Re Epic Energy South Australia Pty Ltd

The Australian Competition and Consumer Commission (ACCC) sought judicial review of a decision by Epic Energy South Australia Pty Ltd (Epic) to draft and approve an Access Agreement, which was made under section 2.20(a) of the National Electricity Code (Code). The dispute arose from the scope and applicability of the review provisions in the Gas and Electricity (Access) Law (GPA Law). Specifically, the ACCC argued that Epic’s right to have reviewed the decision to draft and approve the Access Agreement was limited to an application for review under section 39(1) of the GPA Law, which governs specific reviews of certain decisions. The court was tasked with determining the scope and nature of the review rights available to Epic under the Code and the GPA Law, and whether the ACCC had standing to challenge Epic's decision under section 39(1) of the GPA Law.

The court examined the statutory framework governing the review of decisions related to drafting and approving access agreements. It noted that section 2.26 of the Code grants a right of review of decisions made under section 2.20(a) by the relevant regulator, which is to be conducted by the relevant appeals body. The court further explored the distinction between the general review provisions under section 38 of the GPA Law and the specific review provisions under section 39. Section 39 applies specifically to decisions to draft and approve access agreements, and limits the right to review to the Service Provider and certain persons who made submissions to the regulator. The court held that the specific review provision in section 39 negates the general review right under section 38, thereby excluding decisions under section 2.20(a) of the Code from the general review provisions.

The court concluded that the ACCC’s right to challenge the decision to draft and approve the Access Agreement was limited to an application for review under section 39(1) of the GPA Law. This was because the specific review provision in section 39 of the GPA Law was intended to exclude such decisions from the general review provisions of section 38, thereby confining the right of review to the Service Provider and those who made submissions to the regulator. The court found that the ACCC did not have standing to challenge the decision under section 39(1) of the GPA Law, as it was not a party that participated in the process leading to the decision. The court dismissed the ACCC’s application for review, confirming that the ACCC’s right to review the decision was limited to the specific provisions outlined in section 39 of the GPA Law.