High Court of Australia

NT Power Generation Pty Ltd v Power and Water Authority [2004] HCA 48

219 CLR 90; 79 ALJR 1; 210 ALR 312

6 Oct 2004

Case Number: D13/2003

Before

McHugh ACJ, Gummow, Kirby, Callinan, Heydon JJ

Catchwords

Trade practices – Market definition - Substantial degree of market power - Where statutory authority had a monopoly in the markets for electricity transmission and distribution services and for electricity supply - Where authority owned the transmission and distribution infrastructure - Where no transactions occurred in the transmission and distribution services market - Whether authority's control of the infrastructure gave it market power in both markets - Trade Practices Act 1974 (Cth), ss 46(1), 46(4)(c).

Trade practices – Misuse of market power - Taking advantage of market power - Proscribed purpose - Whether statutory authority's refusal of access to its infrastructure involved taking advantage of its market power or only of its proprietary rights - Whether refusal was due to a "direction" from the Minister - whether Minister's purpose in giving direction meant authority's refusal was not for a proscribed purpose - Whether authority's regulatory role meant refusal was not for a proscribed purpose - Trade Practices Act 1974 (Cth), s 46(1) - Power and Water Authority Act (NT), s 16.

Crown – Immunity - Crown in right of the Northern Territory - Carrying on a business under the Trade Practices Act 1974 (Cth) - Exceptions - Where statutory authority had a monopoly in the markets for electricity transmission and distribution services and for electricity supply - Where authority owned the transmission and distribution infrastructure - Whether authority's exclusive use of the infrastructure was part of carrying on a business - Whether refusal of access to infrastructure was merely refusal of a "licence" and thus not part of carrying on a business - Trade Practices Act 1974 (Cth), ss 2B, 2C(1)(b).

Crown – Immunity - Crown in right of the Northern Territory - "Emanation of the Crown" - Where statutory authority established by the Territory Government was the sole beneficial owner of a trading corporation - Where corporation incorporated under general enactment for the incorporation of companies rather than specific statute - Where corporation acquired for specific Government purpose - Whether corporation was an "emanation of the Crown".

Crown – Immunity - Crown in right of the Northern Territory - "Derivative Crown immunity" - Where statutory authority established by the Territory Government was the sole beneficial owner of a trading corporation - Where corporation entered into contracts with third parties - Where financial interests of the Government potentially prejudiced by preventing enforcement of those contracts under the Trade Practices Act 1974 (Cth) - Where no legal or proprietary interests of the Government affected - Whether corporation could claim "derivative Crown immunity".

Practice and procedure – Pleadings - Where points made in original pleadings but not relied on and no evidence called at trial - Whether points can be taken on appeal.

Words and phrases – "carries on a business", "market power", "take advantage of", "derivative Crown immunity", "emanation of the Crown", "direction", "licence".

Competition Policy Reform Act 1995 (Cth) – s 89.

Competition Policy Reform (Northern Territory) Act (NT) – ss 14, 15.

Power and Water Authority Act (NT) – s 16.

Trade Practices Act 1974 (Cth) – ss 2B(1), 2C(1)(b), 4, 46(1), 46(4)(c), Schedule, Pt 1, cl 46.
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