The Court held that the Registrar-General's decision to defer approval of PEXA's request to pass through the NECDS Ltd transaction fee to subscribers, pending completion of the IPART pricing review, constituted a reviewable 'decision to withhold approval' under Operating Requirement 5.4.4, notwithstanding that the RG characterised the request as remaining 'under review'. The phrase 'may not be unreasonably withheld' in cl 5.4.4 of the Operating Requirements was construed as importing a standard of reasonableness higher than the public law standard of 'legal unreasonableness', requiring assessment of the withholding against all relevant circumstances having regard to the scope and purpose of the Operating Requirements and the object of the National Law — including promoting efficiency and cost efficiency for consumers. However, the Court found that the RG's withholding was not unreasonable on the proper construction, given the legitimate basis for seeking IPART's independent assessment of whether a full cost pass-through was justified in a market lacking effective competition where PEXA was found to be earning above-normal profits, and that national pricing consistency was not mandated by the scheme.
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