Network Ten Pty Ltd v TCN Channel Nine [2004] HCA 14; 27 TCL 16/3; 218 CLR 273; 205 ALR 1; 78 ALJR 585 - HCA 2003 case summary — Zoe

CTHHCA

Network Ten Pty Ltd v TCN Channel Nine [2004] HCA 14; 27 TCL 16/3; 218 CLR 273; 205 ALR 1; 78 ALJR 585

[2004] HCA 14

High Court of Australia|2003-12-12

View original source

At a glance

Source facts

Court

High Court of Australia

Decision date

2003-12-12

Source

Original judgment source is linked above.

Judgment (363 paragraphs)

[1]

Introduction 1 On 23 July 2004 I ruled that the review contemplated by s 152AV of the Trade Practices Act 1974 (Cth) ("the Act") was not limited to identifying error made by the Australian Competition and Consumer Commission ("the Commission"). I ruled that in such a review the Tribunal stands in the shoes of the Commission, albeit limited by s 152AW(4) of the Act. I now publish my reasons for that ruling. 2 Telstra Multimedia Pty Limited is a wholly‑owned subsidiary of Telstra Corporation Limited (collectively "Telstra"). Telstra owns and operates a hybrid fibre coaxial cable ("the HFC Network"), which delivers analogue and digital subscription television carriage services to consumers' homes. Foxtel, that is the Foxtel partnership (between Telstra Multimedia Pty Limited and Sky Cable Pty Ltd) and Foxtel Cable Television Pty Ltd (collectively "Foxtel"), is a subscription television provider, currently providing analogue and digital pay television services to consumers via Telstra's HFC Network. 3 In December 2002 Foxtel and Telstra each made an application to the Commission, pursuant to the provisions of s 152ATA of the Act, for an anticipatory exemption order, the effect of which would be to exempt them from one or more of the "standard access obligations" contained in s 152AR of the Act. Section 152ATA(1) provides: "A person who is, or expects to be, a carrier or a carriage service provider may apply to the Commission for a written order that, in the event that a specified service or proposed service becomes an active declared service, the person is exempt from any or all of the obligations referred to in section 152AR, to the extent to which the obligations relate to the active declared service." 4 The order in s 152ATA(1) is anticipatory in the sense that it applies to a service that has not yet been declared. In this case the "proposed service" was the provision of digital subscription television via Telstra's HFC Network. 5 On 12 December 2003 the Commission published its determination and made written orders that Foxtel and Telstra were exempt from the standard access obligations contained in s 152AR of the Act. 6 On 30 December 2003 Seven Network Limited and C7 Pty Limited ("the applicants") filed an application with the Australian Competition Tribunal for a review of both decisions. Each of the applications was made pursuant to s 152AV of the Act, which provides:

[4]

(3) The Tribunal must review the decision." 7 The review to be conducted by the Tribunal is undertaken subject to s 152AW of the Act, headed "Functions and Powers of the Tribunal", which provides: "(1) On a review of a decision of the Commission under section 152AT or 152ATA, the Tribunal may make a decision: (a) in any case - affirming the Commission's decision; or (b) in the case of a review of a decision of the Commission to make anorderunderparagraph 152AT(3)(a)orparagraph 152ATA(3)(a)-setting aside or varying the Commission's decision; or (c) …" 8 Section 152AW also provides: "(3) For the purposes of a review by the Tribunal, the member of the Tribunal presiding at the review may require the Commission to give such information, make such reports and provide such other assistance to the Tribunal as the member specifies. (4) For the purposes of a review, the Tribunal may have regard only to: (a) any information given, documents produced or evidence given to the Commission in connection with the making of the decision to which the review relates; and (b) any other information that was referred to in the Commission's reasons for making the decision to which the review relates. (5) If: (a) a person applies to the Tribunal for a review of a decision of the Commission under section 152AT or 152ATA; and (b) the Tribunal does not make a decision under subsection (1) of this section on the review within 6 months after receiving the application for review; the Tribunal is taken to have made, at the end of that 6-month period, whichever of the following decisions is applicable: (c) in the case of a review of a decision of the Commission to make an order under paragraph 152AT(3)(a) or paragraph 152ATA(3)(a), where the applicant for review is seeking to have the Tribunal set aside the Commission's decision - a decision setting aside the Commission's decision; (d) … (6) The Tribunal may, by written notice given to the applicant for review, extend or further extend the 6-month period referred to in subsection (5), so long as: (a) the extension or further extension is for a period of not more than 3 months; and (b) the notice includes a statement explaining why the Tribunal has been unable to make a decision on the review within that 6‑month period or that 6-month period as previously extended, as the case may be. (7) As soon as practicable after the Tribunal gives a notice under subsection (6), the Tribunal must cause a copy of the notice to be made available on the Internet." 9 The hearings of the applications for the reviews were set down for 5 August 2004. A preliminary issue was raised which needed to be resolved before the hearings commenced. The issue related to the nature of the review to be conducted by the Tribunal pursuant to s 152AV of the Act.

[6]

The legislative context of s 152AV 13 It is useful to consider the legislative history of Pt XIC of the Act, entitled "Telecommunications Access Regime", in determining the nature of the "review" under s 152AV. In 1996 the Trade Practices Amendment (Telecommunications) Bill 1996 introduced Pt XIC into the Act. According to the Explanatory Memorandum accompanying that Bill, Pt XIC set out an access regime for the telecommunications industry. At that stage the regime provided for the declaration of carriage services and related services by the Commission either following a recommendation of the telecommunications access forum or after a public inquiry. After the Bill was passed, and Pt XIC became part of the Act, s 152AR set out the standard access obligations, and, subject to ss 152AS and 152AT, all carriers and carriage service providers were obliged to comply with the standard access obligations in regard to declared services that they supplied either to themselves or a third party. Section 152AT provided a mechanism for individual carriers or carriage service providers to apply in writing to the Commission for an exemption from one or more of the standard access obligations. In relation to s 152AT, the Explanatory Memorandum stated, at 51: "Under proposed s. 152AT, a person whose interests are affected by a decision to make, or refuse to make, an exemption will be able to seek merits review of the decision by the Australian Competition Tribunal." [emphasisadded] 14 In relation to proposed s 152AV, the Explanatory Memorandum provided: "Proposed s. 152AV provides a mechanism for review of a decision of the ACCC to grant, or refuse to grant, an exemption to a person from one or more standard access obligations under proposed s. 152AT. A person whose interests are affected by a decision of the ACCC under proposed s. 152AT may apply to the Australian Competition Tribunal within 21 days after the decision. The ACT must then review the decision." 15 Section 152AX was also inserted into the Act in the following terms: "Division 1 of Part IX does not apply in relation to a review by the Tribunal of a decision made by the Commission under section 152AT or 152ATA."

[22]

The limitation on documents under s 152AW(4) 32 Telstra and Foxtel relied upon the provisions of s 152AW(4), which limits the information and material to which the Tribunal may have regard on the review, in support of the proposition that the Tribunal was limited to finding error in the reasoning of the Commission. According to Foxtel, in an appeal de novo there is always a conferral of power to receive further evidence: Re Coldham; Ex parte Brideson [No 2] (1990) 170 CLR 267 at 272, 274. 33 The Commission submitted that although the words of s 152AW(4) place a restriction on the papers to which the Tribunal may refer, the subsection does not convey that the Tribunal must identify error. The restriction on material was explained as a mechanism by which the legislature sought to expedite the review process. 34 The applicants similarly argued that all that subs 152AW(4) does is to limit material before the Tribunal and it does not, either expressly or impliedly, address or alter the nature of the review to be conducted by the Tribunal. 35 As I have noted earlier, there is nothing in the legislative history of s 152AW(4) that warrants a conclusion that the Tribunal's role in review is limited to finding error, or the conclusion that subsequent amendments to Pt XIC were intended to disturb the intention found in the Explanatory Memoranda that the review was to be a "merits review". In any event, I consider that the terms of s 152AW(4) support the proposition that the review was intended to be a merits review in the sense of a reconsideration of the issues facing the Commission. The limitation on the material to which the Tribunal may have regard is indicative of the proposition that the Tribunal is intended to canvass the areas or issues raised before the Commission, albeit on the same basis, that is the factual basis as was before the Commission and not on an updated or expanded basis. If the review to be conducted by the Tribunal were one based on identifying error in the Commission's reasoning, it would not be necessary so to limit the material.

[198]

"25 Provisions relating to broadcasting > > (1) A reference in this Act to broadcasting shall, unless the contrary intention appears, be read as a reference to broadcasting whether by way of sound broadcasting or of television. > > (2) A reference in this Act to the doing of an act by the reception of a television broadcast or sound broadcast shall be read as a reference to the doing of that act by means of receiving a broadcast: > > (a) from the transmission by which the broadcast is made; or > > (b) from a transmission made otherwise than by way of broadcasting, but simultaneously with the transmission referred to in the last preceding paragraph; > > whether the reception of the broadcast is directly from the transmission concerned or from a re-transmission made by any person from any place. > > (3) Where a record embodying a sound recording or a copy of a cinematograph film is used for the purpose of making a broadcast (in this subsection referred to as the primary broadcast), a person who makes a broadcast (in this subsection referred to as the secondary broadcast) by receiving and simultaneously making a further transmission of: > > (a) the transmission by which the primary broadcast was made; or > > (b) a transmission made otherwise than by way of broadcasting but simultaneously with the transmission referred to in the last preceding paragraph; > > shall, for the purposes of this Act, be deemed not to have used the record or copy for the purpose of making the secondary broadcast. > > (4) In this Act: > > (a) a reference to a cinematograph film of a television broadcast shall be read as including a reference to a cinematograph film, or a photograph, of any of the visual images comprised in the broadcast; and > > (b) a reference to a copy of a cinematograph film of a television broadcast shall be read as including a reference to a copy of a cinematograph film, or a reproduction of a photograph, of any of those images. > > (5) In this section, re-transmission means any re-transmission, whether over paths provided by a material substance or not, and includes a re-transmission made by making use of any article or thing in which the visual images or sounds constituting the broadcast, or both, as the case may be, have been embodied."

[222]

"I turn now to those provisions of the Bill which provide for copyright to subsist in broadcasts, cinematograph films, sound recordings and published editions. These provisions are to be found in clauses 84 to 113 of the Bill. These clauses involve substantial changes in the existing law and, in respect of the rights given in sound recordings, substantial differences from the provisions of the 1967 Bill. Broadcasts are not protected at all under the existing copyright law. Some protection against the use of broadcast material is given by the Broadcasting and Television Act. Sub-clause (2) of clause 9 of this Bill specifically preserves the operation of the relevant provisions of that Act. Under the Bill the owner of the copyright in a radio or television broadcast is given the right to control rebroadcasting of that broadcast. In the case of a television broadcast he is given the exclusive right to make a cinematograph film of the broadcast or a copy of such a film. In the case of a sound broadcast, or the sounds accompanying a television broadcast, the rights include the exclusive right to make a record of that broadcast or reproductions of that record. These provisions are contained in clause 87 of the Bill. > > A cinematograph film is protected under the existing law in two ways. Inasmuch as an ordinary cinematograph film consists of a series of individual photographs, each frame is protected as an artistic work. But if the arrangement or acting form or the combination of incidents represented in a cinematograph film give the work an original character, the film is protected as a dramatic work. The present Bill establishes a separate protection for cinematograph films. The rights given to the owner of the copyright in a cinematograph film are set out in clause 86 of the Bill. The copyright in a cinematograph film continues until the expiration of 50 years from the end of the calendar year in which the film was first published. For many purposes, ordinary cinematograph film and videotape are interchangeable. Thus a scene may be recorded by a television camera on videotape and the videotape later copied on to an ordinary cinematograph film. The incidents recorded may be seen either by viewing the videotape on a television screen or by viewing the cinematograph film on a cinema screen. The Bill therefore assimilates videotape to ordinary cinematograph film for the purposes of copyright protection and the term 'cinematograph film' appearing in the Bill is defined as including videotape." (emphasis added)