Federal Court of Australia

Australian Communications and Media Authority v V Marketing Pty Ltd (in liq) [2020] FCA 1326

ORDERS

THE COURT ORDERS THAT:

1.    The application by the second and fourth respondents for summary judgment pursuant to paragraphs 1 and 4 of their interlocutory application filed on 18 June 2020 be dismissed.

2.    The rulings sought by the second and fourth respondents:

(a)    in paragraphs 2 and 3 of their interlocutory application filed on 18 June 2020; and

(b)    at the hearing of 8 September 2020,

be resolved in accordance with the attached reasons for decision.

3.    The applicant file the tender bundle within 2 days of the date of these Orders.

4.    The parties liaise and provide draft case management orders (by consent if possible) to the Chambers of Justice Collier within 14 days of the date of these Orders.

5.    The matter be listed for further case management at 9.30 am on 8 October 2020.

6.    There be liberty to apply.

7.    Costs of and incidental to the interlocutory application filed on 18 June 2020 be reserved.

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

REASONS FOR JUDGMENT

COLLIER J:

1    On 5 April 2019, the Australian Communications and Media Authority (ACMA) filed an originating application in which it sought relief against the first respondent, V Marketing Australia Pty Ltd, the second respondent, Balaska Pty Ltd, the third respondent, Mr Michael Vazquez, and the fourth respondent, Mr James McLennan.

2    At all relevant times, V Marketing was a company engaged in telemarketing activity.

3    Mr McLennan is the director of Balaska. Balaska, trading as Energy Options AU, is a company engaged in the sale and installation of solar energy systems.

4    By its originating application filed on 4 April 2019 and its statement of claim subsequently filed on 3 May 2019, ACMA claimed contraventions of ss 11 and 12 of the Do Not Call Register Act 2006 (Cth) (Do Not Call Register Act) and s 139 of the Telecommunications Act 1997 (Cth). Relevantly, ACMA alleges that:

    By reason of s 11(9) of the Do Not Call Register Act, Balaska caused V Marketing to make over 817,971 telemarketing calls on Balaska’s behalf to numbers on the Do Not Call Register, thus contravening s 11(1) of the Do Not Call Register Act.

    Balaska entered an agreement with V Marketing for the making of telemarketing calls which did not comply with, and contravened, s 12(1) of the Do Not Call Register Act. This agreement was entered into on a date between 1 January 2017 and 9 November 2017, and was reduced to writing in or about October 2017, but not signed.

    Mr McLennan was knowingly concerned in Balaska’s contraventions.

5    On 8 August 2019, Balaska and Mr McLennan filed a notice of cross-claim against V Marketing and Mr Vazquez.

6    On 25 September 2019, V Marketing entered liquidation.

7    Order 1 of my Orders of 22 October 2019 was as follows:

1.    The Applicant is to file and serve a paginated chronological bundle of documents, plus any affidavit evidence, on which it proposes to rely at the liability hearing by 11 December 2019.

8    This order was varied on 10 December 2019, to grant ACMA a one week extension until 18 December 2019 to file its affidavit evidence.

9    On 22 April 2020, I ordered by consent that ACMA have leave to proceed against V Marketing in respect of its originating application, and that Balaska and Mr McLennan have leave to proceed against V Marketing in respect of their cross-claim.

10    On 18 June 2020, Balaska and Mr McLennan filed the present interlocutory application in which they sought:

    summary judgment against ACMA in relation to ACMA’s claims against them in respect of alleged contraventions of s 11(1) and s 12(1) of the Do Not Call Register Act (excluding the alleged contraventions of s 11(1) of the Do No Call Register Act arising from two telemarketing calls to Mr Peter Mirtschin on 24 January 2017 and 3 April 2017);

    in the alternative to summary judgment, rulings as to the admissibility of certain affidavits on which ACMA sought to rely; and

    in the alternative, an order pursuant to s 136 of the Evidence Act 1995 (Cth) (Evidence Act), limiting the use of the evidence of Carmen Mitchell and Peter Summons so as not to be proof of the facts that V Marketing made calls on behalf of Balaska and/or that V Marketing and Balaska had entered a contract to that effect.

admissibility of evidence

11    The interlocutory application for summary judgment was listed for hearing on 8 September 2020. Mr Hodge QC (for Balaska and Mr McLennan) also objected to four affidavits, namely:

    The affidavit of Carmen Mitchell dated 10 December 2019;

    The affidavit of James Malloch dated 4 December 2019;

    The affidavit of Peter Summons dated 19 December 2019; and

    The affidavit of Aimee Horstman dated 8 September 2020.

12    The interlocutory application made reference only to the affidavits of Ms Mitchell and Mr Summons, however no point was taken in respect of the further objections concerning the affidavits of Mr Malloch and Ms Horstman.

13    ACMA pressed the admission of this evidence as against Balaska and Mr McLennan.

Ms Mitchell’s affidavit

14    At all relevant times, Ms Mitchell was an employee of ACMA, and not a direct witness to events in question. Rather, Ms Mitchell deposed as to ACMA’s investigative processes and information obtained by ACMA.

15    Balaska and Mr McLennan objected to the entirety of Ms Mitchell’s affidavit as opinion evidence and hearsay, which was inadmissible against them in respect of admissions by V Marketing. They further submitted that the balance of her affidavit in relation to the PIT washing of call records supplied by V Marketing was irrelevant as against them.

16    I note from the interlocutory application that particular objection is taken to paragraphs 3-6, 10-11, and 13-22 inclusive of Ms Mitchell’s affidavit. These paragraphs read:

3.    On 18 April 2018, the ACMA issued a notice pursuant to s 522(2) of the Telecommunications Act 1997 (Cth) (Telco Act) to V Marketing Australia Pty Ltd (V Marketing) seeking a record of the telemarketing calls V Marketing made on behalf of Balaska Pty Ltd (Balaska) between 9 October 2017 and 9 November 2017 (18 April 2018 Notice). A copy of the 18 April 2018 Notice is at Tab 25 of the Applicant's tender bundle.

