Callan v Chawk

Case [2021] FCA 1182

FEDERAL COURT OF AUSTRALIA

Callan v Chawk [2021] FCA 1182

File number: NSD 785 of 2021
Judgment of: HALLEY J
Date of judgment: 23 September 2021
Date of publication of reasons: 29 September 2021
Catchwords:

PRACTICE AND PROCEDURE – application for substituted service on respondent in defamation proceedings pursuant to r 10.24 of the Federal Court Rules 2011 (Cth) – whether personal service not practicable – whether proposed methods of substituted service via email, registered post and social media are reasonably likely to bring proceedings to the attention of the respondent – appropriateness of substituted service by social media – application granted

PRACTICE AND PROCEDURE – application for leave to serve respondent in defamation proceedings in United States of America pursuant to r 10.43 of the Federal Court Rules 2011 (Cth) (FCR) – whether proceeding is of a kind mentioned in FCR r 10.42 – jurisdiction where publication occurred in the Australian Capital Territory – whether applicant has a prima facie case for all or any of the relief claimed – service in accordance with Hague Convention – service by international registered post – application granted

Legislation:

Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) s 9(3)

Federal Court Rules 2011 (Cth) rr 10.24, 10.42, 10.43

Jurisdiction of Courts (Cross-vesting) Act 1993 (ACT) s 4(1)

Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters. Opened for signature 15 November 1965. 658 UNTS 163 (entered into force 10 February 1969) Art 10(a)

Cases cited:

AIA Australia Ltd v Richards [2017] FCA 84

Barilaro v Shanks-Markovina (No 1) [2021] FCA 789

British American Tobacco Australasia Limited v Taleb (No 1) [2012] FCA 1065

Byrne v Deane [1937] 1 KB 818; 2 All ER 204

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

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

Fairfax Media Publications Pty Ltd v Voller [2021] HCA 27

Flo Rida (aka Tramar Dillard) v Mothership Music Pty Ltd [2013] NSWCA 268

Foxe v Brown (1984) 58 ALR 542; [1984] HCA 69

Goodfellow v Fairfax Media Publications Pty Limited [2017] FCA 1152

Kabbabe v Google LLC [2020] FCA 126

Ross v Cotter [2015] FCA 310

Statewide Secured Investments Pty Ltd v Tarrant [2011] FCA 1067

Trkulja v Google LLC (2018) 263 CLR 149; [2018] HCA 25

Wing v Fairfax Media Publications Pty Ltd (2017) 255 FCR 61; [2017] FCAFC 191

Division: General Division
Registry: New South Wales
National Practice Area: Other Federal Jurisdiction
Number of paragraphs: 32
Date of hearing: 23 September 2021
Counsel for the Applicant: Mr N Olson
Solicitor for the Applicant: Company Giles
Solicitor for the First Respondent: The First Respondent did not appear
Solicitor for the Second Respondent: The Second Respondent did not appear

ORDERS

NSD 785 of 2021
BETWEEN:

PETER CALLAN

Applicant
AND:

ZACHARIAH CHAWK

First Respondent

REAL SELF INC

Second Respondent

ORDER MADE BY:

HALLEY J

DATE OF ORDER:

23 SEPTEMBER 2021

THE COURT ORDERS…

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AGLC
Callan v Chawk [2021] FCA 1182
Case
[2021] FCA 1182
Decision Date

CaseChat Overview and Summary

The case of Callan v Chawk involved Dr Peter Callan, a plastic surgeon, who initiated defamation proceedings against his former patient, the first respondent, regarding a review posted on the RealSelf website. The website is operated by Real Self Inc, a company based in the United States of America. Dr Callan sought substituted service for the originating application, statement of claim, and genuine steps statement on the first respondent due to failed attempts at personal service, and leave to serve Real Self Inc in the United States.

The court had to determine whether personal service was not practicable and if the proposed methods of substituted service via email, registered post, and social media were reasonably likely to bring the proceedings to the respondent's attention. Additionally, the court had to consider whether the proceedings qualified for leave to serve in the United States and if service would comply with the Hague Convention. The court examined whether Dr Callan had a prima facie case for the relief claimed and if service would be effected in accordance with the Hague Convention.

The court found that personal service was not practicable due to unsuccessful attempts and unresponsive communications. The proposed methods of substituted service, including email, registered post, and a private message on Facebook, were deemed reasonably likely to bring the proceedings to the respondent's attention. The court also determined that the defamation proceeding was of a kind mentioned in the Federal Court Rules and that Dr Callan had a prima facie case. Service by international registered post to Real Self Inc was in accordance with the Hague Convention.

The court granted leave for substituted service via email, registered post, and social media, as well as leave to serve Real Self Inc in the United States. It ordered costs reserved against the first respondent and scheduled a further case management hearing.

