Telstra Corporation Limited v Australian Competition and Consumer Commission (No 2) [2007] FCA 493

FEDERAL COURT OF AUSTRALIA

Telstra Corporation Limited v Australian Competition and Consumer Commission (No 2) [2007] FCA 493

COMPETITION LAW – exercise of the Commission's power to issue a Part A competition notice pursuant to s 151AKA(2) of the Trade Practices Act 1974 (Cth) and written notice pursuant to s 151AKA(10) of the Act – whether competition notice circular, uncertain and fails to specify matters required by s 151AKA(2) – sophisticated carrier would understand terminology used in notices – competition notice states with sufficient clarity that carrier has engaged in at least one instance of anti-competitive conduct of a kind described in the notice – s 151AKA(2) complied with – allegation that s 151AKA(10) notice uncertain, circular and does not describe a kind of anti-competitive conduct – s 151AKA(10) notice describes with sufficient clarity a kind of anti-competitive conduct – whether kind of anti-competitive conduct specified in s 151AKA(10) notice differs in substance from kind of anti-competitive conduct described in competition notice – s 151AKA(10) notice describes the kind of anti-competitive conduct by reference to Retail Customers, a "weighted average" and the bundled Retail Fixed Services Market – competition notice describes the kind of anti-competitive conduct by reference to Lower Spend Customers and supply of services by means other than a bundle – difference of substance in kind of anti-competitive conduct described – failure by the Commission to comply with s 151AKA(10) – Commission not entitled to issue Part A competition notice

ADMINISTRATIVE LAW – jurisdiction – whether "decision" to issue a s 151AKA(10) notice is reviewable pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) and s 39B of the Judiciary Act 1903 (Cth) – satisfaction of s 151AKA(10) by the Commission involves no reviewable "decision" under s 5 but is reviewable "conduct" under s 6 of the ADJR Act – also reviewable pursuant to s 39B(1A)(c) of the Judiciary Act – whether Commission obliged to provide Telstra with statement of reasons pursuant to s 13 of the ADJR Act – decision to issue competition notice may result in the bringing of proceedings for the recovery of pecuniary penalties (para (f) of Sch 2 to the ADJR Act) – no obligation to provide reasons for either decision