Electricity Networks Corporation Trading as Western Power v Dewar - [2013] WASC 444

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: ELECTRICITY NETWORKS CORPORATION TRADING AS WESTERN POWER -v- DEWAR [2013] WASC 444

CORAM: EDELMAN J

HEARD: 4 DECEMBER 2013

DELIVERED : 4 DECEMBER 2013

FILE NO/S: CIV 2816 of 2013

MATTER :Section 46(8) of the Energy Operators (Powers) Act 1979 (WA)

BETWEEN: ELECTRICITY NETWORKS CORPORATION TRADING AS WESTERN POWER
Plaintiff
AND
STEPHEN JOHN DEWAR
First Defendant
HEATHER DEWAR
Second Defendant

Catchwords:

Injunctions - Statutory injunction - Whether jurisdictional fact exists in Energy Operators (Powers) Act 1979 (WA) s 46(8) - Requirements for a notice in s 46(4) in the Act - Balance of convenience

Legislation:

Electricity Corporations Act 2005 (WA)
Electricity Industry Act 2004 (WA)
Energy Operators (Powers) Act 1979 (WA)

Result:

Interim injunction granted

Category: B

Representation:

Counsel:

Plaintiff:     Mr K J Mony De Kerloy
First Defendant             :     Mr P J Marsh
Second Defendant         :     Mr P J Marsh

Solicitors:

Plaintiff:     Herbert Smith Freehills
First Defendant             :     Stoddart & Co
Second Defendant         :     Stoddart & Co

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

Nil
EDELMAN J:
(This judgment was given orally at the conclusion of argument and has been edited for grammar and syntax from the transcript.)

