FEDERAL COURT OF AUSTRALIA Australian Energy Regulator v Australian Competition Tribunal [2016] FCAFC 144 File numbers: NSD 415 of 2016 NSD 416 of 2016 NSD 418 of 2016 NSD 419 of 2016 NSD 420 of 2016 Judges: BESANKO, YATES AND ROBERTSON JJ Date of judgment: 17 October 2016 Catchwords: PRACTICE AND PROCEDURE – applications for judicial review of decisions of the Australian Competition Tribunal – applications to intervene by the Commonwealth Minister for the Environment and Energy (the Minister) and by the Public Interest Advocacy Centre Ltd (PIAC) – orders made, until further order, limiting the Minister and PIAC to their respective written submissions – no order for costs of the interventions Legislation: Administrative Decisions (Judicial Review) Act 1977 (Cth) Federal Court Rules 2011 (Cth) r 9.12 Date of hearing: Determined on the papers Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 24 Counsel for the Applicant: Mr S Lloyd SC with Mr MH O'Bryan QC, Mr S Balafoutis, Mr J Arnott and Ms T Phillips Solicitor for the Applicant: Corrs Chambers Westgarth Solicitor for the First Respondent: The First Respondent submitted save as to costs Counsel for the Second Respondent in NSD415/2016, NSD416/2016 and NSD418/2016: Mr CA Moore SC with Ms K Richardson SC, Mr A Hochroth and Ms C Dermody Solicitor for the Second Respondents in NSD415/2016, NSD416/2016 and NSD418/2016: Herbert Smith Freehills Counsel for the Second Respondents in NSD419/2016: Mr N Young QC with Mr AJ McClelland QC and Mr M Borsky Solicitor for the Second Respondent in NSD419/2016: DLA Piper Australia Counsel for the Second Respondents in NSD420/2016: Mr P Gray SC with Mr L Merrick Solicitor for the Second Respondent in NSD420/2016: Gilbert + Tobin Lawyers Counsel for the First Intervener: Mr T Howe QC with Mr B Lim Solicitor for the First Intervener: Australian Government Solicitor Counsel for the Second Intervener in NSD415/2016, NSD416/2016 and NSD418/2016: Mr S Horgan QC with Mr T Clarke Solicitor for the Second Intervener NSD415/2016, NSD416/2016 and NSD418/2016: Public Interest Advocacy Centre Ltd ORDERS NSD 415 of 2016 NSD 416 of 2016 NSD 418 of 2016 NSD 419 of 2016 NSD 420 of 2016 BETWEEN: AUSTRALIAN ENERGY REGULATOR Applicant AND: AUSTRALIAN COMPETITION TRIBUNAL (and others named in the Schedule) First Respondent MINISTER FOR ENVIRONMENT AND ENERGY First Intervener PUBLIC INTEREST ADVOCACY CENTRE LTD Second Intervener JUDGES: BESANKO, YATES AND ROBERTSON JJ DATE OF ORDER: 17 OCTOBER 2016 THE COURT ORDERS THAT: 1. On the application of the Minister for the Environment and Energy to intervene: Until further order, (a) Pursuant to r 9.12(2) of the Federal Court Rules 2011 (Cth), the Minister have leave to intervene in each of the applications, that leave being limited to the making of the written submissions on construction filed by him on 30 September 2016. (b) There be no order for costs in respect of the Minister's application to intervene or his intervention. 2. On the application of the Public Interest Advocacy Centre Ltd (PIAC) to intervene: Until further order, (a) Pursuant to r 9.12(2) of the Federal Court Rules 2011 (Cth), PIAC have leave to intervene in applications NSD 415/2016, NSD 416/2016 and NSD418/2016 that leave being limited to the making of the written submissions filed by it on 30 September 2016. (b) There be no order for costs in respect of PIAC's application to intervene or its intervention. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT THE COURT: 1 These proceedings are applications for judicial review of decisions of the Australian Competition Tribunal (the Tribunal). They are brought under the Administrative Decisions (Judicial Review) Act 1977 (Cth). The original jurisdiction of this Court is being exercised by a Full Court. 2 By an interlocutory application filed on 1 August 2016 the Commonwealth Minister for the Environment and Energy (the Minister) sought leave to intervene in the applications "to make written and oral submissions relating to the proper construction of the National Electricity Law and the National Electricity Rules." As will appear, the Minister's present application is to intervene only to make written submissions. 3 The application of the Minister was supported by an affidavit of Emily Jane Kennedy affirmed 1 August 2016. 