Under the Wholesale Broadband Agreement (WBA 2), NBN Co and its Customers agree to manage and resolve disputes that may arise under or in relation to WBA 2 in accordance with a set of rules that are set out in Module G of WBA 2 (the Dispute Management Rules1). The same Dispute Management Rules are incorporated in the versions of the Satellite Wholesale Broadband Agreement and Testing Arrangements that are published as Standard Forms of Access Agreement on NBN Co's website2.
The Dispute Management Rules provide that certain functions and responsibilities, which contribute to the fair and efficient resolution of disputes, are to be performed by appointees to the roles of ‘Resolution Advisor’, ‘Pool Member’ and ‘Panel Member’. The functions and responsibilities of each role are described in the Dispute Management Rules.
NBN Co has made certain commitments in its Special Access Undertaking (SAU) about the way in which each of the appointees to these roles will be nominated and appointed, as well as the standard terms on which they will be appointed. These commitments are intended to ensure that the appointees can perform their functions and responsibilities independently of the parties to the dispute, thereby facilitating the achievement of fair and efficient dispute resolution outcomes using consistent and unbiased dispute resolution processes.
The ACCC has approved the following terms of appointment. These documents deal with the appointment of the Resolution Advisor, Pool Members and Panel Members.
NBN Co is required under its Special Access Undertaking to prepare a document which sets out "guidelines to be applied by a Panel when considering a Dispute (including, but not limited to, decisions of the Panel relating to the joinder of parties to a Dispute)". The Dispute Guidelines were prepared by NBN Co, and approved by the ACCC on 10 October 2014.
The Approved Dispute Guidelines:
- apply to agreements entered into between NBN Co and Customer that incorporate the dispute resolution provisions of an NBN Co Standard Form Access Agreement under which NBN Co supplies carriage services; and
- are to be read in conjunction with the above agreement, NBN Co’s Special Access Undertaking, and the Commercial Arbitration Act 2010 (NSW).
In April 2016, NBN Co re-appointed Endispute Pty Ltd as Resolution Advisor for a second two-year term until 31 October 2016. NBN Co subsequently extended the appointment of Endispute Pty Ltd until 31 October 2017.
In September 2016, following approval by the ACCC on 27 July 2016, NBN Co re-appointed the following persons as Pool Members for a two-year term:
1. Don Ryan QC
2. Stephen White
3. Rob Nicholls
4. Terry Mehigan
5. Jim Holmes
6. Francis Douglas
7. Steven Goldstein
8. Albert Monichino QC
9. Malcolm Gracie
10. Roger Davis
11. Michael Heaton QC
12. Jonathon Redwood
NBN Co recently completed industry consultation on an additional group of Pool Member appointments for re-appointment for a two-year term, which the ACCC approved on 14 November 2016:
13. David Levin QC
14. Greg Thorpe
15. Ian Harley Bailey
16. Michael Shand QC
17. Michael Sweeney QC
18. Philip Argy
19. Raymond Finkelstein QC
20. Tony Samuel
21. Mark Dempsey SC
The following additional persons were also approved by the ACCC on 14 November 2016 for initial appointment as Pool Members for a two-year term:
22. Dr Annabelle Bennett AO SC
23. Dominique Hogan Doran SC
24. Mary Walker
1 Excluding billing disputes, which are resolved in accordance with separate billing dispute processes.
2 Dispute Management Rules that are the same as those set in WBA 2 were incorporated into the Satellite Wholesale Broadband Agreement on 16 December 2013 and the Testing Arrangements on 13 December 2013.
Page last updated: 09/12/2016