Federal Court of Australia Colagrande v Telstra Corporation Limited [2020] FCA 1595 File number: QUD 301 of 2020 Judgment of: DERRINGTON J Date of judgment: 4 November 2020 Catchwords: PRACTICE AND PROCEDURE – application for preliminary disclosure pursuant to r 7.22 of the Federal Court Rules 2011 (Cth) – where reviewer wrote allegedly defamatory review – where identity of reviewer unknown – where IP address of reviewer known – where respondent is the internet service provider associated with the IP address – where circumstances justify making of order for preliminary discovery Legislation: Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) Federal Court Rules 2011 (Cth), r 7.22, r 7.25 Defamation Act 2005 (Qld) Cases cited: Allphones Retail Pty Ltd v Australian Competition and Consumer Commission (2009) 259 ALR 354 Bailey v Bottrill (No 2) [2019] ACTSC 167 Boyd v Automattic Inc [2019] FCA 86 Dow Jones & Company Inc v Gutnick (2002) 210 CLR 575 Google Inc v Duffy (2017) 129 SASR 304 Hooper v Kirella (1999) 96 FCR 1 Kabbabe v Google LLC [2020] FCA 126 Kukulka v Google LLC [2020] FCA 1229 Levis v MacDonald (1997) 75 FCR 36 R v Colagrande [2019] 1 Qd R 241 Rana v Google Inc (2017) 254 FCR 1 Division: General Division Registry: Queensland National Practice Area: Other Federal Jurisdiction Number of paragraphs: 20 Date of hearing: 4 November 2020 Counsel for the Prospective Applicant: Mr M Clarke Solicitor for the Prospective Applicant: Fraser Lawyers Counsel for the Respondent: The Respondent did not appear Table of Corrections 13 November 2020 In paragraph 3, 6 February 2020 has been changed to 6 February 2017 and 7 February 2020 has been changed to 7 February 2017. ORDERS QUD 301 of 2020 BETWEEN: CESIDIO COLAGRANDE Prospective Applicant AND: TELSTRA CORPORATION LIMITED ACN 051 775 556 Respondent order made by: DERRINGTON J DATE OF ORDER: 4 November 2020 THE COURT ORDERS THAT: 1. Pursuant to r 7.22 of the Federal Court Rules 2011 (Cth), the Respondent, Telstra Corporation Limited, must by 4.00 pm on 24 November 2020, give discovery in accordance with r 7.25 of the Federal Court Rules of all documents (as this term is defined in schedule 1 of the Federal Court Rules) that are or have been in its possession which establish, evidence, or assist in establishing or evidencing: (a) the account through which the internet was accessed on 12 December 2018 via the Internet Protocol Address 121.223.25.100; (b) the holder or owner of the account through which the internet was accessed on 12 December 2018 via the Internet Protocol Address 121.223.25.100; (c) the identity of the person that accessed the internet on 12 December 2018 via the Internet Protocol Address 121.223.25.100; and (d) the location of the computer, modem, or internet connection through which the internet was accessed on 12 December 2018 via the Internet Protocol Address 121.223.25.100. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT DERRINGTON J: Introduction 1 This is an application under r 7.22 of the Federal Court Rules 2011 (Cth) (the Rules) for an order that the defendant, Telstra Corporations Limited (Telstra), make preliminary discovery to the prospective applicant, Dr Cesidio Colagrande, of all documents in its control that relate to the description of a prospective respondent. Background 2 The prospective applicant is a plastic surgeon practising on the Gold Coast, Queensland. 3 On 6 February 2017, he was convicted by a jury of one count of indecent assault. The complainant was a patient on whom he had performed a breast enlargement operation on 12 May 2014. On 7 February 2017, a news website (news.com.au) published an article, reporting on the conviction. That article continues to be accessible. 4 The prospective applicant appealed his conviction. On 5 June 2018, the Queensland Court of Appeal allowed that appeal, quashed the conviction, and ordered a re-trial on the basis that the prosecution's failure to disclose to the defence certain material – namely a written statement by the complainant seeking to withdraw her complaint – resulted in a miscarriage of justice: see R v Colagrande [2019] 1 Qd R 241. Not unsurprisingly, the prosecution subsequently abandoned the charge and entered a nolle prosequi on 7 June 2018. 5 On 12 December 2018, an anonymous user (the Reviewer) posted a review of the prospective applicant on "ratemds.com", a website that enables users to post ratings and reviews of doctors. That review read: After what he did to me, i can't believe he's still practicing. Just read the article. https://www.news.com.au/national/queensland/courts-law/goldcoast-plastic-surgeon-ces-colagrande-found-guilty-of-sex-assault-ofstripper/news-story/e6615788f087f0883c6620afe8165bfa 6 As the website is hosted in California, the prospective applicant engaged a lawyer in that jurisdiction in late 2019, who issued a subpoena to the owner of the website to identify the Reviewer. On 25 October 2019, the website owner responded to the subpoena and provided the prospective applicant with the Reviewer's Internet Protocol Address (IP Address). 