SA Power Networks v Australian Competition Tribunal (No 2) [2018] FCAFC 3

FEDERAL COURT OF AUSTRALIA

SA Power Networks v Australian Competition Tribunal (No 2) [2018] FCAFC 3 Application from: Application by SA Power Networks [2016] ACompT 11

File number: NSD 2032 of 2016

Judges: BESANKO, YATES AND ROBERTSON JJ

Date of judgment: 18 January 2018

Catchwords: ADMINISTRATIVE LAW – consideration of an application for judicial review of a decision of the Australian Competition Tribunal to affirm a decision of the Australian Energy Regulator – whether the Tribunal erred in its construction of provisions of the National Electricity Rules relating to the determination of the cost of corporate income tax (gamma), return on debt and forecast labour cost escalation – nature and scope of review by the Tribunal – where the Tribunal did not misunderstand its function in concluding that the methodology for determining gamma was a matter for judgment by the AER – where procedural fairness accorded in relation to gamma – where the Tribunal did not proceed on an incorrect construction of r 6.5.2 of the NER in relation to its determination on the issue of return on debt – where there was no reviewable error in the Tribunal holding that the enterprise agreement was not a regulatory obligation or requirement – where it was open to the Tribunal to conclude that an enterprise agreement was not required to achieve the maintenance of the safety of the distribution system through the supply of standard control services.

Legislation: Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5 Fair Work Act 2009 (Cth) 50 Federal Court of Australia Act 1976 (Cth) s 20 National Electricity Law ss 2D, 7, 7A, 16, 28ZJ, 71B, 71C, 71O, 71P, 71R, 88B, 90 National Electricity Rules