FEDERAL COURT OF AUSTRALIA Young v Facebook Australia Pty Ltd [2015] FCA 1440 Citation: Young v Facebook Australia Pty Ltd [2015] FCA 1440 Parties: G YOUNG v FACEBOOK AUSTRALIA PTY LTD File number: ACD 108 of 2015 Judge: GRIFFITHS J Date of judgment: 17 December 2015 Catchwords: PRACTICE AND PROCEDURE – respondent's interlocutory application seeking summary judgment or that the proceeding be struck out – applicant's interlocutory application seeking leave to serve on two companies outside the jurisdiction a proposed amended statement of claim – where the respondent claims it has no responsibility for the conduct the subject of the applicant's claims – where the applicant proposes to raise claims of misleading or deceptive conduct and/or unconscionability, and breach of the implied Constitutional right of political communication Legislation: Australian Consumer Law (Sch 2 to the Competition and Consumer Act 2010 (Cth)) ss 18, 20 Evidence Act 1995 (Cth) s 75 Federal Court of Australia Act 1976 (Cth) ss 31A, 31A(2) Federal Court Rules 2011 (Cth) rr 16.21(1)(e), 26.01(1)(a) Judiciary Act 1903 (Cth) s 78B Cases cited: A v Google New Zealand [2012] NZHC 235 ACCC v CG Berbatis Holdings Pty Ltd [2003] HCA 18; (2003) 214 CLR 51 C v Commonwealth of Australia [2015] FCAFC 113 Cavar v Green Gate Pty Ltd [2015] FCA 1179 Christou v Stantons International Pty Ltd [2010] FCA 1150 Coles Supermarkets Australia Pty Ltd v FKP Limited [2008] FCA 1915 Commercial Bank of Australia Ltd v Amadio [1983] HCA 14; (1983) 151 CLR 447 Dandaven v Harbeth Holdings Pty Ltd [2008] FCA 955 Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62 General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 James v Commonwealth [1939] HCA 9; (1939) 62 CLR 339 Kruger v Commonwealth [1997] HCA 27; (1997) 190 CLR 1 Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520 Mander Forklift Pty Ltd v Dairy Famers Co-Operative (1990) ATPR 46-061 Nicolic v MGICA Ltd [1999] FCA 849 Rana v Google Australia Pty Ltd [2013] FCA 60 Richardson v Facebook [2015] EWHC 49 Sagacious Legal Pty Ltd v Westfarmers General Insurance Ltd (No 3) [2010] FCA 428; (2010) 184 FCR 516 Spencer v Commonwealth [2010] HCA 28; (2010) 241 CLR 118 Tajjour v New South Wales [2014] HCA 35 Tamiz v Google Inc and Google UK Ltd [2012] EWHC 449 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165 Unions NSW v State of New South Wales [2013] HCA 58; (2013) 252 CLR 530 Warner v Hung, in the matter of Bellpac Pty Ltd (Receivers and Managers Appointed) (In Liquidation) [2013] FCA 120 Date of hearing: 14 December 2015 Place: Canberra Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 83 Counsel for the Applicant: The applicant appeared in person Counsel for the Respondent: Mr M J Lewis Solicitor for the Respondent: Gadens Lawyers IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY GENERAL DIVISION ACD 108 of 2015 BETWEEN: G YOUNG Applicant AND: FACEBOOK AUSTRALIA PTY LTD Respondent JUDGE: GRIFFITHS J DATE OF ORDER: 17 DECEMBER 2015 WHERE MADE: SYDNEY VIA VIDEOLINK TO CANBERRA THE COURT ORDERS THAT: 1. The originating application filed on 8 October 2015 be dismissed under s 31A(2) of the Federal Court of Australia Act 1976 (Cth) and rule 26.01(1)(a) of the Federal Court Rules 2011 (Cth). 2. The interlocutory application filed on 20 November 2015 be dismissed. 3. The applicant pay the respondent's costs of the interlocutory applications filed on 6 and 20 November 2015 respectively, as agreed or assessed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY GENERAL DIVISION ACD 108 of 2015 BETWEEN: G YOUNG Applicant AND: FACEBOOK AUSTRALIA PTY LTD Respondent JUDGE: GRIFFITHS J DATE: 17 December 2015 PLACE: SYDNEY VIA VIDEOLINK TO CANBERRA REASONS FOR JUDGMENT 1 There are two interlocutory applications to be resolved. The first, which was filed by the respondent (Facebook Australia Pty Ltd (Facebook Australia)), seeks summary judgment or, alternatively, that the proceeding be struck out. The basis for those claims is that there is no reasonable prospect that the proceeding would be successfully prosecuted. Facebook Australia relies respectively on both s 31A(2) of the Federal Court of Australia Act 1976 (Cth) (FCA Act) and r 16.21(1)(e) of the Federal Court Rules 2011 (Cth) (FCRs). 2 The second interlocutory application was filed by the applicant (Mr Young) on 20 November 2015. Mr Young seeks leave to serve outside the jurisdiction a proposed amended statement of claim. The proposed second and third respondents are Facebook Ireland Limited (Facebook Ireland) and Facebook, Inc. (Facebook Inc). The former company is a company organised under the laws of the Republic of Ireland and Dublin is its principal place of business. The latter company is a company registered in the State of Delaware in the USA and has its principal place of business in California. 3 On 30 November 2015, Mr Young lodged with the Registry a proposed further amended statement of claim which bore that date. Mr Young made clear that this proposed pleading replaced an earlier proposed amended statement of claim dated 19 November 2015. Mr Young requires leave under r 8.21 of the FCRs to rely on the proposed amended statement of claim. 4 In circumstances where it was evident that this was the pleading which Mr Young wished to serve outside the jurisdiction, it made practical sense for both interlocutory applications to be determined by reference to that version of the pleading and not the original statement of claim. 5 Mr Young represented himself at the hearing. He also drafted the materials upon which he relies, including his affidavits and the written outline of submissions filed in advance of the hearing. 6 Mr Lewis of Counsel appeared for Facebook Australia. He emphasised that he had no instructions to represent either Facebook Ireland or Facebook Inc. 7 It is convenient to now provide a broad outline of the background to the parties' dispute. Background facts summarised 8 Facebook is a free, online social networking service. It allows users to connect and share information with other people. It is accessed by approximately 1.5 billion users worldwide through the website www.facebook.com and applications for mobile devices and tablets (the Facebook Services). 9 When Facebook users who reside or have their principal place of business outside of the United States of America or Canada create an account to use the Facebook Services, the usual practice is that the user will enter into a standard form Statement of Rights and Responsibilities (SRR), which constitutes and defines the conditions for use of the Facebook Services. 