The defendant has applied to have set aside orders that were made against it in its absence on 4 and 5 July 2019. The orders were made upon urgent applications of the plaintiff, brought successively before two judges of this Court. No representative of the defendant, legal or corporate, was before the Court on either occasion. Most importantly the defendant seeks to have set aside an order made on 5 July 2019 that it be referred to the registrar to be charged with contempt. The defendant's notice of motion to set aside these orders was filed on 10 July 2019.
Rule 36.16 of the Uniform Civil Procedure Rules ("UCPR") makes express provision for a defendant against whom orders have been made in such circumstances to apply to have them set aside. If this occurs, the question whether the orders are justified on the merits can then be argued with full opportunity for the affected party to be heard. The relevant parts of r 36.16 as follows:
36.16 Further power to set aside or vary judgment or order
1) The court may set aside or vary a judgment or order if notice of motion for the setting aside or variation is filed before entry of the judgment or order.
(2) The court may set aside or vary a judgment or order after it has been entered if:
…
(b) it has been given or made in the absence of a party, whether or not the absent party had notice of the relevant hearing or of the application for the judgment or order
...
(3) In addition to its powers under subrules (1) and (2), the court may set aside or vary any judgment or order except so far as it:
(a) determines any claim for relief, or determines any question (whether of fact or law or both) arising on any claim for relief, or
(b) dismisses proceedings, or dismisses proceedings so far as concerns the whole or any part of any claim for relief.
(3A) If notice of motion for the setting aside or variation of a judgment or order is filed within 14 days after the judgment or order is entered, the court may determine the matter, and (if appropriate) set aside or vary the judgment or order under subrule (1), as if the judgment or order had not been entered.
…
(4) Nothing in this rule affects any other power of the court to set aside or vary a judgment or order.
The Court generally will not make orders without hearing the party against whom they are sought. When an order has been made in the absence of the party affected, for example in urgent circumstances or when the defendant has been given an opportunity to attend court but has not availed itself of that opportunity, subrule (2)(b) of r 36.16 empowers the Court to set it aside. The power existed long before this particular rule was adopted. Griffith CJ said in Owners of SS Kalibia v Wilson [1910] HCA 77; (1910) 11 CLR 689 at 694:
[W]hen a judicial order has been obtained ex parte the party affected by it may apply for its discharge. This is an elementary rule of justice …
The power enables the Court to avoid injustice that might otherwise result. Ex parte orders may be vacated even though they have been made regularly in accordance with the Rules and without fault of the plaintiff or error on the part of the Court. In the present case that defendant is able to bring itself within both subrules (2)(b) and (3A).
The central question upon such an application is whether it is unjust to let the orders stand: Northey v Bega Valley Shire Council [2012] NSWCA 28. The countervailing consideration of the desirability of finality in proceedings is not significant where, as here, the orders made ex parte were interlocutory. The considerations relevant to the discretion to set aside such orders under r 36.16 are substantially the same as those that would apply to an application to set aside a default judgment. The Court must take into account the reason for the defendant's non-attendance when the orders were made; the explanation of any delay from when the defendant received notice of the orders until it filed its application for them to be vacated; the demonstration of at least arguable grounds for opposing the orders, so that if they are set aside there would be some substantive issue to be resolved at a contested inter partes hearing of whether the orders should be reinstated; and any prejudice to the opposing party that might result from setting aside the orders: Vacuum Oil Pty Co Limited v Stockdale (1942) 42 SR(NSW) 239; Magnate Projects Pty Limited v Youma Constructions (No 2) Pty Limited [2005] NSWCA 331 at [51] (Hodgson JA); Akari v Sole [2008] NSWSC 59 at [29]. None of these individual considerations is independently critical. If there is clear demonstration of a substantive defence, ex parte orders might be set aside despite the absence of any satisfactory explanation for the defendant not having attended the original hearing.
