Telstra Corporation Limited v Optus Networks Pty Ltd [2002] FCAFC 296

FEDERAL COURT OF AUSTRALIA

Telstra Corporation Limited v Optus Networks Pty Ltd [2002] FCAFC 296

TELECOMMUNICATIONS – CONTRACTS – Access Agreement between Telstra and Optus relating to preselection telecommunication services – telecommunications infrastructure previously controlled and operated by Telstra – Optus introduced as competitor to Telstra for telecommunications – contractual regulation of access by Optus to infrastructure – interpretation of various provisions of Access Agreement – history of circumstances antecedent to formation of Access Agreement – Telstra's introduction of HomeLine Net package to customers related to preselection services at particular prices – whether in so doing Telstra infringed any one or more of certain provisions of Access Agreement or Part V of Trade Practices Act (Cth) 1974 (s 52) – finding by the primary judge in favour of Optus that Telstra breached cl 13.3.7 of Schedule 13 to Access Agreement – interpretation of contract regulating relationship between Telstra and Optus concerning access to telecommunications infrastructure. APPEAL by Telstra against finding of primary judge of breach by Telstra of clause 13.3.7 of Schedule 13 of Access Agreement comprising prohibition against a carrier "undermin[ing] the integrity of the Preselection process through their tariffing of Preselectable Services in an anti-competitive way" – consideration in particular of contractual expressions "undermine the integrity" and "in an anti-competitive way" – appeal of Telstra upheld by majority of Full Court. CROSS-APPEAL by Optus against absence of adverse findings of other breaches of the Access Agreement by reason of the same conduct claimed by Optus to have contravened clause 13.3.7 of Schedule 13 – also of contravention of s 52 of Trade Practices Act by reason of marketing activity related to that conduct – issues of contractual interpretation – cross-appeal unanimously dismissed.