Federal Court of Australia

TX Australia Limited v Australian Competition and Consumer Commission [2021] FCAFC 113

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant is to pay the respondents’ costs of the appeal on a party-party basis, taxed if not agreed.

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

REASONS FOR JUDGMENT

THE COURT:

INTRODUCTION

1    This is an appeal from the orders made in TX Australia Pty Limited v Australian Competition and Consumer Commission [2020] FCA 1100 (5 August 2020) (‘J’).

2    There are two primary issues in this appeal, which concerns the jurisdiction of the first respondent, the Australian Competition and Consumer Commission (‘ACCC’), to arbitrate a purported access dispute under the transmitter access regime in Pt 5 of Sch 4 to the Broadcasting Services Act 1992 (Cth) (‘Act’). Sch 4 is given effect by s 216A of the Act.

3    The first issue is whether, as a matter of construction of cl 47 of the transmitter access regime, an owner and operator of regulated infrastructure may act as an agent on behalf of a licensed broadcaster in seeking to agree terms and conditions of access for different regulated infrastructure. We will refer to this as the construction issue.

4    The second issue is whether, having regard to the actual conduct of the agent, BAI Communications Pty Ltd (‘BA’), and the true character of the relationship between BA and the licensed broadcasters, being the second to sixth respondents (‘Ten licensees’) which are subsidiaries of Network Ten Pty Ltd (‘Network Ten’), it can properly be said that BA was acting as an agent when seeking to agree terms and conditions of access to the infrastructure. We will refer to this as the agency issue.

5    It is useful to say something about the particular context in which these issues arise.

6    The transmitter access regime in Pt 5 of Sch 4 of the Act provides for a mechanism under which disputes about terms and conditions of access to certain broadcasting transmission infrastructure are determined by way of arbitration to be conducted by the ACCC or another arbitrator as agreed between the parties. Relevantly, this mechanism is enlivened where there has been a failure by an “owner or operator” and an “access seeker” to agree upon the terms and conditions of access to such infrastructure (‘first jurisdictional fact’).

7    In determining whether the jurisdiction of the ACCC has been enlivened, and whether the first jurisdictional fact exists, the task of this Court is not to resolve any dispute about the terms and conditions of access. At this jurisdictional threshold, the Court is necessarily confined to the question of who may (and did) seek and fail to agree upon terms and conditions of access to such infrastructure. Matters that relate to the identity of any person actually accessing the infrastructure — including the question of whether an agent may access the infrastructure on behalf of an access seeker — are outside the scope of the task before the Court and, to the extent they are the subject of dispute, will fall to be determined by way of arbitration.

8    Once this context is understood, many of the appellant’s concerns (at least insofar as they are relevant to this appeal) fall away. The appellant, TX Australia Pty Ltd (‘TXA’), is the owner and operator of broadcasting transmission infrastructure which is subject to the transmitter access regime in Pt 5 of Sch 4 of the Act and is concerned about the prospect of BA, its main competitor, obtaining physical access to its infrastructure as an agent for the Ten licensees. Yet the question of whether a particular agent can physically access infrastructure on behalf of an access seeker is a matter that goes to the terms and conditions of access and is thus a question properly to be determined by an arbitrator and not this Court (at least not at this stage of the dispute). Further, the ACCC in conducting the arbitration will not only have the ability to determine the terms and conditions of access, but will also be able to deal with any issues of confidentiality if such arise because of the involvement of BA.

LEGISLATIVE PROVISIONS

9    The Act has a large number of objects that are listed in s 3(1) of the Act. Relevantly, those objects include:

3    Objects of this Act

(1)     The objects of this Act are:

(a)     to promote the availability to audiences throughout Australia of a diverse range of radio and television services offering entertainment, education and information; and

(aa)     to promote the availability to audiences and users throughout Australia of a diverse range of datacasting services; and

(b)     to provide a regulatory environment that will facilitate the development of a broadcasting industry in Australia that is efficient, competitive and responsive to audience needs; and

(ba)     to provide a regulatory environment that will facilitate the development of a datacasting industry in Australia that is efficient, competitive and responsive to audience and user needs;

…

10    The primary judge set out the relevant parts of the transmitter access regime in Pt 5 of Sch 4 of the Act and certain parts of the Broadcasting Services (Transmitter Access) Regulations 2001 (Cth) (since repealed), at [5]-[17] J.

11    The transmitter access regime applies to broadcasting transmission towers, sites of broadcasting transmission towers and certain other facilities (being “designated associated facilities” as defined in cl 43A of the transmitter access regime) (which we will refer to collectively as the transmission infrastructure). Relevantly, cll 45-46 of the regime require owners or operators of transmission infrastructure to provide access to the infrastructure upon request by an access seeker in certain circumstances. The owner or operator is only required to provide access where it has been sought for a sole specified purpose (‘sole purpose condition’). The clauses are almost identical, although apply to different types of transmission infrastructure and contain different variations of the sole purpose condition to reflect these differences in infrastructure: see cll 45(2)(a), 45(4)(a), 45A(3)(a), 45A(5)(a), 46(2)(a), 46(4)(a). For our purposes, it is sufficient to identify the following terms of cl 45, which relate to access to broadcasting transmission towers by certain broadcasters:

Television broadcasting services in digital mode

(1)    The owner or operator of a broadcasting transmission tower must, if requested to do so by the holder of a commercial television broadcasting licence (the access seeker), or a national broadcaster (also the access seeker), give the access seeker access to the tower.

