Mathews, Russell Gordon Haig v Telstra Corp Ltd

[1995] FCA 880

IN THE FEDERAL COURT OF AUSTRALIA )
QUEENSLAND DISTRICT REGISTRY     )    No. QG 144 of 1995
GENERAL DIVISION                 )

BETWEEN   :    RUSSELL GORDON HAIG MATHEWS

Applicant

AND      :    TELSTRA CORPORATION LIMITED

Respondent

CORAM:    Spender J
PLACE:    Brisbane
DATE:     26 October 1995

MINUTES OF ORDER

THE COURT ORDERS THAT:

1. The relief claimed in paragraphs 1 and 2 of the notice of motion of 22 September 1995 is refused.

1. The applicant pay the costs of and incidental to paragraphs 1 and 2 of the motion and the appearance by the Attorney today, to be taxed if not agreed. 

THE COURT GRANTS LEAVE to the applicant to amend his application by adding the relief which is specified in paragraph 3 of the notice of motion filed 22 September 1995. 

THE COURT ORDERS THAT the costs of Mr Mathews and Telstra Corporation Limited in respect of paragraph 3 of the motion are reserved.

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

IN THE FEDERAL COURT OF AUSTRALIA )
QUEENSLAND DISTRICT REGISTRY     )    No. QG 144 of 1995
GENERAL DIVISION                 )

BETWEEN   :    RUSSELL GORDON HAIG MATHEWS

Applicant

AND      :    TELSTRA CORPORATION LIMITED

Respondent

CORAM:    Spender J
PLACE:    Brisbane
DATE:     26 October 1995

REASONS FOR JUDGMENT

This is an originating application which was filed by Mr Mathews on 13 September 1995.  I note today that the claim for interlocutory relief in that application, namely, an interlocutory injunction restraining the respondent from disconnecting the applicant's phone until finalisation of this matter, is no longer the subject of a claim for relief by Mr Mathews.

What I am concerned with today is a notice of motion filed by Mr Mathews on 22 September 1995.  In that notice of motion Mr Mathews says:

"On the grounds appearing in the accompanying Affidavit the applicant seeks the leave of the court to move:

1.To join Michael Lavarch as a party to this action.

2.To seek leave of the court to amend the application:

(i)to claim aggravated damages suffered by the applicant

(ii)to claim exemplary damages suffered by the applicant,

(iii)to seek a declaration that this is a matter that falls within the responsibility of Michael Lavarch, the Attorney-General to prosecute.

3.An interlocutory/interim injunction pursuant to section 80(2) of the Trade Practices Act 1974 (TPA) that Telstra be restrained from transmitting, forwarding or sending invoices and/or accounts for telephone services, where such are deceptive or that make false or misleading representations in regard to the price or rate at which particular calls are charged, in particular, charged calls which straddle the 8am weekday change in rates. "

The Attorney appeared by Counsel today to resist his joinder as a party in the proceedings between Mr Mathews and Telstra Corporation Limited ('Telstra').  In my opinion the relief claimed in paragraphs 1 and 2 of the notice of motion filed 22 September 1995 should be refused. 

Insofar as those two paragraphs of the motion are concerned, the applicant's claim is against Telstra, and the Attorney-General is not a necessary party to that claim.  No purpose is served by his joinder, either as applicant or as a respondent.  Under O. 6 r. 8 a person is not to be added as an applicant without his consent (see O. 6 r. 8(2)), and no such consent has been given.

No claim is made against the Attorney, so that it is not appropriate that he be joined as a respondent.  It may be that the purpose of the claim for joinder was to force the Attorney to seek injunctive relief, which the Attorney does not wish to seek.  The matters in dispute between Mr Mathews and Telstra can be determined effectually and completely without the joinder of the Attorney. 

Further, in my opinion, no basis has been shown which should lead the court to grant leave for a claim for aggravated or exemplary damages.  Nor, it seems to me, should leave be granted for a declaration that the matter is a matter which falls within the responsibility of the Attorney to prosecute.  That declaration would serve no useful purpose, and it is not competent for Mr Mathews to direct the Attorney as to how he should exercise the discretion which the Trade Practices Act 1974 confers on him.

In respect of the relief claimed in paragraph 3, I ought to grant leave to Mr Mathews to amend his claim to insert that claim for an interlocutory or interim injunction.  As a matter of strict legality, he is entitled, in my opinion, to amend his application by claiming by way of interlocutory or interim relief, the injunction which he has formulated in paragraph 3 of the notice of motion filed on 22 September.  So I grant leave in that respect.  Otherwise the relief sought in the notice of motion is refused.

The ordinary rule is that the unsuccessful party should pay the successful party's costs.  In this particular case there is no reason to depart from that general rule. 
         The relief claimed in paragraphs 1 and 2 of the notice of motion of 22 September 1995 is refused.  I order that Mr Mathews pay the costs of and incidental to that motion and the appearance by the Attorney today, to be taxed if not agreed. 

I grant leave to Mr Mathews to amend his application by adding the relief which is specified in paragraph 3 of the motion filed 22 September 1995. 

In respect of the costs of Mr Mathews and Telstra in respect of that aspect of the motion, those costs are reserved.

I certify that this and the  preceding three (3) pages are a true copy of the reasons for judgment herein of the Honourable Justice J.E.J. Spender.

Associate

Date: 26 October 1995

The applicant appeared in person.

Counsel for Telstra Corporation Limited    :    Mr M. J. Crowley

instructed by  :   Mallesons Stephen Jaques

Counsel for the Attorney-General      :   Mr P. Applegarth

instructed by  :   Austn. Government Solicitor

Date of Hearing  :   26 October 1995