Electricity Networks Corporation Trading As Western Power v Herridge Parties and related matters

[2022] HCATrans 37

[2022] HCATrans 037

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth   No P26 of 2021

B e t w e e n -

ELECTRICITY NETWORKS CORPORATION T/AS WESTERN POWER (ABN 18 540 492 861)

Applicant

and

HERRIDGE PARTIES (PER ORDER MADE BY JUSTICE MITCHELL ON 28 OCTOBER 2019) & ORS

Respondents

Office of the Registry
  Perth  No P27 of 2021

B e t w e e n -

ELECTRICITY NETWORKS CORPORATION T/AS WESTERN POWER

Applicant

and

NOREEN MERLE CAMPBELL & ORS

Respondents

Office of the Registry
  Perth  No P28 of 2021

B e t w e e n -

ELECTRICITY NETWORKS CORPORATION T/AS WESTERN POWER (ABN 18 540 492 861)

Applicant

and

NOREEN MERLE CAMPBELL & ORS

Respondents

Office of the Registry
  Perth  No P29 of 2021

B e t w e e n -

ELECTRICITY NETWORKS CORPORATION T/AS WESTERN POWER (ABN 18 540 492 861)

Applicant

and

NOREEN MERLE CAMPBELL & ORS

Respondents

Office of the Registry
  Perth  No P30 of 2021

B e t w e e n -

ELECTRICITY NETWORKS CORPORATION T/AS WESTERN POWER (ABN 18 540 492 861)

Applicant

and

NOREEN MERLE CAMPBELL & ORS

Respondents

Office of the Registry
  Perth  No P31 of 2021

B e t w e e n -

ELECTRICITY NETWORKS CORPORATION T/AS WESTERN POWER

Applicant

and

KAREN PATRICIA ADAMS AND THE OTHERS LISTED IN THE SCHEDULE & ORS

Respondents

Office of the Registry
  Perth  No P32 of 2021

B e t w e e n -

ELECTRICITY NETWORKS CORPORATION TRADING AS WESTERN POWER (ABN 18 540 492 861)

Applicant

and

ANTHONY ADAMS AND THE OTHERS LISTED IN THE SCHEDULE & ORS

Respondents

Office of the Registry
  Perth  No P33 of 2021

B e t w e e n -

ELECTRICITY NETWORKS CORPORATION T/AS WESTERN POWER

Applicant

and

JODIS POWELL AND THE OTHERS LISTED IN THE SCHEDULE & ORS

Respondents

Office of the Registry
  Perth  No P34 of 2021

B e t w e e n -

ELECTRICITY NETWORKS CORPORATION T/A WESTERN POWER (ABN 18 540 492 861)

Applicant

and

NOREEN MERLE CAMPBELL & ORS

Respondents

Office of the Registry
  Perth  No P35 of 2021

B e t w e e n -

ELECTRICITY NETWORKS CORPORATION T/AS WESTERN POWER (ABN 18 540 492 861)

Applicant

and

VENTIA UTILITY SERVICES PTY LTD FORMERLY KNOWN AS THIESS SERVICES PTY LTD (ACN 010 725 247) & ORS

Respondents

Office of the Registry
  Perth  No P36 of 2021

B e t w e e n -

ELECTRICITY NETWORKS CORPORATION T/AS WESTERN POWER (ABN 18 540 492 861)

Applicant

and

VENTIA UTILITY SERVICES PTY LTD FORMERLY KNOWN AS THIESS SERVICES PTY LTD (ACN 010 725 247) & ORS

Respondents

Office of the Registry
  Perth  No P37 of 2021

B e t w e e n -

ELECTRICITY NETWORKS CORPORATION T/AS WESTERN POWER (ABN 18 540 492 861)

Applicant

and

VENTIA UTILITY SERVICES PTY LTD FORMERLY KNOWN AS THIESS SERVICES PTY LTD (ACN 010 725 247) & ORS

Respondents

Applications for special leave to appeal

KIEFEL CJ
GAGELER J
STEWARD J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 17 MARCH 2022, AT 2.02 PM

Copyright in the High Court of Australia

KIEFEL CJ:   In accordance with the remote hearing protocol, I will announce the appearances of the parties.

MR B. DHARMANANDA, SC appears with MR M.J. SIMS and MR B.K. LIM for the applicant, Electricity Networks Corporation trading as Western Power, in all 12 applications.  (instructed by DLA Piper Australia)

MR P.J. DUNNING, QC appears with MR T.C. SMYTH for the first respondents, the Herridge Parties, in the lead application, matter P26 of 2021.  (instructed by Slater and Gordon Lawyers)

MS C.M. HARRIS, QC appears with MR P. MENDELOW for the second respondents, the IAG/Allianz Parties, in the lead application.  (instructed by Hall and Wilcox Lawyers)

MR R.J. PRICE appears for the third respondents, the RAC Parties, in the lead application.  (instructed by Civic Legal)

MR N.C. HUTLEY, SC appears with MS E. BATHURST for the fourth respondent, Noreen Merle Campbell, in the lead application.  (instructed by Minter Ellison)

MR G.M. WATSON, SC appears with MR S.C.M. WONG for the fifth respondent, Ventia Utility Services, in the lead application.  (instructed by Wotton + Kearney)

KIEFEL CJ:   For the benefit of Mr Dunning, who I understand is appearing by telephone only, the composition of the Bench is I am sitting with Justices Gageler and Steward.

MR DUNNING:   Thank you, Chief Justice.

KIEFEL CJ:   Yes, Mr Dharmananda.

MR DHARMANANDA:   Your Honour, thank you.  The first point of general importance is about the proper test to be applied to determine whether a public utility owes a common law duty if it has statutory power but did not exercise that statutory power.  The issue is whether the public utility had to have actual control over the thing that posed the risk of harm.

