Federal Court of Australia

Galinovic v Singtel Optus Pty Limited [2025] FCA 611

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s interlocutory application be dismissed.

2.    The applicant pay the costs of the application.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(REVISED FROM TRANSCIPT)

MEAGHER J

INTRODUCTION

1    Before the Court is an application for an interlocutory injunction sought by Ms Christina Galinovic against Singtel Optus Pty Ltd and Optus Billing Services Pty Ltd. The orders sought are as follows:

1.    Until the final determination of this proceeding or further order of the Court, the Respondents, whether by themselves, their servants, agents or otherwise, are restrained from disconnecting, suspending, terminating, or in any way interfering with any telecommunication services provided to the Applicant under Account Number 62327784682, including fixed Broadband (galinovicchristina), Modem Back-up Service (0421079495), Optus Email (holistic-health@optusnet.com.au), and Mobile service (0411 953 824).

2.    The Respondents are restrained from taking any action to enforce the termination notice dated 24 April 2025 or any subsequent reminders or notices regarding termination, issued by the Respondents to the Applicant.

3.    The Respondents are restrained from taking any credit management action against the Applicant pending final determination of these proceedings.

4.    The Respondents continue to provide all telecommunications services to the Applicant on the same terms as were in effect prior to the termination notice dated 24 April 2025, including the $20/month discount agreed on 16 April 2025 and subsequently applied to the Applicant’s 6 May 2025 bill.

5.    The Respondents process any bills of exchange tendered by the Applicant in accordance with the Bills of Exchange Act 1909 (CTH) or, alternatively, return said instruments to the Applicant with a detailed written explanation of any purported defect.

6.    The Respondents are restrained from engaging in retaliatory conduct against the Applicant for filing this proceeding or for her complaints to regulatory authorities.

7.    The Applicant pay into Court the sum of $300.00 (three hundred dollars) as security for compliance with the undertaking as to damages.

8.    Costs reserved.

9.    Liberty to apply.

2    This application has come before me on an urgent basis as duty Judge. Ms Galinovic appeared as a litigant in person. For reasons that follow, this application is dismissed.

3    The substantive matter was commenced by an originating application which seeks declarations orders and damages with respect to a contract entered into by Ms Galinovic and the respondents for the provision of telecommunications services. No concise statement or sufficient affidavit in support of the originating application has yet been filed.

4    With respect to the interlocutory application as well as the originating application and the interlocutory application Ms Galinovic relied on her affidavits dated 11 May 2025 and 13 May 2025. She also relied on submissions dated 11 May 2025. The respondents relied on an affidavit of Mr Max Petro and an outline of submissions filed on 22 May 2025. Ms Galinovic complains that it was procedurally unfair that she was faced with submissions and an affidavit filed only on the morning of the hearing particularly in circumstances where the respondents are aware of her concerns. I am satisfied however that the respondents moved as quickly as possible in response to the service by Ms Galinovic of the applications which only occurred on 20 May 2025.

factual background

5    In 2021 Ms Galinovic entered into contracts with Optus for the supply of fixed broadband, modem back up and an email and mobile phone service on a month-to-month or non-fixed term basis. The terms of that agreement are contained in the Optus Consumer Terms. Relevantly the terms include:

(a)    Optus may terminate services upon 30 days’ written notice where they are on a ‘non fixed-length agreement’ [cl 11.2];

(b)    A non fixed-length agreement is defined in the Consumer Terms as an agreement for which the minimum term has expired and includes a month-to-month agreement [cl 16.1];

(c)    Optus will bill a customer on a regular basis [cl 9.1]; and

(d)    A customer may pay Optus’ invoices by one of the payment methods as set out in the “How to Pay” section of a customer’s bill or on Optus’ website [cl 9.50].

6    With respect to “How to Pay” a screenshot on the website which was before the courts sets out that methods of payment Optus accepts are:

(a)    Direct debit;

(b)    Credit, debit or charge card;

(c)    BPAY or

(d)    In person at any Australia Post Office via cash, EFTPOS, cheque or money order.

7    Ms Galinovic deposes that she pays for services by bills of exchange. Examples of such “bills of exchange” were annexed to Ms Galinovic’s affidavit and show in handwriting across the Optus invoice the words “conditionally accepted for value and surrender for value without dishonour to you upon proof of claim. The amount is not already settled and closed”, followed by what is presumably Ms Galinovic’s tax file number and a number for the Galinovic Trust.

8    Exhibited to the affidavits before the Court was correspondence between the parties which makes clear that Optus has advised Ms Galinovic that it does not accept payment by bills of exchange. It may be observed that the methods of payment stipulated by reference to the consumer terms do not include bills of exchange.

