Optus Networks Pty Limited v Telstra Corp Limited

[2002] FCA 381

FEDERAL COURT OF AUSTRALIA

Optus Networks Pty Limited v Telstra Corp Limited [2002] FCA 381

PRACTICE AND PROCEDURE – application for stay of orders - whether detriment would be suffered if application for stay is refused or granted – public inconvenience and uncertainty

Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 cited
Powerflex Services Pty Ltd v Data Access Corporation (1996) 67 FCR 65 cited

OPTUS NETWORKS PTY LIMITED AND OPTUS MOBILE PTY LIMITED v
TELSTRA CORPORATION LIMITED
N269 OF 2002

TAMBERLIN J
SYDNEY
3 APRIL 2002

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N269 OF 2001

BETWEEN:

OPTUS NETWORKS PTY LIMITED
(ACN 008 570 330)
FIRST APPLICANT

OPTUS MOBILE PTY LIMITED
(ACN 054 365 696)
SECOND APPLICANT

AND:

TELSTRA CORPORATION LIMITED
(ACN 051 775 556)
RESPONDENT

JUDGE:

TAMBERLIN J

DATE OF ORDER:

3 APRIL 2002

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The application for a stay is granted in accordance with Order 1 of the Amended Notice of Motion filed in Court on 28 March 2002.

2.        Costs of this application are awarded in accordance with the costs on the appeal.

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	N269 OF 2002

BETWEEN:

OPTUS NETWORKS PTY LIMITED
(ACN 008 570 330)
FIRST APPLICANT

OPTUS MOBILE PTY LIMITED
(ACN 054 365 696)
SECOND APPLICANT

AND:

TELSTRA CORPORATION LIMIITED
(ACN 051 775 556)
RESPONDENT

JUDGE:	TAMBERLIN J
DATE:	3 APRIL 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application by Telstra Corporation Limited (“Telstra”) filed on 21 March 2002, as amended, seeking a stay of an Order made by Moore J on 28 February 2002, which required Telstra to cease providing a service to existing customers, known as “HomeLine Net Service”, on terms which include a requirement that the customer should not acquire services from Optus by dialling an access override code which would supersede the Telstra Service.

2. The appeal is set down for hearing in approximately six weeks time.

3. On this application one starts with the approach that prima facie the applicants (“Optus” collectively) are entitled to the fruit of the judgment and that the Court should act on the basis that the judgment is prima facie, at least, correct.  There is no requirement that there should be any special or exceptional circumstances which need to be demonstrated by Telstra.  Telstra has an onus to persuade the Court that there is a proper basis for this starting point to be displaced and for Optus to be denied the benefit of its judgment: see Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 at 694 applied by the Full Federal Court in Powerflex Services Pty Ltd v Data Access Corporation (1996) 67 FCR 65 at 66. The exercise is not simply one of achieving a balance of convenience but that is a factor which must be taken into account.

4. It is…