REASONS FOR JUDGMENT
1 On 30 July 2004 I delivered judgment (Australian Competition and Consumer Commission v Telstra Corporation Limited [2004] FCA 987) and stood the proceeding over for the making of formal orders. I have heard argument as to alternative drafts of the form of those orders today. I will run through the issues and counsel can remind me if I have missed any.
2 I think that 'impliedly' should not be included in the declarations. You either represent or you do not. For the reasons I have mentioned in the course of discussion with counsel, I do not think that declaration three reflects any internal inconsistency in the judgment and I am satisfied that it does deal with an issue which is appropriate to reflect in a declaration. I appreciate that in one sense, as counsel for Telstra has put, one may see declarations one, two and three as saying the same thing in different language. However, they are saying the same thing in different language in accordance with the case that was presented and reflect the findings which were made. So far as declaration four is concerned, whilst flattered by the submissions of counsel for the applicant, I do not think that it either matches precisely the case pleaded or is necessary in view of the prior declarations. It certainly reflects a process of reasoning about these matters which finds its way into the justification for declarations one to three and for any injunction which is to be granted. So I decline to make that declaration.
3 In my opinion, an injunction is appropriate in a case of this character. Section 80 is framed so as to grant a wide discretion to the Court. It is not necessary to find the existence of the sort of threat which may be necessary for the grant of an injunction in the general jurisdiction of the Court. It has been customary for negative injunctions to be granted where misleading conduct has been appropriately identified.
4 I have been pressed with the decision of the Full Court in BMW Australia Limited v Australian Competition and Consumer Commission [2004] FCAFC 167; (2004) 207 ALR 452 particularly, paragraphs [36] to [39] inclusive. In my opinion, that decision, together with the passage from the decision of Gummow, Hayne and Heydon JJ in Rural Press Ltd v Australian Competition and Consumer Commission in the High Court (2003) 78 ALJR 274; 203 ALR 217 at paragraphs [89] to [90], make it particularly important to identify with some precision that conduct which has been held to be in breach. Once that is satisfactorily done, then there is no reason for not granting an injunction. Misleading conduct should not be occurring and the injunction should be framed to prohibit clearly only that which is misleading. If there is a problem, then the injunction should not be granted in that form.
5 The applicant seeks an injunction with a duration with five years. It is put on behalf of Telstra that, in a practical sense, it is not necessary to go beyond a two year injunction. It is said that all that is being added is the penalties for contempt of Court. I am also asked to take into account that the use of zero dollar advertising is, on the evidence in the case, common. It is submitted that Telstra should not be singled out. In my view, where you have properly identified misleading conduct, granting an injunction does not simply add a potential penalty, it marks out and defines for the parties, and particularly for the respondent, that which can and cannot be done. I find it difficult to understand why, that being the case, the injunction should not be made permanent, bearing in mind that s 80 (by contrast with the position in equity) specifically contemplates that there may be variation to an injunction in the future (see s 80(3)). As I would have been inclined to make the injunction permanent, it would follow as a matter of logic that I find no problem with a five year injunction and I do not.
6 That then leads to a consideration of the text of the injunction. I agree with the addition of the words, 'being offered for sale by or on behalf of Telstra'. I do not agree with having both (a) and (b) in the injunction. I think it will just confuse everybody and make it difficult to comply with. It does not particularly concern me whether you take price and define that or take cost and define that; or if you say price you can say: 'meaning thereby the cost of the purchase of the bundle'. That is what has been argued in this case and I do not want to go any further than I need to. For the reasons I have advanced, the injunction should be very precise. Then there is the question as to the use of the symbol in the substantive part of the injunction. I do not think that it should be there.
7 In my opinion the proposed order 5, that is, the proceedings otherwise be dismissed, is appropriate. I indicated in the course of argument some concern about it but there is a point in Mr Scerri's argument that relief was sought going beyond that which is to be granted.
8 I am disposed to grant a suspension of the injunction. I have read the affidavits and, whilst there is some force in Mr Wright's submissions about this, I am satisfied that, given the extent of the operations of Telstra, it is reasonable to order a suspension up to and including 23 September. I expressly do not take into account in that regard the arguments based upon what Telstra's competitors are said to be doing. The suspension, of course, does not mean that Telstra is free to continue to break the law in the meantime as if it has received some sort of blessing. What will be will be, but the injunction does not run in the meantime.
9 The costs of today will be costs in the proceedings. Order 6 is that Telstra will pay the applicant's costs.
10 (Short minutes to give effect to these rulings were later handed up and formal orders made.)
I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.