Duffy v Google LLC (No 2) - [2022] SASC 74

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…

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 Duffy v Google LLC (No 2)

Details

AGLC: Duffy v Google LLC (No 2) [2022] SASC 74
Case: [2022] SASC 74
Decision Date: 22 July 2022

CaseChat Overview and Summary

The case of Duffy v Google LLC (No 2) involved the plaintiff, Dr. Duffy, and the defendant, Google LLC, in the Supreme Court of South Australia. The dispute centred on various procedural matters related to amendments to the statement of claim, discovery of documents, and the issuance of subpoenas. The court was tasked with determining whether Dr. Duffy's applications for amendments to her statement of claim, further discovery, and the issuance of subpoenas to certain witnesses should be granted. Additionally, the court had to decide on the admissibility of expert reports and the protection of witnesses.

The primary legal issues before the court included the discretion of the court to allow amendments to pleadings, the scope of discovery in civil proceedings, the admissibility of expert evidence, and the protection of witnesses in civil litigation. The court had to balance the principles of procedural fairness and the efficiency of the litigation process with the rights of the parties involved.

In its decision, the court granted Dr. Duffy's application to amend her statement of claim, allowing her to file and serve a third amended statement of claim by a specified deadline. The court also granted the application for further discovery, permitting the parties to conduct additional discovery by a set date. The court allowed the filing of two expert reports but dismissed the application for subpoenas to certain witnesses. The court dismissed the application for orders to protect Dr. Duffy’s witnesses and the application for permission for witnesses to give evidence via video link, noting that these were discretionary matters for the trial judge.

The court provided specific directions for the parties, including deadlines for filing amended pleadings and conducting further discovery. The court also reserved the right to hear submissions on costs and provided the parties with the liberty to apply to the trial judge as needed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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; and5. The parties have liberty to apply to the trial judge. I will hear the parties as to costs.

Decision

Reasons for decision

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; and5. The parties have liberty to apply to the trial judge. I will hear the parties as to costs.

Ratio Decidendi

Legal Principle Established

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