Media Ocean Limited v Optus Mobile Pty Limited (No 2)
[2009] FCA 473
•23 April 2009
FEDERAL COURT OF AUSTRALIA
Media Ocean Limited v Optus Mobile Pty Limited (No 2) [2009] FCA 473
MEDIA OCEAN LIMITED and MEDIATEL SERVICES PTY LTD v OPTUS MOBILE PTY LIMITED
NSD 242 of 2009
PERRAM J
23 APRIL 2009
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 242 of 2009
BETWEEN: MEDIA OCEAN LIMITED
First ApplicantMEDIATEL SERVICES PTY LTD
Second Applicant
AND: OPTUS MOBILE PTY LIMITED
Respondent
JUDGE:
PERRAM J
DATE OF ORDER:
23 APRIL 2009
WHERE MADE:
SYDNEY
THE COURT:
1.Grants leave to the respondent to file in Court an amended notice of motion and an affidavit of Caitlin Maria Murray sworn 22 April 2009.
2.Grants access to all parties in respect of all documents produced in Court today except for those documents contained in the envelope marked “CONFIDENTIAL”.
3.Orders that an interim directions hearing be convened in the eCourtroom.
4.Orders that the amended application and the amended statement of claim filed 17 April 2009 be struck out.
5.To the extent necessary, grants leave to the applicant to file the proposed further amended application and the proposed further amended statement of claim.
6.Directs that the documents filed pursuant to order 5 be referred to as the further amended application and the further amended statement of claim.
7.Orders that, upon the filing of the proposed further amended statement of claim, paragraph 23 be struck out.
8.In respect of the following claims in paragraph 23, grants leave:
(a)to replead the misleading and deceptive conduct claim by invoking s 51A of the Trade Practices Act 1974 (Cth); and
(b)to replead the unconscionability claim.
9.Dismisses the second prayer of the respondent’s amended notice of motion filed 23 April 2009.
10.Orders that, pursuant to O 12 r 5 of the Federal Court Rules, the applicants provide to the respondent within 48 hours full particulars of paragraph 4 of the further amended statement of claim.
11.Orders that the matter be stood over to 9.30 am on Thursday 30 April 2009.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 242 of 2009
BETWEEN: MEDIA OCEAN LIMITED
First ApplicantMEDIATEL SERVICES PTY LTD
Second Applicant
AND: OPTUS MOBILE PTY LIMITED
Respondent
JUDGE:
PERRAM J
DATE:
23 APRIL 2009
PLACE:
SYDNEY
REASONS FOR JUDGMENT
This proceeding was commenced on 25 March 2009 and was placed in the expedition list. There was listed for hearing this morning a motion by the respondent seeking security for costs but, for reasons which will become apparent, that motion has not proceeded. This morning when the matter was called on it became apparent that various pleading issues had arisen between the parties together with a retinue of issues arising from notices to produce and other interlocutory matters. The respondent (“Optus”) sought this morning to strike out the current form of the pleading (which is an amended statement of claim) and the current form of the originating process (which is an amended application).
Those documents were filed in Court before me on Friday 17 April 2009. At that time I granted leave only to amend the identity of the second applicant. Despite that, however, substantive amendments were made. These were made, it would seem, pursuant to a grant of leave given by Emmett J on 1 April 2009.
I granted leave this morning for Optus to file an amended notice of motion. Prayers 3 and 4 of that amended notice of motion sought to strike out either the whole of the amended statement of claim and amended application or alternatively paragraphs 10 and 21 to 23 of the pleading. Three bases were articulated. The first was that the pleading was not certified. The second was that there was a pleading deficiency in paragraph 10 and the third was that there were pleading deficiencies in paragraphs 21 to 23.
The applicants did not seek to support the amended statement of claim or the amended application but neither did they consent to it being struck out. Rather Mr Kunç SC, who appeared with Mr Bova, sought to rely upon a further amended application and a further amended statement of claim. I say “rely” because his primary position was that he was entitled, as a matter of right, to amend pursuant to O 13 r 3 which provides:
Amendment of pleading without leave
(1)A party may, without leave, amend any pleading of his once at any time before the pleadings are closed.
(2)A party may further amend any pleading of his before the pleadings are closed and without the leave of the Court if he obtains the consent of all other parties.
(3)Subject to subrule (4), an amendment may be made even if:
(a)the effect of the amendment is to add a new claim for relief or foundation in law for a claim for relief, whether by way of substitution for an existing claim for relief or foundation in law or not; or
(b)the amendment pleads a fact or matter that has occurred or arisen since the commencement of the proceeding.
(4)Subrule (3) does not permit an amendment that would have an effect inconsistent with any statute that limits the time within which an action or a proceeding of a particular kind may be brought or instituted.
Mr Kunç’s argument shortly was that since he had not amended without leave he was entitled now so to do. The fact that Emmett J had granted him leave on 1 April 2009 meant that the terms of the rule remained satisfied.
There is an interesting question about the proper construction of r 3(1) and there may be something to be said, at least at first blush, for the correctness of Mr Kunç’s argument. However, it is not necessary to express a concluded view about the matter. This is because Mr McHugh SC, who appeared with Mr Potts for Optus, submitted that it was wrong and that leave was required. If that was so, he argued, leave would not be granted because I should strike out the proposed pleading or, alternatively, if leave was not required Optus would apply to strike out the pleading in any event. On either view one ends up in the same location which is either that Mr McHugh’s argument that there is a demurrable difficulty with the pleading is correct or it is not. The basic question remains the same. Mr McHugh’s argument in relation to the further amended statement of claim was not dissimilar to the arguments he advanced in relation to the amended statement of claim. Those arguments, again, centred upon paragraph 10 of the proposed pleading. Paragraph 10 provides:
On dates not presently known to the Applicants but at least on:
(a)24 December 2008 Optus sent SMS text messages to
allPlan Customers in the following terms:“IMPORTANT: All calls that re-route or divert to international numbers are charged at 29c per min + 27c flagfall. See optus.com.au/ international for details”; and
(b)16 March 2009 Optus sent SMS text messages to
allPlan Customers in the following terms:“IMPORTANT: All calls that re-route or divert to international numbers are charged from 29c per min + 27c flagfall. See optus.com.au/international for details”
It will be seen that the critical difference between the above paragraph and paragraph 10 of the previous pleading is the omission of the word “all”.
The point sought to be made in relation to paragraphs 21 to 23 of the proposed pleading was essentially the same. For present purposes, it suffices to note that in circumstances where the applicant does not seek to defend the amended statement of claim and the claim is uncertified it is appropriate to strike it out and to proceed to deal substantively with Mr Kunç’s amendment application (if amendment application it be).
Mr McHugh’s point in relation to paragraph 10 of the proposed pleading was that the previous iteration of the pleading had referred to “all Plan Customers” in paragraph 10 whereas the current version only refers to “Plan Customers”. The significance of paragraph 10 is that it alleges that on Christmas Eve in 2008, and on a date in March 2009, Optus sent SMS text messages to “Plan Customers” in certain terms.
Mr McHugh says that his client is entitled to know who it was who received those SMS messages and that the applicant should be required to identify them. The difference between the two pleadings, he submitted, reflected the fact that it had obviously become known to the applicants as a result of the amended statement of claim that not all of the customers had, in fact, received the SMS message. Therefore, he submitted, the new paragraph 10 was effectively seeking to circumvent the issue by being evasive about which plan customers had received the message. On the other hand Mr Kunç submitted that his clients could hardly say who it was that Optus had sent the messages to because it was Optus who had sent the messages and it would be Optus, in the nature of things, who would know.
