Australian Communications and Media Authority v Mobilegate Ltd A Company Incorporated in Hong Kong (No 8) - [2010] FCA 1197

FEDERAL COURT OF AUSTRALIA
Australian Communications and Media Authority v Mobilegate Ltd A Company Incorporated in Hong Kong (No 8) [2010] FCA 1197

Citation: Australian Communications and Media Authority v Mobilegate Ltd A Company Incorporated in Hong Kong (No 8) [2010] FCA 1197

Parties: 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

File number: QUD 426 of 2008

Judge: LOGAN J

Date of judgment: 5 November 2010

Catchwords:
COMMUNICATIONS LAW – Unsolicited electronic messages sent – Use of premium short-code service to send unsolicited messages – Whether natural person was a person who aided, abetted, counselled or procured the contraventions by corporate entities – Where respondent had knowledge of material facts of the contravention – Spam Act 2003 (Cth), s 16 – Consideration of principles relevant to accessorial liability.

Held: Respondent was knowingly involved in the contraventions of the Spam Act 2003 (Cth).

TRADE PRACTICES – Misleading or deceptive conduct – Use of premium short-code service to send unsolicited electronic messages – Use of fabricated dating profiles to mislead customers into communicating through electronic messages via the premium short code – Whether respondent had aided, abetted, counselled or procured the contraventions of the Trade Practices Act 1974 (Cth), s 52 in accordance with s 75B.

Held: Respondent was knowingly involved in the contraventions of the Trade Practices Act 1974 (Cth).

EVIDENCE – Witnesses – Witness called by applicant without prior signed statement – Where witnesses testimony not all favourable – Whether tendering of his oral evidence by applicant meant that all of witness’ evidence must be treated as credible – Whether counsel may lead evidence contradicting the evidence given by the witness – Consideration of Kabadanis v Panagiotu (1979) 47 FLR 221.

Held: Counsel not precluded from leading evidence contrary to evidence given by witness.

Legislation: Evidence Act 1995 (Cth) ss 38, 59, 71, 140, 161
Spam Act 2003 (Cth) ss 6, 16
Trade Practices Act 1974 (Cth) s 52
Public Trustee Act 1978 (Qld) s 91

Cases cited:
Ashbury v Reid [1961] WAR 49 considered
Australian Competition & Consumer Commission v Australian Safeway Stores Pty Ltd (2003) 129 FCR 339 cited
Australian Competition and Consumer Commission v Black on White Pty Ltd (2001) 110 FCR 1 cited
Briginshaw v Briginshaw (1938) 60 CLR 338 applied
Chamberlain v The Queen (No 2) (1984) 153 CLR 521 considered
Edwards v The Queen (1993) 178 CLR 193 applied
Giorgianni v The Queen (1985) 156 CLR 473 applied
Given v Pryor (1979) 39 FLR 437 cited
Kabadanis v Panagiotu (1979) 47 FLR 221 approved
Mallan v Lee (1949) 80 CLR 198 followed
Medical Benefits Fund of Australia Ltd v Cassidy (2003) 135 FCR 1 followed
R v Russell [1933] VLR 59 considered
R v Tannous (1987) 10 NSWLR 303 cited
Richards v Morgan (1863) 4 B & S 641 considered
Rural Press Ltd vAustralian Competition and Consumer Commission (2003) 216 CLR 53 considered
Shepherd v The Queen (1990) 170 CLR 573 distinguished
The Heating Centre Pty Ltd v Trade Practices Commission (1986) 9 FCR 153 distinguished
The King v Goldie; ex parte Picklum (1937) 59 CLR 254 followed
Trade Practices Commission v Australian Meat Holdings Pty Ltd (1988) 83 ALR 299 distinguished
Transport Industries Insurance Co Ltd v Longmuir [1997] 1 VR 125 considered
Yorke v Lucas (1985) 158 CLR 661 applied

Heydon, JD Cross on Evidence (7th Australian Ed, LexisNexis Butterworths, 2004)
Heydon, JD Cross on Evidence (8th Australian Ed, LexisNexis Butterworths, 2010)

Dates of hearing: 30 November 2009 – 1 December 2009
7 – 8 December 2009
8 February 2010 – 12 February 2010

Place: Brisbane

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 180

30 November 2009 – 1 December 2009 and 7 December 2009

Counsel for the Applicant: Mr S Couper QC with 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

8 December 2009 and 8 February 2010 – 12 February 2010

Counsel for the Applicant: Mr S Couper QC with Ms M Brennan

Solicitor for the Applicant: Australian Government Solicitor

Counsel for the Eighth Respondent: Mr T Laing

Solicitor for the Eighth Respondent: Morgan Conley Solicitors

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:

5 NOVEMBER 2010

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:
1.The Applicant bring in proposed short minutes of orders to give effect to these reasons for judgment.
2.The proceeding be adjourned to a date to be fixed for the hearing of submissions and the determination of questions as to forms of relief, penalty and costs.
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 Federal Law Search 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:

5 NOVEMBER 2010

PLACE:

BRISBANE

REASONS FOR JUDGMENT

Mr Scott Gregory Phillips is the Eighth Respondent in this proceeding. As against him, the Australian Communications and Media Authority (the Authority) seeks the following relief:
A. A declaration that he:
i.aided and abetted International Machinery Parts Pty Ltd (IMP), whose central management and control was in Australia, to send SMS messages or to cause SMS messages to be sent via 1977 3366; and
ii.was knowingly concerned in, and a party to, IMP, whose central management and control was in Australia, sending SMS messages or causing SMS messages to be sent via 1977 3366:
to:
(a)Australian mobile telephone numbers, which its servants or agents had obtained by deception using fabricated dating website profiles for the purposes of dishonestly obtaining the account holder’s acceptance of its safe divert service; or
(b)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 2003 (Cth) (Spam Act) and thereby engaged in conduct in contravention of s 16(9) of the Spam Act.
B.The imposition of pecuniary penalties for the alleged contravention of the Spam Act
C.Injunctive relief in addition and in the way foreshadowed in the application.
D.In the event of contraventions being found and in the event of my being satisfied that another person or persons have suffered loss or damage as a result of the alleged contraventions. (compensatory orders)
The Authority alleges that Mr Phillips’ involvement in the contraventions of the Spam Act 2003 (Cth) (Spam Act) and of the Trade Practices Act 1974 (Cth) (Trade Practices Act) occurred between December 2005 and, by an amendment made on behalf of the Authority at the commencement of the trial, 9 April 2006.
This judgment addresses the initial question of whether the Authority has made out any or all of the statutory contraventions alleged? Whether it is later necessary separately to consider the questions of penalty and the other relief sought will depend on the answer to this initial question.
Section 16 of the Spam Act provides:
Unsolicited commercial electronic messages must not be sent
(1)A person must not send, or cause to be sent, a commercial electronic message that:
(a)       has an Australian link; and
(b)       is not a designated commercial electronic message.
Note 1: For Australian link, see section 7.
Note 2: For designated commercial electronic message , see Schedule 1.
(2)Subsection (1) does not apply if the relevant electronic account-holder consented to the sending of the message.
Note: For the meaning of consent, see Schedule 2.
(3)       Subsection (1) does not apply if the person:
(a)       did not know; and
(b)       could not, with reasonable diligence, have ascertained;
that the message had an Australian link.
(4)Subsection (1) does not apply if the person sent the message, or caused the message to be sent, by mistake.
(5)A person who wishes to rely on subsection (2), (3) or (4) bears an evidential burden in relation to that matter.
Message must not be sent to a non-existent electronic address
(6)A person must not send, or cause to be sent, a commercial electronic message to a non-existent electronic address if:
(a)the person did not have reason to believe that the electronic address existed; and
(b)       the electronic message:
(i)        has an Australian link; and
(ii)       is not a designated commercial electronic message.
(7)       Subsection (6) does not apply if the person:
(a)       did not know; and
(b)       could not, with reasonable diligence, have ascertained;
that the message had an Australian link.
(8)A person who wishes to rely on subsection (7) bears an evidential burden in relation to that matter.
Ancillary contraventions
(9)       A person must not:
(a)aid, abet, counsel or procure a contravention of subsection (1) or (6); or
(b)induce, whether by threats or promises or otherwise, a contravention of subsection (1) or (6); or
(c)be in any way, directly or indirectly, knowingly concerned in, or party to, a contravention of subsection (1) or (6); or
(d)       conspire with others to effect a contravention of subsection (1) or (6).
(10)A person does not contravene subsection (9) merely because the person supplies a carriage service that enables an electronic message to be sent.
Civil penalty provisions
(11)     Subsections (1), (6) and (9) are civil penalty provisions.
Note: Part 4 provides for pecuniary penalties for breaches of civil penalty provisions.
What constitutes a “commercial electronic message” for the purposes of the Spam Act is defined by s 6 of that Act. It is not necessary to set out that definition. It was not controversial in this case that the messages concerned fell within its terms. On the evidence, the absence of controversy as to the correct characterisation of the messages was not misplaced.
Certain of the subsections within s 16 provide for exceptions to the primary obligation created by s 16(1). In respect of these exceptions, an “evidential burden” is cast upon a person wishing to rely upon them. It is not necessary to consider the ramifications of such a provision as Mr Phillips did not seek to rely upon any such exception.
Mr Phillips’ personal liability was said to arise by virtue of the operation of the ancillary liability provision in s 16 of the Spam Act, s 16(9).
Apart from alleging contraventions of the Spam Act the Authority also alleges that Mr Phillips aided, abetted or was knowingly concerned in and a party to a corporate contravention of s 52 of the Trade Practices Act by IMP, by its agent the Third Respondent, Jobspy Pty Ltd (Jobspy). The essence of that alleged corporate contravention is akin to the one which grounds the alleged corporate contravention of the Spam Act in the sense that it centres around the allegation of using fake dating website profiles and the absence of any informing of the viewers of those website profiles that they were fake. Again, Mr Phillips’ personal liability is alleged to arise by virtue of the operation of an ancillary liability provision, in this instance s 75B of the Trade Practices Act. Injunctive relief, as well as declaratory relief, is sought in relation to the Trade Practices Act alleged contravention. Though it may ground the granting of declaratory and injunctive relief, a contravention of s 52, does not carry with it a liability to any pecuniary penalty.
Mr Phillips contested the allegations that he was a party to contraventions of the Spam Act and the Trade Practices Act. He made certain limited admissions (of which more later). It is for the Authority to prove its allegations, albeit on the balance of probabilities. Because the alleged Spam Act contraventions are penal in character that onus will not be discharged by “inexact proofs, indefinite testimony, or indirect inferences”: Briginshaw v Briginshaw (1938) 60 CLR 336 (Briginshaw) at 362 per Dixon J (as his Honour then was); and s 140(2), Evidence Act 1995 (Cth). In this context, the following observation made by Heerey and Sackville JJ in Australian Competition & Consumer Commission v Australian Safeway Stores Pty Ltd (2003) 129 FCR 339 at 438 is also apposite:
[The] so-called Briginshaw standard … requires the trier of fact, in determining what inferences to draw from the primary facts, to have regard to the seriousness of the allegations and the gravity of the consequences flowing from an adverse finding. But Briginshaw does not require a court to exclude all alternative possibilities before drawing an inference from the primary facts adverse to one of the parties. The question is whether the Court is reasonably satisfied that the fact in issue has been established, having regard to “the nature and consequences of the fact or facts to be proved”: Briginshaw, per Dixon J. In this connection, the Court must take into account not only the seriousness of the allegation made and the gravity of the consequences of an adverse finding, but “the inherent unlikelihood of an occurrence of a given description”: Briginshaw.
[Citations omitted]
Even though the alleged contraventions of the Trade Practices Act do not carry with them a potential liability to the imposition of pecuniary penalties, those allegations by their very nature are serious. To find them proved would visit upon Mr Phillips not just amenability to declaratory and injunctive relief but also a degree of moral opprobrium. Because of this, I intend to approach the question of whether the Trade Practices Act allegations are proved in the same way as I approach the proof of allegations arising under the Spam Act. Indeed, I consider that, in the circumstances of this case, it would be quite artificial to approach those questions otherwise.
It was put on behalf of Mr Phillips that the adoption of the Briginshaw approach to satisfaction of the civil standard of proof in respect of the alleged Trade Practices Act contraventions was supported by observations made by Pincus J, Lockhart and Wilcox JJ agreeing, in The Heating Centre Pty Ltd v Trade Practices Commission (1986) 9 FCR 153 (The Heating Centre) at 160. It is true that one there finds reference by his Honour to the applicability of the civil standard of proof but with due regard to Briginshaw but this reference is made in the context of a suit for a pecuniary penalty in respect of a contravention of Part IV of the Trade Practices Act and a rejection of a submission that proof beyond reasonable doubt was required in such a case. Section 52 lies within Pt V, not Pt IV, of the Trade Practices Act and, unlike a contravention of a provision in Pt IV, a contravention of s 52 carries with it no liability to a pecuniary penalty. The Heating Centre is therefore distinguishable. Further, it is not the case that every alleged contravention of s 52 carries with it even a need to take into account what was said in Briginshaw as to the civil standard of proof. Neither s 140(2) of the Evidence Act nor even anything stated in Briginshaw requires that. It is just that in this case there is a coincidence of conduct giving rise to alleged contraventions of a pecuniary penalty provision in the Spam Act and alleged contraventions of s 52 of the Trade Practices Act the circumstances of which are such that, for the reasons given in the preceding paragraph, statute (as found in s 140(2) of the Evidence Act), common law principle (as set out in Briginshaw) and, if it be any different, practicality dictate that, while it is the civil standard which is applicable, due regard must be had to the gravity of the allegations made in this case when considering the ultimate issue of whether Mr Phillips was a party to the alleged corporate contraventions is proved.
Another submission made on behalf of Mr Phillips in relation to the standard of proof took as its starting point an observation made by Dawson J in Shepherd v The Queen (1990) 170 CLR 573 (Shepherd) at 578 in relation to a customary direction to a jury with respect to a prosecution case which relied upon circumstantial evidence, “guilt should not only be a rational inference but should be the only rational inference which can be drawn from the circumstances”. This observation, it was submitted, was just as much applicable to a civil case based on circumstantial evidence. It is true to say that any conclusion as to his ancillary liability is, on the Authority’s case, ultimately a matter for inferences to be drawn in the circumstances on the whole of the evidence. If though by the submission it was intended to suggest that, because there was a circumstantial element in the Authority’s case, proof beyond reasonable doubt was required, that would be incorrect. Rather, the position in relation to a case which depends on circumstantial evidence is as stated by Gibbs CJ and Mason J in Chamberlain v The Queen (No 2) (1984) 153 CLR 521 (Chamberlain No 2), at 536:
It follows from what we have said that the jury should decide whether they accept the evidence of a particular fact, not by considering the evidence directly relating to that fact in isolation, but in the light of the whole evidence, and that they can draw an inference of guilt from a combination of facts, none of which viewed alone would support that inference. Nevertheless the jury cannot view a fact as a basis for an inference of guilt unless at the end of the day they are satisfied of the existence of that fact beyond reasonable doubt. When the evidence is circumstantial, the jury, whether in a civil or in a criminal case, are required to draw an inference from the circumstances of the case; in a civil case the circumstances must raise a more probable inference in favour of what is alleged, and in a criminal case the circumstances must exclude any reasonable hypothesis consistent with innocence …
[Emphasis added]
Referring to this passage from Chamberlain No 2 and to the further explanation given by Dawson J in Shepherd (at 580-581) as to cases based on circumstantial evidence, Winneke P in Transport Industries Insurance Co Ltd v Longmuir [1997] 1 VR 125, at 129 stated that they “apply with equal force to the process of reasoning which must be engaged in by a judicial officer when trying a case based on circumstantial evidence” and later (ibid):
The task of the learned judge was to consider the weight of the combination of facts proved to his satisfaction and then to determine whether the combined weight of those facts and circumstances supported the inference, as a matter of probability [in that case that the insured deliberately lit the fire which damaged his house such that the insurer was entitled to refuse indemnity] … The onus of proof is only to be applied at the final stage of the reasoning process. It is, erroneous to divide the process into stages and, at each stage, apply some particular standard of proof.

