FEDERAL COURT OF AUSTRALIA
Kabbabe v Google LLC [2020] FCA 126
File number:

VID 1331 of 2019

Judge:

MURPHY J

Date of judgment:

12 February 2020

Catchwords:

PRACTICE AND PROCEDURE – application to serve
originating application seeking preliminary discovery
outside Australia pursuant to Federal Court Rules 2011
(Cth) rr 10.41 to 10.43 – whether the proceeding is of a
kind mentioned in r 10.42 – whether the prospective
applicant has a prima facie case for all or any of the relief
claimed – service in accordance with the Hague Service
Convention – whether service by post is permissible – leave
granted to serve originating application outside Australia

Legislation:

Federal Court Rules 2011 (Cth) rr 7.22, 10.41, 10.42, 10.43

Cases cited:

Ahmed v Al-Hussain Pty Ltd t/as The Cheesecake Shop
[2018] FCA 1741
AIA Australia Ltd v Richards [2017] FCA 84
Allphones Retail Pty Ltd v Australian Competition and
Consumer Commission [2009] FCA 980; (2009) 259 ALR
354
Australian Broadcasting Corporation v Seven Network Ltd
[2005] FCA 1851
Bell v Steele [2011] FCA 1390; (2011) 198 FCR 291
Deputy Commissioner of Taxation v Cheung Kong
Infrastructure Holdings Ltd [2013] FCA 707; (2013) 96
ATR 44
Deputy Commissioner of Taxation v Power Assets Holdings
Ltd (previously known as Hongkong Electric Holdings Ltd)
[2013] FCA 708; (2013) 96 ATR 51
Dow Jones & Co v Gutnick [2002] HCA 56; (2002) 210
CLR 575
Hooper v Kirella Pty Ltd [1999] FCA 1584; (1999) 96 FCR
1
Water Splash Inc v Menon 581 U.S.___(2017)
Practical Handbook on the Operation of the Hague Service
Convention (Permanent Bureau of the Hague Conference
on Private International Law, 2006))

 Date of hearing:

27 March 2020

Registry:

Victoria

Division:

General Division

National Practice Area:

Other Federal Jurisdiction

Category:

Catchwords

Number of paragraphs:

19

Solicitor for the Prospective
Applicant:

Mr M Stanarevic of Matrix Legal

 ORDERS
VID 1331 of 2019
BETWEEN:

MATTHEW ROY KABBABE
Prospective Applicant

AND:

GOOGLE LLC
Respondent

JUDGE:

MURPHY J

DATE OF ORDER:

12 FEBRUARY 2020

THE COURT ORDERS THAT:
1.

Pursuant to rr 10.42 and 10.43 of the Federal Court Rules 2011 (Cth) the Prospective
Applicant has leave to serve:
(a)

the originating application filed 6 December 2019;

(b)

the affidavit of Mark Stanarevic affirmed 6 December 2019;

(c)

the affidavit of Dr Matthew Kabbabe affirmed 10 February 2020; and

(d)

a copy of this order;

upon the Respondent in the United States of America, in accordance with Article 10(a)
of the “Convention on the Service Abroad of Judicial and Extrajudicial Documents in
Civil or Commercial Matters” done at The Hague on 15 November 1965, by sending it
by international registered post, with an acknowledgement of receipt to be provided to
the Prospective Applicant, to the Respondent’s address at:
Google LLC
C/O Custodian of Records
1600 Amphitheatre Parkway
Mountain View, California 94043
United States of America
2.

The matter be listed for a case management hearing on 25 March 2020 at 9.30 am.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

 REASONS FOR JUDGMENT
MURPHY J:
1

The prospective applicant, Dr Matthew Kabbabe, is a dental surgeon based in Victoria who
relies on the internet to attract customers across Australia. He seeks leave to serve an
originating application upon the respondent Google LLC (Google), which is based in the
United States of America, pursuant to Part 10 of the Federal Court Rules 2011 (Cth) (the
Rules). The originating application is brought under r 7.22 of the Rules and seeks orders to
require Google to provide preliminary discovery of all documents or things in its possession or
control relating to the description of an unknown person who posted an allegedly defamatory
review in relation to Dr Kabbabe’s dental practice on Google, using a pseudonym. Dr Kabbabe
seeks preliminary discovery to identify the unknown prospective respondent so that he may
bring a defamation proceeding against him or her.

