FEDERAL COURT OF AUSTRALIA

Rana v Google Inc [2017] FCAFC 156

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The orders of the primary judge made on 25 January 2017 be set aside.

3.    The interlocutory applications dated 31 July 2017 and 2 August 2017 be dismissed.

4.    The matter be remitted to the primary judge for case management and for its further conduct otherwise.

5.    The costs of the application for leave to appeal and the appeal be hereafter within the discretion of the primary judge.

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

REASONS FOR JUDGMENT

THE COURT:

Background and procedural history

1    The central subject matter of this proceeding relates to allegations made by the appellant regarding material about him allegedly authored by Darda and Nina Gregurev and published on various websites that are hosted by Google and which appear in Google search results. That material is alleged to be defamatory.

2    Earlier proceedings were brought in 2012 against Google Inc (a foreign corporation), its Australian subsidiary and the Gregurevs in relation to these allegations: see Rana v Google Australia Pty Ltd [2013] FCA 60. The claim against Google Australia Pty Ltd was dismissed by Mansfield J. The appellant discontinued the remainder of the proceeding.

3    The present proceeding was commenced by the appellant on 28 October 2014, against Google Inc and the Commonwealth. The claim against the Commonwealth (described below) was resolved by consent on 2 February 2015. On 3 November 2014, the appellant filed an interlocutory application seeking leave to commence proceedings against Google Inc (as was required by s 21 of the Defamation Act 2005 (SA)). On 6 May 2016, Mansfield J refused to grant such leave, but granted leave to the appellant to file a proposed amended originating application and statement of claim and stood the applications over to a later date: see Rana v Google Inc [2016] FCA 461.

4    On 14 June 2016, the appellant filed amended documents that came before the primary judge. They named four respondents: Google Inc, the Gregurevs and the Commonwealth. The appellant filed an interlocutory application on 14 June 2016 seeking leave to commence the proceedings against Google Inc, leave to serve the amended process on Google Inc outside the jurisdiction and leave to serve the amended process on the other respondents. Leave was not formally sought to amend the pleadings or to join the additional respondents.

5    On 25 January 2017, having considered the proposed amended documents, the primary judge dismissed the interlocutory applications of 3 November 2014 and 14 June 2016 and dismissed the appellant’s originating application on the basis that this Court lacked jurisdiction to determine the claims in defamation against Google: see Rana v Google Inc (No 2) [2017] FCA 17.

6    Leave to appeal against the decision of the primary judge was granted on 19 May 2017: see Rana v Google Inc [2017] FCA 542. The appeal should be allowed.

The appellant’s claims

7    The appellant’s original pleading was discursive and in many respects difficult to interpret. This remains an accurate description of the proposed amended pleading. Nevertheless, the claims made by the appellant need only be shortly summarised for the purposes of this appeal which concerns the jurisdiction of the Court.

8    The initial originating application and statement of claim filed by the appellant in 2014 named Google Inc and the Commonwealth as respondents. The claims against Google, were in defamation, negligence and for contravention of ss 18 and 21 of the Australian Consumer Law (ACL). The defamation pleas were in respect of the material allegedly authored by the Gregurevs, as were the negligence and ACL pleas. This remains so in the proposed amended pleading. Against the Commonwealth, the appellant sought review under s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) of a decision by the Information Commissioner under s 41 of the Privacy Act 1988 (Cth) not to investigate Google for breach of the appellant’s privacy in respect of the material allegedly published by the Gregurevs, hosted by Google and that appeared in Google search results.

9    As originally brought, the claim against the Commonwealth had a similar factual basis as the claims against Google, in that it was asserted to arise from the allegedly defamatory material allegedly authored by the Gregurevs and published on Google websites. As noted above, the claim against the Commonwealth was resolved by consent orders made on 2 February 2015 that set aside the decision of the Information Commissioner and remitted the appellant’s complaint to a different delegate for re-determination.

