Application by SPI Electricity Pty Limited - [2013] ACompT 1

AUSTRALIAN COMPETITION TRIBUNAL
Application by SPI Electricity Pty Limited [2013] ACompT 1

Citation: Application by SPI Electricity Pty Limited [2013] ACompT 1

Review from: Australian Energy Regulator

Parties: SPI ELECTRICITY PTY LIMITED (ABN 91 064 235 776)

File number: ACT 7 of 2010

Tribunal: FOSTER J (DEPUTY PRESIDENT), MR G LATTA AM AND PROFESSOR D ROUND

Date of decision: 31 January 2013

Legislation: National Electricity Law, s 71P(2)(b)
National Electricity Rules

Cases cited: Application by SPI Electricity Pty Ltd [2012] ACompT 2 related
Application by United Energy Distribution Pty Limited (2012) 261 FLR 1 related
SPI Electricity Pty Ltd v Australian Competition Tribunal [2012] FCAFC 186 cited

Date of hearing: Decided on the papers

Place: Sydney

Category: No Catchwords

Number of paragraphs: 16

Counsel for SPI Electricity Pty Limited:
Mr D Farrands and Mr A Weinstock

Solicitor for SPI Electricity Pty Limited: SP AusNet

Counsel for the Australian Energy Regulator:
Ms M Sloss SC, Mr S Lloyd SC, Mr P Gray, Mr D Star, Dr V Priskich, Mr T Clarke and Mr L Merrick

Solicitor for the Australian Energy Regulator: Corrs Chambers Westgarth

IN THE AUSTRALIAN COMPETITION TRIBUNAL

NO: ACT 7 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 SPI ELECTRICITY PTY LIMITED PURSUANT TO CLAUSE 6.11.1 OF THE NATIONAL ELECTRICITY RULES

BY: SPI ELECTRICITY PTY LIMITED (ABN 91 064 235 776)

TRIBUNAL:

JUSTICE FOSTER (DEPUTY PRESIDENT),
MR G LATTA AM AND PROFESSOR D ROUND

DATE OF ORDER:

31 JANUARY 2013

WHERE MADE:

SYDNEY

PREAMBLE:
This Order is made in place of paragraph 3 of the Tribunal’s Order made on 5 April 2012 in this review application, No ACT 7 of 2010, which Order was set aside by Order of the Full Court of the Federal Court of Australia made on 17 January 2013 in proceeding VID 338 of 2012 between the review applicant, SPI Electricity Pty Limited, as applicant, and the Tribunal and the Australian Energy Regulator, as respondents.
THE TRIBUNAL:
1.Pursuant to s 71P(2)(b) of the National Electricity Law, remits the final determination made by the Australian Energy Regulator in respect of the review applicant in October 2010 (the final determination) to be remade by the Australian Energy Regulator upon a basis which:
(a)conforms to the requirements of the National Electricity Rules in respect of the Indexation of the review applicant’s Regulatory Asset Base for inflation in accordance with the Tribunal’s Reasons for Decision in Application by United Energy Distribution Pty Limited [2012] ACompT 1; (2012) 261 FLR 1 at 91–100 [338]–[386];
(b)but which, subject to:
(i)the variations effected by paragraph 2 of the Orders made by the Tribunal on 5 April 2012 in this review application, No ACT 7 of 2010, as a result of the Tribunal’s Reasons for Decision given in Application by United Energy Distribution Pty Limited [2012] ACompT 1; (2012) 261 FLR 1 and in Application by United…

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.

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Details

Case: [2013] ACompT 1
Decision Date: 31 January 2013

CaseChat Overview and Summary

SPI Electricity Pty Limited applied to the Australian Competition Tribunal (the Tribunal) for a review of a determination made by the Australian Energy Regulator (AER) in respect of SPI’s delivery of electricity distribution services. The Tribunal had previously determined an issue concerning the indexation of Jemena Electricity Networks' regulatory asset base for inflation. SPI argued that it should be granted the benefit of that decision even though it had not raised the issue before the Tribunal. The Tribunal initially rejected SPI’s application but the Full Court of the Federal Court of Australia set aside the Tribunal’s decision and ordered the Tribunal to reconsider its decision in accordance with certain directions.

The Tribunal was required to decide whether it should grant SPI the benefit of its earlier decision concerning the indexation of Jemena Electricity Networks' regulatory asset base for inflation and, if so, what orders should be made to give effect to that decision. The Tribunal also had to consider the submissions of the AER and SPI on the appropriate orders to be made.

The Tribunal concluded that it should grant SPI the benefit of its earlier decision concerning the indexation of Jemena Electricity Networks' regulatory asset base for inflation. It decided to make orders in accordance with the direction of the Full Court of the Federal Court of Australia, which required the Tribunal to remit the AER’s final determination in respect of SPI to be remade upon a basis which conformed to the National Electricity Rules in respect of the indexation of SPI’s regulatory asset base for inflation as interpreted by the Tribunal in its earlier decision, but which otherwise proceeded upon the final determination as published by the AER in October 2010. The Tribunal proposed to make orders substantially along the lines of the draft orders submitted by the parties.

The Tribunal made orders remitting the AER’s final determination in respect of SPI to be remade upon a basis which conformed to the National Electricity Rules in respect of the indexation of SPI’s regulatory asset base for inflation as interpreted by the Tribunal in its earlier decision, but which otherwise proceeded upon the final determination as published by the AER in October 2010.

Orders