No. 4061 of 1997
- The Office of the Regulator-General Act 1994 ("the ORG Act")
establishes a body corporate called the Office of the Regulator-General
("the
Office") (s.6(1)). The Office is the defendant in this proceeding. The
statutory objectives of the Office, in the performance
of its functions and the
exercise of its powers in relation to certain regulated industries, are the
promotion of competitive market
conduct, the prevention of misuse of monopoly
or market power, the facilitation of entry into the relevant market and of
efficiency
in the regulated industry and to ensure that users and consumers
benefit from competition and efficiency (s.7(1)). The electricity
industry is
one such regulated industry (see s.3(1) of the ORG Act and s.155 of the
Electricity Industry Act 1993 ("the EI Act")).
- The Office is empowered to issue licences authorising a variety
of activities in the electricity industry including the generation,
transmission, distribution and supply and sale of electricity (see ss.159-168
of the EI Act). The plaintiff ("Powercor") is the holder of two licences
authorising Powercor to sell electricity and a distribution licence authorising
Powercor to distribute and supply electricity within its defined distribution
area (a designated area of Victoria outside the metropolitan
region), subject
to various conditions set out in the licences. One condition of the licences
issued to Powercor is that the licensee
must comply with all applicable
conditions of the "Pool Rules", defined in the licence as
follows:
. `Pool' means the market for
wholesale trading in electricity operated and administered by Victorian Power
Exchange;
. `Pool Rules'
means rules prepared by Victorian Power Exchange and certified
by the Office relating to, among other things, the operation and administration
of the Pool."
- In this proceeding Powercor seeks declarations that certain
purported amendments made by the Office to the Pool Rules are invalid
and that
certain other amendments have no effect or operation prior to the date on which
they were published.
- It is necessary to refer to the relevant facts, which were not
in dispute, and the legislative provisions (as amended) which are
relevant to
the ultimate issues raised in order to understand the competing contentions of
the parties.
- On 3 October 1994, the Office issued the said licences to
Powercor and issued a wholesale electricity market and transmission licence
to
the Victorian Power Exchange ("VPX"). The VPX is a body corporate established
by s. 41A of the EI Act with functions, subject to its licence, inter
alia, to operate and administer the market for wholesale trading in electricity
and
to operate the electricity transmission system. The licence issued to VPX
contains a number of relevant conditions. Clause 8.1
required VPX to cause to
be formed a Pool Consultative Committee ("the PCC") consisting of 11 persons:
a chairman nominated by the
Board of VPX, three persons nominated to represent
the "generators" which supply electricity to the Pool, a person nominated to
represent
the "distributors", three persons nominated to represent "Pool
customers", two of whom must be nominated to represent "retailers",
a person
nominated to represent the holders of a transmission licence, the "Pool
Manager" and the "Manager System Security". Clause
8.3 provided that "the
[PCC] must prepare and submit to the Office procedures governing the operation
of the [PCC] but the procedures
do not become effective until the Office
notifies the [PCC] in writing that they have been approved." Clause 10.1
required VPX to
comply with the applicable provisions of the Pool Rules and
cl. 9.1 of the licence provided that the Office might amend the Pool
Rules
"under section 163(6)(a) of the [EI] Act in accordance with procedures
specified by the Office". Clause 9.2 provided that
the PCC might exercise such
powers to amend the Pool Rules as were delegated to it by the Office in
accordance with the terms of
the delegation.
- Section 154 of the EI Act itself defines "pool rules" to mean
"the rules relating to the operation of the market for wholesale trading in
electricity operated
and administered by VPX". Section 163(3)(c) of the EI Act
empowers the Office to include in the conditions of a licence provisions
"requiring the licensee to observe... specified pool rules
with such
modifications or exemptions as may be determined by the Office". Further,
s. 163(6) and (7) of the EI Act (as amended) provides, as to amendment of
the Pool Rules, that:
"(6) If a licence is subject to conditions of a kind referred to in sub-section
(3)(c), the Office -
(a) may, in accordance with
procedures specified by the Office, amend the
specified industry codes or specified pool rules, or a document referred to in
such
a code or rule, for the purposes of their application under the licence;
...
(7) If the Office amends an industry code or the pool
rules or a document
referred to in a code or the rules under sub-section (6), the Office may at the
same time, in accordance with
procedures specified by the Office, amend that
code or those rules or that document for the purposes of their application
otherwise
than under the licence."
