respect of their directions of an unreasonable insult to him on the basis of his disability in the Supreme Court of Victoria Proceeding No S ECI 2019 00126;

(g)    the proceeding be pending after the determination of the Supreme Court of Victoria proceeding numbers S ECI 2019 00126, S ECI 2023 00856, and S EAPCI 2024 0087; and

(h)    the respondent be declared in contempt of Court.

21    The applicants’ further amended interlocutory application dated 31 August 2024, the respondent’s interlocutory application dated 8 November 2024, and the applicants’ interlocutory application dated 28 November 2024 were heard together before me on 28 February 2025.

22    Before considering the applications before me, it is also relevant to note that more than two years after the dismissal of the Supreme Court Proceeding, on 24 November 2023, the applicants filed a summons in the Supreme Court of Victoria seeking to reinstate the proceedings, and to set aside the Settlement Agreement and the orders dismissing the proceedings.  The summons was dismissed by the Supreme Court of Victoria on 1 July 2024.  The Supreme Court of Victoria found that there was no basis on which the Settlement Agreement might be regarded as void or voidable, the respondent performed its obligations under the Settlement Agreement, there was no evidence that the respondent breached the Settlement Agreement, and that there was no other basis on which the order of the Court dismissing the proceeding could be recalled.  The applicants filed an application for leave to appeal that decision on 28 July 2024 (S EAPCI 2024 0087).

Consideration

23    At the hearing of the interlocutory applications, Mr Nikolic represented himself and the Company with the assistance of Auslan interpreters.  On the morning of the hearing, my chambers received correspondence from Mr Nikolic in which he indicated that he was unwell and that he wished that the duration of the hearing be limited.  I informed Mr Nikolic that, in light of his request and that he was feeling unwell, that I would proceed to determine the application for review on the papers after having read each of the submissions filed by the applicants and each of the submissions filed by the respondent.  Mr Nikolic indicated on behalf of the applicants that he was content for the matter to be determined on the papers on the basis of the material that had been filed with the Court.  In light of this, Mr Quill, who appeared for the respondent, made brief oral submissions but otherwise sought to rely on his written submissions.

Extension of time to bring review

24    The first and primary question before me, is whether an extension of time should be granted in relation to the applicants’ application to review Registrar Legge’s orders.  Whether this proceeding can be continued, and therefore whether many of the other orders sought by the applicants are relevant to consider, are dependent on granting an extension of time under r 1.39 of the Rules.

25    As noted above, the application to review Registrar Legge’s decisions was filed on 4 April 2024.  The review period for the orders dated 22 November 2022 and 14 December 2022 expired on 13 December 2022 and 27 January 2023 respectively.

26    The Court has a broad discretion under r 1.39 of the Rules to extend the times fixed by the Rules. While the discretion is unconfined by any express words, the principal matters that the Court takes into consideration when determining whether to grant an extension of time are:

(a)    the reasons for the delay;

(b)    whether there is an arguable case; and

(c)    prejudice to the respondent or other parties: Hunter Valley Developments Ltd v Cohen (1984) 3 FCR 344 at 348-349 (Wilcox J); Tuscan Capital Partners Pty Ltd v Trading Australia Pty Ltd (in liq), in the matter of Trading Australia Pty Ltd (in liq) [2020] FCA 163 at [16] (Perram J); Deputy Commissioner of Taxation v Australian Investment & Property Corp Pty Ltd [2014] FCA 666 at [8] (Gordon J); Owen-Pearse v Lander Land Co Pty Ltd [2018] FCA 2077 at [16]-[18] (Banks-Smith J).

27    Considering the reasons for the delay, the only explanation provided as to the delay is an assertion by the first applicant that he had COVID-19 around December 2022.

28    The only material by which the first applicant seeks to make good his assertion are two documents annexed to the applicants’ interlocutory application filed 4 April 2023. The first document comprises a screenshot on an unknown date from the Victorian Department of Health acknowledging that Mr Nikolic had self-reported on an unknown date that he had tested positive for COVID-19.

29    The second document is a medical certificate dated 3 April 2023 which certifies that Mr Nikolic had a medical consultation, via telephone, with a doctor at the Remedium Medical Clinic in Noble Park, Victoria, on 12 December 2022, in which Mr Nikolic reported that he had tested positive for COVID-19 (on a self-administered RAT test) and complained of upper respiratory tract symptoms consistent with a COVID-19 infection.

30    There is no other documentary evidence in the affidavits filed by the applicants which explain the 16-week delay in filing the applicants’ application for review of Registrar Legge’s decisions.  Even assuming, in Mr Nikolic’s favour, that during the review period for Registrar Legge’s orders Mr Nikolic tested positive for COVID-19, there is no explanation as to the severity of his symptoms, nor why they prevented him from filing the application for review within the 21-day period proscribed by the Rules.  Mr Nikolic has not put on any evidence to explain the duration or severity of his symptoms, nor how those symptoms meant that he was unable to file the application to review within time.

31    While I accept that the first applicant is self-represented and therefore, a certain degree of understanding may be afforded around slippage of deadlines, it was clear to the applicants that leave to extend time for the review application was necessary, and that evidence supporting the explanation of the delay would need to be provided.  Ultimately, I am not satisfied on the material before me that an adequate explanation has been provided in relation to the applicants’ material delay in filing the application for review of Registrar Legge’s orders.

