Morad v El-Ashey

Background 7 The applicant and the respondent were married in the mid-1990s, and separated in early 2015. They lived together until July 2015, when the applicant moved out of their matrimonial home. The present dispute concerns an email address which was registered by the applicant with Telstra (the Bigpond email address). 8 It was undisputed that in around November 2015 the respondent accessed the Bigpond email address and accessed emails addressed to the applicant from that address. It was also undisputed that these emails were "communications" within the meaning of s 5 of the TIA Act, and that the applicant was the "intended recipient" of the emails addressed to him, within the meaning of the term "intended recipient" as defined by s 5G of the TIA Act. 9 The respondent denies, however, that in accessing those emails she breached ss 7(1), 63, 108 and 133 of the TIA Act, as is claimed by the applicant.

provisions with respect to summary judgment 10 Section 31A(2) and (3) of the FCA Act provide: (2) The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if: (a) the first party is defending the proceeding or that part of the proceeding; and (b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding. (3) For the purposes of this section, a defence or a proceeding or part of a proceeding need not be: (a) hopeless; or (b) bound to fail; for it to have no reasonable prospect of success. 11 Section 31A does not limit any other powers the Court may have: see s 31A(4). 12 As already noted, the respondent also relied on r 26.01(1)(a) of the Rules, which is in the following terms: 26.01 Summary judgment (1) A party may apply to the Court for an order that judgment be given against another party because: (a) the applicant has no reasonable prospect of successfully prosecuting the proceeding or part of the proceeding; or ... 13 After noting in their joint judgment in Spencer v Commonwealth [2010] HCA 28; 241 CLR 118 (Spencer) at [53] that "s 31A departs radically from the basis upon which earlier forms of provision permitting the entry of summary judgment have been understood and administered", Hayne, Crennan, Kiefel and Bell JJ stated at [60]: Rather, full weight must be given to the expression [no reasonable prospect of successfully prosecuting the proceeding] as a whole. The Federal Court may exercise power under s 31A if, and only if, satisfied that there is "no reasonable prospect" of success. Of course, it may readily be accepted that the power to dismiss an action summarily is not to be exercised lightly. But the elucidation of what amounts to "no reasonable prospect" can best proceed in the same way as content has been given, through a succession of decided cases, to other generally expressed statutory phrases, such as the phrase "just and equitable" when it is used to identify a ground for winding up a company. At this point in the development of the understanding of the expression and its application, it is sufficient, but important, to emphasise that the evident legislative purpose revealed by the text of the provision will be defeated if its application is read as confined to cases of a kind which fell within earlier, different, procedural regimes. 14 It has been said that the application of s 31A(2) requires "a practical judgment ... as to whether the applicant has more than a 'fanciful' prospect of success", and that the power that it confers is to be exercised cautiously: Spencer at [24]-[25] (French CJ and Gummow J). 15 There is no hard and fast rule as to when summary judgment is available. Much depends on the case at hand. Nonetheless, generally speaking, summary judgment would appear appropriate when well-established propositions of law deny the party against whom summary judgment is sought a reasonable prospect of success. Summary judgment would appear inappropriate where there are "factual issues capable of being disputed and in dispute": Spencer at [25] (French CJ and Gummow J); and Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd [2008] FCAFC 60; 167 FCR 372 (Jefferson Ford); George v Fletcher (Trustee) [2010] FCAFC 53 at [74]-[76] (Ryan and Logan JJ); Upaid Systems Ltd v Telstra Corporation Limited [2016] FCAFC 158 at [46]-[49] (Perram, Jagot and Beach JJ) (Upaid Systems); Nichol v Discovery Africa Limited [2016] FCAFC 182 (Nichol) at [133]-[142] (Greenwood, McKerracher and Moshinsky JJ); and recently Burge v Commonwealth Bank of Australia (No 3) [2017] FCA 383 at [94] (Foster J). 