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[2021] FCA 1182
Federal Court of Australia
2021-09-23
Halley J
Original judgment source is linked above.
Solicitor for the Applicant: Company Giles
Solicitor for the First Respondent: The First Respondent did not appear
Solicitor for the Second Respondent: The Second Respondent did not appear
AND: ZACHARIAH CHAWK First Respondent
order made by: HALLEY J DATE OF ORDER: 23 September 2021
HALLEY J: 1 By an interlocutory application dated 22 September 2021, the applicant, Dr Peter Callan, seeks: (a) an order for substituted service on the first respondent, Zachariah Chawk; and (b) an order for leave pursuant to rr 10.42 and 10.43(2) of the Federal Court Rules 2011 (Cth) (FCR) to serve the originating application, the statement of claim and the genuine steps statement on the second respondent, Real Self Inc, in the United States of America in accordance with Art 10(a) of the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters. Opened for signature 15 November 1965. 658 UNTS 163 (entered into force 10 February 1969) (Hague Convention). 2 The application is supported by an affidavit of Rebekah Giles sworn on 22 September 2021 together with Exhibit RG-1 to that affidavit. 3 I have also been assisted by detailed written submissions prepared by Mr Olson of counsel who appears for the applicant. Those submissions contain a comprehensive identification of the issues to be considered, the relevant legal principles and the matters relied upon by the applicant in support of his interlocutory application for orders for substituted service and leave to serve proceedings in the United States of America.
Background 4 The applicant, Dr Peter Callan, is a plastic surgeon specialising in rhinoplasty, eyelid and facelift surgery and injectables. 5 These are proceedings for defamation in relation to a review of Dr Callan's services by his former patient, the first respondent, on the website RealSelf (www.realself.com), which provides a platform for rating and reviewing doctors. 6 The RealSelf website is published by Real Self Inc, a company incorporated in the state of Washington in the United States of America. The registered address of Real Self Inc is: Real Self, Inc 83 South King Street Suite 800 Seattle WA 98104
SubstituTed service 7 I first address the question of the order for substituted service. 8 Pursuant to FCR r 10.24, the Court is empowered to make an order for substituted service if it is satisfied that it is "not practicable" to effect personal service. The phrase "not practicable" has a wide meaning which depends on all the circumstances of the case: Ross v Cotter [2015] FCA 310 at [1] (Reeves J). 9 The "not practicable" test does not require the applicant to prove that personal service is impossible: Statewide Secured Investments Pty Ltd v Tarrant [2011] FCA 1067 (Statewide Secured Investments) at [9] (Flick J). The question is whether, as at the date on which the application was made, the applicant, using reasonable effort, has been unable to serve the respondent personally: Foxe v Brown [1984] HCA 69; (1984) 58 ALR 542 at 547 (Mason J); British American Tobacco Australasia Limited v Taleb (No 1) [2012] FCA 1065 at [25]-[30] (Dodds-Streeton J). 10 The affidavit of Ms Giles discloses that approximately eight attempts were made to effect personal service on the first respondent over the course of a month between mid-August and mid-September 2021, but all of those attempts were unsuccessful. Further, the applicant's legal representatives have attempted to bring the proceedings to the attention of the first respondent via email but have not received any response. 11 An order for substituted service should be made on the basis that the proposed method of service is reasonably likely to be effective in bringing the proceedings to the attention of the intended recipient: Statewide Secured Investments at [20]. 12 The applicant proposes three methods of service: (a) emailing the originating application, statement of claim and genuine steps statement to the email address zchawk@gmail.com, which is the email address provided by the first respondent to the applicant when he was the applicant's patient. The first respondent used this email address to communicate with the applicant's practice manager in July 2020; (b) sending the originating application, statement of claim and genuine steps statement by registered post to 1/5 Queen Street, Essendon, Victoria 3040, the residential address provided by the first respondent to the applicant; and (c) sending the originating application, statement of claim and genuine steps statement by registered post to 11/108 Cambridge Street, Collingwood, Victoria 3066, being the registered business of a company known as 888 Infinity Pty Limited, of which the first respondent is a director according to an ASIC company search. 13 Additionally, the applicant proposes to send a message to the first respondent's apparent Facebook account alerting him to the proceeding and asking him to make contact with the legal representatives for the applicant and with my associate. Some authorities have cast doubt upon the appropriateness of substituted service by social media, in particular because of the difficulty of establishing that the social media account in question is in fact controlled by an intended recipient: Flo Rida (aka Tramar Dillard) v Mothership Music Pty Ltd [2013] NSWCA 268 at [38] (Macfarlan JA with whom Ward and Gleeson JJA agreed). I note in this case, however, that Dr Callan does not propose to use Facebook messaging as the sole means of substituted service, but only as an additional method for bringing the proceedings to the first respondent's attention in conjunction with the other methods outlined above. 14 In the circumstances, I am satisfied that the proposed order for substituted service is appropriate and is reasonably likely to be effective in bringing the proceedings to the attention of the first respondent.
Service outside Australia 15 I next turn to address service on the second respondent.
Leave to serve outside Australia 16 Pursuant to FCR r 10.43(4), the Court has the power to grant the applicant leave to serve the originating application on the second respondent in the United States of America in accordance with the Hague Convention if it is satisfied of the following matters: (a) that the Court has jurisdiction in the proceedings: r 10.43(4)(a); (b) that the proceedings were of a kind mentioned in FCR r 10.42: r 10.43(4)(b); and (c) that the applicant has a prima facie case of all or any of the relief claimed: r 10.43(4)(c). 17 The cause of action for defamation is complete at the point at which the defamatory material is published. Publication of defamatory material occurs when it is comprehended by a third party. A separate cause of action arises in each jurisdictional area in which the material is published: Dow Jones & Company Inc v Gutnick (2002) 210 CLR 575; [2002] HCA 56 (Gutnick) at [27] (Gleeson CJ, McHugh, Gummow and Hayne JJ). As the majority in Gutnick explained at [40]: [P]ublication to numerous persons may have as many territorial connections as there are those to whom particular words are published. 18 The applicant alleges that the defamatory material in this case was published online on the RealSelf website and that it was read by at least Hannah Tonks, a resident of the Australian Capital Territory in Australia on 26 November 2020. Two consequences flow from this. 19 First, the proceeding is a proceeding of a kind specified in FCR r 10.42 because it is: (a) based on a cause of action arising in Australia; (b) based on tort committed in Australia; and (c) seeking recovery of damage suffered wholly in Australia (Dr Callan is a resident of Australia and practices solely in Australia). 20 Second, this Court has jurisdiction in the proceeding because publication occurred in the Australian Capital Territory and FCR r 10.43(4)(a) is satisfied by reason of s 4(1) of the Jurisdiction of Courts (Cross-vesting) Act 1993 (ACT) and s 9(3) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth): Crosby v Kelly (2012) 203 FCR 451; [2012] FCAFC 96 (Bennett, Perram and Robertson JJ); Wing v Fairfax Media Publications Pty Ltd (2017) 255 FCR 61; [2017] FCAFC 191 at [13] (Allsop CJ and Besanko J). 21 I consider that Dr Callan has a reasonably arguable prima facie cause of action for defamation. The applicant alleges that the matter complained of carried the following defamatory imputations of him in his capacity as a specialist plastic surgeon: (a) that he was negligent in performing a revisional rhinoplasty procedure on his patient, the first respondent; (b) that he negligently failed to correct his patient the first respondent's deviated septum; (c) that he performed a rhinoplasty so incompetently that his patient, the first respondent, suffered a debilitating nasal valve collapse; and (d) that he ruined his patient the first respondent's self-esteem and self-confidence by botching a rhinoplasty procedure. 22 The Court is presently only concerned with the capacity of the matter complained of to convey those imputations for the purposes of FCR r 10.43(4)(c) and the applicant need only demonstrate a prima facie case: Goodfellow v Fairfax Media Publications Pty Limited [2017] FCA 1152 at [76]-[80] (Wigney J). 23 I consider that the following features of the matter complained of support its capacity to carry at least some of the pleaded imputations: (a) the title of the review on the RealSelf website, namely "The Emotional Impact of a Failed Rhinoplasty is Severe", noting in particular the negative connotations of the word "Failed"; (b) the repeated contrasts in the review between what the first respondent had been led to expect from the applicant and what he received by use of the phrases "invested much hope in the revision surgery and Mr Callan", "disappointing outcome" and "[t]he septoplasty with Mr Callan was supposed to treat the nasal septum and correct it unfortunately that was not achieved"; (c) the insinuation that the applicant is not up to the standards of other surgeons in the line"[n]ow i find the additional challenge of finding a surgeon who feels confident they can help me to achieve a better outcome"; and (d) what I consider to be reasonably arguable to be snide sarcasm in the line "[u]ntil my deviated nasal septum and nasal valve collapse magically fix themselves", which I consider implies those problems had been caused by the applicant. 