Australian Energy Regulator v Pelican Point Power Ltd [2023] FCA 1110

FEDERAL COURT OF AUSTRALIA

Australian Energy Regulator v Pelican Point Power Ltd [2023] FCA 1110 File number: SAD 187 of 2019

Judgment of: BESANKO J

Date of judgment: 20 September 2023

Catchwords: CONSUMER LAW — application for declarations of contraventions of National Electricity Rules (NER) pursuant to s 44AAG(1) of the Competition and Consumer Act 2010 (Cth) — where on 8 February 2017, a day Adelaide recorded a maximum temperature of 42.4 degrees Celsius, the Australian Energy Market Operator (AEMO) had to issue a direction to initiate load shedding to return the power system to a secure operating state in South Australia — where load shedding was not required in similar conditions on 9 February 2017 as AEMO was able to direct Pelican Point Power Limited (PPPL) to synchronise and dispatch GT12 — whether (PPPL) contravened cl 3.7.3(e)(2) of the NER by failing to submit its short term Projected Assessment of System Adequacy (PASA) availability for each trading interval during the 8 February 2017 trading day so as to reflect the true physical plant capability of the Pelican Point Power Station that could be made available on 24 hours' notice — whether PPPL contravened cl 3.7.2(d)(1) of the NER by failing to submit medium term PASA (MT PASA) availability so as to reflect the true physical plant capability of the Pelican Point Power Station that could be made available on 24 hours' notice after the gas turbine GT12 was brought from dry to wet storage on 11 November 2016 — whether PPPL contravened cl 3.13.2(h) of the NER by failing to notify AEMO promptly on or after 11 November 2016 of the increased MT PASA availability CONSUMER LAW — where the AER seeks the imposition of civil penalties on PPPL — where Court made an order that liability be heard separately, and in advance of, the determination of what relief should be granted CONSUMER LAW — where the highest availability submitted by PPPL in its short term PASA (ST PASA) for the 8 February 2017 trading day was 235 MW — where PPPL's MT PASA input for 8 February 2017 was 224 MW — consideration of two hypothetical operating scenarios a reasonable generator would have had in mind, 320 MW scenario which involves GT11 and GT12 operating concurrently for four hours and the 8 February counterfactual which involves GT11 operating as it did on 8 February 2017 and GT12 operating on 8 February 2017 as it in fact operated on 9 February 2017 — consideration of principles of statutory interpretation — consideration of proper construction of the defined term "PASA availability" in cll 3.7.2(d)(1) and 3.7.3(e)(2) of the NER — where issue as to the nature and extent of the Scheduled Generator's obligations in submitting estimates or forecasts of MT and ST PASA — consideration of the meaning of "current intentions" and "best estimates" — consideration of how much non-firm gas PPPL could reasonably expect to have been able to obtain on 8 February 2017 on 24 hours' notice — whether PPPL ought to have reasonably expected that it could have secured the additional gas transport required to operate GT11 on 8 February 2017 and, for four hours, GT12 — whether the physical condition of GT12 had a bearing on availability of turbines for the purpose of making PASA submissions — consideration of expert evidence — where bulk of the historical data of the AER's expert related to January and February 2017 and not November and December 2016 — held that the AER failed to establish that the MT PASA availability of 224 MW was not a reasonable forecast at that time — held that PPPL's ST PASA inputs submitted after 3 February 2017 at 12.14 pm contravened cl 3.7.3(e)(2)