10    In the proposed amended originating application and statement of claim filed on 14 June 2016 (and the subject of the decision under appeal), Google Inc is the only properly named respondent. The defamation claims related to the material referred to above. As noted by the primary judge, they are structured around claims against the Gregurevs, who are not yet proper parties to the proceeding. However, her Honour concluded that the pleading set out the material facts with sufficient clarity and by way of cross-references adequately pleaded that Google is to be regarded as a publisher of the material allegedly authored by the Gregurevs: see [2017] FCA 17 at [34]-[35]. The primary judge concluded that the pleas in defamation were not such that leave to commence proceedings against Google Inc should be refused, though they did suffer from shortcomings: [2017] FCA 17 at [34]-[37].

11    The claims made under ss 18 and 21 of the ACL, however, are difficult to interpret. In respect of the purported s 18 claim, there appear to be some allegations that Google breached its terms of service and a contract and that this was misleading or deceptive. There is some attempt to link this with the alleged defamatory material and the loss of a business opportunity. The claim under s 21 also appears to be linked somehow to the terms of service. None of the ACL claims are at all clear. The primary judge was correct to strike out the ACL claims in their current form as embarrassing: see [2017] FCA 17 at [39]-[41], [55].

12    The primary judge did not address the negligence claim against Google. It is possible this was because the primary application before her Honour was focused on leave to commence the defamation proceedings. The negligence claim, in summary, alleges that Google Inc was negligent in failing to remove the alleged defamatory material.

The conclusions of the primary judge on jurisdiction

13    Having struck out the ACL claims without granting leave to re-plead, her Honour concluded at [55] that this Court lacked jurisdiction to hear and determine the defamation claims as there was no core federal matter pleaded. The negligence claim was not adverted to, but it appears the same conclusion would have been reached. Her Honour thus dismissed the balance of the proceeding for want of jurisdiction. The primary judge had determined at [45] that the Court’s jurisdiction to hear and determine the claims in defamation had to be pursuant to its jurisdiction in “associated” matters under s 32 of the Federal Court of Australia Act 1976 (Cth). Given the defects in the ACL claims, the primary judge said that it was “difficult, if not impossible” to determine whether these claims were within the scope of a single justiciable controversy that encompassed the defamation claims or whether the federal claim made under the ACL was “colourable”: [2017] FCA 17 at [52]-[54].

14    For the reasons that follow, the primary judge’s reasoning and conclusions as to jurisdiction were, with respect, wrong. The striking out of the ACL claims did not mean this Court somehow lost jurisdiction. This Court has jurisdiction to hear and determine the defamation claim (and, indeed, the negligence claim). These aspects are part of a single matter within the jurisdiction of this Court that has, and has had since it was commenced, its substratum of facts in the asserted defamation, the conduct of Google in dealing with the publications and, arguably, in how the Commonwealth dealt with the matter.

Principles of federal jurisdiction and the jurisdiction of this Court

15    The jurisdiction exercised by the Federal Court is always federal jurisdiction: Re Wakim; Ex parte McNally [1999] HCA 27; 198 CLR 511. The content of that jurisdiction exercised by this Court is derived from ss 75 and 76 of the Constitution, and that jurisdiction is defined by laws that are authorised by s 77(i) of the Constitution. Section 19 of the Federal Court of Australia Act provides that the Federal Court “has such original jurisdiction as is vested in it by laws made by the Parliament”. Leaving to one side specific conferrals of jurisdiction on the Court by individual Acts of the Commonwealth Parliament, by s 39B(1A)(c) of the Judiciary Act 1903 (Cth), Parliament has conferred upon the Court a general federal civil jurisdiction, being “jurisdiction in any matter … arising under any laws made by the Parliament …”.

16    Crucial to the scope and operation of federal jurisdiction, to the question whether a proceeding is within federal jurisdiction and to the question whether a proceeding is within the jurisdiction of this Court, is the concept of a “matter”. In Re Wakim, Gummow and Hayne JJ at 198 CLR 585-586 [139]-[140] described a “matter”, and the process of its identification, as follows:

[139] The central task is to identify the justiciable controversy. In civil proceedings that will ordinarily require close attention to the pleadings (if any) and to the factual basis of each claim.

