Electricity Networks Corporation Trading as Western Power v Herridge Parties & Ors
[2022] HCATrans 145
[2022] HCATrans 145
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 TUESDAY, 6 SEPTEMBER 2022, AT 10.00 AM
Copyright in the High Court of Australia
____________________
MR B. DHARMANANDA, SC: May it please the Court, with MR M.J. SIMS and MR B.K. LIM, I appear for the appellant. (instructed by DLA Piper Australia)
MR P.J. DUNNING, QC: May it please the Court, I appear with my learned friend, MR T.C. SMYTH, for the first respondents. (instructed by Slater & Gordon Lawyers)
MS C.M. HARRIS, QC: May it please the Court, I appear with MR P. MENDELOW, for the second respondents. (instructed by Hall & Wilcox)
MR J.C. GILES, SC: May it please the Court, I appear with my learned friend, MS E. BATHURST, for the fourth respondent. (instructed by MinterEllison)
MR J.T. GLEESON, SC: May it please the Court, I appear with MS K.I.H. LINDEMAN, for the fifth respondent. (instructed by Wotton + Kearney)
KIEFEL CJ: I note there is a submitting appearance for the third respondents. Yes, Mr Dharmananda.
MR DHARMANANDA: There are two related reasons why the appellant, Electricity Networks Corporation Trading as ‑ ‑ ‑
KIEFEL CJ: Excuse me, I should have said at the outset in case a message has not been got to the parties, the Court sees no benefit in dealing with the applications for special leave to appeal in a final way as the hearing progresses, they will be dealt with in the judgment, so parties should present their arguments as if on appeal.
MR DHARMANANDA: Thank you, your Honour. There are two related reasons why the appellant, Western Power, did not owe to the plaintiffs a duty of care which was said to have been breached by failing to take the precaution of routine consumer property inspection as found by the Court of Appeal. Western Power did not at any time have any physical or legal control over Mrs Campbell’s point of attachment pole that was required to be and had been installed by her late husband to obtain electricity supply.
The statutory scheme under which Western Power transports electricity using the South West Interconnected System, or SWIS, is incompatible with a common law duty to take reasonable care to avoid loss caused by fire if that duty requires the precaution of undertaking periodic inspections of wooden poles owned by consumers. The Court would be familiar with the apparatus that was connected to Mrs Campbell’s PA pole.
May I take the Court to core appeal book volume 1, page 24, at paragraph 18 of the primary judge’s judgment, there is a picture of the PA pole with relevant items marked. Mrs Campbell’s mains connection box was at the top of the PA pole. Mrs Campbell’s consumer mains cable was inside a PVC conduit. Electricity flowed through it to the main switchboard. From there, Mr Campbell’s submains cable – which is also inside a PVC conduit – transported electricity down the PA pole and underground to Mrs Campbell’s house.
There is a picture of the top of the PA pole ‑ ‑ ‑
GORDON J: Before you go there, can I just clarify two facts, just to make sure I am clear about that. Is this the position that WP – Western Power – owns – or has the fuses and meter in the box?
MR DHARMANANDA: It is true.
GORDON J: Thank you.
MR DHARMANANDA: There is the picture of the top of the PA pole at page 28 – and that is at the trial judge’s judgment at paragraph 33 – and there is a picture of the mains switchboard at page 29 following the text of paragraph 34. From Western Power’s termination pole, Western Power’s service cable connected to the PA pole at that attachment hook and inside Mrs Campbell’s mains connection box.
GAGELER J: Is that the termination pole we see in the photograph at page 24?
MR DHARMANANDA: It is, your Honour. Termination pole? No, your Honour, that is the PA pole.
GAGELER J: Is there a depiction of the relationship between ‑ ‑ ‑
MR DHARMANANDA: There is ‑ ‑ ‑
GAGELER J: ‑ ‑ ‑ the two poles?
MR DHARMANANDA: If your Honour goes to page 32, your Honour will see overhead layout, and your Honour will see the termination pole, which is marked, and then the PA pole, which is further to the right.
GORDON J: Is the metal pole which is described as the “Unused Steel Pole” on page 24 – is that the pole that says “redundant steel consumer pole” on page 32?
MR DHARMANANDA: It is, your Honour. So, the work that was done, your Honour Justice Gageler, in July 2013 involved the change of that termination pole and disconnection of the service cable, which went from the termination pole to the point of attachment pole.
GAGELER J: Thank you.
MR DHARMANANDA: I need to take the Court through this statutory scheme, and I will try to do that as quickly as I can. Western Power is an electricity corporation established by the Electricity Corporations Act 2005. Your Honours will find that in the joint book of authorities, volume 1 commencing at 142. May I take your Honours to page 161 and draw your Honours’ attention to section 4(1)(b), which established the Electricity Networks Corporation, and it trades as Western Power. Can I then go, your Honours, to section 41 of that Act, which is at page 182. Your Honours will see section 41 sets out the functions of Western Power, and they include – in section 41(a) – the function:
to manage . . . improve and reinforce electricity transmission and distribution systems –
Then, on page 183, Western Power’s functions include, in section 41(i), the function of:
maintain and operate any works, system, facilities, apparatus or equipment required for any purpose mentioned in this section.