10 Neither party filed any evidence which explained the practical or technical aspects of Facebook. Mr Lewis drew the Court's attention to the recent decision of Dixon J in Von Marburg v Aldred [2015] VSC 467 which contains at [9]-[11] a helpful description of the operation of a Facebook page. Facebook permits individuals or organisations to operate a platform, which is known as a Facebook page. Facebook calls part of its profile spaces that are passive mediums for publication by third parties, "walls". These walls may feature multi-layered privacy settings which govern a user's capacity to access and post entries on the "wall". The administrator of the "wall" has greater control over its content than other users. Dixon J described the role and function of an administrator in [11]: Facebook allows an administrator of the page to adjust its settings to permit communications by way of third party comment on or in response to the content it creates and posts. The platform can operate to permit anyone, who has navigated to that page and read what is displayed, to place material (such as a statement, photograph, video, hyperlink etc.) on the page that is a communication to any internet user who subsequently navigates to the page or refreshes the existing view of the internet platform in their web browser and thus downloads the communication from the internet to their own computer where it appears in the web browser software. Administrators can modify the setting of the page with the result that that such communications by third parties may occur without the sponsor being aware, when the communication is first posted, of the content of the communication, and may use software to automatically "filter" communications posted to the page according to some pre-determined rules. 11 It is convenient to set out at this point the several relevant parts of the SRR, noting that it was not disputed that Mr Young had signed up to the SRR when he became a Facebook user. The SRR commences with the following statement: This Statement of Rights and Responsibilities ("Statement", "Terms" or "SRR") derives from the Facebook Principles, and is our terms of service that governs our relationship with users and others who interact with Facebook, as well as Facebook brands, products and services, which we will call the "Facebook Services" or "Services". By using or accessing the Facebook Services, you agree to this Statement as updated from time to time in accordance with Section 13 below. Additionally, you will find resources at the end of this document that help you understand how Facebook works. 12 Clause 1 of the SRR deals with privacy. It states: Your privacy is very important to us. We designed our Data Policy to make important disclosures about how you can use Facebook to share with others and how we collect and can use your content and information. We encourage you to read the Data Policy and to use it to help you make informed decisions. 13 Clause 2 deals with the subject of sharing content and information. It provides: You own all of the content and information you post on Facebook, and you can control how it is shared thorough your privacy and application settings. In addition: 1. For content that is covered by intellectual property rights, like photos and videos (IP content), you specifically give us the following permission, subject to your privacy and application settings: you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook (IP License). This IP License ends when you delete your IP content or your account unless your content has been shared with others, and they have not deleted it. 2. When you delete IP content, it is deleted in a manner similar to emptying the recycle bin on a computer. However, you understand that removed content may persist in backup copies for a reasonable period of time (but will not be available to others). 3. When you use an application, the application may ask for your permission to access your content and information as well as content and information that others have shared with you. We require applications to respect your privacy, and your agreement with that application will control how the application can use, store and transfer that content and information. (To learn more about Platform, including how you can control what information other people may share with applications, read our Data Policy and Platform Page). … 14 Clause 3 deals with "safety". Sub-clause 11 thereof states: You will not facilitate or encourage any violations of this Statement or our policy. 15 Clause 4 deals with registration and account security. Relevantly it states: Facebook users provide their real names and information, and we need your help to keep it that way. Here are some commitments you make to us relating to registering and maintaining the security of your account: 1. You will not provide any false personal information on Facebook, or create an account of anyone other than yourself without permission. … 16 Clauses 9 and 10 of the SRR deal with advertising. They state: 9. About Advertisements and Other Commercial Content Served or Enhanced by Facebook Our goal is to deliver advertising and other commercial or sponsored content that is valuable to our users and advertisers. In order to help us do that, you agree to the following: 1. You give us permission to use your name, profile picture, content, and information in connection with commercial sponsored, or related content (such as a brand you like) served or enhanced by us. The means, for example, that you permit a business or other entity to pay us to display your name and/or profile picture with your content or information without any compensation to you. If you have selected a specific audience for your content or information, we will respect your choice when we use it. 2. We do not give your content or information to advertisers without your consent. 3. You understand that we may not always identify paid services and communications as such. 10. Special Provisions Applicable to Advertisers If you use our self-service advertising creation interfaces for creation, submission and/or delivery of any advertising or other commercial or sponsored activity or content (collectively, the "Self-Serve Ad Interfaces"), you agree to our Self-Serve Ad Terms. In addition, your advertising or other commercial or sponsored activity or content placed on Facebook or our publisher network will comply with our Advertising Policies. 17 Clause 14 is an important provision. It deals with termination. It states: 14. Termination If you violate the letter or spirit of this Statement, or otherwise create risk or possible legal exposure for us, we can stop providing all or part of Facebook to you. We will notify you by email or at the next time you attempt to access your account. You may also delete your account or disable your application at any time. In all such cases, this Statement shall terminate, but the following provisions will still apply: 2.2, 2.4, 3-5, 9.3 and 14-18. 