Rana v Google Inc

Federal Court of Australia|2017-01-25|Before: Adam P, Charlesworth J

The applicant's interlocutory application of 3 November 2014 is dismissed.
The applicant's interlocutory application of 14 June 2016 is dismissed.
The originating application is dismissed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

INTRODUCTION 1 The applicant (Mr Rana) applies for orders granting leave to commence a defamation proceeding against Google Inc (Google) and leave to serve an amended originating application and an amended statement of claim (proposed SOC) on Google. He also applies for leave to join three additional respondents in this action. 2 Mr Rana requires leave to commence the defamation proceeding against Google by virtue of the operation of s 21 of the Defamation Act 2005 (SA) (Act), to which I will later refer. He also requires leave to serve an originating process on Google, being a foreign corporation situated outside the jurisdiction: see r 10.42 and 10.43 of the Federal Court Rules 2011 (Cth) (Rules). 3 For the reasons given below, the proposed SOC is not sufficiently clear as to fairly require Google to respond to it. The deficiencies in the claim are such that Mr Rana has not adequately pleaded a claim that this Court has jurisdiction to determine. I am satisfied that Mr Rana would be unable to cure the deficiencies in the pleadings, even if given an opportunity to do so. 4 As a consequence, I have determined that the application to commence defamation proceedings against Google and to serve Google with the proceedings should be dismissed. No opportunity to re-plead should be granted and the action against Google should be dismissed. 5 I also discuss Mr Rana's application for leave to join additional respondents in the proceeding.

PROCEDURAL HISTORY 6 Mr Rana first sought the orders by way of an interlocutory application filed on 3 November 2014. Mansfield J held that the interlocutory application be stood over to a date to be fixed: Rana v Google Inc [2016] FCA 461 (Rana 2016). In relation to the application for leave pursuant to s 21 of the Act, his Honour said (at [36] - [37]): 36. The consideration of that application is deferred, because in my view there are certain further steps necessary before determining what, if any, further orders should be made on the interlocutory application. 37. The question to be addressed involves in my mind, in the particular circumstances, consideration of whether the existing originating application and statement of claim constitute an adequate pleading, and if not whether the appropriate order is simply to strike them out but to give the applicant the opportunity to re-plead his claims or some of them, or to refuse the application. 7 Mansfield J determined that the originating application and the statement of claim in their original form were not sufficiently clear and precise as to fairly require the proposed respondent to plead to them (at [40]). His Honour granted Mr Rana leave to file, by 19 August 2016, a proposed amended originating application and statement of claim. Mr Rana was also granted leave to apply in writing to the South Australia District Registrar within a further seven days to have his interlocutory application relisted for further hearing. Mansfield J made a further order to the effect that in the event that Mr Rana did not file within the stated deadlines a proposed amended originating application and statement of claim and/or did not apply in writing to the Registrar for his interlocutory application to be reinstated, the principal action would be dismissed. The effect of his Honour's orders was to grant Mr Rana an opportunity to re-plead his claims against Google and to have his interlocutory application of 3 November 2014 determined by reference to the amended documents. 8 On 14 June 2016, Mr Rana filed documents titled "Amended Statement of Claim" (being the proposed SOC) and "Amended Originating Application" (proposed OA), together with another interlocutory application seeking, among other things, orders in substantively the same terms as those parts of his interlocutory application of 3 November 2014 that had been stood over by Mansfield J (at least insofar as they concern Google). I will refer to that application as the June application. 9 By letter dated 12 June 2016, Mr Rana requested that this matter "be listed as soon as possible". I am satisfied that the letter constitutes a valid exercise of the grant of leave to apply to the Registrar to have the interlocutory application of 3 November 2014 reinstated. Mr Rana's act of filing the June application in relevantly the same terms (at least insofar as it affects the interests of Google) may also fairly be taken to be a valid exercise of the grant of leave. 10 In the circumstances, I am satisfied that the proceedings remain on foot, and that the interlocutory application of 3 November 2014 may now be reconsidered. 11 Mr Rana appeared before me on 27 June 2016. He did not seek to make oral submissions in further support of his interlocutory application of 3 November 2014 or in support of the June application. The proposed OA and proposed SOC were, however, accompanied by written submissions dated 12 June 2016 and a lengthy affidavit sworn on 14 June 2016. Mr Rana also provided a letter to the Registrar dated 12 June 2016. It includes these statements: I ask you to excuse me from hearing in the Court, and am happy the Court to make any decisions to what I have submitted to the Court and that is also reflected in my interlocutory application. If I fail to serve papers outside jurisdiction then I am happy that the Court also should dismiss all of my claims as being futile, and having no scope and utility. … I have put my thoughts to you now about the matter to the best of my ability. I have nothing to add apart 'the litigation papers speak for themselves'. If I have failed them to speak for themselves then I concede and accept my limits and I have failed and thank the Court accordingly. 12 In light of those statements, and in light of Mr Rana's preference not to make oral submissions in support of the proposed amended documents, I reserved judgment on Mr Rana's interlocutory application dated 3 November 2014 and the June application. 13 In order to deal with the issues arising on those applications it is necessary to set out some further history relating to proceedings commenced by Mr Rana in this Court in 2012 (SAD 98 of 2012) (the 2012 action). The first respondent in the 2012 action was Google Australia Pty Ltd. Google was the fourth respondent. The second and third respondents were Darda and Nina Gregurev (the Gregurevs). The application against Google Australia Pty Ltd was dismissed as there was no demonstrable or arguable cause of action pleaded against it: Rana v Google Australia Pty Ltd [2013] FCA 60 (Rana 2013). In Rana 2016 (at [11]), Mansfield J summarised the effect of other orders made in the 2012 action as follows: Mr Rana at that time was given leave to file and serve on the Gregurevs within a specified period a further amended application and further amended statement of claim, in the light of the reasons in that judgment about the flaws in the then existing application and statement of claim. He was also given notice, by the reasons for judgment, that it was necessary for him to seek leave to serve the proceedings on Google overseas, it being a foreign corporation, and that the question of whether that leave should be given should await the filing and service of any further amended application and further amended statement of claim. An application of the Gregurevs to summarily dismiss the claim was then also stood over to a date to be fixed. Directions were given for the filing and service of the proposed further amended application and the proposed further amended statement of claim and supporting evidence. 14 As can be seen, leave was not granted in the 2012 action to serve the proceedings on Google because the originating application and statement of claim were not then in an appropriate form. 15 Mr Rana did not file any amended initiating documents in the 2012 action. On 12 February 2013, he discontinued the claim against the remaining respondents. As Mansfield J observed (at [13]), the notice of discontinuance stated that the 2012 action was discontinued "due to ill health" and was accompanied by a medical report.