In this case, I have to decide, not piecemeal but on the whole of the evidence and at the “final stage”, whether the Authority has proved, on the balance of probabilities and paying due regard to the gravity of the allegations made by it, that Mr Phillips was a party to the corporate statutory contraventions which are alleged. To do otherwise would be to engage in a false process of reasoning. That is not, of course, to say that individual items of evidence need not be considered in detail and their significance highlighted but the task is to consider whether the case is proved to the requisite standard by the sum of the whole of the evidentiary parts, with all or any of the interactions between those parts, not whether individual parts are proved to that standard.
As already noted, Mr Phillips’ liability is, in each instance, said to arise by virtue of the operation of an ancillary liability provision in circumstances giving rise to an alleged corporate contravention. There is no difference as between the Spam Act and the Trade Practices Act with respect to the operation of their respective ancillary liability provisions. It is for the Authority to show that Mr Phillips has been an intentional participant in the alleged corporate contraventions, “the necessary intent being based upon knowledge of the essential elements of the contravention”: Yorke v Lucas (1985) 158 CLR 661 at 670. It will be necessary later to consider in greater detail what is entailed in the proof of the ancillary liability alleged.
There are some further, but fundamental, matters which should be recorded at the outset. Trite though the statement may be, whether the Authority has proved its case is to be judged solely by reference to the evidence led in this case which is relevant to the allegations made against Mr Phillips, not by echoes from evidence and outcomes in respect of other respondents. The latter are but irrelevant distractions in relation to Mr Phillips’ alleged liability. To succeed in showing that Mr Phillips was a party to the corporate contraventions it alleges the Authority must in this case prove those underlying corporate contraventions as well as his ancillary liability: The King v Goldie; ex parte Picklum (1937) 59 CLR 254 at 268; Mallan v Lee (1949) 80 CLR 198 at 210. Such matters are especially important to recall because the affidavits read for the Authority were prepared and filed in anticipation of a broader contest not limited to Mr Phillips as a respondent contradictor. In the events which transpired, the delay and expense entailed in requiring the Authority to file its affidavits afresh would not have been warranted and this course was not promoted on behalf of Mr Phillips. That has meant that, save insofar as it goes to prove a corporate contravention to which Mr Phillips is alleged to have been a party during the period now in question, references in these affidavits to other respondents or to later periods are not relevant. I make these considerations explicit out of an abundance of caution and solely for the reason that it has fallen to me as docket judge separately to deal with the Authority’s case against the other respondents. In fairness to the Authority, it did not submit that outcomes in respect of the other respondents were relevant to the case it sought to make against Mr Phillips.
THE RISE OF IMP
IMP was incorporated on 7 July 2004. The circumstances of its incorporation were singular. They also have a wider importance in terms of the ancillary liability case which the Authority seeks to make against Mr Phillips.
In July 2004 Mr Phillips faced the contingency of future imprisonment for a period of some years. Details of the charges he faced were not in evidence. It was not submitted that I should form any adverse opinion as to Mr Phillips’ character or credibility based on the fact that he later came to be convicted and imprisoned in respect of some of these unspecified charges. I make it clear that I draw no adverse inference at all on this basis against Mr Phillips. As will be seen, the relevance of these matters lies only in the influence which they had on the course of events in relation to Mr Phillips’ business interests.
Mr Phillips was then living at an address on Mount Nebo Road (Lot 4). Lot 4 and an immediately adjoining parcel of land, Lot 3, were each part of the same re-subdivision. Each bore the same street address, save that, at least informally, Lot 3 sometimes carried an “A” designator after the street number. The two lots shared a common driveway and mailbox. Lot 3 and Lot 4 were each then owned by Rural Traders Pty Ltd (Rural Traders) in its capacity as trustee of the Rural Traders Trust (RT Trust).
Mr Phillips was then the sole director and shareholder of Rural Traders. He was also the “primary beneficiary” of the RT Trust. That trust was a discretionary trust such that the income derived by the trustee in a given year of income did not, except in default of a determination by the trustee, vest in him as primary beneficiary.
From about 2003 Mr Conley, then a solicitor and a member of the firm Morgan Conley but more latterly a member of the Bar, had close social and business relations with Mr Phillips. Mr Conley related in evidence (and I accept) that, being aware of the contingency of imprisonment which Mr Phillips faced and of the possibility that, as a result, Mr Phillips’ assets might fall to be managed by the Public Trustee, he gave advice to Mr Phillips (upon which Mr Phillips acted) as to how this management might be avoided and how he might retain control of his affairs.
I understood this reference to the possibility of the management of Mr Phillips’ assets by the Public Trustee to be a reference to a prospective operation of Pt 7 of the Public Trustee Act 1978 (Qld) (Public Trustee Act). Then, as now, that Part of the Public Trustee Act applies, inter alia, to a prisoner who, after conviction of any indictable offence, is undergoing a sentence of imprisonment for at least a term of 3 years or upwards (or which in conjunction with others aggregate to such a term). Except as that Part otherwise provides (a subject presently unnecessary to explore), the effect of s 91 of the Public Trustee Act is that the Public Trustee, without further or other order or authority, becomes the manager of the estate of every prisoner to whom Pt 7 applies.
The advice which Mr Conley gave to Mr Phillips was to replace Rural Traders as trustee of the RT Trust with a different corporate trustee the shares in which should be held by a trusted friend of Mr Phillips, Ms Lichelle Lee, with that shareholding in turn being beneficially held by her. That replacement corporate trustee was IMP. Mr Phillips was asked about Ms Lee’s role as director of IMP. He stated that he had a close relationship of trust with Ms Lee and her, since deceased husband, the late Mr Michael Lee, who were well aware in mid-2004 of the prospect of his being imprisoned. Ms Lee had, in effect, volunteered to be a director of IMP with their relationship being such that there was no need to give her explicit instructions about looking after his interests in the management of IMP. When asked whether it was his expectation that Ms Lee would not do something without his express say so, Mr Phillips’ ready response was, “[e]xactly”. I find that Ms Lee held the shares in IMP on behalf of Mr Phillips.
In this fashion, and so I find Mr Conley advised Mr Phillips, he was removed, at least on the public record, from apparent ownership and control of the trustee of the RT Trust. Further, a degree of protection from the possibility that, contrary to expectations held by Mr Phillips and Mr Conley, Ms Lee might act in her own interests, rather than those of Mr Phillips, was provided by her not owning the shares in the new corporate trustee outright.
The advice which Mr Conley gave to Mr Phillips in July 2004 coincided with that given to him at that time by another solicitor, Mr Salvatore (Sam) Sciacca, whose evidence in this regard I also accept. Mr Sciacca, too, was aware in July 2004 of the contingency of Mr Phillips being liable to imprisonment.
Mr Sciacca had known Mr Phillips for longer than Mr Conley, since about 1997. His then firm had acted for Mr Phillips and the purchasing entity, Rural Traders in relation to the purchase of Lot 3 and Lot 4. Mr Sciacca placed that purchase from recollection as having occurred in 1999. Historical title searches in respect of Lot 3 and Lot 4 confirm the accuracy of Mr Sciacca’s recollection in respect of Lot 3. They also indicate that the acquisition of Lot 4 by Rural Traders as trustee occurred in 2001. Nothing turns on this difference.
Though Mr Conley did have a business association with Mr Phillips via a company, 3 Point Finance Pty Ltd (later known as Velocity 10 Pty Ltd), it was Mr Sciacca who was Mr Phillips’ longstanding commercial law adviser. The advice which Mr Conley gave to Mr Phillips in July 2004, though seriously given and received, seems nonetheless to have been more informally given than that of Mr Sciacca.
That Mr Phillips was able to replace the trustee of the RT Trust was a result of his status under the terms of the deed governing that trust as its “Principal”. Under that deed, the power of removal and replacement of the trustee was vested in the “Principal” (see clause 9.3, the definition of “Principal” in clause 1.10 and the Schedule).
In the result, it was Mr Conley’s then firm which caused the incorporation of IMP but otherwise it was Mr Sciacca’s firm which, on Mr Phillips’ instructions, carried into effect the advice given to him. To this end, Mr Sciacca’s firm caused a Deed of Variation to be prepared in respect of the RT Trust whereby, by Mr Phillips’ direction, IMP replaced Rural Traders as trustee of that trust. This deed was executed by Mr Phillips and, in her then capacity as director of IMP, Ms Lee, on 7 July 2004 with the change of trustee taking effect that day. Also prepared by Mr Sciacca’s firm and executed by these persons at that time were related transfers of the registered proprietorship of Lot 3 and Lot 4 from Rural Traders to IMP.
Some further reference to Mr Conley’s having become a member of the Bar is necessary. It was in that capacity that he appeared for Mr Phillips for the initial part of the trial. It is necessary to say “initial part” because, in the course of the trial, it became starkly apparent, given issues of the nature and extent of Mr Phillips’ involvement with IMP which were at large and Mr Conley’s earlier involvement in providing advice to Mr Phillips in relation to IMP, that his absence from the witness box might, in the course of the Authority’s closing submissions, become a matter for adverse comment and the subject of an invitation for the drawing of inferences adverse to Mr Phillips’ case. Some of Mr Conley’s earlier involvement with Mr Phillips I have already referred to; more is yet to come. Mr Conley ceased to appear for Mr Phillips and Mr Laing of Counsel assumed that role. At the stage of the trial when Mr Conley withdrew from and Mr Laing took over the conduct of Mr Phillips’ defence I considered that the interests of justice, particularly the according of procedural fairness to Mr Phillips, required an adjournment of the trial such was the volume of evidence which had already been received and the corresponding need for new counsel fully to assimilate the same.
It is not the wisdom of hindsight to observe that the potential for the kind of professional embarrassment encountered by Mr Conley was, or at least ought to have been, evident in prospect in the circumstances of this case. At the time when it manifested itself I reserved the question as to whether any special order for costs in relation to the adjournment ought to be made. That is a subject which remains at large and which will fall for consideration once I have determined whether the Authority has made out all or any of its case.
IMP EMBARKS ON A BUSINESS
On 28 October 2005 and on behalf of IMP, purportedly as its “director”, Mr Phillips signed an agreement between IMP and Mobile 365 Pty Ltd (later known as Sybase 365 Pty Ltd – (Sybase)) known as an “SMS Revenue Sharing Services Agreement” (RSA). The RSA provided for the assignment of two premium shortcode numbers, 19773366 and 19773377, by Sybase to IMP. Appendix 4 to the RSA stated that the name of the service to which the assigned numbers related was “Mobile-friend”. The “customer acceptance” portion of this appendix was also signed by Mr Phillips but was dated 1 November 2005. The latter is expressed to be the “effective date” of the RSA. Nothing turns on the different signing dates which I have noted. Of greater significance in the RSA, apart from Mr Phillips’ signatures and his apparent assumption of the office of director of IMP, was the giving of Lot 4’s Mount Nebo Road street address as the principal place of business of IMP. Lot 4 continued then to be Mr Phillips’ place of residence.
Of the two premium shortcode numbers, it is 19773366 which is of particular interest in terms of the case alleged against Mr Phillips by the Authority.
The nature and extent of Mr Phillips’ involvement in the business which IMP conducted following the making of the RSA is controversial. Before considering the evidence and making findings in relation to those subjects some explanation of Australian communications industry practice and terminology in relation to a premium shortcode number is necessary. The evidence as to this came principally from the Authority’s Mr Weber. I am satisfied that, both by formal qualification as well as by experience, he was well equipped to give this evidence. I accept this aspect of his evidence. It was not contradicted in Mr Phillips’ case.
Sybase is what is known in Australian communications industry parlance as an “aggregator”. Within that industry aggregators have the rights to use particular premium shortcode numbers. A search of the Register of Numbers confirms that Sybase was the aggregator to which premium shortcode numbers 19773366 and 19773377 were allocated.
A premium shortcode number is a 6 or 8 digit telephone number which begins with the digits “19”. Such a number enables a person to whom it is allocated or assigned, known in communications industry parlance as a “content service provider”, to charge fees for content as part of a mobile premium service. Usually in the Australian communications industry, an aggregator does not itself provide content but rather assigns for a fee the use of a particular premium shortcode to a content service provider.
An aggregator such as Sybase might be described as a conduit between a telecommunications carrier such as Telstra or Optus, which transmits calls, and a content service provider. The content service provider uses the premium shortcode to send text messages to, and receive text messages from, individual mobile telephone numbers. The text messages created by a content service provider are forwarded to the aggregator who, in turn, sends them to the various telecommunications carriers. These carriers, in turn, convey the messages to the mobile telephone number of a person who has an account with that carrier.
The content service provider charges the mobile telephone account holder for either receiving, sending or receiving and sending the text messages. The charges for so doing are typically significantly higher than the standard rates charged to that mobile telephone account holder for the use of that mobile telephone. Payment for the content service provider’s charges is collected from the mobile telephone account holder by the carrier as part of the carrier’s account to the account holder for the use of the mobile telephone. The usual practice is for the carrier to take a percentage of the charge as its fee for collection of payment with the net sum being paid by it to the aggregator. In turn, and in accordance with the terms of its agreement with the content service provider, the aggregator passes on this net sum, less its own service fee (usually percentage based), to the content service provider.
The RSA provides for just such a service fee arrangement as between Sybase as aggregator and IMP as a content service provider.
I turn then to consider the nature and extent of Mr Phillips’ involvement with IMP in its capacity as a content service provider.
Though he acknowledged signing the RSA, the effect of Mr Phillips’ evidence was that he had done this so as to help out his friend, Mr Simon Owen, whom he had known since mid-1996, and otherwise to minimise his personal involvement in IMP’s business. That business, he claimed, was effectively that of Mr Owen.
To this end, Mr Phillips stated that, in September and October 2005, Mr Owen discussed with him a proposed business the elements of which included that the business would be:
(a)called “mobile-friend”;
(b)a “fantasy chat” service;
(c)a subscription based service;
(d)marketed using stickers to invite men and women to participate;
(e)also advertised by television if he could afford this.
Mr Phillips stated that none of this was his idea.
From mid-2005, Mr Owen was, with Mr Phillips’ permission, then living rent-free at Lot 3 where a separate house was situated. Mr Phillips’ avowed reasons for permitting this were two-fold. Firstly, he (Phillips) travelled a lot and the arrangement meant that there was someone on site to look after Lot 3 and Lot 4. He stated that the property (which I took to be Lot 3 and Lot 4 together) was quite large, some 50 acres, and required constant slashing and gardening to keep firebreaks and the like in place. Secondly, by mid-2005, the course of events in relation to criminal charges Mr Phillips continued to face was such that he was then expecting to be imprisoned at some stage early in 2006. Having Mr Owen resident on the property meant that, while he was imprisoned, he would have someone there to look after the house in which he (Phillips) had been living. According to Mr Phillips, Mr Owen, at the time, had no money and the rent-free arrangement with these caretaking responsibilities suited each of their then needs.
It will be recalled that, in mid-2005, Mr Phillips nominally held neither any office in IMP nor any shares in that company with, to external appearance on the records of the Australian Securities and Investments Commission (ASIC), these roles each being consigned to Ms Lee. That Mr Phillips felt able personally to grant Mr Owen permission to occupy the residence on Lot 3 on these terms in itself says much, in my opinion, about who then truly controlled IMP.
I accept that Mr Owen lived at Lot 3 on and from mid-2005 with Mr Phillips’ permission. I also accept that he had certain caretaking responsibilities with respect to Lot 3 and Lot 4 and that it was envisaged by Mr Phillips that he would continue to undertake these as a resident caretaker if and when Mr Phillips was imprisoned. Given the location of Lot 3 and Lot 4 and the size of the combined properties, I am well satisfied that there were advantages for Mr Phillips, especially given the contingency of extended imprisonment, in, for example, having a person on-site to keep undergrowth in check as a bush fire precautionary measure or otherwise to perform on-site caretaking tasks. If Mr Owen’s caretaking and assistance role is regarded as extending to IMP, another reason why it might be advantageous to Mr Phillips to have him located at Mount Nebo Road can readily be seen. That is because, for reasons which will become apparent, I do not accept that Mr Phillips had as remote an association as he claimed with the business IMP commenced after the RSA was signed.
According to Mr Phillips, he came to deal with Sybase, initially in October 2005, in relation to the provision by it of premium shortcode numbers because, though Mr Owen had made an initial approach to that company for that purpose, Mr Owen “was very unsure of himself and was worried that he would somehow ‘stuff it up’ because of his lack of business expertise”. In effect, Mr Phillips’ evidence in this regard was that Mr Owen was seeking to take advantage of his (Phillips’) greater general business experience and that he had agreed to provide assistance because, if successful, the business would improve Mr Owen’s financial position and he (Phillips) did not expect that providing assistance would involve much of a time commitment.