[140] In Fencott it was said that: “in the end, it is a matter of impression and of practical judgment whether a non-federal claim and a federal claim joined in a proceeding are within the scope of one controversy and thus within the ambit of a matter.” The references to “impression” and “practical judgment” cannot be understood, however, as stating a test that is to be applied. Considerations of impression and practical judgment are relevant because the question of jurisdiction usually arises before evidence is adduced and often before the pleadings are complete. Necessarily, then, the question will have to be decided on limited information. But the question is not at large. What is a single controversy “depends on what the parties have done, the relationships between or among them and the laws which attach rights or liabilities to their conduct and relationships”. There is but a single matter if different claims arise out of “common transactions and facts” or “a common substratum of facts”, notwithstanding that the facts upon which the claims depend "do not wholly coincide”. So, too, there is but one matter where different claims are so related that the determination of one is essential to the determination of the other, as, for example, in the case of third party proceedings or where there are alternative claims for the same damage and the determination of one will either render the other otiose or necessitate its determination. Conversely, claims which are “completely disparate”, “completely separate and distinct” or “distinct and unrelated” are not part of the same matter.

(citations omitted and emphasis added)

17    The “matter” is the justiciable controversy between the parties arising out of the substratum of facts and claims representing, or amounting to, the dispute or controversy between or amongst the parties. Where federal and non-federal claims comprise the same justiciable controversy, a court exercising federal jurisdiction will have jurisdiction to resolve the entire matter in the exercise of its federal jurisdiction. The non-federal part of the matter is sometimes referred to as “accrued jurisdiction” (as distinct from the associated jurisdiction provided for under s 32 of the Federal Court of Australia Act). It is better understood and expressed, however, as being part of the one matter. References to “accrued jurisdiction” need to be treated with caution or, indeed, to be avoided: see Rizeq v Western Australia [2017] HCA 23; 91 ALJR 707 at [55] per Bell, Gageler, Keane, Nettle and Gordon JJ. (It should also be noted at this point that no issue concerning s 79 of the Judiciary Act arises in this case.)

18    A matter will “arise under” a law of the Parliament in a number of ways. These include cases where a cause of action is created by a Commonwealth statute; where a Commonwealth statute is relied upon as establishing a right to be vindicated; where a Commonwealth statute is the source of a defence that is asserted; where the subject matter of the controversy owes its existence to Commonwealth legislation – that is where the claim is in respect of or over a right which owes its existence to federal law; where it is necessary to decide whether a right or duty based on a Commonwealth statute exists even where that has not been pleaded by the parties, or where a federal issue is raised on the pleadings but it is unnecessary to decide: see generally R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett [1945] HCA 50; 70 CLR 141 at 154; Felton v Mulligan [1971] HCA 39; 124 CLR 367 at 374, 388, 403; Moorgate Tobacco Co Ltd v Philip Morris Ltd [1980] HCA 32; 145 CLR 457 at 476; LNC Industries Ltd v BMW (Aust) Ltd [1983] HCA 31; 151 CLR 575 at 581-582; Re McJannet; Ex parte Australian Workers’ Union of Employees, Queensland [1997] HCA 40; 189 CLR 654 at 656-657; CGU Insurance Ltd v Blakeley [2016] HCA 2; 327 ALR 564; Australian Solar Mesh Sales Pty Ltd v Anderson [2000] FCA 864; 101 FCR 1 at 7-8. A matter may also exist prior to the commencement of formal proceedings and be federal in character at that point: Hooper v Kirella Pty Ltd [1999] FCA 1584; 96 FCR 1 at 13-16 [45]-[55]. There is a difference, however, between a matter “arising under” a law of the Parliament and a matter that merely involves the interpretation of a federal law (and which will not on its own attract federal jurisdiction): see Felton 124 CLR at 374, 408-409, 416.

