Colagrande v Telstra Corporation Limited

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FEDERAL COURT OF AUSTRALIA

Colagrande v Telstra Corporation Limited [2020] FCA 1595

File number: QUD 301 of 2020
Judgment of: DERRINGTON J
Date of judgment: 4 November 2020
Catchwords: PRACTICE AND PROCEDURE – application for preliminary disclosure pursuant to r 7.22 of the Federal Court Rules 2011 (Cth) – where reviewer wrote allegedly defamatory review – where identity of reviewer unknown – where IP address of reviewer known – where respondent is the internet service provider associated with the IP address – where circumstances justify making of order for preliminary discovery
Legislation:

Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth)

Federal Court Rules 2011 (Cth), r 7.22, r 7.25

Defamation Act 2005 (Qld)
Cases cited:

Allphones Retail Pty Ltd v Australian Competition and Consumer Commission (2009) 259 ALR 354

Bailey v Bottrill (No 2) [2019] ACTSC 167

Boyd v Automattic Inc [2019] FCA 86

Dow Jones & Company Inc v Gutnick (2002) 210 CLR 575

Google Inc v Duffy (2017) 129 SASR 304

Hooper v Kirella (1999) 96 FCR 1

Kabbabe v Google LLC [2020] FCA 126

Kukulka v Google LLC [2020] FCA 1229

Levis v MacDonald (1997) 75 FCR 36

R v Colagrande [2019] 1 Qd R 241

Rana v Google Inc (2017) 254 FCR 1
Division: General Division
Registry: Queensland
National Practice Area: Other Federal Jurisdiction
Number of paragraphs: 20
Date of hearing: 4 November 2020
Counsel for the Prospective Applicant: Mr M Clarke
Solicitor for the Prospective Applicant: Fraser Lawyers
Counsel for the Respondent: The Respondent did not appear
Table of Corrections
13 November 2020 In paragraph 3, 6 February 2020 has been changed to 6 February 2017 and 7 February 2020 has been changed to 7 February 2017.

ORDERS

QUD 301 of 2020
BETWEEN:

CESIDIO COLAGRANDE

Prospective Applicant
AND:

TELSTRA CORPORATION LIMITED ACN 051 775 556

Respondent

ORDER MADE BY:

DERRINGTON J

DATE OF ORDER:

4 NOVEMBER 2020

THE COURT ORDERS THAT:

1.Pursuant to r 7.22 of the Federal Court Rules 2011 (Cth), the Respondent, Telstra Corporation Limited, must by 4.00 pm on 24 November 2020, give discovery in accordance with r 7.25 of the Federal Court Rules of all documents (as this term is defined in schedule 1 of the Federal Court Rules) that are or have been in its possession which establish, evidence, or assist in establishing or evidencing:

(a)the account through which the internet was accessed on 12 December 2018 via the Internet Protocol Address 121.223.25.100;

(b)the holder or owner of the account through which the internet was accessed on 12 December 2018 via the Internet Protocol Address 121.223.25.100;

(c)the identity of the person that accessed the internet on 12 December 2018 via the Internet Protocol Address 121.223.25.100; and

(d)the location of the computer, modem, or internet connection through which the internet was accessed on 12 December 2018 via the Internet Protocol Address 121.223.25.100.

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


REASONS FOR JUDGMENT

DERRINGTON J:

Introduction

  1. This is an application under r…

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Details
Case
[2020] FCA 1595
Decision Date

CaseChat Overview and Summary

In the matter of Colagrande v Telstra Corporation Limited, the plaintiff, Dr Cesidio Colagrande, a plastic surgeon, sought an order for preliminary discovery from the defendant, Telstra Corporation Limited, an internet service provider, to ascertain the identity of an anonymous reviewer who posted a potentially defamatory review on a medical review website. Dr Colagrande was unable to identify the reviewer, but knew that the review had been posted using an internet protocol address associated with Telstra. The Federal Court was required to determine whether the plaintiff could satisfy the requirements of r 7.22 of the Federal Court Rules 2011 (Cth) to make an order for preliminary discovery. In particular, the Court had to consider whether the plaintiff had a real prospect of succeeding in a potential defamation claim and whether the plaintiff had satisfied the other requirements of r 7.22.

