Case: Australian Competition and Consumer Commission v Dataline.Net.AU Pty Ltd (2006) 236 ALR 665
Outcome: followed
is not to say that the receipt of evidence is precluded on an application for default judgment under O 35A. Prior authority establishes that additional evidence consistent with a party's case as pleaded in the statement of claim may be considered with respect to the relief sought: Australian Competition and Consumer Commission v Dataline Net AU Pty Ltd (2006) 236 ALR 665 (Kiefel J (affirmed Australian Competition and Consumer Commission v Dataline.Net.AU Pty Ltd [2007] FCAFC 146 ; (2007) 161 FCR 513) (Dataline). In Dataline , Kiefel J also noted of O 35A that: The statement of claim alleges numerous contraventions of s 16(1) and s 16(9) of the Spam Act 2003 (Cth) (Spam Act). It further alleges contraventions by the First and Second Respondents of s 52 of the Trade Practices Act 1974 (Cth) with the Fourth, Fifth and Seventh Respondents being alleged to be parties to these corporate contraventions. Albeit at the risk of over-generalisation, the conduct alleged may be summarised as the deceptive use of fabricated profiles on dating websites in order to obtain mobile telephone numbers for the purpose of sending or causing to be sent unsolicited commercial electronic messages to the unsuspecting telephone account holders. Yet, further conduct alleged involves the sending of unsolicited commercial electronic messages which purport to supply a "single club" or "fantasy chat" service to unsuspecting telephone account holders. So far as the First, Second, Fourth, Fifth and Seventh Respondents are concerned, I am satisfied that the statement of claim alleges contraventions known to law of the Spam Act and the Trade Practices Act and which enliven the Court's jurisdiction to grant declaratory and injunctive relief. I am further satisfied that the injunctive relief sought is not merely a bland recitation of statutory prohibitions but rather has been framed with sufficient precision to enable the Respondents concerned to identify the conduct which is the subject of restraint and so as to permit ready identification of an event of default. The declarations sought are in these terms: Declarations concerning contraventions of the Spam Act 2003 (Cth) A declaration that the first respondent, whose central management and control was in Australia, by sending short message service ("SMS") messages or causing SMS messages to be sent via 19773366 and 19910006 to Australian mobile telephone numbers, which it had obtained by deception using fabricated dating website profiles, for the purpose of dishonestly obtaining the account holders' acceptance of its Safe Divert service, has engaged in conduct in contravention of s.16(1) of the Spam Act 2003 (Cth) . A declaration that the second respondent, whose central management and control was in Australia, by sending SMS messages or causing SMS messages to be sent via 19773366 to Australian mobile telephone numbers, which it had obtained by deception using fabricated dating website profiles, for the purpose of dishonestly obtaining the account holders' acceptance of its Safe Divert service, has engaged in conduct in contravention of s.16(1) of the Spam Act 2003 (Cth) . A declaration that the first respondent, whose central management and control was in Australia, by sending SMS messages or causing SMS messages to be sent via 19724253 to Australian mobile telephone numbers, which it had obtained by deception using fabricated dating website profiles, for the purpose of dishonestly obtaining the account holders' acceptance of its Maybemeet service, has engaged in conduct in contravention of s.16(1) of the Spam Act 2003 (Cth) . A declaration that the first respondent, whose central management and control was in Australia, by sending further SMS messages or causing further SMS messages to be sent via 19773366 and 19910006 to Australian mobile telephone account holders who had replied "yes" in circumstances where the first respondent knew that their acceptance of its Safe Divert service had been obtained by deception, has engaged in further conduct in contravention of s.16(1) of the Spam Act 2003 (Cth) . A declaration that the second respondent, whose central management and control was in Australia, by sending further SMS messages or causing further SMS messages to be sent via 19773366 to Australian mobile telephone account holders who had replied "yes" in circumstances where the second respondent knew that their acceptance of its Safe Divert service had been obtained by deception, has engaged in further conduct in contravention of s.16(1) of the Spam Act 2003 (Cth) . A declaration that the first respondent, whose central management and control was in Australia, by sending further SMS messages or causing to be sent further SMS messages via 19724253 to Australian mobile telephone account holders who had replied "yes" in circumstances where the first respondent knew that their acceptance of its Maybemeet service had been obtained by deception, has engaged in further conduct in contravention of s.16(1) of the Spam Act 2003 (Cth) . A declaration that each of the first and second respondents, whose central management and control was in Australia, by sending SMS messages or causing SMS messages to be sent via 19773377 to Australian mobile telephone numbers for the purpose of offering to supply a fantasy chat service without obtaining the consent of the mobile telephone account holders, has engaged in conduct in contravention of s.16(1) of the Spam Act 2003 (Cth) . A declaration that the first respondent, whose central management and control was in Australia, by sending SMS messages or causing SMS messages to be sent via 19910007 to Australian mobile telephone numbers for the purpose of offering to supply a fantasy