Western Power’s functions are confined to its transmission and distribution systems, and the Court of Appeal did not find that the distribution system included the PA pole. Can I take your Honours back to section 3(1), the definitions section, and draw your Honours’ attention to the definition of “function” on page 159. It provides that:
function includes powers, duties and authorities –
But not, relevantly, in Part 3 Division 3, and that means that “function” as used in section 41 is confined, and does not include duties.
Can I take your Honours back to section 43 in page 184? That, in effect, relevantly provides that Western Power’s functions are confined ‑ ‑ ‑
KIEFEL CJ: I am sorry, which section was that?
MR DHARMANANDA: Section 43, your Honour, at page 184.
EDELMAN J: Sorry, just before you do, is your submission that because of the exclusion from function in the definition in section 3, that the functions in section 41 do not carry with them any power as well as any duty?
MR DHARMANANDA: My submission is about duty, but ‑ ‑ ‑
EDELMAN J: It must apply also to powers, though.
MR DHARMANANDA: Yes, your Honour, that is so. I will take your Honour momentarily to another section that is relevant to this issue.
GAGELER J: Is there a definition of distribution systems?
MR DHARMANANDA: Not in this Act, your Honour.
GAGELER J: Is there a statutory definition that informs this statutory language?
MR DHARMANANDA: Yes, there is, and I will come to that. It is in one of the other Acts. It is in the Electricity Act. It is also in the Electricity Industry Act.
GAGELER J: Do you accept the main switchboard enclosure and its contents that are attached to the pole form part of the distribution system?
MR DHARMANANDA: No, your Honour.
GAGELER J: I see. Thank you.
MR DHARMANANDA: I was in section 43.
STEWARD J: But you would say that the fuses and the meter inside the main switchboard form part of the distribution system?
MR DHARMANANDA: We say they are owned by Western Power, but whether they form part of the process of distributing electricity, we do not accept. They are there for the purposes – fuses for the purpose of safety, ensuring that there is a trip, and meters for the purposes of determining electricity usage.
STEWARD J: Yes. All right. Thank you.
MR DHARMANANDA: Back to section 43.
GAGELER J: And that is somehow different from distributing electricity, is it?
MR DHARMANANDA: The process of distribution involves the transportation of electricity up to a point of receipt by the customer.
KIEFEL CJ: Where do you say that point is?
MR DHARMANANDA: The point of receipt by the customer is at the mains connection box at the top of the pole. The cable that moves from the top of the pole down to the meter – called the consumer mains – is owned – supplied by the consumer for the purpose of receiving that electricity.
GORDON J: Do you say that is the last point, notwithstanding the fuses?
MR DHARMANANDA: We made that point before the primary judge. His Honour found the last point was the fuses because that is where shift in ownership ‑ ‑ ‑
GORDON J: That is why I am asking.
MR DHARMANANDA: We are not contending that the last point is at the top of the pole in terms of ownership, but we are contending that is the point of demarcation as between distribution systems.
GORDON J: I see.
MR DHARMANANDA: Yes. I will try section 43 again. Section 43, in effect, provides that Western Power’s functions are confined to SWIS, or the South West Interconnected System.
STEWARD J: And that is not defined?
MR DHARMANANDA: It is defined.
STEWARD J: It is defined. Thank you.
MR DHARMANANDA: Section 56 on page 190 provides that the fact that Western Power has a function:
does not impose a duty on it to do any particular thing –
and that:
it has a discretion as to how and when it performs the function.
subject to the Act, putting the point shortly.
Western Power’s proper function was relevantly confined by Parliament to do what was necessary to transport or convey electricity in the distribution system. Western Power’s proper function does not include the asset management of consumer property to which Western Power’s apparatus is connected.
Can I take the Court then to section 63, page 198? In effect, section 63 provides that Western Power:
may interrupt . . . transport or supply . . . if in its opinion it is necessary to do so because of –
putting it shortly:
potential danger –
Western Power has to form an actual opinion as to this potential danger. Section 63(1) gives Western Power the power to interrupt supply. It does not carry with it an implication that Western Power has a duty to conduct consumer asset inspections to identify any danger so that Western Power can form the requisite opinion.
The duty of care found by the Court of Appeal required Western Power to take the precaution of periodically inspecting consumer poles. That is, we submit, incompatible with the permission – or even a positive obligation emanating from section 63(1) to disconnect only if Western Power formed an actual opinion about potential danger. Whilst the Parliament permitted Western Power to disconnect, Western Power became aware – in its opinion – of potential danger, the Parliament did not require Western Power to take the precaution of periodic inspection, and we submit that tells against the common law duty of care found by the Court of Appeal.
Can I take up a further point in response to Justice Edelman’s question and draw the Court’s attention to section 59(2), which says that:
A corporation –
Including my client –
has all the powers it needs to perform its functions under this Act or any other written law.
EDELMAN J: So that is the general power by which all of the section 41 functions are formed?
MR DHARMANANDA: Yes, your Honour. Can I go next to the ‑ ‑ ‑
GORDON J: Before you let that, do you propose to take us to 59(3)? In a sense that that contains, it seems, an express power for delegation.
