Limitex Pty Ltd v Telstra Corporation Ltd [2005] FCA 179 (2 March 2005)

PRACTICE AND PROCEDURE – urgent application for interlocutory injunction to restore and maintain telecommunication services to the applicant – balance of convenience – no point of principle

LIMITEX PTY LTD v TELSTRA CORPORATION LTD
NSD 164 OF 2005

MOORE J
2 MARCH 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 164 OF 2005

BETWEEN:	LIMITEX PTY LTD APPLICANT
AND:	TELSTRA CORPORATION LTD RESPONDENT
JUDGE:	MOORE J
DATE OF ORDER:	2 MARCH 2005
WHERE MADE:	SYDNEY

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 164 OF 2005

BETWEEN:	LIMITEX PTY LTD APPLICANT
AND:	TELSTRA CORPORATION LTD RESPONDENT

JUDGE:	MOORE J
DATE:	2 MARCH 2005
PLACE:	SYDNEY

1 This is an application for an injunction to require the respondent, Telstra Corporation Ltd ("Telstra"), to restore and maintain telecommunication services to the applicant, Limitex Pty Ltd ("Limitex"). Those telecommunication services were the subject of an order made on 17 February 2005 and revised on 18 February 2005. The effect of the order was to require Limitex to take certain steps to provide comfort to Telstra for the continued provision (which this order required) of telecommunication services.

2 One of the matters that had to be done, and done by 1 March 2005, was the provision of a bank guarantee. That was not provided and in the result, so I am informed, Telstra has ceased providing the telecommunication services. It was open to Telstra to do so because the provision of the bank guarantee was a condition subsequent to the continued operation of the injunction requiring Telstra to provide telecommunication services.

3 I do not propose to grant the injunction sought by the applicant. My reasons briefly for doing so are as follows. First, the reasons advanced in support of the making of the injunction is that Telstra will, in fact, be protected in relation to moneys due to it because funds provided earlier, namely $24,000 provided on or before 23 February 2005, exceeds the amounts actually now due which the guarantee will secure. Secondly, if the injunction is not granted then retail customers provided with telecommunication services by the applicant will be inconvenienced.

4 Against that needs to be balanced the following considerations. First, this application should have been made several days ago and the failure of the applicant to make the application has resulted in it being in breach of an undertaking given to the Court concerning the provision of the bank guarantee by 1 March 2005. That has happened against a background where the applicant has earlier failed to comply with orders or undertakings about providing comfort to Telstra.

5 In addition, the orders made on 17 February 2005 were made by consent. That is, Limitex committed itself to a course of action which it has failed to follow. Having regard to the history of the matter, it is highly probable that this Court would be engaged in a comparably constant supervision of the commercial relationships between Limitex and Telstra until such time as this matter is finally heard were I to grant the injunction sought by the applicant. That is plainly an undesirable.

6 Next, it appears to me from the evidence that was given this afternoon that in refusing the injunction, it will not have an affect, or at least a dramatic affect, on the profitability of Limitex. The import of the evidence was that the profitable areas of the Limitex's operations are not in the field to which the telecommunication services, the subject of this application, relate.

7 It is true that there may be some inconvenience caused to the now 280 retail customers of Limitex. However, the evidence would suggest that they can fairly readily obtain similar services elsewhere and, in the balance, that factor does not, in my opinion, outweigh the other matters to which I have referred.

8 I dismiss the application made orally this afternoon for the injunction. I order the applicant to pay the respondent's costs of today.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

Counsel for the Applicant:	C Stomo

Solicitor for the Applicant:	Legal Services Group

Counsel for the Respondent:	N Perram

Solicitor for the Respondent:	Mallesons Stephen Jaques

Date of Hearing:	2 March 2005

Date of Judgment:	2 March 2005

Federal Court of Australia

Limitex Pty Ltd v Telstra Corporation Ltd [2005] FCA 179 (2 March 2005)