Australian Energy Regulator v AGL HP 1 Pty Ltd [2022] FCA 737

Federal Court of Australia

Australian Energy Regulator v AGL HP 1 Pty Ltd [2022] FCA 737 File number: SAD 170 of 2019

Judgment of: BESANKO J

Date of judgment: 28 June 2022

Catchwords: CONSUMER LAW — application for declaration of contravention of National Electricity Rules (NER) pursuant to s 44AAG(1) of Competition and Consumer Act 2010 (Cth) (CC Act), imposition of pecuniary penalties pursuant to s 44AAG(2)(a) of CC Act and order for engagement of compliance expert pursuant to s 44AAG(2) of CC Act — where respondents "Registered Participants" in National Electricity Market and "Generators" with respect to four wind farms (Hallett wind farms) — where during relevant period, each wind turbine at each of Hallett wind farms featured low voltage ride through capability (LVRT capability), a control system activated when voltage dipped below 80% of "nominal voltage" level and seeking to ensure turbines capable of "riding through" certain voltage disturbances — where each wind turbine at each of Hallett wind farms included repeat low voltage ride-through protection system (repeat LVRT protection system), which during relevant period had settings applied so as to be triggered if LVRT capability activated three times within 120-second period and when triggered, caused rotational speed of wind turbine to slow and wind turbine to cease generating active power — where system and settings designed and applied by supplier of wind turbines and respondents not aware of system or settings — where on 28 September 2016, six undervoltage disturbances within period of approximately 90 seconds, in response to fourth of which repeat LVRT protection system activated on a number of wind turbines at each of Hallett wind farms — where prior to connecting each of Hallett wind farms to power system, respondents required to negotiate and determine with Network Service Provider set of performance standards, including for requirements in Sch 5.2 of NER — where pursuant to cl 4.4.3 of NER, respondents required, in accordance with Sch 5.2 of NER, to provide protective systems to protect plant and associated facilities against abnormal voltage excursions of power system — where none of agreed performance standards for Hallett wind farms contained reference to repeat LVRT protection system — where pursuant to cl S5.2.2 of NER, respondents only permitted to apply settings to control system or protection system if approved in writing by Network Service Provider and Australian Energy Market Operator (AEMO) and prohibited from allowing wind turbines to supply electricity to power system without such prior approval — where respondents agree orders sought by applicant should be made — whether appropriate to make declaration sought — consideration of matters in s 64 of National Electricity Law for which there must be regard in determining civil penalty and other relevant matters — consideration of relevance of statutory maximum in fixing civil penalty in accordance with Australian Building and Construction Commissioner v Pattinson [2022] HCA 13; (2022) 399 ALR 599 — where among other things, parties submit serious breaches of NER compromising AEMO's ability to maintain power system in secure operating state — whether appropriate to impose pecuniary penalties sought — whether appropriate to make order sought for engagement of compliance expert — orders made