4.    On 3 May 2018, V Marketing produced to the ACMA a record listing the calls it made between 9 October 2018 and 9 November 2017 on behalf of Balaska as part of its response to the 18 April 2018 Notice. The call records were produced in an Excel spreadsheet entitled ‘CDRs List – V Marketing Oct to Nov 2017 (1).xlsx’, which is at Tab 26(d) of the Applicant’s tender bundle (Balaska Call Logs Part 1).

5.    On 5 February 2019, the ACMA issued a notice pursuant to s 522(2) of the Telco Act to V Marketing seeking a record of the telemarketing calls V Marketing made on behalf of Balaska between 1 January 2017 and 8 October 2017 (5 February 2019 Notice). A copy of the 5 February 2019 Notice is at Tab 43 of the Applicant's tender bundle.

6.    On 19 February 2019, V Marketing produced to the ACMA a record listing the calls it made between 1 January 2017 and 8 October 2017 on behalf of Balaska as part of its response to the 5 February 2019 Notice. The call records were produced in 2 Excel spreadsheets entitled ‘Part One Calls – Jan to May 2017 Calls.xlsx’ and ‘Part Two Calls – Jun to Oct 2017.xlsx’ respectively. These documents are at Tabs 44(a) and 44(b) of the Applicant’s tender bundle (Balaska Call Logs Part 2).

…

10.    1 believe, based on the ACMA's documentary records, that on or around 14 May 2018, Elizabeth Harrison, an officer of the ACMA, undertook a formatting process in relation to the Balaska Call Logs Part 1. The formatting process undertaken by Ms Harrison appears to be consistent with the formatting process prescribed by the ACMA's procedures and as such, involved the following steps:

10.1.    The date of the call and the number called were extracted from the Balaska Call Logs Part 1 into a separate Excel document.

10.2.    Each call was given a unique identifying number in a separate column of the Excel document.

10.3.    The date of the call and the number called were formatted to include leading zeros at the start of each number and to provide the date in the format YYYY-MM-DD.

10.4.    Any invalid numbers, for example numbers that were not a complete telephone number, were removed.

10.5.    Each Excel document was then converted to a comma separated value (.csv) text file.

At Tab 47 of the Applicant's tender bundle are copies of the formatted call records from the Balaska Call Logs Part 1 (Formatted Call Records Part 1).

11.    1 believe, based on the ACMA's documentary records, that on 19 February 2019, Vivian Yuen, an officer of the ACMA, undertook an equivalent formatting process to that described in paragraph 10 above in relation to the data from the Balaska Call Logs Part 2. At Tab 48 of the Applicant's tender bundle are copies of the formatted call records (Formatted Call Records Part 2).

…

13.    Salmat Limited (Salmat) operates the Do Not Call Register under contract with the ACMA.

14.    The ACMA engages Salmat to conduct a ‘PIT wash’ to check if a particular number was on the Do Not Call Register on a specific date, such as the date on which that call was made or attempted to be made.

15.    A PIT wash records one of the following 4 options in relation to a telephone number called, or attempted to be called:

15.1. ‘Y’ where a number was registered on the Do Not Call Register for more than 30 days on the date it was called, or attempted to be called;

15.2. ‘N’ where a number was not registered on the Do Not Call Register on the date it was called, or attempted to be called;

15.3. ‘Y — less than 30 days’, if the number was registered on the Do Not Call Register on the date it was called or attempted to be called, but had been registered for less than 30 days; or

15.4. ‘I’ if the telephone number is invalid.

16.    The ACMA uses Salmat's Jira ticketing system to engage with Salmat. Jira facilitates the transfer of files and allocation of work.

17.    The Jira records to which I have access reveal that:

17.1.    on 14 May 2018, Elizabeth Harrison, an officer of the ACMA, provided a copy of the Formatted Call Records Part 1 to Salmat using Jira in order for Salmat to conduct a PIT wash.

17.2.    on 14 May 2018, the PIT wash was completed by Tue Tran, an employee of Salmat at that time, and returned to the ACMA via Jira. At Tab 50 of the Applicant's tender bundle is a copy of the PIT wash results, for calls made between 9 October 2017 and 9 November 2017 by V Marketing on behalf of Balaska (2017 Calls PIT Wash Results Part 1).

17.3.    on 19 February 2019, Vivian Yuen, an officer of the ACMA, provided a copy of the Formatted Call Records Part 2 to Salmat using Jira in order for Salmat to conduct a PIT wash.

17.4    on 19 February 2019, the PIT wash was completed by Lawrence Lucero, an employee of Salmat at that time, and the results returned to the ACMA via Jira. At Tab 51 of the Applicant's tender bundle is a copy of the PIT wash results for calls made between 1 January 2017 and 8 October 2017 by V Marketing on behalf of Balaska (2017 Calls PIT Wash Results Part 2).

17.5.    On 25 October 2018, Vivian Yuen, an officer of the ACMA, provided a copy of the Formatted Call Records Part 3 to Salmat using Jira in order for Salmat to conduct a PIT wash.

17.6.    On 26 October 2018, the PIT wash was completed by Christopher Calimag, an employee of Salmat at that time, and returned the results to the ACMA via Jira. At Tab 52 of the Applicant's tender bundle is a copy of the PIT wash results for calls made between 1 February 2018 and 27 September 2018 by V Marketing (2018 Calls PIT Wash Results).