7 The prospective applicant determined, by running a search on "whatismyipaddress.com", that the IP Address was hosted by the respondent, Telstra. 8 On 24 September 2020, the prospective applicant brought this application against Telstra, seeking an order under r 7.22 of the Rules that it give discovery to him of all documents that are or have been in its control relating to the description of the person or persons associated with the IP Address. Consequent on the requested relief being granted, the prospective applicant has instructed his solicitors to serve a Concerns Notice pursuant to the Defamation Act 2005 (Qld) on the Reviewer. 9 Although Telstra has not filed a submitting notice, it has indicated to the prospective applicant in email correspondence that it neither consents to, nor opposes, the application and that it does not wish to be heard in Court, with the result that the hearing of this matter was uncontested. The law 10 Rule 7.22 of the Rules relevantly provides as follows: 7.22 Order for discovery to ascertain description of respondent (1) A prospective applicant may apply to the Court for an order under subrule (2) if the prospective applicant satisfies the Court that: (a) there may be a right for the prospective applicant to obtain relief against a prospective respondent; and (b) the prospective applicant is unable to ascertain the description of the prospective respondent; and (c) another person (the other person): (i) knows or is likely to know the prospective respondent's description; or (ii) has, or is likely to have, or has had, or is likely to have had, control of a document that would help ascertain the prospective respondent's description. (2) If the Court is satisfied of the matters mentioned in subrule (1), the Court may order the other person: … (b) to produce to the Court at that examination any document or thing in the person's control relating to the prospective respondent's description; and (c) to give discovery to the prospective applicant of all documents that are or have been in the person's control relating to the prospective respondent's description. 11 The expression "description" is defined in Sch 1 of the Rules to mean, for an individual, "the person's name, residential or business address and occupation", and for a person that is not an individual, their name and the address of their registered office, principal office or principal place of business. The prospective applicant, in his affidavit of 11 September 2020, has indicated that he seeks documents which identify any and all individuals and corporations associated with the IP address. In the absence of any further specification by the prospective applicant, it has been assumed that the he seeks all of the information falling within the definition of "description", if available, from Telstra. Consideration The prospective applicant may have a right to obtain relief 12 The prospective applicant is not required to demonstrate the existence of a prima facie case against the prospective respondent: Levis v MacDonald (1997) 75 FCR 36, 41, 44. It is enough if he can show that he may have a right to obtain relief: Hooper v Kirella (1999) 96 FCR 1 (Hooper v Kirella), 10 [33]. This threshold has been described as "very low": Boyd v Automattic Inc [2019] FCA 86 (Boyd v Automattic) [49]; and "not onerous": Kukulka v Google LLC [2020] FCA 1229 [22]. However, the foreshadowed claim must have some prospect of succeeding, in that it must be a cause of action known to the law which has a real, as opposed to fanciful, prospect of the grant of some remedy: Allphones Retail Pty Ltd v Australian Competition and Consumer Commission (2009) 259 ALR 354 [54]. 13 Here, the prospective applicant alleged that the review, extracted above, is potentially defamatory. In his written outline of submissions at [16], the prospective applicant states: The Post is potentially defamatory of Dr Colagrande by reason that it expressly or impliedly states that: (a) he committed the act the subject of the offence in relation to the Poster; and (b) he is guilty of the offence by reason of his conviction (notwithstanding the Court of Appeal had already, at the time the Post was made, quashed the conviction). 14 It is first necessary to determine whether this Court would likely have jurisdiction to hear the prospective claim. In this respect, s 9(3) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) confers on the Federal Court the jurisdiction of the Supreme Courts of the Northern Territory (NT) and the Australian Capital Territory (ACT) to hear and determine defamation matters that would be within their jurisdiction: Rana v Google Inc (2017) 254 FCR 1 [24]; Crosby v Kelly (2012) 203 FCR 451, 458 [35]. 