- It was common ground that the Pool Rules had come into force as
envisaged by the legislation and the licences and that, in July
1995, the Pool
Rules as amended provided that a "Pool Customer" (which included a retailer
such as Powercor) was liable to pay in
respect of electricity received by it in
each "Settlement Period" (30 minutes) an amount calculated by applying the
formula set out
in rule 160.1. A concept used in relation to two of the
relevant factors in the prescribed formula was "Pool Customer Settlement
Demand".
- Rule 160.9(a) of the Pool Rules provided that Pool Customer
Settlement Demand for a Primary Pool Customer (which included Powercor)
would
be determined by:
". the sum of the Wholesale Metered Energy plus allocated
Transmission Losses,
. plus the sum of Adjusted Gross Energy for all Second
Tier Customers
purchasing energy from the Primary Pool Customer,
. minus the sum of Adjusted Gross Energy for Non-Franchise Customers
whose
energy is provided through the Pool Customer Grid Connection Point, but who are
purchasing energy from another Retailer or
are Pool Customers."
- In turn, "Adjusted Gross Energy" was defined in rule 10.1 of
the Pool Rules in relation to Second Tier Customers and Non-Franchise
Customers
(as defined) to mean the energy calculated in accordance with rule 160.10 which
provided as follows:
"The Adjusted Gross Energy for a Non-Franchise Customer who is a Second Tier
Customer or Distribution Level Pool Customer will be
calculated as:
. Non-Franchise Customer Metered Energy multiplied by [1+((the Distribution
Loss Factor, as listed in Schedule 13
for the Distribution Network in which the
customer is embedded) divided by 100)],
. plus allocated Transmission Losses based on
the Transmission Loss Factor for
the Distribution Network in which the customer is embedded."
- For the purpose of this proceeding it is sufficient to note
that, under rule 160.10, in order to calculate "Adjusted Gross Energy",
it was
necessary to multiply the "Non-Franchise Customer Metered Energy" by "[1+((the
Distribution Loss Factor, as listed in Schedule
13...) divided by 100)]." The
Distribution Loss Factors ("DLFs") are central to the dispute in this
proceeding. Rule 80(c) and
(d) of the Pool Rules provided:
"(c) VPX must, in respect of each Settlement Period, allocate distribution
losses to non-franchise customers who become Second Tier
Customers or Pool
Participants connected to Distribution Networks, by applying the relevant
Distribution Loss Factor listed in Schedule
13.
(d) Distribution Loss Factors for 1995 must be finalised by 30 June 1995 and
will apply from 1 July of that year. Distributors
must perform an annual
review of the Distribution Loss Factors for their businesses and issue a
revised set for discussion by 31
January each year. These must be submitted to
the Pool Consultative Committee by the 31 March for approval and take effect
from
1 July of that year."
- Schedule 13 read as follows:
"SCHEDULE 13
DISTRIBUTION LOSS FACTORS
Distributor
|
Cumulative Distribution Loss Factor
[as a percentage of metered energy]
|
|
|
DLF
A
|
DLF
B
|
DLF
C
|
DLF
D
|
CitiPower |
0.41% |
1.32% |
1.81% |
4.15% |
Eastern
Energy
|
2.36% |
2.96% |
5.30% |
7.67% |
Powercor |
1.76% |
2.36% |
4.53% |
7.27% |
Solaris |
0.53% |
1.18% |
1.99% |
4.14% |
United
Energy
|
0.71% |
1.40% |
2.86% |
4.92% |
DLF A is the Distribution Loss Factor to be applied to a Second Tier Customer
or Pool Participant connected to a 66kV line.
DLF
B is the Distribution Loss Factor to be applied to a Second Tier Customer
or Pool Participant connected to the lower voltage side
of a zone substation.
DLF C is the Distribution Loss Factor to be applied to a Second Tier Customer
or Pool Participant connected
to a distribution line at voltages of 22kV, 11kV
or 6.6kV.
DLF D is the Distribution Loss Factor to be applied to a Second Tier
Customer
or Pool Participant connected to the lower voltage terminals of a distribution
transformer."
- Thus, it can be seen that the determination of Pool Customer
Settlement Demand required the calculation of "Adjusted Gross Energy"
which in
turn necessitated both the application of a Distribution Loss Factor under Rule
80(c) and Schedule 13 and the use of the
formula set out in Rule
160.10.
