Weir v Telstra Limited (No 2)

Weir v Telstra Limited (No 2) [2026] FCA 19 is a Federal Court procedural decision in a broader dispute involving alleged sexual harassment, breach of confidence and misleading or deceptive conduct. The Court was not deciding whether those claims were made out. It was deciding two interlocutory applications about how the case should be tried.

The applicants asked for a jury trial. Telstra asked for liability to be heard separately from loss and damage. The Court dismissed both applications. For business readers, the most useful feature of the case is the pleaded misleading or deceptive conduct claim against Telstra, which was based on complaint-handling communications rather than advertising.

The Court's overview describes a highly personal dispute. The applicants, Darren and Michelle Weir, and the second respondent, Dipjit Bose, were neighbours. The Weirs alleged they were sexually harassed by Mr Bose while Telstra was his employer and while Telstra provided them with telecommunication and information services.

The sexual harassment claim was based on a series of advertisements allegedly published between 27 September and 17 November 2017. The Court said those advertisements were alleged to have falsely suggested that the Weirs were willing to engage in unsolicited sexual acts at their home. Several advertisements allegedly included their home address and phone numbers.

The proceeding also included a breach of confidence claim. That claim was founded on the inclusion of the Weirs' personal information in the advertisements. The Court recorded that it was uncontroversial that the Weirs had provided personal information to Telstra, and that at the interlocutory hearing they placed emphasis on Australian Privacy Principles 6 and 11.

The consumer law aspect of the case was different. It did not concern public advertising or promotional claims. It concerned Telstra's investigation of complaints made by Mrs Weir in 2014, 2016 and 2018 about blank text messages she received from a person she later discovered was Mr Bose. The Court said Mrs Weir had concerns about her and her family's safety and privacy as a result of those messages.

According to the pleaded case summarised by the Court, the Weirs alleged Telstra represented that the complaints had been thoroughly investigated, were not caused by a Telstra employee, and that there was no reason for Mrs Weir to be concerned, insist that action be taken against Mr Bose, or pursue further action. Those alleged representations were said to contravene section 18 of Schedule 2 to the Competition and Consumer Act 2010 (Cth), with damages sought under section 236.

None of those substantive allegations were decided in this judgment. The Court was dealing only with two procedural applications filed on the same day in March 2025.

The first issue was whether the proceeding, or an issue of fact in it, should be tried by jury under section 40 of the Federal Court of Australia Act 1976 (Cth). The Court noted that a civil jury trial in the Federal Court is a departure from the ordinary course, because the ordinary position is trial by judge alone under section 39.

The applicants argued that this was a unique and unusual matter involving moral and social values of the community. They said a jury was especially suited to deciding questions of reasonableness and community standards arising in the sexual harassment claim, the breach of confidence claim, the misleading or deceptive conduct claim, and the assessment of damages and relief.

The second issue was whether liability should be heard separately from loss and damage under rule 30.01 of the Federal Court Rules 2011 (Cth). The Court said a separate question is also a departure from the ordinary course that all issues of fact and law should be determined together. Telstra argued that splitting liability from damages would save time and cost because, in its view, evidence on loss and damage would likely be confined to expert medical and property valuation evidence and would not overlap with liability evidence.

The Court therefore had to decide whether either departure from the ordinary course was justified in this particular case.

The Court dismissed the jury application. Longbottom J said the party seeking a jury must persuade the Court, by reference to the particular case, that the ends of justice make it expedient to depart from the usual mode of trial by judge alone. General arguments about the virtues of jury trials are not enough.

The Court gave three main reasons. First, the principal issue relied on by the applicants in support of a jury, being the objective element in the sexual harassment definition in section 28A(1), was not actually in issue on the way the case stood. Telstra admitted in its defence that if Mr Bose posted the advertisements, that conduct would constitute sexual harassment within the meaning of section 28A. Mr Bose, through counsel at the hearing, also accepted that if it were established that he published the advertisements and that the conduct was of a sexual nature and unwelcome, then the reasonable person criterion would be satisfied. So the tribunal of fact would not need to decide that third element.

Second, the Court said judges of the Federal Court routinely determine questions of reasonableness and normative standards. The judgment expressly referred to misleading or deceptive conduct cases as an example of matters where judges interpret statements from the perspective of the relevant class of persons and assess conduct by reference to community or commercial standards. The Court held that the various reasonableness questions in this proceeding, whether viewed individually or together, were not so unique or unusual as to justify a jury.

Third, the Court was not persuaded there was a real issue about changing community standards or human experience that required a jury to determine relief or damages. The Court acknowledged that such issues may be suitable for a jury in some cases, but suitability was not the test. The question was whether the ends of justice made a jury trial expedient, and the Court held they did not.