16 In Upaid Systems at [46]-[49], Perram, Jagot and Beach JJ drew on the previous authorities to summarise the relevant principles as follows: First, a proceeding or claim need not be "hopeless" or "bound to fail" for it to have no reasonable prospect of success (s 31A(3)). Second, s 31A(2) may justify summary dismissal where, inter alia, there is unanswerable or unanswered evidence of a fact fatal to the pleaded case or any permissible modification (Spencer v Commonwealth of Australia (2010) 241 CLR 118 at [22] per French CJ and Gummow J). Third, the exercise of power under s 31A(2) should be used with caution, particularly where complex questions of fact or law are involved. ... Fourth, as was said in Spencer at [59] per Hayne, Crennan, Kiefel and Bell JJ: In many cases where a plaintiff has no reasonable prospect of prosecuting a proceeding, the proceeding could be described (with or without the addition of intensifying epithets like "clearly", "manifestly" or "obviously") as "frivolous", "untenable", "groundless" or "faulty". But none of those expressions (alone or in combination) should be understood as providing a sufficient chart of the metes and bounds of the power given by s 31A. Nor can the content of the word "reasonable", in the phrase "no reasonable prospect", be sufficiently, let alone completely, illuminated by drawing some contrast with what would be a "frivolous", "untenable", "groundless" or "faulty" claim. 17 There are, of course, a variety of circumstances that may attract summary judgment under s 31A of the FCA Act and, on each occasion, the critical question is that set by the statute - has the moving party persuaded the Court that the opposing party has no reasonable prospect of success?

relevant PROVISIONS OF THE Telecommunications (Interception and Access) Act 1979 (cth) 18 As noted above, the applicant's claim against the respondent is based on ss 7(1), 63, 108 and 133 of the TIA Act. The respondent's application for summary judgment depends on these provisions. 19 Sections 7(1) and 63 relate to the "interception" of a communication. Sections 108 and 133 related to "stored communications". It is convenient to consider each pair of provisions in turn.

Section 7(1) and section 63 - interception 20 Section 7(1)(a) of the TIA Act relevantly provides that "[a] person shall not … intercept … a communication passing over a telecommunications system". 21 Section 63(1) provides that: Subject to this Part and section 299, a person shall not, after the commencement of this Part: (a) communicate to another person, make use of, or make a record of; or (b) give in evidence in a proceeding; lawfully intercepted information or information obtained by intercepting a communication in contravention of subsection 7(1). 22 Section 5(1) defines the term "communication" as follows: communication includes conversation and a message, and any part of a conversation or message, whether: (a) in the form of: (i) speech, music or other sounds; (ii) data; (iii) text; (iv) visual images, whether or not animated; or (v) signals; or (b) in any other form or in any combination of forms. 23 As noted above, the respondent accepted, correctly, that an email would fall within this definition. 24 Section 6(1) of the TIA Act provides that: For the purposes of this Act, but subject to this section, interception of a communication passing over a telecommunications system consists of listening to or recording, by any means, such a communication in its passage over that telecommunications system without the knowledge of the person making the communication. (Emphasis added) 25 Section 5F provides: For the purposes of this Act, a communication: (a) is taken to start passing over a telecommunications system when it is sent or transmitted by the person sending the communication; and (b) is taken to continue to pass over the system until it becomes accessible to the intended recipient of the communication. (Emphasis added) 26 Section 5H sets out when a communication is accessible to its intended recipient: (1) For the purposes of this Act, a communication is accessible to its intended recipient if it: (a) has been received by the telecommunications service provided to the intended recipient; or (b) is under the control of the intended recipient; or (c) has been delivered to the telecommunications service provided to the intended recipient. (2) Subsection (1) does not limit the circumstances in which a communication may be taken to be accessible to its intended recipient for the purposes of this Act.

