Telstra Corporation Ltd (No 1) [2006] ACompT 7

AUSTRALIAN COMPETITION TRIBUNAL

Telstra Corporation Ltd (No 1) [2006] ACompT 7 TRADE PRACTICES – application pursuant to s 152CE(1) of the Trade Practices Act 1974 (Cth) – application for review of decision of Australian Competition and Consumer Commission ("Commission") to reject access undertakings – unconditioned local loop service – interlocutory application to require Commission to delete from index provided to Tribunal documents omitted from s 152CGA(1) statement. PRACTICE AND PROCEDURE – documents that were examined by Commission accidentally omitted from s 152CGA(1) statement – whether Tribunal can have regard to omitted documents – whether the Commission can provide supplementary s 152CGA(1) statement ADMINISTRATIVE LAW – judicial review – telecommunications access regime – application to require Commission to delete from index provided to Tribunal documents omitted from s 152CGA(1) statement – whether Commission functus officio – whether occasion requires Commission to provide further statement under s 152CGA(1) Trade Practices Act 1974 (Cth): ss 103, 152BU(4)(b), 152CE, 152CF(3), 152CF(4), 152CGA Acts Interpretation Act 1901 (Cth): s 33(1) Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193, cited Jayasinghe v Minister for Immigration and Ethnic Affairs (1997) 76 FCR 301, cited Leung v Minister for Immigration and Multicultural Affairs (1997) 79 FCR 400, cited Re St Nazaire Co(1879) 12 Ch D 88, cited Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597, applied FILE No 8 of 2006 RE: FINAL DECISION BY THE AUSTRALIAN COMPETITION AND CONSUMER COMMISSION DATED AUGUST 2006 IN RESPECT OF ORDINARY ACCESS UNDERTAKINGS SUBMITTED BY TELSTRA CORPORATION LIMITED FOR THE UNCONDITIONED LOCAL LOOP SERVICE BY: TELSTRA CORPORATION LTD (ACN 051 775 556) Applicant

GOLDBERG J

14 NOVEMBER 2006

MELBOURNE IN THE australian competition tribunal

FILE No 8 of 2006 RE: FINAL DECISION BY THE AUSTRALIAN COMPETITION AND CONSUMER COMMISSION DATED AUGUST 2006 IN RESPECT OF ORDINARY ACCESS UNDERTAKINGS SUBMITTED BY TELSTRA CORPORATION LIMITED FOR THE UNCONDITIONED LOCAL LOOP SERVICE BY: TELSTRA CORPORATION LTD (ACN 051 775 556) Applicant JUDGE: GOLDBERG J

DATE OF ORDER: 14 NOVEMBER 2006

WHERE MADE: MELBOURNE

THE TRIBUNAL DIRECTS THAT:

1. Pursuant to s 152CF(3) of the Trade Practices Act 1974 (Cth) ("the Act"), the Australian Competition and Consumer Commission ("the Commission") provide to Telstra Corporation Ltd by 5.00pm on 24 November 2006, a supplementary written statement pursuant to s 152CGA(1) of the Act specifying any documents that the Commission examined in the course of making its Final Decision in respect of ordinary Access Undertakings submitted by Telstra Corporation Limited for the Unconditioned Local Loop Service ("Final Decision"), which documents were not specified in Appendix H to the Final Decision.

IN the australian competition tribunal

FILE No 8 of 2006 RE: FINAL DECISION BY THE AUSTRALIAN COMPETITION AND CONSUMER COMMISSION DATED AUGUST 2006 IN RESPECT OF ORDINARY ACCESS UNDERTAKINGS SUBMITTED BY TELSTRA CORPORATION LIMITED FOR THE UNCONDITIONED LOCAL LOOP SERVICE BY: TELSTRA CORPORATION LTD (ACN 051 775 556) Applicant