Mr Phillips acknowledged that, as a precursor to his signing the RSA, he had engaged in negotiations with Ms Vanessa Gois of Sybase in relation to the assignment to IMP of premium shortcode numbers. He remembered, “telling her about the mobile-friend service and fantasy chat and that her concern was to make sure there was no ‘adult’ content”. In his affidavit evidence in chief, Mr Phillips further stated that he had told Ms Gois that he “worked for Simon”. Under cross-examination, Mr Phillips put this a little differently, stating that he had told Ms Gois this “later”. Pressed further, he conceded that he had not told Ms Gois “in so many words” that the business was Mr Owen’s but rather that this was “made clear by the emails”. He also acknowledged in cross-examination that:
(a)he had wanted to convey to Sybase that he was the contact; and
(b)had intended to convey in email communications to Sybase that he had an involvement in the business.
Mr Phillips gave evidence that, after having assisted in negotiations and then signing the RSA, “I considered that I had done what I agreed to do to help Simon [Mr Owen] and did nothing more during October, November or early to mid-December 2005”. He expressly denied being a party to or even being told of any plan to use fake dating profiles to procure mobile telephone numbers.
Mr Phillips also stated that, because his relationship with Mr Owen was one of trust, he had given Mr Owen access to an email account which he had used for some years. Mr Owen had, Mr Phillips stated, access to that email address via his own computer, as well as via one of Mr Phillips’ computers, which he had left at the house which Mr Owen was occupying. As to his personal position in relation to accessing his email account, Mr Phillips further stated that he had separate access to this email address via another computer which he had at the home which he was occupying.
This is a convenient point at which to refer to evidence of email communications between Mr Phillips’ email address and Sybase between December 2005 and March 2006 in relation to the premium shortcode numbers and the subsequent operation of IMP’s business using those numbers (extract from Exhibit SJW 86 to Mr Weber’s affidavit, which became Exhibit 3). The exchange commences on 22 December 2005.
That the emails concerned were sent or, as the case may be, received was not, in itself, controversial. That apart, they are, for the purposes of s 71 and s 161 of the Evidence Act, “electronic communications”. Section 71 creates an exception to the exclusionary “hearsay rule” (qv s 59, Evidence Act) so far as electronic communications are concerned. The exception is in respect of:
(a)the identity of the person from whom or on whose behalf the communication was sent;
(b)the date on which or the time at which the communication was sent; and
(c)the destination of the communication or the identity of the person to whom the communication was addressed.
In turn, unless evidence sufficient to raise a doubt is introduced, s 161 of the Evidence Act creates presumptions that each of the emails in the schedule:
(a)was sent or made in the form of electronic communication that appears from the document to have been the form by which it was sent or made;
(b)was sent or made by or on behalf of the person by or on whose behalf it appears from the document to have been sent or made;
(c)was sent or made on the day on which, at the time at which and from the place from which it appears from the document to have been sent or made;
(d)was received at the destination to which it appears from the document to have been sent; and
(e)if it appears from the document that the sending of the communication concluded at a particular time-was received at that destination at that time.
The emails in the schedule and the presumptions for which s 161 provides assumed an importance in Mr Phillips’ response to the Authority’s case because, while Mr Phillips admitted authoring or assisting in the authoring and sending of two emails dated 22 December 2005 to Sybase, in respect of the others he either professed ignorance of them, even though they apparently came to or from his email account and him, said he had noted it but did not respond (email of 9 January 2006 from Ms Gois) or attributed them to Mr Owen.
In effect, in respect of the subjects covered by s 161, the presumption is that things are as they appear on the face of the document containing the record of the electronic communication. Mr Phillips sought by evidence either to raise a doubt as to his authorship or, where he admitted authorship, to persuade me that he was but passing on information to help Mr Owen. Resolving that controversy is of importance in relation to whether the Authority has made out its ancillary liability case against Mr Phillips.
To detail the contents of the emails in the body of the judgment would detract from its continuity. I therefore detail the emails in a schedule to the judgment. In so doing, I have omitted technical (Meta) data which appears in the exhibit copy of the emails and also excised and suitably annotated where messages were duplicated by copying or forwarding to other addressees. The excised technical data falls outside subjects for statutory presumption. At trial, a submission was made on behalf of Mr Phillips that I could judicially notice certain facts which were said to be apparent from this technical data. I rejected this submission. Then as now my opinion is that this is not a subject for judicial notice but rather for expert evidence. No such evidence was led on behalf of Mr Phillips.
Mr Phillips gave the following account of the circumstances relating to the sending from his email account of two emails in December 2005. As to the email of 22.12.2005 2:45pm, he stated that:
a.I recall that at about that day Simon [Mr Owen] told me he had been “shut down by Mobile 365 [Sybase]”;
b.I recall receiving the email dated 22.12.2005 1:44pm from Cameron Franks and that I spoke with Simon over the phone about it;
c.We got together almost immediately and I recall that it was at my house;
d.Simon was very agitated about being shut down and wanted to respond urgently;
e.I thought that it was a good idea and that he should make sure that he preserved his business’ relationship with Mobile 365 [Sybase];
f.I remember I told him words to the effect that if Mobile 365 [Sybase] were concerned about what Simon was doing, which they appeared to me to be, then honestly was the best policy;
g.I recall advising him that if he told them what he was doing and they had issues with it on commercial or legal grounds then he would have the chance to work with them to fix whatever the problem was;
h.That he was sending SMS messages that referred to dating profile names and the dating websites;
i.I recall that Simon told me some things about the specific concerns raised by Mobile 365 [Sybase] and we drafted the email based on that information;
j.I was in no position to respond myself to those concerns because I had no knowledge of the matters raised by Mobile 365 [Sybase]; and
k.That I replied in my email to all the parties who had been copied in to the email from Mr Franks that was being responded to. [sic]
As to the email of 23.12.2005 at 9:13am, Mr Phillips stated:
a.This message was composed by Simon and I helped to edit if for grammar and to make sure that his draft read properly;
b.I recall that the issue at the time arose out of Simon’s business being shut down based on concerns hat the messages were not clear about the charges that applied;
c.The purpose of the email was to get Mobile 365 [Sybase] to confirm that they were content that Simon was making clear the costs associated with the messages being sent;
d.I was not aware prior to this issue being raised on 22 December 2005 of the content of the messages Simon was sending;
e.My involvement was to help Simon by advising him how to respond to Mobile 365 [Sybase] to maintain his business relationship with them;
f.I was not aware at the time that there was any allegation or suggestion that there was anything improper about the messages Simon was sending other than the concern that the messages were being sent “without the cost of the messages being made clear to them;”
g.Although I now note the content of the proposed text messages and I must have been aware of them, the content of the messages and the references to adult dating sites did not occur to me to be in issue;
h.What I understood to be in issue that had to be responded to was the manner in which the costs of those SMS messages was disclosed. [sic]
According to Mr Phillips, Mr Owen told him on 22 December 2005 that the operation of the business to which the RSA related was that:
a.he had employed a couple of backpackers to set up their own profiles on the website [AMM];
b.it was costing men who sent and received messages to those backpackers within the AMM system;
c.the girls offered the men the change to interact via a different “user pays” medium, namely Simon’s premium SMS system;
d.the girls were putting photos of themselves up on the website;
e.from what I understood from Simon it was an entirely consensual process. [sic]
Mr Phillips stated that:
Although I didn’t turn my mind to the details of it, I thought that this meant that Simon’s business was getting the men to agree to use the premium SMS service instead of the AMM “user pays” system.
He stated that he remembered:
Simon telling me stories about his staff uploading their photos to websites so the idea never occurred to me that they might be doing anything different to using their own photos.
According to Mr Phillips in his affidavit evidence in chief:
When it occurred to me some time in late 2005 and probably in December though he [Mr Owen] was actually getting somewhere with starting his business I saw the need to act immediately.
I recall mentioning this to Mr Sciacca and he confirmed that I should extricate my Trust from any association with IMP because it was a trading business and it was imprudent for the trustee company to be a trading entity.
I recall instructing Mr Sciacca to see that the trusteeship was changed and he did so sometime after that.
In cross-examination, Mr Phillips stated that Ms Lee had, without his permission, allowed Mr Owen to use IMP to start the business. He attributed this to a kind of “nervous breakdown” which Ms Lee had suffered following the then recent death of her husband. He said that it wasn’t up to him to permit or not to permit this use of IMP “because it wasn’t my company and I was told after the fact”. Mr Owen, he said, was a friend, but not someone he trusted. He stated that the easier course for him to take was just to change the trustee of the RT Trust.
Mr Phillips explained his signing of the RSA as referable to a request from Mr Owen for assistance based on his (Mr Phillips’) “longstanding reputation in the internet industry, which has some parallels”. He stated that he did not discuss the RSA with Mr Owen prior to his signing that agreement. He also said that Mr Owen had asked him to, in effect, lend his name and reputation to the initial dealing with Sybase and that he had agreed to hold himself out to Sybase as running IMP’s business. Mr Phillips further stated that, in the course of his discussions with Sybase’s Ms Gois he had never stated that Mr Owen ran the business.
Mr Phillips denied any detailed, contemporaneous knowledge before 22 December 2005 about how IMP’s business was conducted. Initially, when taken in the course of cross-examination to the “Application description” in the RSA, “Switch via chat platform, opt in by texting chat to 191 …”, Mr Phillips denied having read this on the agreement form before signing it. Later in cross-examination, he admitted knowing that Mr Owen had produced thousands of stickers and “plastered them all over town”, that this method of promoting what Mr Phillips understood to be a “flirting” chat service using the 19 number hadn’t worked and that some sort of computerised system leading to a use of the 19 number was adopted as an alternative. He also admitted knowing that Mr Owen had engaged programmers for assistance with the computer system.
Mr Owen also gave evidence at the trial. His evidence touched, inter alia, on the exchange of emails.
Mr Owen’s evidence in chief, as well as the balance of his evidence, was given orally. He was called in the Authority’s case, even though, so I came to be informed by the Authority’s junior counsel, the Authority held no formal, signed proof of evidence from him. The Authority had prepared and served in advance of trial a statement of apprehended evidence. I infer from this course that, though there had been some sort of conference with Mr Owen, there had been no resultant signed proof of evidence. In light of some of the evidence which Mr Owen gave in chief, and especially given that there was no application under s 38 of the Evidence Act for him to be declared an unfavourable witness, that the Authority chose to call him in its case struck me at the time (and still does) as an unusual course.
In the absence of the Authority’s holding of a signed proof of evidence from Mr Owen, I might otherwise have expected him to be called, if he were called at all, in the defence case or at least evidence led in that case explaining why the course of leading evidence from him had not been taken. That is not, of course, to suggest that any onus lay on Mr Phillips to call him; only that I do not see that, in the circumstances, the Authority was under a duty, whether derived from its status as a model litigant or as an applicant in a penal proceeding or because an adverse inference might otherwise have been drawn against it, to call Mr Owen. The nature of the proceeding was adversarial, not inquisitorial.
On behalf of Mr Phillips, reference was made to a statement in Heydon, JD Cross on Evidence (7th Australian Ed, LexisNexis Butterworths, 2004) at [19005]; a statement repeated in the current edition, Heydon, JD Cross on Evidence (8th Australian Ed, 2010) (Cross) at [19005], to the effect that it is an expectation of practice that (in the absence of a declaration that the witness is hostile) a party calling a witness tenders that witness as capable of being believed. So much may, in general, be accepted. Another statement made in Cross at [19010] namely that, in general, a party is neither inclined nor permitted to impeach the credibility of his own witness may also be accepted. The learned author of Cross qualifies the latter statement with an observation in a footnote (fn 19), made by reference to a decision of the Full Court in Kabadanis v Panagiotu (1979) 47 FLR 221, that this was not to say that a party could not call witnesses whose evidence differed inter se. A consideration of the authority cited fully supports, with respect, the accuracy of that qualifying observation.
The appellant in Kabadanis v Panagiotu had failed at a trial heard by judge alone on the issue of proof of the alleged tort namely the alleged negligent discharge of a shot gun at close range (less than 1 foot) in a motor vehicle in which he was a passenger. Both he and the defendant, who was the driver of the motor vehicle, gave evidence. The evidence of the defendant (consistent with his earlier answers to interrogatories) corroborated that given by the appellant plaintiff, which was to the effect that the loaded shot gun carried in the vehicle had discharged as the vehicle went over a small mound or depression in the road. The defence was conducted on behalf of the defendant by the compulsory third party insurer. Forensic evidence was also led in the defence case at trial to the effect that the plaintiff’s injuries were more consistent with those from a shot gun blast at a distance of six to nine feet. The learned trial judge found the forensic evidence “compelling” and his acceptance of it formed the major basis upon which he rejected the evidence of the appellant and the defendant and found that the alleged tort had not been proved. Before trial, notice had been given on behalf of the defendant to the appellant’s solicitors by the defendant’s solicitors that they did not accept the truth of the defendant’s answers to interrogatories. One of the grounds of appeal was that the learned trial judge had erred by allowing the defendant’s legal representatives to put the defendant’s case differently from and contrary to the defendant’s sworn answers to interrogatories. In dismissing this ground, the Full Court observed (at 228) that answers to interrogatories have no status other than evidence and are not pleadings. The Full Court then stated (at 228):
It is open to counsel to present, if he wishes, evidence which is inconsistent with, or contradicts, evidence given by his client (King v Wilkinson (1957) 57 SR (NSW) 444), whether the evidence in question is in chief or in cross-examination ….
There was no suggestion made on behalf of Mr Phillips in submissions that, in advance of trial, the Authority had put to him that its case was no longer as pleaded or that having regard to the proof of apprehended evidence delivered to him, he had not been put on notice that the Authority apprehended that Mr Owen would give evidence adverse to his case and in support of the Authority’s pleaded case. To the contrary, it was conceded on behalf of Mr Phillips that Mr Owen’s evidence “did not come up to that proof”. The proof concerned was not, of course, evidence and nor was it sought to be introduced. The point is that Mr Phillips was never told that the Authority accepted the evidence which Mr Owen in fact came to give; nor even was he told that it was apprehended that the content of Mr Owen’s oral evidence would be as it ultimately came to be. Save for the refinement at trial by the narrowing of the period of alleged ancillary liability, the Authority’s pleaded case against Mr Phillips remained as originally pleaded.
The following statement made by Cockburn CJ in Richards v Morgan (1863) 4 B & S 641 at 663 is, in the circumstances, also apposite:
… the party … calling the witness … may do so not only without the intention of abiding by all the witness may say, but with the deliberate intention of calling on the … jury to disbelieve so much of the evidence as makes against him.
See, more generally, the discussion with respect to “unfavourable witnesses” in Cross at [17370].
Having led evidence from Mr Owen which took a particular form, the Authority was not thereby precluded from leading inconsistent evidence. That Mr Owen was called in the Authority’s case does not thereby mean that I am obliged to treat all or any of Mr Owen’s evidence as believable. Unusual though the course taken by the Authority may have been, it gave to Mr Phillips the opportunity to cross-examine Mr Owen. Mr Owen’s evidence and how much of it to accept falls to be considered in its entirety and in conjunction with all of the other evidence in the case.
As to the exchange of emails, Mr Owen’s recollection in evidence in chief, particularly in relation to the two emails of 22 December 2005 described by Mr Phillips, which culminated the following day in a resolution at the time of Sybase’s concerns about IMP’s business, was that the emails were those of Mr Phillips. He was, at this stage of his evidence, noticeably vague in his recollection of them. This vagueness was in marked contrast to the responses which he gave to leading questions about the emails when cross-examined. The effect of the answers which he gave at this stage of his evidence was largely to corroborate the account about the emails of 22 December 2005 given by Mr Phillips in the passages set out above in relation to the exchange of emails set out in the schedule and, for that matter, the signing of the RSA.

