Commonwealth of Australia

Application by Epic Energy South Australia Pty Ltd

[2002] AcompT 4

APPLICATION BY EPIC ENERGY SOUTH AUSTRALIA PTY LTD

File No 6 of 2002

JUSTICE COOPER, PROFESSOR D K ROUND AND MISS M M STARRS

ADELAIDE

27 NOVEMBER 2002

IN THE AUSTRALIAN COMPETITION TRIBUNAL
File No 6 of 2002

RE:

APPLICATION UNDER SECTION 38 AND/OR SECTION 39 OF THE GAS PIPELINES ACCESS (SOUTH AUSTRALIA) LAW FOR REVIEW OF THE DECISION BY THE AUSTRALIAN COMPETITION AND CONSUMER COMMISSION MADE ON 31 JULY 2002 TO DRAFT AND APPROVE AN ACCESS ARRANGEMENT FOR THE MOOMBA TO ADELAIDE PIPELINE SYSTEM UNDER SECTION 2.20(a) OF THE NATIONAL THIRD PARTY ACCESS CODE FOR NATURAL GAS PIPELINE SYSTEMS

BY:

EPIC ENERGY SOUTH AUSTRALIA PTY LTD

TRIBUNAL:

JUSTICE RE COOPER (DEPUTY PRESIDENT)

PROFESSOR D K ROUND

MISS M M STARRS

DATE:

27 NOVEMBER 2002

WHERE MADE:

ADELAIDE

THE TRIBUNAL RULES AND DIRECTS THAT :

ruling

1.�� The application for review by Epic Energy South Australia Pty Ltd is, and is limited to, an application for review under s 39(1) of the Gas Pipelines Access (South Australia) Law.

2.�� Epic Energy South Australia Pty Ltd may not, as part of its submissions in support of its application, seek to incorporate new matter, including expert opinion evidence or material of a rebuttal nature, which was not before the Australian Competition and Consumer Commission before the decision under review was made, in an attempt to establish a ground for the purposes of s 39(2)(a) of the Gas Pipelines Access (South Australia) Law.� Accordingly, submissions from Philip Venton, the Brattle Group and MicroAlloying International Inc, as foreshadowed by Epic Energy South Australia Pty Ltd, are not matters which the Tribunal may consider upon a review of the decision in issue.

3.�� The ground of want of procedural fairness, as pleaded in paragraphs 15(b), 20, 21, 22 and 23 of the application for review, is not an available ground for the purposes of s 39(2)(a)(ii) of the Gas Pipelines Access (South Australia) Law.

extension:

1.�� The Tribunal considers that, having regard to the complexity of the matter, the nature of the issues, and the extent of the material before the Australian Competition and Consumer Commission in relation to its determination, the application for review in File No 6 of 2002 cannot be dealt with properly in the period referred to in s 38(3) of the Gas Pipelines Access (South Australia) Law, and the Tribunal extends the said period by thirty (30) days to 11 January 2003.

directions:

The Tribunal directs that :

1.�� The Australian Competition and Consumer Commission file and serve a statement of contentions, in response to the statement of facts and contentions filed by Epic Energy South Australia Pty Ltd on 10 October 2002, admitting, denying or otherwise responding to material points contained in the statement on or before 23 December 2002.

2.�� Epic Energy South Australia Pty Ltd and the Australian Competition and Consumer Commission must, by 23 December 2002, identify, by reference to the s 39(5) Index of documents provided by the Australian Competition and Consumer Commission to the parties, the documents which they request the Tribunal to consider for the purposes of the review.

3.�� The Australian Competition and Consumer Commission shall, on or before 20 January 2003, assemble and provide to the Tribunal, and serve on Epic Energy South Australia Pty Ltd copies of all documents identified pursuant to Direction 2.

