ELECTRICITY NETWORKS CORPORATION T/AS WESTERN POWER and BOMBARA - [2015] WASAT 105

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

ACT: LAND ADMINISTRATION ACT 1997 (WA)

CITATION: ELECTRICITY NETWORKS CORPORATION T/AS WESTERN POWER and BOMBARA [2015] WASAT 105

MEMBER: MR P McNAB (SENIOR MEMBER)
MR D VOLK (ASSESSOR)
MR M HOULAHAN (ASSESSOR)

HEARD: DETERMINED ON THE DOCUMENTS

DELIVERED : 14 SEPTEMBER 2015

FILE NO/S: DR 131 of 2013

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

Catchwords:

Acquisition of land – Compensation – Easement taken for major electricity infrastructure – Preliminary point - Determination of relevant date for compensation purposes – Date of first entry – Entry to clear corridor for power line – How date ascertained – Relevance of Court of Appeal decision on similar facts – Changes to legislative scheme during period of entry and date of formal taking – Whether any accrued rights – Whether Supreme Court or State Administrative Tribunal has jurisdiction to determine claims – Extent of statutory authority to enter onto land and to acquire easement – Whether entry onto land had been 'unauthorised' – Collateral attack on entry onto land – Held: State Administrative Tribunal has jurisdiction to determine matter but not to entertain collateral attack arguments – Interpretation of statutory powers given to Western Power – Extent of savings and transitional provisions – Held: no relevant accrued rights – Parliament had not altered right to receive compensation determined by independent adjudicative body – Parliament had changed date and event for determining date of first entry – Changes arose to bring about consistency between related legislation authorising entry onto and the acquisition of land – Date determined to be on or about 6 January 1995 – Words and phrases: 'date of first entry'; 'a procedure'

Legislation:

Acts Amendment (Land Administration) Act 1997 (WA), s 26(11)
Energy Operators (Powers) Act 1979 (WA), s 28(3)(c), s 45(4), s 45(7), s 46, s 49
Land Administration Act 1997 (WA), s 179, s 200, s 222(1), s 241(2)(c)
Public Works Act 1902 (WA), s 63
State Electricity Commission Act 1945 (WA), s 46, s 49

Result:

Date of valuation for the purposes of the assessment of compensation determined to be on or about 6 January 1995

Summary of Tribunal's decision:

Western Power is an electricity corporation with statutory powers to enter and acquire land.
In early 1995, pursuant to these powers, Western Power's predecessor electricity corporation (SECWA) finished clearing rural properties owned by the respondents. These properties were located east of Kwinana. The clearing took place for the purposes of the construction of a major asset of State infrastructure - namely, a 330kV electricity transmission line, sometimes described as the Muja to Kwinana transmission line. Written notice of the entry for the clearance was given to the respondents on 29 September 1994.
A corridor representing the route of the electricity transmission line was cleared of vegetation. This entry onto the respondents' land, and various other entries upon the land at other points in time, appeared to be authorised under Western Power's extensive suite of statutory powers. Further, for all electricity transmission works 'operating at 200 000 volts or above' Western Power was obligated by statute to subsequently acquire estates and interests in land appropriate for the needs of the infrastructure.
Thus, an easement for the electricity transmission line was subsequently acquired over the respondents' land. The easement followed the corridor of cleared vegetation. That event occurred on 8 October 2003 by the registration of a statutory Taking Order. The effect of the Taking Order was to convert the respondents' interests in land taken into a claim for compensation.
Prior to the taking, the Parliament had replaced the Public Works Act 1902 (WA) with a new statutory regime, with effect from March 1998. This new regime, the Land Administration Act 1997 (WA), governed future acquisitions by the Crown or State. The Act, and its consequential amending legislation, changed both the mechanism for fixing the date for determining compensation and the adjudicator of that compensation. Prior to the new arrangements, the date fixed for compensation purposes was the date of first entry which was deemed to be the date of the gazettal of the acquisition. After March 1998, the date fixed for compensation purposes was the date of first entry under legislation giving Western Power authority to enter and acquire land.
In addition, the State Administrative Tribunal had replaced the Supreme Court of Western Australia as the independent adjudicator determining the amount of compensation owed to the owner of land taken.
In 2013, Western Power commenced proceedings in the Tribunal to determine the amount of compensation that was due to the respondents. Western Power relied upon clear, and uncontradicted, documentary and other evidence (including various aerial photographs) to show that by 6 January 1995 the clearing of land for the corridor had been completed.
Western Power relied upon a 2007 decision of the Court of Appeal of Western Australia which had held that, in respect of a close neighbouring rural property, the date of first entry was when Western Power had entered the land, in effect, to commence preliminary construction work. The date determined in that case, in very similar facts and circumstances, was 'on or about 10 January 1995'. This was when some gates were erected pursuant to a notice of entry dated 29 September 1994. Indeed, the same electricity transmission line, the same form of notice of entry and the same taking were in issue there.
The respondents held different views on the construction of the legislation. The second, third and fourth respondents were self-represented and constructed a series of elaborate and complex arguments. While accepting that the Tribunal had jurisdiction to determine the matter, their main contention was that the entry onto the land was 'unauthorised'. Consequently, so they argued, the date for compensation purposes defaulted to the date of taking (8 October 2003).
The Tribunal did not accept any of the second, third and fourth respondents' statutory interpretation arguments. The Tribunal found that acceptance of these contentions would lead to a 'highly artificial and strained' construction of the legislation. The Tribunal held that the statutory scheme must be read so that a coherent set of related powers emerged authorising the various entries onto the land and the acquisition itself. These powers were also complementary to any authority given to Western Power under its easement.
Moreover, the Tribunal held that it had no jurisdiction to engage in collateral review of the entry onto land, as was foundational to the respondents' argument (that is, an inquiry into whether any relevant entry was 'authorised'). In any case, the weakness of the respondents' statutory interpretation arguments; the (unchallenged) effect and registration of the subsequent Taking Order; its statutory conversion of the rights taken into a claim for compensation, which, in turn, founded, and necessarily delimited, the Tribunal's jurisdiction, and, perhaps most importantly of all, the effluxion of time all counted against success for the respondents.
The first respondent on the other hand (who was legally represented), accepted that the date fixed for compensation purposes was the date of first entry, which was somewhere between notice of entry (in late September 1994) and 6 January 1995. There appeared to be practically no difference, for compensation purposes, between these dates.
However, the first respondent contended that the presumption against retrospectivity, in both its common law and statutory forms (including the express preservation of certain rights, described as 'a procedure' in the transitional provisions of the legislation), preserved a right of compensation to be determined by the Supreme Court of Western Australia, and not this Tribunal.
The Tribunal held that there was no relevant accrued right of compensation, as contended for by the first respondent. Parliament had not altered the right to receive compensation to be determined by an independent adjudicative body. The 'date of first entry' had not changed; only, in effect, the event or mechanism for determining that date had altered, and the adjudicative body for determining the same. Whether what was affected was classified as procedural or substantive, Parliament was entitled to make these changes and the legislation should be given effect according to its tenor. The evident purpose of the legislation was to bring about consistency between related legislation authorising entry onto and the acquisition of land. There was no relevant 'unfairness' flowing from these changes. Moreover, this was not 'a procedure' saved by the transitional provisions.
The Tribunal determined that the date of valuation for the purposes of the assessment of compensation in this proceeding was on or about 6 January 1995. All other outstanding issues between the parties were referred to mediation.

