Rana v Google Australia Pty Ltd

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FEDERAL COURT OF AUSTRALIA

Rana v Google Australia Pty Ltd [2013] FCA 60

Citation: Rana v Google Australia Pty Ltd [2013] FCA 60
Parties: RANJIT SHAMSHER JUNG BAHADUR RANA v GOOGLE AUSTRALIA PTY LTD, DARDA GREGUREV, NINA GREGUREV and GOOGLE INC
File number: SAD 98 of 2012
Judge: MANSFIELD J
Date of judgment: 7 February 2013
Catchwords:

PRACTICE AND PROCEDURE – summary judgment – Federal Court of Australia Act 1976 (Cth), s 31A – meaning of “no reasonable prospect”

DEFAMATION – identity of publisher – whether local subsidiary company can be considered publisher of material published by foreign holding company – principles applicable to ascertaining liability as publisher discussed

PRACTICE AND PROCEDURE – application for leave to serve originating application outside Australia – Federal Court Rules 2011 (Cth), rr 10.42, 10.43 – whether regard may be had to discursive nature of originating application – Federal Court Rules 2011 (Cth), rr 1.31, 1.33

DEFAMATION – publication – publication on internet – whether respondent can be held liable as the publisher of material displayed on websites it hosted but of which it had no notice – defence of innocent dissemination – defence of triviality – whether informal, spontaneous nature of the form of publication enlivens defence of triviality

Legislation:

Federal Court of Australia Act 1976 (Cth) s 31A(2)
Federal Court Rules 2011 (Cth) rr 1.31, 1.33, 8.03, 8.05, 10.42, 10.43, 16.02, 26.01
Disability Discrimination Act 1992 (Cth)
Racial Discrimination Act 1975 (Cth)
Evidence Act 1995 (Cth) s 75
Defamation Act 2005 (SA) ss 30, 31
Cases cited:

Spencer v Commonwealth (2010) 241 CLR 118 considered
Dandaven v Harbeth Holdings Pty Ltd [2008] FCA 955 considered
Trkulja v Google Inc (No 2) [2010] VSC 490 cited
A v Google New Zealand Ltd [2012] NZHC 2352 considered
Tamiz v Google Inc and Google UK Ltd [2012] EWHC 449 (QB) considered
John Pfieffer Pty Ltd v Rogerson (2000) 203 CLR 503 cited
Berezovsky v Michaels [2000] 2 All ER 986 cited
Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575 cited
Darrell Lea Chocolate Shops Pty Ltd v Spanish-Polish Shipping Co Inc (1990) 25 NSWLR 568 cited
Suzlon Energy Ltd v Bangad (No 3) [2012] FCA 123 cited
Agar v Hyde (2000) 201 CLR 552 cited
Duffy v Google Inc [2011] SADC 178 cited
Byrne v Deane [1937] 1 KB 818 cited
Urbanchich v Drummoyne Municipal Council (1991) Aust Torts Reports ¶ 81-127 considered
Metropolitan International Schools Ltd v Designtechnica Corporation [2009] EHC 1765 (QB) considered
Davison v Habeeb [2011] EWHC 3031 considered
Trkulja v Google Inc LLC (No 5) [2012] VSC 533 considered
McPhersons Ltd v Hickie (1995) Aust Torts Reports ¶81-348 cited
Thomspon v Australian Capital Television Pty Ltd (1997) Aust Torts Reports ¶81-412 considered
Vizetelly v Mudie’s Select Library Ltd [1900] 2 QB 170 cited
Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460 cited
Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 considered
Smith v ADVFN Plc [2008] EWHC 1797 (QB) considered
Lang v…

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Details
Case
[2013] FCA 60
Decision Date

CaseChat Overview and Summary

The case of Rana v Google Australia Pty Ltd involved a plaintiff, Mr Rana, who sought damages from Google Australia and Google Inc for alleged defamation and failure to remove defamatory content. The plaintiff claimed that the defendants failed to remove defamatory material about Darda and Nina Gregurev, causing him harm, including the aggravation of paranoid schizophrenia and type two diabetes. The complaint also alleged that the defendants' actions contravened the Disability Discrimination Act 1992 (Cth) and the Racial Discrimination Act 1975 (Cth). The court had to decide on the application for summary judgment filed by the defendants, Google Australia and Google Inc.