18 Clause 15 deals with disputes. Sub-clause 15.1 states: 15. Disputes 1. You will resolve any claim, cause of action or dispute (claim) you have with us arising out of or relating to this Statement or Facebook exclusively in the U.S. District Court for the Northern District of California or a state court located in San Mateo County, and you agree to submit to the personal jurisdiction of such courts for the purpose of litigating all such claims. The laws of the State of California will govern this Statement, as well as any claim that might arise between you and us, without regard to conflict of law provisions. … 19 Various definitions are provided in cl 17 of the SRR. They include the definitions in cll 17.1 and 17.5 respectively: 17. Definitions 1. By "Facebook" or "Facebook Services" we mean the features and services we make available, including through (a) our website at www.facebook.com and any other Facebook branded or co-branded websites (including sub-domains, international versions, widgets, and mobile versions); (b) our Platform, (c) social plugins such as the Like button, the Share button and other similar offerings, and (d) other medial, brands, products, services, software (such as a toolbar), devices, or networks now existing or later developed. Facebook reserves the right to designate, in its sole discretion, that certain of our brands, products, or services are governed by separate terms and not this SRR. … 5. By "data" or "user data" or "user's data" we mean any data, including a user's content or information that you or third parties can retrieve from Facebook or provide to Facebook through Platform. … 20 Clause 18.1 is another important provision in the SRR. It states: 18.1 If you are a resident of or have your principle place of business in the US or Canada, the Statement is an agreement between you and Facebook, Inc. Otherwise, the Statement is an agreement between you and Facebook Ireland Limited. References to "us", "we" and "our" mean either Facebook Inc, or Facebook Ireland Limited, as appropriate. … 21 The concluding clauses in the SRR relevantly state (emphasis in original): By using or accessing Facebook Services, you agree that we can collect and use such content and information in accordance with the Data Policy as amended from time to time. You may also want to review the following documents, which provide additional information about your use of Facebook: … • Platform Page: This page helps you better understand what happens when you add a third-party application or use Facebook Connect, including how they may access and use your data. • Facebook Platform Polices: These guidelines outline the policies that apply to applications, including Connect sites. • Advertising Policies: These guidelines outline the policies that apply to advertisements placed on Facebook. … 22 The various documents which are referred to in that concluding provision include "Advertising Policies" which are described as "guidelines [which] outline the policies that apply to advertisements placed on Facebook". 23 In mid-2015, Mr Young created a political and public group discussion page on Facebook called "Common Cause". He said that he used as his Facebook name "Gee Young". His formal name is Gary Young. Mr Young claims that there are approximately 2000 users of the Common Cause Facebook page and that the group's membership was growing at a rate of approximately 100 people per day. 24 Mr Young says that he is aggrieved because, on 30 September 2015, he was removed as administrator of the Common Cause Facebook page. He was then asked to establish and verify his identity in various ways. It is not disputed that Mr Young complied with these requirements and was eventually reinstated as the administrator of the Common Cause Facebook page although there is an issue whether this occurred on 2 or 14 October 2015. Nothing of significance turns on that issue. However, Mr Young pleads that he is concerned that he might again be abruptly be removed as administrator. This provides part of the basis for his claim for injunctive relief. The proceedings summarised 25 Mr Young commenced the proceeding on 8 October 2015. He filed an originating application which named "Facebook Australia" as the sole respondent. He also filed a statement of claim containing 40 paragraphs, as well as an affidavit in support. Mr Young sought an interlocutory order that he be reinstated as administrator (it later became unnecessary for him to press that claim because he was reinstated). Mr Young claimed that the respondent had "abruptly maliciously and deliberately and or negligently" removed him as administrator. He claimed that the respondent's action interfered with his "implied right to free political speech". He also claimed that the respondent's conduct in requiring him to establish his true identity was misleading or deceptive and in contravention of s 18 of the Australian Consumer Law (ACL, which is Sch 2 to the Competition and Consumer Act 2010 (Cth)). The drafting of the original statement of claim is unorthodox and left much to be desired. This may reflect the fact that Mr Young is not legally qualified. He represented himself. The essence of his grievance appears to be set out in [39] of the original pleading, which was in the following unaltered terms: The Respondents actions regarding identifying persons who are on facebook, as they sign up, the regular use of false names on Facebook, the arbitrary and capricious and malicious methodology in first removing applicant from his role in COMMON CAUSE, the denial of Applicants right to use his Free Political Speech and the plan then outlined to allow Applicant to be reinstated as Administrator of COMMON CAUSE by the use of an impossible hard knowledge test were all designed to be deceptive, give false hope or false expectations such that the act of Respondents are clearly misleading and or deceptive actions deliberately designed and arbitrarily applied in such a manner as to be acts and omissions clearly falling within the meaning of misleading and/or deceptive conduct causing damages [section 18 of the Australian (ACL), schedule 2 of the Ccompetition and Consumer Act 2010. 26 Mr Young sought damages, including exemplary damages in the amount of $1m. He also sought aggravated damages in the amount of $50,000 for what he described as the respondent's "unconscionable conduct". 27 On 21 October 2015, Mr Young was advised by the respondent's solicitors that "Facebook Australia" was not a legal entity and that if he intended to sue Facebook Australia Pty Ltd it was also the wrong entity because that company did not control or operate the Facebook Services. He was told that the company's activities were limited and involved public relations, consultancy and communications. He was also told that Facebook Australia does not act as an agent of either of the other two companies. 28 On 26 October 2015, Jagot J ordered that Facebook Australia Pty Ltd be substituted for "Facebook Australia" as the named respondent. At a directions hearing held on 23 and 25 November directions were made for the filing of evidence and outlines of written submissions with a view to the interlocutory applications being heard in Canberra on 14 December 2015. 29 Mr Young filed two affidavits dated 19 and 30 November 2015 respectively. Large parts of the affidavits were inadmissible. They were read on the basis that they would be regarded as submissions only. Various screenshots and newspaper articles were tendered by Mr Young and became Exhibit A. Mr Young said that these materials supported his allegations of misleading or deceptive conduct in that he was led to believe by them inter alia that when he signed up with Facebook he was signing up with Facebook Australia and not some other entity. 30 Facebook Australia relied on three affidavits sworn by its instructing solicitor, Mr Owens. The affidavits are dated 5 and 23 November 2015 and 7 December 2015. Much of Mr Owens' evidence was hearsay, but was admitted into evidence in these interlocutory applications in accordance with s 75 of the Evidence Act 1995 (Cth). 31 Mr Owens' first affidavit contained information concerning Facebook Australia. It is a company registered in Victoria. It is a distinct legal entity from both Facebook Ireland or Facebook Inc. Mr Owens' evidence was to the effect that Facebook Australia does not own, operate or control the Facebook Service. Mr Young was advised by Mr Owens in the letter dated 21 October 2015 of these matters and also that any further proceedings should be directed to the proper entity at its correct address. Mr Owens provided contact information concerning Facebook Ireland and Facebook Inc. 32 Mr Owens gave evidence that Facebook Australia engaged in only limited operations in Australia, which involved "public relations, consultancy and communications". He deposed that Facebook Australia does not act as an agent of either Facebook Ireland or Facebook Inc. He deposed that Facebook Australia "has no authority to enter into any contract or deed" on behalf of either of those companies, nor does it have access to records of activity of Facebook users, or any messages or user data of Facebook users. He also said that if Facebook Australia was ordered to take any action in relation to the Facebook page "Common Cause", it would not be able to comply with such an order because it was not in any legal or technical position to do so in circumstances where it did not "own, operate, control or host the Facebook Service". 33 In his second affidavit, Mr Owens annexed a copy of Facebook Data Policy, which is, as noted above, cross-referred to in the SRR. The Data Policy states that Facebook Ireland is the data controller for information posted by Facebook users who live outside the USA or Canada. 34 In his third affidavit, Mr Owens drew attention to the fact that many of Mr Young's claims were directed to material concerning the Facebook HQ page which Mr Young claimed to be misleading or deceptive. Mr Owens described how he accessed the Facebook HQ page on 7 December 2015. He annexed to his affidavit a screen capture of parts of that page. He said that this page is one of Facebook Services' location services referred to as "Facebook Places", which operate as a directory of global locations. He explained that this allowed Facebook users to search, find and interact with various places around the world. Furthermore, Facebook users can add a place to Facebook Places by creating a new Facebook Place page for a company or organisation. Mr Owens stated that Facebook Australia did not create the Facebook HQ page, nor did it maintain it. He swore that Facebook Australia did not operate, own, control or host the Facebook Service, including the Facebook Places function or the Facebook HQ page. 35 As noted above, both Mr Young and Facebook Australia filed outlines of written submissions in support of their respective interlocutory applications. 36 It is convenient now to summarise the primary legal principles relevant to both the interlocutory applications. Summary judgment and strike out applications 37 Section 31A of the FCA Act provides: 31A Summary judgment (1) The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if: (a) the first party is prosecuting the proceeding or that part of the proceeding; and (b) the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding. (2) The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if: (a) the first party is defending the proceeding or that part of the proceeding; and (b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding. (3) For the purposes of this section, a defence or a proceeding or part of a proceeding need not be: (a) hopeless; or (b) bound to fail; for it to have no reasonable prospect of success. (4) This section does not limit any powers that the Court has apart from this section. (5) This section does not apply to criminal proceedings. 38 Rule 26.01(1)(a) and (c) of the FCRs states: Summary judgment (1) A party may apply to the Court for an order that judgment be given against another party because: (a) the applicant has no reasonable prospect of successfully prosecuting the proceeding or part of the proceeding; or … (c) no reasonable cause of action is disclosed; or … 39 Rule 16.21(1)(e) of the FCRs states: Application to strike out pleadings (1) A party may apply to the Court for an order that all or part of a pleading be struck out on the ground that the pleading: … (e) fails to disclose a reasonable cause of action or defence or other case appropriate to the nature of the pleading; or … 40 The principles relating to these powers are well settled. In the case of summary judgments, the principles are set out in cases such as Spencer v Commonwealth [2010] HCA 28; (2010) 241 CLR 118 (Spencer); Dandaven v Harbeth Holdings Pty Ltd [2008] FCA 955 (Dandaven); Rana v Google Australia Pty Ltd [2013] FCA 60 (Rana); Cavar v Green Gate Pty Ltd [2015] FCA 1179 (Cavar) and C v Commonwealth of Australia [2015] FCAFC 113. 41 In Spencer, the High Court emphasised the importance of not paraphrasing the critical phrase in s 31A(2), namely "no reasonable prospect". At [58]-[60], Hayne, Crennan, Kiefel and Bell JJ said: 58 How then should the expression "no reasonable prospect" be understood? No paraphrase of the expression can be adopted as a sufficient explanation of its operation, let alone definition of its content. Nor can the expression usefully be understood by the creation of some antinomy intended to capture most or all of the cases in which it cannot be said that there is "no reasonable prospect". The judicial creation of a lexicon of words or phrases intended to capture the operation of a particular statutory phrase like "no reasonable prospect" is to be avoided. Consideration of the difficulties that bedevilled the proviso to common form criminal appeal statutes, as a result of judicial glossing of the relevant statutory expression, provides the clearest example of the dangers that attend any such attempt. 