Kandola v Google LLC

Case [2021] FCA 1262

FEDERAL COURT OF AUSTRALIA

Kandola v Google LLC [2021] FCA 1262  

File number(s): NSD 865 of 2021
Judgment of: CHEESEMAN J
Date of judgment: 14 October 2021
Catchwords:

 PRACTICE AND PROCEDURE – application for leave to serve originating application on first prospective respondent seeking preliminary discovery out of jurisdiction pursuant to rr 10.42 and 10.43 of the Federal Court Rules 2011 (Cth) – where prospective applicants also seek orders for substituted service by email due to delays arising from COVID-19 pandemic – whether the proceedings are of the kind stipulated by the rules – whether requirements of rr 10.42 and 10.43 have been met – whether the prospective applicants have a prima facie case for all or any of the relief claimed – whether substituted service ought to be granted – Held: leave granted to serve first prospective respondent outside of jurisdiction – orders for substituted service refused.

PRACTICE AND PROCEDURE – application for preliminary discovery pursuant to r 7.22 of the Federal Court Rules 2011 (Cth) – where prospective second respondent neither consents nor opposes to the making of an order for preliminary discovery against it – where the only issue to address is costs pursuant to r 7.29 of the rules – timetabling orders made in respect of costs and preliminary discovery against the prospective second respondent.

Legislation: Federal Court Rules 2011 (Cth), rr 7.22, 10.42, 10.43
Cases cited: Lin v Google LLC [2021] FCA 1113
Division: General Division
Registry: New South Wales
National Practice Area: Other Federal Jurisdiction
Number of paragraphs: 20
Date of hearing: 14 October 2021
Counsel for the Prospective Applicants: Ms R Kandola appearing for the prospective applicants
Solicitor for the Second Prospective Respondent: Thomson Greer (appearing in respect of case management of the preliminary discovery application only)

ORDERS

NSD 865 of 2021
BETWEEN:

MR TEJINDER SINGH KANDOLA

First Prospective Applicant

MS RACHEL KANDOLA

Second Prospective Applicant
AND:

GOOGLE LLC

First Prospective Respondent

SENSIS PTY LTD

Second Prospective Respondent

ORDER MADE BY:

CHEESEMAN J

DATE OF ORDER:

14 OCTOBER 2021

THE COURT ORDERS THAT:

Leave to serve outside of jurisdiction on first prospective respondent

1.Pursuant to rr 10.42 and 10.43 of the Federal Court Rules 2011 (Cth), the prospective applicants be granted leave to serve the originating application, affidavit of Rachel Kandola affirmed 21 August 2021, affidavit of Tejinder Singh Kandola affirmed 21 August 2021, and a copy of these orders (together, the documents) on the first prospective respondent, Google LLC, in the United States of America in accordance with the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters done at the Hague on 15 November 1965, by sending the documents using international registered post, with an acknowledgment of receipt to be provided by Google to the prospective applicants, addressed to:

Google LLC

C/O Custodian of Records

1600 Amphitheatre Parkway

Mountain View, California 94043

United States of America

2.Costs be reserved in respect of the application to serve outside of jurisdiction.

Application for preliminary discovery against…

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Kandola v Google LLC [2021] FCA 1262
Case
[2021] FCA 1262
Decision Date

CaseChat Overview and Summary

In Kandola v Google LLC, the applicants, Mr and Ms Kandola, sought leave to serve an originating application on Google LLC, an American company, to obtain the identities of reviewers who had posted negative reviews about their business on Google's website. The applicants argued that the reviews were defamatory and had caused them significant harm. The primary legal issues were whether the applicants satisfied the conditions under Federal Court Rules 10.42 and 10.43 to serve the application outside Australia and whether substituted service by email should be permitted due to delays caused by the COVID-19 pandemic.

The court determined that the applicants' application for preliminary discovery qualified under the types of proceedings listed in rule 10.42. The court also found that the proposed method of serving Google via the Hague Convention was acceptable, and the applicants had satisfied the other conditions of rules 10.42 and 10.43, including having a prima facie case. However, the applicants had not yet attempted to use the specified email address to ascertain if Google would accept service by email, thus the application for substituted service was refused.

The court granted the applicants leave to serve Google outside the jurisdiction and made timetabling orders for costs and preliminary discovery against the second prospective respondent, Yellow Pages. The parties were instructed to confer on costs, and if no agreement was reached, they were to file submissions by specified dates. The case was set for a case management hearing and the parties were granted liberty to relist.

The court noted that the second prospective respondent did not oppose the making of an order for preliminary discovery in principle and that the discovery would likely be required by 1 November 2021.

Orders

Orders of the court

Leave to serve outside of jurisdiction on first prospective respondent

1. Pursuant to rr 10.42 and 10.43 of the Federal Court Rules 2011 (Cth), the prospective applicants be granted leave to serve the originating application, affidavit of Rachel Kandola affirmed 21 August 2021, affidavit of Tejinder Singh Kandola affirmed 21 August 2021, and a copy of these orders (together, the documents) on the first prospective respondent, Google LLC, in the United States of America in accordance with the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters done at the Hague on 15 November 1965, by sending the documents using international registered post, with an acknowledgment of receipt to be provided by Google to the prospective applicants, addressed to:

Google LLC

C/O Custodian of Records

1600 Amphitheatre Parkway

Mountain View, California 94043

United States of America

2. Costs be reserved in respect of the application to serve outside of jurisdiction.

Application for preliminary discovery against second prospective respondent

3. The second prospective respondent and the prospective applicants are to confer on the issue of costs of preliminary discovery being provided by the second prospective respondent and communicate any agreement reached to the Associate to Cheeseman J by no later than 4 pm on 19 October 2021.

4. In the absence of agreement in respect of the second prospective respondent’s costs:

(a) the second prospective respondent is to file and serve submissions and any supporting affidavit addressing the substantive application for preliminary discovery and its costs under r 7.29 of the Rules by 4 pm on 19 October 2021; and

(b) the prospective applicants are to file and serve any submissions and evidence in reply by 4 pm on 21 October 2021.

5. The application for preliminary discovery against the second prospective respondent and the costs thereof are to be determined on the papers.

Next Case Management Hearing

6. The proceedings be listed for case management before Justice Cheeseman on

4 November 2021 at a time to be advised.

Liberty to relist

7. The parties have liberty to relist on 2 days’ notice.

THE COURT NOTES THAT:

8. Subject to the issue of costs, the second prospective respondent neither consents nor opposes in principle the making of an order that it is to provide preliminary discovery to the prospective applicants. Accordingly, in the event that the second prospective respondent is required to give preliminary discovery, it is likely that such discovery will be required by 4 pm, 1 November 2021. The second prospective respondent will take necessary preparatory steps in accordance with that likely timeframe.

