Bombara v Electricity Networks Corporation T/As Western Power - [2017] WASC 378

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: BOMBARA -v- ELECTRICITY NETWORKS CORPORATION T/AS WESTERN POWER [2017] WASC 378

CORAM: KENNETH MARTIN J

HEARD: 7 NOVEMBER 2017

DELIVERED : 20 DECEMBER 2017

FILE NO/S: GDA 14 of 2015

BETWEEN: MARK JAMES BOMBARA
Appellant
AND
ELECTRICITY NETWORKS CORPORATION T/AS WESTERN POWER
First Respondent
HUGO JOSEPH BOMBARA
Second Respondent
MARIANNE VERHEGGEN
Third Respondent
ALFREDO BOMBARA
Fourth Respondent

FILE NO/S :GDA 15 of 2015

BETWEEN :HUGO JOSEPH BOMBARA
MARIANNE VERHEGGEN
Appellants
AND
ELECTRICITY NETWORKS CORPORATION T/AS WESTERN POWER
First Respondent
MARK JAMES BOMBARA
Second Respondent
ALFREDO BOMBARA
Third Respondent

ON APPEAL FROM:
For File No              :  GDA 14 of 2015
Jurisdiction              :  STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA
Coram  :MR P McNAB (SENIOR MEMBER)

MR D VOLK (ASSESSOR)
MR M HOULAHAN (ASSESSOR)

Citation :ELECTRICITY NETWORKS CORPORATION T/AS WESTERN POWER and BOMBARA [2015] WASAT 105
File No :DR 131 of 2013

For File No              :  GDA 15 of 2015
Jurisdiction              :  STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA
Coram  :MR P McNAB (SENIOR MEMBER)
MR D VOLK (ASSESSOR)
MR M HOULAHAN (ASSESSOR)

Citation :ELECTRICITY NETWORKS CORPORATION T/AS WESTERN POWER and BOMBARA [2015] WASAT 105
File No :DR 131 of 2013

Catchwords:

Appeal - Appeal by statute from tribunal - Land resumption - Statutory compensation claims - Compensation regime replaced - Jurisdiction of tribunal in issue - Contended application in first appeal of predecessor compensation regime - Vested and accrued rights to compensation not clearly removed
Appeal - Contention in second appeal as to error in prior decision of Court of Appeal - Decision binding - Leave to appeal refused on second appeal

Legislation:

Nil

Result:

GDA 14 of 2015
Application for leave to appeal granted
Appeal allowed
GDA 15 of 2015
Application for leave to appeal dismissed

Category: B

Representation:

GDA 14 of 2015

Counsel:

Appellant:     Mr M L Bennett
First Respondent           :     Mr P J Hannan
Second Respondent      :     Mr A J Camp
Third Respondent          :     Mr A J Camp
Fourth Respondent        :     No appearance

Solicitors:

Appellant:     Bennett + Co
First Respondent           :     Herbert Smith Freehills
Second Respondent      :     Butcher Paull & Calder
Third Respondent          :     Butcher Paull & Calder
Fourth Respondent        :     No appearance

GDA 15 of 2015

Counsel:

Appellants:     Mr A J Camp
First Respondent           :     Mr P J Hannan
Second Respondent      :     Mr M L Bennett
Third Respondent          :     No appearance

Solicitors:

Appellants:     Butcher Paull & Calder
First Respondent           :     Herbert Smith Freehills
Second Respondent      :     Bennett + Co
Third Respondent          :     No appearance

Case(s) referred to in judgment(s):

Electricity Networks Corporation t/as Western Power and Bombara [2015] WASAT 105
Kirk v Industrial Court (NSW) [2010] HCA 1; (2010) 239 CLR 531
Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361
Re Anstee‑Brook; Ex parte Mount Gibson Mining Ltd [2011] WASC 172; (2011) 42 WAR 35
Wattleup Road Development Co Pty Ltd v Western Australian Planning Commission [2015] WASCA 104
Western Power Corporation v Black [2007] WASCA 185
KENNETH MARTIN J:

Introduction to two applications for leave to appeal a SAT decision

On 14 September 2015, the State Administrative Tribunal (SAT) delivered reasons for decision on a preliminary question, Electricity Networks Corporation t/as Western Power and Bombara [2015] WASAT 105.
The preliminary question (see [4] of the reasons) concerned the correct date of valuation for the purposes of assessment of compensation for a taking of land by the Electricity Networks Corporation trading as Western Power (Western Power).
On 16 April 2013, Western Power had commenced application in the SAT against the respondents pursuant to s 222(1) of the Land Administration Act 1997 (WA) (LA Act 1997). The four landowner respondents to that application were, respectively, Mr Mark Bombara, Mr Hugo Bombara, Ms Marianne Verheggen and Mr Alfredo Bombara.
Western Power was effectively seeking to have the SAT determine the levels of compensation for all respondents arising out of its compulsory acquisition of estates and interests in parcels of land owned by them. The acquisition by Western Power arose out of the construction of an electricity transmission line from Muja to Kwinana (since completed) traversing land in Casuarina, Western Australia.
The SAT noted, and it was never in dispute, that the land acquisitions had been effected by a statutory 'taking order', that was registered against relevant certificates of title of the respondent landowners on 8 October 2003.
The 'taking' was expressed to be for the purposes of the 'protection of a 330 kV Electricity Transmission Line'.
As a matter of law a taking order converted the respondents' interests in their former lands into a statutory right of compensation. Hence, Western Power in 2013 was seeking to have the SAT determine the quantum of all compensation for the respondents. But a key question of controversy soon emerged as to when was the correct date of valuation for the purposes of assessing compensation?

Some more basic facts relevant to both leave applications

Further undisputed facts to be added to that commencing summary include the following:
(a)The respondents received a written notice of entry issued by or on behalf of Western Power notifying of the clearance of their lands to facilitate an establishment of the relevant electricity transmission line traversing their properties. That was on 29 September 1994.
(b)On 6 January 1995, aerial photographs of the respondents' lands taken at that date showed the completed clearance of vegetation in a corridor of land to be used for the transmission line had been effected, thereby facilitating the eventual construction of that line.
(c)The facts underlying the ground and construction works leading up to, and the establishment of this electricity transmission line all closely mirror the underlying facts that were considered by the Court of Appeal of Western Australia in the earlier appeal decision Western Power Corporation v Black [2007] WASCA 185, delivered on 7 September 2007.
(d)Reasons for decision of the SAT were delivered on 14 September 2015 upon the preliminary question concerning the applicable date of valuation ‑ for the purposes of the assessment of compensation on the application of Western Power. The SAT concluded at [84] that 'applying the uncontradicted facts here, and the reasoning in Black, we determine that the date of valuation for the purposes of the assessment of compensation in this proceedings is on or about 6 January 1995'.
(e)The preliminary question determined by the SAT had been heard entirely on the papers. Some of the respondents took different valuation date positions on that preliminary question. The reasons of the SAT (at between [56] and [82]) dealt with arguments then raised by the person who is now sole applicant for leave to appeal in GDA 14 of 2015, namely Mr Mark Bombara. Mark Bombara had sought before the SAT and again to this court in seeking leave to appeal to contend, in effect, that he held accrued and vested rights to have his compensation claim determined by the Supreme Court of Western Australia, rather than by the SAT. Effectively, his arguments were before the SAT and in this court grounded upon the suggested force and application of certain transitional provisions found within the LA Act 1997, namely s 200(2).
Mr Mark Bombara contends that s 200(2) effectively preserves for him a vested and accrued entitlement to have his statutory compensation claim ascertained under provisions of the formerly applicable compensation regime of the Public Works Act 1902 (WA), (relevantly s 63(a)) - as those former provisions had once applied) as at 6 January 1995.
(f)For GDA 14 of 2015, 6 January 1995 is the valuation date Mark Bombara fully accepts, would accord with the date selection principles established by the Court of Appeal in Black's case, being the 'date of first entry' to his land by Western Power ‑ for the purpose of thereby meeting s 45(7) of the Energy Corporations (Powers) Act 1979 (WA) as it had applied at the relevant time (ie, namely as at 6 January 1995).
(g)The valuation date for assessing compensation as advocated by the other three respondents in the SAT action was different to that accepted by Mark Bombara. They contend for the valuation date to be set at a date much later in time, namely at a time in 2003 - and when, presumably, it is also suggested by them that their taken lands were worth more. Hence, different valuation date arguments emerge in GDA 15 of 2015 ‑ which is a distinct application for leave to appeal to this court from the SAT preliminary question decision by Mr Hugo Bombara and Ms Marianne Verheggen against that SAT decision.
(h)Hugo Bombara and Marianne Verheggen had all been legally unrepresented before SAT. Mr Mark Bombara had been represented by lawyers, namely Bennett + Co.
(i)Hugo Bombara and Marianne Verheggen are now legally represented in GDA 15 of 2015 and seek to contend that the relevant date of entry for the purposes of s 45(7) was the date of registration of the taking order upon their lands, namely 8 October 2003.
(j)A fourth respondent, in this court in GDA 15 of 2015, Mr Alfredo Bombara, would appear to have aligned himself with the position taken by Hugo Bombara and Marianne Verheggen before SAT. But Alfredo Bombara no longer appears to be an active participant in either leave applications, made to this court, against the outcome of the SAT preliminary question.

