Duke Eastern Gas Pipeline Pty Ltd [2001] ACompT 2

Duke Eastern Gas Pipeline Pty Ltd [2001] ACompT 2

The Tribunal held it was not affirmatively satisfied that coverage of the Eastern Gas Pipeline would promote competition in an upstream or downstream market over current voluntary open access arrangements. The Tribunal found the pipeline did not possess market power, there was significant spare capacity, effective competition existed from other pipelines, and the threat of entry/expansion limited pricing power. Accordingly, s 1.9(a) of the Code was not met; without satisfaction of all criteria, the Minister's decision for coverage must be set aside.

Jurisdiction
Australia
Judgment Date
04 May 2001
Procedural Posture
Application for Review of Administrative Decision / Final Decision After Hearing on the Merits
Outcome
Minister's decision set aside; pipeline not covered
Legal Topics
['third Party Access to Infrastructure' 'gas Pipelines Regulation' 'criteria for Pipeline Coverage' 'promotion of Competition' 'market Definition' 'natural Monopoly' 'market Power' 'public Interest Test']
['competition Law' 'energy Law' 'administrative Law'] ['third Party Access to Infrastructure' 'gas Pipelines Regulation' 'criteria for Pipeline Coverage' 'promotion of Competition' 'market Definition' 'natural Monopoly' 'market Power' 'public Interest Test']

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Procedural Posture

Application for Review of Administrative Decision / Final Decision After Hearing on the Merits

Legal Issues

  1. 1 ['Whether coverage of the Eastern Gas Pipeline under the Code would promote competition in at least one other market (s 1.9(a) Code)' 'Whether it would be uneconomic for anyone to develop another pipeline to provide the same services (s 1.9(b) Code)' 'Whether access can be provided without undue risk to health or safety (s 1.9(c) Code)' 'Whether coverage would be contrary to the public interest (s 1.9(d) Code)']

Ratio Decidendi

The Tribunal held it was not affirmatively satisfied that coverage of the Eastern Gas Pipeline would promote competition in an upstream or downstream market over current voluntary open access arrangements. The Tribunal found the pipeline did not possess market power, there was significant spare capacity, effective competition existed from other pipelines, and the threat of entry/expansion limited pricing power. Accordingly, s 1.9(a) of the Code was not met; without satisfaction of all criteria, the Minister's decision for coverage must be set aside.

Court Disposition

Minister's decision set aside; pipeline not covered

Orders

  • ['The decision of the Minister made on 16 October 2000 that the Eastern Gas Pipeline should be a covered pipeline is set aside.' 'In lieu of that decision, the Tribunal decides that the pipeline is not covered.' 'Liberty to apply for orders as to costs by motion filed before 10 am on Tuesday 8 May 2001; otherwise,...