Case: Gill v Donald Humberstone &amp; Co Ltd [1963] 1 WLR 929
Outcome: referred to
Optus argued that the proper construction of par 10(a) required an assumption that the requirements of cl 11.4 of Code 569 were satisfied once the conditions set out in par 10(a) were met. In other words Optus argued that the final determination required Telstra to treat the provision of the information specified in par 10(a) by itself, as an ULLS transfer request with the necessary consequence that Telstra would then process it as if it were valid under cl 11.5 of Code 569. It contended that the final determination should be construed in a practical manner which required "... Telstra to modify its existing procedures to exclude the kind of validation processes that are specific to transfers between access seekers". It referred to the practical approach in construction of instruments enunciated by Lord Reid in Gill v Donald Humberstone &amp; Co Ltd [1963] 1 WLR 929 at 933-934 and applied by Stone J in Australian Tea Tree Oil Research Institute v Industry Research and Development Board [2002] FCA 1127 ; (2002) 124 FCR 316 at 328-329 [37] - [38] ; see too per Stein and Giles JJA in Langton v Independent Commission against Corruption (2000) 49 NSWLR 164 at 167-168 [12]-[13]. Lord Reid had said that instruments which were addressed to practical people skilled in a particular trade or industry ought be construed in light of practical considerations rather than by a meticulous comparison of the language of their various provisions of the kind appropriate for the construction of a statute. 187 Optus argued that the Commission should not be taken to have required the parties to engage in a pointless exercise of submitting a Vacant ULLS request in circumstances where it was already known that they should be rejected. It pointed to the necessity to construe the words of par 10(e) in a way that gave them a practical operation consistent with the intention of the Commission: Gill [1963] 1 WLR at 933-934 per Lord Reid. 188 Optus argued that the Commission was concerned to specify a practical means of identifying and connecting a particular line to a customer's premises. It said that that par 10(e) read together with par 10(a) showed that the existence of a soft dial tone indicated an existing continuous connection on a particular line from the customer's apartment with an MDU to the exchange. It contended that the practical utility of this was to enable Telstra, when provided with the other information in par 10(a), to identify the particular line in place and allow for connecting (jumpering) Optus' equipment to occur at the exchange without the need for technicians to visit the apartment building to connect a different pair of copper wires to the customer's premises. Optus argued that par 10(e) applied to situations other than those in par 10(a), namely that there was no soft dial tone so that it was not possible to identify an existing continuous connection. 189 While these submissions of Optus recognised the practical operation of the final determination, they pointed to the fact that it did not operate on an ULLS connection, but rather in respect of a presupposed situation where there either was an ULLS (par 10(a)) or there was no ULLS (par 10(e)). That was the very difficulty of which Telstra complained. The drafting of par 10 was inapt to specify terms and conditions for ordering and provisioning a communications wire or ULLS in a practical or intelligible fashion. The Commission's power was conferred to enable it to regulate a declared service, such as the ULLS, not to regulate something else. The Commission's powers under Part XIC of the Act to determine access to the declared service, being the ULLS, did not extend to determining matters where no ULLS existed as contemplated in par 10(e). I am of opinion that the Commission exceeded its jurisdiction by including par 10(e) in its final determination.