Electricity Networks Corporation Trading as Western Power v Herridge Parties & Ors

[2022] HCATrans 147

[2022] HCATrans 147

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P5 of 2022

B e t w e e n -

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

Appellant

and

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

First Respondents

IAG/ALLIANZ PARTIES (PER ORDER MADE BY JUSTICE MITCHELL ON 28 OCTOBER 2019)

Second Respondents

RAC PARTIES (PER ORDER MADE BY JUSTICE MITCHELL ON 28 OCTOBER 2019)

Third Respondents

NOREEN MERLE CAMPBELL

Fourth Respondent

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

Fifth Respondent

KIEFEL CJ
GAGELER J
GORDON J
EDELMAN J
STEWARD J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 7 SEPTEMBER 2022, AT 10.05 AM

(Continued from 6/9/22)

Copyright in the High Court of Australia

____________________

KIEFEL CJ:   Yes, Mr Dharmananda.

MR DHARMANANDA:   May it please the Court.  We have provided to the Court copies of a table entitled “Appellant’s table of relevant provisions as required by the Court” dealing with two issues that Justice Gordon raised yesterday.  I will say no more about it.

KIEFEL CJ:   Thank you.  Yes, Mr Gleeson.

MR GLEESON:   When your Honours come to consider that table, you might consider whether the paraphrase on page 2 of section 41 of the Electricity Act is accurate or whether it in fact rolls up the conclusion sought on the appeal.

Your Honours, for our part, we seek leave to rely upon an aide memoire, which has been provided to the Court, the purpose of which in sections A and B is to seek to answer Justice Steward’s questions.  For that purpose, we have also provided a full copy of the 1945 Electricity Act.  Then, section C of the document is a list of the provisions which we have been dealing with in argument in terms of function, power and then finally control – if that is of assistance.

Your Honours, the point I was up to in the submission was paragraph 7(d) which was to identify the final set of critical powers available to Western Power and they are found in the Energy Operators (Powers) Act which is in volume 2, tab 26.  This very broad suite of powers enables, we would submit, Western Power to enter the land – I will start with section 28 on page 609 – enter Mrs Campbell’s land, occupy it and while she is there:

by the best available route and in a practicable manner, construct, extend, or improve works –

and so on:

works requisite, advantageous, or convenient to the exercise and performance of the functions –

That power, we would submit, would enable Western Power to inspect the pole that was there to require a different pole to be used as the point of attachment.  For example, to use the steel pole in the diagram if it was safe and otherwise to attach its cable to a point of connection such as a pole in the safest manner.  Those powers are exercisable without agreement, whereas in paragraph (d), agreement is required.  Next in that same Act on section 43(1) ‑ ‑ ‑

EDELMAN J:   Mr Gleeson, just before you move on.  Would section 28(3)(c) empower Western Power to perform any rectification works on the pole?

MR GLEESON:   Yes.  That could be a broad range of rectification works.  In the first instance, it might involve disconnection of the cable if the pole is in a dangerous condition, then it might involve replacement of the pole, repair of the pole, either requiring Mrs Campbell to do it or doing it ‑ ‑ ‑

EDELMAN J:   Is that because doing that work is advantageous or convenient to the exercise and the performance of one of the section 41 functions?

MR GLEESON:   Yes.  So, even if the pole is owned by Mrs Campbell, because it has been incorporated by Western Power into its system, this power flows.

EDELMAN J:   It would be an unusual reading, though, of legislation to construe a power to deal with – without consent – somebody else’s property.

MR GLEESON:   Your Honour, I have to put 28 into context, because the question of notice and consent is then taken further in the provisions I am coming to, if that is convenient.  I was going to briefly note that under section 43(1), that at least in respect to Western Power’s property in and over the land – which includes the aerial cable, the meters, and the fuses – at least that far it has a right of access for the purpose of performance of its functions, and under subsection 2 it can deal with that property – for example, by removing it.

But critically, when the Court comes to section 46, the power of entry is then conditioned by, in the ordinary case, a notice requirement under subsection (2) and, provided the proper notice is given‑ ‑ ‑

GORDON J:   Or consent.

MR GLEESON:   Or consent.   But if notice is given, you do not need consent but, one of the other ways is you have the right to enter, and then there are failsafe provisions in subsections (7) and (8) for court orders and in subsection (11) the notice period is specified and subsection (13) allows emergency entry forthwith.

GAGELER J:   Mr Gleeson, is section 43(1) operative in the present case to ensure that you retain property in your installation on the land?

MR GLEESON:   I think I missed part of your Honour’s question. Is it operative?

GAGELER J:   Yes.  Is section 43(1) operative to ensure that Western Power retains property in its installations on the land?

MR GLEESON:   Yes.

EDELMAN J:   That is to prevent them from becoming annexed to any fixture like the pole?

MR GLEESON:   In part it is do that under the ordinary law of fixtures.  But critically, also in terms of what I was describing as the shared responsibility between Mrs Campbell and Western Power, she cannot deal with the cable, the meter or the fuses without Western Power’s consent because it is its property.  So, it illustrates the shared control and the shared responsibility.

Your Honours, then I was going to section 48.  There is a very broad right of entry in what are regarded as emergency situations.  It is a right of immediate entry and it is power:

to deal with the emergency situation, and there exercise all such powers as are … reasonably required to deal with that situation, without any requirement for a notice –

and ‑ ‑ ‑ 

GORDON J:   Do you not – sorry, can I just – so it is section 48 that we are dealing with now, rather than section 49? 

MR GLEESON:   Yes, and then section 49 takes it further with a series of powers.

GORDON J:   Do we read those subject to the section 46 notice requirements because they are subject to this Act?  Or consent?

MR GLEESON:   That is probably right, your Honour.  Yes.  The Court will see the width of – particularly the powers in paragraph (c) and paragraph (d), which takes us very close to the present case, is the power:

to cause any distribution works or service apparatus or related things to be supported by affixing or annexing them to or against any part of a house, building or other structure –

We interpolate pole.  So, this is the power which sits together with the duty to which I took the Court in regulations 4 and 7 of the Obligation to Connect Regulations dealing specifically with the affixation or annexing of works or apparatus, against what may well be the consumer’s property for the purpose of supporting the works or apparatus and thereby enabling them to achieve their function within the system.

So, that power there is a power which both has been exercised on a continuing basis by Western Power since 2006 and is also available at any time to change the method of affixation or annexation to the pole.  And the notion of support in the power is effectively what the Court of Appeal has found, that this is not a general freestanding duty in respect to anything, to any pole, it is only about the poles which have been given the task of support within the system that are the subject of the relevant duty.

STEWARD J:   Well, these are power affecting the apparatus, but are you not more in (c), “inspect, service, maintain, replace, repair”?

MR GLEESON:   It is both in a sense, your Honour.

STEWARD J:   It is both.  Okay.

MR GLEESON:   In terms of the entry upon the exercise of the power, it is perhaps (d) that is the action that has occurred and continues on an ongoing basis; (c) is what I was calling the (2)(b) power, that is the power to get in there, see if there is a problem, fix the job ‑ ‑ ‑

STEWARD J:   Subsection (c) is sort of the supplementary power once you ‑ ‑ ‑

MR GLEESON:   It is the supplementary power and so ‑ ‑ ‑

STEWARD J:   Yes, I see.

KIEFEL CJ:   And (d) is more particularly the power that Thiess was exercising.