Mr Owen’s evidence, if it is to be accepted, also corroborated that of Mr Phillips as to the origins of the business and of the latter’s limited, gratuitous role in it. Thus, as of November 2005, Mr Owen described Mr Phillips’ role thus, “[h]e was my friend, he helped me to do all this because I didn’t – I wasn’t very good with this sort of stuff. So he would have helped me to fill out this form and so on and so forth.” His explanation for why he had not signed the RSA with Sybase was that he was not a director of IMP at the time.
Mr Owen described IMP as “my little business”. He gave the nature of the business as “just sending customers messages for money”. Initially, he said, the business had been advertised by way of stickers, “we originally started with stickers. We printed a whole heap of stickers. I’ve got a printer over in Indonesia and I just stuck them everywhere.” These stickers carried the message, “Get laid. Text a word to” with the addition of the premium shortcode number 19773366. He said that, thereafter, from about December 2005, calls to this number were solicited by the use of dating websites.
Mr Phillips’ and Mr Owen’s evidence carried with it the necessary corollary that each was content to deceive Sybase as to who controlled IMP but that neither was prepared to give false evidence about the fact of that deception.
In further describing the use of dating sites to solicit persons to use the 19 number Mr Owen stated that he and “Glenn” [Mr Glenn Christopher Maughan, the 7th respondent] hired backpackers and other people (“operators”), via IMP, to create and then manage a profile on an internet dating site. Operators were paid in cash for their services. Initially, from about December 2005, the business operated from the living room in Lot 3 using second hand computers acquired by Mr Owen and Mr Maughan. Again initially, photos were taken of those hired, either by them personally or by Mr Owen or Mr Maughan and “they’d run their own thing, just like an ad. Like a profile.”
Mr Owen related that, initially, a profile on an internet dating site would last for months but that the duration of a profile on a site gradually contracted until, in 2006, a profile might not last more than a day. He stated that this was because the operators of such sites, “slowly got on, you know, got on to what we were doing”. Mr Owen said that the use of dating sites in this way was a “fresh thing” and that the business “did well” and later, “[t]he whole idea was to, you know, get the guy’s phone number so we could market to them.”
Mr Owen related that, once a person’s telephone number was obtained, one of the operators would enter that number into the “Mobilegate” software where it would be queued for a marketing message. He said that he wrote the marketing messages. These, he said, changed frequently, but they were usually comprised of the following elements in this sequence: “Free message” – [Girl’s name from dating site] “wishes to talk to” [guy’s name]. – “Please respond, ‘Yes’ to communicate” – [1800 helpline phone number] – An “opt out”, “To opt out send, ‘Stop’” – “Message cost” [about $5.00, depending on the shortcode number used].
The “Mobilegate” software operated in a way which facilitated subsequent premium shortcode communication in the event that a person responded to the “Free message”. In the event of such a response, the software would then provide a notification to an operator who would then compose and dispatch a reply.
Mr Owen stated that he designed the “Mobilegate” software specifically for IMP, with the assistance of two programmers, “Mark” and “Tim”. He stated that these persons also were the programmers referred to in the email of 23 December 2005 at 7:34 AM from Mr Phillips’ email account to Ms Gois at Sybase.
According to Mr Owen, by January and February 2006 anywhere between 4 and 12 operators were working from his lounge room at Lot 3 creating internet dating site profiles and responding to consequential inquiries sent via the 19 number.
Mr Owen stated that, in March 2006, the operating site of the business moved from Lot 3 to premises in West End.
Before detailing evidence given in relation to the operation of IMP following this change in the location of business operations it is necessary to refer to other evidence as to developments with respect to IMP which occurred between November 2005 and the end of February 2006. For this purpose it is necessary to refer to further evidence given by Mr Sciacca, Mr Conley and Mr Phillips.
As with his evidence in relation to his actions in 2004, I am satisfied that the account which Mr Sciacca gave of his dealings with Mr Phillips between December 2005 and February 2006 was accurate. I am satisfied that events and conversations occurred as Mr Sciacca related them. Mr Sciacca endeavoured, as best he could I thought, allowing for the passage of time, to recall conversations and events in his professional life in relation to which there was no reason at the time to think that it would be necessary to keep and retain detailed contemporaneous file notes. That was because the initial conversation which he had with Mr Phillips in December 2005 was informal and because the nature of the task for which he came to be engaged in February 2006 was essentially one of conveyancing and trust administration namely, the effecting in the change of a corporate trustee.
The following summary of Mr Sciacca’s evidence draws upon both the evidence in chief which he gave by affidavit and his oral testimony.
Mr Sciacca stated that, in late 2005, in the course of a conversation which he had with Mr Phillips, Mr Phillips told him that IMP was involved in a business. Mr Phillips did not detail the nature of the business and Mr Sciacca did not seek such detail from him. What he did do was to advise Mr Phillips that trading entities and property holding entities should be kept separate. Mr Phillips did not act immediately upon his advice. In late February 2006 though he did. On 28 February 2006 and in his capacity as the “Principal” of the RT Trust, Mr Phillips executed a deed of variation by which IMP was removed as the trustee of that trust and replaced as trustee by MSG Properties Pty Ltd (MSG). The person who signed that deed on behalf of MSG was Mr Conley.
According to ASIC records, MSG was first registered as a company on 28 February 2006. Its then sole director and secretary was (and remained at the date of the trial) Mr Conley. He and a Mr Jones (whose role was not further explored in evidence) were then (and remained at the date of the trial) each respectively held, other than as the beneficial owner, one of the two $1 issued shares in MSG.
Having regard to Mr Conley’s evidence, which I thought was candid and which in this regard also I accept, what happened after Mr Phillips received Mr Sciacca’s advice about keeping trading and asset holding entities separate was this.
Most probably in late 2005, Mr Phillips mentioned the advice which he had received from Mr Sciacca to Mr Conley. Mr Conley was not then in active private practice as a solicitor, having disposed of his interest in his former firm at the end of the 2005 financial year. He had yet to commence to practise as a barrister. Inferentially on the evidence, he was engaged in business activities which at least included the association with Mr Phillips via 3 Point Finance, which I have already mentioned and another company in which Mr Phillips had an interest, which traded under the name Business Bridging Finance. In the latter company, Mr Conley seems to have combined the roles of in-house solicitor and manager. I formed the distinct impression, listening to Mr Conley’s evidence as well as that of Mr Phillips, that Mr Phillips reposed trust in Mr Conley’s business and legal judgement.
Mr Sciacca’s advice was not the only subject which Mr Phillips and Mr Conley discussed at this time. Indeed, it is likely that they had a number of discussions at this time about options for the management of Mr Phillips’ affairs while he was in prison. By that stage, though the Crown had decided not to proceed with some of the charges which Mr Phillips faced, others of sufficient seriousness to predict that he was in jeopardy of a sentence of imprisonment for at least 5 years remained. Mr Conley was aware of this. Mr Conley also then knew Ms Lee. His experience of her was that, while she was honest, she was not adept or reliable as a property manager. I accept that, between them, Mr Phillips and Mr Conley discussed and shared a reservation as to her having any managerial role while Mr Phillips was in prison. I find that there were multi-factorial and interplaying reasons for Mr Phillips’ decision to replace IMP as trustee of the RT Trust. Though he had already in 2004 “camouflaged” his control as the owner of Lot 3 and Lot 4, the means by which that had been achieved, IMP, had become unsuitable for two reasons, an undesirable undertaking by IMP of the roles of both trading entity and trustee of property and an apprehension about Ms Lee having any managerial role while Mr Phillips was in prison.
In the result, Mr Phillips asked Mr Conley to act as the director of a company which would, as trustee, own “his house” [this was a generic reference by Mr Conley to Lot 3 and Lot 4]. Mr Conley agreed to do this.
Mr Conley stated that he was not, at the time, aware of the business in which IMP was engaged. He said this would only have been of interest to him “if the [RT Trust] carried on that business”. A trust is not, of course, a legal entity only an equitable obligation assumed by a person in respect of property. It is certainly not uncommon though, even amongst some members of the legal profession, for reference to be made to a trust as if it were a separate legal entity. What I took from Mr Conley’s statement was that his understanding was that IMP had not traded in its capacity as trustee. So understood, his explanation makes sense. I accept that he was not aware in 2005 or up to the end of February 2006 of the particular business in which IMP was by then engaged.
A sequel to Mr Phillips’ decision was that, probably in February 2006 but not later than 28 February of that year, Mr Conley discussed with Mr Sciacca the process for the changing of the trustee of the RT Trust. He also arranged for his former firm to incorporate MSG for the purpose of assuming the role of trustee.
Mr Owen was known to Mr Conley by late 2005 in the sense that the two had by then met. The effect of Mr Conley’s evidence was, and I find, that Mr Phillips did not mention to him, in the context of their discussions about IMP and the management of Mr Phillips’ affairs, that Mr Owen had any role in relation to IMP, much less that Mr Owen had commenced to use IMP in some rogue or unauthorised way as a vehicle to conduct a business effectively controlled by him. There was no suggestion that Mr Conley was otherwise aware of this. Mr Sciacca, too, gave evidence and that, in mentioning IMP’s having become involved in a business, Mr Phillips did not make any reference to Mr Owen.
Accepting as accurate the evidence of Messrs Sciacca and Conley has ramifications in relation to the reliability of the evidence given by Mr Phillips and also by Mr Owen.
I regard the absence of any reference to Mr Owen by Mr Phillips in referring to IMP in the respective discussions which he had with Messrs Sciacca and Conley over the period December 2005 to February 2006 as highly significant. Given the nature of the association which Mr Phillips had at the time with Mr Conley and Mr Sciacca, I consider it inherently unlikely that if, over this period, there had been any unauthorised assumption of control over IMP or its then developing business by Mr Owen, this fact would not have been communicated by Mr Phillips to Mr Sciacca and, especially, to Mr Conley. If, though, Mr Owen were merely a subordinate this absence of reference to him in relation to IMP by Mr Phillips to Messrs Sciacca and Conley is unremarkable. The more likely explanation in relation to the removal of IMP as trustee of the RT Trust is that the move was reactive to Mr Sciacca’s advice as to not mixing the roles of trading and asset holding. Inferentially, this advice formed part of a general review by Mr Phillips, with the benefit of advice from Mr Sciacca and Mr Conley, as to how best his interests might be managed while he was in prison.
I observed Mr Phillips and Mr Owen closely when each was giving his oral evidence. I mean no disrespect to Mr Owen in observing that Mr Phillips was far and away the more fluent and mentally agile of the two. Of course, that might explain why, as each of them put it, Mr Owen turned to Mr Phillips for assistance in dealing both in initial negotiations and in later email and other communications with Sybase but this but a possibility to take into account when weighing up the whole of the evidence.
The exchange of emails in the schedule makes ready sense if Mr Phillips is indeed the author or recipient as the case may be where he is recorded as such, i.e. if the emails are to be read as truly being what they purport on their face to be. Where on the face of each email Mr Phillips is recorded as the author the same fluency of language and mental agility which he exhibited in oral evidence is evident in the text.
A stark example of the email exchanges making ready sense if it is not the case that Mr Owen sent emails in Mr Phillips’ name using his email account is offered by an email of 28 December 2005 which, on its face, is sent by Mr Owen to both Mr Phillips and to Ms Gois on the subject of the inputting of “automessages” (automatically generated messages) for use in conjunction with the premium shortcode 19773366. There is no need at all for Mr Phillips to be an addressee if Mr Owen is controlling IMP and Mr Phillips is doing nothing more than helping him out. Equally, if Mr Owen is impersonating Mr Phillips in communications with Sybase, why communicate in his own name? I comment further on features of the email exchange when discussing the subject of ancillary liability. It is possible to conjecture that Mr Owen was practising a sophisticated level of deception on Sybase but that level of sophistication is inconsistent with the absence of memory and vagueness of response and demeanour on display throughout Mr Owen’s evidence. Viewed against all of the circumstances, this conjectured possibility seems inherently unlikely. On the other hand, if viewed as it purports to be on its face namely the report of a subordinate to his superior, Mr Phillips and to the responsible account officer at Sybase, Ms Gois, this email makes ready sense.
In the exchanges, it is Mr Phillips who is the voice of IMP in relation to any risk of suspension of the premium shortcode and matters of financial accounting. Mr Owen has a subordinate role in the exchanges but one consistent with his having some managerial and IT responsibilities. Mr Owen is astute to copy Mr Phillips in his correspondence with Sybase. I consider that it is inherently unlikely that he would have done this repeatedly if Mr Phillips were merely an occasional, gratuitous adviser. Further, even assuming that Mr Owen was able, as he claimed, to access Mr Phillips’ email account, this does not explain why replies repeatedly go out in Mr Phillips’ name. The exchange discloses that Mr Owen was identified to Sybase as a contact for IMP. Certainly thereafter, a response in his own name to Sybase on behalf of IMP would have carried with it the appearance of regularity and authority and that even if the initial query to Sybase had been directed to Mr Phillips at the latter’s email address.
The description given by the Authority in its closing submissions of what is revealed by the exchange of emails in the schedule is an accurate one, “[w]here technical responses are required, one finds Mr Owen responding in his own name. Where broader responses are required, dealing with a … ‘business-like’ response to an inquiry, then one almost invariably finds it goes out under Mr Phillips’ name”.
It was put on behalf of Mr Phillips that the Authority ought to have called Ms Vanessa Gois, a Sybase officer who features in the exchange of emails and was a person with whom Mr Phillips dealt in the negotiations for the RSA. It was further submitted that I should infer from a failure to call her that her evidence would not have assisted the Authority. There is no substance in these submissions. The actual sending and receipt of the emails exchanged was admitted. Further, Mr Phillips did not suggest that, either in writing or even, when pressed, otherwise, he had expressly informed Ms Gois that he was not really an officer of IMP but only assisting Mr Owen. To the contrary, Mr Phillips’ evidence was that he was actively seeking to give Sybase the impression that he was an officer of IMP. The Authority was under no obligation to call Ms Gois. Its failure so to do does not provide any basis for the discounting of the email exchange.
Mr Phillips’ signing of the RSA on behalf of IMP also makes ready sense if one treats that document as fully intended to convey what it purports so far as IMP is concerned, i.e. that Mr Phillips is able to bind that company. As the emails in the schedule reveal, the premium shortcodes were a critical part of the proposed income earning activity of IMP. IMP was not a large company. It is understandable that in relation to a critical step in the commencement of a new business by such a company the person who controlled it would personally negotiate for and then sign on its behalf such an important agreement.
This impression is strengthened by knowledge of Mr Phillips’ business background. That is not confined to the finance business in which Mr Conley was also for a time involved. Mr Phillips acknowledged earlier, internet related business experience. Further, in December 2005, application was made by the firm Morgan Conley to ASIC for the registration of a company to be called Dancertext Pty Ltd (Dancertext). Dancertext was incorporated on 2 December 2005. According to the registration application, Ms Lee (for whom a Kedron address was given) was to be the sole director and also, but not beneficially, the holder of the three $1 issued shares in the company. The address given as the principal place of business of the company was the Mount Nebo Road street address of Lot 4.
Initially, Mr Phillips denied knowledge of this company. However, when a copy of an agreement between “Dancertext Australia” and mBlox Ltd (a UK company) was put to him in cross-examination, he acknowledged his signature in the capacity of “Managing Director” and handwritten date “18/12/2005” on the document. That agreement gives the street address of Lot 3 and Lot 4 as the principal place of business for Dancertext Australia. Further, Mr Phillips’ email address is that specified as the email contact address. The copy produced in evidence also bears a facsimile transmission record as having been sent, apparently to an international facsimile number addressee, on 19 December 2005 from a facsimile machine which made the imprint “Paytech Aust”. Though the agreement bears a type written date 22 August 2005, the handwritten date and facsimile imprint suggest strongly and I find that this August date was pre-printed but that the agreement was not made until signed and returned by facsimile in December 2005.
Mr Phillips admitted that he held the office of managing director in a company called “Paytech Australia”. He also made reference to profitable involvement in a company which provided residential bridging finance.
My strong impression at the time was (and remains) that Mr Phillips’ denial in oral evidence of knowledge of this Dancertext agreement with mBlox was deliberately false and that, in effect, he gave dissembling answers in respect of it when the subject was raised with him in cross-examination. The resemblance between the use of Ms Lee as a nominee director and non-beneficial shareholder and then Mr Phillips signing as a director an agreement with a telecommunications provider as between the RSA he executed on behalf of IMP and the agreement he executed on behalf of Dancertext is uncanny. Also uncanny and not, I find, a coincidence is that, according to the ASIC record, Mr Owen assumed the role of director and secretary of Dancertext on and from 23 March 2006.

