Federal Court of Australia Finnegan v Washington (No 2) [2020] FCA 1587 File number: WAD 429 of 2019 Judgment of: JACKSON J Date of judgment: 3 November 2020 Catchwords: PRACTICE AND PROCEDURE - application for leave to serve subpoena overseas - subpoena too wide - leave refused Legislation: Evidence Act 1995 (Cth) s 75 Federal Court Rules 2011 (Cth) rr 10.43, 10.44, Division 10.6 Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters done at the Hague on 15 November 1965 Cases cited: Bailey v Beagle Management Pty Ltd [2001] FCA 60; (2001) 105 FCR 136 Bell Lawyers Pty Ltd v Pentelow [2019] HCA 29; (2019) 372 ALR 555 Ceramic Fuel Cells Ltd (in liq) v McGraw-Hill Financial Inc [2016] FCA 401; (2016) 245 FCR 340 Clifton (Liquidator), in the matter of Solar Shop Australia Pty Ltd (in liq) [2014] FCA 891 Commissioner for Railways v Small (1938) 38 SR (NSW) 564 Harvard Nominees Pty Ltd v Tiller [2019] FCA 1672 Hearne v Street [2008] HCA 36; (2008) 235 CLR 125 Division: General Division Registry: Western Australia National Practice Area: Other Federal Jurisdiction Number of paragraphs: 19 Date of hearing: Determined on the papers Counsel for the Applicant: The applicant appeared in person Solicitor for the First Respondent: Wotton & Kearney Lawyers Counsel for the Second Respondent: The second respondent appeared in person Counsel for the Third Respondent: Ms K Michael Solicitor for the Third Respondent: Aherns Lawyers ORDERS WAD 429 of 2019 BETWEEN: PATRICK FINNEGAN Applicant AND: TIM WASHINGTON First Respondent MATTHEW KEMNER Second Respondent RICHARD BAIRD Third Respondent order made by: JACKSON J DATE OF ORDER: 3 NOVEMBER 2020 THE COURT ORDERS THAT: 1. The applicant's interlocutory application dated 22 June 2020 is dismissed. 2. The applicant must pay the second and third respondents' costs of the application in any event. 3. The applicant must apply for the issue of any new subpoena addressed to Slack Technologies Limited, a company domiciled in the Republic of Ireland, (Subpoena) on or before Tuesday 17 November 2020. 4. The applicant must serve a copy of any Subpoena issued pursuant to the application on each of the respondents within three business days after the issue of the Subpoena. 5. The applicant must make any interlocutory application for leave to serve the Subpoena (Service Application) within 14 days of the issue of the Subpoena. The Service Application must be accompanied by an affidavit that complies with r 10.43(3) and r 10.44(2) of the Federal Court Rules 2011 (Cth) and by an outline of written submissions of no more than five pages in length. The applicant must serve the Service Application and the affidavits in support and submissions on the respondents forthwith. 6. The respondents must make any application to set aside the Subpoena (Set Aside Application) within 14 days of being served with the Service Application. Any Set Aside Application made by a respondent must be accompanied by all affidavits in support, any affidavits in opposition to the Service Application (which for the avoidance of doubt all may be in a single affidavit for each respondent) and an outline of written submissions in respect of both applications of no more than five pages in length. 7. The applicant must file and serve any affidavits in reply within seven days after the expiry of the 14 day deadline referred to in the preceding paragraph. 8. Any Service Application and any Set Aside Applications will be heard together on a date to be fixed. 9. Liberty to apply on three days' written notice. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT JACKSON J: 1 The applicant in this proceeding, Mr Finnegan, seeks leave to serve a subpoena overseas. In the proceeding Mr Finnegan alleges that the respondents defamed him by comments they published during an online chat conversation which took place on a widely used discussion platform known as Slack. 2 The allegedly defamatory statements were made on 8 April 2019 in a 'private channel' named 'off_topic', which existed within a 'workspace' on the Slack platform known as the Tesla Australia workspace. A workspace may contain more than one channel. Membership of the workspace, or at least of the private channel, and the ability to make and see posts on it, was not available to the world at large. It may be that membership was controlled by the person who in Slack parlance is called the 'owner' of the workspace; in this case the owner was the first respondent, Mr Washington. But it is not necessary to determine now whether that is so. 3 Mr Finnegan pleads in his statement of claim that the allegedly defamatory comments made by each of the respondents on the off_topic channel were published in Western Australia and all the other States and Territories in Australia. In their defences, the respondents either do not admit or deny this allegation, and so put in issue whether the defamatory comments were published to anyone, and if so where. Mr Finnegan also claims general damages for injury to his reputation. In those circumstances, it is necessary for Mr Finnegan to establish who did in fact download, read and understand the contentious statements. He also wants to establish the extent to which the allegedly defamatory material was disseminated further. 4 On Mr Finnegan's request, a registrar of this court has authorised the issue of a subpoena to Slack Technologies Limited, a company based in Ireland. The subpoena requires data exports known as 'archive' and 'analytics' exports, as well as metadata which includes internet protocol addresses which will show the geographical location of Slack users who accessed channels in the Tesla Australia workspace. The exports appear designed to identify third parties who viewed the alleged defamatory material in the off_topic channel. The subpoena also requires that the exports include data from one to one or group direct messages. I infer that these are messages that can be sent using Slack between members of a workspace which are not posts that are generally viewable on any channel. The date range specified for all of this is 1 April 2019 to 19 March 2020. While the subpoena has been issued, as the registrar pointed out, Mr Finnegan needs the leave of the court to serve it overseas. 