Rana v Google Inc

WHITE J: 1 This is a decision on an application for leave to appeal against a decision of a single Judge. 2 The proceedings have some history which it is appropriate to summarise briefly in order to explain why I consider that leave should be granted. 3 On 14 May 2012, the applicant (Mr Rana) commenced Action SAD98/2012 in this Court. As a result of subsequent joinder, there were four respondents to the action: Google Australia Pty Ltd (Google Australia), Darda Gregurev, Nina Gregurev and Google Inc. Mr Rana sought damages for defamation and for discrimination on the basis of his race and/or disability. He alleged in particular that he had been defamed by the content of websites of Darda Gregurev hosted by the Google entities. On 7 February 2013, Mansfield J dismissed Mr Rana's claim against Google Australia on the basis that he had no reasonable prospect of successfully prosecuting that claim: Rana v Google Australia Pty Ltd [2013] FCA 60. At the same time, Mansfield J stood over, for further consideration, applications by the two Gregurevs for summary dismissal of the claims against them and Mr Rana's application for leave to serve Google Inc (it being a foreign corporation). That further consideration did not occur because five days later (on 12 February 2013), Mr Rana discontinued the whole proceeding. 4 Some 20 months later, on 28 October 2014, Mr Rana commenced Action SAD 286/2014 in this Court. The respondents to this action were the Commonwealth of Australia and Google Inc. 5 As against Google Inc, Mr Rana sought damages pursuant to four causes of action: defamation, negligence, misleading or deceptive conduct in contravention of s 18 of the Australian Consumer Law 2010 (Competition and Consumer Act 2010 (Cth), Sch 2) (ACL), and unconscionable conduct in contravention of ss 20 and 21 of the ACL. It seemed that Mr Rana relied on the same publications which had been the subject of his action against Google Inc in Action SAD 98/2012 (although it is possible that the publications of which he complained had occurred over a more extended period). 6 As against the Commonwealth, Mr Rana sought a form of review of a decision of the Information Commissioner not to investigate whether Google Inc had contravened the Privacy Act 1988 (Cth) by permitting the alleged defamatory material to remain on the internet on a platform it had provided, despite his detailed complaint to it. The action against the Commonwealth was brought pursuant to s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act) and was wholly resolved by consent orders made on 2 February 2015. Thereafter, Action SAD 286/2014 proceeded against Google Inc only. 7 A more extensive summary of the claims which Mr Rana brought against the Commonwealth and Google Inc is contained in the decision of Mansfield J in Rana v Google Inc [2016] FCA 461 to which I will return shortly. 8 Mr Rana recognised that, having regard to his previous proceeding for defamation and the terms of s 21 of the Defamation Act 2005 (SA), he needed the leave of this Court to "bring" the further proceeding against Google Inc. On 3 November 2014, he filed an interlocutory application seeking that leave, as well as other interlocutory relief. 9 By his decision delivered on 6 May 2016 (Rana v Google Inc [2016] FCA 461), Mansfield J refused at that time to grant leave to Mr Rana to commence or to serve the proceeding against Google Inc. Instead, Mansfield J stood over to a date to be fixed the applications for leave to commence the proceedings and for leave to serve them. The reasons of Mansfield J for adopting this course of action appear in [37]-[42] of the Judgment. Essentially, Mansfield J was not satisfied that Mr Rana had pleaded his claims in a way which was "sufficiently clear and precise as to fairly require [Google Inc] to plead to them", at [40]. 10 Mansfield J gave Mr Rana leave to file by 19 August 2016 (but not to serve) a proposed amended application and statement of claim, and directed that if Mr Rana did not exercise that leave, his action should be dismissed. 11 Mr Rana did exercise the leave. On 14 June 2016, he filed a number of documents in Action SAD 286/2014, being: (a) an Amended Originating Application of some 20 pages; (b) an Amended Statement of Claim extending over 126 pages; (c) an interlocutory application; (d) an affidavit of approximately 150 pages (including annexures); (e) an amended genuine steps statement of some 13 pages; (f) an outline of submissions of some nine pages. 12 The heading to each of these documents indicated that there were four respondents to the action. These were Google Inc (first respondent), Darda Gregurev (second respondent), Nina Gregurev (third respondent), and the Commonwealth of Australia (fourth respondent). As at 14 June 2016, Mr Rana had not been granted leave to join any additional respondents. 13 By the interlocutory application filed on 14 June 2016, Mr Rana sought (relevantly for present purposes): (a) Leave pursuant to s 21 of the Defamation Act 2005 (SA) to commence and continue the claim against Google Inc; (b) Leave to serve the amended originating application and amended statement of claim on Google Inc outside jurisdiction; (c) Leave to serve the amended originating application and the amended statement of claim on the second to fourth respondents; (d) Leave to consolidate all causes of actions and respondents "in one final hearing"; 14 The interlocutory application did not in terms seek leave to amend either the originating application or the statement of claim, or to join the additional respondents, although applications to that effect may have been implicit in its paras [3], [4] and [5]. On one view the orders of Mansfield J on 6 May 2016 contemplated that Mr Rana would make an application to amend the existing proceedings which he sought leave to "bring" (in the sense of "continue"). On another view the proposed amended originating application and amended statement of claim constituted the proceeding which Mr Rana sought leave to "bring", and this may have been the view on which the primary Judge proceeded. 