[2]
The plaintiff's substantive claim in the proceedings
The plaintiff is a professional man who alleges that he has been defamed by material published as "Google Reviews" on the internet in about early July 2019. The defendant maintains a database within which it stores the names of tens of millions of businesses that are conducted in all parts of the world. Through a search system that the defendant describes as a "service" and that it calls "Google My Business", internet users are able to access any business name in the listing. Having gained access to a name, internet users can post or upload "Reviews" of the business. Other internet users can then access and read the Reviews and upload their own additional Reviews. A Review may be no more than a selected number of stars, between one and five, by which to rate the business. Comments may be included. All Reviews are added to the defendant's My Business database.
When an internet user searches a business name that is listed by Google in the database, the My Business listing will commonly appear in a panel at the right side of the screen, next to the search results. A numerical star rating will appear in the My Business panel if any Reviews have been posted. Clicking on a link to the Reviews will give access to them on the defendant's database and they will then be displayed on the user's screen. Listing of business names in the My Business database is done by Google on its own initiative, not at the request of the business concerned and without seeking consent of the business.
The above summary of how Google Reviews are stored on the defendant's database and how they may be displayed to internet users is taken from an affidavit of the defendant's solicitor, Mr Johnson, sworn 17 July 2019. His evidence on this and other subjects is given on information and belief. The affidavit was not objected to by the plaintiff nor challenged in cross-examination or contradicted by other evidence. I accept it as a sufficient basis upon which to determine this interlocutory application. The affidavit contains a prima facie account of how the Google My Business system operates and whether the defendant was notified of defamatory reviews prior to the commencement of these proceedings. Either party may adduce further evidence on these subjects at the final hearing of the summons. On all the evidence adduced at the final hearing by both parties, conclusive findings will no doubt be made and may be important to the determination of whether the defendant can be said to have published reviews posted by others: see for example Trkulja v Google Inc (No 5) [2012] VSC 533; Bleyer v Google Inc [2014] NSWSC 897 at [65]-[85].
[3]
Prelude to the ex parte application of 4 July 2019
From 1 July 2019 the plaintiff's solicitors communicated with both the defendant and with its subsidiary, Google Australia Pty Ltd, by email concerning Reviews of which the plaintiff complained. There had been earlier communications but relevant events commenced on 1 July. In this email correspondence, the defendant and Google Australia Pty Ltd were informed of injunctions against two individuals that had been granted by this Court in earlier proceedings brought by the plaintiff. Those injunctions forbade the two people concerned from publishing Reviews containing certain defamatory imputations. The plaintiff's solicitors supplied URLs and the text of two Reviews that they said appeared to have been posted by the two individuals. These were online and accessible as at 1 July 2019.
In these communications the email addresses used by the plaintiff's solicitors were legal-anz@google.com, lis-apac@google.com and internationalcivil@google.com. A reply from Google Australia Pty Ltd, dated 3 July 2019 contained the following:
We understand that your client is seeking the removal of reviews from Google My Business, following a judgment your client has obtained against a third party. In order to ensure that your client's request is reviewed efficiently by the appropriate dedicated team, please submit your request to Google LLC using the online notification form available at [URL inserted]. …
Just so you know, your message to legal-anz@google.com has only been received by the legal team at Google Australia Pty Ltd. Google My Business is operated by Google LLC, our affiliate based in the United States. Google Australia doesn't have the ability to remove reviews from Google My Business, but using the above form will make sure your request reaches the right team.
We confirm Google Australia Pty Ltd is not authorised to accept service on behalf of Google LLC.