This is an application in proceedings brought by Western Power seeking orders concerning the Energy Operators (Powers) Act 1979 (WA). The orders sought are declarations and an injunction. The orders broadly concern the ability of Western Power and its contractor, Downer EDI Engineering Power Pty Ltd, to whom I will refer to as Downer, to exercise various powers in relation to the property of the first defendant, Mr Dewar.
It became common ground at this hearing that the application can be treated on a narrower basis as an application for an interim injunction. This concession by Western Power is entirely appropriate in circumstances in which:
(i)the application has been brought at very short notice in circumstances of considerable urgency;
(ii)the Dewars did not have time to provide any evidence in response; and
(iii)the Dewars did not have time to provide substantial written submissions, although the oral submissions of Mr Marsh were detailed and comprehensive.
Western Power has filed two affidavits in support of its application.
The first affidavit is from Mr Anderson who is a project manager employed by Western Power. He is the project manager for the Mid‑West Energy Project, which he describes as one of the most important and significant electricity infrastructure projects in Western Australia. He explains that the project involves works which are of critical importance to meet the electricity demands of households, commerce and industry in the growing mid‑west region. He explains that the Mid‑West Energy Project involves removing a section of existing wood pole, 132 kv transmission line, which he describes as the 132 kv line, and replacing that transmission line with a double circuit 330 kv electricity transmission line, which he describes as the 330 kv works.
Mr Anderson explains that Mr Dewar is the registered proprietor of the land in the Shire of Gingin about which this application is concerned. Mr Dewar's property is on the alignment of the 330 kv works. An existing wood pole transmission line runs through Mr Dewar's property. There are two existing wood pole structures that support the existing 132 kv line. Mr Anderson says that the design for the 330 kv works requires various works to be done on Mr Dewar's property, including the decommissioning of the wood pole structures and the construction of steel lattice towers.
The work to be undertaken by Western Power under the Mid‑West Energy Project is also the subject of a contract in relation to the 330 kv works between Western Power and Downer. As I have mentioned, Downer is the contractor who will perform this work. Western Power is required by its contract with Downer to give Downer access to the site as defined in the contract. Downer is required to achieve practical completion of the 330 kv works on or before 3 May 2014.
Downer is also entitled to delay damages amounting to $227,075 for any day or part of a day which is the subject of an extension of time for a 'Compensable Cause'. One 'Compensable Cause' is breach of an express term of the contract by Western Power, including site access.
It is not necessary at the stage of this interim injunction to determine whether or not there would be or could be a breach of an express term of the contract if Western Power were not able to provide site access to Downer due to the refusal by the Dewars to allow Western Power or its agents access to Mr Dewar's property. It is sufficient at this stage to say that the possibility of such a breach of an express contract term is one possible view which might be taken by Western Power and one of the factors that it might consider in its decision - to which I will come in a moment - as to whether or not it considers that circumstances have arisen that may occasion undue delay in effecting entry on or into any land.
Mr Anderson says that in order to maintain its program, Downer will need to carry out works on Mr Dewar's property as soon as possible. He has described those works as:
(1)construction of gravel access tracks along the line route; and
(2)demolition of the existing 132 kv line.
Refusal of entry or delay in obtaining entry to Mr Dewar's property will, according to Mr Anderson, most likely result in the works being delayed and may result in substantial delay costs.
Western Power's application is also supported by an affidavit from Ms Melanie Poett. Ms Poett is the Safety, Health and Environment Approvals Manager employed by Western Power. She is responsible for liaising with land owners, occupiers and other stakeholders whose land will be affected by Western Power's proposed 330 kv electricity transmission line works associated with the Mid‑West Energy Project.
Ms Poett describes the contact which Western Power has had with the Dewars. I will briefly outline her description of the circumstances and the background to this application:
(1)On 5 October 2007, Western Power sent Mr and Mrs Dewar a notice of entry for survey and investigation regarding Mr Dewar's property.
(2)On 23 October 2007, Western Power sent Mr and Mrs Dewar a follow up letter.
(3)On 7 October 2011, Western Power wrote to Mr and Mrs Dewar to provide them with a notice of entry for construction and operation of the 330 kv works.
(4)On 19 October 2011, Mr and Mrs Dewar sent an email to Western Power stating that permission was not given for Western Power to enter on to Mr Dewar's property or to place its assets on Mr Dewar's property.
(5)On 10 July 2012, Mr and Mrs Dewar sent an email addressed to Minister Peter Collier, copied to Western Power, saying that Mr Dewar will at no stage allow Western Power to place its assets on Mr Dewar's property.
(6)On 11 October 2012, Ms Poett had a telephone conversation with Mrs Dewar, in which Mrs Dewar said that Western Power would have to take the matter to the High Court in order to gain access to Mr Dewar's property and if Western Power enters Mr Dewar's property then she would contact the police.
(7)On 23 October 2012, Ms Poett received a telephone call from an officer of the Gingin Police. The officer informed Ms Poett that Mrs Dewar had attended the Gingin Police Station and requested that a charge of trespass be brought against Western Power if Western Power attempted to access Mr Dewar's property. The officer told Ms Poett that he had informed Mrs Dewar that he considered that Western Power would not be acting unlawfully; he would not proceed with pressing charges. The officer also requested that Ms Poett send him a brief email explaining Western Power's activities on Mr Dewar's property and the authority of Western Power to enter Mr Dewar's property. On 23 October 2012, Ms Poett sent an email to the officer at the Gingin Police.
(8)On 11 November 2013, Ms Poett sent a letter on behalf of Western Power to the solicitors for Mr Dewar advising that Western Power intended to access Mr Dewar's property on 14 November 2013.
(9)On 12 November 2013, the solicitors for Mr Dewar wrote to Western Power advising that access to Mr Dewar's property was denied.
(10)On 13 November 2013, Ms Poett wrote on behalf of Western Power to Mr Dewar's solicitors advising that Western Power would proceed with access to Mr Dewar's property on 14 November as they had previously advised.
(11)On 13 November 2013, Mr Dewar's solicitors again wrote to Western Power advising that access to Mr Dewar's property was denied.
(12)On 14 November 2013, Ms Poett sent a letter on behalf of Western Power to Mr Dewar's solicitors, saying that Western Power was firmly of the view that it has complied with the provisions of the Energy Operators (Powers) Act and that it can rightfully enter Mr Dewar's property.
(13)On 14 November 2013, Mr Dewar's solicitors sent a letter to Western Power saying that Western Power had not complied with the provisions of s 46(11) of the Energy Operators (Powers) Act, because the date in its letter of 11 November 2013, which was the date nominated to enter the Dewars' land, was fewer than five days before the power was to be exercised, hence entry on 14 November 2013 was denied.
(14)On 29 November 2013, Western Power's solicitors sent a letter to Mr Dewar's solicitors with further notice of entry which advised Western Power's intention to enter Mr Dewar's property, advising an entry date on or about 5 December 2013. Western Power sought confirmation from the Dewars' solicitors that Mr Dewar would not prevent Western Power from exercising its rights under the Energy Operators (Powers) Act. Western Power explained that they would prefer to avoid costly legal action. A copy of the further notice of entry was also sent directly to the Dewars by email and posted on 29 November 2013.
(15)On 2 December 2013, the Dewars' solicitors sent a letter to Western Power's solicitors requesting that the solicitors for Western Power explain the basis upon which Western Power asserts that it is an energy operator as defined in the Energy Operators (Powers) Act and that they provide a further copy of the notice of entry which was sent on 29 November 2013.
(16)On 2 December 2013, Western Power's solicitors sent a letter by facsimile to the Dewars' solicitors explaining the basis for their conclusion that Western Power is an energy operator under the Energy Operators (Powers) Act. The solicitors for Western Power explained that an energy operator was defined in the Act. As I will explain in a moment, this conclusion is correct.
(17)On 2 December 2013, the Dewars' solicitors sent another letter by facsimile to the solicitors for Western Power requesting that Western Power verify in a statutory declaration that no regulations have been made. The solicitor for Western Power declined to do so. This is a task which any solicitor could readily perform himself or herself, including by consideration of freely available of internet resources.
I turn then to the disposition of this application.
The plaintiff, which trades as Western Power, is an energy operator under the Energy Operators (Powers) Act. The Energy Operators (Powers) Act defines an 'energy operator' in s 4 as:
An energy corporation if regulations have not been made for the purposes of section 45(1) of the Electricity Industry Act 2004.
'Electricity corporation' means:
The Electricity Networks Corporation established by section 4(1)(b) of the Electricity Corporations Act 2005.
There have been no regulations made for the purposes of s 45(1) of the Electricity Industry Act 2004 (WA) which would relevantly affect this application as far as I am aware.
Western Power is the Electricity Networks Corporation, which is established by s 4(1)(b) of the Electricity Corporations Act 2005 (WA). It is an electricity corporation for the purposes of the Energy Operators (Powers) Act. It is, therefore, an energy operator under the Energy Operators (Powers) Act.
Counsel for the Dewars said that the Dewars had three objections to the application. None of those objections corresponded with the objections that had previously been raised in correspondence. The third objection concerns the width of the orders sought and that objection is appropriately addressed once I determine whether or not an interim injunction should be granted.
The first objection involves the validity of the notices upon which Western Power relies. Counsel for the Dewars disputed the validity of the notices that were issued on the alleged basis that those notices do not comply with the requirements of s 46(4) of the Energy Operators (Powers) Act. That subsection provides that:
A notice required by this Act to be given in relation to any entry shall specify the purpose for which entry is required and shall continue to have effect for so long as that requirement subsists, and successive entries for that purpose shall be taken to be entries to which the notice relates.
Counsel submitted that the words 'the purpose' carry connotations requiring more detail than a mere enunciation in a notice of a particular purpose. Counsel submitted that the words 'the purpose' carry an implication that the purpose to be specified must include the manner in which the purpose is to be carried out and the times or periods of time over which the activity will be carried out. In my view, there is a very strong argument that such an implication is not, or cannot be, appropriately made from the words of s 46(4), even taking into account that the effect of the relevant provisions of the Energy Operators (Powers) Act is to infringe or ameliorate basic rights of a land owner including rights of a land owner to control activities on his or her land.