It seems to me that it is obvious that the applicants could not know which of the customers were involved. No doubt they know that some SMS messages were sent. That presumably is why they are currently before the Court. They may even know the identity of a small or reasonable number of persons who have received the SMS message. It seems to me that once one accepts that the applicants can prove that some customers have received the SMS it would be unfair and unjust to require the applicants to identify every person to whom Optus sent the SMS message when it was Optus who was the sender. This is not a case where an applicant is being relieved from actually saying what its case is; rather this is a case where the applicant can point to the conduct of Optus in sending the messages to some customers and can say, it seems to me with some force, that it is Optus alone who knows to whom it sent the messages.
Before the matter is determined at trial, if there is still an issue about this, the applicants will need to say which customers received the text messages. However, I do not see any reason why that needs to be done at this stage. The provision of that information can sensibly await the outcome of discovery. It follows therefore that I reject the attack on paragraph 10 of the pleading.
I turn then to paragraphs 21 to 23 of the pleading. They provide:
21.Further or in the alternative to paragraphs 13 to 20 above, from a time presently unknown to the applicants until date, Optus has:
(a)Charged Plan Customers on Post Paid Plans, including ‘yes’ Timeless Plans and Cap Plans, on the basis that a call to a Media Ocean Number that used the Media Ocean Services was a call made to an international destination and is an international call or service for the purposes of the Post Paid Agreements;
(b)Charged Plan Customers on Pre-paid Plans on the basis that a call to a Media Ocean Number that used the Media Ocean Services was not a call made to an international destination and is not an international call or service for the purpose of the Pre-paid Agreements;
(c)Charged Plan Customers on SME Plans on the basis that a call to a Media Ocean Number that used the Media Ocean Services was not a call made to an international destination and is not an international call or service for the purpose of the SME Agreements; and
(d)Charged Plan Customers on Business Plans on the basis that a call to a Media Ocean Number that used the Media Ocean Services was not a call made to an international destination and is not an international call or service for the purpose of the Business Agreements.
22.The conduct referred to in paragraph 21 above was conduct in trade or commerce.
23.By reason of the matters set out in paragraphs 3(a) and 21 and 22 above, Optus has engaged in conduct that is misleading or deceptive within the meaning of section 52 of the Trade Practices Act 1974 (Cth) or alternatively unconscionable within the meaning of section 51AB or 51AC of the Trade Practices Act 1974 (Cth).
Mr McHugh made three points about this. First, in relation to paragraph 21(a), he said that the representation could not arise. Secondly, he said that paragraph 21(a) was, on any view, a representation as to a future matter. When one looked at paragraph 21(c) it only recited that those representations had failed to come true. But proving that a representation as to the future did not come true is not the same as proving that the representation was false. Thirdly, he pointed out that the unconscionability case pleaded in paragraph 23 was, as a matter of the text of the paragraph, inextricably interlinked with the allegations in paragraph 21(a), being the misrepresentation case.
Dealing first with paragraph 21(a), although it is not pleaded in these terms, the argument must be, as it would be in a passing off case, that Optus has engaged in the conduct alleged because an ordinary reasonable user of the mobile telephone services of Optus would regard or would understand the matter alleged in that paragraph. I have very serious doubts as to whether the ordinary reasonable user of mobile telephone services would think what is currently in paragraph 21(a), but despite my doubts about that, I do not think that it is appropriate at this stage peremptorily to prevent such a case going forward.
As to the problem of paragraph 21(c) not falsifying paragraph 21(a), it seems to me that is a sound proposition. Indeed, paragraph 21(c) seems to me to be otiose. Insofar as it alleges unconscionable behaviour the allegation is unnecessary because the same is alleged in paragraph 23. Insofar as it relates to the falsity of the representation it is unnecessary because paragraph 21(a) is a representation as to a future matter and it is the operation of s 51A(1)-(2) of the Trade Practices Act 1974 (Cth) which provides the reason for the misleading or deceptive nature of that representation. That, however, raises its own difficulties about paragraph 23. If s 51A is being relied upon, s 51A should be pleaded so that the respondent can be put on notice of the way in which the case is being put. Paragraph 23 currently does not seek to invoke s 51A.
