Telstra Corporation Ltd - [2001] ACompT 1

AUSTRALIAN COMPETITION TRIBUNAL
Telstra Corporation Ltd [2001] ACompT 1
Trade Practices – Telecommunications Access Regime – access dispute – arbitration – application to Australian Competition Tribunal to review determination by Tribunal – applications by other persons to intervene and be joined as parties – whether intervention should be permitted.
TELSTRA CORPORATION LTD - File No. 1 of 2000
TELSTRA CORPORATION LTD - File No. 2 of 2000
JUSTICE von DOUSSA, MR R C DAVEY, PROFESSOR R C DUNCAN
ADELAIDE (HEARD IN SYDNEY)
21 FEBRUARY 2001

IN THE AUSTRALIAN COMPETITION TRIBUNAL

File No 1 of 2000

RE:

APPLICATION BY TELSTRA CORPORATION LTD FOR REVIEW OF A FINAL DETERMINATION OF THE ACCC MADE ON 11 SEPTEMBER 2000 IN RESPECT OF AN ACCESS DISPUTE BETWEEN AAPT LIMITED AND TELSTRA CORPORATION LIMITED (DOMESTIC PSTN ORIGINATING AND TERMINATING ACCESS SERVICES)

BY:

TELSTRA CORPORATION LTD (ACN 051 775 556)
APPLICANT

File No 2 of 2000

RE:

APPLICATION BY TELSTRA CORPORATION LTD FOR REVIEW OF A FINAL DETERMINATION OF THE ACCC MADE ON 18 SEPTEMBER 2000 IN RESPECT OF AN ACCESS DISPUTE BETWEEN PRIMUS TELECOMMUNICATIONS PTY LTD AND TELSTRA CORPORATION LIMITED (DOMESTIC PSTN ORIGINATING AND TERMINATING ACCESS SERVICES

BY:

TELSTRA CORPORATION LTD (ACN 051 775 556)
APPLICANT

TRIBUNAL:

JUSTICE von DOUSSA (PRESIDENT)
MR R C DAVEY and
PROFESSOR R C DUNCAN

DATE OF ORDER:

21 FEBRUARY 2001

WHERE MADE:

ADELAIDE (HEARD IN SYDNEY)

THE TRIBUNAL ORDERS THAT:
1.Applications by Optus Networks Pty Ltd and Optus Mobile Pty Ltd to intervene in the applications for review by Telstra Corporation Ltd in File No. 1 of 2000 and File No. 2 of 2000 be granted.
2.Application by Macquarie Corporate Telecommunications Pty Ltd to intervene in the said applications by Telstra be refused.

IN THE AUSTRALIAN COMPETITION TRIBUNAL

File No 1 of 2000

RE:

APPLICATION BY TELSTRA CORPORATION LTD FOR REVIEW OF A FINAL DETERMINATION OF THE ACCC MADE ON 11 SEPTEMBER 2000 IN RESPECT OF AN ACCESS DISPUTE BETWEEN AAPT LIMITED AND TELSTRA CORPORATION LIMITED (DOMESTIC PSTN ORIGINATING AND TERMINATING ACCESS SERVICES)

BY:

TELSTRA CORPORATION LTD (ACN 051 775 556)
APPLICANT

File No 2 of 2000

RE:

APPLICATION BY TELSTRA CORPORATION LTD FOR REVIEW OF A FINAL DETERMINATION OF THE ACCC MADE ON 18 SEPTEMBER 2000 IN RESPECT OF AN ACCESS DISPUTE BETWEEN PRIMUS TELECOMMUNICATIONS PTY LTD AND TELSTRA CORPORATION LIMITED (DOMESTIC PSTN ORIGINATING AND TERMINATING ACCESS SERVICES
RESPONDENT

BY:

TELSTRA CORPORATION LTD (ACN 051 775 556)
APPLICANT

TRIBUNAL:

JUSTICE von DOUSSA (PRESIDENT)
MR R C DAVEY and

PROFESSOR R C DUNCAN

DATE:

21 FEBRUARY 2001

PLACE:

ADELAIDE (HEARD IN SYDNEY)

REASONS FOR DECISION
THE TRIBUNAL:

Two applications each made under s 152DO of the Trade Practices Act 1974 (Cth) (the Act) came before the Australian Competition Tribunal (the Tribunal) for a preliminary conference on 15 December 2000. Three corporations, not presently parties to the proceedings, applied to intervene and become parties to each application. At the conclusion of the hearing the Tribunal indicated the decisions it proposed to make on the applications to intervene, but said that…

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: [2001] ACompT 1
Decision Date: 21 FEBRUARY 2001

CaseChat Overview and Summary

The Australian Competition Tribunal heard two applications by Telstra Corporation Ltd seeking review of determinations made by the Australian Competition and Consumer Commission on access disputes between Telstra and AAPT Limited (File No. 1 of 2000) and Telstra and Primus Telecommunications Pty Ltd (File No. 2 of 2000). These applications were brought under s 152DO of the Trade Practices Act 1974 (Cth) (the Act). Three corporations not presently parties to the proceedings applied to intervene and become parties to each application for review. The Tribunal granted the applications by Optus Networks Pty Ltd and Optus Mobile Pty Ltd, but refused the application by Macquarie Corporate Telecommunications Pty Ltd. The Tribunal found that Optus had a sufficient interest in the proceedings because it was the largest acquirer of the declared services, except for the declared services that Telstra acquires from itself, and because it had been extensively involved in discussions and processes leading to the n/e/r/a costs model, which the Australian Competition and Consumer Commission (ACCC) uses to determine the price of the declared services. The Tribunal also found that Optus had a sophisticated understanding of the issues raised in the application and had developed an expertise that is equal to that of any other party to the reviews. In contrast, Macquarie was not an access seeker for the declared services, and its participation in the Commission's inquiry and analysis culminating in the July 2000 report was of an altogether different order to the extent of the involvement of Optus. The Tribunal found that Macquarie did not have a sufficient interest in the proceedings to permit intervention.

Orders