Pivotel Satellite Pty Limited v Optus Mobile Pty Limited [2010] FCA 516

Pivotel Satellite Pty Limited v Optus Mobile Pty Limited [2010] FCA 516

Leave to rely on the amended statement of claim was refused because, viewed as a whole, the pleading failed to plead material facts with sufficient particularity to identify the markets, interconnection services, market power, taking advantage, substantial lessening of competition, and the facts making the blocking conduct misleading, deceptive or unconscionable. The pleading therefore disclosed no reasonable cause of action and was embarrassing within O 11 r 16 of the Federal Court Rules.

Jurisdiction
Australia
Judgment Date
27 May 2010
Procedural Posture
Application for Leave to Rely on an Amended Application and Statement of Claim; Respondents' Motion to Strike Out the Original Application and Statement of Claim / Notice of Motion for Leave to Amend Dismissed; Respondents' Strike Out Motion Adjourned; Further Directions Listed
Outcome
The applicants' notice of motion for leave to rely on the amended application and statement of claim was dismissed; the respondents' notice of motion was adjourned; applicants ordered to pay specified costs.
Legal Topics
['leave to File Amended Statement of Claim' 'strike Out Pleading' 'no Reasonable Cause of Action' 'embarrassing Pleading' 'anti Competitive Conduct' 'misleading and Deceptive Conduct' 'unconscionable Conduct' 'market Definition' 'substantial Market Power']
['practice and Procedure' 'competition Law' 'consumer Protection' 'telecommunications'] ['leave to File Amended Statement of Claim' 'strike Out Pleading' 'no Reasonable Cause of Action' 'embarrassing Pleading' 'anti Competitive Conduct' 'misleading and Deceptive Conduct' 'unconscionable Conduct' 'market Definition' 'substantial Market Power']

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Procedural Posture

Application for Leave to Rely on an Amended Application and Statement of Claim; Respondents' Motion to Strike Out the Original Application and Statement of Claim / Notice of Motion for Leave to Amend Dismissed; Respondents' Strike Out Motion Adjourned; Further Directions Listed

Legal Issues

  1. 1 ['Whether the proposed amended statement of claim disclosed no reasonable cause of action or had a tendency to cause embarrassment within O 11 r 16 of the Federal Court Rules.' 'Whether the pleaded interconnect markets, ordinary mobile market and other markets were sufficiently particularised to permit Optus to know the case it had to meet.' 'Whether the anti-competitive conduct allegations adequately pleaded market power, taking advantage of market power and substantial lessening of competition.' "Whether the misleading and deceptive conduct and unconscionable conduct claims adequately pleaded material facts linking Optus's blocking of calls to the alleged legal consequences." 'Whether leave to rely on the amended application and statement of claim should be granted.']

Ratio Decidendi

Leave to rely on the amended statement of claim was refused because, viewed as a whole, the pleading failed to plead material facts with sufficient particularity to identify the markets, interconnection services, market power, taking advantage, substantial lessening of competition, and the facts making the blocking conduct misleading, deceptive or unconscionable. The pleading therefore disclosed no reasonable cause of action and was embarrassing within O 11 r 16 of the Federal Court Rules.

Court Disposition

The applicants' notice of motion for leave to rely on the amended application and statement of claim was dismissed; the respondents' notice of motion was adjourned; applicants ordered to pay specified costs.

Orders

  • ["The applicants' notice of motion filed on 3 May 2010 be dismissed." "The applicants pay the respondents' costs of and incidental to the applicants' notice of motion filed on 3 May 2010, as agreed or taxed." "The applicants pay the respondents' costs of and incidental to the applicants' notice of motion for leave...