SA Power Networks v Australian Competition Tribunal

Confidentiality orders 4 The first such matter is the order that any applications for confidentiality orders be filed and served by 4 PM on 18 April 2017 and any such application be returnable at 9:30 AM on 21 April 2017. 5 I note that no such applications were filed and counsel for the parties informed me that no such question had arisen.

Intervention 6 By the orders made on 1 February 2017, any applications to intervene in the judicial review application were also made returnable on 21 April 2017. 7 There is only one such application and that is, by interlocutory application filed on 31 January 2017, by the South Australian Minister for Mineral Resources and Energy (the Minister) seeking leave to intervene pursuant to r 9.12 (1) of the Federal Court Rules 2011 (Cth). That application was supported by an affidavit affirmed by Matthew Edmund Boisseau on 30 January 2017. 8 Rule 9.12 of the Federal Court Rules provides: Interveners (1) A person may apply to the Court for leave to intervene in a proceeding with such rights, privileges and liabilities (including liabilities for costs) as may be determined by the Court. (2) The Court may have regard to: (a) whether the intervener's contribution will be useful and different from the contribution of the parties to the proceeding; and (b) whether the intervention might unreasonably interfere with the ability of the parties to conduct the proceeding as the parties wish; and (c) any other matter that the Court considers relevant. (3) When giving leave, the Court may specify the form of assistance to be given by the intervener and the manner of participation of the intervener, including: (a) the matters that the intervener may raise; and (b) whether the intervener's submissions are to be oral, in writing, or both. Note 1: The Court may give leave subject to conditions--see rule 1.33. Note 2: The Court may appoint an amicus curiae. 9 An outline of written submissions was filed by the Minister, including on the question of leave, on 13 April 2017. 10 The Minister is the Minister responsible for administering Pt 2 of the National Electricity (South Australia) Act 1996 (SA) and therefore a Minister of a participating jurisdiction for the purposes of s 6 of that Act. The Minister intervened in the proceedings before the Tribunal under s 71J of the National Electricity Law (NEL), as of right. The Minister was a party to the review before the Tribunal pursuant to s 71N. It was submitted the Minister's contribution will be useful and different from the contribution of the parties, in particular as to the proper construction of the relevant provisions of the NEL and the National Electricity Rules (NER). The submissions to be advanced were different to those raised by the applicant and the second respondent AER, in particular in relation to the proper construction of the phrase "regulatory obligation or requirement" as defined by s 2D of the NEL. It was submitted that the intervention would not materially affect the conduct of the proceedings by the parties. The written submissions were brief and confined to the issue in respect of which the Minister intervened before the Tribunal, namely forecast labour cost escalation, relating to 17, 18 and 21 of the grounds of review before the Court. The Minister did not seek to be heard on the other issues arising. 11 The Minister's interest in the proceedings, it was submitted, arose first from having been a party to the proceedings before the Tribunal, secondly from the recognition within the NEL that the Minister did not require leave to intervene in such proceedings in the Tribunal, and third due to the Minister's role as a representative of the State's interest, enshrined in the national electricity objective, in promoting the efficient operation of South Australian electricity services for the long-term interests of consumers of electricity in South Australia. 12 The Minister did not seek any order for costs and submitted that no order for costs should be made against him in respect of his intervention. 13 There was no continuing controversy as to the Minister's intervention or as to the making of written submissions by him. The Minister also sought leave to make short oral submissions, anticipating that he would require no more than 1 hour to present any oral submissions. 14 The second respondent, the Australian Energy Regulator (the AER), did not oppose the grant of leave to the Minister. 15 The applicant ultimately did not oppose leave to intervene but in its reply, filed 19 April 2017, to the Minister's outline of submissions, opposed the Minister having 1 hour for oral submissions. The applicant submitted that if the Court were minded to allow the Minister any time for oral submissions then the time to be allocated should be proportionate having regard to the scope of the application as a whole, the scope of the Minister's proposed submissions, and the allocated hearing time. The applicant submitted that the Minister's proposed submissions were on a point of construction advanced by neither party and relating only to the labour cost escalation issue in the proceedings. Given the nature of the Minister's submissions, the applicant would wish to be heard in response. The allocation that the Minister sought would jeopardise the completion of the hearing within the allocated time. In that sense, the Minister's proposed oral submissions would unreasonably interfere with the ability of the parties to conduct the proceedings as they wished. If the Minister were granted leave to make oral submissions, those submissions should be limited to 20 minutes. 16 I shall treat the notice of objection to leave being granted to intervene filed by the applicant and dated 24 February 2017 as being in the nature of a holding application and as being overtaken by events and, for completeness, I shall dismiss that application with no order as to costs. 17 The Minister should be granted leave to intervene and to make written submissions. So much is uncontroversial. One condition should be that the Minister is neither liable for costs nor should he seek costs of the application to intervene or his intervention. Another condition should be to limit the intervention as to subject matter, as indicated on behalf of the Minister. 18 As to oral submissions, the point of contention, I bear in mind the time set aside for the hearing of the application and the stated need on the part of the applicant to be heard in response. This is in the context where, counsel for the applicant told me, on present estimates the topic in which the Minister is interested would not be reached until the third day of the hearing and it was a topic in respect of which the applicant considered it would need one and a half hours in chief. Counsel for the second respondent, the AER, said that it would probably also wish to make oral submissions in response to any oral submissions made by the Minister. 19 In the circumstances, by way of indication and until further order, the Minister should be limited to 40 minutes for any oral submissions. Any repetition of submissions made by the parties is to be avoided. I bear in mind that at the commencement of his submissions the Minister will hand up an outline of his oral submissions, limited to 3 pages, a matter to which I now turn.

Outline of oral submissions 20 The third matter, which I raised with the parties and with the intervener, was the usefulness of a direction adapted from the High Court Rules 2004 (Cth) r 44.08, that no later than the commencement of oral argument for a party or intervener, counsel must give the Court and other parties and interveners an outline, signed by the senior legal practitioner presenting the oral argument in Court, of the propositions intended to be advanced in oral argument, the document being of no more than three pages, with the propositions stated sequentially and related by cross-reference to the written submissions filed for the party or intervener. 21 Such a procedure had been adopted in the judicial review applications heard by the Court in late October 2016 in the Ausgrid and related applications which also concerned, amongst other things, the NEL and the NER and that procedure was found to be useful both by counsel and by the Court. Although the present judicial review applications are not as extensive, as measured by the length of written submissions and the allocated hearing time, a short outline of oral submissions will be useful to the Court. The three page outline should be of the propositions intended to be advanced in oral argument on each of the three major topics, being gamma, return on debt and forecast labour cost escalation. The outline on behalf of the Minister should, of course, be limited to the last of these topics. Counsel agreed to this course.

Timetable 22 The fourth and final matter I raised with the parties was the question of a running timetable for the conduct of the hearing over three days. In matters of this complexity, in my opinion, it is useful and appropriate for the parties to allocate the time as between themselves in a document, at least in a provisional way. This focuses counsel on the march of hearing time and allows the Court better to estimate progress and whether it is necessary to consider sitting extended hours. The direction I make is that counsel for the parties and for the intervener confer and forward to the associates to Besanko, Yates and Robertson JJ such a provisional timetable by 5 PM on 28 April 2017.

Conclusion 23 I make orders accordingly. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Robertson.