Conclusions on additional evidence
31 It is important to identify the nature of the Optus's present application. Optus does not seek a discharge of the interlocutory orders. Optus accepts for the purposes of this application that it should not be entitled to block calls from its customers to any person who wishes to receive a call in Australia on a Pivotel handset. Optus, however, wants to be able to continue to identify and block numbers it has verified are being used for two stage dialling and music streaming and the like. The only way Optus can verify the use of a number is to call and check each number as it emerges. This is a laborious process and runs the risk of error. Accordingly, the same practical problem that confronted the parties (and me) on 23 December 2009 remains. In the factual context as then presented I was satisfied that it was impractical and inappropriate to exclude from the interlocutory orders any capacity on Optus's part to block numbers it had verified to its satisfaction were used for two stage dialling and music streaming and the like. I also accepted Pivotel's submission that Pivotel should not have to identify the numbers allocated to the Mediatel interests as the price of obtaining interlocutory relief.
32 The factual context, at least as presented, has changed, however. As explained below, I consider the factual context now presented to be fundamentally different from that put on 23 December 2009.
33 I accept that, if this were a case in which Optus had been given an opportunity to present its evidence of what it said to be the true position and that evidence had simply failed to come up to proof, there could be no basis for reconsidering the form of the interlocutory orders made on 23 December 2009. To do so would be inconsistent with the interests of justice, particularly the interest in the finality of judicial decisions, even interlocutory decisions. But that is not what happened here.
34 The application was brought, heard and determined on 23 December 2009. It is true that Optus, by blocking access to the whole Pivotel network on 21 December 2009, was the cause of the urgency with which the application was brought and determined. That, however, does not change the fact that the legal representatives of both parties were operating subject to severe time constraints and the difficulties in obtaining instructions which those constraints inevitably present.
35 More importantly, the thrust of Pivotel's case on the balance of convenience was that Optus's blocking of all calls to the entire Pivotel network was a manifestly disproportionate response to a commercial dispute involving a relatively small part of the business between Optus customers and Pivotel customers. In such a context, consistent with the conclusion in [33] of my reasons for judgment, any attempt to excise that relatively small part of the business from the interlocutory order would be unjustified and impractical.
36 The evidence now available is irreconcilable with the essential thrust of the case which Pivotel put on 23 December 2009:
• If a telecommunications business is measured in terms of the numbers of minutes of calls then it is not the case that the "vast majority" of Pivotel's business has nothing to do with the Mediatel (or Media Ocean) numbers. On the basis of minutes of calls, nearly the whole of Pivotel's business relates to the Mediatel (or Media Ocean) numbers. Pivotel's submission that "most" of the traffic from Optus customers to the Pivotel network "has nothing to do with the MediaOcean traffic", accordingly, was incorrect.
• The 8000 out of a total of 15000 users of Pivotel's satellite services, described by Pivotel as legitimate users of telephony services even on Optus's case, represent a tiny fraction of the calls from Optus customers to the Pivotel network.
• Mr Chuah's estimate in an internal Optus document that 99.999% of all traffic from its customers to the Pivotel network involved the two stage dialling process or music streaming, while not supported by any reasoning on the face of the document, was not "completely illogical" and did not ignore the reality that Pivotel has 8,000 satellite subscribers. The estimate was correct.
• In terms of numbers as opposed to minutes of calls, the Mediatel interests do not represent "a very small number of the total number of Pivotel numbers". Pivotel has allocated about 4000 out of its 15000 numbers (or 26%) to the Mediatel interests.
• In terms of both volume of traffic and allocated numbers, the proportion of Pivotel's business associated with the Mediatel interests (or Media Ocean numbers), and Optus's actions to ensure it does not carry that traffic, cannot be characterised as taking a "sledgehammer" to a "walnut".
