Optus Mobile Pty Limited v Hutchison 3G Australia Pty Limited [2003] FCA 974

FEDERAL COURT OF AUSTRALIA

Optus Mobile Pty Limited v Hutchison 3G Australia Pty Limited [2003] FCA 974 OPTUS MOBILE PTY LIMITED v HUTCHISON 3G AUSTRALIA PTY LIMITED N 724 of 2003 ALLSOP J 19 SEPTEMBER 2003 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N724 of 2003

BETWEEN: OPTUS MOBILE PTY LIMITED

APPLICANT

AND: HUTCHISON 3G AUSTRALIA PTY LIMITED

RESPONDENT

JUDGE: ALLSOP J

DATE OF ORDER: 19 SEPTEMBER 2003

WHERE MADE: SYDNEY

THE COURT ORDERS: 1. That the orders made on 4 July 2003 be varied by: (a) amending Declaration 2(d) by inserting the number "1" and a comma before the number "4" and after the word "tabs"; (b) amending Declaration 3(d) by inserting "or $38" after the symbol and numbers "$32". 2. That within 7 days the solicitors for the parties agree upon a place for storage of the original exhibits in these proceedings and a mutually satisfactory regime for access. 3. That within 7 days the solicitors for the parties take custody of the original exhibits from the associate to Allsop J. 4. That within 7 days the parties file any submissions as to costs. 5. Stand the matter over to a date to be fixed in relation to the making of orders as to costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N724 of 2003

BETWEEN: OPTUS MOBILE PTY LIMITED

APPLICANT

AND: HUTCHISON 3G AUSTRALIA PTY LIMITED

RESPONDENT

JUDGE: ALLSOP J

DATE: 19 SEPTEMBER 2003

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 On 4 July 2003 I pronounced orders in this matter. These are my reasons for those orders and for two amendments to those orders. 2 The applicant and the respondent compete for customers in providing mobile phone technology and services to the public. The applicant claimed that the respondent had engaged in conduct that was a contravention of s 52 and subs 53(c) of the Trade Practices Act 1974 (Cth) (the TP Act) and that the respondent threatened to engage in conduct that would continue to amount to such a contravention. 3 The matter came before me on 16 June 2003 for short service. An interlocutory hearing took place on 19 June 2003. I made orders on that day restraining, until further order, the distribution of a particular brochure. With the agreement of the parties that it was both appropriate and necessary, I set the matter down for final hearing on liability issues on 26 June 2003. I heard the matter on 26 June 2003, 30 June 2003, and 1 July 2003. There was little cross-examination. Virtually all relevant facts were not in dispute. 4 The respondent had recently begun an advertising campaign for its services. It presently possesses a distinct advantage in the market place because of its possession of an advanced technical attribute of its mobile phone service. How it sought to promote and feature that advantage in its advertising was largely what this case was about. 5 Some background is necessary.