Application by Envestra Limited - [2011] ACompT 12

FEDERAL COURT OF AUSTRALIA
Application by Envestra Limited [2011] ACompT 12

Citation: Application by Envestra Limited [2011] ACompT 12

Review from: Australian Energy Regulator

Parties: ENVESTRA LTD (ABN 19 078 551 685)

File number: ACT 6 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 Envestra Limited: Johnson Winter Slattery

Solicitor for Australian Energy Regulator: Corrs Chambers Wesgarth

IN THE AUSTRALIAN COMPETITION TRIBUNAL

ACT 6 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 decisions of the Australian Energy Regulator (AER) entitled Decision: Access Arrangement Envestra Ltd’s Queensland Gas Distribution Network 1 July 2011 – 30 June 2016 dated 30 June 2011 (read together with the reasons for that applicable access arrangement decision, contained in the Final Decision Envestra Ltd Access arrangement proposal for the Queensland Gas Network 1 July 2011 – 30 June 2016 dated 17 June 2011) in respect of all grounds specified in Envestra’s application dated 8 July 2011 and filed in ACT 6 of 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…

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

CaseChat Overview and Summary

In the Application by Envestra Limited, the applicant, Envestra Limited, sought leave to apply for a review of the access arrangement decisions made by the Australian Energy Regulator (AER). The application was made under Section 245 of the National Gas Law (NGL) and related to the AER's decision on the access arrangement for Envestra's Queensland Gas Distribution Network for the period 1 July 2011 to 30 June 2016. The main issues in the case were the Debt Risk Premium (DRP) and the Market Risk Premium (MRP) as set out in the Reviewable Decision. The applicant argued that the AER's decision was incorrect or unreasonable in the circumstances.

The court was required to decide whether there was a serious issue to be heard and determined as to whether a ground for review set out in Section 246(1) of the NGL existed, and whether the financial threshold in Section 249 of the NGL was satisfied. The court also needed to consider whether the applicant had demonstrated a sufficient prospect of success to justify the review of the AER's decision.

The court found that there was a serious issue to be determined regarding the DRP and MRP, as the applicant had provided a sufficient basis for arguing that the AER's discretion was incorrect or unreasonable. The court was satisfied that the financial threshold in Section 249 of the NGL was also met. As a result, the court granted the applicant leave to apply for a review of the Reviewable Decision in relation to the DRP and MRP matters addressed in that decision.

The final orders of the Tribunal included granting leave to the applicant to apply for a review of the Reviewable Decision, and providing directions for the hearing of the review, such as filing and serving various indices and documents between the parties, and listing the proceedings for hearing.

Orders