The SAT decision upon the preliminary question

The SAT evaluated, but in the end rejected, all the respondents' arguments advanced at the preliminary question, including a challenge seeking to distinguish Black's case upon the facts (see Electricity Networks Corporation [31]).
The SAT also rejected other arguments to the effect that an entry on to the respondents' subject lands for the purposes of facilitating construction of an electricity transmission line and prior to the date of the eventual taking order (8 October 2003), was 'unauthorised'. It had been submitted to SAT that the consequence was that the date of actual taking was, by default, the relevant date for the determination of compensation ‑ to accord with s 241(c) of the LA Act 1997 ([41]). That submission was also rejected.
As mentioned, Hugo Bombara and Marianne Verheggen are the appellants who actively pursue GDA 15 of 2015. They were represented by counsel in this court in pursuing the present application for leave to appeal.
As mentioned, Mr Alfredo Bombara, albeit named as a respondent to both appeals, has not participated in either GDA 14 or GDA 15 of 2015.
It is more convenient to address first the application of Mr Hugo Bombara and Ms Marianne Verheggen for leave to appeal in GDA 15 of 2015. It is the more straightforward of the two applications.

GDA 15 of 2015

In GDA 15 of 2015, application was made to the court by counsel at the hearing of arguments for leave to amend the grounds of that appeal notice - to directly assert that the SAT had erred in law by applying Black's case as good law ‑ when determining the preliminary question and in determining upon the date of 6 January 1995 as the relevant valuation date for the assessment of compensation.
On the morning of the hearing, the court received further written submissions on behalf of these respondents, rendering it absolutely explicit that their challenge against the SAT decision went beyond merely seeking to distinguish Black's case upon the facts. It manifested from this late written submission that these respondents wished to contend in GDA 15 of 2015 that Black's case had been wrongly decided by the Court of Appeal of Western Australia.
That position was then confirmed verbally to me at the hearing by Mr Camp, counsel for Hugo Bombara and Marianne Verheggen.
I indicated to counsel at the time that as a single justice I was bound by and would most certainly apply that 2007 Court of Appeal decision in Black's case - thereby, inevitably leading to a rejection of all such arguments.
I also observed at the time to counsel that if it was the intention of the GDA 15 of 2015 applicants for leave to mount a direct challenge against the correctness of the decision in Black's case, that such a course would be a matter entirely for the Court of Appeal, and probably require an empanelment of five justices to constitute an appeal court to consider any such challenge. Mr Camp appeared to appreciate those obstacles, reiterating the intention of Mr Hugo Bombara and Ms Verheggen to pursue a challenge against Black's case to the Court of Appeal.
Consequently, Mr Camp asked to amend the grounds of appeal in GDA 15 of 2015, to make the position challenging the correctness of Black's case absolutely explicit.
In due course, an amended notice of appeal was filed and with only one remaining ground. It reads:
In making this appeal, the appellants will contend that:
Western Power Corp v Black [2007] WASCA 185 is wrongly decided and that the date of registration of the taking made 8 October 2003 is the correct date for the purposes of the assessment of compensation.
For such circumstances, I had indicated to Mr Camp that I would simply publish my reasons for decision in due course applying Black's case, formally rejecting arguments to the contrary, and thereby effectively leaving his clients to pursue whatever appeal pathways might be available thereafter.
An appeal from the SAT to this court carries a prerequisite of a grant of leave from this court. A grant of leave usually requires the showing a level of perceived merit in a ground of appeal raising a question of law (not fact) (see the State Administrative Tribunal Act 2004 (WA) s 105(1) and (2) and Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361.
I am satisfied that the foreshadowed challenge as articulated by counsel as sought to be pursued by Hugo Bombara and Marianne Verheggen, would meet a description of raising a question of law. But I am not satisfied, given Black's case which binds me, that I could at present legitimately assess any potential merit within such a challenge. Consequently, I would not grant the leave to appeal as is sought in GDA 15 of 2015.
I can now turn to the distinct leave arguments raised by Mark Bombara under GDA 14 of 2015.

