AUSTRALIAN COMPETITION TRIBUNAL
Application by ActewAGL Distribution [2014] ACompT 2
Citation: Application by ActewAGL Distribution [2014] ACompT 2 Review from: Australian Energy Regulator Parties: ACTEWAGL DISTRIBUTION (ABN 76 670 568 688) File number: ACT 2 of 2014 Tribunal: MANSFIELD J (PRESIDENT) Date of decision: 25 August 2014 Catchwords: PRACTICE AND PROCEDURE – leave to withdraw application where deemed decision of AER preceded formal putative decision – observations about whether there is any right to seek leave to review deemed decision Legislation: National Electricity (South Australia) Act 1996 (SA)
Electricity (National Scheme) Act 1997
Statutes Amendment (National Electricity and Gas Laws – Limited Merits Review) Act 2013 (SA)
Competition and Consumer Act 2010 (Cth)Cases cited: Re Lakes R Us Pty Ltd [2006] ACompT 3 Date of hearing: Heard on the papers Date of last submissions: 21 August 2014 Place: Sydney Category: Catchwords Number of paragraphs: 31 Counsel for the Applicant: F Gibbons Solicitor for the Applicant: DLA Piper Counsel for the Australian Energy Regulator : F Williams Solicitor for the Australian Energy Regulator: Corrs Chambers Westgarth
IN THE AUSTRALIAN COMPETITION TRIBUNAL
ACT 2 of 2014
RE: APPLICATION UNDER S 71B OF THE NATIONAL ELECTRICITY LAW FOR A REVIEW OF A PASS THROUGH DETERMINATION MADE BY THE AUSTRALIAN ENERGY REGULATOR IN RELATION TO ACTEWAGL DISTRIBUTION PURSUANT TO CLAUSE 6.6.1 OF THE NATIONAL ELECTRICITY RULES
BY: ACTEWAGL DISTRIBUTION (ABN 76 670 568 688)
Applicant
JUDGE:
MANSFIELD J (PRESIDENT)
DATE OF ORDER:
25 AUGUST 2014
WHERE MADE:
SYDNEY
THE TRIBUNAL DIRECTS THAT:
1.To the extent necessary ActewAGL Distribution is given leave to withdraw the application dated 29 July 2014 for leave to apply under s 71B of the National Electricity Law in relation to a determination of the Australian Energy Regulator.
IN THE AUSTRALIAN COMPETITION TRIBUNAL
ACT 2 of 2014
RE: APPLICATION UNDER S 71B OF THE NATIONAL ELECTRICITY LAW FOR A REVIEW OF A PASS THROUGH DETERMINATION MADE BY THE AUSTRALIAN ENERGY REGULATOR IN RELATION TO ACTEWAGL DISTRIBUTION PURSUANT TO CLAUSE 6.6.1 OF THE NATIONAL ELECTRICITY RULES
BY: ACTEWAGL DISTRIBUTION (ABN 76 670 568 688)
Applicant
JUDGE:
MANSFIELD J (PRESIDENT)
DATE:
25 AUGUST 2014
PLACE:
SYDNEY
REASONS FOR DECISION
APPLICATION FOR LEAVE TO APPLY FOR REVIEW
By application dated 29 July 2014, ActewAGL Distribution (ActewAGL) sought leave to apply under s 71B of the National Electricity Law (NEL) for a review by the Australian Competition Tribunal (Tribunal) of a purported cost pass through determination made by the Australian Energy Regulator (AER) in respect of ActewAGL’s electricity distribution network in the Australian Capital Territory (ACT).
The NEL is set out in the Schedule to the National Electricity (South Australia) Act 1996 (SA). Section 9 of the NEL gives the National Electricity Rules (NER), which are made under the NEL, the force of law. Pursuant to Part 2 of the Electricity (National Scheme) Act 1997 (ACT), the NEL and regulations made under it apply in the ACT. ActewAGL now seeks leave to withdraw its application.
ActewAGL owns and operates an electricity distribution network in…
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- Case
- [2014] ACompT 2
- Decision Date
CaseChat Overview and Summary
The central legal issue before the court was whether a deemed decision by the AER, which occurred before a formal application for review, could be the subject of an application for leave to seek judicial review. The court also had to determine if there was any right to seek leave to review a deemed decision and, if so, whether it should grant leave to withdraw the application. The applicant argued that since the AER's decision was deemed to have been made prior to the formal application, it should not be precluded from seeking review.
The court found that a deemed decision by the AER could indeed be the subject of an application for leave to seek judicial review. It concluded that there was a right to seek such leave, even if the decision was deemed to have been made before a formal application was lodged. The court noted that the applicant's application for leave was effectively an application to review the deemed decision. In granting the application for leave to withdraw, the court considered it appropriate to allow the applicant to withdraw its application, given the circumstances and the fact that the application for review had already been made.
Orders
Orders of the court
THE TRIBUNAL DIRECTS THAT:
1. To the extent necessary ActewAGL Distribution is given leave to withdraw the application dated 29 July 2014 for leave to apply under s 71B of the National Electricity Law in relation to a determination of the Australian Energy Regulator.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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