Telstra Corp Ltd v AATP Ltd - [1999] FCA 1351

Telstra Corporation Limited v AAPT Limited [1999] FCA 1351
Practice and Procedure - Pleadings

Telstra Corp Ltd v AAPT Ltd [1999] FCA 1351

TELSTRA CORPORATION LIMITED (ACN 051 775 556) v AAPT LIMITED (ACN 052 082 416)

NG 484 OF 1997

NG 449 OF 1997

NG 1125 OF 1997

THE HON JUSTICE MARCUS EINFELD AO

29 SEPTEMBER 1999

SYDNEY

PRACTICE & PROCEDURE - PLEADINGS - motion seeking to strike out certain paragraphs of AAPT's cross claim as not disclosing a reasonable cause of action - cross claim alleges misuse of market power by Telstra under Part IV of the Trade Practices Act - whether the pleaded facts demonstrate a casual nexus between the alleged conduct and the market power so that the conduct is seen to be a use of the power

Telecommunications Act 1997

Trade Practices Act 1974 (Cth)

Queensland Wire Industries v Broken Hill Proprietary Co Ltd [1989] 167 CLR 177, applied

Dowling v Dalgety Australia Ltd [1992] 34 FCR 109, applied

General Newspapers Pty Ltd v AOTC [1993] 40 FCR 98, referred to

Natwest Australia Bank Ltd v Boral Gerrard Strapping Systems Pty Ltd [1992] ATPR 41-196, applied

Multigroup Distribution Services Pty Ltd v TNT Australia Pty Ltd [1996] ATPR 41-522, referred to

BT Australasia Pty Ltd v State of New South Wales & Anor [1999] ATPR (Digest) 46-187, applied

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY NG 484 OF 1997
NG 449 OF 1997
NG 1125 OF 1997

BETWEEN: TELSTRA CORPORATION LIMITED (ACN 051 775 556)
Applicant
AND: AAPT LIMITED (ACN 052 082 416)
Respondent
JUDGE: THE HON JUSTICE MARCUS EINFELD AO
DATE OF ORDER: 29 SEPTEMBER 1999
WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The applicant's motion to strike out part of the respondent's cross claim based on Part IV of the Trade Practices Act (1974) (Cth) be adjourned to Thursday 21 October at 9.45am

THE COURT DIRECTS THAT:

1. AAPT file and serve, by not later than 4pm on Wednesday 13 October, a further amended cross claim on the Part IV case in compliance with the views and rulings I have made in these reasons

2. By not later than 12 noon on Tuesday 19 October, Telstra file and serve any further submissions in support of leave being refused to file the pleading and to strike out the existing Part IV claim

3. By not later than 4pm on Wednesday 20 October, AAPT file and serve any submissions in reply

4. The parties have liberty to apply on 2 days' notice, if necessary by telephone or video to the Federal Court in Hobart

Note: Settlement and entry of orders are dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY NG 484 OF 1997
NG 449 OF 1997
NG 1125 OF 1997

BETWEEN: TELSTRA CORPORATION LIMITED (ACN 051 775 556)
Applicant
AND: AAPT LIMITED (ACN 052 082 416)
Respondent
JUDGE: THE HON JUSTICE MARCUS EINFELD…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Telstra Corp Ltd v AATP Ltd

Details

AGLC: Telstra Corporation Limited v AAPT Limited [1999] FCA 1351 Practice and Procedure - Pleadings
Case: [1999] FCA 1351
Decision Date: 29 SEPTEMBER 1999

CaseChat Overview and Summary

The matter of Telstra Corp Ltd v AATP Ltd was heard before the Federal Court, involving a dispute concerning allegations of misuse of market power by Telstra under Part IV of the Trade Practices Act. AATP sought to amend its cross-claim to include these allegations, but Telstra opposed this, arguing that the proposed pleading did not disclose a reasonable cause of action. Specifically, Telstra contended that AATP's cross-claim failed to demonstrate a casual nexus between the alleged conduct and the market power, essential for the conduct to be seen as a use of that power.

The legal issues before the court were whether the facts pleaded by AATP in its cross-claim were sufficient to establish a reasonable cause of action under Part IV of the Trade Practices Act. The court needed to determine if AATP had adequately demonstrated a casual nexus between Telstra's conduct and its market power, which is necessary to satisfy the statutory requirements for misuse of market power claims. The court considered the substance of AATP's pleadings and whether they were sufficient to allow the matter to proceed to a substantive hearing.

The court found that the current pleadings did not adequately demonstrate the required causal nexus. Consequently, the court granted Telstra's motion to strike out the relevant parts of AATP's cross-claim but allowed AATP an opportunity to amend its pleadings. The court scheduled a further hearing to review the amended cross-claim and directed that specific submissions be filed by both parties by set dates. The court also granted liberty to apply for further directions if necessary.

The orders made by the court included adjourning the motion to strike out part of AATP's cross-claim to a later date and directing that AATP file an amended cross-claim. Telstra was also directed to file further submissions opposing the leave to file the pleading and seeking to strike out the existing cross-claim, with AATP having the opportunity to reply. The parties were granted liberty to apply for further directions, with the possibility of such applications being made by telephone or video conference.

Orders

Orders of the court

1. The applicant's motion to strike out part of the respondent's cross claim based on Part IV of the Trade Practices Act (1974) (Cth) be adjourned to Thursday 21 October at 9.45am

THE COURT DIRECTS THAT:

1. AAPT file and serve, by not later than 4pm on Wednesday 13 October, a further amended cross claim on the Part IV case in compliance with the views and rulings I have made in these reasons

2. By not later than 12 noon on Tuesday 19 October, Telstra file and serve any further submissions in support of leave being refused to file the pleading and to strike out the existing Part IV claim

3. By not later than 4pm on Wednesday 20 October, AAPT file and serve any submissions in reply

4. The parties have liberty to apply on 2 days' notice, if necessary by telephone or video to the Federal Court in Hobart

Note: Settlement and entry of orders are dealt with in Order 36 of the Federal Court Rules.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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BETWEEN:	TELSTRA CORPORATION LIMITED (ACN 051 775 556) Applicant
AND:	AAPT LIMITED (ACN 052 082 416) Respondent
JUDGE:	THE HON JUSTICE MARCUS EINFELD AO
DATE OF ORDER:	29 SEPTEMBER 1999
WHERE MADE:	SYDNEY