Telstra Corporation Ltd v Australian Competition & Consumer Commission (No 2) [2008] FCA 1640

Telstra Corporation Ltd v Australian Competition & Consumer Commission (No 2) [2008] FCA 1640

It is possible and appropriate to sever clause 5A(i) of Schedule 2 from the final determination so that only that part is set aside and remitted to the ACCC for reconsideration. The remainder of the final determination remains valid and operative.

Jurisdiction
Australia
Judgment Date
07 November 2008
Procedural Posture
Application for Judicial Review / Post Substantive Judgment, Orders and Costs
Outcome
Applicant partially succeeds on Ground F; severance ordered; part of determination set aside and issue remitted; otherwise proceedings dismissed; costs orders made.
Legal Topics
['judicial Review' 'severance' 'access Determinations' 'costs Orders']
['administrative Law' 'competition Law'] ['judicial Review' 'severance' 'access Determinations' 'costs Orders']

Case Brief

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Procedural Posture

Application for Judicial Review / Post Substantive Judgment, Orders and Costs

Legal Issues

  1. 1 ['Whether clause 5A(i) of Schedule 2 of the final determination should be severed or the whole determination set aside' 'Whether severance is possible and appropriate under the Acts Interpretation Act and Administrative Decisions (Judicial Review) Act' 'Appropriate costs orders in light of partial success and severance']

Ratio Decidendi

It is possible and appropriate to sever clause 5A(i) of Schedule 2 from the final determination so that only that part is set aside and remitted to the ACCC for reconsideration. The remainder of the final determination remains valid and operative.

Court Disposition

Applicant partially succeeds on Ground F; severance ordered; part of determination set aside and issue remitted; otherwise proceedings dismissed; costs orders made.

Orders

  • ['Clause 5A(i) of Schedule 2 of the final determination made by ACCC dated 1 August 2007 is set aside (Request and Primus proceedings).' 'The issue of charges payable by the second respondent to Telstra for disconnection of LSS outside managed network migration between 15 November 2006 and 22 August 2007 is remitted...