Category: A

Representation:

Counsel:

Applicant:     Mr PJ Hannan
First Respondent          :     Mr M Bennett
Second Respondent      :     Unrepresented
Third Respondent        :     Unrepresented
Fourth Respondent      :     Unrepresented

Solicitors:

Applicant:     Herbert Smith Freehills
First Respondent          :     Bennett + Co
Second Respondent      :     N/A
Third Respondent        :     N/A
Fourth Respondent      :     N/A

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

Chang v Laidley Shire Council [2007] HCA 37; (2007) 234 CLR 1
Dossett v TKJ Nominees Pty Ltd [2003] HCA 69; (2003) 218 CLR 1
Evans v New South Wales [2008] FCAFC 130; (2008) 168 FCR 576 (FC)
Giris Pty Ltd v Federal Commissioner of Taxation [1969] HCA 5; (1969) 119 CLR 365
R & R Fazzolari Pty Ltd v Parramatta City Council [2009] HCA 12; (2009) 237 CLR 603
R (on the application of O'Byrne) v Secretary of State for the Environment [2003] 1 All ER 15
Western Power Corporation v Black [2007] WASCA 185

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

On 16 April 2013, the applicant in these proceedings, Electricity Networks Corporation, trading as 'Western Power' (Western Power), commenced in the State Administrative Tribunal (Tribunal) an application under s 222(1) of the Land Administration Act 1997 (WA) (LA Act). That provision, in short, establishes a mechanism for the Tribunal to determine a claim for compensation arising out of the compulsory acquisition by, or on behalf of, the State, of estates and interests in land.
The respondents in this case are the owners of interests in land that have been compulsorily acquired by Western Power (subject lands). The acquisition arises out of the construction of a major electricity transmission line, now completed, traversing land in Casuarina, in an area east of the Kwinana Town Centre.
The acquisition was effected by a statutory Taking Order registered on the relevant certificates of title on 8 October 2003. The extent of the taking was an easement for the purposes of the 'protection of a 330kV Electricity Transmission Line'. The effect of the Taking Order is to convert the interests in land taken to a statutory right of compensation.
A preliminary question has arisen as to the date of valuation for the purposes of the assessment of compensation for that taking.

Western Power Corporation v Black

The electricity transmission line is the same infrastructure referred to by the Court of Appeal in Western Power Corporation v Black [2007] WASCA 185 (Black). In that case, the respondents were in a broadly similar position to the respondents in this case. The respondents in Black may be described, in general terms, as 'neighbours' of the respondents in this case, and were affected by the same Taking Order. As will appear below, it will be necessary to refer to Black from time to time because of the similarities in (and relevance of) that case to this case.
However, for present purposes, we may note that Wheeler JA, in Black at [1], provided the following statement of general background to the case:
The respondents are the owners of land along the route of a 300,000 [sic] volt power transmission line from Muja to Kwinana (the transmission line). That portion of the line traversing the respondents' land has been constructed. The appellant [Western Power] is the successor in title to the State Energy Commission of Western Australia (SECWA or the Commission) which constructed the transmission line.

Date for assessing compensation

The issue in Black was 'the appropriate time for the assessment of compensation for acquisition of an estate or interest in land' (at [2]). The preliminary issue to be determined by the Tribunal in this case is:
What is the date of valuation for the purposes of the assessment of compensation in this proceeding?
The trial judge in Black had determined that the 'appropriate time for the assessment of compensation' was to be determined as follows:
[T]he date of first entry [by Western Power] on the land is the date on which [Western Power] interfered with the respondents' enjoyment of their land by entering upon it for the purpose of physically constructing the transmission line[.]
On appeal, the majority in Black (Wheeler JA, at [33]; McLure JA concurring, at [35]) said:
It would appear that the date upon which [Western Power] first entered the first‑named respondent's land to carry out the 'particular undertaking', being construction of the transmission line upon a particular defined route (as opposed to the investigation of a proposed route) was on or about 10 January 1995. That 'undertaking' had been finally determined only by either the date (between 1988 and 1991) when a precise route, as opposed to a 'corridor', had been determined or by the date upon which the type of transmission line had been determined (about July 1994). It is not necessary to decide which of those dates allows the 'undertaking' for which entry was made to be identified with precision, since it appears that the entry for gate construction took place after both events.
The date selected (on or about 10 January 1995) was when Western Power 'began installing gates on the [relevant] property': at [30]. Western Power had contended in Black that the relevant date should be much earlier, November 1988, when there was an entry onto the properties for an 'initial survey' of the corridor: at [10].
Earlier, at [16], her Honour had reasoned as follows (emphasis added):
[The statutorily defined 'date of first entry' should be read as the] date upon which the appellant first enters the land 'to carry out the undertaking for which the land is to be acquired': this was the contention in [Western Power's] grounds of appeal … I think it is correct although it does not lead to the result for which [Western Power] contends. That is because this construction requires that there be an 'undertaking' which is able to be defined with some precision, at least as to the route, and perhaps also as to the type of construction to take place along that route. A determination that a transmission line should be constructed somewhere in a general area, or somewhere along a broad corridor, after survey and consultations which have yet to take place, is in my view in the nature of a proposal, or possibility only.
Accordingly, as the majority of the Court of Appeal's conclusion was 'consistent with that reached by the [trial judge], albeit by different reasoning', it followed that the appeal was dismissed: at [34].
Buss JA reached a similar conclusion, saying at [53] (emphasis added):
[Western Power] first entered upon the [respondents'] land, in connection with the specific and definite works in question, on or about 10 January 1995.

The parties' contentions

In summary, the respective parties' positions on the preliminary issue are as follows:
1)Western Power contends that, on the uncontradicted facts and in the circumstances of this case (see below), and after generally applying the reasoning in Black, the 'date of first entry' (that is, the relevant 'date of taking' for ascertaining the value of the land taken) is, in effect, on or about 6 January 1995. This is the date when certain aerial photographs showed that the respondents' properties were cleared of vegetation in the corridor of the transmission line, a corridor which was by then a 'definable route'. In other words, it is said that that event is analogous to the manifestation (for compensation assessment purposes) of the 'specific and definite works in question' (that is, by the installation of gates which had occurred in Black).
2)In contrast, the first respondent submits that the Supreme Court, and not this Tribunal, must determine compensation because of, in effect, certain accrued rights preserved under the Public Works Act 1902 (WA). Thus, it is contended by the first respondent that the LA Act is not the source of authority for these proceedings and that, consequently, the Tribunal has no jurisdiction to determine compensation in this matter. However, the first respondent says that the relevant date for compensation purposes is a date of first entry somewhere between 29 September 1994, when written notice was given of, inter alia, the proposed clearance of vegetation in the corridor of the transmission line, and 6 January 1995, when the clearance was complete. (There appears to be little, if any, practical difference between these dates and Western Power's date of on or about 6 January 1995.)
3)The remaining respondents contend that the date of the registration of the Taking Order (8 October 2003) is the proper and relevant 'date of taking' for ascertaining the value of the land taken. The remaining respondents do not challenge the jurisdiction of the Tribunal to at least decide this issue.

