Supreme Court New South Wales Medium Neutral Citation: KT v Google LLC (No 2) [2020] NSWSC 14 Hearing dates: 28 October 2019 Date of orders: 07 February 2020 Decision date: 07 February 2020 Jurisdiction: Common Law Before: Fagan J Decision: 1 The balance of the defendant's notice of motion filed 10 June 2019 is dismissed. 2 The parties are to bear their own costs, respectively, of and incidental to the notice of motion including the defendant's stay application on 12 July 2019. Catchwords: COSTS Cases Cited: KT v Google LLC [2019] NSWSC 1015 Killen v Lane [1983] 1 NSWLR 171 Category: Costs 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. On 13 August 2019 I made one of the orders sought in the defendant's notice of motion filed on 10 July 2019: KT v Google LLC [2019] NSWSC 1015. The defendant no longer pursues the balance of the relief claimed in the notice of motion and the plaintiff asks that it be dismissed with an order that the defendant pay the plaintiff's costs thereof. 2. As filed, the notice of motion sought the setting aside of orders that had been made ex parte by Rothman J on 4 July 2019 and by Davies J on 5 and 9 July 2019. It sought a declaration that the defendant had not been duly served with the plaintiff's summons and supporting affidavit or with the orders of 4 July 2019. Rothman J's orders of that date included an ex parte interlocutory injunction restraining the defendant from publishing certain reviews of the plaintiff's business and from allowing any person to upload to the defendant's website any review of the plaintiff. 3. The notice of motion was given a listing date of 26 July 2019. The substantive proceedings were included in the defamation list for 12 July 2019, by order of Davies J made 5 July 2019. After business hours on 11 July 2019 the defendant's solicitors informed the plaintiff's solicitors that at the directions hearing the next day the defendant would seek a stay of order 2 made by Davies J on 5 July 2019. That was an order pursuant to r 55.11 of the Supreme Court Rules referring the defendant to the Registrar to be charged with contempt, for breach of the injunction that had been granted by Rothman J on 4 July. 4. When the defendant sought a stay of the r 55.11 order on 12 July 2019, the plaintiff made the following submission: [T]he referral that occurred on [5 July 2019] is a ministerial action, it is not a judicial action and … the parties to these proceedings have no say whatsoever as to what now occurs. [The order for referral] is not liable to be stayed by your Honour at the request of Google. It is not liable to be set aside […]. 1. The plaintiff's counsel further submitted that "This is not a proceeding in which this stay can be sought" and on that basis opposed the defendant's application. The plaintiff relied upon Killen v Lane [1983] 1 NSWLR 171. In that case Moffitt P explained the character of the Court's exercise of the power under r 55.11. His Honour pointed out that the Court may receive from a party, a witness, a juror or some other information that a contempt of court has been committed. Such an informant does not become an applicant for a direction to the Registrar under r 55.11 and the alleged contemnor does not become a respondent to any application. There is no inter partes application. The judge does not exercise judicial power, does not resolve an issue between litigants and is not required to give reasons. The Court simply receives the information and then acts on its own motion to direct the Registrar under the rule, or refrains from doing so. 2. Notwithstanding the plaintiff's submissions, on 12 July 2019 I did not consider that the ministerial character of Davies J's direction under r 55.11 was any impediment to staying the direction. On 26 July 2019 I did not consider that the ministerial character was an impediment to setting the direction aside. Neither Killen v Lane nor any other authority of which I am aware supports the plaintiff's proposition that such a direction is "not liable to be set aside". I accept in light of Killen v Lane that the occasion of vacating such an order is not, in substance, an application by the alleged contemnor. Rather, the occasion is one on which the contemnor or some other interested person brings to the attention of the Court information additional to that upon which the direction was originally made. 3. In the present case it would have been open to the defendant to place its additional information before the Court and to invite reconsideration of Davies J's direction, in an informal manner in the course of the directions hearing. Whilst the inclusion in the defendant's notice of motion of an application to set aside the r 55.11 referral was procedurally and conceptually inappropriate, having regard to Moffitt P's exposition in Killen v Lane, it served the purpose of notification to the Court and to the plaintiff that reconsideration was requested. In this respect the notice of motion and supporting affidavits provided a useful vehicle for revisiting Davies J's order. The irregularity of form was unimportant. 4. Paragraphs [2]-[5] of my earlier judgment referred to the principles upon which the Court will set aside orders that have been made in a judicial, as opposed to a ministerial, capacity. Those paragraphs were referrable to the defendant's notice of motion generally, as identified at [1]. Paragraphs [2]-[5] did not identify, as they should have done, that the r 55.11 direction, which was amongst the various orders that the defendant sought to have set aside, was of a different character. With respect to the r 55.11 direction, the Court did not have to apply the criteria for setting aside orders made in resolution of an issue between parties. The question of setting aside a ministerial decision such as a referral under r 55.11 is affected by simpler considerations. If the Court is satisfied that additional information removes the justification for an earlier ministerial decision of this nature then, in my view, there is no reason why the Court should not simply reverse its decision and vacate the referral. 5. Paragraphs [42]-[43] of my earlier judgment refer to the plaintiff's representations to Davies J on 5 July 2019 as an "application" for referral under r 55.11. The transcript of proceedings on that day reads as an application and Davies J directed the plaintiff to file a notice of motion claiming the order for referral. However, the true character of what occurred is not altered by the terminology of the communications about the matter between counsel and the Court. My earlier judgment should have acknowledged that Davies J simply ordered the referral as a ministerial decision of the Court and that the plaintiff was in the position of an informant rather than an applicant. 