Rana v Google Inc - [2016] FCA 461

FEDERAL COURT OF AUSTRALIA
Rana v Google Inc [2016] FCA 461

File number: SAD 286 of 2014

Judge: MANSFIELD J

Date of judgment: 6 May 2016

Date of hearing: 20 February 2015

Registry: South Australia

Division: General Division

National Practice Area: Commercial and Corporations

Sub-area: Regulator and Consumer Protection

Category: No catchwords

Number of paragraphs: 46

Counsel for the Applicant: The applicant appeared in person

Counsel for the First Respondent: The First Respondent did not appear

Counsel for the Second Respondent: The Second Respondent did not appear

ORDERS

SAD 286 of 2014

BETWEEN:
RANJIT SHAMSHER JUNG BAHADUR RANA

Applicant

AND:
COMMONWEALTH OF AUSTRALIA

First Respondent

GOOGLE INC

Second Respondent

JUDGE:

MANSFIELD J

DATE OF ORDER:

6 MAY 2016

THE COURT ORDERS THAT:
1.The application for leave to commence the proceedings then as now is stood over to a date to be fixed.
2.The application to confirm service of the originating application and statement of claim on Google is refused.
3.The application for leave to serve the originating application and statement of claim (to be amended) is stood over to a date to be fixed.
4.The applicant is given leave to file by Friday, 19 August 2016 (but not serve, having regard to these reasons for judgment) a proposed amended application and statement of claim, and then to apply in writing to the Registrar within a further seven days for his interlocutory application to be relisted for further hearing.
5.In the event that the applicant does not file within that time a proposed amended application and statement of claim and/or does not apply in writing to the Registrar within a further seven days for the interlocutory application to be reinstated, the principal application be dismissed.

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

REASONS FOR JUDGMENT
MANSFIELD J:
THE CLAIM

This proceeding is driven by Mr Rana’s understandable concern about the publication of what he alleges to be (and what appears to be) defamatory material concerning him on the internet.
The second and remaining respondent, Google Inc, is a foreign corporation with its place of incorporation in the United States of America (Google).
The claim against the first respondent, the Commonwealth of Australia concerned the decision of the Commonwealth by an officer of the Australian Privacy Commissioner on 2 October 2014 under s 41 of the Privacy Act 1988 (Cth) not to investigate a complaint made by the applicant against Google concerning his allegation that Google had infringed his privacy, by permitting to remain on the internet in a platform provided by Google defamatory material against him, despite his detailed complaint. That proceeding under s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) was resolved. Orders by consent disposing of the claim were made on 2 February 2015.
There remains the claim against Google. Both in the originating application, and in the statement of claim, Mr Rana identified four causes of action against Google. The first is a claim for…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Rana v Google Inc

Details

AGLC: Rana v Google Inc [2016] FCA 461
Case: [2016] FCA 461
Decision Date: 6 May 2016

CaseChat Overview and Summary

In the matter of Rana v Google Inc, the applicant seeks leave to serve proceedings against Google in relation to defamation and other claims. The applicant argues that the court should permit service of the proceedings on Google, a foreign corporation, as the existing originating application and statement of claim are not adequately pleaded. The court is required to decide whether the current pleadings are sufficient to warrant the grant of leave to serve the proceedings overseas and if not, whether the pleadings should be struck out or if the applicant should be given an opportunity to re-plead.

The court found that the existing documents were not sufficiently clear and precise to fairly require a respondent party to plead to them. The court determined that the application and the statement of claim needed to be in proper form, and leave to make the defamation claim was required. Additionally, the court considered whether the claims in negligence and under the Australian Consumer Law were capable of sustaining the alleged claim against Google. Given that Google is a foreign corporation, the court needed to be satisfied that there was a properly pleaded and arguable case against Google before granting leave to serve the proceeding overseas.

The court refused the application to confirm service of the originating application and statement of claim on Google, and the application for leave to serve the originating application and statement of claim was stood over to a date to be fixed. The applicant was given leave to file an amended application and statement of claim by a specified date and to apply in writing to the Registrar for the interlocutory application to be relisted for further hearing. If the applicant failed to file the amended documents and apply within the specified timeframe, the principal application would be dismissed.

In conclusion, the court deferred the consideration of the interlocutory application and ordered that the applicant file amended documents and apply for a further hearing within the specified timeframe. The existing application and statement of claim were not deemed sufficient, and leave to serve the proceedings on Google was refused. The applicant was given an opportunity to re-plead their claims, subject to meeting the specified deadlines.

Orders

Orders of the court

1. The application for leave to commence the proceedings then as now is stood over to a date to be fixed.

2. The application to confirm service of the originating application and statement of claim on Google is refused.

3. The application for leave to serve the originating application and statement of claim (to be amended) is stood over to a date to be fixed.

4. The applicant is given leave to file by Friday, 19 August 2016 (but not serve, having regard to these reasons for judgment) a proposed amended application and statement of claim, and then to apply in writing to the Registrar within a further seven days for his interlocutory application to be relisted for further hearing.

5. In the event that the applicant does not file within that time a proposed amended application and statement of claim and/or does not apply in writing to the Registrar within a further seven days for the interlocutory application to be reinstated, the principal application be dismissed.

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

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Ratio Decidendi

Legal Principle Established

Finally, a further affidavit of the applicant of 6 February entitled “Ultimate supplement last Affidavit …” relevantly annexes a letter from his general practitioner to his psychiatrist of 5 February 2015. It comments on the quality of previous medical diagnosis and prognosis, and refers the applicant to the psychiatrist. It notes briefly the applicant’s concerns about the publication of the defamatory material, and the problems the applicant has had in relation to serving Google which “has caused him to be very emotionally irrational in recent times”.CONSIDERATION OF INTERLOCUTORY APPLICATION The applicant accepts that he requires leave, then as now, under s 21 of the Defamation Act 2005 (SA) to have instituted this claim. It is in the following terms:21 – Permission required for further proceedings in relation to publication of same defamatory matter.If a person has brought defamation proceedings for damages (whether in this jurisdiction or elsewhere) against any person in relation to the publication of any matter, the person cannot bring further defamation proceedings for damages against the same defendant in relation to the same or any other publication of the same or like matter, except with the permission of the court in which the further proceedings are to be brought. The consideration of that application is deferred, because in my view there are certain further steps necessary before determining what, if any, further orders should be made on the interlocutory application. The question to be addressed involves in my mind, in the particular circumstances, consideration of whether the existing originating application and statement of claim constitute an adequate pleading, and if not whether the appropriate order is simply to strike them out but to give the applicant the opportunity to re-plead his claims or some of them, or to refuse the application. A separate consideration is whether the claims in negligence and under the ACL plead facts which are capable of sustaining the alleged claim for negligence against Google, or are capable of sustaining the proceeding in any event, so that the leave requirement concerns only the defamation claim. Underlying those concerns is that, having regard to the fact that Google is a foreign corporation, it is appropriate for the Court to be satisfied that there is a properly pleaded and arguable case against Google before leave is given to serve the proceeding overseas. For reasons which are evident from my reference to the terms of the application and the statement of claim, I do not regard those documents as sufficiently clear and precise as to fairly require a respondent party, relevantly Google, to plead to them. For that same reason, I presently refuse leave to Mr Rana to commence the proceedings in defamation, and I would also presently refuse him leave to serve the proceedings on Google overseas. That applies generally to his claims. If the application and the statement of claim were in proper form, but leave to make the defamation claim was required, and subject to the succeeding paragraph of this judgment, I would nevertheless have regarded the proceeding as competent in relation to the three other causes of action on the basis that s 21 of the Defamation Act 2005 (SA) does not apply except to “further defamation proceedings”. That term is not defined, but s 3 makes it clear that the Act applies to the “tort of defamation”.

File number:	SAD 286 of 2014
Judge:	MANSFIELD J
Date of judgment:	6 May 2016
Date of hearing:	20 February 2015
Registry:	South Australia
Division:	General Division
National Practice Area:	Commercial and Corporations
Sub-area:	Regulator and Consumer Protection
Category:	No catchwords
Number of paragraphs:	46
Counsel for the Applicant:	The applicant appeared in person
Counsel for the First Respondent:	The First Respondent did not appear
Counsel for the Second Respondent:	The Second Respondent did not appear