The legal framework

The statutory context for determining this matter is somewhat complex because of the historical and interlocking nature of the relevant statutes. In Black, Wheeler JA gave the following overview of the statutory framework, at [2].
[The] appeal concerns the appropriate time for the assessment of compensation for acquisition of an estate or interest in land under the former State Energy Commission Act 1979 (WA) ... Although that Act has since been superseded by the Energy Operators (Powers) Act 1979 (WA) … the relevant provisions are substantially the same. Similarly, although the relevant provisions of the Public Works Act 1902 (WA) have been superseded by the Land Administration Act 1997 (WA) (LA Act), there is no difference of significance to this case. It is accepted that the relevant time is the 'date of first entry' [under s 45(7) of the Energy Operators (Powers) Act 1979 (WA)].
The following matters of detailed fact and law were asserted by Western Power in its written submissions in this case (certain document cross‑references have been omitted):
12.At all material times up until 1 February 1980 the predecessor of Western Power was a body corporate (SEC) called the 'State Electricity Commission of Western Australia' established pursuant to the State Electricity Commission Act 1945 (WA).
13.On 1 February 1980 the State Energy Commission Act 1979 (WA) came into force. Section 7 of that statute preserved the SEC as constituted by the State Electricity Commission Act 1945 (WA) and continued it in existence as the 'State Energy Commission of Western Australia' (SECWA).
…
15.SECWA served a notice of entry dated 16 April 1987 on the Original Owners [of the subject lands] (Notice of Entry) pursuant to section 46 of the State Energy Commission Act 1979 (WA).
…
24.SECWA served notices dated 29 September 1994 on the Respondents entitled 'Proposed 330KV Transmission Line Muja – Collie – Kemerton ‑ Mandogalup' advising that SECWA required to enter the Subject Land[s] to carry out construction of the transmission line described in the notices (Transmission Line).
…
26.[An] Electricity Corporation trading as 'Western Power Corporation' (WPC) was established by section 4 of the Electricity Corporation Act 1994 (WA) on 1 January 1995. Pursuant to sections 44 [and] 45 of the Energy Corporations (Transitional and Consequential Provisions) Act 1994 (WA) [SECWA]'s rights and assets, so far as they related to electricity operations, were transferred to WPC.
27.On or about 9 April 2003 WPC served notices of intention to take dated 9 April 2003 on the Respondents under the Energy Operators (Powers) Act 1979 (WA) pursuant to section 170 of the Land Administration Act 1997 (WA) in relation to the Subject Land.
28.Section 45(5) of the Energy Operators (Powers) Act 1979 (WA) (enacted as the State Energy Commission Act) originally provided that compensation was to be determined and recovered in accordance with the Public Works Act 1902 (WA) as read with section 45(5) of the Energy Operators (Powers) Act 1979 (WA). As from 30 March 1998 [the 'appointed day', see below], section 45(5) of the Energy Operators (Powers) Act 1979 (WA) provided that compensation is to be determined and recovered under Parts 9 and 10 of the Land Administration Act 1997 (WA) as read with section 45(5) of the Energy Operators (Powers) Act 1979 (WA). See sections 2 [and] 26(10) of the Acts Amendment (Land Administration) Act 1997 (WA); section 2(1) of the Land Administration Act 1997 (WA) …; [and] WA Government Gazette of 27 March 1998 at 1765.
29.On or about 8 October 2003 WPC served a taking order dated 8 October 2003 on the Respondents (Taking Order) under the Energy Operators (Powers) Act 1979 (WA) and the Land Administration Act 1997 (WA) in relation to the Subject Land.
30.On 8 October 2003 Dealing No I653596 was registered in accordance with the Transfer of Land Act 1893 (WA) in respect of each of the certificates of title comprising the Subject Land[s] thereby recording an easement in favour of WPC over the Subject Land[s] (Easement).
31.The Respondents served on WPC a claim dated 21 April 2004 (2004 Compensation Claim) for compensation (headed 'Claim for Compensation') in respect of the interests in the Subject Land taken from the Respondents to create the Easement.

The Taking Order which, as mentioned, expressly relies upon both the Energy Operators (Powers) Act 1979 (WA) (EOP Act) and the LA Act, recited that all 'registered and unregistered interests required to create an easement' on certain extensive terms and conditions (including therein, in effect, various powers of entry to and occupation of the subject lands), were 'taken' from the respondents,
… as Crown interests in the name of the State of Western Australia for the purposes of the protection of a 330kV Electricity Transmission Line being the designated public work under [the LA Act].
Section 45(7) of the EOP Act in its current form provides as follows:
Any entry upon, or acquisition of, land authorised by or under this Act and any works carried out by an energy operator 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 energy operator shall be deemed to be a local authority within the meaning of that Act authorised to effect that acquisition under Part 9 of the Land Administration Act 1997 or undertake that public work under the Public Works Act 1902, the date of first entry under this Act shall be regarded as the date of the taking of the land for the purposes of section 241(2)(c) of the Land Administration Act 1997 [reproduced below] 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.
Section 45(7) of the EOP Act (in its original form and under a different statutory title) was amended by s 26(11) of the Acts Amendment (Land Administration) Act 1997 (WA) as follows:
(a)by deleting 'acquisition or undertake that public work,' and substituting the following ‑
'acquisition under Part 9 of the Land Administration Act 1997 or undertake that public work under the Public Works Act 1902,';
and
(b)by deleting 'gazetting of the notice of the acquisition of the land for the purposes of section 63 of that Act' and substituting the following ‑
'taking of the land for the purposes of section 241(2)(c) of the Land Administration Act 1997'.
Accordingly, in Black, Wheeler JA said, at [15] (emphasis added):
The critical question is what is meant by 'first entry' for the purpose of s 45(7) [of the EOP Act, and its predecessors]. Both [Western Power] and the respondents seem to agree that the 'first entry' took place [sometime] before the amendments to that section in 1997 [see immediately above]. Prior to the 1997 amendments, s 45(7) performed four distinct functions. The first two ‑ deeming entry upon and acquisition of works under the [State Energy Commission Act 1979 (WA) (SEC Act)] to be 'for the purposes of a public work', and deeming [SECWA] to be a local authority ‑ appear to be irrelevant. The last two, applying the Public Works Act, would, in the absence of statutory modification, have had the effect that the date of gazettal of the notice of taking would be the relevant date for ascertaining the value of the land (s 63(a) Public Works Act 1902, now repealed). However, because of the specific provision in the SEC Act that the 'date of first entry under this Act' shall be regarded as the date of gazetting, it is the 'first entry' which fixes the date for valuation.
In Black, her Honour was apparently using the State Energy Commission Act 1979 (WA) (SEC Act) and the EOP Act to some extent interchangeably. This may be so because Black considered whether the date of first entry related to an event before the amendment of the EOP Act. In any event, her Honour observed that 'the relevant provisions are substantially the same', at [2]. Western Power has in this matter in its extensive written submissions, understandably, focussed on the EOP Act.
However, we do not understand that there is anything contended for by Western Power which is inconsistent with the direction or premises of her Honour's analysis in this and the related passages from Black set out above.
It will be necessary to return below to the detail of some of these other provisions and transactions in order to deal with the first respondent's arguments concerning certain alleged accrued rights preserved under the Public Works Act 1902 (WA).

