FEDERAL COURT OF AUSTRALIA

Kathryn Stanford Consulting PTE v Google LLC [2022] FCA 1049

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to rr 10.42 and 10.43 of the Federal Court Rules 2011 (Cth), the prospective applicant be granted leave to serve:

   (a)    the Originating Application filed 29 August 2022;

   (b)    the affidavit of Luke Armstrong affirmed on 23 August 2022;

   (c)    the affidavit of Craig Kenneth Bartley affirmed on 24 August 2022;

   (d)    a copy of these reasons; and

   (e)    the sealed Orders made herein.

2.    Costs be in the cause.

3.    This proceeding be referred to the National Operations Registrar for allocation to a docket judge.

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

REASONS FOR JUDGMENT

COLLIER J    

1    Before the Court is an interlocutory application, filed by the prospective applicant (applicant) on 29 August 2022, seeking the following relief on an ex parte basis:

1.    Leave is granted for the Prospective Applicant to serve the Originating Application by the Prospective Applicant for Order for Discovery on the Prospective Respondent outside of Australia, being at the address Google LLC, c/o Custodian of Records, 1600 Amphitheatre Parkway, Mountain View, California 94043, United States of America, pursuant to rule 10.43 of the Federal Court Rules 2011 (Cth).

2.    Costs in the cause.

2    This application was brought to the attention of my Chambers on 29 August 2022 in my capacity as Duty Judge. Subsequently, I made Orders of even date facilitating the provision of submissions in support of the applicant’s application. In accordance with those Orders, I now turn to determine the application on the papers.

BACKGROUND

3    The applicant submitted that the likely substantive proceeding “concerns potential defamation proceedings (and possibly an action under s18 of the Australian Consumer Law) against an unknown defendant”.

4    The applicant is a company registered in Singapore that provides former Australian Defence Force service members with administration assistance referable to repatriation claims to the Department of Veterans Affairs. The applicant has a business website, and according to its director Mr Luke Armstrong in his affidavit dated 23 August 2022 (Armstrong affidavit), relies significantly on “on the goodwill generated by reviews, with Google Reviews the primary mechanism for potential clients to access reviews of past clients”.

5    The Google reviews that form the basis of the forecast defamation proceedings were made by Mr Stevie Hoff (Hoff review) and Mr John Avery (Avery review) on 21 November 2020 and 15 October 2021 respectively. The Hoff review consisted of a rating of one out of five stars accompanied by the following text:

Absolutely a total rip off. I could have done it myself or seen a free service such as an RSL advocate. Don't use this mob.

6    The applicant submitted that it had no record of ever providing services to Mr Hoff.

7    The Avery review consisted of a rating of one out of five stars with no accompanying text. Similarly, the applicant stated that it has no record of providing services to Mr Avery.

8    In correspondence with the prospective respondent (respondent) in early May 2022, the applicant requested that the Hoff review and the Avery review be removed from its Google business page. The respondent declined to do so on the basis that the reviews did not breach its review guidelines. The applicant contends that the reviews did breach those guidelines on the basis that they amounted to “content that has been posted by a competitor to undermine business or product's reputation”.

9    On 31 May 2022, the applicant again wrote to the respondent seeking the removal of the Hoff review and the Avery review, in addition to “…provision of the identity and copies of documents showing the identity of John Avery and Stevie Hoff, so that [the applicant] may take appropriate steps with regards the reviews”.

10    On 7 July 2022, the applicant noticed that the Hoff review had been removed from its Google business page. The applicant contended the respondent provided no notice of, or explanation for, the removal of the Hoff review. The applicant submitted however that, as at the date of the ex parte application, the Avery review remained visible on the applicant’s Google business page.

11    The applicant, by means of its originating application as a prospective applicant seeking orders for discovery (originating application), filed on 29 August 2022, sought the following discovery referable to the Avery review:

1.    Kathryn Stanford Consulting Pte Ltd, the Prospective Applicant, applies under Rule 7.23 for an order that Google LLC give discovery to the Prospective Applicant of the subscriber information for the 'John Avery' account that posted the Google Review referred to in the affidavit of Luke Armstrong (the 'Account'), including:

a.    the name of the user(s) of the Account;

b.    account creation information;

c.    email addresses;

d.    the IP address of logins;

e.    associated timestamps

f.    telephone phone numbers;

g.    location metadata; and

h.    any other Google accounts including their full name and email address and identifying details which may have originated from the same IP address during a similar time period to when 'John Avery's' account was accessed to post the offending Google review.

12    The applicant now seeks an order in terms I have outlined at [1] for the purpose of serving the respondent at the address of its headquarters in the United States.

CONSIDERATION

13    Rules 10.42 and 10.43 of the Federal Court Rules 2011 (Cth)(FCR) relevantly provide:

10.42 When originating application may be served outside Australia

Subject 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.

10.43 Application for leave to serve originating application outside Australia

(1)    Service of an originating application on a person in a foreign country is effective for the purpose of a proceeding only if:

(a)    the Court has given leave under subrule (2) before the application is served; or

(b)     the Court confirms the service under subrule (6); or

(c)     the person served waives any objection to the service by filing a notice of address for service without also making an application under rule 13.01.