• While Optus has been carrying the Pivotel traffic since 2005 it cannot be said that Optus has "no objection" to carrying the "vast majority" of that traffic. The traffic which Optus does not wish to carry, on the evidence now available, is virtually the whole of the traffic (99.94%) from Optus customers to the Pivotel network.
37 I am satisfied that the conditions for the variation of my interlocutory orders are met.
38 First, there is new material available that was not reasonably available on 23 December 2009. The new material is that nearly all of the traffic from Optus customers to the Pivotel network involves calls to the very services to which Optus objects (two stage dialling and music streaming), being services which have nothing to do with a person in rural Australia dependent on a satellite telephone being able to receive calls from an Optus customer.
39 In contrast to the real concerns I had on 23 December 2009 about the public interest in maintaining the connectivity of all telecommunications networks in Australia, I see no public interest element in ensuring people can access two stage dialling or music streaming services. The public interest element appears to be limited to Mr Sakker's evidence of some form of cross-subsidy from revenues generated by those services to the provision of Pivotel's satellite services. I find that evidence vague and unsatisfactory.
40 Similarly, the possibility of a number dedicated to two stage dialling and music streaming and the like being used for the purpose of receiving an ordinary telephone call in Australia, on the evidence, is highly speculative. While technically possible, the fact is that Pivotel allocated some 4000 numbers to the Mediatel interests (itself new evidence not available on 23 December 2009). The Mediatel interests have a commercial arrangement with Pivotel that does not contemplate use of the 4000 numbers for ordinary calls. There is no arrangement in place covering the making of any ordinary call.
41 I also do not consider the dispute between the parties about the legitimacy of Pivotel's conduct to be material. Subject to the Telecommunications Act and the Trade Practices Act and any other legislation regulating its relationship with its customers, Optus can make any commercial decision it sees fit. If Optus does not want to carry certain types of traffic, and has no legal obligation to do so, then that is a matter for Optus. The fact that Pivotel's conduct in providing numbers for two stage dialling and music streaming services may be lawful does not mean that Optus must carry that traffic. No submission has been made that Optus has any obligation to do so other than (relevantly) by reason of the competition provisions of the Trade Practices Act. For the purposes of this application Optus does not challenge my conclusion that there is a serious question to be tried in respect of alleged contravention of the competition rule by reason of the blocking of all calls to the Pivotel network on 21 December 2009.
42 Second, there has been a material change in circumstances since the making of the orders on 23 December 2009. The material change in circumstances, as Optus submitted, is that it has now had the opportunity (through a laborious process of checking) to prepare evidence that undermines the essential thrust of Pivotel's case that the vast majority of Pivotel's business has nothing to do with the numbers allocated to the Mediatel interests. I do not find persuasive Pivotel's submission that the evidence available on 23 December 2009 disclosed that some 3629 of Pivotel's 15000 numbers were allocated to the Mediatel interests. That figure is derived from calculations based on a graph in the report to Optus which Mr Chuah prepared. The graph is ambiguous. More to the point, and as already noted, the essential thrust of Pivotel's case was that the numbers allocated to the Mediatel interests were but one small part of its business.
43 Third, there are exceptional circumstances that warrant reconsideration of the orders I made on 23 December 2009. The exceptional circumstances are that I accepted the thrust of Pivotel's case on 23 December 2009 that Optus had taken a sledgehammer (blocking access to the entire Pivotel network) to crack a nut (the small proportion of Pivotel's business associated with the Mediatel interests). As it turns out the true position is virtually the reverse. While Pivotel has allocated 8000 out of its 15000 numbers to satellite customers they represent a tiny fraction of the calls to the Pivotel network. Nearly all calls from Optus customers to the Pivotel network are to the services to which Optus takes commercial objection. Moreover, more than 90% of all calls from all carriers to the Pivotel network are to those services.
