Telstra Corporation Ltd v ACCC [2008] FCA 1758

FEDERAL COURT OF AUSTRALIA

Telstra Corporation Ltd v ACCC [2008] FCA 1758

TRADE AND COMMERCE – Trade Practices Act 1974 (Cth), PartXIC, telecommunications industry and access regime –dispute between Telstra and Optus regarding access to Unconditioned Local Loop Service (ULLS) in multi-dwelling units (MDUs) – resolution of access dispute by Australian Competition and Consumer Commission (ACCC) – final determination made by ACCC establishing regime for ordering and provisioning of ULLS – whether final determination lawfully made

ADMINISTRATIVE LAW – judicial review – grounds of review – appeal under Administrative Decisions (Judicial Review) (ADJR) Act 1977 (Cth), s 5 – whether final determination unlawfully made on grounds that, in making final determination, ACCC: (1) did not take into account Telstra's direct costs of providing access to the ULLS (s 152CR(1)(d)); or (2) did not properly have regard to industry code as model terms and conditions (152AQB(9)) or otherwise (s 152CR(2)); or (3) failed to specify with reasonable precision or certainty terms and conditions relating access (s 152CP(2)); or (4) was so unreasonable that no reasonable person could have so exercised the power (Wednesbury unreasonableness); or (5) exceeded its jurisdiction by incorrectly assuming a matter upon which the exercise of its jurisdiction depended (s 152CP(1))

TRADE AND COMMERCE – Trade Practices Act, PartXIC, Div 8 – extent to which ACCC's earlier determination adopted industry code standards regarding ordering and provisioning of ULLS – mandatory terms of s 152AQB(1)(b) and (3) which stated respectively that ACCC "must make a written determination setting out model terms and conditions relating to access to each core service" and that ACCC "must take all reasonable steps to ensure that" such a determination is made within six months after commencement of section – whether ACCC had discretion to declare some but not all model terms and conditions relating to core service