Federal Court of Australia
B&P Group Pty Ltd v Google LLC  FCA 538
VID 183 of 2022
Date of judgment:
PRACTICE AND PROCEDURE – application for leave to serve originating application seeking preliminary discovery outside Australia pursuant to Div 10.4 of the Federal Court Rules 2011 (Cth) – effective application for leave for substituted service – leave to serve outside Australia granted
Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters done at the Hague on 15 November 1965, Art 10
National Practice Area:
Other Federal Jurisdiction
Number of paragraphs:
Determined on the papers
Solicitor for the Prospective Applicant:
DATE OF ORDER:
THE COURT ORDERS THAT:
1. Pursuant to rr 10.42, 10.43 and 10.44 of the Federal Court Rules 2011 (Cth), the Prospective Applicant has leave to serve:
(a) the Originating Application by a Prospective Applicant for an Order for Discovery, dated 8 April 2022;
(b) the affidavit of Sadi Hamidy affirmed on 7 April 2022; and
(c) a copy of these orders,
upon the Prospective 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” done at the Hague on 15 November 1965, by sending them by international registered post, with an acknowledgement of receipt to be provided by the Prospective Applicant, to the Prospective Respondent’s address at:
C/O Custodian of Record
1600 Amphitheatre Parkway
Mountain View, California, 94043
United States of America
1 The prospective applicant in this proceeding, B&P Group Pty Ltd (trading as Accent Aluminium Windows and Doors) (Prospective Applicant), is a company which produces and manufacture aluminium doors and windows.
2 The Prospective Applicant filed an originating application under r 7.23 of the Federal Court Rules 2011 (Cth) (Rules), for preliminary discovery by Google LLC in order to identify the name of an individual that left a ‘Google review’ on the review page of the Prospective Applicant.
3 The review, which was posted on 4 March 2022 stated:
“Their prices are incredibly high and are not worth it at all - they're practically scamming you, legit other aluminium window companies could do better. Don't even get me started with the staff! They can't even speak English, and always had the demeanour of wanting to fight someone - not a good company at all - materials are overpriced and can be purchased with a cheaper cost, and poor consumer service. Worst aluminium windows company I've ever faced.”
4 The Review was posted by an individual under the moniker “Timmy Foreign”.
5 The Prospective Applicant seeks discovery to attain the identity of the reviewer from Google LLC (Prospective Respondent).
6 As Wigney J set out in Lin v Google LLC  FCA 1113 at  (Lin), the combined effect of r 10.42 and r 10.43 of the Rules is to impose five requirements for an applicant seeking leave to effect service overseas. First, the applicant must show that the application to be served comprises, or includes, one or more of the kinds of proceedings mentioned in the table produced in r 10.42 (r 10.42 and r 10.43(4)(b) of the Rules). Second, the applicant must show that the means by which they propose to effect service accords with a convention, the Hague Convention or the law of the foreign country in which service is to be effected (r 10.43(2) of the Rules). Third, the application must be accompanied by an affidavit stating the name of the foreign country where the prospective respondent is to be served and that the proposed method of service accords with a convention, the Hague Convention or the law of the foreign country (r 10.43(3) of the Rules). Fourth, the Court must have jurisdiction in the proceeding (r 10.43(4)(a) of the Rules). Fifth, the applicant must have a prima facie case for all or any of the relief claimed in the proceeding (r 10.43(4)(c) of the Rules).
7 On the material before the Court, I am satisfied that each of the five criteria is fulfilled. The Prospective Applicant’s application is for preliminary discovery, effectively under r 7.23 of the Rules, is based on a cause of action in defamation. With respect, I concur with the observations of Wigney J in Lin at - that an application for preliminary discovery in these circumstances can be a proceeding of the kind mentioned in items 1, 4 and 5 of the table in r 10.42 of the Rules.
8 The Prospective Applicant sought leave to effect service via international registered post, which is a method of service permitted by Article 10(a) of the Hague Convention. the USA has made no objection to service via registered post under Article 10(a) of the Hague Convention. The Prospective Applicant’s application for overseas service was accompanied by an affidavit duly sworn by its solicitor, deposing to the name of the country and location in which the Prospective Respondent is to be served (the USA) and the method of service to be employed (affidavit of Sadi Hamidy sworn on 7 April 2022 (Hamidy Affidavit)). An application for preliminary discovery under r 7.23 of the Rules is a proceeding in which this Court has jurisdiction. On the basis of the affidavit filed in support of the application for preliminary discovery, I am satisfied that the Prospective Applicant has a prima facie case for the production of the documents it seeks, in order to ascertain the identity of the individual that left the Review on the Prospective Respondent’s review page, because:
(a) In Lin at paragraph , the Court found that preliminary discovery based on the tort of defamation satisfied this criteria.
(b) This matter is analogous to Lin in terms of the defamatory content of the Review and is also based on the further tort of injurious falsehood and a cause of action pursuant to s 20 of the Australian Consumer Law within schedule 2 of the Competition and Consumer Act 2010 (Cth) (ACL).
(c) In Lin at  and  the Court found that service by registered post from Australia to the USA of the originating application and accompanying documents were permitted by the Hague Convention.
(d) The Applicant seeks to serve the application and the supporting affidavit in the same manner as approved by the Court in Lin.
(e) It is necessary only to establish that there may be a right to obtain relief and the requirement is not onerous and a low threshold: Lin at .
(f) Mr Hamidy deposed that the statements in the Review are untrue and misleading, that there has been potential loss and damage caused and that he suspects that the Review may have been posted under a false name by a competitor (Hamidy Affidavit at - and -).
(g) These facts support causes of action in defamation, the tort of injurious falsehood and a breach of the ACL.
(h) This meets (and the Prospective Applicant submits exceeds) the threshold for an application for preliminary discovery.
(i) In this case the correspondence with the Prospective Respondent is outlined in Hamidy Affidavit .
(j) The Prospective Respondent will not provide any information with respect to the identity of the reviewer and there are no other options available to the Applicant to ascertain the reviewer’s identity.
(k) The Prospective Respondent is “another person” for the purpose of r 7.22(1)(c)(ii) and is likely to have documents which would assist in ascertaining the identity of the individual that made the Review.
9 Therefore, an order granting leave for the Prospective Applicant to effect service on the Prospective Respondent via international registered post will be made.
10 Leave will be granted to the Prospective Applicant for service outside Australia in accordance with Div 10.4 of the Rules.