FEDERAL COURT OF AUSTRALIA

SingTel Optus Pty Ltd v Telstra Corporation Ltd (No. 1) [2006] FCA 1752

Blomley v Ryan (1956) 99 CLR 362 referred to

Commonwealth Bank of Australia Ltd v Amadio (1983) 151 CLR 447referred to

Crest Homes Plc v Marks (1987) 1 AC 829 cited

Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217 applied

SINGTEL OPTUS PTY LIMITED AND OPTUS NETWORKS PTY LIMITED v TELSTRA CORPORATION LIMITED

NSD 1087 OF 1997

EDMONDS J

15 DECEMBER 2006

SYDNEY

THE COURT ORDERS THAT:

1.                  Leave be granted to the applicants to file in Court an amended notice of motion moving the Court for a further, or alternative, order that leave be granted to the applicants for the use of pars 86 – 93 and 166 – 177 of, and attachments ‘SL8-C’ and ‘SL26-C’ to the Lee Outline (as referred to in orders made by this Court on 26 July 1996 in Proceedings No. 731 of 1995).

2.                  Leave be granted to the applicants to file and serve a Second Further Amended Application and Third Consolidated Amended Statement of Claim substantially in the form of the documents reproduced at pages 15 – 148 of Exhibit BEH-2 to the Affidavit of Bruce Eric Hambrett sworn 8 May 2006.

3.                  Leave be granted to the applicants for the use of pars 86 – 93 and 166 – 177 of, and attachments ‘SL8-C’ and ‘SL26-C’ to the Lee Outline (as referred to in orders made by this Court on 26 July 1996 in Proceedings No. 731 of 1995).

4.                  The respondent’s costs thrown away by the amendment be reserved.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT (NO. 1)

The Motion

1                     This is a motion on notice filed 8 May 2006 whereby the applicants (together ‘Optus’) move the Court for, inter alia, an order that they have leave to file and serve a Second Further Amended Application (‘SFAA’) and a Third Consolidated Amended Statement of Claim (‘TCASC’) substantially in the form of the documents reproduced at pages 15 to 148 of Exhibit BEH-2 to the affidavit of Bruce Eric Hambrett sworn 8 May 2006 which was read by Optus in support of the motion (the affidavit and Exhibit BEH-2 being Ex. 2).

2                     At the outset of the hearing of the motion, Senior Counsel for Optus handed up a form of amended notice of motion, which is an attachment to Optus’ submissions filed on 30 May 2006 in answer to the respondent’s submissions filed on 23 May 2006, moving the Court for a further, or alternative, order that leave be granted to Optus for the use of pars 86 – 93 and 166 – 77 of, and attachments ‘SL8-C’ and ‘SL26-C’ to the Lee Outline (as referred to in orders made by this Court on 26 July 1996 in Proceedings No. 731 of 1995) in the current proceedings.  The references to ‘the Lee Outline’ and ‘orders made by this Court on 26 July 1996 in Proceedings No. 731 of 1995’ and the relevance of both to the current proceedings will become apparent below.  Leave was sought to file the amended notice of motion in Court.  It was not opposed.

Evidence on the Motion

3                     As well as Ex. 2, the relevant background to this proceeding is set out in an anterior affidavit of Mr Hambrett sworn 30 November 2005 (including Exhibit BEH-1) which was also read in support of the motion (the affidavit and Exhibit BEH-1 being Ex. 1)  The affidavit was originally filed and served in support of a notice of motion by Optus filed on 30 November 2005, the hearing of which was adjourned and, to one extent or another, I am informed that the orders sought in that motion have been superseded by subsequent events.

4                     In support of the motion, Optus also read the affidavit of Colleen Anne Platford sworn 24 September 2001 together with annexures (Ex. 3).

5                     In opposing the motion, the respondent (‘Telstra’) read the affidavit of Patricia Anne Henry sworn 23 May 2006 together with Exhibit PAH-3 being a bundle of correspondence and other documents referred to in the affidavit (the affidavit and Exhibit PAH-3 being Ex. A).  Telstra also tendered a document on which there was listed nine affidavits/statements of various persons including a statement of Pushpa De Silva dated 18 December 1997 which was also tendered as being relevant to the use of the Lee Outline use (together Ex. B).

Telstra’s Position on the Motion

6                     Telstra opposes leave being granted to Optus to file and serve the SFAA and the TCASC on the bases that –

(1)               Optus is not entitled to rely in these proceedings on the outline of evidence of Stuart Alan Newton Lee dated 5 February 1996 (‘the Lee Outline’) filed in Proceedings No. 731 of 1995 in this Court (‘the 1995 Proceedings’);

(2)               Optus’ claim for relief for unconscionable conduct pursuant to the Trade Practices Act 1974 (Cth) (‘the TPA’) is bound to fail by reason of being time barred under s 82(2) of the TPA or has not been adequately pleaded.

