Applications by Telstra Corporation Limited and TPG Telecom Limited [2023] ACompT 1

Applications by Telstra Corporation Limited and TPG Telecom Limited [2023] ACompT 1

The joint application was dismissed because the documents, questioning and further expert report sought by Telstra and TPG were not sought for the sole purpose of clarifying unclear material before the ACCC and, in substance, were directed to testing or challenging Optus evidence and modelling. The requested Optus documents and evidence concerned matters already in existence at the time of the ACCC determination and therefore did not fall within s 102(9). The Tribunal's review of a merger authorisation is not a re-hearing and is confined by s 102(10). However, because the ACCC's own modelling was referred to in its reasons, the Tribunal directed the ACCC under s 102(6) to furnish a copy...

Jurisdiction
Australia
Judgment Date
17 March 2023
Procedural Posture
Applications Under S 101 of the Competition and Consumer Act 2010 (cth) for Review of ACCC Merger Authorisation Determination MA1000021 / Determination of Joint Application for Further Directions and Issuing of Summons Dated 24 February 2023
Outcome
Joint Application for Further Directions and Issuing of Summons dismissed; ACCC directed to furnish a copy of its modelling to the Tribunal.
Legal Topics
['merger Authorisation' 'review by the Australian Competition Tribunal' 'competition and Consumer Act 2010 (cth) Ss 101 and 102' 'production of Documents' 'summons to Attend for Questioning' 'further Expert Evidence' 'clarification of Material Before the Accc']
['competition Law' 'administrative Law'] ['merger Authorisation' 'review by the Australian Competition Tribunal' 'competition and Consumer Act 2010 (cth) Ss 101 and 102' 'production of Documents' 'summons to Attend for Questioning' 'further Expert Evidence' 'clarification of Material Before the Accc']

Case Brief

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Procedural Posture

Applications Under S 101 of the Competition and Consumer Act 2010 (cth) for Review of ACCC Merger Authorisation Determination MA1000021 / Determination of Joint Application for Further Directions and Issuing of Summons Dated 24 February 2023

Legal Issues

  1. 1 ['Whether the Tribunal should direct Optus to produce emails and all versions of its business case modelling under reg 22(1)(a), s 102(10)(d) or s 102(9) of the Competition and Consumer Act 2010 (Cth).' 'Whether the Tribunal should issue summonses under s 105(2) to Optus executives to attend for questioning.' 'Whether the Tribunal should allow TPG to file a further expert report of Dr Jorge Padilla concerning modelling assumptions.' 'How ss 102(9) and 102(10) of the Competition and Consumer Act 2010 (Cth) should be construed in a review of a merger authorisation determination.' 'What is the nature of a Tribunal review of a merger authorisation determination after the 2017 amendments.']

Ratio Decidendi

The joint application was dismissed because the documents, questioning and further expert report sought by Telstra and TPG were not sought for the sole purpose of clarifying unclear material before the ACCC and, in substance, were directed to testing or challenging Optus evidence and modelling. The requested Optus documents and evidence concerned matters already in existence at the time of the ACCC determination and therefore did not fall within s 102(9). The Tribunal's review of a merger authorisation is not a re-hearing and is confined by s 102(10). However, because the ACCC's own modelling was referred to in its reasons, the Tribunal directed the ACCC under s 102(6) to furnish a copy...

Court Disposition

Joint Application for Further Directions and Issuing of Summons dismissed; ACCC directed to furnish a copy of its modelling to the Tribunal.

Orders

  • ['The Joint Application for Further Directions and Issuing of Summons dated 24 February 2023 be dismissed.' 'Pursuant to s 102(6) of the Competition and Consumer Act 2010 (Cth), the Australian Competition and Consumer Commission (ACCC) is required to furnish to the Tribunal a copy of the model used by the ACCC to...