Orders

Orders of the court

1. Leave be granted pursuant to r 10.24(a)-(b) of the Federal Court Rules 2011 (Cth) (Rules) for the applicant to serve the originating application, statement of claim and genuine steps statement on the first respondent by the following methods:

(a) emailing the documents to the first respondent at the email address zchawk@gmail.com;

(b) sending the documents by registered post to the first respondent at the address 1/5 Queen Street, Essendon VIC 3040;

(c) sending the documents by registered post to the first respondent at the address 11/108 Cambridge Street, Collingwood VIC 3066;

(d) sending a private message to the first respondent via his Facebook account in the following terms:

“IMPORTANT LEGAL NOTICE

Dear Mr Chawk,

I am a solicitor representing Dr Peter Callan. Dr Callan has commenced proceedings for defamation against you in the Federal Court of Australia (No. NSD785/2021).

I have attempted to serve the Originating Application, Statement of Claim and Genuine Steps Statement by registered post to 1/5 Queen Street, Essendon VIC 3040 (the address you previously provided to Dr Callan), 11/108 Cambridge Street, Collingwood VIC 3066 (the registered address of your company, 888 Infinity Pty Ltd), and by email to zchawk@gmail.com (the email address you previously provided to Dr Callan). I have not so far received any response from you.

Please make contact as soon as possible with me, via my email address rebekah@companygiles.com.au, and with the Associate to Justice Halley at the Federal Court, via the email address Associate.HalleyJ@fedcourt.gov.au.

Please note that if you do not appear in the proceedings, the Federal Court may make orders in your absence.”

2. Leave be granted pursuant to rr 10.42 and 10.43(2) of the Rules for the applicant to serve the originating application, the statement of claim and the genuine steps statement on the second respondent by international registered post to the following address:

RealSelf, Inc.

83 South King Street

Suite 800

Seattle WA 98104

UNITED STATES OF AMERICA

3. Costs in relation to the interlocutory hearing on 23 September 2021 be reserved as against the first respondent.

4. The matter be listed for a further case management hearing at 9.30 am on Friday, 5 November 2021.

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

Background

Background to the litigation

I have also been assisted by detailed written submissions prepared by Mr Olson of counsel who appears for the applicant. Those submissions contain a comprehensive identification of the issues to be considered, the relevant legal principles and the matters relied upon by the applicant in support of his interlocutory application for orders for substituted service and leave to serve proceedings in the United States of America. BACKGROUND The applicant, Dr Peter Callan, is a plastic surgeon specialising in rhinoplasty, eyelid and facelift surgery and injectables. These are proceedings for defamation in relation to a review of Dr Callan’s services by his former patient, the first respondent, on the website RealSelf ( which provides a platform for rating and reviewing doctors. The RealSelf website is published by Real Self Inc, a company incorporated in the state of Washington in the United States of America. The registered address of Real Self Inc is:Real Self, Inc83 South King StreetSuite 800Seattle WA 98104SUBSTITUTED SERVICE I first address the question of the order for substituted service. Pursuant to FCR r 10.24, the Court is empowered to make an order for substituted service if it is satisfied that it is “not practicable” to effect personal service. The phrase “not practicable” has a wide meaning which depends on all the circumstances of the case: Ross v Cotter [2015] FCA 310 at [1] (Reeves J). The “not practicable” test does not require the applicant to prove that personal service is impossible: Statewide Secured Investments Pty Ltd v Tarrant [2011] FCA 1067 (Statewide Secured Investments) at [9] (Flick J). The question is whether, as at the date on which the application was made, the applicant, using reasonable effort, has been unable to serve the respondent personally: Foxe v Brown [1984] HCA 69; (1984) 58 ALR 542 at 547 (Mason J); British American Tobacco Australasia Limited v Taleb (No 1) [2012] FCA 1065 at [25]-[30] (Dodds-Streeton J). The affidavit of Ms Giles discloses that approximately eight attempts were made to effect personal service on the first respondent over the course of a month between mid-August and mid-September 2021, but all of those attempts were unsuccessful. Further, the applicant’s legal representatives have attempted to bring the proceedings to the attention of the first respondent via email but have not received any response. An order for substituted service should be made on the basis that the proposed method of service is reasonably likely to be effective in bringing the proceedings to the attention of the intended recipient: Statewide Secured Investments at [20]. The applicant proposes three methods of service: (a)emailing the originating application, statement of claim and genuine steps statement to the email address zchawk@gmail.com, which is the email address provided by the first respondent to the applicant when he was the applicant’s patient. The first respondent used this email address to communicate with the applicant’s practice manager in July 2020;(b)sending the originating application, statement of claim and genuine steps statement by registered post to 1/5 Queen Street, Essendon, Victoria 3040, the residential address provided by the first respondent to the applicant; and(c)sending the originating application, statement of claim and genuine steps statement by registered post to 11/108 Cambridge Street, Collingwood, Victoria 3066, being the registered business of a company known as 888 Infinity Pty Limited, of which the first respondent is a director according to an ASIC company search.

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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