Greenbot Pty Ltd v Clean Energy Regulator

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FEDERAL COURT OF AUSTRALIA

Greenbot Pty Ltd v Clean Energy Regulator [2025] FCA 369

File number(s): VID 588 of 2024
Judgment of: HORAN J
Date of judgment: 17 April 2025
Catchwords: PRACTICE AND PROCEDURE – application to set aside interlocutory injunction – decision by Clean Energy Regulator to permanently suspend applicant’s registration as a registered person under Renewable Energy (Electricity) Act 2000 (Cth) – where Regulator gave notice of termination of Deed to participate in Solar Panel Validation Initiative as the provider of an “installer app” – where interlocutory orders made by consent to stay suspension decision and prohibit Regulator from acting on notice of termination –where stay expired after suspension decision was subsequently affirmed on internal review – whether interlocutory injunction in relation to notice of termination should be set aside under r 39.05 of the Federal Court Rules2011 (Cth) – whether necessary to show exceptional circumstances – whether material change of circumstances since order made – whether there is a serious issue to be tried as to lawfulness of termination of Deed – whether balance of convenience favours continuation of interlocutory injunction
Legislation:

Federal Court of Australia Act 1976 (Cth) s 37M(1)

Renewable Energy (Electricity) Act 2000 (Cth) ss 3, 10, 11(2), 11(2A), 22, 23(2), 23B, 23C(2), 26, 27, 30A(5), 30A(5A), 66

Federal Court Rules 2011 (Cth) r 39.05(c)

Renewable Energy (Electricity) Regulations 2001 (Cth) regs 3L, 19C, 20AC, 20CL
Cases cited:

Australian Securities and Investments Commission v ActiveSuper Pty Ltd (No 4) [2013] FCA 318

Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44

Cantarella Bros Pty Ltd v Lavazza Australia Pty Ltd (No 2) [2021] FCA 894

CIP Group Pty Ltd v So (No 5) [2024] FCA 1373

Commonwealth Bank of Australia v Barker (2014) 253 CLR 169

Food Channel Network Pty Ltd v Television Food Network, GP [2010] FCA 372

GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd (2003) 128 FCR 1

Hughes Aircraft Systems International v Airservices Australia (No 3) (1997) 76 FCR 151

Kellogg Brown & Root Pty Ltd v Australian Aerospace Ltd [2007] VSC 200

Liu v The Age Co Ltd (2016) 92 NSWLR 679

Paras v Public Service Body Head of the Department of Infrastructure (No 2) [2006] FCA 652; 152 IR 352

Pivotel Satellite Pty Ltd v Optus Mobile Pty Ltd [2010] FCA 121

Re Trust Company (Nominees) Ltd (No 4) [2016] FCA 1240

Royal Botanic Gardens and Domain Trust v South Sydney City Council (2002) 240 CLR 45

Truth about Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd [2001] FCA 1603

Division: General Division
Registry: Victoria
National Practice Area: Administrative and Constitutional Law and Human Rights
Number of paragraphs: 84
Date of hearing: 6 December 2024
Counsel for the Applicant: Mr T Clarke
Solicitor for the Applicant: Elamine Lawyers
Counsel for the Respondent: Mr J Maloney
Solicitor for the Respondent: Australian Government Solicitor

ORDERS

VID 588 of 2024
BETWEEN:

GREENBOT PTY LTD (ABN 83 614 837 124)

Applicant
AND:

CLEAN ENERGY…

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Details
Case
[2025] FCA 369
Decision Date

CaseChat Overview and Summary

The case of Greenbot Pty Ltd v Clean Energy Regulator involved the Clean Energy Regulator's decision to permanently suspend Greenbot's registration under the Renewable Energy (Electricity) Act 2000 (Cth) and to terminate the Deed under which Greenbot provided an "installer app" as part of the Solar Panel Validation Initiative. The court had to determine whether an interlocutory injunction, which prohibited the Regulator from acting on the notice of termination, should be set aside. This decision was made under rule 39.05 of the Federal Court Rules 2011 (Cth), considering whether there were exceptional circumstances, a material change in circumstances since the order was made, a serious issue to be tried regarding the lawfulness of the termination of the Deed, and whether the balance of convenience favoured continuing the interlocutory injunction.

Greenbot argued that it had a good arguable case that the Deed was wrongfully terminated and that the Regulator's submissions conflated issues related to the creation of Small-scale Technology Certificates under the statutory scheme with the operation of Greenbot's installer app. The court considered whether Greenbot's submission on the balance of convenience was valid, given the internal review decision and the Regulator's intention to address the issue of the interlocutory injunction. The court found that the matter was not ready for determination on the materials before it at the case management hearing on 18 October 2024, and ordered further material and submissions to be filed, with the matter listed for hearing on 6 December 2024.

The court examined the power to set aside an interlocutory order under rule 39.05(c) of the Rules, noting that the power to vary or set aside an order existed even if the order was made by consent. The court considered that the exercise of this power depended on the particular circumstances of the case, including the nature of the interlocutory order and the circumstances in which it was made. The court determined that the application to set aside the interlocutory injunction was dismissed, and the costs of the respondent’s interlocutory application were reserved.