MR DHARMANANDA: I am indebted to your Honour, I was not intending to go directly to that section, but yes, it does support the thesis for which we contend, including under the (Powers) Act, to which I will come. So, section 4(2), which permits independent contracting.
GORDON J: Thank you.
MR DHARMANANDA: Can I go next to the Electricity Industry Act 2004 ‑ ‑ ‑
EDELMAN J: Just before you do move on, is there any tension between the operation of section 63 and section 59(2)? Is it your submission that section 59(2) needs to be read down in any way consistently with section 63?
MR DHARMANANDA: Section 63 gives the power to interrupt supply if there is an opinion of danger. Section 59(2) simply is an empowering provision, giving powers.
EDELMAN J: In exercising powers under section 59(2), to perform a function under section 41(a), to – for example:
expand, enhance, improve and reinforce electricity transmission –
One might think that it may be necessary to:
interrupt, suspend or restrict the generation, transport or supply of electricity –
Is it your submission that the powers under section 59(2) can only be exercised where the opinion is formed that it is necessary –
to do so because of accident, emergency, potential danger –
MR DHARMANANDA: The submission we make is section 63 empowers and states when supply can be interrupted. That requires an actual opinion. The section 41(a) is directed to the function of electricity transportation and the question – one of the issues raised by the appeal is whether electricity transportation as regards the distribution network somehow includes routine inspection of consumer property, and we submit not.
EDELMAN J: I realise that is the ultimate question, but one has to work out how the scheme of powers operates before one can formulate precisely what the duty is.
MR DHARMANANDA: Yes. So, the way we put it is 63 is empowering but it is empowering if an actual opinion is formed. It does not require a process of trying to work out whether you should or should not form that opinion.
EDELMAN J: Yes, but your ultimate submission is that, in exercising a power to perform the function under section 41 of expanding, or reinforcing, electricity transmission or distribution systems there can only be an interruption or restriction in the transport or supply of electricity if, by section 63, the opinion is formed that it is necessary to do so because of the dangers and so on.
MR DHARMANANDA: Yes, that is our submission.
KIEFEL CJ: You would interrupt electricity in the course of some maintenance work though, would you not?
MR DHARMANANDA: You can.
KIEFEL CJ: Well, the July 2013 works, that was done then.
MR DHARMANANDA: Yes.
GAGELER J: The contract or arrangement referred to in section 59(3)(b) presumably covers contracts or arrangements with those to whom the electricity is supplied. That is, the statutory scheme contemplates contractual arrangements between Western Power and its customers?
MR DHARMANANDA: I am not so sure about that, your Honour, because of the way the scheme operates, in that where the transporter, Synergy – another electricity corporation – is the entity that contracts with the consumer.
GAGELER J: I see.
MR DHARMANANDA: And so, I do not know whether – well, because the provision is directed to all corporations it could be directed to the Synergy consumer contract, but not Western Power’s contract – it does not have a contract with Mrs Campbell.
GAGELER J: I see. Where is it that the clearest description of the contractual arrangements in place relevant to who is controlling what on this pole? Is that set out somewhere in the judgment?
MR DHARMANANDA: There is no contractual arrangement, your Honour. If one goes back to section 41 of this Act, your Honour will see that when disaggregation occurred, curiously on April Fool’s Day 2006, there were four entities broken up. My client was the transporter. There was a generator called Verve. There was the retailer called Synergy, and then, irrelevant for present purposes, there was a regional corporation. This Act then empowers each of those corporations and sets out various effective functions, and so that is the basis on which each of those entities continues their relevant relationship to the extent that they get a transfer of the assets and liabilities of the old entity, curiously called Western Power, which my client adopts the name of, but it is not the contractor with Mrs Campbell.
STEWARD J: So Western Power’s contract is with Synergy and it charges a levy for the use of its transmission network.
MR DHARMANANDA: Correct, your Honour.
STEWARD J: Does it have any ‑ ‑ ‑
MR DHARMANANDA: A regulated levy.
STEWARD J: A regulated levy.
MR DHARMANANDA: Yes.
STEWARD J: Like SP AusNet in Victoria. Does it have a contract with the generator at all?
MR DHARMANANDA: I cannot answer that offhand; I will check.
STEWARD J: So, the Synergy would have a contract with ‑ ‑ ‑
MR DHARMANANDA: Yes, that is ‑ ‑ ‑
STEWARD J: ‑ ‑ ‑ Western Power and a contract, possibly, with the generator.
MR DHARMANANDA: Correct. There is a relationship.
STEWARD J: Is the licence in the materials?
MR DHARMANANDA: The ‑ ‑ ‑
STEWARD J: The licence Western Power has.
MR DHARMANANDA: It is not in the materials before the Court, but it is was before the trial ‑ ‑ ‑
STEWARD J: I see, alright. Thank you.
MR DHARMANANDA: ‑ ‑ ‑ and before the Court of Appeal.
STEWARD J: Does that have any clauses in it that might be relevant to the issue of control?
MR DHARMANANDA: No, your Honour.
STEWARD J: Thank you.
GAGELER J: The ownership of the various components that we see on the pole, is that just a legacy issue or is that the product in some way of these new statutory arrangements?
MR DHARMANANDA: The ownership of the distribution system is an asset transferred when this new legislation came into being. The ownership of the fuses and the meter – I will check, your Honour, but I think it is a legacy of this situation, but I cannot tell you whether it is always the case that Western Power owns the meter. But I would expect that, because you have to determine the amount of supply, that Western Power would ensure that a meter is there, but I cannot tell your Honour what the position is as a matter of the law presently as regards the ownership of that part of the apparatus.
GAGELER J: It seems to be very important to your argument to connect these statutory provisions to the precise equipment in issue. I would be assisted if you could be as specific as you can.
MR DHARMANANDA: I will check, your Honour, yes.
GAGELER J: Thank you.
MR DHARMANANDA: Can I take the Court to the Electricity Industry Act, and that is in the joint book of authorities, volume 2, starting at page 484. Western Power has a distribution licence under the Electricity Industry Act. Western Power obtained its distribution licence from the Economic Regulation Authority, or ERA. The ERA is defined as the authority in section 3 on page 486.
May I draw the Court’s attention to section 4(1)(c) which provides that a distribution licence authorises Western Power, in effect, relevantly, to operate a distribution system. Section 3 defines distribution system and your Honours will find that on page 486. In effect, it defines a distribution system as “any apparatus” used to transport electricity at “voltages of less than 66 kV”. May I take the Court then to ‑ ‑ ‑
STEWARD J: Just pausing there – that definition does not seem draw a distinction between that which is owned by Western Power and that which is not.
MR DHARMANANDA: The relevant point we make about the definition is – it is the distribution involved in the transportation. So, it is a system for transportation and then it is received by the consumer. It moves from the point of the mains connection box through the consumer mains and submains – her cables – throughout the house.
STEWARD J: So, the words “in connection with” then need to be read as subordinate to the action of transportation?
MR DHARMANANDA: Correct. That is how we would put it.
STEWARD J: I see.
MR DHARMANANDA: The safety of Mrs Campbell’s toaster is not our responsibility.
GAGELER J: Is Mrs Campbell a “customer” within the definition?
MR DHARMANANDA: She is a consumer.
GAGELER J: There is a definition of “customer” just above “distribution system”. Or is the customer the retailer?
MR DHARMANANDA: Yes, she is also a customer for this purpose. There is – if I could take your Honours to the Court of Appeal’s judgment – and I will turn up – may I invite the Court, in the core appeal book, volume 1, to page 430, and draw the Court’s attention to paragraphs 113 and a few paragraphs thereafter. In paragraph 114, the Court of Appeal says:
Synergy’s functions of generating electricity and supplying electricity to customers is also generally limited to the SWIS.
It is not in the book but, if your Honours were to look at – the reference to section 103 of the Electricity Industry Act in footnote 125, there is a definition of “services” that is picked up for the purpose of section 54. When one travels to section 103, we would submit the demarcation between transport and receipt is made good there as well. I might come back to that.
GORDON J: Sorry, could you say that again, Mr Dharmananda? I did not quite understand that. Did you say section 103 of the Industry Act?
MR DHARMANANDA: Yes, your Honour.
GORDON J: Has a definition of “network service provider”?
MR DHARMANANDA: It has a definition of “services”, and also of network infrastructure facilities, and that services as used – section 54 – if your Honours first ‑ ‑ ‑
KIEFEL CJ: I do not think section 103 appears in the bundle of statutory materials, does it?
MR DHARMANANDA: It does not, your Honour, but I might come back to it and just take your Honour to that ‑ ‑ ‑
GORDON J: I think the way you get to it – is a circuitous route – you have got to pick up section 54 of the Corporations Act, which itself says that services is defined by reference to section 103 in the Industry Act ‑ ‑ ‑
MR DHARMANANDA: Correct. When one goes to the Industry Act ‑ ‑ ‑
GORDON J: It does not itself contain a definition of services, so you get thrown unless you understood where it comes from.
MR DHARMANANDA: So, 103 does contain a definition of services, which means the conveyance of electricity and other services provided by means of network infrastructure facilities, which then takes your Honours to network infrastructure facilities, in 103, which, putting our point shortly, refers to the transportation of electricity.
GAGELER J: What is the relevance of section 54 of the Electricity Corporations Act, for present purposes?
MR DHARMANANDA: The relevance of 54 is: we supply to Synergy, which supplies to prescribed customers. Prescribed customers is defined to include consumers of Mrs Campbell’s variety, in that it is demarcating the types of consumers involved.
GAGELER J: There is a ministerial border somewhere, is there ‑ ‑ ‑
MR DHARMANANDA: Yes. That is what 113 refers to – of the judgment. Can I go back to the Electricity Industry Act in the joint book of authorities, volume 2, and draw the Court’s attention to section 9 on page 490, which in effect provides the ERA:
must not exercise a power conferred –
on it by Division 3:
unless the Authority is satisfied that it would not be contrary to the public interest –
And that –
KIEFEL CJ: I am sorry, section 9?
