Telstra Corporation Ltd v Commonwealth of Australia

[2007] HCATrans 118

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S42 of 2007

B e t w e e n -
TELSTRA CORPORATION LIMITED
Plaintiff
and
COMMONWEALTH OF AUSTRALIA
First Defendant
AUSTRALIAN COMPETITION AND CONSUMER COMMISSION
Second Defendant
PRIMUS TELECOMMUNICATIONS PTY LIMITED
Third Defendant
OPTUS NETWORKS PTY LIMITED
Fourth Defendant
CHIME COMMUNICATIONS PTY LIMITED
Fifth Defendant
XYZED PTY LIMITED
Sixth Defendant
POWERTEL LIMITED
Seventh Defendant
REQUEST BROADBAND PTY LIMITED
Eighth Defendant
NEC AUSTRALIA PTY LIMITED
Ninth Defendant
MACQUARIE TELECOM PTY LIMITED
Tenth Defendant
AMCOM PTY LIMITED
Eleventh Defendant
ADAM INTERNET PTY LIMITED
Twelfth Defendant
AGILE PTY LIMITED
Thirteenth Defendant
Summons

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 20 MARCH 2007, AT 4.03 PM

MR A.C. ARCHIBALD, QC: If it please your Honour, I appear with my learned friend, MR J.K. KIRK, for Telstra. (instructed by Mallesons Stephen Jaques)

MR D.M.J. BENNETT, QC, Solicitor‑General of the Commonwealth of Australia: May it please your Honour, I appear with my learned friend, MR C.J. HORAN, for the first defendant. (instructed by Australian Government Solicitor)

MR N.J. YOUNG, QC: If your Honour please, I appear with my learned friend, MR M.H. O’BRYAN, for the second defendant. (instructed by Australian Government Solicitor)

MR N.J. O’BRYAN, SC: If the Court pleases, I appear for the third, fifth, eleventh, twelfth and thirteenth defendants. (instructed by Herbert Geer & Rundle)

MR S.J. GAGELER, SC: If your Honour pleases, I appear for the fourth and sixth defendants. (instructed by Clayton Utz)

MS M. SLOSS, SC: If the Court pleases, I appear with my learned friends, MR D.B. CLOUGH and MS K.L. WALKER, for the seventh, eighth, ninth and tenth defendants. (instructed by Nicholls Legal)

HIS HONOUR: Does that cover all the representation? Yes, Mr Archibald.

MR ARCHIBALD: Your Honour may have seen that since the matter was last before the Court the parties on a timely basis have taken the steps that your Honour’s orders contemplated. A statement of claim has been filed. There were some requests for particulars. They were responded to and defences were filed last Friday. Telstra remains of the view that the matter appears to be one apt for resolution by means of a case stated and the directions that we propound today are directed to moving to that end and, as we understand it, the various defendants likewise consider that there are reasonable if not high prospects that agreement can be reached upon the salient facts that would form the subject of such a case stated and so a timetable has been propounded. I think your Honour may now have minutes of the orders that are sought.

HIS HONOUR: Yes, I do. Perhaps I should read it on to the transcript. The draft suggests as follows: (1) The plaintiff provide a draft stated case to the defendants on or before 16 April 2007; (2) The defendants provide to the plaintiff their comments on the draft stated case, if any, on or before 15 May 2007; (3) The plaintiff provide to the Court and the defendants a revised draft stated case on or before 29 May 2007; (4) The proceedings be stood over for further directions and the date that would be convenient to the Court will be at 4.00 pm on 13 June 2007.

MR ARCHIBALD: That would be in Canberra, your Honour?

HIS HONOUR: Yes.

MR ARCHIBALD: Yes, thank you, your Honour.

HIS HONOUR: Yes, and (5) would be costs for today be costs in the cause. Is there any dissent from that proposal at the moment?

MR BENNETT: No, your Honour.

MR YOUNG: No, your Honour.

MR O’BRYAN: No, your Honour.

