Telstra Corp Ltd v Optus Communications Pty Ltd & Anor Optus Communications Pty Ltd & Anor v Telstra Corp Ltd [1997] FCA 501

Telstra Corp Ltd v Optus Communications Pty Ltd & Anor Optus Communications Pty Ltd & Anor v Telstra Corp Ltd [1997] FCA 501

The Flexi-Plans under consideration are supplied under legitimate charging options within the meaning of s185(2B) and (2C) of the Telecommunications Act 1991 because, despite modest fees or usage thresholds, there is no real obstacle to participation or eligibility for benefits; the services are available to all or all but an insubstantial minority of customers to whom supply is technically feasible, on the same terms and conditions. The requirement of 'availability' is satisfied if the plans are open without exclusion, and practical or economic disadvantages do not of themselves render the plans unavailable within the statutory meaning.

Parties
Applicant/respondent: Telstra Corporation Limited; Respondent/applicant: Optus Communications Pty Limited; Respondent/applicant: Optus Networks Pty Limited; Amicus Curiae: AUSTEL (Australian Telecommunications Authority)
Jurisdiction
Australia
Judgment Date
11 June 1997
Procedural Posture
Declaratory Relief (civil) / Judgment on Cross Claim Seeking Declaration; Consolidated Proceedings
Outcome
Declarations granted
Legal Topics
Prohibition of Discrimination in Charges or Terms of Supply, Legitimate Charging Options, Supply of Services Under Pricing Plans, Interpretation of S185(2 C) Telecommunications Act, Role of AUSTEL in Tariff Approval and Anti Competitive Review
Telecommunications Law Administrative Law Competition Law Prohibition of Discrimination in Charges or Terms of Supply Legitimate Charging Options Supply of Services Under Pricing Plans Interpretation of S185(2 C) Telecommunications Act Role of AUSTEL in Tariff Approval and Anti Competitive Review

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Parties

Telstra Corporation Limited

Applicant/respondent

Optus Communications Pty Limited

Respondent/applicant

Optus Networks Pty Limited

Respondent/applicant

AUSTEL (Australian Telecommunications Authority)

Amicus Curiae

Procedural Posture

Declaratory Relief (civil) / Judgment on Cross Claim Seeking Declaration; Consolidated Proceedings

Legal Issues

  1. 1 Whether Telstra's Flexi-Plans constitute legitimate charging options under s185(2B) and (2C) of the Telecommunications Act 1991
  2. 2 Meaning of 'available' in s185(2C) and its application to pricing plans
  3. 3 Whether participation thresholds or fees in Flexi-Plans render them not 'available' to all or all but an insubstantial minority of customers

Ratio Decidendi

The Flexi-Plans under consideration are supplied under legitimate charging options within the meaning of s185(2B) and (2C) of the Telecommunications Act 1991 because, despite modest fees or usage thresholds, there is no real obstacle to participation or eligibility for benefits; the services are available to all or all but an insubstantial minority of customers to whom supply is technically feasible, on the same terms and conditions. The requirement of 'availability' is satisfied if the plans are open without exclusion, and practical or economic disadvantages do not of themselves render the plans unavailable within the statutory meaning.

Court Disposition

Declarations granted

Orders

  • Telecommunications services supplied by Telstra under the STD Weeknight Saver Flexi-Plan are supplied under a legitimate charging option within s185(2B)(b) and (2C).
  • Telecommunications services supplied by Telstra under the IDD Everyday Saver Flexi-Plan are supplied under a legitimate charging option within s185(2B)(b) and (2C).