State of Queensland v Telecommunications Industry Ombudsman

• Jurisdiction: Australia Federal only
• Judgment Date: 18 May 2021
• Neutral Citation: [2021] FCA 522
• Date: 18 May 2021
• Court: Federal Court

Federal Court of Australia

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

File number(s):	QUD 214 of 2020QUD 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.
Legislation:	Telecommunications Act 1997 (Cth) s 7, sch 3 cls 7, 7(3), 7(6)(b)(ii), 8, 11 Telecommunications Code of Practice 2018 (Cth) ss 6.28, 6.29, 6.35 Telecommunications (Low-impact Facilities) Determination 2018 (Cth)
Cases cited:	Coco v The Queen (1994) 179 CLR 427; [1994] HCA 15 Cody v JH Nelson Pty Ltd (1947) 74 CLR 629; [1947] HCA 17 Collector of Customs v Pozzolanic (1993) 43 FCR 280; [1993] FCA 456 Hurstville City Council v Hutchison 3G Australia Pty Ltd (2003) 200 ALR 308; [2003] NSWCA 179 Kruse v Johnson [1898] 2 QB 91 Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 NARY v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1255 NBN Co Ltd v Pipe Networks Pty Ltd (2015) 295 FLR 256; [2015] NSWSC 475 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 Provincial Insurance Australia Pty Ltd v Consolidated Wood Products Pty Ltd (1991) 25 NSWLR 541 R v Regos & Morgan (1947) 74 CLR 613; [1947] HCA 19 SGBB v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 199 ALR 364; [2003] FCA 709 Uber B.V. v Commissioner of Taxation (2017) 247 FCR 462; [2017] FCA 110 ; Aronson M, Groves M and Weeks G, Judicial Review of Administrative Action and Government Liability (6th ed, Lawbook Co, 2017) [5.250], [6.570]
Division:	General Division
Registry:	Queensland
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	167
Date of hearing:	9 March 2021
Counsel for the Applicant:	Mr J Horton QC and Dr G Sammon
Solicitor for the Applicant:	Crown Law
Solicitor for the First Respondent:	Mr G Phillips of Phillips Law & Advisory
Counsel for the Second Respondent:	Dr K Mellifont QC and Mr A Scott
Solicitor for the Second Respondent:	Clayton Utz

ORDERS

		QUD 214 of 2020 QUD 15 of 2021
BETWEEN:	STATE OF QUEENSLAND Applicant
AND:	TELECOMMUNICATIONS INDUSTRY OMBUDSMAN First Respondent ; OPTUS FIXED INFRASTRUCTURE PTY LTD ACN 092 450 783 Second Respondent

order made by:	COLLIER J
DATE OF ORDER:	18 May 2021

THE COURT ORDERS THAT:

1. The originating applications filed in QUD 214 of 2020 and QUD 15 of 2021 be dismissed.

2. The interlocutory application filed 15 February 2021 in QUD 15 of 2021 be dismissed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

COLLIER J:

1. Before the Court are two originating applications arising from related proceedings (henceforth referred to collectively as the applications) – QUD 214 of 2020 (Boobegan Creek Bridge Proceedings) and QUD 15 of 2021 (Kidd Bridge Proceedings). The applications are in similar form and seek review of decisions made by the Telecommunications Industry Ombudsman (TIO) to:

1. reject the objection by the applicant (the State) to an activity proposed to be carried out by the second respondent (Optus) on the Boobegan Creek Bridge and the Kidd Bridge, both of which are owned, operated and managed by the State; and

2. determine that the proposed activity to be conducted on each bridge by Optus was a “maintenance activity” within the meaning of cl 7 of Sch 3 to the Telecommunications Act 1997 (Cth) (Telecommunications Act).

2. On 15 February 2021, the State filed an interlocutory application in the Kidd Bridge Proceedings, seeking an order that the relevant decision of the TIO in those proceedings be stayed, and that Optus be restrained from carrying out the proposed activity on the bridge, pending a final determination of the proceedings by this Court. At the hearing on 9 March 2021, Counsel addressed the disposition of the interlocutory application in three parts. First, Optus gave an undertaking not to do the proposed work, namely install the fibre optic cable at Kidd Bridge, until no earlier than the day after the Court delivers its decision in this...