Optus Mobile v Lee

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.

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.

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.

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.

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.

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:

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.

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:

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.

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).

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.

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).

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.

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.

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.

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.

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.