Duffy v Google LLC (No 2)

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
DUFFY v GOOGLE LLC (NO 2)
[2022] SASC 74
Judgment of the Honourable Justice Stanley
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COURT SUPERVISION - AMENDMENT - ORIGINATING PROCESS, PLEADINGS ETC
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - DISCOVERY AND INTERROGATORIES - DISCOVERY AND INSPECTION OF DOCUMENTS - DISCOVERY OF DOCUMENTS - APPLICATION AND ORDER FOR FURTHER AND BETTER DISCOVERY
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - PROCEDURAL ASPECTS OF EVIDENCE - SUBPOENAS AND NOTICE TO PRODUCE AT HEARING - GENERALLY
The applicant has filed an interlocutory application in relation to the following matters: permission to amend the statement of claim; further discovery by the respondent; permission to file and serve two expert reports; permission to issue three subpoenae; orders protecting two witnesses from harassment by the respondent; and permission for witnesses to give evidence via audio visual link.
Held:
1. The application for permission to amend the statement of claim is granted (in part).
2. The application for further discovery by the respondent is granted.
3. The application for permission to file and serve two expert reports is granted.
4. The application for permission to issue three subpoenae is dismissed.
5. The applications for orders protecting two witnesses from harassment by the respondent are dismissed.
6. The application for permission for witnesses to give evidence via audio visual link is dismissed.
Criminal Law Consolidation Act 1935 (SA) ss 244, 256; Federal Court Rules (Cth) r 10.44; Uniform Civil Rules 2020 (SA) sch 1 r 8, referred to.
Ceramic Fuel Cells Ltd (in liq) v McGraw-Hill Financial Inc (2016) 245 FCR 340; PPG Developments Pty Ltd v Capitanio (2016) 126 SASR 307, applied.
Adelaide Brighton Cement Ltd v Hallett Concrete Pty Ltd (2020) 137 SASR 117; Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; Channel Seven Adelaide Pty Ltd v Manock [2010] SASCFC 59; Duffy v Google LLC [2019] SASC 157; Duffy v Google LLC [2022] SASC 40; Fletcher v Bealey (1885) 23 Ch. D 688, considered.

DUFFY v GOOGLE LLC (NO 2)
[2022] SASC 74
Civil
STANLEY J:
Introduction

Janice Margaret Duffy has instituted proceedings in defamation against Google LLC (sometimes described as Google Inc) (Google). On 25 August 2021, the action was listed for trial commencing on 5 September 2022 with 10 days set aside. The trial is solely on the question of liability.
On 28 June 2022, Dr Duffy filed an application for interlocutory orders (FDN 94) in relation to the following matters:
·Permission to amend the second amended statement of claim by filing and serving a third amended statement of claim;
·Further discovery by Google;
·Permission to file and serve two expert reports;
·Permission to issue subpoenae to John L Hennessey, Prabhakar Raghaven and Caleb Donaldson;
·Orders protecting two witnesses from harassment by Google and its lawyers; and
·Permission for witnesses who do not reside in South Australia to give evidence by video link.
Google opposes the application except the order seeking permission to file and serve two expert reports. However, Google has foreshadowed that it intends to object to much of the contents of these expert reports on the grounds of relevance.
Google objects to the applications for orders protecting prospective witnesses on a number of grounds, including, that substantially similar applications have been made in a previous interlocutory application (FDN 52) heard by Judge Dart who has reserved judgment. Google contends that I should not deal with these applications in circumstances where Judge Dart is seized of the matter.
Application to amend statement of claim
The application to amend the second amended statement of claim by substituting a third amended statement of claim has its genesis in the remarks of Nicholson J who refused permission to appeal and dismissed an appeal from a decision of Judge Dart dismissing an application by Dr Duffy for further discovery. Nicholson J in his reasons for judgment said that Dr Duffy was at liberty to seek leave to further amend her statement of claim, if such leave was necessary, in order to provide a better platform for her discovery requests and/or to file a more targeted or refined application for discovery.[1]
[1] Duffy v Google LLC [2022] SASC 40 at [33].
