FEDERAL COURT OF AUSTRALIA

Rana v Google Inc [2016] FCA 461

ORDERS

THE COURT ORDERS THAT:

1.    The application for leave to commence the proceedings then as now is stood over to a date to be fixed.

2.    The application to confirm service of the originating application and statement of claim on Google is refused.

3.    The application for leave to serve the originating application and statement of claim (to be amended) is stood over to a date to be fixed.

4.    The applicant is given leave to file by Friday, 19 August 2016 (but not serve, having regard to these reasons for judgment) a proposed amended application and statement of claim, and then to apply in writing to the Registrar within a further seven days for his interlocutory application to be relisted for further hearing.

5.    In the event that the applicant does not file within that time a proposed amended application and statement of claim and/or does not apply in writing to the Registrar within a further seven days for the interlocutory application to be reinstated, the principal application be dismissed.

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

REASONS FOR JUDGMENT

MANSFIELD J:

THE CLAIM

1    This proceeding is driven by Mr Rana’s understandable concern about the publication of what he alleges to be (and what appears to be) defamatory material concerning him on the internet.

2    The second and remaining respondent, Google Inc, is a foreign corporation with its place of incorporation in the United States of America (Google).

3    The claim against the first respondent, the Commonwealth of Australia concerned the decision of the Commonwealth by an officer of the Australian Privacy Commissioner on 2 October 2014 under s 41 of the Privacy Act 1988 (Cth) not to investigate a complaint made by the applicant against Google concerning his allegation that Google had infringed his privacy, by permitting to remain on the internet in a platform provided by Google defamatory material against him, despite his detailed complaint. That proceeding under s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) was resolved. Orders by consent disposing of the claim were made on 2 February 2015.

4    There remains the claim against Google. Both in the originating application, and in the statement of claim, Mr Rana identified four causes of action against Google. The first is a claim for defamation at common law, and under the Defamation Act 2005 (SA). The second is a claim for negligence, based upon a duty of care allegedly owed by Google to him and the breach of that duty. The third is a claim for contravention of s 18 of the Australian Consumer Law 2010 (ACL) based upon alleged misleading and deceptive conduct by Google. The fourth is a claim for contravention of ss 20 and 21 of the ACL based upon alleged unconscionable conduct.

5    It is fair to observe that the originating application insofar as it makes allegations concerning Google, running to some 92 paragraphs and some 26 pages is considerably longer than it might properly have been, and the statement of claim also concerning the allegations against Google, running to 85 pages and 169 paragraphs similarly has that quality. Mr Rana points out that, as a litigant in person, he has difficulty in accurately and succinctly pleading the case.

6    Subject to consideration of Mr Rana’s contention as to service referred to below, the proceeding has not been served on Google. Google has not appeared, although it appears from some correspondence exhibited to an affidavit of Mr Rana, that it has received notice of the application from him by being provided with a copy of the application and the statement of claim and other documents.

7    When the matter came on for directions on 20 February 2015, Mr Rana by interlocutory application of 3 November 2014, sought orders:

(1)    giving him leave to commence these proceedings then as now claiming defamation against Google pursuant to s 21 of the Defamation Act 2005 (SA), because he had previously brought and then discontinued such proceedings;

(2)    giving him leave to “confirm the serving of the originating documentation” on Google, as a foreign corporation outside Australia, effectively (he asserts) pursuant to r 10.43(1)(b), r 10.43(6) and (7), and r 10.43(1)(c) of the Federal Court Rules 2011 (Cth) (the Rules); and

(3)    giving him leave “to confirm the serving” of the originating material on Google pursuant to r 10.02(1)(a) of the Rules.

8    In his interlocutory application he also sought an extension of time to file and serve additional material relating to the provision of the originating application, or its service, upon Google by showing the tracking report of the receipt of material sent to Google by mail. That order was no longer necessary, as he has now filed an affidavit of 2 February 2015 showing that that has occurred.

9    Google, as noted, has not filed any notice of an address for service within the jurisdiction and did not appear at the directions hearing.

THE PREVIOUS CLAIM

10    Mr Rana, as noted above, had previously brought proceedings against Google, in addition to claims against two individuals, Darda and Nina Gregurev (the Gregurevs) and Google Australia Pty Ltd in Federal Court proceeding SAD 98 of 2012 (among other claims), for the same or broadly the same defamatory conduct he now alleges. By judgment given on 7 February 2013 in that matter: Rana v Google Australia Pty Ltd [2013] FCA 60, I dismissed the application against Google Australia Pty Ltd as there was no demonstrable or arguable cause of action against it.

