AUSTRALIAN COMPETITION TRIBUNAL Application by Energy Users' Association of Australia [2009] ACompT 3 RE: APPLICATION UNDER SECTION 71B OF THE NATIONAL ELECTRICITY LAW FOR A REVIEW OF A TRANSMISSION DETERMINATION MADE BY THE AUSTRALIAN ENERGY REGULATOR IN RELATION TO TRANSEND PURSUANT TO CLAUSE 6A.13.1 OF THE NATIONAL ELECTRICITY RULES BY: ENERGY USERS' ASSOCIATION OF AUSTRALIA Applicant JUSTICE MIDDLETON (DEPUTY PRESIDENT), MR R DAVEY AND MR G LATTA 18 JUNE 2009 MELBOURNE IN THE AUSTRALIAN COMPETITION TRIBUNAL File No 7 of 2009 RE: APPLICATION UNDER SECTION 71B OF THE NATIONAL ELECTRICITY LAW FOR A REVIEW OF A TRANSMISSION DETERMINATION MADE BY THE AUSTRALIAN ENERGY REGULATOR IN RELATION TO TRANSEND PURSUANT TO CLAUSE 6A.13.1 OF THE NATIONAL ELECTRICITY RULES By: ENERGY USERS' ASSOCIATION OF AUSTRALIA Applicant THE TRIBUNAL: JUSTICE MIDDLETON (DEPUTY PRESIDENT), MR R DAVEY AND MR G LATTA DATE OF DECISION: 18 JUNE 2009 WHERE MADE: MELBOURNE THE TRIBUNAL DECIDES THAT: 1. The application by the Energy Users' Association of Australia for leave to apply under s 71B of the National Electricity Law be refused. IN THE AUSTRALIAN COMPETITION TRIBUNAL File No 8 of 2009 RE: APPLICATION UNDER SECTION 71B OF THE NATIONAL ELECTRICITY LAW FOR A REVIEW OF A TRANSMISSION DETERMINATION MADE BY THE AUSTRALIAN ENERGY REGULATOR IN RELATION TO TRANGRID PURSUANT TO CLAUSE 6A.13.1 OF THE NATIONAL ELECTRICITY RULES By: ENERGY USERS' ASSOCIATION OF AUSTRALIA Applicant THE TRIBUNAL: JUSTICE MIDDLETON (DEPUTY PRESIDENT), MR R DAVEY AND MR G LATTA DATE OF DECISION: 18 JUNE 2009 WHERE MADE: MELBOURNE THE TRIBUNAL DECIDES THAT: 1. The application by the Energy Users' Association of Australia for leave to apply under s 71B of the National Electricity Law be refused. IN THE AUSTRALIAN COMPETITION TRIBUNAL File No 7 of 2009 RE: APPLICATION UNDER SECTION 71B OF THE NATIONAL ELECTRICITY LAW FOR A REVIEW OF A TRANSMISSION DETERMINATION MADE BY THE AUSTRALIAN ENERGY REGULATOR IN RELATION TO TRANSEND PURSUANT TO CLAUSE 6A.13.1 OF THE NATIONAL ELECTRICITY RULES BY: ENERGY USERS' ASSOCIATION OF AUSTRALIA Applicant File No 8 of 2009 RE: APPLICATION UNDER SECTION 71B OF THE NATIONAL ELECTRICITY LAW FOR A REVIEW OF A TRANSMISSION DETERMINATION MADE BY THE AUSTRALIAN ENERGY REGULATOR IN RELATION TO TRANGRID PURSUANT TO CLAUSE 6A.13.1 OF THE NATIONAL ELECTRICITY RULES By: ENERGY USERS' ASSOCIATION OF AUSTRALIA Applicant the Tribunal: JUSTICE MIDDLETON (DEPUTY PRESIDENT), MR R DAVEY AND MR G LATTA DATE: 18 JUNE 2009 PLACE: MELBOURNE REASONS FOR DECISION 1 Application is made under s 71B of the National Electricity Law for review of the decision made by the Australian Energy Regulator in relation to file number 7 of 2009 and number 8 of 2009. The Tribunal is of the view that the requirement that is set out in s 71F has not been met and that the application should be refused. 2 Section 71F is mandatory in its operation in that it says the Tribunal must not grant leave to apply under s 71B(1), even if there is a serious issue to be heard and determined as to whether a ground for review set out in s 71C(1) exists, unless the amount that is specified in or derived from the decision exceeds the lesser of $5 million or 2% of the average annual regulated revenue of the regulated network service provider. 3 The Tribunal has been in receipt of written submissions in relation to this particular matter and is of the view that, in relation to the question of the application of s 71F, the arguments advanced in the written submissions of Transend and TransGrid are to be adopted and are correct. It is readily accepted that an applicant may be in a difficult position in relation to overcoming the hurdle that is provided for in s 71F and the Tribunal is mindful not to make the hurdle higher than what the legislation requires. However, it must be shown on the balance of probabilities on some material that the threshold has been met. 4 We are not satisfied this can be done by referring to comparative analysis. It must be done in relation to the case actually before the Tribunal. This was accepted by the applicant in oral submissions made before the Tribunal. It is for these reasons we think that the application should be refused and is refused. I certify that the preceding four (4) numbered paragraphs are a true copy of the Decision herein of the Honourable Justice Middleton (Deputy President), Mr R Davey and Mr G Latta. Associate: Dated: 3 July 2009 Counsel for the Energy Users' Association of Australia: Ms G Costello Solicitor for the Energy Users' Association of Australia: Madgwicks Counsel for the Australian Energy Regulator: Mr P Hanks QC and Mr P Gray Solicitor for the Australian Energy Regulator: Corrs Chambers Westgarth Counsel for Transend: Mr A Payne SC Solicitor for Transend: Gilbert + Tobin Lawyers Counsel for Transgrid: Mr A Meagher SC and Mr C Moore Solicitor for Transgrid: Gilbert + Tobin Lawyers Date of Hearing: 18 June 2009 Date of Decision: 18 June 2009