Application by Energex Limited (No 4)

The parties involved in the case are Energex Limited and the Australian Energy Regulator (AER). The dispute revolves around the grant of leave for Energex to apply for a review of certain determinations made by the AER regarding the provision of electricity distribution services. The Australian Energy Regulator is responsible for determining the terms upon which distribution services are provided under the National Electricity Law (NEL) and the National Electricity Rules (NER). The Australian Competition and Consumer Commission (ACCC) had previously sought leave to apply for a review of the AER's determinations. The Australian Competition Tribunal (Tribunal) was required to decide on the meaning and effect of several provisions in Div 3A, subdiv 2 of the NEL, particularly in relation to the granting of leave for a review of the AER's determinations. The Tribunal also had to consider the restrictions imposed by s 71E and s 71F of the NEL on the power to grant leave.

The primary legal issue before the Tribunal was the interpretation of s 71E and s 71F of the NEL. Section 71E requires the Tribunal to consider whether there is a serious issue to be heard and determined as to whether a ground for review exists. Section 71F imposes a restriction on the Tribunal's power to grant leave if the reviewable decision is a revenue or pricing determination and the ground for review relates to the amount of revenue that may be earned by the service provider. The Tribunal had to determine whether leave could be granted in respect of all grounds of review if only one ground met the serious issue threshold, or if it was necessary for all grounds to raise a serious issue. The Tribunal also had to consider the effect of the restrictions on the power to grant leave.

The Tribunal held that s 71E does not require all grounds of review to meet the serious issue threshold for leave to be granted. It was sufficient that one ground of review raised a serious issue. The Tribunal also concluded that the relevant grounds for the purposes of s 71F are those grounds which meet the serious issue threshold. This means that the restriction in s 71F only applies to those grounds that meet the serious issue threshold. The Tribunal's decision clarified the interpretation of the relevant provisions in Div 3A, subdiv 2 of the NEL, particularly in relation to the granting of leave for a review of the AER's determinations.

The Tribunal made no further orders and considered that the directions made on 15 July 2010 were sufficient.