Federal Court dismisses ESAA claims against ACCC

The Federal Court has dismissed claims by the Electricity Supply Association of Australia against the Australian Competition and Consumer Commission following from ACCC statements that electricity suppliers may be liable for damage suffered by consumers resulting from power surges and 'brown-outs'.

The ESAA had sought a declaration in the Federal Court that the ACCC's view was wrong. It also sought a declaration that the ESAA's view, that electricity supply companies could only be liable if a consumer demonstrated that damage resulted from the company's negligence, was correct, an injunction preventing the ACCC from publishing its view and an order that the ACCC retract previous publications of its view and publicly admit it was wrong.

The ACCC had argued that it was appropriate for the ACCC to express its views publicly and that it was appropriate to inform consumers of its views. It also argued that the proceedings brought by the ESAA were a waste of the Court’s time without an actual dispute between a consumer and an electricity supply company.

Justice Finn found that the Court could not make the orders sought by the ESAA. Guidance about the application of the implied conditions could not be given by the Court without a real dispute between a consumer and supplier. He endorsed the ACCC's ability to make public its views as to the rights and obligations of consumers and electricity suppliers under the Act.

The Court's decision vindicates the position taken by the ACCC in defending the proceedings instituted by the ESAA.

The ACCC maintains its view, which is backed by eminent Senior Counsel's advice, that the Trade Practices Act implied conditions are included in electricity supply contracts with consumers and that, depending on the circumstances, the implied conditions may be breached where consumers suffer damage from power surges or 'brown-outs'. It will, of course, be for the Court to determine this issue one day when there is an actual dispute on the issue between a consumer and an electricity supplier.