Clear Networks Pty Ltd, in the matter of Clear Networks Pty Ltd [2021] FCA 454

OTHER MATTERS:

The prospective applicant undertakes to the Court: (a) to submit to such order (if any) as the Court may consider to be just for the payment of compensation, (to be assessed by the Court or as it may direct), to any person, (whether or not that person is a party), affected by the operation of the order or undertaking or any continuation (with or without variation) of the order or undertaking; (b) to pay the compensation referred to in (a) to the person affected by the operation of the order or undertaking; (c) to commence a proceeding in relation to the subject matter of this application by 4.00pm 30 April 2021; and (d) to pay to the Registry the filing fee of this application.
The court read the following affidavits - (a) Robert Jan van der End dated 29 April 2021; and (b) Erhan Karabardak dated 29 April 2021.

WHEELAHAN J: 1 The applicant claims urgent interlocutory relief against the respondent to enjoin the respondent from tampering, or interfering with a telecommunications facility operated by the applicant, or otherwise preventing or interfering with the applicant exercising powers under cl 7 of schedule 3 of the Telecommunications Act 1997 in respect of the facility. 2 The applicant is the holder of a carrier license under s 56(1) of the Act, and claims that it has a statutory right to maintain its telecommunications facilities under cl 7 of schedule 3 of the Act. The applicant is currently in dispute with the respondent relating to money alleged to be due to the respondent in respect of its use of the site at which its telecommunications facility is located. The Court received on this application evidence in the form of an affidavit of Robert Jan van der End dated 29 April 2021 together with the annexures to that affidavit. The affidavit evidence deposes to the interference with electric power to the site on 21 April 2021, and a written threat by the respondent made through its solicitors on 27 April 2021 to disconnect the power from the site at 4.00 pm today unless a sum of money, which is disputed by the applicant, was paid. 3 The Court also received into evidence an affidavit of a legal practitioner for the applicant, Erhan Karabardak, dated 29 April 2021, which annexed two emails to the legal practitioners for the respondent giving them notice of this urgent application, including by forwarding to the legal practitioners for the respondent an invitation to join the hearing on the Microsoft Teams platform. When the hearing of the matter resumed today shortly before 3.00 pm in Courtroom 9B in Melbourne, the respondent was called and there was no appearance. I determined to proceed with the application as an ex parte application made on behalf of the applicant. 4 I am satisfied for the purposes of this application, which, as I have mentioned, I have heard ex parte, that there is a serious question to be tried in relation to the applicant's exercise of statutory rights to maintain the telecommunications facility. I have had regard to the decision of Kunc J of the Supreme Court of New South Wales in NBN Co Limited v Pipe Networks Pty Ltd [2015] NSWSC 475, and in particular at [34] - [40], in arriving at the conclusion that there is a serious question to be tried as claimed by the applicant. 5 Having regard to my satisfaction that there is a serious question to be tried, albeit formed only for the purposes of this interim application, and the damage that the applicant, and third parties might suffer should power to the applicant's telecommunications facility be disconnected as the respondent has threatened, I am satisfied that there is at least an arguable case that damages would not be an adequate remedy should the applicant establish its claim at trial. I am therefore satisfied that the balance of convenience favours the grant of an interim injunction so as to prevent the threatened disruption to the applicant's telecommunications facility. That interim injunction shall remain in place until 4.00 pm, Wednesday 5 May 2021, or further order. The injunction will be made on the basis of undertakings, including an undertaking that the applicant will commence a proceeding, and the usual undertaking as to damages. The orders made by the Court will contain a penal notice as required by the Rules. I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wheelahan.

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