Call schedules referred to in paragraphs 7 and 11 of the Statement of Claim

18.    On or around late March 2019, 1 extracted all calls with a ‘Y’ result from the 2017 Calls PIT Wash Results Part 1, 2017 Calls PIT Wash Results Part 2 and 2018 Calls PIT Wash Results and saved these in an Excel document. This document is at Tab 53 of the Applicant's tender bundle (Call Schedules). The tab entitled ‘2017 calls’ of the Call Schedules contains those calls extracted from the 2017 Calls PIT Wash Results Part 1 and 2017 Calls PIT Wash Results Part 2. The tab entitled ‘2018 calls’ of the Call Schedules contains those calls extracted from the 2018 Calls PIT Wash Results.

Analysis of call records

19.    The results of the ACMA's analysis of the 2017 Calls PIT Wash Results Part 1, 2017 Calls PIT Wash Results Part 2 and 2018 Calls PIT Wash Results are set out in paragraphs 20 to 24 below.

Telemarketing calls for Balaska

20.    During the period 1 January 2017 and 9 November 2017, V Marketing made 1,253,180 telemarketing calls on behalf of Balaska. 817,971 (or 65.2%) of these calls were made to 366,811 numbers that had been registered on the Do Not Call Register for more than 30 days at the time of the call.

21.    On 31 October 2019, Vivian Yuen, an officer of the ACMA, analysed the ‘2017 calls’ Tab of the Call Schedules under my supervision to determine how many times each number was called. The ‘2017 calls’ Tab of the Call Schedules was imported into Access DB, a database analysis tool. A Structured Query Language (SQL) query was applied to the dataset to identify how many times each number was called. The results were exported from Access DB into a Microsoft Excel document. This document is at Tab 54 of the Applicant's tender bundle (Call Volume Assessment).

22.    As shown in the Call Volume Assessment, of the calls made to numbers that had been registered on the Do Not Call Register for more than 30 days at the time of the call, 167,200 numbers were called once, 182,751 numbers were called between 2-5 times, 15,515 numbers were called 6-10 times and 1,345 numbers were called more than 10 times. One number was called 123 times during the period 1 January 2017 and 9 November 2017.

17    As Ms Mitchell’s affidavit is presently drafted, her affidavit contains what is, in essence, her opinion that material produced to ACMA by V Marketing, claiming to refer to calls made by V Marketing on behalf of Balaska (and exhibited by Ms Mitchell to her affidavit), is accurate. Ms Mitchell’s evidence is based on admissions by V Marketing to that effect.

18    Section 83 of the Evidence Act provides:

83.     Exclusion of evidence of admissions as against third parties

(1)     Section 81 does not prevent the application of the hearsay rule or the opinion rule to evidence of an admission in respect of the case of a third party.

(2)     The evidence may be used in respect of the case of a third party if that party consents.

  (3)     Consent cannot be given in respect of part only of the evidence.

  (4)     In this section:

third party means a party to the proceeding concerned, other than the party who:

(a)     made the admission; or

(b)     adduced the evidence.

(Emphasis added.)

19    ACMA has conceded it erred in assuming that the material in the tender bundle would be admitted by consent, and further in failing to appreciate the absence of consent on the part of Balaska and Mr McLennan to third party admissions by V Marketing to which reference is made in the affidavit of Ms Mitchell.

20    The effect of s 83 of the Evidence Act, and the absence of relevant consent by Balaska and Mr McLennan, is that Ms Mitchell’s evidence predicated on the admissions of V Marketing – which is, in substance, the entirety of Ms Mitchell’s affidavit – is inadmissible against Balaska and Mr McLennan.

21    I am not prepared, however, at this stage to rule inadmissible, or limit the use of, the material behind the tabs of the tender bundle referred to in Ms Mitchell’s affidavit. It may very well be that this material can properly be the subject of evidence admissible against Balaska and Mr McLennan. The ruling sought by the second and fourth respondents in respect of this part of the tender bundle is, in my view, currently premature.

22    In similar circumstances in B&K Holdings (Qld) Pty Ltd v Garmin Australasia Pty Ltd (2019) 134 ACSR 404; [2019] FCA 64, where a respondent sought an advanced ruling on admissibility under s 192A of the Evidence Act, Derrington J relevantly observed:

Alternative application — s 192A of the Evidence Act

74.     By Garmin’s alternative application it sought advance rulings under s 192A of the Evidence Act 1995 (Cth) for the purposes of excluding parts of B&K’s evidence. Although the parties filed written submissions in relation to this topic it was not pressed in oral submissions. Largely that was because the making of submissions on summary judgment application consumed the entirety of the day set aside for the hearing of the application.

75.    It can be accepted that the making of advanced rulings as to evidence under s 192A is a discretionary power to be utilised as a case management discretion: NA & J Investments Pty Ltd v Minister Administering Water Management Act 2000 (No 4) [2012] NSWLEC 120 at [40]; and is to be used keeping in mind the overarching purpose identified in s 37M of the FCA: Australian Securities and Investments Commission, Re Whitebox Trading Pty Ltd v Whitebox Trading Pty Ltd [2017] FCA 324 at [21].

76.    Whilst it can be recognised that the avoidance of wasted time at hearings is an objective that ought to be pursued, presently, the circumstances of this case are not such that the power in s 192A ought be exercised at this time. Whilst full force must be given to the fact that B&K has been afforded the opportunity to put on evidence, it is apparent from the submissions made in the summary judgment application that additional evidence is probably available to it. The identification of the need for more potent evidence on particular topics is, necessarily, the risk which a party faces when bringing a summary judgment application. There exists a risk that the ultimate consequence of the application is the improvement of the other party’s case. That may be the consequence in the circumstances of this matter, although it is not relevant to the exercise of discretion. It sufficies to say that, for present purposes, the time is not quite ripe for the exercise of power under s 192A of the Evidence Act. That is not to say that the exercise of such a power in this matter ought not to be considered in the future. If after B&K’s evidence is truly and finally completed its admissibility is wanting, it would then be appropriate to make such an application.

