Re: Application by ElectraNet Pty Limited No 2 - [2008] ACompT 2

AUSTRALIAN COMPETITION TRIBUNAL
Re: Application by ElectraNet Pty Limited No 2 [2008] ACompT 2
RE:APPLICATION UNDER SECTION 71B OF THE NATIONAL ELECTRICITY LAW FOR A REVIEW OF A TRANSMISSION DETERMINATION MADE BY THE AUSTRALIAN ENERGY REGULATOR IN RELATION TO ELECTRANET PTY LIMITED PURSUANT TO CLAUSE 6A.13.1 OF THE NATIONAL ELECTRICITY RULES

BY: ELECTRANET PTY LIMITED
FILE No 1 of 2008
JUSTICE GOLDBERG
28 JULY 2008
MELBOURNE

AUSTRALIAN COMPETITION TRIBUNAL

FILE No 1 of 2008

RE:

APPLICATION UNDER SECTION 71B OF THE NATIONAL ELECTRICITY LAW FOR A REVIEW OF A TRANSMISSION DETERMINATION MADE BY THE AUSTRALIAN ENERGY REGULATOR IN RELATION TO ELECTRANET PTY LIMITED PURSUANT TO CLAUSE 6A.13.1 OF THE NATIONAL ELECTRICITY RULES

BY: ELECTRANET PTY LIMITED

Applicant

MEMBER:

JUSTICE GOLDBERG (PRESIDENT)

DATE OF DIRECTION:

28 JULY 2008

WHERE MADE:

MELBOURNE

THE TRIBUNAL ORDERS AND DIRECTS THAT:
1.Subject to paragraph 2 of this Order, leave is granted to Energy Consumers Coalition of South Australia to intervene in this review.

2.Energy Consumers Coalition of South Australia is limited to presenting evidence and documents and making submissions in relation to:
(a)its contention that $52.8 million or thereabouts should not be included in ElectraNet Pty Limited’s opening regulatory asset base as at 1 July 2008 to the extent to which evidence and documents are not presented and submissions are not made by the Australian Energy Regulator in relation to that issue;
(b)the matters raised in Annexure “C” to the affidavit of David Headberry filed and sworn on 23 July 2008 in relation to its contention that $29.1 million or thereabouts should not be included in ElectraNet Pty Limited’s opening regulatory asset base as at 1 July 2008 in respect of easement compensation costs.

3.Any evidence, documents and submissions upon which Energy Consumers Coalition of South Australia wishes to rely be filed and served by 4.00pm on 1 August 2008.
4.The applicant file and serve on Energy Consumers Coalition of South Australia and the Australian Energy Regulator an outline of submissions in reply to Energy Consumers Coalition of South Australia by 4.00pm on 8 August 2008.

AUSTRALIAN COMPETITION TRIBUNAL

FILE No 1 of 2008

RE:

APPLICATION UNDER SECTION 71B OF THE NATIONAL ELECTRICITY LAW FOR A REVIEW OF A TRANSMISSION DETERMINATION MADE BY THE AUSTRALIAN ENERGY REGULATOR IN RELATION TO ELECTRANET PTY LIMITED PURSUANT TO CLAUSE 6A.13.1 OF THE NATIONAL ELECTRICITY RULES

BY: ELECTRANET PTY LIMITED

Applicant

MEMBER:

JUSTICE GOLDBERG (PRESIDENT)

DATE:

28 JULY 2008

PLACE:

MELBOURNE

REASONS FOR DECISION

On 23 June 2008 I directed that the Australian Energy Regulator (“AER”) by 27 June 2008 notify any party who it considered may wish to intervene in the proceeding that any application for leave to intervene or notice that it intended to intervene be filed and served by 11 July 2008.
On 8 July 2008 the Energy Consumers Coalition of South Australia (“ECCSA”) filed an application with the Tribunal seeking the granting of leave for it to intervene in the proceeding.
ECCSA is an unincorporated association representing the interests of major electricity users in South…

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 Re: Application by ElectraNet Pty Limited No 2

Details

AGLC: Re: Application by ElectraNet Pty Limited No 2 [2008] ACompT 2
Case: [2008] ACompT 2
Decision Date: 28 JULY 2008

CaseChat Overview and Summary

In this matter, the applicant, ElectraNet Pty Limited, filed an application for leave to intervene in a review of a transmission determination made by the Australian Energy Regulator (AER). The applicant sought to intervene to argue against the inclusion of certain easement costs in ElectraNet's regulatory asset base (RAB). The Energy Consumers Coalition of South Australia (ECCSA) filed an application to intervene in the proceeding. ECCSA is an unincorporated association that represents the interests of major electricity users in South Australia and wishes to argue that the AER's decision to include certain easement costs in ElectraNet's RAB was incorrect.

The legal issues before the court were whether ECCSA was entitled to intervene in the proceeding and, if so, under what terms. Specifically, the court had to determine if ECCSA raised a matter not raised by the AER or ElectraNet, if its evidence and submissions were likely to be better presented by it, and if its interests were affected by the AER's decision.

The court found that ECCSA was entitled to intervene on limited terms. ECCSA raised a matter not raised by the AER or ElectraNet, namely that the AER should not have included easement compensation costs of $29.1 million in ElectraNet's RAB. Additionally, ECCSA's members' interests were affected by the decision, as an increase in ElectraNet's RAB would result in an increase in allowable revenue and, consequently, higher charges for electricity consumers. The court granted ECCSA leave to intervene, limiting its participation to presenting evidence and documents and making submissions on the contention that $29.1 million should not be included in ElectraNet's RAB for easement compensation costs and that $52.8 million should not be included for easement acquisition or transaction costs, to the extent that such evidence and submissions are not already presented by the AER.

The court ordered that ECCSA be granted leave to intervene in the review, limited to presenting evidence and documents and making submissions on the specified issues. ECCSA was to file and serve any evidence, documents, and submissions by a specified deadline, and ElectraNet was to file and serve an outline of submissions in reply by another deadline.

Orders