Arguments in GDA 14 of 2015 by Mr Mark Bombara

I do not propose to set out again all of the underlying and diverse resumption and statutory compensation legislation applicable to or surrounding present arguments. It can be conveniently found collected within either the reasons for decision of the SAT of 14 September 2015 (see Electricity Networks Corporation) or in the respective reasons for decision of Wheeler JA and Buss JA in Black. No point is served by setting it out again at any length to resolve Mark Bombara's discrete and unique point of law. I only refer to distinct sections of the legislation in what follows.
For present purposes, I can commence by observing that the challenge sought to be raised by the leave to appeal sought by Mark Bombara goes to the very essence of the existence of jurisdiction in the SAT to determine his compensation entitlements upon Western Power's application to the SAT. The SAT recognised that jurisdictional dimension to his arguments (at [57] of its reasons), but in the end rejected them.
Mark Bombara contends for the right to have his compensation determined not before the SAT (under the LA Act 1997) but, rather, by the Supreme Court of Western Australia under predecessor compensation legislation, namely the Public Works Act 1902 (WA) as it applied as at 6 January 1995.
The pragmatic rationale for Mark Bombara's arguments manifests in Mr Bennett's, explanation that a pursuit of compensation via s 63 of the Public Works Act in this court provides Mr Mark Bombara with a greater scope to his compensation claim - by encompassing any injurious affection to Mark Bombara's surrounding lands. That dimension, it was said, is not available under the replacement compensatory regime of 1998 delivered under pts 9 and 10 of the LA Act 1997.
The essence of Mark Bombara's jurisdictional argument against the SAT determining his compensation claim is tied to a use of the word 'procedure', seen used twice within s 200(2) of the LA Act 1997.
Section 200 was a transitional provision in the LA Act 1997. Distilled to its essence the s 200(2) issue as now raised by Mr Mark Bombara is whether, immediately before 30 March 1998 (the appointed day when pts 9 and 10 of the LA Act 1997 took effect, see s 2 of LA Act 1997 and Gazette 27 March 1998 page 1765), it can be ascertained by reference to s 200(2) that:
a procedure had been begun but not completed under a provision of the Land Acquisition and Public Works Act 1902 ('the first Act') subsequently amended or appealed by the Acts Amendment (Land Administration) Act 1997 ('the second Act') the procedure may be continued and completed as if the first Act had not been amended by the second Act. (my underlining)
Clearly, the transitional s 200(2) needs to be interpreted within its overall surrounding statutory contextual environment, namely as a provision subsisting within pt 9 div 6 of the LA Act 1997.
To that contextual end, I would note that the long title to the LA Act 1997 (which took effect substantively on 30 March 1998) had stated that this legislation was:
an Act to consolidate and reform the law about Crown land and the compulsory acquisition of land generally, to repeal the Land Act 1933 and to provide for related matters.
Part 9 of the LA Act carried a heading 'Compulsory acquisition of interests in land', containing six divisions and with many further subdivisions therein.
Division 6 within pt 9 carried the heading 'General provisions'.
The heading to s 200, in effect, describes itself as a 'compulsory acquisition of interests in land in progress at 30 March 1998 etc, transitional provisions for certain uncompleted procedures'.
The immediately following pt 10 within the LA Act 1997 is next seen to carry a heading 'Compensation'. Within div 3 of pt 10 is s 224 'Commencing an action in the Compensation Court'. Division 4 deals with matters relating to compensation claims and the assessing of compensation (see div 5). Relevantly s 241(2)(c) says:
Regard is to be had to the value of the land with any improvements, or the interest of the claimant in the land, assessed as on ‑
(a)…;
(b)…; or
(c)in the case of an interest to which paragraphs (a) and (b) do not apply ‑ the date of the taking,
and discounting any increase or decrease in value attributable to the proposed public work.

Section 200 LA Act 1997

Evaluating the meaning of s 200(2) in its surrounding (both preceding and following) context, requires that I set out s 200 of the LA Act 1997 in full.
Section 200 of the LA Act 1997 provides:
(1)If, immediately before the appointed day, a notice of intention under section 17(2)(b) of the Land Acquisition and Public Works Act 1902 was current in relation to any land -
(a)that Act, as it stood immediately before the appointed day, continues to apply in relation to the land until the end of the period of 30 days referred to in section 17(2)(e) of that Act;
(b)if, at the end of that period, the requirements of that provision have been fulfilled, the Minister may make a taking order consistent with the notice of intention as if it had been a notice of intention issued under this Part; and
(c)a taking order made under paragraph (b) is to be treated as having been duly made under this Part, and the rights of any person, to compensation and otherwise, arising under this Part and Part 10 are to be assessed as if any act done under that Act had been duly done under this Act.
(2)Subject to subsection (1), if, immediately before the appointed day, a procedure had been begun but not completed under a provision of the Land Acquisition and Public Works Act 1902 ('the first Act') subsequently amended or repealed by the Acts Amendment (Land Acquisition) Act 1997 ('the second Act'), the procedure may be continued and completed as if the first Act had not been amended by the second Act.
(3)Without limiting subsection (2), if -
(a)any proceedings for relief in respect of any alleged act or omission done or omitted by or on behalf of the Crown in respect of any land compulsorily taken or resumed under the first Act (including an appeal from a decision made in any such proceedings) were pending immediately before the appointed day; and
(b)any relief sought in those proceedings is granted,
the person who instituted those proceedings may make any application, or take any other action, under the first Act in respect of that land as if the first Act had not been amended by the second Act, and the first Act as it existed before its amendment by the second Act applied to and in relation to any such application or other action.
(4)This section is in addition to, and does not derogate from the application to the first Act, the second Act or this Act of, the Interpretation Act 1984.