- It is further to be noted that Rule 80(d) of the Pool Rules
required Distributors to perform an annual review of the DLFs for their
businesses and to issue a revised set for discussion by 31 January each year.
The rule required that those revised DLFs must be submitted
to the PCC by 31
March for approval and take effect from 1 July of that year.
- At its first meeting in December 1994, the PCC had commenced
the consideration of draft operating procedures as envisaged by cl.
8.3 of
the VPX licence. Various drafts of proposed operating procedures were
thereafter considered. At its fourth meeting on 20
February 1995, the PCC
adopted draft 6 of the operating procedures dated 17 February 1995 with minor
amendments. Clause 5 of the
adopted draft provided:
5.1 Decisions
A decision of the PCC requires the approval of at least 9 Members
5.2 Recommendation
If less than 9 Members but 6 or more Members approve a proposed amendment to
the System Code, Wholesale Metering Code or the Pool
Rules, then the Committee
Chairman must forward details of the proposed amendment and the positions of
the PCC members to the Office
requesting the Office to consider making the
relevant amendment under clause 8 of the Wholesale Electricity Market
Licence."
- It appears that these draft operating procedures were never
submitted to the Office for its approval. In any event, it was common
ground
that the Office never approved them in writing or otherwise. However, the PCC
apparently conducted its proceedings in accordance
with them.
- On or about 26 October 1995 VPX issued a draft paper entitled
"Determination of Distribution Loss Factors". The paper referred
to relevant
technical issues and a methodology for data collection and analysis. I would
infer that this was received and considered
by the "Distribution Losses Working
Group" which was convened by VPX and comprised of representatives of each
distributor. In any
event, those representatives collected data concerning
each of their networks, processed the information according to a specified
methodology and provided the information to VPX for consolidation. This review
of DLFs, as envisaged by the Pool Rules, culminated
in the production of a
further document in May 1996 to which I refer below.
- In the meantime, by instrument of delegation dated 22 March
1996 the Office delegated to "the members from time to time" of the
PCC the
power of the Office to amend, inter alia, the Pool Rules. The delegation was
made subject to a number of conditions including
a requirement that in amending
the rules the PCC comply with operating procedures approved by the Office in
accordance with the VPX
licence - a condition which the PCC was not in a
position to fulfil at any relevant time. Then, on 3 May 1996, the Office
amended
the Pool Rules.
- Rule 80(c) and (d) of the Pool Rules were amended as
follows:
"(c) VPX must, in respect of each Settlement Period, allocate
distribution losses to each:
(1) Non-Franchise Customers who become Second Tier
Customers, and
(2) or Pool Participants connected to Distribution
Networks Distribution Level Pool Customer,
by applying the relevant Distribution Loss Factor listed in Schedule 13.
(d) Distribution Loss Factors for 1995 must be finalised by 30 June
1995 and will apply from 1 July of that year. Distributors must
perform an annual review of the Distribution Loss Factors for their businesses
and issue a revised set for discussion
by 31 January each year. These must be
submitted to the Pool Consultative Committee by the 31 March for approval and
take effect
from 1 July of that year."
- Rule 160.9 of the Pool Rules in relation to Pool Customer
Settlement Demand was amended but not in ways which removed the significance
of
"Adjusted Gross Energy" and Rule 160.10 was amended as follows:
"The Adjusted Gross Energy for a Non-Franchise Customer who
is a Second Tier Customer or Distribution Level Pool Customer will be
calculated as:
(a) Non-Franchise Customer Metered Energy multiplied
by [1+((-the Distribution
Loss Factor, as listed in Schedule 13 for the Distribution Network in which the
customer is embedded) divided by 100)],
(b) plus allocated Transmission Losses calculated in accordance with rule
80 and based on:
(1) the Transmission Loss Factor for the Distribution Network in which
the customer is embedded, and
(2) the Non-Franchise Customer's Metered Energy adjusted in accordance with
rule 160.10(a)."
