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Boyd v Automattic, Inc

Boyd v Automattic, Inc

Case [2019] FCA 86 4 February 2019

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FEDERAL COURT OF AUSTRALIA
Boyd v Automattic, Inc [2019] FCA 86

File number: TAD 2 of 2019

Judge: KERR J

Date of judgment: 4 February 2019

Catchwords: PRACTICE AND PROCEDURE – Application for interlocutory injunctions prior to the commencement of proceedings – Respondents domiciled in United States of America – Applicant seeks orders requiring the Respondents to disclose details relating to the identity of the publisher of allegedly defamatory material, requiring the Respondents to suspend the domain name and publication of a website, and restraining the publisher of the site from publishing any further defamatory material – Application for disclosure of identity to be treated as application for preliminary discovery pursuant to r 7.22 of the Federal Court Rules 2011 (Cth) –– where Respondents host the website in question and are in possession of information about the identity of publishers but prevented from releasing it without a court order – circumstances justify the making of an order for preliminary discovery for the purposes of commencing defamation litigation – application otherwise dismissed

Legislation:
Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth), s 9(3)

Federal Court Rules 2011 (Cth), rr 7.22, 10.42, 10.43, Sch 1

Civil Law (Wrongs) Act 2002 (ACT), s 118

United States Code, Title 28

Cases cited:
Australian Broadcasting Corporation v O’Neill [2006] HCA 46; 227 CLR 57

Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1; 119 CLR 618

Bonnard v Perryman [1891] 2 Ch 269

Church of Scientology of California Inc v Reader’s Digest Services Pty Ltd [1980] 1 NSWLR 344

Crosby v Kelly [2012] FCAFC 96; 203 FCR 451

Dow Jones & Company Inc v Gutnick [2002] HCA 56; 210 CLR 575

Gearhart United Pty Ltd v Omni Oil Technologies (Asia) SDN BHD [2010] FCA 401; 267 ALR 630

Levis v McDonald [1997] FCA 349; 75 FCR 36

Perdaman Chemicals & Fertilisers v Griffin Coal Mining Company Pty Ltd [2011] FCA

Rana v Google Inc [2017] FCAFC 156

Date of hearing: 4 February 2019

Registry: Tasmania

Division: General Division

National Practice Area: Administrative and Constitutional Law and Human Rights

Category: Catchwords

Number of paragraphs: 53

Counsel for the Applicant: The Applicant appeared in person

Counsel for the Respondents: Ms C Sluiter

Solicitor for the Respondents: Baker McKenzie

ORDERS

TAD 2 of 2019

BETWEEN:
TIMOTHY BOYD

Applicant

AND:
AUTOMATTIC, INC

First Respondent

KNOCK KNOCK WHOIS NOT THERE INC

Second Respondent

JUDGE:

KERR J

DATE OF ORDER:

4 FEBRUARY 2019

THE COURT ORDERS BY CONSENT THAT:
1.The Court dispenses with any rule that would prevent the Applicant’s application for an interlocutory injunction to compel the Respondents to disclose certain information as to the identity and address of the prospective respondent being dealt with as an application for an order for preliminary discovery before the commencement of a proceeding pursuant to r 7.22 of the Federal Court Rules 2011 (Cth) (the Rules).

THE COURT ORDERS THAT:
2.Unless a party applies for a variation in the terms of this order no…

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 Boyd v Automattic, Inc

Details

AGLC: Boyd v Automattic, Inc [2019] FCA 86
Case: [2019] FCA 86
Decision Date: 4 February 2019

CaseChat Overview and Summary

The case of Boyd v Automattic, Inc. was heard in the Federal Court of Australia. The applicant, Boyd, sought to initiate defamation proceedings against an unknown party who published allegedly defamatory material on a blog hosted by the respondents, Automattic, Inc. Boyd sought several interlocutory injunctions, including an order for the respondents to disclose the identity of the publisher of the allegedly defamatory material, an order to suspend the domain name and publication of the website, and an order to restrain the publisher from publishing any further defamatory material. The respondents, being domiciled in the United States of America, were in possession of information about the identity of the publishers but could not release it without a court order.