9    What also emerges from the material before the Court is that Ms Galinovic considers that at various times she has been offered discounts which have not been honoured, although it would appear that in fact the respondents’ have credited Ms Galinovic’s account from time to time.

10    As will become clear while they may raise issues for determination in the substantive proceedings, the issues before me today concern the grant of an interlocutory injunction in accordance with the Court’s inherent powers under s 23 of the Federal Court of Australia Act 1976 (Cth).

11    As is well established in Australian Broadcasting Corporation v O'Neill [2006] HCA 46 at [65]:

The relevant principles in Australia are those explained in Beecham Group Ltd v Bristol Laboratories Pty Ltd. This Court (Kitto, Taylor, Menzies and Owen JJ) said that on such applications the court addresses itself to two main inquiries and continued:

“The first is whether the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief ... The second inquiry is ... whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted.”

By using the phrase “prima facie case”, their Honours did not mean that the plaintiff must show that it is more probable than not at trial the plaintiff will succeed; it is sufficient that the plaintiff show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial. That this was the sense in which the Court was referring to the notion of a prima facie case is apparent from the observation to that effect made by Kitto J in the course of argument. With reference to the first inquiry, the Court continued, in a statement of central importance for this appeal:

“How strong a probability needs to be depends, no doubt, upon the nature of the rights [the plaintiff] asserts and the practical consequences likely to flow from the order he seeks.”

(Footnotes omitted.)

12    Further considerations with respect to the grants of an injunction are set out in Cool-Off Pty Ltd v Thomas Foods International Pty Ltd [2023] NSWSC 1183 at [12] as follows:

… Other factors to which the Court will have regard include the adequacy of damages, the possibilities of alternative remedies, whether there has been any laches or delay, the strength of the grounds of defence suggested by the defendant, what, if any, undertakings the defendant is prepared to give, but hardship and the balance of convenience are very important: Equity Doctrines and Remedies [21 – 375]. If any infringement of a plaintiff’s right between writ and hearing would be properly compensated in damages, that fact alone can, but not must, be a ground for declining an injunction: McCarty v Council of the Municipality of North Sydney (1918) 18 SR (NSW) 210; (1918) 35 WN (NSW) 85.

13    Ms Galinovic’s submissions regarding whether there is a serious question to be tried were wide ranging. They principally were directed towards the validity of her paying by “bills of exchange”. For this submission she relied on the “Consumer Terms” namely that the agreement is governed by the law of the Commonwealth of Australia, as set out in clause 15.1, and clause 13.2 which states with respect to Optus’ liability to its customers.

(a)    We have responsibilities and obligations under the law, including under:

(i)    The Telecommunications Legislation,

(ii)    The Competition and Consumer Act, including the Australian Consumer Law,

(iii)    Applicable laws, regulations and codes.

Nothing in the agreement removes or limits any rights that you have under existing laws or regulations.

14    Ms Galinovic developed that submission by, in effect, contending that as the Bills of Exchange Act 1909 (Cth) remains in force, fortified by the Banking Act 1959 (Cth) and A New Tax System (Goods and Services Tax Transition) Act 1999 (Cth) , both of which make references to Bills of Exchange, mean that Optus must accept what she proffers as a “bill of exchange”.

15    Ms Galinovic’s submissions included that the respondents had engaged in misleading and deceptive conduct and had acted unconscionably and contrary to agreements it had entered into. Central to this submission was Ms Galinovic’s contention that an agent of Optus had offered her a discounted rate for 6 months. This, Ms Galinovic submits, is evidence of a fixed term contact. In this regard, Ms Galinovic asserted that the respondents had been remiss in neglecting to refer to the 8 April agreement or to properly confront it, as well as refer to a number of payments she claims to have made. Furthermore, on Ms Galinovic’s case, the respondents subsequently reneged on that agreement which amounted to unconscionable conduct. Ms Galinovic also asserts that another agent of the respondents’ had agreed she had paid by way of “bills of exchange”. Also evidence of unconscionable conduct according to Ms Galinovic is the respondents’ failure to abide by their core values.

16    According to Ms Galinovic she had established essential elements of what she described as “Accord and Satisfaction” and her debts had been extinguished. Ms Galinovic accused the respondents of potentially engaging in the tort of conversion by the “exercise of dominion by the defendant”, inconsistent with the applicant’s rights with respect to the bills of exchange. Ms Galinovic also submitted that she had not accepted the respondents’ termination and that she had suffered significant distress and harm as a result of the respondents’ conduct.

