Khan v Google LLC

Case [2023] FCA 785

FEDERAL COURT OF AUSTRALIA

Khan v Google LLC [2023] FCA 785

File number(s): VID 95 of 2023
Judgment of: BUTTON J
Date of judgment: 11 July 2023
Date of publication of reasons: 12 July 2023
Catchwords:

PRACTICE AND PROCEDURE – application for leave to proceed against respondent served outside Australia pursuant to r 10.43D of the Federal Court Rules 2011 – where respondent was aware of the application but elected not to appear or participate – whether respondent was properly served – whether originating application makes claims of a kind permitted to be served overseas without leave – leave to proceed granted

PRACTICE AND PROCEDURE – application for preliminary discovery to ascertain description of prospective respondent – where prospective applicant was the subject of an anonymous email sent from Gmail email address – where respondent is the apparent owner and operator of Gmail – whether prospective applicant has established requirements of r 7.22(1) of the Federal Court Rules 2011 – preliminary discovery ordered on more confined terms than those sought by the prospective applicant

Legislation:

Federal Court Rules 2011 (Cth) rr 7.22, 10.42, 10.43B, 10.43C, 10.43D

Supreme Court (General Civil Procedure) Rules 2015 (Vic) rr 7.02, 7.07
Cases cited:

Agar v Hyde (2000) 201 CLR 552

AIA Australia Ltd v Richards [2017] FCA 84

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

Bingley-Pullin v Montgomery [2018] NSWSC 1308

Brighton Automotive Holdings Pty Ltd v Honda Australia Pty Ltd (2021) 65 VR 146

Hutchinson v AD Securities America LLC [2021] NSWSC 1573

Kabbabe v Google LLC [2020] FCA 126

King v Linkage Access Ltd [2022] VSC 158

Lew Footwear Holdings Pty Ltd v Madden International Ltd [2014] VSC 320

Lin v Google LLC [2021] FCA 1113

Rio Tinto Shared Services Pty Ltd v English Datasystems LLC (2021) 65 VR 25

Rossiter v Core Mining Ltd [2015] NSWSC 360

Nygh’s Conflict of Laws in Australia (LexisNexis Butterworths, 10th ed, 2020)
Division: General Division
Registry: Victoria
National Practice Area: Other Federal Jurisdiction
Number of paragraphs: 37
Date of hearing: 11 July 2023
Counsel for the Prospective Applicant: Mr J A Castelan
Solicitor for the Prospective Applicant: SR Lawyers
Solicitor for the Respondent: The respondent did not appear

ORDERS

VID 95 of 2023
BETWEEN:

NURUL KHAN

Prospective Applicant
AND:

GOOGLE LLC

Respondent

ORDER MADE BY:

BUTTON J

DATE OF ORDER:

11 JULY 2023

THE COURT NOTES THAT:

1.The respondent has reserved its position as to the jurisdiction of this Court and has not voluntarily submitted to the Court’s jurisdiction.

THE COURT ORDERS THAT:

1.The prospective applicant has leave to proceed against the respondent pursuant to r 10.43D of the Federal Court Rules 2011 (Cth) (the Rules).

2.Pursuant to r 7.22 of the Rules, the respondent is to provide the prospective applicant, within 20 days of being served with this Order, the subscriber registration information of the Google Account associated with the email address davidjonesaus18@gmail.com (the Google Account), as well as the IP logins for the Google Account (including the IP logins…

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Details
AGLC
Khan v Google LLC [2023] FCA 785
Case
[2023] FCA 785
Decision Date

CaseChat Overview and Summary

Khan brought an application against Google in the Federal Court of Australia. Khan sought leave to serve the originating application on Google outside Australia under rule 10.43D of the Federal Court Rules 2011. Khan also sought leave to make claims against Google based on an anonymous email sent to Khan from a Gmail address, which Google owns and operates. Google was aware of the application but chose not to appear or participate in the proceedings.

The court had to decide whether Khan was properly served on Google under rule 10.43D of the Federal Court Rules 2011, and whether Khan’s claims were of a kind permitted to be served overseas without leave. Khan argued that Google was aware of the proceedings and had not objected to the service. Khan also argued that the claims were of a kind permitted to be served overseas without leave. The court found that Khan was properly served on Google, and that the claims were of a kind permitted to be served overseas without leave.

In addition, the court had to decide whether Khan was entitled to preliminary discovery of the identity of the sender of the anonymous email under rule 7.22 of the Federal Court Rules 2011. Khan argued that Google had the information, and that the disclosure was necessary to determine whether Khan had a cause of action against Google. The court found that Khan had established the requirements of rule 7.22, and ordered Google to provide Khan with the subscriber registration information of the Google Account associated with the email address from which the anonymous email was sent, as well as the IP logins for the Google Account, to the extent that such information or data was in the possession of and available to Google.

The court granted Khan leave to proceed against Google and ordered Google to provide Khan with the subscriber registration information of the Google Account associated with the email address from which the anonymous email was sent, as well as the IP logins for the Google Account. The originating application was adjourned to a later date.

Orders

Orders of the court

1. The prospective applicant has leave to proceed against the respondent pursuant to r 10.43D of the Federal Court Rules 2011 (Cth) (the Rules).

2. Pursuant to r 7.22 of the Rules, the respondent is to provide the prospective applicant, within 20 days of being served with this Order, the subscriber registration information of the Google Account associated with the email address davidjonesaus18@gmail.com (the Google Account), as well as the IP logins for the Google Account (including the IP logins for the sender of the email that was sent from the Google Account on 9 November 2022 with the subject: “Attention seeking regarding the Candidate of Mr. Nurul Khan as Western Metropolitan Region in the 2022 VIC state election”), to the extent that such information or data is in the possession of and available to Google as of the date of this Order.

3. The originating application dated 16 February 2023 is otherwise adjourned to 11 August 2023 at 9:30am.

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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