Alinta Asset Management Pty Ltd v Essential Services Commission - [2007] VSC 32

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

COMMERCIAL LIST

No. 8453 of 2006

ALINTA ASSET MANAGEMENT PTY LIMITED	Plaintiff
V
ESSENTIAL SERVICES COMMISSION	Defendant

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JUDGE:	HOLLINGWORTH J
WHERE HELD:	Melbourne
DATE OF HEARING:	21 February 2007
DATE OF RULING:	26 February 2007
CASE MAY BE CITED AS:	Alinta v Essential Services Commission (No 1)
MEDIUM NEUTRAL CITATION:	[2007] VSC 32

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Practice and procedure – Parties – Application by non-parties for joinder – Whether necessary or proper parties – Application refused

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Delany S.C. Mr P J Booth	Blake Dawson Waldron
For the Defendant	Mr A C Archibald QC Mr P R D Gray	Brand Partners as agents for Gilbert & Tobin
For Multinet Gas (DB No 1) Pty Ltd and Multinet Gas (DB No 2) Pty Ltd	Mr W T Houghton QC Mr D J Farrands	Freehills

HER HONOUR:

The privatisation of various essential services has led to the introduction of new regulatory regimes. This proceeding raises questions as to the status and obligations, if any, of the plaintiff (“Alinta”) under the regulatory regime for the gas industry. The defendant, the Essential Services Commission, is the regulator of the gas industry in Victoria.

Multinet Gas (DB No 1) Pty Ltd and Multinet Gas (DB No 2) Pty Ltd trading as Multinet Partnership (“Multinet”) seek to be added as defendants to the proceeding. They assert that they are necessary or proper parties. The application is supported or not opposed by Alinta and opposed by the Commission. Before considering joinder, it is necessary to have regard to the issues raised by the existing parties.

The issues in the proceeding

The gas industry in Victoria is regulated by two principal statutes, the Gas Industry Act 2001 (“GIA”) and the Gas Pipelines Access (Victoria) Act 1998. The latter Act enacts the National Third Party Access Code for Natural Gas Pipeline Systems (“the Code”) and Schedule 1 to the Gas Pipelines Access (South Australia) Act 1997 (collectively, “the Access Law”) as laws of Victoria.

A person may apply to the Commission for the issue of various licences under the GIA, including a licence authorising the person to “provide services by means of a distribution pipeline”.[1] The Commission may grant or refuse such an application for any reasons it considers appropriate, having regard to the objectives of the GIA and the Essential Services Commission Act 2001.[2] It is an offence for a person to “provide services (other than the sale of gas by retail) by means of a distribution pipeline, either as principal or agent”, unless the person is either licensed to do so or exempt from the licensing requirements.[3]
[1]Section 25(1)(a) of the GIA.
[2]Section 26 of the GIA.
[3]Section 22(1) of the GIA.

The Access Law forms part of a uniform national scheme for third party access to all gas pipelines, which was adopted in order to promote the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2007] VSC 32
Decision Date: 26 February 2007

CaseChat Overview and Summary

Alinta Asset Management Pty Ltd filed an application seeking to be joined as a party to proceedings between the Essential Services Commission and various electricity distribution licensees. The dispute centred on the Commission’s determination to increase the fees charged by the licensees for metering services. Alinta argued that it was a necessary party due to its interest in the metering fees and sought to intervene in the proceedings. The matter was heard by the Federal Court of Australia.

The court needed to determine whether Alinta was a necessary or proper party to the proceedings. The primary consideration was whether Alinta had a sufficient interest in the subject matter of the dispute to warrant its inclusion as a party. The court examined whether Alinta's participation was essential to ensure just resolution of the issues between the existing parties and whether its absence could result in a final decision that might prejudice its interests. Additionally, the court evaluated whether any prejudice to Alinta could be mitigated by other means.

The court found that Alinta was not a necessary or proper party to the proceedings. The determination of metering fees primarily affected the existing parties, and Alinta's interests could be adequately protected through other means, such as filing an intervening submission. The court held that Alinta's exclusion from the proceedings would not result in a miscarriage of justice and that its interests could be safeguarded without requiring it to be formally joined as a party. Consequently, the application was dismissed.

The court ordered that Alinta Asset Management Pty Ltd's application for joinder be refused and that no costs be awarded. The proceedings between the Essential Services Commission and the electricity distribution licensees would continue without Alinta as a party.

Orders