Pennytel Australia Pty Limited v Engelke, in the matter of Pennytel Australia Pty Limited

1. NOTES that production by VNP Solutions Pty Ltd with subpoena dated 20 November 2024 has now been complied with. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

NEEDHAM J: 1 In these proceedings, the Court issued a subpoena at the request of the plaintiff on 20 November 2024 addressed to VPN Solutions Pty Limited, a fully owned subsidiary of Aussie Broadband Limited. The subpoena sought production of documents held by VPN Solutions. The documents were sought in order to determine the extent of access through an IP address by a named person, one of the defendants in these proceedings, and by a specified user number. 2 The subpoena included further categories which sought the domain names, the locations, and any documents or connections in relation to the access through that IP address or through that user number. 3 As was discussed by Cheeseman J in Knight Watch Security Proprietary Limited v Aussie Broadband Limited [2023] FCA 344, the Telecommunications (Interception and Access) Act 1979 (Cth) (the Act) requires internet providers such as VPN Solutions to retain a specific list of communications data, some of which was sought in relation to this subpoena. 4 There are restrictions on the production of such data and s 280 provides an exception for disclosure where such data is sought under a subpoena, and where the conditions under section 280(1B)(b) and (c) are met. It is not necessary in these reasons to go through whether the documents meet those restrictions, as I note that it is not an issue between the parties that they do. 5 On receiving the subpoena, the solicitor for VPN Solutions wrote a letter ostensibly in response. That letter noted the provisions of the Act and objected to production on the basis that "Aussie Broadband is prohibited by law from providing the information requested in paragraphs 1, 2, 3, 4(a), 4(d), 4(e) and 4(f) which relates to the IP address" then citing the user number, and the first defendant's account. The letter did not set out in any specific way what documents were held by VPN Solutions in response to the subpoena. 6 This letter was sent to the Registry where unfortunately, it was apparently treated as a production in response to the subpoena. 7 That treatment of the letter as a response to the subpoena has had the unfortunate effect of delaying and extending the otherwise simple process of production and objection which should have taken place, as the parties considered that the letter was a production in response to the subpoena, and VPN Solutions considered that it had met its obligations. In fact, a solicitor for VPN Solutions confirmed by email with the Registry whether they needed to appear before me on 2 December, the first day of the hearing, when the subpoena had been stood over to me for determination of whether the parties could have access. On requesting confirmation of whether attendance was required, on the basis that the Registry was under the mistaken view that production had been made, the solicitor for VPN Solutions was told that no attendance was required. 8 After the proceedings commenced, and after some argument as to production under s 280 of the Act, it became clear that only the objection letter had been provided to the Registry. Accordingly, I made an order noting that I would regard the letter as an application to have the subpoena set aside, and requested that the solicitor handling the matter appear before me on 3 December 2024. She did so, represented by Mr Robert Turnbull of counsel, and produced some documents, the first of three tranches of documents in response to the subpoena. 9 Full compliance with the subpoena has now been made, but it has taken three appearances by counsel for VPN Solutions and for the solicitor to do so, as a search for the documents responding the subpoena only commenced after my order was provided to VPN Solutions. The search was also compromised by some typographical errors in the subpoena, and a later reduction in the timeframe of documents sought. 10 I should briefly note the proper way in which objections to production should be made. Rule 24.17(4) of the Federal Court Rules 2011 (Cth) provides that: (4) The addressee must comply with the subpoena to produce by: (a) attending at the date, time and place specified for production and producing the subpoena or a copy of it and the document or thing to the court or to the person authorised to take evidence in the proceeding as permitted by the court; or (b) delivering or sending the subpoena or a copy of it and the document or thing to a registrar at the address specified for the purpose in the subpoena, or, if more than one address is specified, at any of those addresses, so that they are received not less than 2 clear business days before the date specified in the subpoena for attendance and production. 11 This approach is underlined by provisions of "Subpoenas and Notices to Produce Practice Note (GPN-SUBP)". Clause 6.9 of the Practice Note provides that "Production of documents ... is ordinarily done in one of two ways", and then sets out in two dot points the requirement for attendance or delivery of documents as specified in r 24.17(4). Part 7 of that Practice Note sets out the process to set aside, or to object to a subpoena (citations omitted): 7.1 Applications to set aside a subpoena or seeking other relief in respect of a subpoena may be heard by the judge or by a registrar. Such applications are required to be made on notice to the issuing party and the Court may order that the person making the application give notice of the application to any other party or to any other person having a sufficient interest. 