(2)    The owner or operator of the broadcasting transmission tower is not required to comply with subclause (1) unless:

(a)    the access is provided for the sole purpose of enabling the access seeker to install or maintain a transmitter and/or associated facilities used, or for use, wholly or principally in connection with the transmission of the access seeker’s television broadcasting service or services in digital mode; and

(b)     the access seeker gives the owner or operator reasonable notice that the access seeker requires the access.

…

12    Sub-cll (3)-(4) of cl 45 contain similar provisions giving rights of access to holders of a datacasting transmitter licence, but those provisions are not relevant to the present dispute.

13    Clause 47, by operation of sub-cll (1), (1A) and (2), then provides that owners or operators of transmission infrastructure must comply with cll 45, 45A and 46, respectively, on terms and conditions as agreed with the access seeker or, failing agreement, to be determined by way of arbitration. It is the construction of this clause that is the primary focus of the present dispute. For our purposes, it is sufficient to identify the terms of sub-cl (1), which corresponds to cl 45 and relates to access to broadcasting transmission towers:

(1)    The owner or operator of a broadcasting transmission tower must comply with subclause 45(1) or (3) on such terms and conditions as are:

(a)    agreed between the following parties:

(i)    the owner or operator;

(ii)    the access seeker (within the meaning of that subclause); or

(b)    failing agreement, determined by an arbitrator appointed by the parties.

If the parties fail to agree on the appointment of an arbitrator, the ACCC is to be the arbitrator.

14    Sub-clause 47(3) stipulates that:

The regulations may make provision for and in relation to the conduct of an arbitration under this clause.

15    The regulations in force at the time of the present dispute were the Broadcasting Services (Transmitter Access) Regulations 2001 (Cth). Those regulations have since been replaced by the Broadcasting Services (Transmitter Access) Regulations 2019 (Cth). It is relevant to note that, under the 2001 Regulations:

(a)    the ACCC is required to make a determination of the terms and conditions of access unless the dispute is withdrawn or the ACCC decides to terminate the arbitration for reasons that include that the subject matter of the dispute is misconceived: see regs 9 and 16; and

(b)    in making an arbitration determination, the ACCC is required to take into account a range of considerations including the legitimate business interests of the parties and whether the determination will promote the objects set out in s 3(1)(a), (aa), (b) and (ba) of the Act: see reg 15.

16    Relevantly for present purposes, it can be seen that there is an interrelationship between cll 45 and 47. Clause 45 imposes an access obligation. However, the terms and conditions on which access must be given are to be determined in accordance with cl 47. The terms and conditions are to be determined by agreement between the parties (the “owner or operator” and the “access seeker”) or, failing agreement, by an arbitrator.

17    It was common ground between the parties that two statutory conditions must be satisfied to enliven the power of the ACCC to arbitrate terms and conditions of access under cl 47. Those conditions are that there is a failure to reach agreement between an "owner or operator" and an "access seeker" on:

(a)    the terms and conditions of access to the transmission infrastructure (being the first jurisdictional fact referred to above); and

(b)    the appointment of an arbitrator ('second jurisdictional fact').

18    There is a third implicit statutory limitation, or condition, to the ACCC’s arbitration power: the subject of the dispute to be arbitrated must concern the terms and conditions of access to transmission infrastructure in respect of which an access obligation arises under (relevantly) cl 45(1). That is because the obligation imposed by cl 47 is for the owner or operator of transmission infrastructure to comply with cl 45(1) on the terms and conditions determined under cl 47. Access is only required to be given under cl 45(1) if:

(a)    a request for access to the specified transmission infrastructure has been made to the owner or operator of the infrastructure by an access seeker as defined (the holder of a commercial television broadcasting licence or a national broadcaster) (‘request for access condition’);

(b)    the access is provided for the sole purpose of enabling the access seeker to install or maintain a transmitter and/or associated facilities used, or for use, wholly or principally in connection with the transmission of the access seeker’s television broadcasting service or services in digital mode (as referred to above, the ‘sole purpose condition’); and

(c)    the access seeker gives the owner or operator reasonable notice that the access seeker requires the access (‘reasonable notice condition’).

19    It follows that the ACCC’s arbitration power is dependent upon there being a dispute about the terms and conditions of access to transmission infrastructure where the foregoing statutory conditions in cl 45(1) are or can be satisfied. If in a given case it could be shown that any of the foregoing statutory conditions was not or could not be satisfied, no obligation to give access would arise under cl 45 and it would follow that cl 47 would not be applicable. We note for completeness that the same three conditions (with immaterial variations in language) appear in cl 45A and 46.

