Optus, Telstra stall on access agreement case

Telcos "disagree on anything and everything" in long-running dispute

A long-standing dispute between Telstra and Optus over the misuse of confidential market share information is set to continue into the foreseeable future, with the Federal Court ordering this week that the parties determine a possible resolution by June.

The case, first filed in the Federal Court in 1997, involved allegations Telstra’s wholesale arm had shared Optus’ confidential market share information with the incumbent telco’s retail arm and senior management, including then chief executive, Frank Blount. Over the past 13 years, several amendments to Optus’ motion alleged Telstra had shared such information, which it had received under an access agreement between the two companies, between at least 1993 and 2000, and possibly up to 2003.

The 13-year-old case has outlived two of the presiding judges who have died without reaching a final settlement on the case.

Telstra was found to have misused the information in a judgement handed down by current presiding judge Justice Richard Edmonds in 2009, but the exact documents and costs to be revealed by the telco have remained up for discussion.

In multiple court sessions held last year following the judgement, both parties argued over what types of documents would be provided by Telstra and how far back these would extend. A reported 2 million documents were at one point up for discussion, which would be retrieved from archived tape backups dating back to 1995, as well as some 227 boxes of physical documents and 56 CDs, floppy disks and Zip disks.

Telstra wants Optus to provide documentation of customers leaving the telco as a result of the document sharing, effectively asking for proof of loss.

The two have continued to argue as to when and how the ultimate financial compensation to Optus would be arranged, with Justice Edmonds pointing out the parties’ seeming willingness to “disagree on anything and everything”.

Though both parties sought to have the other to pay additional court costs, Justice Edmonds this week ordered each pay their respective amount for ongoing litigation. He also found an Optus investigation into its own documents and potential financial compensation as a result of the 2009 judgement would be “premature” without the proper time awarded for it to investigate those documents yet to be handed up by Telstra.

“Optus should not be required to give discovery until such time as it is in a position to particularise its case for relief, in all its forms; only then will the Court be in a position to make an informed assessment of the scope of discovery that should be given,” the judgement reads.

The telcos are due to inform the Federal Court of any agreement reached privately by 3 June this year.

An Optus spokesperson said the telco was pleased at the outcome but that it was another example of the need for Telstra's structural separation.

"This is another example of anti-competitive behaviour from Telstra," they said. "If an effective form of separation was in place this illegal activity would never have happened."

A Telstra spokesperson said the telco remained open to a "sensible resolution" and that both legislative and company measures had been put in place since the court case first began that would prevent further reoccurences.

"Telstra Wholesale is located separately to other Business Units and there are processes in place to ensure the information related to wholesale customers and their end-users is not accessed inappropriately," they said.

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