JUDGE: GOLDBERG J

DATE: 14 NOVEMBER 2006

PLACE: MELBOURNE

RULING 1 On 3 October 2006, in the course of giving directions for the progression of this matter, I ordered that the Australian Competition and Consumer Commission ("the Commission") serve on the applicant and intervenors a draft index of the information given, the documents produced and the evidence given to the Commission and any other information that was referred to in the Commission's reasons for the Decision under review for the purposes of s 152CF(4) of the Trade Practices Act 1974 (Cth) ("the Act") specifying which of those documents (if any) is the subject of a claim of confidentiality and if, there is a claim of confidentiality, which party or person has made such a claim, and their current contact details ("Draft Index") by 9 October 2006. Thereafter the directions provided for a sequence of events allowing for the other parties to have input into the index and providing, ultimately, for the Commission to file and serve a Final Index which the Tribunal is to consider in the proceeding. 2 Section 152CF(4) of the Act provides: "For the purposes of a review the Tribunal may have regard only to: (a) any information given, documents produced or evidence given to the Commission in connection with the making of the decision to which the review relates; and (b) any other information that was referred to in the Commission's reasons for making the decision to which the review relates." 3 To have a complete understanding of the scope of the material covered by s 152CF(4) it is necessary to have regard to s 152CGA of the Act which provides: "(1) If the Commission: (a) makes a decision referred to in section 152CE; and (b) gives a person a written statement setting out the reasons for the decision; the statement must specify the documents that the Commission examined in the course of making the decision." (2) If a document is specified under subsection (1), information in the document is taken, for the purposes of paragraph 152CF(4)(b), to be referred to in the Commission's reasons for making the decision." 4 The Final Index filed by the Commission on 6 November 2006 contained two annexures in addition to listing 325 documents. The documents listed in Annexure A and the statutory and legislative instruments listed in Annexure B, had not been specified in the statement given by the Commission pursuant to s 152CGA(1) at the time the written statement setting out the reasons for the Commission's Final Decision to reject the undertakings was given. 5 That specification of the documents was found in Appendix H to the Final Decision which included numerous documents, but not the documents referred to in Annexure A and Annexure B of the Final Index. An explanation why Annexure A and Annexure B are a part of the Final Index was provided in a letter from the solicitors for the Commission to the solicitors for Telstra, which was also copied to the Tribunal, on 6 November 2006. That explanation was as follows: "The circumstances in which the Commission has found it necessary to file Annexure A to the Final Index are not relevant to the present issue of whether the documents listed in Annexure A fall within the evidentiary limit established by s 152CF(4). However, as a courtesy, we set out below an explanation of the circumstances. In the course of preparing the Final Index the Commission became aware that there were a small number of additional documents that were examined by the Commission in the course of making the ULLS undertaking decision which had not been specified in the Commission's reasons for decision for the purposes of s 152CGA. In those circumstances, fresh enquiries were made and as a result of those inquiries the Commission became aware that the documents now listed in Annexure A to the Final Index had been examined by the Commission in the course of making its decision. The Commission then informed the Tribunal and the parties of the documents listed in Annexure A to the Final Index because, as stated in our previous correspondence, ss 152CF(4) and 152CGA are intended to facilitate the Tribunal's review of the Commission's decision on its merits, and in so doing, to enable the Tribunal to stand, so to speak 'in the shoes of the Commission' Telstra Corporation Limited [2006] ATPR 42‑121 at [16]." 6 In a notice of application filed on 10 November 2006, Telstra sought a number of orders including an order that Annexures A and B be deleted from the Final Index. Although either in the alternative, or cumulatively with that order, Telstra was content for some of those documents to be included in the Final Index. Telstra submitted that the inclusion of Annexure A in the Final Index was not allowed by the Act for a number of reasons. 7 First, it submitted that the Commission was functus officio in relation to the giving or handing down of its reasons and the making or giving of the statement pursuant to s 152CGA of the Act. 8 Telstra submitted further, or in the alternative, that s 33(1) of the Acts Interpretation Act 1901 (Cth) ("Acts Interpretation Act") did not apply because a contrary intention was found in the scheme of the Act. Section 33(1) of the Acts Interpretation Act provides: "Where an Act confers a power or imposes a duty, then, unless the contrary intention appears, the power may be exercised and the duty shall be performed from time to time as occasion requires." 