NT Power Generation v Power & Water Authority

(2002) 122 FCR 399; [2002] FCAFC 302

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Interrogate

Catchwords

1. Trade Practices
2. › Misuse of market power
3. › Trade Practices Act 1974 (Cth), s 46
4. › Refusal to grant access to essential infrastructure
5. › Whether refusal constituted taking advantage of market power
6. › Whether refusal for proscribed purpose
7. › Interaction with Part IIIA infrastructure access regime
8. › Whether exercise of property rights can constitute taking advantage of market power
1. Trade Practices
2. › Crown immunity
3. › Whether statutory authority is emanation of the Crown
4. › Whether Crown carries on a business
5. › Trade Practices Act 1974 (Cth), s 2B
6. › Competition Policy Reform (Northern Territory) Act (NT), s 13
7. › Whether use of own infrastructure constitutes carrying on a business in transmission and distribution markets
1. Trade Practices
2. › Market power
3. › Electricity transmission and distribution
4. › Natural monopoly
5. › Whether monopolist had substantial degree of market power
6. › Temporal dimension of market power
7. › Effect of anticipated regulatory regime on market power
1. Licences
2. › Implied terms
3. › Whether licence granted under statutory power includes implied right of access to infrastructure
4. › Whether law of implied contractual terms applies to statutory licences

Quick Take

The majority's view establishes that Part IIIA is the appropriate mechanism for seeking access to essential infrastructure, and a statutory authority's use of its own infrastructure exclusively for its own business does not constitute 'carrying on a business' in the relevant infrastructure market for Crown immunity purposes.