THE CLAIMS AGAINST GOOGLE 16 In their original form, the originating application and statement of claim in this action named two respondents: the Commonwealth of Australia and Google. Consent orders disposing with the claim against the Commonwealth of Australia were made on 2 February 2015, leaving Google as the only remaining respondent. The Commonwealth of Australia had been joined in relation to an administrative decision made by the Australian Privacy Commissioner in response to a complaint Mr Rana had made in relation to the same publications complained of in the defamation claim against Google. 17 As against Google in this action, Mr Rana claims that it has, since 30 September 2007, hosted or otherwise enabled defamatory material about him to be published on certain websites. The Gregurevs are alleged to be the authors of those publications. The websites complained of in the 2012 action are identified by Mansfield J in Rana 2013 at [8] and [11]. The websites there listed largely correlate with the websites complained of in this proceeding: see proposed SOC at, respectively, [256], [173], [80], [192] (together with [311]), [387] and [315] (together with [319]). Mansfield J proceeded on the assumption that the particular publications complained of in these proceedings are the same, or of the same matter, as those complained of in the 2012 action. Mr Rana has not sought to challenge that assumption. It is that circumstance which enlivens the operation of s 21 of the Act. It provides: 21 - Permission required for further proceedings in relation to publication of same defamatory matter If a person has brought defamation proceedings for damages (whether in this jurisdiction or elsewhere) against any person in relation to the publication of any matter, the person cannot bring further defamation proceedings for damages against the same defendant in relation to the same or any other publication of the same or like matter, except with the permission of the court in which the further proceedings are to be brought. 18 It is to be borne in mind that the requirement for leave to commence the proceeding against Google is confined to the defamation action. Mr Rana does not require the leave of the Court to commence an action against Google in respect of other claims properly falling within the Court's jurisdiction. The only issues to be determined in relation to the other claims relate to the sufficiency of the pleading and the grant of leave to serve Google outside of the jurisdiction in respect of them. 19 The proposed SOC alleges two additional causes of action, namely: (1) a claim that Google has engaged in misleading and deceptive conduct in contravention of s 18 of the Australian Consumer Law (ACL) being Schedule 2 to the Competition and Consumer Act 2010 (Cth); and (2) a claim that Google has engaged in unconscionable conduct in contravention of s 21 of the ACL. 20 The availability of those claims is important because it is only by reason of them that the jurisdiction of this Court to hear and determine the claims founded in defamation may be attracted. I deal with that issue in more detail below.

