KT v Google LLC [2019] NSWSC 1015

Supreme Court New South Wales

Medium Neutral Citation: KT v Google LLC [2019] NSWSC 1015 Hearing dates: 26 July 2019 Date of orders: 13 August 2019 Decision date: 13 August 2019 Jurisdiction: Common Law Before: Fagan J Decision: Order made 5 July 2019 for referral of defendant to be charged with contempt set aside under r 36.16(2)(b) of the Uniform Civil Procedure Rules. Catchwords: PRACTICE AND PROCEDURE - service on a foreign corporation - substituted service Legislation Cited: Uniform Civil Procedure Rules Cases Cited: Akari v Sole [2008] NSWSC 59 Bleyer v Google Inc [2014] NSWSC 897 Magnate Projects Pty Limited v Youma Constructions (No 2) Pty Limited [2005] NSWCA 331 Northey v Bega Valley Shire Council [2012] NSWCA 28 Owners of SS Kalibia v Wilson [1910] HCA 77; (1910) 11 CLR 689 at 694 Trkulja v Google Inc (No 5) [2012] VSC 533 Vacuum Oil Pty Co Limited v Stockdale (1942) 42 SR(NSW) 239 Witham v Holloway (1995) 183 CLR 525; [1995] HCA 3 Category: Procedural and other rulings Parties: KT - plaintiff Google LLC - defendant Representation: Counsel: S Chrysanthou - plaintiff J Giles SC with M Richardson - defendant

Solicitors: Kennedys Law - plaintiff Corrs Chambers Westgarth - defendant File Number(s): 2019/207602 Publication restriction: No

Judgment 1. The defendant has applied to have set aside orders that were made against it in its absence on 4 and 5 July 2019. The orders were made upon urgent applications of the plaintiff, brought successively before two judges of this Court. No representative of the defendant, legal or corporate, was before the Court on either occasion. Most importantly the defendant seeks to have set aside an order made on 5 July 2019 that it be referred to the registrar to be charged with contempt. The defendant's notice of motion to set aside these orders was filed on 10 July 2019. 2. Rule 36.16 of the Uniform Civil Procedure Rules ("UCPR") makes express provision for a defendant against whom orders have been made in such circumstances to apply to have them set aside. If this occurs, the question whether the orders are justified on the merits can then be argued with full opportunity for the affected party to be heard. The relevant parts of r 36.16 as follows: 36.16 Further power to set aside or vary judgment or order 1) The court may set aside or vary a judgment or order if notice of motion for the setting aside or variation is filed before entry of the judgment or order. (2) The court may set aside or vary a judgment or order after it has been entered if: … (b) it has been given or made in the absence of a party, whether or not the absent party had notice of the relevant hearing or of the application for the judgment or order ... (3) In addition to its powers under subrules (1) and (2), the court may set aside or vary any judgment or order except so far as it: (a) determines any claim for relief, or determines any question (whether of fact or law or both) arising on any claim for relief, or (b) dismisses proceedings, or dismisses proceedings so far as concerns the whole or any part of any claim for relief. (3A) If notice of motion for the setting aside or variation of a judgment or order is filed within 14 days after the judgment or order is entered, the court may determine the matter, and (if appropriate) set aside or vary the judgment or order under subrule (1), as if the judgment or order had not been entered. … (4) Nothing in this rule affects any other power of the court to set aside or vary a judgment or order. 1. The Court generally will not make orders without hearing the party against whom they are sought. When an order has been made in the absence of the party affected, for example in urgent circumstances or when the defendant has been given an opportunity to attend court but has not availed itself of that opportunity, subrule (2)(b) of r 36.16 empowers the Court to set it aside. The power existed long before this particular rule was adopted. Griffith CJ said in Owners of SS Kalibia v Wilson [1910] HCA 77; (1910) 11 CLR 689 at 694: [W]hen a judicial order has been obtained ex parte the party affected by it may apply for its discharge. This is an elementary rule of justice … 1. The power enables the Court to avoid injustice that might otherwise result. Ex parte orders may be vacated even though they have been made regularly in accordance with the Rules and without fault of the plaintiff or error on the part of the Court. In the present case that defendant is able to bring itself within both subrules (2)(b) and (3A). 2. The central question upon such an application is whether it is unjust to let the orders stand: Northey v Bega Valley Shire Council [2012] NSWCA 28. The countervailing consideration of the desirability of finality in proceedings is not significant where, as here, the orders made ex parte were interlocutory. The considerations relevant to the discretion to set aside such orders under r 36.16 are substantially the same as those that would apply to an application to set aside a default judgment. The Court must take into account the reason for the defendant's non-attendance when the orders were made; the explanation of any delay from when the defendant received notice of the orders until it filed its application for them to be vacated; the demonstration of at least arguable grounds for opposing the orders, so that if they are set aside there would be some substantive issue to be resolved at a contested inter partes hearing of whether the orders should be reinstated; and any prejudice to the opposing party that might result from setting aside the orders: Vacuum Oil Pty Co Limited v Stockdale (1942) 42 SR(NSW) 239; Magnate Projects Pty Limited v Youma Constructions (No 2) Pty Limited [2005] NSWCA 331 at [51] (Hodgson JA); Akari v Sole [2008] NSWSC 59 at [29]. None of these individual considerations is independently critical. If there is clear demonstration of a substantive defence, ex parte orders might be set aside despite the absence of any satisfactory explanation for the defendant not having attended the original hearing.