Duke Eastern Gas Pipeline Pty Ltd

The Australian Competition Tribunal was asked to consider an application by Duke Eastern Gas Pipeline Pty Ltd for a review of the Minister for Industry, Science and Resources' decision to cover the Eastern Gas Pipeline under the National Third Party Access Code for Natural Gas Pipeline Systems and the Gas Pipelines Access Law. The decision by the Minister was challenged by Duke, with DEI Eastern Gas Pipeline Pty Ltd and Duke Australia Operations Pty Ltd as applicants. The application was opposed by the National Competition Council, Australian Gas Light Company, and the Minister. The Tribunal's task was to determine whether the Minister's decision was legally sound and if there should be any costs orders made in relation to the proceedings.

The main legal issue was the scope and application of the Tribunal's discretion to make costs orders under Section 38(10) of the Gas Pipelines Access Law. Duke argued that the principles of inter partes litigation, where costs generally follow the event, should apply to the Tribunal's proceedings. However, the Tribunal noted that its proceedings were administrative in nature, focusing on broader questions of competition and market regulation rather than resolving specific disputes between parties. The Tribunal concluded that the principles of inter partes litigation were not necessarily applicable and that its discretion should be exercised sparingly to avoid discouraging participation in the review process.

The Tribunal examined the conduct of each party and concluded that none had acted inappropriately. The National Competition Council played a necessary role in assisting the Tribunal, and Australian Gas Light Company's involvement, while contributing to the length of the proceedings, was justified given its position in the industry. The Minister adopted a submitting role, which was not contested by any party. Therefore, the Tribunal decided that no costs orders should be made against any party.

In summary, the Tribunal found no grounds for making costs orders and dismissed Duke's application for such orders. The reasoning was based on the unique nature of the Tribunal's proceedings and the importance of encouraging broad participation without the threat of disproportionate costs.