Claims against proposed additional parties 21 My first observation of the proposed amended documents is that they name (as the first to fourth respondents respectively) Google, Darda Gregurev, Nina Gregurev and the Australian Information Commissioner. 22 As I have mentioned, the only presently remaining respondent in this action is Google (now identified as the first respondent on the proposed amended documents). Mr Rana has proposed an amended pleading that names additional respondents without first obtaining leave to join those persons as parties in the action: see r 1.32 of the Rules. 23 In the June application, Mr Rana seeks various orders in relation to the Gregurevs. Relevantly, orders are sought in the following terms (original spelling and grammar retained): 1. Court to grant leave to the Applicant for commencing and continuing the matter per s 21 of the Defamation Act 2005 (SA). 2. Court to grant leave to the Applicant for such extension of time per Rules 1.38 and/or 1.39 of the Federal Court Rules 2011, and ss 45 and/or 48 of the Limitations of Actions Act 1936 (SA) to be 'picked up' by s 79 of the Judiciary Act 1903 (Cth). … 5. Court to grant leave to the Applicant to consolidate all causes of actions and Respondents in one final hearing. ... 7. Court should grant leave to the Applicant for commencing judicial review on and/or about the conduct of the Fourth Respondent per ss 5 to 7, and much more of the AD(JR) Act and the legal question sought are per the amended originating application at [26]-[28]: 24 Having regard to Mr Rana's status as an unrepresented litigant I have regarded those paragraphs of the June application as constituting an application for leave to join the Gregurevs and the Australian Information Commissioner as respondents in the action.

A further application 25 On 4 October 2016 Mr Rana lodged another document in the Registry for filing. The document is an originating application naming three respondents: Australian Information Commissioner, Ji-Beom Jang and Helen Fleming. In light of the nature and content of the documents I have described so far, I directed the Registrar not to accept the additional document for filing except with the leave of the Court: see rr 1.37 and 2.27(f) of the Rules. To be clear, I am not presently concerned with the determination of Mr Rana's application to commence another action. For the reasons given below, consideration of that application is deferred until Mr Rana has had a further opportunity to consider these reasons for judgment.

THE ISSUES 26 The same question addressed by Mansfield J now arises before me, albeit in relation to the proposed OA and the proposed SOC. It should first be determined whether the amended pleadings are sufficiently clear and precise so as to fairly require Google to plead to them. If the pleadings are not sufficiently clear, it will be necessary to determine whether Mr Rana ought to be given an opportunity to propose further amendments before finally determining the interlocutory application dated 3 November 2014 and the June application.