(Emphasis added.)

23    I consider these comments are highly relevant and applicable in the present case in respect of the remainder of Ms Mitchell’s affidavit and the material in the tender bundle.

Mr Malloch’s affidavit

24    At all relevant times, Mr Malloch was employed as the head of IT at Salmat Ltd, which is an information technology services provider to ACMA. In his affidavit dated 4 December 2019, Mr Malloch gave evidence in respect of “Point in time (PIT) wash of call records data provided by the Australian Communications and Media Authority (ACMA)”. At paragraph 3 of his affidavit, Mr Malloch explained the steps undertaken for a PIT wash.

25    At the hearing, the second and fourth respondents objected to the affidavit of Mr Malloch, on the basis that it simply “followed on” from the affidavit of Ms Mitchell, and further, because his evidence in respect of PIT washing of call records supplied by V Marketing was irrelevant as against Balaska and Mr McLennan.

26    Mr Malloch was authorised to make the affidavit on behalf of Salmat, and the matters to which he deposed were matters within his knowledge.

27    These matters were also relevant as going to processes used by ACMA to endeavour to identify calls in contravention of the Do Not Call Register Act, which is the substance of ACMA’s case against these respondents.

28    The question of relevance is clearly pertinent in circumstances where Mr Malloch’s evidence does not directly identify conduct of Balaska or Mr McLennan. However, for reasons I have already given in relation to the tender bundle, I currently consider it premature to rule Mr Malloch’s evidence as inadmissible on account of relevance, or limit the use of this evidence. These are issues more properly left for determination at the trial once all the evidence has been filed.

Mr Summons’ affidavit

29    Mr Summons is a member of the public who deposed, materially, as follows:

2.    On 31 May 2007 I added my phone number [XXXX] to the Do Not Call Register. I did this by going to www.donotcall.gov.au and entering my details.

3.     My understanding of the Do Not Call Register is by adding my phone number I will not receive telemarketing calls and faxes unless I give my permission.

4.    I added my number to the Do Not Call Register because I'd had enough of people phoning me, trying to sell me things I didn't want. Sometimes they were scam calls. The callers would lie and say they were from a known business, but when I challenged them it became obvious that they were faking. Often the callers would hang up as soon as I asked them where they were from. I was fed up with the frequency of these unwanted calls.

5.    Having registered my number on the Do Not Call Register, I did not expect to receive any telemarketing calls that I had not requested or consented to.

6.    At around 12:30pm on Tuesday 31 October 2017 1 received a phone call to my number [XXXX]. 1 have caller identification on my phone, which showed the call as coming from [XXXX]. The caller said they were calling from Energy Resources Centre, or something similar. They were trying to sell me solar panels. I do not recall the exact conversation, but during the phone call we said words to the effect of:

The caller said, ‘Are you the homeowner?’

I said, ‘Why do you need to know that?’

The caller said, ‘I need to know!’

I said, ‘Do you realise this number is on the Do Not Call Register? This is a marketing call, you should not be calling this number.’

The caller then hung up.

7.     At 1:58pm on Tuesday 31 October 2017 I made a complaint to the Australian Communications and Media Authority about the call, by submitting an online form.

Annexed and marked ‘PS-1’ is a copy of my complaint.

8.     Because I was frustrated that I was receiving so many unwanted calls, I made a point of making complaints to the Australian Communications and Media Authority about unwanted calls as often as I could. I estimate I've made about 40 complaints over the years. This complaint was one of those. I keep a note pad by the phone so that I could write down the caller identification number immediately. I would ask the caller who they are and where they are from. If it was a marketing call I would warn them that my number is on the Do No Call Register and that they should not be calling me. If they continued I would go and get a whistle and blow it loudly into the receiver.

9.     I no longer have the note I made about the call.

10.    I have never been a customer of this solar business. I set up solar on my home about 12 years ago through Ergon energy.

30    The second and fourth respondents submitted that to the extent that paragraph 6 of Mr Summons’ affidavit referred to “Energy Resources”, it was irrelevant and inadmissible because “Energy Resources” was not a trading name of Balaska and there was evidence that V Marketing was not only making calls on behalf of Balaska. They submitted further that ACMA had not filed any evidence that the business name “Energy Resources Centre” or a similar name was in any way associated with Balaska, or that telemarketing calls allegedly received by Mr Summons were in fact made by V Marketing on behalf of Balaska.

31    I am not prepared at this stage of the proceedings to rule Mr Summons’ affidavit as inadmissible, or limit the use of his evidence as sought by Balaska and Mr McLennan. It may be that further evidence can be adduced from him, or otherwise, to substantiate ACMA’s point referable to Mr Summons’ evidence. If no further evidence is adduced, the second and fourth respondents’ submissions concerning the irrelevance of Mr Summons’ evidence may be substantiated, however, that is an issue for future consideration once all evidence has been filed.

Ms Horstman’s affidavit

32    At all material times, Ms Horstman was an employee of ACMA, and not a direct witness to events in question. Relevantly, Ms Horstman deposed as follows:

Complaints in relation to Balaska Pty Ltd

4.    On 7 September 2020, ACMA officers under my supervision extracted from the ACMA’s Do Not Call Register complaints database, the ‘DNCR Portal’, the complaints referred to in the 6 ACMA compliance notices sent to Balaska Pty Ltd in 2017 (Balaska complaints). The complaint notices are at Tabs 1, 3, 4, 6, 8 and 11 of the Applicant’s tender bundle.

5.    A copy of the Balaska complaints are at Exhibit AH-1 to this affidavit. The personal information of the complainants has been redacted where the complainant did not give consent for the information to be publicly disclosed.

6.    Each of the Balaska complaints refers to:

6.1.    ‘Energy Options’ or a similar business name; and/or

6.2.    A caller identification number of [XXXX], or [XXXX], which were linked to Balaska Pty Ltd based on telephone numbers identified in previous complaints about Balaska Pty Ltd..