Facts

An extensive set of documents was received by the Tribunal. The critical evidence relevant to the preliminary question is to be found in the witness statement of Mr Ian Cooper Anderson, a Project Manager employed by Western Power. No party sought to cross‑examine Mr Anderson, and his evidence may be accepted. The key facts are not in dispute.
In his witness statement, Mr Anderson sets out for the Tribunal the administrative particulars of the acquisition, and the formal description of the relevant certificates of title affected by the taking: see paragraphs 10 to 13. It is unnecessary, for present purposes, to reproduce that material.
After reciting Western Power's usual practices in relation to the clearing of land and other preparatory work (paragraphs 21 to 27), Mr Anderson then analyses Western Power's historical records and other material (such as various aerial photographs), concluding, at paragraphs 28 to 30, that the 'route and size' of the cleared corridor (based upon relevant 1994 and 1995 aerial photographs of the subject lands and their surrounds) is consistent with the type of clearing undertaken prior to the construction of a 330kV electricity transmission line, and further, that this line is, in fact, the subject transmission line.
Importantly, in the notice to affected landholders (that is, a series of more or less identical letters dated 29 September 1994 from Western Power's predecessor (SECWA) to each of the respondents), and attached to Mr Anderson's statement, mention is made that the 'first construction activity will be the installation of gates where these are required'. Unlike the case in Black, apparently no such installation took place here on the respondents' land. The letter then goes on to state:
Clearing the line corridor of vegetation will commence mid December 1994 and this activity will run through the summer of 1994/95.
This letter, so far as is material, appears to be identical to the notice (also dated 29 September 1994) which is reproduced, in part, in Black, at [30].
All of this uncontradicted material supports Western Power's central contention that by 6 January 1995, a vegetation corridor had been cleared for the subject transmission line, a step that was relevantly critical to both the precise definition ('upon a particular defined route') of the infrastructure in question, and to the taking of land for that purpose.