The Court also dismissed Telstra's application for a separate question on liability. The judgment sets out the general principles for split trials, including that they are a departure from the ordinary course and should be ordered only where just and convenient, consistently with the overarching purpose in section 37M of the Federal Court of Australia Act. The orders clearly record that the application was dismissed and that the parties were to be heard as to costs.

However, the available text cuts off during the detailed discussion of Telstra's arguments and the applicants' response on the separate-question application. So while the result is clear, the full reasoning on that issue is not fully available here.

The most practical point for business owners is that the alleged section 18 conduct was tied to complaint handling. That is easy to miss if you focus only on the more dramatic surrounding allegations. The pleaded case was that Telstra's investigation responses themselves conveyed representations to Mrs Weir. In other words, the legal risk was said to arise from what the business allegedly communicated after a complaint was made.

That matters because many businesses think of misleading or deceptive conduct as a marketing problem. This case is a reminder that operational communications can also be representations. A support email, a call centre script, a complaint outcome letter, or a reassurance given by a manager can all be scrutinised later if the facts are disputed.

The pleaded representations described by the Court are a useful checklist of high-risk language. Saying a matter has been thoroughly investigated suggests a certain level of process and completeness. Saying it was not caused by an employee suggests a concluded factual finding. Saying there is no reason for concern or no basis for further action can imply that the business has ruled out relevant risks. If those statements are later shown to have lacked a proper basis, they may become central to a consumer law claim.

The case also shows how privacy, staff conduct and customer communications can overlap. The same factual matrix may produce allegations about misuse of personal information, failures in supervision, vicarious liability, and misleading statements to the customer. Businesses should therefore avoid siloed responses where customer service, legal, privacy and HR each act separately without a coordinated record.

From a litigation management perspective, the judgment also shows that the Federal Court may prefer to hear all issues together rather than splitting liability from damages. That can affect how a business prepares witnesses, documents and expert evidence. If a split hearing is refused, the business may need to be ready for a more integrated trial.

If your business is trying to reduce the risk of a similar dispute, focus on documents and conduct rather than slogans. Courts often look at what was actually said, what was actually checked, and what the business could prove at the time it communicated with the customer.

Start with complaint records. Make sure the initial complaint, the issues raised, the systems checked, the staff consulted and the outcome communicated are all recorded in a way that can be followed later. If the business reaches only a provisional view, say so. If the business cannot yet rule out employee involvement, do not imply that it has. If the business is still investigating, explain the next steps and timing rather than giving broad reassurance.

Next, review access to personal information. The judgment records that the broader case included allegations tied to the use of the applicants' personal information and reliance on Australian Privacy Principles 6 and 11. Even though this decision did not determine those issues, it is a reminder that customer data handling and complaint handling can become part of the same dispute. Access controls, logging, supervision and escalation pathways matter.

Finally, train staff on the difference between empathy and factual conclusion. A customer can be acknowledged and supported without the business making unsupported representations. For example, staff can say the matter is being investigated, that the business takes the complaint seriously, and that the customer will receive an update after specific checks are completed. That is often safer than making definitive statements too early.

Is this a precedent on whether complaint responses breach section 18? Not in the sense of a final merits ruling. The judgment identifies the pleaded section 18 case and discusses it only in the context of whether a jury was needed. It does not decide liability.

Does the case say every inaccurate complaint response is misleading? No. The Court did not decide that. The practical point is narrower: complaint responses can contain representations that may later be challenged.

Does this case turn on privacy law or consumer law? The broader proceeding involved several causes of action, including sexual harassment, breach of confidence and misleading or deceptive conduct. The procedural decision touches all of them because it concerns how the trial should be run.

Should businesses expect split trials if damages evidence is complex? Not automatically. The Court repeated that separate questions are a departure from the ordinary course and must be shown to be just and convenient in the particular case.

What is the safest practical response when a complaint is still being investigated? Be accurate about process, avoid overstatement, and communicate only what the business can presently support with records and reasonable inquiry.

The judgment is dated 10 February 2026. The hearing date recorded in the judgment is 7 July 2025. Both interlocutory applications were filed on 28 March 2025. The Court dismissed both applications and directed that the parties be heard as to costs.

This page summarises a procedural ruling only. It should not be read as resolving the underlying allegations in the proceeding.

The source is the Federal Court of Australia judgment in Weir v Telstra Limited (No 2) [2026] FCA 19. The available text clearly records the parties, the nature of the pleaded claims, the two interlocutory applications, and the orders dismissing both applications.

The available text is cut off during the separate-question discussion. Because of that, the result on that application is clear but the full detailed reasoning is not fully visible here. Any publication or advice that depends on the finer reasoning for refusing the split trial should be checked against the complete judgment.