The other point of general importance is about whether a common law duty can be imposed at all if the relevant statutory scheme covers the field in relevant respects.  A statutory scheme may cover the field in relevant respects if there are implicit negative propositions that flow from the duties that the Parliament has chosen to impose.

May I deal with the control point.  The Court of Appeal’s error in analysis as to the control issue is in the application book at pages 444 to 446, namely paragraphs 152 to 158.  Before going to those paragraphs, may I say this, the Court of Appeal adopted an incorrect view by treating as deficient that Western Power was responsible for and had control of its electricity transportation networks. 

The control of that, its own network, and Western Power’s apparent choice in using Mrs Campbell’s PA pole, the Court of Appeal reasoned, was sufficient for Western Power to owe a common law duty at least to inspect the pole regularly.  This was so even though the PA pole was owned and controlled by Mrs Campbell.  The Court of Appeal expressly found that Mrs Campbell had control of the PA pole, and Western Power did not have the control of the PA pole.  Your Honours will see that in the application book at 445, paragraph 154, also paragraphs 226 and 227 and 294. 

GAGELER J:   In what sense, Mr Dharmananda, is it meaningful to talk of Mrs Campbell having control of the PA pole?

MR DHARMANANDA:   It is, we say, in the sense that she was owner and it was a fixture at her property over which she had control as owner.  It is that sense that we submit is relevant for the purposes of the inquiry as to duty of care.  So this is a case where Mrs Campbell owned and had control of the pole, and Western Power, as found by the Court of Appeal, did not have any control.  It was on Mrs Campbell’s property never.  Thiess, its delegate, was on Mrs Campbell’s property in July 2013.

Can I, before going to the relevant paragraphs, draw the Court’s attention just to one case, Stuart v Kirkland‑Veenstra (2009) 237 CLR 215, and may I please ask the Court to consider page 254, paragraphs 112 to 114. Without reading, may I draw in particular what comes out of the judgment of Justices Gummow, Hayne and Heydon at paragraph 113, where their Honours, in describing when a duty might arise, said that it is necessary to consider:

the degree and nature of control exercised over the risk of harm that has eventuated –

necessary to consider vulnerability, the:

consistency or otherwise of the asserted duty of care with the terms, scope and purpose of the relevant statute -

and other considerations.  Then, at paragraph 114, the factor of control is said by the Court - by the joint judgment - to have been of:

critical significance -

in cases involving the exercise of statutory power.  With that, may I go back to the judgment at paragraph 152 at page 444 where the analysis relevantly starts.  We would accept that Western Power had a duty to take reasonable care with respect to its transportation network, but we submit that that does not mean that Western Power had a duty of care as to property owned by a consumer. 

KIEFEL CJ:   Mr Dharmananda, the Court of Appeal did not find that the duty of care arose from the statutory powers, as I understand the judgment.

MR DHARMANANDA:   That is correct, your Honour, but the court ‑ ‑ ‑ 

KIEFEL CJ:   But do you say that it reasoned that the duty of care it found obliged it to exercise its statutory powers?

MR DHARMANANDA:   We say that, and that is – the critical passages are 152 onwards, and if your Honour goes then to 153, putting it shortly, the Court of Appeal there said that Western Power chose to operate its distribution system.  We submit that it is not so much a choice but rather an obligation to connect and supply electricity under the relevant statutory scheme. 

Western Power may stop supply only if it knows there is potential danger, and that is because of the Electricity Corporations Act2005, section 63(1), to which I do not need to go, and also the Electricity Industry Act 2004, section 31(1) - it is in the material before the Court. If one then ‑ ‑ ‑

GAGELER J:   Mr Dharmananda, just going back to your acceptance, which is recorded at paragraph 152, of the existence of:

a duty to take reasonable care –

in the operation of your electricity distribution system, are we here concerned with how one establishes the boundaries of that system?  I mean, at some point you must interconnect with consumer premises, and is that not where we are in this case, at the point of interconnection?

MR DHARMANANDA:   Yes, we are at that point of interconnection, and we say that at that point, at least when it came to the PA pole owned and controlled by Mrs Campbell, no duty of care exists.  We say that for two reasons:  one, because of control, and the other because of the statutory scheme, to which I shall come shortly.

KIEFEL CJ:   Do you go so far as to say that the Court of Appeal must be taken to say that your client ought to have assumed control?

MR DHARMANANDA:   We say that that is the effect of the reasoning, but the reasoning is impacted by the conception of choice that is used in paragraph 154.  For that reason, the Court of Appeal does not confront with any precision the nature of control needed as set out in the joint judgment, to which I have taken the Court.

In our submission, the suggestion that Western Power chose to use Mrs Campbell’s pole, as set out in paragraph 154, is an incorrect characterisation.  The approach had the effect of expanding the nature of control sufficient for duty.  The Court of Appeal’s analysis, based on what Western Power apparently chose to do, was not based on any evidence or argument put to the Court of Appeal or to the trial judge.  The statutory scheme does not give Western Power the choice that informed the Court of Appeal’s approach.

When electricity was connected to the property originally, Mrs Campbell’s husband provided the PA pole and other apparatus, and your Honours will find those findings in the Court of Appeal’s judgment at paragraph 35 at page 415, and in the trial judge’s judgment at page 46 at paragraph 102.  The idea that Western Power could decide what structures it used to supply electricity, in our submission, mischaracterises the statutory scheme.

Under the scheme, Western Power and its predecessors were not required to provide apparatus needed to connect to the premises that were a distance away from the network, and as the Electricity Act Regulations 1947, which were the relevant regulations in force at the time, demonstrates, it was necessary for the consumer to provide the requisite apparatus. 