4.�� Epic Energy South Australia Pty Ltd shall, on or before 3 March 2003, file and serve on the Australian Competition and Consumer Commission written submissions in relation to the issues arising from each of the grounds under s 39(2) relied upon by Epic Energy South Australia Pty Ltd

5.�� The Australian Competition and Consumer Commission shall, on or before 22 April 2003, file and serve on Epic Energy South Australia Pty Ltd written submissions in reply to the submissions of Epic Energy South Australia Pty Ltd.

6.�� The hearing to commence on 5 May 2003.

7.�� Epic Energy South Australia Pty Ltd and the Australian Competition and Consumer Commission have liberty to list the matter for further directions on three (3) days notice.

IN THE AUSTRALIAN COMPETITION TRIBUNAL
File No 6 of 2002

RE:

BY:

EPIC ENERGY SOUTH AUSTRALIA PTY LTD

TRIBUNAL:

JUSTICE RE COOPER (DEPUTY PRESIDENT)

PROFESSOR D K ROUND

MISS M M STARRS

DATE:

27 NOVEMBER 2002

WHERE MADE:

ADELAIDE

the tribunal

background

1 Epic Energy South Australia Pty Ltd (�Epic�) is the owner of the natural gas pipeline system known as the Moomba to Adelaide Pipeline System.� On 1 April 1999, Epic submitted a proposed Access Arrangement for third party access to the pipeline for approval of the relevant Regulator for a transmission pipeline, the Australian Competition and Consumer Commission (�the ACCC�).� Ultimately, the ACCC did not approve the revised Access Arrangement put forward by Epic and determined to draft and approve its own Access Arrangement pursuant to s 2.20(a) of the �National Third Party Access Code for Natural Gas Pipeline Systems� (�the Code�) which is Schedule 2 to the Gas Pipelines Access (South Australia) Act 1997 (SA).� The ACCC gave final approval under s 2.20(a) of the Code on 31 July 2002.

2 On 14 August 2002, Epic filed with this Tribunal an application for review �of the decisions of the [ACCC] to draft and approve an Access Agreement for the Moomba to Adelaide Pipeline System ... pursuant to section 2.20(a) of the [Code] and of all decision relating thereto.�

3 The grounds relied upon by Epic as entitling it to a review are :

�15.�� The ACCC:

(a)�� made errors of construction of the Code and in particular in relation to sections 2.24 and 8, and sections 1.40 and 3.16 thereof;

(b)�� failed to afford procedural fairness;

(c)�� made errors of fact and exercised its discretion incorrectly and/or unreasonably and/or when the occasion did not arise having regard to the matters in (a) and (b) above, and in any event having regard to all the circumstances, in relation to :

(i)�� the initial Capital Base (�ICB�), Rate of Return (�ROR�) and Total Revenue and the establishment of a Reference Tariff;

(ii)�� the definition of the Covered Pipeline in relation to the Pelican Point Power expansion;

(iii)�� the Extensions/Expansion policy (�EEP�).

4 Epic contends that :

�36.�� As a result of the matters summarised in paragraph 15 above the ACCC wrongly:

(a)�� failed to approve the proposed Access Arrangement submitted to it by Epic;

(b)�� required Epic to submit a revised Access Arrangement containing the amendments specified in the Final Decision in order for the ACCC to approve the Access Arrangement;

(c)�� determined that it would not approve the revised Access Arrangement submitted by Epic on 22 January 2002 on the basis that the revised Access Arrangement did not substantially incorporate the amendments specified by it in the Final Decision;� and

(d)�� determined to draft and approve its own Access Arrangement in lieu of approving the revised Access Agreement submitted by Epic.�

5 Epic seeks the following orders on its application for review :

�1.�� The Final Approval be set aside, alternatively varied to reflect the matters in order 2 below.