33    The respondents submitted that Ms Horstman’s affidavit was inadmissible because her evidence was hearsay; no attempt was made to identify persons allegedly supplying information; the details in the annexures on which her evidence relied were redacted; and there was a mixture of information from a person allegedly making a complaint and material entered by ACMA (which was not demarcated in any way).

34    In respect of the specific records of complaints to which Mr Horstman referred in her affidavit, ACMA relied on s 69 of the Evidence Act, which creates an exception to the hearsay rule in respect of business records of an organisation (including in respect of Commonwealth records: s 182).

35    The complaint forms annexed to Ms Horstman’s affidavit were included as part of the tender bundle. It is not in dispute that these complaint forms were created by ACMA. I agree with the submission of Balaska and Mr McLennan that the complaint forms appear to comprise a mixture of information provided by a caller making a complaint, and information known to ACMA inserted into this record, following calls by complainants to ACMA. However I am satisfied at this stage that the record of a complaint made by a caller identifying “energy options” or a similar business name as an entity contacting the caller, is a business record of ACMA for the purposes of s 69 of the Evidence Act. There are inclusions in the material annexed to Ms Horstman’s affidavit which are potentially hearsay (in particular, information added by unknown employees of ACMA). However it is premature to make a finding that the complaint forms are irrelevant and inadmissible against Balaska and Mr McLennan, or otherwise limit their use.

36    For this reason I consider that Ms Horstman’s affidavit, which refers to and annexes these complaint forms, is admissible against Balaska and Mr McLennan. I also note that Ms Horstman’s description of “Balaska complaints” derives from direct interactions between ACMA and Balaska, not from admissions made by V Marketing, and is not susceptible to the same objections which resulted in the inadmissibility of Ms Mitchell’s evidence. Of course this does not mean that, at this stage, I accept that the complaints actually concerned conduct of either Balaska or Mr McLennan. That is an issue for trial.

Application for Summary Judgment

37    In relation to the interlocutory application for summary judgment in respect of alleged contraventions of ss 11(1) and 12(1) of the Do Not Call Register Act, Mr Hodge QC submitted, in summary:

    ACMA has filed its evidence for the final hearing.

    There is no admissible evidence filed by ACMA of the making of 817,971 telemarketing calls. There is only evidence of 2 telemarketing calls being made. The evidence on which ACMA relies (in particular that of Ms Mitchell, Mr Malloch, Mr Summons and Ms Horstman) is admissions by V Marketing, hearsay, and inadmissible against Balaska and Mr McLennan.

    ACMA’s evidence, as filed, is capable of proving only two contraventions alleged against Balaska (and in respect of contraventions in which Mr McLennan is alleged to be knowingly concerned).

    There was no evidence of an agreement between Balaska and V Marketing as alleged by ACMA.

    The solicitors for Balaska and Mr McLennan on several occasions invited ACMA to explain how it intended to prove the making of calls by V Marketing on behalf of Balaska, but have received no substantive response.

    Assertions by V Marketing, in responses to ACMA notices to produce, that it made telemarketing calls on behalf of Balaska, were hearsay and inadmissible against Balaska and Mr McLennan pursuant to s 83 of the Evidence Act in the absence of consent by Balaska and Mr McLennan under s 83(2).

    Balaska admits that it entered into an agreement with V Marketing for the making of telemarketing calls on or around 2 April 2013. The evidence relied on by ACMA to prove entry into an agreement during the pleaded period (1 January 2017 through to 9 November 2017) consisted of three emails, however, that evidence did not prove entry into an agreement.

    There was no reasonable prospect that ACMA would succeed in making out its claims against Balaska and Mr McLennan in respect of ss 11(1) and 11(7) of the Do Not Call Register Act (other than the two calls to Mr Mirtschin), and contraventions of ss 12(1) and 12(2) of the Do Not Call Register Act and ss 139(1) and 139(2) of the Telecommunications Act arising on Balaska’s alleged entry into the alleged agreement.

38    Mr Couper QC for ACMA submitted, in summary:

    Whilst the pleadings have closed, and ACMA complied with the order of the Court requiring it to file and serve material upon which it intends to rely at the liability hearing, the proceedings are still at an early stage. In particular, no party has applied for or given discovery, no party has applied for or answered interrogatories or notices to admit facts or documents, and no party has applied for any subpoenas to give evidence or produce documents. There remains the prospect that further evidence may yet be adduced by ACMA in respect of its allegations.

    ACMA’s originating application is not yet ready for trial.

    The power to dismiss an action summarily is not to be exercised lightly and should not be exercised where there are factual issues in dispute.

    On the evidence filed by ACMA, there are factual issues capable of being disputed, and in dispute, between the parties which should be determined at trial.

    In addition to Mr Mirtschin’s affidavit, there is other evidence on which ACMA proposes to rely at trial to prove that Balaska caused V Marketing to make 817,971 telemarketing calls to registered numbers between 1 January and 9 November 2017. That evidence relevantly appears in the affidavit of Carmen Mitchell and in the applicant’s tender bundle.

    The call logs produced by V Marketing, showing the calls made by V Marketing during the pleaded period, are admissible as business records pursuant to s 69 of the Evidence Act. Those logs include the calls made to Mr Mirtschin’s registered phone number.

    The PIT wash procedure deposed to by Ms Mitchell and the results of that procedure are capable of proving that 817,917 calls listed in the call logs were made to numbers which had been on the Do Not Call Register for more than 30 days at the time of the call.