The information (including any pricing information) contained in this e-mail is subject to change. This e-mail is not a quotation or proposal and no contractual obligations arise until you and Optus sign a formal written contract or formal variation to your existing contract
[…]
[…]
SendTo: Scott Phillips <[email protected]>
CopyTo: simon owen <[email protected]>,Vanessa Gois
From: Vanessa Gois
[…]
Subject: RE: 19773366 Service
ComposedDate: 02/06/2006 01:15:50 PM
PostedDate: 02/06/2006 01:15:50 PM
[…]
Hello,
I have sent though a request to provision the number across ALL carriers today. I will advise you when the code is ready for use.
Regards,
Vanessa
________________________________
From: Scott Phillips [mailto:[email protected]]
Sent: Monday, February 06, 2006 12:36 PM
To: Vanessa Gois
Cc: simon owen
Subject: Re: 19773366 Service
Importance: High
[Message text reproduced below]
On 6/2/06 10:41 AM, "Vanessa Gois" <[email protected]> wrote:
[Message text reproduced below]
[…]
SendTo: Vanessa Gois
CopyTo: simon owen <[email protected]>
From: Scott Phillips <[email protected]>
[…]
Subject: Re: 19773366 Service
[…]
DeliveredDate: 02/06/2006 09:36:06 AM
[…]
Vanessa,
I understand. Please reprovision the code for $5 MO as soon as possible.
Regards
Scott
On 6/2/06 10:41 AM, "Vanessa Gois" <[email protected]> wrote:
[Message text reproduced below]
[…]
SendTo: Vanessa Gois
CopyTo: simon owen <[email protected]>
From: Scott Phillips <[email protected]>
[…]
Subject: Re: 19773366 Service
[…]
DeliveredDate: 02/06/2006 08:54:23 AM
[…]
Vanessa,
Is there any way we can delay this by a couple of days to give us time to adjust. Its extremely inconsiderate to dump it on us with no warning.
Scott
On 6/2/06 10:41 AM, "Vanessa Gois" <[email protected]> wrote:
[Message text reproduced below]
[…]
SendTo: Scott Phillips <[email protected]>
CopyTo: simon owen <[email protected]>
From: Vanessa Gois
[…]
Subject: 19773366 Service
ComposedDate: 02/06/2006 08:41:00 AM
PostedDate: 02/06/2006 08:41:00 AM
[…]
Scott,
To comply with new operator regulations, we are having to amend chat services to be MO billed only. Unfortunatley, due to the level of complaints and ACMA spam inquiry into this number, we are going to have to make this change immediately. As such we will have to suspend the short code while we re provision the code to be MO billing. We will do this as quickly as we can – though the lead time is up to 12 working days. Once this is completed, Mobile 365 will re-active the service for you.
This is all outline in the letter attached – could you please advise in writing how you would to proceed?
Regards,
Vanessa
Vanessa Gois
Account Manager
Mobile 365
Tel: +61 2 9258 9600
DDI: +61 2 9258 9602
Fax: +61 2 9251 6411
Mobile: +61 400 371 229
[email protected]
align="left">[…]
SendTo: Scott Phillips <[email protected]>
CopyTo: Leisa Frost,simon owen <[email protected]>
From: Vanessa Gois
[…]
Subject: RE: December Revenue Share Statement
ComposedDate: 02/06/2006 08:37:00 AM
PostedDate: 02/06/2006 08:37:00 AM
[…]
Scott,
I’ve looked into the Optus figures for you. As you were not requesting handset receipts on Optus MT messages, it does not show up on our or Optus reports what messages have been delivered and billed – other than the 2 messages with receipts – as per reports and extranet. We will follow up with Optus to see if there is any other way they can see if a message has been billed, but on past occasions, they have only been able to confirm there receipts have been requested. This is the only revenue that we have received from Optus (these 2 messages) and this is all that we can pay you on.
I’ve re-attached the IMP statement as the Total was not tallied correctly.
Regards,
Vanessa
________________________________
From: Scott Phillips [mailto:[email protected]]
Sent: Sunday, February 05, 2006 10:01 AM
To: Vanessa Gois
Cc: Leisa Frost; simon owen
Subject: Re: December Revenue Share Statement
Vanessa,
Thanks for this.
There appears to be some problems with the report. The numbers do not tally with your own online stats and the individual items do not tally correctly to the stated total. Also, the statement says that we have only 2 optus MT calls for the month, which is a statistical impossibility.
Please call me at your earliest convenience to discuss.
Regards
Scott
On 3/2/06 9:24 AM, "Vanessa Gois" <[email protected]> wrote:
Hi Scott,
Hope you’re well.
Please see attached the December Revenue Share Statement.
Could you please send the invoice to our finance team at [email protected]
Also – can you please send though to me examples of the adverts used for the services? I need to have this as a reference in the even that I’m questioned about the services.
Regards,
Vanessa
Vanessa Gois
Account Manager
Mobile 365
Tel: +61 2 9258 9600
DDI: +61 2 9258 9602
Fax: +61 2 9251 6411
Mobile: +61 400 371 229
[email protected]
align="left">[…]
SendTo: Vanessa Gois,'Scott Phillips' <[email protected]>
CopyTo: Hannah Sohail,[email protected] <[email protected]>
From: Simon Owen <[email protected]>
[…]
Subject: RE: TIO Complaint for 0415331610
[…]
DeliveredDate: 01/30/2006 09:41:00 AM
[…]
Rachel
When we first started in this business, we were very na?ve about what was and wasn’t required from us by law. At that time we sent out our first batch of messages without getting the customer to send and ACC “YES” back to us. This was quickly spotted by Vanessa and Mobile365 who suspended our account and informed us of what we were meant to be doing, we immediately added a initial free message asking for an ACC “YES”, a best practice message for when the customer had reached $30 and greatly improved our customer service line and staff training. This customer was one of the first batch that never got informed of pricing on the service. As such we would be more than happy to immediately refund the whole amount the customer has spent with us. If you could provide me with an address I would be happy to make sure he got a full refund today I have records of 7MT and 5MO for the customer. Once again if I could get his details I would be happy to immediately refund him and also add him to our blacklist so he can never be messaged by our system in future.
Thanks in advance,
Simon Owen
-----Original Message-----
From: Vanessa Gois [mailto:[email protected]]
Sent: Sunday, January 29, 2006 2:04 PM
To: Simon Owen; Scott Phillips
Cc: Hannah Sohail
Subject: RE: TIO Complaint for 0415331610
Hi Simon,
I would prefer it if you dealt directly with Vodafone and not the
customer as per Vodafone’s wishes.
Regards,
Vanessa
_____
From: Simon Owen [mailto:[email protected]]
Sent: Saturday, January 28, 2006 1:14 PM
To: 'Scott Phillips'
Cc: Vanessa Gois; Hannah Sohail
Subject: RE: TIO Complaint for 0415331610
Vanessa
I have 7 MT and 5 MO from this guy. He is one of our first batch that didn’t get the ack yes.
Would you like us to call the customer and arrange a refund for him? The Vodaphone rep said not to contact them directly so I’m not sure what I should do.
Thanks in advance
Simon
-----Original Message-----
From: Scott Phillips [mailto:[email protected]]
Sent: Thursday, January 26, 2006 3:20 PM
To: simon owen
Cc: Vanessa Gois; Hannah Sohail
Subject: FW: TIO Complaint for 0415331610
Simon,
Can you have this customer contacted please and advise of the outcome
Thanks
Scott
------ Forwarded Message
From: Hannah Sohail <[email protected]>
Date: Wed, 25 Jan 2006 04:28:11 -0000
To: <[email protected]>
Cc: "Hall, Rachel, VF-AU" <[email protected]>
Subject: FW: TIO Complaint for 0415331610
Hi,
I have received the complaint below. Can someone please contact the following customer in regard to their dispute and advise of the outcome.
Kind Regards,
Madeleine
Mobile 365
Tel: +61 2 9258 9600
Fax: +61 2 9251 6411
[email protected]
_____
From: Hall, Rachel, VF-AU [mailto:[email protected]]
<mailto:[email protected]%5d>
Sent: Wednesday, January 25, 2006 3:03 PM
To: CustomerCare.AUS
Subject: TIO Complaint for 0415331610
Hi All,
I've received a TIO complaint from the above customer in relation to 19773366.
The customer is disputing registering for the service and also sending any MO TXT back to the service.
Can you please investigate and provide the outcome and content directly to me? Please do not contact the customer.
Kind Regards,
Rachel Hall
TIO Advisory Team
Email: [email protected]
<file:///\\
Vodafone Pty Ltd ABN 76 062 954 554
------ End of Forwarded Message
[…]
SendTo: Vanessa Gois,simon owen <[email protected]>
CopyTo: [email protected] <[email protected]>,Tim Johnson <[email protected]>
From: Scott Phillips <[email protected]>
[…]
Subject: Re: 19773366 [Fishy Business]
[…]
DeliveredDate: 01/13/2006 07:14:36 AM
[…]
Vanessa,
All our initial messages are the format you specified, with the first phrase being [FreeMsg], the end being 3cost $5.50 per message pair2, and the customer service number last of all. Believe me, you would notice immediately if we were not doing this correcly, per your specifications.
We have a script for the customer service where everyone is advised it’s a pay per use service, $5.50 per message pair, that a message ack is required, and the service can be discontinued with STOP and that they have NOT been charged yet.
This was being glossed over for the first 2 days of operation, until our first issue with you. You have my 100% absolute guarantee that we are playing this straight, all the way through the process, including $30 best practice customer care messages.
