FEDERAL COURT OF AUSTRALIA

Furnari v Ziegert [2016] FCA 1080

ORDERS

THE COURT ORDERS THAT:

1.    The application for interlocutory relief is dismissed.

2.    The Respondents are directed to file and serve a Notice of Address for Service and a Defence by 21 September 2016.

3.    The matter be listed for an urgent mediation by a Registrar as soon as practicable after 28 September 2016. The Registrar is authorised to give directions as to the conduct of the mediation including as to the attendance of any persons the Registrar considers necessary for an effective mediation, and the provision of appropriate documents and/or position papers. In the event the matter does not settle, the parties are to contact the chambers of Justice Murphy to list the matter for case management conference.

4.    Costs are reserved.

5.    Liberty to apply.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

MURPHY J:

1    Before the Court is an application for interlocutory injunctive relief brought by the applicant, Mr Richard Furnari, against the respondents, Ms Claudia Ziegert and Mr Gisbert Rainer Summerauer, supported by an affidavit affirmed by the applicant on 11 August 2016.

2    The substantive proceeding was commenced by way of Originating Application and Statement of Claim. The proceeding seeks damages and injunctive relief for defamation and breach of the Telecommunications (Interception and Access) Act 1979 (Cth) (“TIA Act”). It is alleged that the respondents posted a recording to YouTube entitled “Richard Furnari from fusogeelong losing it at a woman” being a sound recording of statements made by the applicant in a telephone conversation with one or other of the respondents on 31 January 2016 (“the YouTube Clip”). It is alleged that the recording was made in breach of s 7(1) of the TIA Act and relief is sought pursuant to s 107A of that Act.

3    The applicant seeks interlocutory orders for the removal of the YouTube Clip from the internet and for the delivery up to him of all copies of the recording on which the YouTube Clip is based.

4    The respondents did not appear on the hearing of the interlocutory application on 31 August 2016. I allowed the matter to proceed because I was satisfied on the materials that the respondents had been informed of the hearing. Affidavits of service filed by the applicant show that they were personally served with the Originating Application (including the claim for interlocutory injunctive relief) and the Statement of Claim on 2 August 2016. On 1 August 2016 my chambers sent an email to the respondents advising them that the interlocutory application was fixed for hearing on 31 August 2016 and setting out a timetable for the filing of any affidavit and submissions.

5    Since the hearing the second respondent has emailed my chambers (using the same email address as that used by my chambers to inform him of the interlocutory hearing) stating that the respondents had no notice of the hearing. I do not accept that the respondents had no notice, but little turns on the issue as the interlocutory application was unsuccessful.

6    For the reasons I explain, I have refused the interlocutory relief sought. I am not persuaded that, on the evidence before me, there is a serious question to be tried as to the alleged breach of s 7(1) of the TIA Act.

The factual background

7    The dispute between the parties started with the applicant purchasing a pedigree bobtail Doberman pup (“the Dog”) from the respondents for $3,500 in December 2015. In his affidavit he states that Ms Ziegert represented that the Dog could breed (that is, it was not sterilised), was a natural bobtail, was checked by a veterinarian, did not have Von Willebrand disease (“VWD”) and weighed between 9 and 10 kg. He said that upon receipt of the Dog he became aware that it was sterilised, carried the disease VWD, weighed only 4.5 kg, was unhealthy and was not a natural bobtail. He alleges that he was misled by the respondents.

8    The dispute surrounding whether one or other of the respondents made misleading representations in the course of selling the Dog to the applicant is not before the Court. The applicant has issued a small claim proceeding against the respondents and their veterinarian in the Victorian Civil and Administrative Tribunal (“VCAT”). Counsel for the applicant indicated, somewhat uncertainly, that the proceeding was listed for hearing in October 2016.

9    The applicant’s evidence has not been tested and the respondents have not put on a defence or any evidence as yet. I express no final view on the facts of this matter. Even if the facts turn out to be as set out below I may later be satisfied that there are good explanations for the conduct I describe. The materials include the following:

(a)    the YouTube Clip of the telephone conversation on 31 January 2016 records the applicant as saying to one or other of the respondents:

(indecipherable) you are such a fucking thief and a liar and I knew that you were a liar from (indecipherable) and I’m gonna sue you and I’m gonna make the biggest issue of this.