Section 108 and section 133 - stored communications 27 Section 108(1) of the TIA Act provides that: (1) A person commits an offence if: (a) the person: (i) accesses a stored communication; or (ii) authorises, suffers or permits another person to access a stored communication; or (iii) does any act or thing that will enable the person or another person to access a stored communication; and (b) the person does so with the knowledge of neither of the following: (i) the intended recipient of the stored communication; (ii) the person who sent the stored communication. Penalty: Imprisonment for 2 years or 120 penalty units, or both. Note: This section does not prohibit accessing of communications, that are no longer passing over a telecommunications system, from the intended recipient or from a telecommunications device in the possession of the intended recipient. 28 Section 133(1) of the TIA Act provides that: (1) A person commits an offence if: (a) the person: (i) communicates information to another person; or (ii) makes use of information; or (iii) makes a record of information; or (iv) gives information in evidence in a proceeding; and (b) the information is: (i) lawfully accessed information; or (ii) information obtained by accessing a stored communication in contravention of subsection 108(1); or (iia) preservation notice information; or (iii) stored communications warrant information. Penalty: Imprisonment for 2 years or 120 penalty units, or both. 29 Section 5(1) of the TIA Act defines the term "stored communication" as follows: stored communication means a communication that: (a) is not passing over a telecommunications system; and (b) is held on equipment that is operated by, and is in the possession of, a carrier; and (c) cannot be accessed on that equipment, by a person who is not a party to the communication, without the assistance of an employee of the carrier. (Emphasis added) 30 The term "carrier" is relevantly defined in s 5(1) of the TIA Act to be a "carrier" or a "carriage service provider" within the meaning of the Telecommunications Act 1997 (Cth) (Telecommunications Act). The Telecommunications Act defines "carrier" as the holder of a carrier licence that is granted under s 56 of the Act and defines "carriage service provider", relevantly, as a person that "supplies, or proposes to supply, a listed carriage service to the public": see ss 7 and 87(1) of the Telecommunications Act. 31 The phrase "accessing a stored communication" is defined in s 6AA of the TIA Act as follows: For the purposes of this Act, accessing a stored communication consists of listening to, reading or recording such a communication, by means of equipment operated by a carrier, without the knowledge of the intended recipient of the communication. (Emphasis added) 32 In respect of relief, the applicant relies in part on s 165 of the TIA Act, which provides for civil remedies in the case of a contravention of s 108(1).

On interception 33 The applicant bases his claims that the respondent has breached ss 7(1) and 63(1) of the TIA Act on the fact that the respondent accessed the Bigpond email address and thereby obtained emails, documents and other information: see the applicant's statement of claim, paragraphs [5] and [6], the particulars to which refer to paragraphs [17]-[18] and [21]-[23] of the applicant's affidavit. These paragraphs of the applicant's affidavit refer to emails and documents that were annexed to an affidavit sworn and filed by the respondent in a proceeding in the Family Court of Australia and in an Application to Change Assessment filed with the Child Support Agency. 34 The respondent's affidavit does not dispute that she obtained those emails and documents by accessing the Bigpond email address in November 2015. In written submissions filed in support of her interlocutory application for summary judgment, the respondent submitted, however, that "all of the emails (and the documents attached to those emails) which the [r]espondent accessed were 'accessible to [their] intended recipient[s]' within the meaning of s 5H of the TIA Act". Noting that all the emails record the date and time on which they were sent to their intended recipients, the respondent further submitted that it "is to be presumed that those emails were received by those recipients at those times", citing s 161(1)(d) of the Evidence Act 1995 (Cth). I interpolate here that the respondent might have intended to refer at this point to s 161(1)(e) instead of, or in addition to, s 161(1)(d) of that Act. The respondent added: Further, the emails are reproduced in the form of email 'chains', which record emails sent by the Applicant to various persons and responses to the Applicant from those persons. It is clear from the fact that the recipients of those emails responded to them that they were 'accessible' to those recipients. It is also clear that the emails sent to the Applicant were 'accessible' to him by virtue of the fact that they appeared in the inbox of the Bigpond Email, where the Respondent noticed them. 35 The respondent contended that because the emails were "accessible to [their] intended recipient[s]" within the meaning of s 5H of the TIA Act at the time the respondent accessed them, they were not "passing over a telecommunications system" at that time within the meaning of s 5F of the TIA Act. In consequence, so the respondent submitted, they were not "intercepted" by the respondent within the meaning of s 6(1) of the TIA Act; they were not obtained in breach of s 7(1) of the TIA Act; and the prohibition in s 63(1) did not apply. 36 The applicant conceded that the evidence presently before the Court was insufficient to prove breaches of ss 7(1) and 63 of the TIA Act, but submitted that the position might change if the applicant were able to obtain further evidence by way of subpoena or discovery from, for example, the carrier.

On stored communications 37 In relation to the respondent's alleged breaches of ss 108(1) and 133(1) of the TIA Act, the respondent submitted that it was plain that she had not 'accessed' a 'stored communication' within the meaning of s 6AA of the TIA Act and that, accordingly, neither of these provisions was engaged in this case. The respondent drew attention to the fact that the applicant's affidavit alleged only that the emails were accessed by the respondent from the Bigpond email address through what the applicant said was his "I-pad and/or laptop computer" and that the relief that the applicant sought in his originating application was consistent only with this position. 38 As the respondent, in reply, submitted, the factual questions that the applicant identified (see below) did not arise if there had been no "accessing". The respondent contended that the applicant's submissions proceeded on an incorrect reading of the stored communication provisions in the TIA Act. The error, the respondent submitted, was "to read those provisions as applying to the accessing of communications by use of a personal electronic device (such as an iPad), where the use of that device involves a communication with equipment operated by a carrier (such as an email server)". The respondent submitted that the text, context and purpose of the stored communication provisions demonstrated that this interpretation was "manifestly wrong". 39 The applicant submitted that the emails accessed by the respondent "were held on equipment ... operated by, and ... in the possession of, a carrier" (namely Telstra); and that "[t]his fact can be proven by further expert evidence ... [and] can also be reasonably inferred given that the said emails could be accessed by the respondent and by the applicant from different locations" and were "accessed by means of equipment operated by the carrier, without the knowledge of the applicant as the intended recipient". Referring to Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352 and Jefferson Ford, the applicant contended that there were "real issues in dispute which require a factual and evidentiary investigation" before the Court could conclude that the applicant had no reasonable prospect of successfully obtaining relief under s 165 of the TIA Act. 40 In particular, so the applicant submitted, a question arose as to whether "there [has] been access of a stored communication within the meaning of section 6AA". In relation to this question, the applicant purported to provide what he described as "an outline of the expert independent evidence to be obtained from Telstra as the carrier, which, if accepted, will demonstrate that the access has been facilitated by means of equipment operated by a carrier, i.e., the server operated by Telstra" (original emphasis). There were also, so the applicant said, questions as to whether: If access is found to have been made, was it with the consent of the Applicant? Was the Bigpond Email solely used by the [Applicant] or was it a joint email address operated by both the Applicant and the Respondent?

As to interception 41 The Court is satisfied that the applicant has no reasonable prospect of successfully prosecuting the part of the proceeding that claims that there has been a breach of ss 7(1) and 63 of the TIA Act. On the undisputed facts, s 7(1) of the TIA Act cannot apply because the emails that the respondent accessed were not, relevantly, "passing over a telecommunications system" within the meaning of s 5F of the TIA Act at the time they reached the Bigpond email address. I accept that, as the respondent submitted, the emails accessed by her were accessible to the intended recipient (or intended recipients) within the meaning of s 5H of the TIA Act at the time she accessed them and were not then passing over a telecommunications system within the meaning of s 5F of the TIA Act. Since s 7(1) cannot apply, there is no basis on which it can be said that the respondent acted contrary to the prohibition in s 63 of the TIA Act. 42 I am fortified in these conclusions by the decisions of Furnari v Ziegert [2016] FCA 1080 (Furnari v Ziegert) and Violi v Berrivale Orchards Ltd [2000] FCA 797; 99 FCR 580 (Violi v Berrivale Orchards Ltd), to which the respondent referred. 43 In Furnari v Ziegert, in the context of an application for an interlocutory injunction, Murphy J considered an argument that s 7(1) of the TIA Act was contravened in circumstances where a telephone conversation had been recorded at the point at which it was received. His Honour considered that there was not a serious question to be tried as to the alleged breach of s 7(1). His Honour stated (at [24]): [W]hile s 6 states that an interception of a telecommunication can occur "by any means", it must be "in its passage" over the telecommunications system in order to fall within the provisions. Similarly, while the prohibition in s 7(1) is on doing "any act or thing" to intercept or to authorise another person to intercept a telecommunication, it relates only to a communication "passing over" a telecommunication system. In my view the effect of s 5H(1) is that a telephone call that has reached its intended recipient is "accessible" to that person. 44 Murphy J further stated (at [25]): Even if I am wrong in that view, s 5H(2) provides that subs (1) does not limit the circumstances in which a communication may be taken to be accessible to its intended recipient. I find it difficult to see how a telephone call which is received by an intended recipient is not accessible to that person. The evidence, such as it is, points away from an inference that one or other of the respondents intercepted a communication "passing over" the telecommunication service. 45 Murphy J went on (at [26]) to cite with approval the statement of Branson J in Violi v Berrivale Orchards Ltd at [7]-[8] in relation to s 7(1) of the Telecommunications (Interception) Act 1979 (Cth) (as the TIA Act was then titled) that: The Interception Act is of relevance in the circumstances which I am required to consider only if Mr Violi recorded a communication passing over a telecommunications system "in its passage over the telecommunications system" (s 6). As the recording made by Mr Violi of the telephone conversations between him and Mr Pumpa was apparently made by recording sound emitted from the telephone handpiece, it would appear that he did not record "a communication in its passage over [a] telecommunications system" within the meaning of the Interception Act. Rather he recorded a conversation after its passage over a telecommunication system. Nothing in the Interception Act discloses an intention to "cover the field" in the Constitutional sense so far as the recording of telephone conversations is concerned, as opposed to an intention to cover the field so far as telecommunication interception is concerned (cf Miller v Miller (1978) 141 CLR 269). For these reasons I give no further consideration to the Interception Act. 46 As the respondent submitted, these decisions, by analogy, tend to confirm that accessing an email that has been received by the intended recipient cannot be an "interception" within the meaning of s 7(1) of the TIA Act.

As to stored communications 47 The provisions of the TIA Act set out above, in particular the definitions of "stored communications", "carrier" and "accessing a stored communication", make it clear that the applicant has no reasonable prospect of successfully prosecuting the part of his claim that asserts breaches of ss 108 and 133 of the TIA Act. 48 The allegation that the applicant makes in his affidavit is that the emails in question were "accessed by the respondent from the Bigpond email address through my I-pad and/or laptop computer". The relief sought by the applicant in his originating application reflects this allegation. This relief includes injunctions "restraining the [r]espondent from [a]ccessing and/or using any information and/or documents obtained from the [a]pplicant's I-pad, laptop computer and/or any other device". There is, as the respondent submitted and I accept, no suggestion in the applicant's originating application, statement of claim or affidavit that "the emails obtained by the [r]espondent were read or recorded by means of 'equipment operated by a carrier'". As the respondent submitted, the applicant is contending for a construction that "accessing" can take place by means of equipment that is not operated by a carrier, such as an iPad or laptop computer, provided that equipment operated by a carrier supports the process by which such accessing occurs. 