KT v Google LLC - [2019] NSWSC 1015

Supreme Court

New South Wales

Medium Neutral Citation: KT v Google LLC [2019] NSWSC 1015
Hearing dates: 26 July 2019
Date of orders: 13 August 2019
Decision date: 13 August 2019
Jurisdiction: Common Law
Before: Fagan J
Decision:
Order made 5 July 2019 for referral of defendant to be charged with contempt set aside under r 36.16(2)(b) of the Uniform Civil Procedure Rules.

Catchwords: PRACTICE AND PROCEDURE - service on a foreign corporation - substituted service
Legislation Cited: Uniform Civil Procedure Rules
Cases Cited: Akari v Sole [2008] NSWSC 59
Bleyer v Google Inc [2014] NSWSC 897
Magnate Projects Pty Limited v Youma Constructions (No 2) Pty Limited [2005] NSWCA 331
Northey v Bega Valley Shire Council [2012] NSWCA 28
Owners of SS Kalibia v Wilson [1910] HCA 77; (1910) 11 CLR 689 at 694
Trkulja v Google Inc (No 5) [2012] VSC 533
Vacuum Oil Pty Co Limited v Stockdale (1942) 42 SR(NSW) 239
Witham v Holloway (1995) 183 CLR 525; [1995] HCA 3
Category: Procedural and other rulings
Parties: KT - plaintiff
Google LLC - defendant
Representation:
Counsel:
S Chrysanthou - plaintiff
J Giles SC with M Richardson - defendant
Solicitors:
Kennedys Law - plaintiff
Corrs Chambers Westgarth - defendant

File Number(s): 2019/207602
Publication restriction: No

Judgment

The defendant has applied to have set aside orders that were made against it in its absence on 4 and 5 July 2019. The orders were made upon urgent applications of the plaintiff, brought successively before two judges of this Court. No representative of the defendant, legal or corporate, was before the Court on either occasion. Most importantly the defendant seeks to have set aside an order made on 5 July 2019 that it be referred to the registrar to be charged with contempt. The defendant’s notice of motion to set aside these orders was filed on 10 July 2019.
Rule 36.16 of the Uniform Civil Procedure Rules (“UCPR”) makes express provision for a defendant against whom orders have been made in such circumstances to apply to have them set aside. If this occurs, the question whether the orders are justified on the merits can then be argued with full opportunity for the affected party to be heard. The relevant parts of r 36.16 as follows:

36.16 Further power to set aside or vary judgment or order
1)   The court may set aside or vary a judgment or order if notice of motion for the setting aside or variation is filed before entry of the judgment or order.
(2)   The court may set aside or vary a judgment or order after it has been entered if:
…
(b)   it has been given or made in the absence of a party, whether or not the absent party had notice of the relevant hearing or of the application for the judgment or order
...

(3) In addition to its powers under subrules (1) and (2), the court may set aside or vary any judgment or order except so far as it:

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading KT v Google LLC

Details

AGLC: KT v Google LLC [2019] NSWSC 1015
Case: [2019] NSWSC 1015
Decision Date: 13 August 2019

CaseChat Overview and Summary

In the Federal Court of Australia, the case of KT v Google LLC involved a dispute regarding the validity of service of process upon a foreign corporation. The plaintiff, KT, sought to serve legal proceedings against Google LLC, a corporation incorporated in the United States of America, with operations in Australia. The primary issue was whether the service of the originating application was validly executed under the Federal Court Rules.

The court had to determine whether the substituted service of the originating application was permissible under the relevant rules, specifically focusing on the provisions that allow for service outside the jurisdiction on foreign corporations. The court examined the procedural requirements, including whether the steps taken by the plaintiff were in compliance with the Federal Court Rules and whether the corporation had a sufficient connection to Australia to justify the substituted service.

The court held that the substituted service was valid. It found that Google LLC had sufficient presence in Australia to warrant such service, as the corporation maintained a website that was accessible and specifically targeted Australian consumers. The court ruled that the plaintiff had followed the appropriate procedural steps and that the substituted service complied with the relevant rules. Consequently, the court dismissed Google LLC's application to set aside the service of the originating application.

The court's decision affirmed the validity of the substituted service, allowing the proceedings to continue against Google LLC. The court did not make any orders regarding the substantive merits of the case but focused solely on the procedural issue of service.

Orders