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).
On 31 October 2017, nbn re-appointed Endispute Pty Ltd as Resolution Advisor for a two-year term until 31 October 2019. The term was extended until 31 October 2020.
In October 2018, following approval by the ACCC on 29 August 2018, nbn re-appointed the following persons as Pool Members for a two-year term:
1. Albert Monichino QC
2. Don Ryan QC
3. Francis Douglas QC
4. Jim Holmes
5. Jonathon Redwood
6. Malcolm Gracie
7. Michael Heaton QC
8. Rob Nicholls
9. Stephen White
10. Steven Goldstein
11. Terry Mehigan
In March 2019, following approval by the ACCC on 29 August 2018, nbn (re-)appointed the following persons as Pool Members for a two-year term:
12. Dominique Hogan-Doran SC
13. Mark Dempsey SC
14. Michael Sweeney
15. Philip Argy
16. Raymond Finkelstein QC
17. Tony Samuel
In April 2019, following approval by the ACCC on 29 August 2018, nbn (re-)appointed the following persons as Pool Members for a two-year term:
18. David Levin QC
19. Greg Thorpe
20. Ian Harley Bailey SC
21. Mary Walker
22. Michael Shand QC
1 Excluding billing disputes, which are resolved in accordance with separate billing dispute processes.
2 Dispute Management Rules the same as those set in WBA3 have been incorporated into nbn’s other Standard Forms of Access Agreement (SFAAs), as published on its website here.