9 Telstra submitted further that, even if s 33(1) of the Acts Interpretation Act did apply, the explanation given by the Commission in the letter referred to in par [5] for the fact that the documents in Annexure A were excluded from the statement given under s 152CGA was inadequate. Telstra submitted, in general terms, that the statement in the solicitor's letter was too general, conclusionary and not specific. 10 In relation to its submission that the Commission was functus officio, Telstra relied upon statements of principle and considerations of the doctrine of functus officio in a number of cases. 11 It referred to the decision of the Full Federal Court in Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193, in particular at 211 where Gummow J said: "However, s 33(1) of the Acts Interpretation Act 1901 (Cth) (which was modelled upon s 32(1) of the Interpretation Act 1889 (UK)) provides that where an Act confers a power or imposes a duty, then unless the contrary intention appears, the power may be exercised and the duty shall be performed "from time to time as occasion requires". But in any given case, a discretionary power reposed by statute in the decision maker may, upon a proper construction, be of such a character that it is not exercisable from time to time and it will be spent by the taking of the steps or the making of the statements or representations in question, treating them as a substantive exercise of the power. The result is that when the decision maker attempts to resile from his earlier position, he is prevented from doing so not from any doctrine of estoppel, but because his power to do so is spent and the proposed second decision would be ultra vires. The matter is one of interpretation of the statute conferring the particular power in issue." 12 Telstra also relied upon Jayasinghe v Minister for Immigration and Ethnic Affairs (1997) 76 FCR 301, where at 311, referring to the doctrine of functus officio, I said: "I do not consider it a correct characterisation of the doctrine of functus officio to call it a "legal technicality". Rather it is a description or consequence of the performance of a function having regard to the statutory power or obligation to perform that function. The effect of the application of the doctrine is that once the statutory function is performed there is no further function or act for the person authorised under the statute to perform: R v Moodie; Ex parte Mithen(1977) 17 ALR 219 at 225; Comptroller‑General of Customs v Kawasaki Motors Pty Ltd (1991) 32 FCR 219 at 225." 13 The doctrine of functus officio is also adverted to in the decision of the Full Federal Court in Leung v Minister for Immigration and Multicultural Affairs (1997) 79 FCR 400 where at 409‑410 Finkelstein J said: "The origin of the principle of functus officio as that expression is currently employed is to be found in the latter part of the last century in England when it was decided that a final decision of a court could not be reopened. The reason given was that the power to reopen a dispute had been transferred to the court of appeal: Re St Nazaire Co(1879) 12 Ch D 88." His Honour continued: "The rule applied only after the formal judgment of the court had been passed and entered and was subject to two exceptions, namely where there had been a slip in drawing it up and where there had been an error in expressing the intention of the Court: Re Swire; Mellor v Swire (1885) 30 Ch D 239; Preston Banking Co v Allsup & Sons [1895] 1 Ch 141; Ainsworth v Wilding [1896] 1 Ch 673. According to E Jowitt, The Dictionary of English Law (2nd ed, 1977) the principle applies to a judge, a magistrate or an arbitrator who has given his decision or made an award. A similar rule applies to the exercise of a statutory power or function but for a different reason. If a statute confers a power or a function, once that power has been exercised or the function performed the purpose for its creation has been fulfilled with the consequence that the power or function is exhausted. In Black's Law Dictionary (5th ed, 1979) functus officio is defined as "a task performed" and it is applied to "an instrument, power agency etc which has fulfilled the purpose of its creation and is therefore of no further effect or virtue"." 14 The doctrine was also raised more recently in the High Court in Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597. Although it was raised in argument it was ultimately not necessary for the Court to consider it in substance. The argument was explained by Gaudron and Gummow JJ at par [35] in the following terms: "It was accepted on behalf of the Minister that, unless a contrary intention is to be discerned from the statute in question, s 33(1) of the Acts Interpretation Act displaces the common law doctrine that a power is spent once it is exercised. But, it was argued that, although the Act is silent as to whether the Tribunal may ignore or reconsider a previous decision, a contrary intention is manifest from the scheme of Pts 5 and 8 of the Act. Accordingly, it was said, the fact that the Tribunal made a decision in September precluded it from making a second decision in October and, in consequence, the latter decision should have been set aside by the Federal Court." Nevertheless, Gaudron and Gummow JJ decided that having regard to the fact that they found that there was jurisdictional error in the relevant Tribunal, there was no need to consider the operation, scope or effect of s 33(1) of the Acts Interpretation Act. 15 Telstra submitted that the application of the principles to which I have referred resulted in the fact that once the statement was given in accordance with s 152CGA there was no further opportunity for the Commission to give a further statement or add to it, supplement it or amend it in any way. 16 I do not accept the submission that the Commission is functus officio in relation to the statement specifying the documents that the Commission examined. Consistently with the principles in the authorities to which I have referred, I consider that the Commission is functus officio in relation to the reasons for its decision, but that it is not functus officio in relation to the statement which must be given specifying the documents that the Commission examined. 