Kathryn Stanford Consulting Pte v Google LLC

Link copied
Case Copied 11 min read

FEDERAL COURT OF AUSTRALIA

Kathryn Stanford Consulting PTE v Google LLC [2022] FCA 1049   

File number(s): QUD 290 of 2022
Judgment of: COLLIER J
Date of judgment: 7 September 2022
Catchwords:  PRACTICE AND PPROCEDURE – ex parte application for service of originating application for order for discovery on prospective respondent outside of Australia – whether criteria in rules 10.42 and  10.43 of the Federal Court Rules 2011 (Cth) satisfied – whereas Australia and the United States are contracting states to the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters – registered post is an acceptable means of service in this proceeding – relevant criteria met by the prospective applicant – application granted
Legislation:

Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (concluded on 15 November 1965)

Federal Court Rules 2011 (Cth)
Cases cited:

AIA Australia Ltd v Richards [2017] FCA 84

Barilaro v Shanks-Markovina (No 1) [2021] FCA 789

Kabbabe v Google LLC [2020] FCA 126

Lin v Google [2021] FCA 1113

Musicki v Google LLC [2021] FCA 1393
Division: General Division
Registry: Queensland
National Practice Area: Other Federal Jurisdiction
Number of paragraphs: 25
Date of hearing: Determined on the papers
Solicitor for the Prospective Applicant: Aitken Whyte Lawyers
Solicitor for the Prospective Respondent The Prospective Respondent did not appear.

ORDERS

QUD 290 of 2022
BETWEEN:

KATHRYN STANFORD CONSULTING PTE LTD ABRN 647 757 597

Prospective Applicant
AND:

GOOGLE LLC

Prospective Respondent

ORDER MADE BY:

COLLIER J

DATE OF ORDER:

7 SEPTEMBER 2022

THE COURT ORDERS THAT:

1.Pursuant to rr 10.42 and 10.43 of the Federal Court Rules 2011 (Cth), the prospective applicant be granted leave to serve:

(a)the Originating Application filed 29 August 2022;

(b)the affidavit of Luke Armstrong affirmed on 23 August 2022;

(c)the affidavit of Craig Kenneth Bartley affirmed on 24 August 2022;

(d)a copy of these reasons; and

(e)the sealed Orders made herein.

(collectively relevant documents) on the 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 applicant, addressed to:

Google LLC

C/O Custodian of Records

Amphitheatre Parkway

Mountain View, California 94043

United States of America

2.Costs be in the cause.

3.This proceeding be referred to the National Operations Registrar for allocation to a docket judge.

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


REASONS FOR JUDGMENT

COLLIER J

  1. Before the Court is an interlocutory application, filed by the prospective applicant (applicant) on 29 August 2022,  seeking the following relief on an ex parte basis:

    1.Leave is granted for the Prospective Applicant to serve the Originating Application by the Prospective Applicant for Order for Discovery on the Prospective Respondent outside of…

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read Kathryn Stanford Consulting Pte v Google LLC and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2022] FCA 1049
Decision Date

CaseChat Overview and Summary

Kathryn Stanford Consulting Pte, an entity registered in Singapore, applied for an order to serve Google LLC, an entity incorporated in Delaware with its headquarters in California, with an originating application for preliminary discovery. The applicant sought orders for Google to provide information about the account holder who posted a review on its Google business page. The review was alleged to be defamatory. The application was brought on an ex parte basis in accordance with the Federal Court Rules 2011 (Cth). The court was required to decide whether the criteria in rules 10.42 and 10.43 of the Federal Court Rules 2011 (Cth) were satisfied to allow service of the originating application on Google LLC outside of Australia. The court considered whether the applicant had a prima facie case for relief, and whether the service of the originating application would be in accordance with the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters. The court found that the applicant had satisfied all the criteria in the Federal Court Rules and the Convention. The court held that the applicant had a real, and not fanciful, right to relief by way of defamation proceedings against Google LLC on the basis of the review. The court also held that registered post is an acceptable means of service in this proceeding. The court granted the application and ordered that the relevant documents be served on Google LLC 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. The court also ordered that costs be in the cause.

Orders

Orders of the court

1. Pursuant to rr 10.42 and 10.43 of the Federal Court Rules 2011 (Cth), the prospective applicant be granted leave to serve:

(a) the Originating Application filed 29 August 2022;

(b) the affidavit of Luke Armstrong affirmed on 23 August 2022;

(c) the affidavit of Craig Kenneth Bartley affirmed on 24 August 2022;

(d) a copy of these reasons; and

(e) the sealed Orders made herein.

