First Netcom Pty Ltd v Telstra Corporation Ltd

[2000] FCA 1542

FEDERAL COURT OF AUSTRALIA

First Netcom Pty Ltd v Telstra Corporation Ltd [2000] FCA 1542

PRACTICE & PROCEDURE – application for leave to use affidavits filed but not read in the proceedings in proceedings in another court – whether material relevant to other proceedings

CORPORATIONS LAW – company under administration – stay of proceedings – whether application for leave to use documents filed with the Court a ‘proceeding against’ the company under s 440D of the Corporations Law

Corporations Law ss 440A(2), 440D

Allstate Life Insurance Co v ANZ Banking Group (1995) 57 FCR 360 referred to
Re Wakim; Ex parte McNally (1999) 198 CLR 511 referred to

FIRST NETCOM PTY LIMITED v TELSTRA CORPORATION LIMITED

N 543 OF 2000

EMMETT J
20 OCTOBER 2000
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 543 OF 2000

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	FIRST NETCOM PTY LIMITED APPELLANT
AND:	TELSTRA CORPORATION LIMITED RESPONDENT
JUDGE:	EMMETT J
DATE OF ORDER:	20 OCTOBER 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. Telstra Corporation Limited be granted leave to use in proceeding No 3760 of 2000 in the Supreme Court of New South Wales paragraphs 1, 2 and 3 of the affidavit of Peter Bruce Raupach sworn 11 September 2000 and paragraphs 2(ii) and (iii) and annexures B and C of the affidavit of Peter Bruce Raupach sworn 13 September 2000, such uses to be limited to reliance on the information contained in those paragraphs for the purposes of:

(a) cross-examination;

(b) preparation of notice to produce;

(c) tendering against First Netcom Pty Limited; and

(c) reading as affidavits in that proceeding.

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	N 543 OF 2000

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	FIRST NETCOM PTY LIMITED APPELLANT
AND:	TELSTRA CORPORATION LIMITED RESPONDENT

JUDGE:	EMMETT J
DATE:	20 OCTOBER 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. In April 1997, Telstra Corporation Limited (“Telstra”) commenced proceedings against First Netcom Pty Limited (“First Netcom”) claiming $13.8 million.  In June 1997, First Netcom filed a defence to Telstra’s claim and a cross-claim for approximately $37 million.  First Netcom also sought an interlocutory injunction restraining Telstra from discontinuing the supply of telephone services to First Netcom.  In effect First Netcom sought an interim mandatory judgment to compel Telstra to supply such services.

2. Upon the hearing of the application for interim relief, a judge of the Court granted an interlocutory mandatory injunction.  A Full Court of this Court subsequently set aside those orders.  Further orders were made by the primary judge in the nature of Mareva orders.  Those orders were varied on appeal by a Full Court differently constituted.  Following leave reserved by that Full Court for application to be made to vary the terms of the Mareva orders, an application for that…