Furnari v Ziegert

Case [2016] FCA 1080

FEDERAL COURT OF AUSTRALIA

Furnari v Ziegert [2016] FCA 1080

File number: VID 873 of 2016
Judge: MURPHY J
Date of judgment: 2 September 2016
Catchwords: COMMUNICATIONS LAW – application for injunctive relief to remove a recording of a telephone conversation from the internet – whether serious question to be tried – whether telecommunication was intercepted while “passing over” a telecommunications service in breach of the Telecommunications (Interception and Access) Act 1979 (Cth) –– when a telecommunication becomes accessible to the intended recipient – no serious question to be tried – injunctive relief refused
Legislation:

Invasion of Privacy Act 1971 (Qld)

Telecommunications (Interception and Access) Act 1979 (Cth)
Cases cited:

Edelsten v Investigating Committee of New South Wales (1986) 7 NSWLR 222

Green v R (1996) 135 ALR 181; (1996) 85 A Crim R 229

R v Edelsten (1990) 21 NSWLR 542

United Dairy Power Pty Ltd v Murray Goulburn Co-Operative Ltd [2011] FCA 762

Violi v Berrivale Orchards Ltd [2000] FCA 797
Date of hearing: 31 August 2016
Registry: Victoria
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 33
Counsel for the Applicant: Mr J Castelan
Solicitor for the Applicant: Weinberg Lawyers
Counsel for the Respondents: The Respondents did not appear

ORDERS

VID 873 of 2016
BETWEEN:

RICHARD FRANK FURNARI
Applicant
AND:

CLAUDIA ZIEGERT

First Respondent

GISBERT RAINER SUMMERAUER

Second Respondent

JUDGE:

MURPHY J

DATE OF ORDER:

31 AUGUST 2016

THE COURT ORDERS THAT:

1.The application for interlocutory relief is dismissed.

2.The Respondents are directed to file and serve a Notice of Address for Service and a Defence by 21 September 2016.

3.The matter be listed for an urgent mediation by a Registrar as soon as practicable after 28 September 2016.  The Registrar is authorised to give directions as to the conduct of the mediation including as to the attendance of any persons the Registrar considers necessary for an effective mediation, and the provision of appropriate documents and/or position papers.  In the event the matter does not settle, the parties are to contact the chambers of Justice Murphy to list the matter for case management conference.

4.Costs are reserved.

5.Liberty to apply.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

MURPHY J:

  1. Before the Court is an application for interlocutory injunctive relief brought by the applicant, Mr Richard Furnari, against the respondents, Ms Claudia Ziegert and Mr Gisbert Rainer Summerauer, supported by an affidavit affirmed by the applicant on 11 August 2016.

  2. The substantive proceeding was commenced by way of Originating Application and Statement of Claim.  The proceeding seeks damages and injunctive relief for defamation and breach of the Telecommunications (Interception and Access) Act 1979 (Cth) (“TIA Act”). It is alleged that the respondents posted a recording to YouTube entitled “Richard Furnari from fusogeelong losing it at a woman” being a sound recording of statements made by the applicant in a telephone conversation with…

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AGLC
Furnari v Ziegert [2016] FCA 1080
Case
[2016] FCA 1080
Decision Date

CaseChat Overview and Summary

The case of Furnari v Ziegert involves an application for interlocutory relief to remove a recording of a telephone conversation from the internet. The applicant, Mr. Furnari, seeks an injunction to prevent the respondents, Ms. Ziegert and Mr. Ziegert, from hosting the recording on YouTube, and to remove the recording from Facebook and other internet platforms. The dispute between the parties originated from a transaction where Mr. Furnari purchased a dog from the respondents, and he alleges that they made misleading representations about the dog's condition and attributes. The matter is not before the court, as Mr. Furnari has commenced a separate proceeding in the Victorian Civil and Administrative Tribunal (VCAT). The core legal issue is whether the respondents intercepted a communication in breach of the Telecommunications (Interception and Access) Act 1979 (Cth). Specifically, the court must determine if the respondents recorded the telephone conversation while it was "passing over" a telecommunications service, which would constitute an interception under the Act.

The court found that while Mr. Furnari had established a prima facie case that the respondents recorded the telephone conversation without his knowledge or consent, and subsequently uploaded it to YouTube, there was no evidence to show that the recording occurred while the communication was "passing over" a telecommunications system. The court held that for a breach of the Act to occur, the interception must happen during the communication's passage over the telecommunications system. The evidence did not demonstrate how the recording was made, but the court inferred that it likely occurred at the point when the conversation became accessible to the respondents, i.e., when they were actively participating in the call. Therefore, the court concluded that there was no serious question to be tried regarding the alleged breach of the Act, and the application for injunctive relief was dismissed.

