FEDERAL COURT OF AUSTRALIA Primus Telecommunications (Aust) Pty Ltd v Telstra Corp Ltd [2000] FCA 591 PRIMUS TELECOMMUNICATIONS (AUST) PTY LTD v TELSTRA CORPORATION LTD NO. V 265 OF 2000 HEEREY J 3 MAY 2000 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 265 OF 2000 BETWEEN: PRIMUS TELECOMMUNICATIONS PTY LTD APPLICANT AND: TELSTRA CORPORATION LTD RESPONDENT JUDGE: HEEREY J DATE OF ORDER: 3 MAY 2000 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The application for an interlocutory injunction is adjourned to 16 May 2000. 2. The applicant file and serve a statement of claim by 8 May 2000. 3. The respondent file and serve any affidavits by close of business on 11 May 2000. 4. The applicant file and serve any affidavits by 2.00 pm on 15 May 2000. 5. Both parties file and serve submissions by 4.00 pm on 15 May 2000. 6. Costs are reserved. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 265 OF 2000 BETWEEN: PRIMUS TELECOMMUNICATIONS PTY LTD APPLICANT AND: TELSTRA CORPORATION LTD RESPONDENT JUDGE: HEEREY J DATE: 3 MAY 2000 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 The applicant Primus Telecommunications (Australia) Pty Ltd ("Primus") commenced these proceedings on Monday, 1 May 2000. Its application for an interlocutory injunction was served on Monday evening. It seeks today limited relief pending a hearing of the interlocutory injunction application on 16 May. That relief would restrain Telstra from communicating with its Primus‑managed customers. It is admitted that the application is short served. Telstra has not had time to file any affidavits. 2 Notwithstanding the helpful argument of both counsel, I do not think I can do justice at the moment to the question of whether there is a serious issue to be tried. It is apparent that the issues are complex and I say no more about that at the moment. 3 However, I am persuaded against granting the immediate relief sought largely because of the delay on the part of Primus in bringing this application. The agreement under which Primus agreed to provide services for Telstra extended over a five-year period, ending today. The agreement contained no option for renewal on either side. Telstra made it clear to Primus some eleven months ago that there would be no fresh agreement. 4 It is true that subsequently negotiations, or at any rate discussions, took place. But it has not been put to me that Telstra changed its position or held out any false hopes to Primus. At the highest, it is put on behalf of Primus that on 29 March Telstra made it finally clear that there would be no new agreement. That being so, the onus was clearly on Primus to move quickly if it wanted to obtain interlocutory relief which would interfere with Telstra's right to conduct its business as it saw fit. 5 I think also the interim relief sought is not insubstantial. I do not propose to enter into an examination of whether the Primus‑managed customers are properly considered Telstra's customers or Primus' customers. Perhaps the better view is that nobody owns those customers. But they are at any rate persons with whom Telstra has commercial relationships and on the face of it Telstra ought to be free to communicate with them. 6 Should there be any disruption to the prospects that Primus might have had of retaining customers between now and the 16th, that seems to me a matter which would be capable of identification and quantification by way of damages should Primus ultimately succeed in the proceeding. I think it is undesirable generally that there be a vacuum between now and the 16th. The agreement has come to an end and if Primus is ultimately successful in the relief it seeks, the substantive order it would obtain would be presumably for Telstra to deal or negotiate with it. That relief could be achieved notwithstanding that the existing agreement has terminated according to its own terms. So I decline to make any order at the moment. 7 I will adjourn the application for an interlocutory injunction to 16 May; direct the applicant file and serve on statement of claim on or before 8 May; direct the respondents file and serve any affidavits by the close of business on 11 May; direct the applicant file and serve any affidavits in reply by 2 pm on 15 May. I direct that both parties file and serve submissions on or before 4 pm on 15 May. I reserve the costs. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey. Associate: Dated: 3 May 2000 Counsel for the Applicant: Mr W T Houghton QC with Mr D G Collins Solicitor for the Applicant: Corrs Chambers Westgarth Counsel for the Respondent: Mr A C Archibald QC with Mr J D Elliott Solicitor for the Respondent: Mallesons Stephen Jaques Date of Hearing: 3 May 2000 Date of Judgment: 3 May 2000