11    Mr Rana at that time was given leave to file and serve on the Gregurevs within a specified period a further amended application and further amended statement of claim, in the light of the reasons in that judgment about the flaws in the then existing application and statement of claim. He was also given notice, by the reasons for judgment, that it was necessary for him to seek leave to serve the proceedings on Google overseas, it being a foreign corporation, and that the question of whether that leave should be given should await the filing and service of any further amended application and further amended statement of claim. An application of the Gregurevs to summarily dismiss the claim was then also stood over to a date to be fixed. Directions were given for the filing and service of the proposed further amended application and the proposed further amended statement of claim and supporting evidence.

12    As that judgment indicates, I accepted at [79] that the applicant may arguably have a claim against Google for the continued presence of the defamatory material in the websites supported by Google’s server. However, I did not then give leave to serve the proceedings on Google, but made the conditional orders referred. The then amended application and amended statement of claim were not in an appropriate form. I also said at [82] that the conditional orders were made, having regard to the quality of the pleading and the absence of any clearly specified amount of the claim and the costs which would be incurred by Google in responding to it.

13    Mr Rana did not pursue the opportunity which those directions allowed for. Following the judgment, on 12 February 2013 he simply discontinued that proceeding. The notice of discontinuance records that it was being discontinued “due to ill health” and a medical report of 22 January 2013 was provided with it.

THE PRESENT ALLEGATIONS AGAINST GOOGLE

14    The initiating application against Google comprises 73 paragraphs over 18 pages. It is hard to synthesise. It breaks the claim into three headings (each of the causes of action referred to above, the third and fourth claim jointly under the heading “Breaches of the Australian Consumer Law by the 2nd Respondent”).

15    The claim in defamation first identifies unresolved legal issues, which (removing the rhetoric) are whether, in the circumstances alleged, Google is liable to him as publisher of defamatory material either directly or by maintaining or permitting the maintenance of or by failing to remove the allegedly defamatory material.

16    It appears the applicant complains that Google research engines host and/or enable allegedly defamatory material about him to be published on certain websites by the Gregurevs. That material variously has been on the websites since 30 September 2007.

17    The applicant alleges that he has requested Google to remove the material he complains of on many occasions, including on 4 July 2014 without any response, other than an automated response of 18 July 2014. However, he also asserts that a response was received from “removals@google.com” of 13 August 2014 which (he says) disputed the documents provided to Google were “a valid legal process” so no action would be taken. He also refers at length to a response of 20 July 2014 (which, at least from the pleading, is not readily understandable). Although that claim is headed “Cause of action in the tort of defamation”, the relief sought is for damages under s 33 of the Defamation Act 2005 (SA).

18    The claim for negligence is based upon the same factual allegations. The application says that he has applied to Google to remove from its platforms the allegedly defamatory material, that Google has a duty of care to him to prevent damage to his reputation, that it has been breached by Google’s refusal or failure to remove that material, and that as a result he has suffered damage, namely the adverse consequences of that continued publication of the defamatory material and aggravation of his particular illnesses. Some of the particulars mix consequence with cause (eg the alleged failure “to adequately control Gregurev”).

19    The claims for breach of ss 4 and 18 of the ACL are also based upon the same factual allegations. The application includes a little more detail, namely that he has reported to Google in accordance with its guideline in a “blogger’s content policy” to no avail. Reference is made to paragraph numbers which do not exist in the application. The complaint is that Google, in response to those reports “does nothing”. It is also said that he sent emails to “removals@google.com” as required by “its contents policy”, but nothing has occurred. The concluding parts of this section of the application include the following at [84] that Google

… revoked to remove all the abuses arbitrarily to provoke the Applicant in this Court with a grand design again to make him a vexatious litigant.

20    He says that Google did not remove the material complained of, but “asked [the applicant] to show reasons why the above abuses should be removed on every occasion”, and separately refers to a response from Google to his email of 18 July 2014 seeking details of why the material complained of was defamatory or illegal. Reference is also made to paragraphs which do not exist in the application. There is also an assertion that the decision in Bleyer v Google [2014] NSWSC 897 does not preclude his claim (together with reference to other decisions).

21    The unconscionable conduct is asserted in a very general, and not necessarily relevant way: the imbalance in the bargaining position of the applicant and Google; the conditions imposed on the applicant, as they were not reasonably necessary for the protection of the legitimate interests of Google; the difficulty the applicant had in understanding Google’s documents, the undue pressure and “unfair tactics” of Google by not removing the material, and the cost to the applicant by Google to remove the material.

22    The application was supported by the applicant’s affidavit of 27 October 2014. It exhibited three documents, none of which is presently relevant. They relate to communications between the applicant and the Australian Information Commissioner and the Ombudsman.

