Heath v LawTap Pty Ltd

Case [2021] FCA 485


FEDERAL COURT OF AUSTRALIA

Heath v LawTap Pty Ltd [2021] FCA 485  

File number: VID 124 of 2021
Judgment of: MORTIMER J
Date of judgment: 10 May 2021
Catchwords: PRACTICE AND PROCEDURE – application for preliminary discovery pursuant to r 7.22 of the Federal Court Rules 2011 (Cth) – allegedly defamatory comments made online – respondent filed submitting notice pursuant to r 12.01(1) of the Rules – application granted
Legislation: Federal Court Rules 2011 (Cth) rr 7.22, 7.23, 7.27, 7.28, 12.01(1)
Cases cited:

Hooper and Others v Kirella Pty Ltd [1999] FCA 1584; 96 FCR 1

Kabbabe v Google LLC [2020] FCA 126

McCrae v Reynolds [2015] FCA 529

Division: General Division
Registry: Victoria
National Practice Area: Other Federal Jurisdiction
Number of paragraphs: 15
Date of last submission/s: 4 May 2021
Date of hearing: 6 May 2021
Counsel for the Prospective Applicant: Mr Jeffrey G Levine
Solicitor for the Prospective Applicant: Mr Mark Stanarevic of Matrix Legal

ORDERS

VID 124 of 2021
BETWEEN:

CRAIG HEATH

Prospective Applicant

AND:

LAWTAP PTY LTD

Respondent

ORDER MADE BY:

MORTIMER J

DATE OF ORDER:

10 MAY 2021

THE COURT ORDERS THAT:

1.On or before 4pm on 9 June 2021, or such further or other time as the Court may order, LawTap Pty Ltd give preliminary discovery, by affidavit, of all documents which are or have been in its control relating to the identification of the description (as defined in the Dictionary to the Federal Court Rules 2011 (Cth)), by name, address or any other form of contact details, of the presently unknown person or persons who posted comments or statements in the thread located at the URL set out at [5] of the affidavit of Mr Mark Stanarevic sworn 7 May 2021 and which is reproduced as Annexure MS-2 to that affidavit.

2.Preliminary discovery pursuant to order 1 is limited to documents relating to the identification of the description of the presently unknown person or persons who posted comments or statements between 1 February 2020 and the date of these orders.

3.Preliminary discovery and inspection pursuant to order 1 is to be given in accordance with rr 7.22(2)(c), 7.27 and 7.28 of the Rules.

4.Liberty to apply on 48 hours’ notice to amend, vary or substitute the orders made.

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


REASONS FOR JUDGMENT

MORTIMER J:

  1. The prospective applicant, Mr Craig Heath, by originating application pursuant to r 7.22 of the Federal Court Rules 2011 (Cth), seeks orders for preliminary discovery to require LawTap Pty Ltd to provide “all documents or things in its possession or control relating to the description of an unknown person” who posted allegedly defamatory comments under various pseudonyms in relation to Mr Heath and his property development business.

  2. LawTap filed a submitting notice pursuant to r 12.01(1) of the Rules on 16 April 2021.

  3. For the reasons that follow, the application for preliminary discovery is granted.

  4. Rule 7.22(1) of the Rules provides:

    7.22…

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Details
AGLC
Heath v LawTap Pty Ltd [2021] FCA 485
Case
[2021] FCA 485
Decision Date

CaseChat Overview and Summary

The applicant, Heath, filed an application in the Federal Court of Australia seeking preliminary discovery of documents from the respondent, LawTap Pty Ltd. The dispute revolves around allegedly defamatory comments made online, which the applicant believes were posted by an unknown individual or individuals on LawTap's platform. The application was made pursuant to rule 7.22 of the Federal Court Rules 2011 (Cth), seeking the identification of the unknown person or persons responsible for the comments. LawTap filed a submitting notice under rule 12.01(1) of the Rules, which led to the court being required to decide on the application for preliminary discovery.

The court considered the need for the applicant to obtain the information necessary to identify the unknown person or persons responsible for the allegedly defamatory comments. The court assessed whether the application met the criteria under rule 7.22 of the Rules and whether the information sought was relevant to the proceedings. The court concluded that the applicant had established a prima facie case for the relief sought and that the documents were likely to contain relevant information.

Consequently, the court granted the application for preliminary discovery. The respondent was ordered to provide, by affidavit, all documents in its control relating to the identification of the unknown person or persons who posted comments or statements between 1 February 2020 and the date of the orders. The discovery was limited to documents that could assist in identifying the unknown individuals. The court also set out specific rules for the preliminary discovery and inspection process, and allowed for potential amendments to the orders.

The court ordered that LawTap Pty Ltd must provide the preliminary discovery by 4pm on 9 June 2021, or another time as the court may order. This included providing documents that could assist in identifying the unknown individuals who posted the allegedly defamatory comments. The court also set out specific rules for the preliminary discovery and inspection process and allowed for potential amendments to the orders.

Orders

Orders of the court

THE COURT ORDERS THAT:

1. On or before 4pm on 9 June 2021, or such further or other time as the Court may order, LawTap Pty Ltd give preliminary discovery, by affidavit, of all documents which are or have been in its control relating to the identification of the description (as defined in the Dictionary to the Federal Court Rules 2011 (Cth)), by name, address or any other form of contact details, of the presently unknown person or persons who posted comments or statements in the thread located at the URL set out at [5] of the affidavit of Mr Mark Stanarevic sworn 7 May 2021 and which is reproduced as Annexure MS-2 to that affidavit.

2. Preliminary discovery pursuant to order 1 is limited to documents relating to the identification of the description of the presently unknown person or persons who posted comments or statements between 1 February 2020 and the date of these orders.

3. Preliminary discovery and inspection pursuant to order 1 is to be given in accordance with rr 7.22(2)(c), 7.27 and 7.28 of the Rules.

4. Liberty to apply on 48 hours’ notice to amend, vary or substitute the orders made.

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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