NT Power Generation Pty Ltd v Power & Water Authority [2001] FCA 334

FEDERAL COURT OF AUSTRALIA

NT Power Generation Pty Ltd v Power & Water Authority [2001] FCA 334 TRADE PRACTICES – alleged misuse of market power contrary to s 46 Trade Practices Act 1974 (Cth) ("Trade Practices Act") – statutory authority responsible for generation reticulation and supply of electricity in Northern Territory – whether Trade Practices Act before enactment of s 2B by Competition Policy Reform Act 1995 (Cth) ("the Reform Act") bound that statutory authority. TRADE PRACTICES - alleged misuse of market power contrary to s 46 of Trade Practices Act – statutory authority owner of electricity infrastructure – statutory authority licensed third party planning to sell electricity into particular market – access to infrastructure of statutory authority necessary to be able to sell electricity into that market – whether decision of statutory authority to refuse access to its infrastructure is a refusal to grant a licence within s 2C(1)(b) of Trade Practices Act – whether decision of statutory authority to refuse access to its infrastructure is in the course of carrying on a business. TRADE PRACTICES - alleged misuse of market power contrary to s 46 of Trade Practices Act – corporate entity wholly owned subsidiary of statutory authority – corporate entity formed as vehicle to participate in transaction involving establishment of substantial gas pipeline from gas field to principal place of operations of statutory authority – secured supply of gas necessary for operations of statutory authority in supplying electricity – contract with gas suppliers provided corporate entity with right of pre-emption in respect of gas offered to be sold to any third party – whether Trade Practices Act before enactment of s 2B by the Reform Act bound that corporate entity – whether that corporate entity was an emanation of Crown in right of Northern Territory – whether that corporate entity entitled to derivative Crown immunity – whether s 89(2) of Reform Act operates to preserve derivative Crown immunity in respect of the contractual right of pre-emption notwithstanding s 2B of Trade Practices Act. TRADE PRACTICES – alleged misuse of market power contrary to s 46 Trade Practices Act – statutory authority responsible for generation reticulation and supply of electricity in Northern Territory – statutory authority supplier of electricity to consumers in Northern Territory – statutory authority owner of electricity infrastructure needed to supply electricity – third party licensed to sell electricity to consumers in Northern Territory but refused access to electricity infrastructure to do so – whether statutory authority had substantial degree of power in market – consideration of market to supply of electricity to consumers in Northern Territory – consideration of market or markets to supply infrastructure services in Northern Territory – temporal dimension of market – whether intention of Northern Territory Government to establish access regime under Pt IIIA Trade Practices Act for access to electricity infrastructure relevant to market power of statutory authority. TRADE PRACTICES – alleged misuse of market power contrary to s 46 Trade Practices Act – statutory authority responsible for generation reticulation and supply of electricity in Northern Territory – statutory authority supplier of electricity to consumers in Northern Territory – statutory authority owner of electricity infrastructure needed to supply electricity – third party licensed to sell electricity to consumers in Northern Territory but refused access to electricity infrastructure to do so – statutory authority directed by Minister to refuse access while consideration given to reform of statutory authority and to formulation and implementation of access regime – whether refusal of access amounts to statutory authority taking advantage of substantial degree of power in market. TRADE PRACTICES – alleged misuse of market power contrary to s 46 Trade Practices Act – statutory authority responsible for generation reticulation and supply of electricity in Northern Territory – statutory authority supplier of electricity to consumers in Northern Territory – statutory authority owner of electricity infrastructure needed to supply electricity – third party licensed to sell electricity to consumers in Northern Territory but refused access to electricity infrastructure to do so – statutory authority and Northern Territory Government decision to refuse access so as to obtain time to formulate and implement access regime – belief that anticipated access regime would produce "more effective" competition than granting access to third party by negotiation – awareness that statutory authority could not compete effectively with third party in market to supply electricity to consumers in Northern Territory in short term – period whilst access regime formulated and implemented also needed to ensure statutory authority competitive when access regime introduced and to secure "level playing field" – whether s 46 prohibits exercise of substantial degree of power in market to refuse access to infrastructure until more effective competition able to be introduced – whether purpose of statutory authority in exercise of substantial degree of power in a market for preventing third party from entering a market or for deterring or preventing third party from engaging in competitive conduct in a market. CONTRACT – implied terms – grant under statute of licence to generate and sell electricity – grantor statutory authority – licensor owner of electricity infrastructure – access to licensor infrastructure necessary to sell electricity into principal market of licensed area – licensor also seller of electricity – whether terms regarding access may be implied into licence to give it commercial efficacy when licence granted under statute. CONTRACT – implied terms – written document contains "whole agreement" clause – no application to rectify written document – whether terms may be implied into written document. CONTRACT – implied terms – grant under statute of licence to generate and sell electricity – licensor owner of electricity infrastructure – access to licensor's infrastructure necessary to sell electricity into principal market of licensed area – licensor also seller of electricity into that market – licensor and licensee aware of desirability of licensee being given access to licensor's infrastructure – whether term implied into licence that licensor would give licensee access to its infrastructure – whether terms implied into licence that licensor would do all things necessary to give licensee benefits of licence or would deal fairly and in good faith with regard to performance and implementation of licence. A New Tax System (Trade Practices) Amendment Act 1999 (Cth) Competition Policy Reform Act 1995 (Cth) s 89 Northern Territory (Self-Government) Act 1978 (Cth) Trade Practices Amendment (Telecommunications) Act 1997 (Cth) Trade Practices Act 1974 (Cth) ss 2A, 2B, 2C, 4(1), 4F, 44M, 44V, 46, 82, 87, 150C, 150G Competition Policy Reform (Northern Territory) Act 1996 (NT) ss 5, 10, 13, 15, 41 Electricity Networks (Third Party Access) Act 2000 (NT) Electricity Reform Act 2000 (NT) s 7 Power and Water Authority Act 1987 (NT) ss 4, 9, 10, 14, 14(3A), 14 (3B), 15, 16, 17 Power and Water Authority Amendment Act 1998 (NT) Power and Water Authority Amendment Act 2000 (NT) Public Sector Employment and Management Act 1993 (NT) s 17 and s 22(1) Public Service Act (NT) The Electricity Act 1978 (NT) ss 3, 14, 15, 25, 27, 29, 30 Utilities Commission Act 2000 (NT) Water Supply and Sewerage Act 1983 (NT)