Citipower Pty Ltd v Electricity Industry Ombudsman (Vic) Ltd & an or
[1999] VSC 275
•5 August 1999
SUPREME COURT OF VICTORIA
CAUSES JURISDICTION Do not Send for Reporting Not Restricted
No. 2049 of 1998
| CITIPOWER PTY LTD | Plaintiff |
| V | |
| ELECTRICITY INDUSTRY OMBUDSMAN (VIC) LTD & ANOR | Defendants |
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JUDGE: | Warren J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 31 March, 7, 8 April 1999 | |
DATE OF JUDGMENT: | 5 August 1999 | |
CASE MAY BE CITED AS: | Citipower Pty Ltd v Electricity Industry Ombudsman (Vic) Ltd & Anor | |
MEDIA NEUTRAL CITATION: | [1999] VSC 275 | |
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Tribunal – Jurisdiction – Domestic Agreement – Whether determination beyond power – Role of court – Extent of interference by a court.
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APPEARANCES: | Counsel | Solicitors |
For the Plaintiff | Mr R.M. Downing QC | Blake Dawson Waldron |
| For the Defendants | Mr G.R. Ritter QC with Mr G.J. McEwen | Tress Cocks & Maddox |
HER HONOUR:
The plaintiff seeks declarations that three determinations were made beyond power by the Electricity Industry Ombudsman concerning claims by consumers for loss and damage arising from power disruptions.
The plaintiff ("Citipower") holds a licence under the Electricity Industry Act 1993 to distribute and sell electricity in designated areas in Victoria to consumers sometimes called "end users". Under its distribution licence Citipower was required to become a member of the first defendant, Electricity Industry Ombudsman (Vic) Ltd ("EIOV"). The EIOV is a company limited by guarantee established to administer an ombudsman system with respect to the electricity industry. Citipower, along with others, is a subscriber and member of EIOV. The second defendant, Fiona Macleod, is the Ombudsman. The memorandum and articles of association of EIOV state its objects to be the establishment of an electricity industry ombudsman scheme and the appointment of an ombudsman to receive, investigate and resolve, among other matters, complaints about the provision or supply of electricity services by a member to a customer. The articles of the company deal with the usual corporate matters, membership, funding, meetings and meeting procedure, directorships and management and other matters. The articles provide, further, for a Constitution ("the Constitution"). In accordance with Articles 12.6 and 12.7 of the articles each member of EIOV agreed to be bound by the terms of the Constitution:
"12.6EIOV Limited shall operate in accordance with and observe the roles, functions, powers and obligations set out in the Electricity Industry Ombudsman Constitution ('Constitution') annexed to these Articles for the time being in force and as that document may be modified or amended from time to time.
12.7 In becoming a member of EIOV Limited each member agrees:
(a) to be bound by and observe the terms of the Constitution (to the extent that it is consistent with these Articles; and
(b) that any amendments to the Constitution shall be made in accordance with the terms of the Constitution for the time being in force."
The articles go on to provide for the appointment of an ombudsman. The second defendant to these proceedings, Ms Macleod, is the Ombudsman appointed pursuant to the articles of the company. The articles provide with respect to the Ombudsman:
"13.1 The Board shall, on the recommendation of the Council, appoint the Ombudsman of the Scheme whose terms of appointment shall include an undertaking by the Ombudsman to be bound by the provisions of the Constitution and such other terms as the Council may recommend.
13.2The Ombudsman must not be associated with any member of EIOV Limited.
13.3The Board shall, only on the recommendation of the Council, terminate the appointment of any person as the Ombudsman.
13.4The Board shall require each member to use its reasonable endeavours to ensure that the Ombudsman complies with the scheme."