Focusing specifically at s 200(2) within s 200 as a whole, I would observe that although the surrounding s (1) and s (3) are not contended to be directly applicable to present circumstances, their content and context does provide some real assistance in ascertaining the true meaning of the word 'procedure', seen used twice within s 200(2).
The preceding and following immediate context for s 200(2), in my view, is pivotal to understanding and evaluating Mr Mark Bombara's arguments to the effect that he held vested and accrued compensation rights at 6 January 1995. He argues that such vested rights are not casually lost under subsequent legislative changes. There would need to be explicit clarity in the subsequent legislation to achieve that outcome. There is not in this case, he says. Indeed, Mr Mark Bombara goes a lot further. He says his compensation rights at 6 January 1995 were expressly preserved for him by s 200(2) of the LA Act 1997.

The wide scope of s 200(2) of the LA Act 1997

Directing my attention at the express the text of s 200(2) of the LA Act 1997, I observe first that s (2) is rendered explicitly subject to s (1), concerning a notice of intention issued before the appointed day under the former s 17(2)(b) of the Public Works Act in three following scenarios all dealt with under s (1)(a) ‑ (c), respectively. The potential breadth of the scope of s (2) needed to be expressly subjugated to the specificity of the scenarios dealt with under s 200(1).
In juxtaposition, however, I correlatively observe that s (3) carries the chapeau 'without limiting subsection 2'.
Section 200(3) then proceeds to discuss the institution of 'proceedings' as a scenario for relief in respect of land that is compulsorily taken under the Public Works Act.
From s 200(3) I would conclude that the scope of s (2) must necessarily be wider than merely covering s 200(3) proceedings. That follows from the use in s 200(2) of wider terminology referring to 'a procedure' (second line) and to 'the procedure' (third last line).
Section 200(4) is seen to say explicitly that this transitional provision was not to derogate from the application of the Interpretation Act 1984 (WA) as regards an application of either the Public Works Act or the Acts Amendment (Land Administration) Act or indeed the LA Act 1997. From that fully orthodox position, I can detect what is a directed preservation of vested rights to compensation for land that is affected ‑ in harmony with the like sentiment found in the Acts Interpretation Act. See s 37(1)(c) which provides to the effect that a repeal of legislation will usually not, unless the contrary intention appears, affect any right, interest, title, power or privilege that has been created, acquired, accrued, established or is exercisable or any status or capacity existing prior to the repeal of the legislation.

Mark Bombara's appeal

The essence of Mark Bombara's ground of appeal is captured under subpars 1.3 and 1.4 thereof - where he contends the SAT erred by holding that:
1.3a 'procedure commenced' for the purposes of s 200 of the Land Administration Act 1997 (WA) … means a judicial process directed to or for maintaining a claim for compensation, and further that, as at 30 March 1998, no such procedure had begun but not been completed under the Public Works Act [par 77 of the Decision]; and
1.4by reason of the above findings, that the tribunal had jurisdiction to determine [Mark Bombara's application] [pars 57, 81 ‑ 83 of the Decision of the SAT].
Grounds 1.3 and 1.4 capture the jurisdictional error contended for by Mark Bombara's challenge grounded upon the suggested force of s 200(2) of the LA Act 1997.
A counterpart proposition is then articulated under ground 2 of the appeal notice - contending, relevantly, (at 2.1.2) that the SAT should have held:
upon [Western Power's] entry onto [Mr Bombara's] land and/or the commencement of a procedure to acquire [Mr Bombara's] land, a 'procedure had begun but not completed' under the provisions of the Public Works Act and as such, pursuant to s 200(2) of the Land Administration Act, that procedure may be continued as if the Public Works Act had not been amended or repealed.
Those grounds capture what at base is the short point of law raised here by Mark Bombara. But that point goes to the heart of the SAT's jurisdiction to determine his compensation under the LA Act 1997 replacement compensation regime.
The challenge does not seek to attack the valuation date of 6 January 1995 which the SAT settled upon, applying principles established in Black's case.
Before resolving the short point, it is necessary to deal with two surrounding challenges raised by Western Power through counsel whilst responding to this challenge. I reject both in the end.

