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Seven Consulting Pty Ltd v Google LLC [2021] FCA 203 (11 March 2021)
Last Updated: 11 March 2021
FEDERAL COURT OF AUSTRALIA
Seven Consulting Pty Ltd v Google LLC
[2021] FCA 203
File number:
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Judgment of:
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Date of judgment:
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Catchwords:
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PRACTICE AND PROCEDURE –
application to serve originating application seeking preliminary discovery
outside Australia pursuant to Federal Court Rules 2011 (Cth) rr 10.41 to
10.43 (the Rules) – whether the application meets the requirements of r
10.43 of the Rules – service
in accordance with the Hague Service
Convention – whether service by post is permissible – leave granted
to serve originating
application outside Australia
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Legislation:
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Cases cited:
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Carroll & Richardson - Flagworld Pty Ltd v PayPal Australia Pty
Limited [2020] FCA 371
Dow Jones & Company Inc v Gutnick [2002] HCA 56; (2002) 210 CLR
575
Practical Handbook on the Operation of the Hague Service Convention
(Permanent Bureau of the Hague Conference on Private International Law, 2006)
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Division:
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General
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Registry:
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New South Wales
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National Practice Area:
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Other Federal Jurisdiction
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Number of paragraphs:
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This matter was determined on the papers
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Solicitor for the
Prospective Applicants:
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Mr. B Goldsmith of Goldsmith Lawyers
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ORDERS
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SEVEN CONSULTING PTY LTDFirst
Prospective Applicant DECLAN BOYLANSecond Prospective
Applicant
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AND:
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GOOGLE LLCProspective Respondent
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THE COURT ORDERS THAT:
- Pursuant
to rr 10.42 and 10.43 of the Federal Court Rules 2011 (Cth) the
prospective applicant have leave to serve:
(a) the amended originating application filed on 3 March
2021;
(b) the affidavit of Declan Boylan sworn on 23 September 2020;
(c) the affidavit of Barrie Goldsmith affirmed on 24 September 2020;
(d) the affidavit of Ella Mackintosh affirmed on 25 February 2021;
(e) the affidavit of Berna Akdeniz sworn on 3 March 2021;
(f) the affidavit of Barrie Goldsmith affirmed on 3 March 2021; and
(g) a copy of this order;
upon the respondent in the United States of America, in accordance with Article
10(a) of the “Convention on the Service Abroad
of Judicial and
Extrajudicial Documents in Civil or Commercial Matters” done at The Hague
on 15 November 1965, by sending them
by international registered post, with an
acknowledgement of receipt to be provided to the prospective applicants, to the
respondent’s
address at:
Google LLC
C/O Custodian of Records
1600 Amphitheatre Parkway
Mountain View, California 94043
United States of America
- Costs
be reserved.
- The
matter be listed for a case management hearing on 8 April 2021 at
9:30am.
REASONS FOR
JUDGMENT
ABRAHAM J:
- The
prospective applicants, Seven Consulting Pty Ltd and Declan Boylan, by an
amended originating application dated 3 March 2021 seek
an order pursuant to r
7.22 of the Federal Court Rules 2011 (the Rules) that the prospective
respondent, Google LLC (Google), give discovery of all documents that are or
have been in its control
relating to the description or descriptions of a person
or persons responsible or believed to be responsible for authoring or posting
certain reviews about them. A schedule of reviews has been provided. The first
prospective applicant alleges that it has suffered
loss and damage by virtue of
misleading and deceptive conduct on the part of such person or persons. The
second prospective applicant
alleges that he has been defamed as a result of
them. Preliminary discovery is sought to identify the unknown prospective
respondents
so that proceedings can be brought against him or her.
- On
25 February 2021 the matter listed was listed for case management hearing.
During the case management hearing the prospective applicants
sought, and I
granted, leave to file an amended application and supporting material. The
evidence establishes that the amended application
was as a result of
correspondence by the prospective applicants with Google which narrowed the
number of reviews to which the prospective
applicants sought information.
- The
prospective applicants apply for leave, pursuant to rr 10.41 - 10.43 of the
Rules, to serve an originating application outside
of Australia.
- The
prospective applicants rely on the following affidavits:
(1) the affidavit of Declan Boylan sworn on 23 September
2020;
(2) the affidavit of Berna Akdeniz sworn 3 March 2021;
(3) the affidavit of Ella Mackintosh affirmed on 25 February 2021; and
(4) the affidavits of Barrie Goldsmith affirmed on 24 September 2020 and 3 March
2021.
- For
the reasons given below, it is appropriate to make the order to grant leave to
the prospective applicants to serve the proceeding
on Google in the United
States of America (USA) in accordance with Article 10(a) of the
“Convention on the Service Abroad of
Judicial and Extrajudicial Documents
in Civil or Commercial Matters” done at The Hague on 15 November 1965 (the
Hague Service
Convention).
Consideration
- Rule
10.43(2) provides that a party may apply to the Court for leave to serve an
originating application on a person in a foreign country in accordance
with the
Hague Service Convention. Before leave may be granted to serve an originating
application on a respondent outside Australia
the Court must be satisfied of
four matters set out in r 10.43(3) and (4):
(1) the application must be accompanied by an affidavit
which states the name of the foreign country where the person is to be served,
the proposed method of service and, if the Hague Service Convention applies,
that the proposed method of service is permitted by
the Hague Service
Convention: r 10.43(3);
(2) the Court has jurisdiction in the proceeding: r 10.43(4)(a);
(3) the proceeding is of a kind mentioned in r 10.42: r 10.43(4)(b); and
(4) the applicant has a prima facie case for all or any of the relief claimed in
the proceeding: r 10.43(4)(c).
- The
relevant principles in a similar factual application were recently summarised by
Murphy J in Kabbabe v Google LLC [2020] FCA 126 at [3]- [16]
(Kabbabe).
- I
am satisfied of the four matters identified above.
First criteria
- The
prospective applicant relies on the affidavit of his solicitor, Mr Goldsmith
affirmed on 25 September 2020, which establishes,
inter alia, that the USA is a
contracting party to the Hague Service Convention.
- The
Hague Service Convention contemplates several channels for service in the
Practical Handbook on the Operation of the Hague Service Convention
(Permanent Bureau of the Hague Conference on Private International Law, 2006)
(Practical Handbook): AIA Australia Ltd v Richards [2017] FCA 84
at [7] (AIA Australia). Allsop CJ observed:
The “main channel of transmission” is
service under Article 5 of the Hague Service Convention through the
“Central
Authority” of the receiving State. The Convention also
permits service through several “alternative channels”:
Practical
Handbook at [183].
- The
prospective applicants propose to serve the documents by sending them by
international registered post, which is one of the alternative
channels: namely
service by post pursuant to Art. 10(a). As Allsop CJ noted in AIA
Australia at [13], the Practical Handbook states at [196] that
“transmission ... through postal channels [referred to in Art 10(a)]
includes service of process upon the
addressee”.
- It
is uncontroversial that the service of documents by international registered
post is compliant with Art. 10(a), this Court having
granted leave on a number
of previous occasions for service in that manner: see Kabbabe at [8],
citing Deputy Commissioner of Taxation v Power Assets Holdings Ltd
(previously known as Hongkong Electric Holdings Ltd) [2013] FCA 708; (2013)
96 ATR 51 at [15]- [22]; Deputy Commissioner of Taxation v Cheung Kong
Infrastructure Holdings Ltd [2013] FCA 707; (2013) 96 ATR 44 at [15]- [22];
Bell v Steele [2011] FCA 1390; (2011) 198 FCR 291 at [13] and [16];
Ahmed v Al-Hussain Pty Ltd t/as The Cheesecake Shop [2018] FCA 1741 at
[17].
- In
Kabbabe Murphy J observed at [9]:
In Water Splash Inc v Menon 581 U.S. (2017) at 12
the US Supreme Court held that the Hague Service Convention does not prohibit
service of process in the USA
by direct post to the respondent, and there is
nothing in the materials before the Court to indicate that the USA objects to
direct
postal service of legal process under the Convention. The Practical
Handbook states at [204] that a comprehensive list of objecting States is
available on the website of the Permanent Bureau of the Hague Conference
on
Private International Law. Having reviewed that website, it states that the USA
does not object to service under Art. 10(a).
I proceed on that
basis.
- I
also proceed on that basis.
Second criteria
- There
can be no issue that the Court has jurisdiction to hear an application for
preliminary discovery pursuant to r 7.22.
Third criteria
- The
proceeding falls within one or more of the categories or descriptions set out in
r 10.42, with the prospective applicants relying
on proceedings based on a cause
of action arising in Australia: Item 1 of the Table in r 10.42, and proceeding s
based on a tort
committed in Australia: Item 2. I am satisfied that an
application for preliminary discovery under r 7.22 is a proceeding based on
a
cause of action arising in Australia and proceeding s based on a tort committed
in Australia.
- I
note that a defamatory statement made online is taken to be
“published” for the purposes of an action in defamation
when and
where it is downloaded: see Dow Jones & Company Inc v Gutnick [2002]
HCA 56; (2002) 210 CLR 575. That a review was visible to the public in the NT
and ACT, along with the rest of Australia, has previously
been found to be
sufficient to establish that the Court is likely to have jurisdiction to hear
the prospective claim: Kabbabe at [16]; Colagrande v Telstra
Corporation Limited [2020] FCA 1595 at [15]; Boyd v Automattic, Inc
[2019] FCA 86 at [47]- [49]. It follows in this matter that the Court is
likely to have jurisdiction to hear the prospective claim.
Fourth criteria
- On
the evidence relied on I am satisfied that the prospective applicants have a
prima facie case for preliminary discovery pursuant
to r 7.22(1): r 10.43(4)(c).
- Rule
7.22 provides that a prospective applicant may apply to the Court for an order
to require a person to discover to the prospective
applicant any document or
thing in the person’s control relating to the description of the
prospective respondent. It is intended
to provide a person with a means of
obtaining information as to the identity of a party against whom the person
wishes to commence
a proceeding, in circumstances in which the person is unable
to do so because of a lack of sufficient information about that party’s
description to enable an originating application to be filed: Carroll &
Richardson - Flagworld Pty Ltd v PayPal Australia Pty Limited [2020] FCA 371 at [3]; Kabbabe at [13], citing
Cape Australia Holdings Pty Ltd v Iannello [2009] FCA 709 at [63]- [64]
which relates to the predecessor rule.
- Rule
7.22 requires that the prospective applicant satisfy the Court:
(1) there may be a right for the prospective
applicant to obtain relief against the prospective respondent; and
(2) the prospective applicant is unable, notwithstanding having made reasonable
inquiries and taken any other steps reasonably required
in the circumstances, to
ascertain the description of the prospective respondent; and
(3) another person, the respondent to the application for preliminary discovery,
knows or is likely to know that description, or
has or is likely to have, or has
had or was likely to have had, control of a document that would help ascertain
that description.
see Kabbabe at [14], citing Hooper v Kirella Pty Ltd [1999]
FCA 1584; (1999) 96 FCR 1 at [31]- [34] (Hooper).
- A
prospective applicant for preliminary discovery is not required to demonstrate
the existence of a prima facie case against the prospective
respondent; it is
enough if the prospective applicant can show that he or she may have a
right to obtain that relief: Kabbabe at [16], citing Hooper at
[33]. That said, as noted above, this application is for leave pursuant to r
10.41 - 10.43 of the Rules, to serve an originating
application outside of
Australia which requires as one of its preconditions, that the applicant has a
prima facie case for all or
any of the relief claimed in the proceeding: r
10.43(4)(c).
- The
first prospective applicant carries on a business as delivery professionals
providing project and program management consultancy
services. It also provides
related services such as external program reviews or delivery capability uplift.
The prospective claims
relate to a number of reviews which have been identified
in the affidavits referred to above at [4]. The evidence establishes that there is
a prima facie case for the reviews being fake, and that arguably damage has
resulted. The
evidence establishes that these reviews were published on Google,
and that steps were taken by the prospective applicants with Google
to remove
the reviews. This occurred over time, with the final review being removed on or
about 17 August 2020. The prospective applicants
have also communicated with
Google in an attempt to ascertain the author of the reviews to enable
proceedings to be commenced.
- Having
regard to the affidavits referred to above at [4], and particularly to the
affidavit of Mr Boylan sworn on 23 September 2021,
the affidavit of Ms
Mackintosh affirmed on 25 February 2021 and the affidavits of Mr Goldsmith
affirmed on 24 September 2020 and
3 March 2021, I am satisfied that the
prospective applicants have made reasonable inquiries and taken other steps
reasonably required
in the circumstances, but have been unable to ascertain the
description of the person or persons responsible or believed to be responsible
for authoring or publishing the reviews. I am satisfied that the prospective
respondent is in control of documents that would help
ascertain the description
of the person or persons responsible or believed to be responsible for authoring
or publishing the reviews.
Conclusion
- Accordingly,
I make the orders sought.
I certify that the preceding twenty-four (24)
numbered paragraphs are a true copy of the Reasons for Judgment of the
Honourable Justice
Abraham.
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Associate:
Dated: 11 March 2021
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