15 By a judgment delivered on 25 January 2017 (Rana v Google Inc (No 2) [2017] FCA 17), the primary Judge made the following orders: (a) the applicant's interlocutory application of 3 November 2014 is dismissed; (b) the applicant's interlocutory application of 14 June 2016 is dismissed. (c) the originating application is dismissed. 16 It is that judgment which is the subject of Mr Rana's present application for leave to appeal. 17 The Judge did not, at least expressly, treat Mr Rana's interlocutory application of 14 June 2016 as an application for leave to amend the originating application and the statement of claim, but it is apparent that her concerns about the adequacy of parts of Mr Rana's proposed pleading lay at the heart of her decision. So much is evident in the summary of the decision which the Judge gave at the commencement of her reasons: [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. (Emphasis added) 18 The Judge's reasoning can be summarised as follows: (a) it was appropriate to adopt a "robust" approach when considering whether Mr Rana's defamation claims against Google Inc were pleaded in the proposed statement of claim with sufficient precision and clarity so as to require Google, fairly, to plead to it, at [31]; (b) making sense of the proposed pleadings against Google Inc was made difficult by the fact that the pleas depended heavily on the pleas made against the Gregurevs, who in the Judge's view, had been wrongly named as respondents, at [32]; (c) however, adopting a "robust" approach and, subject to some qualifications turning principally on whether the Gregurevs were added as respondents, Google Inc should be able to identify and address the allegations made against it, at [34]-[37]; (d) the shortcomings in the pleadings were not such as to warrant a refusal of leave to commence the defamation proceeding against Google Inc (or the Gregurevs should leave be granted to join them as respondents) "subject to the jurisdiction of this Court being properly attracted", at [37]; (e) Mr Rana's pleadings concerning the alleged contraventions of ss 18 and 21 of the ACL were "not at all clear" because there were no clear pleas linking the contraventions alleged and the loss claimed by Mr Rana and were so deficient as to be "embarrassing", at [39]-[41]; (f) despite the terms of s 19(1) of the Federal Court of Australia Act 1976 (Cth) (the FCA Act) and s 39B of the Judiciary Act 1903 (Cth), the Court's jurisdiction to hear and determine the claims in defamation against Google Inc had to be pursuant to the jurisdiction in "associated matters" for which s 32(1) of the FCA Act provides, at [45]; (g) the shortcomings in Mr Rana's proposed pleading of the alleged contraventions of the ACL meant that it was "difficult, if not impossible" to determine whether Mr Rana's non-federal and federal claims were within the scope of the one controversy so as to be "associated matters", or whether the federal claim was "colourable" in the sense of having been made only to attract the jurisdiction of this Court. They were such that it was not possible on the basis of the proposed pleading to make any sensible determination of whether the Court had jurisdiction to hear and determine the defamation claims, at [43], [52]; (h) Mr Rana had acknowledged that he could not improve his pleading so that there was no point in giving him a further opportunity in which to do so. In fact, he had asked the Judge to decide his application on the basis of the papers which were before her because he could do no more. 19 The Judge then concluded: [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. (Emphasis added) 20 It seems that the "pleadings alleging contraventions of the ACL" which the Judge struck out were those in Mr Rana's proposed amended statement of claim. It is also apparent that the Judge did not base her conclusion that the Court lacked jurisdiction on an analysis of Mr Rana's original pleading. 21 The dismissals of Mr Rana's two interlocutory applications were interlocutory judgments so that leave to appeal is required: s 24(1A) of the FCA Act. However, it is not open to Mr Rana to bring an appeal against the refusal of leave to commence proceedings in the Court: see ss 24(1AA)(a) and 20(3)(a) of the FCA Act. Nor is it open to him to appeal against the judgment refusing him leave to amend his originating application, to the extent that it did so: see ss 24(1AA)(a) and 20(3)(c) of the FCA Act. If they were the only judgments against which Mr Rana wished to appeal, there would be no point to a grant of leave to appeal: Ferdinands v The State of South Australia [2017] FCA 32 at [22]. 22 However, Mr Rana also wishes to appeal against the dismissal of his originating application. He is not precluded from doing so by the prohibition established by ss 24(1AA)(a) and 20(3) of the FCA Act, even if one of the grounds for that appeal is a complaint that the Judge erred in refusing him leave to commence the proceedings. 