Federal Court of Australia

Khan v Google LLC [2023] FCA 785

ORDERS

THE COURT NOTES THAT:

1.    The respondent has reserved its position as to the jurisdiction of this Court and has not voluntarily submitted to the Court’s jurisdiction.

THE COURT ORDERS THAT:

1.    The prospective applicant has leave to proceed against the respondent pursuant to r 10.43D of the Federal Court Rules 2011 (Cth) (the Rules).

2.    Pursuant to r 7.22 of the Rules, the respondent is to provide the prospective applicant, within 20 days of being served with this Order, the subscriber registration information of the Google Account associated with the email address davidjonesaus18@gmail.com (the Google Account), as well as the IP logins for the Google Account (including the IP logins for the sender of the email that was sent from the Google Account on 9 November 2022 with the subject: “Attention seeking regarding the Candidate of Mr. Nurul Khan as Western Metropolitan Region in the 2022 VIC state election”), to the extent that such information or data is in the possession of and available to Google as of the date of this Order.

3.    The originating application dated 16 February 2023 is otherwise adjourned to 11 August 2023 at 9:30am.

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

REASONS FOR JUDGMENT

BUTTON J:

Introduction

1    On 6 November 2022, the prospective applicant (Mr Khan) was preselected by the Australian Labor Party (the ALP) to stand as a candidate in the Victorian state election for the Upper House in the Western Metropolitan Region. The election was held on 26 November 2022.

2    On 9 November 2022, an anonymous email was sent from davidjonesaus18@gmail.com (the Gmail Address) to senior members of the ALP, including members of the Victorian and Federal Parliaments, and Councillors at the City of Wyndham, and to major media outlets in Australia (the Anonymous Email).

3    Mr Khan contends that the Anonymous Email conveys a number of serious imputations concerning his honesty, character, engagement in criminal conduct and conduct towards women. Mr Khan contends that he was disendorsed by the ALP as a candidate as a result of the sending of the Anonymous Email.

4    Mr Khan contends that he has a cause of action in defamation against the publisher(s) of the Anonymous Email. The only trouble is that he does not know who sent the Anonymous Email.

5    Mr Khan has applied under r 7.22 of the Federal Court Rules 2011 (Cth) (the Rules) for orders that the respondent, Google LLC (Google), give discovery of certain classes of documents which he contends will enable him to discern the identity of the publisher(s) of the Anonymous Email.

6    Following changes to the Rules, which came into effect on 13 January 2023, it was not necessary for Mr Khan to obtain leave to serve his preliminary discovery application on Google. I am satisfied, based on the documents in evidence, that Google was effectively served with the preliminary discovery application. Google has not filed a notice of address for service. Documents before the court establish that Google is well aware of the application, but has taken the position that it does not intend to appear and does not submit to this court’s jurisdiction, but may be willing to produce documents voluntarily if a court order is obtained. Google went so far as to suggest its preferred wording of the order. Nevertheless, as Google has not appeared, Mr Khan is also required (pursuant to r 10.43D of the Rules) to obtain leave to proceed with his application against Google.

7    The hearing of Mr Khan’s application for leave to proceed and, if leave be granted, orders under r 7.22, was held on 11 July 2023. Google did not appear.

8    For the reasons which follow, I granted Mr Khan leave to proceed, and made orders under r 7.22, albeit in significantly narrower terms than had been proposed by Mr Khan in his originating application.

Leave to proceed

9    Where an originating application is served on a person outside Australia and that person does not file a notice of address for service within the time fixed by r 10.43C of the Rules, the party serving the document may not proceed except by leave of the court. Pursuant to r 10.43C, Google was required to file its notice of address for service by 26 May 2023 (being the return date, which was later than the day that was 43 days after the date of service).

10    Mr Khan’s application for leave to proceed was also served on Google but, as noted, it has not appeared or elected to participate, beyond corresponding with Mr Khan’s solicitors.

