Bayles v Nationwide News Pty Limited

1. Leave be granted to the applicants to serve the second respondent in the United States of America by making an application pursuant to r 10.64 of the Federal Court Rules 2011 (Cth) for a request for service to a Registrar of this Court in that Registrar's capacity as a forwarding authority under the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters done at The Hague on 15 November 1965.
2. Costs of the applicants' interlocutory application filed on 20 August 2020 be reserved. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

KATZMANN J: 1 This is an action for defamation brought by Yarraka Bayles on her own behalf and as tutor for her nine-year old son. The action is based on material appearing on the personal Twitter account of the journalist, Miranda Devine. Nationwide News Pty Limited is alleged to be vicariously liable for her conduct. The Federal Court Rules 2011 (Cth) require that service of an originating application and statement of claim (originating documents) be served personally (r 8.06). Where the respondent is an individual, that means leaving the originating documents with the individual (r 10.01). The originating documents have been served in accordance with the Rules on News but they have not been served personally on Ms Devine, since she is currently in the United States of America. Although Ms Devine used to write a regular column for The Daily Telegraph, which is published by News, and I was given to understand that she remains contracted to News while in the United States, Mr Todd, the lawyer acting for News, indicated that he was not authorised to accept service on her behalf. 2 In these circumstances, the applicants filed an interlocutory application seeking an order that service be effected other than by personal service. The order they seek is that service of the originating documents be deemed to have occurred on 4 August 2020 by email to two email addresses each of which includes Ms Devine's name. In the alternative, the applicants seek one of two orders: either that the applicants have leave to serve the documents on Ms Devine by emailing the solicitor for News or by serving them in accordance with the Hague Convention on Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters. 3 The application was supported by an affidavit sworn by Duncan Fine, a solicitor. 4 The first of the two alternative orders is, in effect, an application for substituted service. The authorities indicate that, where a person to be served is in a foreign country, it is inappropriate for a court to consider an order for substituted service unless an order has first been obtained for service outside Australia: see Commissioner of Taxation v Zeitouni [2013] FCA 1011 at [26] and the cases referred to there. The applicants accepted that the same principle would apply to an application for deemed service. 5 Division 10.4 of the Rules deals with service outside the jurisdiction. 6 Rule 10.42 relevantly provides that, subject to r 10.43, an originating application may be served on a person in a foreign country in a proceeding that consists of, or includes, any one of more of the kinds of proceeding mentioned in the table to the rule. 7 Rule 10.43 relevantly provides as follows: 10.43 Application for leave to serve originating application outside Australia (1) Service of an originating application on a person in a foreign country is effective for the purpose of a proceeding only if: (a) the Court has given leave under subrule (2) before the application is served; or (b) the Court confirms the service under subrule (6); or (c) the person served waives any objection to the service by filing a notice of address for service without also making an application under rule 13.01. Note: A respondent may apply to set aside an originating application or service of that application - see rule 13.01. (2) A party may apply to the Court for leave to serve an originating application on a person in a foreign country in accordance with a convention, the Hague Convention or the law of the foreign country. (3) The application under subrule (2) must be accompanied by an affidavit stating: (a) the name of the foreign country where the person to be served is or is likely to be; and (b) the proposed method of service; and (c) that the proposed method of service is permitted by: (i) if a convention applies - the convention; or (ii) if the Hague Convention applies - the Hague Convention; or (iii) in any other case - the law of the foreign country. (4) For subrule (2), the party must satisfy the Court that: (a) the Court has jurisdiction in the proceeding; and (b) the proceeding is of a kind mentioned in rule 10.42; and (c) the party has a prima facie case for all or any of the relief claimed in the proceeding. … The reference to the Hague Convention is a reference to the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (done at The Hague on 15 November 1965): r 10.41. 8 Mr Fine's affidavit states the matters required by r 10.43(3). 9 It identifies the foreign country as the United States of America. It states that Australia and the United States are parties to the Hague Convention. Annexed to the affidavit are a copy of the Hague Convention and a schedule, downloaded from the Hague Convention website (), listing the States which are parties to the Convention. The proposed method of service is: (a) emailing Ms Devine at the email addresses and ; (b) making an application to the Registry (scil. Registrar) of the Court for a request for service abroad pursuant to r 10.64 which, amongst other things, requires that the request be addressed to the Central Authority for the Convention country. 