17 Once the reasons are given, they are, in substance, set in concrete. The statement of the reasons represents the reasoning of the Commission, and the basis upon which it made the decision. The decision is made and finalised. However, the statement which specifies the documents that the Commission examined relates to objective facts which occurred prior to the finalisation of the reasons. 18 The reasons cannot be altered because they are the justification for the decision. Once the reasons are given, the documents that the Commission examined in the course of making the decision and their identification does not change. Either a document was examined by the Commission in the course of making its decision, or it was not. I consider that s 33(1) applies in this context on the basis that an occasion requires the exercise of the power to perform the function again by making a further statement specifying the documents that the Commission examined, subject to a contrary intention appearing in the Act. 19 Telstra submitted that a contrary intention was to be found in the scheme of the Act. Telstra submitted that it was important for an applicant who had provided an undertaking to know, at the time that the reasons were handed down, what the Commission had examined so that it could consider whether it wanted to take the matter further by way of review. One can accept that this is the position because one finds in s 152BU(4)(b) a provision that if the Commission rejects the undertaking, the Commission must give the carrier or provider a written notice, firstly stating that the undertaking has been rejected, and secondly, setting out the reasons for the rejection. 20 Under s 152CE(2) of the Act, any application for a review of the Commission's Final Decision must be filed within 21 days of the date on which the Commission made the Final Decision. It was put succinctly by Dr Griffiths, senior counsel for Telstra, that what s 152CE did was to mesh these provisions together. What the applicant was given was 21 days to consider the record which had been before the Commission and then to decide whether or not to take it on review. It was submitted that for the purposes of s 33(1) of the Acts Interpretation Act, to adapt the words of the section, only one occasion was required, for the exercise of the power, and that was the date on which the reasons were given. 21 There is an alternative basis upon which Telstra submitted that a contrary intention could be found in the scheme of the Act, and that was that by virtue of s 152CF(4) the Tribunal is to be limited in any review before it to the material that was before the Commission. The purpose of this provision is to ensure that the Tribunal is not at large as to what material is placed before it on review, but rather is limited to what was before the Commission in terms of information given, documents produced or evidence given to the Commission in connection with the making of the decision, and other information referred to in the reasons for decision. 22 But the material before the Tribunal is deemed by s 152CGA(2) to include documents specified under s 152CGA(1) as documents which the Commission examined. In this context, I would refer to the observation of Gleeson CJ in Minister for Immigration and Multicultural Affairs v Bhardwaj (supra) at par [8], where his Honour said: "The requirements of good administration, and the need for people affected directly or indirectly by decisions to know where they stand, mean that finality is a powerful consideration. And the statutory scheme, including the conferring and limitation of rights of review on appeal, may evince an intention inconsistent with a capacity for self‑correction. Even so, as the facts of the present case show, circumstances can arise where a rigid approach to the principle of functus officio is inconsistent with good administration and fairness. The question is whether the statute pursuant to which the decision‑maker was acting manifests an intention to permit or prohibit reconsideration in the circumstances that have arisen. That requires examination of two questions. Has the tribunal discharged the functions committed to it by statute? What does the statute provide, expressly or by implication, as to whether, and in what circumstances, a failure to discharge its functions means that the tribunal may revisit the exercise of its powers or, to use the language of Lord Reid, reconsider the whole matter afresh?" 23 I do not consider that a contrary intention is expressed in the relevant provisions in Pt XIC of the Act denying the Commission the opportunity to exercise the duty given to it under s 152CGA at any time other than the time at which the reasons were given. I do not consider that there is a contrary intention to the effect that that duty cannot, or should not, be performed from time to time as the occasion arises. 