The Constitution contains a scheme for dispute resolution between a customer or an aggrieved person and a licensee such as Citipower. The dispute resolution scheme contained in the Constitution reproduces the terms of the licence of Citipower for distribution issued under the Electricity Industry Act. Accordingly, the complaint or dispute resolution procedure is established under the Constitution and which in turn sets out the functions, jurisdiction, procedures and powers of the Ombudsman. For the purposes of considering the application it is necessary to set out the relevant provisions of the Constitution concerned with the Ombudsman:
"3 FUNCTIONS OF THE OMBUDSMAN
3.1The functions of the Ombudsman are to receive, to investigate and to facilitate the resolution of:
(a) complaints as to the provisions or supply of (or the failure to provide or supply) electricity services by a member to a customer as required by a licence or agreement;
(b) Billing disputes;
(c) The administration of credit and payment services in the circumstances of a particular customer;
(d) Disconnection and security deposit complaints;
(e) Complaints from owners or occupiers of land or other property about the way in which a member has exercised its statutory powers in relation to that particular land or other property or in relation to neighbouring land or other property;
(f) Complaints referred by the Office in relation to the conduct of a member's electricity business; and
(g) Such other complaints as may, by agreement with the Ombudsman and the complainant, be referred to the Ombudsman by a member.
3.2(a) Complaints may be made to the Ombudsman by consumers of electricity services and by persons directly affected by the provision of supply of (or the failure to provide or supply) such services provided by scheme members.
(b)Complaints may be made to the Ombudsman on behalf of a complainant by an authorised representative of the complainant.
(c)The focus of the EIO scheme is on individual complaints which may be oral or in writing.
(d)A complaint must have arisen from events which became known to the complainant less than one(1) year prior to the complaint being lodged. The events leading to the complaint must have occurred on or since 3 October 1994. However, the Ombudsman has a discretion to investigate any complaint arising from events before that date.
3.2To avoid doubt, the Ombudsman has jurisdiction to investigate and determine complaints involving the conduct of members' employees, servants officers, contractors or agents, and may make a determination binding the member in relation to such complaints.
4.JURISDICTION OF THE OMBUDSMAN
4.1The jurisdiction of the Ombudsman extends to the functions enumerated in Section 3.
4.2The functions of the Ombudsman do not extend to complaints relating to:
(a)the setting of prices or tariffs or determining price structures;
(b)commercial activities which are outside the scope of the member's licence;
(c)the content of Government policies, legislation, licences and codes;
(d)complaints which are specifically under consideration by any court or tribunal, or which have been considered by any of those bodies previously. Participants are encouraged not to initiate legal proceedings whilst a matter is being actively considered by the Ombudsman;
(e)any matter specifically required by legislation (including subordinate legislation or rules), codes, licences, and orders made in accordance with the law;
(f)customer contributions to the cost of capital works; and
(g)events beyond the reasonable control of a participating company and their consequences, bearing in mind current law and reasonable and relevant industry practice.
5.PROCEDURES OF THE OMBUDSMAN
5.1The Ombudsman, in handling complaints, must pursue them in a fair, just, informal and expeditious manner. In consultation with the Council, the Ombudsman is responsible for developing procedures which best achieve this objective. However, these procedures must include the following:
(a)The Ombudsman on receiving a complaint, will verify with an officer designated by the member concerned whether the member has had the opportunity to consider the complaint;
(b) The Ombudsman may proceed to investigate the complaint only after the member has had this opportunity, subject to reasonable time limits to avoid undue delay in dealing with the complaint, and the member has been notified that the Ombudsman intends to investigate the complaint;
(c) Within twenty-eight (28) days of receiving notification of an investigation by the Ombudsman, the member concerned shall provide to the Ombudsman all documentation relevant to the complaint other than documentation containing confidential information of a third party, who despite the reasonable efforts of the member, has refused to consent to disclosure of the information to the Ombudsman. If a dispute arises in relation to the provision of documents under this clause, the Ombudsman in his or her absolute discretion is to determine whether the documents or any of them are to be produced;
(d) With respect to all information concerning or relating to a complaint, the Ombudsman must act in accordance with accepted privacy principles; and
(e) In complying with any subpoena for production of documents, the Ombudsman must notify the person who has provided the information which is the subject of the subpoena so that the person concerned is afforded the opportunity to appear in court to oppose production of the documents.
