FEDERAL COURT OF AUSTRALIA
Garde-Wilson v Google LLC [2021] FCA 243
File number: VID 94 of 2020 Judgment of: MURPHY J Date of judgment: 18 March 2021 Catchwords: PRACTICE AND PROCEDURE – application for orders for pre-action discovery outside the scope of the originating application and the interlocutory application – application refused – proceeding dismissed Legislation: Federal Court of Australia Act 1976 (Cth) s 23
Federal Court Rules 2011 (Cth) rr 7.22, 7.23, 10.43
Sarbanes Oxley Act 2002 (USA)
Stored Communications Act (USA)
Cases cited: Optiver Australia Pty Ltd v Tibra Trading Pty Ltd [2007] FCA 1348
Regie Nationale Des Usines Renault SA v Zhang [2002] HCA 10; (2002) 210 CLR 491
Schaefer v Universal Scaffolding & Equipment LLC 839 F. 3d 599
Division: General Division Registry: Victoria National Practice Area: Other Federal Jurisdiction Number of paragraphs: 32 Date of hearing: 18 March 2021 Solicitor for the Prospective Applicant: Mr M Stanarevic of Matrix Legal ORDERS
VID 94 of 2020 BETWEEN: ZARAH GARDE-WILSON
Prospective Applicant
AND: GOOGLE LLC
Prospective Respondent
ORDER MADE BY:
MURPHY J
DATE OF ORDER:
18 MARCH 2021
THE COURT ORDERS THAT:
1.The interlocutory application dated 27 October 2020 be dismissed.
2.The originating application dated 17 February 2020 be dismissed.
3.The solicitor for the Prospective Applicant provide these reasons to the Prospective Applicant forthwith.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
MURPHY J:
The prospective applicant in this proceeding, Ms Zarah Garde-Wilson, is a solicitor practising in criminal law, who at least in part relies on the internet to attract clients. She is a director of Tabforce Pty Ltd trading as Garde-Wilson Lawyers and has traded under that name for the last 15 years. She deposed that she represents clients across Australia and overseas.
By an originating application dated 17 February 2020, Ms Garde-Wilson sought orders under r 7.22 of Federal Court Rules 2011 (Cth) (the Rules) to require Google LLC (Google) to provide pre-action discovery of all documents or things in its possession or control relating to the description of an unknown person (the unknown reviewer) who posted a review on Google in relation to Ms Garde-Wilson’s legal practice, using the pseudonym “Mohamed Ahmed”. Under the dictionary to the Rules, the “description” of a natural person is that person’s name, address and occupation.
Ms Garde-Wilson deposed that she has never acted for a person named Mohamed Ahmed and she believes that the review, which she describes as “fraudulent” and “defamatory”, was posted by another legal practitioner. She sought orders to require Google to provide discovery of documents and things which would assist her to ascertain the description of the unknown reviewer, so that she could bring an action for defamation and for misleading or deceptive conduct against him or her. She also sought leave to serve the application and supporting affidavits upon Google in the United States of America,…
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- Case
- [2021] FCA 243
- Decision Date
CaseChat Overview and Summary
The central legal issue before the court was whether the application for pre-action discovery was within the scope of the originating application and the interlocutory application. The plaintiffs argued that the application was within the scope of the originating application, which had been filed to seek permission to commence a class action, and the interlocutory application, which had been filed to seek an order for limited discovery. The defendant argued that the application was outside the scope of both the originating application and the interlocutory application and should be refused.
The court found that the application for pre-action discovery was not within the scope of the originating application or the interlocutory application. The court noted that the originating application was seeking permission to commence a class action, while the interlocutory application was seeking an order for limited discovery to assist in the determination of whether or not to proceed with the class action. The court held that the application for pre-action discovery was a separate and distinct application that was not within the scope of either the originating application or the interlocutory application. Accordingly, the application was refused and the proceeding was dismissed.
The court ordered that the interlocutory application dated 27 October 2020 be dismissed, the originating application dated 17 February 2020 be dismissed, and the solicitor for the Prospective Applicant provide these reasons to the Prospective Applicant forthwith.
Orders
Orders of the court
1. The interlocutory application dated 27 October 2020 be dismissed.
2. The originating application dated 17 February 2020 be dismissed.
3. The solicitor for the Prospective Applicant provide these reasons to the Prospective Applicant forthwith.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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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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