Principles 27 The purpose of a statement of claim is to enable the respondent to know, with sufficient clarity, the case which it is required to meet: Dare v Pulham (1982) 148 CLR 658 at 664. That purpose accords with ordinary principles of procedural fairness: Banque Commerciale SA, En Liquidation v Akhil Holdings Limited (1990) 169 CLR 279 at 286. 28 The requirements for a pleading are prescribed in r 16.02 of the Rules. A pleading must (among other requirements) be as brief as the nature of the case permits and must not be likely to cause prejudice, embarrassment or delay in the proceeding: subr 16.02(1)(b) and (d) respectively. The Court may strike out a statement of claim that does not meet those requirements: r 16.21(1) (formerly O 11 r 16). 29 In Australian Securities and Investments Commission v Cassimatis (No 2) [2013] FCA 1008; (2013) 96 ACSR 272 at [97] - [99], Reeves J approved of the following robust approach to the resolution of pleading disputes applied by Martin CJ in Barclay Mowlem Construction Ltd v Dampier Port Authority [2006] WASC 281; (2006) 33 WAR 82 (Barclay) at [7] - [8]: 7. In my view, it follows that provided a pleading fulfils its basic functions of identifying the issues, disclosing an arguable cause of action or defence, as the case may be, and apprising the parties of the case that has to be met, the court ought properly be reluctant to allow the time and resources of the parties and the limited resources of the court to be spent extensively debating the application of technical pleadings rules that evolved in and derive from a very different case management environment. 8. Most pleadings in complex cases, and this is a complex case, can be criticised from the perspective of technical pleading rules that evolved in a very different case management environment. In my view, the advent of contemporary case management techniques and the pre-trial directions, to which I have referred, should result in the court adopting an approach to pleading disputes to the effect that only where the criticisms of a pleading significantly impact upon the proper preparation of the case and its presentation at trial should those criticisms be seriously entertained. 30 Martin CJ went on to criticise the "pedantic and pettifogging" complaints that had been made about the adequacy of the pleading before him. His Honour concluded that any lawyer looking at the impugned pleading, genuinely interested in knowing what issues are to be tried and the case that has to be met, would have no difficulty in ascertaining those matters (at [10]). 31 It is appropriate that the Court adopt the same robust approach adopted in Barclay when considering whether Mr Rana's case has been pleaded with sufficient precision and clarity so as to fairly require Google to respond to it.

The defamation pleas 32 It is unfortunate that Mr Rana has proposed a pleading that names additional respondents that are not properly joined as parties in the action. The pleading is structured in such a way that the publications and imputations complained of are all identified in the context of claims against the Gregurevs. Making sense in the pleading against Google (at least insofar as the claims founded in defamation are concerned) depends heavily on cross references to the claims against the Gregurevs, who, as I have said, are wrongly named as respondents. 33 In respect of each of the Gregurevs, the pleading commences with a lengthy narrative of facts under the heading "Introductory Averments": proposed SOC [78] - [79] (including misnumbered [75]) and [360] - [386]. Many of the pleaded facts in those paragraphs are irrelevant and liable to be struck out on that basis alone. 34 However, the remaining proposed pleas in defamation against the Gregurevs appear to be adequately drafted, albeit in a lengthy fashion. The length of the pleading may be explained in part by the subject matter of the claim, and in part by Mr Rana's method of pleading the words of the impugned publications in a sentence by sentence format. Notwithstanding its length, the proposed pleading alleges with sufficient clarity: (1) the websites alleged to have been published by the respondents (for example: proposed SOC [80], [173], [192], [256], [278], [297], [307], [315], [319], [328] and [387]); (2) the text of the particular words published on each of the websites that concern Mr Rana (for example: proposed SOC [81], [85], [88], [91], [94], [97], [100], [103], [106], [109], [112], [115], [121], [124], [127], [130], [133], [136], [140], [143], [146], [149], [152], [155], [158], [161], [164], [167], [170], [174], [177], [180], [183], [186], [193], [196], [199], [202], [205], [211], [214], [217], [220], [223], [226], [229], [232], [235], [238], [241], [244], [247], [250], [253], [257], [260], [263], [266], [269], [272], [279], [282], [285], [288], [291], [294], [298], [301], [304], [308], [316], [320], [323], [329] and [388]); (3) the imputations alleged to have been conveyed by the words complained of (for example: proposed SOC [82], [86], [89], [92], [95], [98], [101], [104], [107], [110], [113], [119], [122], [125], [128], [131], [134], [138], [141], [144], [147], [150], [153], [156], [159], [162], [165], [168], [171], [175], [178], [181], [184], [187], [194], [197], [200], [203], [206], [212], [215], [218], [221], [224], [227], [230], [233], [236], [239], [242], [245], [248], [251], [254], [258], [261], [264], [267], [270], [273], [280], [283], [286], [289], [292], [295], [299], [302], [305], [309], [312], [317], [321], [320], [326], [330] and [389]); (4) in respect of each imputation or allegation that the meaning is defamatory (for example: proposed SOC [83], [87], [90], [93], [96], [99], [102], [105], [108], [111], [114], [120], [123], [126], [129], [132], [135], [139], [142], [145], [148], [151], [154], [157], [160], [163], [166], [169], [172], [176], [179], [182], [185], [188], [195], [198], [201], [204], [207], [213], [216], [219], [222], [225], [228], [231], [234], [237], [240], [243], [246], [249], [252], [255], [259], [262], [265], [268], [271], [274], [281], [284], [287], [290], [293], [296], [300], [303], [306], [310], [313], [318], [322], [324], [327], [331] and [390]); and (5) loss (for example: proposed SOC [84], [87], [90], [93], [96], [99], [102], [105], [108], [111], [114], [120], [123], [126], [129], [132], [135], [139], [142], [145], [148], [151], [154], [157], [160], [163], [166], [169], [172], [176], [179], [182], [185], [189], [195], [198], [201], [204], [207], [213], [216], [219], [222], [225], [228], [231], [234], [237], [240], [243], [246], [249], [252], [255], [259], [262], [265], [268], [271], [274], [281], [284], [287], [290], [293], [296], [300], [303], [306], [310], [314], [318], [322], [324], [327], [331] and [391]). 35 By a series of cross references, the pleading adequately alleges that Google is to be regarded as a publisher of the words allegedly authored by the Gregurevs: proposed SOC [1] and [47] - [48]. If leave were granted to join the Gregurevs as respondents in the action, I would regard the pleading in defamation against Google to be sufficiently clear, subject to the striking out of the large passages of so-called "Introductory Averments" and the correction of some other minor deficiencies. If leave were not granted to join the Gregurevs, further significant amendments would be required to address the circumstance that persons named in the pleading are wrongly referred to as respondents. Again, in the hands of a competent drafter, those defects would not be difficult to cure. 36 Subject to the matters I have mentioned, and adopting a robust approach, I am satisfied that lawyers acting for Google could identify the issues arising in the claims alleged against the Gregurevs and would for that reason comprehend, by the various cross references, the nature of the defamation claim made against it. If leave were not granted to join the Gregurevs in the action, references to them in the pleading may be amended so as to refer to them by their names and not by reference to their status as respondents. That is easily enough done, as is the deletion of the lengthy and unnecessary "Introductory Averments" to which I have referred. 37 I have no doubt that Google and the other proposed respondents would take issue with the capacity of the alleged published words to convey the imputations pleaded by Mr Rana. However, that, of itself, would not cause me to refuse Mr Rana leave to commence a proceeding in defamation against Google (or the Gregurevs, should leave be granted to join them as respondents), subject to the jurisdiction of this Court being properly attracted. The decided cases in defamation are replete with arguments concerning the capacity of words to convey pleaded imputations. Pleading disputes of that kind are best resolved between the parties and not by the Court of its own motion, either at trial or at an interlocutory stage on a respondent's application. The potential for capacity disputes of that kind to arise in this matter does not weigh heavily in my assessment of the sufficiency of the pleading as a whole.