MR DHARMANANDA: Subsection (1) of the Electricity Industry Act, page 490. So, that contains a public interest test. I need to take your Honours to section 14. A full copy of that appears in the supplementary joint book of authorities B, which was filed on 26 August 2022. May I please ask the Court to go to page 17 of that supplementary joint book of authorities? Section 14(1)(a) provides that it is a condition for Western Power’s license that Western Power must:
provide for an asset management system in respect of –
its assets. Section 14(1)(c) provides that at least in every 2 years, Western Power is required to provide to the ERA an independent expert report as to the effectiveness of its asset management system. Section 14(2) provides that:
An asset management system is to set out measures that are to be taken by –
Western Power:
for the proper maintenance of assets used in the supply of electricity and in the operation of –
the distribution system. Western Power’s asset management obligations are regulated by the ERA. The ERA acts in the public interest. The idea that Western Power had other common law asset management obligations as to consumer property, we submit, sits incongruently with this statutory requirement to have a regulated asset management system.
May I draw the Court’s attention to section 31(1) which, in effect, replicates section 63(1) of the Electricity Corporations Act, and it is a provision similarly permitting Western Power to suspend electricity supply if it has the actual opinion that it is necessary to do so because of potential danger. We submit that Western Power was not entitled to stop supply to Mrs Campbell merely if it reasonably should have known it was dangerous to supply electricity to her. Absent an actual opinion formed by Western Power it could not stop supply, the idea that Western Power owed a duty of routine consumer asset inspection does not sit well with the need for that actual opinion.
GAGELER J: But section 31(1) applies to all of the infrastructure that your client controls. Are you saying that that is inconsistent with a duty of care arising in respect of the management and use of its own infrastructure?
MR DHARMANANDA: No, we are not making that submission. We are making the submission that the ability to interrupt supply as regards a consumer depends on an actual opinion.
GAGELER J: But it applies not just to the consumer. I just cannot see how you can bifurcate the operation of section 31 as you wish. Either it applies across the board as an answer to any duty of care ‑ ‑ ‑
MR DHARMANANDA: Yes, I understand, your Honour.
GAGELER J: ‑ ‑ ‑ or it is of no use.
MR DHARMANANDA: The submission we make is this: consumer asset management, or routine consumer inspection, is not contemplated by a regime that permits interruption only in a particular circumstance. The submission we are not making, your Honour, is that as regards Western Power’s distribution system, it has to go through section 31(1) in order to be able to do maintenance or interrupt supply for the purposes of safely operating that distribution system. We are not making that submission, and ‑ ‑ ‑
GORDON J: Could I ask about the interrelationship – you may be coming to it – between section 63(1) of the Corps Act and this provision? Did you wish to do it later, Mr Dharmananda? That is fine ‑ ‑ ‑
MR DHARMANANDA: No, no, I can deal with it ‑ ‑ ‑
GORDON J: Because I must say, I find that a bit difficult to understand.
MR DHARMANANDA: Yes, I can deal with it quickly, your Honour. There is – one provision trumps the other expressly – but the reason for why it is in two different places ‑ ‑ ‑
GORDON J: Yes.
MR DHARMANANDA: ‑ ‑ ‑is all to do with the slow and tedious process by which disaggregation occurred.
GORDON J: I see.
MR DHARMANANDA: So, certain Acts were enacted and all of the people involved in agreeing to the disaggregation had not quite agreed, so the other Act comes in and then ‑ ‑ ‑
GORDON J: I see. So, section 63 does not apply if 31(1) applies? Is that the way I am to read it?
MR DHARMANANDA: I am just going to pick up – there is a primacy provision. Your Honour will see ‑ ‑ ‑
GORDON J: I see it is section 63(2) of the Corps Act, is it not?
MR DHARMANANDA: Yes, and also 31(4) of this Act. But that is the reason, your Honour, for the duplication.
GORDON J: Thank you.
MR DHARMANANDA: May I now go to the Electricity Act 1945 and the version of the Electricity Act ‑ ‑ ‑
EDELMAN J: Just before you do, in the Electricity Industry Act, section 31(4), that you have just referred to, is it not the premise of that subsection that section 31 and, by analogy, a provision like section 63 of the Corps Act is not the exclusive – or covering of the field provision for the interruption or suspension or restriction of electricity?
MR DHARMANANDA: That is so, your Honour. We are not contending that 63 and 31 are a source of direct inconsistency, we are contending they are part of a scheme that does not contemplate routine consumer asset inspection.
EDELMAN J: But if they are just one way in which supply may be interrupted, then where does any inconsistency with duties such as those that are found by the Court of Appeal arise?
MR DHARMANANDA: The inconsistency comes from other provisions, but the point we are making about 31 and 63 is merely that it does not conform with the concepts used by 31 and 63 to suggest that one should routinely inspect consumer property to identify danger. Instead, the regime contemplates a permission to stop if there is a danger or an opinion as to danger.
EDELMAN J: But if 31 and 63 are not exclusive, it does not dis‑conform with it either.