    Evidence of representations made by or on behalf of V Marketing in relation to calls alleged to have been made by V Marketing on behalf of Balaska includes emails from Mr Mark McEvoy of V Marketing dated 3 May 2018 and 10 October 2018 to ACMA, an email from Cassandra Raftos dated 18 February 2019, and supplementary submissions to ACMA by Ms Suzanna Costello on behalf of V Marketing dated 8 March 2019. Although Balaska and Mr McLennan submitted that some of this evidence is inadmissible against them, the admissibility should be determined at trial or upon an interlocutory application after remaining interlocutory steps for trial are complete.

    There is a serious question to be tried in relation to paragraphs 7 and 17 of the statement of claim.

    In establishing its allegations that Balaska and V Marketing had entered an agreement for the making of telemarketing calls during the relevant period, ACMA proposed to rely upon evidence in its tender bundle to establish those allegations, including emails from Balaska to V Marketing forwarding ACMA compliance warnings and in relation to ACMA notices, and Balaska’s response submissions to ACMA containing representations about its business arrangements with V Marketing (including a draft unsigned contract).

    ACMA accepted that s 83 of the Evidence Act renders inadmissible the representations made by or on behalf of V Marketing in respect of calls alleged to have been made by V Marketing on behalf of Balaska. However, the orders sought by Balaska and Mr McLennan are not limited to the admissions made by or on behalf of V Marketing.

    Similarly, ACMA accepted that the evidence in paragraphs 3-6, 10-11 and 13-18 inclusive of Ms Mitchell’s affidavit was not capable of establishing that Balaska caused V Marketing to make any of the pleaded calls. However, that evidence was capable of establishing that the numbers called were called in contravention of the Do Not Call Register Act in that they had been on the Do Not Call Register for more than 30 days at the times they were called. Such evidence was relevant and admissible against Balaska and Mr McLennan. Further, paragraphs 19-22 inclusive of Ms Mitchell’s affidavit were relevant to rebutting the defences pleaded by Balaska and Mr McLennan.

39    Paragraphs 6, 7 and 17 of the statement of claim plead:

6.     On a date or dates unknown between 1 January 2017 and 9 November 2017, V Marketing entered into a contract, arrangement, or understanding with Balaska to carry on telemarketing activity, including by making telemarketing calls, on behalf of Balaska.

Particulars

a)     The contract arrangement or understanding was initially unwritten and made on a date unknown but confirmed by the conduct of V Marketing and Balaska (the oral agreement).

b)     The oral agreement was reduced to writing at or about October 2017 and not signed (the unsigned contract) but confirmed by the conduct of V Marketing and Balaska.

c)     A copy of the unsigned contract will be served on the respondents with this Statement of Claim.

7.     Between 1 January 2017 and 9 November 2017, V Marketing, on behalf of Balaska, made, or caused to be made, 817,971 telemarketing calls to Australian registered numbers.

Particulars

a)    Schedules of the calls referred to in paragraph 7 above will be served on the respondents with this Statement of Claim.

…

17.     By operation of s 11(9) of the DNCR Act, Balaska caused the telemarking calls pleaded in paragraph 7 above to be made by V Marketing.

40    Essentially, it is in respect of these pleaded paragraphs that Balaska and Mr McLennan claim to be entitled to summary judgment, based on the evidence filed to date by ACMA in accordance with orders of the Court.

41    The evidence filed by ACMA is at best of poor quality, and, as I have found, in some respects inadmissible as against Balaska and Mr McLennan. I make this observation notwithstanding the heroic endeavours of Mr Couper QC for ACMA to laud that evidence.

42    In addition to the rulings on evidence I have made, I also note that, at this stage, and contrary to submissions of Counsel for ACMA, the evidence on which ACMA relies to establish the existence of an agreement between V Marketing and Balaska in contravention of s 12(1) of the Do Not Call Register Act is weak. That evidence includes:

    Emails from a lawyer representing Mr McLennan and Balaska to ACMA on and after 7 September 2018. In an email of 7 September 2018, it was noted that “in response to the investigations undertaken and warnings issued by the ACMA, our clients have taken a number of steps, at its own expense, to internalise the telemarketing aspect of its business” and noted the offer of an undertaking “as further assurance that Energy Options will not make, or cause to be made, any telemarketing calls to numbers on the Do Not Call Register”.

    What appears to be a series of emails from Mr McLennan to Mr McEvoy of V Marketing, including:

“Hi Mark. Can you check your data washing procedures and let me know when sorted, please”;

“Hi Mark. Please see below. Doesn’t look to be a number listed but there is compliance reference”; and

“Morning mate, can you check your call logs etc for the below thanks”.

43    Without further substantiation, this evidence is, in my view, inconclusive and ambiguous, at best.

44    In their interlocutory application, Balaska and Mr McLennan specifically rely on r 26.01 of the Federal Court Rules 2011 (Cth). Their submissions narrow specific reliance to r 26.01(1)(a), which provides:

26.01    Summary judgment

(1)     A party may apply to the Court for an order that judgment be given against another party because:

(a)     the applicant has no reasonable prospect of successfully prosecuting the proceeding or part of the proceeding; or

…

45    Both parties relied upon the statement of principle as set out in Spencer v Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28 (see particularly at [50]-[60]), where the High Court examined the terms of s 31A of the Federal Court of Australia Act 1976 (Cth), which similarly provides that the Court may give summary judgment in circumstances where it is satisfied that a party has no reasonable prospect of successfully prosecuting a proceeding.

46    In particular, the High Court found that:

    the central idea about which the provision pivots is “no reasonable prospect” with the word “reasonable” being important;

    the enquiry for the Court is not whether the proceeding would necessarily fail; and

    the power to dismiss an action summarily is not to be exercised lightly.

47    The issue before me is whether it can be said that ACMA has no reasonable prospect of success in circumstances where it may obtain further evidence (by, for example, discovery, subpoena, or interrogatories) of its claims against Balaska and Mr McLennan.

