FEDERAL COURT OF AUSTRALIA
Neville v Google LLC [2023] FCA 625
ORDERS
Applicant | ||
AND: | First Respondent MICROSOFT CORPORATION Second Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. The First Respondent give discovery within 21 days to the Prospective Applicant by email to b.kay@kayandhughes.com of any document or thing that is or has been in its possession, power or control containing the following:
(a) The subscriber information for each of the Gmail Accounts;
(b) The name of the users of each of the Gmail Accounts;
(c) The IP address or addresses and associated information relating to each of the Gmail Accounts;
(d) Any phone numbers associated with each of the Gmail Accounts;
Where “Gmail Accounts” means the following email accounts:
Where “Relevant Gmail Dates” means the following dates:
a. 20 February 2023;
b. 10 March 2023;
c. 15 March 2023;
d. 17 March 2023;
e. 21 March 2023;
f. 30 March 2023;
g. 1 April 2023;
h. 3 April 2023;
i. 25 April 2023;
j. 28 April 2023;
k. 25 May 2023.
2. The Second Respondent give discovery within 21 days to the Prospective Applicant by email to b.kay@kayandhughes.com of any document or thing that is or has been in its possession, power or control containing the following:
(a) The subscriber information for each of the Outlook Accounts;
(b) The name of the users of each of the Outlook Accounts;
(c) The IP address or addresses and associated information relating to each of the Outlook Accounts;
(d) Any phone numbers associated with each of the Outlook Accounts;
(e) Any location metadata associated with each of the Outlook Accounts; and
(f) Any other Microsoft 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 any of the Outlook Accounts were accessed to transmit emails regarding the Prospective Applicant, being the Relevant Outlook Dates.
Where “Outlook Accounts” means the following email accounts:
Where “Relevant Outlook Dates” means the following dates:
a. 17 February 2023;
b. 1 March 2023;
c. 8 March 2023;
d. 9 March 2023;
e. 10 March 2023;
f. 12 March 2023;
g. 16 March 2023;
h. 18 March 2023;
i. 25 March 2023;
j. 27 March 2023;
k. 8 April 2023; and
l. 14 April 2023.
3. Pursuant to rules 10.42 and 10.43 of the Federal Court Rules 2011 (Cth) (Rules) the Prospective Applicant shall serve this order, and the Court’s reasons once published, on the Respondents, Google LLC, in the United States of America and Microsoft Corporation, in the United States of America, 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, by sending the documents using international registered post (with an acknowledgment of receipt to be provided by Google LLC and Microsoft Corporation to the applicant) addressed to:
(a) First Respondent
Google LLC
C/O Custodian of Records
1600 Amphitheatre Parkway
Mountain View, California 94043
United States of America
(b) Second Respondent
Microsoft Corporation
C/O Custodian of Records
Microsoft Way
Redmond, Washington State 98052-6399
United States of America
4. In addition to the measures referred to in order 3, the applicant provide a copy of the documents to:
(a) First Respondent by email internationalcivil@google.com
(b) Second Respondent by email cdocccm@microsoft.com
5. The proceedings be adjourned to 7 July 2023 at 9.30 am.
6. Costs reserved.
7. The First and Second Respondents are dispensed from the need to comply with r 7.25 of the Rules in relation to a list of documents.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
(REVISED FROM TRANSCRIPT)
JACKMAN J
1 This is an application under r 7.22 of the Federal Court Rules 2011 (Cth) (Rules) for preliminary discovery to ascertain the description of prospective respondents or a prospective respondent in contemplated proceedings. Nicholas J made orders on 9 May 2023 granting leave to serve the current respondents, Google LLC and Microsoft Corporation, in the United States of America, and the evidence establishes that due service has been conducted in accordance with those orders. Mr Riordan has appeared today for Google LLC, and there has been no appearance on behalf of Microsoft Corporation.
2 Rule 7.22 of the Rules provides, relevantly:
(1) A prospective applicant may apply to the Court for an order under subrule (2) if the prospective applicant satisfies the Court that:
(a) there may be a right for the prospective applicant to obtain relief against a prospective respondent; and
(b) the prospective applicant is unable to ascertain the description of the prospective respondent; and
(c) another person (the other person):
(i) knows or is likely to know the prospective respondent’s description; or
(ii) has, or is likely to have, or has had, or is likely to have had, control of a document that would help ascertain the prospective respondent’s description.
(2) If the Court is satisfied of the matters mentioned in subrule (1), the Court may order the other person:
(a) to attend before the Court to be examined orally only about the prospective respondent’s description; and
(b) to produce to the Court at that examination any document or thing in the person’s control relating to the prospective respondent’s description; and
(c) to give discovery to the prospective applicant of all documents that are or have been in the person’s control relating to the prospective respondent’s description.