19    The Court (French CJ, Kiefel, Bell and Keane JJ) said the following in CGU 327 ALR at 573 [30]-[31] in discussing federal jurisdiction:

[30] The justiciability requirement encompassed in the concept of “matter” appears in the description of that term by the majority in Fencott v Muller as “a justiciable controversy, identifiable independently of the proceedings which are brought for its determination and encompassing all claims made within the scope of the controversy”. It has an evaluative element as also appears from the majority judgment in Fencott:

What is and what is not part of the one controversy depends on what the parties have done, the relationships between or among them and the laws which attach rights or liabilities to their conduct and relationships. The scope of a controversy which constitutes a matter is not ascertained merely by reference to the proceedings which a party may institute, but may be illuminated by the conduct of those proceedings and especially by the pleadings in which the issues in controversy are defined and the claims for relief are set out.

The evaluative element is illustrated by, but not confined to, the delineation of the so called “accrued jurisdiction” to entertain non-federal claims in federal jurisdiction, by their Honours’ observation that it is:

a matter of impression and of practical judgment whether a non-federal claim and a federal claim joined in a proceeding are within the scope of one controversy and thus within the ambit of a matter.

[31] The existence of jurisdiction is anterior to the existence of the power to grant particular relief. As Gleeson CJ and McHugh J said in MIMIA v B:

In a legal context the primary meaning of jurisdiction is ‘authority to decide’. It is to be distinguished from the powers that a court may use in the exercise of its jurisdiction.

(footnotes omitted)

The distinction has been made frequently in this court.

(citations omitted)

20    Once a matter is within federal jurisdiction, the entire matter is within federal jurisdiction: Australian Securities and Investments Commission v Edensor Nominees Pty Ltd [2001] HCA 1; 204 CLR 559 at 571 [7] per Gleeson CJ, Gaudron and Gummow JJ. There is never any concurrent exercise of federal and State jurisdiction: Felton 124 CLR 367 at 412-413; Moorgate 145 CLR at 471.

21    Generally, non-colourable assertion of a federal issue is enough to attract federal jurisdiction: Felton 124 CLR at 374 per Barwick CJ; Moorgate 145 CLR at 476; Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation [1987] FCA 686; 18 FCR 212 at 219; Parisienne Basket Shoes Pty Ltd v Whyte [1938] HCA 7; 59 CLR 369 at 389-391 per Dixon J. Upon the existence of federal jurisdiction, the matter remains within federal jurisdiction regardless of how the federal issue or issues within it are ultimately resolved: Moorgate 145 CLR at 476. It remains federal even if the federal claim is struck out: Unilan Holdings Pty Ltd v Kerin [1993] FCA 605; 44 FCR 481 at 481-482. Nor does dismissal of the federal claim mean that a court exercising federal jurisdiction somehow loses jurisdiction over the balance of the matter: Burgundy Royale 18 FCR at 219; Johnson Tiles Pty Ltd v Esso Australia Ltd [2000] FCA 1572; 104 FCR 564 at 597 [85] per French J. The same is true if the federal claim is effectively abandoned: see Moorgate 145 CLR 457. Indeed, a matter remains in federal jurisdiction even if a party is added and no federal claim is made against that party, provided it is all part of the same matter, the same controversy: Re Wakim 198 CLR at 587 [145] per Gummow and Hayne JJ. The position is summarised in Macteldir Pty Ltd v Dimovski [2005] FCA 1528; 226 ALR 773 at 784 [36] as follows:

It is a fundamental tenet of federal jurisdiction that once a federal claim is made, even a bad one, and even one that is abandoned, or struck out, the whole matter in which that claim is made is, and remains, federal jurisdiction …

(citations omitted)

22    The exception to this principle is where the federal claim that is made is “colourable” in the sense that it was “made for the improper purpose of fabricating jurisdiction” such that it was not made bona fide. In such a case, federal jurisdiction is not attracted: Burgundy Royale 18 FCR at 219.