We have reproduced those regulations, and the relevant regulation is 206, it is at page 793 of the book, to which I do not need to go.  Under the scheme, Western Power, as I have said, is obliged to supply electricity unless it knows of potential danger, and that is provided for by the Electricity Industry (Obligation to Connect) Regulations2005, which is also in the book at page 779. 

Can I say a little bit more about paragraph 154?  The fact that Western Power had control of its own service cable and other apparatus is not sufficient, in our submission, for the conclusion that Western Power had enough of a connection to the PA pole for a duty of care to arise as to the pole.

Adopting the approach in Stuart v Kirkland‑Veenstra, Western Power did not have any control over the risk of harm presented by the PA pole.  In reality, the essence of the reasoning in paragraph 154 involves the erection of a common law duty merely because the statutory authority had statutory power and had control over its own network, and no control of the thing that posed the risk of harm.  That has not before been treated as sufficient for a common law duty of care to arise.

Can I take the Court then to paragraph 155?  We say the Court of Appeal was incorrect to conclude that the case involved the negligent use of statutory power.  Given the nature of the duty of care ultimately found by the court, which requires Western Power to conduct routine inspections, the complaint is about a failure to act, not negligent action.  Can I then take the Court to paragraph 158, where the Court of Appeal formulated the duty?  The way in which the Court of Appeal ultimately formulated the alleged duty of care, in our submission, discloses the error.  By formulating the duty as a duty arising to guard against:

fire in connection with the delivery of electricity through its electricity distribution system -

the Court of Appeal has used words that blur or smudge the distinction between Western Power’s property and a consumer’s property.  That is a distinction that the Parliament treated as critical in demarcating the nature and extent of Western Power’s obligations when supplying electricity. 

Before I go to Parliament’s purpose or intention, there is a further point about the duty of care as formulated by the Court of Appeal.  The idea that a duty is owed by Western Power to guard against fire in connection with its electricity delivery, in our submission, is open‑ended.  A duty of this kind is a duty the boundaries of which are unclear, but if it is a duty now owed by a public utility merely by reason of its performance of its statutory functions and obligations, it is not the ‑ ‑ ‑ 

GAGELER J:   Mr Dharmananda, can I just go back to paragraph 152?  Is what is recorded in the second sentence a correct statement of your position?

MR DHARMANANDA:   It is, your Honour.  That goes to the pre‑inspection duty as found by the trial judge and of which we do not appeal.  So if we connect or disconnect to an owner’s property, then at that point, as regards – because of our obligations in the actual supply of electricity, we have to take care, but that does not convert or create an obligation of routine and regular inspection as regards consumer’s property.

KIEFEL CJ:   Are you saying that what the duty of care imposed, outlined by the Court of Appeal, would require systematic supervision and maintenance?

MR DHARMANANDA:   Correct.  We say that that is precisely what the Court of Appeal found, and when I come to – or it is said, at least, you have a duty to inspect, to inform the owner that they have to maintain, and we submit that that asset management, inspection or maintenance obligation is not countenanced by the legislation.  It is not ‑ ‑ ‑ 

KIEFEL CJ:   I just want to be clear about what your point is here, because that is not really a challenge to the existence of a duty of care, but rather the breadth of it.  Or does this go to your inconsistency with the statutory scheme point?

MR DHARMANANDA:   It is both, your Honour.  It is a challenge to the duty of care in that a duty of care in connection with the supply of electricity, we say, is too broad.  A duty of care to ensure that when we connect or disconnect, that we are connecting to something that is safe, is the ambit and extent of the duty.  But it does also go to our incoherence point, to which I will come shortly.

GAGELER J:   Safe for how long, Mr Dharmananda?  I mean, you are connecting – is it safe for the next week, safe for the next year, safe for the duration of the service?

MR DHARMANANDA:   Safe for when we connect, because the assumption upon which the Parliament operates is the consumer is responsible for the upkeep of their property.  So it is not an obligation to – there is no ability to connect to something unsafe, but it is not an obligation to inspect to determine safety of the asset for all time.  That is, in fact, the obligation of the relevant owner of the property.

Can I please go to the next point, the coherence point, and that is the subject of the court’s reasoning at paragraphs 135 to 147.  We say the Court of Appeal approached the issue of coherence as if it is answered by determining whether a common law duty can co‑exist with the statutory scheme.  The Court of Appeal did not consider whether the statutory scheme covered the relevant field or involved implied negative propositions or indirect inconsistency. 

Can I please ask the Court to go to paragraph 125 at page 437, and make these submissions about the two sections?  Section 25(1)(a) requires a network operator at all times to:

maintain all service apparatus belonging to the network operator which is on the premises of any consumer, in a safe and fit condition –

The focus of the obligation in section 25(1)(a) is on service apparatus that belongs to the network operator, even when on a consumer’s premises.  The words “belonging to the network operator” intentionally are part of the obligation created by the section, make it plain that the obligation to maintain is confined.  It is an obligation to maintain the network operator’s service apparatus.  The words “belonging to the network operator” are not there merely as adjectives that do nothing but describe this service apparatus.  The words mark out the nature and extent of the obligation imposed on the network operator by Parliament. 

The negative proposition from this is apparent.  The negative implication is that the network operator is not required to maintain service apparatus that belongs to the consumer.  The Parliament intended that the consumer’s service apparatus would be maintained by the consumer, and that reflects the common law position.  The PA pole is a fixture for which Mrs Campbell was responsible.  The Parliament’s intention that a consumer was to be responsible for their apparatus is confirmed by the second reading speech when section 25 was first introduced, and that is at page 797 of the materials - I will not go to it. 

