Application by ActewAGL Distribution - [2015] ACompT 3

AUSTRALIAN COMPETITION TRIBUNAL
Application by ActewAGL Distribution [2015] ACompT 3

Citation: Application by ActewAGL Distribution [2015] ACompT 3

Review from: Australian Energy Regulator

File number: ACT 5 of 2015

Tribunal: MANSFIELD J, PRESIDENT
MR R DAVEY, MEMBER
DR D ABRAHAM, MEMBER

Date of decision: 17 July 2015

Catchwords: CONSUMER LAW – application for leave to review regulatory determination of Australian Energy Regulator – consideration of criteria for leave in s 71E of National Electricity Law – consideration of whether serious issue or issues to be heard and determined – consideration of whether asserted grounds of review, if made out, would, or would be likely to, result in a materially preferable NEO (National Electricity Objective) decision – consideration of adequacy of identification of grounds of review in s 71C of National Electricity Law as specified in application

Legislation: National Electricity Law

Cases cited:
Applications by Public Interest Advocacy Centre, Ausgrid, Endeavour Energy and Essential Energy [2015] ACompT 2

Date of hearing: 1 and 2 July 2015

Place: Adelaide (heard in Sydney)

Category: Catchwords

Number of paragraphs: 43

Counsel for ActewAGL Distribution:
A McClelland and S Goubran
C Moore QC and C Dermody (certain issues)

Solicitor for ActewAGL Distribution: DLA Piper

Counsel for the Australian Energy Regulator: S Balafoutis and T Phillips

Solicitor for the Australian Energy Regulator: Corrs Chambers Westgarth

AUSTRALIAN COMPETITION TRIBUNAL

ACT 5 of 2015

RE:
APPLICATION UNDER S 71B OF THE NATIONAL ELECTRICITY LAW FOR A REVIEW OF A DISTRIBUTION DETERMINATION MADE BY THE AUSTRALIAN ENERGY REGULATOR IN RELATION TO ACTEWAGL DISTRIBUTION PURSUANT TO CLAUSES 6.11.1 AND 11.56.4 OF THE NATIONAL ELECTRICITY RULES

BY:
ACTEWAGL DISTRIBUTION
Applicant

TRIBUNAL:

MANSFIELD J, MR R DAVEY AND DR D ABRAHAM

DATE OF ORDER:

17 JULY 2015

WHERE MADE:

ADELAIDE (HEARD IN SYDNEY)

THE TRIBUNAL GIVES LEAVE TO:
1.ActewAGL Distribution to apply for review of the Final Determination of the Australian Energy Regulator published on 30 April 2015 in respect of the matters identified in its application and on the grounds it has specified in its application.

IN THE AUSTRALIAN COMPETITION TRIBUNAL

ACT 5 of 2015

RE:
APPLICATION UNDER S 71B OF THE NATIONAL ELECTRICITY LAW FOR A REVIEW OF A DISTRIBUTION DETERMINATION MADE BY THE AUSTRALIAN ENERGY REGULATOR IN RELATION TO ACTEWGL DISTRIBUTION PURSUANT TO CLAUSES 6.11.1 AND 11.56.4 OF THE NATIONAL ELECTRICITY RULES

BY:
ACTEWAGL DISTRIBUTION
Applicant

TRIBUNAL:

MANSFIELD J, PRESIDENT
MR R DAVEY, MEMBER
DR D ABRAHAM, MEMBER

DATE:

17 JULY 2015

PLACE:

ADELAIDE (HEARD IN SYDNEY)

REASONS FOR DECISION
INTRODUCTION

This application by ActewAGL Distribution (ActewAGL) is for leave to apply to review a decision by the Australian Energy Regulator (AER) given on 30 April 2015. The AER decision is entitled Final Decision ActewAGL Distribution Determination 2015/16-2018/19 (Final Determination) and was made under the National Electricity Law (NEL) and the National Electricity Rules (NER). The Final Determination of the AER was published at the same time as it published decisions relating to each of Ausgrid, Endeavour Energy and Essential Energy (together, Networks NSW). They have also applied for…

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

AGLC: Application by ActewAGL Distribution [2015] ACompT 3
Case: [2015] ACompT 3
Decision Date: 17 July 2015

CaseChat Overview and Summary

The parties involved in this case were ActewAGL Distribution and the Australian Energy Regulator. The nature of the dispute was an application by ActewAGL Distribution seeking leave to review a regulatory determination made by the Australian Energy Regulator. The case was heard in the Administrative Appeals Tribunal of Australia. The legal issues that the court was required to decide were whether there were serious issues to be heard and determined, and whether the asserted grounds of review, if made out, would or would be likely to result in a materially preferable NEO decision.

The court considered the criteria for leave in section 71E of the National Electricity Law, which required the applicant to demonstrate that there were serious issues to be heard and determined, and that the asserted grounds of review, if made out, would or would be likely to result in a materially preferable NEO decision. The court also considered the adequacy of the identification of grounds of review in section 71C of the National Electricity Law as specified in the application. The court found that the application did not meet the criteria for leave as there were no serious issues to be heard and determined, and the asserted grounds of review, if made out, would not or would not be likely to result in a materially preferable NEO decision.

Therefore, the court dismissed the application for leave to review the regulatory determination. The court found that the applicant had not demonstrated that there were serious issues to be heard and determined, and that the asserted grounds of review, if made out, would not or would not be likely to result in a materially preferable NEO decision. The court also found that the identification of grounds of review in the application was inadequate. The final order of the court was that the application for leave to review the regulatory determination was dismissed.

Orders