7.2 A fee is not payable in the Federal Court in respect of an application to set aside a subpoena. Objections to Production or Inspection of Documents 7.3 An objection may be dealt with at the return of subpoena hearing and/or may be listed for hearing at another time considered appropriate by the Court. 7.4 A person objecting to the production of documents arising from a subpoena (the "objector") must never do so frivolously and, wherever practicable, should address the issues the subject of the objection with the issuing party prior to the return of the subpoena in an endeavour to resolve the issues in question. 7.5 Usually, the objector is the addressee. Where that is the case, the objector should notify the Court and the issuing party about the objection as follows: (a) the objector should set out the nature and grounds of the objection in a letter to the Court ("Objection Letter") together with any documents being produced (see paragraph 6.11 of this practice note; (b) the Objection Letter should not merely raise blanket objections. It should concisely state the grounds for the objection, but with sufficient explanation or information to allow for the grounds to be clearly understood. It should also clarify whether the objection relates to all or part of the documents the subject of the subpoena and, if the objection extends to inspection of documents, clarify which parties the objection to inspection extends to and why; (c) on production, documents that are the subject of an objection (eg. documents over which legal professional privilege is claimed) should be produced in a sealed envelope or package that is conspicuously marked with a note clarifying the nature of the documents contained within (eg. "privileged documents") and be accompanied by a descriptive schedule of the documents the subject of the objection ("Objection Schedule"); (d) the Objection Schedule must sufficiently describe each document that is the subject of the objection, including providing the following information, where applicable: (i) the type and form of the document (eg. email, letter or file note); (ii) the date and time of the document; (iii) if correspondence, the author of the document and the recipients; (iv) any other descriptor necessary to enable the Court and the issuing party to understand the nature of the document; (v) the basis of the objection (eg. legal professional privilege). 7.6 Where the objector is someone other than the addressee, the objector should: (a) consider whether any other person or party should be notified of the objection, including the addressee; (b) to the extent applicable, follow the procedure set out above (for objectors who are addressees) including the use of an Objection Letter; and (c) make the objection notifications as soon as practicable or, if time does not permit prior notice, by raising the objection at the return of the subpoena. When making the notification to the Court, if the objector is unable to eLodge the Objection Letter, the objector should email the Objection Letter to the presiding judge's / registrar's chambers. 12 The letter from VPN Solutions to the Registry did not seek to set aside the subpoena. Instead it purported to act as an objection to production. It is not clear whether the matters raised in the Objection Letter were first raised with the plaintiff, who issued the subpoena. Paragraphs 7.4, 7.5 and 7.6 of the Practice Note make it clear that even where an Objection Letter is provided to the court it should be done "together with any documents being produced. See paragraph 6.11 of this Practice Note". 13 Paragraph 6.11 of the Practice Note provides: 6.11 When complying with a subpoena an addressee should, subject to appropriate objections (see Part 7 of this practice note), not only produce any documents required to be produced by the subpoena but also provide the Court with the following: (a) a copy of the relevant subpoena; (b) the Form 44 notice and declaration (which was attached to the subpoena when served) fully completed by the addressee; and (c) a cover letter that clarifies whether the subpoena has been fully complied with and clarifies any objections raised (see further Part 7 of this practice note). 14 It's clear that while a number of things have gone awry, resulting in this subpoena issue needing to take up court time rather than being resolved before a Registrar or before me at the start of the hearing, that does not excuse a solicitor from the requirement either to seek to set aside the subpoena, or to produce any documents along with an objection letter, specifying the matters required to be identified by paragraph 7.5(d) of the Practice Note.. 15 As I say, the matter has now, on the fourth day of the hearing, been sorted out by production and access being granted to the active defendants in the first instance in order to ascertain any issues with the production, but I have given these short reasons to assist the profession in the proper way in which to object to production of documents under subpoena. 16 The only order I will make is to note that production has now been complied with. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Needham.