23 There may be an issue as to whether the judgment dismissing the originating application was interlocutory in nature, so as to require leave. That invites attention to the source of the power exercised by the Judge in making the order. The Judge did not identify that power. The power of summary dismissal vested by s 31A of the FCA Act does not seem apposite, but judgments under that provision are interlocutory - see s 24(1D)(b) of the FCA Act. It seems more likely that the Judge dismissed the application pursuant to the jurisdiction inherently vested in the Court by s 19 of the FCA Act to determine its jurisdiction with respect to proceedings commenced in the Court and to dismiss those which are not within jurisdiction: Residual Assco Group Ltd v Spalvins [2000] HCA 33; (2000) 202 CLR 629 at [13]-[14]. An order of dismissal in these circumstances is generally regarded as interlocutory in nature: Applicant NAGM of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 395 at [6]. That would seem particularly so in the present case as the order dismissing the proceedings in this Court does not necessarily determine finally the rights of the parties. Hence, Mr Rana requires leave to appeal. 24 The approach adopted by this Court on an application for leave to appeal is well known. The Court enquires whether the subject decision is attended with sufficient doubt to warrant it being reconsidered by the Full Court and whether substantial injustice would result if leave were refused, supposing the decision to be wrong: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397; Seven Network Ltd v News Ltd [2005] FCAFC 125, (2005) 144 FCR 379; Cabcharge Australia Ltd v Australian Competition and Consumer Commission [2010] FCAFC 111. 25 The matters which Mr Rana provided in support of his application for leave to appeal were, with respect to him, discursive, repetitive and unfocused. An attempt at identifying and addressing all the matters mentioned in the papers is a task of some complexity. 26 However, Mr Rana pointed to two matters which, in my view, have some force and which by themselves indicate that a grant of leave is appropriate. 27 Mr Rana submitted, first, that the Judge had not given full force and effect to the jurisdiction of this Court vested by s 39B(1) and (1A) of the Judiciary Act. The Judge did not overlook s 39B - in fact she had referred to it expressly. Mr Rana submitted, however, that the Judge had overlooked that the proceedings as originally commenced included an undoubted federal matter (being the claim arising under the Privacy Act - a claim arising under a law of the Parliament within the meaning of s 39B(1A)(c) of the Judiciary Act), that his defamation claim could be regarded as part of the same justiciable controversy and, accordingly, within the jurisdiction of this Court, and that it had not lost that character simply because his claim under the Privacy Act had been resolved. 28 Mr Rana relied on the analysis of s 39B made by Allsop J in the article Federal Jurisdiction and the Jurisdiction of the Federal Court of Australia in 2002 (2002) 23 Australian Bar Review 29. In that article, Allsop J pointed out that the "matter" in respect of which this Court has jurisdiction is "the justiciable controversy between the actors to it comprised of the substratum of facts and claims representing or amounting to the dispute or controversy between or amongst them [and] is not the cause of action or the causes of action brought by the plaintiff". Mr Rana also relied on the statement of Allsop J at page 42 of the article, that "even if the federal issue is decided against the party raising it, or, it was, or became, unnecessary to deal with it, the matter of which it forms part does not cease to be federal in jurisdiction". Allsop J referred to a number of authorities for this proposition, including, relevantly: Johnson Tiles Pty Ltd v ESSO Australia Ltd [2000] FCA 1572; (2000) 104 FCR 564 at [85]-[86] and Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation (1987) 18 FCR 212 at 219. It is true that these authorities did not concern a circumstance like the present in which the relevant federal claim had been made against one party only and the claim against that party wholly resolved, but it is doubtful that that affects the application of the underlying principle. 29 On this basis, Mr Rana submitted that the adequacy or otherwise of his pleading of the ACL claims against Google Inc was not decisive of the question of this Court's jurisdiction. Any inadequacy in that respect could go to the question of leave to serve, but not to the determination of the Court's jurisdiction, as the Judge had supposed. 30 This basis for the Court's jurisdiction would be pertinent if the documents Mr Rana filed on 14 June 2016 are understood as an application to amend his original application and statement of claim. 31 Secondly, Mr Rana referred to the decision of the Full Court in Crosby v Kelly [2012] FCAFC 96; (2012) 203 FCR 451. That decision (in the context of proceedings for defamation) established that the effect of s 9(3) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) (the Cross Vesting Act) was to confer jurisdiction on this Court with respect to civil matters within the jurisdiction of the Supreme Courts of the Australian Capital Territory and the Northern Territory. In the present case, Mr Rana's pleading did not include any allegation that the publications of which he complained had occurred in either the Australian Capital Territory or the Northern Territory. However, given the nature of the publications of which he complains, one would expect that it would not be difficult for such a pleading to be made. I also note that, in his original statement of claim, Mr Rana had alleged that the words of which he complained had been read by nine identified persons, one of whom was in Victoria and had been downloaded by more than 6,000 people in Australia and over 67,000 people globally. 