23    In the context of this appeal, something should be said about two other aspects of this Court’s jurisdiction. First, the “associated jurisdiction” conferred under s 32 of the Federal Court of Australia Act is not concerned with the conferral of jurisdiction to determine non-federal matters that are said to be associated with a federal matter: see Lindell G, Cowen and Zines’s Federal Jurisdiction in Australia (4th ed, Federation Press, 2016) at 200. It is not a synonym for “accrued” jurisdiction. The effect of s 32 is to confer jurisdiction to deal with a federal matter for which jurisdiction has not been conferred upon the Court where it is associated with another federal matter for which jurisdiction has been so conferred: Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd [1981] HCA 7; 148 CLR 457 at 516 per Mason J; Edensor 204 CLR at 579 [39] per Gleeson CJ, Gaudron and Gummow JJ; Elbe Shipping SA v The Ship “Global Peace” [2006] FCA 954; 154 FCR 439 at 454-455 [60]. The operation of s 32 can be seen in PCS Operations Pty Ltd v Maritime Union of Australia [1998] HCA 29; 153 ALR 520. There, Gaudron J held that s 32 extended the jurisdiction of the Federal Court to matters within ss 75 and 76 of the Constitution that are associated with a matter already within the jurisdiction of the Court, but for which jurisdiction is not specifically conferred upon this Court: 153 ALR at 525 [12]. In that case, the MUA claimed breach of an award and an enterprise agreement and contraventions of the Workplace Relations Act 1996 (Cth) and of the Corporations Law against certain members of the Patrick group, along with two common law actions for conspiracy against the Patrick parties, the National Farmers Federation and the Commonwealth. Although within s 75(iii), jurisdiction to hear the claim against the Commonwealth was not otherwise conferred on this Court. Section 32, nonetheless, conferred that jurisdiction on the Court for disposition of the proceedings. This is consistent with Allied Mills Industries Pty Ltd v Trade Practices Commission (No 1) (1981) 34 ALR 105 where it was held that s 32 operated to give this Court jurisdiction over a claim against the Trade Practices Commission (the Commission being equivalent to the Commonwealth for the purposes of s 75(iii) of the Constitution). The same conclusion was reached in respect of the status of ASIC for s 75(iii) purposes in Edensor 204 CLR at 579 [39] per Gleeson CJ, Gaudron and Gummow JJ.

24    The second additional aspect to mention is the jurisdiction that this Court has over civil matters that are within the jurisdiction of the Supreme Courts of the Australian Capital Territory and Northern Territory through the effect of s 9(3) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth). This provision has the effect of conferring upon this Court, as an exercise of federal jurisdiction, original jurisdiction over a proceeding that would be within the jurisdiction of the Australian Capital Territory or Northern Territory Supreme Court. Relevantly here, s 9(3) confers on the Court the jurisdiction of those Territory Supreme Courts to hear and determine defamation matters that would be within their jurisdiction: Crosby v Kelly [2012] FCAFC 96; 203 FCR 451 at 458 [35] per Robertson J. As Perram J also explained at 203 FCR 452 [2], the provision creates a surrogate Commonwealth law by reference to the jurisdiction of those Territory Supreme Courts which then acts as a law of the Commonwealth under which matters may then arise.

The disposition of the appeal

25    The core of this proceeding, as presently instituted, is a claim against Google Inc, in respect of material that is allegedly defamatory and alleged to have been published by Google. The claims against Google made in the proposed pleading are in defamation, negligence and for contravention of the ACL. The claims form one controversy, one matter.

26    Claims for contravention of the ACL are undisputedly within the jurisdiction conferred on this Court. The assertion of such a federal claim is sufficient to attract this Court’s jurisdiction over the matter of which such claims form part: Felton 124 CLR at 374; Moorgate 145 CLR at 476; Burgundy Royale 18 FCR at 219. It is not necessary for the assertion of jurisdiction to be pleaded adequately. Jurisdiction (that is authority of the Court to decide) is not affected by the striking out of the appellant’s ACL pleas: Kerin 44 FCR at 481-482. The existence of jurisdiction does not await proper and complete articulation of the claim. The defamation claims remaining are in federal jurisdiction and part of the matter. Jurisdiction does not rest on any application of s 32. It is not contingent upon the ACL claim being adequately pleaded.