Contentions of the second, third and fourth respondents

The respondents (other than the first respondent) have filed extensive written submissions, including a large scale 'flow chart' of the alleged effect of the various statutory provisions. As outlined above, their central contention is that the relevant date for the assessment of compensation is the date of taking, namely, 8 October 2003.
We note that much of the respondents' main arguments (including statutory construction arguments favouring a liberal interpretation of rights arising under compensation statutes) are sourced in an opinion written by Mr Alan A Hyam OAM, barrister‑at‑law, Sydney. This opinion, dated 25 June 2014, was also filed in the proceedings. Mr Hyam is also a Life Fellow of the Australian Property Institute.
The respondents also adopt Mr Hyam's view, expressed in a very brief argument, that Black may be distinguished from the present case 'based on the different factual bases upon which [Black] was decided, and the facts in relation to the taking and assessment of compensation in respect of the subject land[s]'. However, as is obvious from the analysis at the commencement of these reasons, this is not a view that, with respect, we share. Black is plainly centrally relevant to the resolution of the issues in this case; opinions and submissions viewed through a prism which excludes Black are, in our view, weakened from their inception.
Before considering the respondents' main arguments, we turn to consider the respondents' subsidiary arguments.
The first of these relies upon Western Power's 2004 instructions, and associated documents, to Western Power's own joint valuers (McGees National Property Consultants and Egan National Valuers (WA)) to 'provide a valuation and an assessment of compensation as at 8^thOctober 2003'. As appears above, this is the date of registration of the Taking Order. Such instructions (largely a matter internal to Western Power, but the result of an agreement with all of the respondents) were, we observe, issued before the Court of Appeal's decision in Black. In any event, such instructions cannot, in these proceedings (if at all), bind either Western Power or this Tribunal on the issue of the date of entry. In any case, this issue is, as we have seen, a matter of law largely determined by the analysis in Black.
Likewise, the respondents have sought to rely upon a 1996 conference presentation to the Australian Institute of Valuers and Land Economists by Mr Ian Buchanan, then a Senior Property Officer with Western Power. His paper is entitled 'Easement Compensation: The Western Power Story'. Nothing that Mr Buchanan said back in 1996 in a general presentation, even if otherwise relevant to the present case, can possibly affect the particular legal issue currently before the Tribunal.
As mentioned, the respondents also rely upon the common law principle of statutory interpretation that 'where a statute is capable of more than one construction, [a] construction will be chosen which interferes least with private property rights': R & R Fazzolari Pty Ltd v Parramatta City Council [2009] HCA 12; (2009) 237 CLR 603, per French CJ at [43] (an acquisition and compensation case). Accordingly, it is contended that the relevant statutory provisions, so far as they apply to the respondents, should be interpreted narrowly (where they adversely affect proprietorial interests) and otherwise generally in their favour.
As a general proposition, so much may be accepted. However, as is demonstrated below, there may be more relevant approaches to statutory interpretation that should be taken here.
Also, and prior to consideration of the respondents' main argument to which we will turn in a moment, we consider their alternative argument that, because the easement which arises out of the Taking Order includes a provision for establishing the electricity transmission line itself (namely, condition 2(c): 'set up … establish … the subject electricity Transmission Works'), it must follow, so it is submitted, that the actual taking was needed in order for Western Power 'to enter, construct and occupy' the subject lands. Thus, so it is contended, until there was a Taking Order in place there could not be any authorised entry.
However, this argument ignores the extensive statutory powers that are given to Western Power under the EOP Act (in effect acknowledged in Black, and which are considered in more detail below), which plainly authorise entry and preliminary works prior to acquisition. Such powers are partly reflected in the obligation to subsequently acquire appropriate estates and interests in land sufficient for 'all electricity transmission works operating at 200,000 volts or above': s 45(4)(c) of the EOP Act (see further below). This is what occurred in this case. The powers available to Western Power under the statute and the easement should be read as complementary to each other.
The fact that Western Power mentioned this statutory obligation of acquisition in their written submissions is also attacked by the respondents as 'completely upend[ing] [Western Power's] prior contentions'. We admit to having some difficulty following this particular point of the respondents' argument. However, it is unnecessary to resolve this lesser issue given our overall conclusions on the respondents' case.
Essentially, we agree with the position of Western Power that here each entry onto the subject lands and the acquisition itself are supported by a relevant statutory power. These powers, whilst they overlap and are interrelated to some extent, if read in context and having regard to their evident purpose, offer ample authority for Western Power's actions, actions which would otherwise be tortious, if done without consent. Thus, they provide sufficient authority to enter land prior to any acquisition and to permit or obligate the acquisition of interests in land sufficient to construct, operate and maintain ^‑in this case ‑ electricity infrastructure.
We turn to the respondents' main argument: any entry onto the subject lands for the purposes of the construction of the transmission line prior to the date of the Taking Order (8 October 2003) was allegedly 'unauthorised' and thus the date of actual taking is, in effect by default, 'the relevant date for the determination of compensation': see the terms of s 241(2)(c) of the LA Act, set out below ('assessed … [on] the date of the taking').
One subset of this argument is that s 45(4) of the EOP Act (reproduced below) requires 'the taking to have occurred at the time Western Power advised the owners of its intention to exercise entry onto the subject land[s] in 1994 for the purposes of construction of the transmission line'. (This event is described above in Western Power's contentions, at paragraph 24). Thus, the argument appears to be that because this event (that is, the fact of taking) did not actually occur then (that is, in 1994), the entry in 1987 (the Notice of Entry, dated 16 April 1987) was 'unauthorised' and therefore the date of compensation, in effect, defaults to the date of the taking.
Alternatively, a lack of authority for entry is said to arise because the Notice of Entry (dated 16 April 1987) is expressed to be issued under s 46 of the SEC Act, yet the powers actually exercised, it is submitted, find their source of authority in s 49 of that Act (or elsewhere) or in s 49 of its successor Act (the EOP Act). Again, therefore, it is contended that the date of compensation, in effect, defaults to the date of the taking. The key passages in the respondents' argument, invoking s 45(4) of the EOP Act, are as follows:
It would be difficult for Western Power to resile from the fact that entry was stated in the Notice of Entry to be pursuant to s 46 of the [EOP Act], and contend that entry was pursuant to s 49 or some other statutory power.
Unless it can be demonstrated by [Western Power] that it exercised power of entry onto the subject land[s] under [s] 28(3)(c)[,] [s] 46 [and] s 45(4) of the [EOP Act] requires that the powers conferred by s 46 regarding entry onto the subject land must be disregarded.
Section 45(4) of the EOP Act provides as follows:
Notwithstanding the powers conferred by sections 28(3)(c) and 46, an energy operator is, except where the land is land to which subsection (15) applies [dealing with Crown or State land], required to acquire, where practicable by agreement but otherwise pursuant to Part 9 of the Land Administration Act 1997, as read with this section, such land, estate, or interest as may in the opinion of the energy operator be appropriate to its needs in respect of [there follows various specified works, including 'all electricity transmission works operating at 200 000 volts or above'].
Critically for the respondents' argument, s 45(7) of the EOP Act (which is reproduced in full above) is, we understand, read by them such that the reference to '[a]ny entry upon … land authorised by or under this Act' appearing at the commencement of that section necessarily means that an unauthorised entry results in compensation being ascertained under s 241(2)(c) of the LA Act. That later provision, so far as is relevant, provides as follows:
241.How compensation to be determined
…
(2)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 ‑
…
(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 46 of the EOP Act empowers an energy operator to enter upon and occupy land, and exercise necessary powers in connection therewith where 'due notice has been served upon the owner or occupier …': see s 46(1) and s 46(2) of the EOP Act. This is what occurred here. The Notice of Entry dated 16 April 1987, expressed to be authorised pursuant to s 46 of the SEC Act, has these stated purposes:
To survey and carry out investigations on the land … in accordance with the provisions of [s] 28 and [s] 49 of the [SEC Act].
Section 49 of the EOP Act deals with 'general powers relating to works'. Such powers under s 49 of the EOP Act extend to the entry upon land in extensively enumerated circumstances. Section 28(3)(c) of the EOP Act also gives Western Power powers of entry, as follows:
28.Powers of the energy operator generally
…
(3)An energy operator may ‑
…
(c)enter upon and occupy any land or other premises and there, without being bound to acquire the same or any estate or interest therein (except where otherwise provided by this Act or such as may be required by a claimant to be taken under Part 9 of the Land Administration Act 1997) by the best available route and in a practicable manner, construct, extend, or improve works, maintain and conduct undertakings and facilities, and carry on undertakings or works requisite, advantageous, or convenient to the exercise and performance of the functions of the energy operator or any such function[.]
The respondents submit that the proviso '[n]otwithstanding …', found at the commencement of s 45(4) of the EOP Act, is to be read, apparently, more or less as if it meant 'without [any] regard to …'. Hence, we presume, the reference in the respondents' submissions set out above to 'the powers conferred by s 46 of the EOP Act regarding entry onto the subject land must be disregarded'. However, whatever the precise contention of the respondents on this issue, the expression is only a drafting device, a 'cautionary expression'. Moreover, as an Act 'must be read as a whole[,] the expression is generally otiose': Pearce and Geddes, Statutory Interpretation in Australia (7^th ed, 2011) (Pearce and Geddes), at page 374 (internal citations omitted).
Much is also made of the expression 'subject to this Act' which appears in s 49 of the EOP Act. As we understand the argument, it is contended that s 49 of the EOP Act (the 'true' source of authority to enter) is therefore relevantly subordinate to s 46 of the EOP Act.
If the exercise were required to be undertaken, the two provisions (s 46 and s 49, and the deployment of s 46 in s 45(4) of the EOP Act) could, of course, be reconciled to the extent necessary or appropriate to the circumstances, with preference for, say, the specific over the general legislative regime but otherwise with regard to the principle that such provisions are to operate harmoniously in pursuit of the legislative purpose. To recall the words of Barwick CJ in Giris Pty Ltd v Federal Commissioner of Taxation [1969] HCA 5; (1969) 119 CLR 365 at 372, 'the two sections must be read together[,] and so read[,] they … exhibit a cohesive scheme on the part of the legislature'. Hence, the learned authors of Pearce and Geddes observe at page 148 in relation to phrases such as 'subject to':
The overriding idea is that an Act should be read as a whole and this has the effect of making all provisions subject to one another.
The highly artificial and strained construction that the respondents urge upon the Tribunal is probably a reaction, in part, to the complexity of the legislative scheme under consideration. However, we know that 'it is the practice of legislative drafters "to show an abundance of caution and to favour the avoidance of doubt"' (R (on the application of O'Byrne) v Secretary of State for the Environment [2003] 1 All ER 15, per Lord Bingham at [9], quoted in Bennion on Statutory Interpretation (5^th ed, 2008) (Bennion) at page 415). Moreover, legislation containing elements of 'disorganised composition' (if this is what we are dealing with) is presumed nevertheless to have been drafted relevantly 'competently', such that 'the drafter is to be assumed to have executed the task with sufficient knowledge of the law': Bennion at page 413.

