City of Mitcham v Hutchison 3G Australia Pty Ltd & Ors No. Scciv-03-657

[2004] SASC 18

CITY OF MITCHAM v HUTCHISON 3G AUSTRALIA PTY LTD & ORS

[2004] SASC 18

Civil

1. DEBELLE J           In this action the plaintiff seeks declarations that five telecommunication facilities, known as downlink sites, erected by the first defendant, Hutchison 3G Australia Pty Ltd, constitute development which require development approval pursuant to the provisions of the Development Act 1993. The plaintiff seeks ancillary orders.

2. The plaintiff’s case turns to a large extent on the construction of provisions in the Telecommunications Act 1997 (Cth) and of provisions in a determination made pursuant to that Act called the Telecommunications (Low-Impact Facilities) Determination 1997.

3. Four of the five down-link sites are constituted in part by stobie poles which the second to sixth defendants have erected to replace existing stobie poles. Those stobie poles have been constructed in accordance with specifications of Hutchison and at the cost of Hutchison. There is a question whether those stobie poles constitute a tower within the meaning of the relevant provisions of Schedule 3 of the Telecommunications Act 1997. There is also a question whether the down-link sites constitute a low-impact facility within the meaning of the determination.

4. The evidence comprises a number of affidavits which the parties have tendered by consent. Mr Hayes QC for the plaintiff has completed his submissions. At an early stage in his submissions Mr Henry, who appears for Hutchison, referred to provisions in the Electricity Act 1996 which authorise telecommunication equipment to be attached to electricity infrastructure. In particular Mr Henry referred to s 48A of the Electricity Act which, shortly stated, authorises telecommunication equipment to be attached to electricity infrastructure which is erected on an easement secured by an electricity entity. Until a few moments ago, I was not aware of the provisions of s 48A of the Electricity Act.

5. With my wife, I am the owner of a parcel of land containing some 100 acres in the Adelaide Hills across which runs an easement in favour of what was then called the Electricity Trust of South Australia. No doubt, that easement now operates in favour of an electricity entity pursuant to the terms of the Electricity Act. For obvious reasons, none of the parties were aware of that position. I disclosed the fact and asked if any of the parties believed that I should disqualify myself. I had in mind that there is a possibility, albeit a remote possibility, that a person holding a licence under the Telecommunications Act might seek to attach to the electricity infrastructure which runs along the easement on the land held by my wife and me with the consequence that I may therefore have an interest in the outcome of this action.

6. Mr Henry, on behalf of Hutchison, has asked me to disqualify myself. The application is supported by Mr Walsh QC, who appears for the second to sixth defendants. It is opposed by the plaintiff.

7. The relevant test is described by the High Court in Johnson v Johnson (2000) 201 CLR 488 at para 11. It is in these terms:

   “[T]he test to be applied ... in determining whether a judge is disqualified by reason of the appearance of bias ... is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.”

   That test was affirmed in Ebner v Official Trustee in Bankruptcy (2001) 205 CLR 337 at para 6. The test is a strict one. It is based upon the need for public confidence in the administration of justice. As the High Court observed The Queen v Watson; Ex parte Armstrong (1976) 136 CLR 248 at 263:

   “If fair-minded people reasonably apprehend or suspect that the tribunal has prejudged the case, they cannot have confidence in the decision.”

   The issues which I must address are similar to those in Ebner v Official Trustee in Bankruptcy. In that case the High Court examined what it called the primary factual considerations, namely, whether there was a realistic possibility that the outcome of the litigation would affect the value of the shareholding of the relevant judge in the relevant bank in each case. In the particular circumstances of that case, it was held that it could not be reasonably suggested that the outcome would be likely to have any possible effect upon the value of the shares. Whilst there are some similarities, there is I think an important difference. In this case there is an easement across the land held by my wife and me. It is not as if there is a potential for such an easement. If a person holding a licence under the Telecommunications Act sought to use the stobie poles which are erected on that easement for the purpose of attaching telecommunication equipment, my wife and I might, depending on the nature of that equipment, reasonably wish to object to it. In that respect, I have a more immediate interest in the outcome of this action than did the judges who held shares in the relevant banks in Ebner v Official Trustee.

8. It is for those reasons that I think I must disqualify myself from determining this action. It is plainly a matter for regret given that all of the evidence has been led and the argument is well advanced. There is a real prospect of the argument being determined this afternoon or at least early tomorrow. Of necessity, it will be necessary for the parties to start the hearing of the action again and that will cause all parties further cost.

9. I will hear the parties as to whether any orders as to those costs should now be made.

10. The plaintiff has invited me to state a case for the Full Court and that is a course which is supported by the first defendant. The second defendants have some misgivings. I think at least the question should be examined further and a draft stated case be prepared. I will embark upon that course.