2.�� The Tribunal draft and approve an Access Arrangement:

(a)�� in the form of the revised Access Arrangement submitted to the ACCC by Epic on 22 January 2002 as varied to take into account, or allow for :

(i)�� an increase in the rate of return on equity used in determining the Total Revenue (and therefore the Reference Tariff for FT Service) of at least 0.6% to compensate Epic for self insurance risks;� and

(ii)�� the other grounds of this application;� or

(b)�� alternatively, in such form as the Tribunal thinks fit, in substantial conformance with the matters in sub-paragraph (a).

3.�� The Tribunal make all such consequential orders, including in relation to the Final Decision and amendments to the Access Arrangement Information submitted to the ACCC by Epic on 22 January 2002, as are necessary to give effect to orders 1 and 2 above.

4.�� Providing for the costs of these proceedings.�

6 The application for review purports to be made pursuant to s 38 and/or s 39 of the Gas Pipelines Access (South Australia) Law (�the GPA Law�) which is Schedule 1 to the Gas Pipelines Access (South Australia) Act 1997 ( SA).

preliminary issue

7 A preliminary issue has arisen as to the right of Epic to seek review under the GPA Law in the circumstances which have occurred, and, the nature and extent of the review available under s 38 and/or s 39 of the GPA Law.

8 Section 38 of the GPA Law provides :

�Application for review

38(1)�� A person adversely affected by a decision to which this section applies may apply to the relevant appeals body for a review of the decision.

(2)�� The application must be made, in accordance with this Part and any applicable law governing the practice and procedure of the relevant appeals body, within 14 days after the decision is made.

(3)�� The relevant appeals body must make its determination on the review within 90 days after receiving the application for review.

(4)�� The relevant appeals body may extend, or further extend, the period referred to in subsection (3) by a period of 30 days if it considers that the matter cannot be dealt with properly without the extension either because of its complexity or because of other special circumstances.

(5)�� If the relevant appeals body extends the period, it must, before the end of the period, notify the applicant of the extension and the reasons for it.

(6)�� An application under this section �

(a)�� that relates to a decision under subsection (13)(c) or section 39(1) does not operate to stay the decision;

(b)�� in any other case, operates to stay the decision unless, in the case of a decision under subsection (13)(b) or (c), the relevant appeals body otherwise determines.

(7)�� On the application of a party to the proceedings under this section, the relevant appeals body may conduct the proceedings in the absence of the public.

(8)�� The relevant appeals body may require the relevant Regulator to give information and other assistance, and to make reports, as specified by the appeals body.

(9)�� In proceedings under this section, the relevant appeals body make an order affirming, or setting aside or varying immediately or as from a specified date, the decision under review and, for the purposes of the review, may exercise the same powers with respect to the subject matter of the decision as may be exercised with respect to that subject matter by the person who made the decision.

(10)�� The relevant appeals body may make such orders (if any) as to costs in respect of a proceeding as it thinks fit.

(11)�� The relevant appeals body may refuse to review a decision if it considers that the application for review is trivial or vexatious.

(12)�� A determination by the relevant appeals body on the review of a decision has the same effect as if it were made by the person who made the decision.

(13) This section applies to a decision �

(a)�� that a pipeline or proposed pipeline is, or is not, or ceases to be, or does not cease to be, a Code pipeline;

(b)�� to add to, or to waive, the requirement under the Code that a service provider be a body corporate or statutory authority or not be a producer, purchaser or seller of natural gas or relating to the separation of certain activities of a service provider;

(c)�� not to approve a contract, arrangement or understanding between a service provider and an associate of a service provider;

(d)�� relating to any other matter that, under the Code, is a decision to which this section applies.�

9 Section 39 provides :

�39(1)If the decision of the relevant Regulator is �

(a)�� to draft and approve an access arrangement; or

(b)�� to draft and approve revisions of an access arrangement,

either in place of an access arrangement or revisions submitted for approval by a service provider or because a service provider fails to submit an access arrangement or revisions as required by the Code �

(c)�� the service provider; or

(d)�� a person who made a submission to the relevant Regulator on the access arrangement or revisions submitted by the service provider and whose interests are adversely affected by the decision,

may apply to the relevant appeals body for a review of the decision.

