In Kabbabe v Google LLC,1 the Federal Court of Australia recently granted leave to a prospective applicant, Matthew Kabbabe, to serve an originating application seeking preliminary discovery on Google in California, USA.

Mr Kabbabe intends to bring defamation proceedings against an anonymous reviewer who posted an allegedly defamatory review regarding Mr Kabbabe's dental practice on Google. Mr Kabbabe seeks preliminary discovery from Google to reveal the identity of the anonymous reviewer.

As will become apparent in this article, Mr Kabbabe is fortunate that he was able to serve this application on an American entity. He would have had more difficulty if he was seeking to serve such an application in many other countries.

Service outside Australia

Under the Federal Court Rules, to grant leave to serve an originating application outside of Australia, the Court must be satisfied that:

  • the application is accompanied by an affidavit which states the country in which the application will be served, the proposed method of service and, if the Hague Service Convention2 applies, that the proposed method of service is permitted by the Hague Service Convention;
  • the Court has jurisdiction in the proceeding;
  • the proceeding is one or more of the 24 kinds of proceedings set out in the Federal Court Rules in which an originating process can be served outside Australia; and
  • the applicant has a prima facie case for all or any of the relief claimed in the proceeding.

Justice Murphy was satisfied of each of these matters and set out the following consideration.

(a) Service under the Hague Service Convention

In citing Justice Allsop in AIA Australia Ltd v Richards,3 Justice Murphy identified that the Hague Service Convention contemplates that the main channel of transmission is service through the foreign 'Central Authority', although there are also several 'alternative channels' available for service.4

Service through the foreign Central Authority would be considered the 'main channel of transmission' as many other countries party to the Hague Service Convention have objected to Article 10(a) of the Convention which allows the sending of judicial documents by post directly to persons overseas. By objecting to Article 10(a) these countries have essentially prohibited service from abroad by international post. It appears that the United States and United Kingdom are the only two countries in Australia's top 10 trading partners that do not object to international service by post.5

Service through the foreign Central Authority is rather convoluted and time consuming. It requires an application to the relevant Australian court for a 'letter of request for service' which is to be accompanied by the document to be served; a summary of that document; a translation of those documents if required by the foreign Central Authority; and a written undertaking by the solicitor on the record that he or she will be personally liable for all costs incurred by the person in the foreign country in serving the documents.

If the application is in order, the Australian court sends the request and accompanying documents to the foreign Central Authority which is then responsible for effecting service. Many Central Authorities cite three to four months as the time it take to effect service in their country. Once service is effected, the foreign Central Authority completes a certificate of service and sends it back to the Australian court.

If the certificate is adequate and once any costs incurred in serving the documents have been paid, the Australian court will file the certificate of service and send it to the solicitor on the record.

In this case, however, because the United States of America has not objected to Article 10(a) of the Hague Service Convention,6, the Federal Court found that it could grant leave for the documents to be served on Google in America by international registered post. This relieved Mr Kabbabe from undertaking the onerous process of seeking service to be effected in the United States through what Murphy J described as the 'main channel of transmission'.

Murphy J noted that the Federal Court has granted leave to serve documents by international registered post in a number of cases in accordance with Article 10(a). Murphy J further noted that the US Supreme Court in Water Splash Inc v Menon 581 U.S.__ (2017) had 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."7

Therefore, Murphy J was satisfied of the first requirement for the service of an originating application in the Federal Court Rules.

(b) Jurisdiction

Murphy J found that the Federal Court of Australia had jurisdiction to hear an application for preliminary discovering according to rule 7.22 of the Federal Court Rules, which specifically provides for the circumstances in which a prospective applicant may obtain an order for discovery to ascertain the description of a prospective respondent.8

(c) Proceeding within category in the Federal Court Rules

The next requirement required an analysis of rule 10.42 of the Federal Court Rules by Murphy J to identify whether this proceeding falls within the list of 24 proceedings where an originating application can be served outside of Australia. Mr Kabbabe proposed three categories: (1) proceeding based on a cause of action arising in Australia, (2) proceeding based on a tort committed in Australia, and (3) proceeding based on, or seeking the recovery of damage suffered wholly or partly in Australia caused by a tortious act or omission (wherever occurring).9

Murphy J only needed to be satisfied that the proceeding fell within one of these categories however, he considered that this proceeding fell within all three categories.10 The cause of action that Mr Kabbabe would bring was an action for defamation, which is a tort.11 Murphy J considered that this cause of action arose in Australia as the review is taken to be published where the defamatory words are heard, read or downloaded; even if the review was posted outside Australia.12 Further, the proceeding also fell within the third category as the damages for defamation are in relation to loss of reputation suffered wholly or partly in Australia.13

Murphy J's finding is consistent with the Federal's position since 201214 that the tort of defamation, although in the State rather than Federal jurisdiction, is within the Federal Court's jurisdiction where the allegedly defamatory publication is published on the internet and generally available in each State or Territory of Australia. That is because torts committed in the ACT or Northern Territory are within the Federal Court's cross-vested jurisdiction. Notwithstanding that Mr Kabbabe's dental practice was situated in Melbourne, the Court relied upon the publication being available in the ACT to be satisfied that the Court had jurisdiction.

