Telstra Corp Ltd v First Netcom Pty Ltd [1997] FCA 860

FEDERAL COURT OF AUSTRALIA

EQUITY - maxiMS - HE WHO SEEKS EQUITY MUST DO EQUITY - application to restrain telecommunications provider from terminating agreement to provide service to others - substantial amounts claimed to be owing by applicant under agreement - no evidence of solvency of applicant - whether mandatory injunction should be conditional upon applicant paying amounts in dispute or paying into court or securing the payment of the whole or part of such amount - injunction dissolved. Trade Practices Act 1974 (Cth)

Maguire v Makaronis (1997) 144 ALR 729, referred to Inglis v Commonwealth Trading Bank of Australia (1972) 126 CLR 161, applied Businessworld Computers Pty Ltd v Australian Telecommunications Commission (1988) 82 ALR 499, applied Coco v AN Clark (Engineers) Ltd [1969] RPC 41, applied Moorgate Tobacco Co Ltd v Philip Morris Ltd (No 2) (1984) 156 CLR 414, applied

TELSTRA CORPORATION LTD v FIRST NETCOM PTY LIMITED NG 483 of 1997 Lockhart, Beaumont & Hill JJ Sydney 2 September 1997

general distribution

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 483 of 1997

ON APPEAL FROM A SINGLE JUDGE OF THE

FEDERAL COURT OF AUSTRALIA

BETWEEN: TELSTRA CORPORATION LTD

Applicant

AND: FIRST NETCOM PTY LIMITED

Respondent

JUDGES: LOCKHART, BEAUMONT & HILL JJ DATE: 2 SEPTEMBER 1997 PLACE: SYDNEY THE COURT ORDERS THAT: 1. Leave to appeal be granted.

2. The appeal be allowed in part. 3. Order 1(a) of the orders made on 16 August 1997 be set aside. 4. Appeal otherwise dismissed. 5. The order that First Netcom Pty Limited provide security in respect of the undertaking given by it as to damages be set aside.

6. The Respondent First Netcom Pty Limited pay Telstra Corporation Ltd's costs of the application for leave to appeal and the appeal and 75% of the costs of Telstra Corporation Ltd in seeking interlocutory relief. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.