Discretion to refuse to grant the application
188 There is an additional consideration. Section 10(1)(a) of the ADJR Act provides that the right of an aggrieved person to seek a review of a decision is in addition to any other rights that person may enjoy. However, s 10(2)(b) of the ADJR Act gives the Court a discretion to refuse to grant an application where other remedies are available. Section 10(2)(b)(ii) provides that:
the Federal Court … may, in its discretion, refuse to grant an application … for the reason that adequate provision is made by any law other than this Act under which the applicant is entitled to seek a review by the court, by another court, or by another tribunal, authority or person, of that decision, conduct or failure.
189 "Review" is defined in subsection (3) to include "a review by way of reconsideration, re-hearing, appeal, the grant of an injunction or of a prerogative or statutory writ or the making of a declaratory or other order".
190 As Northrop J observed in Edelsten v Minister for Health (1994) 58 FCR 419 ("Edelsten") at 421-422, on one view, the discretion conferred by s 10(2)(b)(ii) should be exercised only after the applicant has otherwise made out its case. But there is ample authority for the proposition that it can be exercised at a far earlier stage. Indeed, O 54 r 7(2) of the Federal Court Rules provides that an application for an order of review to be dismissed or stayed under s 10 of the ADJR Act must be made within 14 days after the party is served with the application for an order of review. ActewAGL did not resist the application on this basis and did not oppose the grant of an extension of time in which to make it. In all the circumstances and consistently with Northrop J's approach in Edelsten, for present purposes, I assume in favour of ActewAGL that it would succeed on its application.
191 The AER referred to a number of cases in which the court declined to exercise its jurisdiction where merits review was available before an independent statutory tribunal with a right of appeal to, or review by, a court. Often this situation arises where an application for merits review has already been made. See, e.g. Saitta Pty Ltd v Commonwealth of Australia (2000) 106 FCR 554 at 575 [104]. Section 10(2)(b)(i) partly deals with this situation. It permits the court to refuse to grant an application where the applicant has sought a review of the decision by the court or another court. Section 10(2)(b)(ii) also catches cases in which a review has been sought in a tribunal or by a person or authority. But the discretion to refuse relief under subsection (2)(b)(ii) is not founded on the premise that another proceeding is pending. A mere entitlement to seek a review is enough. Moreover, the power in subsection (2)(b)(ii) is not limited either (as ActewAGL submitted) to a situation in which the entitlement subsists at the time the ADJR Act application is made: Kimberly-Clark Ltd v Commissioner of Patents (1988) 83 ALR 714 ("Kimberley-Clark") at 718-719. If ActewAGL were right, as Jenkinson J pointed out in Kimberley-Clark, that would mean that the entitlement might often be lost by the effluxion of time. An aggrieved party could sit on its hands, do nothing, wait for the time for an appeal to pass, and then seek judicial review. The reference to "is entitled" in subsection (2) must be read as a reference to an entitlement the applicant enjoyed when the decision under review was made.
192 Plainly, the definition of review in subsection (3) is wide enough to catch the kind of review provided for in the Tribunal, which includes review of material errors of fact, errors of fact which in combination can be said to have been material, the incorrect exercise of a discretion and where the decision is unreasonable in all the circumstances: NEL, s 71C. It is true that leave is required before an application for review can be made: NEL, s 71B(1). But ActewAGL did not contend that the leave requirement meant that ActewAGL was not entitled to seek a review. In the present case, at least, there could be no doubt that ActewAGL could have sought a review in the Tribunal. Its position concerning the averaging period was relevantly indistinguishable from those of the other network service providers who were given leave to make their applications.
193 I have no doubt that the merits review mechanism under the NEL is an adequate alternative remedy. For the purpose of hearing a review, the Tribunal is constituted by a judge of this Court, who presides and is required to determine any question of law, together with two lay members, who are appointed for their knowledge or experience in industry, commerce, economics, and/or public administration: Competition and Consumer Act 2010 (Cth), ss 37, 42. The grounds of review are very broad, certainly far broader than those provided for in the ADJR Act. The Tribunal's powers are also greater than the powers given to the Court on an ADJR Act application; they include the power to vary the decision under review: NEL s 71P(2). Although there is no statutory right of appeal from a decision of the Tribunal, its decisions are subject to judicial review under the ADJR Act and under s 39B of the Judiciary Act 1901 (Cth): see Telstra Corporation Limited v Australian Competition Tribunal [2009] FCAFC 23 at [2].
194 In Bragg v Secretary, Department of Employment, Education and Training (1995) 59 FCR 31 the applicant applied for judicial review of two decisions of a delegate of the respondent made under the Public Service Act 1922 (Cth). He could have appealed the decisions under another provision of the Public Service Act to a Disciplinary Appeal Committee. Davies J held that the appeal was an adequate review within the meaning of s 10(2)(b)(ii) and refused to grant the application in the exercise of the Court's discretion before the applicant had exercised his right to appeal, but left the door open if he were to fail on the appeal. His Honour said that the general practice of the court is not to consider a dispute for the resolution of which a satisfactory administrative remedy has been provided. Also see Swan Portland Cement Ltd v Comptroller-General of Customs (1989) 25 FCR 523 at 530.
195 ActewAGL emphasised that the ADJR Act provides that the rights conferred by it are additional to rights available elsewhere and I accept that the starting point is that an applicant may rely on any or all of the available remedies - review in this Court or review or appeal elsewhere: Kelly v Coats (1981) 35 ALR 93 at 94. It cannot be the purpose of s 10(2)(b)(ii) to invariably require an applicant to exhaust whatever rights of review (s)he or it has before making an application under the ADJR Act because that would require everyone with alternative remedies who seeks judicial review to apply for an extension of time as a matter of course.
196 Nevertheless, in this case, having regard, in particular, to the nature of the issues to be considered, the expertise of the Tribunal (not to mention the inability of the Court to provide a review of the merits) (cf. Yarmirr v Australian Telecommunications Corporation (1990) 96 ALR 739 at 750), I consider that this is an appropriate case for the exercise of the discretion vested in the Court by s 10(2)(b)(ii). The Tribunal is a more appropriate forum for the resolution of the particular dispute between the parties (cf. McGowan v Migration Agents Registration Authority (2003) 129 FCR 118 at 133).
197 As Burchett J said in Swan Portland Cement Ltd v Comptroller-General of Customs (1989) 17 ALD 551 (and with which the Full Court agreed: (1989) 25 FCR 523 at 530), notwithstanding the terms of s 10(1)(a), "it should not be thought that it is always appropriate to bring a matter of this kind before the court. The legislation provides its own method of review". It is clear from the terms of the NEL that parliament envisaged that in the normal course, if there were to be a challenge to the correctness of a decision of the AER, including the exercise of its discretion, then that would be heard by the Tribunal. Here, ActewAGL chose not to exercise its statutory right to apply to the Tribunal. In all the circumstances, and particularly when so much time has passed, it is fair that it be held to the consequences of that decision. I have take into account in ActewAGL's favour that merits review is no longer available (see Kimberley-Clark at 719). It lost that opportunity, however, not through ignorance or mistake, but by its own election for commercial reasons not to contest the decision.