The proposed third amended statement of claim was provided to the Court in support of the Interlocutory Application. At the hearing of the application Dr Duffy did not press for the amendment to add sub-paragraph 19.2 of the third amended statement of claim.
Google submits that the application to amend constitutes a substantial recasting of Dr Duffy’s claim in defamation, which will require amendments to its defence and further discovery. It submits that Dr Duffy has failed to provide any satisfactory explanation for the substantial delay in bringing the application to amend. In addition, Google contends that the proposed third amended statement of claim suffers from other deficiencies which themselves should lead the Court to dismiss the application.
The principles applicable to an application to amend pleadings were helpfully summarised by Doyle J in PPG Developments Pty Ltd v Capitanio:[2]
[2] (2016) 126 SASR 307 at [39]. See also Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; Channel Seven Adelaide Pty Ltd v Manock [2010] SASCFC 59.
[T]he High Court decision in Aon Risk Services, and the authorities that have applied it, have now made it plain that in exercising its discretion upon any application to amend, the Court must take into account a number of factors. The factors include:
·The nature and importance of the proposed amendment, including the extent to which it raises new issues of fact or law.
·The merits of the proposed amendment, at least in the sense that the proposed amendment is arguable or tenable.
·The stage of the litigation at which the application to amend is made, and the likely impact upon, or disruption to, the progress of the proceedings (and in particular the trial).
·The explanation for the application to amend and its timing, and the fact and extent of any undue delay in this regard.
·Whether the party has had a sufficient opportunity to plead their case earlier.
·The time, cost and inconvenience associated with any delay or disruption of the proceedings.
·The uncertainty and strain of litigation on the parties and their witnesses as a result of any disruption or delay likely to be occasioned by the amendment.
·The impact of any delay and disruption upon judicial and court resources, and the access of other litigants to those public resources.
·The impact upon the public’s confidence in the just and efficient administration of justice.
[citations omitted.]
Having considered the proposed third amended statement of claim and the existing pleading in the second amended statement of claim, I do not accept Google’s submission that the amendment constitutes a substantial re-pleading of Dr Duffy’s case. Rather, it mostly involves pleading with greater factual particularity the basis of the allegation of publication. So much is apparent from the amendments sought to be made to the pleas in paragraphs 5, 7, 9 and 11 of the third amended statement of claim. While I accept the submission that the proposed plea alters how the allegedly defamatory material, the subject of the proceeding, is defined, that does not occasion any real prejudice to Google. Instead, the proposed pleading puts Google on better notice as to the basis of the pleaded case as to publication. Rather than expanding the temporal scope of the proceeding the proposed amendment tends to narrow its temporal scope. So much is apparent from a consideration of the proposed amendments to paragraphs 4, 6, 8, 10, 12, and 16. Subject to one matter, the decision not to press the plea in sub-paragraph 19.2 overcomes Google’s objection that a plea concerning events in 2009 significantly expands the temporal scope of the proceeding. That matter is the proposed plea in sub-paragraph 26.2 which refers to continued publication by Google of the defamatory matter following notification from 2009. It is my view that in declining to press the amendments sought to sub-paragraph 19.2, Dr Duffy must have intended at the same time not to press the proposed plea in sub‑paragraph 26.2 which refers to “from 2009”. In any event I would not permit that amendment to sub-paragraph 26.2.
The pleading is also simplified by the deletion of paragraphs 11A, 11B, 11C and 11D.
The trial is still over six weeks away. The application to amend the pleadings was filed on 28 June 2022. Dr Duffy explained that she brought the application to amend in light of the failure of her earlier application for further discovery and the observations of Nicholson J in his reasons for judgment delivered on 4 May 2022.[3]
[3] See Duffy v Google LLC [2022] SASC 40.