- The table in Schedule 13 was itself amended as follows:
Distributor
|
Cumulative Distribution Loss Factor
|
|
|
DLF
A
|
DLF
B
|
DLF
C
|
DLF
D
|
CitiPower |
0.41%
0.0041
|
1.32%
0.0132
|
1.81%
0.0181
|
4.15%
0.0415
|
Eastern
Energy
|
2.36%
0.0236
|
2.96%
0.0296
|
5.30%
0.0530
|
7.67%
0.0767
|
Powercor |
1.76%
0.0176
|
2.36%
0.0236
|
4.53%
0.0453
|
7.27%
0.0727
|
Solaris |
0.53%
0.0053
|
1.18%
0.0118
|
1.99%
0.0199
|
4.14%
0.0414
|
United
Energy
|
0.71%
0.0071
|
1.40%
0.0140
|
2.86%
0.0286
|
4.92%
0.0492
|
- It can be seen that the words "divided by 100" were deleted
from the formula in Rule 160.10 but the same result was maintained by
altering
all of the DLFs in Schedule 13 to reflect that part of the calculation (by
dividing all of the DLFs by 100).
- Returning to the review of the DLFs, a report dated 16 May
1996 entitled "Review of Distribution Loss Factors" was issued by VPX
and
forwarded to the PCC. At meeting number 37 of the PCC held on 3 June 1996 the
report was the subject of considerable discussion
and certain matters affecting
DLFs and arising from the report were agreed in principle. However, no revised
DLFs were approved
at the meeting.
- On 24 June 1996, at meeting number 39 of the PCC, a "Notice of
Proposed Amendment - Vic Pool Rules" was tabled. Mr Thorpe, an executive
of
VPC and the Secretary of the PCC, advised the meeting that this proposed rule
change would "put into effect the agreement formally
reached by the PCC at
meeting 37". Concern was expressed at the meeting that the committee "was
expected to decide on this issue
so late in the day, leaving little time for
consideration before the revised DLFs were required to take effect under the
current
rules."
- This proposed amendment to the Pool Rules involved changes to
rule 160.10(a) and to Schedule 13. The proposed amendment to rule
160.10(a)
was to delete "1+" from the formula for calculation of Adjusted Gross Energy.
The proposed substituted Schedule 13 was
to be as follows:
"
|
|
|
DLF
A
|
DLF
B
|
DLF
C
|
DFL
D
|
CitiPower |
|
1.0030 |
1.0101 |
1.0148 |
1.0374 |
Eastern
Energy
|
short
subt - short hvl
- long hvl
long subt - short hvl
- long hvl
|
1.0049
1.0049
1.0340
1.0340
|
1.0119
1.0119
1.0410
1.0410
|
1.0223
1.0559
1.0514
1.0850
|
1.0444
1.0780
1.0735
1.1071
|
Powercor |
short
subt - short hvl
- long hvl
long subt - short hvl
- long hvl
|
1.0047
1.0047
1.0221
1.0221
|
1.0113
1.0113
1.0287
1.0287
|
1.0218
1.0639
1.0392
1.0813
|
1.0406
1.0827
1.0580
1.1001
|
Solaris |
short
subt
long subt
|
1.0038
1.0216
|
1.0103
1.0281
|
1.0239
1.0417
|
1.0378
1.0556
|
United
Energy
|
short
subt
long subt
|
1.00551
1.0254
|
1.0126
1.0325
|
1.0223
1.0422
|
1.0389
1.0588
|
Table 1 DLFs for short and long subtransmission and high voltage
distribution lines
DLF A is the Distribution Loss Factor to be applied to a Second Tier Customer
or Pool Participant Customer connected to either
a 66kV line or 22kV subtransmission line.
DLF B is the Distribution Loss Factor to be applied to a Second Tier Customer
or Pool Participant Customer connected to the lower
voltage side of a zone substation.
DLF C is the Distribution Loss Factor to be applied to a Second Tier
Customer
or Pool Participant Customer connected to the
distribution line at voltages of 22kV, 11kV or 6.6kV.
DLF D is the Distribution Loss Factor to be applied to a
Second Tier Customer
or Pool Participant Customer connected to the lower
voltage terminals of a distribution transformer."
- It can be seen that the DLFs are proposed to be changed and
that the removal of "1+" from rule 160.10(a) is matched by adding "1"
to each
of the revised DLFs in Schedule 13.
- The PCC voted, at meeting number 39, on acceptance of the
proposed rule changes: eight for; one against; one abstention. The committee
decided that as the vote did not achieve a minimum nine votes in favour
necessary to record PCC acceptance, the proposal would be
forwarded to the
Office for further consideration. The Secretary was directed to forward the
proposed rule changes to the Office
for further consideration.
