FEDERAL COURT OF AUSTRALIA

OPENetworks Pty Ltd v Myport Pty Ltd [2019] FCA 486

ORDERS

THE COURT ORDERS THAT:

1.    The application for a temporary stay of the proceedings be dismissed.

2.    The respondent pay the applicant’s costs of the application.

3.    The matter be listed for a further case management hearing at 9.30am on 18 April 2019.

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

REASONS FOR JUDGMENT

O’BRYAN J:

Introduction

1    The respondent seeks a temporary stay of this proceeding.

2    This proceeding involves a dispute between the applicant, OPENetworks, and the respondent, MyPort, concerning MyPort’s legal entitlement to construct certain telecommunications facilities within a residential building located in Southbank, Melbourne known as “Australia 108”. In part, but not wholly, the dispute concerns the question whether the activities proposed to be undertaken by MyPort at Australia 108 involve the installation of a low-impact facility within the meaning of clause 6 of Schedule 3 to the Telecommunications Act 1997 (Cth) (Telco Act). Schedule 3 is given legal force by s 484 of the Telco Act.

3    Clause 6 of Schedule 3 empowers a carrier licensed under the Telco Act to enter onto land and install a facility if, amongst other things, the facility is a “low impact facility”. MyPort is a licensed carrier. It considers that the facilities it wishes to install and operate at Australia 108 are low-impact facilities within the meaning of clause 6.

4    Division 5 of Schedule 3 stipulates various requirements that a carrier must comply with when seeking to engage in an activity under clause 6. Relevantly, clause 15 of Schedule 3 stipulates that the carrier must comply with the code of practice made by the Minister under that clause, which is currently the Telecommunications Code of Practice 2018 (Cth) (Telco Code). Clause 17 stipulates that, before engaging in an activity under Division 6 in relation to any land, the carrier must give written notice of its intention to do so to the owner and any occupier of the land. Such notices have been referred to by the parties as a “land access and activity notice” (LAAN).

5    Part 5 of Chapter 4 of the Telco Code establishes a regime by which the recipient of a LAAN under clause 17 may object to the notice on various bases. If the parties are unable to resolve the objection between themselves, the objector may ask the carrier to refer the objection to the Telecommunications Industry Ombudsman (TIO). Following the making of an objection, the carrier must not engage in the contemplated activity under clause 6 of Schedule 3 unless and until:

(a)    the objection is resolved by agreement between the parties;

(b)    a request to refer the dispute to the TIO is not received within the time stipulated;

(c)    the TIO deals with the objection without giving a direction to the carrier; or

(d)    the TIO gives a direction to the carrier.

6    On 31 July 2018, MyPort gave OPENetworks a LAAN in respect of Australia 108. On or about 9 August 2018, OPENetworks notified MyPort that it objected to the LAAN pursuant to Part 5 of Chapter 4 of the Telco Code. The parties were unable to agree a resolution of the objections and, on 17 September 2018, OPENetworks requested MyPort to refer its objection to the TIO pursuant to the Telco Code. MyPort complied with that request. To date, the TIO has not made any determination on OPENetworks’ objection.

7    On 31 January 2019, OPENetworks commenced these proceedings against MyPort seeking the following orders:

(a)    a declaration that the LAAN given by MyPort to OPENetworks is invalid and of no effect;

(b)    further or in the alternative, a declaration that the works contemplated by the LAAN are not permitted to be undertaken pursuant to clause 6(1)(b) of Schedule 3; and

(c)    an order that MyPort be permanently restrained from carrying out the works contemplated by the LAAN.

8    By application dated 26 February 2019, MyPort seeks an interlocutory order that this proceeding be temporarily stayed until the TIO has dealt with the objection made to the LAAN by OPENetworks under the Telco Code.

9    For the reasons that follow, I will not temporarily stay the proceeding.

Principles applicable to a stay of proceedings

10    The Court has a general power to control its own proceedings and that power enables the Court to order a stay of proceedings: Hughes Motor Service Pty Ltd v Wang Computer Pty Ltd (1978) 35 FLR 346; ATPR 40-098; Sterling Pharmaceuticals Pty Ltd v Boots Co (Aust) Pty Ltd (1992) 34 FCR 287 at 290-291.

11    The principles relevant to a temporary stay of civil proceedings vary depending upon the circumstances of the case. For example, a stay may be ordered to prevent an abuse of process, or to avoid procedural unfairness, or if the Court is an inappropriate forum.

12    Broadly, the question raised in this application is whether the Court should order a temporary stay to enable the underlying dispute to be first adjudicated upon in another forum. Even in that context, the circumstances in which a party may seek a stay of a civil proceeding vary and include where:

(a)    another civil proceeding between the parties involving overlapping issues is pending in another court (the relevant principles for which were discussed by Lockhart J in Sterling Pharmaceuticals Pty Ltd v Boots Co (Aust) Pty Ltd (1992) 34 FCR 287);

(b)    a criminal proceeding against one of the parties involving overlapping issues is pending in another court (the relevant principles for which were discussed by Dodds-Streeton J in Websyte Corporation Pty Ltd v Alexander (No 2) [2012] FCA 562);

(c)    an application has been made to an administrative body for a decision which may alter the rights of the parties in a manner that would affect the outcome of the proceeding (the relevant principles for which were discussed by Perry J in ResMed Limited v Australian Manufacturing Workers’ Union (No 2) (2015) 243 FCR 366; [2015] FCA 537).

13    In ResMed Limited v Australian Manufacturing Workers’ Union (No 2) (2015) 243 FCR 366; [2015] FCA 537, each of ResMed and the AMWU sought declarations as to whether the AMWU was entitled to represent the industrial interests of certain ResMed employees who would be covered by a proposed enterprise agreement. The AMWU sought a temporary stay of the proceedings pending the determination by the Fair Work Commission of applications concerning the AMWU’s eligibility rules and its right to represent the ResMed employees. Perry J (at [50]) referred to the following principles as being of general application to a stay application (drawn from the decision of Bennett J in Apotex Pty Ltd v Les Laboratoires Servier (No 6) [2012] FCA 745):

(a)    prima facie a plaintiff is entitled to have his or her action tried in the ordinary course of the procedure and business of the Court;

(b)    it is a grave matter to interfere with this entitlement by a stay of proceedings, which requires justification on proper grounds;

(c)    the burden is on the defendant in a civil action to show that it is just and convenient that the plaintiff’s ordinary rights should be interfered with;

(d)    the Court’s task is one of “the balancing of justice between the parties”, taking account of all relevant factors; and

(e)    each case must be judged on its own merits, and it would be wrong and undesirable to attempt to define in the abstract what the relevant factors are.

14    The circumstances of this case differ from the categories referred to above. In this case, the applicant seeks declaratory and injunctive relief from the Court in circumstances where an alternative remedy may be available to the applicant through an administrative review or appeals process. The grant of declaratory and injunctive relief is discretionary and the availability of an alternative remedy through an administrative review or appeals process is a relevant consideration in the exercise of the discretion to grant relief, and the discretion to stay the proceeding pending the outcome of the administrative review or appeal: FCT v Futuris Corp Ltd (2008) 237 CLR 146 at [10] and [48] per Gummow, Hayne, Heydon and Crennan JJ.

15    Many cases have discussed the competing considerations relevant to whether a court should entertain an application for declaratory or injunctive relief (or prerogative writs) in respect of an issue pending before, or that is able to be determined by, an administrative review or appeals body, or where there is an alternative appeals process.

16    In Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421, the Supreme Court of New South Wales granted a declaration concerning the validity of mining licences notwithstanding a pending enquiry by a mining warden. Gibbs J observed (at 438-439) that, in that case, the grant of declaratory relief was a proper exercise of judicial discretion because the issue involved a difficult question of construction of a statutory instrument and rights of considerable value depended on the answers to them. In a passage often cited, Walsh J (in dissent on the primary issue of construction) stated (at 427-428):

In my opinion, when a special tribunal is appointed by a statute to deal with matters arising under its provisions and to determine disputes concerning the granting of rights or privileges which are dependent entirely upon the statute, then as a general rule and in the absence of some special reason for intervention, the special procedures laid down by the statute should be allowed to take their course and should not be displaced by the making of declaratory orders concerning the respective rights of the parties under the statute.

…

I do not think that this view is weakened by the circumstance that the relevant provisions of the Act, and in particular those of s 46(3), did not commit to the warden the power to determine finally and unexaminably the matters which the Act requires him to decide: see Wade v Burns (1966) 155 CLR 537. On the contrary, if his decisions were immune from any review by means of any of the prerogative writs, that might be a ground for concluding, in some cases, that the Supreme Court ought to intervene by means of a declaration before the warden had given a decision, in order to ensure that the matter should not be finally determined in a manner which was not according to law.

17    In The Queen v Ross-Jones; ex parte Green (1984) 156 CLR 185, prohibition and certiorari were sought in relation to an interlocutory order made by the Family Court staying the enforcement of a judgment in a State Supreme Court. Gibbs CJ observed (at 193-195):

However, where it is claimed that a Judge of the Family Court is exceeding his or her jurisdiction, the existence of a right of appeal to the Full Court of that Court, although not a bar to the grant of prohibition, may provide a reason why this Court should withhold the relief on discretionary grounds… That is not to say that this Court will always, or even generally, refuse prohibition to an aggrieved party who has failed to take advantage of an available right of appeal, or that prohibition should be regarded as an exceptional remedy. On the contrary, if a want or excess of jurisdiction is clearly shown, the fact that the party affected by the wrongful exercise of jurisdiction had another remedy, such as an appeal, available will in general be immaterial… If the jurisdiction of the tribunal to which prohibition is sought to be directed depends on the existence of particular facts which are in dispute, it will often appear desirable to let that tribunal proceed to determine those facts in the first place. It is involved in what I have already said that a court of limited jurisdiction has power to determine the existence or otherwise of facts on which its jurisdiction depends, although its determination is not conclusive… Even where there is a preliminary or collateral issue as to the existence of facts on which the jurisdiction of the tribunal depends, prohibition may be granted before the tribunal has made a finding on that issue, as, for example, where there is some reason for thinking that the tribunal will decide the issue erroneously or otherwise exceed its authority… or where it is apparent that the issue must be decided in a way that will reveal a want of jurisdiction.

18    In Solution 6 Holdings Ltd v Industrial Relations Commission of NSW (2004) 60 NSWLR 558, the plaintiffs sought an order in the nature of prohibition to restrain the Industrial Relations Commission from dealing with an application made to it on the basis that the Commission lacked jurisdiction. In discussing whether the New South Wales Court of Appeal ought to exercise its supervisory jurisdiction, Spigelman CJ observed (at [142]):

The determination of jurisdictional facts frequently overlaps with the fact finding required for the exercise of the jurisdiction. There are numerous comments in the cases which indicate that a court exercising a supervisory jurisdiction should be slow to intervene in such circumstances and should permit the tribunal which has been designated by Parliament to make such findings to do so in the first instance. However, this conclusion is often based on reasoning which indicates that such restraint serves the important function of rendering more efficacious the court’s supervisory and, in some cases, appellate jurisdiction.

19    In Masters v Garcia (2005) 65 NSWLR 92, the New South Wales Court of Appeal refused to make a declaration that the appellants had no financial interest in a hotel licence for the purposes of the Gaming Machines Act 2001 (NSW) because (at 115-117):

(a)    the statutory question that arose under the Act required an administrator to form an opinion on the facts before the administrator and, while the court could review the legality of the administrator’s decision, the court could not substitute its opinion for that of the administrator; and

(b)    intervention by the court would be premature in circumstances where the fact finding that would need to be undertaken by the court would overlap with the determination of jurisdictional facts by the administrator.

20    In Summit Grain Investment Australia Pty Ltd v A-G (Vic) [2013] VSC 383, Croft J refused an application for the grant of declaratory relief against the Commissioner of State Revenue having regard to specialised procedures and remedies available to the plaintiff for review of the primary decision under the provisions of the Taxation Administration Act 1997 (Vic). The same conclusion was reached by the New South Wales Court of Appeal in Lloyd v Veterinary Surgeons Investigating Committee [1999] NSWCA 68 in respect of an available alternative remedy under the Administrative Decisions Tribunal Act 1997 (NSW).

21    The foregoing general law principles have a statutory analogue in s 10 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act). Section 10(1) provides that the rights of review conferred by ss 5, 6 and 7 of that Act are in addition to, and not in derogation of, any other rights that the person has to seek a review, whether by the court, by another court, or by another tribunal, authority or person. However, s 10(2)(b) provides that, notwithstanding s 10(1), the Federal Court or the Federal Circuit Court may, in its discretion, refuse to grant an application under ss 5, 6 or 7 for the reason that, inter alia, adequate provision is made by any law other than the ADJR Act under which the applicant is entitled to seek a review by the court, by another court, or by another tribunal, authority or person, of that decision, conduct or failure. Pagone J recently surveyed the cases decided under s 10(2)(b) in Lucas v Commissioner of Taxation (2015) 66 AAR 381.

22    A decision to temporarily stay a proceeding must also take into account the overarching purpose stated in s 37M of the Federal Court of Australia Act 1976 (Cth) (FCA Act) which includes the following objectives:

(a)    the just determination of all proceedings before the Court;

(b)    the efficient use of the judicial and administrative resources available for the purposes of the Court;

(c)    the efficient disposal of the Court’s overall caseload;

(d)    the disposal of all proceedings in a timely manner; and

(e)    the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.

23    Commenting upon the many cases in this area, the authors of Judicial Review of Administrative Action and Government Liability (Aronson, Groves and Weeks, 6th ed) (at [15.140]) list a number of factors that courts have considered in exercising a discretion whether to intervene or remit the parties to a statutorily indicated forum:

(a)    is the issue presented one of law or fact;

(b)    if the issue involves a question of fact, is the court as well-equipped to determine the issue as the alternative forum;

(c)    even if the issue is one of law, would it be better decided by the specialist body primarily responsible for the area;

(d)    would the court’s lists become unmanageable if it were to take this and like cases;

(e)    in terms of the litigants’ costs, would early judicial resolution of the issue be a clear advantage;

(f)    if the issue is complex or difficult, would the court be assisted significantly both by the tribunal’s opinion and by the process of refinement that usually occurs when a matter is re-argued;

(g)    what effect will prior, concurrent or subsequent resort to the court have upon the procedure of the alternative forum and upon the appeals system (if any) which the statute provides?

24    In my view, the foregoing factors reflect the applicable general law principles discussed in the cases referred to above and the requirements of s 37M.

25    To resolve the application for a stay, it is therefore necessary to consider in some detail the regulatory framework that establishes the alternative administrative review process, the relevant factual background and the nature of the claims sought to be made in this proceeding.

Regulatory Framework

26    Schedule 3 to the Telco Act is entitled “Carrier’s powers and immunities”. Division 3 of Schedule 3 is entitled “Installation of facilities”. Clause 6(1) (within Division 3) provides that a carrier may, for purposes connected with the supply of a carriage service, carry out the installation of a facility if, among other things, the facility is a low-impact facility as defined by clause 6(3).

27    Clause 6(2) provides that if clause 6(1) authorises a carrier to carry out a particular activity, the carrier may, for purposes in connection with the carrying out of that activity:

(a)    enter on, and occupy, any land; and

(b)    on, over or under the land, do anything necessary or desirable for those purposes, including, for example, constructing, erecting and placing any plant, machinery, equipment and goods.

28    The foregoing provisions were considered by Kunc J in NBN Co Limited v Pipe Networks Pty Ltd (2015) 295 FLR 256 at [73] – [84]; [2015] NSWSC 475. His Honour observed that clause 6(1) confers a power for specified purposes on a carrier to “carry out the installation of a facility” if certain prerequisites are satisfied. Clause 6(2) involves two elements. First, it requires there to be a particular activity which clause 6(1) authorises the carrier to carry out. Second, if the particular activity is authorised by clause 6(1) then, for purposes in connection with the carrying out of that activity, clause 6(2) authorises the various activities described in paragraphs (a) and (b). Paragraph (a) is to enter on and occupy land and paragraph (b) is to undertake various activities on, over or under the land. His Honour observed that, by clause 6(2), the legislature has expressly authorised certain conduct that would otherwise constitute, amongst other things, the tort of trespass to land.

29    Clause 6(3) provides that the Minister may, by legislative instrument, determine that a specified facility is a low-impact facility for the purposes of clause 6. On 20 February 2018, the Minister for Communications made the Telecommunications (Low-impact Facilities) Determination 2018 (the Determination).

30    Section 3.1 of the Determination is in the following terms:

(1)    A facility described in column 2 of an item in the Schedule is a low-impact facility only if it is installed, or to be installed, in an area mentioned in column 3 of the item.

(2)    However, the facility is not a low-impact facility if the area is also an area of environmental significance.

(3)    For sub-section (1), trivial variations for a facility mentioned in column 2 are to be disregarded.

(4)    A facility that is ancillary to a facility covered by sub-section (1) is also a low-impact facility only if it is:

(a)     necessary for the operation or proper functioning of the low-impact facility;

(b)     a shroud installed over a low-impact facility, where the shroud is intended to minimise the amenity impact of the low-impact facility and is colour-matched to its background; or

(c)     installed, or to be installed solely to ensure the protection or safety of:

    (i)    the low-impact facility;

    (ii)    a facility covered by paragraph (a); or

(iii)    persons or property in close proximity to the low-impact facility.

31    The Schedule to the Determination is divided into a number of parts. Part 3 is titled “Above Ground Housing”. Column 2 of item 6 of that part refers to “in-building subscriber connection equipment”. That term is defined in the Determination as a facility installed within a building:

(a)    with the aim of managing and maintaining the supply of carriage services to a customer of a carrier; or

(b)    that is, or is to be, part of a national network used, or for use, for the high-speed carriage of communications on a wholesale-only and non-discriminatory access basis, where the facility is to be used (or intended to be used at some future time) by end users of carriage services delivered by such a network. For the avoidance of doubt the end users are to be located in the building in which the facility is installed.

32    Division 5 of Schedule 3 of the Telco Act is entitled “Conditions relating to the carrying out of authorised activities”. That Division imposes various requirements on a carrier when engaging in an activity under Division 2, 3 or 4 of Schedule 3. Clause 15(1) (within Division 5) provides that the Minister may, by legislative instrument, make a code of practice (referred to earlier as the Telco Code) setting out conditions that are to be complied with by carriers in relation to any or all of the activities covered by Division 2, 3 or 4, subject to irrelevant exceptions. Clause 15(2) stipulates that a carrier must comply with the Telco Code. The current Telco Code was made by the Minister for Communications on 20 February 2018.

33    Clause 17(1) (also within Division 5) stipulates that, before engaging in an activity under Division 2, 3 or 4 of Schedule 3 in relation to any land, a carrier must give written notice of its intention to do so to the owner and any occupier of the land. Under clause 17(4), the notice must be given at least 10 business days before the carrier begins to engage in the activity.

34    Chapter 4 of the Telco Code is entitled “Low-Impact Facilities”. Section 4.1(1) of the Code stipulates that if a carrier engages, or proposes to engage, in a low-impact facility activity, the carrier must comply with the conditions set out in the Code. Section 4.2 defines a “low-impact facility activity” of a carrier as (a) installing a low-impact facility and (b) carrying out an activity for purposes in connection with the installation of a low-impact facility. The expression “low-impact facility” is defined in the dictionary to the Code as a facility determined by the Minister under clause 6(3) of Schedule 3 of the Telco Act to be a low-impact facility.

35    Part 5 of Chapter 4 of the Telco Code is entitled “General notification arrangements and objections to low-impact facility activities”. Divisions 2 and 3 of Part 5 repeat and expand upon the notification requirements in clause 17 of Schedule 3 to the Telco Act. Division 4 of Part 5 is entitled “Objection made to carrier”. It establishes procedures by which an owner or occupier of land, who has received a notice from a carrier under clause 17, may give the carrier a written objection to the proposed activity. Division 5 of Part 5 of the Code provides that if the objection is not resolved between the carrier and the recipient of a notice, the objection can be referred to the TIO. The provisions of Division 4 and 5 are reproduced in full below.

Division 4    Objection made to carrier

4.29    Objection to low-impact facility activity

(1)    If a carrier gives notice to an owner or occupier of land of its intention to engage in a low-impact facility activity, the owner or occupier (the objector) may give the carrier a written objection to the activity.

(2)    The objection must include reasons for the objection.

4.30    Reasons for objection

    The reasons for the objection may relate only to all or any of the following matters:

(a)    using the objector’s land to engage in the activity;

(b)    the location of a facility on the objector’s land;

(c)    the date when the carrier proposes to start the activity, engage in it or stop it;

(d)    the likely effect of the activity on the objector’s land;

(e)    the carrier’s proposals to minimise detriment and inconvenience, and to do as little damage as practicable, to the objector’s land.

Note    The carrier is required to take all reasonable steps to ensure that the carrier causes as little detriment and inconvenience, and does as little damage, as practicable in engaging in the activity: see Act, Schedule 3, clause 8.

4.31    Time for giving objection to carrier

The objection must be given to the carrier at least 5 business days before the carrier proposes to engage in the low-impact facility activity.

4.32    Activity after objection

If the objection complies with sections 4.29 to 4.31, the carrier must not engage in the low-impact facility activity unless 1 of the following situations happens:

Situation 1    The objection is resolved by an agreement between the carrier and objector.

Situation 2    A request to refer the objection to the Telecommunications Industry Ombudsman is not received by the carrier within the 5 business days mentioned in section 4.36.

Situation 3    The Telecommunications Industry Ombudsman deals with the objection without giving a direction to the carrier, and the Ombudsman informs the carrier in writing of that outcome.

Situation 4    The Telecommunications Industry Ombudsman gives a direction to the carrier.

4.33    Consultation

(1)    The carrier must make reasonable efforts to consult the objector about the objection within 5 business days after receiving the objection.

(2)    The carrier must also make reasonable efforts to resolve the objection by agreement with the objector within 20 business days after receiving the objection.

    Note    An agreement with the objector allows the carrier to engage in the low-impact facility activity: see s 4.32, situation 1.

(3)    The carrier must comply with any agreement made with the objector.

4.34    Changes to low-impact facility activity

(1)    If the objection is not resolved by agreement within 20 business days after receiving the objection, the carrier must consider whether to change the low-impact facility activity.

(2)    The carrier is not required to change the activity in a way that:

(a)    is not economically feasible; or

(b)    is not technically practicable; or

(c)    is likely to have a greater adverse effect on the environment than engaging in the activity as originally proposed; or

(d)    is inconsistent with a recognised industry standard or practice relevant to the activity.

         (3)    Within 25 business days after receiving the objection, the carrier must tell the objector, in writing:

(a)    whether the carrier proposes to change the activity, and, if so, how; and

(b)    if the carrier does not propose to change the activity – why the carrier will engage in the activity as originally proposed.

Division 5    Objection made to the Telecommunications Industry Ombudsman

4.35    Application of Division 5

    This Division applies if:

(a)    the objection is not resolved by agreement between the carrier and objector; and

(b)    the objector is not satisfied with the carrier’s response to the objection.

    4.36    Request to refer objection to Telecommunications Industry Ombudsman

(1)    Within 5 business days after the objector receives the carrier’s response to the objection, the objector may ask the carrier, in writing, to refer the objection to the Telecommunications Industry Ombudsman.

(2)    The carrier must comply with the request.

Note    If the objector does not ask the carrier to refer the objection, the carrier may engage in the low-impact facility activity: see s 4.32, situation 2.

    4.37    Compliance with directions of Telecommunications Industry Ombudsman

(1)    Subject to this section, if the Telecommunications Industry Ombudsman gives a direction to the carrier about the way in which the carrier should engage in the low-impact facility activity, the carrier must comply with the direction.

(2)    This section applies only if the objection which is the subject of the direction comes, in whole or in part, within the jurisdiction of the Telecommunications Industry Ombudsman.

Note    If the Telecommunications Industry Ombudsman deals with the objection without giving a direction to the carrier, and the Ombudsman informs the carrier in writing of that outcome, the carrier may engage in the land entry activity: see s 4.32, situation 3.

36    The expression “Telecommunications Industry Ombudsman” is defined in the dictionary to the Code as having the same meaning as in the Telecommunications (Consumer Protection and Service Standards) Act 1999 (Cth). In that Act, the expression is defined as the Telecommunications Industry Ombudsman appointed under the Telecommunications Industry Ombudsman Scheme. In turn, the Scheme is defined in that Act as the Scheme referred to in s 128 of that Act. Section 128 requires each carrier and each eligible carrier service provider to enter into a scheme providing for a Telecommunications Industry Ombudsman. Section 128(3) stipulates that this is the scheme operated by Telecommunications Industry Ombudsman Limited (ABN 46 057 634 787).

37    The Telecommunications Industry Ombudsman Scheme established in accordance with s 128 of the Telecommunications (Consumer Protection and Service Standards) Act 1999 (Cth) is not directly relevant to the issues raised in this application. Section 128(4) of that Act stipulates that the Telecommunications Industry Ombudsman Scheme must provide for the TIO to investigate, make determinations relating to and give directions relating to complaints about a carriage services by end-users of those services. Thus, the scheme relates to end-user complaints. The objection procedure established under Divisions 4 and 5 of Part 5 of Chapter 4 of the Telco Code does not concern complaints about carriage services by end-users of those services. For that reason, the scheme is not applicable to objections made under Divisions 4 and 5. However, the objection procedure requires a carrier who wishes to engage in a low-impact facility activity to refer objections to the entity known as Telecommunications Industry Ombudsman Limited and act in accordance with any directions given by the TIO. Any such direction is binding on the carrier by operation of clause 15 of Schedule 3 to the Telco Act.

38    A number of observations can be made about the objection procedure established by Divisions 4 and 5 of Part 5 of Chapter 4 of the Telco Code.

39    First, the objection procedure is not legally binding on the owner or occupier of the land to whom a notice is given under clause 17 of Schedule 3 to the Telco Act. It is only binding on the carrier giving the notice (by operation of clause 15 of Schedule 3 to the Telco Act). The recipient of the notice may elect to object and avail itself of the procedure established by Divisions 4 and 5, or may choose not to do so. If the owner or occupier objects under that procedure, the carrier will be prohibited from carrying out the activity by operation of section 4.32 of the Code, unless and until one of the 4 “situations” occurs. If the owner or occupy does not object, the carrier will be free to carry out the activity, unless restrained by some other legal process.

40    Second, the power conferred on a carrier by clause 6 of Schedule 3 to the Telco Act is relevantly confined to the installation a low-impact facility. Likewise, the requirements of Chapter 4 of the Telco Code, and the jurisdiction of the TIO to deal with installation activities, is conditional on those activities being the installation of a low-impact facility or an activity for purposes in connection with the installation of a low-impact facility. Whether a carrier’s proposed facility is a low-impact facility will involve questions of fact and law. In respect of the power of the TIO to deal with an objection under Divisions 4 and 5 of the Telco Code, the question can be characterised as a jurisdictional fact in the sense that, if the proposed activity is not a low-impact facility activity, the TIO will have no jurisdiction to deal with the objection. Further, the carrier will have no right to install the facility under clause 6 of Schedule 3 to the Telco Act.

41    Third, s 4.37(2) of the Telco Code stipulates that the power of the TIO to give a direction to the carrier under s 4.37(1) applies only if the objection which is the subject of the direction comes, in whole or in part, within the jurisdiction of the TIO. It is well settled that, where the jurisdiction of an administrative tribunal depends on the existence of a certain fact or circumstance, the tribunal should, prior to the exercise of any power conferred upon the tribunal, ascertain whether the fact or circumstance on which its jurisdiction depends in fact exists or arose: Mutual Life & Citizens’ Assurance Co Ltd v Attorney-General (1961) 106 CLR 48 at 56 per Dixon CJ (with whom Taylor and Windeyer JJ agreed); The Queen v Federal Court of Australia; ex parte WA National Football League (1979) 143 CLR 190 at 202-203; Duarte v Australian Maritime Safety Authority (2010) 188 FCR 429 at [38]; 273 ALR 253. As a general rule, the tribunal’s decision on the existence (or non-existence) of a jurisdictional fact is not conclusive and may be challenged on appeal or on an application for judicial review: Mutual Life & Citizens’ Assurance Co Ltd v Attorney-General (1961) 106 CLR 48 at 56 per Dixon CJ (with whom Taylor and Windeyer JJ agreed); The Queen v Federal Court of Australia; ex parte WA National Football League (1979) 143 CLR 190 at 202-203; Bailey v Owners Corporation Strata Plan 62666 [2011] NSWCA 293 at [55].

42    Fourth, s 4.30 of the Telco Code limits the reasons for an objection to five stated matters. Read contextually, it is apparent that the five matters relate to the physical and practical aspects of the installation of the facility on the relevant land and the potential harm or prejudice to an owner or occupier of the land. Paragraph (a) of s 4.30 is framed in open terms: it contemplates an objection relating to “using the objector’s land to engage in the activity”. Both parties accepted that paragraph (a) does not contemplate an objection on the basis of jurisdiction: that the proposed activity is not a low-impact facility activity. MyPort argued that it encompasses an objection to the installation of a facility on land because of some inherent feature of the land (such as being the subject of environmental or heritage protection). It is unnecessary to determine the precise parameters of paragraph (a). In my view, paragraph (a) is not intended to encompass the jurisdictional question whether the proposed activity is a low-impact facility activity. Rather, it addresses a more practical question: whether the proposed activity should be undertaken using the objector’s land at all. Nevertheless, for the reasons stated in the preceding paragraph, a necessary antecedent of the TIO’s power to resolve objections made under s 4.30 is a determination by the TIO whether it has jurisdiction in respect of the objections.

43    Fifth, the parties also disagreed about the meaning of s 4.37(1) of the Telco Code. Section 4.37(1) stipulates that, subject to the section, if the TIO gives a direction to the carrier about the way in which the carrier should engage in the low-impact facility activity, the carrier must comply with the direction. OPENetworks submitted that the section did not empower the TIO to give a direction to the carrier not to engage in the activity. It was submitted that the phrase “about the way in which the carrier should engage in the low-impact facility activity” only contemplates that the activity will proceed. MyPort made a contrary submission. Again, it is not necessary to resolve that debate. Section 4.37(1) is subject to sub-section (2). As noted above, s 4.37(2) stipulates that the section applies only if the objection is within the jurisdiction of the TIO. In my view, the intent of s 4.37, read as a whole, is that the TIO may decide not to deal with the objection, and give no direction to the carrier, if it forms the view that the proposed activity is not a low-impact facility activity and that, as a result, the objection is not within its jurisdiction. In that event, none of the “situations” referred to in s 4.32 would be satisfied. In particular, “Situation 3” would not be satisfied because the TIO would have declined to deal with the objection on the basis that it lacked jurisdiction. “Situation 3” is concerned with a circumstance in which the TIO considers that the objection is within jurisdiction, but rejects the objection and decides to give no direction to the carrier. As none of the “situations” referred to in s 4.32 would be satisfied, the carrier would be prohibited by s 4.32 from installing the low impact facility. Further, and in any event, if the proposed facility is not a low-impact facility, the powers conferred by clause 6 of Schedule 3 to the Telco Act would be inapplicable.

44    A copy of a document titled “Guidelines on the installation and maintenance of low-impact facilities” published by the TIO on 22 June 2018 was tendered in evidence. The Guidelines record the TIO’s approach to the exercise of its function under the objection procedures in Divisions 4 and 5 of Part 5 of Chapter 4 of the Telco Code. The Guidelines are not a statutory instrument and cannot affect the interpretation of the Telco Code. Nevertheless, the Guidelines are consistent with the views I have formed about the TIO’s powers and the operation of the Code. In Section 6, the Guidelines record that the TIO’s general approach is to consider a number of issues, the first of which is whether the proposed facility as described in a notice is a low-impact facility. In respect of that first issue, the Guidelines state as follows:

The TIO will consider whether a facility the Carrier proposes to install qualifies as a Low-Impact Facility defined under the Determination (see Part 3 of the Guide for more details).

The TIO will interpret the Determination in accordance with the law and with regard to the intention of the Determination, the objectives of the Act and what is fair and reasonable in the circumstances. If appropriate, the TIO may seek legal or other expert advice to inform its interpretation.

If the TIO forms the view that the proposed facility is not a Low-Impact Facility, the TIO will inform the Carrier and Land owner/occupier and will generally decline to consider the Objection. This does not mean that the Carrier can install the proposed facility – if a facility is not a Low-Impact Facility, the Carrier cannot rely on the Land Access Process to install the facility.

45    Sixth, a decision made by the TIO under s 4.37 of the Telco Code is reviewable by this Court under s 5 of the Administrative Decisions (Judicial Review) Act 1997 (Cth). It is a decision of an administrative character made under an enactment as defined. Relevantly, the definition of “enactment” includes an instrument made under an Act. The Telco Code is a legislative instrument made by the Minister under clause 15(1) of Schedule 3 to the Telco Act. The Code derives its force and effect from the terms of the Telco Act and has the capacity to affect legal rights and obligations: see Chittick v Ackland (1984) 1 FCR 254 at 264; 53 ALR 143; Australian Petroleum Pty Ltd v ACCC (1997) 73 FCR 75 at 88; 143 ALR 381.

Factual Background

46    OPENetworks is a carrier within the meaning of s 7 of the Telco Act. It designs, builds, operates and maintains “fibre to the premises” telecommunications networks (FTTP networks). OPENetworks uses fibre optic cables to construct its networks. These are thin, plastic coated cables which contain glass fibres that use light to transmit data. OPENetworks’ business includes the installation and operation of FTTP networks in residential multi-dwelling buildings. It contracts with the developer of the building to construct the conduits, pits, pipes, cable trays, trenches and other facilities to install and operate an FTTP network within the building. It is a wholesale service provider and its customers are retail service providers who contract with individual customers to provide them with retail telecommunication services (such as voice and broadband). Once OPENetworks’ FTTP network is installed, retail service providers may use the network to offer telecommunications services to residents of the building. OPENetworks’ FTTP network may also be used by the building’s developer, owner’s corporation or body corporate to operate building services and systems such as building pressurisation systems, fire and emergency services and control systems, door and gate access controls, intercom systems, CCTV cameras and other security systems, air conditioning, lighting, lifts, potable and hot water systems, power monitoring and control systems, free to air television and pay TV systems.

47    On or about 4 October 2017, OPENetworks entered into a contract with the developer of the Australia 108 residential apartment and hotel development at Southbank in Melbourne, WCL-Southbank (VIC) Pty Ltd. Pursuant to that contract, OPENetworks has commenced the following works:

(a)    trenching and construction of street conduits and lockable pits near the site for Australia 108;

(b)    installing fibre cable from the OPENetworks pit to the OPENetworks telecommunications equipment in the communications room at Australia 108;

(c)    causing the inter-connection of a long term dark fibre cable to the OPENetworks pit to connect Australia 108 to OPENetworks’ data centre racks at 55 King Street, Melbourne;

(d)    designing and installing a FTTP network within Australia 108; and

(e)    supplying building services at Australia 108 using the FTTP network including the operation of lifts, fire and emergency phone and data lines, building pressurisation systems, free to air TV, remote pay TV head-end system and remote satellite dish, intercom systems, access controls for all doors and gates, CCTV cameras and security systems.

48    Pursuant to the Australia 108 contract, the developer has commenced work on:

(a)    the trenching and conduits between the street boundary and the communications rooms in the development;

(b)    the conduits and cable trays between each apartment and the communications rises;

(c)    all vertical communications rises;

(d)    all pits, pipes and cables trays; and

(e)    power points in the rises and on the customer termination panels in the specified cupboard of each apartment in the development.

49    The Australia 108 development is being completed in five stages. Stages 1.1 - 2 have been completed, with stage 3 to be completed in or about the end of March 2019. Construction is scheduled to continue through to March 2020.

50    Stage 1.1 of Australia 108 was completed in or about June 2018 and residents began moving into apartments in that part of the building at around that time. OPENetworks FTTP network is currently being used to operate building services for the stage of the building that has reached completion.

51    Under the Australia 108 contract, on the request of the developer, OPENetworks must supply a “telecommunications certification” addressed to all relevant Local and State Government Authorities certifying that “all lots are connected to or are ready for connection to telecommunications services”. OPENetworks has provided certification for stages 1.1 - 2 of Australia 108 as follows:

(a)    on or about 23 April 2018 for the levels up to level 31;

(b)    on or about 27 July 2018 for levels 32 to 41; and

(c)    on or about 19 November 2018 for levels 32 and 42 to 54.

52    MyPort (which trades under the name Gigafy) also holds a carrier licence under the Telco Act. MyPort’s primary business is also the installation and operation of telecommunications networks in residential multi-dwelling buildings. MyPort installs telecommunications infrastructure during or shortly after the construction of residential buildings through contractual agreement with the developer, body corporate or building manager, or by use of the powers conferred by Division 3 of Schedule 3 to the Telco Act, or by a combination of both.

53    The telecommunications architecture sought to be installed by MyPort generally has the following elements:

(a)    MyPort arranges for the commercial supply of fibre backhaul from third parties into the communications room of the residential building, at which the backhaul connects to switching/distribution equipment owned or operated by MyPort;

(b)    ethernet cables are installed within the building by MyPort, with the cables running from the switching/distribution equipment to each residential apartment;

(c)    the ethernet cable installed in each residential apartment is connected to a Wifi router, to which residents can connect; and

(d)    MyPort uses its network to supply internet services to residents of the building.

54    MyPort’s business model differs from OPENetworks’ in that MyPort supplies telecommunication services directly to end-users. To receive a service from MyPort, residents of a building connect to the Wi-Fi___33 router in their apartment and select a plan. The service can then be activated without the need for further equipment or technicians visiting the site. The services supplied by MyPort involve no lock-in contracts, no early termination fees, no set up fees and month to month billing with the ability to upgrade or downgrade plans.

55    MyPort also wishes to install telecommunications facilities within the Australia 108 building. On 31 July 2018, MyPort served a LAAN on OPENetworks and a LAAN on the Australia 108 Owner’s Corporation. The LAANs were in materially the same terms. A LAAN was given to OPENetworks for the reason that, under its network development agreement with the developer of Australia 108, OPENetworks held an exclusive licence to access and use various components of the telecommunications network being installed at the Australia 108 development for the purpose of constructing and installing its FTTP network and may therefore be regarded as an occupier for the purposes of clause 17 of Schedule 3 to the Telco Act.

56    Each of the LAANs define the relevant land to be accessed by MyPort as:

Any conduit, communications room, cable tray, communications riser, communications rack, NDF or roof top within the Development other than any conduits owned or occupied by OPENetworks within the Development, or any levels of the Development currently under construction.

57    Each of the LAANs define the facilities to be installed by MyPort pursuant to the notice in the following terms:

‘Low-impact facilities’ as defined by the Telecommunications (Low-Impact Facilities) Determination 2018 (including facilities described in paragraph (a) of the definition of the ‘in-building subscriber connection equipment’ in the Telecommunications (Low-Impact Facilities) Determination 2018, and facilities ancillary to ‘low-impact facilities’ as set out in s 3.1(4) of the Telecommunications (Low-Impact Facilities) Determination 2018 being:

•   Lockable data cabinets

•   Power Over Ethernet (POE) Network Switches

•   Patch Panel

•   Core Router

•   Wireless Access Points

•   Backbone Data Cabling.

58    On 8 August 2018, the Australia 108 Owner’s Corporation served an objection to the LAAN on MyPort. On 9 August 2018, OPENetworks also served an objection to the LAAN it had received. Between 13 August and 11 September 2018, consultation occurred between MyPort and the Australia 108 Owner’s Corporation, and between MyPort and OPENetworks, in respect of the LAANs and the objections.

59    On 14 September 2018, the Australia 108 Owner’s Corporation requested MyPort to refer its LAAN objection to the TIO pursuant to s 4.36 of the Telco Code of Practice. On 17 September 2018, OPENetworks also requested MyPort to refer its LAAN objections to the TIO. On 9 October 2018, MyPort referred the objections to the TIO.

60    The objections made by the Australia 108 Owner’s Corporation and OPENetworks are in almost identical terms. The only difference between the two sets of objections is that OPENetworks’ objection includes a section titled “requirement for wholesale-only supply” comprising paragraphs 33 to 40, which is not contained within the Australia 108 Owner’s Corporation objection. The remainder of these reasons focus on the OPENetworks objection.

61    The objections are lengthy and it is unnecessary to reproduce them in full. However, the following two features can be noted.

62    First, the objection commences with a recitation of s 4.30 of the Telco Code which limits the reasons for the objection to five specified topics. Specific objections are then raised under each of the five topics referred to in s 4.30 of the Code.

63    Second, under a heading “Invalidity of the LAANs”, the objection introduces further grounds of objection stating:

In addition to the matters set out above, OPENetworks consider that the Australia 108 ON LAAN is not a valid LAAN under clause 6 of schedule 3 to the Telecommunications Act 1997(Cth) the (Telco Act) for the following reasons.

The document then continues with a range of contentions in support of the conclusion that the LAAN given to OPENetworks is not valid.

64    On 7 January 2019, the solicitors for OPENetworks wrote to the solicitors for MyPort stating additional grounds upon which OPENetworks contended that the LAAN was invalid, demanding that MyPort withdraw the LAAN and threatening to commence legal proceedings if that did not occur.

65    On 16 January 2019, MyPort served a further LAAN on the Australia 108 developer, WCL-Southbank.

66    On 25 January 2019, the solicitors for MyPort wrote to the solicitors for OPENetworks expressing the view that the proper forum for determination of the grounds of objection to the LAAN, including the grounds concerning invalidity, was through the TIO.

67    On 31 January 2019, OPENetworks commenced these proceedings.

68    On 6 February 2019, the solicitors for OPENetworks wrote to the TIO advising that OPENetworks had commenced these proceedings and stated:

Given the potential for overlap in the Referral and the court proceedings, we understand that the TIO may elect to cease handling the Referral made by our client.

…

Our client thanks the Ombudsman and her team for their assistance with the Referral and for her understanding of the above.

69    Also on 6 February 2019, the TIO responded noting that there were “separate objectors in interrelated land access matters” and asked for clarification whether OPENetworks proposed that the TIO also put those other matters on hold.

70    On 7 February 2019, the solicitors for OPENetworks responded to the TIO in the following terms:

The Federal Court proceedings were commenced by our client (OPENetworks Pty Ltd). The Australia 108 Owners Corporation is not a party to those proceedings. While issues in the proceedings may overlap with the issues that have been raised by the Owners Corporation in relation to the LAAN issued to it, the proceedings concerns only the LAAN issue to OPENetworks Pty Ltd.

On that basis, you may consider that it is appropriate for OPENetworks’ objection… to be placed on hold.

As for the other objectors and whether their objections ought to be placed on hold in light of the Federal Court proceedings, that is not a matter that our client (OPENetworks) is in a position to comment on.

71    Also on 7 February 2019, the solicitors for MyPort wrote to the TIO stating that, in MyPort’s view, there was no basis for the TIO to suspend its consideration of OPENetworks’ objection simply because the proceedings had been commenced. The letter stated that:

(a)    There is no statutory basis for the TIO to suspend its determination of a matter referred to it by a carrier under s 4.36 of the Telco Code.

(b)    The Telco Code outlined a clear statutory process for dealing with an objection and identifies the TIO as the appropriate forum.

(c)    The TIO cannot abdicate the responsibilities given to it as the proper decision maker under the Telco Code.

(d)    Section 4.32 of the Telco Code prohibited MyPort from engaging in the proposed activities under the LAANs until either (i) the TIO deals with the objection; or (ii) the objection is resolved by agreement between MyPort and OPENetworks. MyPort cannot undertake the proposed activities until the TIO has made its determination. The TIO must, therefore, make a determination.

72    On 13 February 2019, the solicitors for OPENetworks wrote to the TIO stating, in summary:

(a)    the Federal Court proceeding contests the legal validity of the LAAN and any finding of the TIO would become otiose in the event the Court was to find the LAAN invalid; and

(b)    a stay of OPENetworks’ objection is appropriate.

73    Further correspondence ensued between the parties and the TIO advancing opposing contentions as to whether the TIO should defer or suspend its consideration of the OPENetworks’ objection.

74    On 1 March 2019, the TIO wrote to the solicitors for MyPort, OPENetworks and the Australia 108 Owner’s Corporation stating that the TIO proposed deferring consideration of the objections until the outcome of the Federal Court proceeding because the outcome of the proceeding was likely to be relevant to the consideration of the objections. The TIO invited the parties to provide any further information before a final decision was made.

75    Following a request made by WCL-Southbank under s 4.36 of the Telco Code, on 6 March 2019 MyPort also referred WCL-Southbank’s objection to its LAAN to the TIO. On 13 March 2019, the TIO wrote to MyPort and WCL-Southbank indicating that the TIO also proposed to defer consideration of WCL-Southbank’s objection to its LAAN until the outcome of the Federal Court proceeding.

76    In submissions, MyPort was critical of the representations made by OPENetworks to the TIO to the effect that the TIO ought to place on hold its consideration of the objections in light of this proceeding. Stated in direct terms, MyPort’s primary concern was that OPENetworks had gained a commercial advantage from the TIO’s decision to place its procedures on hold. The effect of the TIO’s decision is that MyPort is not able to install its facility (by reason of the operation of section 4.32 of the Telco Code). This impedes MyPort’s ability to offer an internet service to residents of Australia 108 in competition to retail service providers who use OPENetworks’ telecommunications service, which gives OPENetworks a commercial advantage. Further, MyPort submitted, OPENetworks had achieved that outcome through making representations to the TIO and without the need to seek interlocutory relief against MyPort and the TIO, which would usually have required an undertaking as to damages.

77    In response, OPENetworks submitted that it wished to have determined as quickly as possible the questions as to the legality of MyPort’s proposed activities and that it had brought the proceeding in this Court as an efficient means of resolving those questions. Further, it submitted that both parties had made representations to the TIO as to how it ought to proceed, and MyPort’s complaint was merely that the TIO had not accepted MyPort’s representations.

78    In my view, there is nothing inappropriate about the representations that OPENetworks made to the TIO. The appropriateness or otherwise of the election made by the TIO to defer its decision making pending a determination by this Court of its jurisdiction is not a matter raised in this proceeding, nor could it be in circumstances where the TIO has not been joined. However, the facts that the TIO has elected to defer its decision making, and that MyPort cannot currently proceed with the installation of its facility at Australia 108, are facts relevant to the disposition of this application and are considered further below.

The claims made by OPENetworks in this proceeding

79    In this proceeding, OPENetworks seeks:

(a)    a declaration that the LAAN issued by MyPort to it is invalid and of no effect;

(b)    further or in the alternative, a declaration that the works contemplated by the LAAN are not permitted to be undertaken pursuant to clause 6(1)(b) of schedule 3 of the Telco Act;

(c)    an order that MyPort be permanently restrained from carrying out the works contemplated by the LAAN. (As noted by OPENetworks in its supplementary submission; the Originating Application contains a typographical error referring to OPENetworks rather than MyPort, which will be corrected).

80    The grounds on which those orders are sought are set out in a Concise Statement filed on behalf of OPENetworks. There are 10 grounds which can be summarised as follows:

(a)    First, by reason of its current heritage protection under the Melbourne Planning Scheme, Australia 108 is an “area of environmental significance” within the meaning of the Determination and, therefore, the works proposed under the LAAN cannot be low-impact facilities.

(b)    Second, s 372F(2) of the Telco Act requires that all “fixed line facilities” in real estate developments be “fibre ready” and the LAAN contemplates the installation of copper rather than fibre optic cables.

(c)    Third, for MyPort’s proposed facilities to constitute “in-building subscriber connection equipment” (as stated in the LAAN), MyPort must show that those facilities are “installed within a building… with the aim of managing and maintaining the supply of carriage services to a customer of a carrier” and MyPort has not demonstrated that it reasonably holds that aim.

(d)    Fourth, MyPort’s proposed installation under the LAAN involves the construction of a “local access line” between (at least) the backhaul connection to be used by MyPort and the telecommunications equipment proposed to be installed by it in the communications room at Australia 108 or, alternatively, the core router which is proposed to be installed by MyPort in the communications riser on level 15 at Australia 108. MyPort intends to use the local access line to provide telecommunication services only to itself, but that is prohibited by s 143 of the Telco Act which stipulates that the line must only be used to supply relevant services to another carrier. Also contrary to s 141 of the Telco Act, MyPort’s facilities do not allow multiple services to be provided at once and, therefore, are not able to offer prospective customers of the network a layer 2 bitstream service.

(e)    Fifth, MyPort’s installation under the LAAN involves the creation of “penetration points” in the concrete slabs at Australia 108 and there is a risk that those works are not in accordance with good engineering practice as required by section 4.5 of the Telco Code.

(f)    Sixth, the LAAN was not provided to all owners or occupiers of the relevant land as required by clause 17 of Schedule 3 to the Telco Act.

(g)    Seventh, the LAAN does not provide sufficient detail in relation to MyPort’s proposed works and the manner in which MyPort proposes to carry out those works as required by section 4.26 of the Telco Code.

(h)    Eighth, the LAAN is inconsistent in relation to whether OPENetworks’ fibre optic cables will be interfered with in the course of installing MyPort’s cables in breach of the requirement in clause 8 of the Telco Act that MyPort cause as little detriment and inconvenience as practicable.

(i)    Ninth, MyPort’s proposed facilities are co-located facilities (within the meaning of the Determination) because MyPort’s cabling will be installed in the existing cable trays and pathways at Australia 108 that are used by OPENetworks. A “co-located facility” is only a “low-impact facility” if it is one of the facilities that is mentioned in Parts 1, 6 or 7 of item 3 of Part 4 of the Determination, but those parts of the Determination are not applicable to MyPort’s facilities.

(j)    Tenth, MyPort has represented in the LAAN and correspondence to the TIO dated 9 October 2018 that the LAAN is valid but, having regard to the non-compliances set out in the preceding paragraphs, that representation is misleading or deceptive and contravenes s 18 of the Australian Consumer Law.

81    It is apparent that at least some of the grounds alleged by OPENetworks do not involve issues relating to the TIO’s jurisdiction to deal with the LAAN objections and raise other issues of compliance with the Telco Act. In its written submissions on this application, OPENetworks submitted that the validity of the LAAN, and whether MyPort’s proposed facilities are, in fact, low-impact facilities, is the only matter in dispute in these proceedings. Having regard to the Concise Statement, I invited the parties to file supplementary submissions addressing the question whether the grounds for relief stated in the Concise Statement are so confined. Further submissions were filed by each party on 26 March 2019. OPENetworks also provided a proposed statement of claim that more fully articulated the legal bases of the grounds of claim stated in the Concise Statement.

82    The supplementary submissions filed by the parties assisted in the identification of the issues raised in this proceeding. The effect of these submissions is that it is common ground between the parties that the first, third and ninth grounds concern the TIO’s jurisdiction to deal with the objections to the LAAN. Those grounds concern the issue whether the facility proposed to be installed by MyPort is a low-impact facility within the meaning of clause 6 of Schedule 3 to the Telco Act.

83    It is also common ground that the fifth, eighth and tenth grounds do not concern the TIO’s jurisdiction. OPENetworks submitted that the fifth and eighth grounds concern the manner in which the proposed works are to be carried out, and the tenth ground is a separate cause of action.

84    As to the four remaining grounds, OPENetworks’ submission is that the second and fourth grounds go to jurisdiction on the basis that a LAAN can only contemplate the lawful supply of a carriage service, and MyPort’s proposed carriage service to be supplied using the proposed facility would not be lawful. OPENetworks acknowledges that the sixth and seventh grounds go to the form and content of the LAAN, but OPENetworks alleges that the defects go to the validity of the LAAN and the consequential legal entitlement to install the facilities contemplated by the LAAN.

85    It is apparent that the issues raised by OPENetworks in this proceeding bear little relationship to the issues that may be the subject of an objection to a LAAN under s 4.30 of the Telco Code. In this proceeding, OPENetworks challenges the validity of the LAAN and MyPort’s legal right to install its proposed facility under clause 6 of Schedule 3 to the Telco Act. In contrast, the objection procedure established by Divisions 4 and 5 of Part 5 of Chapter 4 of the Telco Code is directed to the resolution of the practical and physical impacts upon an owner or occupier of land that would arise from installing a low-impact facility on that land.

Disposition of this application

86    MyPort advanced six primary arguments why a stay is appropriate in the circumstances, which can be summarised as follows:

(a)    First, the TIO is the appropriate forum to determine the issues raised by OPENetworks at first instance because it is a specialist administrative tribunal with technical expertise.

(b)    Secondly, the present proceeding causes a duplication of proceedings. This presents risks of disruption, fragmentation and delay to the TIO’s proceedings. There is also a risk of potentially conflicting decisions because the TIO is not a party to the proceeding. The proceeding in this Court might be rendered moot if the TIO determines OPENetworks’ objection in favour of OPENetworks. The duplication of proceedings wastes the resources and time of the Court, the TIO and the parties.

(c)    Third, if OPENetworks had sought prohibition (or injunctive relief) against the TIO in this proceeding, the Court would have refrained from granting such relief because there is no patent excess of jurisdiction by the TIO.

(d)    Fourth, OPENetworks’ challenge to the validity of the LAAN does not go to the TIO’s jurisdiction. Rather, the TIO’s jurisdiction merely depends upon the existence of the LAAN served by MyPort and OPENetworks’ objection to that LAAN. Even if the LAAN were affected by some legal defect, it does not follow that the TIO is deprived of jurisdiction to consider and rule on OPENetworks’ objection.

(e)    Fifth, the grant of a declaration in this proceeding can only be made on the basis of a concrete set of facts as found, or upon a formally-agreed statement of facts. The fact finding exercise required of this Court would be duplicative of the TIO’s role as primary finder of fact. Any subsequent review of the TIO’s decision would be confined to grounds of judicial review, in which the facts as found by the TIO are taken as given.

(f)    Sixth, the balance of prejudice favours a stay of the proceedings. This is because s 4.32 of the Telco Code prohibits MyPort from carrying out the facility installation unless and until the TIO determines OPENetworks’ objection. Accordingly, any delay to the conclusion of the TIO’s consideration of the objection will result in delay to MyPort’s ability to access the premises. Conversely, there would be no prejudice to OPENetworks if this proceeding were stayed pending the TIO’s decision.

87    OPENetworks’ primary contention is that there is no overlap between the matters at issue in this proceeding and the matters that the TIO is empowered to determine under the Telco Code. For that reason, there is no risk of inconsistent findings, nor is there any risk of MyPort being confronted with the same issue twice.

88    In my view, a temporary stay of this proceeding, to enable the TIO to conclude its consideration of OPENetworks’ objections, is not appropriate. That is for the following reasons.

89    The issues raised by OPENetworks in this proceeding are not issues within the ambit of s 4.30 of the Telco Code for the reasons explained above. The issues raised by OPENetworks in this proceeding concern the legal entitlement of MyPort to install the proposed facility. They directly concern the TIO’s jurisdiction, and otherwise challenge the validity of the LAAN and MyPort’s entitlement to rely on the powers conferred by clause 6 of Schedule 3 of the Telco Act. An administrative decision maker in the position of the TIO would be expected to address arguments as to its jurisdiction. It cannot, though, determine its own jurisdiction conclusively. Further, the issues sought to be raised by OPENetworks in this proceeding are far reaching and challenge the lawfulness of various aspects of MyPort’s proposed activities. The legal consequences of the allegations made by OPENetworks are likely to be complex and controversial.

90    I reject the submission of MyPort that the TIO’s jurisdiction merely depends on a LAAN being served under clause 17 of Schedule 3 of the Telco Act and an objection to the LAAN being referred to the TIO. The objection procedures in Divisions 4 and 5 of Part 5 of Chapter 4 of the Telco Code are conditioned upon a carrier having given an owner or occupier of land notice of its intention to engage in a low-impact facility activity. If the proposed activity is not a low-impact facility activity within the meaning of the Code, the objection procedures are not activated and the TIO has no jurisdiction to deal with the objection.

91    This is not a case in which there is a clear legislative intent for the issues raised in this proceeding to be determined by an administrative body in the first instance. The objection procedures in Divisions 4 and 5 of Part 5 of Chapter 4 of the Telco Code are directed to different issues. Further, the procedures are optional in the sense that an owner or occupier of land may avail themselves of the procedures in order to mitigate potential harm or prejudice resulting from a carrier installing a telecommunications facility on their land. They are not mandatory procedures and they are not framed so as to address questions going to the legality of the proposed facility or the services to be supplied using the facility.

92    It follows that I do not consider that the TIO is an appropriate forum in which to determine the issues raised by OPENetworks in this proceeding. While MyPort submitted that the TIO is a specialist administrative tribunal with technical expertise, the nature and scope of its technical expertise was not the subject of direct evidence and can only be inferred. As discussed earlier, it appears that the TIO was established as a forum in which to adjudicate consumer complaints against telecommunications service providers, but it has also been given the role of adjudicating objections made by owners and occupiers of land to the installation of facilities on their land. It is not clear from the evidence whether and to what extent the TIO has technical expertise in relation to the provisions of the Telco Act on which OPENetworks relies.

93    Further, while the allegations stated in the Concise Statement, and as further articulated in the proposed statement of claim, raise questions of both fact and law, the allegations are unlikely to give rise to an extensive factual dispute. The allegations primarily concern the physical features of the telecommunications facility proposed to be installed by MyPort at Australia 108, and the nature of the telecommunications services proposed to be offered by MyPort. Those matters are already the subject of substantial evidence before me on this application. The more difficult questions are likely to be matters of law. I consider that the Court is as well-equipped to determine the necessary questions of fact as the TIO.

94    It also follows that I do not consider that the present proceeding will cause duplication of proceedings or a risk of potentially conflicting decisions. It is the case that, in its objection lodged with the TIO, OPENetworks raised most of the same issues as those which are raised in this proceeding. However, the TIO has indicated that it will defer its consideration of the objections until the Court has resolved this proceeding. If the TIO were to address some or all of the issues in an administrative context, it is likely that the issues would require final resolution by this Court which would in any event lead to duplication rather than avoid it. Undoubtedly, this proceeding will cause delay to the TIO proceeding, but it will not cause fragmentation. In my view, it is more efficient for the Court to deal with the issues raised immediately.

95    As to the balance of prejudice, MyPort’s principal concern relates to the fact that OPENetworks had activated the TIO objection procedure, with the effect that MyPort is now prevented from installing its proposed facility by reason of section 4.32 of the Telco Code, and subsequently commenced this proceeding. MyPort acknowledged that if OPENetworks had issued this proceeding without making an objection under the Telco Code, MyPort would have had no basis to seek a stay of the proceeding. MyPort’s complaint is that:

(a)    By activating the objection procedure under the Telco Code, OPENetworks has brought about a circumstance in which MyPort is now unable to proceed (by virtue of section 4.32).

(b)    OPENetworks has achieved that result without seeking interlocutory injunctive relief against MyPort, thereby bypassing questions as to the balance of convenience and the offer of an undertaking as to damages.

(c)    Then, rather than continuing with the TIO objection procedure, OPENetworks commenced this proceeding which, if allowed to proceed, would delay the finalisation of the TIO objection procedure, thereby prolonging the section 4.32 restraint.

96    MyPort argued that, by taking the above steps, OPENetworks has secured an entrenched commercial advantage as against MyPort and that such an outcome is contrary to the objectives of the Telco Act which, amongst other things, is to promote choice, competition and efficiency in the supply of telecommunications services. MyPort described the commencement of this proceeding as vexatious, although it did not contend that it involved an abuse of process.

97    In response, OPENetworks made 4 primary submissions:

(a)    First, it said that an owner or occupier of land that receives a notice under clause 17 of Schedule 3 of the Telco Act has a very short space of time in which to consider and respond to the notice. In the circumstances, it is understandable that OPENetworks availed itself of the procedures in the Telco Code to object to the notice.

(b)    Second, OPENetworks’ objection drew a distinction between objections made under section 4.30 of the Telco Code and other objections which related to the validity of the LAAN and MyPort’s legal entitlement to install the facility. The latter objections are the subject of this proceeding.

(c)    Third, as to competitive or commercial advantage, OPENetworks relied on the affidavit evidence of its Managing Director, Mr Sparksman, to the effect that OPENetworks is concerned that MyPort’s proposed activities at Australia 108 create a risk of physical damage to OPENetworks’ facilities, which would cause detriment to residents of Australia 108, the proper functioning of building services at Australia 108 and OPENetworks’ commercial activities. Mr Sparksman was not cross-examined.

(d)    Fourth, the Australia 108 Owner’s Corporation and WCL-Southbank had also made objections to the TIO raising similar issues, and the TIO had decided to defer consideration of those objections until the determination of this proceeding. Accordingly, it was not the case that OPENetworks’ objection was the sole cause of the TIO’s decision and the continuation of the section 4.32 restraint.

98    In my view, the evidence does not support a conclusion that this proceeding is vexatious, and MyPort does not contend that it is an abuse of process. In that respect, I largely accept the submissions of OPENetworks. I infer that MyPort’s principal concern is that it is currently prevented from proceeding with the installation of its proposed facility, but does not have the benefit of an undertaking as to damages. However, that is a result of the provisions of the Telco Code. The circumstances relied on by MyPort do not, in my view, justify a stay of this proceeding and do not counterbalance the factors to which I have already referred. The balancing of justice between the parties, taking account of all the relevant factors, including in particular those stated in s 37M, support the conclusion that I should not stay this proceeding but endeavour to expedite its hearing and determination. If proceedings of the kind issued by OPENetworks become more common, and if the concerns stated by MyPort arise again, there may be a need to review the operation of Divisions 4 and 5 of Part 5 of Chapter 4 of the Telco Code, or the TIO may need to reconsider its approach to objections that are also the subject of court proceedings. In different circumstances, an applicant might be put to its election whether to prosecute its objections in the Court or through the TIO objection process. That could be achieved by staying the proceeding for so long as the issues raised in the proceeding are the subject of an objection before the TIO. However, in the circumstances of this case, in my view that is not a necessary or appropriate order.

99    I will therefore dismiss the application with costs. I will also list the matter for a case management conference on 18 April 2019 in order to timetable the matter for trial.

Associate:

Dated:    10 April 2019