MR GLEESON:   Well, it is both, your Honour.  It is the power that Western Power exercised from 2006 when it took over the system to continue to have that pole as the method of ‑ ‑ ‑

KIEFEL CJ:   But as an actual entry upon works, it was Thiess that was exercising the power in (d) in July 2013, under the authority given by section 4.

MR GLEESON:   Your Honour, I think my answer would be that Thiess was probably (c) and (d) ‑ ‑ ‑ 

KIEFEL CJ:   Subsections (c) and (d).

MR GLEESON:   ‑ ‑ ‑ because within (c) you have got “inspect, service, maintain, replace, repair”.

KIEFEL CJ:   Yes.

MR GLEESON:   So, what Thiess was in fact doing was doing work on the Western Power pole, the pole further back, but that work necessarily required ‑ ‑ ‑

KIEFEL CJ:   Yes, involved the PA pole.

MR GLEESON:   ‑ ‑ ‑ involved the other pole.  So, there are a suite of powers.  I should notice in (c)(v) it is the power to:

remove or carry out any works –

So, if one asks what was available to Western Power we would submit the powers included removing the pole if it was dangerous, replacing it, requiring the customer to do it.  And, in fact, as the Court of Appeal found if this cost money through a system of inspection that would be recovered, one would expect, through the regulated tariff that it charged its consumers, so that is how it all fits together.

EDELMAN J:   Mr Gleeson, the cable need not have been attached Mrs Campbell’s pole.  It could have been attached to a board on the side of the house, could it not?

MR GLEESON:   Yes.

EDELMAN J:   And if the view were taken that the supporting wall of the house were not safe, would these provisions give power to the operator to enter into the house to replace the wall?

MR GLEESON:   Yes, and as Justice Gordon put to me, unless it was an emergency, you might go through notice – if not consent – if not go to the JP or the Court – but the power to do it is here.  The reason it is here is because the system is what has to be protected as to its integrity and safety.  The system includes attachment – affixation.

STEWARD J:   Mr Gleeson, assume for the moment you got all of these powers – we are not quite there yet, because at some point will you explain to us how you see the role the inspectors have in all of this?

MR GLEESON:   Yes.

STEWARD J:   Thank you.

MR GLEESON:   To complete this statute in section 50, there is a restriction on the powers – do as little damage as possible, paragraph (c). 

Finally, in section 57, there is a particular definition of distribution system which matches the concept that I propounded yesterday, that it is the genus, and that it includes the species of distribution works, and service apparatus pertaining to distribution works.  The particular definitions of those terms are found at pages 603 and 605 of this Act.

GORDON J:   What sections are those, please, Mr Gleeson?

MR GLEESON:   That is in section 4(1) – the definition of “distribution works”.  Again, we see the elasticity in that definition, because it includes:

other equipment or plant used in conjunction therewith –

But then “service apparatus” on the next page, 605, that is the broad and amended definition of “service apparatus” you have seen in other Acts, which includes at the end:

any other equipment or plant used in conjunction therewith, whether or not the property of –

Western Power.  So, Mrs Campbell’s pole is service apparatus, and within section 57 – which is where I went – there is a particular power – as you would expect – if there is a system‑wide emergency where Western Power notifies the Minister – if possible – under subsection (1a), but if not, under (2) can do whatever is necessary.  In the extreme case – which is perhaps the present case – where one might regard the failure of a pole as endangering the integrity of the wider system, and causing vast property damage, there is a power for Western Power to do whatever is necessary.  That power, your Honour Justice Gordon, would not need notice or consent, it is a failsafe power.

GORDON J:   Because that is the emergency power.

MR GLEESON:   Yes.  Your Honours, that concludes what we wanted to put on questions 2(a) and 2(b) ‑ ‑ ‑

STEWARD J:   Just before you go on, just to help me out, am I right in thinking that this Act is the successor to what was originally the State Electricity Commission Act 1945, which then got rebadged in 1979 to the State Energy Commission, and then it got rebadged again into the Energy Operators (Powers) Act?

MR GLEESON:   The answer is ‑ ‑ ‑

STEWARD J:   You do not have to answer straight away, if you do not want to.

MR GLEESON: The answer is largely but not wholly for this reason – I have handed the Court yesterday and today the 1937 and the 1945 Electricity Acts. Much of what is in the Energy (Powers) Act is also picking up those types of powers. There is unfortunate overlap, but the types of powers that I have taken you do in the Energies (Operators) Act, you will see reflections of those in section 15 of the Electricity Act 1937, and in section 18 of the Electricity Act 1945, so they are ‑ ‑ ‑

GAGELER J:   Mr Gleeson, will you say something specifically about section 25 of the 1945 Act at some point?

MR GLEESON:   Yes, that is number five, your Honour.

GAGELER J:   Thank you.

MR GLEESON:   I am almost there.  The third question we have identified is – which may be a reflection of the second, but it is in what sense is control over the risk of the harm relevant to this exercise, whether it be in terms of finding the common law duty or in terms, ultimately, of statutory coherence.  I have said what I wanted to say about Western Power’s side of that equation, what is left is Mrs Campbell’s side of the equation.

The short point about the provisions in paragraph 8B of our note, is that through each of them – as you would expect – she does not have unconstrained ability to treat with Western Power’s property on its pole, or attached to its pole, or indeed, we would say, the pole itself, because it is a site of shared responsibility.  The first of those is in volume 1 tab 5, it is the Electricity Act at sections 42 and 47, page 131 ‑ ‑ ‑

EDELMAN J:   Mr Gleeson, why is this relevant to the appeal and circumstances where it is not in dispute that Mrs Campbell owed a duty?

MR GLEESON:   The relevance to the appeal is that the logic of what Mr Dharmananda is putting is because this pole was owned by Mr and Mrs Campbell, the only person who the common law recognises as having a duty to protect the public from risk of fire is Mrs Campbell.  It has no duty unless it engages on particular work but in general it can say, not my pole, Mrs Campbell’s pole.  Beneath that proposition – although it is not fully teased out – is an idea that ownership of the pole at common law must carry with it the sole responsibility under the law of negligence for ensuring the pole does not cause injury to people. 

The proposition we are contending for is that the pole performs a dual function.  It is part of Mrs Campbell’s system, therefore she has a duty; it is a part of Western Power’s system, therefore it has a duty.  The proposition that because you are the owner, you are the person who has the sole duty can be seen to be negated by the statutory scheme because Mrs Campbell does not have all of the unlimited powers an owner might have to treat the pole or what it is on it in any way she wishes.  As you would expect under the scheme, she is heavily constrained by what she can do, and in that constraint, she will be required to treat with Western Power. 

EDELMAN J:   But does that not come down to a much more basic proposition that a person who enters into or creates a risk on somebody else’s property is not immune from liability in negligence under the Civil Liability Act merely by virtue of the fact it is another’s property that they are dealing with?

MR GLEESON:   That is the ultimate proposition we put, but ‑ ‑ ‑

EDELMAN J:   You say there is nothing in the regulations and the statutory provisions that is in detracts from that?

MR GLEESON:   Detracts from that.  Indeed, to the extent that provisions impose the heavy constraints around Mrs Campbell and require her to seek consent from Western Power, they probably strengthen what would be the starting point. 

