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Application for Preliminary Discovery to Aid Defamatory Proceedings
Kandola v Google LLC (No 2) [2021] FCA 1412 (12 November 2021)
The applicant filed an application for preliminary discovery pursuant to r 7.22 of the Federal Court Rules 2011 (Cth). Such application was to aid commencing defamation proceedings arising from allegedly defamatory comments made online. However, despite service of application, the first prospective respondent did not appear.
Facts:
The prospective applicants, Ms Rachel Kandola and Mr Tejinder Singh Kandola, filed an application for preliminary discovery against Google LLC and Sensis Pty Ltd, now trading as Thryv Australia Pty Ltd. The prospective applicants own and operate a business called Unicorn Air Conditioning & Refrigeration Pty Ltd and seek information from the prospective respondents in relation to reviews posted by ‘John S’ and ‘Frank H’ on the websites of Google and the Yellow Pages (which is operated by Thryv) respectively. On 27 October 2021, orders were made for Thryv to provide preliminary discovery to the prospective applicants.
Ms Kandola gave evidence that the prospective applicants have operated Unicorn since 2009. The prospective applicants consider the contents of the reviews published on the Google and Yellow Pages websites to be false and defamatory in respect of both Unicorn and each of them affecting the reputation of Unicorn and each of the prospective applicants. The prospective applicants put Google on notice that they regarded the reviews to be defamatory and to have been posted by individuals who were not in fact customers of Unicorn. The prospective applicants made multiple requests to Google seeking to have the purported reviews removed.
On 18 December 2020, they requested Google to identify the authors of the reviews to enable communication between the prospective applicants and the individuals who posted the reviews. Google refused and thus the prospective applicants commenced proceedings on 21 August 2021. On 14 October 2021, orders were made permitting the prospective applicants to serve their application for preliminary discovery on Google out of jurisdiction in accordance with rr 10.42 and 10.43 of the Federal Court Rules 2011 (Cth). Ms Kandola has filed an affidavit of service deposing that she emailed a copy of the Court’s orders, the originating application and the affidavits of the prospective applicants to Google.
Ms Kandola received an automated reply email but no further substantive response to that correspondence. On 9 November 2021, after several attempts by Ms Kandola to contact Google, Google informed Ms Kandola that they did not intend to appear in the proceedings nor submit to the jurisdiction of the court. However, if an acceptable form of orders can be agreed, Google would be prepared to comply with those orders on a voluntary basis. Ms Kandola proposed alternative consent orders to Google by email on the same day.
Ms Kandola provided a copy of orders of the Court made on 10 November 2021 but has not received any further correspondence from Google since the 9 November 2021 email.
Issue:
Whether or not orders should be made granting the application for preliminary discovery.
Applicable law:
Federal Court Rules 2011 (Cth) rr 7.22(1) -provides that 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.
Kandola v Google LLC [2021] FCA 1262 - where Ms Kandola has given evidence that the prospective applicants have operated Unicorn since 2009 and in that time the business has built what she asserts to be an impeccable reputation and one that is closely associated with Mr Kandola and herself as individuals.
Musicki v Google LLC [2021] FCA 1393 - reviewed the authorities setting out the applicable principles in an application for preliminary discovery.
Analysis:
An applicant for preliminary discovery must satisfy the Court that there may be a right for the prospective applicant to obtain relief against a prospective respondent; the prospective applicant is unable to ascertain a description of the prospective respondent; and another person, the respondent to the application for preliminary discovery, knows or is likely to know that description, or has or was likely to have had, control of a document that would help ascertain that description.
There is evidence that Ms Kandola has made reasonable enquiries to try to ascertain the identity of the prospective respondents including by attempting to correspond with Google prior to commencing these proceedings. Ms Kandola, on behalf of both the prospective applicants, has taken reasonable steps in using the communication channels that Google promotes as being available, prior to commencing the present proceedings. Google is likely to have the identification information the prospective applicants require to commence proceedings, namely the description of the identity of 'John S’ and ‘Frank H’, or has, or is likely to have, control of a document that would assist the prospective applicants to ascertain that description.
Conclusion:
Ms Kandola has demonstrated that the prospective applicants may have a right to relief, by way of proceedings for defamation. Orders for preliminary discovery in the form sought by the prospective applicants should be made pursuant to r 7.22(1) of the Rules. The Court ordered that as soon as is reasonably practicable and in any event within 15 days of being served with this order by email in accordance with order 2, Google LLC, shall provide to the prospective applicants by email to rachel@unicornair.com.au, the required information, to the extent that such information is available, in relation to the Google Search and Map reviews of Unicorn Air Conditioning & Refrigeration Pty Ltd. The prospective applicants are granted leave to serve the order.
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