Ordinarily, the Federal Court of Australia would require a hearing, accompanied by written submissions, to hear and determine the leave application to serve the originating documents overseas.
However, Justice Mortimer was satisfied with the contents of Yemini’s supporting affidavit in his case to unmask 'PRguy', such that a hearing was not necessary.
The prospective applicant in this proceeding, Mr Avraham Yemini, is an Australian-based journalist for the Canadian news and opinion website, Rebel News. On 16 February 2022, Mr Yemini filed an originating application effectively seeking an order under r 7.22 of the Federal Court Rules 2011 (Cth) for preliminary discovery by Twitter International Company and Twitter Inc, the corporate entities through which the American microblogging and social networking service ‘Twitter’ is principally operated. Mr Yemini seeks production of documents in the possession of Twitter International or Twitter Inc that would help him identify an anonymous person or persons who published allegedly defamatory content about Mr Yemini on the Twitter platform, so that he can commence proceedings against that person or persons. The evidence supporting Mr Yemini’s application for preliminary discovery sets out the bases on which Mr Yemini believes that one or both of the Twitter entities have information about the identity of the anonymous Twitter user and the attempts that Mr Yemini has made to identify the anonymous user to date.
The prospective respondents to this proceeding are based outside of Australia. Twitter International’s registered office is located in the Republic of Ireland and Twitter Inc is domiciled in California, USA. As such, Mr Yemini requires the Court’s leave to effect service of this proceeding’s originating process: r 10.43(1)(a) of the Rules. Mr Yemini applied for leave to serve Twitter International and Twitter Inc in accordance with the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters done at the Hague on 15 November 1965 (the Hague Convention) and, additionally, by email. Leave will be granted to effect service in a manner permitted by the Hague Convention, but not by email.
As Wigney J set out in Lin v Google LLC  FCA 1113 at , the combined effect of r 10.42 and r 10.43 of the Rules is to impose five requirements for an applicant seeking leave to effect service overseas. First, the applicant must show that the application to be served comprises, or includes, one or more of the kinds of proceedings mentioned in the table produced in r 10.42 (r 10.42 and r 10.43(4)(b) of the Rules). Second, the applicant must show that the means by which they propose to effect service accords with a convention, the Hague Convention or the law of the foreign country in which service is to be effected (r 10.43(2) of the Rules). Third, the application must be accompanied by an affidavit stating the name of the foreign country where the prospective respondent is to be served and that the proposed method of service accords with a convention, the Hague Convention or the law of the foreign country (r 10.43(3) of the Rules). Fourth, the Court must have jurisdiction in the proceeding (r 10.43(4)(a) of the Rules). Fifth, the applicant must have a prima facie case for all or any of the relief claimed in the proceeding (r 10.43(4)(c) of the Rules).
On the material before the Court, I am satisfied that each of the five criteria is fulfilled. Mr Yemini’s application is for preliminary discovery, effectively under r 7.22 of the Rules, is based on a cause of action in defamation. With respect, I concur with the observations of Wigney J in Lin at - that an application for preliminary discovery in these circumstances can be a proceeding of the kind mentioned in items 1, 4 and 5 of the table in r 10.42 of the Rules. Mr Yemini sought leave to effect service via international registered post, which is a method of service permitted by Article 10(a) of the Hague Convention. Neither the USA nor the Republic of Ireland has made an objection to service via registered post under Article 10(a) of the Hague Convention. Mr Yemini’s application for overseas service was accompanied by an affidavit duly sworn by his solicitor, deposing to the names of the countries in which Twitter International and Twitter Inc are to be served (the Republic of Ireland and the USA, respectively) and the method of service to be employed (affidavit of Stuart John Gibson sworn on 22 March 2022 at -). An application for preliminary discovery under r 7.22 of the Rules is a proceeding in which this Court has jurisdiction. On the basis of the affidavit filed in support of the application for preliminary discovery, I am satisfied that Mr Yemini has a prima facie case for the production of the documents he seeks. Therefore, an order granting leave for Mr Yemini to effect service on the prospective respondents via international registered post will be made.
However, leave for Mr Yemini to effect service on the prospective respondents via email will be refused. Email is not a method of service of an originating process permitted under the Hague Convention. An order permitting overseas service via email would effectively be an order for substituted service under r 10.24 of the Rules. Mr Yemini provided no evidence as to why an order for substituted service would be necessary or appropriate in the circumstances of this application. In that respect, the facts of this application are similar to those in Lin. I respectfully agree with the observations of Wigney J in Lin at -, especially his Honour’s remarks at :
There is an applicable agreed regime for service outside the jurisdiction. That regime, the Hague Convention, does not permit service by email. The agreed regime is subverted where jurisdiction is exercised permitting a party to substitute an alternative form of service: cf Laurie v Carroll (1958) 98 CLR 310 at 325; AIC v Facebook [  FCA 531; 144 ACSR 88] at . The interests of international comity weigh against permitting service via email in the absence of compelling evidence as to why service in accordance with the Hague Convention is unlikely to be successful or feasible in all the circumstances. There is no such evidence in this case.
- Leave will be granted to Mr Yemini for service outside Australia in accordance with Div 10.4 of the Rules. The application for service by email is refused. The costs of this application should be reserved.
Yemini will now serve the material per the orders.
Her Honour will then list the matter for a case management hearing.