10 Article 5 of the Convention relevantly provides that: The Central Authority of the State addressed shall itself serve the document or shall arrange to have it served by an appropriate agency, either - a) by a method prescribed by its internal law for the service of documents in domestic actions upon persons who are within its territory, or b) by a particular method requested by the applicant, unless such a method is incompatible with the law of the State addressed. 11 The remaining question is whether the applicants have satisfied the Court of the matters listed in r 10.43(4). 12 The first of those matters is whether the Court has jurisdiction. 13 The Court has jurisdiction with respect to actions for defamation in circumstances in which the Australian Capital Territory and the Northern Territory would have jurisdiction. See Crosby v Kelly (2012) 203 FCR 451 at [35] (Robertson J), Bennett and Perram JJ agreeing at [1] and [2] respectively. The source of jurisdiction is s 9(3) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth), which picks up, as Commonwealth law, the jurisdiction of the ACT and Northern Territory Supreme Courts to hear and determine such an action. Section 9(3) relevantly provides that "[t]he Federal Court may … exercise jurisdiction (whether original or appellate) conferred on that court by a provision … of a law of the Australian Capital Territory or the Northern Territory relating to cross-vesting of jurisdiction". 14 The foundation of the cause of action in defamation is damage to reputation and it is the publication, not the libel, which is the actionable wrong. In the case of defamatory material appearing on the internet, publication occurs in the place where the material is downloaded. Consequently, the place of the tort is the place of publication. See Dow Jones & Co Inc v Gutnick (2002) 2010 CLR 575 at [44]. It follows that this Court would have jurisdiction if the tweets were downloaded and therefore published in either the ACT or the Northern Territory. 15 There is no evidence that the tweets with which this action is concerned were downloaded in the ACT. I was merely asked to infer that they were. 16 As for the Northern Territory, Mr Fine deposed that he was informed and believed that the "applicants are aware of people from the Northern Territory who read one or more of the publications". This evidence is hearsay. While this is an interlocutory application and in an interlocutory proceeding the hearsay rule does not apply, that is only the case if the party who adduces the evidence also identifies the source of the evidence: Evidence Act 1995 (Cth), s 75. Mr Fine did not identify his source. In Wily v Terra Cresta Business Solutions Pty Ltd [2006] NSWSC 949 at [11] Palmer J said: The purpose of s.75 of the Evidence Act is to facilitate the conduct of interlocutory proceedings in circumstances where it is often difficult, at short notice, to adduce evidence in direct and admissible form. For that reason, evidence on information and belief is accepted. However, the requirement of the section that the source of the information be revealed goes some way to assisting the Court in assessing the reliability of that evidence. Without any indication of the source of the evidence proffered on information and belief, the Court is unable to assess its weight nor can the opponent test the evidence or make any sensible submission as to its weight. 17 These remarks were cited with approval by Spigelman CJ, with whom Allsop P and Hodgson JA agreed, in New South Wales Crime Commission v Vu [2009] NSWCA 349 at [45]. 18 Be that as it may, the statement of claim pleads that the tweets were published throughout Australia, including the Australian Capital Territory. That is sufficient to give the Court jurisdiction: Wing v Fairfax Media Publications Pty Limited (2017) 255 FCR 61 (Allsop CJ and Besanko JJ) at [13]. See also Rana v Google Inc (2017) 254 FCR 1 at [21]-[22] (Allsop CJ, Besanko and White JJ) and Triguboff v Fairfax Media Publications Pty Ltd [2018] FCA 845 at [90] (Bromwich J). 19 The next question is whether I am satisfied that the proceeding is of a kind mentioned in r 10.42. 20 Mr Fine deposed that he was "informed and believe[d] that each of the publications were viewed in Australia by many people who know the Applicants". He said, too, that "[t]his is further evidence by media publications in Australia reporting on the publications". For this reason he stated (and his counsel submitted): "The proceeding therefore comes within a number of the categories listed in Rule 10.42", pointing to item 1 (a proceeding based on a cause of action arising in Australia); item 4 (a proceeding based on a tort committed in Australia); item 5 (a proceeding based on, or seeking the recovery of, damage suffered wholly or partly in Australia caused by a tortious act); and item 12 (a proceeding based on a contravention of an Act that is committed in Australia). 21 Mr Fine's evidence does not fall within the exception in s 75. None of the "media publications" to which he referred was annexed to his affidavit. Nor is the proceeding based on a contravention of an Act that is committed in Australia. The applicants have not pleaded that any Act was contravened. 22 But the proceeding is based on a cause of action allegedly arising in Australia. It is also based on a tort said to have been committed in Australia. Moreover, it seeks the recovery of damage suffered in Australia caused by a tortious act. For these reasons I am satisfied that it is a proceeding of a kind mentioned in r 10.42. 23 The final question is whether the applicants have a prima facie case for all or any of the relief claimed. It is sufficient for this purpose to deal only with the case against Ms Devine. 24 A prima facie case for relief is made out if, on the material before the court, inferences are open which, if translated into findings of fact, would support the relief claimed: Ho v Akai Pty Ltd (in liq) (2006) 247 FCR 205 at [10] (Finn, Weinberg and Rares JJ). It is well-established that a substantial inquiry is not called for. 25 The applicants' case is based on three matters, all appearing on Ms Devine's Twitter page. The first matter complained of is a tweet which contains a retweet and an alleged endorsement of the contents of the retweet. This is said to carry the imputations that Quaden "had dishonestly acted out being distressed in a video to obtain money from donors" and "had dishonestly pretended to have been the victim of bullying, thereby hurting genuine victims of bullying". It is also said to carry the imputations that Ms Bayles had posted the video on the internet knowing that it falsely depicted her son as distressed in order to receive donations; had dishonestly coached her son to pretend to be distressed to get donations; and had falsely presented her son as a victim of bullying, thereby hurting genuine victims of bullying. The second and third matters complained of continue the conversation and are said to carry the same defamatory imputations. The third is also said to carry the imputation that, by her conduct, Ms Bayles dishonestly coached her son to pretend to be distressed, thereby engaging in child abuse. The tweets in question appear as schedules to the statement of claim. In his affidavit Mr Fine stated that he is instructed by the applicants that the imputations are false. 26 The applicants allege that each matter was "accessed, downloaded and comprehended" from Ms Devine's Twitter account by "persons unknown to the applicants in each State and Territory in Australia". The applicants say that further particulars of the extent of the publication and republication will be supplied following admissions, discovery and interrogatories. 27 The test of whether a matter is defamatory is "whether … it is likely to lead an ordinary reasonable person to think less of [the] plaintiff": Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460 at [5] (French CJ, Gummow, Kiefel and Bell JJ). For the purpose of determining whether the relevant publications are defamatory, it does not matter whether Ms Devine intended to convey the defamatory imputations; what matters is how the ordinary reasonable reader would understand them: Hockey v Fairfax Media Publications Pty Limited (2015) 237 FCR 33 at [72] (White J). 28 Damage is presumed on proof of publication of the defamatory matter: Bristow v Adams [2012] NSWCA 166 at [20]-[31] (Basten JA, Tobias AJA agreeing at [45]). 29 I accept that the imputations are reasonably arguable. If they are found to have been conveyed, I do not doubt that they would be likely to lead an ordinary reasonable person to think less of the applicants. As Ms Chrysanthou, counsel for the applicants, put it, they are, in effect, allegations of fraud. 30 The more difficult question is publication. As I indicated earlier, the evidence led on this question was quite unsatisfactory. Still, Ms Devine is a prominent Australian journalist. Mr Fine deposed that at the time of publication her Twitter followers exceeded 74,000. It is likely that many, if not most, of them would live in Australia. Mr Fine also deposed that Ms Devine's Twitter account is promoted on the website of The Daily Telegraph, a local publication of News. In these circumstances, I am prepared to infer that the tweets in question were downloaded and read in Australia by some people. 31 It follows that I am satisfied that the applicants have a prima facie case for some or all of the relief they claim. 32 So what order should be made? 33 The applicants' preference is for either substituted service or deemed service since service under the Hague Convention can take months. 34 Substituted service is dealt with in r 10.24. It relevantly provides that, if it is not practicable to serve a document on a person in a way required by the Rules, a party may apply to the Court without notice for an order substituting another method of service. 35 Deemed service is covered by r 10.23. Without notice, a party may apply to the Court for an order that a document is taken to have been served on a person on the date mentioned in the order if: (a) it is not practicable to serve a document on the person in a way required by the Rules; and (b) the party provides evidence that the document has been brought to the attention of the person to be served. 36 In each case r 1.41 gives the Court the power to make such an order. 37 It is plain that the most convenient course would be to make an order for deemed service. Mr Fine's evidence is that the originating documents have been brought to the attention of Ms Devine. He states that he emailed the originating documents to Ms Devine at her standard work email () and an email address listed on her Facebook page () and that he received no "bounce back" to indicate that they were not received. To show that the documents have been brought to the attention of the person to be served it is not necessary for there to be evidence that the person has acknowledged receipt of them or given any attention to them: British American Tobacco Australasia Limited v Taleb (No 1) [2012] FCA 1065 at [46] (Dodds-Streeton J). 38 Nevertheless, there are problems with both the application for deemed service and the application for substituted service. 39 With respect to the application for deemed service, the order the applicants seek is that the documents are taken to have been served on Ms Devine on 4 August 2020. But the evidence is silent as to the date Mr Fine emailed the documents. Furthermore, there is no evidence of the source of the information regarding Ms Devine's standard work email address. 40 With respect to the application for deemed or substituted service, the evidence is insufficient to demonstrate that it is not practicable to serve Ms Devine personally. 41 I discussed the meaning of "not practicable" in the context of an application for substituted service in Electrolux Home Products Pty Ltd v Delap Imprex Ltd [2013] FCA 600; 103 IPR 421 at [72]-[81]. I accept that "not practicable" does not mean not possible or futile. It is sufficient that personal service cannot be effected using the available means. Here, of course, personal service can be effected using the available means under the Hague Convention. What is not practicable, however, will vary according to the circumstances of the case. But mere inconvenience is not enough. 42 In essence, the applicants submitted that time was of the essence because Quaden's health was in jeopardy and service in accordance with the Hague Convention could take a long time. In Rohalo Pharmaceutical Pty Ltd v RP Scherer SpA (1994) 15 ACSR 347 at 366 Lindgren J held that it was "not practical" to require personal service where there were special circumstances making it "desirable that the litigation be progressed quickly and efficiently". In Australian Securities and Investments Commission v China Environment Group Ltd [2013] FCA 286 Besanko J accepted a submission from ASIC that it was not practicable to require service in the way required by the Rules in the circumstances of urgency which attended its claim for interlocutory relief. 43 The difficulty for the applicants lies in the paucity of evidence to support their submission. 44 Mr Fine deposed on the basis of information and belief that Quaden has been under the care of the Paediatric Palliative Care Unit at Queensland Children's Hospital since October 2019 when he was diagnosed with critical respiratory failure. He went on to state: 21 If the First Applicant falls asleep at school and the Second Applicant is not there to pick him up straight away then an ambulance has to be called and the First Applicant is transported to hospital for ventilation for severe obstructive sleep apnoea. 22 As a result of a false and malicious internet conspiracy theory that was spread across the globe and was centred on both the Applicants in February 2020, the First and Second Applicants received a large number of anonymous death threats. These death threats (against a small child living with a disability and his mother) continue to this day. 23 As a result of these death threats, the First Applicant continues to suffer from high levels of PTSD, anxiety and suicidal ideation. 24 If this matter were to resolve (sic) on an urgent basis, that would dramatically increase the probable health outcomes of the First Applicant. 45 The evidence at [21]-[24] was inadmissible. It does not satisfy the terms of s 75 and it contains opinions which are not admissible under Pt 3.3 of the Evidence Act. The source of these assertions was not identified and no medical evidence was annexed to the affidavit. Since there was no contradictor, the evidence was received without objection, but it is entitled to no weight. 46 No evidence was adduced as to the time it was likely to take to serve Ms Devine personally in the United States. 47 Consequently, the foundation for the claim of urgency has not been established and I am not satisfied that it is not practicable to serve Ms Devine personally. That means that both the application for deemed service and the application for substituted service cannot succeed. 48 That said, if the applicants were to file evidence as to the likely time it would take to serve the documents in the United States under the Hague Convention, medical evidence to support the assertions made in paras 23 and 24 of Mr Fine's affidavit, evidence of the source of the information about Ms Devine's work email address, and proof that the originating documents were emailed to Ms Devine on 4 August 2020, I would happily revisit the application for deemed service. 49 It follows that I will grant the applicants leave to serve Ms Devine in the United States in accordance with the Convention but they may renew their application for deemed service if they come up with the necessary evidence. 50 I will reserve the question of costs. I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Katzmann.