It is not necessary to determine this point finally. It is sufficient to say that I do not consider that there is such strength in this point as either standing alone or in conjunction with the second objection made by the Dewars in order to refuse the grant of the interim injunction. In other words, to put the matter positively, I consider that Western Power has not merely a prima facie case, but has a reasonably strong prima facie case as to the construction of s 46(4) in the terms which it asserts.
The relevant notice provided by Western Power to the Dewars is set out in the affidavit of Ms Poett at page 110. On that page it is explained that, in accordance with the legal requirements under the Energy Operators (Powers) Act,
the notice is given to advise that Western Power intends to enter your property.
The notice of entry then describes the property held by the first defendant. The notice of entry then continues to say that it is
for the purpose of undertaking the Mid‑West Energy Project, including the replacement of an existing 132 kv wood pole transmission line with a 330 kv transmission line, supported by steel lattice towers, and undertaking various activities, including, but not limited to:
•clearing vegetation;
•installing gates;
•installing access tracks;
•demolishing an existing line;
•construction of foundations;
•erection of tower structures;
•stringing wires;
•restoration works;
•and other associated works.
The notice says that:
Access to your property is required on or about 5 December 2013 and further entry will be made after that.
It also asserts that:
This notice authorises entry by Western Power and its officers, workers, agents and contractors now and in the future for the purposes described in this notice and in the applicable legislation.
In the terms in which the notice of entry is expressed, I consider there is a very strong argument that the terms of that notice comply with the provisions in s 46(4) of the Energy Operators (Powers) Act.
The second objection by counsel for the Dewars is that the provisions in s 46(8) of the Energy Operators (Powers) Act have not been complied with by Western Power. Section 46(8) provides that:
Where in the opinion of an energy operator circumstances have arisen that may occasion undue delay in effecting entry on or into any land, premises or thing or in the carrying out of any works but the provision of subsection (7) are not appropriate to the circumstances, the energy operator may apply to the Supreme Court ex parte by notice of motion, notwithstanding that no cause or matter between the parties is before the court or that no previous notice has been given to any party affected thereby, for the grant of injunction prohibiting the persons therein specified from opposing or preventing the exercise by the energy operator of its powers, or for an order directing the energy operator as to the exercise of powers conferred by this Act in the circumstances specified in that order, or for both such an injunction and such an order.
Section 46(8) creates a power to bring an application for a statutory injunction where the jurisdictional fact specified is satisfied. In light of the evidence before the Court, I consider that the jurisdictional fact for s 46(8) is satisfied. That jurisdictional fact is that, in the opinion of an energy operator, circumstances have arisen that may occasion undue delay in effecting entry on or into any land or in the carrying out of any works. For the purposes of this application I will proceed on the basis that the opinion must be one which is reasonably held.
The submission by counsel for the Dewars was that this jurisdictional fact had not been satisfied because there was no evidence to suggest that anything that had been done by the Dewars may occasion undue delay. But the appropriate test to apply is whether the opinion of the energy operator, reasonably held, is that circumstances have arisen that may occasion undue delay.
In light of all of the facts that I have explained and the background to this matter including, as I have mentioned, (i) the threats to contact the police by the Dewars, (ii) the contact with the police which the Dewars have made, and (iii) the indication by Mr Dewar that Western Power will not be permitted entry on to their land without an application to the High Court, I consider the circumstances are sufficient to indicate the reasonableness of the belief that circumstances have arisen that may occasion undue delay. Those circumstances must also be considered in light of (iv) the contract between Western Power and Downer.
For these reasons, I consider that the jurisdictional fact in s 46(8) exists and Western Power has a strong prima facie case that s 46(4) has been satisfied in relation to its notice.
The question in relation to the balance of convenience is whether the balance of convenience favours Western Power. The balance of convenience considerations are not independent of those considerations which I have indicated concerning the strength of the prima facie case which the plaintiff has in relation to the validity of its notice. I also take into account the facts that, as Western Power accepts:
(i)the Dewars will be compensated for any damage that is caused as a consequence of their undertaking as to damages;
(ii)the provisions in s 120 of the Energy Operators (Powers) Act and s 121 of the Energy Operators (Powers) Act which provide for any compensation if Western Power is negligent, or any officer, servant or agent of it is negligent and causes any injury or damage, other than damage of the kind mentioned in s 120, to the land of the first defendant; and
(iii)s 120 which provides for adequate compensation to be paid forthwith or otherwise physical damage to be made good for any physical damage done to the land, premises or thing by any of the energy operator's officers, servants or agents in the course and at the time of the exercise or purported exercise of a power under the Act and whether the damage is of a temporary character of a permanent character and that the power under the Act with which s 120 is concerned is powers under s 49.

In all of the circumstances, I consider that it is appropriate that an interim injunction be granted to empower Western Power to enter the land of Mr Dewar in order to perform the purposes which it has indicated in its notice. Both parties will have liberty to apply at short notice to discharge or vary the terms of this injunction. I will now hear from counsel as to the precise terms in which the injunction should be expressed.