24 The question of whether material is capable of conveying defamatory imputations is "an exercise in generosity not parsimony": Corby v Allen & Unwin Pty Ltd [2014] NSWCA 227 at [134]-[136] (McColl JA with Bathurst CJ and Gleeson JA agreeing). 25 The second respondent is the owner and publisher of the RealSelf website, which was the platform on which the first respondent published his review and made it available to readers such as Ms Tonks. In this sense, the second respondent has facilitated, and continues to facilitate, dissemination of the defamatory material composed by the first respondent. I consider that this is sufficient in accordance with recent authority to render the second respondent a publisher of that defamatory material for the purposes of defamation law: Fairfax Media Publications Pty Ltd v Voller [2021] HCA 27 (Voller) at [32] (Kiefel CJ, Keane and Gleeson JJ), [87]-[88] and [96]-[102] (Gageler and Gordon JJ); Trkulja v Google LLC (2018) 263 CLR 149; [2018] HCA 25 at [40]. 26 Moreover, the second respondent has specifically refused to cause the matter complained of to be taken down from its website in response to repeated requests from the applicant's legal representatives. I consider that, given this, it is reasonably arguable that the second respondent has voluntarily permitted the publication of the matter complained of via its website to continue, even after being given notice of its purported defamatory nature by the applicant. This provides, in my opinion, a further and even stronger basis for holding the second respondent liable as a publisher: Byrne v Deane [1937] 2 All ER 204; 1 KB 818 at 830 (Greer LJ) and 838 (Greene LJ); Voller at [50]-[54] (Kiefel CJ, Keane and Gleeson JJ). 27 For the reasons that I have outline above, I consider that Dr Callan has established a reasonably arguable prima face cause of action for defamation against the second respondent. 28 In those circumstances, I am satisfied that the Court has jurisdiction in the proceeding, that the proceeding is of a kind mentioned in FCR r 10.42 and that the applicant has a prima facie case for all or any of the relief claimed by him in these proceedings.
Manner of service in the United States of America 29 FCR r 10.43(2) empowers the Court to grant leave to serve an originating application on a person in a foreign country "in accordance with ... the Hague Convention". Article 10(a) of the Hague Convention provides: Provided the State of destination does not object, the present Convention shall not interfere with - a) the freedom to send judicial documents, by postal channels, directly to persons abroad, … 30 Ms Giles, the solicitor for the applicant, provided evidence in her affidavit that the United States of America is a party to the Hague Convention. Relevant to Art 10(a) of the Hague Convention, Ms Giles also provided evidence that the United States of America has indicated no objection to the informal delivery of judicial documents by mail if effective under applicable law and provided no compulsion is used. 31 The Court has granted leave to serve documents by international registered post on numerous occasions, including to parties resident in the United States of America, and has held this to be compliant with Art 10(a): AIA Australia Ltd v Richards [2017] FCA 84 at [13] (Allsop J, as his Honour then was); Kabbabe v Google LLC [2020] FCA 126 at [8]-[9] (Murphy J); Barilaro v Shanks-Markovina (No 1) [2021] FCA 789 at [8] (Rares J).
Disposition 32 For the reasons outlined above, I make orders for substituted service on the first respondent and granting leave for service on the second respondent in the United States of America by international registered post pursuant to the provisions of the Hague Convention. I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Halley.
Callan
Chawk
(2012) 203 FCR 451
(2002) 210 CLR 575
(1984) 58 ALR 542
(2018) 263 CLR 149
(2017) 255 FCR 61