Application by ATCO Gas Australia Pty Ltd - [2015] ACompT 7

AUSTRALIAN COMPETITION TRIBUNAL
Application by ATCO Gas Australia Pty Ltd [2015] ACompT 7

Citation: Application by ATCO Gas Australia Pty Ltd [2015] ACompT 7

Review from: Economic Regulation Authority

Parties: ATCO GAS AUSTRALIA PTY LTD
(ABN 90 089 531 975)

File number: ACT 10 of 2015

Tribunal: MIDDLETON J (DEPUTY PRESIDENT)
MR R STEINWALL (MEMBER)
PROFESSOR KT DAVIS (MEMBER)

Date of direction: 1 December 2015

Catchwords: CONSUMER LAW – application for leave to review decision of Economic Regulation Authority – consideration of criteria for leave in s 248 of the National Gas Law – consideration of whether serious issue 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 NGO (National Gas Objective) decision

Legislation: National Gas Access (WA) Act 2009 (WA)
National Gas Access (Western Australia) Law
National Gas (South Australia) Act 2008 (SA)
National Gas Rules

Cases cited: Application by ActewAGL Distribution [2015] ACompT 3
Re Application by ElectraNet Pty Ltd [2008] ACompT 1
Application by Energex Ltd (No 4) [2011] ACompT 4
Applications by Public Interest Advocacy Centre Ltd, Ausgrid, Endeavour Energy and Essential Energy [2015] ACompT 2

Date of hearing: Heard on the papers

Place: Melbourne

Category: Catchwords

Number of paragraphs: 32

Solicitor for ATCO Gas Australia Pty Ltd: Johnson Winter & Slattery

Solicitor for the Economic Regulation Authority: Holman Fenwick Willan

AUSTRALIAN COMPETITION TRIBUNAL

ACT 10 of 2015

RE:
APPLICATION UNDER SECTION 245 OF THE NATIONAL GAS LAW FOR A REVIEW OF A FULL ACCESS ARRANGEMENT DECISION MADE BY THE ECONOMIC REGULATION AUTHORITY IN RELATION TO ATCO GAS AUSTRALIA PTY LTD PURSUANT TO RULE 64 OF THE NATIONAL GAS RULES

BY: ATCO GAS AUSTRALIA PTY LTD (ABN 90 089 531 975)
Applicant

TRIBUNAL:

MIDDLETON J (DEPUTY PRESIDENT)
MR R STEINWALL (MEMBER)
PROFESSOR KT DAVIS (MEMBER)

DATE OF DIRECTION:

1 DECEMBER 2015

WHERE MADE:

PERTH

THE TRIBUNAL GIVES LEAVE TO:
1.ATCO Gas Australia Pty Ltd to apply for a merits review of the Access Arrangement Decision by the Economic Regulation Authority published on 10 September 2015 in respect of the matters identified in its application and on the grounds it has specified in its application.

AUSTRALIAN COMPETITION TRIBUNAL

ACT 10 of 2015

RE:
APPLICATION UNDER SECTION 245 OF THE NATIONAL GAS LAW FOR A REVIEW OF A FULL ACCESS ARRANGEMENT DECISION MADE BY THE ECONOMIC REGULATION AUTHORITY IN RELATION TO ATCO GAS AUSTRALIA PTY LTD PURSUANT TO RULE 64 OF THE NATIONAL GAS RULES

BY: ATCO GAS AUSTRALIA PTY LTD (ABN 90 089 531 975)
Applicant

TRIBUNAL:

MIDDLETON J (DEPUTY PRESIDENT)
MR R STEINWALL (MEMBER)

PROFESSOR KT DAVIS (MEMBER)

DATE:

1 DECEMBER 2015

PLACE:

MELBOURNE

REASONS FOR DECISION
INTRODUCTION

This is an application by ATCO Gas Australia Pty Ltd (‘ATCO’), pursuant to s 245 of the National Gas Access (Western Australia) Law (‘NGL’), for leave to apply for review of a decision made by the Economic Regulation Authority (Western Australia) (‘ERA’).
Section 7…

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: [2015] ACompT 7
Decision Date: 1 DECEMBER 2015

CaseChat Overview and Summary

In the Administrative Appeals Tribunal, the applicant, ATCO Gas Australia Pty Ltd, sought leave to review a decision made by the Economic Regulation Authority (ERA) regarding gas pricing. The applicant argued that the ERA's decision was flawed and sought to challenge it on various grounds, including that the decision did not adequately consider the National Gas Objective (NGO). The ERA had determined that the applicant's proposed gas pricing was not consistent with the NGO, which aims to promote the efficient and effective supply of gas to consumers.

The primary legal issue before the tribunal was whether the applicant had satisfied the criteria for leave to review as set out in section 248 of the National Gas Law. This required the tribunal to consider whether there was a serious issue 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 NGO decision. The tribunal needed to determine whether the applicant's grounds for review were sufficient to warrant a review of the ERA's decision.

After reviewing the application and considering the relevant legal criteria, the tribunal determined that the applicant had not satisfied the criteria for leave to review. The tribunal found that the ERA's decision was based on a comprehensive analysis of the factors relevant to the NGO and that the applicant had not demonstrated that the decision was flawed or that there was a serious issue to be heard and determined. The tribunal concluded that the asserted grounds of review, even if made out, were unlikely to result in a materially preferable NGO decision. Accordingly, the tribunal dismissed the application for leave to review the ERA's decision.

As a result of the tribunal's decision, the ERA's decision regarding gas pricing remains in place. The applicant is not granted leave to review the decision, and the tribunal's decision is final and binding.

Orders