Rana v Google Inc (No 2)

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FEDERAL COURT OF AUSTRALIA

Rana v Google Inc (No 2) [2017] FCA 17

File number: SAD 286 of 2014
Judge: CHARLESWORTH J
Date of judgment: 25 January 2017
Catchwords:

HIGH COURT AND FEDERAL COURT – jurisdiction – proposed claim founded in defamation – whether defamation claim falls within associated jurisdiction conferred under s 32 of the Federal Court of Australia Act 1976 (Cth) – federal claims inadequately pleaded – unclear on pleadings whether defamation claim forms a part of the same justiciable controversy as claims alleging contraventions of a Commonwealth law – applicant not seeking leave to re-plead – application dismissed

PRACTICE AND PROCEDURE – application for leave to serve originating application and statement of claim outside of the jurisdiction – pleadings not sufficiently clear to require a foreign party to respond – leave to serve refused

Legislation:

Australian Consumer Law (Schedule 2 to the Competition and Consumer Act 2010 (Cth)), ss 18, 21, 232

Defamation Act 2005 (SA), s 21

Federal Court of Australia Act 1976 (Cth), ss 19, 32, 37M

Federal Court Rules 2011 (Cth), rr 1.32, 1.37, 2.27, 10.42, 10.43, 16.02, 16.21

Judiciary Act 1903 (Cth), s 39B, 39B(1A)

Trade Practices Act 1974 (Cth)
Cases cited:

Australian Securities and Investments Commission v Cassimatis (No 2) [2013] FCA 1008, (2013) 96 ACSR 272

Banque Commerciale SA, En Liquidation v Akhil Holdings Limited (1990) 169 CLR 279

Barclay Mowlem Construction Ltd v Dampier Port Authority [2006] WASC 281, (2006) 33 WAR 82

Beck v Spalla (2005) 142 FCR 555

Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation (1987) 18 FCR 212

Dare v Pulham (1982) 148 CLR 658

Fair Work Ombudsman v Eastern Colour Pty Ltd [2011] FCA 803, (2011) 209 IR 263

Fencott v Muller (1983) 152 CLR 570

Hunt Australia Pty Ltd v Davidson’s Arnhemland Safaris Pty Ltd [2000] FCA 1690, (2000) 179 ALR 738

Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (2000) 104 FCR 564

Philip Morris Incorporated v Adam P Brown Male Fashions Proprietary Limited (1981) 148 CLR 457

Qantas Airways Ltd v Lustig (2015) 228 FCR 148

Rana v Google Australia Pty Ltd [2013] FCA 60

Rana v Google Inc [2016] FCA 461

Re Wakim; Ex Parte McNally (1999) 198 CLR 511

Rivera v Australian Broadcasting Corporation (2005) 144 FCR 334

Spiteri v Nine Network Australia Pty Ltd [2008] FCA 905

Underdown v Secretary, Department of Education, Employment and Workplace Relations [2009] FCA 965

Unilan Holdings Pty Limited v Kerin (1993) 44 FCR 481

Zoltaszek v Downer EDI Engineering Pty Ltd [2011] FCA 744

Date of hearing: 27 June 2016
Registry: South Australia
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 58
Counsel for the Applicant: The Applicant appeared in person
Counsel for the Respondent: The Respondent did not appear

ORDERS

SAD 286 of 2014
BETWEEN:

RANJIT SHAMSHER JUNG BAHADUR RANA

Applicant
AND:

GOOGLE INC

Respondent

JUDGE:

CHARLESWORTH J

DATE OF ORDER:

25 JANUARY 2017

THE COURT…

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Details
Case
[2017] FCA 17
Decision Date

CaseChat Overview and Summary

The case of Rana v Google Inc (No 2) involved the applicant, Rana, seeking to bring a defamation claim against Google, in addition to other claims, under the Australian Consumer Law (ACL). The matter was before the Federal Court, where Rana sought to serve the originating application and statement of claim outside the jurisdiction of Australia. The primary legal issues before the court were whether the defamation claim fell within the associated jurisdiction conferred under section 32 of the Federal Court of Australia Act 1976 (Cth), and whether the defamation claim formed part of the same justiciable controversy as the claims alleging contraventions of a Commonwealth law. Additionally, the court considered whether Rana should be granted leave to re-plead his claims.

