FEDERAL COURT OF AUSTRALIA
Young v Facebook Australia Pty Ltd [2015] FCA 1440
Citation: Young v Facebook Australia Pty Ltd [2015] FCA 1440 Parties: G YOUNG v FACEBOOK AUSTRALIA PTY LTD File number: ACD 108 of 2015 Judge: GRIFFITHS J Date of judgment: 17 December 2015 Catchwords: PRACTICE AND PROCEDURE – respondent’s interlocutory application seeking summary judgment or that the proceeding be struck out – applicant’s interlocutory application seeking leave to serve on two companies outside the jurisdiction a proposed amended statement of claim – where the respondent claims it has no responsibility for the conduct the subject of the applicant’s claims – where the applicant proposes to raise claims of misleading or deceptive conduct and/or unconscionability, and breach of the implied Constitutional right of political communication Legislation: Australian Consumer Law (Sch 2 to the Competition and Consumer Act 2010 (Cth)) ss 18, 20
Evidence Act 1995 (Cth) s 75
Federal Court of Australia Act 1976 (Cth) ss 31A, 31A(2)
Federal Court Rules 2011 (Cth) rr 16.21(1)(e), 26.01(1)(a)
Judiciary Act 1903 (Cth) s 78B
Cases cited: A v Google New Zealand [2012] NZHC 235
ACCC v CG Berbatis Holdings Pty Ltd [2003] HCA 18; (2003) 214 CLR 51
C v Commonwealth of Australia [2015] FCAFC 113
Cavar v Green Gate Pty Ltd [2015] FCA 1179
Christou v Stantons International Pty Ltd [2010] FCA 1150
Coles Supermarkets Australia Pty Ltd v FKP Limited [2008] FCA 1915
Commercial Bank of Australia Ltd v Amadio [1983] HCA 14; (1983) 151 CLR 447
Dandaven v Harbeth Holdings Pty Ltd [2008] FCA 955
Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62
General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125
James v Commonwealth [1939] HCA 9; (1939) 62 CLR 339
Kruger v Commonwealth [1997] HCA 27; (1997) 190 CLR 1
Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520
Mander Forklift Pty Ltdv Dairy Famers Co-Operative (1990) ATPR 46-061
Nicolic v MGICA Ltd [1999] FCA 849
Rana v Google Australia Pty Ltd [2013] FCA 60
Richardson v Facebook [2015] EWHC 49
Sagacious Legal Pty Ltd v Westfarmers General Insurance Ltd (No 3) [2010] FCA 428; (2010) 184 FCR 516
Spencer v Commonwealth [2010] HCA 28; (2010) 241 CLR 118
Tajjour v New South Wales [2014] HCA 35
Tamizv Google Inc and Google UK Ltd [2012] EWHC 449
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165
Unions NSW v State of New South Wales [2013] HCA 58; (2013) 252 CLR 530
Date of hearing: 14 December 2015 Place: Canberra Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 83 Counsel for the Applicant: The applicant appeared in person Counsel for the Respondent: Mr M J Lewis Solicitor for the Respondent: Gadens Lawyers
IN…
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Details
- Case
- [2015] FCA 1440
- Decision Date
CaseChat Overview and Summary
The case before the court involved a proceeding brought by the plaintiff, Mr Young, against the defendant, Facebook Australia Pty Ltd. Mr Young sought to serve two other companies outside of Australia with a proposed amended statement of claim. In response, the defendant filed an interlocutory application seeking summary judgment or that the proceeding be struck out on the basis that it had no responsibility for the conduct alleged in Mr Young's claims. Mr Young's claims related to misleading or deceptive conduct, unconscionability, and breach of the implied Constitutional right of political communication. The court was required to determine whether there was a reasonable prospect of success for Mr Young's claims and whether the proceeding disclosed a reasonable cause of action. The court found that the defendant's application for summary judgment should be dismissed, as Mr Young's claims had a reasonable prospect of success. The court also found that the proceeding disclosed a reasonable cause of action. Therefore, the court dismissed the defendant's interlocutory application seeking summary judgment or that the proceeding be struck out.
The court noted that the principles relating to the exercise of the court's discretion to grant summary judgment were well settled. The court emphasised that the expression "no reasonable prospect" should be understood in its entirety and that the power to dismiss an action summarily should not be exercised lightly. The court found that the defendant's argument that it had no responsibility for the conduct alleged in Mr Young's claims was not sufficient to establish that there was no reasonable prospect of success for those claims. The court also found that Mr Young's claims disclosed a reasonable cause of action. Therefore, the court dismissed the defendant's interlocutory application seeking summary judgment or that the proceeding be struck out. The court also dismissed the defendant's interlocutory application seeking leave to serve two other companies outside of Australia with a proposed amended statement of claim. The court ordered that the originating application filed on 8 October 2015 be dismissed and that the interlocutory application filed on 20 November 2015 be dismissed. The court further ordered that the applicant pay the respondent's costs of the interlocutory applications filed on 6 and 20 November 2015 respectively, as agreed or assessed.
The court noted that the principles relating to the exercise of the court's discretion to grant summary judgment were well settled. The court emphasised that the expression "no reasonable prospect" should be understood in its entirety and that the power to dismiss an action summarily should not be exercised lightly. The court found that the defendant's argument that it had no responsibility for the conduct alleged in Mr Young's claims was not sufficient to establish that there was no reasonable prospect of success for those claims. The court also found that Mr Young's claims disclosed a reasonable cause of action. Therefore, the court dismissed the defendant's interlocutory application seeking summary judgment or that the proceeding be struck out. The court also dismissed the defendant's interlocutory application seeking leave to serve two other companies outside of Australia with a proposed amended statement of claim. The court ordered that the originating application filed on 8 October 2015 be dismissed and that the interlocutory application filed on 20 November 2015 be dismissed. The court further ordered that the applicant pay the respondent's costs of the interlocutory applications filed on 6 and 20 November 2015 respectively, as agreed or assessed.
Orders
Orders of the court
1. The originating application filed on 8 October 2015 be dismissed under s 31A(2) of the Federal Court of Australia Act 1976 (Cth) and rule 26.01(1)(a) of the Federal Court Rules 2011 (Cth).
2. The interlocutory application filed on 20 November 2015 be dismissed.
3. The applicant pay the respondent’s costs of the interlocutory applications filed on 6 and 20 November 2015 respectively, as agreed or assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
It is convenient to now provide a broad outline of the background to the parties’ dispute. Background facts summarised Facebook is a free, online social networking service. It allows users to connect and share information with other people. It is accessed by approximately 1.5 billion users worldwide through the website and applications for mobile devices and tablets (the Facebook Services). When Facebook users who reside or have their principal place of business outside of the United States of America or Canada create an account to use the Facebook Services, the usual practice is that the user will enter into a standard form Statement of Rights and Responsibilities (SRR), which constitutes and defines the conditions for use of the Facebook Services. Neither party filed any evidence which explained the practical or technical aspects of Facebook. Mr Lewis drew the Court’s attention to the recent decision of Dixon J in Von Marburg v Aldred [2015] VSC 467 which contains at [9]-[11] a helpful description of the operation of a Facebook page. Facebook permits individuals or organisations to operate a platform, which is known as a Facebook page. Facebook calls part of its profile spaces that are passive mediums for publication by third parties, “walls”. These walls may feature multi-layered privacy settings which govern a user’s capacity to access and post entries on the “wall”. The administrator of the “wall” has greater control over its content than other users. Dixon J described the role and function of an administrator in [11]:Facebook allows an administrator of the page to adjust its settings to permit communications by way of third party comment on or in response to the content it creates and posts. The platform can operate to permit anyone, who has navigated to that page and read what is displayed, to place material (such as a statement, photograph, video, hyperlink etc.) on the page that is a communication to any internet user who subsequently navigates to the page or refreshes the existing view of the internet platform in their web browser and thus downloads the communication from the internet to their own computer where it appears in the web browser software. Administrators can modify the setting of the page with the result that that such communications by third parties may occur without the sponsor being aware, when the communication is first posted, of the content of the communication, and may use software to automatically “filter” communications posted to the page according to some pre-determined rules. It is convenient to set out at this point the several relevant parts of the SRR, noting that it was not disputed that Mr Young had signed up to the SRR when he became a Facebook user. The SRR commences with the following statement:This Statement of Rights and Responsibilities (“Statement”, “Terms” or “SRR”) derives from the Facebook Principles, and is our terms of service that governs our relationship with users and others who interact with Facebook, as well as Facebook brands, products and services, which we will call the “Facebook Services” or “Services”. By using or accessing the Facebook Services, you agree to this Statement as updated from time to time in accordance with Section 13 below. Additionally, you will find resources at the end of this document that help you understand how Facebook works.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Rule 26.01(1)(a) and (c) of the FCRs states:Summary judgment (1)A party may apply to the Court for an order that judgment be given against another party because: (a)the applicant has no reasonable prospect of successfully prosecuting the proceeding or part of the proceeding; or …(c) no reasonable cause of action is disclosed; or… Rule 16.21(1)(e) of the FCRs states:Application to strike out pleadings (1)A party may apply to the Court for an order that all or part of a pleading be struck out on the ground that the pleading: …(e)fails to disclose a reasonable cause of action or defence or other case appropriate to the nature of the pleading; or… The principles relating to these powers are well settled. In the case of summary judgments, the principles are set out in cases such as Spencer v Commonwealth [2010] HCA 28; (2010) 241 CLR 118 (Spencer); Dandaven v Harbeth Holdings Pty Ltd [2008] FCA 955 (Dandaven); Rana v Google Australia Pty Ltd [2013] FCA 60 (Rana); Cavar v Green Gate Pty Ltd [2015] FCA 1179 (Cavar) and C v Commonwealth of Australia [2015] FCAFC 113. In Spencer, the High Court emphasised the importance of not paraphrasing the critical phrase in s 31A(2), namely “no reasonable prospect”. At [58]-[60], Hayne, Crennan, Kiefel and Bell JJ said:58How then should the expression “no reasonable prospect” be understood? No paraphrase of the expression can be adopted as a sufficient explanation of its operation, let alone definition of its content. Nor can the expression usefully be understood by the creation of some antinomy intended to capture most or all of the cases in which it cannot be said that there is “no reasonable prospect”. The judicial creation of a lexicon of words or phrases intended to capture the operation of a particular statutory phrase like “no reasonable prospect” is to be avoided. Consideration of the difficulties that bedevilled the proviso to common form criminal appeal statutes, as a result of judicial glossing of the relevant statutory expression, provides the clearest example of the dangers that attend any such attempt.59In many cases where a plaintiff has no reasonable prospect of prosecuting a proceeding, the proceeding could be described (with or without the addition of intensifying epithets like “clearly”, “manifestly” or “obviously”) as “frivolous”, “untenable”, “groundless” or “faulty”. But none of those expressions (alone or in combination) should be understood as providing a sufficient chart of the metes and bounds of the power given by s 31A. Nor can the content of the word “reasonable”, in the phrase “no reasonable prospect”, be sufficiently, let alone completely, illuminated by drawing some contrast with what would be a “frivolous”, “untenable”, “groundless” or “faulty” claim.60Rather, full weight must be given to the expression as a whole. The Federal Court may exercise power under s 31A if, and only if, satisfied that there is “no reasonable prospect” of success. Of course, it may readily be accepted that the power to dismiss an action summarily is not to be exercised lightly. But the elucidation of what amounts to “no reasonable prospect” can best proceed in the same way as content has been given, through a succession of decided cases, to other generally expressed statutory phrases, such as the phrase “just and equitable” when it is used to identify a ground for winding up a company. At this point in the development of the understanding of the expression and its application, it is sufficient, but important, to emphasise that the evident legislative purpose revealed by the text of the provision will be defeated if its application is read as confined to cases of a kind which fell within earlier, different, procedural regimes.
Ratio Decidendi
Legal Principle Established
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