Telstra Corporation Ltd v Kendall

Case [1995] FCA 16


CATCHWORDS

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.

Bradley v The Commonwealth (1973) 128 CLR 557;

Kioa v West (1985) 159 CLR 550;

McVeigh v Willarra Pty Ltd (1984) 6 FCR 587;

The Queen v Anderson; Ex parte Ipec-Air Pty Limited (1965) 113 CLR 177.

ON APPEAL FROM THE HONOURABLE MR JUSTICE SPENDER

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:

  1. That the appeal from the orders of the Honourable Justice Spender of 15 August 1994 be dismissed.

  1. 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…

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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.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

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Decision

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Ratio Decidendi

Legal Principle Established

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