Early on 4 July 2019 the plaintiff's solicitors sent a further message to the same three email addresses, for the attention of both the defendant and Google Australia Pty Ltd, demanding removal of two further negative Reviews that had very recently been posted concerning the plaintiff. The message advised that the solicitors had been instructed to approach the Court that day to seek urgent relief if the offending Reviews had not been removed by 9:00 am on 4 July 2019, Australian Eastern Standard Time ("AEST"). That deadline was 4:00 pm on 3 July 2019 in the time zone for California, being Pacific Daylight Time ("PDT"), 17 hours behind AEST. The Director, Legal of Google Australia Pty Ltd replied at 9:33 am AEST, reiterating that requests for removals must be directed to Google LLC but nevertheless requesting "at least 30 minutes notice" of the proposed application to the Court.
[4]
Orders made on 4 July 2019
On 4 July 2019 at about 11:45 am the plaintiff applied to Rothman J for an urgent ex parte interlocutory injunction to restrain the defendant from continuing to publish online through its My Business service three Reviews that were at that time accessible to internet users. His Honour was provided with the Summons that the plaintiff proposed to file that day to commence his proceedings, supported by an affidavit of the plaintiff's solicitor Mr Elias Chalouhi sworn on 4 July 2019. Annexed to Mr Chalouhi's affidavit was a print of a screenshot of the three allegedly defamatory Reviews. They had been posted on the plaintiff's My Business listing in late June or early July 2019.
On the basis of Mr Chalouhi's affidavit and the annexed correspondence, the plaintiff sought from Rothman J an order pursuant to r 10.14 that the summons, supporting affidavit and a sealed copy of the injunctions that his Honour was asked to make should be served by sending them to the three email addresses that Mr Chalouhi had been using, as referred to above. Rule 10.14 provides that if a document cannot practicably served upon a party in the manner provided by law, the Court may specify steps to be taken for the purpose of bringing the document to the attention of the party and may direct that those steps be carried out instead of the usual mode of service.
At about 12:30 pm on 4 July 2019 AEST (7:30 pm on 3 July 2019, PDT) his Honour made the following orders, amongst others:
1 Until the hearing of the matter an interlocutory injunction pursuant to section 66 of the Supreme Court Act 1970 restraining the defendant from publishing each of the Google Reviews referred to in the Affidavit of Elias Chalouhi sworn 4 July 2019.
2 For the period of 28 days, an interlocutory injunction pursuant to section 66 of the Supreme Court Act 1970 restraining the defendant from allowing any person to upload a Google review about the plaintiff.
6 The plaintiff be granted leave to serve the Summons, the Affidavit of Elias Chalouhi sworn 4 July 2019 and these orders by:
(a) emailing them to anz-legal@google.com;
(b) emailing them to lis-apac.google.com and
(c) emailing them to internationalcivil@google.com.
Following this hearing the summons and affidavit were filed in the registry and his Honour's orders were taken out under seal. These documents were sent by email at 7:55 pm AEST (2:55 am on 4 July 2019 PDT) to each of the three addresses listed in order 6, except that the second address used was "lis-apac@google.com", instead of what appears at par (b) of the order.
[5]
Challenge to the substituted service order
The defendant contends that the plaintiff had no reasonable ground upon which to seek an order for service by email and that his Honour should not have dispensed with service in accordance with r 11.8AC (as described below). Pursuant to r 11.4 of the UCPR, originating process of this Court may be served outside Australia without leave in a variety of circumstances specified in Sch 6. One such circumstance, provided for in cl (a) of Sch 6, is that the plaintiff's claim is founded on a tortious act that occurred wholly or partly in Australia or in respect of which damage was sustained wholly or partly in Australia. The plaintiff's defamation claim falls within this provision. By r 11.8AC it is provided that a document may be served outside Australia in accordance with the law of the country in which service takes place.
The defendant has adduced evidence that it is a limited liability company incorporated in Delaware. Its business headquarters are in Mountain View, on San Francisco Bay in California. Under California state law the defendant, as an out-of-state company, is required to register a local agent to receive service of legal process. The defendant has registered such an agent, the office of which is located in Sacramento and is open from 8:00 am to 4:00 pm on weekdays. That office would have been closed on 4 July 2019, being Independence Day, a federal holiday in the United States.
