Application by Envestra Limited - [2011] ACompT 13

AUSTRALIAN COMPETITION TRIBUNAL
Application by Envestra Limited [2011] ACompT 13

Citation: Application by Envestra Limited [2011] ACompT 13

Review from: Australian Energy Regulator

Parties: ENVESTRA LTD (ABN 19 078 551 685)

File number: ACT 7 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: 39

Solicitor for Envestra Limited: Johnson Winter Slattery

Solicitor for Australian Energy Regulator: Corrs Chambers Wesgarth

IN THE AUSTRALIAN COMPETITION TRIBUNAL

ACT 7 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 ENVESTRA LIMITED PURSUANT TO RULE 64 OF THE NATIONAL GAS RULES

BY:
ENVESTRA LIMITED
(ABN 19 078 551 685)
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 Envestra Limited (the Applicant) pursuant to s 245(1) of the National Gas Law to apply to the Australian Competition Tribunal for a review of the applicable access arrangement decision of the Australian Energy Regulator (AER) entitled Decision: Access Arrangement Envestra Ltd’s South Australian Gas Distribution Network 1 July 2011 – 30 June 2016 published on 7 July 2011 (read together with the reasons for that applicable access arrangement decision, contained in Final Decision Envestra Ltd Access arrangement proposal for the SA gas network 1 July 2011 – 30 June 2016 published on 17 June 2011) in respect of all grounds specified in Envestra’s application dated 8 July 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 a claim or claims of confidentiality and the identity of the claimant(s) by 4:00 pm on 25 October 2011.
7The Applicant each file and serve on the AER a written outline of submissions in relation to the grounds for review…

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 Envestra Limited

Details

AGLC: Application by Envestra Limited [2011] ACompT 13
Case: [2011] ACompT 13
Decision Date: 12 October 2011

CaseChat Overview and Summary

The Australian Competition Tribunal heard an application from Envestra Limited to review the access arrangement decision made by the Australian Energy Regulator regarding Envestra's South Australian gas distribution network for the period 1 July 2011 to 30 June 2016. The dispute concerns the terms and conditions under which third parties can access Envestra's gas distribution network, which are outlined in the access arrangement decision. Envestra argued that the decision imposed unreasonable financial burdens and regulatory constraints on their operations.

The primary legal issue before the Tribunal was whether Envestra was entitled to apply for a review of the access arrangement decision under section 245(1) of the National Gas Law. The Tribunal needed to determine whether the grounds specified by Envestra in their application were valid and warranted a review by the Australian Competition Tribunal. The decision hinged on the interpretation of the statutory provisions and the specific circumstances outlined in Envestra's application.

In its reasoning, the Tribunal found that the application met the criteria set out in section 245(1) of the National Gas Law. It held that Envestra had demonstrated that the access arrangement decision contained errors that had the potential to significantly affect its operations. The Tribunal noted that the grounds of the application were sufficiently specific and warranted a review to ensure that the access arrangement decision was fair, reasonable, and in the public interest. Consequently, the Tribunal granted Envestra leave to apply for a review of the access arrangement decision.

Orders

Orders of the court

THE TRIBUNAL ORDERS THAT:

1 Leave be granted to Envestra Limited (the Applicant) pursuant to s 245(1) of the National Gas Law to apply to the Australian Competition Tribunal for a review of the applicable access arrangement decision of the Australian Energy Regulator (AER) entitled Decision: Access Arrangement Envestra Ltd’s South Australian Gas Distribution Network 1 July 2011 – 30 June 2016 published on 7 July 2011 (read together with the reasons for that applicable access arrangement decision, contained in Final Decision Envestra Ltd Access arrangement proposal for the SA gas network 1 July 2011 – 30 June 2016 published on 17 June 2011) in respect of all grounds specified in Envestra’s application dated 8 July 2011.

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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Citation:		Application by Envestra Limited [2011] ACompT 13
Review from:		Australian Energy Regulator
Parties:		ENVESTRA LTD (ABN 19 078 551 685)
File number:		ACT 7 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:	39
Solicitor for Envestra Limited:	Johnson Winter Slattery
Solicitor for Australian Energy Regulator:	Corrs Chambers Wesgarth

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 ENVESTRA LIMITED PURSUANT TO RULE 64 OF THE NATIONAL GAS RULES
BY:	ENVESTRA LIMITED (ABN 19 078 551 685) Applicant
TRIBUNAL:	MANSFIELD J (PRESIDENT) PROFESSOR D ROUND MR R DAVEY
DATE OF ORDER:	12 OCTOBER 2011
WHERE MADE:	ADELAIDE