FEDERAL COURT OF AUSTRALIA Australian Communications & Media Authority v Clarity1 Pty Ltd [2005] FCA 1161 AUSTRALIAN COMMUNICATIONS & MEDIA AUTHORITY v CLARITY1 PTY LTD and WAYNE ROBERT MANSFIELD WAD 155 of 2005 NICHOLSON J 22 AUGUST 2005 PERTH IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY WAD 155 OF 2005 BETWEEN: AUSTRALIAN COMMUNICATIONS & MEDIA AUTHORITY APPLICANT AND: CLARITY1 PTY LTD (ABN 60 106 529 604) FIRST RESPONDENT WAYNE ROBERT MANSFIELD SECOND RESPONDENT JUDGE: NICHOLSON J DATE OF ORDER: 22 AUGUST 2005 WHERE MADE: PERTH THE COURT ORDERS THAT: 1. The applicant's notice of motion dated 4 August 2005 be refused. 2. Costs reserved. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY WAD 155 OF 2005 BETWEEN: AUSTRALIAN COMMUNICATIONS & MEDIA AUTHORITY APPLICANT AND: CLARITY1 PTY LTD (ABN 60 106 529 604) FIRST RESPONDENT WAYNE ROBERT MANSFIELD SECOND RESPONDENT JUDGE: NICHOLSON J DATE: 22 AUGUST 2005 PLACE: PERTH REASONS FOR JUDGMENT 1 The applicant brings a notice of motion to vary the terms of an interlocutory injunction made on 4 August 2005. The terms of the injunction then made were to the following effect: 'An interlocutory injunction restraining the first respondent, whether by its directors, servants, agents or otherwise, from sending, or causing to be sent, commercial electronic messages, as defined by s 6 of the Spam Act 2003 (Cth) with an Australian link to any electronic address except in respect of the electronic addresses for which the first respondent has obtained the prior consent of the accountholder in accordance with the Spam Act 2003 (Cth)or which is otherwise permitted by that Act.' A similar injunction was made in respect of the second respondent. The interlocutory injunctions were in the same terms as interim injunctions granted on 20 July 2005. 2 By its notice of motion, the applicant seeks to amend the injunction to read to the following effect: '1. An interlocutory injunction restraining the first respondent, whether by its directors, servants, agents or otherwise, from sending, or causing to be sent, commercial electronic messages with an Australian link to any electronic address unless it has obtained: 1.1 the express consent of the account-holder of the electronic address; or 1.2 consent that can be reasonably inferred from: 1.2.1 a business or other relationship with the account-holder of the electronic address; 1.2.2 the conduct of the account-holder of the electronic address, apart from conduct constituted by the fact that the account-holder of the electronic address has not notified the first or second respondent that it wishes to unsubscribe from receiving such commercial electronic messages.' Similar terms are sought in respect of the second respondent. 3 The effect of the amendments, if the motion was granted, would be to decide a critical and central issue to the case brought against the respondents. The applicant contends that the determination of the motion to vary the terms of the interlocutory injunctions should be now decided because the volume of emails that will be issued by the first and second respondents between the time of its grant and the determination of the issue at trial affects the public interest and the interlocutory injunctions should therefore be so varied. 4 It is well known that for the grant of interlocutory relief there should be shown by the applicant to be a serious issue to be tried and that discretionary factors favour the grant of the relief sought. I am not in the circumstances persuaded that the second element has been established. 5 The second respondent is the director of the first respondent and was until the most recent hearing on the motion on 18 August 2005 represented. He appeared as a litigant in person on the last occasion. It is apparent that he is a commercially experienced and articulate person. He is convinced that, for reasons he wishes to espouse further to the Court, that he is not failing to abide by the Spam Act 2003 (Cth). He states categorically his intention to abide by that Act. He argues that in the case of email contacts established prior to the coming into force of that Act, providing for an opt out facility means that it can be inferred that, where a recipient has not opted out, consent has been given to receive the email. He wishes to argue this in an evidentiary context not yet fully apparent. 6 The Spam Act is new legislation. There is every reason to allow members of the public who are affected by it and who purport to comply with and wish to comply with its provisions to not be peremptorily subject to restrictions which may prove to be wrongly imposed before evidence is fully before the Court. 7 The applicant has already had the opportunity to seek interlocutory relief and has received it in the terms initially sought. 8 I am not persuaded that the possibility of voluminous email contact between the grant of the interlocutory relief and the determination of the issue at trial would so harm the public interest so as to sway the exercise of discretion in favour of the grant of the relief on the central point of law at this stage. That is because, having heard the second respondent, there seems to me to be an arguable case that in circumstances which may apply to the bulk of his communications, there is a serious issue to be tried in the proper evidentiary context. If he is right, there will be no harm to the public interest. 9 The applicant seeks to argue that if the second respondent is correct in his assertion that consent may be inferred from a failure to opt out in relation to commercial electronic messages as defined by the Spam Act that such an argument would not avail the respondents in any case. This is because the applicant says that the assertion relies on presumptions which are unreasonable. In my view, whether they are unreasonable falls to be judged with a proper knowledge of the available evidence. The respondents should have the opportunity pursuant to appropriate directions to bring that evidence to Court and the matter should be determined as soon as is consistent with those directions. 10 For these reasons I consider that the discretionary considerations weigh against the grant of the applicant's motion and accordingly it will be refused. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Nicholson. Associate: Dated: 22 August 2005 Counsel for the Applicant: S Owen Conway QC Solicitor for the Applicant: Australian Government Solicitor Counsel for the Respondents: K Robson (up to 18 August 2005) Solicitor for the Respondents: Tan & Tan (notice of discontinuance filed 18 August 2005) WR Mansfield represented himself and the first respondent (on 18 August 2005) Date of Hearing: 4 and 18 August 2005 Date of Judgment: 22 August 2005