FEDERAL COURT OF AUSTRALIA
TX Australia Pty Limited v Australian Competition and Consumer Commission [2020] FCA 1100
ORDERS
DATE OF ORDER: | 5 August 2020 |
THE COURT ORDERS THAT:
1. The amended originating application for judicial review filed 22 May 2020 be dismissed.
2. The applicant pay the respondents’ costs of and in connection with the proceeding.
3. The publication of the reasons for judgment be confined to the external legal representatives of the parties for a period of seven days in which the parties are to notify the Associate to Jagot J whether any part of the reasons should be redacted on the grounds of confidentiality.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
JAGOT J:
The proceedings
1 The issue in this matter is whether the Australian Competition and Consumer Commission (the ACCC) has jurisdiction to arbitrate a dispute between TX Australia Pty Ltd (TXA) as the owner of broadcasting transmission towers and the second to sixth respondents (the Ten licensees) as access seekers as provided for in cl 47(1), (1A) and (2) of Sch 4 to the Broadcasting Services Act 1992 (Cth) (the BSA).
2 TXA contends that the ACCC does not have jurisdiction to arbitrate the dispute because the two pre-conditions to arbitration by the ACCC in each of cl 47(1), (1A) and (2) are not satisfied. Those pre-conditions are agreed to be jurisdictional facts. They are, first, whether there has been a failure of agreement between TXA and the Ten licensees about the terms and conditions of access to TXA’s broadcasting transmission facilities and, second, whether there has been a failure of agreement between TXA and the Ten licensees about the appointment of an arbitrator. According to TXA those pre-conditions have not been satisfied because:
(1) a third party, BAI Communications Pty Ltd (BA), purported to seek access on behalf of the Ten licensees, and on its proper construction, cl 47 of the BSA does not require the owner or operator of broadcasting transmission facilities to agree the terms and conditions of access with an agent of an access seeker if the agent is also, as BA is, an owner and operator of broadcasting transmission facilities to which cll 45 to 47 of Sch 4 of the BSA applies, and a competitor of the owner or operator of the facilities to which access is sought (the construction issue);
(2) in any event, on consideration of the whole of the relationship between the Ten licensees and BA, it should be found that the Ten licensees’ purported appointment of BA as their agent did not constitute BA as their agent for the purposes of seeking access to the TXA facilities, and the purported ratification of that appointment was also ineffective (the agency issues);
(3) further, if BA was constituted as the agent of the Ten licensees for the purposes of seeking access to the TXA facilities, there has not been a failure to agree on the terms and conditions of access, as BA’s request for access on 18 July 2019 was expressed to be a final offer with no scope for negotiation (the failure to agree terms and conditions issue); and
(4) if BA was constituted as the agent of the Ten licensees for the purposes of seeking access to the TXA facilities, there has not been a failure to agree on the appointment of an arbitrator in circumstances where there was no communication about an arbitrator before BA purported to notify the ACCC of the existence of a dispute about access on behalf of the Ten licensees (the arbitrator issue).
3 The ACCC, the Ten licensees and BA contend that the ACCC has jurisdiction to arbitrate the dispute between the Ten licensees and TXA. The ACCC confined its role in the proceeding to submissions about the proper construction of the BSA (issues (1) and (4) below). The Ten licensees and BA dealt with all of the issues, contending that:
(1) on its proper construction, Pt 5 of Sch 4 to the BSA does not exclude any agent from acting on behalf of an access seeker, including an agent who is an owner or operator of facilities to which the access regime in Pt 5 of Sch 4 applies, and a competitor to the owner of the facilities to which access is sought;
(2) the Ten licensees appointed BA as their agent for the purpose of seeking access to TXA’s facilities under Pt 5 of Sch 4, and that appointment was effective for that purpose and in any event was ratified by the Ten licensees before the ACCC decided it had jurisdiction to arbitrate the dispute on 24 February 2020;
(3) there has been a failure of agreement between the Ten licensees and TXA on the terms and conditions of access to TXA’s facilities as TXA rejected the offer of 18 July 2019 and, on any view of the facts, there has been a failure of agreement about the terms and conditions of access. Alternatively, a failure to agree means a mere absence of agreement about terms and conditions of access, which is the fact in the present case; and
(4) it is immaterial that communications about an arbitrator first occurred after the Ten licensees notified the ACCC of a dispute about access as the fact of the failure to agree an arbitrator need only exist now (at the time the Court determines whether the jurisdictional facts exist) or, at worst, need only have existed as at 24 February 2020 when the ACCC determined that it did have jurisdiction to arbitrate the dispute. Alternatively, a failure to agree means a mere absence of agreement about the appointment of an arbitrator, which is the fact in the present case.
4 I am satisfied that the jurisdictional facts which pre-condition the constitution of the ACCC as the arbitrator of the dispute have both been satisfied (and were satisfied as at 24 February 2020) and that TXA’s arguments to the contrary should be rejected. My reasons follow.
The BSA – statutory scheme
5 Section 3(1) sets out the objects of the BSA. They include the following:
(a) to promote the availability to audiences throughout Australia of a diverse range of radio and television services offering entertainment, education and information; and
…
(b) to provide a regulatory environment that will facilitate the development of a broadcasting industry in Australia that is efficient, competitive and responsive to audience needs.
6 By s 12(1) broadcasting services (defined in s 6(1) to include a service that delivers television programs) require a licence. By s 41C a commercial television broadcasting licence for a licence area authorises the licensee to provide specified commercial television broadcasting services in the licence area. A commercial broadcasting service has the meaning given by s 14.
7 Section 216A provides that Sch 4 has effect.
8 Part 5 of Sch 4 provides a transmitter access regime.
9 Clause 43 of Sch 4 defines certain terms including a “facility” and a “designated associated facility”.
10 By cl 43A of Sch 4 a “designated associated facility means any of an antenna, a combiner, a feeder system or a facility of a kind specified in the regulations, where the facility is, or is to be, associated with a transmitter and the facility is used, or capable of being used, in connection with, relevantly, the transmission of a television broadcasting service in digital mode”.
11 Clause 44 of Sch 4 provides for an extended meaning of “access” including that, for the purposes of Pt 5, “giving access” to a designated associated facility includes:
(3)(a) replacing the facility with another facility located on the same site and giving access to the replacement facility; or
(b) giving access to a service provided by means of the designated associated facility.
12 Clause 45 provides that:
(1) The owner or operator of a broadcasting transmission tower must, if requested to do so by the holder of a commercial television broadcasting licence (the access seeker), or a national broadcaster (also the access seeker), give the access seeker access to the tower.
(2) The owner or operator of the broadcasting transmission tower is not required to comply with subclause (1) unless:
(a) the access is provided for the sole purpose of enabling the access seeker to install or maintain a transmitter and/or associated facilities used, or for use, wholly or principally in connection with the transmission of the access seeker's television broadcasting service or services in digital mode; and
(b) the access seeker gives the owner or operator reasonable notice that the access seeker requires the access.
13 Clause 45A applies to a designated associated facility if the facility is situated on, at, in or under a broadcasting transmission tower or the site on which a broadcasting transmission tower is situated. By cl 45A(2):
(2) The owner or operator of the designated associated facility must, if requested to do so by the holder of a commercial television broadcasting licence (the access seeker), or a national broadcaster (also called the access seeker), give the access seeker access to the facility.
14 Clause 45A(3) is in equivalent terms to cl 45(2) extracted at [12] above.
15 Clause 46 concerns access to the site on which a broadcasting transmission tower is located. The regime for access to such sites is in equivalent terms to cl 45 (providing for access to a broadcasting transmission tower).
16 Clauses 47(1), 47(1A) and cl 47(2) apply, respectively, to cll 45(1), 45A(2) and 46(1). These provisions are in equivalent terms so it is sufficient to identify the terms of cl 47(1) which are as follows:
(1) The owner or operator of a broadcasting transmission tower must comply with subclause 45(1) or (3) on such terms and conditions as are:
(a) agreed between the following parties:
(i) the owner or operator;
(ii) the access seeker (within the meaning of that subclause); or
(b) failing agreement, determined by an arbitrator appointed by the parties.
If the parties fail to agree on the appointment of an arbitrator, the ACCC is to be the arbitrator.
17 The Broadcasting Services (Transmitter Access) Regulations 2001 (Cth) (2001 Regulations), although now repealed, continue to apply in certain circumstances (ie, to arbitrations notified to the ACCC under Pt 3 of the 2001 Regulations which had not been withdrawn, terminated, or determined prior to the commencement of the superseding regulations on 24 September 2019: see cl 35 of Broadcasting Services (Transmitter Access) Regulations 2019 (Cth)). Part 3 of the 2001 Regulations provide for arbitration. Clause 7(1) states that an access seeker (defined in cl 3 to be an access seeker as described in cll 45, 45A or 46 of the BSA) “may notify the ACCC in writing that a dispute exists if the access seeker is unable to agree about the terms and conditions on which access is, or is to be given, by an access provider”. By cl 7(3) the notification must include, among other things, a description of any effort that has been made to resolve the dispute (cl 7(3)(h)), and, if the parties have failed to agree on the appointment of an arbitrator – confirmation of the failure to agree (cl 7(3)(i)).