24 I accept that the scheme of the Act, as submitted by Telstra, is for parties to know at the time of the reasons what the Commission examined so that they can consider whether they want to take the matter further by way of review, and also to identify what was the material that was before the Commission which is to be the subject of review and consideration by the Tribunal. 25 But that scheme of the Act does not preclude the Commission, in my opinion, from discharging its obligation to tell an applicant for an undertaking, and other relevant parties, what the actual facts were. That is, what were the specific documents examined by it in the course of making its decision. To exclude those documents from being made known to the parties, in my view, creates a false situation. I consider that s 33(1) applies in these circumstances, so as to enable the Commission to exercise its duty to provide a statement, as the occasion arises, specifying documents which it examined in the course of making its decision. 26 The question which arises is, does the occasion require? In this case, the explanation for the Commission's necessity to include the documents in Annexure A in the Final Index is contained in the solicitor's letter of 6 November 2006. 27 Telstra submitted that that explanation was not adequate, and in substance, submitted it was necessary to get specific evidence from officers or employees of the Commission. However, I am reminded that I should have regard to s 103 of the Act that provides, in general terms, that proceedings before the Tribunal should be conducted with as little formality and technicality, and with as much expedition as the requirements of the Act and the proper consideration of the matters before the Tribunal permit, and that the Tribunal is not bound by the rules of evidence. 28 Although I adhere to those provisions, it is nevertheless necessary, in any given situation where an explanation is required, to explain the course of conduct. The Tribunal should be given material which is relevant and has a degree of probative value for the relevant issue. I am satisfied by the explanation which is given in the solicitor's letter. Although it is couched in somewhat general terms, it indicates that what in fact occurred was that there were a small number of additional documents that had been examined by the Commission that had been excluded from Appendix H to the Final Decision. Fresh inquiries were made as a result of which further documents became known as having been examined by the Commission. 29 I am satisfied in those circumstances that the occasion requires that the Commission provide a further statement as to the documents which it examined in the course of making the decision which were not included in Appendix H to the Final Decision. I consider it important for the purposes of this hearing that the parties and the Tribunal know what documents the Commission examined. This is despite the fact that the Tribunal is not sitting for the purposes of deciding whether there was error in the Commission's reasons. 30 A separate issue arises. Just because a document is referred to in the statement given for the purposes of s 152CGA, and just because a document falls within the scope of the documents under s 152CF(4), it does not follow automatically that the Tribunal either will consider, or is bound to consider, and examine those documents. Even if a document is referred to in a Final Index it is still open to an applicant, and indeed any other party, to submit that a document should not be examined or looked at by the Tribunal or by other parties, whether on the ground of confidentiality, whether on the ground that the document was supplied in error to the Commission or was supplied in circumstances where there was an acceptance or an undertaking given that a document listed was only supplied for a particular purpose otherwise than for the purpose of the undertaking. 31 Nothing I am saying today precludes Telstra, or indeed any other party, from submitting that a document referred to in the Final Index should not be considered or should not be disclosed to other parties. That remains an issue for later consideration once the proceeding commences or, if application is made for earlier inspection or examination of a document, that issue might have to be determined as a further interlocutory step. 32 Having regard to these reasons I direct pursuant to s 152CF(3) of the Act that the Commission provide to Telstra Corporation Ltd by 5.00pm on 24 November 2006, a supplementary written statement pursuant to s 152CGA(1) of the Act specifying any documents that the Commission examined in the course of making its Final Decision in respect of ordinary Access Undertakings submitted by Telstra Corporation Limited for the Unconditioned Local Loop Service, which documents were not specified in Appendix H to the Final Decision. I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Ruling herein of the Honourable Justice Goldberg .

Associate: Dated: 17 November 2006 Counsel for Telstra Corporation Ltd: Dr J Griffiths S.C. and M Connock

Solicitor for Telstra Corporation Ltd: Mallesons Stephen Jacques

Counsel for the Australian Competition and Consumer Commission: Ms M Sloss S.C.

Solicitor for the Australian Competition and Consumer Commission: Phillips Fox

Solicitor for Agile Pty Ltd, Chime Communications Pty Ltd, Primus Telecommunications Pty Ltd, Macquarie Telecom Pty Ltd and PowerTel Limited: Nicholls Legal

Solicitor for the Commonwealth of Australia: Australian Government Solicitors

Date of Hearing: 14 November 2006

Date of Ruling: 14 November 2006