Morad v El-Ashey

Case [2017] FCA 1136

FEDERAL COURT OF AUSTRALIA

Morad v El-Ashey [2017] FCA 1136

File number: VID 536 of 2017
Judge: KENNY J
Date of judgment: 22 September 2017
Catchwords:

COMMUNICATIONS LAW – alleged breaches of the Telecommunications (Interception and Access) Act 1979 (Cth) – whether emails were accessed while “passing over” a telecommunications system – whether respondent could have accessed a “stored communication”

PRACTICE AND PROCEDURE – application for summary judgment under s 31A of the Federal Court of Australia Act 1976 (Cth) and r 26.01(1)(a) of the Federal Court Rules 2011 (Cth) – held “no reasonable prospect” of successfully prosecuting the proceeding

Legislation:

Evidence Act 1995 (Cth)

Federal Court of Australia Act 1976 (Cth)

Telecommunications Act 1997 (Cth)

Telecommunications (Interception and Access) Act 1979 (Cth)

Cases cited:

Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352

Burge v Commonwealth Bank of Australia (No 3) [2017] FCA 383

Furnari v Ziegert [2016] FCA 1080

George v Fletcher (Trustee) [2010] FCAFC 53

Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd [2008] FCAFC 60; 167 FCR 372

Kowalski v MMAL Staff Superannuation Fund Pty Ltd [2009] FCAFC 117; 178 FCR 401

Nichol v Discovery Africa Limited [2016] FCAFC 182

Spencer v Commonwealth [2010] HCA 28; 241 CLR 118

Upaid Systems Ltd v Telstra Corporation Limited [2016] FCAFC 158

Violi v Berrivale Orchards Ltd [2000] FCA 797; 99 FCR 580
Date of hearing: 16 June 2017
Date of last submissions: 28 July 2017
Registry: Victoria
Division: General Division
National Practice Area  Other Federal Jurisdiction
Category: Catchwords
Number of paragraphs: 55
Counsel for the Applicant: C Thompson
Solicitor for the Applicant: NOH Legal
Counsel for the Respondent: W Thomas
Solicitor for the Respondent: Pearsons Lawyers Pty Ltd

ORDERS

VID 536 of 2017
BETWEEN:

TERRY MORAD

Applicant
AND:

MALAK EL-ASHEY

Respondent

JUDGE:

KENNY J

DATE OF ORDER:

22 SEPTEMBER 2017

THE COURT ORDERS THAT:

1.Summary judgment be entered for the respondent against the applicant in the terms of Order 2 below.

2.The originating application filed by the applicant on 18 May 2017 be dismissed under section 31A(2) of the Federal Court of Australia Act 1976 (Cth) and rule 26.01(1)(a) of the Federal Court Rules 2011 (Cth).

3.The interlocutory application filed on 15 June 2017 be otherwise dismissed.

4.The respondent be granted leave to file her further written submissions dated 7 July 2017.

5.On or before 4 pm on 2 October 2017 the respondent file and serve any other written submissions as to costs she wishes to make.

6.On or before 4 pm on 13 October 2017 the applicant file and serve his written submissions as to costs.

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


REASONS FOR JUDGMENT

KENNY J:

  1. The applicant, Mr Terry Morad, by his originating application and statement of claim, seeks relief for alleged breaches by the respondent, Ms Malak El-Ashey, of the Telecommunications (Interception and Access) Act 1979 (Cth) (TIA Act

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Details
AGLC
Morad v El-Ashey [2017] FCA 1136
Case
[2017] FCA 1136
Decision Date

CaseChat Overview and Summary

The case of Morad v El-Ashey involved a dispute between the applicant and the respondent, who were married and subsequently separated. The applicant alleged that the respondent breached the Telecommunications (Interception and Access) Act 1979 (Cth) by accessing emails addressed to the applicant from a Bigpond email address registered by the applicant with Telstra. The respondent denied these allegations and the case was brought before the Federal Court of Australia. The primary legal issue was whether the respondent's actions constituted a breach of the relevant sections of the TIA Act. The court needed to determine if the accessed emails were intercepted while "passing over" a telecommunications system, and whether the respondent could have accessed a "stored communication".

The court found that the applicant had no reasonable prospect of successfully prosecuting the claim as the accessed emails were not "passing over" a telecommunications system at the time of access. The court was satisfied that the emails were accessible to the intended recipient within the meaning of the TIA Act when the respondent accessed them. This conclusion was supported by the decisions in Furnari v Ziegert and Violi v Berrivale Orchards Ltd, where it was held that s 7(1) of the TIA Act could not apply when a communication has reached its intended recipient. The court exercised its power under s 31A of the Federal Court of Australia Act 1976 (Cth) and r 26.01(1)(a) of the Federal Court Rules 2011 (Cth) to grant summary judgment in favour of the respondent. The court dismissed the applicant's originating application and interlocutory application and ordered that the respondent be granted leave to file further written submissions regarding costs.

