Administrative Law - Judicial Review - Decision to disconnect telephone services in reliance on s.47(1) of Telecommunications Act 1991 providing that carriers and others "must, in exercising their respective powers, do their best" to prevent facilities from being used in, or in relation to criminal offences - whether power to disconnect thereby conferred - whether service can be disconnected if carrier believes service is being used for, or in connection with, prostitution - whether power to disconnect arises under Tariff of Basic Carriage made pursuant to s.200 of Telecommunications Act 1900 - Natural Justice - whether decision - maker obliged to inform person affected of factual basis of proposed decision - extent of obligation to afford opportunity to reply to case made against person affected - whether onus improperly cast on person affected - Discretion exercised at direction or behest of another - distinguished from decision in reliance on evidence supplied by another - Words and Phrases - "behest" - not synonymous with "request"; Administrative Decisions (Judicial Review) Act 1977 ss 5(1)(e), 5(2)(e) Telecommunications Act 1991 ss 47, 190, 200, 281, 291.
Post and Telecommunications - Telephonic and related services - carrier's power to disconnect service - when exercisable - carriers' obligations "in exercising their respective powers to do their best" to prevent facilities from being used in, or in relation to, criminal offences - whether power to disconnect aries under Tariff of Basic Carriage made pursuant to s 200 of Telecommunications Act 1991 - Telecommunications Act 1991 ss 47, 190, 200, 281, 288, 291.
TELSTRA CORPORATION LIMITED v RONALD AUSTIN KENDALL
QG 119 OF 1994
CORAM: BLACK CJ, RYAN & HILL JJ PLACE: MELBOURNE DATE: 31 JANUARY 1995
IN THE FEDERAL COURT OF AUSTRALIA ) ) QUEENSLAND DISTRICT REGISTRY ) No QG 119 of 1994 ) GENERAL DIVISION )
ON APPEAL FROM THE HONOURABLE MR JUSTICE SPENDER
TELSTRA CORPORATION LIMITED
(Appellant)
RONALD AUSTIN KENDALL
(Respondent)
CORAM: BLACK CJ, RYAN & HILL JJ
PLACE: MELBOURNE
DATE: 31 JANUARY 1995
MINUTE OF ORDERS
THE COURT ORDERS:
That the appeal from the orders of the Honourable Justice Spender of 15 August 1994 be dismissed.
That the appellant pay the respondent's cost of the appeal, such costs to be taxed.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA ) ) QUEENSLAND DISTRICT REGISTRY ) No QG 119 of 1994 ) GENERAL DIVISION )
ON APPEAL FROM THE HONOURABLE MR JUSTICE SPENDER
TELSTRA CORPORATION LIMITED
(Appellant)
RONALD AUSTIN KENDALL
(Respondent)
CORAM: BLACK CJ, RYAN & HILL JJ
PLACE: MELBOURNE
DATE: 31 JANUARY 1995
REASONS FOR JUDGMENT
THE COURT: This is an appeal from a judgment of a Judge of…
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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AGLC
Telstra Corporation Ltd v Kendall [1995] FCA 16
Case
[1995] FCA 16
Decision Date
CaseChat Overview and Summary
The case of Telstra Corporation Limited v Ronald Austin Kendall involved an appeal by Telstra against a decision of Justice Spender that set aside a decision by Telstra, through one of its officers, to disconnect certain telecommunication services connected to six distinct telephone numbers in the name of Mrs. R A Phillips. The decision was made following a request by the Queensland Police Service, which believed that the services were being used in connection with prostitution offences. The primary issue before the court was whether section 47 of the Telecommunications Act 1991 empowered Telstra to disconnect the services, and if not, whether the decision to disconnect was procedurally fair and not made at the behest of another.
The court held that section 47 did not confer on Telstra the power to disconnect services. The section simply required the named persons to "do their best" to prevent telecommunications networks and facilities from being used in or in relation to the commission of offences. The court further held that procedural fairness did not require the decision-maker to communicate specific conclusions drawn from evidence, as long as those conclusions were not unreasonable. The court found that Mr. Bennett's decision to disconnect the services was not made at the behest of another, as he had exercised his own discretion in considering the material before him.
Ultimately, the appeal was dismissed, as the decision to disconnect the services was not authorised by section 47 of the Act. The court ordered that the appellant pay the respondent's costs of the appeal.