After round one: Coonan 1, Telstra 0

• Telstra's application/tender was rejected at a preliminary stage, because it failed 3 out of 8 'essential deliverables'.  Telstra didn't even argue that their tender met the essential deliverables, so it's hard to see how they could claim they were prejudiced by what happened after the preliminary stage;
• The crux of the dispute was that the government announced it would give the successful tenderer (ie Telstra's competitor) an additional $328M on top of the $600M which was on offer under the broadband program in question.  Internal Telstra emails (at [29]) show that when Telstra heard on the grapevine that an extra ~$300M was available, they weren't happy about it because they 'had trouble in spending' the original $600M!!!  Don Pinel, the Executive Director, Transformation, for Telstra Country Wide (i.e. Telstra's regional services group) said this 'Means we have to get even stronger on the inappropriate use of Taxpayer funds and the negative impact of this on investment.'  That is to say, Telstra would have difficulty finding things to spend the extra money on, but they don't want their competitors getting it, so they'll harp on about misuse of taxpayer funds.
• The subject line of the above emails was 'RE: Australian Foreign Aid for Singapore'.  Telstra have been banging the 'Singapore' drum loudly and often in the media and on their anti-competition propaganda site.
  
• A draft internal memo circulated within Telstra, entitled 'Broadband Connect - Legal Options' (at [38]), which:
• Shows that although Telstra could not give copies of documents obtained by discovery to the media, they were counting on media interest in the trial itself;
• Said that '[g]iven the timing and the broader context, we are taking the view that so long as we have claims that are arguable and will not be "laughed out of court", we should run them, even if prospects of success are not great.';
• Shows that Telstra were hoping to have the funding decision set aside, because doing so would delay re-making the decision until after the election, and Telstra doubted that a Labor government would continue the broadband funding scheme.

• A memorandum prepared for Telstra's 'Policy Council' (at [28]) included reasons why Telstra should submit a tender, including that '[t]he Government will still distribute a substantial amount of funding probably on very favourable terms. This will lead competing infrastructure [sic] and pressure on product margins' and that '[a] better option than not participating may be to have the Government reject our offer.'

It is certainly arguable that part of Telstra's motivation for bringing the current application is to achieve some measure of publicity for its cause and its criticism of what has been referred to as foreign aid for Singapore, as the corollary of a grant pursuant to the Infrastructure Programme to Optus or an Optus related entity.  One could certainly not characterise Telstra's application as an abuse of process. However, its legitimacy, in terms of its necessity, is in some doubt, given the matters to which I have referred.