44 Fourth, as a matter of discretion, the justice of the matter requires that Optus be allowed to revisit the matter of the form of the order, specifically the exclusion of its capacity to continue to block calls to numbers associated with two stage dialling, music streaming and the like. In short, I refused to exclude from the interlocutory orders any capacity for Optus to block calls to numbers associated with these services having regard to an apparent factual context which I am now satisfied was materially inaccurate. Further, my apprehension of the true factual context was not a product of Optus's evidence merely failing to come up to proof. It was a product of the way in which Pivotel put it case on 23 December 2009.
45 The additional evidence on which Pivotel relied does not persuade me to the contrary. I accept that the evidence now available shows that the Mediatel numbers form a substantial (indeed, the overwhelming) part of Pivotel's business. I accept that Pivotel will suffer loss if Optus blocks its customers from calling those numbers. I accept also that Optus's concerns about the impact on it can probably be characterised as a loss of opportunity which has a character different from the type of direct loss Pivotel will suffer. But loss is not the only relevant factor. Pivotel has made a commercial decision to structure its business in a particular way. Subject only to the constraints of the law, Optus has the same rights to structure its business in any way it sees fit. In the circumstances as presented on 23 December 2009 an interlocutory order having a mandatory effect (that is, requiring Optus to continue to carry certain traffic) was appropriate. In the circumstances as now disclosed, and as identified above, I cannot reach the same conclusion today
46 For these reasons, and on the basis of the facts as I presently understand them, I am satisfied that Optus should be able to continue to block calls to Pivotel numbers used for two stage dialling and music steaming services and the like, pending final resolution of this dispute. The issue remains the practical one of how this may be achieved.
47 In circumstances where: - (i) Pivotel has allocated some 4000 numbers to the Mediatel interests and can identify those numbers, and (ii) there is no connection between the 4000 or so numbers used for two stage dialling, music streaming and the like and the numbers allocated to the 8000 satellite subscribers other than the alleged financial cross-subsidy and the technical capacity for the diversion from the Mediatel numbers to be lifted at any time, my present view is that the price of interlocutory relief in Pivotel's favour should include identification of the 4000 or so numbers allocated to the Mediatel interests so that Optus is able to comply with the interlocutory orders yet continue to block calls to the numbers used for two stage dialling, music streaming and the like without risk of breach of the orders. However, and as indicated below, I accept the joint submission of the parties that if satisfied the interlocutory orders should be varied (which I am) the working out of the terms of the orders should be the subject of further submissions.
48 I am reinforced in my conclusion that the orders should be varied by the other contention which Optus made. Pivotel's pleading defines the numbers allocated to the Mediatel interests as part of Pivotel's satellite numbers. Definition is one thing. Use is another. On the evidence before me it appears that the numbers allocated to the Mediatel interests are not used as part of a satellite telephone service as that term would be understood by any person without telecommunications expertise. Calls to a Mediatel number, apparently, are not received by any person in Australia. Indeed, on Mr Sakker's evidence, Pivotel itself holds some of the handsets associated with the numbers allocated to the Mediatel interests. Pivotel can do so because a call to those numbers is automatically diverted to a two stage dialling process (for international calls), music streaming or some other like service such as "sms and win" competitions. In other words, it appears to be the case that no holder of a Pivotel handset in Australia with a number allocated to the Mediatel interests is using the handset to receive a telephone call from any other person including any Optus customer.
49 In these circumstances, apart from the evidence about cross-subsidy from one part of the Pivotel business to another and the technical capacity for the diversions to be lifted at any time, there is no rational basis in the cause of action pleaded for breach of the competition rule pleaded against Optus, to require Optus to continue to carry traffic on its network to numbers used for a two stage dialling process (for international calls), music streaming or some other like service. The interlocutory orders are too wide and thus work an injustice against Optus. They must be varied to remove the injustice.
50 As noted, both parties submitted that if I determined that the interlocutory orders should be varied I should hear further submissions about the form the variation should take. I agree. I propose to give the parties an opportunity to consider these reasons before hearing from them further about the form of the orders as required.
I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot.