Telstra Corporation Limited v Australian Competition and Consumer Commission (No 2)

Case [2017] FCA 430


FEDERAL COURT OF AUSTRALIA

Telstra Corporation Limited v Australian Competition and Consumer Commission (No 2) [2017] FCA 430

File number: NSD 1338 of 2015
Judge: FOSTER J
Date of judgment: 27 April 2017
Catchwords: COSTS – whether an applicant for judicial review of a regulatory decision, having failed to obtain any relief by way of judicial review, should pay the costs of certain entities who were added as parties to the proceeding upon their own application after the proceeding had been commenced in circumstances where those entities had taken a substantial role in the public inquiry which had led to the regulatory decision and where they had an obvious legitimate commercial interest in the outcome of the inquiry and of the judicial review proceeding
Cases cited:

Telstra Corporation Limited v Australian Competition and Consumer Commission [2017] FCA 316

Credit Lyonnais Australia Ltd v Darling (1991) 5 ACSR 703

R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 1

State of Victoria v Sportsbet Pty Ltd (No 2) [2012] FCAFC 174

Date of hearing: Decided on the papers
Registry: New South Wales
Division: General Division
National Practice Area: Commercial and Corporations
Sub-area: Economic Regulator, Competition and Access
Category: Catchwords
Number of paragraphs: 20
Counsel for the Applicant: Mr AC Archibald QC and Ms TL Wong
Solicitor for the Applicant: Gilbert + Tobin Lawyers
Counsel for the First Respondent: Mr NJ Williams SC and Ms AM Mitchelmore
Solicitor for the First Respondent: DLA Piper
Counsel for the Second Respondent: Mr R Lancaster SC and Mr CG Arnott
Solicitor for the Second Respondent: Maddocks Lawyers
Counsel for the Third Respondent: Mr B Walker SC and Mr AK Flecknoe-Brown
Solicitor for the Third Respondent: Thomson Geer
Counsel for the Fourth to Sixth Respondents: Mr SJ Free
Solicitor for the Fourth to Sixth Respondents: Baker & McKenzie

ORDERS

NSD 1338 of 2015
BETWEEN:

TELSTRA CORPORATION LIMITED (ACN 051 775 556)

Applicant

AND:

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION

First Respondent

OPTUS NETWORKS PTY LIMITED (ACN 008 570 330)

Second Respondent

TPG TELECOM LIMITED (ACN 093 058 069) (and others named in the Schedule)

Third Respondent

JUDGE:

FOSTER J

DATE OF ORDER:

27 APRIL 2017

THE COURT ORDERS THAT:

1.The applicant pay the second, third, fourth, fifth and sixth respondents’ costs of and incidental to the Application for Judicial Review filed by the applicant on 5 November 2015.  

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

FOSTER J:

  1. On 28 March 2017, I dismissed the applicant’s Application for Judicial Review and ordered the applicant to pay the first respondent’s costs of and incidental to that Application.  At the same time, I put in place a timetable for the provision of brief Written Submissions by the second to sixth respondents, and the applicant, in the event that any of the second to sixth respondents also sought an order for costs in its favour.  Thereafter, all remaining questions of costs were to be decided on…

Continue reading Telstra Corporation Limited v Australian Competition and Con...

Sign in free to access the full text

Details
AGLC
Telstra Corporation Limited v Australian Competition and Consumer Commission (No 2) [2017] FCA 430
Case
[2017] FCA 430
Decision Date

CaseChat Overview and Summary

Telstra Corporation Limited sought judicial review of a decision by the Australian Competition and Consumer Commission (ACCC). The dispute involved regulatory decisions related to access to Telstra's infrastructure, with several commercial entities (referred to as access seekers) who had taken part in the public inquiry that led to the regulatory decision seeking to be joined as respondents in the judicial review proceedings. These entities included Optus Networks Pty Limited, TPG Telecom Limited, and Macquarie Telecom, which were represented by separate legal counsel. Telstra did not oppose the joinder of these entities as respondents.