- By letter dated 27 June 1996, the Chairman of the PCC advised
the Office that the PCC had voted (in the manner referred to above)
on these
proposed amendments to the Pool Rules (which he attached to the letter). The
letter continued that "Under the PCC's operating
procedures at least nine
members must be in favour for acceptance to be carried. A vote of six, seven
or eight requires the PCC
to forward amendment to your office for further
consideration... On behalf of the PCC I forward this amendment to your office
for
consideration."
- The Office then undertook a lengthy process of consultation,
analysis and review with respect to the proposed amendment. This process
included much correspondence, and conference with distributors'
representatives. This process extended from June 1996 to October
1996.
- On 28 October 1996 the Office purported to determine that the
Pool Rules should be amended ("the October determination"). Notices
of this
"determination" were published in the Victoria Government Gazette on 1 November
1996 and "the Age" on 30 October 1996. The
determination itself was an
instrument under seal of the Office providing for amendments set out in an
attached document and that
"the effective date of the amendment be 1 July
1996". The attached amendments were identical or substantially identical to
those
which had been forwarded by the PCC in June 1996.
- This proceeding was commenced by Powercor by originating
motion dated 13 January 1997 seeking an order quashing the October
determination
on the grounds that the Office had no power to specify 1 July
1996 as the date from which the determination took effect and on procedural
and
other grounds.
- On 24 February 1997 the Office determined to revoke the
October determination stating that:
"The purpose for making this determination is to revoke the
determination (if it be one) that is recorded in Annexure A.
The reason
for making this determination is that doubts exist about the
validity and effect of the determination recorded in Annexure A and
the Office
of the Regulator-General intends to specify and implement further procedures
pursuant to section 163(6)(a) of the Electricity Industry Act 1993 to
amend the pool rules known as the VicPool Rules."
- It was common ground that the October determination is now
inoperative (whether invalid or revoked). It is thus unnecessary to
decide its
validity.
- However, further steps were taken by the Office. On the same
day as the revocation of the October determination, the Office specified
procedures, pursuant to s.163(6) of the EI Act, to be followed in order to
amend the Pool Rules. This was done by an instrument specifying procedures
which were expressed to apply
only to the making of an amendment in the form
annexed. The procedures specified were that the annexed amendments ("the
February
amendments") should be made by sealing a document setting out the
amendments and publishing notice of their making in the Government
Gazette and
a daily newspaper. The February amendments were again in the same form as
covered by the October determination and forwarded
by the PCC. On the same
day, 24 February 1997, the amendments were made and notice was subsequently
given, in the manner specified,
by gazettal on 28 February and publication in
"The Age" on 1 March 1997. No commencement date for the amendments was stated
in them
or in the document containing them. However, in the replacement page
provided by the Office to VPX, what might be described as annotations
were
inserted stating that "By reason of Rule 80(d) of these Rules" amended Rule
160(10)(a) and amended Schedule 13 each "has effect
from 1 July 1996". This
was also asserted in a letter from the Office to VPX dated 5 March 1997.
Powercor amended its grounds for
relief and subsequently a statement of claim
was filed seeking, inter alia, a declaration that the February amendments "did
not operate
from 1 July 1996 or from any date prior to
1 March 1997".
- In support of its claim for a declaration to that effect,
Powercor submitted that:
(i) as the February amendments did not have a commencement
date, it should be presumed that they did not have retrospective operation
(citing Maxwell v. Murphy [1957] HCA 7; (1957) 96 C.L.R. 261, 267; Fisher v.
Hebburn Ltd [1960] HCA 80; (1960) 105 C.L.R. 188, 194; Rodway v. The Queen [1990] HCA 19; (1990)
169 C.L.R. 515, 518);
(ii) Section 163(6)(a) of the EI Act did not authorise the
Office to amend the Pool Rules retrospectively because the effect of a
retrospective change might put it in
breach of its licence conditions (citing
Broadcasting Co of Australia Pty Ltd v. Commonwealth [1935] HCA 3; (1935) 52 C.L.R.
52, 60; Charlton v. Members of Teachers Tribunal [1981] VicRp 79; [1981] V.R. 831
840;
(iii) the amendments constituted a "determination" within the
meaning of s.27 of the ORG Act and therefore took effect from the date
of
gazettal as provided by s.27(3) of the ORG Act;
(iv) Rule 80(d) did not have the effect of making the
amendments retrospective to 1 July 1996.