2

For the reasons I explain, I consider it appropriate to accede to the application and to grant
leave to Dr Kabbabe to serve the proceeding on Google in the USA in accordance with Article
10(a) of the “Convention on the Service Abroad of Judicial and Extrajudicial Documents in
Civil or Commercial Matters” done at The Hague on 15 November 1965 (the Hague Service
Convention) by sending it by international registered post, with an acknowledgement of
receipt to be provided to Dr Kabbabe’s solicitor.
CONSIDERATION

3

Rule 10.43(2) provides that a party may apply to the Court for leave to serve an originating
application on a person in a foreign country in accordance with the Hague Service Convention.
Before leave may be granted to serve an originating application on a respondent outside
Australia the Court must be satisfied of four matters set out in r 10.43(3) and (4) of the Rules;
(a)

the application must be accompanied by an affidavit which states the name of the
foreign country where the person is to be served, the proposed method of service and,
if the Hague Service Convention applies, that the proposed method of service is
permitted by the Hague Service Convention (r 10.43(3));

(b)

the Court has jurisdiction in the proceeding (r 10.43(4)(a));

(c)

the proceeding is of a kind mentioned in r 10.42 (r 10.43(4)(b)); and

 -2(d)

the applicant has a prima facie case for all or any of the relief claimed in the proceeding
(r 10.43(4)(c)).

4

I am satisfied of each of those matters.

5

First, the prospective applicant relies on the affidavit of his solicitor, Mr Mark Stanarevic of
Matrix Legal, affirmed 6 December 2019, which establishes that the USA is a contracting party
to the Hague Service Convention.

6

As Allsop J (as his Honour then was) noted in AIA Australia Ltd v Richards [2017] FCA 84
(AIA Australia) at [7] the Hague Service Convention contemplates several mechanisms (or
“channels” as they are described in the Practical Handbook on the Operation of the Hague
Service Convention (Permanent Bureau of the Hague Conference on Private International Law,
2006)) (Practical Handbook) for service. His Honour said:
The “main channel of transmission” is service under Article 5 of the Hague Service
Convention through the “Central Authority” of the receiving State. The Convention
also permits service through several “alternative channels”: Practical Handbook at
[183].

7

The prospective applicant proposes service by one of the alternative channels, namely service
by post pursuant to Art. 10(a). That article relevantly provides:
Provided the State of destination does not object, the present Convention shall not
interfere with –
a)

the freedom to send judicial documents, by postal channels, directly to persons
abroad,

…
8

As Allsop J also noted in AIA Australia at [13], the Practical Handbook states at [196] that
“transmission … through postal channels includes service of process upon the addressee”. This
Court has granted leave to serve documents by international registered post on a number of
previous occasions and considered this to be compliant with Art. 10(a): see Deputy
Commissioner of Taxation v Power Assets Holdings Ltd (previously known as Hongkong
Electric Holdings Ltd) [2013] FCA 708; (2013) 96 ATR 51 at [15]-[22] (Gordon J); Deputy
Commissioner of Taxation v Cheung Kong Infrastructure Holdings Ltd [2013] FCA 707;
(2013) 96 ATR 44 at [15]-[22] (Gordon J); Bell v Steele [2011] FCA 1390; (2011) 198 FCR
291 at [13] and [16] (Collier J); and Ahmed v Al-Hussain Pty Ltd t/as The Cheesecake Shop
[2018] FCA 1741 at [17] (Rares J).

 -39

In Water Splash Inc v Menon 581 U.S.___(2017) at 12 the US Supreme Court held that the
Hague Service Convention does not prohibit service of process in the USA by direct post to
the respondent, and there is nothing in the materials before the Court to indicate that the USA
objects to direct postal service of legal process under the Convention. The Practical Handbook
states at [204] that a comprehensive list of objecting States is available on the website of the
Permanent Bureau of the Hague Conference on Private International Law. Having reviewed
that website, it states that the USA does not object to service under Art. 10(a). I proceed on
that basis.

10

Second, it is plain that the Court has jurisdiction to hear an application for preliminary
discovery pursuant to r 7.22.

11

Third, I am satisfied that the proceeding falls within one or more of the categories or
descriptions set out in r 10.42, which specifically includes applications under Part 7 of the
Rules. Dr Kabbabe relies on three items in the table to the rule, namely:
(a)

Item 1 - Proceeding based on a cause of action arising in Australia;

(b)

Item 4 - Proceeding based on a tort committed in Australia; and

(c)

Item 5 - Proceeding based on, or seeking the recovery of damage suffered wholly or
partly in Australia caused by a tortious act or omission (wherever occurring).

Dr Kabbabe is not however required to satisfy each of these items. It is sufficient if the
proceeding falls them one or more of the categories or descriptions and in my view it does.
12

I am satisfied that the application under r 7.22 is a proceeding based on: (a) a cause of action
arising in Australia; (b) a tort committed in Australia; and/or (c) the recovery of damage
suffered wholly or partly in Australia caused by a tortious act or omission wherever it occurred.
The cause of action for defamation arises in Australia because publication of the allegedly
defamatory review is taken to have occurred where the defamatory words were heard, read or
downloaded: Dow Jones & Co v Gutnick [2002] HCA 56; (2002) 210 CLR 575. That is so
even if the review was posted on Google from a place outside Australia, which is unlikely in
the present case because it was posted by a person who claimed to have been treated at the
dental clinic. Further, the damages for defamation proposed to be sought in the proceeding are
for loss of reputation suffered wholly or partly in Australia.

