FEDERAL COURT OF AUSTRALIA

All Trades Queensland Pty Ltd v Telstra Corporation Limited [2016] FCA 1603

ORDERS

THE COURT ORDERS THAT:

1.    pursuant to rule 7.22 of the Federal Court Rules 2011 (Cth), on or before 22 November 2016, the first respondent provide to the prospective applicant a verified list of each of the IP addresses listed in Annexure C in Exhibit DPH-1 to the affidavit of Darren Hopkins filed on 9 November 2016, together with the name and residential address of the account holder to whom that IP address was allocated at the time indicated for that IP address as the “Login Time (AEST)” in Annexure C in Exhibit DPH-1, but need not discover any information or material the disclosure of which is not required or authorized because of the operation of section 280(1B) of the Telecommunications Act 1997 (Cth);

2.    pursuant to rule 7.22 of the Federal Court Rules 2011 (Cth), on or before 22 November 2016, the second respondent provide to the prospective applicant a verified list of each of the IP addresses listed in Annexure D in Exhibit DPH-1 to the affidavit of Darren Hopkins filed on 9 November 2016, together with the name and residential address of the account holder to whom that IP address was allocated at the time indicated for that IP address as the “Login Time (AEST)” in Annexure D in Exhibit DPH-1, but need not discover any information or material the disclosure of which is not required or authorized because of the operation of section 280(1B) of the Telecommunications Act 1997 (Cth);

3.    the prospective applicant:

(a)    not be permitted (except in the course of litigation) to disclose to any third party the name and address of any account holder disclosed to the prospective applicant pursuant to Order 1 or 2, other than agents or representatives of the prospective applicant who also undertake to be bound by this order;

(b)    be permitted to use the information disclosed pursuant to Order 1 or 2 in proceedings for the recovery of compensation for the purposes of civil litigation, in which the prospective applicant:

(i)    seeks to identify any parties who have accessed the prospective applicant’s computer systems without authority;

(ii)    seeks to identify any parties who have misused confidential information belonging to the prospective applicant or have otherwise breached contractual or other legal obligations owed to the prospective applicant (Offending Parties);

(iii)    sues any Offending Parties;

(iv)    negotiates with any Offending Parties with a view to resolving the prospective applicant’s claims against them;

4.    the prospective applicant:

(a)    dispose of any information or material provided pursuant to Order 1 or Order 2 either at the end of any legal proceedings as above contemplated (including any appeal), or when that material is no longer reasonably required for any of the purposes set out in Order 3(b), whichever is the earlier; and

(b)    report compliance with this Order to the Registrar.

5.    the prospective applicant pay the first respondent’s costs of the proceedings;

6.    the prospective applicant pay the second respondent’s costs of the proceedings, in the agreed amount of $550; and

7.    the prospective applicant pay each of the first respondent and second respondent’s reasonable costs of complying with this Order.

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

REASONS FOR JUDGMENT

DOWSETT J:

1    The statutory framework in which this application is made is quite complex but, in fact, the case is very simple. Pursuant to the Corporations Act 2001 (Cth), a court may order a person to compensate a corporation or a registered scheme for damages suffered if that person has contravened a civil penalty provision. Pursuant to s 183 a person who obtains information because they are, or have been a director or other officer or employee of a corporation may not improperly use that information.

2    I am satisfied that the applicant reasonably suspects that some of its former employees have breached the provisions of s 183 and proposes to seek compensation in relation to such breaches. That the relevant information is confidential appears to flow from the contracts of employment which were in place between the applicant and those former employees.

3    The conduct, which is said to be in contravention of s 183, involves the accessing of a computer upon which certain client records are stored. The applicant has identified computers which may have been used to obtain that information and associated IP addresses.

4    It now seeks to obtain the name and address of each person holding each IP address. It seeks to do so pursuant to r 7.22 of the Federal Court Rules 2011. I am satisfied that the requirements of that rule have been met in this case. The only other matter which remains outstanding is consideration of issues of privacy which consideration may lead to a denial of such access.

5    Section 280 of the Telecommunications Act 1997 (Cth) makes it clear that the prohibition contained in s 276 does not apply in circumstances in which, as here, the disclosure or use is required or authorized by or under law. The Court has the authority to compel the provision of documents. In my view that means that the production for the purposes of court process is an exception to the prohibition contained in s 276. Similar observations apply concerning the Privacy Act 1988 (Cth). The general prohibition is alleviated by the provisions of s 6.2(b) which again relate to use or disclosure by or under an Australian law or a court/tribunal order.

6    In those circumstances, I shall make an order in the terms of the draft which has been provided.

Associate:

Dated:    20 July 2017