Quite a lot of the customers simply lie and say they never had anything to do with it, we send them out a 3grievance pack2 same day, to apply for a refund. Any of the unfortunate guys who we didn1t tell was a premium service (first day only) we offer immediate refund and send them actual cash folding money in the mail. FYI, there was only one in the last 2 days I1ve been running the operators, for $20.55 (we sent him $25). His address is Tony Mitchell 51 Kernan St Strathmore 3041. The claim that we have women meeting women for coffee and drinks and giving their number as a premium number is quite simply a lie. Obviously its not an efficient way to solicit a $5.50 premium message pair paying an attractive girl to pick up guys in bars and coffee shops. This is what I hear sometimes on the customer service line from people who are too shy to admit they use a dating site.
Vanessa, we are absoultely 100% upfront and transparent about the charges. Please do your own tests of our operators and customer service today, I will call this morning to discuss.
As for the unfortunate guy who has a similar number - I have offered him compensation for inconvenience and to buy him a new phone number. He is absolutely inflexible.
Regards
Scott Phillips
On 12/1/06 2:10 PM, "Vanessa Gois" <[email protected]> wrote:
Hello,
Please see below the issue at hand. It appears the female operators are NOT
advising consumers the true price of SMS messages to the short code. If such complaints continue to come through, we will have to suspend the account. Also Scott, thanks for the heads up on the poor man whose mobile number has the short code within it? unfortunately there is very little I or M365 can do. The only way for the man to stop receiving calls from disgruntled consumers is for your service operators to be upfront/transparent about the charges – that way there would be no complaints?
Regards,
Vanessa
From: Angela [mailto:angela
Sent: Thursday, 12 January 2006 12:00 PM
To: CustomerCare.AUS
Subject: IMP: 19773366 [Fishy Business]
Morning!
Big concern on the short code 19773366.
We have had several people call in regards to this short code claiming that they have been going onto dating sites such as rsvp.com.au and adultmatchmaker.com.au and other such dating sites. A female or various females and been 'luring' men with their charm and asking them to text them on the 19773366 number, telling the male victims they meet that they will be getting charged a normal sms and NOT a premium sms charge.
Some have also met up with women for coffee and drinks and these women [or one woman] gives the sms code as a contact sms! We also had a call from a man with a mobile number 0419 773 366 who unluckily, having the same digits of the short code in his mobile number, has been the victim of bombarded sms messages from these male victims trying to find this 'woman' on the other side of 19773366.
This is a big concern and though that you should know. We have had at least 10 messages from these guys saying that this woman has never mentioned any charges apart from a normal sms charge.
Please let me know if there is anything that we can do or say to these customers.
Any information will be of help!
Thanking you in advance
Angela....
[…]
SendTo: 'Scott Phillips' <[email protected]>,Vanessa Gois
CopyTo: [email protected] <[email protected]>
From: Simon Owen <[email protected]>
[…]
Subject: RE: Contact details required
[…]
DeliveredDate: 01/10/2006 09:08:10 AM
[…]
Vanessa
My number is 0424549431 my phone is on 24/7 my email is [email protected] I should be listed as a commercial contact Mark is definitely our technical contact his number is 0401432480 his email is [email protected]
Mark has been in a lot of contact with m365 tech support in Singapore lately apparently they are having some issue with replies to roaming messages to Optus, however I'm sure Mark and his team will work it all out.
FYI Scott is now back from Japan and contactable again, however I will be going to Indonesia tomorrow for a week, my phone and email will work from there however I would expect it not to be 100% reliable.
Simon
-----Original Message-----
From: Scott Phillips [mailto:[email protected]]
Sent: Monday, January 09, 2006 4:28 PM
To: simon owen
Subject: FW: Contact details required
Importance: High
------ Forwarded Message
From: Vanessa Gois <[email protected]>
Date: Mon, 9 Jan 2006 22:54:57 -0000
To: Scott Phillips <[email protected]>
Subject: Contact details required
Hi Scott,
I've noticed the Simon and Mark are copied on a lot of the emails you send through. Are they also my points of contacts with any matters relating to your service?
I need to provide our service desk with the following information:
Commercial contact: I have put your details for this - should Simon also be added here? If so can you please provide me with a contact number for him?
Technical Contact - is this Mark? If so can you please provide me with a contact number for him also?
Thanks and Regards,
Vanessa
Vanessa Gois
Account Manager
Mobile 365
Tel: +61 2 9258 9600
DDI: +61 2 9258 9602
Fax: +61 2 9251 6411
Mobile: +61 400 371 229
[email protected]
align="left">------ End of Forwarded Message
[…]
SendTo: Vanessa Gois,'Scott Phillips' <[email protected]>
CopyTo: [email protected] <[email protected]>
From: Simon Owen <[email protected]>
[…]
Subject: RE: auto messages ready
[…]
DeliveredDate: 01/03/2006 03:28:51 PM
[…]
Vanessa,
Here is the progress with these users as of close of business today.
Simon
-----Original Message-----
From: Glenn Maughan [mailto:[email protected]]
Sent: Monday, January 02, 2006 10:58 PM
To: [email protected]
Subject: RE: auto messages ready
Simon,
In regard to email from M365
Jack
[1317pm] Called customer on 0438011492, customer informed me he was busy and requested I call back in approximately one hour.
[1429pm] Attempted to contact customer phone rang out to message bank, left customer support number and comment regarding M365 complaint.
[1634pm] Attempted to contact customer phone rang out to message bank, left customer support number and comment regarding M365 complaint.
Joseph
Was unable to contact this customer as the M365 email did not provide a contact number and multiple users exist with the name Joseph in the database.
Richard
[1322pm] Attempted to call customer on 0404857152 phone rang out to message bank, left customer support number and comment regarding M365 complaint.
[1431pm] Attempted to contact customer phone rang out to message bank, left customer support number and comment regarding M365 complaint.
[1512pm] Customer called customer support line in response to message bank message, customer offered refund. Customer to call back with bank deposit details. 6 messages in 6 messages out.
David
[1325pm] Attempted to call customer on 0407947535, phone rang out to message bank, left customer support number and comment regarding M365 complaint.
[1432pm] Attempted to contact customer phone rang out to message bank, left customer support number and comment regarding M365 complaint.
[1510pm] Called customer and explained that he was being contacted in regard to an M365 complaint but his number was not in the system. Customer was asked if the messages were received on another number, customer provided the number 0432768258 number was found in the system. Customer offered refund but declined. Customer made it clear he was happy to simply be removed from the system.
-----Original Message-----
From: Vanessa Gois [mailto:[email protected]]
Sent: Monday, January 02, 2006 6:59 PM
To: Scott Phillips
Cc: simon owen; [email protected]
Subject: RE: auto messages ready
Hi Scott,
We have received calls from some very irate consumers re: messages received from 19773366. Please note these are complaints we received prior to receiving your customer care number.
Could you please arrange to have consumers contacted and refunded. Also could you please notify me when this is done so that I can let our call cetre know.
Thanks!
Vanessa
Jack [19773366]
0438 011 492
-Unsolicited. Wants a refund.
_____
Joseph [1977336]
-Unsolicited. Wants a refund.
_____
Richard 19773366
0404 857 152
--Unsolicited. Wants a refund.
_____
David 19773366
0407 947 535
-Unsolicited. Wants a refund.
_____
From: Scott Phillips [mailto:[email protected]]
Sent: Tuesday, January 03, 2006 12:42 PM
To: Vanessa Gois
Cc: simon owen; [email protected]
Subject: Re: auto messages ready
[Message text reproduced below]
On 2/1/06 10:40 AM, "Vanessa Gois" <[email protected]> wrote:
[Message text reproduced below]
_____
From: Scott Phillips [mailto:[email protected]]
<mailto:[email protected]%5d>
Sent: Mon 2/01/2006 12:18 AM
To: Vanessa Gois
Subject: Re: auto messages ready
[Message text reproduced below]
On 29/12/05 12:07 PM, "Vanessa Gois" <[email protected]> wrote:
[Message text reproduced below]
_____
From: Scott Phillips [mailto:[email protected]]
<mailto:[email protected]%5d>
Sent: Thursday, December 29, 2005 1:04 PM
To: Vanessa Gois
Subject: Re: auto messages ready
[Message text reproduced below]
On 29/12/05 11:44 AM, "Vanessa Gois" <[email protected]>
wrote:
[Message text reproduced below]
_____
From: Scott Phillips [mailto:[email protected]]
<mailto:[email protected]%5d>   <mailto:[email protected]%5d>
<mailto:[email protected]%5d>
Sent: Thursday, December 29, 2005 12:30 PM
To: Vanessa Gois; simon owen
Subject: Re: auto messages ready
[Message text reproduced below]
On 28/12/05 8:15 AM, "Vanessa Gois" <[email protected]>
wrote:
[Message text reproduced below]
_____
From: Simon Owen [mailto:[email protected]]
<mailto:[email protected]%5d>
<mailto:[email protected]%5d>
<mailto:[email protected]%5d>
<mailto:[email protected]%5d>
<mailto:[email protected]%5d>
Sent: Wednesday, December 28, 2005 3:15 AM
To: Scott Phillips; Vanessa Gois
Subject: Fw: auto messages ready
[Message text reproduced below]
[…]
SendTo: Vanessa Gois
CopyTo: simon owen <[email protected]>,[email protected] <[email protected]>
From: Scott Phillips <[email protected]>