48    The circumstances of this case are analogous to those which were before Derrington J in B&K Holdings (2019) 134 ACSR 404; [2019] FCA 64. In that case, the respondent, Garmin, sought summary judgment in respect of all, or part of, the applicant’s claim, or alternatively, an advance ruling as to the admissibility of certain parts of the applicant’s evidence. This was after the applicant had filed the affidavit material on which it intended to rely at trial. Garmin sought summary judgment in respect of three allegations relating to ss 45, 46, 47 and Sch 2, s 18 of the Competition and Consumer Act 2010 (Cth) and “in part, invited the Court to engage in some qualitative assessment of the veracity of the evidence which B&K advanced for the purposes of trial”.

49    Derrington J relied upon the principles summarised in Fair Work Ombudsman v Austrend International Pty Ltd (2018) 273 IR 439; [2018] FCA 171, noting that such principles “have been assayed on a number of occasions, and there is no need for any further independent analysis”. These principles were:

11.    The meaning and reach of s 31A is well established. The relevant general principles are not in contest.

12.    It is well accepted the power to dismiss an action summarily is not exercised lightly. In Danthanarayana v Commonwealth of Australia [2016] FCAFC 114, the Full Court said, at [4], that:

…to summarily dismiss a proceeding, and thereby preclude a person from having their case determined on its merits at a final hearing, is a serious step taken only with great care and if it is possible to conclude with confidence that there is no reasonable prospect of success; this is so despite the fact that under s 31A(2) of the Federal Court of Australia Act 1976 (Cth) … the power to summarily dismiss a proceeding is not dependent on the case being “hopeless” or “bound to fail” for it to have no reasonable prospect of success (Spencer v Commonwealth [2010] HCA 28; (2010) 241 CLR 118 at [17]–[26]).

13.     Section 31A lowers the bar for obtaining summary judgment. The inquiry is whether there is a ‘reasonable’ prospect of prosecuting the proceeding or part of the proceeding, not whether a certain and concluded determination could be made that the proceeding or part of the proceeding would necessarily fail. Judgment may be granted even if it cannot be said the case is so clearly untenable that it could not possibly succeed: Spencer v Commonwealth of Australia (2010) 241 CLR 118 at [51]–[60] (per Hayne, Crennan, Kiefel and Bell JJ).

14.    Once a moving party has established a prima facie case that the opponent has no reasonable prospect of success, the opposing party must respond by pointing to specific factual or evidentiary disputes that make a trial necessary. General or non‐particularised denials will be insufficient to defeat the motion: Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd (2008) 167 FCR 372 per Gordon J, as her Honour then was, at [127].

15.    Her Honour then said:

[130]    A fifth principle is that where there is a real issue of fact relevant to a pleaded cause of action, it is unlikely that that part of the proceeding has no prospect of success…So, for example, if the pleadings, affidavits, and other materials considered in connection with the summary judgment motion, reveal a factual dispute and that factual dispute must be resolved to determine whether or not the claim succeeds, it cannot be said that the claim has “no reasonable prospect of success”… On the other hand, if the factual contest is unnecessary to the resolution of the cause of action pleaded, then in the absence of other relevant material, there is nothing to prevent the court entering judgment on that claim.

…

[132]    I now come to a final, sixth principle, which is that in determining whether a real issue of fact exists such as to preclude summary judgment, the court must draw all reasonable inferences — but only reasonable inferences — in favour of the non‐moving party…I emphasise “reasonable” because it is on this point that the lowering of the bar effected by s 31A becomes clear. By distinguishing between “hopeless” cases and those without reasonable prospects for success, the statute makes clear that the court need not (indeed, must not) refuse summary judgment on the basis of a factual dispute said to arise only from a plausible, as opposed to a reasonable, inference.

16.    In a separate joint judgment in Spencer, French CJ and Gummow J stated at [25] that:

Where there are factual issues capable of being disputed and in dispute, summary dismissal should not be awarded to the respondent simply because the Court has formed the view that the applicant is unlikely to succeed on the factual issue.

17.    Their Honours added at [26] that ‘[w]here an application under s 31A requires consideration of apparently complex questions of fact, then the caution uttered by Lord Hope is relevant’. This is a reference to his Lordship’s decision in Three Rivers District Council v Governor and Company of the Bank of England (No 3) [2003] 2 AC 1 at 260–261, in which he stated:

[M]ore complex cases are unlikely to be capable of being resolved [by way of summary judgment] without conducting a mini‐trial on the documents without discovery and without oral evidence … that is not the object of the rule. It is designed to deal with cases that are not fit for trial at all.

18.    In Jefferson Ford, Finkelstein J said at [23] that:

In other words, the section requires the judge to conduct what might loosely be described as a preliminary trial and look more closely than he would under an O 14 application to a party’s assertion that there is a real question of law or fact to be decided. Such an assertion is to be examined with a critical eye. The judge is to decide whether the opposing party has evidence of sufficient quality and weight to be able to succeed at trial. There will be cases where the asserted facts appear to be so improbable that there is no point in allowing them to go to trial. There will be others where the opposing party has not been able to show that the asserted facts are likely to be established at a trial.

19.    In George v Fletcher (Trustee) [2010] FCAFC 53, Ryan and Logan JJ said, at [75], after referring to the judgment of Lindgren J in White Industries Australia Ltd v Cmr of Taxation (2007) 160 FCR 298, at [50]–[54]:

… [Section] 31A is not concerned just with pleadings but with substance, not form. The mere presence of a factual controversy, however trifling, implausible, tenuous or tangentially relevant is not a bar to the exercise of the power conferred by s 31A to grant summary judgment. That would be inconsistent with the way in which the phrase “no reasonable prospect of success” is to be read in light of s 31A(3) (and s 17A(3)).

