Your selected location:
  1. Home
  2. /
  3. HHG Articles
  4. /
  5. Metadata in Civil Litigation: An Australian Perspective
24 Feb 2017


By Murray Thornhill and Jordan Hurley


The Telecommunications Interception and Access Act 1979 (Cth) (TIAA), as amended in 2015, requires that Australian telecommunication companies retain specific data for a period of at least two years. The purpose of the TIAA is to permit access to retained data by Australian law enforcement and security agencies to assist in national security and serious criminal investigations. According to the Australian government’s 2014/15 annual report on the TIAA, enforcement agencies made 365,728 authorizations for access to historical telecommunications data in that financial year, of which the overwhelming majority was related to enforcement of criminal law.

While it is not uncommon for a party in civil proceedings to request a subpoena to compel a service provider (SP) to produce documents relating to telephone or internet communications, amendments to the TIAA due to come into effect in April 2017 will restrict access of data by subpoena where that data was retained by a SP to solely comply with the TIAA, provided no exclusion applies.

The Federal Attorney-General’s Department has recently invited submissions to widen the application of the TIAA to allow access to retained data in civil litigation. The Australian government’s reasons for this expansion are not immediately apparent as, apart from copyright rights holders, there appears to be limited support for the proposal when weighed against the compromise to personal privacy.

Currently under consideration by the Government is the Parliamentary Committee on Intelligence and Security’s recommendation that the TIAA include the ability for regulations to be made which exclude the new restriction for certain classes of matters. The Committee mentioned examples such as family law proceedings, including violence or international child abduction cases, but did not propose an exhaustive list of classes. 

What Data is Retained under the TIAA?


Retained data under the TIAA includes information such as:


(a)  a person’s name, address, contact information and device details;

(b)  the source and destination of a communication including a phone number, email address or IP address;

(c)  the duration and time of a communication or a session of data transfer; and

  the geographical location where the communication took place.


Access to Retained Data for Civil Litigation


Despite not including the content of a communication, such as the data transfer or web history, the retained data is by no means minimal and its significance to civil litigation ought not be underestimated. Such data may, and often can, substantially assist a litigant to prove elements of their case, and would have wide application in matters where, for example, defamation or breach of copyright is alleged.


Dallas Buyers Club LLC Litigation


One example which highlights the significance of retained data is the case of Dallas Buyers Club[A1] . In this case, Dallas Buyers Club LLC made an application to obtain preliminary discovery of the identifying information of 4,726  IP address holders who allegedly downloaded and shared the 2013 movie Dallas Buyer’s Club via BitTorrent (a peer to peer file sharing network), without consent and therefore in breach of Australian copyright laws.


A single judge of the Federal Court of Australia found that section 280 of the TIAA authorised an SP to disclose the identifying information by order of the Court. However, the Court was reluctant to permit the unconditional release of the identifying information and stayed the orders until Dallas Buyers Club LLC could satisfy the Court that the contents of letters addressed to the IP address holders was appropriate.


In a later hearing, Dallas Buyers Club LLC subsequently failed to satisfy the Court that the demands in their draft letter of demand were appropriate.[3] The Court ordered that the stay would not be lifted until Dallas Buyers Club LLC provided an undertaking that the identifying information would not be used to demand payment of the cost of a licence fee or punitive damages, as set out in the draft letter, and provided a bond of $600,000.


Although that litigation appears to have been abandoned by Dallas Buyers Club LLC (given that it was prevented from engaging in speculative invoicing), it shows that Australian courts appreciate the ramifications of allowing unrestricted access to vast quantities of otherwise sensitive data.


Individual’s Access to Retained Data


Gaining access to retained data from SPs can be notoriously difficult. Early this year, the Full Federal Court in the case of Privacy Commissioner v Telstra dismissed an appeal against a decision that a journalist was not entitled to obtain access to all metadata retained by an SP related to his mobile phone usage. The Court considered that the SP had no obligations to provide such information as the data did not fall within the meaning of the term “personal information” for the purpose of the Privacy Act 1988 (Cth) at the time.


Whilst this case has a narrow application to the newly amended TIAA, it highlights the difficulty individuals face when seeking to obtain an understanding of and access to, data retained by SPs for the purpose of litigation.


[1] Dallas Buyers Club LLC v iiNet Limited [2015] FCA 317

[2] An Internet Protocol address is a series of numbers assigned to identify electronic devices which form part of a network.

[3] Dallas Buyers Club LLC v iiNet Limited (No 4) [2015] FCA 838



Murray Thornhill leads the business and government division of HHG Legal Group. Since 2003, Murray has developed and led HHG’s success in construction law, insolvency, employment, trusts and estate litigation and corporate/commercial dispute resolution, including in relation to cross border disputes. Murray has a particular interest in private international law and jurisdiction disputes.

Jordan Hurley is a recently admitted lawyer at HHG Legal Group. Jordan has worked with the firm since 2014 and has been admitted to the Supreme Court of Western Australia.

Murray and Jordan have been asked to expand on this cutting edge topic for leading national legal publication, Internet Law Bulletin. Be sure to look out for the next instalment in this series.

This is general information only, and does not constitute specific legal advice. If you would like further information in relation to this matter or other legal matters please contact our office on Freecall 1800 609 945 or email us now.




*This is general information only, and does not constitute specific legal advice. Please consult one of our experienced Legal Team for specific advice relevant to your situation.

Supporting Western Australians for more than 100 years

"Always fast and thorough service. Thank you"


My circumstances at the time I made contact with HHG were dire following my argument being rejected by two no win no fee firms. Following my initial meeting with HHG's employment law team I was left feeling extremely positive by the response and concern shown by HHG in regards to their support of my argument along with their preparedness to pursue an outcome on my behalf.

I accept the fact that nobody really wins in these cases (mental health/ workplace) however the end result was what would be considered most favourable and far in excess of what would have been achieved had I not sought the advice from HHG.

I have no hesitation in recommending HHG to anyone caught up in the messy circumstances I found myself in at the time.

Great advice and five-star commitment to their client!!"


"Thank you for such great assistance with the transaction of Flying Domestics on behalf of Lorna Good. It has been such a pleasure to work with the HHG Legal Group and I look forward to working with you in the future."


"Simon Creek and his team were at all times empathic, professional and confident.  My matter needed to be addressed within a pressing time frame, and their availability at short notice and contact after hours was much appreciated.  It caused me considerable stress, but having such a thoroughly reliable and competent team to call on helped me to feel in control. Although I hope not to need their services again in future, I would be confident in doing so!"


"A good outcome is what we can expect.  A great outcome is a sign of a company which does the very best for their clients. A very big thank you to Daniel Morris for showing empathy towards my small and much needed legal action.

To HHG Legal Group, thank you for a great outcome.  I would recommend your company to anyone seeking legal services."


"Your support this morning was amazingly kind, not to mention your totally reassuring competence, knowledge and wisdom that you used on my behalf.  It was extremely reassuring to have your knowledgeable support, and I particularly appreciated your real and obvious kindness to me. It means so much at a very difficult time. I'm so grateful to you."

Family Law Client

"Janene was very professional and we established a good rapport quickly. The subject of death and wills can be quite confronting to deal with, however, Janene's approach was soft and accommodating."


"A big thank you to HHG for their professional service, continued support, and wide range of legal knowledge. Our clients have given us nothing but kind words regarding HHG Legal Group and so we have no hesitation in referring and recommending Simon Creek and HHG Legal Group for their outstanding services and legal expertise."


"Simon is a friendly and practical legal advisor. I have received great feedback from the clients I have referred to him and his team at HHG Legal Group."


"Over the last few years, I have been impressed by Simon’s legal ability, management skills, entrepreneurial spirit, personal integrity and people skills. He appears to be that rare breed of lawyer – both knowledgeable and commercial."


"Our family has been a client of HHG Legal Group over many years.  Business has included drawing up of wills for three generations and preparing of probate for my father in law. I would have no hesitation in recommending HHG Legal Group to anyone requiring such services."


"You should be congratulated for the manner in which your staff address clients and we found our dealings with your company, once again a very pleasant experience and we would like to truly thank you for your efforts."

Steve and Jane

"HHG Legal were absolutely fantastic. Extremely responsive and brought calm to our chaotic family situation through their knowledge and caring attitude. Extremely professional from our very first contact with them and they expertly guided our family though the required legal process over almost a 12 month period."


"Fantastic team! They really care about their client. Tim Colcutt is a 'go that extra mile' guy who gives his client his all. I can't recommend HHG and Tim enough."


"I had a fantastic lawyer in Matthew Lilly. He helped me out a great deal with good, sound advice in a friendly, professional manner. First class, thanks Matthew"


"Marine Plant Systems has been working with HHG Legal Group for a few years now and they continually provide first-class service. Their professional advice has been invaluable to our company."


"We were kept up to date at all times. Pricing was always updated over the time period so we remained "in budget". Personal access to someone whenever I had questions. All in all a great experience without too much fuss."


"Good service you can count on."


"HHG Legal Group has provided outstanding support as I have taken the journey of buying a business, their professionalism is beyond reproach. Their assistance throughout the Due Diligence process has been invaluable, I would fully recommend them."


"Very friendly and efficient service - what a pleasure working with Matthew."


"I highly recommend Daniel from HHG Lawyer in Mandurah. When dealing with a complicated legal property matter recently I was extremely impressed by Daniel's honesty and integrity and the legal advice I received. I am very happy with the service from HHG Legal."


Select your location:

Please select your nearest office location so we can show you the most relevant information.