Optus Communications Pty Ltd & Ors v Telstra Corporation Ltd [1998] FCA 1702

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 731 of 1997

BETWEEN: OPTUS COMMUNICATIONS PTY LTD

First Applicant

optus networks pty limited

Second Applicant

optus vision pty limited

Third Applicant

AND: TELSTRA CORPORATION LimiteD

Respondent

JUDGE: EMMETT J

DATE: 12 NOVEMBER 1998

PLACE: SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

HIS HONOUR: Several complaints have been made about the amended statement of claim filed on 26 June 1998. Substantial requests for particulars have been made and answered in the months that have passed since the amended statement of claim was filed. That correspondence culminated in a draft further amended statement of claim which did not materially change the pleading but incorporated substantial additional material by way of particulars. That material was derived from the exchange of correspondence to which I have just referred. I have now heard further argument concerning a section of the amended statement of claim commencing with paragraph 127 and ending with paragraph 167. The principal complaint concerns the alleged failure to explain in the pleading the connection between the exercise of alleged market power on the one hand and the conduct specifically complained of. In order to explain the issue it is necessary to consider the thrust of the allegation. I shall summarise the allegations made in paragraphs 127 and following: 1. In about April 1994, Telstra commenced to construct a suburban broadband cable telecommunications network which was designed to provide carriage by broadband cable of pay TV services. The proposed network was to be available for the carriage of pay TV services broadcast by any service provider which was the holder of a subscription television broadcasting licence and which was party to a distribution agreement with Telstra.