In my view the period between her appeal being dismissed on 4 May 2022 and her filing the interlocutory application on 28 June 2022 does not involve unreasonable delay on the part of Dr Duffy in prosecuting an application to further amend the pleadings after considering the reasons of Nicholson J. While allowing Dr Duffy to further amend the statement of claim will involve additional expense and comes in a late stage in the proceedings, I am nonetheless satisfied that it can be accommodated without delaying the trial or unduly disrupting preparation for the trial. No doubt the application to amend could have been brought earlier but allowance must be made for Dr Duffy’s lack of legal training and limited experience of litigation. While Dr Duffy has had the assistance of legal advice, she nonetheless is a self-represented litigant and is entitled to some latitude when orders are made for case flow management. I do not consider that Google will suffer from the uncertainty and strain of litigation as a result of disruption and delay occasioned by the amendments being allowed. No submission was put to suggest that it would. If the trial proceeds on its listed date, there will be limited impact on judicial and court resources and access of other litigants to those public resources. In my view there will be no impact upon the public’s confidence in the just and efficient administration of justice as a result of granting the application to amend. Allowing the amendment is consistent with the objects of the rules.[4]
[4] Adelaide Brighton Cement Ltd v Hallett Concrete Pty Ltd (2020) 137 SASR 117 at [40]-[41], [46].
The third statement of claim unfortunately includes confusing pleas in sub-paragraphs 5.4, 6, 7.4, 7.5, 8, 9.4, 9.5, 11.4, 11.5, 12, 12.1 and 12.2. These are temporal pleas of events that are alleged to have occurred in some instances between a pleaded date and “after” a later pleaded date or “on or after” a later pleaded date or since a pleaded date and “to on or after” a later pleaded date. I would not permit the pleading to go forward on this basis. While I will permit the amendment, Dr Duffy will have to rectify this aspect of the amended pleading.
Application for further discovery by Google
Dr Duffy’s application for further discovery depends on the success or otherwise of her application to amend. The application for discovery at this stage is a case of the tail wagging the dog.
A very similar application for discovery was previously pursued unsuccessfully before Judge Dart and on appeal before Nicholson J.[5] That application failed because the second statement of claim failed to plead that the alleged defamatory material was published to a third party. The third amended statement of claim in paragraph 12 pleads publication to Michelle de Veau, Michael Roberts and more than 6,500 users who searched for Dr Duffy’s name. In paragraph 16 it pleads publication to Ms de Veau, Mr Roberts and those persons in Australia who used a web browser to access either of the Google sites and performed a search for the search terms pleaded in paragraphs 4-11 and then accessed RoR 1 or RoR 2 by clicking on the hyperlinks to them. In my view that satisfactorily addresses the basis upon which the previous application for further discovery was dismissed.
[5] See Duffy v Google LLC [2022] SASC 40.
As I have previously noted, in refusing permission to appeal and dismissing the appeal, Nicholson J said that Dr Duffy was at liberty to seek leave to further amend her statement of claim in order to provide a better platform for her discovery requests and/or to file a more targeted or refined application for discovery. The application to amend having succeeded, it follows that the application for further discovery must be allowed. However, the making of further discovery should await the close of pleadings. I will set a new timetable for pleadings and discovery to accommodate the existing trial date.
Application for permission to file two expert reports
As I have indicated, Google did not oppose the order sought by Dr Duffy for permission to file two expert reports. Accordingly, to the extent that it is required, I will grant her permission to do so.
Application to issue subpoenae to John L Hennessey, Prabhakar Raghaven and Caleb Donaldson
Dr Duffy seeks permission to serve subpoenae on the Chair of Google and two of Google’s senior employees to give evidence at the trial. Dr Duffy requires leave to serve a subpoena outside Australia.[6]
[6] Uniform Civil Rules 2020 (SA) sch 1 r 8.
Uniform Civil Rules 2020 (SA) sch 1 r 8(2) requires an application for service of documents outside Australia to be accompanied by an affidavit stating the name of the foreign country where the person is to be served; the proposed method of service; and that the proposed method of service is permitted either by a convention or the law of the foreign country. Dr Duffy’s affidavit in support of this application does not address any of these matters.
