Victorian Consolidated Legislation

Grain Handling and Storage Act 1995 - SECT 18

Procedure if agreement cannot be reached

18. Procedure if agreement cannot be reached



(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.

(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.

(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.

(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.

(3B) A person who is aggrieved by a decision of the Commission to refuse to
make a determination under this section, may appeal as if that decision was a
determination for the purposes of section 55(1)(c) of the
Essential Services Commission Act 2001.

(4) In making a determination the Commission must consider the matters
specified in paragraphs (i) and (j) of clause 6(4) of the Competition
Principles Agreement.

(4A) In making a determination the Commission may require the provider to
extend, or to permit the extension of, the facility used to provide a
prescribed service, subject to the matters specified in paragraph (j) of
clause 6(4) of the Competition Principles Agreement.

(5) A person who is bound by a determination may apply in writing to the
Commission for the amendment or revocation of the determination on the ground
that there has been a material change in circumstances.

(6) In determining an access dispute under this section, the Commission must
act as quickly as proper consideration of the dispute allows, having regard to
the need to carefully investigate all matters affecting the merits and fair
settlement of the dispute.



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Note See also sections 18A and 19.