So, section 42 on page 131 makes clear she cannot use any form of apparatus if it is going to interfere with the supply of the system.  Section 47 creates an offence in the same territory.  Your Honours will see similar provisions – I will not go into them, they are in our note – in paragraphs (b)(ii), (b)(iii), and regulations 50 to 52 are the licensing regulations you were taken to.  They impose constraints upon both her and on Western Power if you do electrical work.

Your Honours, the fourth question we posed was whether, in the light of those matters, the common law would recognise a duty of care, either because it falls within or closely analogous to, an established category or on a salient features basis.  We have given your Honours the three cases we rely upon, which are Thompson, Munnings and Brocklands.  Could I submit the five propositions we say flow from those cases?  The first is that there is an established category of duty of care governing persons like Western Power who supply electricity through a distribution or transmission system.

KIEFEL CJ:   How can you have a category when it depends upon the statutory scheme in every case?

MR GLEESON:   One would look at the statutory scheme and – the second proposition I was going to put was that in each of those three cases, the common law duty of care was consistent with the statutory scheme which is broadly similar to the present scheme.  So, the statute is not irrelevant and, while when a case like Thompson was considered, the attention to statutory coherence may not have been as great as it is now – in fact, the case did reconcile the scheme with the statute, as I will show in a moment.

So that is the first and the second proposition.  The third is that the general reason for the duty is that, while the system is of social utility, it is a hazardous operation which creates special risks of harm to nearby persons or property if the electricity is conveyed in an unintended manner.

The fourth proposition is that the duty is recognised by the common law deliberately at a level of generality because there are an infinite number of ways in which mishaps might occur, and those factual questions are dealt with at the stage of breach, not duty.

And the fifth proposition – which is specific to our case – is that the factual circumstance that the pole was owned by Mrs Campbell does not take one outside the duty for the reason I have sought to labour that, at the level of duty, it is sufficient that Western Power has incorporated the pole into its system.

Then, at the level of breach, the usual questions under section 5B of the Civil Liability Act of reasonably foreseeable risk and reasonable precautions can be dealt with on the facts of the case.

Your Honour Justice Gordon raised whether the Court of Appeal has taken the duty of the primary judge and split it.  In one sense, yes, but in another sense, correctly so.  The duty contended for by the plaintiffs which built inspection into the duty we do not commend, because whether inspection is required in a particular case is a breach question, but it should not be thought that inspection is the only possible way in which reasonable precautions might be required at the breach stage.

For example, the plaintiffs also ran a case based on reasonable precautions requiring a specific warning campaign to home owners of poles which were more than 25 years old; they failed on that.  So, at the duty stage, we would submit it is deliberately framed generally, and at the breach stage the particular reasonable precaution can be examined.  That alternative breach case is referred to at paragraph 60 of the Court of Appeal.

Now, your Honours, could I then go to Thompson, which is in volume 7 at tab 56, and not read it all but emphasise these parts, particularly on page 629, lines 10 to 25.  The statement by the Chief Justice and Justice Williams identified what I put as the essential reason why the duty is called forth when one is generating, receiving or transmitting electricity.  Their Honours observed:

By the statute, as we assume, the defendant was authorized to bring it upon the highway.

So while the statute did not play a large role, the Court was alert to the proposition that it was the entry upon the exercise of the statutory powers which called forth the duty, and the duty measured by a high standard because of the lethal nature of the agency, and as I foreshadowed, the almost infinite variety of mischance by which attempts to insulate it and prevent its escape may be defeated.

Your Honour the Chief Justice yesterday raised a question about paragraph 158:  is it too broad when it uses the words “in connection with”?  We would emphasise that it is “in connection with” the passage of electricity through the system – they are the words that the Court of Appeal goes on with – and “through the system” is the notion, we submit, is at page 629.  The duty is to take reasonable care to prevent the escape from the system by any of the infinite variety of ways which might happen.

Could I then just go to Justice Kitto because at page 641, lines 25 to 35.  His Honour was explicit upon the statutory framework that it was the Local Government Act 1919 of New South Wales that, through the particular powers in sections 417, 418 and 525, authorised the conduct of the electricity supply system and:

The pole therefore belonged to the respondent.

Your Honour Justice Gageler asked a question yesterday about what belonging means in some of the provisions we have been to.  It is not simply looking at ownership, it is “belonging to” in the sense that you have exercised your power in a way that certain apparatus and works are part of the system by which you exercised these statutory powers.

His Honour at the foot of page 644, when he was distinguishing the occupier’s liability, referred – this is line 35 – again to these statutory provisions and said they had the effect of saving:

the respondent from liability on this strict –

Rylands v Fletcher:

basis, but it affords no protection from liability for an injury caused by negligence –

So, it was a case where those provisions of the Local Government Act – which are broadly‑worded powers reminiscent of the 1937 Act, the 1945 Act and the current scheme – are not inconsistent with the common law calling forth the duty of care.  The reason expressed over on page 645, your Honours can see – and it is expressed as a duty to:

take reasonable care in the management of its electricity –

and that called forth the necessary relationship for a duty.

GAGELER J:   I notice his Honour refers throughout his judgment to railway cases ‑ ‑ ‑

MR GLEESON:   Yes.

GAGELER J:   And one could go through exactly the same sort of exercise with a statutory monopoly created in relation to railway commissioners ‑ ‑ ‑

MR GLEESON:   Yes.

GAGELER J:   But at the end of the day, they are conducting a hazardous operation.

MR GLEESON:   It is a hazardous operation, and so what you would expect – if the Parliament was to say: we are in truth on the one hand, giving you the power to conduct a hazardous operation; on the other hand, we are to say that you are not entitled to the protection of the common law – you would expect fairly explicit words, you would not expect the exercise, with respect, taken yesterday to try and find over four hours implication upon implication in a raft of instruments.

If that is what the Parliament meant, you would expect that they would have said it.  Your Honours, the second of the cases is Munnings, which is in volume 5, at tab 43.  I need only emphasise in Justice Windeyer’s judgment at page 29 the very proposition your Honour Justice Gageler just put to me as to why the duty arises:

To bring such a dangerous thing to a locality frequented by members of the public imposed a duty of care.

It is that simple, really.  Your Honours will see that at line 30, that Thompson was approved on the duty of care point by the Privy Council in Quinland’s Case.

What Munnings illustrates is that precise factual variation in the way the system is constituted does not deny the duty of care.  Munnings was the case where the pole was erected on the property of the consumer.  Munnings was this case but for the fact that the pole here was owned by the Hydro‑Electric Commission.  But, otherwise, it is using a pole on the property of the consumer as part of the system, and that creates the duty of care.

The last of the cases, while it is intermediate appellate court authority, we mention still – this is the decision in Brocklands – which is in volume 8, at tab 63, if only because when Chief Justice Blow addressed this type of question at paragraph 23 through to 29, he considered that the position was tolerably clear based on Thompson and Munnings, and as his Honour expressed it at paragraph 28 – and I sought to pick this up in my summary propositions – a way of expressing the duty is:

the duty of an entity that transmits electricity to persons who might foreseeably suffer harm as a result of the transmission of electricity in an unintended way –

and his Honour repeats that in paragraph 29, and then if it be necessary, at paragraph 31, his Honour says that you get there because of a salient features analysis.

So, our answer to the fourth question is, the Court could and should comfortably recognise the duty consistent with those authorities.  If need be the Court can adopt the salient features analysis, and I will not do that analysis orally; it is in our written submissions between paragraphs 30 to 38.  Can I come to the final question, which is whether there is statutory incoherence from section 25 or, if not, from the shopping list? 