The court considered whether the circumstances justified the making of an order for preliminary discovery for the purposes of commencing defamation litigation. The court held that the circumstances did justify the making of such an order, and therefore, the application for disclosure of identity was treated as an application for preliminary discovery under rule 7.22 of the Federal Court Rules 2011 (Cth). The application for interlocutory injunctions was dismissed. The court ordered that the respondents give discovery to the applicant of all documents in their control that are directly relevant to the identification of the person or persons responsible for maintaining the website and placing entries under the username “timboydaustralian” into or on an internet blog maintained at the website. The respondents may comply with this order by either providing a copy of each document to the applicant electronically or by complying with rule 7.25 of the Rules.

There were no orders as to the costs of the application, except that the respondents have liberty to apply for any costs incurred in complying with these orders. The orders are to remain in place unless a party applies for a variation in the terms of the order no later than 12.00 pm on Thursday 7 February 2019. Any application for a variation of the order must be supported by an affidavit explaining why it is expedient to vary the order to assist in the effectiveness of its operation in the United States of America. Any such application shall be heard and determined on the papers.

Orders

Orders of the court

2. Unless a party applies for a variation in the terms of this order no later than 12.00 pm on Thursday 7 February 2019, the Respondents give discovery to the prospective Applicant of all documents in their control that are directly relevant to identification of the name and address (including but not limited to an email address) of the person or persons responsible for:

(a) maintaining the website www.timboydaustralian.com; and

(b) placing entries under the username “timboydaustralian” into or on an internet blog maintained at the website www.timboydaustralian.com,

within 14 days of the date of these orders.

3. The Respondents may comply with order 2 by either providing a copy of each document to the prospective Applicant electronically or by complying with r 7.25 of the Rules.

4. Any application for a variation of order 2 must be supported by an affidavit explaining why it is expedient to vary the order to assist in the effectiveness of its operation in the United States of America. Any such application shall be heard and determined on the papers.

5. The prospective Applicant’s application is otherwise dismissed.

6. Save that the Respondents have liberty to apply pursuant to r 7.29 of the Rules in respect of any costs incurred in complying with these orders, there be no order as to the costs of this application.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Boyd v Automattic, Inc [2019] FCA 86

Most Recent Citation

Fuel Recovery Services Australia Pty Ltd v The Secretary to the Department of Transport [2020] VMC 18

Cases citing this decision · 10 of 10 shown

Callan v Chawk
[2023] FCA 898 Para 42

…claim: Colagrande v Telstra at [15] (Derrington J) citing Kabbabe v Google LLC [2020] FCA 126 at [16] (Murphy J). Similarly, in Boyd v Automatic, Inc [2019] FCA 86, Kerr J considered an application for an interlocutory injunction prior to the commencement of defamation proceedings and stated at [48]: [I]n my vie…
Khan v Google LLC
[2023] FCA 785 Para 2

…to prove that there may be a right to obtain relief has been said to be “not onerous” and to involve only a low threshold: Boyd v Automattic, Inc [2019] FCA 86 at [49]; Kulkulka [ v Google LLC [2020] FCA 1229] at [22]; Kabbabe [ v Google LLC [2020] FCA 126] at [16] and Seven Consulting [ Pty Ltd v Google LLC [20…
Kathryn Stanford Consulting Pte v Google LLC
[2022] FCA 1049 Para 9

…ove that there may be a right to obtain relief has been said to be “not onerous” and to involve only a low threshold : Boyd v Automattic, Inc [2019] FCA 86 at [49]; Kulkulka at [22]; Kabbabe at [16] and Seven Consulting at [21]. It must, however, b e demonstrated that the potential right to relief is based on a…
Kandola v Google LLC
[2021] FCA 1262 Para 12

…rove that there may be a right to obtain relief has been said to be “not onerous” and to involve only a low threshold: Boyd v Automattic, Inc [2019] FCA 86 at [49]; Kulkulka at [22]; Kabbabe at [16] and Seven Consulting at [21]. It must, however, be demonstrated that the potential right to relief is based on a c…
Lin v Google LLC
[2021] FCA 1113 Para 23

…rove that there may be a right to obtain relief has been said to be “not onerous” and to involve only a low threshold: Boyd v Automattic, Inc [2019] FCA 86 at [49]; Kulkulka at [22]; Kabbabe at [16] and Seven Consulting at [21]. It must, however, be demonstrated that the potential right to relief is based on a c…
International Wushu Federation v Google LLC
[2021] FCA 904 Para 37

…makes it plain that if there is publication of a defamatory statement in the ACT, this Court has jurisdiction in respect of it: Boyd v Automattic Inc [2019] FCA 86 at [45].…
Sydney Criminal Lawyers v Google LLC
[2021] FCA 297 Para 17

…sdiction 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…
Seven Consulting Pty Ltd v Google LLC
[2021] FCA 203 Para 17

…sdiction 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…
Colagrande v Telstra Corporation Limited
[2020] FCA 1595 Para 11

…in relief: Hooper v Kirella (1999) 96 FCR 1 ( Hooper v Kirella ), 10 [33]. This threshold has been described as “very low”: Boyd v Automattic Inc [2019] FCA 86 ( Boyd v Automattic ) [49]; and “not onerous”: Kukulka v Google LLC [2020] FCA 1229 [22]. However, the foreshadowed claim must have some prospect of succ…
Fuel Recovery Services Australia Pty Ltd v The Secretary to the Department of Transport
[2020] VMC 18 Para 2

…e information ‘tending to assist’ in the ascertainment of the description of the unidentified drivers. [12] Boyd v Automatic, Inc 4 February 2019 [2019] FCA 86 [34].…

View all 10 citing cases →

Cases cited in this decision · 11 of 11 shown

Rana v Google Inc
[2017] FCAFC 156 Para 17

…ompany Inc v Gutnick [2002] HCA 56; 210 CLR 575. A comprehensive review of the sources of jurisdiction of this Court was set out in Rana v Google Inc [2017] FCAFC 156 ( Rana ) per Allsop CJ, Besanko and White JJ at [15]-[24].…
Crosby v Kelly
[2012] FCAFC 96 Para 18

…urisdiction of either the Australian Capital Territory or Northern Territory Supreme Courts. That accords with the earlier decision of Crosby v Kelly [2012] FCAFC 96; 203 FCR 451 in which Perram J had reasoned (at [2]) that s 9(3) has the effect of “creating surrogate Commonwealth law by reference to the jurisdict…
Gearhart United Pty Ltd v Omni Oil Technologies (Asia) SDN BHD
[2010] FCA 401 Para 6

…ration domiciled in the United States of America. That concession was appropriate: see Gearhart United Pty Ltd v Omni Oil Technologies (Asia) SDN BHD [2010] FCA 401; 267 ALR 630. Ms Sluiter on behalf of the Respondents explicitly accepted the Court had power to make such an order assuming the requirements of r 7.…
Australian Broadcasting Corporation v O'Neill
[2006] HCA 46 Para 15

…Mr Boyd’s oral submissions conceded that the principles affirmed by the High Court of Australia in Australian Broadcasting Corporation v O’Neill [2006] HCA 46; 227 CLR 57 ( O’Neill ) govern the circumstances in which an interlocutory injunction will be issued. The relevant principles are as explained in Beecham…
Dow Jones & Co Inc v Gutnick
[2002] HCA 56 Para 17

…ad. Thus, defamatory articles on the internet are published in Australia when they are downloaded in Australia: see Dow Jones & Company Inc v Gutnick [2002] HCA 56; 210 CLR 575. A comprehensive review of the sources of jurisdiction of this Court was set out in Rana v Google Inc [2017] FCAFC 156 ( Rana ) per Alls…
Levis v McDonald
[1997] FCA 349 Para 10

…ment it is for Mr Boyd to satisfy the Court that there may be a right for him to obtain relief against a prospective respondent: see Levis v McDonald [1997] FCA 349; 75 FCR 36 per Lindgren J at 44. In that case his Honour held: I readily accept that it is not required that a prima facie case be established. As wa…
Beecham Group Ltd v Bristol Laboratories Pty ltd
[1968] HCA 1 Para 15

