Optus Networks Pty Limited v Telstra Corporation Limited [2001] FCA 1798

FEDERAL COURT OF AUSTRALIA

Optus Networks Pty Limited v Telstra Corporation Limited [2001] FCA 1798

TELECOMMUNICATIONS – Access Agreement between Optus and Telstra – whether Telstra breached its contractual obligation to provide Optus with "Access Service" – whether Optus deprived of the benefit of the clause guaranteeing the provision of "Access Service" – whether Telstra breached its barring obligations under the Access Agreement – whether Telstra breached its preselection availability obligations under the Access Agreement – whether Telstra breached its obligation not to tariff preselectable services in an anti-competitive way – whether Telstra breaches its obligation to act in good faith in relations to Optus with respect to all matters relating to or contemplated by the Access Agreement – where Telstra requires subscribers to its HomeLine Net service not to use the override facility – where physical infrastructure necessary to support the override facility still available – where only bar to use of override facility a contractual one – where subscribers elect to accept the terms of HomeLine Net. CONTRACT - whether breach of implied duty to cooperate – whether breach of duty to act in good faith. TRADE PRACTICES – misleading or deceptive conduct – where marketing of Telstra's HomeLine Net states "no override available" – where override is physically available to subscribers of HomeLine Net. WORDS & PHRASES – "Access Service" "tariffing of Preselectable Services" "anti-competitive" Trade Practices Act 1974 (Cth) s 52 Telstra Corporation Limited v Optus Communications Pty Ltd (1997) 75 FCR 171 referred to Cubillo v Commonwealth (No 2) (2000) 103 FCR 1 applied Fitzwood Pty Ltd v Unique Goal Pty Ltd (in liquidation) [2001] FCA 1628 referred to Futuris Corporation Limited v ERG Limited [2001] FCA 1126 referred to Vasram v AMP Life Limited [2000] FCA 1916 referred to Australis Media Holdings Pty Ltd v Telstra Corporation Ltd (1998) 43 NSWLR 104 applied Re Queensland Co-operative Milling Association Ltd; Re Defiance Holdings Ltd (1976) 25 FLR 169 referred to Burger King Corporation v Hungry Jacks Pty Ltd [2001] NSWCA 187 referred to