Voxson Pty Ltd v Telstra Corporation Limited (No 10)

The case of Voxson Pty Ltd v Telstra Corporation Limited (No 10) involved a dispute between Voxson, a company involved in the development and supply of telecommunications software, and Telstra, an Australian telecommunications company. The primary issue before the court was whether Voxson could be granted leave to tender experimental evidence that had not been properly disclosed and ordered as required by the Federal Court Rules 2011 (Cth) r 34.50. Additionally, the court had to decide whether Telstra should be ordered to tender a process description and whether certain hearsay evidence and intercepted communications were admissible. The Federal Court was tasked with resolving these evidentiary and legal issues.

The court began by examining whether Voxson could be granted leave to tender experimental evidence, which had not been properly disclosed as required by FCR r 34.50. Voxson sought leave under subrule (2) to admit the experimental evidence. The court considered several factors in deciding whether to grant leave, including the availability of the experimenters for cross-examination, the extent to which Telstra had been prevented from viewing the experiment, the timing of the application for leave, and any prejudice to Telstra. The court concluded that despite the oversight that led to Voxson's non-compliance with the rule, the witnesses were available for cross-examination, and Telstra had not been significantly prejudiced by the late disclosure, leave should be granted.

The court also addressed whether Telstra should be ordered to tender a process description, as Voxson sought to cross-examine the person who verified the process description. The court found that Telstra was not required to tender the process description but should be ordered to make the person available for cross-examination. Additionally, the court considered whether a historical image of a webpage, obtained using the Wayback Machine, constituted hearsay evidence and was therefore inadmissible. The court held that the historical image was not hearsay evidence and thus was admissible. Lastly, the court determined that data obtained using proxy servers to communicate with the person sending the communication did not constitute an interception of a communication passing over a telecommunications system under the Telecommunications (Interception and Access) Act 1979 (Cth) and was therefore admissible.

The court granted Voxson leave to tender the experimental evidence and ordered Telstra to make the person available for cross-examination. The court also ruled that the historical image of the webpage was admissible and that the data obtained using proxy servers was not an unlawful interception.