Counsel for the applicant accepted the accuracy of this except for noting that the applicant states that he said those words once not twice. The applicant also states those words were taken out of context and were said in response to a male saying words to him to the effect of “fuck off and lose my number prick”;

(b)    the applicant alleges that Ms Ziegert and/or Mr Summerauer (who he alleges were using other names) made defamatory statements about him in five posts to Ms Ziegert’s Facebook page (under the name and Facebook page of Jenny Haysim), and in four emails to Mr Furnari’s veterinarian, his solicitor and others and to a puppy advocacy group. He alleges that in their natural and ordinary meaning the statements meant that he engaged in abuse against women, engaged in harassment against women, threatened physical violence against women, is a misogynistic bully of women, has threatened, harassed and defamed Ms Ziegert, has spread lies about Ms Ziegert and others, has admitted to verbally abusing Ms Ziegert on the telephone, falsely claims to be a pillar of the community, falsely claimed that he is an unsung hero of the community, has made threats of violence that were so serious that the police could charge him, made up his evidence for the purposes of his VCAT claim, has spread lies for the purposes of his VCAT claim, is an intimidating and bullying individual, created a fake text message for the purposes of his VCAT claim, was engaged in an illegal conspiracy in his VCAT claim, knowingly filed a false affidavit in his VCAT claim, committed identity theft, fraud and perjury in his VCAT claim, is a sociopath and a “nut case”;

(c)    the evidence of Facebook posts by Ms Ziegert put on by the applicant, includes excerpts from internet posts alleged to have been made by the applicant directed at Ms Ziegert and text messages from the applicant to Ms Ziegert. In his detailed affidavit the applicant did not suggest that he had not made the statements to which Ms Ziegert pointed. These statements, which have not been tested and cannot be treated as proven, include the following (punctuation added):

(i)    a text sent by the applicant to Ms Ziegert which included the following passage:

I actually like your name [the name of Ms Ziegert’s business]. It kinda sound alike the inside of a prison cell where people go when convicted of animal cruelty. Mmmmm. Told you this would be your beginning and end as I am of my word not like you scum. Enjoy the weekend it’s going to be a big weeks ahead for you. I hope you get channel nine and Foxtel where you are as I think your about to become a star on a current affair. Ahhhh. Revenge is best served face-to-face and I guess when your in court and the crowd that you have betrayed is kicking you and smothering you in chocolate truths it would be better than any desert possible. We love you Not.

(ii)    a text sent by the applicant to Ms Ziegert on 13 February 2016 at 4:26 pm which included the following passage:

I bet your husband the guy that mouths off on the phone you know the one. I bet he feels like his balls are getting squashed in above at the moment. You that hard to breathe hard to sleep kind a feeling. Wait till Monday. You’ll have more Facebook hits than Beyonce.

(iii)    a text sent by the applicant to Ms Ziegert on 13 February 2016 at 4:29 pm which included the following passage:

Jen what’s for dinner. Tipping the fries and Crays are about to stop. Start thinking more like lies and x-rays will be your thing.

(iv)    a post to the internet (I assume on Facebook) by the applicant on 14 February 2016 at 6:33 pm:

Look guys Jenny’s home. All quiet. Perhaps it’s the RSPCA file or the filing of our court documents against her dogs Queensland dogs online bent st vets that made her hush-hush. Maybe she’s thinking of relocating and spreading around the evidence. Social media has given her a hammering and the best she could do was a pissy campaign of me swearing at her husband who laughed at me and deserved all I gave him. Your a joke Jenny and I promised you will not give up until I drag you into court not that it matters if you don’t appear the judgment and enforcement part is the real prize for all of us.

(v)    a post to the internet (I assume on Facebook) by the applicant on 14 February 2016 at 7:28 pm:

Hey guys Jenny’s back on Facebook with flowers for pictures and hookers and a strippers for friends. She must have been baiting some easy rewind hooks up during the day. Over 500 views. Jenny babe. Your brand will be famous for Doberman breeding. Just for all the wrong reasons.

Some of the posts to Facebook by Ms Ziegert (under the name Jenny Haysim) recommended that the reader listen to the YouTube Clip.

10    While I express no final view, the material tends to show that what started as a minor and straightforward commercial dispute over alleged misrepresentations in the sale of a dog has descended into a slanging match by telephone, text message, email and on social media. It does not appear the parties have behaved in a level-headed fashion and their conduct has inflamed rather than assisted to resolve the dispute between them.

11    Even so, this does not mean that the applicant will be unable to make out his defamation claim. Those allegations are a matter for another day.

The interlocutory application

12    The applicant alleges that the sound recording in the YouTube Clip constitutes a breach of s 7(1) of the TIA Act because the respondents intercepted or authorised, suffered or permitted others to intercept the telephone conversation as it passed over the telecommunications system.

13    The applicant seeks the following orders:

That pursuant to section 107A of the Telecommunications (Interception and Access) Act 1979 (Cth):

(a)    the defendants are ordered to immediately remove the Youtube Clip from the world wide web; and

(b)    the defendants are ordered to immediately deliver up to Furnari all copies of any record of the Information in their possession, custody or control.