chat service without obtaining the consent of the mobile telephone account holders, has engaged in conduct in contravention of s.16(1) of the Spam Act 2003 (Cth) . A declaration that each of the fourth, fifth, and seventh respondents: 9.1 aided and abetted; and 9.2 was knowingly concerned in and party to; each of the first and second respondents' contraventions of s.16(1) of the Spam Act 2003 (Cth) pleaded in paragraphs 1, 2, 3, 4, 5, 6, 7 and 8 and thereby engaged in conduct in contravention of s.16(9) of the Spam Act 2003 (Cth) . A declaration that each of the fourth and seventh respondents: 10.1 aided and abetted IMP, whose central management and control was in Australia, to send SMS messages or cause SMS messages to be sent via 19773366; and 10.2 was knowingly concerned in and party to IMP, whose central management and control was in Australia, sending SMS messages or causing SMS messages to be sent via 19773366: to: 10.3 Australian mobile telephone numbers, which its servants or agents had obtained by deception using fabricated dating website profiles, for the purpose of dishonestly obtaining the account holders' acceptance of its Safe Divert service; 10.4 to Australian mobile telephone account holders who had replied "yes" in circumstances where the company knew that their acceptance of its Safe Divert service had been obtained by deception; 10.5 in contravention of s.16(1) of the Spam Act 2003 (Cth) , and thereby engaged in conduct in contravention of s.16(9) of the Spam Act 2003 (Cth) . Declarations concerning contraventions of the Trade Practices Act 1974 (Cth) A declaration that each of the first and second respondents, in trade or commerce: 11.1 by the use of dating website profiles created and registered on dating websites, represented to dating website members that the individuals described in those profiles were members of the respective dating website; and further, 11.2 by communicating with dating websites as those profiles, represented to dating website members that the communication was with the individuals described in those profiles; when in fact: 11.3 the individuals described in the profiles did not exist; 11.4 it did not inform the dating website members that it had created the profiles; 11.5 it did not inform the dating website members that their mobile telephone numbers were being obtained for the purpose of collecting mobile telephone numbers of Australian mobile telephone account holders to be recipients of commercial electronic messages via 19773366, 19910006 and/or 19724253; and 11.6 any communication between dating website members and the profiles was between it and those members; engaged in conduct that was misleading or deceptive or likely to mislead or deceive contrary to s.52 of the Trade Practices Act 1974 (Cth). A declaration that each of the first and second respondents, in trade or commerce, by sending SMS messages or causing SMS messages to be sent to Australian mobile telephone numbers which represented that a dating website member wanted to communicate with the mobile telephone account holder using its advertised Safe Divert service when in fact the SMS messages were generated by its agent, has engaged in conduct that is misleading or deceptive or likely to mislead or deceive, in contravention to s.52 of the Trade Practices Act 1974 (Cth). A declaration that the first respondent, in trade or commerce, by sending SMS messages or causing SMS messages to be sent to Australian mobile telephone numbers which represented that a dating website member wanted to communicate with the mobile telephone account holder using its advertised Maybemeet service when in fact the SMS messages were generated by its agent, has engaged in conduct that is misleading or deceptive or likely to mislead or deceive, contrary to s.52 of the Trade Practices Act 1974 (Cth). A declaration that each of the first and second respondents, in trade or commerce, by sending further SMS messages or causing further SMS messages to be sent to Australian mobile telephone numbers which represented that they were written by a dating website member when in fact the SMS messages were written by individuals engaged by its agent, has engaged in conduct that is misleading or deceptive or likely to mislead or deceive, contrary to s.52 of the Trade Practices Act 1974 (Cth). A declaration that each of the fourth, fifth and seventh respondents: 15.1 aided and abetted; and 15.2 was knowingly concerned in and party to; each of the first and second respondents' contraventions of the s.52 of the Trade Practices Act 1974 (Cth) pleaded in paragraphs 11, 12, 13 and 14. A declaration that each of the fourth, fifth, and seventh respondents: 16.1 aided and abetted; and 16.2 was knowingly concerned in and party to; IMP, through its agent, in trade or commerce: 16.3 by the use of dating website profiles created and registered on dating websites, representing to dating website members that the individuals described in those profiles were members of the respective dating website; and further, 16.4 by communicating with dating websites as those profiles, representing to dating website members that the communication was with the individuals described in those profiles; when in fact: 16.5 the individuals described in the profiles did not exist; 16.6 it did not inform the dating website members that it had created the profiles; 16.7 it did not inform the dating website members that their mobile telephone numbers were being obtained for the purpose of collecting mobile telephone numbers of Australian mobile telephone account holders to be recipients of commercial electronic messages via 19773366; and 16.8 any communication between dating website members and the profiles was between it and those members; in contravention of s.52 of the Trade Practices Act 1974 (Cth) .