59 In many cases where a plaintiff has no reasonable prospect of prosecuting a proceeding, the proceeding could be described (with or without the addition of intensifying epithets like "clearly", "manifestly" or "obviously") as "frivolous", "untenable", "groundless" or "faulty". But none of those expressions (alone or in combination) should be understood as providing a sufficient chart of the metes and bounds of the power given by s 31A. Nor can the content of the word "reasonable", in the phrase "no reasonable prospect", be sufficiently, let alone completely, illuminated by drawing some contrast with what would be a "frivolous", "untenable", "groundless" or "faulty" claim. 60 Rather, full weight must be given to the expression as a whole. The Federal Court may exercise power under s 31A if, and only if, satisfied that there is "no reasonable prospect" of success. Of course, it may readily be accepted that the power to dismiss an action summarily is not to be exercised lightly. But the elucidation of what amounts to "no reasonable prospect" can best proceed in the same way as content has been given, through a succession of decided cases, to other generally expressed statutory phrases, such as the phrase "just and equitable" when it is used to identify a ground for winding up a company. At this point in the development of the understanding of the expression and its application, it is sufficient, but important, to emphasise that the evident legislative purpose revealed by the text of the provision will be defeated if its application is read as confined to cases of a kind which fell within earlier, different, procedural regimes. 42 In Dandaven, Gilmour J identified at [6] some general principles applying to s 31A: Success under s 31A does not require a demonstration that the case is hopeless or bound to fail. The following principles are of general application to an application under s 31A: (a) the Court must be very cautious not to do a party an injustice by summarily dismissing proceedings; (b) the Court ought not dismiss a claim based on a predictive assessment of prospects, where it is possible that if the claim went to trial, it may succeed; (c) in a case where evidence can give colour and content to allegations, and where questions of fact and degree are important, the Court should be more reluctant to dismiss a proceeding on the face of a pleading; (d) it is not Parliament's intention to require the Court to engage in lengthy and elaborate trials on an interlocutory basis for the purposes of determining whether or not a proceeding has no reasonable prospects of success. It may be necessary for the opposing party to provide no more than an outline of evidence, sufficient to show that there is a genuine dispute, to prevent the summary application becoming a trial; (e) if there is a real issue of fact or law to be decided, and the rights of the parties depend upon it, it is obviously appropriate that the matter goes to trial. It cannot be said that where there is a real factual dispute and that factual dispute must be resolved to determine whether the claim succeeds that there is 'no reasonable prospect of success'; (g) it ought not be used to shut out proceedings where, on a proposition of law, there may be room for doubt. On questions of law, an inquiry as to their merit should not be for the purpose of resolving them and also not simply to determine whether the argument is hopeless, but in order to decide if it is sufficiently strong to warrant a trial; (h) evidence of an ambivalent character will usually be sufficient to amount to reasonable prospects; (i) in determining if there are real issues of fact in issue so as to preclude summary judgment the courts must draw all reasonable inferences in favour of the non-moving party. See Genovese v BGC Construction Pty Ltd [2007] FCA 923 at [5]; Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd (2006) 70 IPR 146 at [42]-[48]; Hicks v Ruddock (2007) 156 FCR 574 at [13]; Bond v Barry (2007) 73 IPR 490 at [46]; Commonwealth Bank of Australia v ACN 000 247 601 Pty Ltd (in Liq) (formerly Stanley Thompson Valuers Pty Ltd) [2006] FCA 1416 at [30]; Fortron Automotive Treatments Pty Ltd v Jones (No 2) [2006] FCA 1401 at [21]; Jefferson Ford Pty Ltd v Ford Motor Company of Australia Limited [2008] FCAFC 60. 43 I also respectfully agree with the observations of Flick J in Cavar at [30] that the Court should be careful to explain why, in an appropriate case, a proceeding should be summarily dismissed. 44 As to the power to strike out all or part of a pleading under r 16.21 of the FCRs, the general principles include that the power will only be exercised in plain and obvious cases, where it is clear that no reasonable amendment can cure the alleged defects and there is no reasonable question to be tried: see, for example, Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62 at 91; General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 128-130 and Christou v Stantons International Pty Ltd [2010] FCA 1150 at [3]-[5]. Proposed amended statement of claim summarised 45 As noted above, Mr Young required leave to amend his original statement of claim, but the parties were content for the interlocutory applications to be determined by reference to the proposed amended statement of claim, which comprised 266 paragraphs. Unfortunately, the extensive material which was added by Mr Young to the original statement of claim did nothing to overcome the serious deficiencies in the original document. In fact, the deficiencies were exacerbated. Much of the proposed pleading is in a narrative or discursive form and large parts are argumentative and repetitive. Parts of the original pleading were retained but new claims were added, as also were new causes of action. 46 As best the proposed pleading can be understood, Mr Young seeks to raise the following causes of action against each of the three respondents. First, he makes a series of claims of misleading or deceptive conduct contrary to s 18 of the ACL, which is based on the following allegations: (a) when he signed up to the Facebook Services he did not believe he was entering into an agreement with Facebook Ireland but was led to believe by the materials in Exhibit A, that he was entering into an agreement with Facebook Australia; (b) Mr Young did not give his permission for advertising to "run" on the Common Cause Facebook page and he believed that the revenue from any advertising on that page would "go through an Australian Company as shown in the news articles" and therefore be liable to "proper taxation and payments of tax [that] would occur within Australia"; (c) after he was removed as administrator, Facebook Ireland and/or Facebook Inc represented that he had to take certain steps in order to be reinstated as administrator. He further says that although he took those steps he was not immediately reinstated; and (d) during the sign up process to the Facebook Services, the policy of Facebook Australia directed a prospective user of Facebook to provide his or her "actual or legal name", which is somehow misleading or deceptive. 