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Application by Energex Limited (No 4)

Application by Energex Limited (No 4)

Case [2011] ACompT 4 11 February 2011

Statutory Interpretation

Judicial Review

Natural Justice & Procedural Fairness

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AUSTRALIAN COMPETITION TRIBUNAL
Application by Energex Limited (No 4) [2011] ACompT 4

Citation: Application by Energex Limited (No 4) [2011] ACompT 4

Review from: Australian Energy Regulator

Parties:
ENERGEX LIMITED (ACN 078 849 055)

ERGON ENERGY CORPORATION LIMITED (ACN 078 646 062)

ETSA UTILITIES (ABN 13 332 330 749)

File numbers: 2 of 2010
3 of 2010
4 of 2010

Members: JUSTICE FINKELSTEIN (PRESIDENT)
MR R SHOGREN
MR R DAVEY

Date of decision: 11 February 2011

Legislation: Acts Interpretation Act1901 (Cth), ss 15AA, 15AB
National Electricity Law, ss 3, 71A, 71B, 71C, 71E, 71F; Sch 2 cls 7, 8, 11, 20
National Gas Law, ss 248, 249

Cases cited:
Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129
Assam Railways & Trading Co Ltd v Inland Revenue Commissioners [1935] AC 445
Bropho v State of Western Australia (1990) 171 CLR 1

Cabell v Markham 148 F 2d 737 (1945)

Catlow v Accident Compensation Commission (1989) 167 CLR 543
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384
Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297
Gray v Pearson (1857) 6 HL Cas 61; 10 ER 1216
Pepper (Inspector of Taxes) v Hart [1993] AC 593
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252
Stevens v Kabushiki Kaisha Sony Computer Entertainment (2005) 224 CLR 193

Date of hearing: 15 July 2010

Date of last submissions: Energex Limited: 6 August 2010
Ergon Energy Corporation Limited: 11 August 2010
ETSA Utilities: 11 August 2010
Australian Energy Regulator: 19 August 2010

Place: Melbourne

Category: No catchwords

Number of paragraphs: 55

Counsel for Energex Limited: Mr Pomerenke

Solicitor for Energex Limited: Allens Arthur Robinson

Counsel for Ergon Energy Corporation Limited: Mr P O’Shea SC

Solicitor for Ergon Energy Corporation Limited: Minter Ellison

Counsel for ETSA Utilities: Ms M Sloss SC
Mr CA Moore
Mr M Borsky

Solicitor for ETSA Utilities: Gilbert + Tobin

Counsel for Australian Energy Regulator: Mr P Gray

Solicitor for Australian Energy Regulator: Corrs Chambers Westgarth

IN THE AUSTRALIAN COMPETITION TRIBUNAL

File No 2 of 2010

RE:
APPLICATION UNDER SECTION 71B OF THE NATIONAL ELECTRICITY LAW FOR A REVIEW OF A DISTRIBUTION DETERMINATION MADE BY THE AUSTRALIAN ENERGY REGULATOR IN RELATION TO ENERGEX LIMITED PURSUANT TO CLAUSE 6.11.1 OF THE NATIONAL ELECTRICITY RULES

BY:
ENERGEX LIMITED (ACN 078 849 055)
Applicant

File No 3 of 2010

RE:
APPLICATION UNDER SECTION 71B OF THE NATIONAL ELECTRICITY (QUEENSLAND) LAW FOR A REVIEW OF A DISTRIBUTION DETERMINATION MADE BY THE AUSTRALIAN ENERGY REGULATOR IN RELATION TO ERGON ENERGY CORPORATION LIMITED PURSUANT TO CLAUSE 6.11.1 OF THE NATIONAL ELECTRICITY RULES

BY:
ERGON ENERGY CORPORATION LIMITED
(ACN 078 646 062)
Applicant

File No 4 of 2010

RE:
APPLICATION UNDER SECTION 71B OF THE NATIONAL ELECTRICITY LAW FOR A REVIEW OF A DISTRIBUTION DETERMINATION MADE BY THE AUSTRALIAN ENERGY REGULATOR IN RELATION TO ETSA UTILITIES PURSUANT TO CLAUSE…

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.

Continue reading Application by Energex Limited (No 4)

Details

AGLC: Application by Energex Limited (No 4) [2011] ACompT 4
Case: [2011] ACompT 4
Decision Date: 11 February 2011

CaseChat Overview and Summary

The Australian Competition Tribunal dealt with three applications for leave to apply for a review of determinations of the Australian Energy Regulator (AER) in relation to the provision by each applicant of electricity distribution services. The NEL and NER establish a regime for “merits review” of certain decisions of the AER. An applicant must obtain leave of the Tribunal to apply for a review of a reviewable decision. If leave is granted, the applicant must specify the grounds for review being relied upon. Broadly speaking those grounds are that: (1) the AER made a material error of fact; (2) the AER’s discretion miscarried; and (3) the AER’s decision was unreasonable. There are restrictions upon the power of the Tribunal to grant leave. The first restriction is provided by s 71E. The second restriction is imposed by s 71F. The Tribunal was required to resolve certain issues in relation to the meaning and effect of several provisions in Div 3A, subdiv 2. The Tribunal found that s 71E requires the applicant for review to raise one serious ground and that other non-serious grounds are simply carried along with the serious ground. The Tribunal also found that the revenue threshold should be satisfied by aggregating the relevant amounts in respect of the several proposed grounds.

Orders