The Court found that Dr Colagrande had satisfied all the requirements of r 7.22. The Court concluded that the plaintiff had established that there may be a right to obtain relief against the reviewer, and that the plaintiff was unable to ascertain the reviewer’s description. The Court further found that Telstra, as the internet service provider associated with the IP address, was likely to have documents in its possession that would help ascertain the reviewer’s description. The Court ordered Telstra to provide discovery of all documents that are or have been in its control relating to the description of the person or persons associated with the IP address.

The Court made orders for discovery of all documents that are or have been in Telstra’s control relating to the description of the person or persons associated with the IP address on 12 December 2018. The Court specified that the discovery must include documents that establish, evidence, or assist in establishing or evidencing the account through which the internet was accessed, the holder or owner of the account, the identity of the person that accessed the internet, and the location of the computer, modem, or internet connection through which the internet was accessed.

Orders

Orders of the court

1. Pursuant to r 7.22 of the Federal Court Rules 2011 (Cth), the Respondent, Telstra Corporation Limited, must by 4.00 pm on 24 November 2020, give discovery in accordance with r 7.25 of the Federal Court Rules of all documents (as this term is defined in schedule 1 of the Federal Court Rules) that are or have been in its possession which establish, evidence, or assist in establishing or evidencing:

(a) the account through which the internet was accessed on 12 December 2018 via the Internet Protocol Address 121.223.25.100;

(b) the holder or owner of the account through which the internet was accessed on 12 December 2018 via the Internet Protocol Address 121.223.25.100;

(c) the identity of the person that accessed the internet on 12 December 2018 via the Internet Protocol Address 121.223.25.100; and

(d) the location of the computer, modem, or internet connection through which the internet was accessed on 12 December 2018 via the Internet Protocol Address 121.223.25.100.

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

Background

Background to the litigation

This is an application under r 7.22 of the Federal Court Rules 2011 (Cth) (the Rules) for an order that the defendant, Telstra Corporations Limited (Telstra), make preliminary discovery to the prospective applicant, Dr Cesidio Colagrande, of all documents in its control that relate to the description of a prospective respondent.Background The prospective applicant is a plastic surgeon practising on the Gold Coast, Queensland. On 6 February 2017, he was convicted by a jury of one count of indecent assault. The complainant was a patient on whom he had performed a breast enlargement operation on 12 May 2014. On 7 February 2017, a news website (news.com.au) published an article, reporting on the conviction. That article continues to be accessible. The prospective applicant appealed his conviction. On 5 June 2018, the Queensland Court of Appeal allowed that appeal, quashed the conviction, and ordered a re-trial on the basis that the prosecution’s failure to disclose to the defence certain material – namely a written statement by the complainant seeking to withdraw her complaint – resulted in a miscarriage of justice: see R v Colagrande [2019] 1 Qd R 241. Not unsurprisingly, the prosecution subsequently abandoned the charge and entered a nolle prosequi on 7 June 2018. On 12 December 2018, an anonymous user (the Reviewer) posted a review of the prospective applicant on “ratemds.com”, a website that enables users to post ratings and reviews of doctors. That review read:After what he did to me, i can't believe he's still practicing. Just read the article. >As the website is hosted in California, the prospective applicant engaged a lawyer in that jurisdiction in late 2019, who issued a subpoena to the owner of the website to identify the Reviewer. On 25 October 2019, the website owner responded to the subpoena and provided the prospective applicant with the Reviewer’s Internet Protocol Address (IP Address). The prospective applicant determined, by running a search on “whatismyipaddress.com”, that the IP Address was hosted by the respondent, Telstra. On 24 September 2020, the prospective applicant brought this application against Telstra, seeking an order under r 7.22 of the Rules that it give discovery to him of all documents that are or have been in its control relating to the description of the person or persons associated with the IP Address. Consequent on the requested relief being granted, the prospective applicant has instructed his solicitors to serve a Concerns Notice pursuant to the Defamation Act 2005 (Qld) on the Reviewer. Although Telstra has not filed a submitting notice, it has indicated to the prospective applicant in email correspondence that it neither consents to, nor opposes, the application and that it does not wish to be heard in Court, with the result that the hearing of this matter was uncontested.The law Rule 7.22 of the Rules relevantly provides as follows:7.22 Order for discovery to ascertain description of respondent(1) A prospective applicant may apply to the Court for an order under subrule (2) if the prospective applicant satisfies the Court that:(a)there may be a right for the prospective applicant to obtain relief against a prospective respondent; and(b)the prospective applicant is unable to ascertain the description of the prospective respondent; and(c) another person (the other person):(i)knows or is likely to know the prospective respondent’s description; or(ii)has, or is likely to have, or has had, or is likely to have had, control of a document that would help ascertain the prospective respondent’s description.(2) If the Court is satisfied of the matters mentioned in subrule (1), the Court may order the other person:…(b)to produce to the Court at that examination any document or thing in the person’s control relating to the prospective respondent’s description; and(c)to give discovery to the prospective applicant of all documents that are or have been in the person’s control relating to the prospective respondent’s description.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

