Trade Practices Commission v Telstra Corporation Ltd

[1993] FCA 687

JUDGMENT No. ........ ........ .. ,......,, , 687 , 93 .

IN THE FEDERAL COURT OF AUSTRALIA	)
)
NEW SOUTH WALES DISTRICT REGISTRY )	NO NG 614 of 1993

)

GENERAL DIVISION )

BETWEEN:  TRADE PRACTICES COMMISSION
Applicant

W :  TELSTRA CORPORATION LIMITED
Respondent

CORAM :	HILL J
PLACE :	SYDNEY

DATED : 23 AUGUST 1993

FEDERAL COURT OF

REASONS FOR JUDGMENT

I am of the view that the

reflecting the injunction should be that proposed by the Trade Practices Commission ("the Commlsslon"). I say that because the order now proposed by the respondent directs itself to future conduct of the respondent not in issue before me. The respondent seeks to have the Court, in paras. (l) and (2), effectively approve a proposed rewrite of the brochure. The third order which is proposed must be seen in the context of the other two paragraphs of the draft. Although the respondent submits that an order in the general form gives the Commission more than it in fact won, with respect to that submission that is not really so.	The application was brought in the context of the the Commission has now successfully shown was misleading or	respondent having disseminated and published a brochure which
deceptive or likely to mislead or deceive persons to whom it was addressed, albeit only in some respects.
An order in the general form does not mean that the brochure, in all of its parts, is misleading or deceptive and quite clearly there are parts of the brochure in respect of which no complaint has been made and presumably no complaint could be made. The respondent is free, if it wishes to, to alter the brochure so that it is no longer misleading or deceptive. Should it do so, it would not breach the injunction proposed.
The matter of costs presents some difficulty. The respondent has been successful in respect of brochure A and letter B. The Commission has been successful in respect of some but not all of the criticisms it made of brochure C. Were that the only matter before the Court I would have been incllned to accept the view that the respondent should pay
some portion of the Commission's costs.
The second and quite significant matter before the Court was the question of what relief should be granted in the event that liability was shown. That clearly was not an insignificant matter, although it is difficult to stipulate, with any precision, the amount of time that was spent on that matter as against other matters or, for that matter, to indicate the evidence which related solely to that matter or most significantly to that matter as against the evidence which related to matters of liability.
At the end of the day a value judgment must be made of the respects in which each party has been successful in order to determine how the costs should be borne. Each side has pressed for an all-or-nothing position as, at least, its preferred course, with the Commission indicating some possibility of a percentage order being made.
I have given consideration to various percentages in an attempt to reflect the degree of success of the two parties, but at the end of the day I think that the
appropriate order, not being one really sought by either
party, is the rather more prosaic order that each party pay its own costs and I would so order.

It follows, then, that the orders that I will make

now are: 

(1) the first order in the Commission's short minutes of

order, and

(2) there be no order as to costs.

I certify that this and the
preceding two (2) pages
are a true copy of the Reasons
for Judgment herein of his Honour

Mr Justice Hill.

Associate: T$ (4~\%dv;ti

Counsel and Solicltors	Mr R Webb instructed by
for Applicant:	Australian Government Solicitor
Counsel and Solicitors	Dr G Flick instructed by
for Respondent:	Freehill Hollingdale & Page
Date of Hearing:	23 August 1993