The relevant principles

14    The principles governing the grant of interlocutory relief are well-established. They were set out in United Dairy Power Pty Ltd v Murray Goulburn Co-Operative Ltd [2011] FCA 762 (Dodds-Streeton J) at [44) where her Honour accepted the following submissions:

(a)    Whether the applicant has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief.

(b)    A prima facie case means that the applicant must show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending trial. It does not mean that the applicant must show that it is more probable than not, or in excess of 50% chance, that the applicant will succeed at trial.

(c)    How strong the probability needs to be depends upon the nature of the rights the applicant asserts and the practical consequences likely to flow from the order it seeks.

(d)    The second inquiry is whether the inconvenience or injury which the applicant would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the respondent would suffer if an injunction were granted.

In considering disputed factual and legal matters in order to determine whether a prima facie case exists, Young J described the proper approach in Smith v University of Ballarat as follows:

“[26] One final and perhaps obvious point that bears repeating is that the court does not embark on anything resembling a trial of the action when it deals with an application for interlocutory relief. Ordinarily, the court will not attempt to reach any conclusion as to the facts or matters in dispute, beyond satisfying itself as to whether there is a serious question to be tried, or about other matters that may bear on the balance of convenience or discretionary considerations.”

The legislative framework

15    Section 6(1) of the TIA Act states:

For the purposes of this Act, but subject to this section, interception of a communication passing over a telecommunications system consists of listening to or recording, by any means, such a communications in its passage over that telecommunications system without the knowledge of the person making the communication.

(Emphasis added.)

16    Section 7(1) of the TIA Act provides:

A person shall not:

(a)    intercept;

(b)    authorise, suffer or permit another person to intercept; or

(c)    do any act or thing that will enable him or her or another person to intercept:

a communication passing over a telecommunication system.

(Emphasis added.)

17    Section 5F of the TIA Act provides:

When a communication is passing over a telecommunication system

For the purposes of this Act, a communication:

(a)    is taken to start passing over a telecommunication system when it is sent or transmitted by the person sending the communication; and

(b)    is taken to continue to pass over the system until it becomes accessible to the intended recipient of the communication.

(Emphasis added.)

Once the communication becomes accessible to the intended recipient, it is no longer “passing over” the telecommunication system.

18    This is confirmed by s 5H which provides:

When a communication is accessible to the intended recipient

(1)    For the purposes of this Act, a communication is accessible to its intended recipient if it:

(a)    has been received by the telecommunications service provided to the intended recipient; or

(b)    is under the control of the intended recipient; or

(c)    has been delivered to the telecommunications service provided to the intended recipient.

(2)    Subsection (1) does not limit the circumstances in which a communication may be taken to be accessible to its intended recipient for the purposes of this Act.

(Emphasis in original.)

The evidence

19    Mr Furnari deposes that on Sunday, 31 January 2016 he repeatedly telephoned Ms Ziegert on her mobile telephone but the calls went unanswered. He states that when the telephone was finally answered the second respondent screamed a profanity at him and in response he screamed back, telling the second respondent that he would sue and expose their “scam”. The recording shows that the applicant swore at the respondents too. The applicant states that he did not know that he was being recorded in that conversation. He says that he has since been informed by another disgruntled purchaser of a dog from the respondents that Ms Ziegert records all of her telephone conversations with purchasers. The applicant’s evidence is unchallenged.

Consideration

20    In my view the applicant made out a prima facie case that:

(a)    one or other of the respondents recorded the telephone conversation they had with him on 31 January 2016;

(b)    they did so without the applicant’s knowledge or consent; and

(c)    they uploaded the recording to YouTube.

However, I do not consider the applicant made out a prima facie case that one or other of the respondents “intercepted” a communication passing over the telecommunication system as required for a breach of s 7(1) of the TIA Act.

21    I start by noting that there is no evidence at all as to how the respondents made the recording. Notwithstanding the absence of such evidence, counsel for the applicant contended that I should infer that the telephone call was “intercepted” within the meaning of the Act. Counsel argued that there was sufficient evidence to establish a prima facie case that one or other of the respondents had used a recording device built into a mobile telephone (or through the use of an app that permitted this) that enabled the recording. Counsel handed up his instructing solicitor’s mobile telephone which showed that apps are available for purchase which allow a telephone user to record a conversation occurring on that telephone.

22    I do not accept this submission. In my view, if the evidence remains as it is, there is nothing to show how the recording was made. The possibilities include that it was made by using a recording device (such as another mobile telephone) held up to the telephone to which the call was made, by plugging in a recording device into the mobile telephone, by using a recording device built into the mobile telephone or through an app that permitted recording. How the recording was made is critical to establishing a prima facie case of “interception” of a telecommunication under the TIA Act, and the applicant’s submissions paid little regard to the meaning of “intercept” in that Act.