Could I just start with the history from that 1937 Electricity Act that your Honours have because it illustrates a point that arose yesterday.  This type of provision was there from 1937 in section 24, and one will see a fairly close correspondence between section 24(1)(a) and 24(1)(b) and what is now 25(1)(a) and (b).  It was described in the heading as “Specific Obligations of Supply Authority”, its subject is certain things happening on the consumer premises.  It is a positive obligation under (a) to:

maintain all service apparatus belonging to –

Or under the control of the supply authority, and it is the positive obligation under (b).  Your Honours will see under subsection (2), one had the administrative law remedy.  And that is what we submit it was in subsection (2).  The person aggrieved can go to the Minister, who has a discretion to refer it to a committee who has a power to assess damages.  So, this is an administrative damages remedy, not an exercise of judicial power even at State level, and then you see the critical proviso.  Nothing herein contained shall:

preclude any such person –

suffering any damages:

from pursuing any –

other legal remedy that he may have:

against the supply authority –

in regard to the breach of any such obligations.  So, from the very outset the Parliament made tolerably clear this provision was not to cut down any rights or duties that might be enforced through the judicial power of the courts.  That provision of subsection (2), as your Honours know, continued through the 1945 Act, and ultimately it was removed when the Court comes to the present provision.

So, in the present provision, if I can go to that, which is in the Electricity Act volume 1 at page 110, and just focusing on subsection (2) for a minute, all that is left is an administrative law remedy where:

the Minister may refer such complaint to the Director for inquiry and determination.

There is no even administrative damages remedy available any more and it would be, we would submit, with respect, to be perverse to construe the removal of the administrative law damages remedy as somehow part of a statutory intention that the ordinary common law duty of care cannot run.  So that is one submission we make about section 25, the significance of that change.

The second submission is, on the language of section 25(1)(a) and (b), the subject matter is a narrow one.  It is what is happening on the premises of the consumer in respect to certain subject matters.  It is completely silent on any service apparatus of the network operator which may not be on the premises of the consumer.  It is completely silent on service apparatus of the consumer which the network operator may incorporate into its system, which is the present case.

The third submission is, as was raised yesterday in respect to 25(1)(b):

the actual supply . . . on the said premises to the position –

where it:

passes beyond the service apparatus of the network operator –

is at least when it enters the mains box, but on the preferable view, after it has passed through the fuses and the meter because they are the critical service apparatus which ensure measuring and safety.  So, the duty under (b) would apply up until at least that point.  To avoid the risk of fire it is not a big ask to say you must ensure that your service apparatus is supported by a stable pole and then the provision is completely silent on a negative implication that this provision takes away your general law rights under a duty of care.

In the end, what the appellants would have to get out of this provision and/or the shopping list, if I can call it that, is a legislative intention of exclusivity in a negative form that, when Western Power chooses to incorporate into its system an item owned by the consumer, it is relieved of its ordinary common law duty of care, unless it chooses to do actual work on the consumer property or it forms an actual opinion, which it is not obliged to even turn its mind to, that the consumer property renders its system unsafe.

Were that the case, the Parliamentary intention would render it largely fortuitous whether persons vulnerable to these risks of harm and unable to protect themselves, such as nearby property owners, would ever have adequate protection.

Your Honours, on that topic, can I then go to the other provisions, not only to just give you a better point – submission on them, but also to take up your Honour Justice Stewart’s question?  For this, your Honours will need volume 2 of the book, I think.

GORDON J:   Some of us are working electronically, could you just tell us what you are going to take us to, please?

MR GLEESON:   Yes.  There are five that I need to refer to.  The first is the historical Electricity Act Regulations, volume 2, tab 14, particularly page 427, regulations 218 to 219.  As a matter of construction, nothing in either those regulations, which are expressed in the passive, limit their scope to the owner of the pole.  They speak more generally, that if the pole is part of a system, it needs to be maintained.

The second is in the Electricity Industry Act, volume 2, tab 17, section 14 on page 492, plus the supplementary book – this is the asset management system point.  This is an example of the so-called negative implications proving too much.  Yes, to get a license you must have an asset management system in respect to your asset.  Yes, you will be subject to certain supervision and approval.  Non constat, you do not have a common law duty of care in respect to any or all of your assets in your system.

If this argument of exclusivity were accepted, it destroys the entire duty, even that conceded by the appellants.  That proposition that many of the arguments prove too much is true of a number of these provisions.  The third, at the Electricity (Licensing) Regulations, which is volume 2, tab 20, are the regulations between 49 through to 52, pages 522 to 529.

EDELMAN J:   Which tab was this?

MR GLEESON:   This is tab 20.  Your Honour the Chief Justice asked a question after lunch yesterday about how these fit with those wiring rules, et cetera.  The role that these regulations play as indicated by the heading is if anyone is positively to carry out electrical work, whoever that person be, whether you would be a homeowner or network operator or electrician, you must follow these rules.

The obvious purpose of these regulations is to provide some statutory constraint around work to make sure shoddy work by shoddy people does not get done.  It gives Mrs Campbell, for example, under regulation 50(4) certain powers and duties if she engages an electrical contractor.  It would also apply to Western Power if it engages Thiess or someone else to do work which qualifies as electrical work.  Under regulation 51, some work has to be notified.

Regulation 52 might answer the question your Honour Justice Gordon raised about what is the notice of completion, and that is if this sort of work is to be done, here is the notice provisions, but recalling in that provision yesterday that was one of three things that had to be satisfied – absent which you could not supply.  A little difficult to see some negative implication of exclusivity from some provisions which place some constraints around whoever does electrical work.

The fourth is under the Electricity Regulations 1947, which is tab 22. This is regulations 253 to 254, I am now offering my answer to your Honour Justice Steward’s question because inspection comes in in two places. It comes in here, and then it comes in in the final provision. What do we have in this regulation? We have a purpose identified in 253, which is to ensure:

the safety of consumers’ electric installations and consumers’ apparatus which forms part of the consumers’ electric installation to which the supply relates, and of monitoring the work of electrical contractors –

The purpose is to try and make sure things are safe at the consumer end, put broadly.  If one has some new power points put into the house, or some other work electrical done at the consumer end, this is trying to put some constraints around that.  As pointed out yesterday, the network operator has a choice either to establish and maintain an effective system of inspection under the regulation or ensure there is individual inspection under regulation 254.

The choice reflects – as I think was put yesterday – that 254 is the old world, where you would expect each electrical installation on the consumer premises to be inspected by someone – an inspector.  Section 253 – the choice in the modern world – is to have a system of inspection, rather than every single one being inspected.  If we look at 253(2), the system of inspection – paragraph (a) – is to:

relate to work on all types of consumers’ electric installations, whether new or by way of alteration or addition –

What it is targeted at is the doing of work:

new or . . . alteration or addition –

on the consumers’ electric installations.  So, it is like one of the earlier provisions we saw.  It is about the doing of new work.  At the stage of the doing of new work, either the network operator has the system of inspection or it makes sure it gets inspected every time.  So, the thing being protected ‑ ‑ ‑

GORDON J:   When you mean “every time”, you mean every time there is new work?

