State of Queensland v Telecommunications Industry Ombudsman [2021] FCA 522

Federal Court of Australia

State of Queensland v Telecommunications Industry Ombudsman [2021] FCA 522 File number(s): QUD 214 of 2020 QUD 15 of 2021

Judgment of: COLLIER J

Date of judgment: 18 May 2021

Catchwords: STATUTORY INTERPRETATION – Telecommunications Act 1997 (Cth) Sch 3 Pt 1 Div 4 cl 7 – "maintenance activity" – whether maintenance included the installation of a new fibre optic cable in a conduit or duct owned by a third party – whether a carrier which is a "stranger" to original facilities owned by other carriers can be said to "maintain" those original facilities – extended statutory definition of "maintenance". STATUTORY INTERPRETATION – whether the original facilities fell into the category of "duct, pit, hole, tunnel or underground conduit" as identified in subcl 7(6)(b)(ii) of Sch 3 to the Telecommunications Act 1997 (Cth) – ejusdem generis rule – whether duct must be "underground". COMMUNICATIONS LAW – Telecommunications Act 1997 (Cth) – Telecommunications Code of Practice 2018 (Cth) – Maintenance of facilities – proposed activities – installation of fibre optic cable within exiting conduit or duct attached to bridge – applicability of the reasoning of the Court of Appeal in Hurstville City Council v Hutchison 3G Australia Pty Ltd (2003) 200 ALR 308; [2003] NSWCA 179 – definition of "original facility" – whether carrier's maintenance of an original facility constitutes a trespass or other tortious wrong. COMMUNICATIONS LAW – Telecommunications Act 1997 (Cth) – Telecommunications Code of Practice 2018 (Cth) – whether the Telecommunications Industry Ombudsman is bound to follow her earlier decisions – whether a failure to follow her earlier decisions amounts to a denial of natural justice or is unreasonable. COMMUNICATIONS LAW – Telecommunications Act 1997 (Cth) – Telecommunications Code of Practice 2018 (Cth) – proposed installation of additional facility in the same location as the original facility – whether onus is on an objector to show an alternative location for a proposed activity. COMMUNICATIONS LAW – Telecommunications Act 1997 (Cth) – Telecommunications Code of Practice 2018 (Cth) – whether the State was a "public utility" within the meaning of the Telecommunications Act 1997 (Cth) – whether Optus failed to make reasonable efforts to enter into an agreement with the State – whether failure to make reasonable efforts to enter into an agreement with the State could be a basis for objecting to the proposed activities.