Application by APT Allgas Energy Pty Ltd - [2011] ACompT 11

AUSTRALIAN COMPETITION TRIBUNAL
Application by APT Allgas Energy Pty Ltd [2011] ACompT 11

Citation: Application by APT Allgas Energy Pty Ltd [2011] ACompT 11

Review from: Australian Energy Regulator

Parties:
APT ALLGAS ENERGY PTY LTD (ABN 52 009 656 446)

File number: ACT 5 of 2011

Tribunal: MANSFIELD J (PRESIDENT)
PROFESSOR D ROUND
MR R DAVEY

Date of decision: 12 October 2011

Date of hearing: Heard on the papers

Date of last submissions: 7 September 2011

Place: Adelaide

Category: No catchwords

Number of paragraphs: 34

Solicitor for APT Allgas Energy Pty Ltd: Gilbert + Tobin

Solicitor for Australian Energy Regulator: Corrs Chambers Wesgarth

IN THE AUSTRALIAN COMPETITION TRIBUNAL

ACT 5 of 2011

RE:
APPLICATION UNDER S 245 OF THE NATIONAL GAS LAW FOR A REVIEW OF AN ACCESS ARRANGEMENT DECISION MADE BY THE AUSTRALIAN ENERGY REGULATOR IN RELATION TO APT ALLGAS ENERGY PTY LIMITED PURSUANT TO RULE 64 OF THE NATIONAL GAS RULES

BY:
APT ALLGAS ENERGY PTY LTD
(ABN 52 009 656 446)
Applicant

TRIBUNAL:

MANSFIELD J (PRESIDENT)
PROFESSOR D ROUND
MR R DAVEY

DATE OF ORDER:

12 OCTOBER 2011

WHERE MADE:

ADELAIDE

THE TRIBUNAL ORDERS THAT:
1Leave be granted to APT Allgas Energy Pty Limited (the Applicant) pursuant to s 245(1) of the National Gas Law as set out in the Schedule to the National Gas (South Australia) Act 2008 (SA) and as applied as a law of Queensland pursuant to s 7 of the National Gas (Queensland) Act 2008 (Qld) to apply to the Australian Competition Tribunal for review of the applicable access arrangement decision of the Australian Energy Regulator (AER) entitled Decision: Access Arrangement APT Allgas Queensland Gas Distribution Network 1 July 2011 – 30 June 2016 published on 30 June 2011 (read together with the reasons for that applicable access arrangement decision, contained in Final Decision: APT Allgas Access Arrangement proposal for the Qld Gas Network 1 July 2011 – 30 June 2016 published on June 2011).

THE TRIBUNAL DIRECTS THAT:
2The AER file and serve on the Applicant a draft index of all review related matter (Draft Review Related Matter Index) as defined under s 261 of the National Gas Law identifying any matter subject to a claim or claims of confidentiality and the identity of the claimant(s) by 4:00 pm on 13 October 2011.
3The Applicant request copies from the AER of any documents from the Draft Review Related Matter Index by 4:00 pm on 17 October 2011.
4The AER provide to the Applicant an electronic copy of any document from the Draft Review Related Matter Index requested pursuant to Order 3 by 4:00 pm on 18 October 2011.
5The Applicant identify any document it considers should be added to or removed from the Draft Review Related Matter Index and provide the AER with a revised consolidated Draft Review Related Matter Index by 4:00 pm on 20 October 2011.
6The AER file and serve on the Applicant a revised Review Related Matter Index (Final Review Related Matter Index) identifying any matter subject to…

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: [2011] ACompT 11
Decision Date: 12 October 2011

CaseChat Overview and Summary

The Australian Competition Tribunal was asked to consider an application by APT Allgas Energy Pty Ltd to review an access arrangement decision made by the Australian Energy Regulator (AER). The applicant sought to challenge the AER's decision regarding the rate of return in the calculation of the debt risk premium (DRP). The AER had relied on a 50:50 weighting of the Bloomberg BBB fair value curve and the Australian Pipeline Trust (APT) bond. The applicant argued that the Bloomberg BBB fair value curve was the appropriate method for calculating the DRP. The AER did not oppose the granting of leave to apply for review in relation to the grounds advanced by the applicant.

The tribunal considered the legal issues involved in granting leave to review the AER's decision. These issues included the meaning of "serious issue to be heard and determined" as set out in the National Gas Law (NGL) and the financial threshold specified in the NGL. The tribunal found that the applicant had satisfied the threshold of a "serious issue to be heard and determined" and that the financial threshold was met.

The tribunal granted leave to the applicant to review the AER's decision and adopted the orders proposed by the parties for the future progress of the applications. The tribunal found that there was a sufficient foundation in the applicant's submissions to be satisfied that there is a serious issue to be heard and determined as to whether the grounds of review exist. The tribunal also found that the financial threshold specified by the NGL was met.

Orders