4 On 2 June 2016, the Court directed that if the Minister applied to intervene, by 30 September 2016 the Minister file any written submissions he would make if leave to intervene were granted. The Court also directed that, if such written submissions were filed, by 7 October 2016 the Australian Energy Regulator, the applicant, and the second respondents were to indicate to each other and to the Minister their short responses to such written submissions. Written submissions were filed accordingly. 5 The Minister's intervention was not opposed by the Australian Energy Regulator. Neither was it opposed by the second respondents in each proceeding. The second respondents did however submit that the Court ought to limit the Minister's involvement to providing his written submissions. The second respondents also took issue with the Minister's submissions about the construction of s 71P of the National Electricity Law and s 259 of the National Gas Law. 6 As to costs, the Minister does not seek an order for cost in relation to his proposed intervention and submits that none should be made against him. 7 We note that the Minister does not seek to be heard on matters other than the construction of applicable provisions and does not seek to be heard on whether the Tribunal erred in the application of the National Electricity Law and National Gas Law to the factual material before it. 8 We propose to grant the Minister leave to intervene under r 9.12(2) of the Federal Court Rules 2011 (Cth) on the basis that the Minister's contribution "will be useful and different from the contribution" of the parties and the intervention will not unreasonably interfere with the ability of the parties to conduct the proceedings as the parties wish. We are also satisfied that the Minister has a sufficient interest in the subject matter of the proceeding. 9 As presently advised we would limit the Minister to the written submissions filed with the Court on 30 September 2016 pursuant to the direction of the Court. We would not however shut out the Minister from seeking leave to make oral submissions if fresh matters arise in the course of the hearing of the applications, that hearing being listed for five to seven days commencing today. 10 As to costs, as matters presently stand, that is, subject to the making and outcome of any application by the Minister for leave to make oral submissions, we would make no order for costs in respect of the Minister's intervention. 11 On the Minister's application we propose to make the following orders: Until further order, 1. Pursuant to rule 9.12(2) of the Federal Court Rules 2011 (Cth), the Minister for Environment and Energy have leave to intervene in each of the applications, that leave being limited to the making of the written submissions on construction filed by him on 30 September 2016. 2. There be no order for costs in respect of the Minister's application to intervene or his intervention. 12 By an interlocutory application dated 25 May 2016 the Public Interest Advocacy Centre Ltd (PIAC) applied for leave to intervene in the proceedings to make oral and written submissions to the Court relating to: (a) the proper construction of relevant provisions of the National Electricity Law and the National Electricity Rules; (b) matters raised by the Applicant in paragraph 6 to 11 of its application regarding the Australian Competition Tribunal's decision with respect to forecast operating expenditure; and (c) matters raised by the Applicant in paragraphs 12 to 15 of its application regarding the Australian Competition Tribunal's decision with respect to the rate of return on debt. 13 PIAC also sought an order that the other parties to the proceedings may not obtain an order for costs against it. 14 PIAC's application was supported by an affidavit by Julia Andree Mansour affirmed 25 May 2016. 15 PIAC filed an outline of submissions in support of its application for leave to intervene. 16 On 2 June 2016 the Court directed that, by 30 September 2016, PIAC file any written submissions it would make if leave to intervene were granted. The Court also directed that by 7 October 2016 the Australian Energy Regulator, the applicant, and the second respondents were to indicate to each other and to the Minister their short responses to such written submissions. Written submissions were filed accordingly. 