11    Amendments made to the Rules concerning service overseas came into effect on 13 January 2023 and brought the rules broadly into alignment with the provisions in a number of other Australian jurisdictions, including the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (the Victorian Rules) r 7.07. Those amendments included r 10.43D of the Rules.

12    Judges of the Victorian Supreme Court have, in considering applications for leave to proceed under the similar rules applying in that jurisdiction, identified the following as relevant factors to which regard should be had:

(a)    whether the defendant has been properly served; and

(b)    whether the originating process makes claims of a kind that fall within r 7.02 of the Victorian Rules, which sets out when an originating process may be served out of Australia without leave;

see King v Linkage Access Ltd [2022] VSC 158 (Linkage Access) at [20] (Riordan J, citing Agar v Hyde (2000) 201 CLR 552 (Agar) at [53]–[54] (Gaudron, McHugh, Gummow and Hayne JJ); Lew Footwear Holdings Pty Ltd v Madden International Ltd [2014] VSC 320 at [107(6)] (Elliott J); Rio Tinto Shared Services Pty Ltd v English Datasystems LLC (2021) 65 VR 25 at [1] (Lyons J)).

13    Those considerations are apposite in considering whether to grant leave to proceed under r 10.43D, and I see no reason why any different approach should be taken where the originating application concerns preliminary discovery.

14    On an application for leave to proceed, where service has been effected and the claim is of a kind that may be served out of Australia without leave, the court’s jurisdiction has, prima facie, been properly invoked and, in the absence of some countervailing consideration, leave to proceed should be granted: Agar at [54] (Gaudron, McHugh, Gummow and Hayne JJ).

15    I should note that several cases decided by the Supreme Court of New South Wales proceed on the basis that two additional matters ought be considered:

(a)    whether the party seeking leave to proceed has an arguable case, being one that would survive an application for summary judgment; and

(b)    whether the court in which leave to proceed is sought is not a clearly inappropriate forum.

16    Those additional matters were identified by Adamson J in Rossiter v Core Mining Ltd [2015] NSWSC 360 (Rossiter) at [11], and then by Campbell J in Bingley-Pullin v Montgomery [2018] NSWSC 1308 at [5] and by Ward CJ in Equity (as her Honour then was) in Hutchinson v AD Securities America LLC [2021] NSWSC 1573 at [4]. However, as Riordan J pointed out in Linkage Access (at [24]), the plurality in Agar expressly stated (at [53], which is among the passages cited by Adamson J in Rossiter) that, where the application to proceed is made without notice, “there will be no occasion to consider any question about the strength of the plaintiff’s claim”. On this basis, Riordan J understood the additional matters referred to in Rossiter only to arise where an application has been made on notice.

17    To be clear, the plurality in Agar drew particular attention to the fact that the case before it was one in which an application for leave to proceed was coupled with an application to set aside service, or have the court decline to exercise its jurisdiction. The plurality referred to examination of the plaintiff’s prospects and the appropriateness of the forum as considerations that arise in considering an application to set aside service, or have the court decline to exercise its jurisdiction (as distinct from the element of the application concerning leave to appeal). This is clear from the following passages of the plurality’s reasons (emphasis added):

53    In some cases, an application for leave to proceed will not be opposed. It is an application which may be made without serving notice of the motion on the defendant. Where the application is made without notice to a defendant, there will be no occasion to consider any question about the strength of the plaintiff's claim. If, however, as was the case in each of these matters, the application for leave to proceed is opposed, and is joined with an application by parties served outside Australia to set aside service or to have the Court decline to exercise its jurisdiction, other considerations arise. It is necessary, in such a case, to recall that there are different issues raised on the hearing of an application for leave to proceed from those that arise on the hearing of applications to set aside service or to decline to exercise jurisdiction.