A jurisdictional issue 38 In Rana 2016, Mansfield J observed that it was unclear whether the causes of action for contraventions of the ACL as expressed in the pleading before him were reasonably available to Mr Rana. It was, however, unnecessary for his Honour to decide that question because his Honour had determined to grant Mr Rana an opportunity to re-plead. I have determined that the amended pleas founded in defamation against Google are sufficient, (subject to some relatively minor surgery), such that it would not be unfair to require Google to respond to the pleading should leave be granted to Mr Rana to commence the defamation action against Google and to serve Google outside of the jurisdiction. 39 However, notwithstanding the potential sufficiency in the defamation pleas, the pleas alleging contraventions by Google of the ACL are not at all clear. It appears that Mr Rana seeks to impugn certain transactions for the acquisition of an email address and the purchase of unspecified software from Google (proposed SOC [16] - [18] and possibly [19] - [20]) in reliance upon certain representations (proposed SOC [22], [23] and [25]). He then alleges that he commenced online studies at Deakin University (proposed SOC [24] and [380]), and that he was unable to complete the study due to, among other things, reputational harm caused by the defamatory publications (proposed SOC [28]). It is, however, entirely unclear what causal or other relationship exists between the contravening conduct alleged against Google (which, of itself is unclear), and the course of study undertaken or attempted to be undertaken by Mr Rana at Deakin University. Whilst it is apparent that Mr Rana intends to claim that he lost the opportunity to advance and complete his studies by reason of the defamatory publications, that allegation is more properly regarded as an aspect of loss advanced in the defamation action. There is no clear plea establishing a causal relationship between Google's alleged contraventions of the Act and the defamatory publications. Importantly, the alleged publication of defamatory material is not relied upon by Mr Rana as conduct contravening the ACL. 40 Although Mr Rana has made a plea for injunctive relief pursuant to s 232 of the ACL to restrain further publication of the defamatory imputations, that plea for relief is not supported by the facts said to constitute the Act contraventions. 41 Even putting the claim founded in defamation to one side, I would not grant Mr Rana leave to serve the proposed SOC on Google outside of the jurisdiction in relation to claims founded on contraventions of the ACL. Considered alone, the pleas are so deficient they ought to be struck out. The pleas are "embarrassing" in the sense of that term discussed by Collier J in Fair Work Ombudsman v Eastern Colour Pty Ltd [2011] FCA 803; (2011) 209 IR 263 at [18]: So far as concerns the term 'embarrassing', the Full Court of the Supreme Court of Victoria in Meckiff v Simpson [1968] VR 62 at 70 explained that, in the context of pleadings, 'embarrassing' includes defects resulting in the pleading being unintelligible, ambiguous, vague or too general, so as to embarrass the opposite party who does not know what is alleged against it. 42 See also Spiteri v Nine Network Australia Pty Ltd [2008] FCA 905 at [22] (Edmonds J). 43 The defects in this portion of the proposed SOC have an important bearing on the question of whether Mr Rana ought to be granted leave to serve Google with the originating documents outside of the jurisdiction. That is because the defects in the ACL pleas are such that it is presently unclear that the Court has jurisdiction to hear and determine the claims founded in defamation at all. For the reasons that follow, the Court cannot make any sensible determination on that question on the pleadings in their present form. 44 This Court has such original jurisdiction as is vested in it by laws made by the Commonwealth Parliament: Federal Court of Australia Act 1976 (Cth) (FCA Act), s 19(1). One such law is s 39B of the Judiciary Act 1903 (Cth) (Judiciary Act). The Court may have jurisdiction to hear a claim founded in defamation where, for example, the action is one in which an injunction is sought by the Commonwealth (Judiciary Act, s 39B(1A)(a)). That is not this case. 45 If jurisdiction to hear Mr Rana's claims in defamation is attracted at all, it is attracted pursuant to s 32(1) of the FCA Act. It provides: 32 Jurisdiction in associated matters Associated matters - civil proceedings (1) To the extent that the Constitution permits, jurisdiction is conferred on the Court in respect of matters not otherwise within its jurisdiction that are associated with matters (the core matters) in which the jurisdiction of the Court is invoked. 