153ZEWCommission’s powers if information not provided in negotiations

153ZEW Commission’s powers if information not provided in negotiations

Use in arbitration of information requested but not provided in negotiations

(1) If:

(a) a party to the arbitration of an access dispute seeks to include certain information in its case; and

(b) in the negotiation under Division 3 that led to the notification of the access dispute, the information was the subject of a request under section 153ZEK; and

(c) the party, or a person related to the party, was the responding party (within the meaning of subsection 153ZEK(1)) to the request; and

(d) the responding party did not ensure that the requirements in subsection 153ZEK(3) were satisfied in respect of the request;

the party must seek the Commission’s permission in writing to include the information in its case.

(2) In determining whether to grant permission under subsection (1), the Commission must have regard to:

(a) the desirability of the parties to the negotiation complying with the requirements in section 153ZEK; and

(b) whether the responding party was given a reasonable opportunity to ensure that the requirements in subsection 153ZEK(3) were satisfied in respect of the request before the access dispute was notified.

Commission’s powers generally

(3) If the Commission is satisfied that a party to the arbitration of an access dispute has failed to provide information in accordance with section 153ZEK in the negotiation under Division 3 that led to the notification of the access dispute, the Commission may do any of the following in the arbitration:

(a) direct that the party is not entitled to rely on specified information or materials;

(b) draw such adverse inferences from the failure as the circumstances justify;

(c) for the purposes of making a determination, not have regard to information that the party in the negotiation failed to provide in accordance with section 153ZEK.