Federal Court of Australia

Rana v Google Inc [2021] FCA 1360

ORDERS

THE COURT ORDERS THAT:

1.    The application by the applicant for leave to serve the originating application and document entitled 'Final Substituted Statement of Claim' on each of the first, second and sixth respondents is refused.

2.    The application for an order under s 21 of the Defamation Act 2005 (SA) in respect of the claim in these proceedings is refused with liberty to bring a further application.

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

REASONS FOR JUDGMENT

COLVIN J:

1    Mr Rana has commenced defamation proceedings against six respondents. As to three of those respondents, Google Inc, Automattic Inc and Microsoft Corporation Inc he seeks leave to serve the proceedings out of the jurisdiction. As to two other respondents, Ms Darda Gregurev and Ms Nina Gregurev he seeks leave to serve the application on them pursuant to s 21 of the Defamation Act 2005 (SA). Mr Rana was invited to make written submissions in support of his applications and was afforded an opportunity for the matters to then be listed for oral argument or for the applications to be dealt with on the papers. Mr Rana indicated that he was content for his applications to be dealt with on the papers.

2    Mr Rana appears in person and has prepared the Court documents without legal assistance. Allowing for those limitations, the originating application is difficult to understand. What is evident is that it concerns events that have occurred 'from end of 2007 to now ongoing'. It does not identify any particular publication but rather complains about 'all defamatory publications'. It refers to an alleged breach of an agreement previously made and 'facilitated' by the Office of the Australian Information Commissioner'. It has numerous claims for damages, aggravated damages and costs. In particular, it claims (a) general damages for alleged defamation of $250,000 'on rolling, and accrual basis'; (b) aggravated damages for alleged defamation and negligence of $250,000 'on rolling basis that accrues and/or cumulatively'; and (c) punitive or exemplary or vindictive damages of $1,000,000 'on rolling basis accrued with other causes of action'. There are separate claims alleging that documents were stolen, there have been breaches of confidentiality in relation to medical information, army service and intelligence service overseas. There is a further claim for unconscionable conduct and alleged breach of the Privacy Act 1988 (Cth). Overall, the document does not conform to usual practice.

3    In addition there is a document entitled 'Final Substituted Statement of Claim' (Claim). The claims runs to 48 pages and some 119 paragraphs. It attaches documents in which Mr Rana has complained about information published on certain blog sites. It is difficult to discern from the Claim any coherent or recognisable articulation of the material facts that might support a cause of action. The Claim begins in the 1990s with the following:

Applicant was the confider of his sensitive documents to Darda and Nina Greguev [sic] duo s. 90 of the 'Act') from 1990 to 1995 for them to learn about mental history, and about courts, which was a period Darda was investigating ways to divorce her husband Frank within Catholic Church.

4    There is then a recitation of events which appear to relate to a previous claim about alleged publication of confidential information and attempts by Mr Rana to remove that information from 'search engines, cookies, metadata, autocomplete compilation programs, and algorithms from end of 2007 and ongoing now'. However, the Claim does not proceed with any discernible chronology of relevant events.

5    There is a reference to an alleged publication on 14 October 2012 and a financial settlement reached on 26 August 2020. There appear to be respects in which it is said that the financial settlement agreement was breached but the precise respects in which that is said to have occurred are not readily apparent.

6    There is a claim that certain of the respondents took unconscientious advantage of Mr Rana in releasing certain confidential information. How and why that is said to have occurred is not apparent.

7    It is then said that the applicant comes from 'the nobility of Nepal and India with population exceeding 1.3 billion people, and has been frowned upon as a laughing stock, which is in these two national Hindu and Buddhist communities'.

8    There are claims about the extent of business operations of Google, Automattic and Microsoft. There is a reference to requests to take down information and steps taken with the Office of the Australian Information Commissioner.

9    There is a reference to alleged publications that were previously disabled and have since 'come back alive'. Then there is a series of publications that are identified by an https address. Their publication is not attributed to any particular party and various claims are made without discrimination against all respondents concerning their publication. Alleged defamatory imputations in respect of each publication are specified and damages are claimed. Were it not for the earlier statement indicating a history extending back a considerable period and the failure to specify when and by whom the publications are alleged to have been made there may be discernible from these later aspects of the Claim the general basis for a complaint about alleged defamatory publications on various websites, blogs and chat sites. However, in context, it is difficult to understand the precise nature of the claims and against whom they are made. What is clear is that the events complained about include matters that occurred many years ago. The claims are not confined to respects in which publications have 'come alive'. And the claims extend well beyond any claim of defamation.

