Telstra Corporation Limited v Commonwealth of Australia & Ors

[2007] HCATrans 332

[2007] HCATrans 332

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S42 of 2007

B e t w e e n -

TELSTRA CORPORATION LIMITED

Plaintiff

and

COMMONWEALTH OF AUSTRALIA

First Defendant

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION

Second Defendant

PRIMUS TELECOMMUNICATIONS PTY LIMITED

Third Defendant

OPTUS NETWORKS PTY LIMITED

Fourth Defendant

CHIME COMMUNICATIONS PTY LIMITED

Fifth Defendant

XYZED PTY LIMITED

Sixth Defendant

POWERTEL LIMITED

Seventh Defendant

REQUEST BROADBAND PTY LIMITED

Eighth Defendant

NEC AUSTRALIA PTY LIMITED

Ninth Defendant

MACQUARIE TELECOM PTY LIMITED

Tenth Defendant

AMCOM PTY LIMITED

Eleventh Defendant

ADAM INTERNET PTY LIMITED

Twelfth Defendant

AGILE PTY LIMITED

Thirteenth Defendant

Summons for directions

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 4 JULY 2007, AT 9.38 AM

Copyright in the High Court of Australia

MR N. PERRAM, SC:   May it please the Court, I appear with my learned friend, MR J. K. KIRK, for the plaintiff.  (instructed by Mallesons Stephen Jaques)

MR D.M.J. BENNETT, QC, Solicitor‑General of the Commonwealth of Australia:   May it please the Court, I appear for the first defendant.  (instructed by Australian Government Solicitor Canberra (Barton) Office)

MR M.H. O’BRYAN:   If the Court pleases, I appear for the second defendant.  (instructed by Australian Government Solicitor Canberra (Barton) Office)

MR M.J. HOYNE:   If the Court pleases, I appear on behalf of the third, fifth, seventh, eighth, eleventh, twelfth, and thirteenth defendants.  (instructed by Herbert Geer & Rundle)

MR S.J. GAGELER, SC:   May it please the Court, I appear with my learned friend, MR S.J. FREE, for the fourth and sixth defendants.  (instructed by Clayton Utz)

MS K.L. WALKER:   If the Court pleases, I appear for the ninth and tenth defendants.  (instructed by Nicholls Legal)

HIS HONOUR:   Yes, Mr Solicitor.

MR BENNETT:   Might I just ask your Honour to make a correction to the transcript of the last occasion.

HIS HONOUR:   Yes.

MR BENNETT:   Which concerns my other client on that occasion.  If your Honour goes to – I am wondering if your Honour has it in the same form – but page 7 of 10.

HIS HONOUR:   Yes.

MR BENNETT:   Your Honour sees in the middle of the page “I ask that the Attorney-General for South Australia be excused”.

HIS HONOUR:   Yes.

MR BENNETT:   My recollection is that your Honour said immediately after that words to the effect “I give that leave” or “I make that order”.

HIS HONOUR:   Yes, that is right.

MR BENNETT:   That seems to have been omitted, your Honour.  Might that be ‑ ‑ ‑

HIS HONOUR:   I think I would just insert the word – where it says “HIS HONOUR” there is a sentence missed out, I think.

MR BENNETT:   Yes I think that is so, your Honour.

HIS HONOUR:   So I insert “Yes, that is granted.” and then carry on “Any other Attorneys” et cetera.

MR BENNETT:   If your Honour pleases.

HIS HONOUR:   Yes thank you, Mr Solicitor.  Mr Perram, it is a preliminary question I want to ask you.  In this lately supplied document of yours, on paragraph 5 – does what is set out in your paragraph 5 represent what already is in this further draft document of 46 pages with the helpful red and blue interlining, or is it something additional to go with that?

MR PERRAM:   Is your Honour referring to paragraph 5 of the stated case, or question five of the ‑ ‑ ‑

HIS HONOUR:   No, paragraph 5 of your memorandum.

MR PERRAM:   Sorry.

HIS HONOUR:   Supplied and dated 4 July.

MR PERRAM:   Your Honour, the position is that the questions which ‑ ‑ ‑

HIS HONOUR:   All I want to know is are those additions in paragraph 5 already incorporated in the document?

MR PERRAM:   No, they are not.

HIS HONOUR:   They are not?  All right.  Well, what is the response of the other parties to them?

MR BENNETT:   Your Honour, we oppose questions five and six.

HIS HONOUR:   No, no.  Go to paragraph 5 – you might not have it.

MR BENNETT:   Yes.

HIS HONOUR:   Of Mr Perram’s document.

MR BENNETT:   Yes.

HIS HONOUR:   It says “Question One”.

MR BENNETT:   Yes, there is no problem with those amendments.

HIS HONOUR:   No problem with those amendments?

MR BENNETT:   No, your Honour, no.

HIS HONOUR:   Likewise the amendments to two and three.  I realise five and six are in a different situation, but one through to four in paragraph 5 of Mr Perram’s document, is there any opposition by anyone on your side of the Bar table to making those changes to the document I already have with the red and blue interlining?

MR BENNETT:   No, your Honour.

HIS HONOUR:   Well, those changes then can be incorporated.  That leaves the debate about five and six, does it not?