HIS HONOUR: There is, however, a proposal for a so‑called confidentiality order which I would not make for several reasons at the moment, subject to what anyone is about to tell me. Insofar as the material that would be the subject of the order relates to constitutional facts, we cannot adjudicate validity on secret information I am afraid as a fundamental proposition. Two, insofar as it contains matter that is not of a constitutional fact nature, it raises the spectre of a trial on these matters and the spectre of remitter, which can be left hanging there for the moment.

No one would be prejudiced, I think, if I made an order pursuant to rule 4.07.5 of the High Court Rules giving permission to the respective parties who filed the material the subject of the proposed consent order filed by the various parties on 13 March 2007 in the case of the Australian Government Solicitor being at liberty to uplift that material from the Registry with liberty to re‑file if later deemed necessary or expedient to do so given the future conduct of the litigation. If you want to uplift it, you may and if you do not uplift it, it is there. If you do uplift it, you can re‑file it as need be later if the matter stays in this Court and if it is not, as it were, swept aside, really, by the content of the stated case. I would not propose a stated case have confidential material in it either for the reasons I have indicated.

MR ARCHIBALD: Yes, your Honour. Quite a body of that material is contained in matters associated with our affidavits and, indeed, in annexure to the statement of claim. We would understand we would have liberty to uplift those matters.

HIS HONOUR: Yes.

MR ARCHIBALD: Yes, thank you, your Honour.

HIS HONOUR: Any dissent from that proposal?

MR YOUNG: Your Honour, can I raise the practical issue that really led to this application concerning the orders. That material is material that my instructors wish to see because it may guide them in the formulation of the stated case.

HIS HONOUR: Yes. They can do so by contractual arrangement between the parties but they will not do it under…..of this Court. It is as simple as that.

MR YOUNG: Yes. If your Honour please.

HIS HONOUR: Is there anything else? Very well.

As indicated, the Court will not make those proposed confidentiality orders. The orders I do make are as follows:

1.Orders as proposed in the draft short minutes initialled by me dated and placed with the papers.

2.Pursuant to rule 4.07.5 of the High Court Rules order that any party which has filed material subject to a proposed confidentiality order be at liberty to uplift the same from the Court and be at further liberty to re‑file it as they may be advised.

3.Stand over to 4.00 pm on 13 June 2007 at Canberra before me for further directions.

Anything else, gentlemen, Ms Sloss? I will now adjourn.

AT 4.15 PM THE MATTER WAS ADJOURNED
UNTIL WEDNESDAY, 13 JUNE 2007

Telstra Corporation Ltd (Telstra) sought judicial review of a decision by the Commonwealth of Australia (the Commonwealth) to refuse Telstra's application for a licence to operate a telecommunications network in the Northern Territory. Telstra argued that the Commonwealth's refusal was unreasonable and contrary to the public interest, as it would hinder the development of essential telecommunications infrastructure in remote areas. The matter came before Gummow J of the High Court of Australia.

The central legal issue before the Court was whether the Commonwealth's decision to refuse the licence was vitiated by unreasonableness, specifically in light of the statutory duty to consider the public interest when granting or refusing such licences. Telstra contended that the Commonwealth had failed to properly weigh the public interest benefits of its proposed network against any perceived risks or disadvantages.

Gummow J considered the scope of the Commonwealth's discretion in granting telecommunications licences and the standard of review applicable to such administrative decisions. His Honour affirmed that while the Commonwealth has a broad discretion, this discretion must be exercised reasonably and in accordance with the statutory purpose, which includes a consideration of the public interest. The Court examined the evidence presented by Telstra regarding the potential benefits of its network and the Commonwealth's stated reasons for refusal. Ultimately, Gummow J found that the Commonwealth's decision, as articulated, did not demonstrate a failure to consider relevant factors or an unreasonable exercise of its discretion. The Court concluded that the Commonwealth had adequately addressed the public interest considerations in its refusal.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established