47 Secondly, the conduct described in [46(c)] above is also claimed by Mr Young to be unconscionable (his pleading also makes passing references to conduct amounting to negligence but that claim is not developed). 48 Thirdly, by removing Mr Young as administrator or the Common Cause Facebook page, he claims that the respondents infringed his rights under the Constitution relating to the implied freedom of communication on governmental and political matters. 49 Mr Young indicated that he also proposed to press his claim for interlocutory relief to prevent any future removal of him as administrator even though it was common ground that he had been reinstated to that position. There was no evidence of any threat by anyone to have him removed as administrator. 50 Mr Young sought damages in respect of each of these causes of action. He described the harm which he had suffered arising from the respondents' conduct as "ridicule, loss of standing and loss of contact with his members and readers and a serious loss of signups of membership to Common Cause", as well as "hurt anxiety and total denied by all respondents as to Applicants (sic) legal rights within Australia to Free (sic) political speech". 51 In the proposed amended statement of claim exemplary damages in the amount of $1m are sought "for the consistent and malicious acts towards Applicant (sic) and other Australians who are going about their legal right to use Free Political Speech in discussion of Australian Politics". Aggravated damages in the amount of $250,000 are also sought for "the unconscionable conduct and the continuous manner in which respondents (sic) actions were deliberately carried out in defiance of applicants (sic) legal and lawful rights all as pled (sic) herein". 52 Damages are also be sought for: (a) allowing "the integrity of COMMON CAUSE to be impugned by allowing unauthorised posts in Applicants (sic) absence, the removal of material and membership from Common Cause and continuing harassment by all respondents of applicant (sic) and Common Cause"; and (b) "loss of faith and credibility among his peers who were shocked at Applicants (sic) sudden disappearance from COMMON CAUSE all to applicants (sic) detriment…". Consideration 53 Mr Young's claims against Facebook Australia have no reasonable prospect of success. That is primarily because all the claims are predicated on Facebook Australia having legal responsibility for the conduct the subject of the claims or, alternatively, being the agent of the other two proposed respondents. Subject to one non-determinative qualification which I will describe below in [55], these claims are untenable having regard to Mr Owens' unchallenged evidence which is summarised above. 54 The proceedings are substantially similar to other cases both here in Australia and overseas in which proceedings have been summarily dismissed or struck out in circumstances where action has been taken against a domestic subsidiary of a foreign parent corporation, but where the evidence established that the domestic entity had no legal responsibility for the matters complained of and could not direct or control the foreign parent to secure compliance with any relevant Court orders: see Rana; A v Google New Zealand [2012] NZHC 2352; Tamiz v Google Inc and Google UK Ltd [2012] EWHC 449 and, most recently, Richardson v Facebook [2015] EWHC 49 (Richardson). Obviously, each case must be viewed in the light of its own evidence and the specifically pleaded claims. That is the approach I have taken here. 55 On one level it is perhaps understandable that Mr Young says that the materials in Exhibit A led him to believe that when he signed up as a Facebook user, he was signing up with an Australian-based company. He pointed to an article which appeared in The Australian newspaper which described how Facebook was one of the "biggest brands in Australia but few know of the small but growing team that has operated from Sydney since 2009". The article described how Facebook had a total of more than 6000 staff globally but fewer than 100 across its Sydney and Melbourne offices. The article referred to Facebook staff in Australian primarily performing "a range of sales, marketing, technical support, policy and data job functions". 56 Mr Young also relied on various Facebook HQ pages which gave Facebook Australia's Sydney address, as well as photographs of communications infrastructure being installed in the Sydney office. Another screenshot made reference to Facebook Australia and its Sydney office having been founded in Sydney in 2008 and the Melbourne office in 2009. It included a statement that: "We service brand advertisers needs throughout all of Australia." 57 A website address was provided on the Facebook HQ page which finished with the initials "au", which Mr Young submitted conveyed an Australian connection. 58 Mr Young also relied on an article in a publication called "Social Times" dated 5 May 2009, which described how Facebook was "building a sales team to run its new Australian headquarters in Sydney". The article quoted the head of the team (Mr Paul Borrud) commenting on plans to "generate advertising revenue from Australian agencies and advertisers by engagement ads (to the right of the Home page) and performance ads (to the right of user profiles)". 59 There are other similar kinds of materials which Mr Young relied on in support of his claims that he had been misled or deceived into thinking that he was signing up with an Australian-based and registered Facebook company. 