MR DHARMANANDA: That is so, and we are not saying – as I said, we are not using it as the pivot for the argument about how the scheme is incompatible. May I go to the Electricity Act, which is in the book, volume 1, starting at page 92? This is the version of the Electricity Act that was current as at the time of the Parkerville bushfire. May I please go to page 97, section 3(1), repeal:
The Electricity Act 1937 –
and I will come back to that. Section 5 contains a number of definitions that are relevant, and they include “apparatus”, “distribution works”, “inspector”, “network operator”, “premises”, “service apparatus” and “transmission works”. Can I then move directly to section 25, which sets out Western Power’s obligations as regards consumer premises? Section 25 is entitled “Duties as to supply of electricity”. For what that is worth, it is relevant context. Section 25(1)(a) provides that Western Power must:
at all times maintain all service apparatus belonging to –
Western Power:
which is on the premises of any consumer, in a safe and fit condition for supplying electricity –
The obligation in section 25(1)(a) is, your Honours will note, an absolute obligation. It is not an obligation to take reasonable care; it is an obligation that applies at all times. It is an obligation imposed on Western Power in relation to its property on consumer premises. It is directed to the particular social problem of allocating responsibilities on the consumer’s premises where electricity passes from Western Power to the consumer.
That particular social problem demanded a single and clear solution. The obligation in section 25(1)(a) is an obligation to maintain all service apparatus belonging to Western Power. On a plain reading, “maintain”, when used in section 25(1)(a), refers to an obligation of maintenance obliging Western Power to inspect and maintain service apparatus belonging to it. The obligation is not to keep Western Power’s service apparatus “safe and fit” for electricity supply; the obligation is to maintain. The comma that appears before the words:
in a safe and fit condition –
indicates that the obligation is one of maintenance. The obligation to maintain service apparatus belonging to Western Power cannot, as a matter of language and construction, be construed as an obligation to inspect a consumer‑owned apparatus to which Western Power’s service apparatus is attached. It is not possible to convert the obligation of maintenance of Western Power’s property into an obligation to inspect a consumer’s property which does not belong to Western Power.
STEWARD J: Could I ask a question about legislative history? Was there a version of this provision in the original 1945 Act?
MR DHARMANANDA: I am going to come to that, but the short answer, your Honour, is that in the original 1945 Act, it cross‑referred to this State Electricity Commission Act ‑ ‑ ‑
STEWARD J: The SECWA Act?
MR DHARMANANDA: Correct, and I will come ‑ ‑ ‑
STEWARD J: The SECWA Act presumably had the duty to maintain SECWA assets?
MR DHARMANANDA: I am sorry, your Honour, I misunderstood your question. Section 25 was always in the 1945 Act.
STEWARD J: Was there an equivalent provision somewhere in 1945 imposed on SECWA an obligation to maintain its own assets? Because this is quite limited. This is limited to those assets owned by the power company that is on the consumer’s premises.
MR DHARMANANDA: Yes.
STEWARD J: Presumably there was, in 1945, a more general obligation of maintenance.
MR DHARMANANDA: No. This is an obligation of maintenance as regards property on consumer premises, and that limit was always there when the 1945 Act was enacted.
STEWARD J: In contrast, there was no provision in 1945 imposing on SECWA – or whoever it was – an obligation to maintain its own network?
MR DHARMANANDA: Obligation to maintain its own network that is outside consumer premises?
STEWARD J: Correct, yes.
MR DHARMANANDA: Let me check that, your Honour, I will come back.
STEWARD J: All right. Thank you for that. Thank you.
MR DHARMANANDA: Coming back to section 25(1)(a) – in our submission, if there is any ambiguity about what is meant by “maintain”, as used in 25(1)(a), the second reading speech for the Electricity Bill 1945 makes the position clear. Can I take the Court to the joint book of authorities, volume 10, and go directly to the second reading speech of the Honourable W.H. Kitson as to the Electricity Bill?
EDELMAN J: Is this tab 78?
MR DHARMANANDA: Yes, your Honour. The second reading as to the Bill starts at page 3689. I want to draw the Court’s attention to what appears at page 3689 of the book. At point 30 at the left ‑hand side, this is the Honourable W.H. Kitson said in the new paragraph beginning at around point 30:
In the present Act there exists a number of ambiguities, mainly in respect to the extent of responsibility of supply authorities. Under this Bill, as a result of improved drafting, these ambiguities will disappear. For example, the definition of “service apparatus” in Section 2 of the Act is so loosely drafted and extensive in its ambit that it includes electrical installations and fittings of a consumer on his own premises, and over such installations and fittings a supply authority has no control because they are not its property. The definition of “service apparatus” is intended to relate to those lines and plant belonging to the supply authority by which it brings electricity to the premises of the consumer, and it is not intended to include the consumer’s installations within his premises by which he uses the electricity supplied. Consequently the definition of “service apparatus” is deleted from this Bill altogether, and is now contained in the State Electricity Commission Bill. Its redrafting will make it clear that the definition will apply only to the lines and plant of the supply authority up to the position in a consumer’s premises where the main switch is installed.
The parliamentary intention was that the supply authority, now network operator, is responsible only for apparatus that belongs to it. The network operator was not intended to have responsibility for property owned by and under the control of the consumer when electricity was supplied to the consumer.
There is a question about whether the parliamentary intention that is apparent from the second reading speech of the Bill in 1945 continues to reflect the intention despite later amendments. We submit it does. May I demonstrate that by taking the Court quickly through the history? May I take the Court first to the joint book of authorities, volume 2, page 371?
GAGELER J: As you do that, can I just ask a couple of questions about section 25?
MR DHARMANANDA: Yes, your Honour.