46 In Philip Morris Incorporated v Adam P Brown Male Fashions Proprietary Limited (1981) 148 CLR 457 (Philip Morris) at 512, Mason J (with whom Stephen J agreed) observed, the word "matter" in s 75 and 76 of the Constitution: Once it is accepted, as it must be, that there is no special magic in the scope of those matters which involve the interpretation of the Constitution, the lesson to be learned from the authorities is that the Court having jurisdiction to determine a matter falling within ss 75 and 76 giving rise to the exercise of federal jurisdiction has jurisdiction to decide an attached non-severable claim. The classification of a claim as 'non-severable' does not necessarily mean that it is, or must be, united to the federal claim by a single claim for relief, though this is a common illustration of a non-severable claim. The non-severable character of the attached claim may emerge from other aspects of the relationship between the federal and the attached claim. For example, it may appear that the resolution of the attached claim is essential to a determination of the federal question. Likewise, it may appear that the attached claim and the federal claim so depend on common transactions and facts that they arise out of a common substratum of facts. In instances of this kind a court which exercises federal jurisdiction will have jurisdiction to determine the attached claim as an element in the exercise of its federal jurisdiction. 47 See also: Fencott v Muller (1983) 152 CLR 570 at 607; Re Wakim; Ex Parte McNally (1999) 198 CLR 511 at [140] - [145] and Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (2000) 104 FCR 564 at [83]. In the latter case, French J (with whom Beaumont and Finkelstein JJ agreed) observed at [83]: … The matter in respect of which jurisdiction is defined embodies the entire controversy which parties bring for determination by the Court - Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457 at 512 (Mason J). The content of the controversy depends upon what the parties have done, their relationships and the laws attaching rights or liabilities to their conduct and relationships. It is not ascertained merely by reference to the proceedings which are instituted but may be illuminated by their conduct and by the pleadings in which issues and controversy are defined and claims for relief set out. As the majority judgment in Fencott v Muller (1983) 152 CLR 570 observed (at 608): 'But in the end it is a matter of impression and of practical judgment whether a non-federal claim and a federal claim joined in a proceeding are within the scope of one controversy and thus within the ambit of a matter.' (emphasis added) 48 In Rivera v Australian Broadcasting Corporation (2005) 144 FCR 334, the applicant pleaded causes of action in defamation, breach of confidence and contravention of the then-named Trade Practices Act 1974 (Cth) (TP Act). Hill J observed at [22]: It is clear that this Court has only such jurisdiction as may be conferred upon it by an enactment of the Commonwealth Parliament: s 19(1) of the Federal Court of Australia Act 1976 (Cth) (the Federal Court Act). By reference to s 32(1) of that Act, the Court has, what is generally referred to as accrued jurisdiction in relation to non-federal issues which may arise as part of a 'matter' where jurisdiction is, by statute, conferred upon the Court in regard to that matter. The question of accrued jurisdiction is the subject of discussion in the High Court in cases such as: Fencott v Muller (1983) 152 CLR 570 and Stack v Coast Securities (No 9) Pty Ltd (1983) 154 CLR 261. Claims in defamation or claims for breach of confidence of themselves do not involve federal jurisdiction. They are within the jurisdiction of the state courts. No jurisdiction is conferred upon this Court directly in respect of such claims. However, jurisdiction is conferred upon the Court by the TP Act in respect, inter alia, of breaches of that Act. Jurisdiction is also conferred upon this Court in respect of breaches of the Privacy Act. If jurisdiction is conferred upon the Court to hear and determine either the trade practices claim or the claim arising under the Privacy Act, then the claims in defamation or for breach of confidence would fall within the accrued jurisdiction of this Court, with the consequence that this Court would have jurisdiction to hear and determine them. 49 In that case, the Court had no jurisdiction to determine the TP Act claims at all because of exclusions applying under that Act. Accordingly, Hill J dismissed the whole of the application (including the claim founded in defamation) on the basis that the Court had no jurisdiction to hear and determine it. There was no federal claim to which the claims founded in defamation could be properly "associated" within the meaning of s 32 of the FCA Act. 50 In Hunt Australia Pty Ltd v Davidson's Arnhemland Safaris Pty Ltd [2000] FCA 1690; (2000) 179 ALR 738 (Hunt) the Full Court (Spender, Drummond and Kiefel JJ), citing Philip Morris, upheld an appeal against the conclusion of a trial judge that a non-federal claim in defamation and a federal claim under the TP Act were "within the scope of one controversy". The defamation claim in Hunt was not "a completely disparate claim constituting in substance a separate proceeding" nor was it "a non-federal matter which is completely separate and distinct from the matter which attracted federal jurisdiction". 