20.    Accordingly, the mere existence of a factual dispute is not necessarily a bar to a grant of summary judgment. Rather the Court is required to evaluate the quality and weight of the evidence. When this leads to a conclusion that the version of the facts asserted by the party resisting the motion is either so improbable, or fanciful, or trifling, or implausible, or tenuous then summary judgment must be granted. So understood there is, in such a case, no real issue of fact: Australian Securities and Investments Commission v Cassimatis [2013] FCA 641 at [46]–[47].

50    Derrington J considered at [18] that the principles stated in Austrend International were equally applicable to the case before his Honour, in particular, the observations of Lord Hope in the Three Rivers case. His Honour relevantly continued:

21.    Here, the summary judgment application has been brought subsequent to B&K filing with the Court the affidavit material on which it intends to rely at trial. Indeed, it has been required on two occasions to file such material. Garmin seizes upon this fact as enhancing its application by asking the Court to assume that the evidence filed to date will not be improved. It can be accepted that, if it were shown that there was no other evidence B&K might obtain to support some factual matter, significant weight might be placed upon the failure to file evidence in that regard at this stage of the proceedings. However, that is not an inference which can be readily drawn. The matter is not yet set down for trial, and the possibility of B&K obtaining additional evidence to support any existing perceived deficiencies cannot be discounted. Whilst in a perfect or Halcyon world all of the evidence which will be adduced at trial is identified well in advance, that is not the reality of litigation which, of itself, is necessarily dynamic and fluid. It would not be appropriate to grant summary judgment on the basis that not all of the evidence has been identified at that point in time. It is only when it can be said with a reasonable degree of confidence that, on a particular point, no other evidence would be available, that the Court can proceed on the basis that all relevant evidence is before it.

(Emphasis added.)

51    His Honour also observed at [49]:

49.    Given the manner in which Garmin was prepared to advance its submissions in relation to the s 46 cause of action, there is no need to consider the other grounds relied upon by it in its written submissions. That said, it is appropriate to note that its invitation for the Court to determine that there was insufficient evidence to establish an effect of a substantial lessening of competition would have involved the Court in an element of speculation as to what will be the state of the evidence at trial. Whilst it can be accepted that, in accordance with the directions made in the action to date, B&K’s evidence on this matter ought to have been filed already, the possibility of supplementary affidavits cannot be discounted. Garmin’s submissions on this point were also founded upon submissions to the effect that the evidence presently filed is not admissible or not wholly admissible. Submissions of this type may advance an argument to the effect that B&K have not presently adduced sufficient evidence to establish its causes of action. However, the question on this application is whether B&K has reasonable prospects of establishing its claims at trial: RB Lease Pty Ltd v Heron [2013] QCA 181, [14].

(Emphasis added.)

52    I respectfully consider that his Honour’s reasoning is apposite in the present case before me. The inference that there is no other evidence which ACMA might adduce to support the contraventions by Balaska and Mr McLennan it alleges in its statement of claim is not an inference that can be readily drawn. Indeed, as Counsel for ACMA submitted, there is a possibility of further evidence being adduced by discovery, subpoena or interrogatories, for example from Mr McEvoy who produced evidence to ACMA on which ACMA presently relies (transcript p 33 ll 36-39).

53    Furthermore, and similarly to the view taken by Derrington J, I take the view that, whilst ACMA’s evidence on which it intended to rely at trial ought to have been already filed in accordance with my earlier case managements orders, it cannot be said that this matter is ready for trial or that there is no possibility of ACMA filing further supplementary affidavit material.

54    In the circumstances, and particularly in light of the caution with which Courts should approach applications for summary judgment, I am not prepared to find that ACMA has no reasonable prospect of successfully prosecuting this proceeding, or part of the proceeding, against Balaska and Mr McLennan, within the meaning of r 26.01(1)(a) of the Federal Court Rules. It follows that it is not appropriate for me to summarily dismiss any part of ACMA’s case against Balaska or Mr McLennan, at this time.

Conclusion

55    ACMA has successfully resisted an application for summary judgment by Balaska and Mr McLennan. However, Balaska and Mr McLennan have been partially successful in their application to have ruled inadmissible against them evidence filed by ACMA. Balaska and Mr McLennan seek indemnity costs, while ACMA seeks an order that costs be in the proceedings.

56    Balaska and Mr McLennan are currently facing serious civil penalty proceedings for contraventions of the Do Not Call Register Act. That ACMA was required to file the evidence in the trial on which it intends to rely was no surprise to it – indeed, I note that, by email to Chambers dated 22 October 2019, ACMA provided draft orders for filing its evidence. These draft orders were signed by ACMA and the second, third and fourth respondents. I made those Orders on 22 October 2019.

57    I have already observed that the evidence currently before the Court filed by ACMA is weak, and that ACMA has erred to date in assuming that the tender bundle would be admitted by consent. I also note that Order 1 of 22 October 2019 was a consent order, however only contemplated that ACMA would file and serve material on which ACMA proposed to rely. ACMA filed an “Index to Tender Bundle” on 11 December 2019. Notwithstanding the terms of Order 1 of 22 October 2019, it did not follow that the second and fourth respondents were consenting to the admissibility of all material to which ACMA’s Index referred.

58    Balaska and Mr McLennan submitted that ACMA was unresponsive to their requests for clarification of the evidence against them.

59    I understand that ACMA contemplates adducing further admissible evidence, however it remains to be seen whether it will be able to do so, and whether indeed the relief currently sought by Balaska and Mr McLennan could be reagitated at some future time. For this reason, I consider it appropriate to grant liberty to apply, and to reserve the question of costs of and incidental to the interlocutory application, including the question whether costs ought to be ordered on an indemnity basis.

60    Finally, it is appropriate that fresh timetabling orders be made referable to further evidence being sought and filed, and to take the matter to trial. I will direct the parties to provide such timetabling orders, in draft, for my consideration.

Associate:

Dated:    17 September 2020

SCHEDULE OF PARTIES