Foxtel Management Pty Ltd v Australian Competition & Consumer Commission [2000] FCA 589

FEDERAL COURT OF AUSTRALIA

Foxtel Management Pty Ltd v Australian Competition & Consumer Commission [2000] FCA 589

TELECOMMUNICATIONS – Promotion of competition in relation to analogue cable television programs – Facilitation of access under Part XIC of Trade Practices Act 1974 – Purported 1997 specification by Australian Competition and Consumer Commission ("ACCC") pursuant to transitional legislation – Specification statement included not only analogue distribution service but also three optional adjunct services: network management access function, conditional access function and subscriber premises servicing function – Challenge to validity of specification – Whether validity ought to be considered having regard to delay – Effect of ACCC's omission to publish full copy of statement in Gazette – Whether ACCC was empowered to specify multiple services – Whether specification is uncertain – Whether the specified service (or any one of multiple services) is not an "eligible service" or not "necessary" for the purpose of enabling the supply of a broadcasting service – Severance of invalid elements – 1999 declaration under Part XIC of Trade Practices Act – Validity – Whether ACCC's power exhausted by 1997 specification – Whether improper exercise of power – Alleged failure to take into account relevant considerations – Alleged taking account of irrelevant considerations – Alleged predetermination – Alleged error of law – Whether no evidence to support conclusions – Failure to make inquiries – Alleged unreasonableness – Whether FOXTEL is a "carriage service provider". Trade Practices Act 1974, ss152AB, 152AG, 152AH, 152AL and 152AR Telecommunications (Transitional Provisions and Consequential Amendments) Act 1997, s39 Telecommunications Act 1997, ss87, 88, 93 and 97 Administrative Decisions (Judicial Review) Act 1977, s5 Acts Interpretation Act 1901, ss23(b), 33(1) and 46(1)(b) FOXTEL MANAGEMENT PTY LIMITED v AUSTRALIAN COMPETITION AND CONSUMER COMMISSION N1088 of 1999 FOXTEL MANAGEMENT PTY LIMITED v AUSTRALIAN COMPETITION AND CONSUMER COMMISSION N1150 of 1999 SEVEN CABLE TELEVISION PTY LIMITED v TELSTRA CORPORATION LIMITED & ORS N1095 of 1999 FOXTEL MANAGEMENT PTY LIMITED & ANOR v SEVEN CABLE TELEVISION PTY LIMITED & ORS N217 of 2000 WILCOX J SYDNEY 8 MAY 2000