The key legal issue before the court was whether Mr Rana's claims had any reasonable prospects of success. The defendants argued that Mr Rana's claims were frivolous and vexatious and that there was no evidence to support the allegations. The court had to consider the principles set out in Dandaven v Harbeth Holdings Pty Ltd, particularly the caution required in summarily dismissing a claim and the importance of not dismissing a claim based on a predictive assessment of its prospects. The court also needed to determine if there were any genuine factual disputes that warranted a trial.

The court found that Mr Rana's claims were not supported by any evidence and that there were no genuine factual disputes that would warrant a trial. The plaintiff had not provided any evidence to substantiate his claims, and the court noted that the plaintiff's allegations were vague and lacked detail. The court concluded that the plaintiff's claims had no reasonable prospects of success and dismissed the proceeding with costs. The court found that the defendants' application for summary judgment was successful, and the plaintiff's claims were dismissed.

Orders

Orders of the court

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Background

Background to the litigation

In Dandaven v Harbeth Holdings Pty Ltd [2008] FCA 955, Gilmour J usefully summarised some practical considerations to be had in respect of summary judgements at [6]:The following principles are of general application to an application under s 31A:(a)the Court must be very cautious not to do a party an injustice by summarily dismissing proceedings;(b)the Court ought not dismiss a claim based on a predictive assessment of prospects, where it is possible that if the claim went to trial, it may succeed;(c)in a case where evidence can give colour and content to allegations, and where questions of fact and degree are important, the Court should be more reluctant to dismiss a proceeding on the face of a pleading;(d)it is not Parliament's intention to require the Court to engage in lengthy and elaborate trials on an interlocutory basis for the purposes of determining whether or not a proceeding has no reasonable prospects of success. It may be necessary for the opposing party to provide no more than an outline of evidence, sufficient to show that there is a genuine dispute, to prevent the summary application becoming a trial;(e)if there is a real issue of fact or law to be decided, and the rights of the parties depend upon it, it is obviously appropriate that the matter goes to trial. It cannot be said that where there is a real factual dispute and that factual dispute must be resolved to determine whether the claim succeeds that there is ‘no reasonable prospect of success’;(g)it ought not be used to shut out proceedings where, on a proposition of law, there may be room for doubt. On questions of law, an inquiry as to their merit should not be for the purpose of resolving them and also not simply to determine whether the argument is hopeless, but in order to decide if it is sufficiently strong to warrant a trial;(h)evidence of an ambivalent character will usually be sufficient to amount to reasonable prospects;(i)in determining if there are real issues of fact in issue so as to preclude summary judgment the courts must draw all reasonable inferences in favour of the non-moving party. (references omitted)BACKGROUND Mr Rana claims that Google Australia and Google Inc failed to remove defamatory material of Darda and Nina Gregurev on websites hosted by them, causing harm including the aggravation of paranoid schizophrenia and type two diabetes, and that Google Australia and Google Inc did not remove such comments from their platforms contrary to both the Disability Discrimination Act 1992 (Cth) and the Racial Discrimination Act 1975 (Cth). It is not clear precisely which websites Mr Rana complains of. At para (a) of his Amended Originating Application he states there are four websites that he complains of, namely:· (Stalker Ranjit Rana)· (The Psychology of Stalking and Cyberstalking)· (Affidavits and Answers)· (the Darda Gregurev page) These four sites were the subject of Mr Rana’s complaint to the Australian Human Rights Commission. I assume that the first of these addresses includes a full-stop between “sites” and “google” and that the second and third of these addresses begin with “https://” (emphasis added), as otherwise these are bad links.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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