Khan v Google LLC

• Jurisdiction: Australia Federal only
• Court: Federal Court
• Judgment Date: 11 July 2023
• Neutral Citation: [2023] FCA 785
• Date: 11 July 2023

Federal Court of Australia

Khan v Google LLC [2023] FCA 785

File number(s):	VID 95 of 2023
Judgment of:	BUTTON J
Date of judgment:	11 July 2023
Date of publication of reasons:	12 July 2023
Catchwords:	PRACTICE AND PROCEDURE – application for leave to proceed against respondent served outside Australia pursuant to r 10.43D of the Federal Court Rules 2011 – where respondent was aware of the application but elected not to appear or participate – whether respondent was properly served – whether originating application makes claims of a kind permitted to be served overseas without leave – leave to proceed granted ; PRACTICE AND PROCEDURE – application for preliminary discovery to ascertain description of prospective respondent – where prospective applicant was the subject of an anonymous email sent from Gmail email address – where respondent is the apparent owner and operator of Gmail – whether prospective applicant has established requirements of r 7.22(1) of the Federal Court Rules 2011 – preliminary discovery ordered on more confined terms than those sought by the prospective applicant
Legislation:	Federal Court Rules 2011 (Cth) rr 7.22, 10.42, 10.43B, 10.43C, 10.43D Supreme Court (General Civil Procedure) Rules 2015 (Vic) rr 7.02, 7.07
Cases cited:	Agar v Hyde (2000) 201 CLR 552 AIA Australia Ltd v Richards [2017] FCA 84 Barilaro v Shanks-Markovina (No 1) [2021] FCA 789 Bingley-Pullin v Montgomery [2018] NSWSC 1308 Brighton Automotive Holdings Pty Ltd v Honda Australia Pty Ltd (2021) 65 VR 146 Hutchinson v AD Securities America LLC [2021] NSWSC 1573 Kabbabe v Google LLC [2020] FCA 126 King v Linkage Access Ltd [2022] VSC 158 Lew Footwear Holdings Pty Ltd v Madden International Ltd [2014] VSC 320 Lin v Google LLC [2021] FCA 1113 Rio Tinto Shared Services Pty Ltd v English Datasystems LLC (2021) 65 VR 25 Rossiter v Core Mining Ltd [2015] NSWSC 360 ; Nygh’s Conflict of Laws in Australia (LexisNexis Butterworths, 10th ed, 2020)
Division:	General Division
Registry:	Victoria
National Practice Area:	Other Federal Jurisdiction
Number of paragraphs:	37
Date of hearing:	11 July 2023
Counsel for the Prospective Applicant:	Mr J A Castelan
Solicitor for the Prospective Applicant:	SR Lawyers
Solicitor for the Respondent:	The respondent did not appear

ORDERS

		VID 95 of 2023
BETWEEN:	NURUL KHAN Prospective Applicant
AND:	GOOGLE LLC Respondent

order made by:	BUTTON J
DATE OF ORDER:	11 JULY 2023

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...