20    The foregoing analysis of the legislative provisions has relevance to TXA’s grounds of judicial review as stated in its amended originating application and raised before the primary judge. Those grounds of review are discussed below. It is convenient to note at this stage, though, that TXA’s grounds of review did not concern the satisfaction of the sole purpose condition or the reasonable notice condition.

FACTUAL BACKGROUND

21    The factual background can be briefly stated, none of which is in dispute.

22    TXA is the owner and operator of transmission infrastructure for the purposes of the transmitter access regime.

23    The Ten licensees are holders of commercial television broadcasting licences and, as such, are given certain rights of access to transmission infrastructure as “access seekers” under the transmitter access regime.

24    BA is an owner and operator of competing transmission infrastructure that is regulated by the transmitter access regime and is TXA’s main competitor. BA is not the holder of a commercial television broadcasting licence or a national broadcaster, and so does not enjoy statutory rights to access TXA’s transmission infrastructure under the transmitter access regime.

25    BA nonetheless sought to negotiate access to TXA’s transmission infrastructure on commercial terms (as distinct from under the statutory regime) over the course of 2018 and up to July 2019. The reason for which BA sought this access was to enable it to provide transmission services in response to a request for proposals (‘RFP’) issued by Network Ten, in February 2018.

26    The RFP was issued separately to both BA and TXA. In its response to the RFP, BA proposed using a combination of BA’s own transmission infrastructure and that of a third party (ie TXA’s infrastructure) to provide transmission services to Network Ten. The resulting commercial negotiations between BA and TXA, through which BA sought to obtain access to TXA’s transmission infrastructure on commercial terms, are summarised by the primary judge at [80]-[101] J.

27    On 3 July 2019, BA informed Network Ten that it was “close to reaching the dead end point in our attempts to negotiate a sensible commercial outcome with TXA”, and the “next step” was to inform TXA of “the intention to engage the ACCC to arbitrate”.

28    On 9 July 2019, BA wrote to TXA with terms of its “final offer”, and relevantly stated:

As you are well aware, BA has been seeking for over 12 months to agree commercial terms with TXA for portal services for [Network Ten’s transmission services.]

[…]

The purpose of this letter is to:

1.     express our disappointment at TXA’s refusal to honour its prior pricing and commercial terms for portal services for [Network Ten’s transmission services] and to refute a number of incorrect statements set out in your letter of 4 July 2019;

2.     restate our strong preference for portal access terms for the [Network Ten transmission services] to be resolved commercially and, for this purpose, we reiterate the proposed terms in this letter; and

3.     put TXA on notice that if commercial negotiations are not resolved by 5.00PM Tuesday 16 July 2019 that BA will have no alternative but to pursue its legal and regulatory options to obtain access to TXA’s facilities on behalf of [Network Ten] for the [Network Ten transmission services] and, if necessary, recover its losses arising from delays caused by TXA in migrating the [Network Ten transmission services] to BA...

29    In the following period between 9 July 2019 and 18 July 2019:

(a)    TXA disputed the basis on which the ACCC’s jurisdiction to arbitrate was sought to be invoked by BA as an agent for Network Ten;

(b)    BA reiterated the terms of its “final offer” in the 9 July letter; and

(c)    Network Ten and BA prepared and executed legal documentation appointing BA as an agent for the Ten licensees in respect of the transmission infrastructure, being three letters of agency in relation to separate groups of TXA’s sites and facilities (‘agency agreements’).

30    The primary judge summarised the key common features of the agency agreements at [55]-[62] J. Each letter provided for the appointment of BA as agent for each Ten licensee “for the purposes of and in connection with the exercise of rights which it has as an access seeker under Part 5 of Schedule 4 to the BSA… including management of all matters or things which relate to negotiating, approving and executing terms and conditions of access”: [58] J.

31    On 18 July 2019, prior to final execution of its counterparts for the letters of agency (which occurred on 19 July 2019, although the Ten licensees executed their counterparts on the previous day), BA wrote to TXA (‘18 July letter’) and relevantly advised:

BA has been appointed as agent by each [Ten licensee] for the purposes of and in connection with the exercise of rights which those licence holders have as an access seeker under Part 5 of Schedule 4 to the BSA…

Therefore, BA on behalf of the [Ten licensees] reiterates the terms of a final offer as a last attempt to resolve these commercial negotiations…

If TXA does not agree to the above terms by the set date, BA will conclude that commercial negotiations have failed and BA will, as agent for the [Ten licensees], commence an access dispute under Part 5 of Schedule 4 to the BSA.

32    BA attached to the 18 July letter a revised version of a proposed access agreement with TXA (‘Master Access and Services Agreement’), which included mark-ups identifying BA to be a party to the agreement “as agent for each of the [Ten Licensees]”.

