Services) (No 6) - [2010] ACompT 14

AUSTRALIAN COMPETITION TRIBUNAL
Application by Ergon Energy Corporation Limited (Street Lighting Services) (No 6) [2010] ACompT 14

Citation: Application by Ergon Energy Corporation Limited (Street Lighting Services) (No 6) [2010] ACompT 14

Review from: Australian Energy Regulator

Parties: ERGON ENERGY CORPORATION LIMITED
(ACN 087 646 062)

File number: 3 of 2010

Members: MIDDLETON J (DEPUTY PRESIDENT),
MR R DAVEY AND MR R SHOGREN

Date of delivery of reasons: 24 December 2010

Date of hearing: 15, 16, 17, 19 and 22 November 2010

Place: Melbourne

Category: No catchwords

Number of paragraphs: 47

Counsel for Ergon Energy Corporation Limited: Mr P O’Shea SC with Mr Bradley

Solicitor for Ergon Energy Corporation Limited: Minter Ellison Lawyers

Counsel for Australian Energy Regulator: Mr P Hanks QC with Mr Gray, Mr T Clarke and
Mr L Merrick

Solicitor for Australian Energy Regulator: Corrs Chambers Westgarth

IN THE AUSTRALIAN COMPETITION TRIBUNAL

FILE NO 3 of 2010

RE:
APPLICATION UNDER SECTION 71B OF THE NATIONAL ELECTRICITY LAW FOR A REVIEW OF A DISTRIBUTION DETERMINATION MADE BY THE AUSTRALIAN ENERGY REGULATOR IN RELATION TO ERGON ENERGY CORPORATION LIMITED PURSUANT TO RULE 6.11.1 OF THE NATIONAL ELECTRICITY RULES

BY:
ERGON ENERGY CORPORATION LIMITED
(ACN 087 646 062)

MEMBERS:

MIDDLETON J (DEPUTY PRESIDENT),
MR R DAVEY AND MR R SHOGREN

DATE:

24 DECEMBER 2010

PLACE:

MELBOURNE

REASONS FOR DECISION: STREET LIGHTING SERVICES

These reasons deal with street lighting services. The expressions employed in these reasons are the same employed in earlier decisions the subject of the current review.
On 22 November 2010, the Tribunal decided that due to the operation of s 71O(2) of the NEL Ergon Energy was precluded from raising a challenge to the AER’s decision to classify street lighting services as alternative control services (‘ACS’). Ergon Energy was, therefore, precluded from raising the claim set out in paragraph 13 of its Application for Review. The Tribunal now provides reasons for this decision.
By paragraph 13 of its Application, Ergon Energy claimed that the decision of AER “… to classify street lighting as an alternative control service…” gives rise to grounds of review on each of the bases set out in s 71C(1)(a) – (d) of the NEL.
One of the constituent decisions the AER had to make as part of its distribution determination was a decision on the classification of services to be provided by Ergon Energy during the regulatory control period as standard control services (‘SCS’) or ACS – see cl 6.12.1(1) of the Rules.
Among the services Ergon Energy provides are services in relation to street lighting, ie, the illumination of public roads and carriageways by electrically powered light fittings.
In the final determination made by the AER in May 2010, the AER decided to classify street lighting services provided by Ergon Energy as ACS.
Ergon Energy argues that the AER’s finding that it could subject street lighting services to its economic regulation under the Rules was in error because street lighting is not a distribution service.
The principal question which would have fallen for…

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

Case: [2010] ACompT 14
Decision Date: 24 December 2010

CaseChat Overview and Summary

Ergon Energy Corporation Limited applied to the Australian Competition Tribunal (the "Tribunal") for a review of a decision of the Australian Energy Regulator (the "AER") that street lighting services provided by Ergon Energy be classified as alternative control services. The Tribunal was required to decide whether the AER's decision was reviewable under section 71B of the National Electricity Law (the "NEL"). The principal issue was whether the word "submissions" in section 71O(2) of the NEL referred to any submissions made chronologically prior to the reviewable regulatory decision or whether it referred to submissions made in the course of the iterative process leading to the making of the reviewable regulatory decision. The Tribunal decided that the latter was the correct interpretation. Ergon Energy had not challenged the classification of its street lighting services in its submissions to the AER during the process leading up to the making of the reviewable regulatory decision. The Tribunal held that it was precluded from reviewing the AER's decision on the basis that it was not raised in submissions to the AER before the reviewable regulatory decision was made. The Tribunal ordered that the parties confer and provide minutes of the appropriate determination to be made in light of the above reasons no later than 4:00pm on Monday 31 January 2011.

Orders