Federal Court of Australia

Barilaro v Shanks-Markovina (No 1) [2021] FCA 789

ORDERS

THE COURT ORDERS THAT:

1.    On or before 16 July 2021, the first respondent file and serve an interlocutory application seeking:

(a)    an extension of time in which to file his defence,

(b)    any strike-out or stay of the proceeding in respect of the imputations in paragraphs 9(a), (b) and (c) of the statement of claim, and

(c)    for the proceeding to be heard by a jury.

2.    On or before 16 July 2021, the first respondent file and serve any affidavits in support of the matters in order 1(a) and 1(b), together with submissions limited to 10 pages.

3.    On or before 21 July 2021, the applicant file and serve any affidavits in opposition to the matters in order 1(a) and 1(b), together with submissions limited to 10 pages.

4.    On or before 22 July 2021, the first respondent file and serve any submissions in reply, limited to 3 pages.

5.    The interlocutory application be listed for hearing on the issues in orders 1(a) and 1(b) on 23 July 2021.

6.    Pursuant to the Federal Court Rules 2011 rr 10.42 and 10.43 the applicant be granted leave to serve the originating application, genuine steps statement and statement of claim on the second respondent in the United States of America in accordance with the Hague Convention on Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters done at the Hague on 15 November 1965.

7.    The applicant serve the originating application, genuine steps statement, statement of claim, affidavit of Paul Svilans sworn 27 May 2021 and a copy of these orders on the second respondent by sending them using registered post to:

Google LLC

C/O Custgodian of Records

1600 Amphiteatre Parkway

Mountain View, California 94043

United States of America

8.    The return date of the originating application as against the second respondent be fixed as 13 August 2021 at the Court in Queens Square Sydney.

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

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT)

RARES J:

1    The applicant, the Hon John Barilaro MP, is the Deputy Premier of the State of New South Wales. He complains that two publications made by the first respondent, known as Jordan Shanks, and published on the website YouTube that Google LLC, the second respondent, administers and operates, carried defamatory imputations about him, including that he was a corrupt con-man, had committed perjury nine times, and had so conducted himself in committing perjury nine times that he should be jailed.

2    Mr Barilaro seeks leave to serve Google out of the jurisdiction in California in the United States of America, where it is incorporated.

3    Mr Shanks earlier today in the case management hearing said that his defence would admit that those imputations were carried by the first matter complained of, being a video entitled ‘bruz’, first published on or about 14 September 2020, and rely on them for a defence of justification and honest opinion.

4    The statement of claim alleges that by making and keeping the matters complained of accessible through the YouTube website, Google is a publisher of the matters. The first matter complained of, according to the affidavit of the solicitor for Mr Barilaro, Paul Svilans, sworn 27 May 2021, at least one person allegedly viewed each of the two matters complained of in the Australian Capital Territory so that, if that is established, the Court will have jurisdiction: Crosby v Kelly (2012) 203 FCR 451.

5    The requirements for service out of the jurisdiction are well settled. In Ho v Akai Pty Limited (in liq) (2006) 247 FCR 205 at 208 [10], Finn, Weinberg and Rares JJ said in relation to the then provision of the Federal Court Rules 1979, which is an analogue of r 10.43 of the Federal Court Rules 2011:

As has been observed on many occasions, the prima facie case requirement has to be met at the outset, usually on an ex parte basis, and without the advantage of discovery and other procedural aids to the making out of a case: see eg Merpro Montassa Ltd v Conoco Specialty Products Inc (1991) 28 FCR 387 at 390. It “should not call for a substantial inquiry”: WSGAL Pty Ltd v Trade Practices Commission (1992) 39 FCR 472 at 476; see also Sydbank Soenderjylland A/S v Bannerton Holdings Pty Ltd (1996) 68 FCR 539 at 549. For present purposes it is sufficient to say that a prima facie case for relief is made out if, on the material before the court, inferences are open which, if translated into findings of fact, would support the relief claimed: Western Australia v Vetter Trittler Pty Ltd (in liq) (1991) 30 FCR 102 at 110. Or, to put the matter more prosaically as Lee J did in Century Insurance Ltd (in prov liq) v New Zealand Guardian Trust Ltd [1996] FCA 376:

What the Court must determine is whether the case made out on the material presented shows that a controversy exists between the parties that warrants the use of the Court’s processes to resolve it and whether causing a proposed respondent to be involved in litigation in the Court in Australia is justified.

6    A cause of action in defamation arises in Australia when material available on the internet is downloaded and so published to the reader in a State or Territory: Dow Jones & Company Inc v Gutnick (2002) 210 CLR 575. Therefore, the proceeding is based on a cause of action arising in Australia within the meaning of item 1 in the table of r 10.42.

7    Mr Svilans deposed that the United States of America, in which Google is headquartered, is a party to the Hague Convention, being the Convention on Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters done at the Hague on 15 November 1965. The central authority in the United States is the Office of International Judicial Assistance, Civil Division, within the Department of Justice. On its website, it has published that there are two possible methods of service in United States. One is to have the central authority in Australia convey to the private contractor engaged by the Department of Justice, ABC Legal Services, for service in the United States under the Hague Convention. The second is by mail.

8    United States federal law does not require service on private individuals or companies to be sent to ABC Legal Services for service to be effective because informal service by mail is permitted. Indeed, in Kabbabe v Google LLC [2020] FCA 126 at [9], Murphy J said:

In Water Splash Inc v Menon 581 U.S. 1 (2017) at 12 the US Supreme Court held that the Hague Service Convention does not prohibit service of process in the USA by direct post to the respondent, and there is nothing in the materials before the Court to indicate that the USA objects to direct postal service of legal process under the Convention. The Practical Handbook [on the Operation of the Hague Service Convention (Permanent Bureau of the Hague Conference on Private International Law, 2006)] states at [204] that a comprehensive list of objecting States is available on the website of the Permanent Bureau of the Hague Conference on Private International Law. Having reviewed that website, it states that the USA does not object to service under Art. 10(a). I proceed on that basis.

9    Mr Barilaro proposes to serve, as the Court sees fit, either using the central authority process under the Hague Convention or by registered post on Google’s address in California. In my opinion, there is no reason why service on Google by registered post is not an appropriate means of serving the originating application, the statement of claim, the orders for service and associated documents.

10    Because Mr Shanks admits that one of the matters complained of conveys the imputations to which I have referred, I am satisfied that, for the purpose of r 10.43, there is a prima facie case that those imputations are, on their face, defamatory, and that Google is a publisher of the matters complained of. I am also satisfied that Mr Barilaro has a prima facie case for some of the relief claimed in the proceeding, being in respect of the publication of the first matter complained of. In addition, Google is a proper or necessary party because each person involved in a publication of defamatory matter is a publisher of it: Webb v Bloch (1928) 41 CLR 331 at 363–365 per Isaacs J.

Conclusion

11    For these reasons, I am of opinion that it is appropriate to order that service on Google be effected by serving the originating application, genuine steps statement, statement of claim, affidavit of Mr Svilans and a copy of the orders that I make today, on Google by registered post at its California address. I will fix the return date for the originating application as against Google for 13 August 2021.

12    In the meantime, I have stood the interlocutory questions between Mr Barilaro and Mr Shanks over to 23 July 2021. Those concern whether or not Mr Shanks should be allowed to file a defence out of time, whether that defence is properly particularised and whether Parliamentary privilege may require the trial on the three imputations to be stayed.

Associate:

Dated:    12 July 2021