Optus Networks Ltd v Telstra Corporation Ltd (No. 2) [2009] FCA 422

FEDERAL COURT OF AUSTRALIA

Optus Networks Ltd v Telstra Corporation Ltd (No. 2) [2009] FCA 422

CONTRACT – principles of construction – the meaning of confidential information as defined by the contract – whether telecommunications traffic information is confidential information – whether telecommunications traffic information is subject to confidentiality requirements under the contract – whether use of such information in the preparation of market share reports and the subsequent use of such reports were permitted under the contract. HELD – the uses to which the telecommunications traffic information and the market share reports were put constitutes a breach of contract. Telecommunications Act 1997 (Cth)Sch 1 Telecommunications Act 1991 (Cth)ss 88, 137 Trade Practices Act 1974 (Cth) ss 51AA, 82 Evidence Act 1995 (Cth) s 122 Federal Court of Australia Rules ACCC v Construction, Forestry, Mining and Energy Union [2008] FCA 678 referred to Australian Medi-Care Co Ltd v Hamilton Pharmaceutical Pty Ltd (No. 3) [2008] FCA 976 referred to Bennett v Chief Executive of the Australian Customs Service (2004) 140 FCR 101cited Cadbury Schweppes Pty Ltd v Amcor Ltd (2008) 246 ALR 137 referred to Commissioner of Taxation v Rio Tinto Ltd (2006) 151 FCR 341 applied Hadley v Baxendale (1854) 9 Exch 341 referred to Lansing Linde Ltd v Kerr (1990) 21 IPR 529 referred to Liberty Funding Pty Ltd v Phoenix Capital Limited (2005) 218 ALR 283 referred to Lyall v Kennedy (1884) 27 CLD 1considered McBride v Sandland [1917] SALR 249 considered Mulley v Manifold (1959) 103 CLR 341 considered OPTUS NETWORKS PTY LIMITED v TELSTRA CORPORATION LIMITED

NSD 1087 of 1997

EDMONDS J

30 APRIL 2009

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1087 of 1997

BETWEEN: OPTUS NETWORKS PTY LIMITED