Lin v Google LLC

• Jurisdiction: Australia Federal only
• Court: Federal Court
• Judgment Date: 13 September 2021
• Neutral Citation: [2021] FCA 1113
• Date: 13 September 2021

Federal Court of Australia

Lin v Google LLC [2021] FCA 1113

File number:	NSD 818 of 2021
Judgment of:	WIGNEY J
Date of judgment:	13 September 2021
Catchwords:	PRACTICE AND PROCEDURE – application for leave to serve originating application seeking preliminary discovery outside Australia pursuant to Div 10.4 of the Federal Court Rules 2011 (Cth) – whether proceeding is of a kind mentioned in r 10.42 – whether service in accordance with Hague Convention – whether application accompanied by affidavit in accordance with r 10.43(3) – whether Court has jurisdiction in the proceeding – whether prospective applicant has prima facie case for all or any of the relief claimed – where substituted service inappropriate – leave for service outside Australia granted
Legislation:	Federal Court Rules 2011 (Cth), rr 7.22, 7.22(1)(a), 7.22(1)(b), 7.22(1)(c)(ii), 10.24, 10.43(1)(a), 10.43(2), 10.43(3)(c)(ii), 10.43(4)(b), 10.43(4)(c), 40.08 Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth), s 4(2) Limitation Act 1969 (NSW), s 14B Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters done at the Hague on 15 November 1965, Art 10
Cases cited:	AIA Australia Ltd v Richards [2017] FCA 84 Allison v Google LLC [2021] FCA 186 Allphones Retail Pty Ltd v Australian Competition and Consumer Commission (2009) 259 ALR 354; [2009] FCA 980 Australian Information Commission v Facebook Inc (2020) 144 ACSR 88; [2020] FCA 531 Barilaro v Shanks-Markovina (No 1) [2021] FCA 789 Boyd v Automattic, Inc [2019] FCA 86 Carnegie Corp Ltd v Pursuit Dynamics Plc (2007) 162 FCR 375; [2007] FCA 1010 Colagrande v Telstra Corporation Limited [2020] FCA 1595 Commissioner of Taxation v Zeitouni (2013) 306 ALR 603; [2013] FCA 1011 Crosby v Kelly (2012) 203 FCR 451; [2012] FCAFC 96 Dow Jones & Company Inc v Gutnick (2002) 210 CLR 575; [2002] HCA 56 Kabbabe v Google LLC [2020] FCA 126 Kukulka v Google LLC [2020] FCA 1229 Laurie v Carroll (1958) 98 CLR 310 Re Freehills; New Tel Ltd (in liq) (2008) 66 ACSR 311; [2008] FCA 762 Seven Consulting Pty Ltd v Google LLC [2021] FCA 203 Sony Music Entertainment (Australia) Ltd v University of Tasmania (2003) 129 FCR 472; [2003] FCA 532 Sydney Criminal Lawyers v Google LLC [2021] FCA 297
Division:	General Division
Registry:	New South Wales
National Practice Area:	Other Federal Jurisdiction
Number of paragraphs:	39
Date of hearing:	Determined on the papers
Counsel for the Prospective Applicant:	Mr T B Senior
Solicitor for the Prospective Applicant:	Birchgrove Legal
Counsel for the Respondent:	The Respondent did not appear

ORDERS

		NSD 818 of 2021
BETWEEN:	XU HONG (ANDREW) LIN Prospective Applicant
AND:	GOOGLE LLC Respondent

order made by:	WIGNEY J
DATE OF ORDER:	13 SEptember 2021

THE COURT ORDERS THAT:

1. Pursuant to rr 10.42 and 10.43 of the Federal Court Rules 2011 (Cth), the prospective applicant be granted leave to serve the originating application, affidavit of Moustafa Kheir sworn 27 July 2021, affidavit of Xu Hong (Andrew) Lin sworn 9 August 2021, and a copy of these orders (together, the documents) on the respondent, Google LLC, in the United States of America in accordance with 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 the documents using international registered post, with an acknowledgment of receipt to be provided by Google to the prospective applicant, addressed to:

Google LLC

C/O Custodian of Records

1600 Amphitheatre Parkway

Mountain View, California 94043

United States of America

2. Costs be reserved.

3. The matter be listed for case management hearing on 11 October 2021.

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

REASONS FOR JUDGMENT

WIGNEY J:

1. The prospective applicant, Mr Xu Hong (Andrew) Lin, is a manager and ex-owner of a business called Strathfield Autobody which is located in a suburb of Sydney, New South Wales. On 12 August 2021, Mr Lin filed an originating application seeking an order under r 7.22 of the Federal Court Rules 2011 (Cth) for preliminary discovery of documents thought to be in the control of Google LLC, a limited liability company headquartered in the United States of America (USA).

2. Mr Lin requires the Court’s leave in order to effect service of the originating process outside Australia: r 10.43(1)(a) of the Rules. Mr Lin applied for leave to serve Google in the USA in accordance with 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 so-called Hague Convention or, in the alternative, by email. For the reasons given below, Mr Lin will be granted leave to serve Google in the USA in a manner permitted by the Hague Convention, but not by email.

BACKGROUND

3. Strathfield Autobody is a business which provides “mechanical and smash repair work to customers across NSW”. The business has a Google “My Business” webpage, which appears on Google Maps. It can be viewed by anyone in Australia, or indeed anyone in the world, who has access to Google. Any person or ‘user’ with a Google account can also write a review of the business on its Google business page. The profile name of a Google account is created by the user and the user’s identity is not necessarily verified by Google.

4. Mr Lin’s evidence was that, on or around 2 October 2020, a Google user with the profile name ‘Lucas’ posted a review on Strathfield Autobody’s Google business page. That review read as follows:

Very poor work. The owner Andrew is a con man. Promised everything and then reused damaged parts that couldn’t be seen easily. Refused to fix the problems. Very unprofessional and unsafe. Stay well away from this con man.

5. It would appear that Mr Lin, who in certain circumstances goes by the English name “Andrew”, was the main subject or target of the negative assertions or allegations in the review. Mr Lin’s evidence was that the allegations against him were false. He also claims that they were defamatory and damaging to him and the business. His evidence was that, not long after the review was posted, a customer cancelled a booking. When Mr Lin asked the customer why he was cancelling his booking, the customer said that he had seen “some reviews”. Mr Lin also claimed, in his evidence, that some Chinese customers saw the review and “spread the word” amongst the Chinese community.

6. Mr Lin appears to suspect that the author of the review was a person who, at the time the review was posted, was the plaintiff in proceedings against him in a Queensland court. That person’s first name was ‘Luke’. In late October 2020, Mr Lin instructed his solicitors to email a letter to the solicitors who were acting for Luke in the Queensland proceedings. The letter referred to the negative review and, while not saying so directly, effectively asserted that Luke was its author. The letter claimed that the review was false and defamatory and demanded that it be removed. It was also noted that the letter constituted a “concerns notice” for the...