(2)�� An application under subsection (1) �

(a) may be made only on the grounds, to be established by the applicant �

(i)�� of an error in the relevant Regulator�s finding of facts; or

(ii)�� that the exercise of the relevant Regulator�s discretion was incorrect or was unreasonable having regard to all the circumstances; or

(iii)�� that the occasion for exercising the discretion did not arise; and

(b)�� may not raise any matter that was not raised in submissions to the relevant Regulator before the decision was made.

(3)�� An application under subsection (1) must give details of the grounds for making the application.

(4)�� In a review of a decision under this section, the relevant appeals body may give directions to the parties excluding from the review specified facts, findings, matters or actions that the relevant appeals body considers should be excluded having regard to -

(a)�� the likelihood of the decision being varied or set aside on account of those facts, findings, matters or actions;

(b)�� the significance to the parties of those facts, findings, matters or actions;

(c)�� the amount of money involved;

(d)�� any other matters that the relevant appeals body considers relevant.

(5)�� The relevant appeals body, in reviewing a decision under this section must not consider any matter other than -

(a)�� the application under subsection (1) and submissions in support of it (other than any matter not raised in submissions before the decision was made) and any written submissions made to the relevant Regulator before the decision was made;

(b)�� the access arrangement and the access arrangement information prepared by the service provider in accordance with the Code;

(c)�� any reports relied on by the relevant Regulator before the decision was made;

(d)�� any draft decision, and submissions on any draft decision made to the relevant Regulator;

(e)�� the decision of the relevant Regulator and the written record of it any written reasons for it;

(f)�� the transcript (if any) of any hearing conducted by the relevant Regulator.

(6)�� Except as otherwise provided in this section, section 38 (except subsections (1) and (13)) applies to an application under this section.�

10 Section 2.20 of the Code, so far as is presently relevant provides :

�2.20�� If the Service Provider does not submit a revised Access Arrangement by the date specified by the Relevant Regulator under section 2.16(b) or submits a revised Access Arrangement which the Relevant Regulator is not satisfied incorporates the amendments specified by the Relevant Regulator in its final decision, the Relevant Regulator must:

(a)�� in the case of an Access Arrangement submitted under section 2.2, draft and approve its own Access Arrangement, instead of the Access Arrangement proposed by the Service Provider;� or

��

11 Section 2.23 of the Code also provides for the relevant Regulator to draft and approve its own Access Arrangement in the circumstances provided for in the section.

12 Epic contends that on the proper construction of s 2.26 of the Code and s 38(13)(d) of the GPA Law, a decision made by a relevant Regulator is reviewable in accordance with s 38 of the GPA Law, unencumbered by the restrictions which attach to any review undertaken pursuant to s 39 of that Law.� Epic submits that in respect of a decision of the relevant Regulator made pursuant to s 2.20(a) of the Code, it, as the service provider, has at its option the choice to seek review under either s 38(1) or s 39(1) of the GPA Law.

13 The ACCC contends that Epic is limited in its right to have reviewed the decision to draft and approve an Access Agreement, made pursuant to s 2.20(a) of the Code, to an application for review of that decision under s 39(1) of the GPA Law.

consideration of preliminary issue

14 Section 2.26 of the Code gives to the Service Provider a right of review of a decision by the relevant Regulator made under s 2.20(a) of the Code.� It is a right to review by the relevant Appeals Body.� It is a review under the GPA Law.� The nature and scope of the review will depend upon elucidating the legislative intent and the proper construction of the terms of the statute conferring the right to review:� Builders� Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616 at 622;� Re:� Coldham Ex parte Brideson [No 2] (1990) 170 CLR 267 at 273 � 274;� Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245 at 261.