[…]
Subject: Re: auto messages ready
[…]
DeliveredDate: 01/03/2006 09:42:53 AM
[…]
Thanks, that makes things clear :-)
On 2/1/06 10:40 AM, "Vanessa Gois" <[email protected]> wrote:
Hi Scott,
A Happy New Year to you also!
When you refer to invoice, I assume you are referring to Revenue share statements - is that correct?
If so, what happens now is that the carriers will send M365 an account of how > many messages were received per short code and how much revenue they pay us. We then translate this information into a statement and issue it to your company who inturn will issue M365 with an invoice for the amount stated.
We tend to get the carrier stats mid month and the statements are sent out to clients (and/or emailed) towards the end of the month. You can invoice us by either email or mail - which ever you prefer. (I'd recommend email, at leaseyou have a record of the date the invoice was sent).
hope this helps,
Regards,
Vanessa
From: Scott Phillips [mailto:[email protected]]
Sent: Mon 2/01/2006 12:18 AM
To: Vanessa Gois
Subject: Re: auto messages ready
Vanessa,
Happy new year :-)
Its the end of the period, what do we do about sending you an invoice? Would you like it in electronic form or paper? And I know this is going to sound stupid, but how do we work out the amount? ;)
Regards
Scott
On 29/12/05 12:07 PM, "Vanessa Gois" <[email protected]> wrote:
I1m so sorry to hear the Scott?.My condolences to your friend1s family.
I look forward to meeting you and Simon in the New Year.
Till then, take care.
Regards,
Vanessa
From: Scott Phillips [mailto:[email protected]]
Sent: Thursday, December 29, 2005 1:04 PM
To: Vanessa Gois
Subject: Re: auto messages ready
Morning Vanessa,
I was supposed to be going with my godson and his family to their new ski chalet in Hokkaido.
Unfortunately the father of the family passed away from a massive stroke at 4am on the morning we were supposed to leave. They stayed to arrange the funeral, and I came to get the house ready for their arrival on the 31st.
Birth is a terminal disease, and he was expected to die sometime soon so its not that big a shock, still kind of takes the edge off the festive season when your friends die ;-) But the snow here is incredible, 3m of base snow with 2m of When I get back Simon and I will come visit so you can put faces to the emails. Both of us are new to PSMS, our background is in adult internet, which we have been doing since 1996.
Scott
On 29/12/05 11:44 AM, "Vanessa Gois" <[email protected] wrote:
[Message text reproduced below]
From: Scott Phillips [mailto:[email protected]]
<mailto:[email protected]%5d>
Sent: Thursday, December 29, 2005 12:30 PM
To: Vanessa Gois; simon owen
Subject: Re: auto messages ready
Thanks Vanessa
Merry Christmas to you also :-) I will have a Japanese mobile phone in a few hours if you need to contact me urgently.
Regards
Scott
On 28/12/05 8:15 AM, "Vanessa Gois" <[email protected]> wrote:
[Message text reproduced below]
From: Simon Owen [mailto:[email protected]]
<mailto:[email protected]%5d>
<mailto:[email protected]%5d>
Sent: Wednesday, December 28, 2005 3:15 AM
To: Scott Phillips; Vanessa Gois
Subject: Fw: auto messages ready
[Message text reproduced below]
[…]
SendTo: Vanessa Gois,Scott Phillips <[email protected]>
From: Simon Owen <[email protected]>
[…]
Subject: Re: auto messages ready
[…]
DeliveredDate: 12/28/2005 06:48:32 AM
[…]
Hi Vanessa,
No problem at all I will change that text straight away, we sent out the $30 messages on the weekend and took a few customer service calls on our new support number. We have found generally the customer is just curious as to what they are paying for. Upon explaining this carefully more often than not they are happy. We have however refunded one particulary irrate customer. I've also purchased an answering machine to record customer service messages out of hours so we can call them back first thing in the mornings. We've begun writing up a customer service manual and an supplied an additional phone to our staff so we can keep that end of things covered although for now i'm answering most of the calls to ensure the quality of the information until we can provide adequate training to our staff.
Furthermore we stopped sending to all new contacts since our suspension until we could modify our system to send the first message for free with the free customer account. Our programmers just finished this about an hour ago, so we will start sending new contacts out again over the course of the day if you have any queries or any recomendations on how we can be doing things better please dont hesitate to call me 24/7 on 0424549431.
Your Sincerely,
Simon Owen
----- Original Message -----
From: Vanessa Gois
To: Simon Owen ; Scott Phillips
Sent: Tuesday, December 27, 2005 2:15 PM
Subject: RE: auto messages ready
Hi Simon,
Hope you had a lovely Christmas!
For the first message, could you please change the "4" to "for". Consumers may read the message as "your account has reached $304" and freak out!:)
Also, the character limit is 160 characters (inc spaces), so you can spell out customer as opposed to just cust if you wish.
The second message is fine.
Regards,
Vanessa
---------------------------------------------------------------------------
From: Simon Owen [mailto:[email protected]]
Sent: Wednesday, December 28, 2005 3:15 AM
To: Scott Phillips; Vanessa Gois
Subject: Fw: auto messages ready
[Message text reproduced below]
[…]
SendTo: Scott Phillips <[email protected]>,Vanessa Gois
From: Simon Owen <[email protected]>
[…]
Subject: Fw: auto messages ready
[…]
DeliveredDate: 12/27/2005 06:16:42 AM
[…]
Scott/Vanessa
The auto messages were put into the system last night this is the text we are using.
[FREEMSG] mobile-friend.com courtesy msg your account on 19773366 has reached $30 4 cust service call 1300659707
[FREE MESSAGE] emma from amm wishs to chat to you reply "yes" to this msg to be connected! $5.55 per msg pair emma from amm being a variable
Can we go ahead and send these messages?
Simon
[…]
SendTo: Vanessa Gois,Cameron Franks
CopyTo: simon owen <[email protected]>,[email protected] <[email protected]>
From: Scott Phillips <[email protected]>
[…]
Subject: Re: 19773366
[…]
DeliveredDate: 12/23/2005 08:14:34 AM
[…]
Thanks very much
Scott
On 23/12/05 10:04 AM, "Vanessa Gois" <[email protected]> wrote:
Hi Scott,
Your account has now been re-activated.
Regards,
Vanessa
-----Original Message-----
From: Scott Phillips [mailto:[email protected]]
Sent: Friday, December 23, 2005 10:20 AM
To: Vanessa Gois; Cameron Franks
Cc: simon owen; [email protected]
Subject: Re: 19773366
[Message text reproduced below]
On 23/12/05 9:08 AM, "Vanessa Gois" <[email protected]> wrote:
[Message text reproduced below]
-----Original Message-----
From: Scott Phillips [mailto:[email protected]]
Sent: Friday, December 23, 2005 9:31 AM
To: Vanessa Gois; Cameron Franks
Cc: simon owen; [email protected]
Subject: 19773366
[Message text reproduced below]
[…]
SendTo: Vanessa Gois,Cameron Franks
CopyTo: simon owen <[email protected]>,[email protected] <[email protected]>
From: Scott Phillips <[email protected]>
[…]
Subject: Re: 19773366
[…]
DeliveredDate: 12/23/2005 07:34:00 AM
[…]
Vanessa,
Thank you so much. I will have the programmers implement the $30 spend notification immediately.
Let me know if there is anything else to do before you switch the accounts back on.
Regards
Scott
On 23/12/05 9:08 AM, "Vanessa Gois" <[email protected]> wrote:
[Message text reproduced below]
-----Original Message-----
From: Scott Phillips [mailto:[email protected]]
Sent: Friday, December 23, 2005 9:31 AM
To: Vanessa Gois; Cameron Franks
Cc: simon owen; [email protected]
Subject: 19773366
[Message text reproduced below]
[…]
SendTo: Scott Phillips <[email protected]>,Cameron Franks
CopyTo: simon owen <[email protected]>,[email protected] <[email protected]>
From: Vanessa Gois
[…]
Subject: RE: 19773366
ComposedDate: 12/23/2005 07:08:00 AM
PostedDate: 12/23/2005 07:08:00 AM
[…]
Hi Scott,
The message wording you have below if fine. You can abbreviate the word free message to "FreeMsg" if you need to. Also, you might like to consider the following wording when conveying the price to consumers:"Cost $5.55 per message pair" vs "Cost $5.55 per 2 messages"
Also - it’s a best practice requirement that consumers be notified when they have reached a $30 expenditure on a short code. A free message needs to be sent with the following information:
*commencing with the phrase "Free Message"
*inform the customer has reached $30 spend
*include the name of the service and short code
Eg. "[Freemsg] Courtesy msg from <name of service>. You have reached $30
on shortcode 19773366 this month. For your info only, no action required"
Regards,
Vanessa
-----Original Message-----
From: Scott Phillips [mailto:[email protected]]
Sent: Friday, December 23, 2005 9:31 AM
To: Vanessa Gois; Cameron Franks
Cc: simon owen; [email protected]
Subject: 19773366
[Message text reproduced below]
[…]
SendTo: Vanessa Gois
From: Scott Phillips <[email protected]>
[…]
Subject: Re: 19773366 - IMP
[…]
DeliveredDate: 12/23/2005 06:53:48 AM
[…]
Sorry, its not mobile-friend.com
User m365
Pass admin
Scott
On 23/12/05 8:29 AM, "Vanessa Gois" <[email protected]> wrote:
I1ve just tried logging in to the mobile-friend.com web site with UN: m365 and
PW: admin à it1s not letting me in?.
From: Scott Phillips [mailto:[email protected]]
Sent: Thursday, December 22, 2005 5:40 PM
To: Cameron Franks
Cc: Vanessa Gois; Ryan Bowman; Daragh O'Sullivan; CustomerCare.AUS
Subject: Re: 19773366 - IMP
[Message text reproduced below]
On 22/12/05 1:44 PM, "Cameron Franks" <[email protected]> wrote:
[Message text reproduced below]
From: Ryan Bowman
Sent: Thursday, 22 December 2005 2:22 PM
To: Cameron Franks
Subject: RE: 19773366 - IMP
[Message text reproduced below]
From: Cameron Franks
Sent: Thursday, 22 December 2005 2:17 PM
To: Ryan Bowman
Subject: FW: 19773366 - IMP
[Message text reproduced below]
From: Hannah Sohail
Sent: Thursday, 22 December 2005 1:33 PM
To: Olivia Sindel
Cc: CustomerCare.AUS
Subject: 19773366 - IMP
Message text reproduced below]
[…]
SendTo: Vanessa Gois,Cameron Franks
CopyTo: simon owen <[email protected]>,[email protected] <[email protected]>
From: Scott Phillips <[email protected]>
[…]
Subject: 19773366
[…]
DeliveredDate: 12/23/2005 06:31:02 AM
[…]
Vanessa,
Nice to speak with you, and I apologise once again for our wrongdoing.
I confirm that we will immediately do the following:
1) Send all messages through our roaming account with you.
2) Make sure the initial message contains the following:
- First words to be "FREE MESSAGE"
- Message to contain the words "CHAT SERVICE"
- Message to contain the pricing information
3) Request handset ack
OK With this in mind, is this an acceptable opening message.
FREE MESSAGE - CHAT SERVICE, [firstname} Emma from amm has requested to chat
with you, to initiate chat reply YES. Cost $5.55 per 2 messaqges.
I am open to suggestions, is this acceptable?
Regards
Scott Phillips
[…]
SendTo: Cameron Franks
CopyTo: Vanessa Gois,Ryan Bowman,Daragh O'Sullivan,CustomerCare.AUS,Support
From: Scott Phillips <[email protected]>
[…]
Subject: Re: 19773366 - IMP
[…]
DeliveredDate: 12/22/2005 02:48:44 PM
[…]
Cameron,
I apologies for this, I was on a plane and my mobile phone (0431 792 336) was turned off. I have made sure that our customer care number will be manned 24/7 from now on.
How do we resolve this?
Scott
On 22/12/05 3:56 PM, "Cameron Franks" <[email protected]> wrote:
Scott
We have not been able to contact you on the mobile number provided to us, nor received any reply to the e mail below. Also we have tried the customer care number but that rang out. As such I have had to take the step of suspending your account with immediate effect. If we find out subsequently that these are spurious complaints we will be happy to reinstate the service, but our preliminary investigations of the message logs show that end users seem to be unaware that they are in a premium chat service, which ties in with the customer complaints that we have received below.
Regards
Cameron
________________________________
From: Cameron Franks
Sent: Thursday, 22 December 2005 2:44 PM
To: [email protected]
Cc: Vanessa Gois; Ryan Bowman; Daragh O'Sullivan; CustomerCare.AUS
Subject: FW: 19773366 - IMP
[Message text reproduced below]
________________________________
From:Ryan Bowman
Sent: Thursday, 22 December 2005 2:22 PM
To: Cameron Franks
Subject: RE: 19773366 - IMP
[Message text reproduced below]
________________________________
From: Cameron Franks
Sent: Thursday, 22 December 2005 2:17 PM
To: Ryan Bowman
Subject: FW: 19773366 - IMP
[Message text reproduced below]
________________________________
From: Hannah Sohail
Sent: Thursday, 22 December 2005 1:33 PM
To: Olivia Sindel
Cc: CustomerCare.AUS
Subject: 19773366 - IMP
[Message text reproduced below]
[…]
SendTo: Cameron Franks
CopyTo: Vanessa Gois,Ryan Bowman,Daragh O'Sullivan,CustomerCare.AUS
From: Scott Phillips <[email protected]>
Principal: Scott Phillips <[email protected]>
[…]
Subject: Re: 19773366 - IMP
ComposedDate: 12/22/2005 02:45:16 PM
PostedDate: 12/22/2005 02:45:16 PM
ExcludeFromView: D
DeliveredDate: 12/22/2005 02:45:16 PM
[…]
Cameron,
Nice to speak with you, I hope we can clear up any misunderstanding. Customers are being lured into chat sessions through dating sites like adultmatchmaker.com, rsvp.com etc.
A customer chats with a girl through the pay per use facilities on adultmatchmaker.com, for example. After several messages our girl suggests that since they are paying to send messages anyway, that they use the message service redirect on 19773366.
Users are told at this time that the service costs $5 MT, .$55 Shortly thereafter they are sent a message through an offshore route, clickatell.com which is linked through our database to say “Hi John (or whatever their name is), this is emma (or her name) off adultmatchmaker.com (or their website)
When they respond it opens a chat session and the girl begins to chat with them. There is strictly no adult chat, and it is monitored by a supervisor.
We have created an admin account for you at user m365 pass admin so you can monitor the logs of all chat sessions. The chat software is the link on the left called “wanglex”
Cameron, we wish to ensure we are compliant with our contract in every way. Please tell us what we have to change and we will change it immediately.
Also, do you have the correct customer care number in your records? It is 1 300 659 707.
My apologies for the misunderstanding
Scott Phillips
0431 792 336
On 22/12/05 1:44 PM, "Cameron Franks" <[email protected]> wrote:
Hi Scott
Can you give me or Ryan a call about this immediately. It seems that consumers are being lured into premium text sessions via IM or online chat rooms without the cost of messages being made clear to them. This is against regulations and our contracts. Please could you explain to me exactly how the service is run – and show me examples of the advertising that shows the message price and T’s and C’s.
If we are not provided with this info asap we will have no choice but to suspend the short codes you hold with us until this is clarified.
Many Thanks
Cameron
Cameron Franks
Country Manager, Australia
Mobile 365
Tel: +61 2 9258 9600
DDI: +61 2 9258 9601
Fax: +61 2 9251 6411
Mobile: +61 404 902926
[email protected]
align="left">From: Ryan Bowman
Sent: Thursday, 22 December 2005 2:22 PM
To: Cameron Franks
Subject: RE: 19773366 - IMP
Scott Phillips
[email protected]
0431 792 336
Cheers,
Ryan
________________________________
From: Cameron Franks
Sent: Thursday, 22 December 2005 2:17 PM
To: Ryan Bowman
Subject: FW: 19773366 - IMP
Who is the contact at IMP? If this is correct then will have to suspend their short codes
________________________________
From: Hannah Sohail
Sent: Thursday, 22 December 2005 1:33 PM
To: Olivia Sindel
Cc: CustomerCare.AUS
Subject: 19773366 - IMP
Hi Liv
Sheena has been receiving a number of calls from customers regarding the above shortcode. We do not have a customer care number listed for the company in the database. She said that all the customers have the same story: they were either speaking to someone online and gave them their number or met someone in a coffee shop or something. Soon after they receive messages charged at around $4.00. She was hoping we could look into the matter asap and call her back with any details.
Thanks
Hannah

