Garde-Wilson v Google LLC [2021] FCA 243

Garde-Wilson v Google LLC [2021] FCA 243

The interlocutory application was refused because, although the originating and interlocutory applications sought r 7.22 discovery to ascertain the description of the unknown reviewer, the relief advanced at the hearing was in substance for a different purpose: discovery under r 7.23 to decide whether to sue Google for loss of opportunity or negligent spoilation. No such r 7.23 application had been filed or served on Google. The originating application was also dismissed because it had been on foot since 17 February 2020, Google had stated that relevant data had been permanently deleted and that it had no separate backup systems of the kind contemplated, and the applicant's response was...

Jurisdiction
Australia
Judgment Date
18 March 2021
Procedural Posture
Application for Pre Action Discovery Under Federal Court Rules 2011 (cth) R 7.22 / Hearing of Interlocutory Application Dated 27 October 2020 Seeking Further Preliminary Discovery; Originating Application Dated 17 February 2020 Also Considered
Outcome
Interlocutory application dismissed; originating application dismissed.
Legal Topics
['pre Action Discovery' 'preliminary Discovery to Ascertain Description of Unknown Reviewer' 'federal Court Rules 2011 (cth) Rr 7.22 and 7.23' 'service Outside Australia' 'potential Defamation and Misleading or Deceptive Conduct Claims' 'proposed Negligent Spoilation Claim']
['practice and Procedure'] ['pre Action Discovery' 'preliminary Discovery to Ascertain Description of Unknown Reviewer' 'federal Court Rules 2011 (cth) Rr 7.22 and 7.23' 'service Outside Australia' 'potential Defamation and Misleading or Deceptive Conduct Claims' 'proposed Negligent Spoilation Claim']

Case Brief

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Procedural Posture

Application for Pre Action Discovery Under Federal Court Rules 2011 (cth) R 7.22 / Hearing of Interlocutory Application Dated 27 October 2020 Seeking Further Preliminary Discovery; Originating Application Dated 17 February 2020 Also Considered

Legal Issues

  1. 1 ['Whether the Court should order further pre-action discovery from Google under r 7.22 to identify an unknown reviewer who posted a Google review using a pseudonym' 'Whether the orders sought at the hearing fell outside the scope of the originating application and interlocutory application' 'Whether the application was in substance an unfiled and unserved application under r 7.23 for discovery to decide whether to sue Google' 'Whether the originating application should remain on foot after Google stated that relevant account data had been permanently deleted and that it did not maintain separate backup systems of the kind contemplated']

Ratio Decidendi

The interlocutory application was refused because, although the originating and interlocutory applications sought r 7.22 discovery to ascertain the description of the unknown reviewer, the relief advanced at the hearing was in substance for a different purpose: discovery under r 7.23 to decide whether to sue Google for loss of opportunity or negligent spoilation. No such r 7.23 application had been filed or served on Google. The originating application was also dismissed because it had been on foot since 17 February 2020, Google had stated that relevant data had been permanently deleted and that it had no separate backup systems of the kind contemplated, and the applicant's response was...

Court Disposition

Interlocutory application dismissed; originating application dismissed.

Orders

  • ['The interlocutory application dated 27 October 2020 be dismissed.' 'The originating application dated 17 February 2020 be dismissed.' 'The solicitor for the Prospective Applicant provide these reasons to the Prospective Applicant forthwith.']