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Application by Chime Communications Pty Ltd (No 2)

Application by Chime Communications Pty Ltd (No 2)

Case [2009] ACompT 2 27 May 2009

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AUSTRALIAN COMPETITION TRIBUNAL

Application by Chime Communications Pty Ltd (No 2) [2009] ACompT 2

ADMINISTRATIVE LAW – Judicial review – distinction between questions of fact and questions of law – whether ordinary or non-legal technical meaning of word is question of fact – limitation on the power of supervising court – whether a supervising court can direct an administrative body as to what meaning it should apply to a non-legal technical word

EVIDENCE – Tribunal limited to review on information, documents and evidence before the ACCC – whether the Tribunal may have regard to its own expertise

TRADE PRACTICES – Telecommunications access regime – application for review – declared services – the local call service and the wholesale line rental service – application for exemption from standard access obligations – comparing the “future with” and “future without” the exemption orders – whether exemption orders will promote the “long-term interests of end-users” – meaning of “competition”, “market power”, “barriers to entry” and “economic efficiency” – conditions and limitations imposed on exemption orders

Telecommunications Competition Act 2002 (Cth), Sch 2 Pt 11 Item 66

Trade Practices Act1965 (Cth), s 10

Trade Practices Act 1974 (Cth), Pt XIC; ss 7, 152AB, 152AR, 152AT, 152ATA, 152AW(4)

Trade Practices Amendment Act 1977 (Cth), s 21

Restrictive Trade Practices Act 1971 (Cth), s 8(1)(a)

Application by Chime Communications Pty Ltd [2008] ACompT 4

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321

Boral Besser Masonry Limited v Australia Competition and Consumer Commission (2003) 215 CLR 374

Bryer v Metropolitan Water Sewerage and Drainage Board (1939) 56 WN (NSW) 169

Church of Scientology Inc v Woodward (1982) 154 CLR 25

Collector of Customs v Agfa-Gevaert Limited (1996) 186 CLR 389

Cozens v Brutus [1973] AC 854

Craig v The State of South Australia (1995) 184 CLR 163

J & H Timbers Proprietary Limited v Nelson (1972) 126 CLR 625

Keller v Drainage Tribunal and Montague [1980] VR 449

Life Insurance Co of Australia Ltd v Phillips (1925) 36 CLR 60

Midwestern Machinery Co v Northwest Airlines, Inc 392F3d 265, 282 (8^th Cir, 2004)

Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559

Minister for Immigration and Multicultural Affairs v Epeabaka (1999) 84 FCR 411

Norbis v Norbis (1986) 161 CLR 513

NSW Associated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation (1956) 94 CLR 509

Queensland WireIndustries Pty Ltd v The Broken Hill Proprietary Company (1989) 167 CLR 177

Roads Corporation v Dacakis [1995] 2 VR 508

R v Milk Board [1944] VR 187

Seven Network Limited (No 4), Re [2004] ACompT 11

Sinclair v Mining Warden at Maryborough (1975) 132 CLR 473

Sydney International Airport, Re [2000] ACompT 1

Telstra Corporation Limited v Australian Competition Tribunal [2009] FCAFC 23

Telstra Corporation Limited (No 3), Re [2007] ACompT 3

Areeda, P E , Solow, J L and Hovenkamp, H, Antitrust Law (3^rd ed, 2007)

Bain, J S,

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.

Continue reading Application by Chime Communications Pty Ltd (No 2)

Details

AGLC: Application by Chime Communications Pty Ltd (No 2) [2009] ACompT 2
Case: [2009] ACompT 2
Decision Date: 27 MAY 2009

CaseChat Overview and Summary

- Application by Chime Communications Pty Ltd (No 2)
The Australian Competition Tribunal (the Tribunal) was asked to review exemption orders made by the Australian Competition and Consumer Commission (the ACCC) under the Trade Practices Act 1974 (Cth) (the Act) in relation to Telstra Corporation Limited (Telstra). The ACCC had granted an exemption to Telstra from the standard access obligations in respect of two declared services, the wholesale line rental service and the local carriage service. Chime Communications Pty Ltd (Chime) sought a review of the exemption orders. The Tribunal heard evidence from representatives of Chime, Telstra and the ACCC. The Tribunal concluded that the exemption orders, with several conditions and limitations, were in the long-term interests of end-users. The Tribunal concluded that the exemption orders, with several conditions and limitations, were in the long-term interests of end-users. The Tribunal noted that the Full Court had held that empirical evidence was not needed to reach a conclusion about the competitiveness of a market. The Tribunal considered that the Full Court had erred in saying that empirical evidence was not needed. The Tribunal explained that it was for it to decide whether the material before it was sufficient to enable a decision to be made on the basis of it attaining the appropriate level of satisfaction. The Tribunal also concluded that the Full Court had erred in saying that the Tribunal had failed to consider the objective of encouraging efficient investment. The Tribunal concluded that the objective of encouraging efficient investment was generally satisfied by the promotion of competition. The Tribunal concluded that the exemption orders, with several conditions and limitations, were in the long-term interests of end-users. The Tribunal imposed several conditions and limitations on the exemption orders. The Tribunal also concluded that the objective of encouraging efficient investment was generally satisfied by the promotion of competition.

Orders