Pivotel Satellite Pty Limited v Optus Mobile Pty Limited

In the matter of Pivotel Satellite Pty Limited v Optus Mobile Pty Limited, Pivotel brought an action against Optus alleging breaches of the Trade Practices Act, including misuse of market power and unconscionable and misleading or deceptive conduct. Pivotel claimed that Optus had acted anti-competitively by blocking calls to its network, thereby causing harm to its business. Optus defended the allegations, asserting that it had no legal obligation to carry calls to Pivotel and that its decision not to do so was based on genuine commercial considerations unrelated to its competitive position.

The court was tasked with determining whether Pivotel had established a prima facie case for the alleged breaches of the Trade Practices Act. Specifically, the court needed to assess whether Optus had misused its market power by blocking calls to Pivotel and whether such actions were intended to eliminate or substantially damage a competitor, deter or prevent competitive conduct, or engage in unconscionable, misleading or deceptive conduct. Pivotel had to demonstrate that Optus's actions could be seen as taking advantage of its market power in a way that substantially lessened competition.

The court examined the evidence presented by both parties, including expert testimony and market analysis. It found that there was sufficient evidence to suggest that Optus had substantial market power in the mobile telephone market, encompassing both satellite and ordinary mobile services. The court accepted that Optus's decision to block calls to Pivotel was based on commercial considerations but determined that this did not preclude a finding of market power misuse. The court concluded that Pivotel had made out a serious question to be tried on the misuse of market power claim under section 151AJ of the Trade Practices Act, as there was evidence that Optus's actions had or were likely to have a substantial lessening of competition. The court did not reach a conclusion on the other alleged breaches.

The court ruled that Pivotel had established a serious question to be tried regarding the misuse of market power under section 151AJ of the Trade Practices Act, allowing the matter to proceed to trial.