Insofar as it makes an allegation of unconscionable behaviour, that allegation is connected to the representation in paragraph 21(a). However, because I have concluded that that representation, although dubious is not demurrable, it seems to me that is not a proper criticism of the unconscionability pleading in paragraph 23. In any event, it seems to me that the unconscionability pleading does not need to depend upon paragraph 21(a). The real point which Mr Kunç sought to articulate as being unconscionable was the differential treatment between categories for customers which is apparent from paragraph 21(b). In those circumstances what I propose to do is to permit the further amended statement of claim to be filed, but to strike out paragraph 23 in its entirety from that document once it is filed and grant leave to replead that paragraph within two business days so as to add a properly pleaded s 52 claim invoking s 51A, and to plead the unconscionability claim in a way which either makes manifest that it is relying upon paragraph 21(a) or that it is relying upon paragraph 21(b).
I will grant the applicants leave to file the further amended application and the further amended statement of claim if leave be needed and I will strike out paragraph 23 on the terms I have just indicated. Because there will then be confusion as to what the names of those documents will be I will cure the confusion by directing that the documents be called the further amended statement of claim and the further amended application.
I then move to the notice to produce dated 26 March 2009. This was issued by the applicants at the commencement of the proceeding. The text of it can be found as annexure G to the affidavit of Mr Powers sworn 17 April 2009 and it sought documents described in the following terms:
For the period 1 June 2007 to the commencement of these proceedings, a copy of each iteration of the standard form of documents comprising the Optus Agreement (as referred to in paragraph 8 of the Statement of Claim) or any other or additional documents comprising the contracts entered into between the respondent and its customers for the provision of mobile telecommunications services, including but not limited to ‘yes’ Timeless Plans and Cap Plans referred to in paragraph 7 of the Statement of Claim.
There were two points made by the respondent in relation to this. The first was that it potentially picked up all contracts with each of its customers. However, Mr Kunç made clear during his argument that the intention was to pick up not the particular contracts with customers but the iterations or standard forms of the contract which were available from time to time.
The second difficulty which was raised with the notice to produce was that it is based on paragraph 8 of the pleading which it was argued should be struck out. Since that has not happened this argument does not arise. It seems to me in that circumstance I should decline to set aside the notice to produce. In doing that I note Mr Kunç’s remarks as to its operation which are on the transcript.
The third matter which required attention this morning was a question of particulars. Prayer 1 of the amended notice of motion sought the provision of some particulars which had been requested on 3 April 2009. Only one of those is now pertinent. It related to the provision by the applicants of what were called the “Media Ocean Numbers” pleaded in paragraph 4 of the then pleading. That paragraph provided then (and now):
From at least in or around June 2007 Media Ocean, in conjunction with Mediatel Aus, has offered and continues to offer services to telephone users in Australia where by dialling designated Australian mobile digital telephone numbers (Media Ocean Numbers), the user will then be connected to an international telephone number (Media Ocean Services).
No substantive reason was advanced as to why these numbers should not be produced. They are referred to in the pleading, and while it may be ultimately that they are of tangential significance, it is difficult to understand why the numbers, which are, after all, at the heart of the case, should not be provided.
It appeared during argument that the principal concern which the applicants had was one relating to a fear that Optus might move against the numbers in some way. I make no comment upon whether that would be an act done in contempt of this Court. It is sufficient to note that the matter has been raised.
I order that the particulars be provided, that is, that the applicants provide details of the “Media Ocean Numbers” pleaded in paragraph 4.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram. Associate:
Dated: 12 May 2009
Counsel for the Applicants: Mr F Kunç SC with Mr CN Bova Counsel for the Respondent: Mr RG McHugh SC with Mr JAC Potts Solicitors for the Applicants: Marque Lawyers Solicitors for the Respondent: Minter Ellison
Date of Hearing: 23 April 2009 Date of Judgment: 23 April 2009
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