Turnbull trading as Berry Family Law v Google LLC [2021] FCA 1589

Turnbull trading as Berry Family Law v Google LLC [2021] FCA 1589

The Court granted leave to serve outside Australia and ordered preliminary discovery because the application fell within rr 10.42 and 10.43, service by international registered post in the United States was available under the Hague Convention, the Court had jurisdiction, and the Prospective Applicant established a prima facie basis for preliminary discovery: the reviews may give rise to relief for defamation and/or misleading and deceptive conduct, reasonable enquiries had not identified the anonymous reviewers, and Google was likely to control data assisting their identification. Substituted service by email was refused because the COVID-19-related circumstances supporting such an order...

Jurisdiction
Australia
Judgment Date
24 November 2021
Procedural Posture
Application for Preliminary Discovery Pursuant to R 7.22 of the Federal Court Rules 2011 (cth), Leave to Serve Outside Australia, and Substituted Service / Amended Originating Application Heard on 24 November 2021; Prospective Respondent Did Not Appear
Outcome
Leave to amend, leave to serve outside Australia, and preliminary discovery granted; substituted service refused.
Legal Topics
['preliminary Discovery' 'service Outside the Jurisdiction' 'hague Convention Service' 'substituted Service' 'anonymous Online Reviews' 'misleading and Deceptive Conduct']
['practice and Procedure' 'defamation' 'consumer Law'] ['preliminary Discovery' 'service Outside the Jurisdiction' 'hague Convention Service' 'substituted Service' 'anonymous Online Reviews' 'misleading and Deceptive Conduct']

Case Brief

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Procedural Posture

Application for Preliminary Discovery Pursuant to R 7.22 of the Federal Court Rules 2011 (cth), Leave to Serve Outside Australia, and Substituted Service / Amended Originating Application Heard on 24 November 2021; Prospective Respondent Did Not Appear

Legal Issues

  1. 1 ['Whether leave should be granted under rr 10.42 and 10.43 of the Federal Court Rules 2011 (Cth) to serve Google LLC in the United States of America.' 'Whether the Prospective Applicant had a prima facie case for preliminary discovery under r 7.22 of the Federal Court Rules 2011 (Cth).' 'Whether Google LLC should be required to give discovery of documents identifying two anonymous reviewers.' 'Whether substituted service by email should be ordered in addition to service by registered post under the Hague Convention.' 'Whether leave to amend the originating application should be granted.']

Ratio Decidendi

The Court granted leave to serve outside Australia and ordered preliminary discovery because the application fell within rr 10.42 and 10.43, service by international registered post in the United States was available under the Hague Convention, the Court had jurisdiction, and the Prospective Applicant established a prima facie basis for preliminary discovery: the reviews may give rise to relief for defamation and/or misleading and deceptive conduct, reasonable enquiries had not identified the anonymous reviewers, and Google was likely to control data assisting their identification. Substituted service by email was refused because the COVID-19-related circumstances supporting such an order...

Court Disposition

Leave to amend, leave to serve outside Australia, and preliminary discovery granted; substituted service refused.

Orders

  • ['The Prospective Applicant be granted leave to file an Amended Originating Application dated 24 November 2021.' 'Pursuant to rr 10.42 and 10.43 of the Federal Court Rules 2011 (Cth), the Prospective Applicant has leave to serve the Amended Originating Application dated 24 November 2021, the Affidavit of Mark...