MR GLEESON:   Yes.  The thing being protected is new work.  The subject that it is dealing with is an important subject but, again, a limited one:  how can we ensure the integrity of new work on a consumer’s electric installations?  None of these provisions are directed to the question in the present case which is:  does the common law continue to impose what we say would be the ordinary duty of care in respect to the operation of the network operator’s system, particularly where it has chosen to incorporate apparatus owned by a consumer?  It is simply a topic not dealt with by 253 or 254.

GORDON J:   Can I just ask one question about that?  If you go to regulation 241, it has amended definitions – which may not matter – for definition of “network operator”, “network” and what it includes.  Do that impact upon that submission you just made?  And if it does not, why does it have a separate treatment of it?

MR GLEESON:   It appears to be adopting a bespoke and perhaps broader idea of who a network operator is.  It is capturing a supply authority and any person lawfully operating transmission or distribution works and service apparatus.  So, it is Western Power plus others.  It is a broader concept of a network operator.  In terms of the reach of ‑ ‑ ‑

GORDON J:   Sorry, just while you have got that, in subsection (2) it says the network:

does include . . . apparatus, but does not include –

certain things.  It may not matter, Mr Gleeson, but I just want to make sure that I understand, that seems to define and impact upon these regulations we are dealing with.

EDELMAN J:   It comes back again to your point about whether it is the meter box or the mains.

MR GLEESON:   Yes.  So, because the – it is excluding a pole on premises to which electricity supplied by the NO that is situated beyond the point at which the electricity is so supplied.  So, if you had a consumer pole which is solely performing a function within the consumer system, then that is deemed to be beyond the network.  But, in the present case that is not, because the pole, as one of its functions, is completing the supply of electricity.

Your Honour Justice Gordon, my main submission would be whatever broadening or narrowing is achieved through the definition of network operator, that is the object of the duty.  We know who that person is, but the nature of the duty that is imposed on them under 253 and 254 has the limited purpose I mentioned, which is that when fresh work is being done – because, in a sense, they are in the background – they have a duty to make sure, by one or other means, its done safely for the protection, primarily, of the consumers and, incidentally, others who might suffer from the consumers.  So, it is about that particular topic of regulation.  What one does not get from that is, in terms of the system itself of the network operator, it is relieved of its common law duty of care. 

The final provision, which is the other side of inspection, is the general inspection powers in the Energy Coordination Act, which is tab 23 and the powers are at section 14.  And this type of provision, Justice Stewart, has been there since the 1937 Act; it is not a newcomer.  There has always been an inspect of power.

This is an example of the argument proving too much because the inspectors are not there just to look at consumer property – see section 14, paragraph (c).  They can inspect any and every asset of Western Power, including:  they can inspect the PA pole under 14 (c) because it is used in connection with the:

distribution, supply or use of –

electricity, but they can also inspect the pole under 14(a) if they have got a reason to believe there is an issue with it.  So, as a provision, it is of extraordinary breadth giving the inspector power to look at everything that Mr Dharmananda’s client is doing, and one would not readily discern from that type of power that the common law cannot recognise the ordinary duty in respect to the whole of his client’s operation and, to the extent he relies upon the power of the inspector, we would submit it cannot sit with the concession – which is correct as far as it goes, it just does not go quite far enough.

Your Honours, I did want to make one final submission about the implied negative limitation.  One of the difficulties of this case, which has certainly given us a headache – I hope your Honours have not had that same experience – is the current scheme is spread across a multitude of statutes.  Perhaps that is an enjoyable experience – not for me.

GORDON J:   Can I ask one question about that?  Is there anything which actually identifies why they are split up into these different Acts?  I mean, they are not self‑evident from the long title.

MR GLEESON:   No.

GORDON J:   Is there any historical explanation anywhere as to why they are in certain places and addressed in certain areas?

MR GLEESON:   It is largely a function of disaggregation.

GORDON J:   I accept that, we all know that is the history against which it was, but other than that is there any intelligent explanation for it?

MR GLEESON:   We have not found one.  Mr Giles may have.

GORDON J:   Okay.  He is shaking his head, so I do not think we are going to get much help.

MR GLEESON:   He is desperate to get on his feet, your Honour, so I must sit down very, very soon.  What I wanted to say was if your Honours had been deciding this case based on the 1937 Act you would in fact – or the ‘45 Act – you would in fact find virtually all of the shopping list, plus section 25 and its predecessor.  It is all there.  It has since then been split out into different Acts in different forms.

The real logic of the appellant’s case is that, even if we are in 1937 but we had the knowledge we now have of the law of negligence, the supplier had no common law duty, because when you put all these provisions together, the Parliament had said that the intention was that in a case where it uses property which happens to be owned by someone else as part of its system, it has no duty of care and it can rely upon others.  We would submit you would not find that sort of implication even in the 1937 Act where you only have to look in one place.

Your Honours, the final submission I can make by reference to our written submissions, which is the question of breach.

GORDON J:   It is not raised by the notice of appeal.

MR GLEESON:   It is not raised, your Honour.  There was a slight attempt at the end of yesterday to criticise the paragraphs of the Court of Appeal which deal with breach.  We submit it is not before you.  That is the beginning of the end of it.  The court looked at the question whether a system of inspection was a reasonable precaution.  They said it was.  It is an intensely factual question.  It has not been challenged.  The case stands or falls on duty.  May it please the Court, they are our submissions.

KIEFEL CJ:   Yes, thank you.  Mr Giles, the Court might take its morning break before we hear from you.  The Court will adjourn for 15 minutes.

AT 11.13 AM SHORT ADJOURNMENT

UPON RESUMING AT 11:29 AM:

KIEFEL CJ:   Yes, Mr Giles.

MR GILES:   May it please.  We propose to address as follows:  first, in response to Western Power’s appeal.  In that respect, generally we adopt that which Mr Gleeson has said about Western Power and we will just say a little bit by way of elaboration.  Secondly, to address Mrs Campbell’s application for special leave to cross‑appeal.  In doing so, we will focus on the negligence case.  That is because the nuisance case which the trial judge accepted was based on a negligent failure to exercise care and it stands and falls on the law as applied by the trial judge in the Court of Appeal.  The nuisance case stands and falls with the negligence case.  Our learned friend, Mr Dunning, in his cross-appeal challenges that.  We will address in reply in relation to whether in a nuisance created by a fire – or at least by a fire which is not deliberately lit – a culpable want of care is an essential part.

Turning then to Western Power’s appeal, if convenient.  We will approach it this way:  first, to make three brief introductory points, each by way of elaboration on Mr Gleeson’s submissions; secondly, to say a little by way of elaboration on the statutory scheme; third, a little bit about control; and, fourth, just to, I think, tidy up what is now one ancillary matter on inconsistency.

In terms of the introductory matters, the duty as found by the Court of Appeal – identified in paragraph 158 of the judgment, page 443 of the book – is, in our submission, the correct formulation of duty.  It is cast at the correct level of abstraction, avoiding the error that Mr Gleeson pointed to at trial, that the duty had been formulated by reference to the alleged breach.

The words “in connection with” are not, in our submission, problematic, they are a relational phrase connecting the obligation to exercise reasonable care to avoid a particular type of harm from the ignition and spread of fire ‑ ‑ ‑

KIEFEL CJ:   It certainly widens the duty, though, does it not?

MR GILES:   In our submission, not when the following words are taken into account:

in connection with the delivery of electricity through its electricity distribution system.