15 A defamatory statement made online is taken to be "published" for the purposes of an action in defamation when and where it is downloaded: see Dow Jones & Company Inc v Gutnick (2002) 210 CLR 575. In the present case there was no express allegation that the purportedly defamatory review was downloaded or read in the NT or the ACT, however it was submitted that the website ratemds.com is accessible throughout Australia. The fact that the review was visible to the public in the NT and ACT, along with the rest of Australia, is sufficient to establish that the Court is likely to have jurisdiction to hear the prospective claim: Kabbabe v Google LLC [2020] FCA 126 [16]. As observed by Kerr J in Boyd v Automattic at [48]: [W]here highly controversial material has been published regarding a resident of this country and made available to be read or downloaded from a website without restriction anywhere in Australia, it would be unrealistic to conclude other than that those words may have been read in, inter alia, the ACT and the Northern Territory. (Emphasis in original). 16 It is unnecessary, and indeed undesirable, to descend into a detailed examination of the merits of the proposed action. At a level of some abstraction, the proposed defamation action is likely to be complicated by several factors, including the incorporation of a hyperlink to a news article in the review: see Bailey v Bottrill (No 2) [2019] ACTSC 167; Google Inc v Duffy (2017) 129 SASR 304. Nevertheless, from the material before the Court it can be accepted that the prospective applicant may be able to show the review conveyed imputations which would have tended to lower his reputation (either personal or professional) in the eyes of a reasonable member of the community. In any event, the imputations in the review may be sufficient of themselves, without reference to the hyperlink, to lower the applicant's reputation or standing, the implication possibly being that the applicant engaged in conduct of such a serious kind that he ought to be prevented from practising. On either view, this is sufficient to meet the low threshold required by r 7.22(1)(a) of the Rules. The prospective applicant is unable to ascertain the description of the prospective respondent 17 The predecessor to r 7.22, the former O 15A r 3(1), provided that the prospective application must prove that its inability to ascertain the description of the prospective applicant followed the making of "reasonable inquiries": Hooper v Kirella [31]. While this is no longer an express requirement under r 7.22, I am satisfied that the prospective applicant has, in any event, made reasonable attempts to ascertain the description of the reviewer. As deposed to in his affidavit of 11 September 2020, the prospective applicant has: Caused a subpoena to be issued to the owner of the website that published the review, who provided the prospective applicant with the reviewer's IP address; Run multiple searches of the IP address to attempt to identify the person or persons associated with the IP address; and Caused his solicitors to write to Telstra to request that it identify the person or persons associated the IP address (it appears that Telstra has not responded). 18 Despite these steps, the prospective applicant has been unable to ascertain the identity of the reviewer, the prospective respondent, thereby satisfying the requirement in r 7.22(1)(b). Telstra has, or is likely to have, or has had, or is likely to have had, control of a document that would help ascertain the prospective respondent's description 19 It is axiomatic that Telstra, as the internet service provider associated with the IP address, is likely to have documents in its possession that would help ascertain the prospective respondent's description. These documents may include, inter alia: (a) The name of any person or persons operating from that IP address; (b) Any phone numbers or addresses associated with that IP address; and/or (c) Any location metadata associated with that IP address. Conclusion 20 Each of the requirements under r 7.22 is satisfied. In all the circumstances it is appropriate to order Telstra to give discovery to the prospective applicant of all documents that are or have been in its control relating to the prospective respondent's description. That said, the orders should be confined so as to relate to the use of the IP address on 12 December 2018, when the review, of which the prospective applicant complains, was posted. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Derrington. Associate: Dated: 4 November 2020