18Procedure if agreement cannot be reached

18 Procedure if agreement cannot be reached

S. 18(1) amended by No. 62/2001 s. 83(d)(e), substituted by No. 73/2003 s. 8(1).

(1) A person seeking access to prescribed services may apply in writing to the Commission for the making of a determination under Part 3 of the Essential Services Commission Act 2001 specifying the terms and conditions on which access is to be provided if—

(a) the provider and the person seeking access cannot agree on the terms and conditions on which access is to be provided; or

(b) the provider has failed to make a formal proposal under section 17(3)(b) within the time period set out in that section.

S. 18(2) amended by Nos 62/2001 s. 83(e), 11/2002 s. 3(Sch. 1 item 30.2), substituted by No. 73/2003 s. 8(1).

(2) The Commission must within 15 days of receiving an application under subsection (1) give notice in writing to the person making the application or to any other person from whom the Commission is entitled to require information or a document under the Essential Services Commission Act 2001, specifying any information or document that the Commission requires the person to give so that the Commission can make, or refuse to make, a determination.

S. 18(3) amended by No. 62/2001 s. 83(e).

(3) The Commission must not make a determination if the Commission considers that the making of a determination would substantially impede the existing right of access of another person unless that person has been given an opportunity to make a submission to the Commission in respect of the application.

S. 18(3A) inserted by No. 73/2003 s. 8(2).

(3A) Without limiting any other powers of the Commission, the Commission may refuse to make a determination if—

(a) the Commission considers that the application is trivial or vexatious; or

(b) the Commission is satisfied that—

(i) the provider has complied with the obligations under section 17; and

(ii) the terms and conditions of access being offered by the provider do not constitute a taking advantage of a substantial degree of market power in the provision of the prescribed services; and

(iii) having regard to the objectives of the Commission under section 14 and under the Essential Services Commission Act 2001 and to any other matter that the Commission considers relevant, it is appropriate to refuse to make a determination.

S. 18(3B) inserted by No. 73/2003 s. 8(2), amended by No. 21/2019 s. 24.

(3B) A person whose interests are affected by a decision of the Commission to refuse to make a determination under this section, may apply to VCAT as if that decision was a determination for the purposes of section 55(1)(c) of the .