Australian Energy Regulator v Pelican Point Power Ltd (No 3) [2024] FCA 277

FEDERAL COURT OF AUSTRALIA

Australian Energy Regulator v Pelican Point Power Ltd (No 3) [2024] FCA 277 File number: SAD 187 of 2019

Judgment of: BESANKO J

Date of judgment: 27 March 2024

Catchwords: CONSUMER LAW — where held in principal reasons that the Australian Energy Regulator (AER) was successful in establishing that Pelican Point Power Ltd'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 (NER) — 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 the AER seeks declaratory orders under s 44AAG(1) of the Competition and Consumer Act 2010 (Cth) to the effect that PPPL is in breach of a State energy law as defined in s 4 of the CCA — where dispute between parties as to the form of declarations with respect to contraventions of cl 3.7.3(e)(2) and cl 3.13.2(h) — whether declarations within the scope of the case advanced at the trial as to liability — where dispute between parties as to the number of contraventions of cl 3.7.3(e)(2) — declarations made CONSUMER LAW — where the AER seeks the imposition of civil penalties on PPPL — consideration of relevant matters pursuant to s 64 of the National Electricity Law and Trade Practices Commission v CSR Limited [1990] FCA 521; (1991) 13 ATPR 41-076 — consideration of the nature and circumstances of the contravening conduct — whether the contraventions arose out of the conduct of senior management or at a lower level — consideration of the nature and extent of any loss or damage suffered as a result of the contraventions — consideration of authorities involving contraventions of the NER — whether PPPL had in place, and was complying with , a compliance program — consideration of the difficulty in detecting the contraventions —whether PPPL has engaged in any similar contravening conduct — consideration of the size and financial position of PPPL and the ENGIE Group — whether there has been co-operation and timely disclosure by PPPL — where one civil penalty should be imposed — where civil penalty of $900,000 imposed