Telstra Corporation Ltd v Commonwealth of Australia

[2007] HCATrans 118

[2007] HCATrans 118

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

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 20 MARCH 2007, AT 4.03 PM

Copyright in the High Court of Australia

MR A.C. ARCHIBALD, QC:   If it please your Honour, I appear with my learned friend, MR J.K. KIRK, for Telstra.  (instructed by Mallesons Stephen Jaques)

MR D.M.J. BENNETT, QC, Solicitor‑General of the Commonwealth of Australia:   May it please your Honour, I appear with my learned friend, MR C.J. HORAN, for the first defendant.  (instructed by Australian Government Solicitor)

MR N.J. YOUNG, QC:   If your Honour please, I appear with my learned friend, MR M.H. O’BRYAN, for the second defendant.  (instructed by Australian Government Solicitor)

MR N.J. O’BRYAN, SC:   If the Court pleases, I appear for the third, fifth, eleventh, twelfth and thirteenth defendants.  (instructed by Herbert Geer & Rundle)

MR S.J. GAGELER, SC:   If your Honour pleases, I appear for the fourth and sixth defendants.  (instructed by Clayton Utz)

MS M. SLOSS, SC:   If the Court pleases, I appear with my learned friends, MR D.B. CLOUGH and MS K.L. WALKER, for the seventh, eighth, ninth and tenth defendants.  (instructed by Nicholls Legal)

HIS HONOUR:   Does that cover all the representation?  Yes, Mr Archibald.

MR ARCHIBALD:   Your Honour may have seen that since the matter was last before the Court the parties on a timely basis have taken the steps that your Honour’s orders contemplated.  A statement of claim has been filed.  There were some requests for particulars.  They were responded to and defences were filed last Friday.  Telstra remains of the view that the matter appears to be one apt for resolution by means of a case stated and the directions that we propound today are directed to moving to that end and, as we understand it, the various defendants likewise consider that there are reasonable if not high prospects that agreement can be reached upon the salient facts that would form the subject of such a case stated and so a timetable has been propounded.  I think your Honour may now have minutes of the orders that are sought.

HIS HONOUR:   Yes, I do.  Perhaps I should read it on to the transcript.  The draft suggests as follows:  (1) The plaintiff provide a draft stated case to the defendants on or before 16 April 2007; (2) The defendants provide to the plaintiff their comments on the draft stated case, if any, on or before 15 May 2007; (3) The plaintiff provide to the Court and the defendants a revised draft stated case on or before 29 May 2007; (4) The proceedings be stood over for further directions and the date that would be convenient to the Court will be at 4.00 pm on 13 June 2007.

MR ARCHIBALD:   That would be in Canberra, your Honour?

HIS HONOUR:   Yes.

MR ARCHIBALD:   Yes, thank you, your Honour.

HIS HONOUR:   Yes, and (5) would be costs for today be costs in the cause.  Is there any dissent from that proposal at the moment?

MR BENNETT:   No, your Honour.

MR YOUNG:   No, your Honour.

MR O’BRYAN:   No, your Honour.

HIS HONOUR:   There is, however, a proposal for a so‑called confidentiality order which I would not make for several reasons at the moment, subject to what anyone is about to tell me.  Insofar as the material that would be the subject of the order relates to constitutional facts, we cannot adjudicate validity on secret information I am afraid as a fundamental proposition.  Two, insofar as it contains matter that is not of a constitutional fact nature, it raises the spectre of a trial on these matters and the spectre of remitter, which can be left hanging there for the moment.

No one would be prejudiced, I think, if I made an order pursuant to rule 4.07.5 of the High Court Rules giving permission to the respective parties who filed the material the subject of the proposed consent order filed by the various parties on 13 March 2007 in the case of the Australian Government Solicitor being at liberty to uplift that material from the Registry with liberty to re‑file if later deemed necessary or expedient to do so given the future conduct of the litigation.  If you want to uplift it, you may and if you do not uplift it, it is there.  If you do uplift it, you can re‑file it as need be later if the matter stays in this Court and if it is not, as it were, swept aside, really, by the content of the stated case.  I would not propose a stated case have confidential material in it either for the reasons I have indicated.

MR ARCHIBALD:   Yes, your Honour.  Quite a body of that material is contained in matters associated with our affidavits and, indeed, in annexure to the statement of claim.  We would understand we would have liberty to uplift those matters.

HIS HONOUR:   Yes.

MR ARCHIBALD:   Yes, thank you, your Honour.

HIS HONOUR:   Any dissent from that proposal?

MR YOUNG:   Your Honour, can I raise the practical issue that really led to this application concerning the orders.  That material is material that my instructors wish to see because it may guide them in the formulation of the stated case.

HIS HONOUR:   Yes.  They can do so by contractual arrangement between the parties but they will not do it under…..of this Court.  It is as simple as that.

MR YOUNG:   Yes.  If your Honour please.

HIS HONOUR:   Is there anything else?  Very well.

As indicated, the Court will not make those proposed confidentiality orders.  The orders I do make are as follows:

1.Orders as proposed in the draft short minutes initialled by me dated and placed with the papers.

2.Pursuant to rule 4.07.5 of the High Court Rules order that any party which has filed material subject to a proposed confidentiality order be at liberty to uplift the same from the Court and be at further liberty to re‑file it as they may be advised.

3.Stand over to 4.00 pm on 13 June 2007 at Canberra before me for further directions.

Anything else, gentlemen, Ms Sloss?  I will now adjourn.

AT 4.15 PM THE MATTER WAS ADJOURNED
UNTIL WEDNESDAY, 13 JUNE 2007