6 POWERS OF THE OMBUDSMAN
6.1Binding Decisions
After completion of an investigation and in the absence of a conciliated settlement of a complaint, the Ombudsman shall resolve a complaint;
(a)(i) by making a determination that the member the subject of investigation pay compensation to a complainant,
(ii)by directing a member to provide an electricity service,
(iii)by directing a member to amend, or not to impose, a charge in relation to a service,
(iv)by directing a member to supply goods or services the subject of the complaint or undertake any necessary corrective or other work to resolve the complaint,
(v)by directing a member to make an appropriate correction, deletion or addition to a record,
(vi)by directing a member to attach to a record a statement provided by the complainant of a correction, deletion or addition sought by the complainant, and/or
(vii)by directing a member to do, not to do, or to cease doing, an act,
provided that the total of such determinations or directions in relation to an individual complaint, or in relation to claims against any one member as a result of any one event or series of related cotemporaneous events, does not exceed in value $10,000; or
(b)by dismissing the complaint.
In addition to the above, the Ombudsman, with the consent of all parties, may make a determination or direction the value of which exceed $10,000 but does not exceed $50,000.
All decisions by the Ombudsman under paragraph 6.1 shall be automatically binding upon members. However, the complainant may elect whether or not to accept the decision of the Ombudsman within twenty-one (21) days of the Ombudsman's decision. If the complainant accepts the decision of the Ombudsman, the complainant shall fully release the member from all claims, actions etc in relation to the complaint. In the event that the complainant does not accept the decision of the Ombudsman, the complainant may pursue his or her remedies in any other forum the complainant may choose and the member is then fully released from the Ombudsman's decision.
6.2Reasons
The Ombudsman shall provide complainants and members with written reasons in support of a decision under paragraph 6.1.
6.3Discretion not to investigate
The Ombudsman has the discretionary power to decline to investigate a complaint if in the opinion of the Ombudsman:
(a)the complaint is frivolous or vexatious or was not made in good faith;
(b)the complainant does not have a sufficient interest in the subject matter of the complaint;
(c)an investigation, or further investigation, is not warranted; or
(d)the complaint is more appropriately or effectively dealt with by any other body.
6.4In exercising the powers of determination or recommendation under paragraph 6.1 respectively, the Ombudsman shall not make a determination or recommendation which, when given effect, would involve a member contravening any code, licence, regulation or law of the Commonwealth or of a State. Where there is a dispute between the Ombudsman and a member about the effect of the law or of regulatory instruments, the Ombudsman may refer the matter to the Office of the Regulator-General, Senior Counsel or the courts for determination or authoritative advice, as the case may be, at the member's expense."
In 1997 three customer complaints were submitted to the ombudsman for resolution. Each of the complaints arose from an interruption to power supply that occurred on 14 November 1996. In the first complaint one Edwards, alleged that as a result of the incident a power surge occurred whereby irreparable damage was caused to a CD player. Edwards claimed damages/compensation from Citipower in the sum of $3,940. In the second complaint a car-wash business entity known as "Rub-a-Dub" alleged that as a result of the same interruption to power supply on 14 November 1996 it suffered damage to its car-wash programmer system and claimed damages/compensation in the sum of $2,432.25. In the third dispute one Schwarz alleged that as a result of the power failure on 14 November 1996 damage occurred to a computer system and damages/compensation was claimed in the sum of $3,630.00.
It was conceded by Citipower that an interruption to electricity supply occurred with respect to each claimant for a period of 20 minutes on 14 November 1996. At the time of the interruption the relevant power exchange was controlled by the Victorian Power Exchange and maintained by GPU PowerNet. Citipower maintained it had no power or control over the interruption.
In the course of reaching her determinations the Ombudsman was assisted by an advisory report from an independent electrical engineer who confirmed that Citipower had no control over the interruption and that it was caused by GPU PowerNet. The Ombudsman found in each of the three claims that the interruption to power supply occurred as a result of an operations error by a GPU PowerNet employee. In the first claim of Edwards the Ombudsman found for the claimant on 5 June 1998 and directed that Citipower pay $3,940. In the second claim of "Rub-a-Dub" the Ombudsman found for the claimant on 5 June 1998 and directed Citipower to pay $1,007.55. In the third claim of Schwarz the Ombudsman found for the claimant on 15 June 1998 and directed Citipower to pay $2,904.
The Ombudsman provided separate written reasons for decision in each matter, however, there were uniform findings of fact in each of the three sets of reasons. The relevant uniform findings were:
(1)An interruption to electricity supply was caused for a period of 20 minutes on 14 November 1996 to each of the claimant's place of supply.