Citation:		Australian Communications and Media Authority v Mobilegate Ltd A Company Incorporated in Hong Kong (No 8) [2010] FCA 1197
Parties:		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
File number:		QUD 426 of 2008
Judge:		LOGAN J
Date of judgment:		5 November 2010
Catchwords:		COMMUNICATIONS LAW – Unsolicited electronic messages sent – Use of premium short-code service to send unsolicited messages – Whether natural person was a person who aided, abetted, counselled or procured the contraventions by corporate entities – Where respondent had knowledge of material facts of the contravention – Spam Act 2003 (Cth), s 16 – Consideration of principles relevant to accessorial liability. Held: Respondent was knowingly involved in the contraventions of the Spam Act 2003 (Cth). TRADE PRACTICES – Misleading or deceptive conduct – Use of premium short-code service to send unsolicited electronic messages – Use of fabricated dating profiles to mislead customers into communicating through electronic messages via the premium short code – Whether respondent had aided, abetted, counselled or procured the contraventions of the Trade Practices Act 1974 (Cth), s 52 in accordance with s 75B. Held: Respondent was knowingly involved in the contraventions of the Trade Practices Act 1974 (Cth). EVIDENCE – Witnesses – Witness called by applicant without prior signed statement – Where witnesses testimony not all favourable – Whether tendering of his oral evidence by applicant meant that all of witness’ evidence must be treated as credible – Whether counsel may lead evidence contradicting the evidence given by the witness – Consideration of Kabadanis v Panagiotu (1979) 47 FLR 221. Held: Counsel not precluded from leading evidence contrary to evidence given by witness.
Legislation:		Evidence Act 1995 (Cth) ss 38, 59, 71, 140, 161 Spam Act 2003 (Cth) ss 6, 16 Trade Practices Act 1974 (Cth) s 52 Public Trustee Act 1978 (Qld) s 91
Cases cited:		Ashbury v Reid [1961] WAR 49 considered Australian Competition & Consumer Commission v Australian Safeway Stores Pty Ltd (2003) 129 FCR 339 cited Australian Competition and Consumer Commission v Black on White Pty Ltd (2001) 110 FCR 1 cited Briginshaw v Briginshaw (1938) 60 CLR 338 applied Chamberlain v The Queen (No 2) (1984) 153 CLR 521 considered Edwards v The Queen (1993) 178 CLR 193 applied Giorgianni v The Queen (1985) 156 CLR 473 applied Given v Pryor (1979) 39 FLR 437 cited Kabadanis v Panagiotu (1979) 47 FLR 221 approved Mallan v Lee (1949) 80 CLR 198 followed Medical Benefits Fund of Australia Ltd v Cassidy (2003) 135 FCR 1 followed R v Russell [1933] VLR 59 considered R v Tannous (1987) 10 NSWLR 303 cited Richards v Morgan (1863) 4 B & S 641 considered Rural Press Ltd vAustralian Competition and Consumer Commission (2003) 216 CLR 53 considered Shepherd v The Queen (1990) 170 CLR 573 distinguished The Heating Centre Pty Ltd v Trade Practices Commission (1986) 9 FCR 153 distinguished The King v Goldie; ex parte Picklum (1937) 59 CLR 254 followed Trade Practices Commission v Australian Meat Holdings Pty Ltd (1988) 83 ALR 299 distinguished Transport Industries Insurance Co Ltd v Longmuir [1997] 1 VR 125 considered Yorke v Lucas (1985) 158 CLR 661 applied Heydon, JD Cross on Evidence (7th Australian Ed, LexisNexis Butterworths, 2004) Heydon, JD Cross on Evidence (8th Australian Ed, LexisNexis Butterworths, 2010)
Dates of hearing:	30 November 2009 – 1 December 2009 7 – 8 December 2009 8 February 2010 – 12 February 2010
Place:	Brisbane
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	180
30 November 2009 – 1 December 2009 and 7 December 2009
Counsel for the Applicant:	Mr S Couper QC with 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
8 December 2009 and 8 February 2010 – 12 February 2010
Counsel for the Applicant:	Mr S Couper QC with Ms M Brennan
Solicitor for the Applicant:	Australian Government Solicitor
Counsel for the Eighth Respondent:	Mr T Laing
Solicitor for the Eighth Respondent:	Morgan Conley Solicitors

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

JUDGE:	LOGAN J
DATE OF ORDER:	5 NOVEMBER 2010
WHERE MADE:	BRISBANE

JUDGE:	LOGAN J
DATE:	5 NOVEMBER 2010
PLACE:	BRISBANE