Optus Fixed Infrastructure Pty Ltd v Telecommunications Industry Ombudsman [2023] FCA 928

Optus Fixed Infrastructure Pty Ltd v Telecommunications Industry Ombudsman [2023] FCA 928

The proposed cabling on the Bridge did not satisfy the statutory definition of an 'ancillary' facility under s 3.1(4) of the Telecommunications (Low-impact Facilities) Determination 2018 (Cth), as it was not supportive of but rather functionally equivalent to the cabling on the Approaches. Consequently, it was also not 'incidental' or 'ancillary' to the installation of low-impact facilities in the Approaches under the extended definition in the Act. Therefore, the TIO did not err in finding that it had no jurisdiction to deal with the objections, and the application for judicial review was dismissed.

Jurisdiction
Australia
Judgment Date
09 August 2023
Procedural Posture
Judicial Review Application / Final Judgment on Amended Originating Application
Outcome
Application dismissed
Legal Topics
['judicial Review of Administrative Decisions' 'low Impact Facilities Under Telecommunications Law' 'jurisdiction of Telecommunications Industry Ombudsman' 'ancillary Facility Interpretation']
['administrative Law' 'statutory Interpretation' 'telecommunications Law'] ['judicial Review of Administrative Decisions' 'low Impact Facilities Under Telecommunications Law' 'jurisdiction of Telecommunications Industry Ombudsman' 'ancillary Facility Interpretation']

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Procedural Posture

Judicial Review Application / Final Judgment on Amended Originating Application

Legal Issues

  1. 1 ["Whether the proposed cabling on the Gateway Bridge qualified as an 'ancillary' low-impact facility under the Telecommunications (Low-impact Facilities) Determination 2018 (Cth) s 3.1(4)" 'Whether the Telecommunications Industry Ombudsman had jurisdiction in respect of the objections under Schedule 3 to the Telecommunications Act 1997 (Cth)' "Whether installation of cable on the Bridge fell within the meaning of 'installation' as defined in Schedule 3 clause 2 of the Telecommunications Act 1997 (Cth)"]

Ratio Decidendi

The proposed cabling on the Bridge did not satisfy the statutory definition of an 'ancillary' facility under s 3.1(4) of the Telecommunications (Low-impact Facilities) Determination 2018 (Cth), as it was not supportive of but rather functionally equivalent to the cabling on the Approaches. Consequently, it was also not 'incidental' or 'ancillary' to the installation of low-impact facilities in the Approaches under the extended definition in the Act. Therefore, the TIO did not err in finding that it had no jurisdiction to deal with the objections, and the application for judicial review was dismissed.

Court Disposition

Application dismissed

Orders

  • ['The amended originating application filed 23 May 2022 is dismissed.' 'The Applicant to pay the costs of Queensland Motorways Pty Limited and the State of Queensland, such costs to be taxed if not otherwise agreed.']