The subject of the obligation is service apparatus that belongs to the network operator and which is on the consumer’s premises.  The verb that describes the obligation is “maintain”, the obligation to maintain is to reach a particular standard, the standard is:

a safe and fit condition for supplying electricity –

It is wrong to focus on the standard of maintenance to draw a conclusion that there is also a maintenance and inspection obligation with respect to service apparatus that belongs to the consumer.  Can I also say this about section 25(1)(b). It also has a number of…..implications.  Section 25(1)(b) provides for a network operator to take:

reasonable precautions in order to avoid the risk of fire or other damage on the said premises –

but this obligation is expressly confined so that it arises in the actual supply of electricity to the consumer’s premises, and the obligation is an obligation that exists only to the position on the premises:

where the electricity passes beyond the service apparatus of the network operator –

Section 25(1)(b) is focused on the need for precautions when electricity is conducted using cables.  The “in connection with duty” that the Court of Appeal imposed is actually inconsistent with the negative implications in section 25(1)(b).  May it please the Court.

KIEFEL CJ:   Yes, thank you, Mr Dharmananda.  Mr Dunning.

MR DUNNING:   Thank you, your Honours.  Your Honours, in our respectful submission, if I could ask you please to go to paragraph 143 of the Court of Appeal’s reasons on page 442 of the book.  What your Honours will find there is neatly stated…..of why…..control and the inconsistency point not only do not exhibit matters that would warrant a grant of leave, but do not indicate any error in the court below.  Their Honours turned their minds carefully to the issues and, as they recorded there:

Rather, the obligation is to maintain . . . the service cable in a certain condition, being a fit and safe condition for supplying electricity.  In our view, the aerial service cable will not be kept in a fit and safe condition if it is attached to a pole which is incapable of supporting it –

Now, that rationale, in our respectful submission, is unimpeachable.  It also provides an answer, in our respectful submission, to the dichotomy that Western Power assert between a duty that…..at the time of connection, but a duty that they eschew immediately after that time.  But respectfully, there is no rationale if such a…..to focus on connection, when in fact the issue is the supply of electricity.  That was the matter at risk, and that is the matter that the Court of Appeal paid careful attention to and, in our submission, one can see from paragraph 143 that neatly captured the situation in this case.

Your Honours, in our respectful submission, this is not an appropriate application for a grant of leave, for the reasons I have just indicated, and I will develop a little further.  There is no substance in the allegation of error on the part of the Court of Appeal.  What it did was construe an old and unusual provision, section 25, and discern that it was not exhaustive of Western Power’s obligations, and subsection (2) gave a broad hint to that, in the unusual aspects of it having a vast number of consumer poles in or adjacent to its network.

As a matter of the application to orthodox statutory interpretation principles, the Court of Appeal’s analysis, in particular at paragraphs 136 to 147, does not warrant criticism at all and thus…..two issues that Western Power seeks to raise.  The contended questions, in our respectful submission, do not arise.  Control does not arise on the uncontested concurrent factual findings, and thus is not an appropriate vehicle.  Inconsistency does not arise, because the Court of Appeal took an orthodox approach to well‑established authority, and that which is put against it is a new framework which is abstract, unrealistic, and ultimately new to the case.

Finally, although there is some difference – I think I would rest that.  Your Honours, the best illustration, in our respectful submission, as to why no grant of leave should be made is by observing these passages in the judgment itself.  Can I ask your Honours please to go to page 430 of the book, and to paragraph 102 of the Court of Appeal’s reasons.  Under the heading of “statutory context”, their Honours carefully address themselves to the law that has been explicated in this regard in relation to taking into account should a duty be imposed against the statutory context in which it is said that common law duty would arise?  Their Honours addressed themselves to the relevant question, and at paragraph 103:

A common law duty of care must be coherent and consistent with the relevant statutory scheme, and compatible with the powers conferred and the duties imposed on the statutory authority.

At 105, in the second line, noting that foreseeability, whilst necessary, was not sufficient.  But in that regard, their Honours squarely addressed themselves to the question, it was right that they did, as to the place of the statute in the…..  Their Honours then, at paragraph 106 and on, go…..carefully with the statutory concept in which Western Power supplied its power, leading ultimately to paragraph 125, where their Honours set out the critical provision, in section 25(1)(a), and we also give reference to subsection (2).

Having carefully analysed the statutory framework, their Honours then turn to the case that was put by Western Power in relation to a duty not arising in the statutory scheme.  Your Honours will see at paragraph 136 on page 440 they reject the argument that was pressed by Western Power in the court below of incompatibility of a common law duty with the statutory scheme and set out in some detail their Honours’ reasoning for it. 

Can I particularly notice paragraph 138, and the reference their Honours make to section 125(2), a matter inconsistent with the breadth asserted by our learned friends, and the conclusion of that paragraph at about line 10 on the next page:

It does not, in our view, indicate that the section is directed towards persons not associated with premises supplied with the electricity who may be harmed by fire emanating from the network operator’s equipment on the premises.

So much, respectfully, emerges from a natural reading of the text of section 25(1)(a).

KIEFEL CJ:   Mr Dunning, in relation to the statutory scheme, where does the power to conduct inspections to minimise the risk of fire arise from?  Where does it reside?

MR DUNNING:   Your Honour, it ultimately resides in two ways.  One is there is an entitlement to withdraw or cease supply if safety requires that, and there is also an express statutory provision to be able to go onto an owner’s land.  But there is ‑ ‑ ‑ 

KIEFEL CJ:   What about section 25 itself?

MR DUNNING:   No.  Not in section 25 itself, your Honour.

KIEFEL CJ:   Does that in part explain why the court did not find that the duty of care arose from statutory powers?

MR DUNNING:   Yes, it is, because their approach to section 25 was construing it in the manner that they proceed to do from paragraph 136 onward, is to find it was not intended to be an exhaustive statement.  Rather, it was intended to deal with the position qua the person who had the infrastructure on the land, not…..

KIEFEL CJ:   The Court of Appeal said that the case was one of failure to act.

MR DUNNING:   Yes, they did.

KIEFEL CJ:   So it reasoned that the duty of care required the electricity authority to exercise what powers it had.

