Telstra Corp Ltd v Billbusters Pty Ltd & Anor [1998] FCA 752

FEDERAL COURT OF AUSTRALIA PRACTICE AND PROCEDURE - "pre‑trial" discovery - respondents made public statements in the media alleging the applicant had overcharged customers for telephone accounts - applicant trying to determine whether or not to bring court action against the respondents - application for discovery pursuant to O 15A r6 of the Federal Court Rules - whether applicant has, after making all reasonable inquiries, not sufficient information to enable a decision to be made whether to commence a proceeding in the Court to obtain relief - whether there is reasonable cause to believe that the respondents are likely to have or have possession of documents to enable identification of alleged errors or overcharging in accounts. Federal Court Rules: O 15A r6 TELSTRA CORPORATION LIMITED v BILLBUSTERS PTY LTD & ANOR VG 236 of 1998 GOLDBERG J MELBOURNE 19 JUNE 1998

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VG 236 of 1998

BETWEEN: TELSTRA CORPORATION LIMITED

(ACN 051 775 556)

Applicant

AND: BILLBUSTERS PTY LTD

(ACN 081 250 099)

First Respondent

MILE KENDRICK-SMITH

Second Respondent

JUDGE: GOLDBERG J

DATE OF ORDER: 19 JUNE 1998

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. Within 60 days of the date of this order the respondents make, file and serve a list which enumerates and describes documents which are or have been in their possession, custody or power and which comprise or are within the following categories: (a) all accounts, correspondence reviewed or assessed by the respondents, or either of them, for the purpose of identifying alleged errors or overcharging by Telstra and addressed to or received by: (i) the charity referred to by Mr Smith during the course of an interview broadcast on Radio 2UE at about 9.30am on 10 May 1998; (ii) one of the largest retailers in Australia, as referred to, in substance, by Mr Smith; (A) during an interview broadcast on Radio 2UE at about 9.30am on 10 May 1998; (B) during an interview broadcast on Radio 2UE at about 7.20am on 22 May 1998; (b) all accounts, correspondence which relate in any way to: (i) the alleged sum of $167,000 overcharged by Telstra in bills to a charity, as referred to in an interview broadcast on Radio 2UE at about 9.30am on 10 May 1998; (ii) the alleged errors found in 20% of the bills of one of the largest retailers in Australia comprising: (A) 67% of the bill value in Victoria; and/or (B) 103% of the bill value in New South Wales, as referred to by Mr Smith in, (C) an interview broadcast on Radio 2UE at about 9.30am on 10 May 1998; and/or (D) an interview broadcast on Radio 2UE at about 7.20am on 22 May 1998; (iii) the sum of $600,000 allegedly overcharged by Telstra in its accounts to the New South Wales division of one of Australia's largest retailers, as referred to by Mr Smith in an interview broadcast by Radio 2UE at 7.20am on 22 May 1998; (iv) the alleged estimate of $800 million overcharged by Telstra in bills to its customers, as referred to by Mr Smith in: (A) a quotation published in an article in "The Australian Financial Review" newspaper on 20 May 1998; and/or (B) an interview broadcast on the "Today Show" on Channel 9 at about 7.15am on 21 May 1998; (v) the estimate of $1.2 billion allegedly overcharged by Telstra in bills to its domestic clients, as referred to by Mr Smith in an interview broadcast on Radio 2UE at about 7.20am on 22 May 1998; (vi) the estimate of $1.1 billion allegedly overcharged by Telstra in bills to its domestic clients, as referred to by Mr Smith in an interview broadcast on "A Current Affair" on Channel 9 at about 6.30pm on 25 May 1998; (vii) the 33,000 domestic accounts referred to by Mr Smith in: (A) a quotation published in an article in "The Australian Financial Review" newspaper on 20 May 1998; (B) an interview broadcast on Radio 2UE on or about 7.20am on 22 May 1998; (C) an interview broadcast on the "Today Show" broadcast on Channel 9 at or about 7.15am on 21 May 1998; (viii) the alleged average overcharging error rate of $178 in the calculation of each Telstra account referred to in substance by Mr Smith in: (A) a quotation published in an article in "The Australian Financial Review" newspaper on 20 May 1998; (B) an interview broadcast on Radio 2UE on or about 7.20am on 22 May 1998; (C) an interview broadcast on the "Today Show" broadcast on Channel 9 at or about 7.15am on 21 May 1998; (D) an interview broadcast on "A Current Affair" broadcast on Channel 9 on or about 6.30pm on 25 May 1998; (ix) the bills alleged by Mr Smith in an interview broadcast on the "Today Show" on Channel 9 at bout 7.15am on 21 May 1998 to have been doctored, changed or tampered with by Telstra before provision to the Australian Consumers' Association; (x) the information alleged by Mr Smith in an interview broadcast on the "Today Show" on Channel 9 at about 7.15am on 21 May 1998 to have been tampered with by Telstra before provision to a Senate Committee or Senate Committees; (xi) the proposed audit and/or project by the Australian Consumers' Association referred to in the exhibit "PMF‑6" to the affidavit of Peter Michael Foster sworn 5 June 1998. 2. The respondents pay the applicant's costs of the application. 3. The respondents' costs of complying with this order be paid by the applicant to the respondents on a solicitor and client basis. 4. Liberty be reserved to all parties to apply for such further or other orders and directions as they may be advised. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.