Australian Communications and Media Authority v Mobilegate Ltd a Company Incorporated in Hong Kong (No 5)

[2009] FCA 1507

FEDERAL COURT OF AUSTRALIA

Australian Communications and Media Authority v Mobilegate Ltd A Company Incorporated in Hong Kong (No 5) [2009] FCA 1507

Federal Court Rules (Cth) O 35A rr 2(2)(h), 3(2)(c)

AUSTRALIAN COMMUNICATIONS AND MEDIA AUTHORITY v MOBILEGATE LTD A COMPANY INCORPORATED IN HONG KONG, WINNING BID PTY LTD ACN 121 026 793, JOBSPY PTY LTD ACN 112 801 073, SIMON ANTHONY OWEN, TAREK ANDREAS SALCEDO, SCOTT MARK MOLES, GLENN CHRISTOPHER MAUGHAN and SCOTT GREGORY PHILLIPS

QUD 426 of 2008

LOGAN J
30 NOVEMBER 2009
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	QUD 426 of 2008

BETWEEN:

AUSTRALIAN COMMUNICATIONS AND MEDIA AUTHORITY
Applicant

AND:

MOBILEGATE LTD A COMPANY INCORPORATED IN HONG KONG
First Respondent

WINNING BID PTY LTD ACN 121 026 793
Second Respondent

JOBSPY PTY LTD ACN 112 801 073
Third Respondent

SIMON ANTHONY OWEN
Fourth Respondent

TAREK ANDREAS SALCEDO
Fifth Respondent

SCOTT MARK MOLES
Sixth Respondent

GLENN CHRISTOPHER MAUGHAN
Seventh Respondent

SCOTT GREGORY PHILLIPS
Eighth Respondent

JUDGE:	LOGAN J
DATE OF ORDER:	30 NOVEMBER 2009
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.Pursuant to Federal Court Rules O 35A r 3(2)(c), judgment be entered against each of the Third and Sixth Respondents for the relief set out below, by reason of the default of each of the Third and Sixth Respondents in failing to defend the proceeding with due diligence, as referred to in O 35A r 2(2)(h).

THE COURT DECLARES THAT:

1.A declaration that the Third Respondent, by writing the content of short message service (“SMS”) messages and entering it into the computer system used by each of the First Respondent, the Second Respondent and International Machinery Parts Pty Ltd (now deregistered) (“IMP”) to transmit the messages to aggregators:

1.1aided and abetted each of the First and Second Respondents’ contraventions of s 16(1) of the Spam Act 2003 (Cth) (Spam Act) set out in paragraphs 1 to 6 of the declarations made by the Court in these proceedings on 14 August 2009, and thereby engaged in conduct in contravention of s 16(9) of the Spam Act;

and, further,

1.2aided and abetted IMP, whose central management and control was in Australia, to:

1.2.1send SMS messages or cause SMS messages to be sent via 19773366 to Australian mobile telephone numbers, which it had obtained by deception using fabricated dating website profiles, for the purpose of dishonestly obtaining the account holders’ acceptance of its Safe Divert service;

1.2.2send further SMS messages or cause further SMS messages to be sent via 19773366 to Australian mobile telephone account holders who had replied “yes” in circumstances where the company knew that their acceptance of its Safe Divert service had been obtained by deception;

in contravention of s 16(1) of the Spam Act, and thereby engaged in conduct in contravention of s 16(9) of the Spam Act.

2.A declaration that the Sixth Respondent:

2.1aided and abetted; and

2.2was knowingly concerned in and party to:

each of the First and Second Respondents’ contraventions of s 16(1) of the Spam Act 2003 (Cth) (Spam Act) set out in paragraphs 1 to 8 of the declarations made by the Court in these proceedings on 14 August 2009, and thereby engaged in conduct in contravention of s 16(9) of the Spam Act.

3.A declaration that the Sixth Respondent:

3.1aided and abetted IMP, whose central management and control was in Australia, to send SMS messages or cause SMS messages to be sent via 19773366; and

3.2was knowingly concerned in and party to IMP, whose central management and control was in Australia, sending SMS messages or causing SMS messages to be sent via 19773366:

to:

3.3Australian mobile telephone numbers, which its servants or agents had obtained by deception using fabricated dating website profiles, for the purpose of dishonestly obtaining the account holders’ acceptance of its Safe Divert service;

3.4to Australian mobile telephone account holders who had replied “yes” in circumstances where the company knew that their acceptance of its Safe Divert service had been obtained by deception;

3.5in contravention of s 16(1) of the Spam Act, and thereby engaged in conduct in contravention of s 16(9) pf the Spam Act.

4.A declaration that the Third Respondent, by creating and registering the dating website profiles on behalf of the First and Second Respondents, and further, by writing the messages sent to dating website members via the dating websites on behalf of those respondents which represented that they were from the dating website profiles, has aided and abetted each of the First and Second Respondents’ contraventions of s 52 of the Trade Practices Act 1974 (Cth) (Trade Practices Act) set out in paragraph 11 of the declarations made by the Court in these proceedings on 14 August 2009.

5.A declaration that the Third Respondent, by writing the content of the SMS messages sent or caused to be sent by each of the First and Second Respondents, in trade or commerce, to Australian mobile telephone numbers which represented that they written by a dating website member has aided and abetted each of the First and Second Respondents’ contravention of s 52 of the Trade Practices Act set out in paragraphs 12, 13 and 14 of the declarations made by the Court in these proceedings on 14 August 2009.

6.A declaration that the Sixth Respondent:

6.1aided and abetted; and

6.2was knowingly concerned in and party to:

each of the First and Second Respondents’ contraventions of s 52 of the Trade Practices Act set out in paragraphs 11, 12, 13 and 14 of the declarations made by the court in these proceedings on 14 August 2009.

7.        A declaration that the Third Respondent:

7.1by the use of dating website profiles created and registered on dating websites, representing to dating website members that the individuals described in those profiles were members of the respective dating website;

and further,

7.2by communicating with dating websites as those profiles, representing to dating website members that the communication was with the individuals described in those profiles;

on behalf of IMP, when in fact:

7.3the individuals described in the profiles did not exist;

7.4it did not inform the dating website members that it had created the profiles;

7.5 it did not inform the dating website members that their mobile telephone numbers were being obtained for the purpose of collecting mobile telephone numbers of Australian mobile telephone account holders to be recipients of commercial electronic messages via 19773366; and

7.6 any communication between dating website members and the profiles was between it and those members;

aided and abetted IMP to contravene s 52 of the Trade Practices Act.

8.A declaration that the Sixth Respondent:

8.1aided and abetted; and

8.2was knowingly concerned in and party to;

IMP, through its agent, in trade or commerce:

8.3by the use of dating website profiles created and registered on dating websites, representing to dating website members that the individuals described in those profiles were members of the respective dating website;

and further;

8.4by communicating with dating websites as those profiles, representing to dating website members that the communication was with the individuals described in those profiles;

when in fact:

8.5the individuals described in the profiles did not exist;

8.6it did not inform the dating website members that it had created the profiles;

8.7it did not inform the dating website members that their mobile telephone numbers were being obtained for the purpose of collecting mobile telephone numbers of Australian mobile telephone account holders to be recipients of commercial electronic messages via 19773366; and

8.8any communication between dating website members and the profiles was between it and those members;

in contravention of s 52 of the Trade Practices Act.

THE COURT ORDERS THAT:

9.An order that each of the Third and Sixth Respondents, when carrying on a business or, as the case may be, residing in Australia, or in respect of conduct wheresoever undertaken which involves communications directed to persons in Australia or websites accessible by persons in Australia, be restrained, for a period of 7 years, from:

9.1creating, submitting or registering, or causing to be created, submitted, or registered, profiles on dating websites or social networking websites;

9.2posting, or otherwise publishing, or causing to be posted or published, photographs or other images of individuals on any dating websites or social networking websites without first obtaining the written permission of those individuals to do so;

9.3communicating, or causing communications to occur, with users of dating websites or social networking websites on those websites through any fictitious profiles; or

9.4being directly or indirectly knowingly concerned in or party to any corporation, person or other entity engaging in any of the conduct set out in subparagraphs 9.1 to 9.3 above, in circumstances where:

9.4.1that corporation, person or other entity is incorporated in or resides in or carries on business in Australia; or

9.4.2the said conduct of the corporation, person or other entity involves communications directed to persons in Australia, or websites accessible by persons in Australia.

10.An order that each of the Third and Sixth Respondents be restrained, for a period of 7 years, from:

10.1sending or causing to be sent any electronic message from Australia to a mobile telephone number, or to any Australian mobile telephone number, which:

10.1.1falsely represents that an individuals who is a member or user of a dating website or other social networking website wishes to communicate with the account holder of that mobile telephone number ("the account holders"); or

10.1.2falsely purports to be sent from or on behalf of an individual who wishes to communicate with the account holder; or

10.1.3promotes, advertises or offers to supply a good or service unless the account holder gave prior written consent to receive the message, or messages of that nature, and the respondent has been provided with and is in possession of a copy of that consent;

10.2being directly or indirectly knowingly concerned in or party to a corporation, person or other entity engaging in the conduct set out in subparagraph 10.1 above.