Western Power's resistance arguments: No decision!

First, Western Power contends that the SAT valuation date reasons and orders upon the preliminary question are not a decision or a determination made by the SAT for the purposes of being anything capable of being made the subject of an application for leave to appeal to this court.
Essentially, the Western Power argument is that SAT has not yet made any decision or determination. It was argued that the preliminary question was something akin to being like a mere recommendation made to a Minister, as was discussed in Wattleup Road Development Co Pty Ltd v Western Australian Planning Commission [2015] WASCA 104. Accordingly, the reasons of the SAT on the preliminary question could not be the proper subject of any valid application for leave to appeal to this court, so it was said.
That argument is not convincing. It is clear from the reasons for decision of the SAT in resolving issues as then raised by Mark Bombara on that preliminary question that the SAT was fully cognisant of Mark Bombara's contention that it lacked jurisdiction. Indeed, that potential consequence towards his arguments was explicitly acknowledged by the SAT, as already noted.
Moreover, were there to be any appeal constraint of a nature as contended for by Western Power, then lack of the SAT's jurisdiction might otherwise have been raised on an application for prerogative relief or judicial review to this court ‑ relief which cannot be excluded constitutionally. See the discussion of Kirk v Industrial Court (NSW) [2010] HCA 1; (2010) 239 CLR 531, and in Re Anstee‑Brook; Ex parte Mount Gibson Mining Ltd [2011] WASC 172; (2011) 42 WAR 35.
However, the jurisdictional point was squarely raised, addressed and finally rejected by the SAT as a vital part of it determining the preliminary question and the SAT then issuing further orders in consequence of the SAT continuing to assert its jurisdiction to finally determine Western Power's application to have the SAT determine compensation for all respondents.
In my view, there has been a 'decision' by the SAT that is capable of being appealed by leave to this court. The point raises a question of law concerning the jurisdiction of the SAT.
A second preliminary challenge was raised by Western Power. This was advanced on a basis that, similarly to the problems confronting the appellants in GDA 15 of 2015, it was said Black's case was decided upon an assumption which must be applied here again to what are wholly indistinguishable facts, to the effect that the regime of the LA Act 1997 compensation provisions under pts 9 and 10 thereof, was applicable. That assumption, it was put, was inconsistent with the present arguments to the effect that Mark Bombara holds accrued rights arising under the former compensation regime of the Public Works Act, rather than under the later compensation regime of the LA Act 1997.
However, by my assessment, the arguments considered in Black's case were exclusively directed at fixing the true valuation date, having regard to the term 'date of entry' as, used within s 45(7) of either the State Energy Commission Act 1979 (WA) or the Energy Operators (Powers) Act 1979 (WA) (the relevant provisions of which were substantially the same as Wheeler JA had noted in Black at [2]).
In Black at [6], Wheeler JA had set out the relevant provisions of s 45 of the State Energy Commission Act. In separate reasons reaching the same result Buss JA at [42] cited s 45(4), s 45(5), s 45(6) and s 45(7) of the Energy Operators (Powers) Act. [From a nomenclature perspective, I pause to record that it seems that over time the same Act has changed names on at least three occasions - commencing as the State Energy Commission Act (on 1 February 1980). Subsequently (from 15 December 1994), the legislation came to be known as the Energy Corporations (Powers) Act 1979. Later (from 4 July 2000), it became the Energy Operators (Powers) Act 1979.]
The jurisdictional issue inhibiting the SAT as presently sought to be raised by Mark Bombara on his application for leave to appeal to this court ‑ was not explicitly raised as an argument put to the Court of Appeal in Black's case, let alone evaluated by that court.
By my assessment, the focus of arguments canvassed under the reasons delivered by the Court of Appeal in Black was not explicitly or even implicitly concerned with the jurisdictional argument that Mark Bombara presently seeks to raise.

Evaluation of the GDA 14 of 2015 grounds of appeal

Temporally, the critical issue must fall to be addressed at 6 January 1995. That is the accepted date at which aerial photographs described in the SAT reasons at [13] show Mark Bombara's land to have been cleared of vegetation in a corridor of land cleared for the purpose of an ensuing construction of the relevant transmission lines.
Black's case considered the date of first entry for the purpose of applying s 45(7) of what was then (ie, at January 1995) the Energy Corporations (Powers) Act.
At that time, s 45(7) of the Energy Corporations (Powers) Act provided (the full text of s 45 can be seen in Wheeler JA's reasons in Black at [6]) in these terms:
(7)Any entry upon, or acquisition of, land authorised by or under this Act and any works carried out by a corporation in the performance of its functions shall be deemed to be for the purposes of a public work within the meaning of the Public Works Act 1902 … the date of first entry under this Act shall be regarded as the date of the gazetting of the notice of the acquisition of the land for the purposes of section 63 of that Act in order to ascertain the value of the land, and that Act shall apply to and in respect thereto accordingly in so far as that Act is not inconsistent with this Act.
In Black's case both Wheeler JA (with whom McLure JA agreed) and Buss JA observed upon four components of s 45(7) (Wheeler JA at [15] and Buss JA at [48]).
Wheeler JA also noted there were amendments effected to s 45(7) in 1997 under the LA Act 1997 as No 31 of 1997 by s 26 (taking effect on 3 October 1997). I note s 26(11) of that amending legislation of 1997 as regards s 45(7).
The effect of all those legislative changes in 1997 is seen under [42] of Buss JA's reasons in Black's case, where his Honour sets out s 45(7) as it read after the 1997 amendments delivered under No 31 of 1997.
The relevant focus date for present circumstances is the date of first entry under s 45(7). Applying Black's case, as both Western Power and Mark Bombara accept that I will, the date of first entry is 6 January 1995. At that time, neither the changes to the Energy Corporations (Powers) Act effected by No 31 of 1997, nor the changes to the Public Works Act as effected by the LA Act 1997 (No 30 of 1997), were operative.
I briefly digress at this point simply to repeat that the jurisdictional argument of Mr Mark Bombara is tied to the use of the word 'procedure' in s 200(2), within the transitional provisions of the LA Act 1997. His argument was dealt with but rejected very briefly under the reasons of the SAT, in a context of addressing the preliminary question. At [81] the SAT had observed:
The preservation of the right to have compensation determined by the Supreme Court rather than this Tribunal would have required the respondents or the applicant to have commenced, prior to the appointed day a 'procedure' in that Court (that is, a curial process), which did not occur. To hold otherwise, absent such a 'procedure', would be to elevate a provision merely designed to 'smooth the operation of the law' into a substantive provision creating 'new rights or obligations'.
Having expressed that view about jurisdiction, the SAT then continued at [82]:
With respect, we do not accept either of Mr Bennett's arguments. We accordingly overrule the first respondent's objection to competency. The proceedings are to continue in this Tribunal.
However, the SAT observations seen under the first sentence of [81] as cited above, conflate s (3) of s 200 with s (2).
I accept that s 200(3), by referring to a 'proceeding', would envisage a proceeding that was commenced prior to the appointed day. But as I have already now observed in respect of s 200(2), the word 'procedure' is a broader concept than a proceeding. The work of the chapeau to s 200(3) reaffirms that to be the case.
When the matter was argued in this court, counsel for Western Power (properly) did not seek to defend the first sentence in [81] of the SAT's reasons above. There, with respect, appears to have been an obvious conflating error made ‑ as between the narrower s (3) terminology of a 'proceeding' against the wider s (2) terminology of a 'procedure'.

