Telecom loses court case on Telco Act definitions

Telecom's "causes of action are so clearly untenable that they cannot possibly succeed" says judge

Telecom has been knocked back by the High Court in its bid to get a binding, conclusive definition of two terms in the Telecommunications Act.

Telecom applied for a declaratory judgment by the court that the phrase “a non price-capped retail service offered by Telecom to end-users by means of its fixed telecommunications network” doesn’t include non-retail services and that the words "by means of its fixed telecommunications network" mean exclusively via the network or, alternatively, primarily and actually via the network.

However, after hearing submissions from the Commerce Commission and TelstraClear, Justice Ronald Young ruled that the court couldn’t decide on such a matter and ruled against Telecom, striking out its proceedings and noting Telecom’s “causes of action are so clearly untenable that they cannot possibly succeed”.

He ruled against Telecom mainly due to the lack of a factual context for the definitions Telecom sought.

Telecom alleged the commission erred in its definition of the terms “retail services”and “by means of the fixed telecommunications network” in the two determinations and submitted that a binding definition of the terms by the court would avoid future error by the commission and provide clarity for future determinations.

TelstraClear submitted that Telecom’s claims should be struck out on several grounds. One of its arguments was that the request for declaration was a de facto appeal against the commission’s decisions in the determinations. Telecom didn’t appeal the determinations under the process laid out in the Telecommunications Act.

TelstraClear also submitted that there was no justiciable issue before the court — that there was no particular case that Telecom was seeking the definitions in order to resolve. Any controversy over the terms in the act that Telecom wants clarified have to be made in the context of an actual case or dispute, TelstraClear argued, not in abstract as Telecom was asking the court to do.

TelstraClear argued against Telecom on those and several other grounds. Justice Young didn’t accept all of TelstraClear’s submissions, but on the matter of the lack of factual context, he ruled in TelstraClear’s favour, noting that “I accept the proposition that the purpose of declaratory judgments … is not to decide abstract questions distant from actual controversy” and that “I consider that it is clear from the Act that factual context is vital in interpreting the phrases”.

He also noted: “What exactly the fixed telecommunications network consists of will have to be decided in the context of an application by an access seeker” and that “'by means of’ in relation to the telecommunications network” also needs factual context, as “the services covered by this provision are wide, including call minder services, subdivision, reticulation services and high cost connections and others”.

He also noted that “while not framed as an attack on the Commerce Commission’s previous declarations, effectively this is what [Telecom’s] proceedings are about.”

The case was heard in August and the judgment given last month.

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