Australian Competition and Consumer Commission v Telstra Corporation Limited ACN 051 775 556 [2009] FCAFC 68

Australian Competition and Consumer Commission v Telstra Corporation Limited ACN 051 775 556 [2009] FCAFC 68

The primary Judge erred in construing s 152AQB(2) of the Trade Practices Act 1974 (Cth) as requiring the ACCC to determine comprehensive or exhaustive model terms and conditions for access to each core service. Properly construed, s 152AQB(2) obliges the ACCC to make a written determination setting out at least some model terms and conditions, but leaves the scope and content of those terms to the ACCC's discretion. Because the ACCC might otherwise regard itself as bound on remitter to apply the erroneous construction, the remitter order should be varied to require determination according to law including the law explained by the Full Court.

Jurisdiction
Australia
Judgment Date
05 June 2009
Procedural Posture
Appeal From a Single Judge of the Federal Court of Australia Concerning Judicial Review of an ACCC Final Determination Under S 152 CP of the Trade Practices Act 1974 (cth) / Full Court Appeal From Orders of Rares J Made on 24 November 2008
Outcome
Appeals allowed; paragraph 3 of the orders made by Rares J on 24 November 2008 set aside and replaced with a remitter requiring determination according to law including the law explained in the Full Court's reasons; interpretative declaration refused; no order as to costs of the appeal.
Legal Topics
['part XIC of the Trade Practices Act 1974 (cth)' 'access Disputes for Declared Telecommunications Services' 'model Terms and Conditions for Core Services' 'unconditioned Local Loop Service' 'use of Extrinsic Materials in Statutory Interpretation' 'variation of Remitter Orders on Appeal']
['competition and Consumer Law' 'telecommunications Law' 'administrative Law' 'statutory Interpretation'] ['part XIC of the Trade Practices Act 1974 (cth)' 'access Disputes for Declared Telecommunications Services' 'model Terms and Conditions for Core Services' 'unconditioned Local Loop Service' 'use of Extrinsic Materials in Statutory Interpretation' 'variation of Remitter Orders on Appeal']

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Procedural Posture

Appeal From a Single Judge of the Federal Court of Australia Concerning Judicial Review of an ACCC Final Determination Under S 152 CP of the Trade Practices Act 1974 (cth) / Full Court Appeal From Orders of Rares J Made on 24 November 2008

Legal Issues

  1. 1 ['Whether s 152AQB(2) of the Trade Practices Act 1974 (Cth) required the ACCC to make comprehensive or exhaustive model terms and conditions relating to access to each core service.' 'Whether the primary Judge erred in construing s 152AQB(2) as requiring all appropriate or material model terms and conditions to be determined.' "Whether the Full Court should vary the order remitting the matter to the ACCC so that the ACCC applies the Full Court's construction of s 152AQB(2)." 'Whether an interpretative declaration should be made on appeal.']

Ratio Decidendi

The primary Judge erred in construing s 152AQB(2) of the Trade Practices Act 1974 (Cth) as requiring the ACCC to determine comprehensive or exhaustive model terms and conditions for access to each core service. Properly construed, s 152AQB(2) obliges the ACCC to make a written determination setting out at least some model terms and conditions, but leaves the scope and content of those terms to the ACCC's discretion. Because the ACCC might otherwise regard itself as bound on remitter to apply the erroneous construction, the remitter order should be varied to require determination according to law including the law explained by the Full Court.

Court Disposition

Appeals allowed; paragraph 3 of the orders made by Rares J on 24 November 2008 set aside and replaced with a remitter requiring determination according to law including the law explained in the Full Court's reasons; interpretative declaration refused; no order as to costs of the appeal.

Orders

  • ['The appeal be allowed.' 'Paragraph 3 of the orders made by Rares J on 24 November 2008 be set aside and in lieu thereof it be ordered that: "3. The matter be remitted to the first respondent (the Australian Competition and Consumer Commission) for hearing and determination according to law including the law as...