Prior v Queensland University of Technology
[2016] FCCA 1897
•13 June 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PRIOR v QUEENSLAND UNIVERSITY OF TECHNOLOGY & ORS | [2016] FCCA 1897 |
| Catchwords: PRACTICE AND PROCEDURE – Leave granted pursuant to r.10.44(1) of the Federal Court Rules 2011, pursuant to s.43(2)(b) of the Federal Circuit Court of Australia Act 1999, for the Applicant to serve a subpoena on Facebook Ireland Ltd in accordance with the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters 1968. |
| Legislation: Federal Circuit Court of Australia Act 1999, ss.43(2), 43(2)(b) |
| Cases cited: Ceramic Fuel Cells Ltd (in liq) v McGraw-Hill Financial, Inc [2016] FCA 401 Fair Work Building Inspectorate v Balderstone Pty Ltd [2013] FCCA 1792 Stemcor (A/sia) Pty Ltd v Oceanwave Line SA [2004] FCA 391 |
| Applicant: | CYNTHIA PRIOR |
| First Respondent: | QUEENSLAND UNIVERSITY OF TECHNOLOGY |
| Second Respondent: | MARY KELLY |
| Third Respondent: | ANITA LEE HONG |
| Fourth Respondent: | ALEX WOOD |
| Sixth Respondent: | JACKSON POWELL |
| Seventh Respondent: | CALUM THWAITES |
| Ninth Respondent: | CHRIS LEE |
| File Number: | BRG 990 of 2015 |
| Judgment of: | Judge Jarrett |
| Hearing date: | 13 June 2016 |
| Date of Last Submission: | 13 June 2016 |
| Delivered at: | Brisbane |
| Delivered on: | 13 June 2016 |
REPRESENTATION
| Counsel for the Applicant: | Ms Anderson |
| Solicitors for the Applicant: | Susan Moriarty & Associates |
| Counsel for the Fourth Respondent: | Mr Henry, directly instructed |
| Counsel for the Sixth and Seventh Respondent: | Mr Morris QC, directly instructed |
ORDERS
UPON THE UNDERTAKING given by the Applicant’s Counsel on 13 June, 2016 that the Applicant’s legal firm would write to Facebook, enclosing a bank cheque in the amount of 100 euros together with an undertaking to meet the additional costs associated with Facebook’s collation and forwarding of documents, full particulars of which are set out in the affidavits sworn by Meaghan Alana Scanlon
THE COURT ORDERS THAT:
Leave is granted pursuant to r.10.44(1) of the Federal Court Rules 2011, as required under s.43(2)(b) of the Federal Circuit Court of Australia Act 1999, for the Applicant to serve a subpoena on Facebook Ireland Ltd in accordance with the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters 1968.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 990 of 2015
| CYNTHIA PRIOR |
Applicant
And
| QUEENSLAND UNIVERSITY OF TECHNOLOGY |
First Respondent
And
| MARY KELLY |
Second Respondent
And
| ANITA LEE HONG |
Third Respondent
And
| ALEX WOOD |
Fourth Respondent
And
| JACKSON POWELL |
Sixth Respondent
And
| CALUM THWAITES |
Seventh Respondent
And
| CHRIS LEE |
Ninth Respondent
REASONS FOR JUDGMENT
On 13 June, 2016 I pronounced the orders set out at the commencement of these reasons but said that I would later publish my reasons for those orders. These are those reasons.
This is an application for leave to allow the applicant to serve on Facebook Ireland Ltd a subpoena to produce documents. The documents sought by the subpoena relate to allegations against the seventh respondent only. The seventh respondent does not oppose the application.
The applicant filed on 17 May, 2016 an affidavit deposed by herself in support of the application. The seventh respondent has filed no material in this application with the exception of an affidavit deposed by him that was filed in court on 13 June, 2016.
Facebook is a company incorporated in Ireland that carries on business within Australia. According to the affidavit of Ms. Prior Facebook maintains a postal address for service in Ireland.
BACKGROUND FACTS
The applicant alleges that the seventh respondent made statements using a Facebook account under the name “Calum Thwaites”. The seventh respondent has denied that the statements were made by him and at all material time has maintained the position that he had no control over the account. The statements form the basis of the applicant’s claim in these proceedings. That the statements were published is not in dispute.
The applicant’s case on this application is that the information that might be revealed by the documents produced pursuant to the subpoena may help establish the identity of the owner of the account. By inference that will give information and perhaps evidence about the operator of the account.
