FEDERAL COURT OF AUSTRALIA
Pivotel Satellite Pty Limited v Optus Mobile Pty Limited [2010] FCA 121
Citation: Pivotel Satellite Pty Limited v Optus Mobile Pty Limited [2010] FCA 121 Parties: PIVOTEL SATELLITE PTY LIMITED ACN 099 917 398 v OPTUS MOBILE PTY LIMITED ACN 054 365 696 and OPTUS NETWORKS PTY LIMITED ACN 008 570 330 File number(s): NSD 1468 of 2009 Judge: JAGOT J Date of judgment: 23 February 2010 Corrigendum: 3 June 2011 Catchwords: PRACTICE AND PROCEDURE – application to vary interlocutory injunction – whether there has been a material change in circumstances since order made – whether there is new material or evidence available which was not available at the time of the original order – whether there are exceptional circumstances which warrant reconsideration of the matter – whether as a matter of discretion, the matter should be reconsidered. Legislation: Telecommunications Act 1997 (Cth)
Trade Practices Act 1974 (Cth)Cases cited: Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44
P Dawson Nominees Pty Ltd v Australian Securities and Investments Commission (No 2) (2009) 255 ALR 466; [2009] FCA 413
Pivotel Satellite Pty Limited v Optus Mobile Pty Limited [2009] FCA 1601Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 50 Counsel for the Applicant: Mr F Kunc SC and Mr C Bora Solicitor for the Applicant: Marque Lawyers Counsel for the Respondents: Mr C.A Moore and Mr J.A.C Potts Solicitor for the Respondents: Minter Ellison FEDERAL COURT OF AUSTRALIA
Pivotel Satellite Pty Limited v Optus Mobile Pty Limited [2010] FCA 121
CORRIGENDUM
1.The file number on the coversheet, which presently reads “NSD 1468 of 2010”, should read “NSD 1468 of 2009”.
I certify that the preceding one (1) numbered paragraph is a true copy of the Corrigendum to the Reasons for Judgment herein of the Honourable Justice Jagot. Associate:
Dated: 3 June 2011
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1468 of 2009
BETWEEN: PIVOTEL SATELLITE PTY LIMITED ACN 099 917 398
ApplicantAND: OPTUS MOBILE PTY LIMITED ACN 054 365 696
First RespondentOPTUS NETWORKS PTY LIMITED ACN 008 570 330
Second Respondent
JUDGE:
JAGOT J
DATE OF ORDER:
22 FEBRUARY 2010
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The matter be listed for further directions on 23 February 2010 at 3.00pm.
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 Federal Law Search on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1468 of 2009
BETWEEN: PIVOTEL SATELLITE PTY LIMITED ACN 099 917 398
ApplicantAND: OPTUS MOBILE PTY LIMITED ACN 054 365 696
First RespondentOPTUS NETWORKS PTY LIMITED ACN 008 570 330
Second Respondent
JUDGE:
JAGOT J
DATE OF ORDER:
22 FEBRUARY 2010
WHERE MADE:
SYDNEY
REASONS FOR JUDGMENT
On 23 December 2009 I made interlocutory orders in favour of the applicant, Pivotel Satellite Pty…
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Details
- Case
- [2010] FCA 121
- Decision Date
CaseChat Overview and Summary
In the case of Pivotel Satellite Pty Ltd v Optus Mobile Pty Ltd, Pivotel sought an interlocutory injunction against Optus, alleging that Optus's actions constituted anti-competitive conduct in violation of the Trade Practices Act 1974 (Cth). Pivotel argued that Optus's blocking of calls to Pivotel numbers on 21 December 2009 was unlawful and substantially lessened competition in both the ordinary mobile telephone and satellite telephone markets. On 23 December 2009, the Court issued an interlocutory injunction requiring Optus to restore connectivity and to refrain from blocking calls to Pivotel numbers. The legal issues before the court involved determining whether there had been a material change in circumstances since the initial order, whether there was new evidence or material available that was not available at the time of the original order, and whether exceptional circumstances warranted reconsideration of the matter.
