FEDERAL COURT OF AUSTRALIA
Seven Consulting Pty Ltd v Google LLC [2021] FCA 203
File number: NSD 1078 of 2020 Judgment of: ABRAHAM J Date of judgment: 11 March 2021 Catchwords: PRACTICE AND PROCEDURE – application to serve originating application seeking preliminary discovery outside Australia pursuant to Federal Court Rules 2011 (Cth) rr 10.41 to 10.43 (the Rules) – whether the application meets the requirements of r 10.43 of the Rules – service in accordance with the Hague Service Convention – whether service by post is permissible – leave granted to serve originating application outside Australia Legislation: Federal Court Rules 2011 (Cth) rr 7.22, 10.41, 10.42, 10.43 Cases cited: Ahmed v Al-Hussain Pty Ltd t/as The Cheesecake Shop [2018] FCA 1741
AIA Australia Ltd v Richards [2017] FCA 84
Bell v Steele [2011] FCA 1390; (2011) 198 FCR 291
Boyd v Automattic, Inc [2019] FCA 86
Cape Australia Holdings Pty Ltd v Iannello [2009] FCA 709
Carroll & Richardson - Flagworld Pty Ltd v PayPal Australia Pty Limited [2020] FCA 371
Colagrande v Telstra Corporation Limited [2020] FCA 1595
Deputy Commissioner of Taxation v Cheung Kong Infrastructure Holdings Ltd [2013] FCA 707; (2013) 96 ATR 44
Deputy Commissioner of Taxation v Power Assets Holdings Ltd (previously known as Hongkong Electric Holdings Ltd) [2013] FCA 708; (2013) 96 ATR 51
Dow Jones & Company Inc v Gutnick [2002] HCA 56; (2002) 210 CLR 575
Hooper v Kirella Pty Ltd [1999] FCA 1584; (1999) 96 FCR 1
Kabbabe v Google LLC [2020] FCA 126
Practical Handbook on the Operation of the Hague Service Convention (Permanent Bureau of the Hague Conference on Private International Law, 2006)
Division: General Registry: New South Wales National Practice Area: Other Federal Jurisdiction Number of paragraphs: 24 Date of hearing: This matter was determined on the papers Solicitor for the Prospective Applicants: Mr. B Goldsmith of Goldsmith Lawyers ORDERS
NSD 1078 of 2020 BETWEEN: SEVEN CONSULTING PTY LTD
First Prospective Applicant
DECLAN BOYLAN
Second Prospective Applicant
AND: GOOGLE LLC
Prospective Respondent
ORDER MADE BY:
ABRAHAM J
DATE OF ORDER:
11 MARCH 2021
THE COURT ORDERS THAT:
1.Pursuant to rr 10.42 and 10.43 of the Federal Court Rules 2011 (Cth) the prospective applicant have leave to serve:
(a)the amended originating application filed on 3 March 2021;
(b)the affidavit of Declan Boylan sworn on 23 September 2020;
(c)the affidavit of Barrie Goldsmith affirmed on 24 September 2020;
(d)the affidavit of Ella Mackintosh affirmed on 25 February 2021;
(e)the affidavit of Berna Akdeniz sworn on 3 March 2021;
(f)the affidavit of Barrie Goldsmith affirmed on 3 March 2021; and
(g)a copy of this order;
upon the respondent in the United States of America, in accordance with Article 10(a) of the “Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters” done at The Hague on 15 November 1965, by sending them by international registered post, with an acknowledgement of receipt to be provided to the prospective applicants, to the respondent’s address…
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- AGLC
- Seven Consulting Pty Ltd v Google LLC [2021] FCA 203
- Case
- [2021] FCA 203
- Decision Date
CaseChat Overview and Summary
The court examined the affidavits provided by the applicants and found that they had made reasonable inquiries and taken steps to locate the individuals responsible for the reviews but had been unsuccessful. The court was satisfied that the applicants had a prima facie case for relief and that the Federal Court had jurisdiction over the matter. The court also confirmed that the proposed method of service by international registered post was permissible under Article 10(a) of the Hague Service Convention. Based on these findings, the court granted the applicants leave to serve the originating application on Google LLC in the United States of America.
In granting leave, the court made an order permitting the applicants to serve the amended originating application and accompanying affidavits on Google LLC by international registered post to the specified address in the United States. The court reserved costs and scheduled a case management hearing to progress the matter. This decision underscores the importance of ensuring that parties are properly served in cross-border litigation, and the role of the Hague Service Convention in facilitating international service of judicial documents.