(2)The interruption occurred as a result of the negligence of an employee of GPU PowerNet, the party responsible for maintenance of the power supply.
(3)The negligent employee of GPU PowerNet was contracted to the Victorian Power Exchange, the party who controlled power supplies.
(4)Citipower had no control over the interruption to power supplies.
(5)Each of the claimants suffered damage wholly or largely as claimed.
(6)Citipower was not directly responsible for the damage suffered by each of the claimants.
(7)The Ombudsman cannot determine complaints against the Victorian Power Exchange as it is not a member of the EIOV.
(8)The continuity of supply was a matter between Citipower and the Victorian Power Exchange.
(9)Consumers (including the claimants) were entitled to the benefit of an implied contract with Citipower to supply power and to make appropriate arrangements to maintain the supply of electricity to such consumers.
(10)On the basis that Citipower was able to claim under its contract with the Victorian Power Exchange for damage suffered, Citipower carried responsibility for the damage suffered by each claimant.
Citipower sought declarations and orders that each of the three determinations of the Ombudsman were made, firstly, beyond power and, secondly, in breach of the contract constituted by the memorandum and Articles of Association of EIOV and the Constitution.
Mr R. Downing QC who appeared for Citipower submitted that the Ombudsman acted beyond her contractual power and that Citipower is not bound by the determination. He relied upon particular extracts of the decision with respect to each complaint (wherein the Victorian Power Exchange was referred to as “VPX”). I set out the key parts of the findings.
In her determination on the first dispute concerning Edwards the Ombudsman stated in part:-
'Whilst I accept that Citipower was not directly responsible for the damage to Ms Edwards' property I am directed by the EIOV Constitution to bear in mind 'current law and reasonable and relevant industry practice … … ….
… … …It is accepted by VPX that the incident occurred due to the actions of a GPV PowerNet operator contracted to VPX, and that consideration has been given by VPX to methods which prevent similar incidents occurring in the future.'
In her determination on the second dispute concerning Rub-a-Dub the Ombudsman stated in part:-
'Citipower claims that, even if the damage to the car wash program was caused by interruption to power supply, it bears no responsibility for any damage as it had no control over the interruption. I accept that Citipower was not directly responsible for the damage to Rub-a-Dub Car Wash's property; however, I am directed by the EIOV Constitution to bear in mind 'current law and reasonable and relevant industry practice…'.
In her determination on the third dispute concerning Schwarz the Ombudsman stated in part:-
'VPX prepared a report which confirmed the advice submitted by Citipower as to the cause of the interruption to power.
… …Advice was sought from an independent electrical engineer. He noted that the interruption was caused by GPV PowerNet, the VPX contract failing to isolate all trip circuits prior to conducting tests. He confirmed the advice provided by Citipower that it had no control over this interruption.
….Whilst I accept that Citipower was not directly responsible for damage to the Computer, I am directed by the EIOV Constitution to bear in mind 'current law and reasonable and relevant industry practice'… … … ….
… … … ….It is accepted by VPX that the incident occurred due to the actions of a GPV PowerNet Operator contracted to VPX, and that consideration has been given by VPX to methods which would prevent similar incidents occurring in the future….'"
It was not contended by Citipower that the Ombudsman lacked jurisdiction to entertain each of the complaints. Rather, it was contended that having determined that the event complained of was not an event within the control of Citipower clause 4.2(g) of the Constitution came into operation and the function of the Ombudsman ceased. It was submitted that the Ombudsman had erred in law in respect of the interpretation and application of the powers under clause 4.2(g) of the Constitution. It was submitted that the Ombudsman had found that the "event" was not within the control of Citipower and either expressly or impliedly found that the fault lay with the Victorian Power Exchange. Mr Downing placed much emphasis upon the fact that clause 4.2(g) of the Constitution specifically excluded from the jurisdiction of the Ombudsman events beyond the “reasonable control” of Citipower “bearing in mind current law and reasonable and relevant industry practice”. He submitted that once the Ombudsman found that Citipower was not directly responsible for the damage suffered by each of the claimants that was the end of the matter. The Ombudsman became void ab initio and was devoid of all jurisdiction to proceed any further with the complaints. It was submitted that when the Ombudsman proceeded to determine liability "bearing in mind current law and reasonable and relevant industry practice" she did so in breach of the contract contained in the Constitution. It was submitted that these words relate to a determination of whether the "event" was within the reasonable control of Citipower and that the Ombudsman proceeded to determine liability on a misconceived basis. In so doing, the Ombudsman acted outside the terms of the Constitution and made a determination in respect of which Citipower was not bound.