To serve the defendant with legal process in accordance with the law of California, a plaintiff may make personal delivery of the process to the defendant's registered service agent. Other lawful means of service in California include leaving a copy at the registered service agent's office and sending an additional copy to the agent by mail. The defendant has adduced evidence that it also has a registered service agent in Wilmington, Delaware and that service in accordance with the laws of that state may be effected by delivery to the agent. A lawyer practising in the San Francisco area, Mr David Kramer, has deposed that in both states process servers are readily available to deliver documents to the registered offices of corporations for modest fees.
As the defendant has appeared in the proceedings and has filed the notice of motion now under consideration, the appropriateness or otherwise of substituted service of the documents by email is not important for the future conduct of the proceedings. In particular, re-examination of the justification for substituted service cannot alter the fact that the defendant is now amenable to the Court's jurisdiction.
The defendant challenges the mode of service only because it says that the summons, the affidavit of Mr Chalouhi and the 4 July orders of Rothman J did not, as a result of being sent to the nominated email addresses, promptly come to the attention of any person within the defendant's organisation who was capable of dealing with them. As a result, the defendant did not respond promptly to the injunctive orders. This led to the plaintiff moving the Court on 5 July 2019 with respect to alleged contempt. The defendant submits that an order made on 5 July referring the alleged contempt to the registrar for a charge to be laid was not justified because an essential element of contempt, that the alleged contemnor had notice of the order, cannot be made out.
The issue of whether the orders of 4 July 2019 came to the attention of the defendant sufficiently to support a charge of contempt can be dealt with directly, without the need to reconsider whether substituted service was justified and without determining whether the plaintiff's proceedings should be set aside or stayed pursuant to r 11.6 or r 12.11 on the ground that lawful service was not effected.
[6]
Attempted email notification of the orders of 4 July 2019
The injunction in order 1 of 4 July 2019 is expressly required to be read together with the affidavit of Mr Chalouhi sworn that day. The Reviews that the defendant would be required to take down in compliance with the injunction are identified only by cross reference to the affidavit.
I accept Mr Johnson's affidavit so far as it explains the effect of the plaintiff having emailed the orders of 4 July and other Court process to the three email addresses specified in order 6. Emails sent to any of the three addresses are managed by an automated system called "Cases". This generates a unique identifier known as a "ticket" for each emailed enquiry. Cases directs emails that are sent to any one of the three addresses into a case management queue that is monitored by legal personnel. It is expected by the defendant that such emails may contain legally sensitive information. Accordingly, they are only accessible to personal in designated legal support roles , working in teams allocated to the separate email addresses and their associated queues, respectively.
Cases is so configured that when a single email is sent to all three of the addresses specified in Rothman J's order 6, it will generate only one ticket for the enquiry. This is to avoid having multiple teams within the defendant's legal support staff all taking action on a single matter. The system is pre-set to direct any single email that is sent to all three of these addresses into the case management queue for the address internationalcivil@google.com. An email sent to these three addresses simultaneously will default to that address. Email enquiries directed into the queue for internationalcivil@google.com are attended to by a Legal Investigation Support team based in the USA, which is:
designated for use by civil complainants outside of the United States to enquire about the proper means to submit legal requests for the disclosure of user information.
This was the first instance of the plaintiff's solicitors sending correspondence to this specific combination of email addresses, engaging the automated process. As a result the automated process, the orders, affidavit and summons sent by email at 7:55 pm on 4 July 2019 AEST bypassed the personnel monitoring anz-legal@google.com - the employees of Google Australia Pty Ltd with whom the plaintiff had been liaising - and were instead directed only to the US-based Legal Investigation Support team. These documents would have reached the queue for that team more or less instantaneously at 2:55 am on 4 July 2019 PDT. All of the personnel of that team who would normally monitor the queued email enquiries were at that time absent from their workplace and remained absent for the Independence Day holiday. I infer that they would not have returned to their workplace before 8:00 am on 5 July 2019 PDT, which would have been 1:00 am on 6 July 2019 AEST.
