Telstra Corporation Limited [2002] FCA 108

FEDERAL COURT OF AUSTRALIA

Telstra Corporation Limited [2002] FCA 108 PRACTICE AND PROCEDURE – motion to expedite Full Court hearing

Federal Court of Australia Act 1976 (Cth) Federal Court of Australia Rules TELSTRA CORPORATION LIMITED v HIS HONOUR JUSTICE VON DOUSSA, ROBIN DAVEY, PROFESSOR R DUNCAN, AAPT LIMITED V1303 of 2001 BLACK CJ 15 FEBRUARY 2002 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V1303 OF 2001

BETWEEN: TELSTRA CORPORATION LIMITED

APPLICANT

AND: HIS HONOUR JUSTICE VON DOUSSA

FIRST RESPONDENT

ROBIN DAVEY

SECOND RESPONDENT

PROFESSOR R DUNCAN

THIRD RESPONDENT

AAPT LIMITED (ACN 052 082 416)

FOURTH RESPONDENT

JUDGE: BLACK CJ

DATE OF ORDER: 15 FEBRUARY 2002

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. The hearing of the application be expedited. 2. Costs of the notice of motion to be reserved. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V1303 OF 2001

BETWEEN: TELSTRA CORPORATION LIMITED

APPLICANT

AND: HIS HONOUR JUSTICE VON DOUSSA

FIRST RESPONDENT

ROBIN DAVEY

SECOND RESPONDENT

PROFESSOR R DUNCAN

THIRD RESPONDENT

AAPT LIMITED (ACN 052 082 416)