I am satisfied that it is not reasonably practicable to obtain this information by any other means.
POWER OF THE COURT TO ISSUE AND SERVE SUBPOENAS
The Court or a Registrar has power to issue a subpoena for production: r.15A.02 of the Federal Circuit Court Rules 2001. Subpoenas must be served in accordance with Part 6 of the FCCR: r.15A.06. However, Part 6 FCCR contains no provisions relating to service internationally of subpoenas.
Where the FCCR are insufficient, s.43(2)(b) of the Federal Circuit Court of Australia Act 1999 provides for the Rules of Court made under the Federal Court of Australia Act 1976 to apply, with necessary modifications, so far as they are capable of application and subject to any directions of the Court, to the practice and procedure of this Court. The current iteration of the Rules of Court in the Federal Court is the Federal Court Rules 2011.
Further, by the operation of FCCR 1.05(3)(b) rr.10.41-10.52 of the Federal Court Rules dealing with service outside Australia apply to proceedings such as the present.
Pursuant to r.10.44(1) of the Federal Court Rules a party may apply to the Court for leave to serve a document filed in the Court, other than an originating application, on a person in a foreign country in accordance with a convention, the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters done at the Hague on 15 November, 1965 or the law of the foreign country.
Such an application must be supported by an affidavit that deposes to the country in which service is to be effected, the proposed method of service and that the proposed method of service is permitted in that country. The applicant’s affidavit filed on 17 May, 2016 complies with this obligation. The applicant seeks to rely on the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters 1965 to permit service.
Australia and Ireland are signatories to the Hague Convention. The applicant proposes to effect service by post on Facebook to an address in Ireland. Service by post is permitted under Article 10(a) of the Hague Convention.
Whilst the Court has power to grant leave to serve the subpoena out of Australia and in Ireland, should it exercise its discretion to grant that leave?
In Ceramic Fuel Cells Ltd (in liq) v McGraw-Hill Financial, Inc [2016] FCA 401 Wigney J held (at [49]) that consideration of international law and international comity are “…mandatory considerations that condition the exercise of [the Court’s] discretion” to grant leave to serve a subpoena outside Australia. His Honour did not, however suggest that the mere presence of such concerns should restrain the court from exercising the discretion (at [58]). The correct approach would be to moderate its exercise with what His Honour describes (at [55]) as “caution and restraint”.
The Court must avail itself of these considerations regardless of if the application is uncontested. To discharge the requirement of “caution and restraint”, Wigney J suggested (at [59]) that consideration should be given to:
a)the nature of the subpoena;
b)the nature of the particular proceedings;
c)the important of the documents to the issues in those proceedings;
d)the attitude of the subpoenaed party;
e)the foreign country involved;
f)the law in, and attitude of, the foreign country regarding foreign subpoenas; and
g)whether they infringe upon the country’s sovereignty.
The subpoena in this case is of particular importance to determine issues in these proceedings. It is not reasonably practicable to prove the applicant’s allegation regarding the involvement of the seventh respondent without the subpoenaed documents. The seventh respondent maintains his non-involvement in this regard.
There is some evidence to suggest that Facebook accepts service of international subpoenas at a postal address. The applicant seeks to serve the subpoena by that means.
The seventh respondent has suggested with some reference to Facebook’s policies that the purpose of providing details of this address is for the purpose complying with international law enforcement authorities. It is not necessary for the applicant to show a willingness to accept service.
It is relevant to show that a party may be willing to comply with an international subpoena. To this end the parties have made no submissions.
In the case of Stemcor (A/sia) Pty Ltd v Oceanwave Line SA [2004] FCA 391 Allsop J considered (at [12]) whether the issuing of a subpoena to an overseas party would be an “empty threat” without having the appropriate powers to enforce the subpoena. Facebook carries on business in Australia.
The Court would not be restrained by reasons of international law from imposing penalties on Facebook for failing to comply with the issue of a subpoena.
The parties have made no submissions relating to Ireland’s attitude regarding the service subpoena, save for identifying the absence of objections to the Hague Convention. This does not, in my view, satisfy the consideration to which Wigney J was referring. However, as there are no submissions to the contrary this will not substantially change the outcome.
These factors must be given weight according the circumstances of each case. In view of the evidence and submissions made by the parties I do not think that the Court should refrain from exercising the discretion for reasons for international law and international comity.
Leave is granted for the applicant to serve on Facebook the subpoena to produce documents.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Jarrett
Date: 10 April 2018
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