5 The Irish company Slack Technologies Limited is the company which, it appears from Slack's 'Customer Terms of Service', will accept on behalf of the operator of the Slack platform any court process for the production of information which is issued outside the United States and Canada. Both Australia and Ireland are parties to the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters done at the Hague on 15 November 1965 (Hague Convention). Rule 10.44 of the Federal Court Rules 2011 (Cth) (Rules) permits a party to apply to the court for leave to serve a document issued by the court other than an originating application, on a person in a foreign country in accordance with, among other things, the Hague Convention. Division 10.6 of the Rules makes provision for service of documents under the Convention. Mr Finnegan proposes to use the process for which the Convention provides, which essentially means that if service does take place, it will be effected through this court and the High Court of Ireland, which is designated the 'Central Authority' for that country for the purposes of the Convention. Mr Finnegan has filed an affidavit in support of the application which complies with the requirements of the Rules for such affidavits: see r 10.44(2) and r 10.43(3). 6 The second and third respondents oppose the application. They do so on the basis that the subpoena is too wide. They both complain (separately) about the date range; although the alleged defamatory comments were posted on one day only, 8 April 2019, the subpoena seeks to obtain data for an entire year, starting from a date one week before the date of alleged publication. They also both complain about the scope of the subpoena, in that it seeks data about the whole workspace when, as I have said, the publication took place in one private channel within the workspace. The third respondent, Mr Baird, also says that Mr Finnegan has not made any allegation about publication in one to one or group direct messages, as distinct from posts generally viewable in the off_topic channel. He says that the exports and metadata sought will include data pertaining to members of the workspace who are not parties to the action or relevant to it at all. On the basis of the breadth of the subpoena, both the second and third respondents say it is a fishing expedition. 7 In Ceramic Fuel Cells Ltd (in liq) v McGraw-Hill Financial Inc [2016] FCA 401; (2016) 245 FCR 340, Wigney J conducted a comprehensive survey of the case law about leave to serve subpoenas overseas. His Honour's conclusion (at [55]) was that relevant provisions of the Rules, including r 10.44, give the court powers to issue a subpoena to a foreign addressee and to give leave to serve it overseas. His Honour went on to say (at [55]) that: in exercising those powers in relation to a subpoena to a foreign addressee, the Court is required to have regard to whether the issue and service of the subpoena in the circumstances would contravene international law or international comity. It must also exercise caution and restraint. Exceptional circumstances are not always required, however the need for caution and restraint may mean that the Court would not ordinarily issue and grant leave to serve a subpoena that would involve a clear breach of international comity or international law, at least unless the circumstances of the case made it otherwise appropriate or necessary. 8 In Clifton (Liquidator), in the matter of Solar Shop Australia Pty Ltd (in liq) [2014] FCA 891 at [12], White J said of the concerns about sovereignty which underlay the need for caution and restraint, that where both Australia and the relevant foreign country are parties to the Hague Convention: [t]hey can, therefore, be taken to have accepted the course of action contemplated by the present application, namely, the issue of a letter of request by the Registrar of this Court under r 10.64 to the Central Authority in their countries. Their sovereignty will not be infringed by the forwarding of the request to the Central Authority and, if that Central Authority considers that some infringement of their country's sovereignty is involved, it may refuse to effect that service. 9 I respectfully adopt the observations of both Wigney J and White J. In my view the result is that where, as here, the receiving country and Australia are both parties to the Hague Convention, the forwarding of a subpoena to a Central Authority such as the High Court of Ireland in the way contemplated by that Convention is, by itself, unlikely to involve an infringement of the receiving country's sovereignty and therefore is unlikely to be a breach of international comity or international law which compels the refusal of leave to serve the subpoena overseas. I do not, however, consider that the applicability of the Hague Convention removes the need for caution and restraint in the exercise of the discretion. It is still no small thing to direct, or attempt to direct, a command issued by an Australian court to an entity domiciled in a foreign country to be received and complied with inside that country's borders. Difficulties could ensue even within the framework of the Convention. For example, in certain circumstances the service or requested service of a subpoena could amount to an abuse of the Convention or at least appear to be such. The exercise of the discretion still calls for caution and restraint. 