State of Queensland v Telecommunications Industry Ombudsman

In the matter of the State of Queensland versus the Telecommunications Industry Ombudsman, the appellant, the State of Queensland, sought judicial review of a decision made by the TIO in response to an objection lodged by the Department of Transport and Main Roads (DTMR) against Optus' proposal to install additional fibre optic cable in a conduit owned by NBN Co on the Kidd Bridge. The TIO had found that the proposed activity constituted "maintenance" under clause 7 of Schedule 3 of the Telecommunications Act 1997 (Cth), and therefore had jurisdiction to consider the objection. The State challenged the TIO's decision on several grounds, including that the TIO misconstrued the meaning of "maintenance" and that the failure of Optus to make reasonable efforts to enter into an agreement with the DTMR could not be a basis for objecting to the proposed activity. The primary judge dismissed the State's application for review, and the State appealed to the Full Court. The Full Court considered the grounds of appeal and found that the primary judge was correct in her decision. The court found that the TIO correctly interpreted the term "maintenance" and that the failure of Optus to make reasonable efforts to enter into an agreement with the DTMR could not be a basis for objecting to the proposed activity. The court also found that the onus was on the objector to show an alternative location for the proposed work. The appeal was dismissed and the orders of the primary judge were affirmed. The parties were directed to file an agreed form of orders or, in default of agreement, any submissions as to the form of the appropriate orders reflecting the reasons of the Court. The final orders of the Court would be made on the papers, subject to any further directions.