54     Central to the inquiry on an application for leave to proceed is whether the originating process makes claims of a kind which one or more of the paragraphs in Pt 10, r 1A [of the Supreme Court Rules 1970 (NSW)] mention. If the originating process makes such a claim, r 1A provides that the process may be served outside Australia and, on proof of service of the process, the Court’s jurisdiction is, prima facie, properly invoked over the party who has been served. In the absence of some countervailing consideration, leave to proceed should then be given.

55     On an application to set aside service, or to have the Court decline to exercise jurisdiction, attention might be directed to any of a number of features of the proceeding, the claims made in it, or the parties to it, in aid of the proposition that the Court should not exercise jurisdiction. Part 10, r 6A is cast in general terms and it would be wrong to attempt some exhaustive description of the grounds upon which the rule might be invoked. Nevertheless, it may be expected that three common bases for doing so are first, that the claims made are not claims of a kind which are described in Pt 10, r 1A, secondly, that the Court is an inappropriate forum for the trial of the proceeding and thirdly, that the claims made have insufficient prospects of success to warrant putting an overseas defendant to the time, expense and trouble of defending the claims. Whether the Rules prescribe a different test for determining questions of inappropriate forum from that developed at common law is a question which we need not stay to consider. In these cases, it is necessary to deal only with the last of the bases we have mentioned. It was on this that the appellants chiefly relied.

18    As is clear from Agar at [54], on an application for leave to proceed, the two matters referred to above at paragraph 12 are the matters that are central, namely:

(a)    whether the defendant has been properly served; and

(b)    whether the originating process makes claims of a kind that fall within, relevantly, r 10.42 of the Rules, which sets out when an originating process may be served out of Australia without leave.

19    With respect, I cannot agree with the statements in the cases decided by the Supreme Court of New South Wales to the effect that all four matters were identified by the plurality in Agar as matters to be addressed in deciding whether leave to proceed ought to be granted. In my view, the two matters referred to in the preceding paragraph are the relevant matters in this application (although, should it matter, for reasons set out below, Mr Khan’s application for preliminary discovery has merit, and this court is not obviously an inappropriate forum in which to bring that application).

20    As I have already indicated, I am satisfied that Google has been properly served. Mr Khan’s originating application was served by registered post to the address stipulated by Google as its address for service. Australia Post’s tracking system recorded delivery on 3 April 2023. The United States makes no objection, declaration, reservation or notification against the terms of art 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 (commonly referred to as the Hague Convention). Accordingly, service by registered post was permitted: Lin v Google LLC [2021] FCA 1113 (Lin) at [18] (Wigney J, citing AIA Australia Ltd v Richards [2017] FCA 84 at [13]–[15] (Allsop CJ); Kabbabe v Google LLC [2020] FCA 126 at [9] (Murphy J); Barilaro v Shanks-Markovina (No 1) [2021] FCA 789 at [7]–[9] (Murphy J)). See also the discussion in Nygh’s Conflict of Laws in Australia (LexisNexis Butterworths, 10th ed, 2020) at [3.33]–[3.34].

21    Rule 10.42 of the Rules specifies when an originating application may be served outside Australia without leave. By his written submissions, Mr Khan claimed that the originating application makes claims of a kind permitted to be served overseas without leave pursuant to rr 10.42(j)(i) and (ii). Those provisions refer to proceedings arising under a law of the Commonwealth, a State or a Territory, where any act or omission to which the proceeding relates was done or occurred in Australia, or any loss or damage to which the proceeding relates was sustained in Australia. Mr Khan’s submission was that his originating application fell within those provisions as:

(a)    the proceeding “arises under state and territory defamation laws (including the Civil Law (Wrongs) Act 2002 (ACT))”;

(b)    the Anonymous Email was sent to various accounts of individuals within Australia; and/or

(c)    Mr Khan has sustained loss or damage within Australia.

22    Mr Khan’s submissions overlooked that, in referring to the characteristics of “the proceeding”, which characteristics may be such as to mean that the originating application can be served outside Australia without leave, r 10.42 is (like the references to the “claim” in r 7.02 of the Victorian Rules) referring to the proceeding advanced by the originating application — here preliminary discovery — and not the prospective proceeding advancing a cause of action in defamation: see my more detailed analysis of this issue in Brighton Automotive Holdings Pty Ltd v Honda Australia Pty Ltd (2021) 65 VR 146 (Brighton Automotive).