10 With that in mind, I will refuse leave to issue the subpoena here. That is because I accept the submissions of the second and third respondents that it is too wide. On the subject of the date range, there is no apparent reason why there is any need to capture data which predates the alleged publication. And while it might be relevant to obtain evidence that the contentious posts were viewed after 8 April 2019, there is no reason to think that it is necessary to capture 12 months' worth of data. 11 On the subject of whether data pertaining to parts of the Tesla Australia workspace outside the off_topic channel can be relevant, Mr Finnegan said in an affidavit that '[i]t is not technically feasible to export a single channel from a Slack workspace. The whole database must be exported as a Corporate Export File'. But the affidavit does not reveal the basis for this statement and gives no reason to think that it is a matter within Mr Finnegan's own personal experience. It may well be hearsay which is inadmissible in this interlocutory proceeding because there is no evidence of its source (Evidence Act 1995 (Cth) s 75) but in any event I give it no weight. So the evidence does not persuade me that there is good reason to obtain data about posts and users outside the off_topic channel. Mr Finnegan also asserts that the extent of publication can only be discovered by examining all the channels and private communication between Slack members. While that may be correct in theory, it is not clear what reason there is to think that publication took place anywhere other than in the off_topic channel. The statement of claim does not allege that it did, a matter I will return to shortly. 12 Those concerns must be weighed against the need for caution and restraint in circumstances where Mr Finnegan is seeking to enlist the powers of the court to compel a foreign company to disclose private data posted and sent by a potentially large number of people, many of whom, it can be expected, had nothing to do with the issues in this litigation. While Mr Finnegan will be obliged not to disclose or use any data he receives for any purpose other than this litigation (Hearne v Street [2008] HCA 36; (2008) 235 CLR 125 at [96]), it is still a potentially serious incursion into online privacy. I do not consider it would be an appropriate exercise of the discretion to grant leave to serve this subpoena in Ireland. 13 That does not, however, mean that the entire subpoena amounts to fishing. Mr Kemner's submissions proceeded on the basis that Mr Finnegan needed to put on evidence suggesting, for example, that there had been publication after 8 April 2019, and that if he had not done so, the subpoena would involve fishing. With respect, that is mistaken. The purpose of a subpoena is of course to obtain evidence, and if Mr Finnegan has pleaded an allegation (which has not been struck out), and the respondents have denied or not admitted that allegation, then it will be open to him to seek the issue of a subpoena in order to obtain evidence to support the allegation: see Commissioner for Railways v Small (1938) 38 SR (NSW) 564 at 575; Bailey v Beagle Management Pty Ltd [2001] FCA 60; (2001) 105 FCR 136 at [28]-[29]. In the event of challenge to the subpoena, he needs to show some connection between the documents sought by the subpoena and the issues raised in the proceeding: see the summary of the principles in Harvard Nominees Pty Ltd v Tiller [2019] FCA 1672 at [3]-[6]. But that need not always be established by evidence. 14 Here, Mr Finnegan pleads that the alleged comments were published on 8 April 2019 and that he has suffered damage to his reputation as a result. The respondents put both of those allegations in issue. That means that the fact and extent of publication, including whether the comments were viewed by anyone after 8 April 2019, are in issue. Seeking to obtain data reasonably likely to add to the evidence relevant to those issues is not fishing. 15 I would, however, put one qualification on that in the present case. The publication which Mr Finnegan has pleaded is publication by way of posts on the off_topic channel. He has not alleged that anybody made or otherwise disseminated the comments in direct messages or other channels, and does not allege secondary publication. To the extent that a subpoena is directed to obtaining evidence of any of those things, it may amount to fishing. 16 Mr Kemner, made a number of detailed objections to passages from the two affidavits Mr Finnegan filed in support of his application. In view of my conclusion about the application it is not necessary to rule on those objections. 17 In these reasons I have aimed to express views on the subpoena to the minimum extent necessary to explain why I will not give leave for it to be served in Ireland. None of those views should be taken to preclude any arguments the parties wish to make in relation to any differently worded subpoena to Slack Technologies Limited. 18 Leave to serve the current subpoena on Slack Technologies Limited will be refused. That being so, the subpoena can have no purpose and so will be set aside. Mr Finnegan will be directed to request the issue of any substitute subpoena within two weeks and directions will be made to programme the necessary application for leave to serve the new subpoena overseas, and any application to set the new subpoena aside, at the same time. 19 Costs should follow the result, so that Mr Finnegan will be ordered to pay the second and third respondents' costs of the present interlocutory application in any event. Since Mr Kemner is self-represented that will not entitle him to obtain recompense for the value of his time spent on the application: Bell Lawyers Pty Ltd v Pentelow [2019] HCA 29; (2019) 372 ALR 555 at [1]. But it is conceivable, if perhaps unlikely, that he may want to claim disbursements, so he will be included in the order for costs. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jackson. Associate: Dated: 3 November 2020