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

Background

Background to the litigation

For the following reasons the prospective applicants are granted leave under rules 10.42 and 10.43 of the Rules to serve the originating application and accompanying material on Google in accordance with the Hague Convention but at this stage, and in the absence of evidence, the application for substituted service by email is refused. Should the prospective applicants wish to bring a further application for substituted service supported by appropriate evidence they are not precluded from doing so.BACKGROUND The background is set out in the affidavits of Mr and Ms Kandola. In essence they are seeking information in respect of the description or identity of the authors of three negative reviews of Unicorn’s business published on the internet. Two of the reviews were posted on Google’s website and one was published on the Yellow Pages website, which is operated by the second prospective respondent. The reviews are in evidence before me. The prospective applicants contend that the reviews are defamatory of Unicorn and of each of them individually and have negatively impacted their respective reputations and have caused the prospective applicants to suffer mental anguish. The reviewers on the Google site were identified as “Frank H” and “John S”. The prospective applicants have taken reasonable steps to obtain details of the identities of the authors without success and now seek to obtain that information by way of the present application. In a reply dated 18 December 2020, to an email from Ms Kandola, Google said that in order for those outside of the United States to obtain information on how to serve Google with a valid legal process concerning the provision of identifying information about anonymous posters an email should be directed to a specified google email address. The prospective applicants seek an order for substituted service by email to that specified address but as yet have not sought to obtain information concerning service by emailing that address. Similarly, the prospective applicants have not sought to use that email address to ascertain whether Google will accept service by email. CONSIDERATIONLeave to serve out In Lin v Google LLC [2021] FCA 1113, Wigney J set out the principles applicable in the present context when considering a similar application for service outside Australia in proceedings involving a preliminary discovery application against Google with a view to a potential future defamation action in respect of anonymised negative business reviews (at [11]-[12]):11Rule 10.42 of the Rules provides that, “[s]ubject to rule 10.43, an originating application, or an application under Part 7 of these Rules, may be served on a person in a foreign country in a proceeding that consists of, or includes, any one or more of the kinds of proceeding mentioned in the following table” (emphasis added). An application for preliminary discovery pursuant to r 7.22 of the Rules is an application under Pt 7 of the Rules to which r 10.42 may apply.12When rr 10.42 and 10.43 are read together, the result is that Mr Lin must satisfy five requirements for him to be granted leave to serve his originating application on Google in the USA. Those requirements are: first, that his application consists of, or includes, one or more of the kinds of proceedings mentioned in the table in r 10.42 (rr 10.42 and 10.43(4)(b) of the Rules); second, that the means by which he proposes to serve Google in the USA is in accordance with a convention, the Hague Convention or the law of the USA (r 10.43(2) of the Rules); third, his application is accompanied by an affidavit stating the name of the foreign country where Google is to be served and that the proposed method of service is in accordance with a convention, the Hague Convention or the law of the foreign country (r 10.43(3) of the Rules); fourth, the Court has jurisdiction in the proceeding (r 10.43(4)(a) of the Rules); and fifth, he has a prima facie case for all or any of the relief claimed in the proceeding (r 10.43(4)(c) of the Rules).

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

The reviewers on the Google site were identified as “Frank H” and “John S”. The prospective applicants have taken reasonable steps to obtain details of the identities of the authors without success and now seek to obtain that information by way of the present application. In a reply dated 18 December 2020, to an email from Ms Kandola, Google said that in order for those outside of the United States to obtain information on how to serve Google with a valid legal process concerning the provision of identifying information about anonymous posters an email should be directed to a specified google email address. The prospective applicants seek an order for substituted service by email to that specified address but as yet have not sought to obtain information concerning service by emailing that address. Similarly, the prospective applicants have not sought to use that email address to ascertain whether Google will accept service by email. CONSIDERATIONLeave to serve out In Lin v Google LLC [2021] FCA 1113, Wigney J set out the principles applicable in the present context when considering a similar application for service outside Australia in proceedings involving a preliminary discovery application against Google with a view to a potential future defamation action in respect of anonymised negative business reviews (at [11]-[12]):11Rule 10.42 of the Rules provides that, “[s]ubject to rule 10.43, an originating application, or an application under Part 7 of these Rules, may be served on a person in a foreign country in a proceeding that consists of, or includes, any one or more of the kinds of proceeding mentioned in the following table” (emphasis added). An application for preliminary discovery pursuant to r 7.22 of the Rules is an application under Pt 7 of the Rules to which r 10.42 may apply.12When rr 10.42 and 10.43 are read together, the result is that Mr Lin must satisfy five requirements for him to be granted leave to serve his originating application on Google in the USA. Those requirements are: first, that his application consists of, or includes, one or more of the kinds of proceedings mentioned in the table in r 10.42 (rr 10.42 and 10.43(4)(b) of the Rules); second, that the means by which he proposes to serve Google in the USA is in accordance with a convention, the Hague Convention or the law of the USA (r 10.43(2) of the Rules); third, his application is accompanied by an affidavit stating the name of the foreign country where Google is to be served and that the proposed method of service is in accordance with a convention, the Hague Convention or the law of the foreign country (r 10.43(3) of the Rules); fourth, the Court has jurisdiction in the proceeding (r 10.43(4)(a) of the Rules); and fifth, he has a prima facie case for all or any of the relief claimed in the proceeding (r 10.43(4)(c) of the Rules). In the present application, I am satisfied that the relevant requirements are satisfied and that leave to serve outside the jurisdiction should be granted.