In summary, the court found that the respondent's actions did not breach the TIA Act and granted summary judgment in her favour. The applicant's claims were dismissed and the respondent was granted leave to file further submissions regarding costs.

Orders

Orders of the court

1. Summary judgment be entered for the respondent against the applicant in the terms of Order 2 below.

2. The originating application filed by the applicant on 18 May 2017 be dismissed under section 31A(2) of the Federal Court of Australia Act 1976 (Cth) and rule 26.01(1)(a) of the Federal Court Rules 2011 (Cth).

3. The interlocutory application filed on 15 June 2017 be otherwise dismissed.

4. The respondent be granted leave to file her further written submissions dated 7 July 2017.

5. On or before 4 pm on 2 October 2017 the respondent file and serve any other written submissions as to costs she wishes to make.

6. On or before 4 pm on 13 October 2017 the applicant file and serve his written submissions as to costs.

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

Background

Background to the litigation

In submissions dated 17 July 2017, the applicant submitted that there were “real issues in dispute which require[d] a factual and evidentiary investigation before the Court could reasonably form the view that the [a]pplicant’s application has no reasonable prospect of success”. The respondent filed submissions in reply on 28 July 2017. The respondent filed further submissions as to costs, without leave, on 7 July 2017. As indicated below, the question of costs is deferred until after judgment on the present application.BACKGROUND The applicant and the respondent were married in the mid-1990s, and separated in early 2015. They lived together until July 2015, when the applicant moved out of their matrimonial home. The present dispute concerns an email address which was registered by the applicant with Telstra (the Bigpond email address). It was undisputed that in around November 2015 the respondent accessed the Bigpond email address and accessed emails addressed to the applicant from that address. It was also undisputed that these emails were “communications” within the meaning of s 5 of the TIA Act, and that the applicant was the “intended recipient” of the emails addressed to him, within the meaning of the term “intended recipient” as defined by s 5G of the TIA Act. The respondent denies, however, that in accessing those emails she breached ss 7(1), 63, 108 and 133 of the TIA Act, as is claimed by the applicant.PROVISIONS WITH RESPECT TO SUMMARY JUDGMENT Section 31A(2) and (3) of the FCA Act provide:(2)The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if: (a)the first party is defending the proceeding or that part of the proceeding; and (b)the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding. (3)For the purposes of this section, a defence or a proceeding or part of a proceeding need not be: (a) hopeless; or (b) bound to fail; for it to have no reasonable prospect of success. Section 31A does not limit any other powers the Court may have: see s 31A(4). As already noted, the respondent also relied on r 26.01(1)(a) of the Rules, which is in the following terms:26.01 Summary judgment(1)A party may apply to the Court for an order that judgment be given against another party because:(a)the applicant has no reasonable prospect of successfully prosecuting the proceeding or part of the proceeding; or... After noting in their joint judgment in Spencer v Commonwealth [2010] HCA 28; 241 CLR 118 (Spencer) at [53] that “s 31A departs radically from the basis upon which earlier forms of provision permitting the entry of summary judgment have been understood and administered”, Hayne, Crennan, Kiefel and Bell JJ stated at [60]:Rather, full weight must be given to the expression [no reasonable prospect of successfully prosecuting the proceeding] as a whole. The Federal Court may exercise power under s 31A if, and only if, satisfied that there is “no reasonable prospect” of success. Of course, it may readily be accepted that the power to dismiss an action summarily is not to be exercised lightly. But the elucidation of what amounts to “no reasonable prospect” can best proceed in the same way as content has been given, through a succession of decided cases, to other generally expressed statutory phrases, such as the phrase “just and equitable” when it is used to identify a ground for winding up a company. At this point in the development of the understanding of the expression and its application, it is sufficient, but important, to emphasise that the evident legislative purpose revealed by the text of the provision will be defeated if its application is read as confined to cases of a kind which fell within earlier, different, procedural regimes.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