Here, as we have already observed, that drafting task was, generally speaking, to provide sufficient authority to allow Western Power to enter land prior to any acquisition and to permit (or, in some cases, obligate) the acquisition of interests in land. In our view, that task was discharged. The drafters of the EOP Act and its predecessors have provided, in effect, complementary powers to achieve such objectives. Such powers should be considered together, to produce a scheme of coherent authority to achieve the evident purposes of the EOP Act. Thus, it is well accepted in public law that, where necessary, related statutory powers may be 'read together', unless the context indicates otherwise, in order to see more clearly what the capacity of any power is: see, for example, Evans v New South Wales [2008] FCAFC 130; (2008) 168 FCR 576 (FC), at [61]:
[The sub‑sections] are to be read together determining the scope of the power they confer.
Therefore, it is hardly surprising that in Black, Buss JA, after examining collectively (so far as was relevant) the extensive powers given to Western Power under s 28(3)(c), s 46, s 49 and then s 45 of the EOP Act, could conclude, without any hesitation, as follows, at [46] and [47]:
[Western Power's] right of entry under the [EOP Act] included the power to carry out electricity transmission works and other works. The right of entry was exercisable, however, whether or not [Western Power] intended to carry out or actually carried out any works. Also, [Western Power] was entitled to enter upon any land, in accordance with s 46, and construct any works authorised or permitted under the [EOP Act] or any other Act that conferred powers on it, without becoming obliged to acquire the land or any estate or interest in the land, unless, relevantly, s 45(4) applied.
Where, as in the present case, [Western Power] was obliged, by s 45(4), to acquire any land, or any estate or interest in land, [Western Power] must have formed the opinion that the acquisition may be appropriate to its needs in respect of works of the kind generally described in para (a), (b), (c) or (d) of that subsection.
In any case, the short answer to the respondents' submissions is that it is a necessary plank in their case to, in effect, invite the Tribunal to engage in a process of collateral attack upon the validity of various steps leading up to or connected with the acquisition itself. Such is the purpose of a claim, the foundation of the respondents' main argument, of 'unauthorised' entry by Western Power. An examination of such matters is, in our view, outside the jurisdiction of the Tribunal and is, in any event, probably doomed to fail, given the weakness of the respondents' statutory interpretation arguments (see above); the (unchallenged) effect and registration of the subsequent Taking Order; its statutory conversion of the rights taken into a claim for compensation (s 179 of the LA Act), which, in turn, founds and necessarily delimits the Tribunal's jurisdiction, and, perhaps most importantly of all, the effluxion of time.
The arguments of the second, third and fourth respondents are, with respect, misconceived and we reject them.

Contentions of the first respondent

The first respondent raises arguments invoking the presumption against the retrospective operation of statutes and the effect of the transitional arrangements found in the LA Act.
After a comprehensive and useful overview of the interlocking legislative regimes and their legislative history, Mr Bennett, counsel for the first respondent, submits two arguments to the effect that the respondents have, notwithstanding the 1997 amendments to the EOP Act and the enactment of the LA Act, a right to have their compensation determined by the Supreme Court of Western Australia. If either argument were found to be correct, then it would appear that the Tribunal lacks jurisdiction to hear the present matter.

