DHR International Inc v Challis (No 4) [2016] NSWSC 610

Supreme Court New South Wales

Medium Neutral Citation: DHR International Inc v Challis (No 4) [2016] NSWSC 610 Hearing dates: 9 May 2016 Date of orders: 12 May 2016 Decision date: 12 May 2016 Jurisdiction: Common Law Before: Adamson J Decision: See paragraph 34 Catchwords: PROCEDURE – application to set aside subpoena – subpoena complied with and documents are available – plaintiff has legitimate forensic purpose in the documents covered by the subpoena – issue of whether defendant posted comments on his blog personally – relevant to malice in context of injurious falsehood – concerns about confidentiality do not provide basis to set aside a subpoena – application dismissed Legislation Cited: Competition and Consumer Act 2010 (Cth), Schedule 2, ss 18, 236 Telecommunications and Interception Act 1979 (Cth), Cases Cited: Harman v Secretary of State for the Home Department [1983] 1 AC 280 Category: Procedural and other rulings Parties: DHR international, Inc (Plaintiff) David challis (Defendant) Representation: Counsel: RC Gration (Plaintiff) D Sibtain/ P Horobin (Defendant)

Solicitors: K & L Gates (Plaintiff) Atanaskovic Hartnell (Defendant) File Number(s): 2015/305715

Judgment

Introduction 1. The plaintiff, DHR International Inc., claims injunctions and damages against Darren Challis, the defendant, on the basis of the tort of injurious falsehood and damages pursuant s 236 of Sch 2 to the Competition and Consumer Act 2010 (Cth) (the Australian Consumer Law) for misleading or deceptive conduct in trade or commerce in contravention of s 18 of the Australian Consumer Law. The plaintiff's claim arises from the defendant's posting of a blog in which he published representations and comments which denigrate the plaintiff and its business practices (the Blog). 2. By statement of claim filed on 13 November 2015 the plaintiff alleges, relevantly: [27] Since on or about 14 December 2014, the defendant has published various statements at the Blogs URLs that are false and/or that give rise to false imputations regarding the plaintiff and/or the plaintiff's business (False Blog Statements). [28] The defendant published the False Blog Statements maliciously. 1. By notice of motion filed on 14 April 2016, the defendant seeks to set aside a subpoena issued at the request of the plaintiff to Telstra Corporation Limited (Telstra) on 2 March 2016. 2. The schedule to the subpoena relevantly seeks the following documents: "The documents or things you must produce are as follows: 1. A Document (or Documents if the information sought is not recorded in a single document) recording the customer account information, including: (a) the name of the account holder; (b) the name of any account contact person; (c) the name of any person authorised to access information about the account or make changes to the account; (d) the billing address of the account holder; (e) the telephone number of the account holder; (f) the email address of the account holder; and (g) the address of the location where the service is supplied, for the account that was allocated IP address 121.209.225.60 as at 7 October 2015 at 08:52 UTC ('Relevant IP Address'). … 3. If the Relevant IP Address a dynamically allocated IP address, a Document (or Documents if the information sought is not recorded in a single Document) recording the following information for the period 12 December 2014 to the present date in respect of all communications with the service that was allocated to the Relevant IP Address as at 7 October 2015 at 08:52 UTC at the time each respective communication was made: (a) the IP address that had been allocated to the service at the time of the communication; (b) the identifiers of any device from which communications have been sent; (c) the identifiers of the account, telecommunications device or relevant service to which communications have been sent; (d) the date and time of the start and end of the communication; (e) the type of communication (HTTP, email, etc); and (f) the location of the equipment or line at the start and end of the communication." 1. Telstra has produced a CD-ROM disc in answer to the subpoena. The defendant has moved to set aside the subpoena on the grounds that it amounts to a fishing expedition and has no identifiable legitimate forensic purpose.