32 This basis for the Court's jurisdiction would be particularly pertinent if the documents which Mr Rana filed on 14 June 2016 are understood as constituting the proceedings which he sought leave to "bring". It would also be pertinent if Mr Rana's documents filed on 14 June 2016 are understood as an application to amend his original pleadings. 33 The primary Judge did not refer to either of these potential sources of jurisdiction. Instead, the Judge proceeded on the basis that, if this Court did have jurisdiction, it lay pursuant to s 32(1) of the FCA Act. It is evident from the analysis outlined above, that it was the Judge's doubts that the jurisdiction of this Court had been invoked at all which was a decisive consideration in the decision to dismiss the interlocutory applications of Mr Rana and the originating application. I consider it reasonably arguable that her Honour did approach the question of jurisdiction in a way which was too narrow and, in particular, without regard to whether, irrespective of Mr Rana's ACL claims, his defamation claims against Google Inc arose from the same justiciable controversy as did his Privacy Act claim and, further, without regard to s 9(3) of the Cross Vesting Act. I also observe that Mansfield J had not stood the matters over because of doubts about whether the original pleadings adequately invoked this Court's jurisdiction, but because of his concerns about the adequacy of Mr Rana's pleading of his claims, so as to warrant Google Inc being required to respond to them. 34 The Judge attached significance, understandably, to Mr Rana's concession that he would be unable to improve the pleading, even if given the opportunity to re-plead. However, I do not think that that counts against a grant of leave to appeal. In the first place, if the matter is within this Court's jurisdiction by reason of the previous claim under the Privacy Act, Mr Rana's inability to improve his pleading of the ACL contraventions would be immaterial to the issue of jurisdiction. Further, an order could have been made refusing leave to amend to raise the ACL claims, or excising them. Secondly, in the context in which the concession was made, it may only have been a concession that Mr Rana could not improve the pleading of his causes of action and not that he could not plead matters identifying this Court's jurisdiction more particularly. This may require consideration of the extent to which Mr Rana was on notice that this Court's jurisdiction was a matter in issue, given that this does not appear to have been raised when the matter was before Mansfield J. It may also require consideration of the position if leave to amend to include the ACL claims was disallowed, but Mr Rana was otherwise entitled to join the Gregurevs and pursue the claims against them (to the extent to which they were found to be adequately pleaded). 35 These are not matters which can be addressed appropriately at this stage. 36 For these reasons, I consider that it is appropriate to grant leave to appeal against the dismissal of the underlying proceedings and against the dismissal of the two interlocutory applications, save to the extent to which Mr Rana wishes to appeal directly against the refusals of leave to bring the proceedings and to amend the originating application. Leave to appeal against those aspects of the judgment is refused. It will be open to Mr Rana to agitate the issue of jurisdiction in the context of the appeal against the dismissal of the underlying action and, if successful, to apply again for leave to bring the proceedings and, if that leave is granted, to apply for leave to amend them and to serve them. 37 I add three matters. Mr Rana's application for leave to appeal also included an application for an extension of time in which to do so. Such an extension is not required as Mr Rana filed his application for leave to appeal within two days of the decision of the primary Judge. 38 The second matter is that, following the completion of the hearing, Mr Rana sent to my Chambers, without leave, further material in support of his application. I have not had regard to that material. 39 The third matter is that it does not seem that Mr Rana raised in the proceedings before the primary Judge the matters on which he now relies to indicate the existence of this Court's jurisdiction. 40 There will be a grant of leave to Mr Rana to commence an appeal against the judgment delivered on 25 January 2017 insofar as it dismissed the originating application filed on 28 October 2014 and the interlocutory applications of 3 November 2014 and 14 June 2016 save to the extent to which they sought leave to bring the proceedings, and/or to amend the originating application. The grant of leave is confined to the seven grounds of appeal stated in the application for leave to appeal. That leave is to be exercised by 16 June 2017. Leave to appeal against the dismissal of the interlocutory applications of 3 November 2014 and 14 June 2016 is otherwise refused. I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice White.

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