Application by Services Sydney Pty Limited [2005] ACompT 7

AUSTRALIAN COMPETITION TRIBUNAL

Application by Services Sydney Pty Limited [2005] ACompT 7 TRADE PRACTICES – Part IIIA of the Trade Practices Act 1974 (Cth) – application pursuant to s 44K(2) – application for a review of a deemed decision not to declare certain services by the designated Minister, the Premier of New South Wales, under s 44H(9)– services described as 'interconnection services' and 'transportation services' provided by Sydney Water Corporation – jurisdiction of Tribunal to make a declaration – whether criteria in s 44H(4) satisfied – where a State Government has announced an intention to develop an effective access regime consistent with s 44G(3) – the meaning of 'access' for the purposes of s 44H(4)(a) and (f) – the meaning of 'market' for the purposes of s 44H(4)(a) – whether access to the service would promote competition in at least one market, other than in the market for interconnection and transportation services, or in the dependent markets being sewage collection services, sewage treatment services and recycled water, for the purposes of s 44H(4)(a) – whether access to Sydney Water's sewerage reticulation system would not be contrary to the public interest for the purposes of s 44H(4)(f) WORDS AND PHRASES – 'access', 'market', 'promote competition' Independent Pricing and Regulatory Tribunal Act 1992 (NSW), s 18(2) Independent Pricing and Regulatory Tribunal and other Legislation Amendment Act 2000 (NSW) Sydney Water Act 1994 (NSW), ss 10(2), 10(3), 12, 14, 21, 22, 35, 39, 49, 55, 56, 57, 91, 210 Pt 5, Pt 6 Div 7, Pt 7 Div 8 Trade Practices Act 1974 (Cth), ss 4E, 44B, 44F, 44F(1), 44H, 44H(2), 44H(4), 44H(4)(a)‑(f), 44H(9), 44J, 44K, 44K(2), 44K(4), 44K(5), 44K(8), 44L, 44N, 44V(3), 44X, 44ZZA, 46, Pt IIIA, Pt IV Australian Competition and Consumer Commission v Rural Press Ltd, (2003) 216 CLR 53;(2003) ATPR 41-965 cited Re Australian Union of Students (1997) 147 ALR 458; (1997) ATPR 41-573 cited Cambridge Credit Corporation Ltd v Parkes Developments Pty Ltd [1974] 2 NSWLR 590 cited Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297cited Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 considered Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 cited Queensland Wire Industries Pty Ltd v Broken Hill Proprietary Co. Ltd (1989) 167 CLR 177 cited Rail Access Corporation v NSW Minerals Council Ltd (1998) 87 FCR 517; (1998)ATPR 41‑663 cited Re Duke Eastern Gas Pipeline Pty Ltd (2001)ATPR 41-821considered Re Queensland Co-operative Milling Association Ltd (1976) 8 ALR 481; (1976) ATPR 40‑012applied Re Review of Freight Handling Services at Sydney International Airport (2000) ATPR 41‑754 considered Re Virgin Blue Airlines Pty Limited [2005] ACompT 5 considered Rural Press Ltd v Australian Competition and Consumer Commission (2002) 118 FCR 236; (2002)ATPR 41-883 cited Scurr v Brisbane City Council (No 5) (1973) 133 CLR 242 cited Universal Music Australia Pty Ltd v ACCC (2003) 131 FCR 529; (2003) ATPR 41-947 cited M Brunt, Market DefinitionIssues in Australian and New Zealand Trade Practices Litigation, (1990) 18 ABLR 86 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 CORPORATION BY SERVICES SYDNEY PTY LIMITED (ACN 084 481 103) NO 1 OF 2005 GYLES J (DEPUTY PRESIDENT), MR B KEANE, DR J WALKER 21 DECEMBER 2005 SYDNEY