13

Fourth, I am satisfied from the affidavit of Mr Stanarevic that Dr Kabbabe has a prima facie
case for preliminary discovery. Rule 7.22(1) provides that a prospective applicant may apply

 -4to the Court for an order to require a person to discover to the prospective applicant any
document or thing in the person’s control relating to the description of the prospective
respondent. The rule is intended to provide a person with a means of obtaining information as
to the identity of a party against whom the person wishes to commence a proceeding, in
circumstances in which the person is unable to do so because of a lack of sufficient information
about that party’s description to enable an originating application to be filed: Cape Australia
Holdings Pty Ltd v Iannello [2009] FCA 709 (Siopis J) at [63]-[64].
14

Rule 7.22(1) requires that to obtain an order the prospective applicant must satisfy the Court
that:
(a)

there may be a right for the prospective applicant to obtain relief against the prospective
respondent; and

(b)

the prospective applicant is unable, notwithstanding having made reasonable inquiries
and taken any other steps reasonably required in the circumstances, to ascertain the
description of the prospective respondent; and

(c)

another person, the respondent to the application for preliminary discover, knows or is
likely to know that description, or has or is likely to have, or has had was likely to have
had, control of a document that would help ascertain that description;

: see Hooper v Kirella Pty Ltd [1999] FCA 1584; (1999) 96 FCR 1 (Hooper v Kirella) at [31)[34].
15

Having regard to the affidavit of Mr Stanarevic I am satisfied that the prospective applicant
may have a right to obtain relief for defamation against the prospective respondent. He deposes
that an unknown person, acting under the pseudonym CBsm 23, posted a review on Google
concerning a procedure he had undergone at Dr Kabbabe’s dental clinic, including that the
dentist made the whole experience “extremely awkward and uncomfortable”, the procedure did
not work and was a “complete waste of time”; the procedure was not “done properly” and it
seemed like the dentist “had never done this before”, such that other patients had “been
warned!” and should “STAY AWAY”.

16

A prospective applicant is not required to demonstrate the existence of a prima facie case of
defamation against the prospective respondent; it is enough if the prospective applicant can
show that he or she may have a right to obtain that relief: Hooper v Kirella at [33]. It is
unnecessary, indeed undesirable, that I say much about the prospects of the defamation action

 -5which Dr Kabbabe proposes to bring. It suffices to note that because the review was on Google
it was visible to the public in the Australian Capital Territory along with the rest of Australia,
and it is likely this Court has jurisdiction. Dr Kabbabe may be able to show that publication of
the review occurred in Australia as that is where it will have been viewed or downloaded by
members of the public, and that it conveyed imputations which would have tended to lower his
reputation as a dental surgeon in the opinion of right-thinking members of the community. The
materials show a cause of action known to the law and a real prospect of the grant of some
remedy: Allphones Retail Pty Ltd v Australian Competition and Consumer Commission [2009]
FCA 980; (2009) 259 ALR 354 (Foster J) at [54].
17

Having regard to the affidavit of Dr Kabbabe I am satisfied that he has made reasonable
inquiries and taken other steps reasonably required in the circumstances, but has been unable
to ascertain the description of the prospective respondent. His affidavit shows that he contacted
Google in November 2019 and requested that it take down the review. Google declined to do
so. On 5 February 2020 Dr Kabbabe sent an email to Google seeking provision of all
identifying information about user CBsm 23 for the purposes of bringing a defamation action
against that user. On the same day Google responded and said that it would not remove the
review and stated that “[w]e do not have any means to investigate where and when the ID was
created”. Dr Kabbabe is not required to make inquiries that will be fruitless and in my view he
has done enough: Australian Broadcasting Corporation v Seven Network Ltd [2005] FCA 1851
(Stone J) at [13].

18

Having regard to the affidavits of Mr Stanarevic and Dr Kabbabe, and notwithstanding
Google’s response, I consider that Google is likely to have or have had control of a document
or thing that would help ascertain that description of the prospective respondent CBsm 23,
which may include:
(a)

the subscriber information for CBsm 23’s account;

(b)

the name of the users of that account;

(c)

the IP address or addresses and associated information relating to that account;

(d)

any phone numbers associated with that account;

(e)

any location metadata associated with that account; and

(f)

any other Google accounts including their full name and email address and identifying
details which may have originated from the same IP address during a similar time
period to when CBsm 23’s account was accessed to post the offending Google review.

 -619

I have made orders accordingly.

I certify that the preceding nineteen
(19) numbered paragraphs are a true
copy of the Reasons for Judgment
herein of the Honourable Justice
Murphy.
Associate:
Dated:

12 February 2020