FEDERAL COURT OF AUSTRALIA

PIPE Networks Pty Ltd v Commonwealth Superannuation Corporation

[2011] FCA 1288

THE COURT ORDERS THAT:

1.    The application for interlocutory relief is dismissed with costs.

2.    The proceeding is adjourned to a scheduling conference before Justice Gordon on 15 December 2011 at 9:30 am.

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

REASONS FOR JUDGMENT

1        The applicant, PIPE Networks Pty Ltd (“PIPE”), has commenced a proceeding in this Court in which it seeks a declaration that it is authorised to perform telecommunications installation work at 101 Collins Street, Melbourne. It relies on a Land Access and Activity Notice (“the Notice”) dated 7 July 2011 directed to the first and second respondents. PIPE currently presses for interlocutory relief restraining the respondents from refusing it access to 101 Collins Street for the purpose of performing installation work.

2        PIPE is a telecommunications carrier which supplies telecommunications infrastructure and services. Schedule 3 to the Telecommunications Act 1997 (Cth) (“the Act”) authorises carriers, for the purposes connected with the supply of the telecommunications carriage service, to install low-impact facilities including “in-buildings subscriber connection equipment” (“IBCE”) which includes optical fibre and associated equipment within a building with the aim of managing and maintaining the supply of telecommunications carriage services to a customer of a carrier.

3        The first respondent, Commonwealth Superannuation Corporation (“CSC”) is the owner of the building at 101 Collins Street. The second respondent, 101 Collins Street Pty Ltd (“101”), is the managing agent for CSC in respect of the building. The third respondent Property Communications Management International Pty Ltd (“Property Comm”) is the holder of a telecommunications carrier licence granted under section 56 of the Act. Property Comm is a new entrant to the telecommunications market. It provides carriage and management services to property owners and managers for the exercise of operational control over property facilities in connection with the installation, operation, maintenance and removal of communications facilities by communications providers. CSC, 101 and Property Comm maintain that PIPE requires the consent of Property Comm pursuant to Schedule 1 to the Act to access the building to install facilities it intends to install for its client Macquarie Equity, (“Macquarie”) which has an office in the building.

4        The respondents say that operational control over the building has been granted to Property Comm. They also say that PIPE’s rights of access under Schedule 3 to the Act are subject to the rights granted to Property Comm under Schedule 1 to the Act.

5        PIPE seeks access to the building as a consequence of an agreement it entered into with its customer IRESS Market Technology Limited (“IRESS”) to install “dark fibre communications links” between the offices of various IRESS customers and the IRESS data centre. A dark fibre telecommunications link is provided by organising an optical fibre cable link between equipment located at the offices of various IRESS customers and the IRESS data centres.

6        As a consequence of its agreement with IRESS, PIPE agreed to provide (by 1 October 2011) a dark fibre telecommunications link between the offices of Macquarie (an IRESS Customer) at level 24 of the building and the PIPE Data Centre in Port Melbourne.

7        To perform the agreement PIPE must install an optical fibre cable running from the Main Distribution Frame Room to Macquarie’s server room on level 24 of the building.

8        PIPE says the installation of the optical fibre will be the installation of IBSCE and therefore is the installation of a low impact facility within Schedule 3 to the Act.

9        On 7 July 2011 in reliance on Schedule 3, PIPE provided written notice to CSC and 101 of its intention to install the fibre cable. By letter dated 15 July 2011, 101 objected to the work set out in the Notice. PIPE consulted with 101 but no resolution of their differences resulted from the consultation. PIPE contends that since 22 August 2011 it has been authorised to install the optical fibre in the building in accordance with Schedule 3 to the Act and the Telecommunications Code of Practice 1997.

10        CSC and 101 do not object to PIPE being given access to the building to install the cable provided that it obtains consent from Property Comm pursuant to Schedule 1 to the Act. PIPE submits that Schedule 1 is inapplicable to its proposed installation and says it has an entitlement to engage in the installation pursuant to Schedule 3. The essential question for determination in the proceeding will be whether Schedule 1 has any application to the proposed installation by PIPE of the IRESS optical cable for Macquarie.

11        Schedule 3 to the Act allows a carrier to enter on land (which includes a building) to install a low impact facility. Property Comm says that Schedule 1 “trumps” Schedule 3. Clause 17 of Schedule 1 requires a carrier, if required by another carrier, to give that other carrier access to facilities which it operates, subject to conditions.

12        Property Comm and CSC entered into an agreement on 2 September 2011 by which Property Comm has sole authority from that date to exercise operational control over certain facilities at the building including the Main Distribution Frame Room and the communications riser.

13        Property Comm says it has all rights which are necessary for it to operate those facilities as the “first carrier” for the purposes of cl 17 of Schedule 1 to the Act.

SERIOUS ISSUE TO BE TRIED

14        Based on the competing submissions of counsel and whether Schedule 3 applies or is “trumped” by Schedule 1 it appears that there is a serious issue to be tried as to whether Schedule 3 operates without being inhibited by Schedule 1. In the course of determining this question on an urgent basis, I am unable to determine currently the strength of that question.

BALANCE OF CONVENIENCE

15        PIPE says that its business relationship with IRESS will suffer if it cannot perform the installation. It claims it will suffer irreparable harm in the absence of an injunction to restrain Property Comm from denying it access to the building. It says that third parties, IRESS and Macquarie, will also be severely prejudiced. It says there is no irreparable harm to Property Comm. PIPE says that it is necessary to perform the work by 31 October 2011 otherwise Macquarie will be inconvenienced in its business and incur extra expense.

16        On the other hand, Property Comm is concerned about the appropriate supervision of contractors who may be engaged by PIPE to carry out the installation work. Property Comm is concerned for the orderly coordination of communication services in the building. It says its operational control will be subverted if PIPE is allowed to install its proposed facility without entering into an access agreement with Property Comm. It says that the proposed installation may have adverse consequences including:

    Compromising Foxtel and MATV communications;

    Impacting on the performance of CSC’s Ultra High Frequency walkie-talkie communication system;

    The use of the last remaining riseable space currently used to provide building access and security control systems;

    The use of the last remaining user space that has been pre-allocated by CSC to protect its radio communications system; and

    Forseeability of technical problems with the installation, including possible adverse impact on the building’s antenna system.

17        Having regard to the possible adverse consequences in not having the installation coordinated with Property Comm’s existing management of current communications and non-communications facilities, I consider that the balance of convenience is against the grant of interlocutory relief. In doing so I acknowledge that certain undertakings offered by PIPE may possibly assuage some but not all of the concerns raised by Property Comm.

DAMAGES AS AN ADEQUATE REMEDY

18        Should the Court ultimately grant the relief sought in the application any loss suffered by PIPE and its two customers IRESS and Macquarie would be capable of being calculated in monetary terms. Such losses are capable of being recovered in the proceeding should PIPE succeed at trial and should IRESS and Macquarie apply to join the action and also succeed. I do not see why damages would not be an adequate remedy. If I am in error in that view, it is sufficient, in refusing interlocutory relief, to observe that the balance of convenience weights heavily against its grant. Should the installation cause problems other tenants, including Macquarie, may be adversely affected if any of the technical issues which Property Comm says may arise result in the problems feared by it, as outlined in an affidavit of its telecommunications engineer Mr Reid sworn on 27 October 2011.

ORDER

19        For the foregoing reasons, the application for interlocutory relief will be dismissed with costs. The matter will be adjourned to a scheduling conference before Gordon J at 9.30 am on 15 December 2011. In so ordering I emphasise that there is nothing to stop PIPE approaching her Honour’s chambers to inquire whether an urgent trial of the proceeding may be programmed. It may be that the trial of a preliminary question as to whether Schedule 1 trumps Schedule 3 is capable of early resolution depending on the commitments of her Honour and/or other judges of the Court, not necessarily confined to this registry.

Associate:

Dated:    10 November 2011