In Ceramic Fuel Cells Ltd (in liq) v McGraw-Hill Financial Inc, Wigney J considered the equivalent Federal Court rule which is in substantially the same terms as Uniform Civil Rules 2020 (SA) sch 1 r 8(2). [7] Wigney J held that the Court should have regard to international law and comity and exercise caution and restraint in considering whether to grant leave to serve a subpoena compelling a witness outside Australia to give evidence.[8]
[7] Federal Court Rules 2011 (Cth) r 10.44.
[8] (2016) 245 FCR 340 at [49]-[50].
John L Hennessey
At sub-paragraph 19.1 of the proposed third amended statement of claim, Dr Duffy seeks to plead that she notified John L Hennessey of the publication of the defamatory matter on the Google sites by email on 3 October 2016. She wishes to plead that the email was tracked and read that day. As I am prepared to allow that amendment, but Google is yet to amend its defence to address this plea, I am unable to determine whether the proposed plea concerning Professor Hennessey will be a fact in issue at the trial. It may be that Google will admit the amended plea. Accordingly, any question of issuing a subpoena requiring the attendance of Professor Hennessey to give evidence is premature. It is a matter which should be left to the trial judge after the close of pleadings. Accordingly, at this stage I would refuse permission to issue a subpoena to Professor Hennessey.
Prabhakar Raghaven
Dr Duffy submits that Prabhakar Raghaven is the head of Google Search. She wishes to call Dr Raghaven to give evidence in relation to her contention that Google does not need full URLs to remove content. She proposes to call her own experts to give evidence to that effect. She wants to call Dr Raghaven to question him about the evidence of her experts. She asserts that he is the person who has designed significant aspects of Google Search and therefore he will be able to answer technical questions. Dr Duffy claims that witnesses called by Google on a previous application for summary judgement dismissed by Blue J avoided answering questions on this topic.[9]
[9] See Duffy v Google LLC [2019] SASC 157.
Google opposes the exercise of the Court’s coercive powers as unnecessary and serving no legitimate forensic purpose. To the extent that Dr Duffy wishes to question Google personnel about Google’s removal practices, or the evidence that may be given by any expert Dr Duffy calls, she will be able to cross-examine witnesses Google calls to establish the matters set out in its defence, including, in particular, its removal of allegedly defamatory material following proper notification by Dr Duffy.
In my view a proper foundation for the exercise of the Court’s coercive powers has not been established. The evidence in support of the application suggests that Dr Raghaven has undertaken research into the way in which search engines ordered results and into information retrieval generally. For the purposes of this application, I am prepared to accept that prima facie he has relevant expertise. However, that alone does not warrant the exercise of the Court’s coercive power of subpoena. As I have said, Dr Duffy proposes to call her own experts to give evidence that Google does not need full URLs to remove content. If Google contests this evidence, presumably they will call witnesses to contradict the evidence of Dr Duffy’s experts. Dr Duffy will be able to cross-examine any expert Google calls. The submission that Google has previously called expert evidence from witnesses who Dr Duffy considers avoided the question is not a proper basis to exercise the power to subpoena a witness resident outside Australia. Google may not call those witnesses at the trial. Even if it does, it will be a matter for the trial judge, after hearing their evidence, to decide whether they are addressing the relevant issue and whether their evidence is persuasive in light of the evidence of Dr Duffy’s experts. In evaluating whether the Court should exercise its coercive powers in this instance, it is relevant that the application is not founded on any claim that only Dr Raghaven is relevantly qualified to give evidence on this topic. On the contrary, Dr Duffy wishes to rely on her experts. On that basis I would refuse permission to issue a subpoena to Dr Raghaven.