- Mr Garner, who appeared as Counsel for the Office, submitted
that there was an important threshold question, namely: "whether the
PCC
validly approved the Revised Distribution Loss Factors at its meeting on 24
June 1996", and that, if it did, Powercor's claim
must fail. He contended
that, at its meeting on 24 June 1996, the PCC voted to accept revised DLFs with
the intention that they
take effect from 1 July 1996.
- He submitted that, because the PCC had no approved operating
procedures in place, the common law position applied and that the resolution
was therefore effectively passed by a majority of votes on 24 July 1996. He
submitted that, at its meeting on 24 June 1996, eight
members of the PCC
intended to approve the revised DLFs and voted to do so. Thus, Mr Garner's
primary submission was that on 24
June 1996 the PCC had approved revised DLFs
within the meaning of Rule 80(d) of the Pool Rules. He submitted that
although the PCC
believed "that it had not effected a valid approval of the
revised [DLFs]", as a matter of law it had.
- In my opinion, the minutes show that the PCC proceeded at its
meeting on 24 June 1996 not to approve or disapprove revised DLFs
but to
consider and vote upon amendments to the Pool Rules. It is true that those
amendments, if put into force, would have had
the result of changing the DLFs
but that would have been the consequence of the amendments. It was the
amendments which were considered
and voted upon and the amendments which were
forwarded to the Office for further consideration.
- There is another reason supporting the conclusion that the PCC
was not approving revised DLFs at meeting number 39 but seeking to
amend the
Pool Rule and that is: the change to the DLFs in proposed replacement schedule
13 was not self-contained. It depended
for its correct operation upon a
complementary amendment to Rule 160.10(a) of the Pool Rules deleting "1+" from
the formula - a small
but vital amendment having regard to the changes proposed
to Schedule 13.
- I therefore do not accept the submission that the PCC approved
revised DLFs.
- Mr Garner submitted in the alternative that, if the so-called
threshold question was determined against the Office, the Office had
subsequently approved revised DLFs as manifested by the February amendments. I
also reject that submission. In my view, it fails
in limine because Rule 80(d)
makes no provision for the Office to approve revised DLFs. That is a matter
for the PCC. When Rule
80(d) provides that the revised set of DLFs must be
submitted to the PCC "for approval" the plain meaning is "for approval by
the PCC" and there is no good reason to adopt any other construction. If
the Office wishes to change the DLFs it must do so, so far as presently
relevant, by amending the Pool Rules. That is what it did by the February
amendments.
- Mr Garner next submitted, on a proper construction of Rules
80(c) and (d) of the Pool Rules, that the revised DLFs, once approved,
took
effect from 1 July 1996 whether or not the approval was given before or after
that date. It is unnecessary to decide that question
of construction because
there was no evidence that the PCC ever approved revised DLFs and, as I have
said, I do not consider that
the Office had the power to approve revised DLFs
under Rule 80(d) or that it purported to do so. Accordingly, the unrevised
DLFs
set out in Schedule 13 of the Pool Rules continued to apply for relevant
purposes until the Pool Rules were amended by the Office
in the February
amendments. Those amendments did not purport to have retrospective operation.
- The parties agreed that the February amendments at the very
least were effective from 1 March 1997. In the light of that agreement, it
is unnecessary to consider Powercor's submission that the February
amendments
constituted a "determination" within the meaning of the ORG Act and therefore
took effect from the date of gazettal as
provided by s.27(3) of the ORG Act. I
say that not because there was no dispute about the date from which the
amendments took effect
but because, if the amendments constituted a
"determination", they were clearly invalid for non-compliance with the
requirements
of s.27(1) of the ORG Act which requires a determination to
include a statement of the purpose and reasons for the making of the
determination. I would add that I do not think that an amendment to the Pool
Rules is a determination within the meaning of s.3(1)
of the ORG Act but it is
unnecessary to decide the question.
- For the reasons which I have endeavoured to state, the Office
has failed to persuade me of the correctness of any of its submissions
in
support of the proposition that the February amendments or the revised DLFs had
any operative effect prior to 1 March 1997. I
am therefore left with the prima
facie position, as put by Powercor, undisturbed. The February amendments took
effect from 1 March
1997 and all contentions of the Office to the contrary are
rejected.
Orders
1. Declare that the amendments to the Pool Rules made by the
document sealed by the defendant on 24 February 1997 did not operate
from any
date prior to 1 March 1997.
2. Counterclaim dismissed.
3. Order that the defendant pay the plaintiff's costs including
reserved costs.
---
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