My Day in Court

Today there was a directions hearing in the matter (File number NSD1515/2007) of Telstra taking the Minister for Communications, IT and the Arts to court to have almost all the documents involved in awarding the Broadband Connect funding to OPEL. Telstra's biggest gripe seems to be that the value available for tender was increased through the process and that they didn't get the opportunity to bid for this amount.

Having nothing else more important to do I went and had a squiz. Proceedings started with Justice Graham explaining to the court that he holds Telstra shares and T3 installment receipts, and that he has in the past represented Helen Coonan in an honorary capacity. He left it open to parties to file motions in relation to these declarations.

Counsel appeared for Telstra and the Minister, but also for OPEL who indicated that the documents applied for had a great deal of OPEL confidential information, and that OPEL may want to be heard on the question of relief or, if relief was granted, the terms of the access by Telstra to the documents.

The judge early in the proceedings asked of Telstra's counsel whether there was any likelihood of the application being amended, to which Telstra's counsel replied that the application had been subject to detailled preparation. The judge however still included in the timetable a time by which Telstra can submit an amended application. To the untrained observer it looked like a big hint that the terms of the application had been written too broadly and would fail as a "fishing" expedition.

The next question on timing was whether at hearing there would be evidence introduced or not, and the suggestion for counsel for the Minister that this might involve cross examination. Telstra indicated its only evidence would be the affidavit by Paul Smith filed by Telstra. This affidavit is not currently available to anyone other than the parties (until it is "read" in court) and Telstra also indicated it includes Telstra confidential information. (Note there are eleven Paul Smith's in Telstra - the one who has sworn the affidavit is probably Manger, Business Development & Support, Telstra Country Wide).

For the record, Telstra is applying under Order 15A rule 6 of the Federal Court Rules. These read:

Discovery from prospective respondent

Where:
(a) there is reasonable cause to believe that the applicant has or may have the right to obtain relief in the Court from a person whose description has been ascertained;
(b) after making all reasonable inquiries, the applicant has not sufficient information to enable a decision to be made whether to commence a proceeding in the Court to obtain that relief; and
(c) there is reasonable cause to believe that that person has or is likely to have or has had or is likely to have had possession of any document relating to the question whether the applicant has the right to obtain the relief and that inspection of the document by the applicant would assist in making the decision;
the Court may order that that person shall make discovery to the applicant of any document of the kind described in paragraph (c).

A lay reading of this is certainly that Telstra will need to more closely refine the scope of the documents to which access is sought. That would include outlining a little more clearly what the action they think they might be bringing might be (while I have some notes on this from today's proceedings thet didn't make sense in the end).

There is a whole sequence of orders - but the bottom line is that the hearing itself starts on 13 September and 3 days have been set aside for it. Oh what fun!