Australian Energy Regulator v Pelican Point Power Ltd (No 2) [2023] FCA 1381

Federal Court of Australia

Australian Energy Regulator v Pelican Point Power Ltd (No 2) [2023] FCA 1381 File number: SAD 187 of 2019

Judgment of: BESANKO J

Date of judgment: 5 October 2023

Date of publication of reasons: 10 November 2023

Catchwords: PRACTICE AND PROCEDURE — where held in principal reasons that the Australian Energy Regulator (AER) was successful in establishing that Pelican Point Power Limited's (PPPL) Short Term PASA inputs submitted after 3 February 2017 at 12.14 pm contravened cl 3.7.3(e)(2) National Electricity Rules — where at the outset of the proceedings the Court made an order that liability be heard separately, and in advance of, the determination of what relief should be granted — where relief sought is declarations and civil penalties — where dispute between parties as to the form of declarations — where the terms of s 44AAG(1) of the Competition and Consumer Act 2010 (Cth) do not appear to permit two orders, one involving declarations of contraventions of the law and one involving the imposition of civil penalties — consideration as to whether appropriate to deliver a ruling in advance of the penalty hearing indicating the terms of the declarations of contravention the Court is minded to make — held that the Court cannot make declarations (interim or otherwise) before it imposes civil penalties at the relief stage — not appropriate in the circumstances to deliver further ruling

Legislation: Competition and Consumer Act 2010 (Cth) s 44AAG Corporations Act 2001 (Cth) ss 1317E, 1317G Federal Court of Australia Act 1976 (Cth) ss 21, 22, 23, 37M

Cases cited: Australian Competition and Consumer Commission v Cement Australia Pty Ltd [2014] FCA 148 Australian Energy Regulator v Pelican Point Power Ltd [2023] FCA 1110 Ho v Grigor [2006] FCAFC 72; (2006) 151 FCR 236 Magman International Pty Ltd v Westpac Banking Corporation (1991) 32 FCR 1