Sydney Criminal Lawyers v Google LLC - [2021] FCA 297

FEDERAL COURT OF AUSTRALIA
Sydney Criminal Lawyers v Google LLC [2021] FCA 297

File number: NSD 68 of 2021

Judgment of: ABRAHAM J

Date of judgment: 29 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

Seven Consulting Pty Ltd v Google LLC [2021] FCA 203

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: Determined on the papers

Solicitor for the Prospective Applicant: Mr. D Garan of Berrigan Doube Lawyers

ORDERS

NSD 68 of 2021

BETWEEN:
SYDNEY CRIMINAL LAWYERS

Prospective Applicant

AND:
GOOGLE LLC

Prospective Respondent

ORDER MADE BY:

ABRAHAM J

DATE OF ORDER:

29 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 has leave to serve:
(a)the originating application filed on 29 January 2021;
(b)the affidavit of Ugur Nedim affirmed on 29 January 2021;
(c)the affidavit of Daniel Garan affirmed on 10 March 2021; and
(d)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.There be no order as to costs.
3.The matter be listed for a…

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.

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Details

Case: [2021] FCA 297
Decision Date: 29 March 2021

CaseChat Overview and Summary

Sydney Criminal Lawyers sought to serve an originating application on Google LLC in the United States of America. The dispute concerns the identity of individuals who posted defamatory reviews on the Google platform. The Federal Court of Australia was tasked with determining whether leave should be granted to serve the originating application outside Australia in accordance with the Hague Service Convention. The court examined whether the application met the requirements of Rule 10.43 of the Federal Court Rules 2011 (Cth) and whether service by post was permissible under the Hague Service Convention. After reviewing the affidavits and considering the relevant legal principles, the court concluded that the prospective applicant had satisfied the necessary criteria. The court found that the proposed method of service by international registered post was permissible under Article 10(a) of the Hague Service Convention, and granted leave for service outside Australia.

The court's reasoning involved a thorough analysis of the procedural requirements under Rule 10.43 of the Federal Court Rules 2011 (Cth). It considered the need for an affidavit stating the foreign country, proposed method of service, and compliance with the Hague Service Convention. The court also assessed whether it had jurisdiction, whether the proceeding fell within the scope of Rule 10.42, and whether the applicant had a prima facie case. The court referred to previous decisions and the Practical Handbook on the Operation of the Hague Service Convention to support its findings. It determined that the prospective applicant had met all the necessary criteria and that service by international registered post was indeed permissible under the Hague Service Convention. Therefore, the court granted leave for the originating application to be served on Google LLC in the United States of America.

Orders

Orders of the court

1. Pursuant to rr 10.42 and 10.43 of the Federal Court Rules 2011 (Cth) the prospective applicant has leave to serve:

(a) the originating application filed on 29 January 2021;

(b) the affidavit of Ugur Nedim affirmed on 29 January 2021;

(d) 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. There be no order as to costs.

3. The matter be listed for a case management hearing on 27 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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Having regard to the affidavit of Ugur Nedim affirmed 29 January 2021 and the affidavit of Daniel Garan affirmed 10 March 2021, I am satisfied that the prospective applicant has made reasonable inquiries and taken other steps reasonably required in the circumstances, but have been unable to ascertain the description of the person or persons responsible or believed to be responsible for authoring or publishing the reviews. The prospective applicant has been in communication with Google about producing the required information. I consider that Google is likely to have or have had control of a document or thing that would help ascertain the description of the person or persons responsible or believed to be responsible for authoring or publishing the reviews. Conclusion Accordingly, I make the orders sought.

Ratio Decidendi

Legal Principle Established

For the reasons given below, it is appropriate to make the order to grant leave to the prospective applicant 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 are well known and were recently summarised in similar factual applications by Murphy J in Kabbabe v Google LLC [2020] FCA 126 at [3]-[16] (Kabbabe) and my decision in Seven Consulting Pty Ltd v Google LLC [2021] FCA 203 (Seven Consulting). I am satisfied of the four matters identified above.First criteria The prospective applicant relies on the affidavit of its solicitor, Mr Garan affirmed on 10 March 2021, 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 applicant proposes 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].

File number:	NSD 68 of 2021
Judgment of:	ABRAHAM J
Date of judgment:	29 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 Seven Consulting Pty Ltd v Google LLC [2021] FCA 203 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:	Determined on the papers
Solicitor for the Prospective Applicant:	Mr. D Garan of Berrigan Doube Lawyers

ORDER MADE BY:	ABRAHAM J
DATE OF ORDER:	29 MARCH 2021