Facts
18 None of the facts were in dispute. The following facts are taken from TXA’s submissions which refer to the unchallenged evidence of Louise Curcuruto, the General Manager Commercial TXA, in an affidavit dated 13 May 2020.
19 TXA and BA are competitors in relation to the supply of broadcast transmission services.
20 A portal service involves the owner or operator of a broadcasting transmission facility taking responsibility for the shared infrastructure (the tower and the associated facilities including combiners and antennae) while the holder of a broadcast licence is responsible for the transmitters.
21 A managed service involves the owner or operator of a broadcasting transmission facility taking end-to-end responsibility for the whole transmission process from an agreed handover point where the signal is received from the holder of a broadcast licence.
22 TXA and BA each own and operate broadcast transmission towers and designated associated facilities. In each of the main capital cities, TXA operates a “main site” and a “standby site”, which is not operational unless the main site is affected by an outage. BA only has one site in each capital city.
23 TXA (a joint venture of Seven and Nine (and formerly Ten)) provides managed transmission services to these commercial broadcasters. BA provides managed transmission services to the ABC and SBS which are national broadcasters.
24 BA acquires portal services from TXA enabling BA to access TXA sites to provide to the ABC and SBS a level of redundancy that it could not provide relying only on its own (single-site) infrastructure. BA contracts with TXA for these services. TXA also acquires portal services from BA. The contracts for these portal services are between TXA and BA and result from commercial deals between them which are not subject to the statutory access regime in Pt 5 of Sch 4 to the BSA.
The jurisdictional facts
25 It is common ground that the jurisdictional facts in cl 47 of Sch 4 (failing agreement on the terms and conditions of access and failing agreement on the appointment of an arbitrator) are jurisdictional facts which the Court must decide for itself on the basis of the evidence before it.
26 I agree with this common ground. The facts in question are objectively ascertainable and essential pre-conditions to the appointment of the ACCC as arbitrator.
27 In Owners of the Ship “Shin Kobe Maru” v Empire Shipping Company Inc [1994] HCA 54; (1994) 181 CLR 404 at 426 the High Court said:
Where jurisdiction depends on particular facts or a particular state of affairs, a challenge to jurisdiction can only be resisted by establishing the facts on which it depends. And, of course, they must be established on the balance of probabilities in the light of all the evidence advanced in the proceedings held to determine whether there is jurisdiction.
The construction issue
TXA’s contentions
28 In its originating application TXA contended in ground 3(A)(i) that cll 45-47 of Sch 4 to the BSA did not permit an agent to act on behalf of an access seeker. However, ground 3A(i) was not pressed by TXA. Rather, its case was confined to that identified in ground 3(A)(ii) of its application that those clauses do not apply if the agent is also an owner or operator of broadcasting transmission facilities to which the access obligations in cll 45-47 apply and a competitor of the owner or operator of the transmission facilities to which access is sought.
29 TXA submitted that in construing Pt 5 of Sch 4 proper weight must be given to Parliament’s identification of the specified parties between whom agreement is contemplated – the holder of a commercial television broadcasting licence (the access seeker) and the owner or operator of a broadcasting transmission facility. The relevant failure of agreement must be between these two parties. TXA accepted that “ordinary agents” such as company officers and lawyers could act on behalf of an access seeker within the meaning of the access regime but said that this was as far as the statutory scheme went.
30 According to TXA, nothing in the transmitter access regime indicates that an access seeker may transfer its rights to another person and that this would be inconsistent with the “sole purpose” requirement of access on which the obligation to give access is conditioned in cll 45(2), 45A(3) and 46(2). It would also be inconsistent, TXA said, with the scheme for regulating private property rights in the interests of an efficient and competitive industry. Parliament has specifically identified the access seekers to which the access regime applies and the scheme, TXA submitted, should not be widened beyond this specification.
31 TXA submitted that is construction was supported by the following circumstances:
(1) Pt 5 of Sch 4 regulates the relationship between owners or operators (on the one hand) and access seekers (on the other hand);
(2) Pt 5 of Sch 4 treats owners or operators in a particular way by making them subject to the access requirements, thereby disclosing an intention that owners or operators not be permitted to play a different role in the regime, being the seeker of access, even if that is on behalf of the holder of a broadcast licence;
(3) to allow an owner or operator of regulated facilities to act on behalf of an access seeker would be to allow horizontal competitors to engage the access regime against each other, where the regime ensures competition in the downstream broadcasting market is not impaired by an inability to access relevant facilities, and is not intended to regulate the upstream competitive relationship between owners and operators of regulated facilities;
(4) cll 45(2), 45A(3) and 46(2) require access to be for the “sole purpose” of enabling the access seeker, not a third party, to install or use facilities for use in connection with the transmission of the access seeker’s broadcasting service;
(5) the extended definition of “access” in cl 44(3), which provides for the giving of access to a designated associated facility to include access to a service provided by means of the designated associated facility, indicates that Parliament did not intend for the access regime to apply as between competing owners or operators;
(6) the access regime in Pt 5 of Sch 4 may be contrasted with regimes in which Parliament has provided rights of access to competitors (for example, Pt 5 of Sch 1 to the Telecommunications Act 1997 (Cth) and Pt XIC of the Competition and Consumer Act 2010 (Cth); and
(7) the Supplementary Explanatory Memorandum to the Television Broadcasting Services (Digital Conversion) Bill 1998 (Cth) at p 31, in explaining the transmitter access regime, said that the provisions:
ensure that the access requirements in Part 5 of proposed Schedule 4 to the BSA do not give a commercial television broadcasting licensee or a national broadcaster an access right in connection with the transmission of another person’s television broadcasting services in digital mode.
… This is not intended. The access right should only relate to the transmission by a commercial television broadcasting licensee or a national broadcaster of one or more of its own television broadcasting services in digital mode.
This confirms the legislative intention to identify precisely who is given and may exercise access rights, and to exclude those rights being exercised by others.
32 TXA submitted that the principle of legality supports its construction of the access regime. The regime expressly abrogates the private property rights of owners and operators of broadcasting transmission facilities and, accordingly, the choice of construction, if it is reasonably open, must be the one which involves the least interference with those rights: North Australian Aboriginal Justice Agency Ltd v Northern Territory [2015] HCA 41; (2015) 256 CLR 569 at [11]. Legislative provisions curtailing property rights “will be construed as effecting no more than is strictly required by clear words or as a matter of necessary implication”: Wentworth v NSW Bar Association [1992] HCA 24; (1992) 176 CLR 239 at 252. It would be contrary to the principle of legality to expand the access rights beyond the express statutory words by permitting them to be transferred to or exercised by third parties. There is no textual or purposive foundation in the access regime for concluding that a competing owner or operator may interpose itself between the owner or operator from whom access is sought and the access seeker. Contrary to the respondents’ submissions, the relevant question is to ask whether the access regime extends to access as between parties other than the owner or operator and the access seeker as defined and is not to ask whether agents are excluded from that regime. Had Parliament intended to extend the regime beyond the specified access seeker to owners or operators in competition with an owner or operator to seek access on behalf of an access seeker then it could have expressly said so, but it does not. TXA’s construction is reasonably available and does not lead to any absurdity or commercial impracticality so that the principle of legality requires its construction, which least interferes with private property rights, to be preferred.
33 TXA submitted that the present case illustrated the vice in the contrary construction. Network Ten Pty Ltd (the holding company for the Ten licensees) sought proposals from TXA and BA as the owners of broadcast transmission facilities. TXA and BA both offered their facilities on commercial terms. The Ten licensees could have engaged the access regime against TXA or BA. Instead, BA is seeking an arbitrated price for TXA’s services so that BA can win Ten’s business. BA is seeking to use a regulatory regime that exists for the benefit of broadcasters to subsidise its own service offering at the expense of its main competitor.
Respondents’ submissions
34 The respondents submitted that TXA’s construction finds no support in the BSA, as nothing in the language or context of the statute indicates that Parliament intended to exclude agents who are competitors from acting on behalf of broadcasters for the purposes of the access regime. Nor, they said, is it apparent how this arrangement would be contrary to the objects of the statutory scheme.
35 As BA put it, there is “nothing in the statutory scheme to suggest that the ACCC, before arbitrating a dispute, must satisfy itself that the relationship between the access seeker and its agent does not fall within an excluded class”. The purportedly prohibited class of agents who are also owners or operators of regulated facilities who are in competition with the owner or operator from whom access is sought is unsupported by any textual or contextual consideration.
36 The ACCC submitted that the status of an agent validly appointed by an access seeker (as defined) is irrelevant to the statutory scheme. Thus, the respondents noted that TXA’s “horizontal competition” arguments wrongly assumed that the access would be access for the agent rather than access for the principal upon whose behalf the agent is acting. This, it was submitted, ignores the basic principles of the law of agency and the representative capacity in which an agent acts for and creates legal relationships as between the principal and the third party. Once it is recognised that the doctrine of agency means that access is access by the principal for the principal’s purpose, and not by the agent for the agent’s purposes, it necessarily follows that there is no “horizontal competition”.
37 Further, and as the ACCC put it:
Subclauses 45(2), 45A(3) and 46(2) of Sch 4, referring to the purpose for which access is provided, do not provide textual or contextual support to the applicant’s submission. They reflect an assumption that an access seeker provides a television broadcasting service, but say nothing about who may act as agent for such an access seeker. The same may be said of the Supplementary Explanatory Memorandum to the Television Broadcasting Services (Digital Conversion) Bill 1998 (Cth) relied upon by the applicant.
38 The respondents also said that the extended meaning of “access” in cl 44 does not support TXA’s construction given that there is no requirement for access to be provided by the owner or operator unless the “sole purpose” of the access seeker is in connection with the transmission of the access seeker’s broadcasting service.
39 Reference was also made to the observation of the High Court in Commissioner of Taxation v Sara Lee Household & Body Care (Australia) Pty Ltd [2000] HCA 35; (2000) 201 CLR 520 at [20] in which it was said that the principle of ratification of the acts of an agent was a “well settled rule of common law, and is part of the background against which the taxation legislation operates”. The common law doctrine of agency, it was submitted, is part of the background to the BSA and there is nothing in the statute suggesting its exclusion.
Discussion
40 I accept the respondents’ submissions.
41 TXA’s invocation of the principle of legality assumes that the law of agency does not form part of the background against which the BSA operates. The law of agency, however, is fundamental to the operation of the common law. It is, as the High Court observed in Sara Lee, part of the background against which legislation operates. The legislature is not to be taken to have excluded the operation of a fundamental principle of the common law, that party P can be represented by party A so as to create legal relationships between party P and party B, without a clear statement of its intention to do so: Potter v Minahan [1908] HCA 63; (1908) 7 CLR 277 at 304.
42 Once it is accepted that the law of agency forms part of the background against which the BSA operates, all of TXA’s arguments fall away. There is no “extension” of the interference with private property rights beyond that which is provided for on Pt 5 of Sch 4 to the BSA so as to engage the principle of legality. The interference with property rights remains precisely that provided for in the statutory scheme whether or not the access seeker acts on its own behalf or engages an agent to act for it; the interference remains that sanctioned by the statute, no more and no less, because the access is taken to be that of the principal and for the principal’s purposes and not that of the agent for the agent’s purposes. Further, no concern about horizontal competition arises if the agent itself happens to be the owner or operator of competing broadcasting transmission facilities; this status of the agent does not alter the operation of the doctrine of agency under which the access is taken to be that of the principal and for the principal’s purposes and not that of the agent for the agent’s purposes.
43 Once it is accepted, as TXA does accept, that an access seeker may act by an agent, there is no justification in any aspect of the text or context of the BSA to construe Pt 5 of Sch 4 so as to permit an access seeker to act by an agent except an agent who is the owner or operator of a regulated broadcasting transmission facility (that is, a facility itself subject to the access regime) and which is a competitor of the owner or operator of a broadcasting transmission facility who is subject to the requirement for access. None of the statutory provisions on which TXA relied support this construction of the statutory scheme. All of TXA’s submissions about these provisions assume that the law of agency does not operate as part of the background against which the legislature enacted the BSA. The same may be said about TXA’s reliance on Supplementary Explanatory Memorandum to the Television Broadcasting Services (Digital Conversion) Bill 1998 (Cth). There is nothing to suggest that the legislature intended Pt 5 of Sch 4 to operate other than against the background of the common law doctrine of agency. As the respondents submitted, once it is accepted that the law of agency, as a fundamental principle of the common law, operates as part of the background against which the BSA was enacted, TXA’s submissions collapse.
The agency issues
Principles
44 “The ‘central notion’ of agency is the agent acting or having actual or apparent authority to act as representative of, or for, or on behalf of, the principal”: Alliance Craton Explorer Pty Ltd v Quasar Resources Pty Ltd [2013] FCAFC 29; (2013) 296 ALR 465 at [73] citing NMFM Property Pty Ltd v Citibank Ltd (No 10) [2000] FCA 1558; (2000) 107 FCR 270 at [522].
45 As was cited in Alliance Craton at [53] “agency” in law connotes “an authority or capacity in one person to create legal relations between a person occupying the position of principal and third parties”: International Harvester Co of Australia Pty Ltd v Carrigan’s Hazeldene Pastoral Company [1958] HCA 16; (1958) 100 CLR 644 at 652. Cf. Petersen v Moloney [1951] HCA 57; (1951) 84 CLR 91 at 94:
The legal conception of agency is expressed in the maxim ‘Qui facit per alium facit per se’, and an ‘agent’ is a person who is able, by virtue of authority conferred upon him, to create or affect legal rights and duties as between another person, who is called his principal, and third parties.
46 “An agency relationship can only be established by the consent of both principal and agent (whether actual or implied)”: Alliance Craton at [54], citing South Sydney District Rugby League Football Club Ltd v News Limited [2000] FCA 1541; (2000) 177 ALR 611 at [132] and Tonto Home Loans Australia Pty Ltd v Tavares; FirstMac Ltd v Di Benedetto; FirstMac Ltd v O'Donnell [2011] NSWCA 389; (2011) 15 BPR 29,699.
47 In Perpetual Trustees Australia Ltd v Schmidt [2010] VSC 67 Forrest J said:
120. In Scott v Davis [[2000] HCA 52; (2000) 204 CLR 333 at [227]; Gummow J said of the relationship between principal and agent:
The term ‘agency’ is best used, in the words of the joint judgment of this Court in International Harvester Co of Australia Pty Ltd v Carrigan’s Hazeldene Pastoral Co, ‘to connote an authority or capacity in one person to create legal relations between a person occupying the position of principal and third parties’.
121. In Professor Dal Pont’s work, Law of Agency [G E Dal Pont, Law of Agency (2nd ed, 2008) 4.3], the following is said as to the elements of a principal/agency relationship:
There are at least two essential elements of an agency relationship: the consent (or assent) of both principal and agent; and the authority given to the agent by the principal to act on the principal’s behalf. A third element found in some conceptions of an agency relationship is the principal’s control over the agent’s actions.
48 To determine whether an agency relationship existed, Forrest J said at [119] that it is “necessary to look not only at the written terms of the respective agreements, but also the manner in which the relationships operated in a real and practical sense”.
49 An independent contractor may be an agent of a party. However, the mere fact that an independent contractor undertakes work at the request of another party and for its benefit is insufficient to establish agency. There is a requirement that the independent contractor, to be an agent, must represent the interests of the purported principal: Alliance Craton at [72].
50 In South Sydney District Rugby League Finn J provided a convenient summary of the relevant principles at [132] to [137]:
(1) the relationship of principal and agent “can only be established by the consent of the principal and the agent” (citing Garnac Grain Co Inc v HMF Faure & Fairclough Ltd [1968] AC 1130; (1967) 2 All ER 353 at 1137 (Garnac Grain));
(2) “the consents so given need not necessarily be to a relationship that the parties understand, or even accept, to be that of principal and agent … it is sufficient if ‘they have agreed to what amounts in law to such a relationship’” (citing Garnac Grain at 1137);
(3) “it is legitimate for parties to avoid the ‘unwanted consequences’ of a particular category of legal relationship by seeking to cast it in a form that takes it outside that category of relationship”, but they cannot by the mere device of labelling, no matter how genuinely intentioned, either confer a “particular legal character on a relationship that it does not possess or deny it a character that it does possess”;
(4) “save where an express labelling provision is shown to be a sham, the provision itself (as a manifestation of the parties’ intent) must be given its proper weight in relation to the rest of their agreement and such other relevant circumstances as evidence the true character of their relationship. This may lead to its being disregarded entirely … or to its being given full force and effect … And such will depend upon whether, given the actual incidents and content of the relationship (that is, ‘the factual relation’) to which the parties have consented, they have consented ‘to a state of fact upon which the law imposes the consequences which result from agency’” (citing Branwhite v Worcester Works Finance Ltd [1969] 1 AC 552 at 587); and
(5) “the required characteristics of the relation are that (a) one party acts on the other’s behalf but (b) subject to that other’s control or direction.” The latter requirement is not a “decisive indicator” other than in two settings – a company being the agent of its parent company by whom it is controlled, and where the asserted agent is also an independent contractor. As to the latter, the “two relationships are not mutually exclusive”. Though “control by itself is insufficient to establish agency”, the “‘acting on behalf of’ or ‘representative’ characteristic must be able to be discerned in the factual relation of the parties”, citing Colonial Mutual Life Assurance Society Ltd v Producers and Citizens Co-operative Assurance Co of Australia Ltd [1931] HCA 53; (1931) 46 CLR 41 at 48-51.
(Citations omitted unless shown).
51 In Tonto Home Loans it was said at [177]:
Not every independent contractor performing a task for, or for the benefit of, a party will be an agent, and so identified as it, or as representing it, and its interests. Agency is a consensual relationship, generally (if not always) bearing a fiduciary character, in which by its terms A acts on behalf of (and in the interests of) P and with a necessary degree of control requisite for the purpose of the role. Central is the conception of identity or representation of the principal … Examples and contexts may be infinite, and any arrangement must be understood and characterised by reference to its legal terms in context … It is sufficient to recognise that the essential characteristic is that one party (A) acts on the other’s (P’s) behalf, and that this will generally be in circumstances of a requirement or duty not to act otherwise than in the interests of P in the performance of the consensual arrangement … The duty will, of course, conform with the extent and scope of the agency and thus be of potentially varied content, recognising that context (in particular, perhaps, a market or commercial context) may attenuate the rigour or content of the fiduciary duty … The necessary good faith implicit in a fiduciary character in the relationship reflects the character of identity or representation that the relationship essentially carries.
(Citations omitted).
52 As to ratification, Barrett AJA said in Bennett v Strauss [2016] NSWCA 324; (2016) 341 ALR 141 at [55]:
The notion that ratification retrospectively causes one person to become the agent of another is, I think, apt to confuse unless considered in context. Acts of ratification potentially alter what would otherwise be the legal significance of past conduct of the putative agent. In a situation where it is sought to establish contractual liability of the ratifying person, the past conduct of the putative agent is necessarily the making of a contract. The ratifying acts cause the putative agent to be clothed with the ratifying party’s authority in such a way that the maxim qui facit per alium facit per se applies retrospectively to alter the character of the putative agent’s past conduct. Ratification causes that the past conduct to acquire, with effect back to the time it was engaged in, a legal significance that it lacked before the ratification.
(Citations omitted).
53 Similarly, in Sara Lee at [20] the High Court explained that:
North J, and the Full Court, applied the general rule that, where a principal ratifies the earlier act of a person acting as agent without authority, the ratification relates back to the date of the unauthorised act, and the principal is bound as if the agent had had authority at the earlier time. They were correct to do so. This is not a case in which the rights of third parties have intervened. Although the principle is sometimes described as operating upon the basis of a fiction, it is a well settled rule of common law, and is part of the background against which the taxation legislation operates. There is no reason to deny its application in the present case.
(Citations omitted).
Facts
54 There was a dispute between the parties (excluding the ACCC) about the scope of the relevant facts. The Ten licensees and BA focused on events on 18 July 2019 and subsequently. TXA contended that such a narrow focus was inappropriate but it is convenient to record immediately those events which are central to the dispute.
55 On 18 July 2019 at 12.18pm the Ten licensees sent to BA three executed documents, in the same terms, but relating to three separate groups of TXA sites (about which there was no dispute that the TXA sites and facilities were subject to the access regime in Pt 5 of Sch 4 to the BSA). The documents are headed:
Appointment of BAI Communications Pty Ltd trading as Broadcast Australia (BA) as agent of each of the Ten Network commercial television broadcasting licence holders that are signatories to this letter by execution below (each a Ten Licensee) to secure access necessary for provision of Transmission Services
56 The letters state:
This letter sets out the terms by which BA is appointed by each Ten Licensee as agent for purposes associated with the operation of Part 5 of Schedule 4 to the Broadcasting Services Act 1992 (Cth) (BSA).
57 Clause 1.1 provides that each “Ten Licensee wishes to install and/or maintain transmitters and/or associated facilities and use designated associated facilities and/or services by means of such designated associated facilities wholly in connection with the transmission of its television broadcasting services in digital mode from broadcasting transmission towers, the sites of broadcasting transmission towers and designated associated facilities owned or operated by TXA” at sites specified in that clause.
58 Clause 2.1 provides that each “Ten Licensee has appointed BA as its agent for the purposes of and in connection with the exercise of rights which it has as an access seeker under Part 5 of Schedule 4 to the BSA to be given access to the broadcasting transmission towers, sites of broadcasting transmission towers and designated associated facilities at locations identified in clause 1.1, including management of all matters or things which relate to negotiating, approving and executing terms and conditions of access, and the conduct of any arbitration”.
59 Clause 2.2 provides that “BA confirms its acceptance of the appointment referred to in clause 2.1”.
60 Clause 3.1(a) provides that the letter “confirms the entire agreement between the parties in respect of the subject matter of the letter”.
61 By cl 4 BA indemnifies each Ten Licensee against any costs or liability incurred by each Ten Licensee arising from a claim made by TXA that results from any act or omission by BA in connection with its appointment under cl 2.1.
62 The letters end by asking BA to execute the letter to confirm its acceptance of the above agreement.
63 On 18 July 2019 at 2.17pm BA confirmed to the Ten Licensees that “all good” and that it would counter-sign the letters and send them back.
64 On 18 July 2019 at 2.35pm BA sent an email to TXA attaching a letter and draft marked up Master Access and Services Agreement.
65 The attached letter said that:
BA has been appointed as agent by each holder of Ten Network’s commercial television broadcasting licences for the purposes of and in connection with the exercise of rights which those licence holders have as an access seeker under Part 5 of Schedule 4 to the BSA …
Therefore, BA, on behalf of the Ten commercial television broadcasting licence holders reiterates the terms of a final offer as a last attempt to resolve these commercial negotiations and requests that TX agree as follows:
[physical access, long term contract and then price are identified]
…
If TXA does not agree to the above terms by the set date, BA will conclude that commercial negotiations have failed and BA will, as agent for the Ten licence holders, commence an access dispute under Part 5 of Schedule 4 to the BSA.
66 On 19 July 2019 BA returned to Ten the counter-signed copies of the letters by which it was said that the Ten licence holders appointed BA as their agent for the specified purpose.
67 On 22 July 2019 TXA wrote to BA and in that letter stated that TXA did not accept BA’s purported “final offer”.
68 On 23 July 2019 there was a meeting between BA and TXA. BA recorded that there was not any meaningful progress at this meeting.
69 On 2 August 2019 BA submitted an access dispute notification under the Regulation to the ACCC. The notification said that BA, as agent for the Network Ten licensee companies (as the access seekers), wished to notify the ACCC of a dispute with TXA as an access provider for the purposes of Pt 5 of Sch 4 to the BSA. In providing a description of the dispute the notification refers to the request for proposals by Ten issued on 5 March 2018 and communications between BA and TXA in that regard after that date.
70 On 6 September 2019 the ACCC sought clarification and further information from BA including about the efforts made to appoint an arbitrator.
71 On 9 September 2019 in a Ten email it was stated that “Ten’s strong view [was] that the Master Access Service Agreement is an agreement between TXA and BA and as such [Ten did not] think it [made] any sense for Ten to be a party to that agreement and would not agree to be”.
72 On 30 September 2019 the solicitors for BA wrote to the solicitors for TXA seeking the appointment of an arbitrator. By letter dated 2 October 2019 the solicitors for TXA responded to the effect that it would be premature to appoint an arbitrator.
73 The ACCC fixed a timetable enabling submissions to be made to it about its jurisdiction to arbitrate the dispute. On 7 February 2020 the ACCC sought further information from the Ten licensees before finalising its views on jurisdiction. The ACCC sought confirmation from the Ten licensees that (i) the offer made to TXA by BA on 18 July 2019 was validly made on their behalf, (ii) they acknowledge they be a party to and bound by any Master Access Service Agreement that BA negotiated and agreed on their behalf, (iii) they continue to seek an agreement between TXA and themselves for their access to TXA’s facilities under the BSA, and (iv) they continue to seek arbitration of the dispute by the ACCC to achieve that objective.
74 On 14 February 2020 the Ten licensees each confirmed to the ACCC by letter that (i) the offer made to TXA by BA on 18 July 2019 was validly made on their behalf, (ii) they acknowledge they be a party to and bound by any Master Access Service Agreement that BA negotiated and agreed on their behalf, (iii) they continue to seek an agreement between TXA and themselves for their access to TXA’s facilities under the BSA, and (iv) they continue to seek arbitration of the dispute by the ACCC to achieve that objective.
75 On 24 February 2020 the ACCC notified the solicitors for BA and TXA that it was satisfied that it had jurisdiction to arbitrate the access dispute.
76 The Ten licensees and BA contended that it was sufficient to have regard to these documents which established that BA was the disclosed agent for Ten for the purpose of seeking access to TXA’s regulated facilities and that there was a failure of agreement between TXA and BSA (as agent for the Ten licensees) about the terms and conditions of access and a failure of agreement about the appointment of an arbitrator before the ACCC decided it had jurisdiction to arbitrate the dispute on 24 February 2020. This, submitted the Ten licensees and BA, was sufficient to dispose of the whole of TXA’s case.
77 TXA submitted that it was necessary to consider the whole circumstances of the relationship between the Ten licensees and BA in order to ascertain whether, in truth, their relationship was that of principal and agent for the requisite purpose. According to TXA this was necessary as a matter of principle and, in any event, such consideration had to be undertaken given that both the purported final offer made by BA on 18 July 2019 and the notification by BA to the ACCC referred to the whole course of the communications between BA and TXA since March 2018. Once this was done, according to TXA, it would be apparent that BA was not the agent of the Ten licensees for the required purpose and that the agency agreement between them was a mere device or label which did not disclose their true legal relationship.
78 On this basis, it is necessary to consider the factual circumstances as they developed from March 2018 onwards. Before doing so it is convenient to record that BA and the Ten licensees maintain that between them they had two available options from the outset. So-called “Plan A” was for BA, on its own account, to reach a commercial arrangement with TXA to enable BA (and, through BA, the Ten licensees) to use TXA’s facilities. In this event, the statutory transmitter access regime would be immaterial as BA does not hold a commercial broadcasting licence and thus is not an access seeker within the meaning of that statutory regime. So-called Plan B, which was the fall-back plan, would be used if Plan A failed. Under Plan B, BA, as the disclosed agent of the Ten licensees, would seek access to the TXA facilities for and on behalf of the Ten licensees for the requisite statutory purpose and, failing agreement with TXA about the terms and conditions of access, would notify a dispute about access with the ACCC. The Ten licensees and BA submitted that the fact that Plan B was always an option confirms that the agency agreement of 18 July 2019 between the Ten licensees and BA is no mere device; Plan B simply overtook Plan A when it became apparent that agreement with TXA about Plan A would not be forthcoming. TXA submitted that the fact that the Ten licensees and BA had Plan B, as it were, “up their sleeve”, supported its case that the agency agreement was a mere device to achieve the same access as initially sought directly on behalf of BA.
79 For my part I can see no element of “device” in the arrangements between the Ten licensees and BA; at the least there is no such element which would justify construing the agency agreement of 18 July 2019 as anything other than what it purports to be – an agreement which creates the legal relationship of principal and agent between the Ten licensees and BA for the purposes of and in connection with the exercise of rights which the Ten licensees have as access seekers under Pt 5 of Sch 4 to the BSA. TXA’s submissions to the contrary make no allowance for the fact that a later event (the constitution of BA as the agent of the Ten licensees) may overtake earlier events (BA’s attempts to contract directly with TXA) without the later event being in any way colourable, still less a sham (an argument expressly disavowed by TXA). TXA’s submissions also focus on indicia said to undermine the existence of an agency relationship between the Ten licensees and BA whilst simultaneously dismissing the terms of the agreements of 18 July 2019 as mere labels not reflecting the true substance of the relationship between the Ten licensees and BA. However, the indicia on which TXA relies must be evaluated along with the express terms of the agency agreements of 18 July 2019. On analysis, there is simply no justification for an approach which does other than give those agreements full force and effect in accordance with their terms. By entering into those agreements the parties to them evinced a clear intention to establish the legal relationship between them of principal and agent for the requisite purpose under the statutory transmitter access regime. The events of and after 18 July 2019 sufficiently disclose the whole of the relationship between the Ten licensees and BA to support this conclusion. This said, it is necessary to return to the beginning to deal with TXA’s case which, on analysis, does not support any different conclusion.
80 In February 2018 Network Ten Pty Ltd, in anticipation of it exiting as a shareholder of TXA who provided it with transmission services, made a request for a proposal from TXA and BA for the provision of transmitter services to Ten (which, in context, must be understood as the Ten licensees because only the licensees had the right to broadcast transmission services). Ten sought such services identical to its existing service arrangement as provided by TXA to Ten or equivalent to its existing service arrangement with the same level of redundancy. The then existing service arrangement between Ten and TXA is a managed service arrangement, that is, TXA takes end-to-end responsibility for the whole transmission process from an agreed handover point where the signal is received from the Ten licensees.
81 BA approached TXA on 5 March 2018 to obtain access to TXA’s facilities to enable BA to provide a solution to meet Ten’s requirements. BA said the access would be similar to that which exists between BA and TXA for provision of national broadcaster transmission services. As TXA submitted, in the arrangements for the national broadcasters, BA contracts for services from TXA so that it may provide the national broadcasters with redundancy. BA contracts with TXA as a principal, in its own right, and not as agent for the national broadcasters. It may be accepted that there is no hint in this correspondence from BA to TXA that it was doing other than approaching TXA on its own behalf to enable BA to put a proposal to Ten. That is, BA was not suggesting at that time that it was acting as an agent for Ten for the purposes of obtaining access.
82 TXA responded on 13 March 2017 providing prices as requested by BA.
83 BA and TXA then each provided a proposal to Ten. XXXXXXXXXX XXXXXXXXXX XXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXX XXXXXXXXXXXX XXXXXXXXXXXX XXXXXXXX XXXXXXXXXXXXXXXX XXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXX It is apparent that this is TXA’s pricing proposal to BA. XXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXX XXXXXXXXXX XXXXX XXXXXXXXX. As TXA submitted, there is no suggestion in BA’s proposal to Ten at this time that it might act as Ten’s agent for access. XXXXXXXXXXXXXX XXXXXXXXX XXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXX XXXXXXXXXXXXX XXXXXXXXXXXXX XXXXXXXXXXXXXXXXX XXXXXXXXX XXXXXXXXX XXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXX XXXXXXXXXX XXXX TXA stressed that this disclosed two separate commercial negotiations – between BA and TXA (on the one hand) and between Ten and TXA (on the other hand). On one level, this may be accepted. On another, what must be recognised is that it is the same facilities and services that are relevant in both cases. This discloses that BA and Ten were aware of the statutory transmitter access regime and its application to Ten (or, properly, the Ten licensees) as potential access seekers for the same services which were the subject of Ten’s request for proposals.
84 BA and Ten met to discuss BA’s proposal. BA proposed to Ten that TXA’s facilities would be the primary site due to the existing new transmitter and better antenna.
85 TXA submitted that the access regime does not contemplate “this kind of commercial relationship, whereby one owner and operator of infrastructure, upon whom access rights are itself imposed, seeks to leverage off that regime to get access to better and newer infrastructure that one of its competitors operates”. I have rejected this submission as a matter of the proper construction of the transmitter access regime above. As discussed, the submission overlooks the fact that if A is validly constituted as the agent of P then the access is taken to be access by P for P’s purposes and not access by A for A’s purposes. A is not “leveraging” off its competitor – P is simply obtaining access to facilities and services in respect of which it has a right to obtain access on agreed or arbitrated terms and conditions. For present purposes, however, the relevant point is that BA and Ten still contemplated at this time that BA would be contracting with TXA as principal. This much is clear from BA’s subsequent communication with Ten which noted that it proposed a “one supplier relationship with BA for transmission” with access to all third party sites “included and managed by BA”.
86 Ten executed a series of documents including a portal services agreement with BA. The documents involved an irrevocable offer by Ten to BA, capable of acceptance if and when Ten exited as a shareholder of TXA. TXA emphasised certain provisions of this portal services agreement in support of its contention that the legal relationship contemplated was one in which BA contracted with TXA as principal. Thus, TXA stressed that in the portal services agreement which Ten had executed:
(1) XXXXXXXXXXXXXXXXXXX XXXXXXXXXX XXXXXXXXX XXXXXXXXX XXXXXXXXXXXXXXXXXXXX XXXXXXXXX XXXXXXXXXX XXXXXXX XXXXXXXXX XXXXXXX XXXXXXX XXXXXXXXXXXXXX XXXXXXXXXXX XXXXXXXX;
(2) XXXXXXXXXXXXXXXXXXXXXX XXXXXXXXX XXXXXXXXXXXX XXXXXXXXXXXXXXXXXXX;
(3) XXXXXXXXXXXXXX XXXXXXXXXXXXXXXX;
(4) XXXXXXXXX XXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXX XXXXXXX XXXXXXXXXXX XXXXXXXXXXXXX XXXXXXXXXX XXXXXXXXXX XXXXXXXXXXXXXXXX; XX
(5) XXXXXXX XXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXX XXXXX XXXXXXXXXX XXXXXXXXXXXX XXXXXXXXXXX XXXXXXXXXX XXXXXXXXXXX XXXXXXXXXXX XXXXXXX.