33    TXA ultimately rejected the “final offer” and, on 2 August 2019, BA “as agent for [the Ten Licensees]” submitted an access dispute notification to the ACCC. The further correspondence between the relevant entities is summarised by the primary judge (at [69]-[75] J). Relevantly:

(a)    on 30 September 2019, the solicitors for BA wrote to the solicitors for TXA seeking to appoint an arbitrator, to which TXA effectively said it would be premature to do so;

(b)    on 7 February 2020, the ACCC sought further information directly from the Ten licensees, including:

(i)    confirmation that the offer in the 18 July letter was “validly made” by BA on behalf of the Ten licensees;

(ii)    an acknowledgement that the Ten licensees “would be a party to, and bound by, any Master Access [and] Service[s] Agreement that BA negotiated and agreed on their behalf”; and

(iii)    confirmation that the Ten licensees continue to seek an agreement with TXA for the Ten licensees to access TXA’s infrastructure;

(c)    on 14 February 2020, the Ten licensees provided this information directly to the ACCC; and

(d)    on 24 February 2020, the ACCC notified the solicitors for BA and TXA that it was satisfied it had jurisdiction to arbitrate the access dispute (‘decision’).

34    On 20 March 2020, TXA applied for judicial review of the ACCC’s decision. By its amended originating process, TXA contended that the ACCC did not have jurisdiction to arbitrate the access dispute because:

(a)    there had been no failure to reach agreement between TXA and the Ten licensees about the terms and conditions of access or the appointment of an arbitrator because the Ten licensees had not sought to agree those matters (and any failure to reach agreement with BA was not a failure to reach agreement with the Ten licensees); and

(b)    the transmitter access regime, properly construed, did not require TXA to give access to the broadcasting licensees who seek access by an agent who is also an owner or operator of regulated transmission infrastructure such as BA.

35    The primary judge found that the ACCC had jurisdiction to arbitrate the access dispute. In reaching this conclusion, her Honour relevantly determined:

(a)    the law of agency forms part of the background against which the Act operates: [42]-[43] J;

(b)    the legislature is not to be taken to have excluded the operation of a fundamental principle of the common law without a clear statement of its intention to do so (citing Potter v Minahan (1908) 7 CLR 277 at 304 (‘Potter v Minahan’)): [41] J;

(c)    there is nothing in the language, context or purpose of the Act which indicates that Parliament intended to exclude agents who are competitors from acting on behalf of an “access seeker” for the purposes of the regime: [34], [40], [43] J;

(d)    through the agency agreements, BA was validly appointed as an agent for the Ten licensees for the purposes of the transmitter access regime: [105], [109] J;

(e)    the agency agreements reflected the relationship of principal and agent between BA and the Ten licensees for the purposes of and in connection with the exercise of rights which the Ten licensees have as access seekers under the transmitter access regime: [79], [111] J;

(f)    it was immaterial that the agency relationship between BA and the Ten licensees came late in the course of negotiations with TXA, and constitution of BA as agent was always an available “Plan B” in the event that “Plan A” (the commercial negotiations between BA and TXA) failed: [78], [87], [112] J;

(g)    the 18 July letter was a request for access under the transmitter access regime made by BA as an agent for each of the Ten licensees: [115], [118], [120] J; and

(h)    when TXA rejected the offer in the 18 July letter, this gave rise to a failure of agreement as to terms and conditions of access for the purpose of cl 47 of the regime: [115], [118], [120] J.

36    We note that BA sought and was granted leave by the primary judge to intervene in the Court below but has not sought to intervene in this appeal.

GROUNDS OF REVIEW

37    By its amended originating application, TXA raised three grounds of review before the primary judge.

38    Grounds 1 and 2 concern the first and second jurisdictional facts in cl 47. By those grounds, TXA contended that the ACCC did not have jurisdiction to arbitrate the access dispute because:

(a)    there had not been a failure by TXA and the Ten licensees to agree on terms and conditions of access as the Ten licensees had not sought to agree on terms and conditions of access with TXA;

(b)    there had not been a failure by TXA and the Ten licensees to agree on the appointment of an arbitrator because the Ten licensees had not sought to agree on the appointment of an arbitrator with TXA;

(c)    any failure of agreement between TXA and BA was not a failure of agreement between TXA and the Ten licensees.

39    On this appeal, TXA maintained grounds 1 and 2 insofar as they related to the first jurisdictional fact (a failure to agree terms and conditions) but not the second (a failure to agree on the appointment of an arbitrator). The appeal in respect of those grounds is considered below.

40    By ground 3, TXA contended that the ACCC did not have jurisdiction to arbitrate the access dispute, or otherwise made an error of law, because cll 45 to 47, properly construed, do not require the owner or operator of transmission infrastructure to give access to the holder of a commercial television broadcasting licence who seeks access by an agent who is also an owner or operator of regulated transmission infrastructure (which includes BA). In our view, that is not a question that can or should be answered at this time and is not a matter that goes to the jurisdiction of the ACCC to arbitrate the existing dispute. The reason for that view is that, in the present case, the assessment of whether the access to be given by TXA to the Ten licensees constitutes access that is required to be given under cll 45 to 47 is dependent on an understanding of the nature and scope of the access to be given, which will be defined by the terms and conditions of access. It can be accepted that the terms and conditions of access proffered to TXA by BA as agent for the Ten licensees contemplated that BA would exercise rights of access on behalf of the Ten licensees. However, those terms and conditions may not be the terms and conditions determined by the ACCC in the arbitration. The question agitated by TXA in ground 3 can only be answered when the terms and conditions of access have been determined by the ACCC.

41    As discussed earlier, there are three implicit statutory conditions to the access obligation under cll 45 to 46. In terms, ground 3 does not allege a failure of the sole purpose condition or the reasonable notice condition and TXA’s arguments on this appeal were not based on an alleged failure to satisfy the sole purpose condition. In some circumstances, whether the sole purpose condition is satisfied may be able to be assessed before terms and conditions of access are determined. For example, if BA had sought access to TXA’s infrastructure on its own behalf for the purpose of re-supplying transmission services to the Ten licensees, such access would not be for the sole purpose specified in cll 45 to 46. It can be accepted that the ACCC might be enjoined from arbitrating a dispute with respect to the terms and conditions of access of that kind because it is not access that is required to be given under cll 45 to 46. In other cases, of which this is one, whether access is of the kind required to be given under cll 45 to 46 may not be able to be determined until the terms and conditions of access are known.

42    We accept that the primary judge made a number of observations about BA exercising rights of access as an agent for the Ten licensees under the transmitter access regime: see, eg, [42]-[43] J. Some of this language may rightly concern TXA and have perceived implications as to the terms and conditions of access that may be sought by the Ten licensees (or by BA on behalf of the Ten licensees) in the arbitration and determined by the ACCC. However, it is important to consider this language in context. The focus of her Honour’s reasons concerned the question whether there had been a failure of agreement as to the terms and conditions of access for the purpose of cl 47 of the transmitter access regime, and these comments must be understood in that light. To the extent that her Honour went further and reached conclusions with respect to the question whether access to TXA’s infrastructure by BA as agent for the Ten licensees is within cll 45 to 46, we respectfully consider that that question could not and should not be determined at this time before the terms and conditions of access are known.

43    Under ground 3, we consider that TXA raised the issue whether a request for access had been made to the owner or operator of the infrastructure (TXA) by an access seeker (the Ten licensees). We understand TXA’s contention to be that the statutory provisions do not contemplate a request being made by an agent of the access seeker which is a competing infrastructure owner. In our view, within the statutory framework, this question raises materially the same issues as with respect to the first jurisdictional fact.

THE CONSTRUCTION ISSUE

44    The principal issue of construction raised by TXA’s amended originating application is whether there can be a failure of agreement on terms and conditions of access between the “owner and operator” and the “access seeker” within the meaning of cl 47 in circumstances where the negotiations for the agreement were conducted on behalf of the access seeker by an owner and operator of different regulated infrastructure as an agent.

45    It is a well-settled principle of statutory construction that legislative provisions must be construed in context. That context is to be understood “in its widest sense” and includes “the existing state of the law”: CIC Insurance Limited v Bankstown Football Club Limited (1997) 187 CLR 384 (‘CIC Insurance’) at 408 (Brennan CJ, Dawson, Toohey and Gummow JJ); a phrase which “embraces the then understanding of the common law”: The Wik Peoples v The State of Queensland (1996) 187 CLR 1 at 171 (Gummow J). This context is to be considered at first instance, “not merely at some later stage when ambiguity is thought to arise”: CIC Insurance at 408.

46    It is agreed that the law of agency forms part of the common law. We therefore consider the primary judge was correct to find that the law of agency forms part of the background against which the provisions of the transmitter access regime are to be construed.

47    After construing the transmitter access regime against the background of the common law (including the law of agency), the primary judge found that the principle of legality supported her construction of the statutory provisions. In doing so, the primary judge cited the rule from Potter v Minahan, where O’Connor J stated (at 304):

It is in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness…

48    This rule, which is often described as a statutory presumption, is derived from the principle of legality: Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252 at [15] (French CJ, Gummow, Hayne, Crennan and Kiefel JJ). It was adopted unanimously by the High Court in Bropho v State of Western Australia (1990) 171 CLR 1 at 18 (Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ), but has been subject to criticism. In Malika Holdings Pty Ltd v Stretton (2001) 204 CLR 290 (‘Malika’), McHugh J observed in obiter (at [29]):

Hallowed though the rule of construction referred to in Potter v Minahan may be, its utility in the present age is open to doubt in respect of laws that “infringe rights, or depart from the general system of law.” In those areas, the rule is fast becoming, if it is not already, an interpretative fiction. Such is the reach of the regulatory state that it is now difficult to assume that the legislature would not infringe rights or interfere with the general system of law.

