Rana v Google Inc

1. Leave to file the documents emailed to the Court on 3 February 2023 is refused. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

COLVIN J: 1 In 2021, Mr Rana commenced defamation proceedings in this Court against six respondents. On 3 November 2021, his application for leave to serve the proceedings on each of the first, second and sixth respondents (being Google Inc, Automatic Inc and Microsoft Corporation Inc respectively) was refused: Rana v Google Inc [2021] FCA 1360. My reasons for that decision included the following (at [12]-[13]): Given the state of the application and the Claim, I am not satisfied that the proceedings in the form in which they have been commenced would not be stayed as an abuse of process for the reasons that I have given. Further, by reason of the terms in which the application and Claim are expressed it is not possible to determine whether there is a good arguable case to support the proceedings. The affidavits of Mr Rana do not assist in that regard. It is not for the Court to trawl through the material presented to try and determine whether there may be some basis for a claim amongst everything that has been deposed to by an applicant. The submissions filed by Mr Rana do not assist. Therefore, even assuming that the conditions in r 10.43(4) of the Federal Court Rules 2011 (Cth) are satisfied (about which it is not possible to express a view) there is, to adopt the language of Beach J in Trina Solar (US), Inc v Jasmin Solar Pty Ltd [2017] FCAFC 6; (2017) 247 FCR 1 at [117], a compelling reason why the application for leave to serve out of the jurisdiction should be refused. 2 Also on 3 November 2021, orders were made as to the further conduct of the proceedings. They included orders that no further interlocutory application or affidavits be filed in the proceedings unless leave to do so had been given by a judge of the Court; that the statement of claim be struck out and that the further conduct of the proceedings be stayed until leave is given to the applicant to file a concise statement. 3 As to the filing of the concise statement, the following orders were made: On or before 26 November 2021, the applicant do file and serve on the third respondent a minute of proposed concise statement together with any submissions as to why leave should be given to allow the concise statement to stand as disclosure of the nature of the case that the applicant seeks to advance, subject to the right of any of the respondents to object to the form of the concise statement. The question whether there be leave to the applicant to file a concise statement in terms of any such minute of concise statement be determined on the papers. 4 It may be noted that at the time of the making of the orders the proceedings had only been served upon Dr Janice Duffy, the third respondent. That appears to remain the position. In any event, service of the proceedings upon the first, second and sixth respondents would require leave to serve out of the jurisdiction. If service was to be effected on any of the other respondents then no further step could be taken in the proceedings by reason of the stay that has been ordered. 5 In short, pursuant to the orders made 3 November 2021 unless and until Mr Rana is able to obtain leave to allow a concise statement to stand as disclosure of the nature of the case that he seeks to advance (such leave to be subject to the right of any respondents to object to the form of the concise statement), the proceedings are in abeyance. 6 Mr Rana sought leave to appeal against the orders made on 3 November 2021. His application for leave was refused: Rana v Google Inc [2022] FCA 877. 7 Various documents that were sent to the Court's registry in Adelaide by email on 3 February 2023 have now been referred to me as the case managing judge for consideration having regard to the orders that have been made requiring leave to file documents. The emails include some assertions as to previous attempts to lodge documents. Resolution of those matters is not relevant to the subject matter of these reasons which concern whether leave should be given to Mr Rana to file the documents now referred to me. 8 There are four documents. In an email to the registry, Mr Rana describes them as follows: Please note file 1 is interlocutory application seeking leave with HH Colvin J, file 2 is affidavit with proposed concise statements per orders of Colvin J in SAD 147/2021. File 3 is outline of submission to link with the files 1 and 2, and file 4 is statement with various cases. 9 The interlocutory application seeks the following orders: 1. Leave be granted to the Applicant for serving concise statement to Google Inc, Automattic Inc, and Microsoft Corporation in United States of America via certified Australia Post's registered international mail. 2. Leave be granted to the Applicant to file the proposed concise statements exhibited in the supporting affidavit. 3. As to order sought number 2 that the concise statements after being registered in Court be allowed to be served on all parties according to law. 4. Leave be granted to the Applicant such that Nina Gregurev be excused from litigation as the Google plus based profile, which was alleged to be defamatory of the Applicant has now been discontinued by Google Inc, and without any cost against the Applicant in the interest of justice. 5. Leave be allowed to the Applicant to file 10 page outline of submission within two weeks of the registration of these litigation papers (i.e. This interlocutory application and supporting affidavit. 6. Leave be granted to the Applicant to file and serve such outline of submission to all remaining parties. 7. Leave be granted to the Applicant that the matter be dealt on papers after if any parties may want to oppose this interlocutory application. 8. Leave be granted so that the Court may suspend all affidavits and other matters, and to be substituted by the affidavit supporting this application. 9. Any orders the Court may deem fit to order in this matter. 10 As matters presently stand, unless and until Mr Rana has obtained leave in respect of a concise statement, any other application is premature. This is especially so in respect of any application for leave to serve the proceedings out of the jurisdiction having regard to the reasons for the refusal of his previous application. 11 The document described as 'affidavit with proposed concise statements' attaches separate documents in respect of each of the respondents save for Ms Nina Gregurev in respect of whom Mr Rana says that he is 'discontinuing litigation'. As to respondents other than Dr Duffy, the affidavit appears to have been prepared in support of a proposed application for leave to serve concise statements out of the jurisdiction. As to Dr Duffy, it deposes to requests to Dr Duffy to take down certain blogs which he says he has only learnt about 'from late last year', that is late in 2022 (being well after the proceedings were commenced). 12 The outline of submissions seeks leave to file the concise statements and directions for service in the United States of America. The submissions focus upon reasons why leave to serve out of the jurisdiction should be given. Save for very general statements, the submissions do not seek to explain why the concise statements are an appropriate disclosure of the nature of the case that Mr Rana seeks to advance and why they comply with the rules. 13 The final document is a bundle of documents headed 'Statement as to Extent of Online Publication'. It is not apparent why these materials might bear upon whether leave should be given to file a concise statement. However, from those documents and the other materials it appears the Mr Rana wishes to complain about material published on various internet sites that he alleges to be defamatory of him. 14 As has been explained, unless and until leave is given to Mr Rana to file a concise statement, the proceedings should continue to be stayed. For the following reasons, that leave should be refused. 15 Firstly, it is not appropriate in proceedings against a number of respondents as to their alleged participation in the publication of the same material to seek to proceed by reference to separate concise statements as to each of them. In such cases, the Court requires the claims against each of the respondents to be brought in a single proceeding. This ensures that all factual issues in dispute as to the same events are dealt with in one proceeding. It avoids the risk of competing findings as to the same facts and enables the court to deal with the matter with efficiency. Therefore, leave should not be given to allow Mr Rana to file concise statements that contemplate, in effect, proceeding by way of separate claims against each of the respondents (other than Ms Nina Gregurev). 16 Secondly, the Defamation Practice Note (DEF-1) (Practice Note) provides that the claim should include as an annexure a legible copy or transcript of each impugned publication. This requirement has not been met. Where the alleged defamatory publication is contained within a larger publication then only that part of the relevant publication should form part of the attachment. The Practice Note provides for steps to be taken separately to provide to the respondents disclosure of the full publications. This further step is not contemplated at this stage. As has been explained, Mr Rana must first provide a concise statement. 17 Thirdly, although the proposed concise statements identify the statements in each publication that are complained of by Mr Rana and purport to specify the imputations that are said to arise, they do not in terms allege that the imputations are said to be untrue or published with some form of negligence (noting that there is a general claim as to loss that is said to have been suffered 'as to false and/or negligent accusations' as to at least some of the publications). In those circumstances, it is not clear whether it is alleged that each and every statement complained of is alleged to be false or to have been made without reasonable care to ensure that they were not true. 18 Fourthly, the form of the claims is to set out the statements made and then to allege that the imputations are in the terms published. A claim expressed in that way fails to expose the nature of the defamation, especially given the extent of the words identified. For example, the published words complained of include statements such as 'gets bashed up and is a very scared little rat' and 'mother was an alcoholic', 'has a quite interesting history'. There are other similar instances. It is necessary in a defamation case to identify the imputation complained of rather than simply quote aspects of the publication. Given the extent of the publications complained of, it is necessary for there to be a concise statement of the nature of the imputations said to arise from the publications, specifying which of the publications is said to give rise to each of the imputations. 19 Each of these matters is quite fundamental to what is required. It is not a case where the proposed concise statements might be allowed on the basis that it is appropriate for any objection to them to be raised by the respondents. Further, as I have explained, any application for leave to serve out of the jurisdiction requires Mr Rana to first provide a document which properly discloses the nature of the case in respect of which he seeks leave. 20 Therefore, I refuse leave to file the documents sent to the Adelaide registry by email on 3 February 2023. To be clear, Mr Rana may seek leave in respect of a different concise statement. It should be a single concise statement. It should be supported by short submissions as to why leave should be given. Unless and until leave has been given to file a concise statement in accordance with the orders that have been made any application for leave to serve documents in the proceedings on any of the respondents is premature. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Colvin.