LAW FIRM FILES FOR AN APPLICATION SEEKING PRELIMINARY DISCOVERY OUTSIDE AUSTRALIA AGAINST GOOGLE TO IDENTIFY PROSPECTIVE RESPONDENTS IN A DEFAMATION CASE

Sydney Criminal Lawyers v Google LLC [2021] FCA 297 (29 March 2021)

This is an application seeking preliminary discovery outside Australia. The court answers whether or not the application by the applicant meets the requirements of R.10.43 of the Federal Court Rules 2011.

Facts:

The prospective applicant, Sydney Criminal Lawyers, seeks an order that Google LLC (Google), give discovery of all registration information of the Google accounts of five specified identities and the IP addresses of the logins to the respective Google accounts, to the extent that such information or data is in the possession of and reasonably available to Google. The prospective applicant alleges that it has been defamed as a result of what are said to be false reviews published on Google. Preliminary discovery is sought to identify the unknown prospective respondents so that proceedings can be brought against them.

Issue: Should the court grant the application of the plaintiff?

Law:

Before leave may be granted to serve an originating application on a respondent outside Australia the Court must be satisfied with four matters set out in R.10.43(3) and (4):

• 1. the application must be accompanied by an affidavit which states the name of the foreign country where the person is to be served, the proposed method of service and, if the Hague Service Convention applies, that the proposed method of service is permitted by the Hague Service Convention
  2. the Court has jurisdiction in the proceeding
  3. the proceeding is of a kind mentioned in R10.42
  4. the proceeding is of a kind mentioned in R.10.4 the applicant has a prima facie case for all or any of the relief claimed in the proceeding

Analysis:

As to the first criteria, The prospective applicant relies on the affidavit of its solicitor which establishes, inter alia, that the USA is a contracting party to the Hague Service Convention. The prospective applicant proposes to serve the documents by sending them by international registered post, which is one of the alternative channels. It is uncontroversial that the service of documents by international registered post is compliant with Art.10(a), this Court has granted leave on a number of previous occasions for service in that manner.

As to the second criteria, There can be no issue that the Court has jurisdiction to hear an application for preliminary discovery pursuant to R.7.22.

As to the third criteria, The proceeding falls within one or more of the categories or descriptions set out in R.10.42, with the prospective applicants relying on proceedings based on a cause of action arising in Australia. The proceeding falls within one or more of the categories or descriptions set out in R.10.42, with the prospective applicants relying on proceedings based on a cause of action arising in Australia.

As to the last criteria, a prospective applicant for preliminary discovery is not required to demonstrate the existence of a prima facie case against the prospective respondent; it is enough if the prospective applicant can show that he or she may have a right to obtain that relief.

The prospective applicant is a law firm specializing in criminal law. The prospective claims relate to five reviews which is said to be defamatory. The evidence establishes that there is a prima facie case for the reviews being fake, and that arguable damage is likely to have resulted. The evidence establishes that these reviews were published on Google and that steps have been undertaken by the prospective applicant with Google to remove the reviews, which to date have been unsuccessful.

The prospective applicant has been in communication with Google about producing the required information. The court considers that Google is likely to have or have had control of a document or thing that would help ascertain the description of the person or persons responsible or believed to be responsible for authoring or publishing the reviews.

Conclusion: The court grants the leave to serve the originating application outside Australia.

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