The court also directed the respondents to file and serve a Notice of Address for Service and a Defence by a specified date. An urgent mediation was scheduled, with the Registrar authorised to give directions to facilitate the mediation process. If the matter did not settle during mediation, the parties were to contact the chambers of Justice Murphy to list the matter for a case management conference. Costs were reserved, and liberty to apply was granted.

Orders

Orders of the court

1. The application for interlocutory relief is dismissed.

2. The Respondents are directed to file and serve a Notice of Address for Service and a Defence by 21 September 2016.

3. The matter be listed for an urgent mediation by a Registrar as soon as practicable after 28 September 2016. The Registrar is authorised to give directions as to the conduct of the mediation including as to the attendance of any persons the Registrar considers necessary for an effective mediation, and the provision of appropriate documents and/or position papers. In the event the matter does not settle, the parties are to contact the chambers of Justice Murphy to list the matter for case management conference.

4. Costs are reserved.

5. Liberty to apply.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

For the reasons I explain, I have refused the interlocutory relief sought. I am not persuaded that, on the evidence before me, there is a serious question to be tried as to the alleged breach of s 7(1) of the TIA Act.THE FACTUAL BACKGROUND The dispute between the parties started with the applicant purchasing a pedigree bobtail Doberman pup (“the Dog”) from the respondents for $3,500 in December 2015. In his affidavit he states that Ms Ziegert represented that the Dog could breed (that is, it was not sterilised), was a natural bobtail, was checked by a veterinarian, did not have Von Willebrand disease (“VWD”) and weighed between 9 and 10 kg. He said that upon receipt of the Dog he became aware that it was sterilised, carried the disease VWD, weighed only 4.5 kg, was unhealthy and was not a natural bobtail. He alleges that he was misled by the respondents. The dispute surrounding whether one or other of the respondents made misleading representations in the course of selling the Dog to the applicant is not before the Court. The applicant has issued a small claim proceeding against the respondents and their veterinarian in the Victorian Civil and Administrative Tribunal (“VCAT”). Counsel for the applicant indicated, somewhat uncertainly, that the proceeding was listed for hearing in October 2016. The applicant’s evidence has not been tested and the respondents have not put on a defence or any evidence as yet. I express no final view on the facts of this matter. Even if the facts turn out to be as set out below I may later be satisfied that there are good explanations for the conduct I describe. The materials include the following:(a)the YouTube Clip of the telephone conversation on 31 January 2016 records the applicant as saying to one or other of the respondents:(indecipherable) you are such a fucking thief and a liar and I knew that you were a liar from (indecipherable) and I’m gonna sue you and I’m gonna make the biggest issue of this. Counsel for the applicant accepted the accuracy of this except for noting that the applicant states that he said those words once not twice. The applicant also states those words were taken out of context and were said in response to a male saying words to him to the effect of “fuck off and lose my number prick”;(b)the applicant alleges that Ms Ziegert and/or Mr Summerauer (who he alleges were using other names) made defamatory statements about him in five posts to Ms Ziegert’s Facebook page (under the name and Facebook page of Jenny Haysim), and in four emails to Mr Furnari’s veterinarian, his solicitor and others and to a puppy advocacy group. He alleges that in their natural and ordinary meaning the statements meant that he engaged in abuse against women, engaged in harassment against women, threatened physical violence against women, is a misogynistic bully of women, has threatened, harassed and defamed Ms Ziegert, has spread lies about Ms Ziegert and others, has admitted to verbally abusing Ms Ziegert on the telephone, falsely claims to be a pillar of the community, falsely claimed that he is an unsung hero of the community, has made threats of violence that were so serious that the police could charge him, made up his evidence for the purposes of his VCAT claim, has spread lies for the purposes of his VCAT claim, is an intimidating and bullying individual, created a fake text message for the purposes of his VCAT claim, was engaged in an illegal conspiracy in his VCAT claim, knowingly filed a false affidavit in his VCAT claim, committed identity theft, fraud and perjury in his VCAT claim, is a sociopath and a “nut case”;(c)the evidence of Facebook posts by Ms Ziegert put on by the applicant, includes excerpts from internet posts alleged to have been made by the applicant directed at Ms Ziegert and text messages from the applicant to Ms Ziegert. In his detailed affidavit the applicant did not suggest that he had not made the statements to which Ms Ziegert pointed. These statements, which have not been tested and cannot be treated as proven, include the following (punctuation added):(i)a text sent by the applicant to Ms Ziegert which included the following passage:I actually like your name [the name of Ms Ziegert’s business]. It kinda sound alike the inside of a prison cell where people go when convicted of animal cruelty. Mmmmm. Told you this would be your beginning and end as I am of my word not like you scum. Enjoy the weekend it’s going to be a big weeks ahead for you. I hope you get channel nine and Foxtel where you are as I think your about to become a star on a current affair. Ahhhh. Revenge is best served face-to-face and I guess when your in court and the crowd that you have betrayed is kicking you and smothering you in chocolate truths it would be better than any desert possible. We love you Not.