3 The applicant relies upon affidavit evidence given by Ms Neville herself, in an affidavit affirmed on 29 April 2023, and two affidavits of Mr Benjamin Kay, her solicitor, dated 1 May 2023 and 7 June 2023. The evidence indicates that negative statements have been made about Ms Neville to her commercial partners and contractual counterparties by email and other forms of digital communication, by a person or persons unknown, commencing on about 17 February 2023 and going through to the present day. Those communications are referred to in the evidence as the Negative Communications. Ms Neville is also aware of negative telephone calls being made about her to her commercial partners and contractual counterparties by a person or persons unknown, commencing on 17 August 2023, and going through, roughly, to the present time. Ms Neville is not aware of the identity of the person responsible, or persons responsible, for publishing the Negative Communications, referring to such person or persons in the evidence as the Person Responsible. From the information currently available, Ms Neville has also been unable to ascertain the description of the Person Responsible, in order to be able to identify them.
4 Given the similar tone, language, grammar and content of the Negative Communications, Ms Neville suspects that one individual is responsible for publishing the Negative Communications, but she does not know and has not been able to ascertain their identity. The Negative Communications have been sent from numerous different accounts, each using a different name. The evidence refers to the anonymous or pseudonymous accounts that have sent the Negative Communications, and they are referred to in the evidence as the Fake Accounts.
5 Ms Neville has taken a number of steps to seek to obtain the identity or sufficient description of the person responsible for the Negative Communications, each without success. Those steps include seeking relevant information from the recipients of the Negative Communications, attempting to contact the phone number of the person making phone complaints, issuing a public statement on her social media accounts, attempting to confirm the IP addresses of the accounts that have sent the Negative Communications, attempting to speak to people she knows who share the same name as the Fake Accounts, and making complaints to and seeking assistance from the police. Ms Neville has also entered usernames of the Fake Accounts into Facebook, LinkedIn and Instagram, to see if those searches returned any results. Those searches returned no relevant results. Mr Kay has also performed Google searches for a number of search terms relevant to the Fake Accounts, each of which returned no relevant results.
6 There has been considerable correspondence with both Google LLC and Microsoft Corporation. That correspondence indicated that Google LLC was not, at the time of the correspondence, prepared to provide documents to Ms Neville in the absence of legal compulsion. However, Mr Riordan has today indicated that there is no opposition to a number of the categories of preliminary discovery which have been sought. I am grateful to Mr Riordan for the approach which Google LLC has adopted to the present application.
7 Similarly, there has been considerable correspondence with Microsoft, which has not evinced any cooperation, and accordingly, Ms Neville will need orders of the Court in order to obtain the documents which she seeks from Microsoft Corporation. Mr Kay is an experienced solicitor in the field of defamation law, having practised as a solicitor for 15 years. In his view, Ms Neville has a prima facie case against the Person Responsible in defamation and injurious falsehood, and therefore, may have a right to obtain damages or other relief in respect of the Negative Communications, and appears, from the evidence, to have taken into account the relevant and appropriate matters in forming that view.
8 I am grateful to Mr O’Neill, who appeared for Ms Neville, for the provision of a number of authorities which have considered similar applications for preliminary discovery against Google LLC or others in a similar position to that company. In particular, I have derived considerable assistance from the decision of Rofe J in International Wushu Federation v Google LLC [2021] FCA 904. In that judgment, Rofe J refers to the principle that the applicant for preliminary discovery need not establish the existence of a prima facie case against a prospective respondent. Rather, it is enough if the applicant can show that it may have a right to obtain relief, and that threshold has been described as “not onerous”: at [25].
9 The foreshadowed claim must have some prospect of succeeding, in that it must be a claim within the jurisdiction of the court, and which is not so near to being hopeless as would reasonably and properly justify the claim being described as “merely speculative”: at [26]. Success in this context requires a course of action known to the law which has a real, as opposed to fanciful, prospect that some remedy might be granted: at [26]. Rofe J also dealt with the principles concerning the publication of defamatory statements made online: at [38], and reviewed the authorities which deal with the question of this Court’s jurisdiction in relation to matters pertaining to defamation: at [36]–[38].
10 I am satisfied that the three requirements laid down in r 7.22(1) of the Rules are satisfied in the present case and I will make orders accordingly. The orders differ from those sought in the originating application in two respects. First, there is the addition of a further Gmail account and a further relevant Gmail date which have arisen since the commencement of the proceedings, but in circumstances substantially similar to those which triggered the originating application in the first place. I have no hesitation in amending the orders in order to include those additional matters. The other amendment is that the parties before me have agreed that the initial tranche of preliminary discovery by Google LLC should be confined to the categories set out in the originating application in subparagraphs 2(a)–(d), and any further application in relation to the categories set out in subparagraphs 2(e) and 2(f) can await the provision of the first tranche of discovery. That strikes me as a sensible way in which to proceed in relation to Google LLC.
11 However, as Microsoft Corporation has not appeared today, nor has it sent any substantive correspondence to the applicant dealing with the proposed orders, I am not prepared to limit the categories of discovery sought against Microsoft Corporation in a similar way. If Microsoft Corporation seeks a variation to these orders, being orders made in their absence, then that is a matter which can be attended to in due course, and if it is by agreement then I will vary the orders against Microsoft Corporation in Chambers without the need for a further Court appearance.
I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jackman. |
Associate:
