Clean Energy Regulator v E Connect Solar & Electrical Pty Ltd [2023] FCA 1082

FEDERAL COURT OF AUSTRALIA Clean Energy Regulator v E Connect Solar & Electrical Pty Ltd [2023] FCA 1082 File number:

Judgment of: DERRINGTON J

Date of judgment: 13 September 2023

Catchwords: ENERGY AND RESOURCES – actions by regulator under Renewable Energy (Electricity) Act 2000 (Cth) – contravention by installer of solar energy electricity units when preparing certifications – breaches admitted – penalty to be imposed – principles concerning agreed penalty referred to CORPORATIONS – leave to proceed again company in liquidation – action by regulator seeking imposition of penalty – relevant considerations and principles explained

Competition and Consumer Act 2010 (Cth) Corporations Act 2001 (Cth) Evidence Act 1995 (Cth) Legislation: Federal Court of Australia Act 1976 (Cth) Renewable Energy (Electricity) Act 2000 (Cth) Renewable Energy (Electricity) Regulations 2001 (Cth) Companies Act 1862, 25 & 26 Vict, c 89

Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 Altinova Nominees Pty Ltd v Leveraged Capital Pty Ltd (Receivers and Managers Appointed) (In Liquidation) (No 2) [2009] FCA 42 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2018) 262 CLR 157 Australian Building and Construction Commissioner v Pattinson (2022) 274 CLR 450 Australian Competition and Consumer Commission v ACN 135 183 372 (Administrators Appointed) (formerly known as Energy Watch Pty Ltd) [2012] FCA 586 Australian Competition and Consumer Commission v ACN 135 183 372 (in liquidation) (formerly known as Energy Watch Pty Ltd) [2012] FCA 749 Australian Competition and Consumer Commission v Advanced Medical Institute Pty Limited (Administrator Appointed) (No 3) [2011] FCA 348 Australian Competition and Consumer Commission v Artorios Ink Co Pty Ltd [2013] FCA 753 Australian Competition and Consumer Commission v Australian Institute of Professional Education Pty Ltd (in liq) [2017] FCA 521 Australian Competition and Consumer Commission v Australian Medical Association Western Australian Branch (2001) 114 FCR 91 Australian Competition and Consumer Commission v Birubi Art Pty Ltd (No 2) [2018] FCA 1785 Australian Competition and Consumer Commission v Bupa Aged Care Australia Pty Ltd [2020] FCA 602 Australian Competition and Consumer Commission v Campbell (No 2) [2019] FCA 1487 Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Ltd (2015) 327 ALR 540 Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Ltd [2014] FCA 1405 Australian Competition and Consumer Commission v Cornerstone Investment Aust Pty Ltd (in liq) (No 5) [2019] FCA 1544 Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd (in liq) (2007) 161 FCR 513 Australian Competition and Consumer Commission v Get Qualified Australia Pty Ltd (in liq) (No 3) [2017] FCA 1018 Australian Competition and Consumer Commission v Lactalis Australia Pty Ltd (No 2) [2023] FCA 839 Australian Competition and Consumer Commission v Link Solutions Pty Ltd (2008) 68 ACSR 561 Australian Competition and Consumer Commission v Medibank Private Ltd (2020) 146 ACSR 181 Australian Competition and Consumer Commission v Phoenix Institute of Australia Pty Ltd (subject to deed of company arrangement) (2016) 116 ACSR 353 Australian Competition and Consumer Commission v Quantum Housing Group Pty Ltd [2020] FCA 474 Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd (2016) 340 ALR 25 Australian Competition and Consumer Commission v Samsung Electronics Australia Pty Ltd [2022] FCA 875 Australian Competition and Consumer Commission v SensaSlim Australia Pty Ltd (in liq) (No 7) [2016] FCA 484 Australian Competition and Consumer Commission v SIP Australia Pty Ltd (2003) ATPR ¶41-937 Australian Competition and Consumer Commission v The Vales Wine Company Pty Ltd (1996) ATPR ¶41-528 Australian Competition and Consumer Commission v We Buy Houses Pty Ltd (No 2) [2018] FCA 1748 Australian Competition and Consumer Commissioner v MSY Technology Pty Ltd (2012) FCR 378 Australian Pipe & Tube Pty Ltd v QBE Insurance (Australia) Limited [2015] FCA 1135 Australian Securities and Investments Commission v ACBF Funeral Plans Pty Ltd [2022] FCA 871 Australian Securities and Investments Commission v Australian Mines Limited [2023] FCA 9 Australian Securities and Investments Commission v Axis International Management Pty Ltd (2009) 178 FCR 485 Australian Securities and Investments Commission v Axis International Pty Ltd (No 7) [2011] FCA 812 Australian Securities and Investments Commission v Colonial First State Investments Limited [2021] FCA 1268 Australian Securities and Investments Commission v Dixon Advisory & Superannuation Services Ltd [2022] FCA 1105 Australian Securities and Investments Commission v General Commercial Group Pty Ltd [2023] FCA 24 Australian Securities and Investments Commission v Westpac Banking Corporation (2018) 132 ACSR 230 Buckingham v Pan Laboratories (Australia) Pty Ltd (in liq) (2004) 136 FCR 102 Cases cited: Clean Energy Regulator v MT Solar Pty Ltd [2013] FCA 205 Commissioner of Taxation v International Indigenous Football Foundation Australia Pty Ltd (in liq) [2017] FCA 538 Commonwealth of Australia v Davis Samuel Pty Ltd (No 5) (2008) 164 ACTR 1 Commonwealth v Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 482 Eopply New Energy Technology Co Ltd v EP Solar Pty Ltd [2013] FCA 356 Executive Director of the Department of Conservation and Land Management v Ringfab Environmental Structures Pty Ltd [1997] FCA 1484 Fair Work Ombudsman v Blue Sky Kids Land Pty Ltd (in liquidation) [2020] FCA 718 Fair Work Ombudsman v Foot & Thai Massage Pty Ltd (in liquidation) [2019] FCA 1601 Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421 Hastie Group Ltd (in liq) v Multiplex Constructions Pty Ltd (Formerly Brookfield Multiplex Constructions Pty Ltd) (No 2) (2021) 155 ACSR 217 Hu v PS Securities Pty Ltd as trustee of the Joseph Family Trust [2011] NSWSC 303 Hundy (Liquidator); In the Matter of Enviro Friendly Products Pty Ltd (In Liq) [2013] FCA 852 J & J Richards Super Pty Ltd ATF the J & J Richards Superannuation Fund v Linchpin Capital Group Ltd (in liq) [2020] FCA 1772 JJ Leonard Properties Pty Ltd v Leonard (WA) Pty Ltd (in liq) (1986) 11 ACLR 224 King v Yurisich (2006) 59 ACSR 598 Meehan v Stockmans Australian Cafe (Holdings) Pty Ltd (1996) 22 ACSR 123 Milardovic v Vemco Services Pty Ltd (No 2) (2016) 242 FCR 492 Minister for Environment v Northern Seafoods Pty Ltd [2022] FCA 656 Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd (2004) ATPR ¶41-993 Murphy v Astute Projects Pty Ltd [2018] FCA 2118 NW Frozen Foods Pty Ltd v Australian Consumer and Competition Commission (1996) 71 FCR 285 OD Transport (Australia) Pty Ltd (in liq) v OD Transport Pty Ltd (1997) 80 FCR 290 Phoenix Institute of Australia Pty Ltd v Australian Competition and Consumer Commission [2017] FCAFC 155 QNI Resources Pty Ltd v Park (2016) 116 ACSR 321 Re AJ Benjamin Ltd (in liq) (1969) 90 WN (Pt 1) (NSW) 107 Re Atlantic Computer Systems Plc [1992] Ch 505 Re David Lloyd & Co (1877) 6 Ch D 339 Re Gordon Grant & Grant Pty Ltd [1983] 2 Qd R 314 Re Renewable Energy Traders Pty Ltd (in liq) (2019) 140 ACSR 466 Rushleigh Services Pty Ltd v Forge Group Ltd (In Liq) (Receivers and Managers Appointed); In the Matter of Forge Group Ltd (In Liq) (Receivers and Managers Appointed) [2016] FCA 1471 Secretary, Department of Health and Ageing v Prime Nature Prize Pty Ltd (in liquidation) [2010] FCA 597 Speiser v Locums Financial Management Pty Ltd (1996) 22 ACSR 478 Swaby v Lift Capital Partners Pty Ltd (in liq) (2009) 72 ACSR 627 Tax Practitioners Board v Caolboy [2020] FCA 1559 Thomson Australian Holdings Pty Ltd v Trade Practices Commission (1981) 148 CLR 150 Tolhurst Druce & Emmerson v Maryvell Investments Pty Ltd [2007] VSC 271 Trade Practices Commission v Allied Mills Industries Pty Ltd (No 5) (1981) 60 FLR 38 Vagrand Pty Ltd (in liq) v Fielding (1993) 41 FCR 550 Volkswagen Aktiengesellschaft v Australian Competition and Consumer Commission (2021) 284 FCR 24 Water Efficiency Labelling and Standards Regulator v Renaissance Traditional Bathrooms Pty Ltd [2020] FCA 1757 Zempilas v JN Taylor Holdings Limited (in prov liq) (No 3) (1991) 55 SASR 108 ZOLL Medical Australia, in the matter of Cardiac Defibrillators Australia Pty Ltd (in liq) v Cardiac Defibrillators Australia Pty Ltd (in liq) [2022] FCA 167