The court examined the principles governing the variation of interlocutory orders, emphasizing that while a court has the jurisdiction to vary or set aside such orders, the re-litigation of already decided issues is generally undesirable. The court noted that a material change in circumstances, new evidence, or exceptional circumstances would need to be demonstrated to justify a variation. Pivotel argued that the essential facts had not changed, and that Optus's actions continued to block calls to Pivotel numbers, affecting 8000 satellite customers. Pivotel contended that Optus had known about the issue of two-stage dialling since 23 December 2009, and that the number of subscribers remained the primary concern, not the volume of minutes of traffic.
The court ultimately decided that Pivotel had not demonstrated sufficient grounds for varying the interlocutory injunction. Pivotel's arguments did not establish a material change in circumstances or the presence of new evidence that could not have been reasonably presented earlier. The court also found that Pivotel had not shown exceptional circumstances warranting reconsideration. Consequently, the court decided not to vary the interlocutory injunction and listed the matter for further directions on 23 February 2010 at 3.00pm.
The court examined the principles governing the variation of interlocutory orders, emphasizing that while a court has the jurisdiction to vary or set aside such orders, the re-litigation of already decided issues is generally undesirable. The court noted that a material change in circumstances, new evidence, or exceptional circumstances would need to be demonstrated to justify a variation. Pivotel argued that the essential facts had not changed, and that Optus's actions continued to block calls to Pivotel numbers, affecting 8000 satellite customers. Pivotel contended that Optus had known about the issue of two-stage dialling since 23 December 2009, and that the number of subscribers remained the primary concern, not the volume of minutes of traffic.
The court ultimately decided that Pivotel had not demonstrated sufficient grounds for varying the interlocutory injunction. Pivotel's arguments did not establish a material change in circumstances or the presence of new evidence that could not have been reasonably presented earlier. The court also found that Pivotel had not shown exceptional circumstances warranting reconsideration. Consequently, the court decided not to vary the interlocutory injunction and listed the matter for further directions on 23 February 2010 at 3.00pm.
Orders
Orders of the court
1. The matter be listed for further directions on 23 February 2010 at 3.00pm.
Note:
Background
Background to the litigation
In order to understand these contentions it is necessary to identify the events of, and leading up to, 23 December 2009. BACKGROUND On 21 December 2009 Optus blocked its customers from making calls from an Optus telephone to any Pivotel telephone. In response, on 23 December 2009, Pivotel made an urgent application to the Court seeking interlocutory orders that Optus restore connectivity between the Optus network and the Pivotel network and not block connectivity pending the final resolution of Pivotel’s claims that Optus’s actions of 21 December 2009 were unlawful. Pivotel claimed that Optus’s actions on 21 December 2009 constituted anti-competitive conduct proscribed by the so-called “competition rule” in the Trade Practices Act 1974 (Cth) (ss 151AJ and 151AK). Relevantly, Pivotel alleged that Optus has a substantial degree of power in two telecommunications markets, the ordinary mobile telephone market and the satellite telephone market. Further, Optus had taken advantage of its substantial market power in both markets by preventing its customers from calling any Pivotel telephone number. The effect of Optus’s conduct on 21 December 2009, Pivotel contended, was substantially to lessen competition in both markets. Pivotel’s primary argument was that a consumer of satellite telephone services would be discouraged from using Pivotel to provide this service as no Optus customer would be able to call that consumer. Pivotel’s secondary argument was that a consumer of ordinary mobile telephone services would be discouraged from using Optus to provide this service as that consumer would not be able to call any Pivotel number. In my reasons for judgment, also given urgently on 23 December 2009, I accepted that Pivotel had established a serious question to be tried in respect of Optus’s alleged breach of the competition rule (Pivotel Satellite Pty Limited v Optus Mobile Pty Limited [2009] FCA 1601 at [22]). I accepted also that the balance of convenience weighed in favour of Pivotel. In so doing, I referred in my reasons to: - (i) Pivotel’s evidence that 8000 of the 15000 numbers allocated to Pivotel were associated with Pivotel’s satellite customers (at [27]), (ii) Pivotel’s evidence of serious safety issues arising from Optus’s actions, including that emergency services using Optus’s network would not be able to call any Pivotel customer, including any customer of Pivotel’s satellite services (at [25]), (iii) Pivotel’s evidence that Optus had been carrying the Pivotel traffic since 2005, apparently without complaint or concern until August 2009 (at [28] and [29]), (iv) Pivotel’s evidence that the owner of a mobile telephone in Australia expects to be able to make and receive calls to or from any carrier, which I referred to as a serious public interest issue in respect of the interconnectivity of the mobile telephone market in Australia (at [28] and [29]), and (v) the lack of any notice by Optus to Pivotel that it intended to block all calls from its customers to the entire Pivotel network, including (it must be inferred) the 8000 customers of Pivotel’s satellite services (at [28] and [29]).
Evidence
Evidence Before The Court
Moreover, confronted by Mr Chuah’s new detailed analysis in support of these estimates Mr Sakker now acknowledges that “about 90% or more of the minutes generated from all carriers” to Pivotel’s network are being made to the two stage dialling process, music streaming or the like. Further, according to Mr Sakker in cross-examination, around 4000 of Pivotel’s total of 15000 numbers have been allocated to the Mediatel interests.CONSEQUENCES OF ADDITIONAL EVIDENCEPrinciples The question whether the interlocutory orders should now be varied in light of the true factual position has to be determined by reference to the relevant principles. Those principles were not in dispute.·A court has jurisdiction to vary or set aside any interlocutory order but the re-litigation of issues already decided, even on an interlocutory basis, is undesirable having regard to the need for finality (Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44 at 46).·The “overriding principle governing the approach of the court to interlocutory applications is that the court should do whatever the interests of justice require in the particular circumstances of the case” (Brimaud at 46).·The interests of justice should be assessed having regard to the nature of the interlocutory order in question. Interlocutory orders that are merely procedural or made by consent without any contest are different from substantive orders made after a contested hearing and intended to operate until the final hearing. In the latter case the general rule is that there must be a material change in circumstances or the discovery of new material which could not reasonably have been put before the court on the earlier application (Brimaud at 46). ·There is a debate in the authorities between approaches that are more and less permissive. Nevertheless the approach generally adopted at first instance accords with that of Goldberg J in P Dawson Nominees Pty Ltd v Australian Securities and Investments Commission (No 2) (2009) 255 ALR 466; [2009] FCA 413 at [49], namely, that an applicant seeking to vary a substantive interlocutory order made after a contested hearing must persuade the Court that:…one or more of the following factors has occurred or is satisfied:(a)there is new material or new evidence which was not available, or reasonably available, to them at the time the orders were made …;(b)there has been a material change in the circumstances since those orders were made;(c)there are exceptional circumstances which warrant re-consideration of the matter…; and(d)as a matter of discretion, the justice of the matter requires that the applicants be allowed to revisit the matter….Pivotel’s submissions Pivotel submitted that none of the factors which Goldberg J identified in P Dawson Nominees were met in the present case. Specifically: - (i) there was evidence available on 23 December 2009 (being a graph forming part of the same internal Optus document prepared by Mr Chuah) showing that Optus had identified some 3629 Pivotel numbers as numbers associated with the two stage dialling process, (ii) a major part of Optus’s case on 23 December 2009 was that as soon as it blocked one number associated with two stage dialling another would emerge, thereby prompting Optus to block all calls to the Pivotel network, (iii) in other words, it was apparent on 23 December 2009 that many of Pivotel’s numbers were associated with two stage dialling, (iv) the essential facts have not changed – there are 8000 Pivotel satellite customers who expect to be able to be contacted by any person with a telephone and Optus blocked its customers from calling all of those people, (v) Pivotel’s case always focused on the number of subscribers and not the volume of minutes of traffic, and (vi) Mr Sakker was present in Court on 23 December 2009 and could have been cross-examined by Optus but was not.
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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