So, it is fire, or harm caused by fire, in connection with the delivery of electricity ‑ ‑ ‑

KIEFEL CJ:   Would you say having any connection with the delivery of electricity through its electricity distribution system?

MR GILES:   Because of the causal limb built in there?  No, there is ultimately, as with causation, a limitation built into the legal concept.  Of course, duty cast that way is limited by the obligation to exercise reasonable care.  An example was used yesterday about trees overhanging power lines.  That is no doubt a debatable proposition whether exercising reasonable care – in particular circumstances – someone in Western Power’s position ought do something about such trees, but this is not this case.

KIEFEL CJ:   Or if they were on someone’s property, the property owner.

MR GILES:   We accept that.  But that is picked up at the breach stage; the application of reasonable care.  It is not a deficiency in the way that the duty is cast.

Secondly, we do of course make a lot of the fact that it was Western Power’s service cable which was kept in position by this pole.  Not only did Western Power – as it happens by Thiess – place a service cable on the pole, it was kept in a functional state by that use of the pole.  And when one thinks about the risk of harm and the formulation of duty, of course the pole itself is not, at least of itself, the source of that risk of harm.  There was conflation in the trial judge’s reasons between a danger caused by the pole simply falling over, with no discharge of electricity – an occupier’s liability case – with the particular risk of harm here framed.

The risk of harm does not exist absent the attachment of the cable to the top of the pole and, frankly, the supply of electricity by it – the energise – that the cable was energised – which is the third preliminary point.  While one is here discussing duty, that is of course informed by the relevant risk of harm – it is built into the duty.  That risk of harm is through the transmission of electricity.

Turning then to a question of fact, the Court yesterday morning asked a question about the arrangement on the pole and where one finds the finding.  The finding as to – with some precision – the arrangement is at paragraphs 31 and following of the Court of Appeal’s judgment, page 411.  One sees, picking up at just before line 30, the service cable was:

owned by Western Power –

Your Honours saw the diagram yesterday, I will not take your Honours back to that.  From the termination pole, which was in the road reserve:

adjacent to Mrs Campbell’s Parkerville property.  The termination pole and the service cable were owned and maintained by Western Power.

Now, just pausing there, the reason for the works in July 2013 was maintenance on, that is, replacement of, the termination pole.  What was carried with that was replacement of the overhead service cable.  Now, paragraph 32, the cable:

passed through a wedge clamp hooked onto an attachment hook which was bolted to the side of the PA pole –

those were Mrs Campbell’s property.  One sees that, not pellucidly clearly, if I might say, in the copy, but back on page 28 of the book, in the photograph under paragraph 33.  One sees the metal attachment to the Pole, which has, in the metal square the attachment hook that bore the weight of the service cable, and one then, on a better photo, would see the cable looping back into the black mains connection box which is at the end of the PVC piping, which turns at 90 degrees towards the top.

Now, our learned friend Mr Dharmananda’s case is that electricity passes in that black mains connections box.  That box does not sit in a matter of, in effect, physical obviousness:  it relies on the pole.  That is, the integration of Western Power’s equipment with that which is on Mrs Campbell’s property – Mrs Campbells’ equipment.

STEWARD J:   Could I just ask for clarification?  The fault that took place was a fault that occurred with the submains cable owned by Mrs Campbell, as it was pulled through the hole ‑ ‑ ‑ 

MR GILES:   That is right, yes.

STEWARD J:   Not by reason of the mains cable.

MR GILES:   That is true.

STEWARD J:   All right.  Is that in any way significant for this case?

MR GILES:   No.  Electricity was only passing through it, which is what caused the electrical arcing ‑ ‑ ‑

STEWARD J:   At that point was it her electricity – had it passed to her?

MR GILES:   The transfer of title is not precisely correct but, given that it was in her equipment at that point, we would accept that it was, yes.

STEWARD J:   All right, thank you. 

MR GILES:   Of course, it was only energised and delivered to her by Western Power’s transmission service and the act of connecting the cable to the top of the pole and the use of it.

Your Honours then see over the page, returning to the Court of Appeal judgment, page 412, the description at paragraphs 32 and 33.  A photograph of the switchboard enclosure is back in the trial judge’s judgment, page 29 of the book, just after paragraph 34.  This was a photograph taken by the employee of Thiess who did the works, who actually worked on the pole in July 2013.  So, one sees behind the state of the pole – and later I will say in our appeal ‑ ‑ ‑

GORDON J:   This was before the work – this was part of the pre‑inspection?

MR GILES:   This was part of the pre‑inspection, yes.  That pole, to a layperson – and no one suggests otherwise – looked like any other pole one was going to see.  It is more narrow than the street poles that one sees but there was, we will ultimately say, no reason ‑ ‑ ‑

GORDON J:   Twenty five years old.

MR GILES:   Yes.

EDELMAN J:   Is this challenging findings of fact that were made?

MR GILES:   No, that is just the state of the pole.

EDELMAN J:   But do we have a finding of fact that it appeared as an ordinary pole to any person?

MR GILES:   There is a finding that its appearance had not changed for a period of – for five years, but otherwise there is no finding about Mrs Campbell or an ordinary person observing anything about the pole one way or the other.  Now, to be liable we would say that we would have to – there would have to be a finding that there was something about the pole that would have caused a reason to obtain an inspection by a third party – a skilled third‑party service provider.

Now, I have to deal with Justice Gordon’s question in due course about the age of the pole, and I will do that on the basis that there is – as the Court of Appeal accepted, there is no finding as to the knowledge that a reasonable person would have about the aging of a jarrah pole.

EDELMAN J:   Do we have all of the relevant photographs of the pole, all of the evidence that was given about the pole?

MR GILES:   No.  What remained of the pole was tendered.

EDELMAN J:   So, how are we in a position to make determinations as to how the pole would have appeared to a reasonable person or what precautions might have been taken?

MR GILES:   I do not need to ask your Honour to do anything other than the negative to find that absent some particular feature of the pole, there was no call – in a sense of to perform one’s duty – to obtain an inspection from a skilled service provider, that is how we put it.

GAGELER J:   Are we still dealing with Western Power’s appeal, or are we moving on to Mrs Campbell’s application?

MR GILES:   I have.  I had intended to still be dealing with Western Power’s appeal, perhaps regrettably I made an observation along the way in order that I did not have to go back to this, which has led to some questions about – and observations I was making about – Mrs Campbell’s appeal.

Can I return to Western Power’s appeal?  One sees down the right‑hand side of the pole, starting at the top of the page, a PVC pipe.  That had in it the cable which ran from the top of the pole – that is, the submains – and one sees, into the bottom of the box, immediately below the meter, and one ‑ ‑ ‑ 

GORDON J:   Both the cable and what is inside, it belongs to Mrs Campbell?

MR GILES:   The cable and what is inside belongs to Mrs Campbell, what belongs to Western Power is the meter, and also – and it is again, a little obscure – the black fuses, which are actually immediately above the meter.  Then, there are a second set of fuses – which Mrs Campbell owned, which are the white ones to the left‑hand side.

STEWARD J:   Can I ask a basic question?  Why would the owner of the distribution system be interested in owning the meter, if they do not sell electricity?

MR GILES:   I cannot tell your Honour the answer to that.

STEWARD J:   Another mystery.

