Kabbabe v Google LLC

• Jurisdiction: Australia Federal only
• Court: Federal Court
• Judge: MURPHY J
• Judgment Date: 12 February 2020
• Neutral Citation: [2020] FCA 126
• Date: 12 February 2020

FEDERAL COURT OF AUSTRALIA

Kabbabe v Google LLC [2020] FCA 126

File number:	VID 1331 of 2019
Judge:	MURPHY J
Date of judgment:	12 February 2020
Catchwords:	PRACTICE AND PROCEDURE – application to serve originating application seeking preliminary discovery outside Australia pursuant to Federal Court Rules 2011 (Cth) rr 10.41 to 10.43 – whether the proceeding is of a kind mentioned in r 10.42 – whether the prospective applicant has a prima facie case for all or any of the relief claimed – service in accordance with the Hague Service Convention – whether service by post is permissible – leave granted to serve originating application outside Australia
Legislation:	Federal Court Rules 2011 (Cth) rr 7.22, 10.41, 10.42, 10.43
Cases cited:	Ahmed v Al-Hussain Pty Ltd t/as The Cheesecake Shop [2018] FCA 1741 AIA Australia Ltd v Richards [2017] FCA 84 Allphones Retail Pty Ltd v Australian Competition and Consumer Commission [2009] FCA 980; (2009) 259 ALR 354 Australian Broadcasting Corporation v Seven Network Ltd [2005] FCA 1851 Bell v Steele [2011] FCA 1390; (2011) 198 FCR 291 Deputy Commissioner of Taxation v Cheung Kong Infrastructure Holdings Ltd [2013] FCA 707; (2013) 96 ATR 44 Deputy Commissioner of Taxation v Power Assets Holdings Ltd (previously known as Hongkong Electric Holdings Ltd) [2013] FCA 708; (2013) 96 ATR 51 Dow Jones & Co v Gutnick [2002] HCA 56; (2002) 210 CLR 575 Hooper v Kirella Pty Ltd [1999] FCA 1584; (1999) 96 FCR 1 Water Splash Inc v Menon 581 U.S.___(2017) Practical Handbook on the Operation of the Hague Service Convention (Permanent Bureau of the Hague Conference on Private International Law, 2006))
Date of hearing:	27 March 2020
Registry:	Victoria
Division:	General Division
National Practice Area:	Other Federal Jurisdiction
Category:	Catchwords
Number of paragraphs:	19
Solicitor for the Prospective Applicant:	Mr M Stanarevic of Matrix Legal

ORDERS

		VID 1331 of 2019
BETWEEN:	MATTHEW ROY KABBABE Prospective Applicant
AND:	GOOGLE LLC Respondent

JUDGE:	MURPHY J
DATE OF ORDER:	12 FEBRUARY 2020

THE COURT ORDERS THAT:

1. Pursuant to rr 10.42 and 10.43 of the Federal Court Rules 2011 (Cth) the Prospective Applicant has leave to serve:

1. the originating application filed 6 December 2019;

2. the affidavit of Mark Stanarevic affirmed 6 December 2019;

3. the affidavit of Dr Matthew Kabbabe affirmed 10 February 2020; and

4. a copy of this order;

upon the Respondent in the United States of America, in accordance with Article 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, by sending it by international registered post, with an acknowledgement of receipt to be provided to the Prospective Applicant, to the Respondent’s address at:

Google LLC

C/O Custodian of Records

1600 Amphitheatre Parkway

Mountain View, California 94043

United States of America

2. The matter be listed for a case management hearing on 25 March 2020 at 9.30 am.

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

REASONS FOR JUDGMENT

MURPHY J:

1. The prospective applicant, Dr Matthew Kabbabe, is a dental surgeon based in Victoria who relies on the internet to attract customers across Australia. He seeks leave to serve an originating application upon the respondent Google LLC (Google), which is based in the United States of America, pursuant to Part 10 of the Federal Court Rules 2011 (Cth) (the Rules). The originating application is brought under r 7.22 of the Rules and seeks orders to require Google to provide preliminary discovery of all documents or things in its possession or control relating to the description of an unknown person who posted an allegedly defamatory review in relation to Dr Kabbabe’s dental practice on Google, using a pseudonym. Dr Kabbabe seeks preliminary discovery to identify the unknown prospective respondent so that he may bring a defamation proceeding against him or her.

2. For the reasons I explain, I consider it appropriate to accede to the application and to grant leave to Dr Kabbabe to serve the proceeding on Google in the USA in accordance with Article 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 (the Hague Service Convention) by sending it by international registered post, with an acknowledgement of receipt to be provided to Dr Kabbabe’s solicitor.

Consideration

3. Rule 10.43(2) provides that a party may apply to the Court for leave to serve an originating application on a person in a foreign country in accordance with the Hague Service Convention. Before leave may be granted to serve an originating application on a respondent outside Australia the Court must be satisfied of four matters set out in r 10.43(3) and (4) of the Rules;

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 (r 10.43(3));

2. the Court has jurisdiction in the proceeding (r 10.43(4)(a));

3. the proceeding is of a kind mentioned in r 10.42 (r 10.43(4)(b)); and

4. the applicant has a prima facie case for all or any of the relief claimed in the proceeding (r 10.43(4)(c)).

4. I am satisfied of each of those matters.

5. First, the prospective applicant relies on the affidavit of his solicitor, Mr Mark Stanarevic of Matrix Legal, affirmed 6 December 2019, which establishes that the USA is a contracting party to the Hague Service Convention.

6. As Allsop J (as his Honour then was) noted in AIA Australia Ltd v Richards [2017] FCA 84 (AIA Australia) at [7] the Hague Service Convention contemplates several mechanisms (or “channels” as they are described in the Practical Handbook on the Operation of the Hague Service Convention (Permanent Bureau of the Hague Conference on Private International Law, 2006)) (Practical Handbook) for service. His Honour said:

The “main channel of transmission” is service under Article 5 of the Hague Service Convention through the “Central Authority” of the receiving State. The Convention also permits service through several “alternative channels”: Practical Handbook at [183].

7. The prospective applicant proposes service by one of the alternative channels, namely service by post pursuant to Art. 10(a). That article relevantly provides:

Provided the State of destination does not object, the present Convention shall not interfere with –

1. the freedom to send judicial documents, by postal channels, directly to persons abroad,

…

8. As Allsop J also noted in AIA Australia at [13], the Practical Handbook states at [196] that “transmission … through postal channels includes service of process upon the addressee”. This Court has granted leave to serve documents by international registered post on a number of previous occasions and considered this to be compliant with Art. 10(a): see Deputy Commissioner of Taxation v Power Assets Holdings Ltd (previously known as Hongkong Electric Holdings Ltd) [2013] FCA 708; (2013) 96 ATR 51 at [15]-[22] (Gordon J); Deputy Commissioner of Taxation v Cheung Kong Infrastructure Holdings Ltd [2013] FCA 707; (2013) 96 ATR 44 at [15]-[22] (Gordon J); Bell v Steele [2011] FCA 1390; (2011) 198 FCR 291 at [13] and [16] (Collier J); and Ahmed v Al-Hussain Pty Ltd t/as The Cheesecake Shop [2018] FCA 1741 at [17] (Rares J).

9. In Water Splash Inc v Menon 581 U.S.___(2017) at 12 the US Supreme Court held that the Hague Service Convention does not prohibit service of process in the USA by direct post to the respondent, and there is nothing in the materials before the...