Final evaluation

Mr Mark Bombara has to my satisfaction identified a jurisdictional error of law in the reasoning of the SAT at [81] ‑ towards the meaning and effect of s 200(2) of the LA Act 1997, as regards his accrued rights to compensation and arising in the wake of what had occurred vis-à-vis a taking of his lands at 6 January 1995. Consequently, I will grant leave to appeal in respect of his grounds in order for that error to be evaluated as regards its potential consequences in this court.
I now re‑evaluate Mark Bombara's arguments, particularly as regards the effect and force of the word 'procedure' in s 200(2) upon which great reliance is placed.
Against s 200(2) of the LA Act 1997 I need also to juxtapose s 45(7) of the Energy Corporations (Powers) Act to ascertain how it read at 6 January 1995 (which is accepted as the 'date of first entry' for the purposes of s 45(7)).
At 6 January 1995, neither the LA Act 1997 nor the Acts Amendment (Land Administration) Act (No 31 of 1995) had commenced. Hence, it is necessary to notice the then applicable provisions of the Public Works Act ‑ as they applied at 6 January 1995. From that source I will set out s 63 as then operative and found within pt III of the Public Works Act under a heading 'Compensation' in that part of the Act.
Section 63 had provided at that time (ie, at 6 January 1995):
In determining the amount of compensation (if any) to be offered, paid, or rewarded for land taken or resumed, regard shall be had solely to the following matters: ‑
(a)The value of such land with any improvements thereon, or the estate or interest of the claimant therein, as on the date of gazetting of the notice of the taking or resumption, without regard to any increase value occasioned by the proposed public works; …
Noting provisos which followed under s 63(a), I also mention s 17 of the Public Works Act as it then applied, particularly s (17)(1), referring to a 'procedure' for taking land and referring to the notice to be published in the Government Gazette to that effect.
For convenience, I repeat again that at 6 January 1995, s 45(7) of the Energy Corporations (Powers) Act read, relevantly:
… the date of first entry under this Act shall be regarded as the date of the gazetting of the notice of the acquisition of the land for the purposes of s 63 of that Act [ie the Public Works Act 1902] in order to ascertain the value of the land, and that Act shall apply to and in respect thereto accordingly in so far as the Act is not inconsistent with this Act.
Comparing and evaluating s 63(a) of the Public Works Act to s 45(7) of the Energy Corporations (Powers) Act, as they both applied at 6 January 1995, there was, in existence at that time, in my view, for a purpose of directly engaging s 200(2) of the LA Act 1997 (when it came into force relevantly on 30 March 1998), a 'procedure' which had been begun by Western Power (or its predecessor) - and which procedure under the Public Works Act had not been completed before the 30 March 1998 commencement of a the replacement compensation regime delivered under pts 9 and 10 of the LA Act 1997.
Hence, at 6 January 1995 there was as regards Mr Mark Bombara and his land, a procedure that had begun but which had not been completed. The 'procedure' was the determination of the amount of compensation to be offered, paid, or rewarded for the taking of Mark Bombara's land. The effect of s 45(7), as it then applied, was that it made the 'date of first entry' under that Act be the date to be regarded as the 'date of gazetting' of a notice of acquisition of land - for the purpose of then engaging s 63 of the Public Works Act - to ascertain the value of the land.
Consequently, for the purposes of s 63 of the Public Works Act as it then applied, there had been a date of gazetting of a notice of taking that was assumed as having occurred on 6 January 1995. A procedure had then begun, but remained incomplete as regards Mr Mark Bombara's land in the taken corridor.
Put another way, if properly advised as to his legal rights to compensation, say, at any time after 6 January 1995 (and before 30 March 1998), Mark Bombara should have been advised that there had been, for the purposes of s 63(a) of the Public Works Act, a (deemed) gazetting ‑ by a notice of the taking of his land and also, that the procedural gazetting event carried with it all the compensatory rights and entitlements of the Public Works Act at that time for Mr Bombara's benefit.
A deemed fulfilment of the gazetting provision under s 63 of the Public Works Act and its consequences under that Act would have led Mark Bombara's legal advisors to advise him at that time that he then held vested and accrued rights to compensation for his corridor land under the Public Works Act. At that time there was a deemed procedure in place via s 45(7) of the Energy Corporations (Powers) Act that was linked to the Public Works Act - delivering those compensatory rights for him.
Looking at the matter yet another way, Mr Mark Bombara at 6 January 1995 would reasonably have assumed that he then held assured rights to compensation under the Public Works Act ‑ but which would be quantified towards a monetary amount in due course. A compensation process was not fully completed by 6 January 1995, but such vested compensation rights are not lightly removed or diminished by Parliament. To the extent subsequent legislation might have otherwise have delivered a newer regime of different or lesser compensatory outcome for others, Mark Bombara's vested rights position had been entrenched and protected under the transitional provisions of s 200(2) and s 200(4) of the LA Act 1997. That legal position was consistent with the more general position made applicable both under the Interpretation Act and at common law - to the effect that vested rights are not casually diminished, removed or interfered with under subsequent legislation - unless that result is made completely explicit by the Parliament. That is not the case here. Indeed, s 200(2) articulates rather loudly to the contrary.
Consequently, I am persuaded in the end that Mr Mark Bombara's appeal is made out. The consequence is that Mark Bombara's compensation claim must be determined under the regime of the former Public Works Act compensation provisions, as they applied as at 6 January 1995.
The correlative consequence is that the SAT lacked jurisdiction to determine his compensation for the taking event. Compensation should be evaluated under the provisions of the former Public Works Act, or in other words by this court, and not by the SAT.

In summary, I grant leave to appeal and uphold Mr Mark Bombara's application to appeal GDA 14 of 2015.
In GDA 15 of 2015, I would refuse Mr Hugo Bombara and Ms Marianne Verheggen's application for leave to appeal - on the basis of my assessment of an absence of merit in a foreshadowed challenge to the correctness of Black's case - until the Court of Appeal of this State says otherwise.
Orders in those terms will issue upon the publication of these reasons. Residual issues as to costs are reserved.