Telstra Corp Ltd v AAPT Ltd (Formerly known as AAP Telecommunications Pty Ltd) [1997] FCA 859

FEDERAL COURT OF AUSTRALIA

Injunctions - interlocutory injunctions - considerations upon which a court exercises discretion - whether injunction could lie to restrain a carrier of telecommunications services from making representations with respect to several aspects of the conduct of the business of a telecommunications service provider - form of injunction - whether form of injunction granted might take into account the dealings of the telecommunications carrier with regulatory authorities. Practice and procedure - considerations affecting application for leave to appeal.

Trade Practices Act 1974 Telecommunications Act 1991 ICI Australia Operations Pty Ltd v Trade Practices Commission (1992) 38 FCR 248 - cited Mikasa (NSW) Pty Ltd v Festival Stores (1972) 127 CLR 617 - considered Colbeam Palmer Ltd v Stock Affiliates Pty Ltd (1968) 122 CLR 25 - considered

TELSTRA CORPORATION LIMITED v AAPT LIMITED (FORMERLY KNOWN AS AAP TELECOMMUNICATIONS PTY LIMITED)

No. NG 449 of 1997

JUDGES: LOCKHART, BEAUMONT, HILL JJ

DATE: 2 SEPTEMBER 1997

PLACE: SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 449 of 1997

on appeal from a single judge of

the federal court of australia

BETWEEN: TELSTRA CORPORATION LIMITED

Applicant

AND: AAPT LIMITED (formerly known as AAP TELECOMMUNICATIONS PTY LIMITED)

Respondent

JUDGES: LOCKHART, BEAUMONT, HILL JJ

DATE OF ORDER: 2 SEPTEMBER 1997

WHERE MADE: SYDNEY

ORDERS: 1. Leave to appeal granted. 2. Appeal allowed in part. 3. Vary the orders made at first instance by setting aside order 1 and substituting the following: UPON the applicant by its counsel undertaking that it will pay to any party adversely affected by the interlocutory injunction such compensation (if any) as the Court thinks just, in such manner as the Court directs, the Court orders that: 1. Until final hearing or further order the respondent, by itself or by its employees or agents, be restrained from making in trade or commerce any of the following representations: (i) that the applicant is only interested in those parts of customers' bills which relate to telephone calls; (ii) that the applicant is not interested in the non-profitable rental component of customers' bills; (iii) that the applicant has a right to return a customer to the respondent because the applicant does not profit from the rental component of customers' bills; (iv) when other companies had had difficulty paying money due to the respondent that customers had subsequently received large bills from those companies; (v) that the applicant is not able to pay amounts due to the respondent because it is experiencing financial difficulties; (vi) that the applicant is not solvent; (vii) that the applicant is going, or has gone, out of business. 2. Until final hearing or further order, the respondent, by itself or by its employees or agents, be restrained from making in trade or commerce any of the following representations: (i) that the applicant has been using the respondent's facilities and not paying for such use; (ii) that the applicant has not been paying bills due to the respondent unless accompanied by a statement to the effect that the applicant disputes that the amount (or any amount) claimed by the respondent is owed by the applicant. 4. Appeal otherwise dismissed. 5. No order as to the costs of the appeal.