The court was tasked with determining the appropriate costs order in light of Telstra's failure to obtain any relief by way of judicial review. The central issue was whether Telstra should be required to pay all costs incurred by the access seekers or whether it should only pay 70% of those costs, as Telstra had conceded in its Written Submission on costs. The respondents argued that they should be awarded their full costs due to their substantial involvement in the public inquiry and legitimate commercial interests in the outcome of both the inquiry and the judicial review proceedings.

The court determined that the joinder of the access seekers did not delay or prolong the hearing of Telstra's Application for Judicial Review, and their submissions were succinct, focused, and helpful. The court found that the access seekers' participation was justified given their significant role in the public inquiry and their legitimate interests in the regulatory decisions. Consequently, the court ordered that Telstra pay the full costs of and incidental to the Application for Judicial Review incurred by the second, third, fourth, fifth, and sixth respondents.

Orders

Orders of the court

1. The applicant pay the second, third, fourth, fifth and sixth respondents’ costs of and incidental to the Application for Judicial Review filed by the applicant on 5 November 2015.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

In light of the concession made by Telstra in its Written Submission on costs, the issue between Telstra, on the one hand, and the second to sixth respondents, on the other hand, is whether Telstra should only be required to pay 70% of each of the second to sixth respondents’ costs or whether it should be required to pay all of their costs.CONSIDERATION I will assume for present purposes that a reader of these Reasons for Judgment will also have read the Reasons for Judgment published by me on 28 March 2017 (Telstra Corporation Limited v Australian Competition and Consumer Commission [2017] FCA 316) in which I explained my reasons for dismissing Telstra’s Application for Judicial Review. In the proceeding, the first respondent, the Australian Competition and Consumer Commission (ACCC), was represented by Senior and Junior Counsel instructed by DLA Piper. The second respondent, Optus Networks Pty Limited (Optus) was represented by Senior and Junior Counsel instructed by Maddocks Lawyers. The third respondent, TPG Telecom Limited (TPG), was represented by Senior and Junior Counsel instructed by Thomson Geer. Finally, the fourth, fifth and sixth respondents (Macquarie Telecom) were represented by Junior Counsel instructed by Baker & McKenzie. Thus, the respondents were divided into four separate groupings: the ACCC, Optus, TPG and Macquarie Telecom, each of which was separately represented. The ACCC filed a Written Submission for the purposes of the hearing of Telstra’s Application for Judicial Review but made no oral submissions at that hearing. Each of the other three groupings on the respondents’ side of the record made Written Submissions and also addressed the Court orally at that hearing. A number of matters are quite clear. These were relied upon by all of the respondents in support of their claims for costs. These matters are:(a)Telstra commenced its Application for Judicial Review naming only the ACCC as a respondent. While it is true that, as the relevant decision maker, the ACCC was a necessary party to Telstra’s application, it must have been plain to Telstra when it commenced its proceeding that a number of commercial entities (access seekers) who would, in due course, be seeking access to Telstra’s infrastructure the subject of the Final Access Decisions (FADs) made by the ACCC and who had taken a substantial role in the public inquiry conducted by the ACCC which ultimately led to the making of those FADs, would seek to be joined as parties to Telstra’s Application for Judicial Review. Of course, this is precisely what happened. Each of the second to sixth respondents applied to be joined and Telstra did not oppose the joinder application. (b)The Written Submissions filed and served by each of the access seekers were succinct, to the point and found to be helpful by the Court. Although some of those Written Submissions were lengthy, the length of those Submissions was largely the result of the very lengthy Submissions lodged by Telstra in support of its Application.(c)The oral submissions made on behalf of the access seekers were focussed and helpful and not unduly repetitive as between the three groupings of access seekers.(d)The hearing of Telstra’s Application for Judicial Review was not delayed or prolonged at all by the joinder of the access seekers. The time taken to hear that Application was as short a time as could reasonably have been expected in all the circumstances. Indeed, the hearing finished well within the time allocated for the hearing and was conducted efficiently by all parties, including Telstra.