Mr G. Ritter QC who appeared with Mr G. McEwen for the defendants, EIOV and the Ombudsman submitted that in the course of her decision with respect to each of the three claims the Ombudsman distinguished direct and indirect responsibility. Mr Ritter submitted that whilst the Ombudsman accepted in the course of her decision that Citipower was not directly responsible for the interruption to power supply it was nevertheless responsible. It was contended on behalf of EIOV and the Ombudsman that the interruption of supply was an event which was within the reasonable control of Citipower to prevent. Mr Ritter submitted that in each of the three decisions the Ombudsman made three key findings. Firstly, that it was the responsibility of Citipower to ensure that an appropriate use of system agreement was put into place. Secondly, it was the responsibility of Citipower to make appropriate arrangements to maintain the supply of electricity to customers' premises. Thirdly, that the failure of continuity of supply was a matter between Citipower and the Victorian Power Exchange. It was submitted, therefore, that the Ombudsman had correctly characterised the event as one within the reasonable control of Citipower (albeit not direct control) and that, accordingly, the Ombudsman had jurisdiction to proceed to determine each of the three claims as she did.
It was submitted, further, on behalf of the defendants, EIOV and the Ombudsman that upon the Ombudsman finding that Citipower bore responsibility to ensure that an appropriate system was in place the Ombudsman was entitled to bring to account her own knowledge about the use of system agreements within the electricity industry and about the ability of Citipower to make appropriate arrangements to maintain the supply of electricity to customers.
It was emphasised by Mr Ritter that the Ombudsman received a report from Citipower that highlighted the ease with which appropriate arrangements could have been made, firstly, to maintain electricity supply and, secondly, to ensure that the incident did not take place. The Ombudsman had the benefit, also, of a further report arising from a joint meeting between Citipower, the Victorian Power Exchange and GPU PowerNet that showed how Citipower could put in place appropriate arrangements to avoid the interruption to supply. Mr Downing criticised the Ombudsman for not referring to these reports in the course of the reasons for decision. He argued that as the Ombudsman had not referred to the report from Citipower and the further report of a joint meeting between Citipower, the Victorian Power Exchange and GPU PowerNet in her reasons this Court should not consider those documents. It was submitted that to do so would enable the defendants to bolster deficiencies in the determination in each claim. On the basis of the evidence before me I am satisfied that the reports referred to were before the Ombudsman. So much might be inferred from the reasons for the decision of the Ombudsman in that she suggests knowledge of industry arrangements and practice. However, in an affidavit sworn by the Ombudsman in the proceeding she deposed that the documents objected to were considered by her at the time of determining the matter. In hearing an application such as the present a court is entitled to consider evidence that was before the person who made the original determination. So much is clear from the observations of the Court of Appeal in Australian Football League v Carlton Football Club (1998) 2 VR 546, 569 & 581.
There was also an agreement of which the Ombudsman had general knowledge called the actual Use of System Agreement (“the Use Agreement”) Citipower and the Victorian Power Exchange. Mr Ritter submitted that the Use Agreement demonstrated that it was within the reasonable control of Citipower to avoid interruptions to power supply. It was submitted by Mr Ritter that I was entitled to consider the agreement as its terms go to the matter of jurisdictional fact. Again, Mr Downing objected to my considering the Use Agreement because it was not apparent from the reasons for decision of the Ombudsman in each case that she actually considered that agreement. In her affidavit the Ombudsman deposed that she was familiar with the existence of “Use of System Agreements”, however, she did not specifically state that she had the particular Use Agreement between Citipower and the Victorian Power Exchange was before her or that she was familiar with that specific document at the time she reached her determinations.