23    In Lin, Wigney J found that (at [15], emphasis added):

Despite the paucity of the submissions in respect of this issue, I am satisfied that Mr Lin’s application for preliminary discovery from Google can fairly be characterised as an action “based” on the tort of defamation committed in Australia, notwithstanding that the application is not itself for that cause of action. The application may be said to be “based on” a cause of action in defamation because Mr Lin’s claim to be entitled to preliminary discovery is based, at least in part, on the fact that he may have a right to obtain relief, including damages, from someone else (the prospective respondent) for defamation. I am satisfied on that basis that Mr Lin’s application is a proceeding of the kind mentioned in items 1, 4 and 5 of the table in r 10.42 of the Rules.

24    The formulation of r 10.42, as it took effect on 13 January 2023, refers (in r 10.42(a)) to a proceeding that is “founded on” a tortious act or omission; cf the former language of “based on”, considered by Wigney J in Lin.

25    In Brighton Automotive, I adopted the approach set out by Wigney J in Lin, and concluded that (at [32]):

In the context of r 7.02(a) of the [Victorian] Rules, a claim for preliminary discovery may be “founded on” a tortious act or omission where the claim has a sufficient nexus with such an act or omission, notwithstanding that the claim is not directly seeking final, substantive relief in respect of that allegedly tortious act or omission.

26    Likewise, here, in my view Mr Khan’s claim for preliminary discovery is one that is “founded on” an alleged tortious act or omission with the necessary nexus to Australia. Having so concluded, it is not necessary to address other sub-paragraphs of r 10.42 that may apply to a preliminary discovery application of the kind advanced (eg, r 10.42(d)(ii), r 10.42(j) (where the “law of the Commonwealth” comprises the provisions of the Rules concerning preliminary discovery)): see further the discussion of similar alternatives in Brighton Automotive at [41]–[42] and [56]–[59].

27    Pursuant to r 10.43B of the Rules, a person being served outside Australia must also be served with a notice in accordance with Form 26A, which informs the person of certain matters. Google was served with a Form 26A notice. While the Form 26A erroneously referred to r 7.24, nothing turns on that for present purposes.

application for preliminary discovery

28    Rule 7.22 governs applications for preliminary discovery to ascertain the description of a prospective respondent. It provides as follows:

(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.

29    In the context of this proceeding, in order to obtain preliminary discovery, Mr Khan was required to establish that:

(a)    there “may” be a right for Mr Khan to obtain relief against the publisher(s) of the Anonymous Email;

(b)    Mr Khan is unable to ascertain the description of the publisher(s) of the Anonymous Email; and

(c)    Google knows or is likely to know the description of the publisher(s) of the Anonymous Email, or has or is likely to have, or has had or is likely to have had, control of a document that would help ascertain the description of the publisher(s) of the Anonymous Email.

30    As summarised by Wigney J in Lin (at [23]):

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 [v Google LLC [2020] FCA 1229] at [22]; Kabbabe [v Google LLC [2020] FCA 126] at [16] and Seven Consulting [Pty Ltd v Google LLC [2021] FCA 203] 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].

31    I am satisfied that Mr Khan “may” have a right to obtain damages or other relief from the person or persons who published the Anonymous Email, based on a cause of action in defamation. Having regard to the contents of the Anonymous Email, he has a real, and not fanciful, prospect of success. Mr Khan’s prospects at this stage must obviously be assessed without knowing what defence, if any, may be advanced.

