Clear Networks Pty Ltd, in the matter of Clear Networks Pty Ltd

[2021] FCA 454

FEDERAL COURT OF AUSTRALIA

Clear Networks Pty Ltd, in the matter of Clear Networks Pty Ltd [2021] FCA 454  

File number(s):	VID 212 of 2021
Judgment of:	WHEELAHAN J
Date of judgment:	29 April 2021
Division:	General Division
Registry:	Victoria
National Practice Area:	Commercial and Corporations
Sub-Area:	Economic Regulator, Competition and Access
Number of paragraphs:	5
Date of hearing:	29 April 2021
Solicitor for the Prospective Applicant:	Mr L Widowson of Brixton Legal

 

ORDERS

VID 212 of 2021

BETWEEN:

CLEAR NETWORKS PTY LTD (ACN 112 273 566)

Prospective Applicant

AND

SECOMM AUST PTY LTD (ACN 160 787 968)

Prospective Respondent

ORDER MADE BY:	WHEELAHAN J
DATE OF ORDER:	29 APRIL 2021

PENAL NOTICE

TO:Secomm Aust Pty Ltd (A.C.N 160 787 968)

IF YOU (BEING THE PERSON BOUND BY THIS ORDER):

(A)REFUSE OR NEGLECT TO DO ANY ACT WITHIN THE TIME SPECIFIED IN THIS ORDER FOR THE DOING OF THE ACT; OR

(B)DISOBEY THE ORDER BY DOING AN ACT WHICH THE ORDER REQUIRES YOU NOT TO DO,

YOU WILL BE LIABLE TO IMPRISONMENT, SEQUESTRATION OF PROPERTY OR OTHER PUNISHMENT.

ANY OTHER PERSON WHO KNOWS OF THIS ORDER AND DOES ANYTHING WHICH HELPS OR PERMITS YOU TO BREACH THE TERMS OF THIS ORDER MAY BE SIMILARLY PUNISHED.

OTHER MATTERS:

1.The prospective applicant undertakes to the Court:

(a)to submit to such order (if any) as the Court may consider to be just for the payment of compensation, (to be assessed by the Court or as it may direct), to any person, (whether or not that person is a party), affected by the operation of the order or undertaking or any continuation (with or without variation) of the order or undertaking; 

(b)to pay the compensation referred to in (a) to the person affected by the operation of the order or undertaking;

(c)to commence a proceeding in relation to the subject matter of this application by 4.00pm 30 April 2021; and

(d)to pay to the Registry the filing fee of this application.

2.The court read the following affidavits –

(a)Robert Jan van der End dated 29 April 2021; and

(b)Erhan Karabardak dated 29 April 2021.

3.A legal representative for the prospective respondent did not appear on the application, and in the circumstances of informal notice to the prospective respondent, the Court treated the application as being made ex parte.

THE COURT ORDERS:

1.Subject to further order, until 4.00pm Wednesday 5 May 2021, Secomm Aust Pty Ltd (ACN 160 787 968) by its servants or agents or howsoever otherwise is restrained from:

(a)tampering or interfering with the telecommunications facility operated by Clear Networks Pty Ltd (ACN 112 273 566) located at the place known as the Briarty Hill Communications Tower in the Waramate Flora and Fauna Reserve, Grueyer in the state of Victoria (Site); and

(b)preventing or interfering with the Clear Networks Pty Ltd (ACN 112 273 566) exercising its powers and rights to maintain the facility at the Site.

2.The prospective applicant serve a copy of this order and the affidavits that were read to the Court upon the legal practitioners acting for the prospective respondent forthwith, and otherwise (subject to further order) the prospective applicant is to effect service of this order and other process upon the prospective respondent as permitted by and in accordance with the Federal Court Rules 2011 (Cth).

3.Subject to further order, the requirement that a statement of claim accompany the originating application be dispensed with.

4.The application is adjourned to 5 May 2021, at a time to be advised by the Court.

5.Costs be reserved.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
(ex tempore, revised)

WHEELAHAN J:

1. The applicant claims urgent interlocutory relief against the respondent to enjoin the respondent from tampering, or interfering with a telecommunications facility operated by the applicant, or otherwise preventing or interfering with the applicant exercising powers under cl 7 of schedule 3 of the Telecommunications Act 1997 in respect of the facility.

2. The applicant is the holder of a carrier license under s 56(1) of the Act, and claims that it has a statutory right to maintain its telecommunications facilities under cl 7 of schedule 3 of the Act. The applicant is currently in dispute with the respondent relating to money alleged to be due to the respondent in respect of its use of the site at which its telecommunications facility is located. The Court received on this application evidence in the form of an affidavit of Robert Jan van der End dated 29 April 2021 together with the annexures to that affidavit. The affidavit evidence deposes to the interference with electric power to the site on 21 April 2021, and a written threat by the respondent made through its solicitors on 27 April 2021 to disconnect the power from the site at 4.00 pm today unless a sum of money, which is disputed by the applicant, was paid.

3. The Court also received into evidence an affidavit of a legal practitioner for the applicant, Erhan Karabardak, dated 29 April 2021, which annexed two emails to the legal practitioners for the respondent giving them notice of this urgent application, including by forwarding to the legal practitioners for the respondent an invitation to join the hearing on the Microsoft Teams platform. When the hearing of the matter resumed today shortly before 3.00 pm in Courtroom 9B in Melbourne, the respondent was called and there was no appearance. I determined to proceed with the application as an ex parte application made on behalf of the applicant. 

4. I am satisfied for the purposes of this application, which, as I have mentioned, I have heard ex parte, that there is a serious question to be tried in relation to the applicant’s exercise of statutory rights to maintain the telecommunications facility. I have had regard to the decision of Kunc J of the Supreme Court of New South Wales in NBN Co Limited v Pipe Networks Pty Ltd [2015] NSWSC 475, and in particular at [34] – [40], in arriving at the conclusion that there is a serious question to be tried as claimed by the applicant.

5. Having regard to my satisfaction that there is a serious question to be tried, albeit formed only for the purposes of this interim application, and the damage that the applicant, and third parties might suffer should power to the applicant’s telecommunications facility be disconnected as the respondent has threatened, I am satisfied that there is at least an arguable case that damages would not be an adequate remedy should the applicant establish its claim at trial. I am therefore satisfied that the balance of convenience favours the grant of an interim injunction so as to prevent the threatened disruption to the applicant’s telecommunications facility. That interim injunction shall remain in place until 4.00 pm, Wednesday 5 May 2021, or further order. The injunction will be made on the basis of undertakings, including an undertaking that the applicant will commence a proceeding, and the usual undertaking as to damages. The orders made by the Court will contain a penal notice as required by the Rules.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wheelahan.

Associate:  

Dated:       3 May 2021