The Federal Court will examine a Telstra proposal for the discovery of financial records and other documents that could determine the extent of a compensation claim by rival Optus in a 14-year stoush that has even outlasted some of the court's judging roster.Optus won the right to seek a percentage of Telstra's profits in damages back in March after the Federal Court found Telstra breached confidentiality when it used Optus' call information to prepare market share reports.
Optus alleged the reports "formed the basis of marketing and advertising attacks in the long distance call market to lure Optus customers back to Telstra and gain market share".The latest chapter in the case - which was filed in 1997 - was aired this week around a disagreement between the telcos over the proposed "categories" and "boundaries" around discovery of documents that could be up to 17 years old.Legal representatives for Telstra and Optus submitted "competing ways forward" to Justice Richard Edmonds. There was "very little common ground [put forward by either side] in terms of the boundaries of discovery," Telstra's legal team said."We've accepted the types of documents that are for discovery," Telstra's lawyers said."Certain financial records at Telstra will have to be put into the ring. But it's the boundaries of the discovery that's still an issue."The nature of the discovery sought goes back to 1993. Our client submits that it is worthwhile investing the time upfront to get the ambit and content of the discovery direction and focus right, so that time, cost and delay can be eliminated from that process."Telstra sought consideration of a proposal it had prepared on the logistics of providing discovery in the case. It also proposed a round of mediation in the event its proposal didn't "narrow the dispute" enough before it was due back before the Federal Court next month.But the mediation proposal faced criticism from both Optus and Justice Edmonds."Our client's position is unenthusiastic at best on whether mediation will resolve these issues," Optus' lawyers said.Justice Edmonds said he was likewise "pessimistic"."Your client and the other are going to fight like cats and dogs. They have done thus far," Justice Edmonds said."This matter has been going on for years through various judges of this court, some of whom are now dead. And neither side has given an inch.""And it is why we say invest time to get the settings of discovery right," Telstra's legal team responded.Neither side objected to Justice Edmonds reviewing Telstra's proposal and Optus' response to it to determine "how far away the parties" were from agreement.The matter was listed for further directions in August.
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