The court found that the defamation claim did not fall within the associated jurisdiction provided by section 32 of the Act, as it was not adequately pleaded as a federal matter. Furthermore, the court held that the defamation claim did not form part of the same justiciable controversy as the claims alleging contraventions of the ACL. The court also found that Rana was not seeking leave to re-plead, and therefore, the application for leave to serve the originating application and statement of claim outside the jurisdiction was dismissed.

In dismissing the application, the court emphasised the importance of efficiently using judicial and administrative resources, as well as the efficient disposal of the court's overall caseload. The court held that granting leave to Rana to file an improved pleading would not serve these objectives, as Rana had acknowledged that he was not capable of doing so. Consequently, the whole of the proceedings against Google should be dismissed due to incurable deficiencies in the pleadings.

ORDERS:
1. The applicant’s interlocutory application of 3 November 2014 is dismissed.
2. The applicant’s interlocutory application of 14 June 2016 is dismissed.
3. The originating application is dismissed.

Orders

Orders of the court

1. The applicant’s interlocutory application of 3 November 2014 is dismissed.

2. The applicant’s interlocutory application of 14 June 2016 is dismissed.

3. The originating application is 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

The discretion to grant a litigant an opportunity to amend a pleading is to be exercised in a manner that best promotes the overarching purpose of the Court’s civil practice and procedure provisions, which includes the objective of the efficient use of the judicial and administrative resources available for the purposes of the Court and the efficient disposal of the Court’s overall case load: FCA Act ss 37M(1), 37M(2)((b) and (c). Those objectives are not served by granting leave to a litigant to file an improved pleading when the litigant himself has acknowledged that he is not capable of doing so.CONCLUSIONS In the circumstances, I would not grant Mr Rana leave to serve proceedings on Google outside of the jurisdiction. I strike out the pleadings alleging contraventions of the ACL, and I do not grant Mr Rana leave to re-plead those claims. As a consequence, the whole of the proceedings against Google should be dismissed on the basis that the Court does not have jurisdiction in any event to hear and determine the defamation claims, there being no adequately pleaded core federal matter to which those claims might properly be associated. The application for leave pursuant to s 21 of the Act is dismissed. In the circumstances, I do not consider this action to be an appropriate vehicle to which Mr Rana might now seek to join additional parties. The action, as originally commenced, named two respondents: the Commonwealth of Australia and Google. The action against the Commonwealth was resolved by consent in February 2015, and the action against Google should, as I have said, be dismissed by reason of the incurable deficiencies in the pleadings. To allow Mr Rana to now join three additional respondents would be to permit a complete substitution of the original parties. It is also relevant that the orders of Mansfield J did not involve any grant of leave to Mr Rana to join additional respondents or make any provision for him to make an application to do so, at least until issues concerning inadequacies in the pleading against Google were resolved.THE ADDITIONAL PROPOSED PROCEEDING It remains open to Mr Rana to commence, or attempt to commence, separate proceedings against additional respondents, subject to the same principles governing this Court’s jurisdiction to which I have referred. As I have already observed, on 4 October 2016, Mr Rana lodged for filing in the Registry a statement of claim and originating application with a view to commencing a further proceeding. I will hear further submissions from Mr Rana in relation to whether leave ought to be granted to file the originating documents in that proceeding, but I will not do so in the context of this action. Mr Rana may wish to reconsider the identity of the respondents named in the further proposed proceeding, having regard to these reasons for judgment. That is up to him.

Ratio Decidendi

Legal Principle Established

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