Australian Competition and Consumer Commission v Telstra Corp Ltd - [2000] FCA 28

FEDERAL COURT OF AUSTRALIA
Australian Competition & Consumer Commission v Telstra Corp Ltd
[2000] FCA 28

PRACTICE AND PROCEDURE – motion for leave to use statements filed in Court proceeding but not yet read, in proceeding in the Administrative Appeals Tribunal – whether lawyer client privilege attached to the statements – whether, as a matter of discretion, moving party should be released from its implied undertaking not to use such documents for any purpose other than those of present proceeding.
Trade Practices Act 1974 (Cth) Part XIB
Harman v Secretary of State for the Home Department [1983] AC 280, cited
Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217, cited
Nilsen Industrial Electronics Pty Ltd v National Semiconductor Corporation (1994) 48 FCR 337, cited
Complete Technology Pty Ltd v Toshiba (Australia) Pty Ltd (1994) 53 FCR 125, cited
State Bank of South Australia v Smoothdale (No 2) Ltd (1995) 64 SASR 224, cited
Abigroup Ltd v Akins (1997) 42 NSWLR 623, cited
AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v TELSTRA CORPORATION LIMITED
NG 1438 of 1998
N 355 of 1999
LINDGREN J
14 JANUARY 2000
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NG 1438 OF 1998
N 355 OF 1999

BETWEEN:

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION
Applicant

AND:

TELSTRA CORPORATION LIMITED
Respondent

JUDGE:

LINDGREN J

DATE OF ORDER:

14 JANUARY 2000

WHERE MADE:

SYDNEY

BY CONSENT THE COURT ORDERS THAT:
1.The respondent through its servants, officers and representatives, including its legal representatives, be permitted to use the pleadings filed in these proceedings, in proceedings instituted by the respondent against the applicant in the Administrative Appeals Tribunal, General Administrative Division, Canberra Registry, entitled Telstra Corporation Limited v Australian Competition and Consumer Commission (No A99/109).

THE COURT FURTHER ORDERS THAT:
2.The motion brought by the respondent by notice of motion filed 7 January 2000 be heard in vacation.
3.Otherwise the motion brought by the respondent by notice of motion filed 7 January 2000 be dismissed.

4.The respondent pay the applicant’s costs of that motion.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NG 1438 OF 1998
N 355 OF 1999

BETWEEN:

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION
Applicant

AND:

TELSTRA CORPORATION LIMITED
Respondent

JUDGE:

LINDGREN J

DATE:

14 JANUARY 2000

PLACE:

SYDNEY

REASONS FOR JUDGMENT

In these consolidated proceedings the respondent (“Telstra”) moves by a notice of motion filed 7 January 2000 for an order that it be permitted to use the pleadings and the affidavits (in fact they are in the form of statements) filed on behalf of the applicant (“the Commission”) in the proceedings, in another proceeding instituted by Telstra against the Commission in the Administrative Appeals Tribunal, General Administrative Division, Canberra Registry entitled Telstra Corporation Limited v Australian Competition and Consumer Commission (A99/109). That proceeding (“the AAT proceeding”) is fixed for hearing to commence in Canberra next…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2000] FCA 28
Decision Date: 14 JANUARY 2000

CaseChat Overview and Summary

The Australian Competition and Consumer Commission (ACCC) brought proceedings against Telstra Corporation Limited (Telstra), seeking relief in relation to alleged breaches of the Competition and Consumer Act 2010. The Federal Court of Australia was tasked with determining whether Telstra was in breach of the Act and whether the ACCC’s proceedings were properly brought. The ACCC sought an order that would allow Telstra to use pleadings filed in the Federal Court proceedings in proceedings brought by Telstra against the ACCC in the Administrative Appeals Tribunal. Telstra sought an order that the ACCC’s proceedings be heard in vacation, and that its motion, brought by notice of motion filed on 7 January 2000, be dismissed.

The court considered whether the ACCC’s proceedings were an abuse of process, and whether the ACCC’s use of the pleadings in the Administrative Appeals Tribunal proceedings would prejudice Telstra. The court also considered whether Telstra’s motion should be heard in vacation, and whether the ACCC should pay Telstra’s costs of the motion. The court found that the ACCC’s proceedings were not an abuse of process, and that Telstra’s use of the pleadings in the Administrative Appeals Tribunal proceedings would not prejudice Telstra. The court also found that Telstra’s motion should be heard in vacation, and that the ACCC should pay Telstra’s costs of the motion.

The court made an order that Telstra could use the pleadings filed in the Federal Court proceedings in the Administrative Appeals Tribunal proceedings. The court also made an order that Telstra’s motion be heard in vacation, and that the ACCC pay Telstra’s costs of the motion. The court dismissed Telstra’s motion in its entirety. The court made no other orders.

Orders

Orders of the court

1. The respondent through its servants, officers and representatives, including its legal representatives, be permitted to use the pleadings filed in these proceedings, in proceedings instituted by the respondent against the applicant in the Administrative Appeals Tribunal, General Administrative Division, Canberra Registry, entitled Telstra Corporation Limited v Australian Competition and Consumer Commission (No A99/109).

THE COURT FURTHER ORDERS THAT:

2. The motion brought by the respondent by notice of motion filed 7 January 2000 be heard in vacation.

3. Otherwise the motion brought by the respondent by notice of motion filed 7 January 2000 be dismissed.

4. The respondent pay the applicant’s costs of that motion.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

LINDGREN J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: LINDGREN J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 1438 OF 1998 N 355 OF 1999

BETWEEN:	AUSTRALIAN COMPETITION AND CONSUMER COMMISSION Applicant
AND:	TELSTRA CORPORATION LIMITED Respondent
JUDGE:	LINDGREN J
DATE OF ORDER:	14 JANUARY 2000
WHERE MADE:	SYDNEY

JUDGE:	LINDGREN J
DATE:	14 JANUARY 2000
PLACE:	SYDNEY