Note: A respondent may apply to set aside an originating application or service of that application—see rule 13.01.

(2)    A party may apply to the Court for leave to serve an originating application on a person in a foreign country in accordance with a convention, the Hague Convention or the law of the foreign country.

(3)    The application under subrule (2) must be accompanied by an affidavit stating:

(a)    the name of the foreign country where the person to be served is or is likely to be; and

(b)     the proposed method of service; and

(c) that the proposed method of service is permitted by:

(i)    if a convention applies—the convention; or

(ii)     if the Hague Convention applies—the Hague Convention; or

(iii)     in any other case—the law of the foreign country.

(4) For subrule (2), the party must satisfy the Court that:

(a)    the Court has jurisdiction in the proceeding; and

(b)     the proceeding is of a kind mentioned in rule 10.42; and

(c)     the party has a prima facie case for all or any of the relief claimed in the proceeding.

14    I note that Australia and the United States are contracting parties to the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (concluded on 15 November 1965)(the Convention). This instrument is therefore applicable to the applicant’s application.

15    Article 10 of the Convention relevantly provides:

Article 10

Provided the State of destination does not object, the present Convention shall not interfere with –

a) the freedom to send judicial documents, by postal channels, directly to persons abroad,

b) the freedom of judicial officers, officials or other competent persons of the State of origin to effect service of judicial documents directly through the judicial officers, officials or other competent persons of the State of destination,

c) the freedom of any person interested in a judicial proceeding to effect service of judicial documents directly through the judicial officers, officials or other competent persons of the State of destination

16    In Lin v Google [2021] FCA 1113 at [12] Wigney J outlined the criteria that must be met in order for an application for leave to serve outside Australia an originating application seeking preliminary discovery, pursuant to Div 10.4 of FCR. His Honour stated:

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).

(emphasis added)

17    I am satisfied that the applicant has satisfied the criteria to serve the respondent at its address in the United States for the following reasons.

18    First, the applicant has demonstrated that this proceeding falls into the kind listed under r 10.42 of the FCR, namely items 1, 4 and 5 listed under that table as a “proceeding based on a tort committed in Australia”, “proceeding based on a cause of action arising in Australia”, and a “proceeding based on, or seeking the recovery of, damage suffered wholly or partly in Australia caused by a tortious act or omission (wherever occurring)” respectively. These categories are adequately satisfied by the applicant’s cause of action described as “…potential defamation proceedings (and possibly an action under s 18 of the Australian Consumer Law) against an unknown defendant”. The applicant’s application for preliminary discovery, while technically not a proceeding in its own right, is sufficient to satisfy this first criterion: Lin at [15]

19    Second, the manner of service proposed by the applicant is in accordance with the Convention. Service by registered post to the respondent’s headquarters is not precluded by the operation of art 10(a) of the Convention and was held in Lin, at [18], to be a suitable means to serve an originating application in analogous circumstances. See also, AIA Australia Ltd v Richards [2017] FCA 84 at [13]-[15] per Allsop CJ; Kabbabe v Google LLC [2020] FCA 126 at [9]; Barilaro v Shanks-Markovina (No 1) [2021] FCA 789 at [7]-[9]

20    Third, the Armstrong affidavit clearly details the address at which the applicant intends to serve the respondent, being its headquarters in the United States, as well as the fact that service by registered post is in accordance with the Convention.

21    Fourth, I am satisfied that this Court has jurisdiction to determine a future action for defamation of the kind outlined by the applicant.

22    Finally, I note the following observation of Wigney J in Lin at [15]:

As for the first element, it is unnecessary for Mr Lin to establish that he has a prima facie case in defamation against the person who was responsible for publishing the negative review. It is necessary only for him to establish that he “may” have a right to obtain relief in respect of the allegedly defamatory review: Kabbabe at [16]. The requirement to prove that there may be a right to obtain relief has been said to be “not onerous” and to involve only a low threshold: Boyd v Automattic, Inc [2019] FCA 86 at [49]; Kulkulka at [22]; Kabbabe at [16] and Seven Consulting at [21]. It must, however, be demonstrated that the potential right to relief is based on a cause of action that is known to law and that there is at least a real, not fanciful, prospect of success: Allphones Retail Pty Ltd v Australian Competition and Consumer Commission (2009) 259 ALR 354; [2009] FCA 980 at [54].

(emphasis added)

23    A negative Google review may afford a right to relief in a prospective applicant for alleged defamation: Musicki v Google LLC [2021] FCA 1393. I accept that applicant may have a real, and not fanciful, right to relief by way of defamation proceedings against the prospective respondent on the basis of the Avery review. As such, the final criterion has been satisfied.

CONCLUSION

24    I am satisfied that the applicant has made out its case referable to serving its application for preliminary discovery on the respondent, outside of Australia, and in the manner sought. Accordingly I make the orders sought by the applicant.

25    It is appropriate that costs be in the cause.

Associate:

Dated:    7 September 2022