MR GILES:   No, I cannot tell your Honour the answer to that question.  No doubt, it involves an arrangement between Western Power and Synergy as to who is responsible as for checking the order in which the charges are calculated.  Perhaps, at a more simple level, I could have just said, for money‑making reasons, but exactly what the arrangements were, I cannot tell your Honour.

STEWARD J:   All right.

MR GILES:   Just while we are on the photograph on page 29, to answer your Honour Justice Steward’s earlier question, the PVC piping – I do not know whether it is the one on the left or the right – then has the submains cable coming out of the bottom of the box.  That is what was pulled back through the box, causing the electrical arcing, and a molten droplet of something fell on the grass and started the fire.  So, those were the facts that we wanted to just tease out.

Could I then turn to the statutory scheme and first take up the Corporations Act, which is tab 6 of volume 1 of the book commencing at page 142. Your Honours have already been taken to section 4, which creates the corporation, page 161. Section 5 is that corporations – that is Western Power, relevantly, is:

not being an agent of the State and does not have the status, immunities and privileges of the State.

Then section 8, it has a board of directors in an entirely conventional corporate sense with the role at section 9.  Just pausing there to pick up on a question on in Justice Gageler asked yesterday, not all statutory authorities are, of course, the same.  This one is one that is structured in a particular manner which replicates what we are all familiar with in, of a corporation, not precisely, but replicates a corporation performing a function, which is a supply, supplying something which carries dangers with it, for money.  And we are going to come back to it, but it has a profit‑making purpose.

Now that does not mean that one ignores the framework of statutory corporations or the Act but what it does is it makes analogy to cases involving local councils, public authorities that have to make policy decisions.  A limited analogy is – the simple point is to say not all statutory corporations are the same.  And this one, not in a realm of making policy decisions or use of limited public funds such as a local council, its decisions at least at the stage of exercising powers rather than functions – as we will come to momentarily – should not attenuated with the same limitations with respect to a duty as local councils and the like.

We have also already been to section 41, but can I just return to that briefly, section 41(a) identifying functions and manage, enhance, improve, reinforce electricity transmission and distribution systems.  “Distribution system” is not defined in this Act, I am not going to take up Mr Gleeson’s invitation to try and explain why these Acts are separated.  We do not know, but “distribution system” is defined in the Electricity Industry Act, tab 17, volume 2, page 496, in expansive terms including:

any apparatus, equipment, plant or buildings used, or to be used, for, or in connection with, the transportation of electricity at nominal voltages of less than 66 kV.

That would be an entirely apt – not least of all because of the words “in connection with” – to pick up the pole.  Now, I accept the limitation that that is in a different Act.  We also draw attention, as has already been done, to section 41(i):

to undertake, maintain and operate any works, system, facilities –

Et cetera.  We will come to a definition of “works” shortly:

for the purposes mentioned in this section.

So, there is a power to maintain and operate for the purpose of, inter alia, that identified in (i).  Section 42(d) is the profit‑making purpose which we have identified, and then 42(e), a further function that one might often have seen as being a way of framing an ancillary power – one might have thought, but as it is.  And 42(f), the breadth of the picking up of, as a function:

anything that it is authorised to do by any other written law –

which would pick up, at the risk of being slightly circular, that which is in the Powers Act.  Section 56 – the only thing we want to say in addition to that which Mr Gleeson said is to draw attention to the reference to “function” in the opening line of 56, and the “discretion”.  It is a discretion as to how and when it performs the function.  Now here we draw a distinction, as is drawn in this Act and the Powers Act, between functions and powers.  Having entered into the function – that is the discretion – this section tells one nothing about the exercise of the powers having so entered into the function.

Then one sees, as I think we have already been to section 59(2), as to a further conferral of power.  Then section 61 ‑ ‑ ‑

EDELMAN J:   Just before you move on from 56, is the point that you are making about 56 that it is concerned with what might have been described as omissions rather than any positive act with non‑feasance?

MR GILES:   We do not fully embrace the non‑feasance/misfeasance distinction because of the difficulties around the borderline of it, but it is directed to a decision whether to perform a particular function, or not perform the function, or indeed simply doing so or not doing so without necessarily a conscious decision.

EDELMAN J:   So, omissions without using the word?

MR GILES:   A caveat of “yes” was the way I was going to describe it.

GORDON J:   Well, put a different way, you cannot compel them to do it.

MR GILES:   Quite.  Cannot compel them, for example, to supply to a new town.

GAGELER J:   You cannot get an order in the nature of mandamus.

MR GILES:   Quite.

GAGELER J:   There may be other reasons to compel them in a ‑ ‑ ‑

MR GILES:   Well, indeed.

GAGELER J:   If we were talking about competition law, for example.

MR GILES:   Could I say, your Honour, there is something sitting under this segregation and this arrangement, including the profit‑making function and the statutory market price, which is, of course, driven by a perception of competition or at least setting up competition.  I do not think that has anything to do with this particular case, but it does provide a little bit of explanation as to the structure of these Acts.

To pick up on, in a sense, competition, section 61, the profit‑making purpose, comes back in.  Then section 63, which we have already been to, is one of a series of powers.  I will not go back over them.  Mr Gleeson in his note has identified a number of them.  Just to pick up the argument here, this is one of a series of powers either to not supply; a prohibition on supply where it is not safe.  Those powers are, in our submission, all not only ample but calculated to fit with the common law duty; the requirement to exercise reasonable care in the supply of electricity, so to speak.

STEWARD J:   So the question then of principle is:  how serious does it have to be before the law imposes the harsher duty?  It may not be possible to express it as a principle; I do not know.

MS HARRIS:   I have to accept, your Honour, it is a matter of degree.  In McLean v Meech the language was of the magnitude of the risk and the consequences, and here there can be no question that the magnitude of the risk and a negligent performance of works which causes the discharge of fire in a high‑risk fire area – there are findings to that effect, that it is that sort of area – that it could not be much greater.  So we do say that is one indicator. 

GORDON J:   One of the difficulties with that kind of approach, and one of the reasons why I wonder Chief Justice Gleeson approaches it in the way he does – especially at paragraphs 9 and 10 – is because there is a great risk, is there not, that if you approach it in the way that you have just answered that question, you end up imposing a duty which may – I only say “may” – be inconsistent with that which is set out in the statute.  So you have this tension; you cannot isolate them and put them into buckets and say they sit there independently.  One builds on the other.  One of the reasons I think his Honour is saying – the non‑delegability bit really has to be found in the text or the context of the statute, because otherwise you are altering the legislation in a way which is not found there.

MS HARRIS:   In our submission, the statutory scheme is essential, but really, in the same sense that has already been discussed in the sense of coherence and consistency, of the statutory scheme had provisions that were inconsistent with the duty remaining – a duty of Western Power – and Western Power retaining liability, then we would have difficulty in saying that this a duty of the kind that the common law ‑ ‑ ‑

STEWARD J:   You might say that the statutory scheme – that its elaborate provisions dealing with safety and highlighting the dangerous nature of the transmission and consumption of electricity – it really is buttressing your contention about high seriousness.

MS HARRIS:   Yes, your Honour and we rely – even though they were not cases about non‑delegable duty, we do rely on the Thompson and Munnings cases that have already been referred to, that recognise that an undertaking of an electricity supply system is inherently a dangerous activity.

GAGELER J:   The whole premise for your argument is that Mr Dharmananda has won his, so there is no – your argument is only relevant to us if Western Power’s argument succeeds, that there is no general duty of care.