60 There are three insurmountable obstacles to Mr Young succeeding in his claims against Facebook Australia. First, there is Mr Owens' unchallenged evidence to the effect that Facebook Australia does not own, control or host the Facebook Services. That evidence brings this case squarely within the territory covered by earlier cases such as Rana and Richardson. None of the materials in Exhibit A undermines the truthfulness of Mr Owens' evidence. The various references in that material to Facebook Australia having some role with advertising on Facebook are not inconsistent with Mr Owens' evidence, however, the details of the arrangements between Facebook Australia and overseas Facebook companies remain unclear. Mr Lewis repeatedly emphasised the limits of his instructions. When asked whether he could clarify the nature of Facebook Australia's role in obtaining advertising for Facebook, Mr Lewis said that he did not know from his instructions whether or not Facebook Australia "is actually engaging in advertising", that he was not instructed that the company did engage in advertising and that there was no evidence to specifically tie Facebook Australia to contracting on behalf of either Facebook Ireland or Facebook Inc. 61 In response to the Court's questions regarding Facebook Australia's role in facilitating advertising on Facebook pages, Mr Lewis described the "bottom line" of Facebook Australia's position as follows: Facebook Australia doesn't control anything to do with the Facebook Service. Of that, there is unchallenged evidence. It has no authority to enter into any contract on behalf of its parent in the States or of part of Ireland. There is evidence before the court that even if an order is made to direct it to do something, in respect of the Facebook service, or to reinstate the applicant as administrator, if ever that happened in the future, he (sic) would be unable to comply with it. That, in my respectful submission, is the specific question that the court is concerned with and we would commend the decision of Warby J in Richardson v Facebook. 62 On the basis of the evidence before the Court, this submission should be accepted. 63 Secondly, that part of the proposed amended statement of claim relating to misleading or deceptive conduct in selling, promoting, placing and using advertising on Facebook's Services is based in part on the claim that Mr Young's permission was not sought for advertising to be run on the Common Cause Facebook page. However, no such permission was required because, under cl 9 of the SRR, it was expressly stated that the user gave permission for their "name, profile picture, content, and information in connection with commercial, sponsored, or related content…served or enhanced" by, relevantly, Facebook Ireland. It was further stated in the SRR that this included the user permitting a business or other entity to pay Facebook to display the users' name and/or profile picture with the user's content or information, without any compensation to the user. 64 Thirdly, as noted above, cl 18.1 of the SRR made explicitly clear that a Facebook user who is a resident or has their principal place of business outside the USA or Canada is entering into an agreement with Facebook Ireland and that the SRR was to be read accordingly. There is no express reference to Facebook Australia in the SRR. 65 It is not disputed that Mr Young signed up to the SRR. Even though Mr Young maintained from the Bar table that he did not read all the sign-up documentation because he found it to be too lengthy and confusing, under Australian law where a person signs a document which is intended to affect legal relations and the person knows that the document contains contractual terms (and there is no vitiating element such as misrepresentation, duress or mistake), the person is bound by those terms and it is immaterial that the person has not read the document (see Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165). The same principle should apply where a person such as Mr Young "signs up" on the internet to an agreement like the SSR. 66 Mr Young's other claims against Facebook Australia are also doomed to fail in circumstances where Mr Owens' evidence establishes that Facebook Australia does not own, control or operate the Facebook Services and has no authority to enter into agreements on behalf of those companies. As will be developed shortly those claims also lack reasonable prospects for other reasons. 67 For the reasons given above, the claims made against Facebook Australia in the proposed amended statement of claim do not have reasonable prospects. The originating application (and the proposed associated pleading) should be summarily dismissed. 68 Against that background I will now consider the position concerning the proposed second and third respondents in the context of Mr Young's interlocutory application which seeks leave to serve the originating application and the proposed amended statement of claim on those parties outside the jurisdiction. 69 Mr Young acknowledged that it was a precondition to him obtaining such leave that he demonstrate to the Court's satisfaction that he has a prima facie case for all or any of the relief sought against those proposed respondents (see rr 10.42 and 10.43 of the FCRs and the discussion of the relevant principles in Rana at [42]-[46] and Warner v Hung, in the matter of Bellpac Pty Ltd (Receivers and Managers Appointed) (In Liquidation) [2013] FCA 120). 70 For the following reasons, I am not satisfied that Mr Young has discharged his burden of establishing that he has a prima facie case. 71 First, Mr Young's claims of misleading or deceptive conduct and/or unconscionability (noting that Mr Young accepted that the claims substantially overlap) are inconsistent with the contractual rights conferred upon Facebook Ireland and the contractual obligations which Mr Young accepted under the SRR (see Coles Supermarkets Australia Pty Ltd v FKP Limited [2008] FCA 1915 at [67]-[69] per Gordon J and Mander Forklift Pty Ltd v Dairy Famers Co-Operative (1990) ATPR 46-061). In particular: (a) it was made explicitly clear in cl 18.1 that the other party to the SRR was Facebook Ireland; (b) there were express provisions in the SRR which permitted Facebook Ireland to place advertising on Mr Young's Facebook page without further consent from him; (c) there were also express provisions which in the SRR entitled Facebook Ireland to stop providing all or part of the Facebook Services to a user (see cl 14 above). In any event, as noted above, Mr Young was reinstated as administrator of the Common Cause Facebook page after he complied with the requirements concerning identification. Nothing in his proposed pleading raises any prima facie case of misleading or deceptive conduct and/or unconscionability in relation to the application of those requirements or the action which was ultimately taken to reinstate him; and (d) the significant obscurity and deficiencies in the proposed amended statement of claim do not permit a finding that Mr Young has a prima facie case of misleading or deceptive conduct (or unconscionability) in respect of the requirement in cl 4 of the SRR that Facebook users provide their real names and personal information. 