6. The defendant now seeks an order that the plaintiff pay its costs of the application on 12 July 2019 for a stay of the r 55.11 referral. Killen v Lane is direct authority against an order for costs in these circumstances. The essential point of that decision was that, because the Court's decision whether or not to direct the Registrar to charge contempt is not the resolution of an inter partes application but is the performance by the Court of a ministerial function, there is no litigious proceeding in respect of which a party may be regarded as successful and entitled to its costs. 7. Further, in any event, the basis of the defendant's application for its costs of the stay is a submission that the plaintiff unmeritoriously and unsuccessfully opposed it. Irrespective of the stance taken by the plaintiff on 12 July 2019, the Court would not have stayed Davies J's referral under r 55.11 without the defendant providing prima facie evidence additional to that which was before his Honour on 5 July 2019 and satisfying the Court by argument that, if this evidence should be accepted, the envisaged contempt charge could not be sustained. The defendant's costs of justifying a stay were not incurred as a result of the plaintiff's opposition. The Court would not have stayed Davies J's order without being satisfied of a basis for doing so. The defendant's costs of so satisfying the Court must be to its own account, on any view. 8. The other orders that the defendant sought to have set aside by its notice of motion filed on 10 July 2019 included Rothman J's interlocutory injunctions and his orders for substituted service made on 4 July 2019. At the time of that notice of motion being heard on a final basis on 26 July 2019 the parties were in negotiation concerning variation of the injunctions. The defendant made it clear at the commencement of the hearing that it did not seek to have the injunctions dissolved entirely. 9. Also, at an early stage of the hearing the defendant's counsel stated that the defendant did not need to pursue its claim to have the order for substituted service set aside as a basis for asking that the r 55.11 direction to the Registrar be vacated. Instead, the defendant would demonstrate that notice of Rothman J's injunction had not in fact reached any responsible person in the defendant's organisation by 3:30 pm on 5 July 2019, so that essential elements of a charge of contempt could not have been proved at the time when Davies J ordered referral to the Registrar and could never be proved. The hearing of the defendant's notice of motion proceeded on 26 July 2019 on the basis indicated by counsel and it was ultimately decided on grounds that did not require determination of whether the substituted service order had been justified. 10. The plaintiff took no active part in the hearing on 26 July 2019 so far as it concerned the question whether critical elements of a contempt could not be proved and that the r 55.11 direction should therefore be vacated. The defendant does not seek that the plaintiff pay its costs of the notice of motion generally or in respect of the setting aside of Davies J's direction to the Registrar. However the plaintiff claims his costs of the notice of motion in all respects, including the preparation of affidavits and written submissions and the appearances of counsel on 12 and 26 July 2019. 11. I do not consider that the plaintiff has shown a justification for the costs he seeks. The defendant's evidence and written submissions challenging the substituted service order of 4 July 2019 were substantial. The evidence has demonstrated that there was an available, straightforward method of serving the relevant documents in accordance with the laws of California and Delaware. The method of substituted service that the plaintiff persuaded Rothman J to order was ineffectual to bring the documents to the attention of a responsible person because of the defendant's email routing system, of which the plaintiff was apparently unaware. The plaintiff implemented the substituted service regime at the time of a well-known public holiday in the United States of America, when the inadequacy of that regime had negligible prospect of being overcome by human intervention. All of these circumstances were the subject of findings in my judgment of 13 August 2019. 12. Had it been necessary to determine whether the ex parte order for substituted service was supportable under the UCPR, the answer may well have been in the negative. In the event, the defendant's application has not had to be determined in that respect. From 12 July 2019 it was apparent that the defendant's objective was to terminate the contempt referral to the Registrar and that the setting aside of other orders was ancillary to that purpose. There has been no intimation that the defendant was seeking to avoid being amenable to the jurisdiction of the Court, generally, or to evade interlocutory restraint. 13. Although the plaintiff has at all times in connection with the defendant's notice of motion professed detachment from the question of referral to the Registrar under r 55.11, it is most unlikely that Davies J would have made that order in the first place but for the inflammatory ex parte submissions of the plaintiff's counsel as summarised at [44]-[47] of my earlier judgment. In light of the evidence subsequently adduced by the defendant those submissions now appear ill informed. Also, there was no pressing urgency for the plaintiff to invite the Court to refer the matter to the Registrar on 5 July 2019, only 24 hours after the injunction had been ordered and while it was still a public holiday in California. The plaintiff's precipitate and agitated encouragement to the Court to direct a referral has been the cause of the defendant seeking all of the relief in its notice of motion. The fact that the referral was not amenable to the usual procedures of appeal or review, such as would apply to orders made on an application between parties, made it all the more necessary for the defendant to seek vacation of the underlying orders, such as that for substituted service, as an alternative avenue for halting the contempt process. 14. As the defendant no longer seeks any of the relief claimed in its notice of motion of 10 July 2019, beyond the order made on 13 August 2019 vacating Davies J's order 2 of 5 July, the balance of that notice of motion will be dismissed. It will be further ordered that the parties bear their own costs, respectively, of and incidental to the notice of motion and the stay application of 12 July 2019. ***************** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 February 2020