27    The primary judge said that due to the inadequacy of the ACL pleas, it was not possible to conclude whether the defamation and ACL claims formed part of the same matter or whether the ACL claim was in fact colourable: [2017] FCA 17 at [52]. We do not agree. The defamation claim made by the appellant shares a common substratum of fact with the ACL claims (and indeed with the claim against the Commonwealth made earlier in the proceedings, to which we will later turn). Both claims, despite the defective expression of the ACL pleas, can be seen to be based on the material allegedly published on the internet and, indeed, this appears to be the crux of Mr Rana’s complaint against Google as a whole. The appellant makes reference to the allegedly defamatory material and Google’s response to it in the proposed ACL pleas.

28    The primary judge, in reaching her conclusions, stated at [39] that the “alleged publication of defamatory material is not relied upon by Mr Rana as conduct contravening the ACL” and at [40] that although Mr Rana sought an injunction under s 232 of the ACL to restrain publication of the allegedly defamatory material, “that plea for relief is not supported by the facts said to constitute the [ACL] contraventions”. Her Honour was correct to conclude that the publication of the defamatory material was not specifically pleaded as conduct that amounted to a contravention of the ACL. However, the fact that there is a common substratum of fact behind the defamation claim and ACL claims can be ascertained from an examination of the pleading which, it can be accepted is less than coherently expressed.

29    It can be accepted immediately, as was referred to by the primary judge, that the pleading by Mr Rana of the claims under ss 18 and 21 of the ACL was so lacking in clarity and coherence that it should be struck out. Nevertheless, the task in relation to ascertaining whether there is a sufficient commonality of a substratum of facts and claims between what remains on the pleading in terms of the “non-federal issue” and the struck out “federal issue” does not turn upon the inadequacy of the pleading. Rather, it turns upon whether there is sufficient commonality of underlying facts, allegations and claims such that the ACL claim and the defamation claim can be seen to arise out of a common substratum of fact, even if it is not equivalent in scope. As the circumstances in Re Wakim 198 CLR 511 reveal, there is no requirement for a complete overlapping of the underlying substratum of facts, allegations and claims for relief between the different parts of the matter, or, to use old terminology, the federal issue and the accrued claim. If there is common substance, a substantial overlapping of the underlying facts and allegations in the federal claim and the non-federal claim out of which the different claims arise, that will suffice. It will always be a matter of practical judgment.

30    The s 18 claims are said to be causes of action against Google relating to breach of consumer contracts being the terms of service contract and a second consumer contract. The allegations in paras 17 to 20 appear to amount to assertions of the opening of a contractual relationship of some kind. One of the particulars for Google’s goods and services and one of Mr Rana’s complaints appears to be that he has not been able to acquire certain advantages. It would appear, according to the particulars, this is because of what might be thought to be too many allegedly frivolous and trivial complaints for the removal by Google from 2007 of material placed onto the internet by the proposed second and third respondents (the Gregurevs), being 1800 in number. Again, it goes without saying, that the pleading is less than coherent, but the second particular under (c) under para 20 appears to relate to the refusal of Google to remove material placed somewhere by the Gregurevs.

31    The s 18 complaint continues under the heading, “The Representations”. These representations are referred to in para 22. They include the proposition that Google represented to Mr Rana that its product and services were “desirable” and “vital to the internet age”, and that he would earn a large amount of money in the future, and that he would be made a service agent in Nepal in the future. In para 23, it is said that Mr Rana entered into the consumer contract, presumably on the faith of these representations. In para 25, he pleads that the representations were false and that the business (presumably the one that he might enter in Nepal) did not have any potential. It is at this point that there is the assertion that the defamatory allegations about Mr Rana on Google’s blog platforms (implicitly being the defamation by the Gregurevs) were relevant to the allegations of the representations. It is opaque as to why this is the case. Some hint is perhaps given in (d) of para 25, where he refers again to the defamation about him pleaded earlier in paras 1 to 24. One can see an incoherent and halting assertion of the relevance of the damage to his reputation from this to why the representations about some business that he could undertake assisted by entering contracts with Google were misleading.