72 As noted above, Mr Young's proposed pleading concerning unconscionability focused primarily on the events surrounding his removal and reinstatement as administrator. There is no reference to s 20 of the ACL in the proposed pleading and the reader is led to believe that Mr Young relies upon unconscionability as part of the common law or equitable principles recognised in cases such as Commercial Bank of Australia Ltd v Amadio [1983] HCA 14; (1983) 151 CLR 447. In that context, it is difficult to understand the relevance of the reliance which Mr Young placed in oral address on other provisions in the ACL, such as ss 21 and 22. 73 In my view, Mr Young has no prima facie case in respect of his claims of unconscionability. Not only does he face the obstacles of the relevant express provisions in the SRR which authorised the conduct of which he complains, but his proposed pleading identifies no special disability on his part so as to attract the relevant principles of unconscionability. As presented by him, Mr Young's complaint is that the relevant conduct was not fair or just, but that is insufficient to meet the high level of moral obloquy which is an essential element of the cause of action (see ACCC v CG Berbatis Holdings Pty Ltd [2003] HCA 18; (2003) 214 CLR 51). 74 In oral address, Mr Young said that he also relied on various provisions in Pt 2-3 of the ACL, which concern unfair contract terms. However, for the purposes of determining whether or not Mr Young has established that he has a prima facie case, it is notable that the proposed amended statement of claim contains no pleading in respect of alleged unfair contract terms. Accordingly, the statutory provisions in Pt 2-3 have no relevance to the case as proposed to be pleaded by Mr Young. 75 Secondly, there is no prima facie case concerning the proposed cause of action based on the implied Constitutional right of political communication. That is because the "right" is not a personal right in the manner pleaded in the proposed amended statement of claim. The implied right is not a "personal right" as contended by Mr Young, but rather is properly viewed as being in the nature of an immunity from legislative or executive action which impairs the exercise of the right or freedom to communicate on political or government matters. The implied Constitutional right does not carry with it a cause of action against private or corporate entities which are not part of the legislative or executive branches of government but which engage in conduct which impairs the freedom of communication. 76 The scope of the freedom of communication concerning political or government matters which is protected by the Constitution is clearly identified in the following passage from Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520 (Lange) at 560 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ (footnotes omitted): That being so, ss 7 and 24 and the related sections of the Constitution necessarily protect that freedom of communication between the people concerning political or government matters which enables the people to exercise a free and informed choice as electors. Those sections do not confer personal rights on individuals. Rather they preclude the curtailment of the protected freedom by the exercise of legislative or executive power. As Deane J said in Theophanous, they are "a limitation or confinement of laws and powers [which] gives rise to a pro tanto immunity on the part of the citizen from being adversely affected by those laws or by the exercise of those powers rather than to a 'right' in the strict sense". In Cunliffe v The Commonwealth, Brennan J pointed out that the freedom confers no rights on individuals and, to the extent that the freedom rests upon implication, that implication defines the nature and extent of the freedom. His Honour said: "The implication is negative in nature: it invalidates laws and consequently creates an area of immunity from legal control, particularly from legislative control." 77 See also James v Commonwealth [1939] HCA 9; (1939) 62 CLR 339 at 361-362; Kruger v Commonwealth [1997] HCA 27; (1997) 190 CLR 1 at 46, 93, 124-126 and 147-148; Unions NSW v State of New South Wales [2013] HCA 58; (2013) 252 CLR 530 at [36] and Tajjour v New South Wales [2014] HCA 35 at [33], [104] and [198]. 78 The implied constitutional right may create a separate cause of action in an individual if the legislative or executive action produces change to existing law, as was the case in Lange. The proposed amended statement of claim here contains no allegation which would attract this aspect of Lange. Mr Young's contention that he has a personal right arising from the implied Constitutional limitation which gives rise to its own cause of action for damages fundamentally misconceives the nature of the relevant Constitutional right or limitation. 79 For completeness, it might also be noted that Mr Young failed to give notice of this aspect of his claims, including in respect of Facebook Australia, as required by s 78B of the Judiciary Act 1903 (Cth). That omission does not prevent the consideration and determination of the interlocutory applications in circumstances where the Mr Young's Constitutional law claims are fundamentally misconceived such that the terms of s 78B are not engaged (see Nicolic v MGICA Ltd [1999] FCA 849 and Sagacious Legal Pty Ltd v Westfarmers General Insurance Ltd (No 3) [2010] FCA 428; (2010) 184 FCR 516 at [14]). 80 Thirdly, any claim in negligence (which, as previously mentioned, is only referred to in passing in the proposed amended statement of claim and is not developed or properly pleaded), amounts to nothing more than a bald assertion by Mr Young. The proposed pleading does not address any of the essential elements of that cause of action. No prima facie case is established. 81 Finally, although there are numerous references to "passing off" in the proposed amended statement of claim, Mr Young confirmed that that phraseology was another way of describing the conduct which is the subject of his claims of misleading or deceptive conduct and/or unconscionability and that no separate cause of action was suggested. Accordingly, the reasoning given above in relation to those causes of action applies. Conclusion 82 Facebook Australia is entitled to summary judgment. Mr Young does not have reasonable prospects of success in obtaining any of the relief he seeks against that entity. Nor does he have a prima facie case to obtain any of the relief he proposes to seek under the proposed amended statement of claim against either Facebook Ireland or Facebook Inc. Accordingly, his interlocutory application must be dismissed. 83 No reason was advanced as to why costs should not follow the event in relation to both applications. Appropriate orders will be made accordingly. I certify that the preceding eighty-three (83) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Griffiths. Associate: Dated: 17 December 2015