Mosaic Brands Ltd v Australian Communications and Media Authority
[2020] FCA 1527
•20 October 2020
FEDERAL COURT OF AUSTRALIA
Mosaic Brands Ltd v Australian Communications and Media Authority [2020] FCA 1527
File number: NSD 1025 of 2020 Judgment of: NICHOLAS J Date of judgment: 20 October 2020 Legislation: Federal Court of Australia Act 1976 (Cth) s 23
Telecommunications Act 1997 (Cth) s 522
Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 11 Date of hearing: 20 October 2020 Counsel for the Applicant: Mr T Brennan SC Solicitor for the Applicant: Uther Webster & Evans Counsel for the Respondents: Mr A D’Arville Solicitor for the Respondents: Australian Government Solicitor ORDERS
NSD 1025 of 2020 BETWEEN: MOSAIC BRANDS LTD
Applicant
AND: AUSTRALIAN COMMUNICATIONS AND MEDIA AUTHORITY
First Respondent
JEREMY FENTON
Second Respondent
ORDER MADE BY:
NICHOLAS J
DATE OF ORDER:
20 OCTOBER 2020
THE COURT NOTES THAT:
1.Upon the first respondent, by its counsel, giving the usual undertaking as to damages, namely to:
(a)submit to such order (if any) as the Court may consider to be just for the payment of compensation, to be assessed by the Court or as it may direct, to any person whether or not a party, adversely affected by the operation of these orders; and
(b)pay the compensation referred to in (a) to the person or persons there referred to.
THE COURT ORDERS THAT:
1.Until further order, Mosaic Brands Ltd (Mosaic Brands) take all reasonable steps to preserve, including halting any process of deletion or destruction of, all commercial electronic messages which were sent by Mosaic Brands (or another entity on its behalf) to the electronic addresses set out in Schedule C of the Notice dated 13 August 2020 issued by the Australian Communications and Media Authority (ACMA) pursuant to s 522 of the Telecommunications Act 1997 (Cth) (Notice).
2.Until further order, Mosaic Brands take all reasonable steps to preserve, including halting any process of deletion or destruction of, any additional information or documents held or controlled by Mosaic Brands (or another entity on its behalf) that is responsive to the information and documents required to be produced in answer to Schedule B of the Notice.
3.By 4.00pm on 27 October 2020, Mosaic Brands file and serve an affidavit made by its duly authorised company secretary that specifies to the best of his or her knowledge, information or belief based on proper and reasonable inquiries what steps have been taken to prevent the deletion or destruction of any commercial electronic message, document or information pursuant to orders 1 and 2 above.
4.Mosaic Brands pay ACMA’s costs of the interlocutory application filed on 19 October 2020.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(Revised)
NICHOLAS J:
The applicants for interlocutory relief (“ACMA”) seek interlocutory relief requiring the respondent to the interlocutory application (“Mosaic Brands”) to take reasonable steps to preserve the commercial electronic messages, documents and information (“the relevant material”) the subject of a notice (“the Notice”) given by ACMA to Mosaic Brands purportedly pursuant to s 522(2) of the Telecommunications Act 1997 (Cth) (“the Telco Act”).
The validity of the Notice is in issue in the substantive proceeding in which Mosaic Brands is the applicant and ACMA is the first respondent. Mosaic Brands seeks a declaration that the Notice is void or of no effect. ACMA has previously advised Mosaic Brands that it will not take steps to enforce the Notice until the determination of the substantive proceeding.
There is uncontested evidence before me which suggests that in the absence of interlocutory orders of the kind sought, at least some relevant material may be deleted or destroyed through automated processes that routinely purge electronic records that are more than 90 days old.
ACMA’s request for relevant undertakings was refused by Mosaic Brands on the basis that the Notice was likely to be declared void or of no effect. I approach the application for interlocutory relief on the basis that there are substantive arguments as to the validity of the Notice. Nothing that has been put to me would suggest that Mosaic Brands’ case for the relief it seeks is as strong as its response to the request for the relevant undertakings implies.
Mr Brennan SC, who appeared for Mosaic Brands, submitted that the orders sought by ACMA in the interlocutory application were not in aid of any final relief that could be granted in the substantive proceeding and that the remedy, if there is one, should relevant material be deleted or destroyed by Mosaic Brands between now and the determination of the substantive proceeding in favour of ACMA could only be the imposition of a criminal penalty for an offence under s 522(4) of the Telco Act.
Mr Brennan SC acknowledged the Court has power under s 23 of the Federal Court of Australia Act 1976 (Cth) to make the interlocutory orders sought by ACMA but submitted that the making of any such orders would necessarily involve an impermissible exercise of discretion. I do not accept that submission.
The purpose of making the interlocutory orders is to ensure that the enforcement of ACMA’s rights to compel production of relevant material pursuant to the Notice issued pursuant to s 522(2) is not frustrated by the inadvertent (or deliberate) loss or destruction of records that Mosaic Brands is bound to produce to ACMA (assuming the substantive proceeding is resolved in ACMA’s favour) during the time that it will take to hear and determine the substantive proceeding. More particularly, the interlocutory orders are properly made in aid of ACMA’s right to enforce compliance by Mosaic Brands with the obligation imposed on it by s 522(3) to comply with a notice given pursuant to s 522(2). In that regard, I do not accept that it would not be open to ACMA to enforce that obligation in civil proceedings should it be necessary for it to do so.
In the present case there is no evidence to suggest that it is not open to Mosaic Brands to take reasonable steps to preserve the relevant material until the determination of the substantive proceeding or that Mosaic Brands will suffer any significant inconvenience if the orders sought by ACMA are made. The balance of convenience appears to be all one way.
I am satisfied that it is appropriate to make orders 4 and 6 as set out in the interlocutory application subject to ACMA providing the usual undertaking as to damages. There should also be an order requiring Mosaic Brands to file and serve an affidavit within seven days specifying the steps that have been taken to comply with such orders.
Mosaic Brands must pay ACMA’s costs of the interlocutory application.
Orders accordingly.
I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Nicholas. Associate:
Dated: 20 October 2020
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