Pivotel Satellite Pty Limited v Optus Mobile Pty Limited [2009] FCA 1601

FEDERAL COURT OF AUSTRALIA

Pivotel Satellite Pty Limited v Optus Mobile Pty Limited [2009] FCA 1601

TRADE PRACTICES – application for an injunction –respondents blocked connectivity between the respondents' network and the applicant's network – alleged anti-competitive conduct – whether serious question to be tried – where balance of convenience lies – adequacy of undertaking as to damages Held: interlocutory injunction granted Telecommunications Act 1997 (Cth), ss 56(1), 276 Trade Practices Act 1974 (Cth), ss 46, 51AB, 51AC, 52, 151AJ, 151AK(1), 151CA Boral Besser Masonry Limited v Australian Competition and Consumer Commission (2003) 215 CLR 374; [2003] HCA 5 Queensland Wire Industries Proprietary Limited v Broken Hill Proprietary Company Limited (1989) 167 CLR 177 Miller's Annotated Trade Practices Act. 30th ed. Thomson Reuters. Sydney (2009)

Pivotel Satellite Pty Limited ACN 009 917 398 v Optus Mobile Pty Limited ACN 054 365 696 and Optus Networks Pty Limited ACN 008 570 330

NSD 1468 of 2009

Jagot J

23 December 2009

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION NSD 1468 of 2009

BETWEEN: PIVOTEL SATELLITE PTY LIMITED ACN 099 917 398

Applicant

AND: OPTUS MOBILE PTY LIMITED ACN 054 365 696

First Respondent

OPTUS NETWORKS PTY LIMITED ACN 008 570 330

Second Respondent

JUDGE: JAGOT J

DATE OF ORDER: 23 DECEMBER 2009

WHERE MADE: SYDNEY

Upon the entities listed in Schedule A to these orders, by their counsel giving, jointly and severally, the usual undertaking as to damages, THE COURT ORDERS, UNTIL FURTHER ORDER: 1. Pursuant to s 151CA of the Trade Practices Act 1974 (Cth), the respondents restore the state of interconnectivity between the respondents' network and, via the network operated by Vodafone Pty Ltd, the applicant's network, to the state in which it was in immediately prior to 20 December 2009. 2. Pursuant to s 151CA of the Trade Practices Act 1974 (Cth), the respondents be restrained from taking steps to block interconnectivity between the respondents' network and the applicant's network, other than blocking as it was in force immediately prior to 20 December 2009. 3. Pursuant to s 151CA of the Trade Practices Act 1974 (Cth), the respondents be restrained from taking steps to block access to numbers associated with the carrier access code "1450" under the requirements of the Mobile Number Portability Code, other than any number blocked immediately prior to 20 December 2009. 4. Mr Stuart Salier, of the respondents, provide a written undertaking to the Court and the applicant by 7 January 2010 that the respondents have complied with Orders 1 to 3 of these orders. 5. The operation of Orders 1 to 3 of these orders be stayed until 5.00pm on 24 December 2009. 6. Despite the stay in Order 5, note the undertaking of the respondents, by their counsel, to comply with Orders 1 to 3 of those orders as soon as reasonably practicable. 7. The applicant file and serve a statement of claim by 22 January 2010. 8. The respondents file and serve any defence and cross-claim by 4 February 2010. 9. The matter be listed for further directions on 5 February 2010 before Jagot J. 10.Costs reserved. 11.Liberty to apply on 24 hours' notice. 12.The solicitors for the respondent are to notify the solicitors for the applicant forthwith when Order 1 has been complied with. Schedule A Pivotel Group Pty Limited Pivotel Satellite Pty Limited Pivotel Communications Pty Limited Think Mobile Pty Limited Tracertrak Pty Limited Tracertrak IP Pty Limited Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court's website.