32    In any case, it is also relevant to consider the merits of the application.  I am satisfied that there is no merit in the application for   review of Registrar Legge’s orders.

33    The assessment as to the merits of the application proceeds by reference to the relief sought if the extension is granted given that reviews of a registrar’s exercise of power proceed de novo.

34    There are two key issues which are ultimately insurmountable for the applicants.

35    The first is the lack of service.  Under r 10.46, a document may be served outside Australia without being personally served, so long as it is served on the person in accordance with the law of the country in which service is effected.  There is no evidence before this Court as to proof of valid service on the respondent in accordance with the Rules, being personal service or service in accordance with the laws of Ireland.  The attempts made by the applicants were outlined at [30] of Registrar Legge’s reasons for her decision on 22 November 2022.  While the applicants have no doubt taken steps in an attempt to bring the application to the attention of the respondent, the applicants have not provided any sufficient basis to establish that they have done so in a manner which constitutes valid service under the Rules.

36    More significant than the issues with service is the Settlement Agreement.  A review of the applicants’ statement of claim illustrates that the applicants’ underlying concerns is that material related to the Tweets remain visible on X.  The applicants appear to claim that this constitutes a breach of the Settlement Agreement and provides a basis on which to now seek orders for the Settlement Agreement to be stayed, for the respondent to remove the relevant tweets from X, and for the respondent to pay compensation for loss and damages.

37    As was noted above, the Settlement Agreement did not require material to be removed from X.  As has been separately found by the Supreme Court of Victoria in relation to the applicants’ challenge to the dismissal of the Supreme Court Proceeding, there is no basis on which the Settlement Agreement might be regarded as void or voidable, and the respondent has performed its obligations under the agreement.  No sufficient material has been put before me by the applicants to indicate that the respondent has breached the Settlement Agreement.

38    In my view, the applicants’ claim has been fully compromised by the Settlement Agreement.  By that agreement, the parties settled all allegations and claims of injury or damage arising from the Tweets “or any republication or related publication… or any facts, circumstances or matters relating to” the Tweets or the relevant accounts.  I accept that the respondent would be entitled to plead the Settlement Agreement as a complete and effective bar to the claims which the applicants seek to bring.

39    For the reasons outlined above, I decline to exercise the discretion pursuant to r 1.39 of the Rules to extend the time in which the applicants may file their application to review Registrar Legge’s orders made on 22 November 2022 and 14 December 2022.

Other matters

40    Given that no extension of time has been granted to the applicants, Registrar Legge’s orders remain undisturbed.  Pursuant to those orders, the Originating Application has been set aside and it is declared that the Original Application was not validly served on the respondent.

41    A number of matters flow from this.  Firstly, it is unnecessary to consider the respondent’s interlocutory application dated 8 November 2024, as Registrar Legge’s orders setting aside the Originating Application remain unaffected.

42    Secondly, it also disposes of a number of the applicants’ claims for relief which are contingent upon the proceeding continuing.  This includes the orders sought by the applicant in its further amended interlocutory application dated 31 August 2024 for a stay of the Costs Order, for a transfer of the proceeding to the Supreme Court of Victoria, for the respondent’s solicitors to be restrained from acting for the respondent, for renaming the respondent, for the filing and serving of an amended originating application and amended statement of claim, and an extension of relevant limitation periods.

43    In relation to the applicants’ interlocutory application dated 28 November 2024, it is worth briefly noting the following:

(a)    the applicants appear to argue actual bias as the basis for which I should recuse myself from this proceeding.  In making this submission, the applicants refer to delays in listing the matter, and to case management decisions which went against the applicants.  The applicants’ application for review was re-scheduled once as I was unable to hear the matter due to a scheduling conflict, following which the re-scheduled hearing was further vacated due to the applicants seeking leave to file the amended interlocutory application on 19 February 2024.  The applicants were requested to provide an amended interlocutory application that tracked the changes made, however no such application was then provided until the further amended interlocutory application was lodged on 31 August 2024.  In any case, the matters which the applicants have pointed to are entirely insufficient to base a claim of actual bias, or even an apprehension of bias: see Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [5]-[10];

(b)    the requests to stay the proceeding pending determination of matters in the Supreme Court of Victoria were contingent upon the granting of an extension of time and the proceedings continuing; and

(c)    the applicants have made serious allegations against the respondent and the respondent’s solicitors, including seeking for the respondent to be declared in contempt of court, for the respondent’s solicitors to be joined as parties to the proceeding, and for the respondent’s solicitors to pay costs to the [first] applicant in respect of “unreasonable insults” directed to him on the basis of his disability in the Supreme Court Proceeding.  From my review of the material filed by the applicants, it suffices to say that the applicants have failed to identify any sufficient material on which to base the serious allegations they raise.  The respondent’s solicitors deny any such allegations of wrongdoing.  Additionally, it is unclear on what basis the First Applicant, in this proceeding, seek to be paid costs in respect of any comments that may have been directed towards him in the Supreme Court Proceeding.

DISPOSITION

44    The interlocutory applications before me will be dismissed.  The applicants will pay the respondent’s costs of the proceeding, such costs to be assessed on a lump sum basis in the absence of agreement.

Associate:

Dated:    10 April 2025