Application by Services Sydney Pty Ltd [2005] ACompT 2

AUSTRALIAN COMPETITION TRIBUNAL

Application by Services Sydney Pty Ltd [2005] ACompT 2

PRACTICE AND PROCEDURE – intervention by decision maker refused at this stage

Trade Practices Act 1974 (Cth), ss 44G, 44H, 44K APPLICATION FOR REVIEW OF THE DEEMED DECISION BY THE PREMIER OF NEW SOUTH WALES DATED 2 FEBRUARY 2005 UNDER SECTION 44H(9) OF THE TRADE PRACTICES ACT 1974 (CTH) IN RELATION TO THE APPLICATION FOR DECLARATION OF SEWAGE INTERCONNECTION AND TRANSPORTATION SERVICES PROVIDED BY SYDNEY WATER BY SERVICES SYDNEY PTY LTD NO 1 OF 2005 GYLES J (DEPUTY PRESIDENT) 11 APRIL 2005 SYDNEY

IN THE AUSTRALIAN COMPETITION TRIBUNAL NO 1 OF 2005

RE: APPLICATION FOR REVIEW OF THE DEEMED DECISION BY THE PREMIER OF NEW SOUTH WALES DATED 2 FEBRUARY 2005 UNDER SECTION 44H(9) OF THE TRADE PRACTICES ACT 1974 (CTH) IN RELATION TO THE APPLICATION FOR DECLARATION OF SEWAGE INTERCONNECTION AND TRANSPORTATION SERVICES PROVIDED BY SYDNEY WATER

BY: SERVICES SYDNEY PTY LTD

APPLICANT

THE TRIBUNAL: GYLES J (DEPUTY PRESIDENT)

DATE: 6 APRIL 2005

PLACE: SYDNEY

THE TRIBUNAL ORDERS THAT: The application by the Premier of New South Wales to intervene be refused.

IN THE AUSTRALIAN COMPETITION TRIBUNAL NO 1 OF 2005

RE: APPLICATION FOR REVIEW OF THE DEEMED DECISION BY THE PREMIER OF NEW SOUTH WALES DATED 2 FEBRUARY 2005 UNDER SECTION 44H(9) OF THE TRADE PRACTICES ACT 1974 (CTH) IN RELATION TO THE APPLICATION FOR DECLARATION OF SEWAGE INTERCONNECTION AND TRANSPORTATION SERVICES PROVIDED BY SYDNEY WATER

BY: SERVICES SYDNEY PTY LTD

APPLICANT

THE TRIBUNAL: GYLES J (DEPUTY PRESIDENT)

DATE: 11 APRIL 2005

PLACE: SYDNEY

REASONS FOR DECISION 1 On 6 April 2005 I declined to accede to an application on behalf of the Premier of New South Wales (the Premier) for permission to intervene in this proceeding. I said reasons would be published later. These are those reasons. They will not be elaborate. I will not canvass all of the facts and arguments referred to in the evidence and the written and oral submissions. I will indicate the substance of the reasons for the decision. The application for intervention was opposed by the applicant in the proceeding, Services Sydney Pty Ltd (Services Sydney), but the power to grant it was conceded. 2 The substantive proceeding is pursuant to s 44K of the Trade Practices Act 1974 (Cth) (the Act) for review of a deemed decision by the Premier. The party directly affected by the application is Sydney Water Corporation (Sydney Water), a statutory corporation established by the Sydney Water Act 1994 (NSW) that owns and operates facilities for the transportation of sewage from premises in the greater Sydney metropolitan area to sewage treatment and disposal facilities. 3 Sydney Services proposes to construct new sewage treatment facilities and seeks to interconnect with, and have access to, the Sydney Water sewage reticulation network for the purpose of transporting sewage from prospective customers connected to Sydney Water's sewage reticulation network to the proposed new facilities of Services Sydney. Services Sydney applied to the National Competition Council (NCC) for a recommendation under s 44G of the Act that an Interconnection Service and a Transportation Service be declared. The NCC recommended accordingly. The Premier, as the Designated Minister, had not published a decision under s 44H of the Act within 60 days after receiving the NCC recommendation and so was deemed to have decided not to declare the Services. That is the deemed decision to be reviewed. 4 Sydney Water will take an active part in the proceeding and is the natural contradictor. The Premier has a place in the statutory framework as the deemed decision maker but is not made a necessary party to the review by the statute. The presence of a natural contradictor relieves the need for the decision maker to play that role. The broad purposes for which the Premier seeks to intervene are put as follows: 'a. To explain to the Tribunal why it was that no decision was taken. The Premier believes that the reasons which led him not to accede to, or refuse, the application are likely to have a similar effect on the Tribunal. There are, in terms of the public interest test imposed by s 44H(4)(f), good reasons not to make any decision now;