FEDERAL COURT OF AUSTRALIA
ispONE Pty Ltd v Telstra Corporation Limited [2013] FCA 823
Citation: ispONE Pty Ltd v Telstra Corporation Limited [2013] FCA 823 Parties: ISPONE PTY LTD (ACN 103 220 766) v TELSTRA CORPORATION LIMITED (ACN 051 775 556) File number(s): VID 812 of 2013 Judge(s): PAGONE J Date of judgment: 14 August 2013 Catchwords: PRACTICE AND PROCEDURE – interlocutory injunction – application to restrain telecommunications provider from terminating supply of services – whether prima facie case established – whether balance of convenience favours the granting of an injunction –whether undertaking as to damages effective – need to do equity by paying into court the amount in dispute – Telstra Corporation Limited v First Netcom – amount to be paid into court – undertaking as to damages – financial position of applicant seeking injunction –undertaking as to damages in circumstances where there is an inextricable link between the applicant’s financial position and the dispute between the parties
Legislation: Australian Consumer Law ss 4, 18, 21(1), 22
Trade Practices Act 1974 (Cth) s 51AACases cited: Elco Food Co Pty Ltd v Oliana Foods Pty Ltd [2012] FCA 410
Olex Focas Pty Ltd v Skodaexport Co Ltd [1998] 3 VR 380
ACCC v Lux Distributors Pty Ltd [2013] FCA 47
Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618
Varley v Varley [2006] NSWSC 1025
Telstra Corporation Ltd v First Netcom Pty Ltd (1997) 78 FCR 132
Businessworld Computers Pty Ltd v Australian Telecommunications Commission (1988) 82 ALR 499Date of hearing: 13 August 2013 Date of last submissions: 14 August 2013 Place: Melbourne Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 32 Counsel for the Applicant: Mr D Star Solicitor for the Applicant: K & L Gates Counsel for the Respondent: Mr J Karkar QC with Mr R Craig Solicitor for the Respondent: Herbert Smith Freehills
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 812 of 2013
BETWEEN: ISPONE PTY LTD (ACN 103 220 766)
ApplicantAND: TELSTRA CORPORATION LIMITED (ACN 051 775 556)
Respondent
JUDGE:
PAGONE J
DATE OF ORDER:
14 AUGUST 2013
WHERE MADE:
MELBOURNE
Upon the Applicant undertaking, by its Counsel:
(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 a party, adversely affected by the operation of the interlocutory order or undertaking or any continuation (with or without variation) thereof; and
(b)to pay the compensation referred to in (a) to the person there referred to; and
and conditional upon the Applicant:
(c)giving irrevocable directions in the form specified in Annexures A and B to this Order to the persons specified in those directions within 24 hours of the making of this order; and
(d)filing and serving an affidavit verifying notification of the direction referred to in (c) to the persons named in Annexures A and B forthwith.
THE COURT…
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- Case
- [2013] FCA 823
- Decision Date
CaseChat Overview and Summary
The court examined whether ISPONE had established a prima facie case, whether the balance of convenience favoured the grant of the injunction, and whether the undertaking as to damages was sufficient. The court considered Telstra’s right to terminate the contract and the need for ISPONE to do equity by paying into court the amount in dispute. The court also considered the financial position of ISPONE and the inextricable link between this position and the dispute. The court concluded that ISPONE had established a prima facie case, the balance of convenience favoured the injunction, and the undertaking as to damages was sufficient, particularly given the financial position of ISPONE.
The court granted the injunction, restraining Telstra from acting on any Breach Notices, terminating the Customer Relationship Agreement, and terminating the supply of services. The court also directed that the proceeding be listed for directions, that the applicant file and serve written submissions by a specified date, and that costs be reserved. The court recognised the importance of the financial position of ISPONE in its decision-making process.
The court's final orders included restraining Telstra from acting on any Breach Notices, terminating the Customer Relationship Agreement, and terminating the supply of services until the trial or further order. The proceeding was listed for directions, and ISPONE was directed to file and serve written submissions by a specified date. Costs were reserved, and liberty to apply was granted.
Orders
Orders of the court
1. Until trial or further order, the Respondent be restrained from:
(a) acting on any of the Breach Notices as defined in paragraph 67 of the Affidavit of Zac Swindells affirmed on 12 August 2013;
(b) terminating the Customer Relationship Agreement between the applicant and the respondent dated 18 May 2005, as varied by the Variation Agreement dated 21 November 2012;
(c) terminating the supply of services contemplated by the CRA to the Applicant including but not limited to the Service as defined in CRA-84 – Telstra Wholesale Pre-Paid Mobile Service Schedule.
2. The proceeding be listed for directions at 10:15am on 15 August 2013.
3. The applicant file and serve by 9:30am on 15 August 2013 full written submissions in support of its claims against the respondent for final relief upon the assumption that the applicant’s evidence-in-chief be the materials filed in the proceeding.
4. Costs be reserved.
5. Liberty to apply.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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