Orders
Orders of the court
1. Pursuant to rr 10.42 and 10.43 of the Federal Court Rules 2011 (Cth) the prospective applicant have leave to serve:
(a) the amended originating application filed on 3 March 2021;
(b) the affidavit of Declan Boylan sworn on 23 September 2020;
(c) the affidavit of Barrie Goldsmith affirmed on 24 September 2020;
(d) the affidavit of Ella Mackintosh affirmed on 25 February 2021;
(e) the affidavit of Berna Akdeniz sworn on 3 March 2021;
(f) the affidavit of Barrie Goldsmith affirmed on 3 March 2021; and
(g) a copy of this order;
upon the respondent in the United States of America, in accordance with Article 10(a) of the “Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters” done at The Hague on 15 November 1965, by sending them by international registered post, with an acknowledgement of receipt to be provided to the prospective applicants, to the respondent’s address at:
Google LLC
C/O Custodian of Records
1600 Amphitheatre Parkway
Mountain View, California 94043
United States of America
2. Costs be reserved.
3. The matter be listed for a case management hearing on 8 April 2021 at 9:30am.
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
Ratio Decidendi
Legal Principle Established
For the reasons given below, it is appropriate to make the order to grant leave to the prospective applicants to serve the proceeding on Google in the United States of America (USA) in accordance with Article 10(a) of the “Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters” done at The Hague on 15 November 1965 (the Hague Service Convention). Consideration Rule 10.43(2) provides that a party may apply to the Court for leave to serve an originating application on a person in a foreign country in accordance with the Hague Service Convention. Before leave may be granted to serve an originating application on a respondent outside Australia the Court must be satisfied of four matters set out in r 10.43(3) and (4):(1)the application must be accompanied by an affidavit which states the name of the foreign country where the person is to be served, the proposed method of service and, if the Hague Service Convention applies, that the proposed method of service is permitted by the Hague Service Convention: r 10.43(3);(2)the Court has jurisdiction in the proceeding: r 10.43(4)(a);(3)the proceeding is of a kind mentioned in r 10.42: r 10.43(4)(b); and(4)the applicant has a prima facie case for all or any of the relief claimed in the proceeding: r 10.43(4)(c). The relevant principles in a similar factual application were recently summarised by Murphy J in Kabbabe v Google LLC [2020] FCA 126 at [3]-[16] (Kabbabe). I am satisfied of the four matters identified above.First criteria The prospective applicant relies on the affidavit of his solicitor, Mr Goldsmith affirmed on 25 September 2020, which establishes, inter alia, that the USA is a contracting party to the Hague Service Convention. The Hague Service Convention contemplates several channels for service in the Practical Handbook on the Operation of the Hague Service Convention (Permanent Bureau of the Hague Conference on Private International Law, 2006) (Practical Handbook): AIA Australia Ltd v Richards [2017] FCA 84 at [7] (AIA Australia). Allsop CJ observed:The “main channel of transmission” is service under Article 5 of the Hague Service Convention through the “Central Authority” of the receiving State. The Convention also permits service through several “alternative channels”: Practical Handbook at [183]. The prospective applicants propose to serve the documents by sending them by international registered post, which is one of the alternative channels: namely service by post pursuant to Art. 10(a). As Allsop CJ noted in AIA Australia at [13], the Practical Handbook states at [196] that “transmission … through postal channels [referred to in Art 10(a)] includes service of process upon the addressee”. It is uncontroversial that the service of documents by international registered post is compliant with Art. 10(a), this Court having granted leave on a number of previous occasions for service in that manner: see Kabbabe at [8], citing Deputy Commissioner of Taxation v Power Assets Holdings Ltd (previously known as Hongkong Electric Holdings Ltd) [2013] FCA 708; (2013) 96 ATR 51 at [15]-[22]; Deputy Commissioner of Taxation v Cheung Kong Infrastructure Holdings Ltd [2013] FCA 707; (2013) 96 ATR 44 at [15]-[22]; Bell v Steele [2011] FCA 1390; (2011) 198 FCR 291 at [13] and [16]; Ahmed v Al-Hussain Pty Ltd t/as The Cheesecake Shop [2018] FCA 1741 at [17].