Insofar as it is submitted that the Ombudsman was not entitled to take account of matters including documents that were not specifically stated or described in the course of the reasons for her determination such submission is misconceived. Firstly, clause 4.2(g) entitles, indeed obliges, the Ombudsman to consider matters within her province of knowledge in order to determine whether an event was beyond the control of a participating company such as Citipower in order that she can complete the intellectual task of “bearing in mind” the matters described in clause 4.2(g) concerned with current law and practice. Furthermore, as observed by Hayne JA in AFL v Carlton Football Club Ltd (1998) 2 VR 546 (at 569) a tribunal is not limited to acting upon what would amount to evidence in a court. In particular, the learned judge (although concerned with the role of a domestic sporting tribunal) observed:
“I would go so far as to say that the members of the tribunal may inform themselves in what ever way the chairman sees fit to direct, subject only to their informing the player of the material upon which they propose to act…”
In the course of the reasons for her determination and affidavit the Ombudsman has set out sufficiently the documents upon which she relied, either directly or indirectly. In any event, all the documents even those not specifically described in the reasons for determination would form part of the accumulated knowledge of the Ombudsman for the purposes of determining current law and practice that she was required to bear in mind before determining whether a relevant event was beyond the reasonable control of Citipower in accordance with clause 4.2(g).
In view of these observations I consider that the Ombudsman had general knowledge of the terms and conditions of agreements such as the Use Agreement and took account of those terms and conditions in considering current industry practice. Accordingly, it is a matter I ought consider.
By Clause seven of the Use Agreement Citipower and the Victorian Power Exchange were obliged to “carry out and co‑ordinate Work in accordance with attachment 3”. “Work” was defined to mean:
“Installation, construction, commissioning, removal, inspection, obtaining of information, testing, undertaking of repairs or undertaking of maintenance.”
Attachment 3 to the Use Agreement was entitled “Work” and provided that:
“The parties shall negotiate in good faith the information to be provided in this attachment.”
Citipower was required by Clause 30(a) of the Use Agreement to do everything reasonably necessary to cause the Use Agreement and the transactions contemplated by it to become and remain effective. Mr Ritter informed me (and Mr Downing did not disagree) that Citipower did not negotiate the information contemplated by Attachment 3 in accordance with which the Victorian Power Exchange would have been required to carry out and co-ordinate commissioning and testing procedures. If it had done so, the failure event would not have occurred. I was further informed that the event occurred more than two years after the Use Agreement was executed.
There is no issue between the plaintiff and the first defendant that they are bound contractually to accept a determination of the Ombudsman upon a complaint referred to her. This is the correct position. Those parties have bound themselves voluntarily to the contract constituted by the Constitution and have vested jurisdiction for the determination of complaints in the Ombudsman. The question arises for me whether the court should and to what extent interfere with the determination of the Ombudsman, she being in effect a “domestic tribunal” by whose decision the plaintiff and the first defendant have agreed to abide. It was observed by Tadgell JA in AFL v Carlton Football Club Ltd, supra, at 549 that the courts have consistently refused to review decisions made by private or domestic tribunals. The learned judge observed:
“The reasons for the courts’ declining to interfere in cases such as these have been various. For one thing, where the parties have agreed to have their disputes decided by domestic tribunals designated for the purpose, the courts have been in the habit of respecting the agreement or, one might say, not countenancing a breach of it by one party wishing to desert it and to resort to the civil courts for resolution of a dispute that the tribunal was designed to decide. For another thing the courts have been prepared to recognise that there are some kinds of dispute that are much better decided by non-lawyers or people who have a special knowledge of or expertise in the matters giving rise to the dispute than a lawyer is likely to have. Again, the courts have been willing to understand that not every aspect of community life is conducted under the auspices of the State, that it is right that this should be so and that, sometimes, it is appropriate that State-appointed judges stay outside disputes of certain kinds which a private domestic tribunal has been appointed to decide.”
The learned judge observed, further, that such tribunals are not above the law rather “… the courts will not discourage private organisations from ordering their own affairs within acceptable limits” It follows that the determination of the Ombudsman owes its binding effect to the contract between Citipower and EIOV and, accordingly, the making of the determination must be consistent with that contract before it is binding.
I turn at the outset to the terms of the contract itself. In accordance with clause 4 of the Constitution the jurisdiction of the Ombudsman was extended to various functions including, for present purposes, complaints by consumers pursuant to clause 3.2 of the Constitution. Specifically, clause 4.2 of the Constitution provided that the functions of the Ombudsman did not extend to certain matters including complaints relating to “events beyond the reasonable control of a participating company and their consequences, bearing in mind current law and reasonable and relevant industry practice” as provided in clause 4.2(g) of the Constitution. Mr Downing argued that once the Ombudsman found no fault on the part of Citipower that finding constituted a finding that the relevant event was for the purposes of clause 4.2(g) of the Constitution “beyond the reasonable control” of Citipower as a participating company. He submitted that upon so finding it was not open to her to proceed to take account of other matters that may fall within the parameters of “current law and reasonable and relevant industry practice”.
In my view such a construction of clause 4.2(g) is inappropriate and distorts the clear intention of the parties in committing themselves to be bound by the terms of the Constitution including clause 4.2(g). On any view, applying a plain meaning and common sense to the construction of the sub-clause, in the process of determining whether an event was beyond the reasonable control of a participating company the Ombudsman was obliged to bear in mind current law and reasonable and relevant industry practice. To dissect the sub-clause as is argued on behalf of Citipower is erroneous In my view clause 4.2(g) of the Constitution does not contemplate two separate findings for the purposes of satisfying the provision. Rather, the sub-clause contemplates a stepped process of analysis. Furthermore, if the strained construction urged by Citipower is adopted it would lead to the words “bearing in mind current law and reasonable and relevant industry practice” having no purpose within the sub-clause. On the basis of my analysis, therefore, I consider that in accordance with the principle expressed by Tadgell JA in AFL v Carlton Football Club Ltd, supra, this Court should not interfere with the determination of the Ombudsman because Citipower and EIOV are contractually committed to be bound by the sub-clause. It is a well established principle that a tribunal such as the Ombudsman must perform the task designed for it, that is, there must be due enquiry (see Dr. Warren’s Case (1835) as cited and considered by Tadgell JA in AFL v Carlton Football Club Ltd at 550-2). The Ombudsman has done so.
Whether the finding of the Ombudsman was open to her depends upon the meaning that clause 4.2(g) of the Constitution bears. As was observed by Hayne JA in AFL v Carlton Football Club Ltd (at 564):
“… But however difficult the construction of the rule may be, there is only one construction that can be regarded as right (Upper Hunter County District Council v Australian Chilling & Freezing Co. Ltd. (1968) 118 CLR 429). And it is against that construction of the rules that one must ask whether the tribunal’s conclusion was one that was open to it”.
In light of the construction that I have found and applied to clause 4.2(g) of the Constitution it follows that I conclude that the Ombudsman was entitled to proceed to the determinations she made.
In the course of his submissions Mr Downing argued that in determining that the event of the power supply interruption was within the control of Citipower the Ombudsman was in error. In order to conclude error in that finding it would be necessary for this Court to disregard the caution given to such interference by Tadgell JA in AFL. It would involve, also, this Court effectively imposing or, at least, contemplating a conclusion different from that of the Ombudsman. The imposition or the contemplation of an alternative conclusion is not the correct approach by this Court. It is not open to me to examine the correctness of the determination of the Ombudsman as to whether the interruption of power supply was a matter within the control of Citipower. I could substitute my own opinion for that of the Ombudsman only if the determination of the Ombudsman was so aberrant as to be irrational (see Australian Workers’ Union v Bowen (No.2) (1948) 77 CLR 601, 630; AFL v Carlton Football Club Ltd, supra, 559).
In my view there was no aspect of the determinations of the Ombudsman that can be regarded as in error to that extent. She considered the facts and took account of current law, namely, obligations to consumers under the Trade Practices Act 1974 and legal obligations between Citipower EOIV and the Victorian Power Exchange. She considered, also, aspects of current industry practice by referring to or “bearing in mind” industry guidelines and arrangements. Ultimately, the Ombudsman determined that the interruption to power supply was an event about which Citipower could have done something. There is nothing on the face of the three determinations that could lead me to conclude that the determination was so aberrant as to be irrational.
Accordingly, I find that there was no error on the part of the Ombudsman in each of the determinations and I will dismiss the proceeding.
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