MR DUNNING:   That is correct.  So if one goes to the duty that is formulated at paragraph 148 at 446 ‑ ‑ ‑ 

KIEFEL CJ:   That raises a question of when control comes into play.  Does control come into play because of the duty of care, or does the duty of care arise because of the control?

MR DUNNING:   Your Honour, we would submit the latter, the duty of care because of the control.  The fact was that Western Power had control over the supply of electricity, and that is why we place importance on their Honours’ reasoning at paragraph ‑ ‑ ‑ 

KIEFEL CJ:   Does it not have to be control over the risk that is identified?

MR DUNNING:   Yes.  Sorry, yes, and the identified risk being that were that electricity to become uncontrolled it may start a fire.

STEWARD J:   Mr Dunning, can I ask you a question?  On the assumption that Western Power had entered the land pursuant to statutory rights of access, inspected the pole, and discovered it was defective, does it have statutory power to direct the owner to make remedial works or to replace the pole with something safe and reliable?

MR DUNNING:   No, Justice Steward.  Its power would be, in those circumstances, to suspend the supply of electricity until the owner rectified the issue.

STEWARD J:   I see.  So it cannot direct remedial work, but it can turn the tap off, as it were, until such time as the work is done by the owner.

MR DUNNING: That is correct. Your Honour, that is section 63 of the Electricity Corporations Act, which your Honours find on page 746 of the bundle.  It is that level that it would act, to refuse to continue to supply electricity unless it could be supplied to a receptacle that was safe to receive it, which is what informed their Honours’ reasoning in 143. 

Can I just give your Honours two other reference in this regard?  Can I ask your Honours please to notice their Honours’ rationale at 139 in the first four lines of that paragraph and then…..  Now, that led their Honours at 145, in about the fourth line, to conclude that:

The discharge of the duty identified below requires Western Power to periodically inspect poles supporting its cables irrespective of who owns the pole, but not necessarily to repair, reinforce or replace a defective pole.

That led their Honours at 147 to conclude that Parliament had not – that the statutory enactment, essentially, was not inconsistent with the duty as they had propounded it.  In our submission, that was reasoning that was unimpeachable in terms of considering both whether one could coherently have a duty of this kind and also whether, in fact, by statute, Parliament had intended to exclude any room for any such common law duty.

If I could ask your Honours to return to the expression of the duty itself in paragraph 158…..the Western Power approach is to criticise the express duty in a way that is not…..the manner which the Court of Appeal expressed it.  What their Honours concluded was:

Western Power owed to persons in the vicinity of the SWIS a duty to take reasonable care –

So it identified its actual network, not some notion of the supply of electricity generally, but rather to people in the vicinity of its infrastructure from which it would…..electricity to make sure that it did so in a manner that was not likely to cause fire, which was…..risk in that regard.  Your Honours, may we briefly then just deal with a couple of other matters?

The notion of interface, which is how the case is put in this Court, is, in our submission, different to the manner in which it was approached in the court below, although ultimately nothing turns on it, because the Court of Appeal identified…..of duty here arose in the circumstances in which the electricity would be discharged – “supplied” is a better expression – to the consumer, and if there was a duty at the time of connection accepted then there is no rational reason why that duty would not persist, because the duty we are focused on is the duty that arises from the danger of the supply of electricity, not from the danger of hooking up a piece of wire to a pole.

That danger is as present and as real a month after the wire has been installed and the power connected as it was on the day that the power was connected, so there is, in our submission, a lack of rationale when it comes to the acceptance of a duty at time of connection but not a continuing one, because it is to focus on the wrong inquiry, which is the danger in relation to the provision of power. 

It is for that reason that, in our submission, the control argument, respectfully, by Western Power, is misconceived, because the pole itself, or Mrs Campbell’s pole, was not the agent of harm, and that is consistent with the reasoning in the Court of Appeal.

Your Honours, finally, we were going to deal with the question of direct inconsistency.  In our submission, the approach that Western Power would press, were leave to be granted, is not one that would be useful.  The analogy to section 109 and other statute inconsistencies is at best, in our respectful submission, an unhelpful analysis, and on many occasions is likely to be a positively counterproductive one.  They are incomparable as concepts because, on the one case, you have two texts from which one applies a settled body of law and determines whether one is in conflict with another.

Quite different considerations apply when one says, well, I have some text here, and is it inconsistent with the broad body of common law?  To articulate that is to illustrate the lack of utility, indeed, the unhelpfulness of the tool generally.  Unless your Honours had any other questions, they

were the reasons, in addition to what we have said in writing, as to why this is not an appropriate case for a grant of leave.

KIEFEL CJ:   Yes, thank you, Mr Dunning.

MR DUNNING:   Thank you.

KIEFEL CJ:   Ms Harris.

MS HARRIS:   Thank you, your Honour.  A question was asked in the course of addresses in relation to the sources of Western Power’s control to enter land, which is relevant to the issue of the control that could be exercised by Western Power.  Those powers were found in the Energy Operators (Powers) Act.  Section 28(3)(c) enables entry onto land to construct and improve works and maintain undertakings and facilities.  The text is at appeal book 763.  The Court of Appeal referred to that section in its reasons at 119, appeal book 435.

Section 46 is a general power of Western Power to enter onto the land - that is at application book 767, and importantly, section 49 of the Energy Operators (Powers) Act had some more specific powers to enter onto the land and undertake various categories of work.  The text of section 49 is at application book 767 and 768.  Importantly, the Court of Appeal took a slightly different view of section 49 than had been urged on it by Western Power.  Western Power had, at trial, submitted, and the trial judge did accept, that these provisions of the Energy Operators (Powers) Act did:

not give Western Power power to repair or replace a consumer’s pole if that pole is not part of Western Power’s distribution works.

