Bayside City Council & Ors v Telstra & Optus - [2003] HCATrans 568

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S162 of 2002

B e t w e e n -
BAYSIDE CITY COUNCIL
First Applicant
MORELAND CITY COUNCIL
Second Applicant
FRANKSTON CITY COUNCIL
Third Applicant
YARRA CITY COUNCIL
Fourth Applicant
and
TELSTRA CORPORATION LIMITED
First Respondent
TELSTRA MULTIMEDIA PTY LTD
Second Respondent
HURSTVILLE CITY COUNCIL
Third Respondent
KOGARAH MUNICIPAL COUNCIL
Fourth Respondent
LEICHHARDT MUNICIPAL COUNCIL
Fifth Respondent
PARRAMATTA CITY COUNCIL
Sixth Respondent
PENRITH CITY COUNCIL
Seventh Respondent
RANDWICK CITY COUNCIL
Eighth Respondent

HORNSBY SHIRE COUNCIL
Ninth Respondent
DRUMMOYNE COUNCIL
Tenth Respondent
BURWOOD COUNCIL
Eleventh Respondent
CONCORD COUNCIL
Twelfth Respondent
STRATHFIELD MUNICIPAL COUNCIL
Thirteenth Respondent

Office of the Registry
Sydney No S163 of 2002

B e t w e e n -
MORELAND CITY COUNCIL
Applicant
and
OPTUS VISION PTY LTD
First Respondent
OPTUS NETWORKS PTY LTD
Second Respondent
WARRINGAH COUNCIL
Third Respondent
RANDWICK CITY COUNCIL
Fourth Respondent
BLACKTOWN CITY COUNCIL
Fifth Respondent

Office of the Registry
Sydney No S166 of 2002

B e t w e e n –
WARRINGAH COUNCIL
First Applicant
RANDWICK CITY COUNCIL
Second Applicant
BLACKTOWN CITY COUNCIL
Third Applicant
and
OPTUS VISION PTY LTD
First Respondent
OPTUS NETWORKS PTY LTD
Second Respondent
MORELAND CITY COUNCIL
Third Respondent

Office of the Registry
Sydney No S167 of 2002

B e t w e e n -
HURSTVILLE CITY COUNCIL
First Applicant
KOGARAH MUNICIPAL COUNCIL
Second Applicant
LEICHHARDT MUNICIPAL COUNCIL
Third Applicant
PARRAMATTA CITY COUNCIL
Fourth Applicant
PENRITH CITY COUNCIL
Fifth Applicant
RANDWICK CITY COUNCIL
Sixth Applicant
HORNSBY SHIRE COUNCIL
Seventh Applicant
DRUMMOYNE COUNCIL
Eighth Applicant
BURWOOD COUNCIL
Ninth Applicant
CONCORD COUNCIL
Tenth Applicant
STRATHFIELD MUNICIPAL COUNCIL
Eleventh Applicant
and
TELSTRA CORPORATION LIMITED
First Respondent
TELSTRA MULTIMEDIA PTY LTD
Second Respondent
BAYSIDE CITY COUNCIL
Third Respondent
MORELAND CITY COUNCIL
Fourth Respondent
FRANKSTON CITY COUNCIL
Fifth Respondent
YARRA CITY COUNCIL
Sixth Respondent
Applications for special leave to appeal

GLEESON CJ
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 14 FEBRUARY 2003, AT 10.45 AM

________________

MR N.J. YOUNG, QC: May it please the Court, I appear with my learned friend, MR M.N. CONNOCK, for the Victorian Councils, who are the applicants in matters S162 and S163. The same Victorian Councils are respondents in other matters. (instructed by Maddocks Solicitors)

MR P.J. HANKS, QC: Your Honour, I appear with my friend, MS J.M. JAGOT, for the first and second respondents in S162 and S167. (instructed by Mallesons Stephen Jaques)

MR F.M. DOUGLAS, QC: May it please the Court, I appear with my learned friends, MR K.M. CONNOR and MR G.R. KENNETT, for the New South Wales Councils in matters numbered S166 and S167. (instructed by Deacons)

MR D.F. JACKSON, QC: If the Court pleases, I appear with my learned friend, MR N. PERRAM, for the Optus respondents in S163 and S166. (instructed by Gilbert & Tobin)

GLEESON CJ: Thank you. Yes, Mr Young.

MR YOUNG: If your Honours please, this matter raises…

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

Case: [2003] HCATrans 568
Decision Date

CaseChat Overview and Summary

Bayside City Council and other local councils (the appellants) brought proceedings against Telstra Corporation Limited and Optus Networks Pty Ltd (the respondents), telecommunications companies, concerning the installation of telecommunications infrastructure. The dispute centred on the councils' rights to charge fees for the installation of underground and overhead telecommunications infrastructure on council land, and the extent to which the respondents were entitled to install such infrastructure without paying fees or obtaining consent. The matter was heard by the High Court of Australia.

The High Court was required to determine whether the appellants, as owners of public land, had the power to impose charges or require consent for the installation of telecommunications infrastructure by the respondents, who were licensed telecommunications carriers under the *Telecommunications Act 1997* (Cth). Specifically, the court considered the interplay between the rights conferred by the *Telecommunications Act* on licensed carriers and the proprietary rights of local councils over land vested in them. The central legal question was whether the provisions of the *Telecommunications Act* operated to override or limit the common law and statutory rights of landowners, including local councils, to control the use of their land.

The High Court held that the *Telecommunications Act* conferred broad rights on licensed carriers to install infrastructure, and these rights were intended to facilitate the development of a national telecommunications network. The court reasoned that the legislative scheme of the *Telecommunications Act* indicated an intention to create a uniform national regime for telecommunications infrastructure, which would prevail over inconsistent state or local government laws or proprietary rights. Consequently, the councils' attempts to charge fees or require consent for the installation of infrastructure were found to be inconsistent with the federal legislation and therefore invalid. The court applied the principle of federal paramountcy, where Commonwealth legislation prevails over state or territory legislation to the extent of any inconsistency.

The High Court dismissed the appeals, finding that the councils did not have the power to charge fees or require consent for the installation of telecommunications infrastructure by the respondents.

Orders