FEDERAL COURT OF AUSTRALIA
Prasad v Google LLC [2020] FCA 67
Date of hearing: 24 January 2020 Date of last written submissions: 31 January 2020 Registry: Victoria Division: General Division National Practice Area: Other Federal Jurisdiction Category: Catchwords Number of paragraphs: 31 Counsel for the Applicants: Justin Castelan Solicitors for the Applicants: Slocombe Brand Lawyers Counsel for the Second Respondent: Justin Hooper Solicitors for the Second Respondent: Corrs Chambers Westgarth ORDERS
VID 1384 of 2019 BETWEEN: YATISH PRASAD
First Applicant
BOPMAN FOODS PTY LTD (ACN 120 532 452)
Second Applicant
NAGAVENKATA KIRAN BOPPANA
Third Applicant
AND: GOOGLE LLC
First Respondent
GOOGLE AUSTRALIA PTY LTD (ACN 102 417 032)
Second Respondent
JUDGE:
WHEELAHAN J
DATE OF ORDER:
7 FEBRUARY 2020
THE COURT ORDERS THAT:
1.This proceeding is transferred to the Supreme Court of Victoria pursuant to s 5(4) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth).
2.The costs of the proceeding in this Court be reserved.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
WHEELAHAN J:
Introduction
At the first case management hearing on 24 January 2020, the applicants made an oral application to transfer the proceeding to the Supreme Court of Victoria. The second…
Continue reading Prasad v Google LLC
Sign in free to access the full text
Details
- AGLC
- Prasad v Google LLC [2020] FCA 67
- Case
- [2020] FCA 67
- Decision Date
CaseChat Overview and Summary
In Prasad v Google LLC, the applicants sought an order for preliminary discovery to identify a prospective respondent to a proposed proceeding alleging defamation and misleading or deceptive conduct. The applicants claimed that they could not identify the person associated with a Gmail address from which emails containing the impugned publications were sent, and sought discovery from Google LLC and Google Australia to enable them to do so. The Federal Court was required to decide whether the application for preliminary discovery constituted a "proceeding" for the purposes of s 5(4) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) and whether the proceeding should be transferred to the Supreme Court of Victoria. The Court held that the application for preliminary discovery constituted a "proceeding" for the purposes of s 5(4) and that it was in the interests of justice for the proceeding to be transferred to the Supreme Court of Victoria, given the consent of Google Australia and the potential for unnecessary costs, delay, and uncertainty.
The Court considered the power to transfer a proceeding under s 5(4) of the Cross-vesting Act, which provides that a court may transfer a proceeding if it is more appropriate for the proceeding to be determined by the Supreme Court of a State or Territory or if it is otherwise in the interests of justice to do so. The Court noted that the transfer of the proceeding would likely avoid unnecessary costs and delay, and potential uncertainty arising from jurisdictional issues. The Court also considered the parties' consent, finding that it supported the making of a transfer order in the interests of justice. The Court concluded that it was in the interests of justice to transfer the proceeding to the Supreme Court of Victoria. The costs of the proceeding in the Federal Court were reserved.
The Court considered the power to transfer a proceeding under s 5(4) of the Cross-vesting Act, which provides that a court may transfer a proceeding if it is more appropriate for the proceeding to be determined by the Supreme Court of a State or Territory or if it is otherwise in the interests of justice to do so. The Court noted that the transfer of the proceeding would likely avoid unnecessary costs and delay, and potential uncertainty arising from jurisdictional issues. The Court also considered the parties' consent, finding that it supported the making of a transfer order in the interests of justice. The Court concluded that it was in the interests of justice to transfer the proceeding to the Supreme Court of Victoria. The costs of the proceeding in the Federal Court were reserved.
Orders
Orders of the court
1. This proceeding is transferred to the Supreme Court of Victoria pursuant to s 5(4) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth).
2. The costs of the proceeding in this Court be reserved.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
For the following reasons, I have determined to transfer this proceeding to the Supreme Court of Victoria, and to order that the costs of the proceeding in this Court be reserved.Background This proceeding is an interlocutory application under r 7.22 of the Federal Court Rules 2011 (Cth) for an order for preliminary discovery to enable the applicants to identify a prospective respondent to a proposed proceeding alleging defamation, and misleading or deceptive conduct in contravention of the Australian Consumer Law. The applicants allege that the impugned publications were contained in emails that were sent from a Gmail address to persons located in New South Wales and Victoria. The applicants allege that they are unable to identify the person associated with the Gmail address, and they seek discovery from the respondents so that they may do so. The first respondent (Google LLC) is incorporated under the laws of Delaware in the United States, and the applicants seek leave of the Court to serve it. Google Australia, the second respondent, has appeared by filing a notice of address for service. On 23 January 2020, which was the day prior to the first case management hearing, the solicitors for Google Australia proffered proposed orders that raised the question whether the Court had jurisdiction in this proceeding. In response, on the morning of the hearing, the applicants filed brief written submissions addressing jurisdiction. In Court on 24 January 2020, I informed counsel for the applicants that I required more comprehensive submissions on the question of jurisdiction before I would consider the application for leave to serve Google LLC. I did not intend to make any criticism of the applicants’ written submissions, which were commendably succinct. However, in circumstances where no publication of the emails in one of the Territories appeared to have been alleged, and where it was not self-evident that the alleged publications occurred in the course of trade or commerce, I raised a number of issues on which I sought assistance from the applicants. After a short break, the applicants made an oral application to transfer the proceeding to the Supreme Court of Victoria, and I made orders that the applicants file submissions in support of their transfer application and for the application to be determined on the papers.The power to make an order transferring the proceeding This Court has power to transfer a proceeding to the Supreme Court of Victoria under s 5(4) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) (Cross-vesting Act), which provides –(4) Where:(a) a proceeding (in this subsection referred to as the relevant proceeding) is pending in the Federal Court or the Family Court (in this subsection referred to as the first court); and(b)it appears to the first court that:(i)the relevant proceeding arises out of, or is related to, another proceeding pending in the Supreme Court of a State or Territory and it is more appropriate that the relevant proceeding be determined by that Supreme Court;(ii)having regard to:(A) whether, in the opinion of the first court, the relevant proceeding or a substantial part of it would have been incapable of being instituted in that court, apart from this Act and any law of the Australian Capital Territory or the Northern Territory relating to cross-vesting of jurisdiction; and(B) whether, in the opinion of the first court, the relevant proceeding or a substantial part of it would have been capable of being instituted in the Supreme Court of a State or Territory, apart from this Act and any law of a State or Territory relating to cross-vesting of jurisdiction; and(C) the extent to which, in the opinion of the first court, the matters for determination in the relevant proceeding are matters arising under or involving questions as to the application, interpretation or validity of a law of the State or Territory referred to in sub-subparagraph (B) and not within the jurisdiction of the first court apart from this Act and any law of the Australian Capital Territory or the Northern Territory relating to cross-vesting of jurisdiction; and(D) the interests of justice;it is more appropriate that the relevant proceeding be determined by that Supreme Court; or(iii)it is otherwise in the interests of justice that the relevant proceeding be determined by the Supreme Court of a State or Territory;the first court shall transfer the relevant proceeding to that Supreme Court.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
I consider that it is in the interests of justice for this proceeding to be transferred to the Supreme Court of Victoria. The transfer of this proceeding will likely avoid unnecessary costs and delay, and also potential uncertainty arising from jurisdictional issues (in the sense considered by Carr J in Bell v Westpac and Merkel J in Johnson Tiles v Esso). Further, other courts have previously found that the parties’ consent supports the making of a transfer order in the interests of justice: Central Queensland Development Corporation Pty Ltd (formerly Bluechip Development Corporation (Gladstone) Pty Ltd) v BMT & Assoc Pty Ltd [2015] WASC 195, [21]; Pittini v Metcash Food and Grocery Pty Ltd [2019] NSWSC 80, [13]. In circumstances where the transfer application is not opposed by Google Australia, it can be inferred that there are advantages, and that there are no relevant disadvantages, to the transfer of the proceeding, such that it is in the interests of justice to do so.Conclusion For the above reasons, I have determined to transfer this proceeding to the Supreme Court of Victoria, and I shall reserve the costs in this Court.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.