MR PERRAM:   Yes, your Honour.

HIS HONOUR:   Does anyone on the Solicitor’s side of the table wish to add anything to what is said in the written submissions of the first and second defendants dated 3 July?  All right.  Well, Mr Perram, at the moment, having read that, I am presently disposed not to state a case including five and six.  Now, do you want to say anything in support of their retention?

MR PERRAM:   There is nothing we add – nothing beyond what we have said in writing.

HIS HONOUR:   All right.  Well, for the reasons outlined in that memorandum, in particular in paragraph 7 of the Solicitor-General’s submissions of 3 July, I would not include questions five and six.  I have in mind in particular also what was said in the authorities referred to by Ms Walker, including Smith v ANL (2000) 204 CLR 493 at 510 to 511 in paragraph 39. All right. Well, that means that the document can be engrossed, does it not?

MR PERRAM:   It does, your Honour.

HIS HONOUR:   If that is done and it is supplied in a fresh form, I can sign the case in Chambers.  What is the estimate of time for this matter?

MR PERRAM:   Our estimate is that it would take two days.

HIS HONOUR:   Yes, I would have thought so.  No further indications from any other Attorneys, are there, yet?

MR PERRAM:   If the matter were to be given a hearing date, we would seek a dispensation from the normal page limits.

HIS HONOUR:   Yes.  It depends how generous the dispensation is and how big the type is.

MR PERRAM:   The reason we seek to do so is because we of course will bear the burden of explaining with some clarity what the agreed facts mean.

HIS HONOUR:   Yes.

MR PERRAM:   We thought we could probably do that in 40 pages.

HIS HONOUR:   That is too much.

MR PERRAM:   Then, alternatively, we thought we could do that in a reasonable number of pages.

HIS HONOUR:   Well, I will vary the practice direction as regards the plaintiff’s written submissions, to be not more than 30 pages.  Now, written submissions are getting far too long.  They become sort of discussion papers, which does not assist at all.  Then they are burdened with annexures, and so on and so forth.

MR BENNETT:   Your Honour, one suggestion I had, but I do not know if the Court would take – or your Honour would take kindly to it.  The technical matter is very complex.

HIS HONOUR:   It is, yes.

MR BENNETT:   We had the benefit of a slideshow which provided a very helpful explanation of everything, showing how things being done and showing diagrams and explaining them and so on.  I do not know if it is a case where the Court would be assisted by some sort of demonstration of that nature by my learned friend or ‑ ‑ ‑

HIS HONOUR:   It would have to be by consent of course.

MR BENNETT:   Assuming it were, your Honour, yes.

HIS HONOUR:   Yes.

MR BENNETT:   I do not know ‑ ‑ ‑

HIS HONOUR:   How long did your demonstration take, roughly?

MR BENNETT:   I think under an hour, your Honour.  It was, I think, something under an hour.  Between half an hour and an hour, your Honour.

HIS HONOUR:   In a film form?

MR BENNETT:   It was in a slideshow form, your Honour, with a person explaining it, but the ‑ ‑ ‑

HIS HONOUR:   I see.  That may be the problem.

MR BENNETT:   Yes.  But I think it can be done without – I think most of the explanations are on the slides.  If I have a look – that is right.  I do not think one needs the person explaining.  They are fairly – and counsel to some extent can do that no doubt where it is necessary.  But the slideshow would be helpful I think, your Honour, for the Court.  It is easier to look at than some of the diagrams on their own.

HIS HONOUR:   Yes, you may be right.

MR BENNETT:   And it does show pictures.

HIS HONOUR:   Is there any opposition to that course?

MR BENNETT:   I assume your Honours do not want to go into the street and look at an unconditioned local loop.

HIS HONOUR:   No.  Yes, Mr Perram.

MR PERRAM:   In principle, no, there is not.

HIS HONOUR:   Yes.  Well, once a hearing date is allocated the parties can look at that prospect again and make any joint proposal they wish to the Registrar.  The Court then as a whole can look at the proposal.

MR PERRAM:   Yes.

HIS HONOUR:   The demonstration would probably be best conducted before the hearing – shortly before the hearing, would it not?

MR PERRAM:   Yes, your Honour, yes.

HIS HONOUR:   For an hour or so.  Now, as to dates.  Probably, I would say not before the November sittings, if that is of any assistance to the parties.  There are a number of seven Justice matters now banked up, for reasons you all understand, which have to be dealt with in September and October.

MR PERRAM:   Just in relation to the reply submissions, I know we would normally have five.  Could we have 10, since we will be responding to about 90 pages of submissions from the defendants?

HIS HONOUR:   Yes, very well.  Just bear in mind succinctness is the brevity of good written submissions.  Very well then.  As indicated, the stated case in a form reflecting the changes made in the document with the blue and red interlining, with the further agreed revisions indicated this morning in Mr Perram’s memorandum, paragraph 5, as to questions one to four – it was one to four, was it not?

MR PERRAM:   Yes.

HIS HONOUR:   Yes, one to four.  That will be engrossed and I will state the case in Chambers.  Is there anything else this morning?  Costs of today will be costs of the action, I suppose.  Any resistance to that?  All right.  I will now adjourn.

AT 9.50 AM THE MATTER WAS ADJOURNED