Telstra Corporation Ltd v Minister for Communications, Information Technology and the Arts

[2007] FCA 1441

FEDERAL COURT OF AUSTRALIA

Telstra Corporation Ltd v Minister for Communications, Information Technology & the Arts [2007] FCA 1441

TELSTRA CORPORATION LIMITED v MINISTER FOR COMMUNICATIONS, INFORMATION TECHNOLOGY AND THE ARTS
NSD 1851 OF 2007

BUCHANAN J
11 SEPTEMBER 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1851 OF 2007

BETWEEN:	TELSTRA CORPORATION LIMITED Applicant
AND:	MINISTER FOR COMMUNICATIONS, INFORMATION TECHNOLOGY AND THE ARTS Respondent

JUDGE:	BUCHANAN J
DATE OF ORDER:	11 SEPTEMBER 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The Applicant’s notice of motion dated 11 September 2007 be made returnable instanter.

2.The Applicant have leave to file in Court:

(a)the Application to Review dated 11 September 2007; and

(b)the affidavit of Gary Goldsworthy, sworn on 11 September 2007 in support of the Application.

3.Pursuant to Order 3, rule 3 of the Federal Court Rules, the time for service of the Application and the affidavit of Gary Goldworthy be abridged to 12 noon on 12 September 2007.

4.Service of the documents referred to in order 3 may be effected by facsimile transmission to the Respondent’s facsimile numbers [phone] and [phone].

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1851 OF 2007

BETWEEN:	TELSTRA CORPORATION LIMITED Applicant
AND:	MINISTER FOR COMMUNICATIONS, INFORMATION TECHNOLOGY AND THE ARTS Respondent

JUDGE:	BUCHANAN J
DATE:	11 SEPTEMBER 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

BUCHANAN J:

1. The matter before the Court, which comes before me as duty judge, involves Telstra Corporation Limited as applicant and the Minister for Communications, Information Technology and the Arts as respondent.  It comes before the Court by notice of motion seeking leave to file in court an application to review relying upon the Administrative Decisions (Judicial Review) Act 1977 (Cth), s 39B of the Judiciary Act 1903 (Cth), ss 23 and 32 of the Federal Court of Australia Act 1976 (Cth) and the Court’s accrued jurisdiction. The application seeks review of a proposed decision by the respondent to make a variation to an instrument made under s 63 of the Telecommunications Act 1997 (Cth) (‘the Telecommunications Act’) specifying conditions to apply in connection with a carrier licence granted to the applicant under that Act. The application is supported by affidavits sworn by Roger John Forbes on 11 September 2007 and affirmed by Gary Ronald Goldsworthy on 11 September 2007.

2. It appears that on 6 August 2007 the respondent gave written notice to the applicant under s 64 of the Telecommunications Act that she was considering making a variation to the carrier licence. In accordance with s 64 she forwarded a draft version of the variation under consideration, invited submissions and indicated that a final determination would not be made before the expiry of 30 days as required by s 64(2), that is, before 5 September 2007. The period of time thereby advised has now expired and the applicant is concerned that the Minister may at any time vary its carrier licence in the way indicated.

3. The essential ground supporting the application to review is that the Minister has, by various communications and public statements, firmly indicated the decision which she proposes to make before giving any consideration to the submissions that were filed in opposition to the variation under contemplation and that she has conducted herself in a way that breaches the rules of natural justice and creates a reasonable apprehension of bias that she has predetermined the matter she is required to consider under s 64 of the Telecommunications Act. The applicant in those circumstances seeks an abridgment of the time for service of the application and supporting affidavits and an early hearing of its claim for interlocutory relief. I am satisfied that it is appropriate to abridge time for service as sought.

4. The applicant sought that the matter be returned to the Court in two days’ time.  I am not satisfied that it is necessary that the matter be returned to the Court with that degree of urgency, despite Mr Kirk’s submissions to the contrary.  I am not persuaded that the prejudice to the applicant is so great that the matter needs to come back before the Court before Monday of next week.  When it does so it will come before the duty judge who will consider what the parties wish to say about the future course of the matter and the urgency with which any application for interlocutory relief should be dealt.

5. That judge will also have the advantage of having an indication of the respondent’s position in relation to the proceedings in general and the application for interlocutory relief in particular.  In the circumstances I will make the orders sought in the notice of motion as amended so that order 5 reads that the application be made returnable at 9.30 am on 17 September 2007 before Allsop J in Sydney for directions.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan.

Associate:

Dated:        11 September 2007

Counsel for the Applicant:	J Kirk
Solicitor for the Applicant:	Mallesons Stephen Jaques
Date of Hearing:	11 September 2007
Date of Judgment:	11 September 2007