7                     The first basis of opposition is a reference to the particulars provided under par (c) (but erroneously denoted sub-par (b)(vii)) to the pleading in [16] of the TCASC and to the particulars provided under par (c) to the pleading in [28] of the TCASC.  The second basis of opposition is a reference to the pleading in [79] of the TCASC and the claim made and relief sought in [2](c) and [6] respectively of the SFAA.

8                     Additionally, Telstra submits that should Optus be granted leave to file and serve the TCASC and SFAA, Optus should pay Telstra’s costs ‘occasioned by [Optus’] proposed amendments’.

Use of the Lee Outline

Background

9                     The Lee Outline was served in separate proceedings between Telstra and the Australian Telecommunications Authority (‘AUSTEL’) (in which proceedings, Optus was also a party) (the ‘IDD proceedings’) on 5 February 1996 pursuant to an order of the Court in the IDD proceedings made on 19 December 1995 (see orders at pp 1 – 2 of Exhibit PAH-3 in Ex. A).  Telstra submits and Optus accepts that a witness statement such as the Lee Outline, brought into existence for the purpose of one set of Court proceedings, is subject to an implied undertaking which precludes its use in other proceedings absent the consent of the party concerned or the leave of the Court: see Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217 at 223 per Wilcox J.  Optus says that it was for this reason that it originally sought leave in the 1995 proceedings to use the Lee Outline for other purposes.

10                  Optus was granted leave to use the Lee Outline by order of the Court on 26 July 1996.  The leave granted by Lockhart J on 26 July 1996 was, relevantly, in the following terms:

‘1.        Subject to 3 and 4 below, the Court grants leave for the use of paragraphs 86-93 and 166-77 of, and attachments “SL8-C and “SL26-C” to, the Outline of Evidence of Stuart Alan Newton Lee dated 5 February 1996 and served by the Applicant in these proceedings (“the Lee Outline”) on behalf of [Optus Networks Pty Ltd] in:

(i)        proposed proceedings in the Supreme Court of New South Wales substantially in the form of Annexure “A” to the Notice of Motion dated 27 June 1996 (“the proposed proceedings”); and/or

(ii)       a mediation or other dispute resolution procedure with respect to the subject matter of the proposed proceedings,

on the basis that such consent is without prejudice to the Applicant’s rights to object to, and/or seek a stay of, the proposed proceedings or any such mediation or other dispute resolution procedure.

2.         Subject to 3 and 4 below, the Court grants leave for the use of those parts of the Lee Outline referred to in 1 above on behalf of [Optus Networks Pty Ltd] for the purposes of and in accordance with the dispute resolution procedures set out in the Access Agreement dated 14 August 1992.’

A complete copy of the orders made by Lockhart J is at pp 166 – 167 of Exhibit BEH-2 in Ex. 2.  Paragraphs 3 and 4 dealt with confidentiality issues and are not directly relevant for present purposes.

The Respective Submissions

11                  Optus submits that the use of the Lee Outline in these proceedings on the basis set out in the TCASC is within the scope of the leave granted by Lockhart J, in that it is ‘for the purpose of and in accordance with the dispute resolution procedures set out in the Access Agreement dated 14 August 1992’.  Telstra disputes this.  Telstra submits that the grant of leave to Optus was for a specific purpose which has been spent.  The leave granted was limited not at large and Optus is no longer entitled to rely on his Honour’s orders again to use the Lee Outline in the current proceedings.

12                  A copy of the Access Agreement is annexure C in Ex. 3.  The dispute resolution procedures are set out in cl 19 and Schedule 7 of the Access Agreement.  In essence, these provisions establish a procedure whereby the parties are to endeavour to resolve disputes in the first instance by discussion or negotiation and, failing this, by reference to an Expert Committee.  However, the procedures do not exclude, and indeed expressly contemplate, a party having recourse to court proceedings if a dispute is not resolved by other means: see, in particular, pars 7.5.2 and 7.5.3 of Schedule 7 (see also cl 19.3 and par 7.2.5 of Schedule 7, which contemplate resolution of a dispute ‘by whatever means’).