(ii)a text sent by the applicant to Ms Ziegert on 13 February 2016 at 4:26 pm which included the following passage:I bet your husband the guy that mouths off on the phone you know the one. I bet he feels like his balls are getting squashed in above at the moment. You that hard to breathe hard to sleep kind a feeling. Wait till Monday. You’ll have more Facebook hits than Beyonce.(iii)a text sent by the applicant to Ms Ziegert on 13 February 2016 at 4:29 pm which included the following passage:Jen what’s for dinner. Tipping the fries and Crays are about to stop. Start thinking more like lies and x-rays will be your thing.(iv)a post to the internet (I assume on Facebook) by the applicant on 14 February 2016 at 6:33 pm:Look guys Jenny’s home. All quiet. Perhaps it’s the RSPCA file or the filing of our court documents against her dogs Queensland dogs online bent st vets that made her hush-hush. Maybe she’s thinking of relocating and spreading around the evidence. Social media has given her a hammering and the best she could do was a pissy campaign of me swearing at her husband who laughed at me and deserved all I gave him. Your a joke Jenny and I promised you will not give up until I drag you into court not that it matters if you don’t appear the judgment and enforcement part is the real prize for all of us.(v)a post to the internet (I assume on Facebook) by the applicant on 14 February 2016 at 7:28 pm:Hey guys Jenny’s back on Facebook with flowers for pictures and hookers and a strippers for friends. She must have been baiting some easy rewind hooks up during the day. Over 500 views. Jenny babe. Your brand will be famous for Doberman breeding. Just for all the wrong reasons.Some of the posts to Facebook by Ms Ziegert (under the name Jenny Haysim) recommended that the reader listen to the YouTube Clip.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Mr Furnari deposes that on Sunday, 31 January 2016 he repeatedly telephoned Ms Ziegert on her mobile telephone but the calls went unanswered. He states that when the telephone was finally answered the second respondent screamed a profanity at him and in response he screamed back, telling the second respondent that he would sue and expose their “scam”. The recording shows that the applicant swore at the respondents too. The applicant states that he did not know that he was being recorded in that conversation. He says that he has since been informed by another disgruntled purchaser of a dog from the respondents that Ms Ziegert records all of her telephone conversations with purchasers. The applicant’s evidence is unchallenged.CONSIDERATION In my view the applicant made out a prima facie case that: (a)one or other of the respondents recorded the telephone conversation they had with him on 31 January 2016;(b)they did so without the applicant’s knowledge or consent; and (c)they uploaded the recording to YouTube.However, I do not consider the applicant made out a prima facie case that one or other of the respondents “intercepted” a communication passing over the telecommunication system as required for a breach of s 7(1) of the TIA Act. I start by noting that there is no evidence at all as to how the respondents made the recording. Notwithstanding the absence of such evidence, counsel for the applicant contended that I should infer that the telephone call was “intercepted” within the meaning of the Act. Counsel argued that there was sufficient evidence to establish a prima facie case that one or other of the respondents had used a recording device built into a mobile telephone (or through the use of an app that permitted this) that enabled the recording. Counsel handed up his instructing solicitor’s mobile telephone which showed that apps are available for purchase which allow a telephone user to record a conversation occurring on that telephone. I do not accept this submission. In my view, if the evidence remains as it is, there is nothing to show how the recording was made. The possibilities include that it was made by using a recording device (such as another mobile telephone) held up to the telephone to which the call was made, by plugging in a recording device into the mobile telephone, by using a recording device built into the mobile telephone or through an app that permitted recording. How the recording was made is critical to establishing a prima facie case of “interception” of a telecommunication under the TIA Act, and the applicant’s submissions paid little regard to the meaning of “intercept” in that Act. In my view, the evidence strongly points to the inference that one or other of the respondents recorded the telephone conversation at the point that it became accessible to them. It is likely that they were participating in the telephone conversation at the same time that it was being recorded. Contrary to the submissions of counsel for the applicant, while s 6 states that an interception of a telecommunication can occur “by any means”, it must be “in its passage” over the telecommunications system in order to fall within the provisions. Similarly, while the prohibition in s 7(1) is on doing “any act or thing” to intercept or to authorise another person to intercept a telecommunication, it relates only to a communication “passing over” a telecommunication system. In my view the effect of s 5H(1) is that a telephone call that has reached its intended recipient is “accessible” to that person.