MS HARRIS:   That is so, your Honour.

GAGELER J:   So, you say, when the works are actually undertaken in this narrow category of case, that is when there arises this super‑duty of care.  There is an oddity about it.

MS HARRIS:   Your Honour, it actually ‑ ‑ ‑

EDELMAN J:   To put it another way, how is it possible to have a non‑delegable duty if you have got no duty at all?

MS HARRIS:   The works duty was admitted here.  There was a finding that Western Power did have the works duty and there was no challenge to that on appeal.  The second thing, your Honour, is that if Western Power does not have any duty at all of the kind that is the subject of the primary appeal, and it did not have an obligation pursuant to the duty to take reasonable care in the operation of the distribution system to avoid the risk of fire – the discharge of which might involve, in this case, inspection or a number of other ways of managing the risk of attaching Western Power infrastructure to the point of attachment pole – if that duty does not exist, it increases the vulnerability of the public in the vicinity exponentially.  There is nothing in – if that duty is not on Western Power, then there is nobody with that obligation, and the risk equation then tips enormously to a risk of an enormous magnitude because the consumer does not have inspection obligations under the statute and its common law duties ‑ ‑ ‑

KIEFEL CJ:   Ms Harris, is it possible that the duty that we are speaking about in this context is being a little confused.  The duty we are concerned with is the alleged duty on the part of Western Power to ensure that the independent contractor’s employees take reasonable care in the performance of the works, and whether that duty of that kind exists is to be found in the statute or not.  The statute either imposes it, or it at least has to be consistent with the statute, the existence of such a duty.  I think that is what Chief Justice Gleeson is saying in Montgomery at paragraph 22.

MS HARRIS:   Can I take your Honours to the Energy Operators (Powers) Act?  The provision in section 4(2) which provides for Western Power, in effect, to have its functions discharged by officers, servants, and agents.  It is in volume 2, page 606 of the joint book of authorities, it says:

Where a provision of this Act authorises an energy operator to enter upon, occupy, carry out works in, on, over or under, or exercise any other power to in relation to, any land, premises, or thing the provision shall be construed as also authorising –

(a)An officer or servant of the energy operator, acting on behalf of the energy operator in the course of his duty; or –

And that really is just restating what would ordinarily be the outcome, or:

(b)A person acting at the request and on behalf of the energy operator under a contract or pursuant to an Agreement of the kind referred to in section 5(1)(b) and any employee of such a person so acting –

They are authorised expressly to undertake those functions relating to entering upon and carrying out works on land, but it goes on:

together with such vehicles, vessels, machinery or equipment as may be necessary for the purpose, to exercise that power for the purposes of this Act –

Then it goes further:

and any reference to or liability of the energy operator may where the context so requires be construed accordingly.

So, if it was just an authorising provision saying you can authorise – you can have your functions discharged by an independent contractor – it could have stopped after referring to the vehicles that they can take with them, but it does then go on to say:

any reference to or liability of the energy operator may where the context so requires be construed accordingly.

And it is important to know that it is any reference to the energy operator may be construed accordingly where the context requires or the liability of the energy operator.  So, if not imposing a continuing obligation on Western Power in all cases – or a continuing liability in all cases – at the very minimum, we say it is not inconsistent with the statutory scheme to recognise that it may continue to have liability for the acts of its independent contractors.

Otherwise it would be a very simple choice if Western Power wanted to avoid any liability:  all of its functions could go independent contractors and the members of the public, who have no control over these risks, would be left unprotected, or only as protected as Western Power makes them in their contractual arrangements with the independent contractor.  And if I can take Your Honours to another –

KIEFEL CJ:   What you were saying before in relation to magnitude of the risk and the vulnerability, these are factors by which you would say would not be inconsistent with the statute and the statutory authorisation under section 4(2) ‑ ‑ ‑ 

MS HARRIS:   Yes.

KIEFEL CJ:   ‑ ‑ ‑ for Western Power to have a duty with respect to Thiess’ work, because they imply a requirement of some personal supervision or oversight of the works.  Is that how it works?  Is that how your argument works?

MS HARRIS:   Either supervision or oversight or at the very minimum retaining liability if the independent contractor is negligent.

KIEFEL CJ:   Well, they would be matters for breach.  They would be the matters that you would have to undertake to fulfil your duty, but are you saying they really point to – although the Act expressly does not impose a duty of this kind, they at least point to the need for Western Power to be itself ensuring that reasonable care by whatever means – supervision or whatever.

MS HARRIS:   Yes, your Honour, and there is – I do need to acknowledge a narrow line between a slightly different ground of appeal that we took to the Court of Appeal to say that they had breached their – that they had not discharged their function of delegation properly because they did not have enough information about Thiess’ expertise to do this sort of work on the pole.  Their manual was deficient – and we have not sought special leave to appeal against that finding, but it is closely related, your Honour.

While I am on this statutory scheme, if I can just take your Honours to one other provision that might be relevant to the fact that we say this statutory scheme is not inconsistent with the common law duty being characterised as a non‑delegable duty, but it is actually quite coherent with the intention that seems to emanate from the legislation.  Section 120 and 121 at page 671 of volume 2 ‑ ‑ ‑

KIEFEL CJ:   Sorry, which Act are we looking at?

MS HARRIS:   Again, the Energy Operators (Powers) Act.  Section 120 is not directly relevant here, but it talks about the energy operator having an obligation to make good damage and be liable to pay compensation in the event of “physical damage done to the land” when they enter on the land.  Section 121 is a broader provision relating to actions for damages generally, and it has been adverted to.  But it says:

An energy operator shall no be liable for any injury or damage, other than damage of the kind referred to in section 120, occasioned in the exercise or purported exercise of a power conferred by this Act –

Can I just interpose that we are looking at the works duties that were done pursuant to section 49(c) and (d) of this Act:

unless it is attributable to negligence on the part of the energy operator, or any officer, servant or agent of the energy operator.

Now, it does not say there “or the independent contractor”, but if one goes back to section 4(2) there is a question about how you read the reference to energy operator, and we would say it is quite consistent ‑ ‑ ‑

GORDON J:   But do you not have to go back to – maybe I have got this wrong, I had understood from the analysis of walking us through these things that one starts with the Electricity Act which recognises delegation and it says, as I understand it, nothing limits that power of delegation to appoint agents or engage persons under contracts of services and like under any other written laws.  It recognises, as part of the scheme, that it is broader in its operation.

MS HARRIS:   It recognises the ability to delegate, Justice Gordon, but we would say, at least in the context of the Energy Operator’s (Powers) Act, and the exercise of those powers ‑ ‑ ‑ 

GORDON J:   It is more confined?

MS HARRIS:   No. You can delegate all you like, but you may be liable for the consequences.  Western Power can delegate to servants, officers, agents and also to independent contractors, but they will remain that their liability will be construed by reference to the fact that their powers are being discharged by these other entities.

EDELMAN, J:   You can delegate the act, but you cannot delegate the duties, so to speak.

MS HARRIS:   And you cannot delegate out of liability, yes, your Honour.

KIEFEL CJ:   I see the time.  Thank you, Ms Harris.  The Court will adjourn to 9.15 am tomorrow for pronouncement of orders and otherwise to 9.45 am.

AT 4.17 PM THE MATTER WAS ADJOURNED
UNTIL THURSDAY, 8 SEPTEMBER 2022