13                  It is common ground that Optus initiated the dispute resolution procedures set out in the Access Agreement in late 1996 and early 1997 and indicated that it would be relying primarily on the Lee Outline for this purpose.  Optus submits that the terms of the notification of that dispute were commensurate with the scope of the proposed TCASC: the dispute related, in broad terms, to the alleged unauthorised use by Telstra for marketing and similar purposes, in breach of the Access Agreement, of Optus’ confidential information obtained by Telstra in the course of the provision of services to Optus pursuant to the Access Agreement: see, in particular, Optus’ letter at pp 16 – 17 of Exhibit PAH-3 in Ex. A.

14                  Pursuant to the dispute resolution procedures, initial discussions were held between the parties which failed to resolve the dispute.  Optus notified an intention to refer the matter to an Expert Committee for resolution in accordance with the dispute resolution procedures.  These proceedings were then commenced by Optus, seeking, inter alia, urgent interlocutory relief from the Court – a step expressly permitted under the procedures set out in the Access Agreement: see cl 19.1 and par 7.5.4 of Schedule 7.  The application for interlocutory relief ultimately did not proceed, and the matter was subsequently referred for determination by the Expert Committee in accordance with the dispute resolution procedures.

15                  An overview of the long and complicated history of the proceedings before the Expert Committee is given in pars 10 – 38 of Ms Platford’s affidavit in Ex. 3 and in pars 6 – 34 of Mr Hambrett’s affidavit in Ex. 1.  In short, the dispute concerning Optus’ confidentiality claims was not resolved by the Expert Committee, Telstra gave notice purporting to terminate the commission of the Committee and that it did not intend to participate in any hearing sought to be convened by Optus before the Committee, and Optus had the matter re-listed before the Court.

16                  Optus submits that it is not without significance that it was Telstra who objected to the proceedings being continued before the Expert Committee in November 2005.  In such circumstances, the dispute not having been resolved, Optus, it is said, had no alternative but to re-list the proceedings and to seek to have the matter determined by the Court.  This, Optus submits, was contemplated by the procedures in cl 19 and Schedule 7 of the Access Agreement in the event that the dispute was not resolved by other means.

17                  Optus submits that the TCASC as now proposed represents a consolidation of the claims notified by Optus when the dispute resolution procedures were first invoked and the claims articulated by Optus in its first and subsequent pleadings before the Court and the Expert Committee.  Use of the Lee Outline for the purpose of framing the TCASC is therefore within the leave granted by Lockhart J on 26 July 1996.

18                  Indeed, Optus submits, that use of the Lee Outline was contemplated by par 2 of the orders made by Lockhart J on 26 July 1996, is illustrated by reference to par 1 of those orders.  Pursuant to par 1, his Honour expressly granted leave for the use of the Lee Outline in proposed proceedings by Optus against Telstra in the Supreme Court of New South Wales which, in broad terms, were to be commensurate in scope with the TCASC.  Those proceedings were ultimately not pursued by Optus, but rather were suspended by the events that took place pursuant to the dispute resolution procedures and the commencement of proceedings in this Court.

19                  Optus rejects Telstra’s submission that the leave granted by Lockhart J was ‘spent’ by reason of the fact that the dispute resolution procedures invoked in late 1996 and early 1997 did not resolve the dispute.  Optus also rejects Telstra’s submission that the present proceedings fall outside the scope of the dispute resolution procedures under the Access Agreement.  Optus submits that for the reasons outlined in its foregoing submissions, Telstra’s submissions have no substance.  The use of the Lee Outline which is presently proposed is within the leave granted. 

20                  If, contrary to the foregoing submissions, the Court were to consider that the use which is proposed to be made of the Lee Outline would fall outside the terms of the leave granted by Lockhart J on 26 July 1996, Optus respectfully submits that the necessary leave should be granted in any event.

21                  Optus submits that the history of the matter as already outlined demonstrates why leave to use the Lee Outline should be granted, consistent with the principles set out in Springfield Nominees 38 FCR at 223 – 225 and other cases.  The key provisions of the Lee Outline are extracted or referred to in the particulars to the TCASC.  It constitutes relevant material, sourced from Telstra, which disclosed a prima facie unauthorised use of Optus’ confidential information obtained by Telstra in the provision of services to Optus pursuant to the Access Agreement, in respect of which Optus seeks relief in this Court.

22                  Optus submits that the use proposed to be made of the Lee Outline is plainly within the intended purpose of the orders that were made on 26 July 1996.  The TCASC sets out the very kind of claim that was pursued by Optus pursuant to the dispute resolution procedures referred to in par 2 of the orders and articulated by Optus in the draft summons for the proposed proceedings in the Supreme Court of New South Wales referred to in par 1 of the orders.  Optus submits that Telstra should not be permitted to avoid Optus’ use of the Lee Outline in these proceedings by reliance on a technicality.