49    Yet despite this suggestion that the operation of the rule ought to be limited to laws that “overthrow fundamental principles”, it continues to apply in respect of all three types of situations contemplated in Potter v Minahan, including where a particular construction of a statutory provision would “depart from the general system of law”. Accordingly, whilst TXA’s submissions focus on whether the law of agency in this context is a “fundamental principle”, we consider the rule in Potter v Minahan to be engaged simply by reason of TXA’s proposed construction, in purporting to exclude the operation of the law of agency, being inconsistent with the general system of law.

50    We consider that the primary judge was correct to find, in construing the relevant clauses of the transmitter access regime to determine whether a particular agent can seek to negotiate access to infrastructure on behalf of an access seeker, that the legislature will not be taken to have excluded the operation of the law of agency unless there is a clear statement of its intention to do so. We also point out that the primary judge considered the law of agency to form part of the background for statutory construction, and her analysis was not dependent upon the application of the statutory presumption.

51    It is useful to have regard to three decisions where this approach to statutory construction has been applied in an agency context: Christie v Permewan, Wright & Co Ltd (1904) 1 CLR 693 (‘Christie’); McRea v Coulton (1986) 7 NSWLR 644 (‘McRea’); and Lanciana v Alderuccio [2019] VSC 198 (28 March 2019) (‘Lanciana’).

52    In Christie, Griffith CJ considered whether an agent could lay an information to institute a customs prosecution under the Customs Act 1901 (Cth), with reference to the decision of Re Whitley Partners Ltd (1886) 32 Ch D 337 (‘Re Whitley’), and held (at 700-701):

It is to be observed that sec. 245 only requires prosecutions to be instituted in the name of the Collector. It does not require any particular person to lay the information personally any more than it requires the Minister to go into Court to institute the prosecution. There is nothing in the Customs Act to say that the power conferred on the Collector cannot be exercised by some other person for and on behalf of the Collector. It is a general rule of law that what a person may do himself, he may do by an agent. In In re Whitley Partners, Ltd., 32 Ch. D., 337, which was the case of a memorandum of association, signed by one person in the name of another, without a power of attorney, Bowen, LJ., at p. 340, says:—“In every case when an Act requires a signature it is a pure question of construction on the terms of the particular Act whether its words are satisfied by signature by an agent. In some cases on some Acts the Courts have come to the conclusion that personal signature was required. In other cases on other Acts they have held that signature by an agent was sufficient. The law on the subject is thus summed up by Blackburn, J., in Reg. v. Justices of Kent, L.R., 8 Q.B., 305, 307: ‘No doubt at common law, where a person authorizes another to sign for him, the signature of the person so signing is the signature of the person authorizing it; nevertheless there may be cases in which a Statute may require personal signature.’ Quain, J., then says, ‘We ought not to restrict the common law rule, qui facit per alium facit per se, unless the Statute makes a personal signature indispensable.’ Archibald, J., says, ‘I think this case comes within the common law rule, qui facit per alium facit per se, and there is nothing in the Statute to qualify the operation of that maxim. It is easy to understand that there may be cases in which a different construction must be put on particular Statutes.’”

(Emphasis in original.)

53    In McRea, Hope JA (with whom Kirby P and McHugh JA agreed) considered whether an agent could sign an application for statutory water rights and held (at 663):

The first question is whether the applicants must sign personally, or whether signature by an agent on behalf of the applicants was permissible. It has long been the law that, where a provision of a statute or of delegated legislation requires that a document shall be signed by a particular person, prima facie that provision does not exclude the common law rule qui facit per alium facit per se and if the person authorises another to sign on his behalf, a signature made by the other pursuant to the authority is equivalent to the signature of the person giving the authority: R v Kent Justices (1873) LR 8 QB 305; Re Whitley Partners Ltd (1886) LR 32 Ch D 337; France v Dutton [1891] 2 QB 208; Furnivall v Hudson [1893] 1 Ch 335; Dennison v Jeffs [1896] 1 Ch 611; Grahame v Commissioner for Railways (1946) 46 SR (NSW) 430; 63 WN 277. An intention that a personal signature is required may appear from the language of the statute or delegated legislation or from its subject matter…

54    Similarly, in Lanciana (which was upheld by the Victorian Court of Appeal in Lanciana v Alderuccio [2020] VSCA 152 (12 June 2020)), Moore J applied the law of agency in considering whether a solicitor could lodge a caveat on behalf of his or her client:

[32]     The defendants contended that a literal construction of s 118 was contrary to the doctrine of agency because it would treat a solicitor as liable as principal for the act of lodging a caveat. This would reverse the essential concept of agency encapsulated in the maxim ‘[q]ui faci per alium facit per se’ (he who does an act through another does it himself), pursuant to which the acts of solicitors in lodging a caveat are the acts of their client…

[…]

[84]     … while I accept that legislation may depart from established agency principles by attributing liability to an agent for the acts of their principal, such a departure from common law principles would typically be supported by the use of clear and express words. I consider that express words would be required to support the plaintiff’s construction of s 118 as conveying a departure from fundamental agency principles by exposing an agent to liability for the act of their caveator principal.

55    TXA submits that the present facts ought to be distinguished from the above cases because the subject matter of the transmitter access regime is said to be “a world away” from the signing of an application for water rights (McRea), a solicitor lodging a caveat (Lanciana), the signing of a memorandum of association to incorporate a company (Re Whitley), or the laying of an information in a customs prosecution (Christie). We do not see any basis for limiting the principles of construction or the principle of legality on these facts. Moreover, when one is reminded of the facts of this case in the context of the task before this Court (that is, to determine whether an agent can represent an access seeker in negotiations under the transmitter access regime), it becomes apparent that we are not so very far removed from these cases at all.

56    Finally, we note that TXA sought to invoke the principle of legality to contend that the transmitter access regime ought not to be construed in a way that allows for potential interference with private property rights. This may be a relevant consideration in determining whether an agent (including a competitor) can access transmission infrastructure, but we do not consider it to arise at this stage when construing the regime for the purpose of the first jurisdictional question to determine whether a competitor can act as an agent in negotiations.

57    Having settled the approach to construction, we will now ask: is there indication of a contrary intention in the transmitter access regime?

58    At the hearing, senior counsel for TXA identified seven matters which were said to indicate such an intention. Of these, six related to the fact that the regime expressly delineates between “owners or operators” and “access seekers” and, in doing so, gives certain statutory rights to access seekers that are given to no other class of person (including horizontal competitors). The final indication was said to be that the concept of “access” has an extended meaning in the regime that includes physical access: see cl 44. This is consistent with the matters identified by TXA in written submissions.

59    As soon as it is understood that the Court is only dealing with the question of whether an agent can strike an agreement or seek to do so on behalf of the “access seeker”, rather than physically access the infrastructure on behalf of the “access seeker”, the textual matters raised by TXA lose their significance.

60    As discussed above, it is conceivable that, when construing the remainder of the regime (including the substantive access provisions) in light of particular terms and conditions of access, a conclusion might be reached that access of the kind allowed in the terms and conditions is not access within the statutory regime. It is conceivable that the regime contemplates access only being carried out by certain classes of persons (the access seeker as a corporate entity and certain categories of natural persons who represent the access seeker such as employees and contractors) and not by an agent of the access seeker, or at least a particular type of agent. For the reasons explained earlier, in our view any such conclusion must await the specification of access by terms and conditions. That possibility, however, does not mean that there is any indication in the statutory text or context to exclude owners or operators of regulated infrastructure from the class of persons that may act as agent for an access seeker when seeking to negotiate terms and conditions of access under the transmitter access regime.

61    TXA submitted that it would be an absurd result if a competing infrastructure owner or operator was allowed to act as an agent for an access seeker in negotiations if the balance of the regime and the substantive access rights were confined in the way contended for by TXA. That is, if a particular agent cannot physically access the infrastructure, then it ought not to be allowed to negotiate the terms and conditions of such access. We disagree. The two activities are distinct. Under cl 47, the jurisdiction of the ACCC is enlivened upon a failure to reach agreement about the terms and conditions of access (and the failure to reach agreement about the appointment of an arbitrator). The ACCC is then empowered to arbitrate the terms and conditions of access, with the arbitration governed by the regulations made under cl 47. An outcome of the arbitration may be that the terms and conditions of access permit the negotiating agent to undertake certain access tasks on behalf of the access seeker, or the outcome may be that the terms and conditions do not permit that to occur. No absurdity arises in either case.

62    The reasoning set out above applies equally to the question whether there has been a request for access by the access seeker within the meaning of cl 45 to 46. There is no statutory indication that a request for access cannot be made by an agent on behalf of the access seeker.

63    For the reasons set out above, we do not consider that the primary judge erred in her construction of cl 47 of the transmitter access regime.

THE AGENCY ISSUE

64    We now come to the question of whether BA was acting as an agent for the Ten licensees in requesting access and seeking to negotiate the terms and conditions of access to TXA’s transmission infrastructure.

65    There is no dispute as to the validity of the appointment of BA as agent, or that the agency agreements expressly covered the negotiation of terms and conditions of access. There was no suggestion that the appointment of BA as agent was a sham.

66    The issue is whether, when one has regard to the relevant provisions of the agency agreements (being “a manifestation of the parties’ intent”: South Sydney District Rugby League Football Club Ltd v News Limited (2000) 177 ALR 611 (‘South Sydney’) at [135] (Finn J)) as well as all other relevant circumstances, there was a true agency relationship between BA and the Ten licensees for the purpose of the negotiations with TXA.

67    It is useful to have regard to the passages in South Sydney upon which TXA relies, where Finn J held:

[134]     …It is legitimate for parties to avoid the “unwanted consequences” of a particular category of legal relationship by seeking to cast it in a form that takes it outside the category of relationship: Colbron v St Bees Island Pty Ltd (1995) 56 FCR 303 at 314. But whether or not they are successful in achieving that end does not depend simply upon whether, in an express provision of their agreement, they attribute or deny to their relationship a particular legal character— be this, for example, employer and employee: Australian Mutual Provident Society v Chaplin (1978) 18 ALR 385; principal and principal or principal and agent: Board of Trade v Hammond Elevator Co, above; or patterns: Ex parte Delhasse; Re Megevand (1878) 7 Ch D 511. The parties cannot by the mere device of labelling, no matter how genuinely intentioned, either confer a particular legal character on a relationship that it does not possess or deny it a character that it does possess: Ex parte Delhasse, above, at 532; see 2A Corpus Juris Secundum, “Agency”, § 7; see also the observations of Lord Denning in Massey v Crown Life Insurance Co quoted in the Australian Mutual Provident Society case, above, at 389.

[135]     …Save where an express labelling provision is shown to be a sham, the provision itself (as a manifestation of the parties’ intent) must be given its proper weight in relation to the rest of their agreement and such other relevant circumstances as evidence the true character of their relationship. This may lead to its being disregarded entirely: Ex parte Delhasse, above; Board of Trade v Hammond Elevator Co, above; or to its being given full force and effect: Australian Mutual Provident Society v Chaplin, above. And such will depend upon whether, given the actual incidents and content of the relationship (that is, “the factual relation”) to which the parties have consented, they have consented “to a state of fact upon which the law imposes the consequences which result from agency”: Branwhite’s case, above, at 587; Restatement, Second, Agency,§1 comment b.

68    The primary judge referred to the above passages in her reasons and correctly summarised the applicable principles: see [50], [114] J. We will now consider whether these principles were correctly applied.

69    As we have already observed, in reaching the conclusion that BA was an agent for the Ten licensees, the primary judge had regard to the entire relationship between BA and the Ten licensees and not only the events that occurred on or after 18 July 2019: see [89]-[94], [105]-[113] J. In doing so, the primary judge considered certain indicia that were said by TXA to be inconsistent with a relationship of principal and agent, including, for instance, the fact that the initial attempt to constitute BA as agent involved the wrong entity (Network Ten instead of the Ten licensees) and that Network Ten had expressed the “strong view” in September 2019 that the Master Access and Services Agreement would be between BA and TXA: see [110]-[111] J. However, when these indicia were evaluated alongside the express terms of the agency agreements, the primary judge found there was no justification for an approach “which does other than give those agreements full force and effect in accordance with their terms”: [79] J.

70    It is unnecessary for us to go through each of the alleged inconsistencies. It suffices to say we are satisfied the primary judge was correct to find that the alleged inconsistencies raised by TXA did not undermine the agency relationship. By way of example, in respect of the erroneous identification of Network Ten instead of the Ten licensees (being the proper “access seekers”) in the initial attempt to constitute BA as agent, the primary judge found that this incident, which occurred on 27 June 2018, was not inconsistent with there being an agency relationship as between BA and the Ten licensees: [90], [112] J. The primary judge observed that BA was subsequently appointed as agent for the Ten licensees on 18 July 2019, and there had always been a common objective intention to constitute BA as agent of the “access seeker”, albeit of the wrong entity. Similarly, even though an employee of Network Ten expressed an opinion in an email (some six weeks after the 18 July offer) that Network Ten had no desire to be a party to the Master Access and Services Agreement, the primary judge found that this was not necessarily inconsistent with the existence of an agency relationship, as if BA were a party to the agreement as agent for the “access seeker” then its actions would still bind the Ten licensees: see [110] J.

71    The primary judge found her conclusion was supported by an analysis of the events that occurred on and after 18 July 2019 and was not disturbed by an analysis of the events that occurred prior to this date: see [79] J.

72    In respect of that analysis, TXA’s submissions focus on alleged error arising from use of the labels “Plan A” and “Plan B” to describe what the primary judge found to be the preference for BA to contract directly with TXA if possible, and the “fall-back plan” involving the constitution of BA as an agent for the relevant Network Ten “access seekers”: [78] J. See also [87], [90], [93] J.

73    TXA says that these labels were a construct put forward by the Ten licensees and were not a matter about which evidence was adduced. However, we consider these labels to be a convenient shorthand used to refer to the intentions held by Network Ten and BA that the primary judge found to have existed. The primary judge clearly expressed that her findings about “Plan A” and “Plan B” were based on the evidence, and (at [87] J) expressly stated “the evidence discloses that the first preference of Network Ten and BA was so-called Plan A in which BA would not act as Network Ten’s agent and that Plan B, the agency, would be relied upon only if necessary”. We consider these findings to have been open to the primary judge, particularly when one has regard to the communications between Network Ten, BA and TXA in July 2019 that we have outlined above.

74    For the reasons set out above, we do not consider that the primary judge erred in her approach to the agency issue.

DISPOSITION

75    For the foregoing reasons, the appeal is to be dismissed with costs.

Associate:

Dated:    24 June 2021

SCHEDULE OF PARTIES