(a) Applicability of the reasoning in Hurstville
69 Although the State also relied on the decision of the Supreme Court of New South Wales in Pipe Networks, Kunc J in that case applied the earlier decision of the Court of Appeal in Hurstville, where the Court addressed in detail the legislation currently before this Court.
70 The facts of Hurstville were summarised in that judgment as follows:
As part of its establishment of a wire-free data communications network, the respondent notified the Council of its intention to establish a "downlink site" in Oatley Park. The respondent proposed that it replace the council-owned light pole illuminating the oval with a new pole of the same height and apparent volume as the original before re-installing the existing lighting equipment. Subject to this taking place, the respondent then proposed to install, maintain and operate a "low-impact facility" consisting of three antennae and a communications dish attached to the pole, an equipment shelter and ancillary infrastructure.
The council opposed this proposed activity and removed the original pole, apparently to frustrate the respondent's endeavours. The respondent claimed authority as a licensed carrier under the Telecommunications Act 1997 to engage in the proposed activities without the Council's consent and began excavating around the footing where the original pole had stood.
The issue on appeal is whether federal law gave the respondent authority to position a "downlink" site in Oatley Park as part of its wire-free data communications network ("3G network"). More specifically, the question is whether the respondent was permitted to remove the existing light pole and replace it with the new pole on the basis that this was the "maintenance" of "a facility" within Sch 3 Pt 1 Div 4 (cl 7) of the Telecommunications Act 1997 (Cth).
71 Relevantly, the respondent in that case, Hutchison, claimed that its activities were "maintenance" within the meaning of Sch 3 to the Telecommunications Act, and served a notice on the appellant in that case, the Council, to that effect. In the notice Hutchison stated, inter alia, that the "maintenance activity" was as follows:
As part of the operation of H3GA's facilities, H3GA proposes to conduct a maintenance activity (and ancillary activities necessary or desirable relating to those maintenance activities) to a pole which has been identified for use in H3GA's telecommunications network after a detailed review of other site options. H3GA proposes to replace the existing light pole at Oatley Park, Oatley Park Avenue, Oatley Park NSW 2223 Lot 13 DP752056 Crown Land (and as further identified in the attached diagrams) ("the land") to ensure proper functioning of its telecommunications facility.
72 The Council submitted that the proposed activities of Hutchison were not "maintenance" within the meaning of the legislation.
73 The leading judgment was delivered by Mason P, with whom Handley and McColl JJA agreed.
74 President Mason referred to the reasoning of the primary Judge, noting the finding of her Honour that:
46 … the original light pole became a "facility" as defined in s7 when the carrier determined that it was "for use" in or in connection with its telecommunications network. This occurred by the time of the Notice at the latest.
75 Further, Mason P noted the primary Judge's reasons as including:
48 … the existing pole became a "facility" subject to the "maintenance" power conferred by cl 7, when and because the carrier notified its intention to use it as part of its 3G network. It did not matter that the original pole had not been installed by the carrier (pursuant to cl 6 or otherwise) or that the carrier did not own it or have any independent right to possess it or interfere with it. It was sufficient that the carrier notified its intention to use the existing pole, albeit for the limited purpose of "maintenance" by removal and replacement (cf cl 7(3)(a) and (d)). Such intention was manifested in the Notice. It followed, in her Honour's view (at [84]), that "when the Notice was issued the pole became a facility for the purposes of s7 of the Act, the consequence being that the maintenance powers in relation to original facilities under cl 7 of Sch 3 to the Act applied. These powers allow a carrier to remove and replace an original facility, in this case, the pole".
76 Before the Court of Appeal, Hutchison supported the reasoning of the primary Judge, but also advanced a variant of that reasoning, namely that the asserted right of maintenance could rest upon the objective nature of the existing light pole as a structure suitable "for use" in the network, and that it was a necessary part of its argument that the statutory right of "maintenance" could be exercised in relation to a structure or thing that it did not own and over which it had no contractual or other rights. President Mason noted that, during argument, Counsel for Hutchison was pressed with hypothetical examples indicative of the breadth and consequences of Hutchison's submission, in response to which Counsel for Hutchison submitted that many things could become "facilities" available for "maintenance" including a bridge, a steeple, a building or possibly even a tree. President Mason noted:
53 … If any of these structures or things was already being used to support a facility, even a low-impact facility, or if any of these structures or things was appropriate for such use then, according to the respondent, these structures or things were themselves to be treated as "facilities" capable of appropriation for the type of "maintenance" involved in the present case.
54 The various examples treated a structure or thing on which equipment was erected as thereby becoming part of the network as one of its "facilities".
55 These hypotheticals suggest difficulties with the respondent's position, given that its interpretation of Division 4 included the power to maintain an original "facility" by removal and replacement regardless of its existing linkage with any telecommunications network (let alone the respondent's network) and regardless of whether the respondent had any proprietary or other rights over the "original facility".
77 President Mason at [54] observed that Hutchison's defensive arguments did not adequately address the difficulties presented by the hypotheticals or the concerns behind them.
78 His Honour noted the definition of "facility" in s 7 of the Telecommunications Act:
facility means:
(a) any part of the infrastructure of a telecommunications network; or
(b) any line, equipment, apparatus, tower, mast, antenna, tunnel, duct, hole, pit, pole or other structure or thing used, or for use, in or in connection with a telecommunications network.
79 President Mason referred to Coco v The Queen (1994) 179 CLR 427 at 436; [1994] HCA 15 as authority for the proposition that for a statutory authority to engage in what otherwise would be tortious conduct, such a right must be clearly expressed in unmistakable and unambiguous language in the relevant legislation. His Honour found that cl 7 of Sch 3 did not do this, as regards the core right to "at any time, maintain a facility". His Honour assumed the correctness of Hutchinson's broad interpretation of the definition of "facility" as including the structure on which it rested, and concluded:
59 … On that assumption, the right conferred by cl 7(1) has significant and sufficient content in relation to facilities which are already owned by the carrier concerned (cf cl 47) or over which the carrier has existing rights sufficient to ground the right of maintenance of what subcl 7(3) calls the original facility. In other words, cl 7(1) can and in the circumstances should be construed as operating only in situations where the carrier's maintenance of an original facility would not constitute a trespass or other wrong. To construe cl 7(1) as going beyond this necessarily conjures up the vexing hypothetical situations of a carrier descending upon a publicly or privately owned bridge, steeple or other structure and removing it for the purpose of "repair" or "installation of an additional facility" (cf cl 7(3)(e)).
(Emphasis added.)
80 His Honour continued that:
60 Such a gross intrusion upon existing rights is not compelled by the language of cl 7(1) which can readily be construed as introductory to the admittedly more intrusive (but necessarily limited) powers conferred by cl 7(2). The shorthand expression original facility which cl 7(3) adopts reinforces this conclusion. So too does the reference in the Explanatory Memorandum to cl 6 authorising a Council to maintain an existing facility.
(Emphasis in original.)
81 His Honour observed that Hutchison's approach to cl 7 applied it literally to any and every "facility" falling within the definition of facility in s 7 of the Telecommunications Act. However, his Honour considered that Hutchison's case was not significantly advanced by this literal approach, because:
(1) the question whether subcl 7(1) authorised otherwise tortious "maintenance" activities remained; and
(2) the definition itself was ambiguous, at least in its application to the case before the Court.
82 In relation to the second point, Mason P noted that Hutchison relied on that portion of s 7(b) of the Telecommunications Act which defined facility as meaning any "pole or other structure or thing used, or for use, in or in connection with a telecommunications network", claiming that those words extended to buildings, poles, steeples or other things, provided they are "used, or for use in or in connection with a telecommunications network". However, at [67] Mason P considered that a better interpretation of the definition of "facility" in s 7(b) of the Telecommunications Act was that the definition of "facility" should be read down, because:
schedule 3 elsewhere distinguished between "facilities" and the land or structures to which they were fixed;
it made, for example, perfect sense to say that the Sydney Harbour Bridge remained a bridge and did not itself become a facility notwithstanding that facilities (low-impact or otherwise) might be installed upon or affixed to it;
similarly, existing buildings erected as residences could have "facilities" attached to their rooftops; and
the definition of "facility" could operate to its full literal extent in such situations without turning the bridge or building into part of the facility itself.
83 His Honour observed:
67 Part (b) of the definition [of facility] makes perfect sense if construed as being confined to any line, equipment etc or thing that is purpose built or dedicated by its inherent nature for use in or in connection with a telecommunications network or which is actually used accordingly. It is not necessary to treat an existing (non purpose-built) pole, structure or thing upon which a "facility" is placed as the facility itself.
84 Finally, his Honour noted:
71 If the respondent is correct in its approach about "maintenance", cl 47 vests ownership of the new or replacement pole in the respondent. Yet the respondent says in argument that the Council can have ownership of the new pole, thereby lessening the impact of the appropriation of the old pole had it not been removed by the Council in any event. By what process would ownership pass to the Council despite cl 47? And what if the Council does not want the responsibilities that ownership of the respondent's "facility" (ex hypothesi) would bring? These problems are ultimately peripheral, but they do not assist the respondent's case.
85 Relevantly, cl 47 of Sch 3 to the Telecommunications Act to which the Court of Appeal referred provides:
47 Ownership of facilities
Unless the circumstances indicate otherwise, a facility, or a part of a facility, that is supplied, installed, maintained or operated by a carrier remains the property of its owner:
(a) in any case - whether or not it has become (either in whole or in part), a fixture; and
(b) in the case of a network unit - whether or not a nominated carrier declaration is in force in relation to the network unit.
86 Accordingly, the appeal was allowed.
87 Turning now to the present applications before me, in my view there is nothing in the decision of the Court of Appeal in Hurstville which points to error in the reasoning of the TIO in either the Boobegan Creek Bridge Proceedings or the Kidd Bridge Proceedings.
88 As Mason P explained in Hurstville at [59], subcl 7(1) could, and in those circumstances should, be construed as operating only in situations where the carrier's maintenance of an original facility would not constitute a trespass or other tortious wrong. I respectfully agree with this finding of his Honour.
89 With this principle firmly in mind, it is clear that the circumstances in Hurstville were entirely different to those before the TIO, and now this Court. In particular I note that the question whether Hutchison in Hurstville had the right to engage in what would otherwise have been tortious conduct was relevant to the Council in that case, because the carrier Hutchison proposed to remove and replace infrastructure owned by the Council (namely, the light pole) without the consent of the Council. It was for this reason that cl 47 of Sch 3 was relevant, as there was ultimately a dispute between the parties over the ownership of the pole, and dealing with it.
90 There is no comparison between the relevant facts in Hurstville, and the facts of the two proceedings here, in that:
Optus did not propose to remove and replace property owned by a third party (either the State in respect of the bridges, or Telstra/NBN Co in respect of their respective ducts) such that cl 47 was relevant in the present proceedings.
Optus proposed to install its fibre optic cables into ducts or conduits owned by third parties, namely Telstra and NBN Co, which happened to be attached to the Boobegan Creek Bridge and the Kidd Bridge.
Unlike the pole in the Hurstville case, there is no argument in this case that the bridges themselves (to which the ducts or conduits were attached) were the relevant "facilities" for the purposes of the Telecommunications Act (transcript p 53, l 8; p 64, ll 13-14).
There is no dispute that Telstra and NBN Co had rights of ownership in respect of their respective ducts or conduits attached to the two bridges, including rights of maintenance. While Telstra and NBN Co, as the owners of the ducts or conduits, would in turn be required by the Telecommunications Code to notify the landowner (in this case the State) of any intention to engage in, for example, a maintenance activity, it does not appear to be in dispute that Telstra and NBN Co could "put whatever they like[d] through their cables" (transcript p 22, l 37). Presumably this concession extended to the placement of Optus' fibre optic cables through the Telstra and NBN Co ducts or conduits.
Unlike in Hurstville, in these proceedings Telstra and NBN Co (the owners of the original facilities) consented to Optus installing its cables in their ducts or conduits.
91 As the Court pointed out in Hurstville, the operation of cl 7 does not extend to something in which the carrier had no prior interest - in Hurstville the original light pole (see also Kunc J in Pipe Networks at [69]). In the present cases before me, the clear analogy to the original light pole in Hurstville are the bridges owned by the State. However there is no argument that Optus sought to conduct any activities in respect of the bridges themselves such as removal and replacement - it is only the conduits or ducts of Telstra and NBN Co attached to the bridges which are affected.
92 None of these complications characterised the litigation in Hurstville, where the Council was the landowner and also the owner of the pole which Hutchison alleged was the relevant "facility".
93 In my view Hurstville does not stand for the proposition that Telstra or NBN Co could not give permission to Optus to install its fibre optic cables into the ducts or conduits owned by Telstra and NBN Co, notwithstanding that the ducts or conduits were attached to bridges owned by the State. To the extent that there was any potential issue of trespass or other tortious conduct by Optus in respect of inserting cables into, or other action in relation to, the ducts or conduits of Telstra and NBN Co, it appears that the proper complainants could only be Telstra and NBN Co.
94 I agree with Optus that, other than in respect of general statements of principle, Hurstville is of little assistance in the present proceedings.