23                  Optus submits that there is a further reason for rejecting Telstra’s opposition to par 1 of the notice of motion based on the Lee Outline.  Although the Lee Outline is referred to in the particulars to the TCASC, it does not constitute part of the pleading itself and nor does it constitute the whole of the material relied upon to support the pleading.  As such, even if Optus were not entitled to rely upon the Lee Outline, references to the Lee Outline could be excised from the TCASC and  the TCASC could be filed in that form essentially unchanged along with the SFAA in its existing form.

24                  Specifically, Optus submits that the Lee Outline is referred to in terms in the particulars under [16] and [28] of the TCASC and, by reference, under various other paragraphs where those particulars are repeated.  In essence, it is relied upon to illustrate the proposition that Telstra has used market share reports prepared using Optus’ confidential information for its own marketing and similar purposes.  This is something which is apparent, in any event, from the existence, content and apparent purpose of the market share reports themselves which have been discovered by Telstra in these proceedings.  It is also apparent from other material available to Optus, including a statement of Neil Andrew Lambert dated 21 April 1999 filed in these proceedings (about which there is no question of any requirement of leave).  This is made plain in the particulars in the TCASC: see, in particular, pars 16(a) and (b)(i) – (vi) and pars 28(a) and (b).

25                  Telstra, in its oral submissions, submits that this latter material indicates that there are no ‘special circumstances’ of the kind referred to in Springfield Nominees to warrant a grant of leave to rely on the Lee Outline.

Conclusion and Reasoning

26                  I have come to the firm view that court proceedings, whether they be interlocutory or not, are outside the dispute resolution procedures which are to apply to disputes arising under the Access Agreement.  I think this follows from a reading of Schedule 7 to the Access Agreement as a whole, and in that context, cll 7.1.1, 7.5.2, 7.5.3 and 7.5.4 in particular.

27                  It follows, from this view, that the use of the Lee Outline in the current proceedings is not within the terms of the leave granted by Lockhart J on 26 July 1996, in particular the leave granted by par 2 of the orders his Honour made that day.  Such proceedings are not part of the dispute resolution procedures set out in the Access Agreement.

28                  This conclusion is fortified by the very existence of par 1 of his Honour’s orders and its reference to the proposed proceedings in the Supreme Court of New South Wales.  Paragraph 1 would not have been necessary if such proposed proceedings were embraced by the leave granted in par 2.

29                  On the other hand, I have come to the view that ‘special circumstances’ exist to warrant leave being granted to Optus to use the Lee Outline in the current proceedings, or at least those parts of it referred to in the amended notice of motion.  In Springfield Nominees 38 FCR at 223, Wilcox J referred, with approval, to what was said by Burchett J in Holpitt Pty Ltd v Varimu Pty Ltd (1991) 29 FCR 576 at 578 – 579 of the need for ‘special circumstances’ if leave was to be granted – see too Crest Homes Plc v Marks (1987) 1 AC 829 at 860 per Lord Oliver – and as to what that required.  Burchett J said:

‘As far as the expression “special circumstances” is concerned, it is an expression which is liable to be misunderstood unless care is taken to ask and answer the question, special in relation to what?  “Special” is one of those words which derive almost all their meaning from the context …  If all that is required is that, among the great number of cases in the court in which documents have been discovered, this one must evince some special feature which affords a reason for releasing or modifying the undertaking, there will be no difficulty.  Circumstances in which there is a legitimate reason why documents discovered in one proceeding should be made available in another will, viewed in this way, be rare.  In the ordinary course, the ordinary rule should apply, there being no special circumstance to suggest otherwise.  Cf Jess v Scott (1986) 12 FCR 187, where the Full Court was concerned with the construction of O 52, r 15(2), by which leave to file an appeal out of time could be granted “for special reasons”.  The joint judgment described (at  195) the expression “special reasons” in this rule as:

“an expression describing a flexible discretionary power, but one requiring a case to be made upon grounds sufficient to justify a departure, in the particular circumstances, from the ordinary rule prescribing a period within which an appeal must be filed and served.”

