BHP Petroleum Pty Ltd - [1999] ACompT 2

AUSTRALIAN COMPETITION TRIBUNAL
BHP Petroleum Pty Ltd [1999] ACompT 2
Gas Industry Act1994 (Vic): s 62PA
Trade Practices Act 1974 (Cth): s 45, s 51(1)(b), s 51(1C)(f), s 88(8), s 101
Pt IV

Gas Industry Act Amendment Act 1998: s 19
Broken Hill Proprietary Company Ltd v Trade Practices Tribunal (1980) 47 FLR 384
Matter No 8 of 1998
RE: APPLICATION FOR A REVIEW OF THE DETERMINATION OF THE AUSTRALIAN COMPETITION AND CONSUMER COMMISSION MADE ON 19 AUGUST 1998 GRANTING AUTHORISATION IN RELATION TO APPLICATION Nos A90646, A90647 AND A90648 (MARKET AND SYSTEM OPERATIONS RULES) BY BHP PETROLEUM PTY LTD and BHP PETROLEUM (BASS STRAIT) PTY LTD
GOLDBERG J, DR M MESSENGER & MS M STARRS
28 MAY 1999
MELBOURNE

IN THE AUSTRALIAN COMPETITION TRIBUNAL

No 8 of 1998

RE:
BY:

APPLICATION FOR A REVIEW OF THE DETERMINATION OF THE AUSTRALIAN COMPETITION AND CONSUMER COMMISSION MADE ON 19 AUGUST 1998 GRANTING AUTHORISATION IN RELATION TO APPLICATION Nos A90646, A90647 AND A90648 (MARKET AND SYSTEM OPERATIONS RULES)

BHP PETROLEUM PTY LTD and
BHP PETROLEUM (BASS STRAIT) PTY LTD

Applicants

THE TRIBUNAL:

GOLDBERG J, DR M MESSENGER & MS M STARRS

DATE:

28 MAY 1999

PLACE:

MELBOURNE

RULING
HIS HONOUR:

The Tribunal is satisfied that there is before it a matter which ought to be the subject of a decision by the Tribunal. Notwithstanding the provisions of s 62PA of the Gas Industry Act1994 (Vic) the Tribunal is satisfied it should proceed to hear the application by BHP Petroleum Pty Ltd and BHP Petroleum (Bass Strait) Pty Ltd to review the determination of the Australian Competition and Consumer Commission (“the Commission”) made on 19 August 1998, granting an authorisation in relation to the Market and System Operations Rules (“the Rules”) pursuant to applications lodged by Victorian Energy Network Corporation (“VENCorp”). The Rules were in fact made pursuant to s 48N of the Gas Industry Act on 2 February 1999 and set out procedures for wholesale spot sales of gas in Victoria.
The determination by the Commission granting the authorisation was made on 19 August 1998 in respect of three applications and comprised:
(a)an application for authorisation to make a contract or arrangement, or arrive at an understanding, where a provision of the proposed contract, arrangement or understanding would be, or might be, an exclusionary provision within the meaning of s 45 of the Trade Practices Act 1974 (Cth) (“the Act”) and to give effect to that provision (Form A);
(b)an application to make a contract or arrangement, or arrive at an understanding, a provision of which would have the purpose, or would have or might have the effect, of substantially lessening competition within the meaning of s 45 of the Act and to give effect to that provision (Form B);
(c)an application made under subs 88(8) of the Act an authorisation under that section to engage in conduct that constitutes or may constitute the practice of exclusive dealing (Form E).
The contract, arrangement or understanding described in Forms…

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

AGLC: BHP Petroleum Pty Ltd [1999] ACompT 2
Case: [1999] ACompT 2
Decision Date: 28 MAY 1999

CaseChat Overview and Summary

The Australian Competition Tribunal considered a case brought by BHP Petroleum Pty Ltd and BHP Petroleum (Bass Strait) Pty Ltd against the Australian Competition and Consumer Commission (ACCC). The applicants sought a review of the ACCC's determination to authorise Victorian Energy Network Corporation (VENCorp) to make certain market and system operations rules for the gas industry in Victoria. The applicants challenged the ACCC's decision, arguing it was not in compliance with the Trade Practices Act 1974 (Cth). The legal issues before the Tribunal were whether the Tribunal had jurisdiction to hear the application for review and if the authorisation granted by the ACCC was co-extensive with the authorisation granted by the Gas Industry Act Amendment Act 1998 (Vic).

The Tribunal found that it did have jurisdiction to hear the application for review as the review was a rehearing of the matter. Furthermore, the Tribunal concluded that the authorisation granted by the ACCC was not co-extensive with the authorisation granted by the Gas Industry Act Amendment Act 1998 (Vic). The authorisation under the Trade Practices Act 1974 (Cth) was broader and covered actions and conduct beyond the boundaries of Victoria, whereas the authorisation under the Gas Industry Act was limited to actions and conduct within Victoria. The Tribunal also noted that the authorisation under the Gas Industry Act could be repealed or nullified by regulations made under the Trade Practices Act, which was not the case for the authorisation granted by the ACCC.

In summary, the Tribunal ruled that there was a matter before it which ought to be the subject of a decision, and the authorisation granted by the ACCC was not co-extensive with the authorisation granted by the Gas Industry Act Amendment Act 1998 (Vic). The Tribunal granted the application for review and directed the hearing and determination of the application for review.

Orders