11.An order that each of the Third and Sixth Respondents be restrained, for a period of 7 years, in relation to the operation by any person of a fantasy chat service (being a SMS text service between two parties, with one party paying for the service, and the other party sending messages portraying a fictional relationship between them of a sexual or companionship nature), from:

11.1sending or causing to be sent any commercial electronic message from Australia or to any Australian mobile telephone number in relation to that fantasy chat service; or

11.2being directly or indirectly knowingly concerned in or party to any corporation, person or other entity sending or causing to be sent any commercial electronic message from Australia or to any Australian mobile telephone number in relation to that fantasy chat service;

unless the account holder gave prior written consent to receive the message, or messages of that nature, and the respondent has been provided with and is in possession of a copy of that consent.

12.An order that the Third and Sixth Respondents pay the Applicant's costs of an incidental to the proceedings to date, including reserved costs, to be taxed if not agreed.

13.That the matter be listed for hearing as to penalty orders against the Third and Sixth Respondents at 10:15am on 11 December 2009.

14.That the Applicant serve these orders, in the case of the Third Respondent, by delivering a copy to its registered office and, in the case of the Sixth Respondent, by delivering a copy of these orders to the address notified by the Sixth Respondent to the Court, being 52 Doggett Street, Fortitude Valley, Queensland 4006.

15.The applicant is to file and serve upon the Third and Sixth Respondents, at the addresses respectively specified above, on or before 4 December 2009:

15.1An outline of submissions on penalty;

15.2Such further affidavits, if any, upon which it proposes to rely in respect of penalty;

15.3A list of the affidavits already filed in respect of which it proposes to rely in relation to penalty.

16.The Third and Sixth Respondents file and serve upon the applicant on or before 9 December 2009:

16.1An outline of submissions on penalty;

16.2Such affidavits, if any, upon which either proposes to rely in relation to penalty.

17.Liberty to apply.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	QUD 426 of 2008

BETWEEN:

AUSTRALIAN COMMUNICATIONS AND MEDIA AUTHORITY
Applicant

AND:

MOBILEGATE LTD A COMPANY INCORPORATED IN HONG KONG
First Respondent

WINNING BID PTY LTD ACN 121 026 793
Second Respondent

JOBSPY PTY LTD ACN 112 801 073
Third Respondent

SIMON ANTHONY OWEN
Fourth Respondent

TAREK ANDREAS SALCEDO
Fifth Respondent

SCOTT MARK MOLES
Sixth Respondent

GLENN CHRISTOPHER MAUGHAN
Seventh Respondent

SCOTT GREGORY PHILLIPS
Eighth Respondent

JUDGE:	LOGAN J
DATE:	30 NOVEMBER 2009
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. In light of the events which transpired this morning, and which are recorded on transcript in relation to the disposition of Mr Moles as Sixth Respondent to terminate the retainer of his lawyer, and also not personally to conduct a defence, and in light of the termination of the retainer of Jobspy Pty Ltd and the absence of any disposition by, or on behalf of, that company to seek further to prosecute its defence, I am satisfied that the event of default described in O 35A r 2(2)(h) is made out, in that there has been a failure to defend the proceeding on the part of each of those respondents with due diligence, and that thereby, there is power enlivened under O 35A r 3(2)(c) to enter default judgment for such relief as the Applicant appears entitled on the statement of claim, and which I am satisfied that I have power to grant.

2. In that regard, a draft order has been tendered.  It is materially in terms of default judgments which I have given in respect of other Respondents earlier this year.  I am satisfied that the Applicant is entitled to the relief set out in this draft on the basis of the statement of claim, and that I have power to grant that relief.  I therefore make orders in terms of the amended draft that I have signed and placed with today’s papers.  I propose, additionally, to make directions in respect of the penalty hearing referred to in the draft. 

I certify that the preceding two (2) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.

Associate:

Dated:       11 December 2009

Counsel for the Applicant:	Ms M Brennan
Solicitor for the Applicant:	Australian Government Solicitor
Counsel for the Eighth Respondent:	Mr C Conley
Solicitor for the Eighth Respondent:	Morgan Conley Solicitors

Date of Hearing:	30 November 2009
Date of Judgment:	30 November 2009