Heath v LawTap Pty Ltd

1. On or before 4pm on 9 June 2021, or such further or other time as the Court may order, LawTap Pty Ltd give preliminary discovery, by affidavit, of all documents which are or have been in its control relating to the identification of the description (as defined in the Dictionary to the Federal Court Rules 2011 (Cth)), by name, address or any other form of contact details, of the presently unknown person or persons who posted comments or statements in the thread located at the URL set out at [5] of the affidavit of Mr Mark Stanarevic sworn 7 May 2021 and which is reproduced as Annexure MS-2 to that affidavit.
2. Preliminary discovery pursuant to order 1 is limited to documents relating to the identification of the description of the presently unknown person or persons who posted comments or statements between 1 February 2020 and the date of these orders.
3. Preliminary discovery and inspection pursuant to order 1 is to be given in accordance with rr 7.22(2)(c), 7.27 and 7.28 of the Rules.
4. Liberty to apply on 48 hours' notice to amend, vary or substitute the orders made. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

MORTIMER J: 1 The prospective applicant, Mr Craig Heath, by originating application pursuant to r 7.22 of the Federal Court Rules 2011 (Cth), seeks orders for preliminary discovery to require LawTap Pty Ltd to provide "all documents or things in its possession or control relating to the description of an unknown person" who posted allegedly defamatory comments under various pseudonyms in relation to Mr Heath and his property development business. 2 LawTap filed a submitting notice pursuant to r 12.01(1) of the Rules on 16 April 2021. 3 For the reasons that follow, the application for preliminary discovery is granted. 4 Rule 7.22(1) of the Rules provides: 7.22 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. 5 Orders are only sought pursuant to r 7.22, not r 7.23: see [1] of Mr Heath's written submissions. Mr Heath relied on the affidavit of his solicitor, Mr Mark Stanarevic sworn 16 March 2021. Since LawTap filed a submitting appearance there were no objections to the affidavit, nor any contest about the facts to which Mr Stanarevic deposes. There were some minor errors in the affidavit which resulted in the Court directing that a second affidavit be filed to correct those errors. A second affidavit was filed on 7 May 2021 with the errors corrected, and that is the version of Mr Stanarevic's affidavit that the Court takes as read in support of the application. 6 As to the correct approach to the making of an order under r 7.22, counsel for Mr Heath referred the Court to Kabbabe v Google LLC [2020] FCA 126; McCrae v Reynolds [2015] FCA 529 and Hooper and Others v Kirella Pty Ltd [1999] FCA 1584; 96 FCR 1. I have adopted an approach which is consistent with those authorities. 7 Mr Stanarevic deposes that Mr Heath is a property developer who relies on the internet to attract customers across Australia. He deposes that Mr Heath wishes to commence a defamation proceeding in this Court against the makers of comments, which he alleges are defamatory of him, on a website described as "lawanswers.com.au". 8 Mr Stanarevic deposes that: (a) LawTap is registered and located in Australia. (b) LawTap registered and owns the domain name "lawanswers.com.au". (c) The statements are visible to the public in the Australian Capital Territory, and in all of Australia including Victoria. (d) The allegedly defamatory imputations arising from the statements include that Mr Heath: (i) intentionally rips off people; (ii) is a criminal; (iii) steals from people and is a serial fraudster; and (iv) is an unscrupulous property developer who exploits and deceives his customers. (e) Mr Heath is concerned the comments are having an impact on his professional reputation and business, and he has sought psychological help due to the impact of the online bullying and harassment. 9 As I have noted, LawTap filed a submitting appearance, and its only active participation in the proceeding has been in relation to securing agreement to the payment by Mr Heath of its costs of complying with any orders made by the Court. The parties have agreed on the substance of orders on those costs, which have been made separately. I accept the submissions of counsel for Mr Heath that LawTap's approach to the proceeding allows the Court more readily to accept Mr Stanarevic's evidence, and to infer that it is more likely than not LawTap has documents which will meet the terms of the order for discovery which the Court has been asked to make. 10 The URL for the thread in which the statements are made is set out in Mr Stanarevic's 7 May 2021 affidavit, and the contents of the thread are reproduced as an annexure to that affidavit. It is not appropriate for those details to be reproduced again in these reasons for judgment. 11 As the authorities indicate, the Court need not be satisfied to the level of a prima facie case. I am satisfied that there may be a right for Mr Heath to obtain relief in relation to those statements, through a defamation proceeding; that is the standard set by r 7.22(1)(a). The comments in the thread refer extensively to locations in the State of Victoria in ways which lead me to be satisfied that Mr Heath may be able to establish that the statements are visible in Australia, and are being read by people in Australia. There is no basis to find he may not be able to establish they are available in the ACT, for the purposes of the jurisdiction of this Court. 12 Mr Stanarevic deposes that Mr Heath is concerned the comments are having an impact on his professional reputation and business, and that although there has been a "campaign" against him since 2019, he is only seeking the identities of those who published statements about him over the last 12 months. Accordingly, the orders made are limited to discovery of documents relating to statements made on or after 1 February 2020, the last statement being made in February 2021. 13 I am satisfied neither Mr Heath, nor his solicitors have been able to ascertain the description of the makers of the statements, despite efforts which I am prepared to characterise, with some reservations, as reasonable. The evidence is that another firm of solicitors wrote to LawTap some time ago (in mid-2019) demanding that the posts be removed, and no further similar posts be permitted. The evidence suggests further posts continued to be made throughout the rest of 2020 and into 2021, the latest being in February 2021. 14 Mr Stanarevic also deposes that after this letter, Mr Heath himself contacted LawTap and sought removal of the comments, and the "identifying details" of the makers of the statements but could not obtain a "positive resolution", which is why these orders have been sought. That evidence is unchallenged. Particularly in the context of an ongoing course of conduct from 2019 through to February 2021, I accept that Mr Heath has made attempts to have the statements removed, and to have the person or persons making them stopped, and has himself tried to discover who has been making them, but now feels driven to take more formal action. I accept it is a significant step to enter a costs jurisdiction in a superior court to pursue a remedy and on the present unchallenged material he should not be criticised, nor denied the relief he seeks, for taking some time before taking that step. 15 For the purposes of r 7.22(1)(c), I am satisfied that LawTap is likely to have access to documents that may contain the descriptions sought. I accept the submissions of counsel for Mr Heath that the Court can more readily draw that inference from the absence of a challenge by LawTap to the preliminary discovery application, and from the parties' agreement as to the fixing of sums to be paid by Mr Heath to LawTap for the costs of providing discovery, if it was ordered. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Mortimer.