BT Australasia Pty Ltd v State of New South Wales & Anor (No 12) [1998] FCA 1101

FEDERAL COURT OF AUSTRALIA

TRADE PRACTICES – practice and procedure – motion for leave to file a further amended statement of claim – pleading alleges contravention of s 46 of Trade Practices Act 1974 (Cth) – whether proposed statement of claim pleads material facts demonstrating a substantial degree of market power – whether proposed statement of claim pleads material facts demonstrating conduct constituted taking advantage of substantial market power – whether proposed statement of claim pleads material facts showing a causal link between alleged conduct and losses claimed by applicant.

TELECOMMUNICATIONS – practice and procedure – motion for leave to file a further amended statement of claim – pleading alleges contravention of ss 183 and 184 of the Telecommunications Act 1991 (Cth) – whether proposed statement of claim pleads material facts alleging discrimination against the applicant and that any alleged discrimination caused losses to applicant. Telecommunications Act 1991 (Cth), ss 183, 184, 186. Trade Practices Act 1974 (Cth), s 46.

Federal Court Rules, O 4, r 6, O 11, r 2, O 12, r 1, Banque Commerciale SA (In Liq) v Akhil Holdings Limited (1990) 169 CLR 279, cited. Multigroup Distribution Services Pty Ltd v TNT Australia Pty Ltd [1996] ATPR 41-522 (FCA/Burchett J), applied. Trade Practices Commission v David Jones (Australia) Pty Ltd (1985) 7 FCR 109 (Fisher J), cited. Natwest Australia Bank Ltd v Boral Gerrard Strapping Systems Pty Ltd [1992] ATPR 41-196, followed. BT AUSTRALASIA PTY LTD V STATE OF NEW SOUTH WALES & TELSTRA NG 572 OF 1995 JUDGMENT NO 12 JUDGE: SACKVLLE J PLACE: SYDNEY DATE: 7 SEPTEMBER 1998 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NG 572 of 1995

BETWEEN: BT AUSTRALASIA PTY LTD APPLICANT AND STATE OF NEW SOUTH WALES FIRST RESPONDENT TELSTRA CORPORATION LIMITED SECOND RESPONDENT BETWEEN: STATE OF NEW SOUTH WALES AND: CROSS CLAIMANT TO FIRST CROSS CLAIM BETWEEN: BT AUSTRALASIA PTY LIMITED FIRST CROSS RESPONDENT TO FIRST CROSS CLAIM BRITISH TELECOMMUNICATIONS PLC SECOND CROSS RESPONDENT TO FIRST CROSS CLAIM BT AUSTRALASIA PTY LIMITED CROSS CLAIMANT TO SECOND CROSS CLAIM AND: TELSTRA CORPORATION LIMITED CROSS RESPONDENT TO SECOND CROSS CLAIM BETWEEN: BRITISH TELECOMMUNICATIONS PLC CROSS CLAIMANT TO THIRD CROSS CLAIM AND: TELSTRA CORPORATION LIMITED CROSS RESPONDENT TO THIRD CROSS CLAIM BETWEEN: BRITISH TELECOMMUNICATIONS PLC CROSS CLAIMANT TO FOURTH CROSS CLAIM AND: STATE OF NEW SOUTH WALES CROSS RESPONDENT TO FOURTH CROSS CLAIM BETWEEN: STATE OF NEW SOUTH WALES CROSS CLAIMANT TO FIFTH CROSS CLAIM AND: TELSTRA CORPORATION LIMITED CROSS RESPONDENT TO FIFTH CROSS CLAIM BETWEEN: TELSTRA CORPORATION LIMITED CROSS CLAIMANT TO SIXTH CROSS CLAIM AND: BT AUSTRALASIA PTY LIMITED CROSS RESPONDENT TO SIXTH CROSS CLAIM BETWEEN: TELSTRA CORPORATION LIMITED CROSS CLAIMANT TO SEVENTH CROSS CLAIM AND: BRITISH TELECOMMUNICATIONS PLC CROSS RESPONDENT TO SEVENTH CROSS CLAIM BETWEEN: TELSTRA CORPORATION LIMITED CROSS CLAIMANT TO EIGHTH CROSS CLAIM AND: STATE OF NEW SOUTH WALES CROSS RESPONDENT TO EIGHTH CROSS CLAIM JUDGE: SACKVILLE J PLACE: SYDNEY DATE: 7 SEPTEMBER 1998