Appellant Seeks Further Discovery from Google

DUFFY v GOOGLE LLC [2022] SASC 40 (4 May 2022)

Dr Duffy filed a claim against Google in the Supreme Court seeking an injunction and damages for defamation alleging  that Google published defamatory material about her.  Dr Duffy filed an interlocutory application seeking discovery.  The Court, in determining whether or not to grant the application, assessed the decision of the Master of the Court.

Facts:

On 8 April 2021, the appellant, Dr Janice Duffy, filed an interlocutory application for further discovery from the respondent, Google LLC (Google).  On 30 November 2021, a Master of this Court dismissed the application.  Dr Duffy appeals against that dismissal.  She requires leave to appeal against such an interlocutory decision.

On 19 October 2016, Dr Duffy filed a claim against Google in the Supreme Court seeking an injunction and damages for defamation.  Dr Duffy alleges that Google published defamatory material about her by indexing and displaying four links containing defamatory material observable as search results across google.com and google.com.au.  Since 6 May 2014, the Defendant has published [the search results] to persons in South Australia or elsewhere in Australia who used a web browser to access the Google Sites and conducted a search for the terms “janice duffy”, “dr janice duffy”, “janice duffy reviews” and “dr janice duffy reviews”.  Further particulars of the number of persons to whom the Defendant published the first search result and second search result will be provided following disclosure in this action.

On 8 April 2021, Dr Duffy filed an interlocutory application seeking discovery.   On 30 November 2021, the learned Master dismissed the application.  On 21 December 2021, Dr Duffy filed a notice of appeal.  Dr Duffy raises two grounds of appeal, being that the learned Master erred in dismissing the application and in failing to provide reasons.  Since the Master has subsequently published reasons, only the first ground remains.

Issue:

Whether or not the documents are discoverable. 

Applicable law:

Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575 - relied upon in support of the finding that the material in this category is not relevant. 

Commonwealth v Saadat [2019] SASCFC 50 - provides that the primary considerations when determining whether leave to appeal should be granted are “whether the primary decision is attended by sufficient doubt to warrant re-consideration” and “whether substantial injustice will be incurred by the applicant if the decision is left to stand”.

House v The King (1936) 55 CLR 499 - provides that the threshold for the first consideration is whether the judge at first instance “acted on a wrong principle, allowed extraneous or irrelevant matters to guide or affect him, mistook the facts or did not take into account some material consideration” or reached an unreasonable or plainly unjust decision.

Duffy v Google LLC [2019] SASC 157 - dismissed Google’s application for summary judgment and granted Dr Duffy’s application to further amend her statement of claim. 

Duffy v Google Inc [2015] SASC 170; (2015) 125 SASR 437 - where Blue J found that Google was liable for defamation (first Google decision). 

Massarani v Kriz [2022] FCA 80 - provides that an inference that particular material on the internet has been downloaded or viewed will not be drawn from the mere fact that the material has been posted on the internet.

Analysis:

Dr Duffy submits that because Google did not raise the issue of defective pleadings in either its application for summary judgment or in its submissions in opposition to allowing Dr Duffy to file the second amended statement of claim,  Google cannot now argue defective pleadings as a reason why further discovery cannot be granted.  Google submits that the fact that Dr Duffy had previously obtained permission to file the second amended statement of claim is irrelevant as Blue J did not consider what documents may be relevant to those pleadings for the purpose of discovery.   Further, Google submits that it had raised this issue as early as June 2020, so Dr Duffy cannot claim that she was unaware.  The interlocutory decision by Blue J does not stand in the way of Google relying on Dr Duffy’s allegedly defective pleading in response to her application for further discovery. 

Dr Duffy contends that the learned Master was incorrect to dismiss “not only the first category of search data but my entire application” on the basis of defective pleadings.  Dr Duffy submits that her pleadings rely on publication by inference, and hence the particulars are to be determined at trial and do not need to be pleaded.  In the case of interactive use of the internet, this inference cannot be drawn as a matter of course, ie there is not a “presumption” that there were publishees unknown as in the case of print, radio, television and internet media.  The facts and circumstances must be analysed in the traditional way to determine whether the inference should be drawn.

Conclusion:

Dr Duffy has not established either of the limbs required in order to be given leave to appeal the Master’s interlocutory decision.  She has identified no error in the Master’s reasons.  Further, to allow his Honour’s decision to stand would not lead to a substantial injustice. The Court dismissed the appeal.