Justice Jonathan Beach said there was a “possibility” of joining the Australian Communications and Media Authority’s (ACMA) proceedings against Optus over the September 2022 data breach with the class action being run by Slater & Gordon.

ACMA’s case alleged Optus failed to protect the confidentiality of its customers’ personal information as required under the Telecommunications (Interception and Access) Act 1979 when hackers gained access to its systems between 17 and 20 September.

Around 9.8 million former and current Optus customers were affected, including the 10,000 whose details were leaked.

The class action was brought by a school teacher and government employee whose personal information was caught up in the breach.

Counsel for ACMA and Optus appeared before the Federal Court on Friday (14 June) morning, originally to discuss ACMA's filing of a statement of claim as a proposed “shortcut” to filing a pleading.

However, Justice Beach said there were “advantageous” reasons for the pleadings, primarily because there would likely be “overlapping issues between this case and the class action”.

“I understand there are issues of onus …and who goes first on what issues, but presuming those issues can be resolved, then it is appropriate for one judge to deal with them,” Justice Beach said.

Counsel for Optus in the ACMA matter, Steven Finch SC, said the parties were at a disagreement over which parts of the concise statement should be confidential, but Justice Beach’s proposal of joint proceedings “might push that issue down the road a bit”.

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“We are content to be governed by the same [confidentiality] regime that eventuates in the class action,” Finch said.

The ACMA hearing was immediately followed by a case management and interlocutory hearing in the class action proceedings.

Appearing on behalf of Optus in the class action matter, counsel Katherine Richardson KC said there has been a “very large amount of agreement” between the parties and “overwhelmingly, the confidentiality agreement” has been agreed upon.

But Richardson added there were still technical issues to “iron out”, so the confidentiality agreement could not be finalised.

Justice Beach took issue with this and was critical that material had been sent to his chambers late on Thursday.

“I haven’t had this case before me for weeks and then, at the very last minute, I get floods of material raising all these technical issues.

“Why was it all left to the night before?” Justice Beach asked.

Richardson agreed it was “regrettable”, but the parties have “been negotiating for some time” to come to the agreement.

Justice Beach initially proposed settling the technical issues but instead said he would refer it to a judicial registrar when counsel for the class action, William Edwards KC, explained some of the issues.

Optus originally had a claim of legal professional privilege over a Deloitte report into the hack, but this was rejected by Justice Beach in a judgment handed down last November.

Justice Beach said that “endeavours to cloak the Deloitte review with legal professional privilege” by Optus came too late.

Optus has appealed the ruling.