(d) Prima facie case for relief claimed

Murphy J considered that the affidavit of Mr Kabbabe's solicitor contained a prima facie case for preliminary discovery.15 His Honour held that rule 7.22 intends to provide a person with a means of obtaining information about the identity of a party which the person wishes to commence a proceeding against where that information is otherwise lacking.16 To satisfy the Court that there is a prima facie case, rule 7.22 requires that:

  • there may be a right for the prospective applicant to obtain relief against the prospective respondent;
  • the prospective applicant has made reasonable inquiries and taken any other steps reasonably required but is unable to ascertain the description of the prospective respondent; and
  • the respondent to the application for preliminary discovery knows or is likely to know that description, or has or is likely to have control of a document that would help to ascertain that description.17

Murphy J considered the first component of rule 7.22 by examining the allegedly defamatory review itself. Mr Kabbabe's solicitor had deposed that the unknown person acting under a pseudonym CBsm 23 had posted a review on Google that stated that the reviewer had undergone a procedure at Mr Kabbabe's dental clinic.18 The review described the experience as "extremely awkward and uncomfortable", the procedure did not work and was a "complete waste of time", the procedure was not "done properly", seemed like Mr Kabbabe "had never done this before" and finally stated that other patients had "been warned!" and should "STAY AWAY".19

The prima facie case did not have to establish the prospective respondent had defamed the applicant, but that the applicant may have a right to obtain relief.20 Therefore, Murphy J did not comment on the prospects of a defamation action against the prospective respondent but instead considered the elements of defamation generally.21 His Honour held that the review was public in the Australian Capital Territory and in Australia and it is likely that the Federal Court of Australia has jurisdiction.22 The applicant may be able to show that the publication of the review occurred in Australia, as this is where it will be viewed and downloaded, and also that the review contained imputations which would tend to lower Mr Kabbabe's reputation as a dental surgeon in the opinion of members of the community.23 As a result, Murphy J was satisfied that the materials show a cause of action known to law and there was a real prospect of the grant of some remedy.24

In regards to the second requirement of rule 7.22, Murphy J considered that Mr Kabbabe had made reasonable inquiries and taken reasonable steps to ascertain the description of the prospective respondent but was unable to do so.25 These inquiries included contacting Google to seek information about user CBsm 23 for the purpose of bringing a defamation action to which Google declined the request and stated that it did "not have any means to investigate where and when the ID was created".26 Murphy J also held that Mr Kabbabe was not required to make inquiries that would be fruitless and therefore he had done enough to satisfy the requirement.27

Finally, Murphy J was satisfied that Google is likely to have or have had control of a document or thing that would help to ascertain the description of the prospective respondent, including the subscriber information, name of users, the IP address, any phone numbers, location metadata and other Google accounts associated with CBsm 23's account.

As a result, Murphy J ordered that Mr Kabbabe had leave to serve the originating application, affidavits of Mr Kabbabe and his solicitor, and a copy of the order upon Google in the United States of America by sending it by international registered post with an acknowledgment of receipt to be provided to Mr Kabbabe.

It appears that Mr Kabbabe successfully served his originating application and affidavits upon Google as, at a recent administrative listing, Justice Murphy noted that Google neither opposed nor consented to the orders he made which require Google to provide to Mr Kabbabe's solicitor the subscriber registration information of the Google Account associated with the Google Maps review as well as the IP addresses of the logins to the Google account, to the extent that such information or data is in the possession of, and readily available to Google as of the date of the order. The date for the return of subpoena is 3 June 2020.

What does this mean?

Despite this case being supportive of the fight to remove defamatory reviews from online platforms, it is not a case whereby Google may be held responsible for the alleged defamatory review, nor is it a case where Google may be ordered to remove the review. This judgment was to allow service on Google of an originating application. Mr Kabbabe was fortunate that Google is based in one of the few countries that do not oppose service from abroad by international post.

As Google neither consented nor opposed the making of the orders to provide the information sought, Mr Kabbabe should expect to receive the information associated with the Google account behind his bad review from Google.


1 [2020] FCA 126.

2 Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, opened for signature on 15 November 1965, 658 UNTS 163 (entered into force 10 February 1969) (Hague Service Convention).

3 [2017] FCA 84

4 [2020] FCA 126 at [6].

5 The countries in Australia's top 10 trading partners that object to international service by post are China, Japan, Republic of Korea, India, and Germany. New Zealand, Singapore and Thailand are not parties to the Hague Service Convention.

6 Practical Handbook on the Operation of the Hague Service Convention (permanent Bureau of the Hague Conference on Private International Law, 2006), [204].

7 Kabbabe v Google LLC [2020] FCA 126 at [9] citing Water Splash Inc v Menon 581 U.S.__ (2017), 12.

8 Kabbabe v Google LLC [2020] FCA 126 at [10].

9 Ibid [11].

10 Ibid [12].

11 Ibid [12].

12 Ibid, citing Dow Jones & Co v Gutnick (2002) 210 CLR 575.

13 Kabbabe v Google LLC [2020] FCA 126 at [12].

14 Crosby v Kelly (2012) 203 FCR 451.

15 Kabbabe v Google LLC [2020] FCA 126 at [13].

16 Ibid citing Cape Australia Holdings Pty Ltd v Iannello [2009] FCA 709, [63]-[64] (Siopis J).

17 Kabbabe v Google LLC [2020] FCA 126 at [14] citing Hooper v Kirella Pty Ltd (1999) 96 FCR 1 at [31]-[34] ('Hooper v Kirella')

18 Kabbabe v Google LLC [2020] FCA 126 at [15].

19 Ibid.

20 Ibid [16] citing Hooper v Kirella at [33]

21 Kabbabe v Google LLC [2020] FCA 126 at [16].

22 Ibid.

23 Ibid.

24 Ibid, citing Allphones Retail Pty Ltd v Australian Competition and Consumer Commission (2009) 259 ALR 354 at [54] (Foster J).

25 Kabbabe v Google LLC [2020] FCA 126 at [17].

26 Ibid.

27 Ibid, citing Australian Broadcasting Corporation v Seven Network Ltd [2005] 1851 at [13] (Stone J).

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