Federal Court of Australia

Turnbull trading as Berry Family Law v Google LLC [2021] FCA 1589

ORDERS

THE COURT ORDERS THAT:

1.    The Prospective Applicant be granted leave to file an Amended Originating Application dated 24 November 2021.

2.    Pursuant to rr 10.42 and 10.43 of the Federal Court Rules 2011 (Cth) the Prospective Application has leave to serve:

a.    the Amended Originating Application dated 24 November 2021;

b.    the Affidavit of Mark Stanarevic filed 20 August 2021; and

c.    a copy of these orders,

Google LLC

c/o Custodian of Records

1600 Amphitheatre Parkway Mountain View, California 94043 United States of America

3.    Google LLC give discovery to the Prospective Applicant of all documents that are or have been in Google LLC’s possession, power or control relating to the description of the two prospective respondents, namely:

4.    a.    pseudonym: bob burlington; and user ID:

b.    Pseudonym: ron m and User Id:

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

REASONS FOR JUDGMENT

(Delivered ex tempore, revised from transcript)

ANASTASSIOU J:

Introduction

1    By amended originating application dated 24 November 2021, the Prospective Applicant, James Turnbull trading as Berry Family Law, seeks orders requiring Google LLC, a company incorporated in the United States of America, to provide preliminary discovery pursuant to r 7.22 of the Federal Court Rules 2011 (Cth). The Prospective Applicant seeks discovery of all documents or things in its possession, power or control relating to the description of two anonymous reviewers who have posted defamatory comments about it.

2    In addition, the Prospective Applicant seeks leave pursuant to rr 10.42 and 10.43 of the Rules to serve the amended originating application, the supporting affidavit of Mr Stanarevic filed 20 August 2021, and a copy of my orders dated 24 November 2021 upon the Prospective Respondent in accordance with the “Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters” done at the Hague on 15 November 1965 (the Hague Convention), namely, by registered post to Google’s address. The Prospective Applicant also seeks an order for substituted service to allow service by email to Google’s international civil litigation group email at internationalcivil@google.com.

3    In support of the application, the Prospective Applicant relied on the Affidavit of Mark Stanarevic dated 19 August 2021 and filed 20 August 2021 and written submissions dated 8 November 2021.

4    For the reasons that follow, I give leave pursuant to rr 10.42 and 10.43 of the Rules for the Prospective Applicant to serve the amended originating application and accompanying material on Google in accordance with the Hague Convention. I am also satisfied that there is a proper basis for granting the application for preliminary discovery. However, the application for substituted service is refused.

5    For completeness, the Prospective Applicant also sought leave to amend its originating application pursuant to r 8.21 of the Rules. I grant leave to amend the originating application and have made orders to that effect.

Background

6    The Prospective Applicant is a law firm which relies on the internet as a marketing tool to attract customers across Australia. Accordingly, the Prospective Applicant spends approximately $9,000 per annum on internet advertising and marketing as it is a significant channel by which the firm obtains new revenue.

7    Google operates the platform called Google Reviews on the Internet, which includes reviews about Australian businesses. The Prospective Applicant has been made aware of a number of reviews made about it on Google, which it contends are defamatory. The Prospective Applicant apprehends such reviews have and will continue to adversely affect its professional reputation and business. The Prospective Applicant also contends that the reviews may constitute misleading and deceptive conduct.

8    The URLs of the reviews have been located and the Prospective Applicant has taken reasonable steps to obtain details of the identities of the authors, without success. Accordingly, the Prospective Applicant now seeks to obtain information concerning the identity of the authors. The Prospective Applicant cannot otherwise obtain that information as Google will not provide such information unless required to do so by a Court order.

9    Applications of this kind have become quite common. The Court’s public record reveals Mr Stanarevic has been involved in a number of them and has considerable experience dealing with Google in relation to such matters.

Consideration

10    In Kandola v Google LLC [2021] FCA 1262, Cheeseman J at [6] referred to the requirements that need to be satisfied before orders of the kind presently sought can be made, adopting the principles articulated in Lin v Google LLC [2021] FCA 1113 at [11]-[12] (Wigney J):

In Lin v Google LLC [2021] FCA 1113, Wigney J set out the principles applicable in the present context when considering a similar application for service outside Australia in proceedings involving a preliminary discovery application against Google with a view to a potential future defamation action in respect of anonymised negative business reviews (at [11]-[12]):

11    Rule 10.42 of the Rules provides that, “[s]ubject to rule 10.43, an originating application, or an application under Part 7 of these Rules, may be served on a person in a foreign country in a proceeding that consists of, or includes, any one or more of the kinds of proceeding mentioned in the following table” (emphasis added). An application for preliminary discovery pursuant to r 7.22 of the Rules is an application under Pt 7 of the Rules to which r 10.42 may apply.