32    In para 28, it is asserted that a consequence of the misleading and deceptive conduct (presumably the failure of Google to provide its desirable services and its failure to do certain things, including take down the defamation against him) he has suffered damage, being various mental illnesses, but also loss of reputation (presumably from the defamations from the Gregurevs).

33    Thereafter, in the claims for relief in the s 18 claims, injunctions are sought to remove all defamatory allegations made by the Gregurevs from Google platforms and Google search engines. This claim for relief, although not clearly founded in underlying allegations, reflects the earlier assertions of the failure of Google to remove these defamatory matters as indicative of false and misleading behaviour in making representations to him about what the services he would obtain from Google would be: the representation that its services would be desirable and vital to the internet age, which would see him enabled to enter a business, when, in fact, the refusal to take down from blog platforms and search engines the defamatory matters put up by the Gregurevs, both indicated the contractual undesirability of Google’s product, and also the damage to his reputation in some fashion which made it impossible to undertake the business that had been represented to him as one which he was able to undertake.

34    The claim for unconscionable conduct is based on an asserted poor performance by Google of a consumer contract. The particulars to this are set out under para 35 which are directed to the failure of Google (said to be unconscionable) to disable the defamations made about him by the Gregurevs.

35    Paragraph 36 of the pleading refers to Google’s excuses not to disable the Gregurevs’ defamations and asserts that Mr Rana’s privacy has been interfered with by Google and by the Gregurevs under s 6 of the Privacy Act 1998 (Cth), and also Google’s privacy policy. In the damages claims in this pleading, Mr Rana says he has suffered aggravation of mental illness as well as the “loss of his reputation in the social media digital community aka Google reputation”. In the context of this pleading, this can be taken as an assertion of the effects of the publication by the Gregurevs and the unconscionable refusal of Google to take them down from platforms and the internet.

36    The question whether the overlap of common factual matters and complaints leads to a wider matter with two separate claims or whether there are two quite separate and distinct matters or controversies is a matter of practical judgment. The well-known passage from the joint judgment of Gummow and Hayne JJ in Re Wakim 198 CLR at 585-586 [139]-[142] (which we do not set out here) is critical. Their Honours recognised that question will have to be decided on limited information. One can add here that it may have to be decided on defectively expressed information and pleading. What is relevant is “what the parties have done, the relationships between or among them, and the laws which attach rights or liabilities to their conduct and relationships”: Fencott 152 CLR at 608. There is but a single matter if different claims arise out of common transactions and facts or a common substratum of facts: Phillip Morris 148 CLR at 512. Notwithstanding that the facts on which the claims depend do not wholly coincide: Fencott 152 CLR at 607. The common transaction and facts or common substratum of facts are those that the different claims arise out of, not are composed of. There may be various ways of otherwise describing the matter. It is sometimes put in the negative: whether the claims are completely disparate, completely separate and distinct, or distinct and unrelated. Here, if our ascertainment of the complaints of Mr Rana is correct, he has a number of complaints: against the Information Commissioner under the Administrative Decisions (Judicial Review) Act for not investigating Google, against Google under the ACL for the quality of their contracted services and their asserted unconscionable conduct, which included the refusal or the unwillingness of Google to remove defamations made by the Gregurevs, and the underlying defamations by the Gregurevs.

37    In our view, it cannot be said that these are distinct and separate matters. They are less than coherently pleaded, but one can discern a common substratum of facts, from which all the claims arise: the defamations by the Gregurevs.

38    As a matter of practical judgment the ACL claims and the defamation claim form part of the same justiciable controversy. It could not be said that they are colourable in the sense that they were made improperly to fabricate jurisdiction. An embarrassing pleading does not make a claim colourable. It is also clear that the negligence claim is part of this same controversy, it being founded on Google’s failure to remove the alleged defamatory material. This conclusion means that the entirety of the matter is properly within federal jurisdiction. The striking out of the ACL pleas that attracted that jurisdiction does not mean that this Court loses its jurisdiction to resolve the remainder of the controversy: Kerin 44 FCR at 481. Her Honour’s conclusion that the striking out of the ACL pleas deprived this Court of jurisdiction was in error.