15 The GPA Law draws a distinction between reviews conducted under s 38 of that Law and those conducted under s 39.� The relationship between the two sections is limited.� Each provides for a discreet right of review.� Section 38 has no application to a review under s 39, other than to the extent that s 39 expressly makes applicable by reference various subsections of s 38 (other than subsections (1) and (13)) and then only �[e]xcept as otherwise provided in this section�:� s 39(6).� Additionally, the right to such a review under s 39(1) is limited to the Service Provider (s 39(1)(c)), and to persons who made a submission to the relevant Regulator on the access arrangement and whose interests are adversely affected by the decision (s 39(1)(d)).� It is clearly the legislative intention to confine the right of review under s 39(1) to those who participated in the process, as the Service Provider, or as a person making a submission, which led to the decision under s 2.20(a) of the Code.� The intention to exclude persons generally from seeking a review, even if adversely affected by the decision, is important when it is noted that the grounds upon which review may be granted are limited and do not allow recourse to matters not raised in submissions to the relevant Regulator:� see s 39(2)(b) and s 39(5)(a).

16 Section 39 applies to a decision which is one �to draft and approve an access arrangement�:� s 39(1)(a).� That is, it applies to decisions of the type made pursuant to s 2.20(a) of the Code, and in respect of which a specific right of review is provided for in s 2.26.� It is a specific provision which is in terms limited to decisions to draft and approve an access arrangement (s 39(1)(a)) or to draft and approve revisions of an access arrangement (s 39(1)(b)).

17 Section 38 provides for a general right of review of decisions to which that section applies (s 38(13)) to persons adversely affected by the decision (s 38(1)).� Whatever work the legislature intended that s 38(13)(d) shall do in respect of the operation of s 38, it is apparent that the legislature, by excluding the application of s 38(1) and s 38(13) to a review of a decision to draft and approve an access agreement, intended thereby to exclude the review of such decisions from the category of decisions to which s 38 applies.� That is, the special provision in s 39 dealing with review of a particular category of decisions is to be understood as a matter of construction as negating a right to have those decisions reviewed under s 38:� R v Wallis Ex parte Employers� Association of Wool Selling Brokers (1949) 78 CLR 529 at 550;� Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672 at 678.

18 So much of s 38 as is to be applied to an application for review under s 39, concerns the procedural provisions applicable to the review and the powers of the Tribunal on such a review, including a power to make costs orders.� Section 38(6) to the extent that it refers to both subsection (13)(c) and s 39(1), does not indicate that the legislature contemplated that an application otherwise available under s 39(1) could be brought under s 38(1).� Rather, it simply requires the subsection, when applied by s 39(6), to be read as appealable to a s 39(1) application.� That is, a s 39(1) application does not operate as a stay.

19 The decision in respect of which Epic has applied for review (within the time limits provided in s 38(2) as applied by s 39(6) of the GPA Law) is the decision of the ACCC pursuant to s 20.2(a) of the Code to draft and approve an access agreement for the Moomba to Adelaide Pipeline System made on 31 July 2002.� That application is made under s 39(1) of the GPA Law and is subject to the provisions of that section.� Other than by the operation of s 39(6), s 38 of the GPA Law has no application to the review and does not operate to give Epic a right of review of the decision of the ACCC made pursuant to s 2.20(a) of the Code, independent of the right given by s 39(1).