17    In her submissions Ms Galinovic also stated that:

    The respondents had failed to abide by model litigant obligations;

    That it was now, at this late stage, impossible for her to establish alternative telecommunications services;

    That the respondents are seeking to terminate without a valid reason;

    That the respondents have persistently ignored her requests for information and attempts to resolve the matter despite her communications in that regard, including requests for information, freedom of information requests s and statements of claim;

    The respondents have refused to assist her, including by instructing her not to attend their retail premises and their staff not to assist her;

    That disconnection is prohibited until a complaint is resolved; and that

    The Federal Court will intervene where essential services are about to be terminated.

18    Ms Galinovic has also submitted that she has suffered irreparable loss, harm and damage personally and to her business including by attending today’s hearing, thereby losing business.

19    Ms Galinovic stated that she wanted the respondents “to be held accountable”. She alluded to what she described as public concerns regarding the respondents and stated that this was evident by the large number of complaints about them, such that it led to lengthy delays in the Telecommunications Industry Ombudsman dealing with the complaints and in respect of litigation commenced by the ACCC against the respondents.

20    In light of the submissions, it must be observed that this is not a wide ranging enquiry into the services offered by the respondents. It is an application by Ms Galinovic for an interlocutory injunction, in respect of which it is not necessary to have a general enquiry surrounding the issues of payment.

21    As the respondents correctly submit, taking account of statements of the High Court in O’Neill set out above, Ms Galinovic cannot succeed with respect to her argument that she has not accepted the termination and that is in any way invalid. To the extent there was an offer of a discount on a price for a period of time, that does not mean that the consumer terms cease to apply. As the terms make clear, the respondents “may cancel the service at any time by giving the customer at least 30 days’ notice”. Notice has been given in accordance with the Consumer Terms in this case.

22    Ms Galinovic has therefore failed to establish a prima case or serious question to be tried. There is no reason to preserve the status quo, which in any case is not what this application seeks to do but rather it seeks to deprive the respondents of their right to terminate in accordance with the Consumer Terms. If Ms Galinovic is able to establish any losses suffered because of wrongful termination by the respondents, damages are clearly the appropriate remedy.

23    As to the balance of convenience, Ms Galinovic submits that she will suffer significant and irreparable harm to her business. The loss of her email addresses will disrupt client relationships which might ultimately be permanently lost. An inoperative mobile number will mean clients are unable to reach Ms Galinovic. Damages will not be an adequate remedy and the prejudice to the respondents if an injunction were granted is minimal given her undertaking to pay security into the Court and “continue to be liable for service charges”.

24    Those submissions must be rejected. Ms Galinovic has known of the impending disconnection since 24 April 2025. Mr Petro deposes that Ms Galinovic will be able to maintain her mobile number if she transfers it before 25 May 2025. Further the respondents have offered to assist with that process should Ms Galinovic request such assistance by 3pm 23 May 2025. To transfer her mobile number is not a lengthy process, according to Mr Petro, taking between 15 minutes to an hour. The porting of a fixed internet service takes about 48 hours on Mr Petro’s evidence. While Ms Galinovic is not able to retain her current email address when it is to be ported to another service provider, the respondents have offered her an additional period to obtain a new email address and advise her customers of same. Mr Petro also deposes that this does not take a lot of time to affect.

25    As is therefore clear, had Ms Galinovic focused on transitioning her telecommunications services from the time she received notice of the termination, she would have had ample time to make the necessary arrangements. That approach would also have avoided the making of this application. In the circumstances, I consider the balance of convenience favours the Respondents.

26    For completeness, I note Ms Galinovic’s complaints have been investigated by the Telecommunications Industry Ombudsman. In that regard, the Telecommunications Industry Ombudsman found that it will no longer continue handling the complaint by Ms Galinovic and further found:

•    Based on the information provided, I am satisfied the response to your complaint from Optus is consistent with the law, good practice in the telecommunications industry, and with what we consider to be fair and reasonable; and

•    Optus’ decision to terminate the service is a commercial decision Optus has made in line with its customer terms. The TIO cannot handle complaints where a telco is consistently applying its customer terms.;

•    I am satisfied it (Optus) has given you adequate notice and I recommend you start organising another provider to port the services [to] before Optus terminates the services on 25 May 2025; and

•    Once your services are cancelled, they will no longer function. You should arrange services with another provider before they are cancelled to avoid losing your number and to mitigate any potential losses you may incur from losing your services (emphasis added)(Emphasis in original.)

conclusion

27    For the reasons set out, the interlocutory application is dismissed with costs.

Associate:

Dated:    22 May 2025