23    In my view, the evidence strongly points to the inference that one or other of the respondents recorded the telephone conversation at the point that it became accessible to them. It is likely that they were participating in the telephone conversation at the same time that it was being recorded.

24    Contrary to the submissions of counsel for the applicant, while s 6 states that an interception of a telecommunication can occur “by any means”, it must be “in its passage” over the telecommunications system in order to fall within the provisions. Similarly, while the prohibition in s 7(1) is on doing “any act or thing” to intercept or to authorise another person to intercept a telecommunication, it relates only to a communication “passing over” a telecommunication system. In my view the effect of s 5H(1) is that a telephone call that has reached its intended recipient is “accessible” to that person.

25    Even if I am wrong in that view, s 5H(2) provides that subs (1) does not limit the circumstances in which a communication may be taken to be accessible to its intended recipient. I find it difficult to see how a telephone call which is received by an intended recipient is not accessible to that person. The evidence, such as it is, points away from an inference that one or other of the respondents intercepted a communication “passing over” the telecommunication service.

26    In Violi v Berrivale Orchards Ltd [2000] FCA 797 at [7] to [8] Branson J considered s 7(1) in the Telecommunications (Interception) Act 1979 (Cth) (as the TIA Act was then known). Her Honour said:

The Interception Act is of relevance in the circumstances which I am required to consider only if Mr Violi recorded a communication passing over a telecommunications system “in its passage over the telecommunications system” (s 6).

As the recording made by Mr Violi of the telephone conversations between him and Mr Pumpa was apparently made by recording sound emitted from the telephone handpiece, it would appear that he did not record “a communication in its passage over [a] telecommunications system” within the meaning of the Interception Act. Rather he recorded a conversation after its passage over a telecommunication system. Nothing in the Interception Act discloses an intention to “cover the field” in the Constitutional sense so far as the recording of telephone conversations is concerned, as opposed to an intention to cover the field so far as telecommunication interception is concerned (cf Miller v Miller (1978) 141 CLR 269). For these reasons I give no further consideration to the Interception Act.

(Emphasis in original.)

I take the same view.

27    Counsel for the applicant argued that this construction of ss 6 and 7(1) of the TIA Act puts up an impossible hurdle for persons who are the victims of illegally recorded telephone conversations. On this contention an applicant alleging breach of s 7(1) would never be able to prove breach because the method by which the telephone call was recorded would always be peculiarly within the knowledge of the person who made it.

28    This submission does not take account of the fact that the TIA Act relates to the interception of communications “passing over” a telecommunication system and, as Branson J said, is not intended to cover the field in relation to the recording of telephone conversations by a party to that conversation. In Green v R (1996) 135 ALR 181; (1996) 85 A Crim R 229, Franklyn J agreed with the Court of Criminal Appeal in R v Edelsten (1990) 21 NSWLR 542 at 549 (citing with approval Lee J in Edelsten v Investigating Committee of New South Wales (1986) 7 NSWLR 222) that in seeking to control interception of communications the TIA Act is concerned to protect privacy of communications passing between users of the system. His Honour noted, and I respectfully agree, that there is no privacy of communication “to be protected as between the caller and the intended recipient who receives the call. The intended protection is against the third party invading the privacy of that communication by an interception within the meaning of s 6(1).”

29    I consider the evidence, as it is, does not show a serious question to be tried as to whether one or other of the respondents intercepted a communication “passing over” a telecommunication system in breach of s 7(1) of the TIA Act.

30    It is also worth noting that the respondents live and work in Queensland. If it were necessary to decide I would infer that they were in Queensland when the applicant telephoned them on 31 January 2016. Section 43 of the Invasion of Privacy Act 1971 (Qld) relevantly provides:

Prohibition on use of listening devices

(1)    A person is guilty of an offence against this Act if the person uses a listening device to overhear, record, monitor or listen to a private conversation and is liable on conviction on indictment to a maximum penalty of 40 penalty units or imprisonment for 2 years.

(2)    Subsection (1) does not apply-

(i)    where the person using the listening device is a party to the private conversation…

31    The applicant did not allege a breach of this provision and I heard no submissions on the question. It is unnecessary to express any concluded view, but it seems that it is not an offence under the relevant state legislation for a person to record a private telephone conversation to which the person is a party.

32    If there was a serious question to be tried I would accept that the balance of convenience favours the applicant. The applicant’s unchallenged evidence is that he is a successful businessman and philanthropist and that the YouTube Clip is causing him embarrassment and loss.

33    In all the circumstances the best way forward for this matter is to require the respondents to put on their defence and to send this matter for an urgent mediation. I have made orders accordingly. If the proceeding does not settle it should be fixed for a speedy hearing. If, as hinted in the materials, the respondents do not put on a defence the applicant may apply for judgment in default, on notice to the respondents.

Associate:

Dated:    2 September 2016