Retrospectivity

It is convenient to consider first Mr Bennett's argument on retrospectivity, which is as follows (footnotes omitted):
Preservation of rights ‑ Interpretation Act 1984 (WA)
51.[T]he right to compensation under the Public Works Act as read with the [EOP Act] is preserved by the operation of section 37(l)(c) of the Interpretation Act 1984 (WA).
52 Section 37(l)(c) [of the Interpretation Act 1984] provides that where a written law repeals an enactment, unless the contrary intention appears, the repeal does not affect any right created or acquired that existed prior to the repeal and any such legal proceeding or remedy may be imposed as if the repealing written law had not been passed. As [is submitted in the alternative argument, considered below], there is no such 'contrary intention' and the repeal of part of the Public Works Act by the [Acts Amendment (Land Administration) Act 1997] does not affect the First Respondent's ability to claim compensation under the Public Works Act.
We commence by noting that Pearce and Geddes at page 323 (and see page 345) observe that 'the courts tend not to distinguish between the common law and statutory presumption' such that the commentary on each applies 'equally to both': see also The Laws of Australia at [25.1.2390]; cf Dossett v TKJ Nominees Pty Ltd [2003] HCA 69; (2003) 218 CLR 1.
The 1997 amendments were plainly intended to principally change the potential date or, perhaps more accurately, the event fixed for assessing compensation. As Wheeler JA said in Black, at [15] (emphasis added):
[Section 45(7)] … would, in the absence of statutory modification, have had the effect that the date of gazettal of the notice of taking would be the relevant date for ascertaining the value of the land (s 63(a) Public Works Act 1902, now repealed). However, because of the specific provision in the SEC Act that the 'date of first entry under this Act' shall be regarded as the date of gazetting, it is the 'first entry' which fixes the date for valuation.
In Chang v Laidley Shire Council [2007] HCA 37; (2007) 234 CLR 1 (Chang), an issue arose concerning changes to the law affecting compensation (if any) due to certain landowners. This was a case concerning both the common law and the statutory 'presumption against the retrospective effect of legislation on established interests' (invoked here by Mr Bennett). That case illustrates the general principles involved in such matters.
In Chang, Kirby J outlined the issues in that case as follows, at [2] and [3] (internal citations omitted, emphasis added):
Under earlier provisions of [a] planning law, the land in question could, with the requisite approval of a development application, have been reconfigured … After supervening changes to the planning law, reconfiguration as sought was prohibited. In these proceedings, the owners of the land have been seeking to recover what they claim is their entitlement to statutory compensation, accrued before that change took effect.
The owners' claim has been rejected (so far successfully) on the basis that, although the compensation sought was available for a time, it was removed by an amendment to the planning law which rendered the development application invalid. A valid development application was necessary to enliven the statutory entitlement to compensation. The owners argue that the supervening law, containing this amendment, did not apply to their case because, immediately before it came into operation, they had a vested entitlement to recover compensation for the loss of value of their interest occasioned by earlier changes to the planning law. They contend that the new procedural requirement for such applications did not clearly and explicitly govern their case. Conformably with statutory provisions and common law principles, defensive of accrued entitlements (and protective against their extinguishment by amending laws not clearly stated as having that effect), the supervening law should be read so as not to apply.
All of the members of the Court, with varying degrees of enthusiasm, rejected the claims of the affected owners of the land. The plurality (Hayne, Heydon and Crennan JJ) wrote, at [111] to [113], and at [117] (internal citations omitted):
'Retrospectivity' is a word that is not always used with a constant meaning. It is, therefore, important to identify the statutory provisions which are said to be being given 'retrospective' effect and to identify precisely the respect or respects in which they are being given that effect.
In this case the only relevant legislative provisions that call for consideration are those provisions … by which the requirements of a properly made application were altered … The provisions inserted … did not apply to any development application that had been made before they came into effect. In no sense did the changes made by [the relevant Act] provide that at some date prior to the enactment of [the Act] the law should be taken to have been that which it was not. What those amendments did was to alter the law that was to apply to development applications made after the date on which those provisions of [the Act] came into force.
In that operation the relevant provisions of [the Act] did not operate in any different way from the way in which most legislation operates. As Jordan CJ rightly said in Coleman v Shell Co of Australia [(1943) 45 SR (NSW) 27 at 30 ‑ 31], an Act 'is not retrospective because it interferes with existing rights. Most Acts do. There is no presumption that interference with existing rights is not intended; but there is a presumption that an Act speaks only as to the future.' The amendments made by [the Act] spoke only as to the future. They were engaged in respect of applications made after the amendments came into operation. As the authors of one text [Pearce and Geddes, Statutory Interpretation in Australia (6^th ed, 2006), at page 308] have put it:
'All legislation impinges on existing rights and obligations. Conduct that could formerly be engaged in will have to be modified to fit in with the new law.' (emphasis added)
In this case, the appellants' development application being made after [the Act] had come into effect, their application fell to be determined in accordance with the legislative provisions that were then in force. No question of retrospective operation of the legislation arises …
[On] no view of the [Act], as it stood before the amendments … could it be said that the appellants enjoyed a 'right' to compensation … The statutory right to compensation for which that section provided depended on a particular form of development application having been made and its having been dealt with in a particular way. The [landowners] had made no development application before [the Act] came into force and the relevant draft regulatory provisions precluding their proposed development came into force. It follows that no development application … had been dealt with in the manner prescribed by [the Act] as a condition for the allowance of compensation.
Kirby J said, at [68] (emphasis added):
A procedural step designated by Parliament as essential to an entitlement to be paid reasonable compensation had not been taken by the appellants before the requirements of the procedure were changed. By long authority, courts are more ready to tolerate the application of supervening procedural changes with retrospective operation than they are changes to substantive entitlements and interests. Here, the requirement of a 'properly made application' was partly procedural but also partly substantive.
At first blush, it seems unlikely here, given its importance, that Parliament intended that the date fixed for ascertaining compensation (which might have significant consequences for the parties) should be seen in any way as 'procedural'; likewise, as to the 'divesting' of the Supreme Court as the repository of jurisdiction for determining compensation. However, the distinction between procedural and substantive legislative provisions, in this context, is not free from difficulty and may, in any case, be affected, for example, where a 'procedural statute affect[s] rights': Pearce and Geddes at pages 343 and 344.
Whether the relevant events here (mainly changing the 'date of first entry' under one Act, to be regarded as the gazettal under another Act, to the 'date of first entry' without gazettal, to be regarded as the 'taking of the land' for the purposes of a 'replacement' Act) are to be classified as procedural or substantive or a mixture of both, the right to compensation by an independent adjudicator has not been altered. Only two relevant aspects of the compensation regime are altered for the future: the mechanism for fixing or ascertaining a precise date or event for compensation purposes, and the type of independent tribunal vested with determining the consequences thereof.
To the extent, if any, that 'unfairness or injustice' enters into the debate (see Pearce and Geddes at page 323), Kirby J had this to say in Chang, at [84] and [85] (emphasis added):
In the present case, the appellants have identified an unfairness flowing from the drafting technique that was used, in effect, to destroy their surviving entitlement to make a viable [planning application]. However, that result flows from the language of the 1997 Act; the amendments introduced to it by [the principal legislation]; the impossibility thereafter of maintaining the pre‑existing scheme for entitlement to reasonable compensation; the introduction by the [relevant instrument] (with the authority of Parliament) of the absolute prohibition on the development proposed; and the large environmental and social purposes for the [South‑East Queensland Region of the State] to which the alteration of the law gave effect. If these considerations, and the appellants' own delay in lodging their [application], are weighed in the balance, the degree of 'unfairness' in the outcome … is not one that would support the strained interpretation of [the legislation], urged by the appellants.
It remains a misfortune that this consequence, if it was realised by the drafters at the time (as by inference it was), was not drawn explicitly to the notice of Parliament either in the text of the statutory amendments or in the supporting documents. And that it was not candidly acknowledged as an outcome to be accepted by Parliament, the people of Queensland and the affected persons as a price for the achievement of a major new planning regime for [the Region]. None of this occurred. Instead, the change was effected by stealth. The parliamentary process did not operate as it is intended, so that those who were depriving people, such as the appellants, of their entitlements and expectations, shouldered the responsibility and assumed public accountability for the amendments which they enacted. Although the appellants' delay contributed to their own misfortune, I have some sympathy for the predicament in which they now find themselves. Nevertheless, in the face of the legislative provisions, viewed in their entirety against the background of their history and purpose, there is nothing that this Court can do to breathe new life into the appellants' entitlement to seek compensation for the alteration of their interests.
The learned authors of The Laws of Australia summarise the general position, as follows, at [25.1.2270]:
Provisions are not retrospective merely because they govern the future operation of a matter or transaction as regards the creation of further particular rights or liabilities. In other words, a law is not retrospective simply because it attaches new consequences to past events.
As to notions of 'unfairness' or 'injustice', the learned authors of The Laws of Australia say, at [25.1.2330]:
The precise operation of this proposition ['An amendment to a procedural provision may attract the presumption against retrospective operation if it will cause injustice'] is somewhat uncertain.
In our view, the relevant amendments have effect according to their tenor. They do not affect the right to receive compensation; they only alter the date or event for the fixing of the same and the adjudication entity. In the present circumstances, the date of taking by an electricity corporation is not and has never been the date fixed for ascertaining compensation. Rather, compensation is (and was) referenced to the 'date of first entry', a notion which remains. Parliament may, subject to any savings or transitional provision which it enacts, legislate to make the LA Act and the EOP Act 'consistent' with each other, which might then have consequences in a particular case, as usually occurs whenever any law is enacted.
The respondents did not have a statutory 'right' to compensation fixed in a particular manner for all time, as the right to compensation for which the legislative scheme provides depends upon, in this model, the selection by Parliament of an assessment date and mechanism. Even if the alteration to that date or mechanism by Parliament appears to work an 'injustice' in a particular case, it is not so obvious, palpable or egregious so as to attract consideration of the principle outlined above by Kirby J. Rather, the legislative changes were designed, it appears, to bring about a degree of consistency between related and replacement pieces of legislation regulating the acquisition of land for the Crown or State. That purpose or effect can hardly be said to be relevantly unjust or unfair.
In our view, to the extent, if any, that 'any right created or acquired that existed prior to' the 1997 enactments was relevantly affected, the conclusion that Kirby J reached in Chang, at [80], is also applicable here:
Insofar as the provisions of the [Queensland equivalent of the Interpretation Act 1984] add anything to the common law presumption against the retrospective effect of legislation on established interests, the operation of the statutory provision is excluded in this case because of the existence in the legislation, read as a whole, of a sufficient indication of a contrary intention or purpose.