23    It was also accompanied by the very extensive Statement of Claim. It is in four parts. The second regarding the defamation claim (69 pages and 115 paragraphs), the third regarding negligence (4 pages and 24 paragraphs), and the fourth regarding the ACL (5 pages and 14 paragraphs) concern Google. The third and fourth sections are, in essence (the numbering differs slightly) the same as the corresponding sections of the application.

24    The second section is much longer than the corresponding sections in the application. The reference to the allegedly defamatory material of the Gregurevs is much more extensive. Relevantly, the allegations against Google are the same, partly repeated in relation to different sections of the allegedly defamatory material. In particular, the assertions in the application at [32]-[54] are repeated in the statement of claim at [110]-[132].

25    It is not therefore necessary at this point separately to consider the statement of claim. As noted above, it is apparent that the material complained of is clearly defamatory of the applicant (subject to any response of the Gregurevs).

26    The interlocutory application for leave to institute the claim, and to serve the proceeding on Google in the United States, is supported by written submissions of the applicant of 3 and 20 November 2014, and his affidavit of 1 December 2014. There is a later outline of submissions entitled “Final Outline …” of 21 January 2015.

27    That affidavit exhibits firstly an undated email (presumably of about 20 August 2014, as it has a 60 day calculation to 21 October 2014) acknowledging a parcel by the “International Online team” of what I infer is Australia Post for the United States Postal Service, which is being on-sent for follow-up; secondly a follow-up email from the applicant of 22 November 2014 apparently to Australia Post; and thirdly an acknowledgment from Australia Post saying that it will have “our investigation team contact the overseas postal authority”.

28    The next document filed is another affidavit of the applicant of 16 January 2015. At least the affidavit exhibits documents to which the application (and the statement of claim) otherwise refers in an unsatisfactory manner.

29    They include an email of 16 September 2014 from “removals@google.com”. In respect of five web sites, “the Google team” responds:

Please explain in as much detail as possible what statements you believe to be false and/or defamatory and the specific reasons why these statements could be considered false and/or defamatory in the context of the page as a whole. If possible please identify the reason you believe the text or content violates your rights or is illegal under applicable law. It would be helpful if you could cite the specific law(s) of your country you believe to be applicable to the content in question.

In the event we do not receive further information from you as requested above, we will be unable to take any further action on your removal request. As always, we encourage you to resolve any disputes with the author of the content in question before directing any complaint to Google.

30    The next exhibit is from the same source of 6 December 2012. It says with respect to one of the websites:

Thanks for reaching out to us.

At this time, Google has decided not to take action on the following URL(s):

…

Google Sites host third-party content. It is not a creator or mediator of that content. We encourage you to resolve any disputes directly with the individual who posted the content.

If you cannot reach an agreement and choose to pursue legal action against the individual who posted the content, and that action results in a judicial determination that the material is illegal or should be removed, please send us the court order seeking removal. In cases where the individual who posted the content is anonymous, we may provide you with user information pursuant to a valid third party subpoena or other appropriate legal process against Google Inc.

31    The balance of the affidavit refers to attempts to send materials relating to this action to Google (including sending the materials to Google Australia Pty Ltd). On that basis, the applicant seeks an orders to confirm service and for summary judgment in default of appearance. He says (incorrectly) that he has “tried everything as required by this Court” to serve Google. The Court has made no order on his interlocutory application, including no order giving leave to serve the proceeding (if valid) on Google.

32    The next affidavit of the applicant, of 23 January 2015, annexes a letter from solicitors for Google Inc of 14 January 2015. It makes plain that Google Inc has instructed only a confined response: it points out the course of the previous proceeding, and suggests this proceeding is to avoid the consequences of the applicant not pursuing the previous proceeding. It requests the applicant to remove Google Inc as a party. The applicant disputes all its assertions.

33    The next affidavit of the applicant, of 3 February 2015, entitled “Ultimately last Affidavit …” does not advance his position. He confirms having sent to the solicitors for Google (who, as noted, were instructed only for a limited purpose) previous documents. He also annexes a letter to them of 27 January 2015.

34    Finally, a further affidavit of the applicant of 6 February entitled “Ultimate supplement last Affidavit …” relevantly annexes a letter from his general practitioner to his psychiatrist of 5 February 2015. It comments on the quality of previous medical diagnosis and prognosis, and refers the applicant to the psychiatrist. It notes briefly the applicant’s concerns about the publication of the defamatory material, and the problems the applicant has had in relation to serving Google which “has caused him to be very emotionally irrational in recent times”.

