Citipower Pty Ltd v Electricity Industry Ombudsman (Vic) Ltd & an or - [1999] VSC 275

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Citipower Pty Ltd v Electricity Industry Ombudsman (Vic) Ltd & an or [1999] VSC 275
Case: [1999] VSC 275
Decision Date: 5 August 1999

CaseChat Overview and Summary

Citipower Pty Ltd challenged a decision made by the Electricity Industry Ombudsman (Vic) Ltd in the County Court of Victoria. The dispute centered on whether the Ombudsman's determination exceeded its powers under a domestic agreement. Citipower argued that the Ombudsman's decision was not only incorrect but also beyond the scope of the authority granted by the agreement between the parties.

The legal issues before the court involved interpreting the extent of the Ombudsman's powers under the domestic agreement and determining the appropriate role of the court in reviewing such decisions. Specifically, the court had to assess whether the Ombudsman's determination was beyond its power and whether the court should interfere with the decision.

The court examined the language of the domestic agreement and found that the Ombudsman's determination did not exceed the powers granted under the agreement. The court held that the role of the court in reviewing such decisions was limited to ensuring that the Ombudsman had not acted beyond its power. The court emphasised that it would only intervene if the Ombudsman had made an error of law or had acted in a manner that was unreasonable or irrational. In this case, the Ombudsman's decision was within the bounds of its authority, and therefore, the court did not interfere with the determination. The appeal was dismissed.

Orders