It is axiomatic that Telstra, as the internet service provider associated with the IP address, is likely to have documents in its possession that would help ascertain the prospective respondent’s description. These documents may include, inter alia:(a)The name of any person or persons operating from that IP address;(b)Any phone numbers or addresses associated with that IP address; and/or(c)Any location metadata associated with that IP address.Conclusion Each of the requirements under r 7.22 is satisfied. In all the circumstances it is appropriate to order Telstra to give discovery to the prospective applicant of all documents that are or have been in its control relating to the prospective respondent’s description. That said, the orders should be confined so as to relate to the use of the IP address on 12 December 2018, when the review, of which the prospective applicant complains, was posted.

Ratio Decidendi

Legal Principle Established

The expression “description” is defined in Sch 1 of the Rules to mean, for an individual, “the person’s name, residential or business address and occupation”, and for a person that is not an individual, their name and the address of their registered office, principal office or principal place of business. The prospective applicant, in his affidavit of 11 September 2020, has indicated that he seeks documents which identify any and all individuals and corporations associated with the IP address. In the absence of any further specification by the prospective applicant, it has been assumed that the he seeks all of the information falling within the definition of “description”, if available, from Telstra.ConsiderationThe prospective applicant may have a right to obtain relief The prospective applicant is not required to demonstrate the existence of a prima facie case against the prospective respondent: Levis v MacDonald (1997) 75 FCR 36, 41, 44. It is enough if he can show that he may have a right to obtain 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 succeeding, in that it must be a cause of action known to the law which has a real, as opposed to fanciful, prospect of the grant of some remedy: Allphones Retail Pty Ltd v Australian Competition and Consumer Commission (2009) 259 ALR 354 [54]. Here, the prospective applicant alleged that the review, extracted above, is potentially defamatory. In his written outline of submissions at [16], the prospective applicant states:The Post is potentially defamatory of Dr Colagrande by reason that it expressly or impliedly states that:(a) he committed the act the subject of the offence in relation to the Poster; and(b) he is guilty of the offence by reason of his conviction (notwithstanding the Court of Appeal had already, at the time the Post was made, quashed the conviction). It is first necessary to determine whether this Court would likely have jurisdiction to hear the prospective claim. In this respect, s 9(3) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) confers on the Federal Court the jurisdiction of the Supreme Courts of the Northern Territory (NT) and the Australian Capital Territory (ACT) to hear and determine defamation matters that would be within their jurisdiction: Rana v Google Inc (2017) 254 FCR 1 [24]; Crosby v Kelly (2012) 203 FCR 451, 458 [35]. 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) 210 CLR 575. In the present case there was no express allegation that the purportedly defamatory review was downloaded or read in the NT or the ACT, however it was submitted that the website ratemds.com is accessible throughout Australia. The fact that the review was visible to the public in the NT and ACT, along with the rest of Australia, is sufficient to establish that the Court is likely to have jurisdiction to hear the prospective claim: Kabbabe v Google LLC [2020] FCA 126 [16]. As observed by Kerr J in Boyd v Automattic at [48]:[W]here highly controversial material has been published regarding a resident of this country and made available to be read or downloaded from a website without restriction anywhere in Australia, it would be unrealistic to conclude other than that those words may have been read in, inter alia, the ACT and the Northern Territory.(Emphasis in original).