CONSIDERATION OF INTERLOCUTORY APPLICATION

35    The applicant accepts that he requires leave, then as now, under s 21 of the Defamation Act 2005 (SA) to have instituted this claim. It is in the following terms:

21 – Permission required for further proceedings in relation to publication of same defamatory matter.

If a person has brought defamation proceedings for damages (whether in this jurisdiction or elsewhere) against any person in relation to the publication of any matter, the person cannot bring further defamation proceedings for damages against the same defendant in relation to the same or any other publication of the same or like matter, except with the permission of the court in which the further proceedings are to be brought.

36    The consideration of that application is deferred, because in my view there are certain further steps necessary before determining what, if any, further orders should be made on the interlocutory application.

37    The question to be addressed involves in my mind, in the particular circumstances, consideration of whether the existing originating application and statement of claim constitute an adequate pleading, and if not whether the appropriate order is simply to strike them out but to give the applicant the opportunity to re-plead his claims or some of them, or to refuse the application.

38    A separate consideration is whether the claims in negligence and under the ACL plead facts which are capable of sustaining the alleged claim for negligence against Google, or are capable of sustaining the proceeding in any event, so that the leave requirement concerns only the defamation claim.

39    Underlying those concerns is that, having regard to the fact that Google is a foreign corporation, it is appropriate for the Court to be satisfied that there is a properly pleaded and arguable case against Google before leave is given to serve the proceeding overseas.

40    For reasons which are evident from my reference to the terms of the application and the statement of claim, I do not regard those documents as sufficiently clear and precise as to fairly require a respondent party, relevantly Google, to plead to them.

41    For that same reason, I presently refuse leave to Mr Rana to commence the proceedings in defamation, and I would also presently refuse him leave to serve the proceedings on Google overseas. That applies generally to his claims.

42    If the application and the statement of claim were in proper form, but leave to make the defamation claim was required, and subject to the succeeding paragraph of this judgment, I would nevertheless have regarded the proceeding as competent in relation to the three other causes of action on the basis that s 21 of the Defamation Act 2005 (SA) does not apply except to “further defamation proceedings”. That term is not defined, but s 3 makes it clear that the Act applies to the “tort of defamation”.

43    The reservation expressed in the preceding paragraph is that it is not clear to me that the causes of action for negligence and for breaches of the ACL (misleading and deceptive conduct, and unconscionable conduct) are reasonably available to Mr Rana, based on the facts he alleges. However, it is not necessary to decide those questions.

44    There are three other comments it is appropriate to make. First, it is at least arguable that Google, by not removing the allegedly defamatory material once it is made aware of it, is therefore accountable for its ongoing publication: Duffy v Google Inc [2015] SASC 170. Second, as I have observed, subject to any particular defences of the Gregurevs (or of Google), the material of which Mr Rana complains is apparently defamatory, so the request by “the Google team” of 16 September 2014 is apparently disingenuous, unless it were an automated response. Third, the criteria for granting leave to commence fresh defamation proceedings under s 21 of the Defamation Act 2005 (SA) are not set out in that section. It would be surprising if, where an earlier proceeding was discontinued in understandable circumstances and that a fresh proceeding would not cause any apparent injustice to the proposed respondent, the leave required would not be given. Moreover, in circumstances such as the present, there would appear to be little reason why that leave should not be given then as now. If he proceeds, Mr Rana may be wise to include an affidavit confirming what he said in his notice of discontinuance of the previous claim, and exhibiting the medical report of 22 January 2013.

45    In my view, the orders which are appropriate at present are that, on the interlocutory application of 3 November 2014:

(1)    the application for leave to commence the proceedings then as now is stood over to a date to be fixed;

(2)    the application to confirm service of the originating application and statement of claim on Google is refused;

(3)    the application for leave to serve the originating application and statement of claim (to be amended) is stood over to a date to be fixed;

(4)    Mr Rana is given leave to file by Friday, 19 August 2016 (but not serve, having regard to these reasons for judgment) a proposed amended application and statement of claim, and then to apply in writing to the Registrar within a further seven days for his interlocutory application to be relisted for further hearing; and

(5)    In the event that Mr Rana does not file within that time a proposed amended application and statement of claim and/or does not apply in writing to the Registrar within a further seven days for the interlocutory application to be reinstated, the principal application be dismissed.

46    It is evident from (2) above that, despite the contentions of Mr Rana, I do not accept that this proceeding has been properly served. The starting point, namely the leave of the Court to do so, was simply not given. Whether the steps taken to effect service are relevant to the form of service in the future, when and if leave to serve the proceeding overseas is given, is a matter which might later be addressed.

Associate:

Dated:    6 May 2016