51 Federal jurisdiction is not attracted where the federal claim is colourable in the sense that it is made for "the improper purpose of 'fabricating' jurisdiction": Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation (1987) 18 FCR 212 at 219; Unilan Holdings Pty Limited v Kerin (1993) 44 FCR 481 at 481 and Beck v Spalla (2005) 142 FCR 555 at [26]. As Perry J recently observed in Qantas Airways Ltd v Lustig (2015) 228 FCR 148 at [88]: The raising of a federal claim will ordinarily give rise to a federal matter unless it is colourable in the sense that it is made for 'the improper purpose of 'fabricating' jurisdiction': Burgundy Royale at 219 (the Court). The question, therefore, of whether a claim is tenable will be relevant to that question but not determinative save (rarely) where a claim is so obviously untenable, and would have been so to those who propounded it, that the claim is found to be colourable: Cook v Pasminco Ltd (2000) 99 FCR 548 at [14] and [16] (Lindgren J); Ahmed v Harbour Radio Pty Ltd (2009) 180 FCR 313 at [58]-[64] (Foster J). For example, in Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (2000) 104 FCR 564 (Johnson Tiles), French J (with whose reasons Beaumont and Finkelstein JJ agreed) explained at [88] that: In the ordinary course the contention that a claim is not tenable will not go to jurisdiction unless dependent upon a submission that the claim is outside jurisdiction. And indeed, within that class a claim may be untenable because its very nature denies its character as an element of any matter or controversy in respect of which the Court can exercise jurisdiction. So a proceeding based upon the proposition that the Commonwealth Constitution is invalid does not disclose a matter arising under the Constitution or involving its interpretation - Nikolic v MGICA Ltd [1999] FCA 849. A claim may also be a sham reflecting no genuine controversy and therefore establishing no matter in respect of which the Court may exercise its jurisdiction. There has been discussion of so called 'colourable' claims made under the Trade Practices Act for the improper purpose of fabricating jurisdiction. The mere fact that a claim is struck out as untenable does not mean it is colourable in that sense. 52 In the present case, the task of forming any impression or exercising any practical judgment to determine whether Mr Rana's non-federal and federal claims are within the scope of the one controversy, or to determine whether they are colourable, is rendered difficult, if not impossible, by the deficiencies I have identified in the ACL pleas. I am mindful that a single justiciable controversy may exist in reality between Google and Mr Rana of which the defamation claim and the ACL claims form a part. Expressed another way, there may well be a common substratum of facts supporting both sets of claims that could, speaking in the abstract, be adequately pleaded. 53 Ordinarily, a self-represented litigant faced with the plight of drawing an adequate pleading should be afforded a degree of latitude and be given a second opportunity to re-plead a struck-out claim: Underdown v Secretary, Department of Education, Employment and Workplace Relations [2009] FCA 965 at [17] (McKerracher J); see also Zoltaszek v Downer EDI Engineering Pty Ltd [2011] FCA 744 at [31], in which Flick J said "The plight of an unrepresented party is not to be underestimated". But Mr Rana does not seek to re-plead. He has, by his letter to the Registrar, fairly acknowledged that the proposed SOC and the proposed OA contain the best form of words he is capable of producing. I afford significant weight to Mr Rana's subjective perceptions of his ability to improve on the documents before me. I share his view. 54 The discretion to grant a litigant an opportunity to amend a pleading is to be exercised in a manner that best promotes the overarching purpose of the Court's civil practice and procedure provisions, which includes the objective of the efficient use of the judicial and administrative resources available for the purposes of the Court and the efficient disposal of the Court's overall case load: FCA Act ss 37M(1), 37M(2)((b) and (c). Those objectives are not served by granting leave to a litigant to file an improved pleading when the litigant himself has acknowledged that he is not capable of doing so.

