Proposed Order 1
25 Ms Sluiter contended in her written submissions at [9] that Order 1 is in effect an order for preliminary discovery.
26 Having read the Respondents' outline of submissions, Mr Boyd indicated that he would seek leave of the Court to waive any provision of the Rules which would prevent his application for an interim injunction to compel the respondents to disclose information regarding the identity of the publishers of the website in question to stand as an application for preliminary discovery of their identity pursuant to r 7.22 of the Rules.
27 Ms Sluiter raised no objection to that course being pursued. I made orders by consent to that effect.
28 However, lest there be any misunderstanding, I reject that proceeding by way of r 7.22 is available as a pathway to the extensive discovery sought in proposed Order 1. It is not in the interests of justice to allow a prospective applicant to use a mechanism otherwise specifically provided for in the Rules to obtain more extensive discovery about an undisclosed third party than is provided for by r 7.22.
29 In that regard, I note that the term "description" referred to in r 7.22 is defined in Sch 1 of the Rules as follows:
(a) for a person who is an individual -- the person's name, residential or business address and occupation;
(b) for a person that is not an individual:
(i) the person's name; and
(ii) the address of one of the following:
(A) the person's registered office;
(B) the person's principal office;
(C) the person's principal place of business.
30 In considering in due course whether or not to make an order under r 7.22, such an order would necessarily be confined according to that definition.
31 I return, therefore, to the issue of whether or not an order should be made under r 7.22 on the basis that the parties have consented to the application being dealt with in that more limited manner. Rule 7.22 empowers the Court to make orders to allow a party, or prospective party, to ascertain the description of a prospective respondent. Its terms are as follows:
Order for discovery to ascertain description of respondent
(1) A prospective applicant may apply to the Court for an order under subrule (2) if the prospective applicant satisfies the Court that:
(a) there may be a right for the prospective applicant to obtain relief against a prospective respondent; and
(b) the prospective applicant is unable to ascertain the description of the prospective respondent; and
(c) another person (the other person ):
(i) knows or is likely to know the prospective respondent's description; or
(ii) has, or is likely to have, or has had, or is likely to have had, control of a document that would help ascertain the prospective respondent's description.
(2) If the Court is satisfied of the matters mentioned in subrule (1), the Court may order the other person:
(a) to attend before the Court to be examined orally only about the prospective respondent's description; and
(b) to produce to the Court at that examination any document or thing in the person's control relating to the prospective respondent's description; and
(c) to give discovery to the prospective applicant of all documents that are or have been in the person's control relating to the prospective respondent's description.
Note 1 Control and description are defined in the Dictionary.
Note 2 For how discovery is to be made, see rule 7.25.
(3) The prospective applicant must provide the person with sufficient conduct money to permit the person to travel to the Court.
Note Conduct money is defined in the Dictionary.
32 At the threshold I should indicate that it is not contentious that an order for discovery of this kind can be made with respect to a person or corporation domiciled in the United States of America. That concession was appropriate: see Gearhart United Pty Ltd v Omni Oil Technologies (Asia) SDN BHD [2010] FCA 401; 267 ALR 630. Ms Sluiter on behalf of the Respondents explicitly accepted the Court had power to make such an order assuming the requirements of r 7.22 were met.
33 It is uncontentious that Automattic nor Knock Knock have declined to tell Mr Boyd the name and details of the person who put the material he complains of on the website www.timboydaustralian.com.
34 Three elements are necessary before the Court can be satisfied that there is an appropriate basis to make an order pursuant to r 7.22. First, the prospective applicant must satisfy the Court that there may be a right for him or her to obtain relief against a prospective respondent. Second, the prospective applicant must establish that he or she is unable to ascertain the description of the prospective respondent. And third, another person must know, or be likely to know, the prospective respondent's description, or have, or be likely to have, or had, control of the document that would help ascertain the prospective respondent's description.
35 In respect of the third element, there was no dispute between the parties. Ms Sluiter's written submissions acknowledged that the Respondents hold such information. The relevant paragraphs are as follows:
8 Automattic offers a privacy protection service called "Knock Knock WHOIS Not There," which protects the name and contact information of domain name owners from public view. (https://en.support.wordpress.com/domains/domain-registrations-and-privacy/) This service is purchased by those who do not [wish] for their private contact information to be displayed to the public online by the domain name registry.
…
10 The Respondents, as the web hosting platform, have the following information regarding the website, at the time of creation of the website:
a. name;
b. user name;
c. telephone number;
d. email address;
e. date and time at which the site was created; and
f. IP address from which the site was created.
36 I therefore turn to the other two elements that Mr Boyd must satisfy. In respect of the first element it is for Mr Boyd to satisfy the Court that there may be a right for him to obtain relief against a prospective respondent: see Levis v McDonald [1997] FCA 349; 75 FCR 36 per Lindgren J at 44. In that case his Honour held:
I readily accept that it is not required that a prima facie case be established. As was put on behalf of Messrs Levis, Armstrong and Lee, quite apart from the fact that there is no such element referred to in O 15A r 3, there is a distinction between that rule and O 15A r 6. In the latter case, it is required that there be:
"reasonable cause to believe that the applicant has or may have the right to obtain relief in the Court from a person whose description has been ascertained."
37 I have earlier (at [6]-[7]) referred to the affidavit material regarding the matters that were published on the site www.timboydaustralian.com. Having regard to the content on the website it would be remarkable if the Court were to conclude otherwise than that Mr Boyd may have a right against the person who has control of that site. Subject to the question of jurisdiction of this Court discussed later in these reasons I so conclude.
38 In respect to the second element it is uncontentious that Mr Boyd currently does not know the identity of such the person who controls the domain name www.timboydaustralian.com and that the First and Second Respondents do. It is uncontentious that he has asked the Respondents to provide that information to him and they have declined to do so absent a court order.
39 Ms Sluiter submits that Mr Boyd should first have made enquiries directly to the blogger through the subject website's contact page. I reject that submission. In my opinion Mr Boyd did not act unreasonably by not first seeking that information directly from the person or persons who uploaded the material.
40 It is wholly implausible that a person who has taken advantage of the privacy protection that is provided by Automattic by registering the domain name under the anonymity of "Knock Knock WHOIS Not There," and published material of the nature referred with no indication of its source has not chosen deliberately to hide their identity through that mechanism. It may be in other instances that further enquiry on the expectation of voluntary disclosure might be reasonable but I am prepared to infer that in this instance it would have been futile.
41 Ms Sluiter also referred the Court to the possibility that Mr Boyd might have first sought an order in the courts of the United States of America pursuant to s 1782 of Title 28 of the United States Code. I accept that the latter alternative was, and perhaps remains, available to Mr Boyd. While the Court is grateful to Ms Sluiter for drawing that possibility to Mr Boyd's attention, the availability of an alternative method whereby broadly equivalent (indeed potentially wider) preliminary discovery might be sought through seeking relief in a foreign court is not a bar to this Court making an order pursuant to r 7.22. Ms Sluiter did not suggest it did.
42 The only remaining complexity in this matter is whether or not this Court's jurisdiction is sufficiently engaged that it be satisfied that Mr Boyd may have a right to obtain relief against a prospective respondent. If this Court has no possible basis to exercise jurisdiction in a matter of defamation in the terms and circumstances Mr Boyd has given evidence about he would fail to establish that he may have a right to obtain relief.
43 I therefore turn to the circumstances in which this Court has jurisdiction in a matter involving defamation. The starting point is that publication of a defamatory statement takes place where the material is heard or read. Thus, defamatory articles on the internet are published in Australia when they are downloaded in Australia: see Dow Jones & Company Inc v Gutnick [2002] HCA 56; 210 CLR 575. A comprehensive review of the sources of jurisdiction of this Court was set out in Rana v Google Inc [2017] FCAFC 156 (Rana) per Allsop CJ, Besanko and White JJ at [15]-[24].
44 Insofar as is relevant to the present proceedings, Rana makes it plain (at [24]) that s 9(3) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) had the effect of conferring original jurisdiction upon this Court with respect to a proceeding that would be within the jurisdiction of either the Australian Capital Territory or Northern Territory Supreme Courts. That accords with the earlier decision of Crosby v Kelly [2012] FCAFC 96; 203 FCR 451 in which Perram J had reasoned (at [2]) that s 9(3) has the effect of "creating surrogate Commonwealth law by reference to the jurisdiction of the ACT Supreme Court and thereafter providing a law of the Commonwealth under which matters may then be seen to arise". The plurality judgement in that case was to no different effect.
45 It is uncontentious that the Australian Capital Territory has enacted s 118 of the Civil Law (Wrongs) Act 2002 (ACT) to implement the uniform defamation laws now applying in every state and territory. Rana makes plain that if there is publication of a defamatory statement in the Australian Capital Territory, this Court has jurisdiction in respect of it.
46 Mr Boyd's affidavit asserts at [4(d)] that "[t]his matter is an intranational matter and involves publication in multiple jurisdictions via the internet of defamatory materials. …"
47 There is no evidence before the Court as to whether, in any of those jurisdictions, the statements have been actually read by third parties. I note that Mr Boyd, in oral submissions, indicated that he is aware of publication having taken place in at least Tasmania and Queensland. I placed no reliance on that assertion made from the bar table.
48 However, in my view, where highly controversial material has been published regarding a resident of this country and made available to be read or downloaded from a website without restriction anywhere in Australia, it would be unrealistic to conclude other than that those words may have been read in, inter alia, the ACT and the Northern Territory.
49 That does not involve the Court concluding that the materials have been read, only that it is a foreseeable and perfectly rational conclusion to draw that the provisions of r 7.22(a) are adequately engaged by the very limited evidence Mr Boyd has put before the Court. The conclusion that this Court has jurisdiction to make an order for preliminary discovery is open on the very low threshold of satisfaction required.
50 Having sought submissions as to what, if any, contingent orders should be made if the Court were to make an order under r 7.22, Ms Sluiter indicated that her clients would be concerned if Mr Boyd might make any wider use of the information he would be provided with than determining whether or not to commence proceedings in defamation.
51 Ms Sluiter did not draw attention to any authority that would suggest that an implied obligation as to confidentiality would not extend to this form of preliminary discovery. On that basis I declined to make an order for confidentiality having discussed with Mr Boyd the obligations that customarily attend discovery.