the NAture and extent of the review under s 39 of the gpa law

20 The power to review given to this Tribunal is exercisable only upon it being established by Epic that a ground, falling within s 39(2)(a) of the GPA Law, occurred having regard to matters raised in submissions to the ACCC prior to the making of the decision under review (s 39(2)(b)).� The only matters, other than Epic�s application for review and submissions in support of it, to which this Tribunal may refer are the matters specified in s 39(5)(a) to (f) inclusive which were available to the ACCC at the time of, or before, the decision under review was made.� It is apparent that the power given to the Tribunal is exercisable only if there is a reviewable ground.� In the absence of a contra legislative indication, the conferring of a right of appeal or review to an administrative tribunal against an administrative decision is not a grant of jurisdiction to make a fresh or original decision.� There is authority for the proposition that in such a case there is a presumptive rule that the issue is whether the decision was correct when made:� Strange-Muir v Corrective Services Commission [1986] 5 NSWLR 234 at 250;� Re Coldham Ex parte Brideson [No 2] at 272.� There are no such indications in the GPA Law.� Rather, the indications are the other way and the jurisdiction is dependent upon demonstrable error by reference to matters which were before the relevant Regulator before the decision, of which review is sought, was made.� Accordingly, the power to review under s 39(1), although involving a re-hearing on the merits, ought to be construed as one to be exercised for the correction of error:� Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission (2000) 203 CLR 194 at 203 � 204;� there being no relevant difference in this respect between an appeal to an administrative tribunal or a Court:� Re Coldham Ex parte Brideson [No 2] at 273 � 274.� If a reviewable ground is established, then s 38(9) applies so as to enable this Tribunal, on the basis of the matters specified in s 39(5), to set aside or vary the decision under review.

21 Epic submits that s 39(2)(b) of the GPA Law, on its proper construction in the use of the word �submissions�, means statements of fact (including hearsay evidence), expert opinion (including evidence of industry practice and of economic theory) and argument.� It submits that no narrow interpretation of the term limited to arguments based on the evidence is required as a matter of context or demonstrable legislative intent.� Further, it submits that the word has the same broad meaning when used in s 39(5) and, in particular, when first used in s 39(5)(a) of the GPA Law.

22 The ordinary meaning of the word �submission� in the context in which it appears in the Code and the GPA Law, is the act of referring something:� a proposal, argument, document or the like, for consideration by someone else:� see Collins Dictionary of the English Language Australian Ed (1979);� Shorter Oxford English Dictionary Vol 2 p 2169.� In a legal context, it may mean the act of submitting a matter to a person for decision or consideration.� Or, it may mean �the theory of a case put forward by an advocate�.

23 There is nothing in the Code or the GPA Law to indicate that the word �submission� is to have other than its ordinary meaning in the context of its use in those provisions.

24 The meaning of �submissions� in s 39(2)(b) and s 39(5)(a) takes its colour from the prohibition on recourse to �any matter� that was not raised in the submissions to the relevant Regulator before the decision was made.� Section 39(2)(b) limits the matters to which recourse may be had to those that may be identified in the submissions which, in fact, were made prior to decision.� The matters include the subject matters raised, the issues raised and the materials relied upon in support of the position or proposal put forward in the submission as being relevant to the decision to be made.� Thus, if any matter, whether by way of argument or evidentiary material, cannot be identified as broadly arising out of a matter fairly raised in the submissions to the relevant Regulator before the decision under review was made, it will not be permitted to be raised in the review.� This is not to say that a reformulation of an argument or contention previously put to the relevant Regulator on material which was before it before the decision was made would be excluded.

25 The use of the term �submissions� in s 39(5) including s 39(5)(a) has the same meaning.� The word �submissions� does not include or permit recourse to matters, including evidentiary material, which were neither before the relevant Regulator nor relied upon by the applicant for review in support of any contention advanced by it to the relevant Regulator as relevant to the decision to be made.� In any event, the submissions of the applicant for review in support of an application under s 39(1) are to demonstrate a ground for review in terms of s 39(2)(a).� That ground is to be demonstrated by reference to matters raised in submissions to the relevant Regulator and consideration of the limited category of matters specified in s 39(5).� The subject matter of the submissions in support of the application for review, are the matters which were in existence at the time the decision under review was made.

26 Specifically, for the purpose of this ruling, s 39(5)(a) of the GPA Law does not allow Epic to seek to incorporate as part of its submissions in support of its application, new matters including expert opinion evidence or material of a rebuttal nature which were not before the ACCC, in order to attempt to make out a ground for the purposes of s 39(2)(a) of the GPA Law.