CONCLUSIONS 55 In the circumstances, I would not grant Mr Rana leave to serve proceedings on Google outside of the jurisdiction. I strike out the pleadings alleging contraventions of the ACL, and I do not grant Mr Rana leave to re-plead those claims. As a consequence, the whole of the proceedings against Google should be dismissed on the basis that the Court does not have jurisdiction in any event to hear and determine the defamation claims, there being no adequately pleaded core federal matter to which those claims might properly be associated. The application for leave pursuant to s 21 of the Act is dismissed. 56 In the circumstances, I do not consider this action to be an appropriate vehicle to which Mr Rana might now seek to join additional parties. The action, as originally commenced, named two respondents: the Commonwealth of Australia and Google. The action against the Commonwealth was resolved by consent in February 2015, and the action against Google should, as I have said, be dismissed by reason of the incurable deficiencies in the pleadings. To allow Mr Rana to now join three additional respondents would be to permit a complete substitution of the original parties. It is also relevant that the orders of Mansfield J did not involve any grant of leave to Mr Rana to join additional respondents or make any provision for him to make an application to do so, at least until issues concerning inadequacies in the pleading against Google were resolved.

The additional proposed proceeding 57 It remains open to Mr Rana to commence, or attempt to commence, separate proceedings against additional respondents, subject to the same principles governing this Court's jurisdiction to which I have referred. 58 As I have already observed, on 4 October 2016, Mr Rana lodged for filing in the Registry a statement of claim and originating application with a view to commencing a further proceeding. I will hear further submissions from Mr Rana in relation to whether leave ought to be granted to file the originating documents in that proceeding, but I will not do so in the context of this action. Mr Rana may wish to reconsider the identity of the respondents named in the further proposed proceeding, having regard to these reasons for judgment. That is up to him. I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Charlesworth.

Trade Practices Act 1974(Cth)

Limitations of Actions Act 1936(SA)

At a glance

Court

Decision date

Before

Source

Judgment (12 paragraphs)

Parties

Legislation Cited (7)

Cases Cited (27)