Supreme Court New South Wales Medium Neutral Citation: Optus Mobile v Lee [2018] NSWSC 1344 Hearing dates: 17/08/2018 Date of orders: 17 August 2018 Decision date: 17 August 2018 Jurisdiction: Equity - Commercial List Before: McDougall J Decision: Grant Optus leave to access, use and disclose the documents produced by Messrs Dao and Finlay. Catchwords: CIVIL PROCEDURE – Optus alleges that it is a victim of a fraud perpetrated by the defendant – Optus wishes to consult its carrier records to obtain information regarding the defendant's whereabouts – Telecommunications Act prohibits Optus from adopting that course and using or disclosing the information in its records – statutory exception applies where that use or disclosure is authorised by or under law – where those records are in the custody of the court pursuant to a subpoena – whether leave of the court granted to inspect documents produced under subpoena amounts to use by or under law – application to inspect granted. Legislation Cited: Telecommunications Act 1997 (Cth) Uniform Civil Procedure Rules 2005 (NSW) Federal Court Rules 1979 (Cth) Cases Cited: In the application of Telstra Corporation Ltd [2000] FCA 682 Category: Procedural and other rulings Parties: Optus Mobile Pty Ltd (Plaintiff) Anthony Lee (Defendant) Representation: Counsel: P Afshar (Plaintiff) Solicitors: Mills Oakley (Plaintiff) File Number(s): 2018/226151 JUDGMENT (EX TEMPORE – REVISED 17 AUGUST 2018) 1. HIS HONOUR: The plaintiff (Optus) says that it has been the victim of a fraud of considerable magnitude perpetrated by or at the direction of the defendant (Mr Lee). It is the case for Optus that Mr Lee fraudulently obtained in excess of 3,400 mobile telephonic devices. The evidence that was put before the court on an earlier application (for a freezing order and for injunctive relief relating to disposal of the mobile devices in question) satisfies me that there is at least a strong prima facie case that there has been a fraud of the kind that Optus alleges. 2. The court's earlier orders, and the process by reference to which they were granted, were served upon Mr Lee in accordance with the court's directions. Attempts to serve further process have failed. That may be because Mr Lee has closed the email account to which documents were sent. It may be because the inbox is full. It may be for other reasons. I am not presently concerned with that. 3. Optus wishes to obtain other information as to Mr Lee's whereabouts. It is aware that he has the use of mobile devices that are connected to the Optus network. It has, in its records, a volume of material that can show where, from time to time, Mr Lee's devices (and indeed the devices the subject of the fraud) are located. 4. In those circumstances, Optus issued subpoenas to two of its employees, Mr Dao and Mr Finlay. Those gentlemen have produced documents. No access has been granted. I am concerned today with Optus' request for access. 5. It may be wondered why Optus is required to go to the somewhat elaborate length of subpoenaing its own employees to produce its own records. The answer appears to lie in s 276 of the Telecommunications Act 1997 (Cth). That section prohibits "an eligible person" from disclosing or using any information or document that relates to communications carried by a carrier or a carriage service provider, or relates to carriage services, or relates to affairs of individuals, and other matters, where that information comes into the possession of the carrier as a result of its business. It would seem to be reasonably clear that the documents the subject of the subpoenas would fall within one or other of those prohibitions. It is equally clear that Optus, as a carriage service provider, and its employees are "eligible persons" who are subject to the command of s 276. 6. There are exceptions to s 276. One is found in s 279. Another, of greater present relevance, is found in s 280. Section 280 relevantly reads as follows: Authorisation by or under law (1) Division 2 does not prohibit a disclosure or use of information or a document if: (a) in a case where the disclosure or use is in connection with the operation of an enforcement agency--the disclosure or use is required or authorised under a warrant; or (b) in any other case--the disclosure or use is required or authorised by or under law. … (1B) Subject to subsection (1C), paragraph (1)(b) does not apply to a disclosure of information or a document if: (a) the disclosure is required or authorised because of: (i) a subpoena; or (ii) a notice of disclosure; or (iii) an order of a court; in connection with a civil proceeding; and (b) the information or document is kept, by a service provider (within the meaning of the Telecommunications (Interception and Access) Act 1979 ), solely for the purpose of complying with Part 5-1A of that Act; and (c) the information or document is not used or disclosed by the service provider for any purpose other than one or more of the following purposes: (i) complying with Part 5-1A of that Act; (ii) complying with the requirements of warrants under Chapters 2 and 3 of that Act or authorisations under Chapter 4 of that Act; (iii) complying with requests or requirements to make disclosures provided for by sections 284 to 288 of this Act; (iv) providing persons with access to their personal information in accordance with the Privacy Act 1988 ; (v) a purpose prescribed by the regulations; (vi) a purpose incidental to any of the purposes referred to in subparagraphs (i) to (v). (1C) Subsection (1B) does not apply: (a) in circumstances of a kind prescribed by the regulations; or (b) to a disclosure to an enforcement agency (within the meaning of the Telecommunications (Interception and Access) Act 1979 ); or (c) to a disclosure that occurs during the implementation phase (within the meaning of that Act). 