Duke Eastern Gas Pipeline Pty Ltd - [2001] ACompT 3

AUSTRALIAN COMPETITION TRIBUNAL
Duke Eastern Gas Pipeline Pty Ltd [2001] ACompT 3
Hughes v Western Australian Cricket Association (Inc) (1986) ATPR 40-748 referred to
Oshlack v Richmond River Council (1998) 193 CLR 72 referred to
R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13 referred to
MGV Pty Ltd v Phonographic Performance Co of Australia Ltd [2000] ACopyT 8 referred to
Damon v Commissioner of Land Tax(Vic) (1985) 1 VAR 130 referred to
Re Mafodda and Estate Agents Registration Board (1986) 1 VAR 311 referred to
Re Queensland Co-Operative Milling Association (1976) 25 FLR 169 referred to
R v Australian Broadcasting Tribunal; ex parte 2HD (1980) 144 CLR 45 referred to
Trade Practices Act 1974 (Cth)
National Third Party Access Code for Natural Gas Pipeline Systems Cl 1.3, 1.4, 1.5, 1.6, 1.13, 1.14, 1.19
Gas Pipelines Access Law s38(10)
MATTER NO 3 OF 2000
RE: APPLICATION UNDER SECTION 38(1) OF THE GAS PIPELINES ACCESS LAW FOR REVIEW OF THE DECISION BY THE MINISTER FOR INDUSTRY, SCIENCE AND RESOURCES PUBLISHED ON 16 OCTOBER 2000 TO COVER THE EASTERN GAS PIPELINE PURSUANT TO THE PROVISIONS OF THE NATIONAL THIRD PARTY ACCESS CODE FOR NATURAL GAS PIPELINE SYSTEMS AND THE GAS PIPELINES ACCESS LAW
JUSTICE HELY, DR M J MESSENGER & MISS M M STARRS
4 JULY 2001
SYDNEY

IN THE AUSTRALIAN COMPETITION TRIBUNAL

MATTER NO 3 OF 2000

RE:

APPLICATION UNDER SECTION 38(1) OF THE GAS PIPELINES ACCESS LAW FOR REVIEW OF THE DECISION BY THE MINISTER FOR INDUSTRY, SCIENCE AND RESOURCES PUBLISHED ON 16 OCTOBER 2000 TO COVER THE EASTERN GAS PIPELINE PURSUANT TO THE PROVISIONS OF THE NATIONAL THIRD PARTY ACCESS CODE FOR NATURAL GAS PIPELINE SYSTEMS AND THE GAS PIPELINES ACCESS LAW

BY:

DUKE EASTERN GAS PIPELINE PTY LTD
DEI EASTERN GAS PIPELINE PTY LTD
DUKE AUSTRALIA OPERATIONS PTY LTD

MEMBERS:

JUSTICE HELY, DR M J MESSENGER & MISS M M STARRS

DATE OF DETERMINATION:

4 JULY 2001

WHERE MADE:

SYDNEY

THE TRIBUNAL ORDERS THAT:
1. There be no order as to the costs of the proceedings.

IN THE AUSTRALIAN COMPETITION TRIBUNAL

MATTER NO 3 OF 2000

RE:

APPLICATION UNDER SECTION 38(1) OF THE GAS PIPELINES ACCESS LAW FOR REVIEW OF THE DECISION BY THE MINISTER FOR INDUSTRY, SCIENCE AND RESOURCES PUBLISHED ON 16 OCTOBER 2000 TO COVER THE EASTERN GAS PIPELINE PURSUANT TO THE PROVISIONS OF THE NATIONAL THIRD PARTY ACCESS CODE FOR NATURAL GAS PIPELINE SYSTEMS AND THE GAS PIPELINES ACCESS LAW

BY:

DUKE EASTERN GAS PIPELINE PTY LTD
DEI EASTERN GAS PIPELINE PTY LTD
DUKE AUSTRALIA OPERATIONS PTY LTD

MEMBERS:

JUSTICE HELY, DR M J MESSENGER & MISS M M STARRS

DATE:

4 JULY 2001

PLACE:

SYDNEY

REASONS FOR DECISION
THE TRIBUNAL:

Duke’s application to the Tribunal for review of the Minister’s decision did not seek an order for costs. Nor did Duke put any submissions on the question of costs at the hearing. AGL raised the costs question at the hearing inasmuch as it submitted there should be no order…

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 Duke Eastern Gas Pipeline Pty Ltd

Details

AGLC: Duke Eastern Gas Pipeline Pty Ltd [2001] ACompT 3
Case: [2001] ACompT 3
Decision Date: 4 JULY 2001

CaseChat Overview and Summary

Duke Eastern Gas Pipeline Pty Ltd applied to the Australian Competition Tribunal for a review of the Minister for Industry, Science and Resources' decision to cover the Eastern Gas Pipeline under the provisions of the National Third Party Access Code for Natural Gas Pipeline Systems and the Gas Pipelines Access Law. The Tribunal was required to decide whether there should be an order as to the costs of the proceedings. The Tribunal considered the power under s 38(10) of the Law, which provides that the relevant appeals body may make such orders (if any) as to costs in respect of a proceeding as it thinks fit. Duke contended that this is a broad discretionary power which should be exercised in accordance with principles established in relation to inter partes litigation. However, the Tribunal disagreed, finding that the proceedings before the Tribunal are not, either in substance or in form, inter partes litigation. The Tribunal considered that the costs discretion should be exercised having regard to the subject matter, scope and purpose of the statute. The Tribunal found that there were no circumstances which justified the making of an order for costs, and accordingly there will be no order as to the costs of the proceedings.

The Australian Competition Tribunal found that there were no circumstances which justified the making of an order for costs in the proceedings brought by Duke Eastern Gas Pipeline Pty Ltd. The Tribunal considered that the costs discretion should be exercised having regard to the subject matter, scope and purpose of the statute. The Tribunal found that there were no circumstances which justified the making of an order for costs, and accordingly there will be no order as to the costs of the proceedings. The Tribunal found that the parties played proper roles in the proceedings, and that there was no inappropriate behaviour which warranted a costs order. The Tribunal also found that the Minister's role in the proceedings was appropriate. The Tribunal concluded that the making of a costs order would not be conducive to the effective discharge by the Tribunal of its statutory functions.

Orders