Optus Communications Pty Ltd v Telstra Corporation Ltd

[1997] FCA 1515

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 671 of 1997

BETWEEN:

OPTUS COMMUNICATIONS PTY LIMITED (ACN 052 833 208)
First Applicant

OPTUS NETWORKS PTY LIMITED (ACN 008 570 330)
Second Applicant

AND:

TELSTRA CORPORATION LIMITED (ACN 051 775 556)
Respondent

JUDGE:	RYAN J
DATE:	28 NOVEMBER 1997
PLACE:	MELBOURNE

EX TEMPORE REASONS FOR JUDGMENT

This is an application by the applicants Optus Communications Pty Limited and Optus Networks Pty Limited (“Optus”) for interim injunctions to restrain the respondent, Telstra Corporation Limited (“Telstra”), from continuing to publish newspaper advertisements corresponding with three exhibits to affidavits which have been filed on behalf of Optus.  Each advertisement is said to be misleading and deceptive in contravention of the Trade Practices Act 1974.

The first advertisement which appeared at, amongst other places, page 27 of “The Australian Financial Review” of 27 November 1997 makes a comparison between the maximum $3 per call which Telstra charges for calls made between 7.00pm and 12.00 midnight on weeknights and rates for specified time intervals during the same time span said to be charged by Optus between certain specified locations.  The ascription of the $3 maximum per call said to be charged by Telstra is in very large print and is followed by the legend:

Maximum per call.
Talk as long as you like.

The symbol and figure $3 is accompanied by an asterisk but it is not clear from the rest of the advertisement which footnote corresponds with that asterisk.  To make clear the message which Mr Maxwell of Counsel for Telstra contended it was seeking to convey some expression such as “until midnight” should have appeared after the words “Talk as long as you like”.  However, although that aspect also infects the second advertisement appearing on page 29 of the same issue of “The Australian Financial Review”, I am not persuaded that the misleading impression is so gross that it requires to be restrained by the immediate grant of an interim injunction.

In a sense, considerations going to the balance of convenience are intertwined in this case with issues relevant to the existence of a serious question to be tried.  I am by no means convinced that the proposal by Telstra to vary one sentence of the advertisement on page 29 of “The Australian Financial Review” which is in these terms:

Telstra’s everyday STDâ Economy rates make it easy to save on calls between most major Australian cities.

by deleting the word “most” and substituting the word “some” would eliminate the vice to which I have referred.

The third advertisement appearing in “The Australian Financial Review” recites in bold type:

With Telstra
Smart Saver Flexi-Plan rates,
we’re cheaper than
Optus on weekdays to
every country in the world
except two.

(Our apologies to Tokelau and the Comoros Islands)

The complaint is made of that advertisement that it fails to compare like with like.  Telstra responds by contending that, assuming, for the purposes of argument, there has been a failure to compare like with like, it only affected its advertisement in respect of the six hours from 6.00pm to midnight on Friday evenings, it being contended that the advertisement is demonstrably true in respect of the rest of the weekdays between 6.00am on Monday to 6.00pm on Friday.

Each side has respectively contended that irreparable damage will flow from a failure to grant the interim relief sought or from the grant of that relief.  Bearing in mind the power of this Court to order corrective advertising in the context of the Trade Practices Act, I am not persuaded that the detriment to Optus from a refusal of interim relief is potentially as great as the detriment to Telstra if its advertising campaign were disrupted by an injunction restraining the publication of advertisements over the weekend.  I say that bearing in mind that Telstra remains liable to a requirement for corrective advertising with the concomitant destruction of any enhancement of its image or reputation which may have been achieved by the presumptively misleading advertisements.

In the circumstances, and given the limited time that I have necessarily had to reflect on this matter, I have decided not to grant interim relief.  I shall order that the directions hearing be adjourned to a date to be fixed which will occur early next week when Optus may, if so advised, pursue its claim for interlocutory relief.  I shall reserve the costs of both parties of this day and, if necessary, on Monday I shall give directions for the filing and service of affidavits to be relied on at the adjourned directions hearing in relation to the claim for interlocutory relief.

I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan.

Associate:

Dated:            28 November 1997

Counsel for the Applicant:	Mr N Young, QC with Mr J Elliott
Solicitors for the Applicant:	Minter Ellison
Counsel for the Respondent:	Mr C Maxwell
Solicitors for the Respondent:	Mallesons Stephen Jaques
Date of Hearing:	28 November 1997
Date of Judgment:	28 November 1997