That is recorded at trial judgment paragraph 179, appeal book 64.  On appeal, the Court of Appeal rejected the submission that section 49 did not authorise Western Power to enter the consumer’s property only for the purpose of inspecting a point of attachment to the pole.  That consideration is at paragraphs 174 and 175 of the Court of Appeal’s reasons, application book 451.  The Court of Appeal accepted, at paragraph 174, that Western Power may have gone:

onto the land without the owner’s consent, inspect the pole and either repair the pole or place its electrical apparatus on a supporting structure –

but importantly for the findings that the Court of Appeal did make about what the relevant breach was, which was a breach relating to a failure to inspect, the Court of Appeal found that, contrary to:

Western Power’s submission that s 49 of the Energy Operator’s (Powers) Act did not authorise Western Power to enter a consumer’s property for the purpose of inspecting point of attachment poles alone.  The powers conferred by s 49 –

were in fact much more broadly to be construed, and could be exercised for a range of reasons including:

the power of entry conferred by s 28 for the carrying out of works advantageous to the performance of the functions of the energy operator.

Those findings about control over the electricity distribution system were central to the Court of Appeal’s ultimate findings at paragraph 153 and 154 about what Western Power could do in its statutory functions of developing and managing its electricity distribution system.

KIEFEL CJ:   I see the light, Ms Harris.  Is there anything further that you need to deal with?

MS HARRIS:   No, your Honour.  The only other point I would make is that, of course, there is no – while Western Power makes a strong point about the distribution of responsibility and the demarcation of responsibility, there is, of course, on the other side of this elusive interface, no statutory obligation on consumers to inspect or maintain that would complete a system of statutory requirement for maintenance of the system.  That appears to have been left, in our submission, both to the common law and duties arising from the common law and, of course, the issue of ownership, that owners might be expected to maintain their own equipment.  If the Court pleases.

KIEFEL CJ:   Yes, thank you.  Yes, Mr Price.

MR PRICE:   May it please the Court.  As to the issue of control, in my submission, an appeal would not involve disputed legal principles, but instead the application of accepted principles.  There are at least three separate bases as to why Western Power had the requisite degree of control, and ultimately an obligation to undertake periodic inspections.  The first, and this is the principal matter relied upon by the Court of Appeal, is at paragraph 156 at page 445 of the book, and the critical passage is the last sentence, where the principle is summarised to the effect that:

prima facie, when statutory duties or powers are conferred and exercised they must be exercised with reasonable care –

So this was a case where Western Power was distributing and transporting electricity.  It was a case about the care with which Western Power performed that function over many years.  It was not a case about a mere failure to do something in the context of nothing else.  Western Power was engaged in a function and the omission, the failure to inspect, occurred in the course of that performance of the function.

That was the point of what the Court of Appeal was referring to at paragraph 154.  The emphasis on the word “choice” over‑emphasises that matter.  The Court of Appeal at 154 is looking at the performance of functions, and at paragraphs 157 and 158 it is also looking at the performance of functions.  That is the basis upon which Western Power had control.  A second basis upon which Western Power had control is found in the principle, although not ‑ ‑ ‑ 

KIEFEL CJ:   Mr Price, I know the Court of Appeal says that it is a case of:

an alleged negligent exercise by a public authority of its statutory powers –

But without the duty of care, it is not obliged to exercise its statutory powers.  Is that not a point?

MR PRICE:   The Court of Appeal, in my respectful submission, was saying that Western Power was, in fact, exercising its functions.  That much is undoubted, because it had done a number of things that had maintained the connection of its service cable to a jarrah PA pole.  It had permitted that service cable to exert load upon the PA pole for many years, and it used that PA pole to facilitate its own transportation of electricity to the point of supply.

KIEFEL CJ:   Is there an inconsistency between paragraphs 155 and 158, where the court identifies the duty of care as one requiring the authority to exercise its powers to minimise risk of injury?

MR PRICE:   Your Honour, the court was saying, in my submission, that when a statutory authority embarks upon a function, in that context it must then perform the function with due care unless there is a contrary indication in the statute.  The second basis of Western Power’s control is the fact that Western Power was central in the creation and the increase of the risk of harm, because Western Power, in doing the things that I have indicated that it did, it increased the risk of harm, because the PA pole was not subject to inspection.  The PA pole was an old pole, untreated and not reinforced.  It was located in a high fire risk ‑ ‑ ‑ 

KIEFEL CJ:   I think we are familiar with the background facts, Mr Price - I see the light.  I think you have said that this is no more than – it does not involve any extension of established principles, but I suppose the question is whether or not the law of negligence is confirmed or developed by the application of established principles to particular factual scenarios and whether or not this provides an opportunity for the Court to consider the way in which control - what is required by way of control and when it will give rise to a duty of care.

MR PRICE:   Yes, your Honour, my point ‑ ‑ ‑ 

KIEFEL CJ:   Whether or not this case presents a particular scenario for that to be undertaken.

MR PRICE:   Yes, but there is no new test of control proposed, your Honour.  In my submission, nor does the coherence point raise any question of special leave.  The Court of Appeal did not deny the significance of covering the field inconsistency.  Their Honours did not even pronounce the covering the field inconsistency was irrelevant.  If this matter went on appeal, your Honours would be without any statement by the Court of Appeal.  May it please, your Honours.

KIEFEL CJ:   Yes, thank you.  Mr Hutley.  I think you might be on mute, Mr Hutley.

MR HUTLEY:   I cannot be that brief – I will be very brief, your Honour.  The concession as to the existence of the duty at 152 of the Court of Appeal’s reasons, and if one compares that with the duty as found at 158, the distinction between them is perhaps one of nuance and not particularly of substance.  That explains why, in our respectful submission, Western Power accepts at their submissions at paragraph 45 at 725, that this question could be determined at the level of well as breach as well as duty.