(collectively relevant documents) on the 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 applicant, addressed to:

Google LLC

C/O Custodian of Records

Amphitheatre Parkway

Mountain View, California 94043

United States of America

2. Costs be in the cause.

3. This proceeding be referred to the National Operations Registrar for allocation to a docket judge.

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

Background

Background to the litigation

This application was brought to the attention of my Chambers on 29 August 2022 in my capacity as Duty Judge. Subsequently, I made Orders of even date facilitating the provision of submissions in support of the applicant’s application. In accordance with those Orders, I now turn to determine the application on the papers. BACKGROUND The applicant submitted that the likely substantive proceeding “concerns potential defamation proceedings (and possibly an action under s18 of the Australian Consumer Law) against an unknown defendant”. The applicant is a company registered in Singapore that provides former Australian Defence Force service members with administration assistance referable to repatriation claims to the Department of Veterans Affairs. The applicant has a business website, and according to its director Mr Luke Armstrong in his affidavit dated 23 August 2022 (Armstrong affidavit), relies significantly on “on the goodwill generated by reviews, with Google Reviews the primary mechanism for potential clients to access reviews of past clients”. The Google reviews that form the basis of the forecast defamation proceedings were made by Mr Stevie Hoff (Hoff review) and Mr John Avery (Avery review) on 21 November 2020 and 15 October 2021 respectively. The Hoff review consisted of a rating of one out of five stars accompanied by the following text:Absolutely a total rip off. I could have done it myself or seen a free service such as an RSL advocate. Don't use this mob. The applicant submitted that it had no record of ever providing services to Mr Hoff. The Avery review consisted of a rating of one out of five stars with no accompanying text. Similarly, the applicant stated that it has no record of providing services to Mr Avery. In correspondence with the prospective respondent (respondent) in early May 2022, the applicant requested that the Hoff review and the Avery review be removed from its Google business page. The respondent declined to do so on the basis that the reviews did not breach its review guidelines. The applicant contends that the reviews did breach those guidelines on the basis that they amounted to “content that has been posted by a competitor to undermine business or product's reputation”. On 31 May 2022, the applicant again wrote to the respondent seeking the removal of the Hoff review and the Avery review, in addition to “…provision of the identity and copies of documents showing the identity of John Avery and Stevie Hoff, so that [the applicant] may take appropriate steps with regards the reviews”. On 7 July 2022, the applicant noticed that the Hoff review had been removed from its Google business page. The applicant contended the respondent provided no notice of, or explanation for, the removal of the Hoff review. The applicant submitted however that, as at the date of the ex parte application, the Avery review remained visible on the applicant’s Google business page. The applicant, by means of its originating application as a prospective applicant seeking orders for discovery (originating application), filed on 29 August 2022, sought the following discovery referable to the Avery review:1.Kathryn Stanford Consulting Pte Ltd, the Prospective Applicant, applies under Rule 7.23 for an order that Google LLC give discovery to the Prospective Applicant of the subscriber information for the 'John Avery' account that posted the Google Review referred to in the affidavit of Luke Armstrong (the 'Account'), including:a.the name of the user(s) of the Account;b.account creation information;c.email addresses;d.the IP address of logins;e.associated timestampsf.telephone phone numbers;g.location metadata; andh.any other Google accounts including their full name and email address and identifying details which may have originated from the same IP address during a similar time period to when 'John Avery's' account was accessed to post the offending Google review.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

A negative Google review may afford a right to relief in a prospective applicant for alleged defamation: Musicki v Google LLC [2021] FCA 1393. I accept that applicant may have a real, and not fanciful, right to relief by way of defamation proceedings against the prospective respondent on the basis of the Avery review. As such, the final criterion has been satisfied. CONCLUSION I am satisfied that the applicant has made out its case referable to serving its application for preliminary discovery on the respondent, outside of Australia, and in the manner sought. Accordingly I make the orders sought by the applicant. It is appropriate that costs be in the cause.

Ratio Decidendi

Legal Principle Established

The applicant now seeks an order in terms I have outlined at [1] for the purpose of serving the respondent at the address of its headquarters in the United States.CONSIDERATION Rules 10.42 and 10.43 of the Federal Court Rules 2011 (Cth)(FCR) relevantly provide:10.42 When originating application may be served outside AustraliaSubject 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. I note that Australia and the United States are contracting parties to the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (concluded on 15 November 1965)(the Convention). This instrument is therefore applicable to the applicant’s application. Article 10 of the Convention relevantly provides:Article 10Provided the State of destination does not object, the present Convention shall not interfere with –a) the freedom to send judicial documents, by postal channels, directly to persons abroad,b) the freedom of judicial officers, officials or other competent persons of the State of origin to effect service of judicial documents directly through the judicial officers, officials or other competent persons of the State of destination,c) the freedom of any person interested in a judicial proceeding to effect service of judicial documents directly through the judicial officers, officials or other competent persons of the State of destination In Lin v Google [2021] FCA 1113 at [12] Wigney J outlined the criteria that must be met in order for an application for leave to serve outside Australia an originating application seeking preliminary discovery, pursuant to Div 10.4 of FCR. His Honour stated: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).(emphasis added) I am satisfied that the applicant has satisfied the criteria to serve the respondent at its address in the United States for the following reasons.