Caleb Donaldson
Caleb Donaldson is an attorney who is copyright counsel at Google. Dr Duffy relies on an article written by Mr Donaldson, referred to by one of her experts, in which he discusses Google’s ability to prophylactically remove content and prevent content being indexed. Dr Duffy contends that Mr Donaldson can give evidence that contradicts Google’s claim that it can only remove content if it has been provided with a complete URL. The foundation for the application to subpoena Mr Donaldson relies on a misconception. Dr Duffy wishes to adduce evidence from Mr Donaldson of Google’s technical capacity to block URLs prior to indexing on its domains. This is a matter for expert evidence. There is no evidence that Mr Donaldson has any expertise other than as a copyright lawyer. His understanding of whether and how Google has developed systems that deal with content “prophylactically” is a matter that does not appear to be within his expertise and can only be the result of hearsay. In those circumstances, the issue of a subpoena to be served on Mr Donaldson outside of Australia is inconsistent with the required exercise of care and restraint dictated by the authorities. Accordingly, I would refuse permission to issue a subpoena to Mr Donaldson.
Applications to make orders to protect Dr Duffy’s witnesses

Dr Duffy seeks unspecified orders to protect two of her witnesses from retaliation by Google in the event they were to give evidence in this matter.
Google submits that the Court should refrain from dealing with these applications because substantially similar applications have been argued before Judge Dart who has reserved judgment. I do not accept that submission. Those applications are paragraphs 2 and 3 in FDN 52. FDN 52 was argued before Judge Dart on 29 April 2021 and 30 November 2021. While it appears that Judge Dart did not make formal orders in relation to paragraphs 2 and 3, having read the transcript of the hearing on 30 November 2021, I am satisfied that his Honour dealt with these matters on the basis that they should be left to the trial judge.[10] I am of the same view.
[10] Transcript of Proceedings, Duffy v Google LLC (Supreme Court of South Australia, SCCIV-16-1347, Judge Dart, 30 November 2021) at 28-30.
In any event, I merely observe that any attempt to interfere with or intimidate a witness or prospective witness is a contempt of court and an offence against the criminal law.[11] The evidence relied on by Dr Duffy for the protection of her prospective witness, Mr Roberts, concerns events that occurred several years ago. Before the Court could make any protective orders, which effectively amount to a quia timet prohibitory injunction, it must be satisfied that there is a likelihood of imminent harm to him.[12]
[11] See Criminal Law Consolidation Act 1935 (SA) ss 244, 256.
[12] Fletcher v Bealey (1885) 23 Ch. D 688 at 698.
Further, there is a practical obstacle to the success of the application for orders protecting the other witness who is unidentified. I anticipate that the Court would find itself in an impossible position in deciding whether to make an order restraining Google from conduct in relation to a person Google could not identify.
Accordingly, I would dismiss these applications.
Application for permission for witnesses who do not reside in South Australia to give evidence by video link
Google reserves its position on this application, subject to notification by Dr Duffy of the witnesses she intends to call at trial. Google submits that the proposed order is premature. Ultimately it is a discretionary decision for the trial judge whether, and if so how, any witness gives evidence other than by being physically present in the courtroom. Accordingly, at this stage, I would dismiss this application.
Conclusion
I would grant the application to amend the second amended statement of claim by filing and serving a third amended statement of claim that conforms with my reasons. I would grant the application for further discovery. I would grant the application for permission to file the two expert reports. I would dismiss the application to issue subpoenae to Professor Hennessey, Dr Raghaven and Mr Donaldson. I would dismiss the applications for orders to protect Dr Duffy’s witnesses. I would dismiss the application for permission for witnesses who do not reside in South Australia to give evidence by video link.
I would give the following directions:
1.   Dr Duffy is to file and serve a third amended statement of claim by close of business on 29 July 2022;
2.   Google is to file and serve an amended defence by close of business on 5 August 2022;
3.   Dr Duffy is to file and serve any amended reply by close of business on 12 August 2022;
4.   The parties are to make further discovery by close of business on 19 August 2022; and
5.   The parties have liberty to apply to the trial judge.
I will hear the parties as to costs.

[2022] SASC 74

22 July 2022