Pivotel Satellite Pty Limited v Optus Mobile Pty Limited [2010] FCA 121

Pivotel Satellite Pty Limited v Optus Mobile Pty Limited [2010] FCA 121

The interlocutory orders should be varied because new material, not reasonably available on 23 December 2009, and a material change in the presented factual circumstances showed that nearly all traffic from Optus customers to Pivotel's network was to two stage dialling, music streaming or like services, contrary to the essential thrust of Pivotel's original balance of convenience case. That constituted exceptional circumstances warranting reconsideration, and justice required revisiting the form of the order because the existing injunction was too wide and worked an injustice by requiring Optus to continue carrying traffic to services outside the rational basis of the pleaded competition...

Jurisdiction
Australia
Judgment Date
22 February 2010
Procedural Posture
Application to Vary Interlocutory Injunction / Notice of Motion Filed by the Respondents on 2 February 2010 After Interlocutory Orders Made on 23 December 2009
Outcome
The respondents' application to vary the interlocutory orders was accepted in principle; the Court held that the interlocutory orders must be varied and directed that further submissions be heard about the form of the variation.
Legal Topics
['variation of Interlocutory Injunction' 'material Change in Circumstances' 'new Evidence on Interlocutory Application' 'balance of Convenience' 'competition Rule Under the Trade Practices Act 1974 (cth)']
['practice and Procedure' 'telecommunications' 'competition Law'] ['variation of Interlocutory Injunction' 'material Change in Circumstances' 'new Evidence on Interlocutory Application' 'balance of Convenience' 'competition Rule Under the Trade Practices Act 1974 (cth)']

Case Brief

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Procedural Posture

Application to Vary Interlocutory Injunction / Notice of Motion Filed by the Respondents on 2 February 2010 After Interlocutory Orders Made on 23 December 2009

Legal Issues

  1. 1 ["Whether the interlocutory orders made on 23 December 2009 should be varied because of a material change between the claims identified on 23 December 2009 and Pivotel's statement of claim filed on 1 February 2010." 'Whether new evidence available after 23 December 2009 undermined the factual basis on which interlocutory relief was granted.' 'Whether exceptional circumstances and the interests of justice warranted reconsideration of substantive interlocutory orders made after a contested hearing.' 'Whether the interlocutory orders were too wide because they prevented Optus from blocking calls to Pivotel numbers used for two stage dialling, music streaming and like services.']

Ratio Decidendi

The interlocutory orders should be varied because new material, not reasonably available on 23 December 2009, and a material change in the presented factual circumstances showed that nearly all traffic from Optus customers to Pivotel's network was to two stage dialling, music streaming or like services, contrary to the essential thrust of Pivotel's original balance of convenience case. That constituted exceptional circumstances warranting reconsideration, and justice required revisiting the form of the order because the existing injunction was too wide and worked an injustice by requiring Optus to continue carrying traffic to services outside the rational basis of the pleaded competition...

Court Disposition

The respondents' application to vary the interlocutory orders was accepted in principle; the Court held that the interlocutory orders must be varied and directed that further submissions be heard about the form of the variation.

Orders

  • ['The matter be listed for further directions on 23 February 2010 at 3.00pm.' 'The parties are to have an opportunity to consider the reasons before making further submissions about the form of the orders required.']