87 These provisions, TXA submitted, were inconsistent with any agency as between BA and Ten. Elements of inconsistency between these provisions and the existence of an agency relationship between Ten and BA may be acknowledged. It must be recalled, however, that the evidence discloses that the first preference of Ten and BA was so-called Plan A in which BA would not act as Ten’s agent and that Plan B, the agency, would be relied upon only if necessary. Other elements of the portal services agreement contemplate the potential need to rely on Plan B.
88 XXXXXXXXXXXX XXXXXXXXXXXXXXXX XXXX XXXXXXXXX XXXXXXX XXX XXXXXXXXXXXXX XXX XXXXXXXXX XXXXXXXXXXX XXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXX XXXXXXXXXXXX X XXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXX XXXXXXX XXXXXX XXXXXX XX XXXXXXXX XXXXXXXXXXXXXX XXXXXXXXXXX XXXXXXXX XXX XXXXXXXXXX XXXX XXXXXXXXX XXXXXXXXXXXXXXXXXXX XXXXXX XXXXXXX XXXXXXXXXXXX XXXXXXXXXXXXXX.
89 As TXA submitted, given that Network Ten Pty Ltd does not itself hold a commercial broadcasting licence, it cannot be an access seeker to TXA’s regulated facilities or sites for the purposes of Pt 5 of Sch 4 to the BSA. To this extent, TXA’s submission that the document could not validly constitute BA as Ten’s agent for that purpose (on acceptance of the irrevocable offer by BA) must be accepted. But what the arrangement does disclose is that by this time, as BA and the Ten licensees submitted, they had decided that their commercial arrangement should proceed by one of two methods – first, by separate commercial arrangements between BA and TXA or, second and if necessary, by Ten appointing BA as its agent as an access seeker on behalf of Ten. It may be accepted that by reason of their misunderstanding Ten and BA wrongly assumed that Ten (rather than the Ten licensees) would be the relevant access seeker under Pt 5 of Sch 4 to the BSA. As a result, the agency agreement was ineffectual. The objective and commonly held intention of Ten and BA, however, is clear.
90 In circumstances where the intention of Ten and BA was to cover both commercial arrangements, Plan A and Plan B, the provisions of the portal services agreement on which TXA relied to support its proposition that the Ten licensees never effectively constituted BA as their agent for the requisite purpose do not have the effect of undermining the efficacy of the subsequent arrangements between the Ten licensees and BA. The fact which TXA’s submissions do not confront is that, irrespective of the wrong party being nominated, it is apparent that from this time on, if it proved necessary to do so, Ten and BA were agreed that BA should be constituted as Ten’s agent for obtaining access to TXA’s regulated facilities within the meaning of and for the purposes of the statutory transmitter access regime. In this context, the contractual arrangements between them which TXA posits are inconsistent with the existence of an agency agreement cannot be seen as such. They are the manifestation of a commercial arrangement involving two methods of achieving the same end, one of which would not involve engaging the statutory transmitter access regime and one of which would engage that regime. In the former arrangement BA would be contracting with TXA as principal and on its own behalf. If the latter arrangement became necessary, BA was intended to be constituted as the agent of the access seeker for the purposes of the statutory regime. The erroneous identification by BA and Ten of the relevant access seeker in no way undermines the existence of their common objective intention to constitute BA as the agent of the access seeker so that any such access would be by BA for and on behalf of the access seeker and not for and on behalf of BA itself.
91 Subsequent events confirm both this objective intention and that BA and Ten’s first preference was for BA to reach a commercial deal with TXA for and on behalf of itself. Again, however, that this was the first preference of Ten and BA does not negate the fact that they had also agreed, if necessary, for BA to be constituted as the agent of the relevant access seeker (albeit that they had not yet worked out that the Ten licensees alone could be access seekers so as to engage the statutory regime) for the purposes of obtaining access to TXA’s regulated facilities. In these circumstances, for subsequent communications between BA and Ten and BA and TXA to contain matters apparently referable to the first preference of BA and Ten does not undermine the ultimate efficacy of the constitution of BA as agent for the Ten licensees on 18 July 2019.
92 In any event, this ineffective appointment of BA as the agent for Ten occurred on 27 June 2018 when BA executed the appointment documents.
93 On 19 July 2018 BA sent an email to TXA in which it attached draft contracts based on the templates used between BA and TXA for the national broadcasters. TXA observed, and it may be accepted, that the arrangements between TXA, BA and the national broadcasters do not involve BA acting as an agent for those broadcasters. Equally, however, this proposal is consistent with the objective intention of BA and Ten to have BA contract directly with TXA if at all possible (that is, the email is in pursuit of BA and Ten’s Plan A rather than their fall-back Plan B involving the constitution of BA as an agent for the relevant Ten access seekers).
94 The same observation may be made about a subsequent letter from BA to TXA dated 30 August 2018 which also refers to BA’s access to TXA facilities and BA wanting to implement similar arrangements between BA and TXA to those which applied between BA and TXA for the national broadcasters. Another letter dated 8 February 2019 from BA to the board of TXA is in effectively the same terms – stating that it is BA requesting access to TXA’s facilities to enable the provision by BA of broadcast transmission services to Ten. This letter also, however, noted that Ten had appointed BA as its agent for the purposes of the exercise of rights which Ten has as an access seeker under Pt 5 of Sch 4 to the BSA to access TXA’s facilities to install transmitters and associated facilities for the transmission of Ten’s broadcasts. Again, while it may be accepted that Network Ten Pty Ltd does not hold a commercial broadcast licence and thus is not an access seeker under Pt 5 of Sch 4 to the BSA, the common intention of BA and Ten is clear from the penultimate paragraph of the letter to TXA – that if necessary BA would exercise its rights as Ten’s agent under Pt 5 of Sch 4 to the BSA.
95 For its part, in a letter dated 11 February 2019, TXA denied that it was unwilling to reach an agreement with BA but said it would only re-engage with BA once Ten’s shareholder status in TXA had been made clear.
96 On 10 May 2019 BA said it accepted TXA’s pricing proposal of 13 March 2018 on the terms identified in BA’s letter. TXA relied on the fact that the draft version of this letter said that BA accepted the pricing proposal “in its capacity as agent” for Ten but that Ten requested the reference to agency be deleted as the proposal was submitted to BA not Ten and Ten had been advised that “we can continue to utilise the agency for the purposes of seeking access under the BSA if that is necessary”. Given this, the deletion of the reference to agency says nothing about the objective intentions of Ten and BSA which is capable of undermining their subsequent agreement under which the Ten licensees appointed BA as their agent. The deletion is consistent with the existence of a preferred plan (Plan A) and a fall-back plan (Plan B) for the purpose of obtaining access to TXA’s regulated facilities.
97 By letter dated 13 May 2019 TXA denied that BA and TXA had entered into any agreement. TXA said again that it was willing to provide portal services to BA to allow BA to supply transmission services to Ten, which it may be accepted is consistent with the preferred plan of BA and Ten (Plan A), but says nothing about the fall-back plan of BA and Ten about which TXA had notice (Plan B).
98 TXA made a point about BA’s letter of 16 May 2019 referring to TXA’s pricing offer of 13 March 2018 which was months before there was any purported agency agreement between BA and Ten. Yet again, this may be accepted. But it does not change the reality that there was a common intention between BA and Ten for BA to be constituted as the agent of the relevant access seekers under Pt 5 of Sch 4 to the BSA and that TXA was on notice of this common intention since 8 February 2019. Nothing in the statutory scheme supports any notion that Ten and BA were somehow precluded from using an agency arrangement as a fall-back mechanism if BA and TXA were unable to reach a commercial agreement between themselves.
99 On 28 May 2019 Ten and BA executed a further version of the portal services agreement. It contains the same provisions as set out above. TXA also referred to a new provision of this agreement, cl 2.2(b), XXXXXXXXXXXXXXXXXXXXXXXXX which it said was inconsistent with the existence of an agency existing between BA and Ten. It is not necessary to resolve the dispute between the parties about the proper construction of cl 2.2(b) of the portal services agreement. Let it be assumed that, as TXA submitted, various provisions of the portal services agreement are not readily reconcilable with the constitution of BA as Ten’s agent. That fact is hardly surprising given that it must be inferred that their common intention was that if an agreement could be reached about access to TXA’s facilities between BA as principal and TXA without recourse to Pt 5 of Sch 4 then that was the preferable course. The subsequent events of 18 July 2019 occurred after it had become apparent to BA and Ten that their preferred course was not possible. In these circumstances to give material weight to provisions of the portal services agreement on which TXA relied in characterising the relationship between BA and the Ten licensees as at 18 July 2019, by which time circumstances had changed and it was evident that BA could not reach an agreement with TXA, would be misconceived. It would also overlook the elements of that agreement on which BA and the Ten licensees relied which are consistent with the existence of an agency agreement. In any event, the fundamental fact that TXA’s case overlooks is that by 18 July 2019 there had been a material change in circumstances because by that time BA and Ten realised that their first preference (Plan A) could not be achieved so that their fall-back position (Plan B) had to be implemented. The communications and agreements which had been executed with a view to the implementation of their first preference do not speak against the existence of an agency relationship between BA and the Ten licensees because those documents and their first preference itself were simply overtaken by events. In any event, the provisions of the portal services agreement on which BA and the Ten licensees relied, as I have said, are consistent with the existence of an objective common intention as between Ten and BA to constitute BA as the agent of the relevant access seekers for the purposes of Pt 5 of Sch 4 to the BSA. In other words, the provisions of the portal services agreement, whatever their ambiguity, clearly disclose that BA and Ten were hedging their bets by having both options available if necessary. To hedge one’s bets in this way does not make the fall-back position a mere device. The fall-back position, once it became necessary, would necessarily reflect the common objective intention of the parties as a matter of substance.
100 By 2 July 2019 BA was trying direct communication with TXA’s shareholders, Seven and Nine. Again, it may be accepted that this communication reflects BA’s desire to implement the first preference of Ten and BA. The real relevance of the communication, however, is that it discloses BA exhausting any possibility of it directly resolving the issue of access with TXA. The next day, 3 July 2019, BA informed Ten that they “were close to reaching a dead end point in [their] attempts to negotiate a sensible commercial outcome” with TXA and that the next step was to send a letter to TXA advising “of the intention to engage the ACCC to arbitrate”. This is consistent with the common position of BA and Ten being that Ten had effectively constituted BA as its agent for the purposes of Pt 5 of Sch 4 to the BSA. As I have said, the fact that they were wrong about this because Network Ten Pty Ltd was not a relevant access seeker under Pt 5 of Sch 4 does not alter the fact that their common intention was to constitute BA as the agent of the relevant access seekers.
101 TXA relied on the fact that the next main letter to it from BA, of 9 July 2019, relied on the whole course of the negotiations between BA and TXA over the previous 12 months when, as TXA stressed, BA was negotiating for it to have access to TXA’s facilities as a principal and not as an agent for Ten during that period. Again, this may be accepted subject to the fact that BA had also put TXA on notice that it was the agent for Ten and, if necessary, would be seeking to engage the statutory transmitter access regime on behalf of Ten as its agent. BA made the same point to TXA in its letter of 9 July 2019. TXA responded on 12 July 2019. In its letter TXA described BA’s offer as “nothing more than an ultimatum” which TXA did not accept. TXA also contended in the letter that BA was not Ten’s agent as it was seeking access to TXA’s facilities in its own right, which was said to be clear from the way BA had conducted itself throughout the negotiations. TXA maintained that the BSA did not permit BA to act as agent for Ten, setting out effectively the same argument as to construction that it has made in this proceeding.
102 XXXXXXXXXX XXXX XXXXXXXXXXXXXXXX XXXXXXXXXXXXXXX XXXXXXXXX XXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXX XXXXXXXXX XXXXXXXXXXXXXX XXXXXXXXXXXXXXXX XXXXXXXXXXXX XXXXXXXXXXXX XXXXXXXXXXXXXXX XXXX XXXXXXXXXXX XXXXXXXXXXXX XXXXXXXXXXXXXXX XXXXX XXXXXXXXXXXXXXX XXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXX XXXXXXXXX XXXXXX XXXXXXXX XXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXX XXXXXX XXXXXXXXXXXX XXXXXXXXXXXXXXXXXX XXXXXXX XXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXX XXXXXXXXXXXXXX XXXXXXXXXXXXXXX XXXXXXXX XXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXX XXXXXXXXX XXXXXXXXXXX XXXXXX XXXXXXXXX XXXXXXXX XXXXXX XXXXXXXXXXXX XXXXXXXXXXXXXXXX XXXXXXXXXXXXXX XXXXXXXXXXXX XXXXXXXXXXXXXXXXXXX XXXXXXX XXXXXXXX XXX XXXXXXXXXXXXXXXX XXXXXXX XXXXXXXXXXX XXXXXXXXXXXX XXXXXXXXXXX XXXXXXXX XXXXXXXXXXX XXXXXXXXXXXXXXX X XXXXXX XXXXXXXXXXXX XXXXXXXX.
103 BA prepared draft letters of appointment of it as agent of the Ten licensees and forwarded them to Ten on 17 July 2019. Ten indicated it was happy with these letters and a revised draft amended TXA Master Access and Services Agreement, as recorded in an email of 18 July 2019 at 11.38am. The draft amended TXA Master Access and Services Agreement identified the parties as TXA and BA as agent for each of the Ten licensees.
104 As noted, on 18 July 2019 at 12.18pm the Ten licensees sent to BA three executed documents appointing BA as the agent of the Ten licensees, the terms of which have been set out above.
105 Consideration of the wider context of the relationship between BA and the Ten licensees does not alter the conclusion I have reached that the Ten licensees validly appointed BA as their agent for the purposes of obtaining access to TXA’s regulated facilities. It may be accepted that until relatively late in the course of events BA and Ten wrongly believed that Network Ten Pty Ltd was the relevant access seeker rather than the Ten licenses. But there can be no real doubt that it was the common intention of BA and Ten to constitute BA as the agent of the relevant access seekers under Pt 5 of Sch 4 to the BSA. Once TXA’s argument that the statutory scheme excluded this appointment of BA as the agent of the Ten licensees for this purpose is rejected as a matter of statutory construction, TXA’s arguments to the effect that BA was not in law the agent of the Ten licensees for the requisite purpose falls away. As discussed, it may also be accepted that Ten and BA’s first preference was for BA to do a commercial deal in its own right with TXA for BA to obtain access to TXA’s facilities. But from relatively early in the course of the negotiations TXA was on notice of the intention of BA and Ten that BA be constituted as Ten’s agent for the purpose of BA obtaining access to TXA’s facilities on behalf of Ten. Once BA and Ten identified that the Ten licensees were the relevant access seekers the Ten licensees validly appointed BA as their agent for the purposes of Pt 5 of Sch 4 to the BSA.
106 TXA’s contrary arguments ignore the reality of the relationship between the Ten licensees and BA. It is not the case that prior to 17 July 2019, there was no contemplation at all that BA was contracting as agent for Ten. Nor do I accept that even after 17 July 2019 there was no agreement between BA and Ten that BA would negotiate with TXA for a contract to which Ten would be a party. TXA said:
XXX XXXXXXXXXXX XXXXXXXXXXXXX XXXXXXXXXXXXXX XXXXXX XXXXXXXX. The misuse of the word “agent” does not alter the substance of the relationship;
107 XXXXXXXXXXX XXXXXXX XXXXXXXXXX XXXXXX XXXXXXXXXXXX XXXXXXXX XXXXXXXXXXXX. There is no misuse of the word “agent” in the email. It was plainly intended that BA would obtain access under the statutory regime as the agent of the Ten licensees. The misunderstanding in the email, XXXXXXXXXX XX XXXXXXX XXXXXXXXXXXXXX XXXXXX does not affect the substance of the intended relationship between the Ten licensees and BA as principal and agent.
108 TXA also referred to a Ten document in which Ten noted that “BA was not transparent with us on this TXA offer” to support a submission that in its negotiations with TXA BA was acting on its own behalf and was not acting in a representative capacity for the Ten licensees in which capacity BA owed fiduciary obligations to the Ten licensees. I do not accept this submission. For one thing, the observation is nothing more than a subjective opinion by a person within Ten. It does not prove that the incidents of the relationship between the Ten licensees and BA are inconsistent with a principal and agent relationship. For another, there was a period in which BA was acting on its own behalf in negotiations with TXA. But on and from 18 July 2019 it was acting as the agent of the Ten licenses which is the critical fact.
109 The fact that the ACCC required further information from the Ten licensees in order to decide if it had jurisdiction also does not alter the substance of the relationship that the 18 July 2019 agency letters created between the Ten licensees and BA. Those letters validly constituted BA as the agent of each Ten licensee with the consequence that any action by BA for the purposes of obtaining access to TXA’s regulated facilities under Pt 5 of Sch 4 was action for and on behalf of the Ten licensees. A necessary incident of that relationship, even without any subsequent confirmation by the Ten licensees, was that BA had the authority to bind the Ten licensees to terms and conditions of access with TXA.
110 As noted, on 9 September 2019, in a Ten email it was stated that Ten’s “strong view [was] that the Master Access Service Agreement is an agreement between TXA and BA and as such [Ten did not] think it [made] any sense for Ten to be a party to that agreement and would not agree to be”. TXA submitted that this email is inconsistent with the case of the Ten licensees and BA as it discloses that the Ten licensees did not intend to be bound by the agreement between BA as their purported agent and TXA. I do not accept this submission. The Ten licensees had appointed BA as their agents. As such, any contract would be between BA as their agents and TXA. The Ten licensees would not be a party to the TXA agreement. BA would be the party. But the Ten licensees would be bound by the terms of any such agreement, it having been entered into by BA in its disclosed capacity as agent of the Ten licensees. Further, and as BA and the Ten licensees submitted, even if the email discloses some misunderstanding of the structure of any ensuing contractual arrangements, that does not affect the substance of the legal relationship of agency created as between the Ten licensees and BA on 18 July 2019.
111 Contrary to the submissions for TXA it cannot be said that the true legal incidents of the relationship created on 18 July 2019 as between the Ten licensees and BA are inconsistent with the relationship of principal and agent. The 18 July 2019 agency documents are not a mere device and do not involve mere labelling of some other relationship as an agency. Once the totality of the relationship is considered it is apparent that the parties intended to and did create the relationship of principal and agent between the Ten licensees and BA. Nothing in the totality of the relationship indicates that BA would not have the legal authority to bind the Ten licensees in BA’s dealings with TXA. To the contrary, it was an essential element of the legal relationship that BA would be able to bind its principals in its dealings with TXA. The circumstances on which TXA placed such heavy reliance to contend to the contrary were simply overtaken by events which required a new legal relationship, that of principals and agent, to be created between the Ten licensees and BA on 18 July 2019.
112 The fact that the agency relationship between the Ten licensees and BA created on 18 July 2019 came late in the course of negotiations is immaterial. Equally, the fact that the initial attempt to constitute Network Ten Pty Ltd as BA’s agent for the purposes of the statutory regime was misconceived as it involved the wrong entity does not mean the subsequent appointment of BA as the agent of the correct entities, the Ten licensees, also miscarried.
113 The 14 February 2020 letters are consistent with the legal relationship of agency which the Ten licensees established with BA on 18 July 2019. Further, TXA’s submission that the subsequent confirmatory act of the Ten licensees has effect only on and from 24 February 2020 is incorrect. The confirmation functions as a ratification of the agency and relates back to the actions of BA on and from 18 July 2019.
114 As BA and the Ten licensees submitted:
(1) it is necessary to identify the particular action in question (the making of the 18 July 2019 offer), and ask whether that action was made by the purported agent (BA), on behalf of the principal (the Ten licensees);
(2) this depends on whether, in making the offer, BA purported to act on behalf of the Ten licensees and whether BA was authorised to do so;
(3) the questions are to be determined as matters of objective fact having regard to the “the actual incidents and content of the relationship”: South Sydney District Rugby League at [135]; and
(4) agency is not a matter of subjective intent – it is a “consensual relationship” between agent and principal, whereby the former acts on behalf of the latter: Tonto Home Loans at [175] and [177].
115 Further, and as BA and the Ten licensees also submitted:
(1) TXA was informed in the 18 July 2019 offer that BA was making the offer as agent for, and on behalf of, the Ten licensees, and that the Ten licensees sought to agree terms and conditions for access to certain of TXA’s transmission towers, sites and associated facilities;
(2) there can be no doubt that BA was authorised to act on behalf of the Ten licensees in making the 18 July 2019 offer. The terms of the 18 July 2019 agency appointment are unequivocal, and the Ten licensees have also ratified the 18 July Offer by their letters of 14 February 2020; and
(3) TXA rejected the 18 July 2019 offer.
116 Further, as the Ten licensees contended, it is not the case that the ACCC’s jurisdiction depends on the access seeker having first made an offer which, if accepted, would result in a final binding agreement. As the Ten licensees put it, “many negotiations may never reach that point”. TXA’s contentions are thus misconceived as a matter of construction of the statutory access regime. Its contention are also misconceived as a matter of fact – had TXA and BA executed the Master Access and Services Agreement as proposed by BA, then the Ten licensees as principals would have been bound by its terms.
117 Further again, it cannot be accepted that the Ten licensees somehow lacked capacity to appoint BA as their agent. As the Ten licensees said, this is not a case of the Ten licensees seeking to transfer their rights as access seekers to BA. Rather, the Ten licensees authorised BA to act as their agent for the purposes of Pt 5 of Sch 4 to the BSA. No transfer of access is involved. The access seekers are the Ten licensees who waive the relevant rights of access under the statutory regime.
118 For these reasons it must be accepted that in making the 18 July 2019 offer BA was acting as the agent of each of the Ten licensees each of whom was an access seeker within the meaning of Pt 5 of Sch 4 to the BSA. As the discussion above discloses, TXA unequivocally rejected that request for access, a fact relevant to the next issue.
The failure to agree terms and conditions issue
119 TXA contended that there had been no failure of agreement between TXA and BA (assuming BA to be the agent for the Ten licensees). According to TXA a “failure” to agree pre-supposes genuine attempts to agree. The 18 July 2019 request for access, said TXA, was not a genuine attempt to reach agreement with TXA. In terms, the request for access conveyed a final offer and foreshadowed immediate arbitration if not accepted. This was not a genuine attempt to agree, submitted TXA. TXA responded by seeking to negotiate but BA instead notified the ACCC of the access dispute. These submissions, it should be noted, did not suggest that there had been no request for access as required by cl 45 of Sch 4 to the BSA. The contention was confined to there having been no failure of agreement because the 18 July 2019 request for access was expressed as a final offer.
120 I do not accept TXA’s submissions. To reject TXA’s submissions, it is not necessary to accept the alternative submission of the Ten licensees and BA to the effect that a mere absence of agreement denotes a failure of agreement. It may be accepted that the concept of a failure to agree requires something more than the mere absence of agreement. So much is apparent from the fact that cl 45 only requires the owner or operator to provide access “if requested to do so” by the access seeker. That is, there must at least be a request by the access seeker for access before there may be a failure to agree within the meaning of cl 47. In the present case there can be no doubt that the 18 July 2019 letter constituted a request for access (and TXA does not suggest otherwise) by BA as the agent for the access seekers. TXA has not provided access as requested. In terms, TXA rejected BA’s offer. On any view, those facts are sufficient to satisfy the first jurisdictional fact – failing agreement on the terms and conditions of access as between the owner (TXA) and the access seekers (the Ten licensees).
121 The concepts which TXA seeks to introduce concerning the genuineness of the offer are foreign to the statutory regime. They introduce unnecessary elements of complexity and uncertainty to the existence or otherwise of the relevant jurisdictional fact. Failing agreement requires nothing more than a request within the meaning of cl 45 which has not led to the grant of access. Even if more was required, such as the refusal of the request, there cannot be any doubt that in the present case such refusal has occurred. TXA rejected the 18 July 2019 offer. It could not be more clear that the required first jurisdictional fact is (and was as at 24 February 2020 when the ACCC decided it had jurisdiction) established.
The arbitrator issue
122 TXA contended that the second jurisdictional fact was not satisfied as BA proposed the appointment of an arbitrator on 30 September 2019, after it had notified the ACCC of the access dispute.
123 TXA’s contention is without merit. First, nothing in the statutory scheme supports the proposition that the second jurisdictional fact must be established before notification of an access dispute to the ACCC. The notification regime is founded in the 2001 Regulations. It is not to be found in the statute. There is nothing in the statute which requires the failure of agreement about the appointment of an arbitrator to occur before notification of an access dispute. To the extent the 2001 Regulations can be relevant, regulation 7(1) contemplates that an access dispute may be notified before there has been any such failure of agreement. Second, in the present case, BA proposed the appointment of an arbitrator to TXA (without success) before the ACCC decided it had jurisdiction on 24 February 2020. The inescapable fact is that, BA having proposed the appointment of an arbitrator on 30 September 2019, no agreement has been reached about the appointment of an arbitrator with TXA as at 24 February 2020 and currently. Accordingly, the second jurisdictional fact was satisfied as at 24 February 2020 and is currently satisfied.
Conclusion
124 For these reasons, TXA’s originating application for judicial review must be dismissed.
I certify that the preceding one hundred and twenty-four (124) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot. |
Associate:
Dated: 5 August 2020
330 of 2020 | |
NETWORK TEN (BRISBANE) PTY LTD ACN 050 148 537 | |
Fifth Respondent: | NETWORK TEN (ADELAIDE) PTY LTD ACN 007 577 666 |
Sixth Respondent: | NETWORK TEN (PERTH) PTY LTD ACN 009 108 614 |