10    Having read the application and the Claim, I find the precise subject matter of the Claim, the facts upon which it is based and the legal basis for the claims within it to be obscure at best. The documents are expressed in a form that would impose an undue and unreasonable burden upon any respondent to try and comprehend the precise nature of the case that is alleged and the extent to which it is based upon recent events and the respects in which those events are said to give rise to liability on the part of a particular respondent. Further, the material indicates that there has been a previous dispute which was resolved but the allegations that are made seem to reach back to restate those earlier claims. It would be unfair and unduly prejudicial to require any respondent to answer claims expressed in the terms stated in the application and the Claim. In short, they are an abuse of the Court's process in the technical sense of that term. It would vex and oppress the respondents to have to respond to the application and the Claim.

11    In Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 at 564 (Mason CJ, Deane, Dawson and Gaudron JJ) it was said that on an ex parte application for leave to serve out of the jurisdiction the court should not grant leave unless it was positively persuaded that it should do so and:

Plainly, it should not be so persuaded unless the plaintiff satisfies it that the case is of the relevant category and that the proceedings would not be subsequently stayed as an abuse of process on form non conveniens grounds or for some other reason. In such a case the onus should remain on the plaintiff on a subsequent application to set aside the service outside the jurisdiction. Otherwise, the ex parte order for service outside the jurisdiction, if onus of proof were to prove decisive, would confer an enduring advantage upon a plaintiff notwithstanding that the expanded evidence on a contested application to set aside service indicated that the applicant had not been entitled to that ex parte order.

12    Given the state of the application and the Claim, I am not satisfied that the proceedings in the form in which they have been commenced would not be stayed as an abuse of process for the reasons that I have given. Further, by reason of the terms in which the application and Claim are expressed it is not possible to determine whether there is a good arguable case to support the proceedings. The affidavits of Mr Rana do not assist in that regard. It is not for the Court to trawl through the material presented to try and determine whether there may be some basis for a claim amongst everything that has been deposed to by an applicant. The submissions filed by Mr Rana do not assist.

13    Therefore, even assuming that the conditions in r 10.43(4) of the Federal Court Rules 2011 (Cth) are satisfied (about which it is not possible to express a view) there is, to adopt the language of Beach J in Trina Solar (US), Inc v Jasmin Solar Pty Ltd [2017] FCAFC 6; (2017) 247 FCR 1 at [117], a compelling reason why the application for leave to serve out of the jurisdiction should be refused.

14    For those reasons, leave to serve the proceedings out of the jurisdiction should be refused in the exercise of the Court's residual discretion as to whether to make such orders.

15    I note that the applicant placed reliance upon aspects of the decision by White J in Rana v Registrar Cridland [2021] FCA 848 at [19]-[24]. Those parts of the decision outline the history of other proceedings brought by Mr Rana in this Court. They also considered the application and the pleadings of the applicant in the Claim. As to those pleadings, his Honour said at [24]:

However, despite the inadequacies in the manner of pleading, the claims and causes of action (or at least claimed causes of action) which the applicant wishes to pursue are reasonably apparent. These are:

(a)    a claim for damages for defamation against all respondents other than Nina Gregurev in respect of the publication on the websites of Google Inc, Automattic Inc and Microsoft Corporation Inc of allegedly defamatory statements made in blogs by Dr Duffy and Darda Gregurev. The applicant accepts that s 21 of the Defamation Act 2005 (SA) (s 23 of the Defamation Act 2005 (NSW)) applies to his claim so that he needs leave to bring this claim. The claims against the respondents relate to blogs said to have been published on 1 October 2020, 13 October 2020 as well as earlier publications on 2 April and 29 May 2009;

(b)    a claim for injunctions restraining the publication by the respondents of the defamatory material (this claim is not made against Nina Gregurev);

(c)    a claim for a declaration that Google Inc is in breach of a Conciliation Agreement facilitated by the Office of the Australian Information Commissioner - although it is unclear, I infer that it may have been this agreement which led to the discontinuance of the 2014 proceedings on 14 August 2020;

(d)    a claim for damages for negligence against all respondents other than Nina Gregurev;

(e)    a claim against all respondents for unspecified relief in respect of alleged breaches of claimed obligations with respect to use of the applicant's confidential information;

(f)    a claim for unspecified relief in respect of alleged unconscionable conduct arising from alleged breaches of s 37 of the Privacy Act 1988 (Cth) and ss 20 and 21 of the ACL; and

(g)    a claim of undue influence, although the conduct to which this claim refers is not altogether clear.

16    However, the question at issue before White J was fundamentally different in character to that which arises on the present application. His Honour was concerned with a decision by the Registrar to refuse to accept for filing documents that included the application and the Claim. The reason given by the Registrar for doing so was that after careful consideration of the documents 'it is not clear that a viable cause of action has been identified that would enliven the jurisdiction of the Federal Court of Australia. In my view the documents are an abuse of process of the Court and/or are frivolous or vexatious'. Therefore, upon the review of the decision of the Registrar, the question was whether the documents disclosed a viable cause of action that was within jurisdiction.

17    Significantly, the power exercised by the Registrar did not extend to adjudicating under the substantive law whether an application was an abuse of process (or was frivolous or vexatious). As was explained in Nyoni v Murphy [2018] FCAFC 75; (2018) 261 FCR 164 at [38]:

[A] Registrar acting under r 2.26 does not have power to adjudicate under the substantive law whether an application that a party seeks to bring is an abuse of process (or is frivolous or vexatious). The Registrar has no judicial power to determine substantively whether a claim must be dismissed because it is an abuse of process (or is frivolous or vexatious). Rather, r 2.26 is the means by which an administrative requirement is expressed that all documents filed in the Registry must not in their form and content (irrespective of any substantive assessment of their merit) be an abuse of the process of the Court or frivolous or vexatious …

18    The above passage was cited by White J in undertaking the review of the Registrar's decision to refuse to accept the documents for filing: at [11]. Ultimately, his Honour found that there was jurisdiction on the part of the Court to entertain defamation claims of the kind articulated. For that reason, the application to review the decision of the Registrar was allowed and the decision refusing to accept the documents for filing was set aside.

19    The question that now arises concerning service out of the jurisdiction calls for a judicial determination as to whether the documents are an abuse of process in the form in which they are expressed and whether they demonstrate a good arguable case. For reasons I have given, the documents fail to meet those requirements which must be established in order for leave to be given to serve the documents out of the jurisdiction.

20    As to s 21 of the Defamation Act, the written submission advanced by Mr Rana is to the effect that he seeks permission to continue the litigation against all the respondents under that provision. Section 21 is expressed in the following terms:

(1)    This section applies to a person who has brought defamation proceedings for damages, whether in this jurisdiction or elsewhere, against a person (a previous defendant) in relation to the publication of a matter.

(2)    The person may not bring further defamation proceedings for damages against a previous defendant or an associate of a previous 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.

(3)    A person is an associate of a previous defendant if, at the time of the publication to which the previous defamation proceedings related, the person was -

(a)    an employee of the defendant; or

(b)    a person publishing matter as a contractor of the defendant; or

(c)    an associated entity of the defendant (or an employee or contractor of the associated entity).

21    Therefore, reliance upon that provision by Mr Rana indicates that he is seeking to complain about the same or other publication of matters that have been the subject of previous proceedings. However, in his written submissions, Mr Rana provides no explanation as to the circumstances supporting the application for leave. Instead, he makes reference to provisions concerned with whether the proceedings have been commenced outside the applicable limitation period and whether he suffers from a mental disability that is relevant to the way in which that period is to be determined. Those are separate matters.

22    Therefore, Mr Rana has not demonstrated a basis upon which am order should be made under s 21 of the Defamation Act. It follows that it is not necessary to consider the matters to which Blue J referred in Duffy v Google LLC [2019] SASC 157 at [122]ff.

23    For those reasons, the applications are refused.

Associate:

Dated:    3 November 2021