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.

Administrative Law – Administrative review of a regulatory decision - Australian Competition Tribunal ("the Tribunal") varied the determination by the ACCC substituting a new ICB - Grounds for review included a ground that "the exercise of the relevant Regulator's discretion was incorrect or unreasonable having regard to all the circumstances" - Nature and scope of the Tribunal's jurisdiction to review decision of the ACCC.

Administrative Law – Judicial review of the outcome of an administrative review - Full Court of the Federal Court set side the Tribunal's determination of the ICB -Whether error of law within the meaning of s 5(1)(f) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) established - Whether there was jurisdictional error attracting the Federal Court's jurisdiction under s 39B(1) of the Judiciary Act 1903 (Cth).

Gas Pipelines Access (South Australia) Act 1997 (SA) – s 39 of Sched 1, s 8.10 of Sched 2.

Administrative Decisions (Judicial Review) Act 1977 (Cth) – s 5(1)(f).

Judiciary Act 1903 (Cth) – s 39B.