1. Section 281 may also be of some relevance, although I do not think that it bears directly on the question with which I am concerned and accordingly shall not set it out. 2. The starting point is that the service of a subpoena on a person to produce documents acts as a command to the person to produce the documents called for. That follows from UCPR r 33.2. Once the documents are produced, they are within the custody of the court. The court may grant access, or indeed it may refuse access. Rule 33.9 deals with the use of documents that are produced on subpoena. I set it out: Inspection of, and dealing with, documents and things produced otherwise than on attendance (cf SCR Part 37, rule 9) (1) This rule applies if an addressee produces a document or thing in accordance with rule 33.6 (4) (b). (2) On the request in writing of a party, the registrar must inform the party whether production in response to a subpoena has occurred, and, if so, include a description, in general terms, of the documents and things produced. (3) Subject to this rule, no person may inspect a document or thing produced unless the court has granted leave and the inspection is in accordance with that leave. (4) Unless the court orders otherwise, the registrar may permit the parties to inspect at the office of the registrar any document or thing produced unless the addressee, a party or any person having sufficient interest objects to the inspection under this rule. (5) If the addressee objects to a document or thing being inspected by any party to the proceeding, the addressee must, at the time of production, notify the registrar in writing of the objection and of the grounds of the objection. (6) If a party or person having a sufficient interest objects to a document or thing being inspected by a party to the proceeding, the objector may notify the registrar in writing of the objection and of the grounds of the objection. (7) On receiving notice of an objection under this rule, the registrar: (a) must not permit any, or any further, inspection of the document or thing the subject of the objection, and (b) must refer the objection to the court for hearing and determination. (8) The registrar must notify the issuing party of the objection and of the date, time and place at which the objection will be heard, and the issuing party must notify the addressee, the objector and each other party accordingly. (9) The registrar must not permit any document or thing produced to be removed from the office of the registrar except on application in writing signed by the solicitor for a party. Note: See rule 1.3 (2) with respect to the meaning of the reference to a solicitor for a party. (10) A solicitor who signs an application under subrule (9) and removes a document or thing from the office of the registrar, undertakes to the court by force of this rule that: (a) the document or thing will be kept in the personal custody of the solicitor or a barrister briefed by the solicitor in the proceeding, and (b) the document or thing will be returned to the registry in the same condition, order and packaging in which it was removed, as and when directed by the registrar. Note: See rule 1.3 (3) with respect to the meaning of the reference to a solicitor who removes a document or thing from the office of the registrar and the reference to the personal custody of the solicitor. (11) The registrar may, in the registrar's discretion, grant an application under subrule (9) subject to conditions or refuse to grant the application. 1. On the face of things, it would appear that the actions of Messrs Dao and Finlay in producing documents pursuant to the subpoenas served upon them could amount to disclosure or use of the information contained in those documents. However, in my view, to the extent that it does, it is a disclosure or use that is required by law for the purposes of s 280(1)(b) of the Telecommunications Act. The requirement of or under law is the requirement, binding on all recipients of subpoenas unless and until they are set aside or excused from compliance, to produce the documents for which the subpoena calls. 2. The question then arises as to how Optus may obtain access. There can be no doubt, I think, that if Optus looks inside the subpoena packet, the information will be disclosed to it. There can be no doubt at all that if Optus thereafter uses the information (for example, for the purpose of locating Mr Lee, or locating the devices the subject of the alleged fraud), there will be a "use [of] information or document[s]" within s 276(1). 3. Because the documents are within the custody of the court, pursuant to the lawful command of a subpoena, the question of access is one for the discretion of the court. In my view, if the court grants access to Optus, including (as Optus seeks) access for use and disclosure of the documents or the information contained in them, that access, use or disclosure will be authorised by or under law for the purposes of s 280(1)(b). It will have that quality because the court, in whose custody the documents are pursuant to its lawful command constituted by the issue and service of the subpoena, permits the access, use and disclosure pursuant to its powers under r 33.9. 4. In my view, therefore, it is open to the court to make the orders sought. It follows that if the court makes those orders and Optus exercises its leave under them, it will fall within the exception that s 280(1)(b) provides for the prohibition otherwise applicable under s 276(1)(a). 5. Mr Afshar of counsel, who appeared for Optus (and I should record that the application was heard in the absence of Mr Lee) referred me to the decision of Burchett J in In the application of Telstra Corporation Ltd [1] . The facts of that case were somewhat different, because Telstra sought, under Order 15A r 3 of the Federal Court Rules as they then stood, what is commonly called preliminary discovery. 6. Burchett J considered that there was information likely to identify the respondent within Telstra's records, preliminary discovery of which Telstra sought. His Honour considered that in those circumstances s 276 of the Telecommunications Act applied. He thought that s 279(1) might relieve the applicant, because production of the documents by an employee of Telstra would be in the performance of that person's duties as an employee. However, his Honour said, it was unfair to expose the employee to the risk that that analysis might be incorrect. I respectfully agree. 7. In those circumstances, Burchett J turned to consider s 280 of the Telecommunications Act. His Honour said that if the orders sought were made, the disclosure and use for the purposes identified would be required or authorised by or under law. As will be seen from what I have said already, I respectfully agree with that analysis, whilst acknowledging that both the facts and the legislative scheme are somewhat different in the application with which I am concerned. 8. Finally, his Honour considered whether, in effect, the order could be made for the benefit, as a "person", of the applicant itself. He said at [5] that it could be. Again, I am satisfied, for the reasons his Honour gave, that in this case r 33.9 does have that effect. 9. For those reasons, I am satisfied that it is appropriate to grant Optus leave to access, use and disclose the documents produced by Messrs Dao and Finlay and the information contained in them. It follows that I shall make orders in accordance with paragraphs 1 to 6 as amended of the form of order initialled by me and dated today's date. ********** Endnote 1. [2000] FCA 682. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 August 2018