Lin v Google LLC

Case [2021] FCA 1113

FEDERAL COURT OF AUSTRALIA

Lin v Google LLC [2021] FCA 1113

File number: NSD 818 of 2021
Judgment of: WIGNEY J
Date of judgment: 13 September 2021
Catchwords: PRACTICE AND PROCEDURE – application for leave to serve originating application seeking preliminary discovery outside Australia pursuant to Div 10.4 of the Federal Court Rules 2011 (Cth) – whether
proceeding is of a kind mentioned in r 10.42 – whether service in accordance with Hague Convention – whether application accompanied by affidavit in accordance with r 10.43(3) – whether Court has jurisdiction in the proceeding – whether prospective applicant has prima facie case for all or any of the relief claimed – where substituted service inappropriate – leave for service outside Australia granted
Legislation:

Federal Court Rules 2011 (Cth), rr 7.22, 7.22(1)(a), 7.22(1)(b), 7.22(1)(c)(ii), 10.24, 10.43(1)(a), 10.43(2), 10.43(3)(c)(ii), 10.43(4)(b), 10.43(4)(c), 40.08

Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth), s 4(2)

Limitation Act 1969 (NSW), s 14B

Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters done at the Hague on 15 November 1965, Art 10
Cases cited:

AIA Australia Ltd v Richards [2017] FCA 84

Allison v Google LLC [2021] FCA 186

Allphones Retail Pty Ltd v Australian Competition and Consumer Commission (2009) 259 ALR 354; [2009] FCA 980

Australian Information Commission v Facebook Inc (2020) 144 ACSR 88; [2020] FCA 531

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

Boyd v Automattic, Inc [2019] FCA 86

Carnegie Corp Ltd v Pursuit Dynamics Plc (2007) 162 FCR 375; [2007] FCA 1010

Colagrande v Telstra Corporation Limited [2020] FCA 1595

Commissioner of Taxation v Zeitouni (2013) 306 ALR 603; [2013] FCA 1011

Crosby v Kelly (2012) 203 FCR 451; [2012] FCAFC 96

Dow Jones & Company Inc v Gutnick (2002) 210 CLR 575; [2002] HCA 56

Kabbabe v Google LLC [2020] FCA 126

Kukulka v Google LLC [2020] FCA 1229

Laurie v Carroll (1958) 98 CLR 310

Re Freehills; New Tel Ltd (in liq) (2008) 66 ACSR 311; [2008] FCA 762

Seven Consulting Pty Ltd v Google LLC [2021] FCA 203

Sony Music Entertainment (Australia) Ltd v University of Tasmania (2003) 129 FCR 472; [2003] FCA 532

Sydney Criminal Lawyers v Google LLC [2021] FCA 297
Division: General Division
Registry: New South Wales
National Practice Area: Other Federal Jurisdiction
Number of paragraphs: 39
Date of hearing: Determined on the papers
Counsel for the Prospective Applicant: Mr T B Senior
Solicitor for the Prospective Applicant: Birchgrove Legal
Counsel for the Respondent: The Respondent did not appear

 

ORDERS

NSD 818 of 2021
BETWEEN:

XU HONG (ANDREW) LIN

Prospective Applicant
AND:

GOOGLE LLC

Respondent

ORDER MADE BY:

WIGNEY J

DATE OF ORDER:

13 SEPTEMBER 2021

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 the originating application, affidavit of Moustafa Kheir sworn 27 July 2021, affidavit of Xu Hong (Andrew) Lin sworn 9 August 2021, and…

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Details
AGLC
Lin v Google LLC [2021] FCA 1113
Case
[2021] FCA 1113
Decision Date

CaseChat Overview and Summary

Lin brought an application against Google in the Federal Court seeking leave to serve an originating application on Google outside Australia. The application related to a negative review of Lin’s business that appeared on Google’s platform, and Lin wished to ascertain the identity of the person who posted the review. Google had offices in Australia but its principal place of business was in the United States. The legal issues were whether the Court had jurisdiction over Google, whether the application was of the kind mentioned in rule 10.42 of the Federal Court Rules 2011, whether service would be in accordance with the Hague Convention, and whether the application was accompanied by an affidavit in accordance with rule 10.43(3) of the Rules.