…which an interlocutory injunction will be issued. The relevant principles are as explained in Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1; 119 CLR 618 at [4]: … The Court addresses itself in all cases, patent as well as other, to two main inquiries. The first is whether the plaintiff has made…
Plimpton v Spiller
(1876) 4 ChD 286 Para 15

…as to the ultimate result of the case. James L.J. explained the general attitude of the Court when he said, in Plimpton v. Spiller (1876) 4 ChD 286, at p 289, in relation to a patent action where there was no outstanding issue as to validity: “… the Court, not forming an opinion very strongly either one way or the…
Challender v Royle
(1887) 36 ChD 425 Para 15

…hat at the trial of the action the plaintiff will be held entitled to relief: Preston v Luck (1884) 27 ChD 497, at p 506; Challender v. Royle (1887) 36 ChD 425, at p 436. How strong the probability needs to be depends, no doubt, upon the nature of the rights he asserts and the practical consequences likely to flow f…
Preston v Luck
(1884) 27 ChD 497 Para 15

…vidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief: Preston v Luck (1884) 27 ChD 497, at p 506; Challender v. Royle (1887) 36 ChD 425, at p 436. How strong the probability needs to be depends, no doubt, upon the nature of the rights he assert…
Attorney-General v Wigan Corporation
43 ER 789 Para 15

…Mr Boyd’s oral submissions conceded that the principles affirmed by the High Court of Australia in Australian Broadcasting Corporation v O’Neill [2006] HCA 46; 227 CLR 57 ( O’Neill ) govern the circumstances in which an interlocutory injunction will be issued. The relevant principles are as explaine…

Legislation cited in this decision · 3

Federal Court Rules 2011 (Cth)
10.42, 10.43, 7.22 4 mentions (from Para 1)
Civil Law (Wrongs) Act 2002 (ACT)
118 2 mentions (from Para 19)
Jurisdiction of Courts (Cross-vesting) Act 1987 (TAS)
9(3) 2 mentions (from Para 18)

File number:	TAD 2 of 2019
Judge:	KERR J
Date of judgment:	4 February 2019
Catchwords:	PRACTICE AND PROCEDURE – Application for interlocutory injunctions prior to the commencement of proceedings – Respondents domiciled in United States of America – Applicant seeks orders requiring the Respondents to disclose details relating to the identity of the publisher of allegedly defamatory material, requiring the Respondents to suspend the domain name and publication of a website, and restraining the publisher of the site from publishing any further defamatory material – Application for disclosure of identity to be treated as application for preliminary discovery pursuant to r 7.22 of the Federal Court Rules 2011 (Cth) –– where Respondents host the website in question and are in possession of information about the identity of publishers but prevented from releasing it without a court order – circumstances justify the making of an order for preliminary discovery for the purposes of commencing defamation litigation – application otherwise dismissed
Legislation:	Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth), s 9(3) Federal Court Rules 2011 (Cth), rr 7.22, 10.42, 10.43, Sch 1 Civil Law (Wrongs) Act 2002 (ACT), s 118 United States Code, Title 28
Cases cited:	Australian Broadcasting Corporation v O’Neill [2006] HCA 46; 227 CLR 57 Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1; 119 CLR 618 Bonnard v Perryman [1891] 2 Ch 269 Church of Scientology of California Inc v Reader’s Digest Services Pty Ltd [1980] 1 NSWLR 344 Crosby v Kelly [2012] FCAFC 96; 203 FCR 451 Dow Jones & Company Inc v Gutnick [2002] HCA 56; 210 CLR 575 Gearhart United Pty Ltd v Omni Oil Technologies (Asia) SDN BHD [2010] FCA 401; 267 ALR 630 Levis v McDonald [1997] FCA 349; 75 FCR 36 Perdaman Chemicals & Fertilisers v Griffin Coal Mining Company Pty Ltd [2011] FCA Rana v Google Inc [2017] FCAFC 156
Date of hearing:	4 February 2019
Registry:	Tasmania
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	53
Counsel for the Applicant:	The Applicant appeared in person
Counsel for the Respondents:	Ms C Sluiter
Solicitor for the Respondents:	Baker McKenzie