Kukulka v Google LLC

Case [2020] FCA 1229


FEDERAL COURT OF AUSTRALIA

Kukulka v Google LLC [2020] FCA 1229  

File number(s): VID 419 of 2020
Judgment of: ANASTASSIOU J
Date of judgment: 25 August 2020
Catchwords: PRACTICE AND PROCEDURE – application to serve originating application seeking preliminary discovery outside Australia pursuant to Federal Court Rules 2011 (Cth) rr 10.41 to 10.44 – proposed method of service by email – whether the proceeding is of a kind mentioned in r 10.42 – whether the prospective applicant has a prima facie case for all or any of the relief claimed
Legislation:

Federal Court Rules 2011 (Cth) rr 1.34, 7.22, 10.24, 10.41, 10.42, 10.43, 10.44, 10.49

Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters. Opened for signature 15 November 1965. Entered into on 1 November 2010. Articles 5, 10

Cases cited:

AIA Australia Ltd v Richards [2017] FCA 84

Australian Information Commission v Facebook Inc [2020] FCA 531

Hooper v Kirella Pty Ltd [1999] FCA 1584; (1999) 96 FCR 1

Humane Society International Inc v Kyodo Senpaku Kaisha Ltd [2006] FCAFC 116; (2006) 154 FCR 425

Kabbabe v Google LLC [2020] FCA 126

Taylor v Network Ten (Perth) Pty Ltd [1999] WASC 264

Division: General Division
Registry: Victoria
National Practice Area: Other Federal Jurisdiction
Number of paragraphs: 26
Date of hearing: 10 August 2020
Solicitor for the Prospective Applicant: Mr Mark Stanarevic of Matrix Legal

ORDERS

VID 419 of 2020
BETWEEN:

MICHAEL KUKULKA

Prospective Applicant

AND:

GOOGLE LLC

Respondent

ORDER MADE BY:

ANASTASSIOU J

DATE OF ORDER:

25 AUGUST 2020

THE COURT ORDERS THAT:

1.Pursuant to rr 10.42, 10.43 and 10.44 of the Federal Court Rules 2011 (Cth) the Prospective Applicant has leave to serve:

(a)the originating application filed on 22 June 2020;

(b)the affidavit of Mark Stanarevic affirmed on 22 June 2020;

(c)the affidavit of Michael Kukulka affirmed on 10 August 2020; and

(d)a copy of this order;

upon the Respondent in the United States of America, by sending it by email to internationalcivil@google.com, conditional upon an acknowledgement of receipt being provided to the Prospective Applicant.

2.The matter is listed for a case management hearing on 30 September at 2:15pm.

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


REASONS FOR JUDGMENT

ANASTASSIOU J:

A        INTRODUCTION

  1. The Prospective Applicant, Michael Kukulka, is a professional Gold Dealer and Operations Manager of Melbourne Gold Buyers and Brisbane Gold Buyers, who relies on the internet to attract customers across Australia.  He seeks leave to serve an originating application and accompanying documents upon the Respondent, Google LLC, which is based in the United States of America, pursuant to Part 10 of the Federal Court Rules 2011 (Cth). The originating application is brought under r 7.22 of the Rules and seeks orders requiring Google to provide preliminary discovery.

  2. The preliminary discovery is sought in relation to all documents or things in Google’s possession or control relating to the identity of an unknown person who posted an allegedly…

Continue reading Kukulka v Google LLC

Sign in free to access the full text

Details
AGLC
Kukulka v Google LLC [2020] FCA 1229
Case
[2020] FCA 1229
Decision Date

CaseChat Overview and Summary

Kukulka v Google LLC was an application brought before the Federal Court of Australia seeking permission to serve an originating application for preliminary discovery outside Australia. The applicant, Kukulka, sought to serve the originating application on Google LLC, a United States-based corporation, through email due to the global COVID-19 pandemic disrupting international postal services. The primary legal issues the Court had to decide were whether the proposed method of service complied with the Federal Court Rules 2011, and whether the applicant had a prima facie case for the relief sought.

The Court found that the application met the requirements for service outside Australia as stipulated in the Federal Court Rules. The Court acknowledged the challenges posed by the COVID-19 pandemic and considered it appropriate to allow substituted service by email. The Court noted that Google LLC, being a multinational corporation with a history of responding to similar applications at the specified email address, would likely receive and respond to the documents. The Court also determined that the applicant had a prima facie case for the relief sought, aligning with the requirements of the Rules. Consequently, the Court granted leave for service by email, conditional on obtaining an acknowledgement of receipt from the respondent.

The Court's reasoning emphasised the need for flexibility in legal processes in light of extraordinary circumstances such as the global pandemic. The Court balanced the necessity of expediting the legal process with the requirements of due process, ensuring that the respondent would be adequately notified and had the opportunity to respond. The orders granted by the Court permitted the service of the originating application and accompanying documents by email to the specified address, subject to confirmation of receipt. The case management hearing was subsequently listed for a future date to further manage the proceedings.

Orders

Orders of the court

1. Pursuant to rr 10.42, 10.43 and 10.44 of the Federal Court Rules 2011 (Cth) the Prospective Applicant has leave to serve:

(a) the originating application filed on 22 June 2020;

(b) the affidavit of Mark Stanarevic affirmed on 22 June 2020;

(c) the affidavit of Michael Kukulka affirmed on 10 August 2020; and

(d) a copy of this order;

upon the Respondent in the United States of America, by sending it by email to internationalcivil@google.com, conditional upon an acknowledgement of receipt being provided to the Prospective Applicant.

2. The matter is listed for a case management hearing on 30 September at 2:15pm.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

I note for completeness that the Court retains a residual discretion to refuse relief even where the requirements for service outside Australia are satisfied: Humane Society International Inc v Kyodo Senpaku Kaisha Ltd (2006) 154 FCR 425 at [3] (Black CJ and Finkelstein J) cited in Australian Information Commission v Facebook at [58] (Thawley J). However, I do not consider that the present circumstances give rise to any basis to refuse leave on discretionary grounds. C CONCLUSION Accordingly, I have made orders for the Prospective Applicant to serve the originating application and accompanying documents on the Respondent by email at internationalcivil@google.com, conditional on an acknowledgement of receipt being provided.

Ratio Decidendi

Legal Principle Established

I reach this conclusion notwithstanding that this approach requires me to make an order for substituted service under r 10.24, as service by email would not ordinarily be permitted under r 10.43(3). I consider it appropriate to do so because:(a)the current state of the COVID19 pandemic means that there are delays and impracticalities associated with international registered post, the ordinary method of service relied on in analogous proceedings; and(b)the originating application and accompanying documents are likely to come to the Respondent’s attention, given that Google is a multinational corporation with a history of responding to similar applications at the email identified above. B CONSIDERATION Rules 10.43(2) and 10.44(1) provide that a party may apply to the Court for leave to serve an originating application or other document, respectively, on a person in a foreign country in accordance with the “Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters” held at the Hague on 15 November 1965 (the Hague Service Convention). Before leave may be granted to serve an originating application or other document on a respondent outside Australia, the Court must be satisfied of four matters set out in r 10.43(3) and (4):(a)the application must be accompanied by an affidavit which states the foreign country where the person is to be served, the proposed method of service and, if the Hague Service Convention applies, that the proposed method of service is permitted by the Hague Service Convention (r 10.43(3)); (b)that the Court has jurisdiction in the proceeding (r 10.43(4)(a)); (c)that the proceeding is of a kind mentioned in r 10.42 (r 10.43(4)(b)); and(d)that the applicant has a prima facie case for all or any of the relief claimed in the proceeding (r 10.43(4)(c)). In satisfaction of these requirements, the Prospective Applicant relied on orders previously made by this Court in similar applications. For instance, in Kabbabe v Google LLC [2020] FCA 126, Murphy J made orders and gave reasons to the effect that the above requirements were satisfied in analogous circumstances. Justice Murphy made similar orders on 23 April 2020 in proceeding number VID 94 of 2020 (Garde-Wilson v Google LLC), though detailed reasons were not provided. The only material difference in the present application is that the Prospective Applicant submitted that it was not presently practicable to effect service on the Respondent by international registered post, due to the current global pandemic, and orders should be made for substituted service by email under r 10.24. For the reasons that follow, I am satisfied that the making of those orders is appropriate, subject to the fact that service will not be deemed effective until the Prospective Applicant obtains an acknowledgement of receipt from the Respondent. B.1 Proposed method of service The affidavit of Mr Stanarevic, deposed on 22 June 2020, provides that the Respondent corporation is based in the United States of America and is a party to the Hague Service Convention. The proposed method of service is by email to internationalcivil@google.com, an email which the Respondent has a history of responding to in similar preliminary discovery proceedings arising in this Court.