Of course, if Lord Oliver should be taken to have required the circumstances to be special, not in relation to all the various circumstances of the actions in which the relevant implied obligation has arisen, but in relation to the very small number of cases in which a reason appears why the undertaking might be relaxed, the discretion of the court would be entangled in a rule of quite uncertain import.  I do not know on what footing one would say that a particular circumstance among these relatively rare circumstances would be ‘special’ and another not.  I do not think his Lordship intended to fetter the court’s discretion in this way.  I think he was using the words “special circumstances” to express the same idea which is expressed in the rule discussed in Jess v Scott by the words “for special reasons” …’

30                  In Springfield Nominees 38 FCR at 224, Wilcox J observed that a similar approach was followed by Lockhart J in Sweetman v Australian Thoroughbred Finance Pty Ltd (unreported, Federal Court, Lockhart J, 23 July 1992), and at 225 concluded:

‘For “special circumstances” to exist it is enough that there is a special feature of the case which affords a reason for modifying or releasing the undertaking and is not usually present.  The matter then becomes one of the proper exercise of the court’s discretion, many factors being relevant.  It is neither possible nor desirable to propound an exhaustive list of those factors.  But plainly they include the nature of the document, the circumstances under which it came into existence, the attitude of the author of the document and any prejudice the author may sustain, whether the document pre-existed litigation or was created for that purpose and therefore expected to enter the public domain, the nature of the information in the document (in particular whether it contains personal data or commercially sensitive information), the circumstances in which the document came into the hands of the applicant for leave and, perhaps most important of all, the likely contribution of the document to achieving justice in the second proceeding.’

31                  The ‘special circumstances’ in the present case are:

(1)               That leave had already been granted to Optus to use those parts of the Lee Outline referred to in par 2 of the amended notice of motion in the proposed New South Wales Supreme Court proceedings (par 1 of the orders made on 26 July 1996).

(2)               The claims in the current proceedings bear, in a number of respects, a remarkable similarity to the claims in the proposed New South Wales Supreme Court proceedings.  For example, the declarations claimed in pars 1 and 2 of the SFAA:

‘1.        A declaration that information obtained by Telstra from recording the quantity, source, destination, duration, time of occurrence or kind of telecommunications traffic which is generated by customers of Optus Networks and which passes through any of Telstra’s telecommunications networks (the Confidential Information) is information which is confidential to Optus Networks.

2.         A declaration that the use by Telstra of the Confidential Information for the unauthorised purposes as defined in paragraph 15 of the Third Consolidated Amended Statement of Claim is:

(a)               is [sic] in breach of the Access Agreement;

(b)               in breach of the duty of confidentiality owed by Telstra to Optus Networks; and

(c)                unconscionable conduct within the meaning of section 51AA of the Trade Practices Act 1974 (Cth).’

when read in conjunction with [15] and [16] of the TCASC, are, save for the s 51AA TPA unconscionable conduct aspect, substantially identical to the declarations claimed in pars 1 and 2 of the Summons in the proposed New South Wales Supreme Court proceedings –

‘1.        A declaration that information obtained by the Defendant (Telstra) from measuring the quantity, source, destination, duration or kind of telecommunications traffic which is generated by customers of Optus and which passes through any of Telstra’s telecommunications networks (the confidential information), is information which is confidential to Optus.

2.         A declaration that the use by Telstra of the confidential information for marketing purposes or for any purpose not authorised under the Access Agreement between Optus and Telstra dated 14 August 1992, as amended, (the Access Agreement) or not otherwise specifically authorised by Optus (the unauthorised purposes), is in breach of:

(a)               the Access Agreement; and

(b)               the duty of confidentiality owed by Telstra to Optus.’

(3)               The document (the Lee Outline) did not come into the hands of Optus through the exercise of any process which mandated its production.  Indeed, the document was brought into existence only as part of the dispute resolution process, not anterior to it.

(4)               While it is not possible at this stage to say whether the document will be important to the achievement of justice in the case, it has at least the potential to be important to the proper determination of the case: Springfield Nominees 38 FCR at 225.

Unconscionable Conduct and Associated Relief

Background

32                  The factual background to Telstra’s opposition to the motion on the second basis outlined in [6](2) supra would not seem to be in dispute although there are clearly differences between the parties as to the implications of some of those facts.

33                  In Optus’ original Application filed 17 December 1997, there was a claim at [11] for damages pursuant to s 82 of the TPA.  Telstra says these were included for the purposes of Optus’ claim for damages in respect of an alleged contravention of ss 51A, 52 and 53 of the TPA, presumably by reference to the pleadings at [24] and [29] of the original Statement of Claim filed the same date.  On the other hand, Optus says the claim for damages in [11] of the Application is general and not limited to any particular contravention, following claims for declaratory, injunctive and delivery up relief in connection with the confidential information case.