The Court held that the application was of the kind mentioned in rule 10.42, that service in accordance with the Hague Convention was appropriate, and that the application was accompanied by an affidavit in accordance with rule 10.43(3). In addition, Google was “another person” for the purpose of rule 7.22(1)(c)(ii) of the Rules, who “has, or is likely to have, or has had, or is likely to have had, control of a document that would help ascertain the prospective respondent’s description”. Google was likely to have the ability to control or interrogate its Google pages, including the Strathfield Autobody page and the historical data associated with it, so as to assist Lin in identifying the person with the username Lucas who posted the negative review. However, the Court was not persuaded that it was appropriate to make an order for substituted service permitting Lin to serve Google by email. The application for substituted service was effectively unsupported by any evidence. There was no evidence that Lin had attempted to serve Google by international registered post but that service in that manner had not been successful. The broad and unsourced general assertion by Lin’s solicitor that the COVID-19 pandemic was causing “delays and impracticalities associate[d] with international registered post” did not materially assist Lin’s application for substituted service.

The Court granted leave for Lin to serve Google in the United States by international registered post, with an acknowledgment of receipt to be provided by Google to Lin. Costs were reserved, and the matter was listed for a case management hearing on 11 October 2021.

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 the originating application, affidavit of Moustafa Kheir sworn 27 July 2021, affidavit of Xu Hong (Andrew) Lin sworn 9 August 2021, and a copy of these orders (together, the documents) on the 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

1600 Amphitheatre Parkway

Mountain View, California 94043

United States of America

2. Costs be reserved.

3. The matter be listed for case management hearing on 11 October 2021.

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

As for the third element, Google is prima facie “another person” for the purpose of r 7.22(1)(c)(ii) of the Rules, who “has, or is likely to have, or has had, or is likely to have had, control of a document that would help ascertain the prospective respondent’s description”. A ‘document’ is defined to include “data or information stored or recorded by mechanical or electronic means”: Sch 1 of the Rules; Sony Music Entertainment (Australia) Ltd v University of Tasmania (2003) 129 FCR 472; [2003] FCA 532 at [48]. Google is likely to have the ability to control or interrogate its Google pages, including the Strathfield Autobody page and the historical data associated with it, so as to assist Mr Lin in identifying the person with the username Lucas who posted the negative review. Conclusion in relation to leave to serve Google in the USA Mr Lin has satisfied all the necessary requirements for the Court to grant him leave to serve Google in the USA in accordance with the Hague Convention, the proposed mode of service being by international registered post. SUBSTITUTED SERVICE Mr Lin also sought, further or in the alternative, an order the effect of which was to permit him to serve Google by email. This was, in effect, an application for substituted service pursuant to r 10.24(a) of the Rules, which relevantly provides that “if it is not practicable to serve a document on a person in a way required by these Rules, a party may apply … for an order … substituting another method of service”. Mr Lin contended that an order permitting service by email was appropriate given the delay and disruption caused to the international postal system by the current global pandemic and given the fact that Google is a multinational corporation with a history of responding to communications by email. He relied on two recent decisions of the Court where such an order was made: Australian Information Commission v Facebook Inc (2020) 144 ACSR 88; [2020] FCA 531 (AIC v Facebook) and Kukulka. I am not persuaded that it is appropriate to make an order for substituted service permitting Mr Lin to serve Google by email. The application for substituted service was effectively unsupported by any evidence. Mr Lin did not adduce any evidence, beyond bare assertion, that it was not practicable to serve Google by way of international registered post, as permitted by the Hague Convention. There was no evidence that Mr Lin had attempted to serve Google by international registered post but that service in that manner had not been successful: cf r 10.49 of the Rules. The broad and unsourced general assertion by Mr Lin’s solicitor that the COVID-19 pandemic was causing “delays and impracticalities associate[d] with international registered post” does not materially assist his application for substituted service. Nor does the equally general assertion by Mr Lin’s solicitor that the originating application was likely to come to Google’s attention because Google is a “multinational corporation with a history of responding to communications made to” a particular email address. Mr Lin’s solicitor appears to have made no attempt to ask Google whether it would be prepared to accept service by email.

Ratio Decidendi

Legal Principle Established

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