12    When rr 10.42 and 10.43 are read together, the result is that Mr Lin must satisfy five requirements for him to be granted leave to serve his originating application on Google in the USA. Those requirements are: first, that his application consists of, or includes, one or more of the kinds of proceedings mentioned in the table in r 10.42 (rr 10.42 and 10.43(4)(b) of the Rules); second, that the means by which he proposes to serve Google in the USA is in accordance with a convention, the Hague Convention or the law of the USA (r 10.43(2) of the Rules); third, his application is accompanied by an affidavit stating the name of the foreign country where Google is to be served and that the proposed method of service is in accordance with a convention, the Hague Convention or the law of the foreign country (r 10.43(3) of the Rules); fourth, the Court has jurisdiction in the proceeding (r 10.43(4)(a) of the Rules); and fifth, he has a prima facie case for all or any of the relief claimed in the proceeding (r 10.43(4)(c) of the Rules).

11    For the following reasons I am satisfied that each of the conditions, concisely stated by Wigney J in Lin, is satisfied in this case:

(1)    The application consists of or includes one or more of the kinds of proceedings mentioned in items 1, 4 and 5 of the table to r 10.42, specifically rr 10.42 and 10.43(4)(b) of the Rules. While none of the proceedings listed in the table in r 10.42 align with an application for preliminary discovery, as explained in Lin, an application for preliminary discovery “can be fairly characterised as an action “based” on the tort of defamation committed in Australia, notwithstanding that the application is not itself that cause of action”. This is because the “claim to be entitled to preliminary discovery is based, at least in part, on the fact that the prospective applicants may have a right to obtain relief, including damages, from someone else (the prospective respondent) for defamation”: see Kandola at [8] citing Lin at [14]-[15].

(2)    The application is accompanied by the necessary accompanying affidavits which includes that Google is based in the USA and that the USA is a party to the Hague Convention. Accordingly the application can be served in the United States by registered post in accordance with the Hague Convention: see Lin at [18] and Kabbabe v Google LLC [2020] FCA 126 at [9].

(3)    The Court has jurisdiction in the proceedings consistent with r 10.43(4)(a) of the Rules: Kandola at [11] citing Lin at [20].

12    I am also satisfied that the Prospective Applicant has a prima facie case in respect of the application for preliminary discovery pursuant to r 7.22 of the Rules. In Kabbabe, Murphy J at [14] set out the following three requirements that a prospective applicant must satisfy in order to obtain preliminary discovery:

(1)    there may be a right for the prospective applicant to obtain relief against a prospective respondent; and

(2)    the prospective applicant is unable, notwithstanding having made reasonable enquiries and taken any other steps reasonably required in the circumstances, to ascertain a description of the prospective respondent; and

(3)    another person, the respondent to the application for preliminary discovery, knows or is likely to know that description, or has or was likely to have had, control of a document that would help ascertain that description.

13    The Prospective Applicant has demonstrated that there may be a right for which they can obtain relief against the anonymous reviewers, namely, by way of a proceeding seeking relief for defamation and / or misleading and deceptive conduct. Having regard to the affidavit of Mr Stanarevic, the Google reviews, and that the Prospective Applicant need only establish that he or she “may” have a right to obtain relief, I am satisfied that the relevant threshold is met: Kabbabe at [15] (Murphy J).

14    Further, there is evidence that the Prospective Applicant made reasonable enquiries to ascertain the identities of the anonymous reviewers, including by searching their client database to see if they could identify either of the reviewers, enquiring as to whether Google provides this information voluntarily and contacting a solicitor who is experienced in this area to enquire how to obtain this information. I am also satisfied that Google is likely to have the requisite control of its data such that it would be of assistance to the Prospective Applicant in identifying the anonymous reviewers.

Substituted Service

15    In relation to the form of service, in an earlier case, Kukulka v Google LLC [2020] FCA 1229, I allowed a form of substituted service by email to Google at internationalcivil@google.com, conditional upon an acknowledgement of receipt being provided to the prospective applicant in that matter.

16    The circumstances prevailing at the time were different than they are now. In particular, at that time in the USA, as in Australia, both countries were experiencing a severe period of the COVID-19 pandemic, and there was evidence before me in that case that service by way of registered mail may have been unduly delayed because of the impact of COVID-19 on logistics, delivery and transportation services. However, that is not pressed in the present application and, accordingly, I see no reason to make any order for substituted service in this instance.

17    What is sought instead is that there be service in accordance with the convention and also by email. I note that Mortimer J recently made orders in Musicki v Google LLC [2021] FCA 1393 allowing for service by registered post and by email. However, it is unnecessary, in my view, to allow for service by email as well in this instance. Whilst I express no concluded view about this issue, it does seem to me that alternative methods of service – that is to say, to include both registered mail and email service – has the potential to lead to some ambiguity as to when service is effected for the purpose of engaging this Court’s jurisdiction.

18    It may not be clear whether the requirements of substituted service are cumulative or several. For instance, one might query whether service can be effected if only one of the means of service are satisfied or whether both conditions of service need to be satisfied. I express no view as to that matter other than to say in the present circumstances I should prefer to avoid any ambiguity of that kind. Accordingly, I shall direct that service be effected in accordance with the Hague Convention by registered post.

Associate:

Dated:    15 December 2021