East Australian Pipeline Pty Limited v Australian Competition and Consumer Commission [2007] HCA 44

HIGH COURT OF AUSTRALIA

GLEESON CJ

GUMMOW, HAYNE, HEYDON AND CRENNAN JJ

EAST AUSTRALIAN PIPELINE PTY LIMITED APPELLANT

AND

AUSTRALIAN COMPETITION AND CONSUMER

COMMISSION & ANOR RESPONDENTS

East Australian Pipeline Pty Limited v Australian Competition and Consumer Commission

[2007] HCA 44

27 September 2007

S57/2007

ORDER

1. Appeal allowed. 2. Set aside order 4 of the orders of the Full Court of the Federal Court of Australia made on 2 June 2006 and orders 2, 3, 4 and 5 of the orders of that Court made on 18 August 2006. 3. The first respondent to pay the costs of the appellant of the appeal to this Court and its costs incurred to date in the Federal Court of Australia. 4. The balance of the application to the Federal Court of Australia by the first respondent for judicial review be stood over for further directions before the Full Court of that Court.

On appeal from the Federal Court of Australia

Representation

J T Gleeson SC with N Manousaridis for the appellant (instructed by Middletons Lawyers)

J B R Beach QC with S B Lloyd for the first respondent (instructed by Deacons Lawyers)

Submitting appearance for the second respondent

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

East Australian Pipeline Pty Limited v Australian Competition and Consumer Commission

Trade Practices – Third party access regime for natural gas pipelines – East Australian Pipeline Pty Limited ("EAPL") owned a natural gas pipeline which was a Covered Pipeline under the National Third Party Access Code for Natural Gas Pipeline Systems ("the Code") – EAPL was required to submit to the Australian Competition and Consumer Commission ("the ACCC") an Access Arrangement for use of the pipeline by third parties – ACCC rejected EAPL's proposed Access Arrangement and adopted its own Access Arrangement incorporating a Reference Tariff based on a lower initial Capital Base ("ICB") than that proposed by EAPL – ACCC arrived at an ICB in a novel fashion – Section 8.10 of the Code sets out a number of factors which are to be considered in establishing the ICB for an existing pipeline – Proper construction of s 8.10 of the Code – Whether s 8.10 of the Code permits a novel asset valuation methodology.