B&P Group Pty Ltd v Google LLC - [2022] FCA 538

FEDERAL COURT OF AUSTRALIA
B&P Group Pty Ltd v Google LLC [2022] FCA 538

File number(s): VID 183 of 2022

Judgment of: ANDERSON J

Date of judgment: 11 May 2022

Catchwords: PRACTICE AND PROCEDURE – application for leave to serve originating application seeking preliminary discovery outside Australia pursuant to Div 10.4 of the Federal Court Rules 2011 (Cth) – effective application for leave for substituted service – leave to serve outside Australia granted

Legislation:
Federal Court Rules 2011 (Cth), rr 7.22, 10.42, 10.43, 10.44

Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters done at the Hague on 15 November 1965, Art 10

Cases cited: Lin v Google LLC [2021] FCA 1113

Division: General Division

Registry: Victoria

National Practice Area: Other Federal Jurisdiction

Number of paragraphs: 10

Date of hearing: Determined on the papers

Solicitor for the Prospective Applicant: Madgwicks Lawyers

ORDERS

VID 183 of 2022

BETWEEN:
B&P GROUP PTY LTD ACN 619 573 821 (TRADING AS ACCENT ALUMINIUM WINDOWS AND DOORS)

Applicant

AND:
GOOGLE LLC

Respondent

ORDER MADE BY:

ANDERSON J

DATE OF ORDER:

6 MAY 2022

THE COURT ORDERS THAT:
1.Pursuant to rr 10.42, 10.43 and 10.44 of the Federal Court Rules 2011 (Cth), the Prospective Applicant has leave to serve:
(a)the Originating Application by a Prospective Applicant for an Order for Discovery, dated 8 April 2022;
(b)the affidavit of Sadi Hamidy affirmed on 7 April 2022; and
(c)a copy of these orders,

upon the Prospective 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 by the Prospective Applicant, to the Prospective Respondent’s address at:
Google LLC
C/O Custodian of Record
1600 Amphitheatre Parkway
Mountain View, California, 94043
United States of America

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

REASONS FOR JUDGMENT
ANDERSON J:

The prospective applicant in this proceeding, B&P Group Pty Ltd (trading as Accent Aluminium Windows and Doors) (Prospective Applicant), is a company which produces and manufacture aluminium doors and windows.
The Prospective Applicant filed an originating application under r 7.23 of the Federal Court Rules 2011 (Cth) (Rules), for preliminary discovery by Google LLC in order to identify the name of an individual that left a ‘Google review’ on the review page of the Prospective Applicant.
The review, which was posted on 4 March 2022 stated:
“Their prices are incredibly high and are not worth it at all - they're practically scamming you, legit other aluminium window companies could do better. Don't even get me started with the staff! They can't even speak English, and always had the demeanour of wanting to fight someone - not a good company at all - materials are overpriced and can be purchased with a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading B&P Group Pty Ltd v Google LLC

Details

AGLC: B&P Group Pty Ltd v Google LLC [2022] FCA 538
Case: [2022] FCA 538
Decision Date: 11 May 2022

CaseChat Overview and Summary

The case involves B&P Group Pty Ltd, seeking leave to serve an originating application for preliminary discovery outside Australia on Google LLC. The application was made under Division 10.4 of the Federal Court Rules 2011 (Cth). The dispute concerns whether the applicant could serve the originating application and supporting affidavit outside Australia, specifically in the United States, on Google LLC. This is to be achieved through substituted service in compliance with the Hague Service Convention.

The central legal issue was whether the applicant could effectively seek leave to serve the originating application outside Australia. This involved assessing whether the requirements for substituted service under Division 10.4 of the Federal Court Rules 2011 (Cth) and Article 10(a) of the Hague Service Convention were met. Additionally, the court needed to determine if the application was made in good faith and whether there were compelling reasons for the substituted service to occur outside Australia.

The court granted leave for the substituted service, noting that the application was made in good faith and that there were compelling reasons for serving the documents outside Australia. The court emphasised that the applicant had demonstrated a diligent effort to serve the documents within Australia but had been unable to do so due to the respondent's absence from Australia. The court was satisfied that the service would be in accordance with the Hague Service Convention and that the requirements for substituted service were met.

The court ordered that the applicant could serve the originating application, the affidavit, and a copy of the court's orders on Google LLC in the United States by sending them by international registered post, with an acknowledgement of receipt. This order was made pursuant to rules 10.42, 10.43, and 10.44 of the Federal Court Rules 2011 (Cth).

Orders

Orders of the court

1. Pursuant to rr 10.42, 10.43 and 10.44 of the Federal Court Rules 2011 (Cth), the Prospective Applicant has leave to serve:

(a) the Originating Application by a Prospective Applicant for an Order for Discovery, dated 8 April 2022;

(b) the affidavit of Sadi Hamidy affirmed on 7 April 2022; and

upon the Prospective 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 by the Prospective Applicant, to the Prospective Respondent’s address at:

Google LLC

C/O Custodian of Record

1600 Amphitheatre Parkway

Mountain View, California, 94043

United States of America

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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File number(s):	VID 183 of 2022
Judgment of:	ANDERSON J
Date of judgment:	11 May 2022
Catchwords:	PRACTICE AND PROCEDURE – application for leave to serve originating application seeking preliminary discovery outside Australia pursuant to Div 10.4 of the Federal Court Rules 2011 (Cth) – effective application for leave for substituted service – leave to serve outside Australia granted
Legislation:	Federal Court Rules 2011 (Cth), rr 7.22, 10.42, 10.43, 10.44 Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters done at the Hague on 15 November 1965, Art 10
Cases cited:	Lin v Google LLC [2021] FCA 1113
Division:	General Division
Registry:	Victoria
National Practice Area:	Other Federal Jurisdiction
Number of paragraphs:	10
Date of hearing:	Determined on the papers
Solicitor for the Prospective Applicant:	Madgwicks Lawyers

ORDER MADE BY:	ANDERSON J
DATE OF ORDER:	6 MAY 2022