34                  An Amended Application and Amended Statement of Claim were filed by Optus on 23 February 1998.  Telstra says this was consequent upon a resolution of the trade practices claims between the parties on or about 20 February 1998.  It further says that the only remaining dispute between the parties were the confidentiality claims which had been stayed by the Court in order to be dealt with under the dispute resolution proceedings of the Access Agreement.  Neither the Amended Application nor the Amended Statement of Claim contain reference to the trade practices claims, including the order for damages under s 82 of the TPA.

35                  On 13 March 2001 Optus served a Further Amended Application (‘FAA’) and a Consolidated Amended Statement of Claim (‘CASC’).  The CASC does not contain any trade practices claims but the FAA includes in [6] a damages claim under s 82 of the TPA as an alternative to an order that Telstra account to Optus for the profits made by Telstra by reason of its use of information confidential to Optus.  Neither the FAA nor the CASC were filed.  Optus says that by the time these documents were served, the proceedings had been stayed by order of the Court and the matter referred to the Expert Committee for determination.  It was therefore not possible for Optus to file the documents in Court.

The Respective Submissions

36                  Telstra submits that it was not until the TCASC was served that Optus alleged that Telstra had engaged in ‘unconscionable conduct within the meaning of section 51AA of the [TPA]’ and in the SFAA, added in an additional declaration that Telstra’s use of the Confidential Information constituted ‘unconscionable conduct within the meaning of section 51AA of the [TPA]’.  Telstra submits that Optus is not entitled to now include, in the SFAA and the TCASC, for the first time, a claim for unconscionable conduct under s 51AA of the TPA.

37                  Optus points out that at all times since the commencement of the proceedings its pleading included the allegation that Telstra’s use of Optus’ confidential information for improper purposes ‘was and is unconscientious and in breach of the duty of confidentiality owed by Telstra to Optus Networks in respect of the confidential information’.  Optus submits that these words, and in particular the word ‘unconscientious’, were sufficient to raise the claim that now appears in more specific terms in [79] of the TCASC.  Section 51AA imports equitable concepts of unconscionable conduct, and in that context the word ‘unconscientious’ is and always has been associated with the grant of relief in cases of  unconscionable dealing.  See, e.g., Commonwealth Bank of Australia Ltd v Amadio (1983) 151 CLR 447 at 461 per Mason J.  In this area, the ‘overriding aim of all equitable principle is the prevention of unconscionable behaviour – a term which can be seen to encompass duress, undue influence and “unconscionable dealing as such”’: ACCC v CG Berbatis Holdings Pty Ltd (No 2) (2000) 96 FCR 491 at 498 per French J, quoted with approval by Gummow and Hayne JJ in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at [99].

38                  Optus submits that the allegation that Telstra’s use of Optus’ confidential information for improper purposes was ‘unconscientious’ in previous versions of the pleading was closely associated with the allegation of breach of confidence.  Similarly, the allegation of unconscionable conduct now contained in [79] of the TCASC is not at large.  That paragraph expressly refers back to [76] and [78] of the TCASC, which plead breach of obligations of confidence.  In terms, the unconscionable conduct claim turns upon the same fundamental allegations as the claims for breach of the Access Agreement and equitable breach of confidence.  The respective claims are and always have been tied together.  There has been no change in Optus’ position in this regard.

39                  Telstra rejects Optus’ submission that Optus’ reference to the word ‘unconscientious’ in the CASC is equivalent to an allegation that Telstra engaged in unconscionable conduct in breach of s 51AA of the TPA.  Telstra further rejects Optus’ submission that this proposed claim is longstanding and the proposed amendment was merely to ‘better and more specifically’ articulate the basis of Optus’ entitlement for the benefit of Telstra.

40                  Telstra submits that the claim in relation to unconscionable conduct is clearly time barred by reason of subs 82(2) of the TPA; the fact is that no claim was made for breach of unconscionable conduct provisions of the TPA.  The use of the word ‘unconscientious’ does not do this.  Any loss and damage suffered by Optus by reason of the breach was first suffered in about 1995 – see, for example, [16], [22], [76] and [80] of the TCASC.  According to Telstra, it is now too late to add it.

41                  According to Optus, Telstra’s submission, which turns upon the assertion that the s 51AA claim is time barred, overlooks the fact that the TCASC pleads at [76] a continuing course of conduct and not one which ceased at any point in time.  A cause of action arose under s 82 each time loss or damage was suffered by Optus by reason of a further contravention by Telstra of s 51AA of the TPA: see Wardley Australia Ltd v Western Australia (1992) 175 CLR 514.  In the circumstances, Optus submits that the limitation period pursuant to s 82(2) would only become relevant, if at all, on the question of relief, not on the question of whether there is a cause of action.

42                  Optus further submits that Telstra’s submission also overlooks the power of the Court pursuant to O 13 r 2(3) and (7)(a) to permit an amendment to raise a cause of action arising out of the same facts as those already pleaded, notwithstanding the expiry of any relevant period of limitation.  This power is specifically authorised by s 59(2B) of the Federal Court of Australia Act 1976 (Cth).  The amendment, if permitted, will be taken to have effect from the date of commencement of the proceedings: see Harris v Western Australian Exim Corporation (1994) 56 FCR 1 at 9 – 10.

43                  For all these reasons, Optus submits that the s 51AA contravention is not time barred as submitted by Telstra, and leave to file the SFAA and TCASC should not be refused for this reason.

44                  Telstra submits that if, notwithstanding its submissions, the Court were to decide that s 82(2) of the TPA does not preclude Optus from filing a new unconscionable conduct claim at this time, the Court should not grant Optus leave to file the SFAA and TCASC because Optus has failed to adequately plead its proposed cause of action.  Order 11 rule 2(a) of the Federal Court Rules stipulates that a pleading must contain the material facts on which the party relies.  According to Telstra, Optus’ proposed claim fails to plead the material facts which would be necessary to establish a contravention of s 51AA of the TPA.  For example, Optus has failed to plead that it is in a position of special disadvantage, which is a material fact which must be established to make out that Telstra has engaged in conduct that is unconscionable within the meaning of the unwritten law.  In its current form, the proposed pleading is embarrassing.  If the Court were to grant leave to file the TCASC, it would be liable to be struck out.

45                  Optus disputes this and submits that the claim is adequately pleaded in the context of the pleading as a whole.

46                  Optus submits that the function of pleadings is to define the issues and to inform the parties in advance of the case they have to meet, so as to enable them to take the steps necessary to deal with it: Dare v Pulham (1982) 148 CLR 658 at 664.  Paragraph 79 of the TCASC does this.  As submitted above, the allegation of breach of s 51AA is not at large.  The paragraph refers back to and incorporates by reference [76] and [78] which identify the conduct that is said to be unconscionable.  The same facts are relied upon.  In the circumstances, Optus says there is no need for a more detailed pleading of the claim.

47                  In particular, Optus submits that there is no need for any express pleading of a ‘special disadvantage’.  While a special disadvantage may be relevant to a finding of unconscionable conduct, it is just part of the factual matrix.  In any event, Optus submits that earlier paragraphs of the TCASC and particulars plead or identify facts which support the allegation that Optus was, relevantly, in a position of special disadvantage as regards Telstra’s conduct.  Specifically, Telstra had unsupervised access to Optus’ confidential information in the course of carrying Optus’ telecommunications traffic on its network pursuant to the provisions of the Access Agreement: see [12] of the TCASC.  In these circumstances, Optus was at a special disadvantage as regards Telstra by reason of Telstra’s ability to access the confidential information and Optus’ lack of knowledge, in the operation of the arrangements under the Access Agreement, as to what Telstra was or might be doing with the information.

48                  Optus submits that such details can be dealt with by way of particulars.  To the extent that Telstra seeks elaboration of Optus’ case pursuant to s 51AA, it will be open to Telstra to request particulars of [79] of the TCASC.  There has been no such request to date.

49                  It is to be remembered, Optus says, that, under the modern system of pleading, the assessment to be made as to the adequacy of a pleading is not whether the facts pleaded are in themselves sufficient to give rise to a cause of action, but rather whether it would be open upon the pleading to prove facts at the trial which would  constitute a cause of action: see, e.g., Pancontinental Mining Ltd v Posgold Investments Pty Ltd (1994) 121 ALR 405 at 414.  For this purpose, any particulars provided are to be taken into account.  The question is whether the pleading, including the particulars, is adequate to disclose the case which the opposing party must meet and to disclose a cause of action: see Beach Petroleum NL v Johnson (1991) 105 ALR 456 at 466.

50                  The TCASC, including [79], plainly meets these tests.  This aspect of Telstra’s objection should therefore be rejected.

51                  Finally, Optus submits that, even if none of the above submissions concerning the unconscionable conduct claims are accepted, the only consequence would be that [79] of the TCASC and those paragraphs of the SFAA which relate to this claim (specifically pars 2(c) and 6 of the SFAA) would need to be excised.  This aspect of Telstra’s opposition to the motion provides no basis for the refusal of leave to amend in relation to the balance of the SFAA and TCASC.  With respect, I do not think Telstra’s opposition to the motion went that far.

Conclusion and Reasoning

52                  I am of the view that this claim has always been pleaded, albeit not specifically by reference to s 51AA of the TPA.  Paragraph 20 of the Statement of Claim filed 17 December 1997, provided:

‘In the premises, Telstra’s use of the confidential information for an improper purpose was and is unconscientious and in breach of the duty of confidentiality owed by Telstra to Optus Networks in respect of the confidential information.’

53                  The alleged unconscientious conduct of Telstra in the context pleaded is not inconsistent, indeed, it is totally consistent, with the pleading in [79] of the TCASC.  This is particularly so where the terms of s 51AA of the TPA itself refer to conduct that is ‘unconscionable’ within the meaning of the unwritten law, i.e., the general law, by reference to which the concept of ‘unconscientiously’ has figured prominently: see Blomley v Ryan (1956) 99 CLR 362 at 415 per Kitto J and Commercial Bank of Australia Ltd v Amadio at 461 per Mason J.

54                  Nor, in my view, can the pleading at [79] of the TCASC be rejected on the basis that it is out of time.  Having regard to the way the allegation is pleaded, in particular in its reliance on [76] and [78] and the references therein to Telstra’s use and continued use of the confidential information, it is strongly arguable that a cause of action arises each time Optus suffers loss or damage by reason of a further contravention by Telstra of s 51AA of the TPA.  In these circumstances, as Optus submits, the limitation period pursuant to subs 82(2) of the TPA would only become relevant on the question of relief; not on the question of whether there is a cause of action.

55                  Nor do I think Telstra’s criticism of the way in which this matter is pleaded warrants a denial of leave being granted in the terms sought.  Any such deficiency should be capable of being remedied by further and better particulars and only if it cannot, might an application for its striking out be entertained.

The Issue of Costs

56                  Telstra submits that should Optus be granted leave to file the TCASC and SFAA, Telstra opposes order 2 of Optus’ notice of motion as Optus has removed many sections of the SCASC.  The removed sections relate to claims which resulted in substantial amounts of discovery by Telstra, the preparation and service of statements, numerous requests for further and better particulars and other steps in the dispute which involved significant time spent by Telstra in responding to the claims which are now no longer pressed by Optus.  An order in the usual form should be made that Optus pay the costs of Telstra occasioned by its proposed amendments.

57                  Optus submits that, if leave to file the SFAA and TCASC is granted, the question of any costs thrown away by reason of the amendments should be reserved in accordance with par 2 of Optus’ notice of motion.

58                  Optus’ position is that the various steps taken in the proceedings to date, including the discovery given and witness statements served by Telstra, have not necessarily been wasted, and certainly have not been wasted in their entirety.  For example, the market share reports relied upon for the purposes of the TCASC have formed part of Telstra’ discovery. Indeed, tellingly, the market share reports were not the first documents to be discovered by Telstra; they formed part of the fourth of seven tranches of discovery given by Telstra in the course of the Expert Committee proceedings.  This followed an interlocutory dispute in which Telstra unsuccessfully contended that it ought not be required to discover such documents.  Similarly, the statement of Mr Lambert which is referred to in particulars in the TCASC alongside the market share reports, was served for the purposes of, and in connection with, these proceedings.

59                  According to Optus, there has always been a close inter-relationship between the claims now pressed by Optus in the TCASC and the claims which are shown in the marked up version of the TCASC as being excised.  All are claims in relation to breach of provisions of the Access Agreement or breach of confidence by Telstra by means of the unauthorised use of Optus’ confidential information obtained in the provision of services to Optus pursuant to the Access Agreement.

60                  Moreover, Optus does not concede that the excised claims are not maintainable.  Rather, in recognition of the fact that these proceedings have been on foot for nearly 10 years, Optus seeks to adopt a sensible and responsible approach by presenting a case which is readily susceptible to determination without further substantial delay or interlocutory steps.  This is a process which ought to be encouraged.  Optus should not be penalised for seeking to refine its case in such a  manner.

61                  In summary, Optus submits that the consideration of any order for the payment of costs thrown away or associated with the excised claims should await the final determination of the proceedings.  Only then would it would be possible to conduct a proper assessment of the justification for any such order.  Further, any order could be tailored by reference to the specific costs in question.  An order in the form proposed by Telstra (that ‘Optus pay the costs of Telstra occasioned by its proposed amendments) would be unclear and would merely beg the question.

Conclusion

62                  In all the circumstances, I am of the view that the respondent’s costs thrown away by the amendment should be reserved.

Associate:

Dated:         15 December 2006