GENERAL DISTRIBUTION
FEDERAL COURT OF AUSTRALIA
[2000] FCA 1159
FOXTEL MANAGEMENT PTY LTD & ORS
V
SEVEN CABLE TELEVISION PTY LIMITED & ORS
SUMMARY
In accordance with the practice of the Federal Court in certain cases of public interest, the Court has prepared a brief summary to accompany the reasons for judgment that are to be delivered today. It must, of course, be emphasised that the only authoritative pronouncement of the Court’s reasons is that contained in the published reasons for judgment. This summary is only intended to assist in understanding the main issues arising and the principal conclusions reached by the Court, and is thus necessarily incomplete.
18 August 2000
GENERAL DISTRIBUTION
FEDERAL COURT OF AUSTRALIA
[2000] FCA 1159
FOXTEL MANAGEMENT PTY LTD & ORS
V
SEVEN CABLE TELEVISION PTY LIMITED & ORS
SUMMARY OF REASONS FOR JUDGEMENT GIVEN ON 18 AUGUST 2000
This is a summary of some of the matters forming the subject of judgments in two related appeals, which were heard together. The appeals have raised several important and previously unconsidered questions as to the meaning and operation of some of the provisions of Part XIC of the Trade Practices Act 1974 (Cth) (“the TPA”).
Essentially, Part XIC of the TPA establishes a national telecommunications access regime enabling, in certain circumstances, providers of television services to gain access to certain network facilities related to the broadcast of television and other services. The TPA provides that the ACCC, in accordance with the terms of the TPA, may declare certain telecommunications carriage services (and related services) to be ‘declared services’. By two procedures undertaken in 1997 and 1999 (pursuant to the relevant legislation), the ACCC declared that the analogue subscription television (‘pay TV’) carriage service in question, which included Telstra’s national cable network and the FOXTEL broadcast and operating system, was a ‘declared service’. The TPA provides that telecommunications carriers (and carriage service providers) who provide such declared services are required to comply with ‘standard access obligations’ in relation to those services.
The ‘standard access obligations’, the TPA provides, facilitate service providers obtaining access to declared services. However, Part XIC limits the obligations to grant access in several respects. One limitation is that the Part does not impose an obligation to provide access to the extent, if any, to which this would have the effect of depriving any person of a ‘protected contractual right’, which has the statutory definition of a right under a contract that was in force at the beginning of 13 September 1996.
The background to the litigation in these cases may be summarised as follows. The Telstra and other appellant parties, through various related bodies, together operate a pay TV business in Australia known as ‘FOXTEL’. That business uses the Telstra Broadband Cable Network in order to broadcast pay TV programs to subscribers.
In 1999, following the declaration by the ACCC, two service providers, Seven Cable Television Pty Limited and Television and Radio Broadcasting Services Pty Ltd (“TARBS”), requested access to the declared services belonging to the Telstra and FOXTEL entities. The requests for access were refused, in reliance upon the statutory limitation explained above, that is, on the ground that granting access would have the effect of depriving an entity or entities of a ‘protected contractual right’.
Seven Cable Television brought an application to this Court seeking an order that the Telstra and FOXTEL parties did not possess such a right, and so could not withhold access to the network system. It was the present appellants’ position that the negotiations between them had given rise to a right under a contract at the relevant date, justifying their refusal to grant access. Around this time, certain parties challenged in this Court the validity of the ACCC’s 1997 and 1999 decisions to declare the services as ‘declared services’. Appeals on those challenges were heard by this Full Court, and judgment has been given in them today.
The trial judge delivered judgment in Sydney on 27 March 2000. The trial judge, having considered the contractual and negotiating history of the relevant parties, held (among other things) that the parties had not concluded an enforceable contract by the relevant date and were still negotiating the terms of the contract said to give rise to the rights; so that none of the relevant parties had a protected contractual right in relation to the declared services requested; and that the supply to the access seekers (Seven Cable Television and TARBS) of the requested services would therefore not have the effect of depriving any party of a protected contractual right.
The Telstra and FOXTEL parties then appealed this decision to the Full Court. The appeals were heard in Sydney in June. The members of the Full Court (Justices Beaumont, Moore and Gyles) have each today delivered separate reasons for judgment in which the decision of the trial judge is, in effect, upheld. The appeals have therefore been dismissed.