They accept that there is a duty of care, the question is merely, in effect, what might be called the hinges of it.  The view is expressed, we say correctly expressed, by Western Power, that what one really is considering here, in our respectful submission, a question of whether there was a breach on the part of Western Power in fulfilling whatever duty it had in not taking a step as an aspect of protecting its apparatus to inspect that which was utterly dependent, its apparatus, and the supply of electricity, was dependent upon.

Now that, we submit, is a case which will not serve to, as it were, expand or inform area of law of negligence, accepting your Honour the Chief Justice’s observation made to my learned friend a moment ago.  What one is talking here is about a peculiar set of circumstances where there is an intimate relationship between the security of supply and a piece of equipment, a piece of property which, on any view, the authority, Western Power, had the authority to inspect.  We say the point is of intense narrowness, and one not apt to serve any development of the law and, for the reason ‑ ‑ ‑ 

KIEFEL CJ:   Does it not involve the question of whether authorities having statutory powers are obliged to exercise them to gain control?  Can it not be viewed in that light?

MR HUTLEY:   Well, your Honour, if one predicates the duty, if one assumes the duty, let it be assumed one assumes the duty at 152, the question then becomes…..to deal with the risk of fire from the system.  The system – the pole does not create the fire, the system does and, therefore, one can equally frame this as negligence under that duty, which is accepted, which might be of use ‑ ‑ ‑ 

KIEFEL CJ:   When you say, “the system creates the fire”, it is electricity.  That is almost like saying it is a dangerous product and you have to be careful where you put it.

MR HUTLEY:   But the pole does not create the fire, it is the electricity in the system.  Our short point is, accepting your Honour the Chief Justice’s observation, that this case would result in the same result whether you formulated the duty under 152 or under 158 because ‑ ‑ ‑ 

KIEFEL CJ:   Is that because you say it is simply a case of breach rather than whether the duty of care arose in the first place?

MR HUTLEY:   Quite, because it cannot be this inconsistency point does not arise, because they accept that there can be a duty of care, and they accept that at 152.

KIEFEL CJ:   Yes.

MR HUTLEY:   Therefore, the inconsistency point does not arise.  There can be a duty of care.  It is really a question about what is a breach and that is a point with respect to ‑ ‑ ‑ 

KIEFEL CJ:   Or the breadth of the duty of care.

MR HUTLEY:   Quite.  That is a point of, really, peculiar to this particular regime which exists, and will not serve to develop the law, in our respectful submission.  That is all we wish to say, if the Court pleases.

KIEFEL CJ:   I think you have also put on notice that your client would seek to cross‑appeal.

MR HUTLEY:   Yes, we would – unless the Court indicated else, we would assume that that would be dealt with on the appeal ‑ ‑ ‑ 

KIEFEL CJ:   Yes.

MR HUTLEY:   Leave in relation to that would take place at the hearing, if leave were granted on our learned friends’ application.

KIEFEL CJ:   Yes.  Thank you, Mr Hutley.  Mr Watson - Mr Watson, you are on mute, too.  We still cannot hear you.  Like Mr Dunning, I think everyone needs a teenager to come and fix their video connections.  Mr Watson, would you like a few moments to see if you can have the audio come back?  We will retire for a few minutes, and if not, we can perhaps have a telephone connection put in.  The Court will adjourn briefly.

AT 2.57 PM SHORT ADJOURNMENT

UPON RESUMING AT 2.59 PM:

KIEFEL CJ:   Yes, Mr Watson.

MR WATSON:   I am so sorry about that.  Your Honours, I was going to say that I expressly adopt what Mr Hutley had to say, especially in response to your Honour the Chief Justice’s questions about duty.  Once one accepts that there is a duty, as Western Power did, the issue becomes a question of fact, a question of breach.  In that respect, without repeating anything, can I take your Honours to a critical finding on breach?  It is at paragraph 166 of the Court of Appeal judgment.

This speaks of the particular risks in this particular area, where lots of jarrah was used for these kinds of poles, and the poles themselves were recognised in the area as being ageing and susceptible to attack by termites and mould.  Those four findings give a context to the finding of breach which is encapsulated at paragraph 180, your Honours have seen it, I shall not repeat it, but it is worthwhile going back and just looking at paragraphs 18 through to 21 - this is at pages 14 and 15 of the Court of Appeal judgment.

Some of them are a little repetitive of those matters I have just shown your Honours in paragraph 166.  These came from unchallenged factual findings made by the trial judge.  As I say, some of them are repetitive, but it goes further, paragraph 19:

Western Power knew, or ought to have known –

Paragraph 20:

Western Power knew, or ought to have known –

Paragraph 21, it presented:

a grave hazard –

Now, that is the background to the finding of breach, the classical jury question, a question of fact.  There is no ‑ ‑ ‑ 

KIEFEL CJ:   They are all theoretical matters which go without saying.  They have not yet been applied to the facts.  They are not actual knowledge that they are talking about there, these are just theoretical – these are theoretical matters in relation to what dangers might be present.

MR WATSON:   Hence why, as part of – and we would respectfully submit, an obvious, unimpeachable statement of general duty which was contained in paragraph 158 of the Court of Appeal’s judgment, which is why their Honours concluded that breach was found on the basis of the absence of any system of inspection or control – they could have controlled this – of the condition of these poles in this area where a particular hazard or risk was identified and actually arose. 

KIEFEL CJ:   Mr Watson, is there a connection between paragraphs 155 and 158 in the Court of Appeal’s reasoning?  Is 155 leading up to what is said at 158?

MR WATSON:   Paragraph 155 is unnecessary for the purposes of 158, but there is no incompatibility between them.

KIEFEL CJ:   It is unnecessary because it is dealing with breach of duty and not the existence of a duty of care.

