Federal Court of Australia

Allison v Google LLC [2021] FCA 186

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to r 10.43 of the Federal Court Rules 2011 (Cth), the applicant has leave to serve the originating application filed 23 December 2020 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” concluded at The Hague on 15 November 1965, by sending it by international registered post, with an acknowledgement of receipt to be provided to the applicant, 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.    The applicant is to provide a copy of the following material to the respondent by sending it to the respondent in the same manner described in order 1:

(a)    the affidavit of Scott Douglas Allison filed 23 December 2020;

(b)    the affidavit of Julia Frances Marler filed 23 December 2020;

(c)    the affidavit of Julia Frances Marler filed 24 February 2021; and

(d)    a copy of this order.

3.    The originating application be listed for final hearing at 10.15 am on 23 March 2021 in Brisbane.

4.    The applicant file written submissions (not exceeding 10 pages) in support of the originating application by 4.00 pm on 15 March 2021 and serve the submissions in the same manner described in order 1, or at any address for service provided by the respondent.

5.    The parties have liberty to apply.

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

REASONS FOR JUDGMENT

(DELIVERED EX TEMPORE AND REVISED)

RANGIAH J:

1    The applicant has filed an originating application seeking orders under r 7.22 of the Federal Court Rules 2011 (Cth) (the Rules) that the respondent, Google LLC (Google), produce documents relating to the description of persons who posted reviews of the applicant’s cosmetic medical practice on the “Google Reviews” web page under the names “Jack Stevens” and “Jason Turnball”.

2    The application presently before the Court is an interlocutory application seeking, pursuant to r 10.43 of the Rules, leave to serve Google outside Australia with the originating application.

3    The applicant contends that the Google reviews are not genuine reviews and are capable of giving rise to causes of action in defamation, or injurious falsehood, or misleading or deceptive conduct contrary to the Australian Consumer Law. The applicant deposes that he has not had any patient named “Jack Stevens”, is not aware of any patient associated with a person named “Jason Turnball”, and is not aware of the circumstances described in the reviews. He believes that the person or persons making the reviews have used pseudonyms, and deposes that he is unable to ascertain the identity or identities of the person or persons making those posts. He contends that Google is likely to have control of documents which would assist to ascertain their identities.

4    Google is located in the United States of America (USA), so it is necessary to obtain leave to serve the originating application outside Australia in accordance with r 10.43 of the Rules. Rule 10.43 was considered by Murphy J in Kabbabe v Google LLC [2020] FCA 126, where similar orders were sought against Google. His Honour held, relevantly:

3    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) of the Rules;

(a)    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));

  (b)    the Court has jurisdiction in the proceeding (r 10.43(4)(a));

  (c)    the proceeding is of a kind mentioned in r 10.42 (r 10.43(4)(b)); and

(d)    the applicant has a prima facie case for all or any of the relief claimed in the proceeding (r 10.43(4)(c)).

[See also Kukulka v Google LLC [2020] FCA 1229 at [5], per Anastassiou J.]

5    As to the first requirement, Ms Marler, the solicitor for the applicant, deposes that Google is to be served at the address, Google LLC, C/- Custodian of Records, 1600 Amphitheatre Parkway, Mountain View, California 94043, USA. She deposes that the proposed method of service is international registered post. She deposes that the Hague Service Convention applies as the USA is a signatory. She also deposes that service by post is permitted in the USA under the Hague Service Convention, as the USA does not object to service by post under Article 10(a) of that Convention. The first requirement is satisfied.

6    As to the second requirement, the Court has jurisdiction to hear and decide an application for preliminary discovery to ascertain the description of a prospective respondent under r 7.22 of the Rules.

7    As to the third requirement, the proceeding falls within several of the categories set out in r 10.42, including that it is an application under Pt 7 of the Rules. It is enough if the proceeding falls within a single category: Kabbabe at [11]. I am satisfied that the proceeding is of a kind mentioned in r 10.42.

8    As to the fourth requirement, I am satisfied that the applicant has demonstrated a prima facie case for relief under r 7.22 of the Rules in circumstances where the applicant is unable to ascertain the description of the prospective respondent or respondents and Google is likely to have control of documents that would help to ascertain their description.

9    For these reasons, I will grant the relief sought by the applicant.

10    I will make an order that the hearing of the originating application be listed for 23 March 2021 at 10.15 am. I will make a direction also that the applicant file and serve written submissions (not exceeding 10 pages) in support of the originating application by 4.00 pm on 15 March 2021. I will order that the parties have liberty to apply.

Associate:    

Dated:    11 March 2021