FOURTH RESPONDENT

JUDGE: BLACK CJ

DATE: 15 FEBRUARY 2002

PLACE: MELBOURNE

REASONS FOR JUDGMENT ON A NOTICE OF MOTION 1 There is before the Court an application by Telstra Corporation Limited ("Telstra"), under s 39B of the Judiciary Act 1903 (Cth), seeking to restrain the First, Second and Third Respondents, as members of the Australian Competition Tribunal ("the Tribunal"), from proceeding to determine, under Part XIC of the Trade Practices Act 1974 (Cth), a price for the supply of declared telecommunication services during a period before amendments made to Part XIC by the Telecommunications Legislation Amendment Act 1999 (Cth) ("the Amending Act") came into force, on 5 July 1999 (the "Commencement Date"). The application was filed on 24 December 2001. 2 Telstra has, by notice of motion dated 23 January 2002, applied for an order that the hearing of this matter be expedited. The motion is opposed by the Fourth Respondent, AAPT Limited ("AAPT"). The First, Second and Third Respondents have submitted to any order of the Court in the application, save as to costs. 3 As this matter comes to the Court from a Tribunal constituted by members including a Judge of this Court, it must be heard by a Full Court: s 20(2), Federal Court of Australia Act 1976 (Cth). The motion to expedite the hearing is heard and determined by me, as a single judge of the Court, pursuant to Order 10 Rule 1A of the Federal Court of Australia Rules. 4 It is the Court's practice to list applications to the Full Court for hearing during the sitting dates of the Full Court in the Court's appellate jurisdiction that are published by the Chief Justice pursuant to Order 2 Rule 1 of the Federal Court of Australia Rules. In the ordinary course, this application would probably have been listed for hearing in the May Full Court sittings. As Practice Note 1 provides, however, where the circumstances require it, the Chief Justice may convene a Full Court outside the published dates for the Full Court sittings and a party may seek an order that an application to the Full Court be expedited. BACKGROUND 5 In December 1998, AAPT notified the Australian Competition and Consumer Commission ("ACCC") of an access dispute in relation to the supply by Telstra to AAPT of Telstra's domestic PSTN originating and terminating access services for periods from 1 July 1998. This notification was made under s 152CM(1) of the Trade Practices Act 1974 ("the Act"). The ACCC conducted arbitration of the access dispute, and made a determination of charges payable by AAPT to Telstra for the declared services for two periods, 5 July 1999 to 30 June 2000, and 1 July 2000 to 30 June 2001. 6 During the course of the arbitration, AAPT sought that the ACCC also determine the price of access to the declared services for the period from 1 July 1998 to the Commencement Date (the "Relevant Period"). Telstra opposed this. Telstra's argument was, in essence, that the Commission's power to make a retrospective "final determination" was found in s 152DNA(1) of the Act, which was introduced by the Amending Act. Telstra relied on the transitional provision accompanying the introduction of s 152DNA(1), which provides, relevantly, that "a final determination" has no effect to the extent (if any) to which it is expressed to have taken effect on a date earlier than the Commencement Date: Schedule 1, Item 74 of the Amending Act. 7 In the result, the ACCC did not make any determination for the Relevant Period, and stated in its reasons that a determination under the legislation cannot have effect as a binding determination at or on any date prior to the Commencement Date. 8 Telstra having applied to the Australian Competition Tribunal for a review of the ACCC's determination, and a re-arbitration of the prices fixed by the ACCC's determination, AAPT contended that the Tribunal had power on the re-arbitration to determine prices payable for PSTN services supplied before the Commencement Date, and ought to determine those prices. The Tribunal agreed to rule on the question of power as a preliminary issue. 9 After hearing the parties on the question of power, the Tribunal ruled that it did have power to determine prices payable for declared services supplied before the Commencement Date. The Tribunal's reasons were, in essence: · First, that the power of the Commission and the Tribunal to make price determinations in respect of the Relevant Period (prior to the Commencement Date) was to be ascertained from the provisions of the Act as they stood prior to the passage and coming into force of the Amending Act, those provisions being, in the circumstances of the case, preserved by ss 8 and 8A of the Acts Interpretation Act 1901 (Cth). · Second, that the Commission and the Tribunal had a power, under the former provisions of the Act, to make a determination with retrospective effect. · Third, that, the Amending Act having introduced new and different powers exercisable in the course of the arbitration process, the transitional provision relied on by Telstra (Item 74) qualifies those powers, but has nothing to say about the scope of old powers and procedures. 10 The Tribunal's ruling was made on 30 November 2001 and its reasons were published on 7 December 2001. 11 The Tribunal intends to proceed on the basis that it has power to make a determination fixing the price for the supply of the declared services for the entire period of the notified access dispute, including the Relevant Period. The matter is currently listed for hearing before the Tribunal for a period of ten weeks, commencing on 4 March 20002. SUBMISSIONS 12 Mr Maxwell QC for Telstra submitted that the most convenient course in the circumstances was for the hearing of this matter to be expedited, ideally so that the hearing would take place before 4 March 2002. He submitted, however, that an early hearing after that date would still be desirable, essentially for the reason that if Telstra's contention that there is no power to make a determination for the relevant period were upheld, the scope of the evidence would be considerably lessened and there would be a consequent saving in time and cost. This would be so notwithstanding that the hearing before the Tribunal had progressed some way. Since it may be accepted that the evidence bearing specifically upon the disputed period could be dealt with later in what, on any view, not likely to be a short hearing, it may be accepted that there is indeed the potential for a considerable saving in time and cost if the question of power is determined expeditiously. 13 It was also pointed out by Mr Maxwell that Mr Shavin QC, counsel for AAPT, has agreed that if the matter were to come on for hearing in May 2002, as it probably would in the ordinary course, there would be no submission that the Court ought to decline to grant relief on discretionary grounds. 14 Mr Shavin argued that any fragmentation of the proceedings would be undesirable and he submitted that Part XIC of the Act, and in particular s 152DQ, contemplates that any appeals to this Court on questions of law arising from a re-arbitration by the Tribunal of a determination by the Commission would be brought together at the end of the re-arbitration, and after the Tribunal had made its final determination. This certainly is contemplated by the Act, although, as Mr Shavin in effect has conceded, this would not prevent the Court properly exercising its jurisdiction under section 39B of the Judiciary Act. 15 Secondly, Mr Shavin submitted that, AAPT having filed a single notice of an access dispute with the Commission for periods from 1 July 1998, the periods of access running from that date properly reflected the totality of the dispute between the parties. Thirdly, and most importantly, Mr Shavin submitted that expedition of the hearing would prejudice AAPT, because it would have to divert resources from the concurrently running Tribunal hearing. Finally, Mr Shavin submitted that Telstra has unduly delayed in bringing on this motion to expedite the hearing, and has not applied for a stay of the Tribunal's ruling that it has power. Prejudice and delay are factors that can bear powerfully upon each other where prejudice to one side has been caused by the delay of the other. 16 In reply, Mr Maxwell submitted that there had not been undue delay on the part of Telstra, and pointed to the operation of sections 75(v) of the Constitution and 39B of the Judiciary Act 1901 in a public law context. CONSIDERATION OF THE SUBMISSIONS 17 Although fragmentation of proceedings is generally undesirable, there are some cases in which it is better to have a discrete point determined finally before proceedings have concluded. This may be so where the point is short and its determination in the course of the proceedings will not unduly affect them. Mr Maxwell submits that this is the position here. 18 On the other hand, if the Court were to rule that the disputed period was outside power with the consequence that evidence was not led, but a later court ruled otherwise, a procedure intended to save time and cost might indeed have the opposite effect. The prospect of that occurring here, however, is reduced by the circumstance that the ruling on the point would be that of a Full Court and any subsequent consideration of the matter by another Full Court would proceed within the framework of the principle that one Full Court will ordinarily follow any earlier Full Court unless it is satisfied that the first decision is plainly wrong. 19 In my view, as the resolution of the question in issue in this proceeding goes to the Tribunal's power to deal with a discrete part of the matter before it, convenience does favour an early hearing, and I consider that expedition is appropriate. 20 I am not satisfied that there has been disentitling delay on the part of Telstra, nor am I satisfied that the listing of the application for hearing concurrently with the Tribunal hearing will cause undue prejudice to AAPT. As the Tribunal's reasons for its ruling on the preliminary point make clear, and as I hope would become clear as a result of my own brief analysis of the issues, they are discrete ones involving a question of statutory interpretation. They are important, but they do not seem to me to be unduly complex. Whilst it is readily understandable that AAPT would wish its senior counsel to be personally involved in every aspect of the case, nevertheless, these being discrete legal points within reasonably short compass, I think it not unreasonable to say that AAPT could, without undue detriment, meet the problem by briefing other counsel to argue the discrete points if it remained concerned about the diversion of its legal resources for a day or so. In my view, the points could be got up by experienced counsel within a reasonably short time. It is not as if this is a case in which counsel needs to be familiar with a large body of factual material. I also observe that, it being suggested that the amounts in issue here have to be measured in "tens of millions of dollars", the additional costs of a days preparation and less than a days hearing would not be unduly disproportionate. 21 For these reasons, I will order that the hearing of the application be expedited. I will reserve the question of costs and discuss with counsel any directions that may be desirable to expedite the hearing. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Black.