Application by GasNet Australia (Operations) Pty Ltd - [2003] ACompT 6

AUSTRALIAN COMPETITION TRIBUNAL

Application by GasNet Australia (Operations) Pty Ltd

[2003] ACompT 6

ADDENDUM

APPLICATION BY GASNET AUSTRALIA (OPERATIONS) PTY LTD

File No 1 OF 2003

COOPER J, MR RC DAVEY, PROFESSOR DK ROUND

BRISBANE (HEARD IN MELBOURNE)

23 DECEMBER 2003

IN THE AUSTRALIAN COMPETITION TRIBUNAL

File No 1 of 2003

RE:

APPLICATION FOR REVIEW OF THE DECISION BY THE AUSTRALIAN COMPETITION AND CONSUMER COMMISSION PUBLISHED ON 17 JANUARY 2003 IN CONNECTION WITH REVISIONS TO THE ACCESS ARRANGEMENT FOR THE GAS TRANSMISSION SYSTEM OWNED BY GASNET AUSTRALIA (OPERATIONS) PTY LTD

BY:

GASNET AUSTRALIA (OPERATIONS) PTY LTD

APPLICANT

TRIBUNAL:

COOPER J (DEPUTY PRESIDENT)

MR RC DAVEY

PROFESSOR DK ROUND

DATE OF ORDER:

23 DECEMBER 2003

WHERE MADE:

BRISBANE (HEARD IN MELBOURNE)

ADDENDUM TO REASONS FOR JUDGMENT

In the orders, insert final order, as follows:

‘6. That there be no order as to costs.’

I certify that this is a true copy of the addendum to the Reasons for Judgment herein of the Honourable Justice Cooper, Mr RC Davey and Professor DK Round.

Associate:
Dated: 23 December 2003

Counsel for the Applicant: AC Archibald QC with P Fox

Solicitor for the Applicant: Mallesons Stephen Jacques

Counsel for the ACCC: J Beach QC with PRD Gray

Solicitor for the ACCC: ACCC Legal Group

Counsel for Energy Action Group: CM Maxwell QC with S Hibble

Dates of Hearing: 13 - 15, 18 - 21 August 2003

Date of Judgment: 23 December 2003

AUSTRALIAN COMPETITION TRIBUNAL

Application by GasNet Australia (Operations) Pty Ltd

[2003] ACompT 6

TRADE PRACTICES - access to pipelines - review of decision of Australian Competition and Consumer Commission to draft access arrangement - Gas Pipelines Access (Victoria) Act 1998 (Vic)

Gas Pipelines Access (Victoria) Act 1998 (Vic)

Gas Pipelines Access (South Australia) Act 1997 (SA)

Application by Epic Energy South Australia Pty Ltd [2003] ACompT 5

Re Michael Ex parte Epic Energy (WA) Nominees Pty Ltd (2002) 25 WAR 511

Application by Epic Energy South Australia Pty Ltd [2002] ACompT 4

APPLICATION BY GASNET AUSTRALIA (OPERATIONS) PTY LTD

File No 1 OF 2003

COOPER J, MR RC DAVEY, PROFESSOR DK ROUND

BRISBANE (HEARD IN MELBOURNE)

23 DECEMBER 2003

IN THE AUSTRALIAN COMPETITION TRIBUNAL

File No 1 of 2003

RE:

APPLICATION FOR REVIEW OF THE DECISION BY THE AUSTRALIAN COMPETITION AND CONSUMER COMMISSION PUBLISHED ON 17 JANUARY 2003 IN CONNECTION WITH REVISIONS TO THE ACCESS ARRANGEMENT FOR THE GAS TRANSMISSION SYSTEM OWNED BY GASNET AUSTRALIA (OPERATIONS) PTY LTD

BY:

GASNET AUSTRALIA (OPERATIONS) PTY LTD

APPLICANT

TRIBUNAL:

COOPER J (DEPUTY PRESIDENT)

MR RC DAVEY

PROFESSOR DK ROUND

DATE OF ORDER:

23 DECEMBER 2003

WHERE MADE:

BRISBANE (HEARD IN MELBOURNE)

THE TRIBUNAL ORDERS THAT:

1. The decision of the Australian Competition and Consumer Commission (‘the ACCC’) under s 2.42 of the National Third Party Access Code for Natural Gas Pipeline Systems (‘the Code’), whereby the ACCC decided to draft and approve its own amended revisions to the Access Arrangement (‘the Decision’) for the gas transmission system owned by the applicant (‘GasNet’), be varied.
2.…

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 GasNet Australia (Operations) Pty Ltd

Details

AGLC: Application by GasNet Australia (Operations) Pty Ltd [2003] ACompT 6
Case: [2003] ACompT 6
Decision Date: 23 DECEMBER 2003

CaseChat Overview and Summary

GasNet Australia (Operations) Pty Ltd sought review of a decision by the Australian Competition and Consumer Commission (ACCC) to draft and approve its own revisions to the access arrangement for the gas transmission system owned by GasNet. GasNet argued that the ACCC had erred in determining the values of various parameters in the Capital Asset Pricing Model (CAPM) used for calculating the Rate of Return, in determining the inflation rate, and in determining the values of five non-capital cost parameters. The Tribunal found that the ACCC had erred in its determination of the Rate of Return and in its determination of the non-capital cost parameters, but did not err in its determination of the inflation rate. The Tribunal varied the decision under review to allow for the recovery of costs in light of the errors found. The Tribunal ordered that the decision of the ACCC be varied to allow GasNet to self-insure for certain risks, to use an allowance of 25 basis points per annum for debt raising costs above the debt margin in determining Total Revenue, to use specified allowances for certain asymmetric risks, and to use a real risk free rate of 3.33 per cent for determining the Rate of Return. The Tribunal also made all necessary and consequential amendments to the Access Arrangement and Access Arrangement Information.

Orders