MR WATSON:   Exactly.  The statement of duty is at 158, and when one looks at that, we would respectfully submit that that is just beyond criticism.  That seems obvious.  Your Honour Justice Gageler asked a question earlier about the concession - how far did the concession run?  Was it only to the

very minutes that the electricity was being attached to the PA pole, or did it continue and in an area where a risk was known, what could be done?

Now, we have made this point in writing, but it is pretty obvious that this thing, this task, could have been undertaken.  When one speaks of control in this context, one is talking about the ability to do those sorts of things one needs to do to discharge your responsibilities.  Western Power could have done it.  For those reasons, we say, like Mr Hutley, the result is inevitable.  Western Power should have been found liable, they were, and this case raises no point of principle.  Thank you, your Honours.

KIEFEL CJ:   Thank you, Mr Watson.  Mr Dharmananda, in reply could you deal with the question of the importance of this and why this Court would be involved, particularly in the face of the concessions that have been referred to?

MR DHARMANANDA:   Thank you, your Honours.  May I deal with that point directly?  The concession, as it has been described, is about a duty that arises when work is done, called at trial the pre‑work inspection duty.  That concession says nothing about the asset management duty, as it was called at trial, namely a duty to inspect and maintain Mrs Campbell’s PA poles or other people’s property. 

The issue that your Honour the Chief Justice raised with my learned friends actually brings into stark focus the question of principle.  The issue is whether, because of statutory power, and whether it needed to be exercised, there is, of necessity, control, or whether the authorities say control is a prerequisite for the exercise of statutory power. 

We submit, on the authorities, until this case, control had to be taken.  The existence of statutory power was insufficient.  As to the point about coherence, and my learned friend Mr Dunning said that it would be not appropriate to bring into play the implied negative propositions that arise from a parliamentary instrument, we say that is an approach that ought to be taken by the Court in this area.

As to another point that was made by my learned friend Mr Dunning, that the pole was not the risk of harm, as we apprehend the authorities and as this case was run, it was the pole that fell.  There was nothing wrong with Western Power’s network, and that risk of harm is something over which Western Power had no control at all. 

My last point is about the dichotomy between breach and duty.  It is answered by the first point I made, namely the question in this case is whether there is an asset management duty, a duty to inspect consumers’ property.  That question arises at the duty level, and there was no breach as

regards that.  As your Honour the learned Chief Justice put to my learned friend Mr Watson, it is easy to say that there was knowledge of a general nature, but that does not trigger duty.  May it please the Court.

KIEFEL CJ:   Yes, thank you.  The Court will adjourn to consider the course that it will take.

AT 3.06 PM SHORT ADJOURNMENT

UPON RESUMING AT 3.10 PM:

KIEFEL CJ:   There will be a grant of special leave in this matter.  What is your time estimate, Mr Dharmananda?

MR DHARMANANDA:   Your Honour, if the case for the respondents were confined so that one party dealt with it, as has been done here, we think it is a day case.  If not, it might go onto two days.

KIEFEL CJ:   I think it is more likely to go into a second day.

MR DHARMANANDA:   May it please.

KIEFEL CJ:   Could I have the views of the respondents?  Mr Dunning.

MR DUNNING:   Your Honour, we think it would be safe to allow a second day, because it is also likely to provoke applications to cross‑appeal.

KIEFEL CJ:   I do not want to be too encouraging.  I was not saying “two days”, I said “going into a second day”, so I would say one and a half tops should see it out.

MR DUNNING:   Yes, agreed, your Honour.

KIEFEL CJ:   Ms Harris?

MS HARRIS:   Your Honour, given the potential for the cross‑appeals, we would certainly also estimate at least a day and a half.

KIEFEL CJ:   Yes.  Mr Price?

MR PRICE:   I concur, your Honour.

KIEFEL CJ:   Mr Hutley, do you think that, with a cross‑appeal, it would take any more than one and a half days?

MR HUTLEY:   The facts are in a relatively narrow compass.  The findings are there.  I am just a bit loath – because the - we have not seen responses to the potential cross‑appeal.  I am just worried that they may, in effect, lead to factual disputes which I cannot predict with precision as to how long it would take.  That is my only concern.  It might be dealt with this way, your Honours.  If we thought it was going any longer, we could approach the Registrar for slightly longer written submissions on the cross‑appeal if they become – difficult factual issues started to arise.

KIEFEL CJ:   It is hard to see how they would be, Mr Hutley, but ‑ ‑ ‑ 

MR HUTLEY:   I agree, your Honour, it is just because – we have just floated it and we have not seen what everyone’s response to it will be.

KIEFEL CJ:   Yes, I see.

MR HUTLEY:   What the responses will be, and that is my only concern, your Honour.  I would be relatively confident a day and a half would see it out, but I just do not want to warrant that.

KIEFEL CJ:   Yes.  Mr Watson?

MR WATSON:   A day and a half, your Honours.

KIEFEL CJ:   Yes, thank you. 

MR DHARMANANDA:   Your Honour – may I raise one more thing, your Honours?

KIEFEL CJ:   Yes, Mr Dharmananda?

MR DHARMANANDA:   Sorry, your Honours.  There is an application for consolidation that is in the book - volume 3, page 1132 – I submit it is in 1133.

KIEFEL CJ:   Have you corresponded with the respondents about what the responses are?

MR DHARMANANDA:   I am instructed no, but I do not imagine there is any opposition to consolidation, so that we do not have to do 12 sets of papers.

KIEFEL CJ:   Yes.  Is there any opposition from any of the respondents about the orders?  I should not have thought so.

MR DUNNING:   No, your Honour.

KIEFEL CJ:   Yes, there will be orders in those terms.

MR DHARMANANDA:   May it please your Honour, thank you.

KIEFEL CJ:   Thank you, Mr Dharmananda.

AT 3.14 PM THE MATTER WAS CONCLUDED