Regardless of the automated redirection of emails to one of the three addresses used, the use of the other two addresses would not in any event have resulted in the email with the Court's process attached reaching personnel within the defendant who had authority to deal with it:
1. Emails to anz-legal@google.com would go into a case management queue monitored by the Google Australia Pty Ltd legal staff. I accept that, as representatives of that company had repeatedly informed the plaintiff's solicitors before commencement of these proceedings, personnel of Google Australia Pty Ltd did not have authority to cause removal of Reviews from the My Business database or to block access to them.
2. Emails to lis-apac@google.com would enter a case management queue of the Legal Investigation Support team in the United States which is dedicated to use by government agencies in the Asia Pacific region for submitting official legal requests for disclosure of user information. Email enquiries from a private organisation to this address would generate an automatic reply that would include the following, from which it would be apparent that the email had not reached an appropriate recipient within the defendant:
All requests for the disclosure of data must be accompanied by appropriate legal documentation. We also require that all communication be sent from an official government-issued email address.
[7]
Attempted web form notification of the orders of 4 July 2019
The defendant maintains a website named Legal Removal Requests. This may be found on the internet using appropriate search terms. Webpages on that site invite internet users to request removal of objectionable material, including Reviews, by completing online forms. The pages do not nominate any email address to which requests for removal may be sent. They are laid out with a series of alternatives, describing types of requests for removal and various circumstances that may have prompted a request. Clicking on one of the alternatives takes the online user to another series of questions. By making a choice amongst the alternatives offered, in sequence from page to page, the category of the enquirer's request for removal is gradually narrowed down until the process brings him or her to a link to a form. By selecting this link and then completing the form, including the "send" control, the removal request is conveyed to personnel of the defendant in "the Google removals team".
In the sequence of pages that the enquirer has to navigate in order to reach an appropriate form to submit, one of the early pages contains a list of numerous Google services, including Google My Business and Google Maps. As demonstrated by the sequence of screenshots annexed to Mr Johnson's affidavit, after selecting Google My Business the path through the alternatives that would best fit the plaintiff's situation after the injunctions of 4 July 2019 had been granted would lead to this proposition:
I would like to remove a review, photo, video or personal information that is appearing on a business listing.
Upon selecting that alternative, the screen displays a question, "What can we help you with?", followed by four more alternatives, two of which are as follows:
[2] I have a court order declaring certain content unlawful (e.g. pursuant to a copyright or trademark infringement suit)
[4] Other legal issue that involves the removal of content
If item [2] is selected, the following is displayed:
Please complete this form to submit your court order.
Note- We use this form to review court orders against third parties who have posted allegedly unlawful content. If your court order is directed to Google, don't use this form - we don't accept service of process here.
Clicking on the words "this form" brings up an online form called a GMB Court Order Web Form. Completion and sending of this form would enter it in a queue that would be checked at regular intervals by the Google removals team. GMB Court Order Web Forms would be treated as urgent. Upon the online user sending the form, an automatic email response would be generated, commencing with the following incongruous exclamation:
Hi, Thanks for reaching out to us!
The automatic message continues with advice that many such complaints are received each day and that the one under reply would be dealt with "as quickly as our workload permits" and only if it should be determined that the request "may be a valid and actionable legal complaint". The message also advises that the submitter may be asked to provide additional information. In some circumstances a member of the Google removals team who considers a GMB Court Order Web Form might need to seek legal advice before assessing the request. This might result in delay.
If the internet user, who follows a path through the alternatives to the choice referred to at [29] above, should then choose item [4], a screen would be displayed showing the following:
Please see our review policies to learn more about the circumstances under which Google may remove a review. To report a review that may violate our guidelines, click the flag that appears when you move your mouse over the review in question. If you are a business owner concerned about a review that you feel is unfounded, you can reply directly to the review.