32    Mr Khan has also established that he has been unable to ascertain the description of the person(s) who published the Anonymous Email. Mr Khan’s solicitor has deposed to the steps taken to attempt to ascertain the identity of the user of the Gmail Address by lodging a complaint with Victoria Police, emailing the recipients of the Anonymous Email, and corresponding with Google and Johnson Winter Slattery, who previously acted for Google. Those enquiries were fruitless. Victoria Police closed the case concerning Mr Khan’s complaint, suggesting he make his own enquiries. Google, understandably, did not provide any relevant information in the absence of a court order. Mr Khan’s solicitor also gave oral evidence to the effect that she did not obtain any useful information from the recipients of the Anonymous Email, but only received pro forma responses from some politician recipients, and further enquiries from one media recipient.

33    Finally, I am satisfied that Google, as the apparent owner and operator of Gmail, knows or is likely to know the description of the person(s) who established the Gmail Address and used it to send the Anonymous Email, and is likely to have documents that will assist Mr Khan in identifying the person(s) who sent the Anonymous Email. Those documents (most likely electronic records) may well record the registration details and personal information of the person(s) who established the Gmail Address, and details of the internet service provider associated with the sending of the Anonymous Email.

34    However, I am not satisfied that preliminary discovery should be ordered in the terms sought by Mr Khan. His originating application sought the following categories of documents (emphasis in original):

a.     All documents in [Google’s] possession, whether electronically stored or otherwise, which reveal or relate to the identity of the person who registered the email address: davidjonesaus18@gmail.com (the Gmail Address), including all documentation containing the identification, registration details, personal information, mobile telephone number and/or contact information of the person who registered the Gmail Address;

b.     All documents in [Google’s] possession, whether electronically stored or otherwise, which reveal the IP address and/or internet service provider information in respect of each occasion when the Gmail Address was used;

c.     All documents in [Google’s] possession, whether electronically stored or otherwise, which relate to the email sent from the Gmail Address to recipients on Wednesday 9 November 2022 at around 1:18am Australian Eastern Daylight Time, which is contained in pages 2 to 5 of exhibit “RJ1” to the affidavit of Rumana Jahan sworn on 16 February 2023 (the Anonymous Email), including all documents which contain the IP address, the internet service provider information and all or any other details associated with the sending of the Anonymous Email and the identity of the person who sent the Anonymous Email;

d.     All documents, whether electronically stored or otherwise, relating to the registration details, personal information, mobile telephone number and/or contact information in respect of any other email address ending “@gmail.com”, that was registered by the same person who registered the Gmail Address;

e.     All documents, whether electronically stored or otherwise, showing the use of the Gmail Address to send or receive emails in relation to Nurul Khan, the Prospective Applicant, including the contents of all such emails that were sent or received.

35    Those categories of documents are ambiguous in some respects and also go well beyond what is reasonably required to assist Mr Khan to ascertain the description of the publisher(s) of the Anonymous Email. With some adjustments, the wording proposed by Google, in its correspondence with Mr Khan’s solicitors, presents a more confined order that will still serve to assist Mr Khan to ascertain the description of the publisher(s) of the Anonymous Email. The wording proposed by Google, with additions and deletions proposed by Mr Khan, is as follows:

THIS COURT ORDERS that Google provide to the prospective applicant, within twenty days of being served with this Order:

(a)     the subscriber registration information of the Google Account associated with the email address [insert email address] davidjonesaus18@gmail.com (the “Google Account”), as well as the IP logins for the Google Account (including the IP logins for the sender of the email that was sent from the Google Account on 9 November 2022 with the subject: “Attention seeking regarding the Candidate of Mr. Nurul Khan as Western Metropolitan Region in the 2022 VIC state election”), to the extent that such information or data is in the possession of and readily available to Google as of the date of this Order.

36    I will make an order substantially in the terms set out above. I will not include in the order other verbiage proposed by Google regarding its internal policies (according to which it will first consult with the owner of the relevant email account), but will note Google’s reservation to the effect that it has not voluntarily submitted to this court’s jurisdiction.

37    At the request of Mr Khan, the originating application will otherwise be stood over to allow time for Google to comply with the orders.

Associate:

Dated:    12 July 2023