The Full Federal Court has handed down its decision on a judicial review application originally commenced by Telstra on 3 January 2014.
Telstra sought review of the Australian Competition and Consumer Commission’s jurisdiction to arbitrate three disputes that were notified to the ACCC by Vocus Fibre Pty Ltd, Adam Internet Pty Ltd and Chime Communications Pty Ltd.
The disputes were notified to the ACCC under the Telecommunications Act 1997 and concern Telstra’s proposed variations to charges for access to facilities, including space for equipment in Telstra’s telephone exchanges and ducts, pursuant to agreements with the access seekers which allowed Telstra to notify variations to charges. The access seekers did not agree to the varied charges notified by Telstra.
The issue before the court was whether there was a dispute which could be arbitrated by the ACCC in these circumstances.
In the first instance Justice Flick held that there was a failure to agree and accordingly found that there was a dispute which could be arbitrated by the ACCC. On appeal, the Full Federal Court has decided that the parties did have agreed terms and conditions in relation to charges and the disputes related to the implementation of those agreed terms and conditions. Therefore the court found that the ACCC cannot hear or determine these disputes.
In light of the judgment the ACCC will cease arbitration of these matters.
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