As already noted, the respondent also relied on r 26.01(1)(a) of the Rules, which is in the following terms:26.01 Summary judgment(1)A party may apply to the Court for an order that judgment be given against another party because:(a)the applicant has no reasonable prospect of successfully prosecuting the proceeding or part of the proceeding; or... After noting in their joint judgment in Spencer v Commonwealth [2010] HCA 28; 241 CLR 118 (Spencer) at [53] that “s 31A departs radically from the basis upon which earlier forms of provision permitting the entry of summary judgment have been understood and administered”, Hayne, Crennan, Kiefel and Bell JJ stated at [60]:Rather, full weight must be given to the expression [no reasonable prospect of successfully prosecuting the proceeding] as a whole. The Federal Court may exercise power under s 31A if, and only if, satisfied that there is “no reasonable prospect” of success. Of course, it may readily be accepted that the power to dismiss an action summarily is not to be exercised lightly. But the elucidation of what amounts to “no reasonable prospect” can best proceed in the same way as content has been given, through a succession of decided cases, to other generally expressed statutory phrases, such as the phrase “just and equitable” when it is used to identify a ground for winding up a company. At this point in the development of the understanding of the expression and its application, it is sufficient, but important, to emphasise that the evident legislative purpose revealed by the text of the provision will be defeated if its application is read as confined to cases of a kind which fell within earlier, different, procedural regimes. It has been said that the application of s 31A(2) requires “a practical judgment ... as to whether the applicant has more than a ‘fanciful’ prospect of success”, and that the power that it confers is to be exercised cautiously: Spencer at [24]-[25] (French CJ and Gummow J). There is no hard and fast rule as to when summary judgment is available. Much depends on the case at hand. Nonetheless, generally speaking, summary judgment would appear appropriate when well-established propositions of law deny the party against whom summary judgment is sought a reasonable prospect of success. Summary judgment would appear inappropriate where there are “factual issues capable of being disputed and in dispute”: Spencer at [25] (French CJ and Gummow J); and Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd [2008] FCAFC 60; 167 FCR 372 (Jefferson Ford); George v Fletcher (Trustee) [2010] FCAFC 53 at [74]-[76] (Ryan and Logan JJ); Upaid Systems Ltd v Telstra Corporation Limited [2016] FCAFC 158 at [46]-[49] (Perram, Jagot and Beach JJ) (Upaid Systems); Nichol v Discovery Africa Limited [2016] FCAFC 182 (Nichol) at [133]-[142] (Greenwood, McKerracher and Moshinsky JJ); and recently Burge v Commonwealth Bank of Australia (No 3) [2017] FCA 383 at [94] (Foster J).

Ratio Decidendi

Legal Principle Established

In particular, so the applicant submitted, a question arose as to whether “there [has] been access of a stored communication within the meaning of section 6AA”. In relation to this question, the applicant purported to provide what he described as “an outline of the expert independent evidence to be obtained from Telstra as the carrier, which, if accepted, will demonstrate that the access has been facilitated by means of equipment operated by a carrier, i.e., the server operated by Telstra” (original emphasis). There were also, so the applicant said, questions as to whether:If access is found to have been made, was it with the consent of the Applicant?Was the Bigpond Email solely used by the [Applicant] or was it a joint email address operated by both the Applicant and the Respondent? CONSIDERATIONAs to interception The Court is satisfied that the applicant has no reasonable prospect of successfully prosecuting the part of the proceeding that claims that there has been a breach of ss 7(1) and 63 of the TIA Act. On the undisputed facts, s 7(1) of the TIA Act cannot apply because the emails that the respondent accessed were not, relevantly, “passing over a telecommunications system” within the meaning of s 5F of the TIA Act at the time they reached the Bigpond email address. I accept that, as the respondent submitted, the emails accessed by her were accessible to the intended recipient (or intended recipients) within the meaning of s 5H of the TIA Act at the time she accessed them and were not then passing over a telecommunications system within the meaning of s 5F of the TIA Act. Since s 7(1) cannot apply, there is no basis on which it can be said that the respondent acted contrary to the prohibition in s 63 of the TIA Act. I am fortified in these conclusions by the decisions of Furnari v Ziegert [2016] FCA 1080 (Furnari v Ziegert) and Violi v Berrivale Orchards Ltd [2000] FCA 797; 99 FCR 580 (Violi v Berrivale Orchards Ltd), to which the respondent referred. In Furnari v Ziegert, in the context of an application for an interlocutory injunction, Murphy J considered an argument that s 7(1) of the TIA Act was contravened in circumstances where a telephone conversation had been recorded at the point at which it was received. His Honour considered that there was not a serious question to be tried as to the alleged breach of s 7(1). His Honour stated (at [24]):[W]hile s 6 states that an interception of a telecommunication can occur “by any means”, it must be “in its passage” over the telecommunications system in order to fall within the provisions. Similarly, while the prohibition in s 7(1) is on doing “any act or thing” to intercept or to authorise another person to intercept a telecommunication, it relates only to a communication “passing over” a telecommunication system. In my view the effect of s 5H(1) is that a telephone call that has reached its intended recipient is “accessible” to that person. Murphy J further stated (at [25]):Even if I am wrong in that view, s 5H(2) provides that subs (1) does not limit the circumstances in which a communication may be taken to be accessible to its intended recipient. I find it difficult to see how a telephone call which is received by an intended recipient is not accessible to that person. The evidence, such as it is, points away from an inference that one or other of the respondents intercepted a communication “passing over” the telecommunication service.