27 Even if a ground is made out, there is nothing in the Code or the GPA Law, to indicate that this Tribunal is to do other than exercise the power under s 38(9) on the basis of the materials before the ACCC.� To the contrary, s 39(5) indicates that this Tribunal has no power to receive and rely upon new evidence and materials not before the ACCC.

28 Finally, Epic submits that a want of procedural fairness is sufficient to make out �unreasonableness� for the purposes of s 39(2)(a)(ii).� Such a construction would open up for examination the process by which the decision in question was made, whereas, s 39 is limited to a review of a particular category of decision by reference to matters which were before the relevant Regulator, and raised in submissions to it, before the decision was made.� An alleged want of procedural fairness which was not a matter raised in submissions to the relevant Regulator before the decision was made cannot be relied upon (s 39(2)(b)) and cannot be the subject of submissions to which this Tribunal may have regard (s 39(5)(a)).� To accommodate the submission of Epic, it is necessary to read down s 39(2)(b) and s 39(5)(a) as having no application to recourse being made to matters not before the relevant Regulator and to matters not raised in submissions to the relevant Regulator, to make out a case of �unreasonableness� under s 39(2)(a)(ii) based on an absence of procedural fairness.� It seems unlikely that the legislature intended there to be a ground of procedural unfairness which was known and the subject of submission to the relevant Regulator but no such ground where the existence of procedural unfairness was unknown and not the subject of submission.

29 The preferable view is that Part 6 of the GPA Law was drafted on the assumption that procedural fairness would be extended to a Service Provider and that the review provided for was one in respect of a specialist area to a specialist appeal body which was not concerned with broad issues of administrative review based on process rather than the merits of the particular decision.� The right of the Service Provider to have the process conducted in accordance with the general administrative law, and to have a remedy if it was not so conducted, is expressly preserved in s 32(4)(b) or (c) and thus, does not require that s 39(2)(a)(ii) be construed as Epic contends to avoid an injustice.

30 Section 39(2)(a)(ii) is concerned with the correctness or unreasonableness of an exercise of discretion having regard to the circumstances relevant to the proper exercise of that discretion.� Those circumstances are ones which are demonstrable from the matters to which the Tribunal may refer under s 39(5).� For the purposes of the subsection, error is made out if it is demonstrated that the exercise of the discretion was so unreasonable on the basis of the matters available to the decision maker that no reasonable decision maker could ever come to it:� Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 223 - 234.� It also deals with the situation where the decision is so far outside the range of decisions open to a reasonable decision maker that it bespeaks of error even though the particular error cannot be identified:� House v The King (1936) 55 CLR 499 at 505.� For the purposes of s 39(2)(a)(ii) of GPA Law, correctness and reasonableness are to be determined by reference to applicable criteria contained in the Code applied to the matters which were before the relevant Regulator before the decision under review was made.

31 RULING

Accordingly, the Tribunal rules and directs that :

1.�� The application for review by Epic Energy South Australia Pty Ltd is, and is limited to, an application for review under s 39(1) of the Gas Pipelines Access (South Australia) Law.

3. The ground of want of procedural fairness, as pleaded in paragraphs 15(b), 20, 21, 22 and 23 of the application for review, is not an available ground for the purposes of s 39(2)(a)(ii) of the Gas Pipelines Access (South Australia) Law.

extension:

directions:

The Tribunal directs that :

6.�� The hearing to commence on 5 May 2003.

7.�� Epic Energy South Australia Pty Ltd and the Australian Competition and Consumer Commission have liberty to list the matter for further directions on three (3) days notice.

I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Decision of the Tribunal.

Associate:

Dated:�� 27 November 2002

Counsel for the Applicant:	Mr GH Murphy and Mr G Edmonds-Wilson
Solicitor for the Applicant:	Minter Ellison

Counsel for the Respondent:	Mr A I Tonking
Solicitor for the Respondent:	Australian Competition and Consumer Commission

Date of Hearing:	26 November 2002
Date of Judgment:	27 November 2002