Australian Competition & Consumer Commission v Australian Competition Tribunal (No 2) [2006] FCAFC 127

FEDERAL COURT OF AUSTRALIA

Australian Competition & Consumer Commission v Australian

Competition Tribunal (No 2) [2006] FCAFC 127

PRACTICE AND PROCEDURE – application to set aside and vary final orders – orders made setting aside decision of Tribunal – where only part of Tribunal decision was challenged on review – whether statement in reasons for judgment that exercise of discretion of primary decision maker was reasonable was too broad – scope of remitter to Tribunal.

Gas Pipelines Access (South Australia) Act 1997 (SA): Sch 1 s 39(2)(a) Federal Court Rules: O 35 r 7(1) Application by Epic Energy South Australia Pty Ltd (2004) ATPR 41‑977, discussed Australian Competition & Consumer Commission v Australian Competition Tribunal [2006] FCAFC 83, varied AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v AUSTRALIAN COMPETITION TRIBUNAL and EAST AUSTRALIAN PIPELINE LIMITED NSD 1191 of 2004 FRENCH, GOLDBERG AND FINKELSTEIN JJ 18 AUGUST 2006 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1191 of 2004

BETWEEN: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION

Applicant

AND: AUSTRALIAN COMPETITION TRIBUNAL

First Respondent

EAST AUSTRALIAN PIPELINE LIMITED

Second Respondent

JUDGES: FRENCH, GOLDBERG & FINKELSTEIN JJ

DATE OF ORDER: 18 AUGUST 2006

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT:

1. Paragraph 1 of the order of the Court made on 2 June 2006 is revoked. 2. Paragraph 1 of the order of the Australian Competition Tribunal made on 19 May 2005 is varied in the following respects: (a) subparagraph (a) thereof is set aside; (b) subparagraph (c) thereof is set aside to the extent that it proceeds on the basis that the life of 60 years of the Moomba to Sydney Pipeline System between Moomba and Wilton is used as reference to and a proportion of the Initial Capital Base of $834.66 million (July 2003 dollars) for the Moomba to Sydney Pipeline System. 3. Paragraphs 2 and 3 of the order of the Australian Competition Tribunal made on 19 May 2005 are set aside. 4. The matter be remitted to the Australian Competition Tribunal for reconsideration by it according to law. 5. The second respondent is to pay the applicant's costs of the application. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules IN THE FEDERAL COURT OF AUSTRALIA