49 Section 6AA of the TIA Act (set out above) provides that, for the purposes of the TIA Act, "accessing" a stored communication consists, relevantly, of reading or recording such a communication, by means of equipment operated by a carrier. In other words, as the respondent submitted, the ordinary meaning of s 6AA is that there can be no "accessing" of a stored communication unless the stored communication has been "accessed" directly via equipment operated by the carrier. 50 The Explanatory Memorandum to the Telecommunications (Interception) Amendment Bill 2006 (Cth) (EM) that introduced s 6AA indicates that this was the intended meaning of the provision. The EM relevantly stated (at pp 7-8) that: Item 3 inserts new section 6AA into the Act, which defines the concept of accessing a stored communication to mean listening to, reading or recording a stored communication, by means of equipment operated by a carrier, without the knowledge of the intended recipient. ... The reference to 'by means of equipment operated by a carrier' reinforces the fact that the prohibition on accessing stored communications only relates to accessing these communications via the carrier. (Emphasis added.) 51 Further, as the respondent submitted, the definition of "stored communication" in s 5(1) of the TIA Act requires that the communication be "held on equipment that is operated by, and ... in the possession of, a carrier" and be such that it "cannot be accessed on that equipment, by a person who is not a party to the communication, without the assistance of an employee of the carrier". By virtue of the s 5(1) definition, a "stored communication" is a communication that must be accessed via a carrier, since the assistance of a carrier's employee is required to facilitate that access. This too is confirmed by the EM, which relevantly stated (at p 5) that: ... the communication must be held on equipment operated by the carrier at its premises. This is to ensure that ... the stored communications regime only applies to accessing stored communications via a telecommunications carrier. The regime does not affect existing lawful access to communications stored on a person's telecommunications device. See also the Supplementary Explanatory Memorandum to the Telecommunications (Interception) Amendment Bill 2006 (Cth), p 2 (SEM). 52 The structure and content of Ch 3 of the TIA Act, in which both ss 108 and 133 are found, show that the prohibitions on accessing stored communications in s 108 and dealing with accessed information in s 133 exist within the context of a regime to regulate lawful access to communications held by telecommunication carriers and the subsequent dealing with information obtained from those communications. This is reflected in numerous provisions, including in s 165 (on which the applicant relies in seeking relief), which provides in subs 165(11) that an aggrieved person does not have a right to obtain relief under that section only because of a minor defect or irregularity in the issuing or execution of a warrant. The exceptions to the prohibition in s 108(1), which all relate to activities undertaken in connection with accessing stored communications held by carriers, indicate that the stored communication regime is not intended to regulate access to communications other than via carriers. Similarly, the various permitted dealings with accessed information set out in Division 2 of Part 3-4 provide context to the prohibition in s 133, and indicate that s 133 is directed to prohibiting dealings with accessed information that are not in furtherance of the preservation notice regime established by Part 3-1A or the stored communication warrant regime established by Part 3-3. The prohibitions on accessing stored communications in s 108 and dealing with accessed information in s 133 are not directed to accessing or dealing with information obtained by accessing communications stored on a personal electronic device, such as an iPad or laptop computer. 53 The applicant argued that his claim raises a real question of law - whether the respondent has accessed a stored communication - and that this can only be determined on a "factual and evidentiary investigation". It seems to me, however, that even if the factual allegations made in the applicant's statement of claim and expanded in the applicant's affidavit were established at trial, the respondent would not have accessed a "stored communication" within the meaning of s 108 and therefore could not have breached the prohibition in s 133. This is because these two provisions cannot apply to the conduct about which the applicant complains - namely, the accessing by the respondent of emails sent from and received by the Bigpond email address using a personal electronic device, such as an iPad or laptop computer. 54 It seemed to me that the question of law that the applicant raised was suitable for determination on this summary judgment application: see Kowalski v MMAL Staff Superannuation Fund Pty Ltd [2009] FCAFC 117; 178 FCR 401 at [31]. Once determined, it is clear that the evidence that the applicant seeks to adduce could not assist his case at trial.

COnclusion 55 In the event that the application for summary judgment was successful, the respondent sought her costs of and incidental to the proceeding on an indemnity basis. The applicant, on the other hand, has submitted that it would be appropriate for the Court to receive submissions on costs following the Court's ruling on the respondent's application for summary judgment. In the circumstances, I would afford the parties an opportunity to make submissions on costs after delivery of judgment and these reasons. It would be open to the respondent to rely on the submissions on costs that she has already filed and/or to file fresh submissions. I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny.