Morad v El-Ashey [2017] FCA 1136

Morad v El-Ashey [2017] FCA 1136

The applicant had no reasonable prospect of success because, on undisputed facts, the emails in question had already become accessible to the intended recipient and thus were not intercepted within the meaning of the TIA Act, and 'stored communication' provisions were not engaged since access did not occur via carrier-operated equipment.

Parties
Applicant: Terry Morad; Respondent: Malak El-Ashey
Jurisdiction
Australia
Judgment Date
22 September 2017
Procedural Posture
Application for Relief for Alleged Breaches Under the Telecommunications (interception and Access) Act 1979 (cth) / Summary Judgment Application
Outcome
Summary judgment entered for the respondent against the applicant; applicant's originating application dismissed under s 31A(2) of the Federal Court of Australia Act 1976 (Cth) and r 26.01(1)(a) of the Federal Court Rules 2011 (Cth); costs reserved for further submissions.
Legal Topics
Telecommunications (interception and Access) Act 1979 (cth), Summary Judgment, Stored Communications, Interception of Communication
Communications Law Practice and Procedure Telecommunications (interception and Access) Act 1979 (cth) Summary Judgment Stored Communications Interception of Communication

Case Brief

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Parties

Terry Morad

Applicant

Malak El-Ashey

Respondent

Procedural Posture

Application for Relief for Alleged Breaches Under the Telecommunications (interception and Access) Act 1979 (cth) / Summary Judgment Application

Legal Issues

  1. 1 Whether the respondent's access to the applicant's Bigpond email account constituted interception of a communication passing over a telecommunications system under ss 7(1) and 63 of the TIA Act
  2. 2 Whether the respondent accessed a 'stored communication' without authority under ss 108 and 133 of the TIA Act
  3. 3 Whether the applicant had any reasonable prospect of successfully prosecuting the proceeding

Ratio Decidendi

The applicant had no reasonable prospect of success because, on undisputed facts, the emails in question had already become accessible to the intended recipient and thus were not intercepted within the meaning of the TIA Act, and 'stored communication' provisions were not engaged since access did not occur via carrier-operated equipment.

Court Disposition

Summary judgment entered for the respondent against the applicant; applicant's originating application dismissed under s 31A(2) of the Federal Court of Australia Act 1976 (Cth) and r 26.01(1)(a) of the Federal Court Rules 2011 (Cth); costs reserved for further submissions.

Orders

  • Summary judgment entered for the respondent against the applicant.
  • The originating application filed by the applicant on 18 May 2017 is dismissed under s 31A(2) Federal Court of Australia Act 1976 (Cth) and r 26.01(1)(a) Federal Court Rules 2011 (Cth).