Transitional provisions

Mr Bennett's alternative argument is as follows (footnotes omitted):
46.[The LA Act] contains transitional provisions relating to the compulsory acquisitions of land current as at 30 March 1998. Pursuant to section 200(2) of the [LA Act, reproduced immediately below], if a procedure had begun but not been completed under a provision of an Act amended or repealed by the introduction of the [Acts Amendment (Land Administration) Act 1997 (WA)], the procedure may be continued as if the Act, in this case the Public Works Act, had not been amended or repealed.
47.In this matter, at the relevant time a 'procedure had begun but not been completed under a provision of the Public Works Act'. (Emphasis added) Section 45(7) of the [EOP Act] provides:
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 ... (Emphasis added)
48.Entry upon the [subject lands] by Western Power in the performance of its functions was a 'public work' within the meaning of the Public Works Act. The entry onto and clearing of the [subject lands] evident in the [relevant aerial photograph] was entry upon the First Respondent's land authorised under section 45(7) of the [EOP Act] and as such triggered the right to compensation as set out in section 63 of the Public Works Act. This constituted the commencement of a procedure under the Public Works Act that had not been completed by 30 March 1998 or to this day.
49.Further or in the alternative, whenever a Government or local authority is authorised by the Public Works Act, to undertake, construct or provide any public work, any land acquired for the purposes of such work may be taken under the Public Works Act. As a result, the relevant 'public work' being the entry onto and clearing of the First Respondent's land was the commencement of the procedure to acquire the First Respondent's land under the Public Works Act as read with the [EOP Act], a procedure that was not completed by 30 March 1998. The purpose for which the land was acquired had not been completed, nor had the First Respondent's assessment of compensation been finalized under the Public Works Act.
50.For the reasons stated above, the First Respondent contends that a 'procedure' (that is, the process of the acquisition of the First Respondent's land and assessment of compensation) had begun but not been completed under the Public Works Act at 30 March 1998. As a result, that procedure may be continued as if the Public Works Act had not been amended by the [LA Act].

Section 200 of the LA Act, so far as is relevant, provides as follows (emphasis added):
(2)… if, immediately before the appointed day [30 March 1998], a procedure had been begun but not completed under a provision of the [Public Works Act 1902] ('the first Act') subsequently amended or repealed 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.
(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 applies 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.
Mr Bennett refers to two steps that 'had been begun but not completed under a provision of the Public Works Act 1902'. These steps were:
1)The entry onto and clearing of the subject lands which was 'authorised' under s 45(7) of the EOP Act 'and, as such, triggered the right to compensation' under s 63 of the Public Works Act 1902 (WA) (PW Act). This act or event 'constituted the commencement of a procedure' under that Act that had not been completed by the 'appointed day' (30 March 1998).
2)Alternatively, this 'public work' (that is, the entry et cetera onto land) was 'the commencement of the procedure to acquire' land under the PW Act 'read with' the EOP Act, a procedure that was not completed by 30 March 1998.
Conceptually, the notion of a 'procedure' is captured in this entry for the word in Blacks' Law Dictionary (6^th ed, 1990) (emphasis added):
The mode of proceeding by which a legal right is enforced, as distinguished from the substantive law which gives or defines the right, and which, by means of the proceeding, the court is to administer; the machinery, as distinguished from its product. That which regulates the formal steps in an action or other judicial proceeding; a form, manner, and order of conducting suits or prosecutions … The judicial process for enforcing rights and duties recognized by substantive law and for justly administering redress for infraction of them.
Whatever the classification, which is discussed above, as to whether the principal legislative amendments affected procedural or substantive 'rights', the specific transitional regime here affecting any relevant 'procedure that had been begun but not completed' is, in our view, focussed on preserving both formal judicial and related formal administrative steps that have actually been commenced so as to determine rights and entitlements otherwise existing. This would cover, generally speaking, any judicial process, if commenced, directed to or for maintaining a claim for compensation. However, for the reasons given above, this would not preserve as procedural the selection or alteration by Parliament of the event or date chosen to fix the assessment of compensation or the adjudicative mechanism for independently determining that compensation.
Mr Ian McLeod, in his Principles of Legislative and Regulatory Drafting (2009) at 98 (emphasis added) notes that:
Savings and transitional provisions are intended to smooth the operation of the law when an Act is repealed, whether or not it is replaced by another one.
The former Parliamentary Counsel of Western Australia, Mr GC Thornton, in his major work Legislative Drafting (3^rd ed, 1987) observed, at pages 319 and 321 (footnotes omitted, emphasis added):
The function of a savings provision in legislation is to preserve or 'save' a law, a right, a privilege or an obligation which would otherwise be repealed or cease to have effect. The function of a transitional provision is to make special provision for the application of legislation to the circumstances which exist at the time when that legislation comes into force. Both terms are loosely used with overlapping meanings; there is little or no advantage in seeking to pursue a watertight distinction between them. The necessity for savings and transitional provisions is a consequence of change in the law, whether the change is caused by new statute law or by the repeal, repeal and substitution, or modification, of existing statute law.
A savings provision is used to preserve what already exists; it cannot create new rights or obligations. Such a provision is of no application to transactions which are complete at the time the savings provision comes into force. A savings provision is frequently included in legislation to establish beyond doubt that the provisions of that legislation are to be construed as additional to and not in derogation of existing law.
Mr Thornton's work has, we note, been cited by judges in both the Western Australia Court of Appeal and the New Zealand Court of Appeal as a source of reference in the task of statutory interpretation.
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'.
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.

Conclusions and orders

None of the respondents' jurisdictional or construction arguments have succeeded. The first respondent has properly conceded that the relevant date for compensation purposes is a 'date of first entry' somewhere between 29 September 1994, when written notice was given of the proposed clearance of vegetation in the corridor of the transmission line, and 6 January 1995, when the clearance was complete.
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 proceeding is on or about 6 January 1995.
As has been foreshadowed in earlier directions hearings, now that this date has been settled, the matter (including the amount of compensation and any outstanding ancillary issues or disputes between the parties) will be referred to mediation for resolution.
Therefore, for the reasons given above, the Tribunal makes the following orders:
1.The date of valuation for the purposes of the assessment of compensation in this proceeding is on or about 6 January 1995.
2.All outstanding issues between the parties are referred to mediation on a date to be fixed.

I certify that this and the preceding [86] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR P McNAB, SENIOR MEMBER