TX Australia Pty Ltd v ACCC
Federal Court of Australia
[2020] FCA 1100
Justice Jagot
Catchwords
COMMUNICATIONS LAW –administrative law – broadcasting services – dispute between owner of broadcasting transmission towers and access seeker – access sought by third party on behalf of access seeker – third party acting as agent of access seeker – whether Australian Competition and Consumer Commission had jurisdiction to arbitrate a dispute – cl 47(1), (1A) and (2) of Sch 4 to the Broadcasting Services Act 1992 (Cth) – jurisdictional facts – whether there was failure of agreement between owner and access seeker about terms and conditions of access – whether there was failure of agreement between owner and access seeker about appointment of arbitrator – application dismissed
Judgment
[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. …’
[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 …’
[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. …’
Case number
Filing date
20 March 2020
Judge
Justice Jagot
Claims
TX Australia sued the ACCC arguing it lacks authority to mediate an access dispute
Hearing
13 and 14 July 2020
Judgment
5 August 2020
Media
Zoe Samios, ‘Nine, Seven tower joint venture TX Australia sues ACCC’ (SMH, 30 March 2020)