Application by AAPT Limited - [2009] ACompT 5

AUSTRALIAN COMPETITION TRIBUNAL
Application by AAPT Limited [2009] ACompT 5
ADMINISTRATIVE LAW – standing – meaning of a “person whose interests are affected”
TRADE PRACTICES – telecommunications access regime – application for review – declared service – public switched telephone network originating access service – application for exemption from standard access obligations – whether exemption orders will promote the “long-term interests of end-users” – conditions and limitations imposed on exemption orders
Telecommunications Act 1997 (Cth), Pt 17
Trade Practices Act 1974 (Cth) ss 152AB, 152AT, 152ATA, 152AR, 152AV, 152AW(4)
Allan v Transurban City Link Limited (2001) 208 CLR 167
Alphapharm Pty Limited v SmithKline Beecham (Australia) Pty Ltd (1994) 49 FCR 250
Application by Chime Communications Pty Ltd (No 2) [2009] ACompT 2
Duke Eastern Gas Pipeline Pty Ltd, Re [2001] ACompT 2
McHattan and Collector of Customs, Re (1977) 18 ALR 154
Onesteel Manufacturing Pty Ltd v Whyalla Red Dust Action Group Inc (2006) 94 SASR 357
Queensland Co-Operative Milling Association Ltd, Re (1976) 8 ALR 481
Sydney International Airport, Re [2000] ACompT 1
Telstra Corporation Limited v Australian Competition Tribunal [2009] FCAFC 23
RE: APPLICATION UNDER SECTION 152AV OF THE TRADE PRACTICES ACT 1974 FOR A REVIEW OF EXEMPTION ORDER DECISIONS (INDIVIDUAL EXEMPTION ORDERS 5 AND 6 OF 2008) MADE BY THE AUSTRALIAN COMPETITION AND CONSUMER COMMISSION UNDER SECTION 152AT(3)(a) OF THAT ACT IN RESPECT OF THE SUPPLY BY TELSTRA CORPORATION LIMITED OF THE PSTN ORIGINATING ACCESS SERVICE
BY:AAPT LIMITED, AGILE PTY LTD, CHIME COMMUNICATIONS PTY LTD, MACQUARIE TELECOM PTY LIMITED, POWERTEL LIMITED AND PRIMUS TELECOMMUNICATIONS PTY LIMITED

File No 6 of 2008
JUSTICE FINKELSTEIN (PRESIDENT)
R DAVEY
PROFESSOR D ROUND
24 AUGUST 2009
MELBOURNE

IN THE AUSTRALIAN COMPETITION TRIBUNAL

File No 6 of 2008

RE:APPLICATION UNDER SECTION 152AV OF THE TRADE PRACTICES ACT 1974 FOR A REVIEW OF EXEMPTION ORDER DECISIONS (INDIVIDUAL EXEMPTION ORDERS 5 AND 6 OF 2008) MADE BY THE AUSTRALIAN COMPETITION AND CONSUMER COMMISSION UNDER SECTION 152AT(3)(a) OF THAT ACT IN RESPECT OF THE SUPPLY BY TELSTRA CORPORATION LIMITED OF THE PSTN ORIGINATING ACCESS SERVICE
BY:AAPT LIMITED, AGILE PTY LTD, CHIME COMMUNICATIONS PTY LTD, MACQUARIE TELECOM PTY LIMITED, POWERTEL LIMITED AND PRIMUS TELECOMMUNICATIONS PTY LIMITED
Applicants

TRIBUNAL:

JUSTICE FINKELSTEIN (PRESIDENT)
R DAVEY
PROFESSOR D ROUND

DATE:

24 AUGUST 2009

WHERE MADE:

MELBOURNE

REASONS FOR DETERMINATION
1 Introduction
1.1 The applications
1 These reviews deal with two applications by Telstra Corporation Limited under s 152AT of the Trade Practices Act 1974 (Cth) for exemption from the standard access obligations imposed by s 152AR in respect of its supply of part of the public switched telephone network originating access service (PSTN OA), a service that was deemed to be declared for the purposes of Pt XIC of the Trade Practices Act on 30 June 1997. Exemption is not sought in so far as it concerns the provision of special services numbers (eg 13/1300 and 1800 numbers).
2 One application sought exemption for 387 metropolitan exchange service areas (ESAs), but now seeks exemption in respect of 380…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Application by AAPT Limited [2009] ACompT 5
Case: [2009] ACompT 5
Decision Date: 24 AUGUST 2009

CaseChat Overview and Summary

The Australian Competition Tribunal considered applications for review by six telecommunications companies, including AAPT Limited, against decisions of the Australian Competition and Consumer Commission (ACCC) to exempt Telstra Corporation Limited from certain standard access obligations in respect of its supply of the public switched telephone network originating access service. The tribunal was required to determine whether granting the exemptions would promote the long-term interests of end-users of the service in issue. The tribunal found that the exemption on the metropolitan application, subject to the same limitations and conditions imposed in previous applications, was likely to be in the long-term interests of end-users. However, the tribunal found that the exemption on the CBD application would promote the long-term interests of end-users and affirmed the order made by the ACCC, subject to some minor variations relating to the order’s commencement and expiry. The tribunal also determined that Macquarie, one of the applicants, did not have standing to seek review as it did not acquire the PSTN originating access service. The tribunal considered the potential impact of the proposed National Broadband Network on the likelihood of further DSLAM deployment, but noted that the proposed rollout had been abandoned and the new proposal for a super fast national fibre-to-the-home broadband network was not relevant to the tribunal's consideration of the issues before it.

Orders