If you'd like to submit a legal request, you can file a complaint through our legal reporting form.
Consistently with the notation referred to above, that "we don't accept service of process here", for an inquirer who has a court order against the defendant the alternative screen destination quoted in the preceding paragraph is no more suitable than the one arrived at via alternative [2]. Clicking on the words "legal reporting form" opens another form, different from the GMB Court Order Web Form. Completion and sending of the legal reporting form will put it in a queue for the attention of the Google removals team.
At about 1:41 pm AEST on 5 July 2019 (8:41 pm on 4 July 2019 PDT) the plaintiff himself navigated through to alternative [2] referred to at [29] above and submitted a GMB Court Order Web Form to which he attached a sealed copy of the orders of 4 July 2019 but not the affidavit of Mr Chaloui. That affidavit, particularly Annexure D, was necessary to convey the meaning of the injunction in order 1, which required removal of Reviews that were accessible on the My Business service at the time when the orders were made. This was the first time the orders had been directed to the attention of any person in the Google removals team, being the personnel of the defendant who had authority and capability to deal with removal under the order.
At about 1:55 pm AEST on 5 July 2019 (8:55 pm on 4 July 2019 PDT) Ms Karakatsanis on behalf of the plaintiff submitted a web form request for removal of four Reviews, providing the URLs of each of them. However, at the early stage of selecting which Google service her removal request related to, Ms Karakatsanis apparently selected Google Maps. According to Mr Johnson's affidavit, the necessity to reroute such a web form request to the queue for the correct service "can often cause a delay of multiple days in processing that request". The web form submitted by Ms Karakatsanis did not have the orders of 4 July 2019 attached to it. She received an automated acknowledgement of her web form (commencing "Hi, Thanks for reaching out to us!"). This came to her from the email address removals@google.com. Ms Karakatsanis stated within her web form that she would email the orders separately. She did that one minute after submitting the form. She sent the orders attached to an email addressed to removals@google.com.
[8]
Ex parte application to the Duty Judge on 5 July 2019
From the above it is clear that sending the orders of 4 July 2019 and other court process to the email addresses nominated in the order for substituted service did not bring the documents promptly to the attention of anyone within the defendant's organisation. The emails would have defaulted to a queue from which the earliest time at which the message and documents would have been seen would have been 1:00 am on 6 July 2019 AEST (8:00 am on 5 July 2019 PDT). This outcome resulted from the defendant's automated email-handling systems and the Independence Day holiday in the United States.
Nor did the submission of web forms by the plaintiff himself and by Ms Karakatsanis bring the orders and court process to the attention of any responsible person within the defendant in a timely way. By this means only the orders, without the affidavit of Mr Chaloui that was essential to the meaning of the first injunction, reached a destination where personnel of the defendant could review them, and not until 1:41 pm AEST on 5 July 2019 (8:41 pm on 4 July 2019 PDT). This was not complete service of the documents and in any event was not effected by the means prescribed in the order for substituted service.
I do not consider that any legally-based criticism can be levelled at the defendant for the way in which its automated email queueing systems and removal request web forms are configured. As described in Mr Johnson's affidavit these systems do not facilitate electronic delivery to the defendant of court orders against it. But the defendant is not obliged by the law of this State nor, apparently, by the law of either California or Delaware, to provide electronic means of serving court process upon it, either by email or otherwise over the internet. Rule 11.8AC of the UCPR in combination with the laws of the two relevant States of America provide a ready means of effecting prompt service on the defendant.
On 5 July 2019 at 12:43 or 12:4 pm AEST (4 July 2019 at 7:44 pm PDT) the plaintiff's solicitors sent by email a letter addressed to both the defendant and Google Australia Pty Ltd asserting that order 1 of 4 July 2019 had been breached by the continued display on My Business of the Reviews that were ordered to be taken down. The letter also stated that new Reviews had been posted "in flagrant breach of order 2". The letter warned that if the orders were not complied with by 2:00 pm Sydney time the plaintiff would approach the Court for an order that the defendant be charged with contempt. This letter was sent by email to the three addresses nominated in order 6 of 4 July 2019. According to Mr Johnson's affidavit the email attaching this letter defaulted to the queue for the Legal Investigations Support team in the United States, as a result of the automated settings referred to at [23] and [24] above. I infer that that would not have come to the attention of anyone within the employ of the defendant, at 7:44 pm on a United States federal holiday.
On 5 July 2019 at 2:10 pm AEST the plaintiff's solicitors sent an email to yet another address, reception-au@google.com, attaching both the original message by which court process had been served on 4 July 2019 at 7:55 pm AEST and the email and letter of 5 July 2019 at 12:44 pm referred to in the preceding paragraph. This apparently reached legal personnel of Google Australia Pty Ltd. At 3:11 pm AEST they responded, advising that they had no record of having received the two earlier emails. That is consistent with Mr Johnson's evidence that the earlier emails, each bearing three addresses, would have defaulted to the queue for the Legal Investigations Support team in the United States.
On 5 July 2019 at 3:30 pm AEST (4 July 2019 at 10:30 pm PDT) the plaintiff applied ex parte to Davies J in the duty list for an order directing the Registrar to charge the defendant with contempt for non-compliance with order 1 made the preceding day. The effect of the evidence referred to above is that, prior to this application, the only warning of it that reached any recipient who was at work and able to reply was the message referred to in the preceding paragraph sent one hour and 10 minutes earlier. Even this was only a notification to the defendant's Australian subsidiary whose personnel had by this time repeatedly informed the plaintiff's solicitors that they did not have authority to remove Reviews from Google My Business and were not authorised to accept service of process.
This application to Davies J was supported by an affidavit of Alanah Tannous sworn 5 July 2019, deposing that the orders of 4 July 2019 had been served by sending them to the three email addresses nominated in Rothman J's order 6. The deponent also stated that the Reviews identified in order 1 remained posted, that two further reviews had been posted "overnight on 4 July 2019" and that a post that had been earlier taken down had now reappeared. The last-mentioned point would no doubt have been of concern to his Honour but there is evidence now before the Court that this reposting was caused inadvertently by a software error during the migration of databases by the defendant. It is not necessary for me to make a final determination whether that is what occurred.
In submissions to Davies J the plaintiff's counsel referred to the fact that a solicitor instructed by Google Australia Pty Ltd had attended court when Rothman J made orders against the defendant the preceding day. Counsel said with respect to the Australian subsidiary:
Now, it takes the position that it can't do anything, it can't accept anything, it has nothing to do with anything.
The implicitly pejorative connotation of this submission was not justified. There may be sound business reasons for the defendant maintaining centralised control over the content of the My Business pages, including control over responses to removal requests. The evidence before me is that the My Business service is an enterprise owned by the defendant and operated from its headquarters in California. It is free to have an Australian subsidiary and to choose not to delegate to that entity any aspect of the control of its My Business service. Similarly the defendant is free not to confer upon Google Australia Pty Ltd authority to accept court documents. Having regard to the ease with which court documents may be emailed to a process server in California and served upon the defendant in accordance with the law of that state, it could hardly be said that the defendant obstructs or attempts to evade legal proceedings in New South Wales by not authorising its local subsidiary to accept service. There may be sound business management reasons for the defendant not authorising its Australian subsidiary to be a point of notification for legal proceedings in this jurisdiction. A desire for centralised handling of the numerous legal issues that an enterprise such as My Business would be likely to attract is understandable.
The plaintiff sought from Davies J an order pursuant to r 10.14(3) confirming that service of the summons, the affidavit of Mr Chaloui and the orders of 4 July 2019 had been effected. It was submitted that such confirmation of service was supported by the circumstances that a solicitor from Baker & McKenzie representing Google Australia Pty Ltd had been in court on 4 July 2019 and that the Australian company's in-house counsel was aware of the orders. It was submitted:
that this defendant is playing "ducks and drakes" by hiding behind its Australian subsidiary.
A CaseBase search indicates that Baker & McKenzie has acted for the defendant on many occasions whenever it has been sued in defamation and it seems to us that they are being quite cute in relation to the issue of service …
Those submissions may have appeared open on the limited materials placed before his Honour. But the allegations of "hiding behind its Australian subsidiary" and of being "cute" by not having Baker & McKenzie on general retainer to accept service now appear unjustified upon the considerations mentioned at [45] above, especially in view of the evidence the Court has received concerning the ease and speed with which process of this Court and notifications of hearings could have been served on the defendant directly and effectively according to law.
On the basis of the evidence and submissions presented to Davies J, his Honour made orders including the following
1. Pursuant to Rule 10.14 UCPR the Summons, Orders of Rothman J of 4 July 2019 and Affidavit of Elias Chaloui affirmed 4 July 2019 be taken to have been served on the defendant on 4 July 2019.
2. The Defendant be referred pursuant to Rule 55.11 of the Supreme Court Rules to the Registrar and direct the Registrar to charge the Defendant contempt.
The picture presented to his Honour was that the orders of the preceding day had been notified in a manner that Rothman J had accepted was likely to bring them to the defendant's attention. Davies J was given no reason to doubt that, having been emailed to the three nominated addresses, the orders would have reached responsible personnel within the defendant's organisation. His Honour was provided with evidence that the Reviews ordered to be taken down remained posted in contravention of order 1 of the preceding day and that new Reviews had been put up in breach of order 2. The evidence tendered to the Court on the present application changes the picture entirely with respect to the question of actual receipt by the defendant of the terms of the orders.
[9]
Basis for setting aside the order for referral for contempt
On 12 July 2019 I ordered a stay of Davies J's order for referral under r 55.11, upon the defendant satisfying me that there existed a serious question to be tried as to whether a charge of contempt could be proved. To sustain a charge of contempt each of the following matters would have to be proved beyond reasonable doubt:
1. That the defendant actually received notification of the orders of 4 July 2019.
2. That the orders clearly conveyed to the defendant what it was required to do (under order 1) and refrain from doing (under order 2).
3. That the defendant knowingly disobeyed the orders in some respect
In order to establish that the defendant breached the order in a manner calling for punishment as a criminal contempt, it would have to be proved that the breach was contumacious, in the sense of wilful or defiant. Whether or not the evidence is sufficient to prove this last point, all elements of the contempt would have to be proved beyond reasonable doubt: Witham v Holloway (1995) 183 CLR 525; [1995] HCA 3.
Mr Johnson has deposed that Reviews to which order 1 of 4 July 2019 applied were removed on the evening of 5 July 2019 or early on 6 July 2019 and on 8 and 9 July 2019 (AEST in each case). In fulfilment of order 1, at approximately 11:00 pm AEST on Sunday, 7 July 2019 steps were taken by the defendant "to effect a freeze on the posting of new reviews on the plaintiff's Google My Business listing". There is no suggestion of any continuing breach of the orders. Therefore, assessing the position now that both parties have been heard, justification for the referral to the registrar under r 55.11 depends upon whether there is evidence to prove the elements of contempt as at the date when referral was ordered, being 3:30 pm on 5 July 2019.
On the evidence from Mr Johnson, which was not before Davies J, it is now apparent that elements (1) and (3) could not be proved. It would be futile to lift the stay that I ordered on 12 July 2019 and to require the registrar to proceed with a prosecution for contempt. It is clear that the defendant did not act in disregard, either negligent, reckless or deliberate, of any Court order that was effectively brought to its attention. Order 2 made by Davies J on 5 July 2019 will therefore be vacated.
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Decision last updated: 13 August 2019