Case: Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576
Outcome: applied
In circumstances where the s 151AKA(10) notice and the Part A competition notice fulfil their statutory function, the carrier or carriage service provider is given sufficient information to enable it to alter its conduct and/or make submissions to the Commission in response to the s 151AKA(10) notice. In those circumstances, the statutory opportunity of ascertaining the relevant issues has been given ( Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591). 180 I have concluded that the Consultation Notice did not comply with s 151AKA(10) of the Act and that the Commission was not entitled to issue the Competition Notice. The Commission was required to and did not describe in summary form in the Consultation Notice or otherwise give to Telstra by way of additional information, the kind of anti-competitive conduct that was specified in the Competition Notice. 181 Telstra was not given a reasonable opportunity to consult, or to comment and make submissions, or to change its conduct to avoid the issue of the Competition Notice. Telstra was denied the opportunity to be heard in respect of the new and different subject matter. The statutory scheme, which included the right to such opportunity in order to afford procedural fairness, was not complied with. It follows that Telstra was denied procedural fairness. 199 Optus contends that it would only be if the Commission were to base its decision to issue the Competition Notice on some particular issue or material adverse to Telstra that was not apparent from the nature of the decision that procedural fairness would require that some step additional to the issue of the Consultation Notice be taken and says that this was not pleaded. This was sufficiently pleaded. Telstra relies in the statement of claim upon the alleged failure on the part of the Commission to give notice of the material and analysis on which the Commission based its allegations and statements in the Competition Notice as a basis of a failure to accord procedural fairness and natural justice. Telstra does not suggest that it was entitled to material reflecting the Commission's thought processes. Nor was it entitled to the Commission's own evaluation of Telstra's conduct or information supplied by it ( Alphaone at 592). 200 The Guidelines contemplate complainants and other interested parties providing submissions to the Commission. The giving of ' careful consideration ' to those submissions is said to be one means by which the Commission endeavours to achieve its objectives (p 5 of the Guidelines). The Commission did, by media release dated 22 December 2005, invite such submissions. Telstra submits that it should be inferred that those submissions were provided by third parties and were taken into account. It points to the fact that Optus issued its detailed statement of claim against Telstra in the Optus proceeding only 6 days (including the 4 day Easter break) after the Competition Notice issued and that that makes it ' tolerably plain ' that Optus and the Commission have been working closely together. 202 Where the Consultation Notice was insufficient as described, Telstra was entitled to be given additional information to be able to provide the meaningful submission contemplated by s 151AKA(10). Where the differences between the notices were as described earlier in these reasons, it is reasonable to assume that, acting bona fide in the context of the Consultation Notice, the Commission relied upon additional material and material adverse to Telstra that went to the matters not described in the Consultation Notice. If the Commission based its decision to issue the Competition Notice on some particular issue or material adverse to Telstra that was not apparent from the Consultation Notice, procedural fairness would require that some step additional to the issue of the Consultation Notice be taken ( Alphaone at 591-2). Telstra was entitled to be given notice of that material or the substance of it. The Commission accepts that, if it was obliged to provide that material to Telstra which it denies, Telstra was not accorded procedural fairness ( Telstra Corporation Limited v Australian Competition and Consumer Commission (2006) 68 IPR 571 at [30]). Failure to provide such information was a denial of procedural fairness or natural justice. 228 The decision to issue a Part A competition notice pursuant to s 151AKA(2) of the Act consequent upon a s 151AKA(10) notice being given was likely to affect and be adverse to Telstra's interests. In those circumstances, the Commission was required to give Telstra the opportunity to ascertain the relevant issues. Where the exercise of the statutory power attracts the requirements of procedural fairness, Telstra was entitled to put information and submissions to the Commission ( Alphaone at 591-2). The Commission was obliged to identify any issue critical to the decision to issue the Competition Notice which was not apparent from the Consultation Notice and any adverse conclusions, but not the reasoning process, which had been arrived at and which would not obviously be open on the material known to Telstra ( Alphaone at 592).