Satellite and Wireless Pty Ltd v Body Corporate for Brighton on Broadwater Sundale North 1 Community Titles Scheme 48640
[2018] FCA 723
•4 May 2018
FEDERAL COURT OF AUSTRALIA
Satellite & Wireless Pty Ltd v Body Corporate for Brighton on Broadwater Sundale North 1 Community Titles Scheme 48640 [2018] FCA 723
File number: NSD 666 of 2018 Judge: LOGAN J Date of judgment: 4 May 2018 Catchwords: COMMUNICATIONS LAW – licensed telecom carrier – application for injunctive relief against a body corporate – failure of body corporate to appear – judgment made in default. Held – injunction granted. Legislation: Telecommunications Act 1997 (Cth) Date of hearing: 4 May 2018 Date of last submissions: 3 May 2018 Registry: Queensland Division: General Division National Practice Area: Other Federal Jurisdiction Category: Catchwords Number of paragraphs: 6 Counsel for the Applicant: Mr H Trotter Solicitor for the Applicant: Barringer Leather Lawyers Counsel for the Respondents: The respondents did not appear ORDERS
NSD 666 of 2018 BETWEEN: SATELLITE & WIRELESS PTY LTD ACN 103 881 303
Applicant
AND: BODY CORPORATE FOR BRIGHTON ON BROADWATER SUNDALE NORTH 1 COMMUNITY TITLES SCHEME 48640
First Respondent
BODY CORPORATE FOR BRIGHTON ON BROADWATER SUNDALE SOUTH 1 COMMUNITY TITLES SCHEME 48642
Second Respondent
BODY CORPORATE FOR BRIGHTON ON BROADWATER SUNDALE SOUTH 2 COMMUNITY TITLES SCHEME 49180
Third Respondent
JUDGE:
LOGAN J
DATE OF ORDER:
4 MAY 2018
THE COURT ORDERS THAT:
1.The respondents by themselves, their employees, servants and/or agents, and/or representatives, are restrained from, and an injunction issue to restrain the respondents by themselves, their employees, servants and/or agents, and/or representatives, from interfering with the applicant’s statutory rights under Div 2 of Pt 1 of Sch 3 of the Telecommunications Act 1997. Specifically, the respondents by themselves, their employees, servants and/or agents, and/or representatives will not interfere with the applicant’s statutory right to:
(a)enter onto the land on which the building known as Sundale Apartments is situated upon, located at 2 Como Crescent, Southport Queensland 4215 (“the Land”) for the purposes set out in Div 2 of Pt 1 of Sch 3 of the Telecommunications Act 1997;
(b)engage in activities and exercise powers arising under Div 2 of Pt 1 of Sch 3 of the Telecommunications Act 1997; and
(c)carry out an inspection of the roof of the building to determine whether it is suitable for the purpose of installing a low-impact facility as specified in detail in the applicant’s Land Entry and Activity Notice dated 18 November 2016 on dates to be notified by the applicant.
2.The term “interfere with” in paragraph 1 herein includes:
(a)obstruct;
(b)prohibit;
(c)impede;
(d)stall; and
(e)prevent.
3.The respondents pay the costs of the applicant, of and incidental to the application, to be taxed if not agreed.
4.Pursuant to r 41.04(1) of the Federal Court Rules, the respondents must do all things necessary to comply with the above orders of the Court. The Court notes that if the respondents do not comply with any of the above orders of the Court, the Registrar may bring the respondents’ failure, neglect or disobedience to the attention of the Court and the Honourable Court may act on its own initiative pursuant to r 1.40 of the Federal Court Rules.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(Revised From Transcript)LOGAN J:
The applicant, Satellite & Wireless Pty Ltd (Satellite & Wireless) is a licensed telecommunications carrier under the Telecommunications Act 1997 (Cth) (the Act). The respondents are the body corporate in respect of a building known as Sundale Apartments situated on Southport on the Gold Coast in Queensland. Today is the date appointed for the first case management hearing, in respect of an application by Satellite & Wireless for injunctive relief against the body corporate. For its own reasons, the body corporate, notwithstanding that the premises concerned are in Queensland, has chosen to have an address for service in New South Wales.
When the proceeding was called on, both in Sydney and a video link to Brisbane in the apprehension that, given the address for service, there may be an appearance in Sydney, neither in Sydney nor in Brisbane was there an appearance by, or on behalf of, the body corporate. There is no notice of appearance on behalf of the body corporate on the Court file. I am satisfied, having regard to an affidavit made by Mr Leather and filed on 23 April 2018, that the body corporate has been served with the originating application and supporting affidavits. The result then is that there has been an event of default this morning.
Satellite & Wireless did not apply for any interlocutory injunctive relief, but the event of default in itself, as the originating application gives notice, entitles Satellite & Wireless to such relief as may be apparent if there is no appearance on behalf of the body corporate. The affidavits of Mr Paul Wallace and Mr Pieter Delport each filed on 26 April 2018, in conjunction with the originating application provide a factual background in respect of the application by Satellite & Wireless for injunctive relief. What emerges from this, is that Satellite & Wireless, in the course of carrying on its business as a licensed telecommunications carrier, became aware of a need to expand its radio signal coverage for its network in and around the area surrounding the body corporate’s premises.
It sought to make arrangements with the body corporate for members of its staff to inspect the premises to see whether they would offer a suitable location from which better coverage might be afforded to its existing and also new customers. For that purpose, Satellite & Wireless gave notice to the body corporate pursuant to Sch 3 of the Act, of a proposed inspection. Satellite & Wireless did not receive any objection from the body corporate in response to that notice. On 29 November 2016, representatives of Satellite & Wireless attended the land for the purpose of carrying out the inspection, of which notice had been given. Those representatives were denied access to the roof of the building.
The concern of Satellite & Wireless is a commercial one, but none the worse for that. Its claim is that it is at risk of losing existing customers and not being able to gain further customers because of a present deficiency in signal coverage. It is just the fact in modern times that we have all come to expect in major metropolitan areas, in any event, immediacy and adequacy of telecommunication signal coverage. So it is readily understandable why an apprehension as to inadequacy of coverage will give rise to a commercial concern. There must also be acknowledged, a public interest in the ability adequately to access signal coverage for a range of telecommunication services.
The long and the short of it, then, is that the Act confers, subject to particular statutory conditions, a right of access for the purpose of inspecting particular premises so as to determine their suitability or otherwise for the placement of telecommunications equipment. Notice under the Act has been given and inspection pursuant to notice has been attempted, and that particular inspection was apparently, without any reasonable, cause the subject of refusal by or on behalf of the body corporate. In these circumstances, Satellite & Wireless is, in my view, entitled to injunctive relief in the terms proposed in the originating application for the purpose of vindicating and enforcing the statutory right conferred under provision 2 of Pt 1 of Sch 3 of the Act.
I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan. Associate:
Dated: 25 May 2018
0
0
1