17 In its written submissions, PIAC limited its application to intervene to the three proceedings relating to Ausgrid, Endeavour Energy and Essential Energy, being matters numbered NSD 415/2016, NSD 416/2016 and NSD 418/2016. 18 The Australian Energy Regulator did not oppose PIAC's application for leave to intervene and, if leave were granted, supported PIAC's application with respect to costs. The Australian Energy Regulator in its written submissions joined issue with PIAC's contentions as to the 2013 amendments to the Australian Energy Regulator's and the Tribunal's determination-making powers but otherwise pointed out that the Tribunal decided that it was unnecessary to determine PIAC's grounds of review in relation to the benchmark comparison point and the post-benchmarking adjustments for immaterial operating environment factors: see [12(b)] and [12(c)] above. 19 In their written submissions, Ausgrid, Endeavour Energy and Essential Energy opposed PIAC's application for leave to intervene. Those entities submitted that the present proceedings were judicial review proceedings brought on specific grounds identified in the Australian Energy Regulator's applications. Those applications defined the scope of the issues that arose in the proceedings. PIAC had not itself brought any application for judicial review. 20 In relation to PIAC's specific submissions, on the question of construction Ausgrid, Endeavour Energy and Essential Energy submitted that the Tribunal did not accept the position propounded by PIAC on this topic and this part of the Tribunal's decision was not the subject of any ground of judicial review. Their submissions then went on to deal with PIAC's submissions regarding debt and PIAC's submissions regarding opex. In relation to those matters Ausgrid, Endeavour Energy and Essential Energy submitted that PIAC's submissions either made the same points already made by the Australian Energy Regulator or took issue with the Tribunal's decision that it was unnecessary to determine PIAC's grounds of review. 21 Ausgrid, Endeavour Energy and Essential Energy also submitted that PIAC should not be permitted to intervene on a costs protected basis. 22 We propose to grant PIAC leave to intervene under r 9.12(2) of the Federal Court Rules 2011 (Cth) on the basis that its contribution "will be useful and different" from the contribution of the parties" and the intervention will not unreasonably interfere with the ability of the parties to conduct the proceedings as the parties wish. We are also satisfied that PIAC, in seeking to promote consumers' interests, has a sufficient interest in the subject matter of the proceedings. We would add one qualification. We think it is too early for the Court to rule on whether some of PIAC's submissions travel beyond the limits of the matters properly raised by the applications before the Court. We defer ruling on that question until we have heard sufficient of the submissions on the applications to enable us to do so. In other words, the orders which the Court proposes to make will not foreclose the determination of that matter. 23 As presently advised we would limit PIAC to its written submissions. We would not however shut out PIAC from seeking leave to make oral submissions if fresh matters arise in the course of the hearing of the applications. As to costs, as matters presently stand, that is, subject to the making and outcome of any application by PIAC for leave to make oral submissions, we would make no order for costs in respect of its intervention. 24 On PIAC's application we propose to make the following orders: Until further order, 1. Pursuant to rule 9.12(2) of the Federal Court Rules 2011 (Cth), PIAC have leave to intervene in applications NSD 415/2016, NSD 416/2016 and NSD 418/2016, that leave being limited to the making of the written submissions filed by it on 30 September 2016. 2. There be no order for costs in respect of PIAC's application to intervene or its intervention. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Besanko, Yates and Robertson. Associate: Dated: 17 October 2016 SCHEDULE OF PARTIES NSD 415 of 2016 NSD 416 of 2016 NSD 418 of 2016 NSD 419 of 2016 NSD 420 of 2016 NSD 415/2016 Ausgrid Second Respondent: NSD 416/2016 Essential Energy Second Respondent: NSD 418/2016 Endeavour Energy Second Respondent: NSD 419/2016 ActewAGL Distribution Second Respondent: NSD 420/2016 Jemena Gas Networks (NSW) Ltd Second Respondent: