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;

b.         To make submissions (and possibly adduce limited evidence) on issues which arise concerning some of the matters on which the Tribunal needs to be satisfied under s 44H, including in respect of the matters concerning human health and the public interest;

c.         To put before the Tribunal a report currently being prepared for the NSW Government by IPART as to the possible ways private sector involvement in the provision of water and wastewater services might be encouraged.

d.         To put before the Tribunal, if time permits, the Government’s response to the IPART report and the shape of government policy on future private sector involvement in water and wastewater services.’

5                     On 3 December 2004 the Premier approved a request that the Independent Pricing and Regulatory Tribunal (IPART) provide advice on arrangements for the delivery of water and wastewater services in the greater Sydney metropolitan area, pursuant to s 9 of the Independent Pricing and Regulatory Tribunal Act 1992 (NSW).  The time limit for provision of a final report by IPART is 6 September 2005 and it is anticipated that a draft report will be released prior to that time.  It is hoped that there will be a Government response to the IPART report by late 2005 or early 2006.

6                     It is suggested that the IPART report and public policy issues may lead to a restructuring of the provision of water and sewage services in New South Wales with a different regulatory regime, and that Sydney Water is not in a good position to canvass those issues, and is certainly not in as good a position to do so as the Premier.  Sydney Water supports the application for intervention by the Premier insofar as it is based upon wide public policy issues.

7                     The Premier does not seek to postpone the hearing that is expected to commence on 5 September 2005.

8                     It is clear from the submissions on behalf of Services Sydney that it does not accept the relevance of the issues to be advanced by the Premier, or at least some of them.  This is not the occasion to rule on that question.

9                     In my opinion, for the time being at least, it is not necessary that the Premier be permitted to intervene in the proceeding.  The interim and final reports of IPART and the policy views of the New South Wales Government can be adequately conveyed to the Tribunal without that step being taken.  The Tribunal is an administrative body, not bound by the rules of evidence.  It can receive such material from such sources in such manner as it sees fit.  The Designated Minister is given no statutory role at the stage of review.  The reasons for the decision would normally be before the Tribunal as such and usually there will be no need for further elucidation.  There are no reasons here as there was no decision.  The review is not in the nature of an appeal but rather leads to a new decision by the Tribunal on the merits according to the material before the Tribunal.  The NCC has a significant role in the statutory framework but its role at the stage of review is only to assist as required (s 44K(6)).  There is no immediate reason for the Designated Minister to be in a different position.

10                  To the extent that matters relevant to the New South Wales Government exist, but are not adequately covered by the parties to the review, the Tribunal can be expected to seek assistance from the Premier.  There is, in any event, no barrier to the Premier offering information to the Tribunal and applying for leave to appear on a limited basis as events unfold.  Indeed, a further application to intervene can be made if circumstances arise that would justify that course.  No case has been established to warrant a general intervention that would effectively make the decision maker an active party in the proceeding.


I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Ruling herein of Justice Gyles (Deputy President).


Associate:


Dated:              11 April 2005



Counsel for the Premier:

JE Griffiths SC; N Perram



Solicitor for the Premier:

IV Knight, Crown Solicitor



Counsel for Services Sydney:

SJ Gageler SC



Solicitor for Services Sydney:

Gilbert + Tobin



Counsel for Sydney Water:

T Bathurst QC, NL Sharp



Solicitor for Sydney Water:

Clayton Utz



Dates of Hearing:

6 April 2005



Date of Decision:

6 April 2005



Date of Reasons:

11 April 2005