39    Even if, contrary to the view expressed above, the ACL claims do not form part of the same matter as the defamation claims, there are additional sources of jurisdiction applicable in this proceeding to support the defamation complaint. When this proceeding was commenced, it contained a claim against the Commonwealth for judicial review under s 5 of the Administrative Decisions (Judicial Review) Act of a decision made by the Information Commissioner under the Privacy Act. It is clear that the essential subject matter underlying the claim against the Commonwealth was also the same as that underpinning the other claims made in the proceeding: that is, the material allegedly authored by the Gregurevs, the publication of which could be attributed to Google. (It should also be noted that a renewed judicial review claim is made against the Commonwealth in the proposed pleading, though leave has not been granted to join the Commonwealth again as a respondent.) This claim against the Commonwealth (even though resolved) being part of the same controversy, also operates to bring the entirety of the matter into federal jurisdiction. The fact that the judicial review application was resolved by consent does not mean that this Court loses jurisdiction over the defamation or negligence claims: Moorgate 145 CLR at 476; Kerin 44 FCR at 481-482; Burgundy Royale 18 FCR at 219. It is also clear that even if there were no non-colourable federal claim against Google, the claim against the Commonwealth would support the Court having jurisdiction over the common law claims against Google as part of the same justiciable controversy: Re Wakim 198 CLR at 587 [145]. Thus, the claim made against the Commonwealth earlier in the proceedings supports this Court’s jurisdiction over the defamation claims.

40    Finally, it may well be the case that the defamation action in isolation is within the jurisdiction of this Court, by the conferral of jurisdiction made by s 9(3) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth). Establishment of jurisdiction under this provision may be seen to require an allegation to be made by the appellant that the defamatory material was published in the Australian Capital Territory or the Northern Territory: see Crosby v Kelly 203 FCR 451. The electronic nature of the alleged publication suggests that would not be a difficult allegation to make, and in the original pleading the appellant alleged that the material had been read by nine identified persons, one of whom was in Victoria, and downloaded by more than 6,000 people in Australia and over 67,000 people globally.

41    The inadequacy of the ACL pleas in the proposed pleading was the justification for the primary judge’s ultimate conclusion. Her Honour’s decision to strike out the ACL pleas and not grant leave to re-plead was reached having regard to the concession made by the appellant that he could not improve the pleading. This should not have led, however, to the dismissal of the entirety of the proceeding. The ACL claim was sufficient to give jurisdiction over the entirety of the matter, even in its inadequately pleaded form, and even if it were not considered part of the same matter there were also other bases of jurisdiction available.

42    In the light of the conclusion that this Court has jurisdiction, the matter should be remitted to determine whether leave to commence, leave to serve outside the jurisdiction and leave to join additional respondents should be granted, or whether aspects of the claim need to be re-pleaded. Whether leave should ultimately be granted to re-plead the ACL claims is a matter properly for the primary judge. Her Honour has taken the view that it should not be granted. We make no criticism of that approach given the surrounding circumstances.

43    It should also be noted that the appellant filed a number of interlocutory applications in this appeal dated 13 July 2017, 31 July 2017 and 2 August 2017, respectively. The application filed on 13 July was dealt with by White J in orders made on 26 July 2017. The other two applications seek orders with which, in the light of the conclusions reached, it is unnecessary to deal, save for their dismissal.

44    Given that the difficulty in this case has in no small part arisen from the lack of clarity in the pleading it may well be appropriate that, if the case proceeds against Google, the costs of the appeal are never visited upon Google. Whether this is appropriate perhaps should lie within the discretion of the primary judge in due course.

45    Accordingly, we would make the following orders:

1.    The appeal be allowed.

2.    The orders of the primary judge made on 25 January 2017 be set aside.

3.    The interlocutory applications dated 31 July 2017 and 2 August 2017 be dismissed.

4.    The matter be remitted to the primary judge for case management and for its further conduct otherwise.

5.    The costs of the application for leave to appeal and the appeal be hereafter within the discretion of the primary judge.

Associate:

Dated:    28 September 2017