Pioneer International Pty Ltd and Greenhouse and Energy Minimum Standards Regulator

This matter concerned an application by Pioneer International Pty Ltd (the Applicant) to review a decision by the Greenhouse and Energy Minimum Standards (GEMS) Regulator (the Respondent) to cancel the registration of an air conditioning unit model on the GEMS Register. The dispute arose after the Respondent, having grounds to believe the registered air conditioning unit did not meet energy efficiency standards, issued a notice under section 61 of the relevant Act requiring the Applicant to either cancel the registration or arrange for further testing. The Applicant failed to comply with this notice, leading to the Respondent's decision to cancel the registration. The case was heard by Deputy J W Constance P.

The court was required to determine two primary issues: first, whether the Applicant had failed to comply with the notice issued under section 61 of the Act; and second, if non-compliance was established, whether the discretion to cancel the unit's registration should be exercised. The Applicant had registered the air conditioning unit in April 2018. Subsequently, the Respondent engaged an accredited testing facility, Vipac Engineers & Scientists, to conduct check testing. The Applicant disputed Vipac's competency and refused to provide necessary locking instructions for the unit, which were essential for accurate energy efficiency measurement. Despite these disputes, a Stage 1 test was conducted, and on 20 May 2020, the Respondent issued the section 61 notice.

The court found that the Applicant had indeed failed to comply with the section 61 notice, as it neither cancelled the registration nor arranged for the specified Stage 2 testing. The court accepted the evidence that the Applicant was afforded ample opportunity to comply and that the decision to withhold locking instructions was a deliberate choice. Consequently, the court was satisfied that the discretion to cancel the registration under section 54(1)(b)(iv) of the Act was enlivened. Applying the principles of administrative law, the court concluded that the exercise of this discretion by the Respondent was the preferable decision given the Applicant's non-compliance and lack of cooperation.

The reviewable decision of the Respondent, made on 2 December 2020, to cancel the GEMS Registration AAC3139 was affirmed.