Orders

Orders of the court

1. The respondent’s interlocutory application filed on 8 November 2024 is dismissed.

2. The costs of the respondent’s interlocutory application are reserved.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

After commencing the proceeding for judicial review of the suspension decision and relief in relation to the purported termination of the Deed, and having obtained the interlocutory stay orders made by Neskovcin J, Greenbot proceeded to seek internal review of the suspension decision pursuant to s 66 of the REE Act. On 9 September 2024, a delegate of the Regulator confirmed the permanent suspension of Greenbot’s registration under the REE Act (the internal review decision). It was ultimately accepted by the parties that the internal review decision supersedes the interlocutory stay order made by Neskovcin J in relation to the initial suspension decision. Greenbot then filed an interlocutory application seeking leave to amend its originating application in order to challenge the internal review decision, and seeking a stay of its operation pending the determination of the proceeding. The parties exchanged submissions and filed evidence in relation to the stay application. The Regulator did not oppose the grant of leave to amend the originating application, and such leave was granted on 11 October 2024. The stay application was listed for hearing on 18 October 2024, so as to give Greenbot an opportunity to file further material in response to various matters that had been raised by the Regulator in opposition to the stay. In its reply submissions filed on 18 October 2024, Greenbot no longer pressed for a stay of the internal review decision. It may be noted that Greenbot had, in the meantime, commenced a proceeding in the Administrative Appeals Tribunal seeking merits review of the internal review decision. Greenbot’s reply submissions instead focused on a different issue arising from the written submissions filed by the Regulator in opposition to the stay of the internal review decision. In the concluding paragraphs of those submissions, the Regulator had contended that there was “no ongoing need” for order 2 of the orders made by Neskovcin J on 3 July 2024 (by which the Regulator is prohibited from acting on the notice of termination of the Deed relating to Greenbot’s participation in the SPV Initiative), and foreshadowed that this would be addressed by the Regulator at the next hearing before the Court. The Regulator’s submissions stated that it had earlier put Greenbot on notice of the Regulator’s intention to raise this issue. However, the Regulator had not at that stage filed an interlocutory application to vacate the order made by Neskovcin J in relation to its notice of termination of the Deed. When the case management hearing resumed on 18 October 2024, Greenbot maintained that there was still practical significance in its continued participation in the SPV Initiative under the Deed, notwithstanding it was no longer registered to create renewable energy certificates under Part 2 of the REE Act (subject to the outcome of the proceedings for merits review or judicial review of the internal review decision). While no point was taken about the need for a formal interlocutory application to be filed by the Regulator seeking to vacate the order that prohibits it from acting on the notice of termination of the Deed, I did not consider that this question was ready for determination on the materials that were before the Court on 18 October 2024. Accordingly, orders were made for the parties to file further material and submissions in support of or in opposition to the application to vacate order 2 of the orders made by Neskovcin J on 3 July 2024, and the matter was listed for hearing on 6 December 2024.

Ratio Decidendi

Legal Principle Established

Greenbot submitted that it has a good arguable case that the Deed had been wrongfully terminated, and that this was implicitly recognised by the Regulator when it consented to the interlocutory injunction. Greenbot argued that the discontinuance of the stay of the suspension decision did not alter the balance of convenience, and that the Regulator’s submissions “wrongly conflate the creation of STCs under the statutory STC Scheme with [Greenbot’s] provision of the installer app under the contractually-regulated SPV Initiative”. Greenbot pointed to evidence that the software errors and issues with its installer app had been addressed, and that it was continuing to grow its “software as a service” business by offering the installer app for use by unrelated third parties. Further, Greenbot submitted that most of the complaints on which the Regulator relied were related to the creation of STCs by Greenbot or related entities, as opposed to the operation of Greenbot’s installer app or web platform. CONSIDERATIONThe power to set aside an interlocutory order Rule 39.05(c) of the Rules provides that the Court may vary or set aside an order if it is interlocutory. The power arises even where such an order was “made by consent and pursuant to an agreement between the parties”: see Trust Company at [27] (Beach J). The principles governing the exercise of the power to vary or set aside an interlocutory order have been considered in numerous cases. It goes without saying that every case will depend on its particular circumstances, including the nature of the interlocutory order in question and the circumstances in which it was made. Some interlocutory orders are expressly made “until further order”. Even where not so expressed, including where the order is made “pending the determination of the proceeding”, it remains subject to the Court’s power to vary or set aside an interlocutory order if and when warranted by the circumstances. In my view, the power to vary or set aside an interlocutory order under r 39.05(c) is not conditioned by any universal requirement or preclusive rule that the applicant must establish special or exceptional circumstances before the power can be exercised. It is nevertheless relevant to have regard to the circumstances in which the previous interlocutory order was made. If the order resulted from the determination of a contested application, the interests of finality in litigation might require a party who wishes to reopen that outcome to point to a material change in circumstances or the discovery of new material which renders the continued operation of the order unjust or inappropriate. If the order was made by consent, it may be relevant to consider whether the order reflects an underlying agreement or concession regarding the position that should prevail until the final hearing or determination of the proceeding, as opposed to an interim position until further order (for example, in order to avoid or defer contesting an interlocutory application). If the consent order was intended to establish the position until the determination of the proceeding, have the circumstances changed in a way that warrants that agreed position being revisited?