GAGELER J: Do you say that breach of section 25(1)(a) gives rise to a right of private action?
MR DHARMANANDA: Yes, your Honour, if a person is aggrieved by a failure to maintain apparatus belonging to the network operator.
GAGELER J: When you say – I mean a breach of statutory duty, is there a tortious action for breach of statutory duty that is implied, or not?
MR DHARMANANDA: Yes.
GAGELER J: There is?
MR DHARMANANDA: Yes.
GAGELER J: That is despite section 25(2)?
MR DHARMANANDA: Correct, your Honour.
GAGELER J: You say that that implied action in some way covers a field?
MR DHARMANANDA: Correct, it covers the field as regards obligations relating to a consumer’s premises, as does – to which I will come – 25(1)(b).
GAGELER J: Thank you.
MR DHARMANANDA: May I go to the Electricity Act as enacted, which is in page 370, starting at 369 of volume 2 of the book of authorities.
GORDON J: Sorry, what is this, Mr Dharmananda? What is this actual document you are taking us to?
MR DHARMANANDA: So, the Electricity Act as originally – sorry, I withdraw that. Yes, the Electricity Act as originally enacted in 1945, commencing at page 370, not 369 as I said.
EDELMAN J: Which tab is it?
MR DHARMANANDA: Tab 9, your Honour. May I go to page 371. When the Electricity Act was enacted, section 5, which appears at 371, provided the definitions in the State Electricity Commission Act 1945 applied. Can I then go to page 703 of the same volume, tab 27, and that contains the State Electricity Commission Act starting at page 700, and 703 has a definition of “Service Apparatus”, and that is at the top of page 703. The definition makes the position clear that the line between distribution work as to the line between distribution works and the consumer side.
Can I take the Court to the supplementary joint book of authorities B at page ‑ ‑ ‑
STEWARD J: Just before you do, that definition of service apparatus –has that relatively remained the same?
MR DHARMANANDA: It conceptually remains the same – that is an addition. There is an addition to which I will come directly, your Honour.
STEWARD J: Thank you.
MR DHARMANANDA: May I go to the supplementary joint book of authorities B, filed 26 August 2022, and invite the Court’s attention to the Electricity Act Amendment Act 1979 which begins at page 11.
GORDON J: Is that tab 4?
MR DHARMANANDA: Your Honour, this is the supplementary book.
GORDON J: Yes.
EDELMAN J: Supplementary tab 4.
MR DHARMANANDA: Tab 4, thank you, your Honour. Page 11 has – in section 1, your Honour will the name of this Act, it is the Electricity Act Amendment Act 1979. This Act brings in the definitions into the Electricity Act rather than cross‑refer to the SECWA Act of 1945. The definition of “service apparatus” was inserted into the Electricity Act, and that appears at page 14.
In answer to Justice Steward’s question, the definition again draws a line between distribution works on the consumer side, but words were added at the end of the definition so that service apparatus may include:
equipment or plant used in conjunction with –
distribution works to effect supply at the position of the consumer side. But, importantly, when the definition was added, no change was made to section 25(1)(a). The parliamentary intention remained as it was in 1945. That is, the supply authority, or now, the network operator was required to maintain only service apparatus belonging to it. Section 25(1)(a) should be construed along with 25(1)(b) – congruently with it.
May I go back to section 25 in page 110 of volume 1 of the joint book of authorities. Section 25(1)(b) provides that Western Power must:
in the actual supply of electricity to the premises of a consumer take all reasonable precautions in order to avoid the risk of fire or of other damage on the said premises –
but only:
to the position on the said premises where the electricity passes beyond the service apparatus of –
Western Power. The words “actual supply of electricity” need to be given meaning. It is important to appreciate that Western Power transports or conveys electricity using conductors or cables. Because it is the movement of electricity that is Western Power’s function, the words “actual supply of electricity” make sense. They mean that when Western Power conveys electricity using conductors and other apparatus, it has to take the required reasonable precautions.
Also, Western Power’s obligations to take these reasonable precautions is only to the position on the premises where electricity passes beyond Western Power’s service apparatus, which would suggest that that obligation to take reasonable precautions to avoid fire risk is confined to an obligation owed only to consumers of electricity imports a limitation that we submit cannot be found in the words used in the section.
GAGELER J: So, the service apparatus, when we read the definition of service apparatus with the definition of apparatus, seems to include the meter?
MR DHARMANANDA: Yes, your Honour.
GAGELER J: So, the point being referred to or the position being referred to in section 25(1)(b) must extend at least to the meter?
MR DHARMANANDA: That is what the trial judge found, yes - - -
GAGELER J: What is wrong with that?
MR DHARMANANDA: There is a question as to whether the position to which reference was made by the Parliament is the mains connection box where the point of supply occurs. But leaving that to one side, because the meter is owned by Western Power, a reading of 25(1)(b) that the judge accepted is that it is up to the meter.
GAGELER J: Well, that seems to be the position on the premises where the electricity passes beyond the service apparatus of the network operator.
MR DHARMANANDA: Yes, your Honour, yes. The point we are making, though, is that we are talking about the supply of electricity using conductors, and it is to the position, but it is not a two-dimensional world. It is a world where there is other apparatus owned by the consumer at that interface for which the consumer is responsible and in the conduct of – in the actual supply of electricity, to use the words of the section – that process of electricity supply, there is a requirement to take reasonable precautions.
The submission we make is that even if it is up to the meter, it does not include a responsibility of inspection as regards consumer property. The definitions of “premises apparatus” and “service apparatus”, when one goes to them, we submit, also makes it plain that the Parliament imposed an obligation to take reasonable precautions only in the supply or transportation of electricity and only up to the point at which a consumer becomes responsible.
GAGELER J: So, what is the content of that duty, insofar as it covers the premises of the consumer up to the point or position of the meter? What is the content of the reasonable precautions that section 25(1)(b) requires to be taken?
MR DHARMANANDA: The content of those reasonable precautions would include ensuring that the conductors are properly insulated, are not frayed, and are able to transport electricity in a way that avoids the risk of fire.
EDELMAN J: In effect, do you read section 25(1)(b) as containing an implication after the words:
avoid the risk of fire or other damage –
Which would be, from the operator’s service apparatus.
MR DHARMANANDA: Yes, your Honour, one can analyse the point that way. We also analyse the point by saying the reason that the Parliament chose relatively difficult‑to‑comprehend words in the actual supply of electricity was to convey the limitation of the ambit of section 25(1)(b).
EDELMAN J: It is the same limitation or the same implication that you seek, which is that it has to be confined to the service apparatus.
MR DHARMANANDA: Yes.
GORDON J: Of the operator?
MR DHARMANANDA: Correct, otherwise there will be a clash with the maintenance obligation in 25(1)(a), which makes sure the apparatus that belongs to you is properly maintained.
EDELMAN J: If you are wrong about that, what does that mean in circumstances in which the Court of Appeal did not find that the duty arose as a breach of statutory duty arising from section 25?
MR DHARMANANDA: The way we put the point is, the Court of Appeal, as regards its construction of 25(1)(a), was incorrect, but the reason it had to get to that point was otherwise there would be incompatibility. On the one hand there is, on our case, an obligation to maintain only that which belongs to you, but, on the other hand, on the Court of Appeal’s identification of duty and the relevant precaution, there is a need to routinely inspect consumer property, which clashes.
GORDON J: If you took that last proposition to its logical conclusion, does it extend beyond – when you say “consumer apparatus” – it extends beyond even things the consumer – I mean, does it extend to trees, does it extend to looking at the system itself generally? The way in which it is currently crafted, this broader duty has been imposed upon you.
MR DHARMANANDA: It would extend to any danger at the consumer’s premises that may heighten the risk of fire, which includes checking that there is no tree ‑ ‑ ‑
KIEFEL CJ: That could fall across the line, or something like that.
MR DHARMANANDA: Yes.
GORDON J: Or other structure.
MR DHARMANANDA: Yes. We make the submission that it is not uncommon and usual when there are overhead cables for the connection – the mains connection box – to be at the top of a house. If the Court of Appeal’s analysis is correct, the precaution one has to take is to ensure the house is not going to fall down.
GORDON J: In relation to – this is a side question, but it may be something that you are going to come to, Mr Dharmananda – in relation to the pre‑work inspection duty, there was evidence led, as I understand it, about the cost of that duty being imposed on Western Power. And the same in relation to the poles.
MR DHARMANANDA: Yes, there is ‑ ‑ ‑
GORDON J: Was there evidence led about the cost of this broader – the consequences of this broader duty?
MR DHARMANANDA: There was no extensive evidence as to cost, but there was a finding by the Court of Appeal, an acceptance that it would be in the millions of dollars in order to have a routine inspection system.
KIEFEL CJ: But were their Honours referring to consumer poles more generally or point of attachment poles?
MR DHARMANANDA: Their Honours were referring to point of attachment poles.
GORDON J: My question is broader than that, my question is directed at additional structures and additional things belonging to the consumer.
MR DHARMANANDA: There was no evidence as regards inspecting houses, but the evidence was there are numerous point of attachment poles and it was accepted that the cost of doing a routine inspection would be a very large sum.
KIEFEL CJ: In the millions ‑ ‑ ‑
MR DHARMANANDA: In the millions.
KIEFEL CJ: The Court of Appeal answered that for itself though, did it not?
MR DHARMANANDA: Yes.
KIEFEL CJ: Could you refresh my memory? It said that it could be undertaken at the same time as doing other works, or something to that effect?
MR DHARMANANDA: Yes. I will check that precisely, your Honour, and draw your Honours’ attention ‑ ‑ ‑
KIEFEL CJ: Perhaps someone is keeping a list of the things that you are checking.
MR DHARMANANDA: Yes.
STEWARD J: Can I ask just another point of detail. Based upon section 25, is this service cable that comes to the point of attachment? Is that, on your view, not part of the service apparatus but is instead part of the distribution works as defined?
MR DHARMANANDA: The service cable of Western Power is part of the distribution system as defined.
KIEFEL CJ: When you say incompatible, are you really saying anything more than that the Court of Appeal’s construction adds a further duty by which you are taken to say ‑ ‑ ‑
MR DHARMANANDA: Yes.
KIEFEL CJ: ‑ ‑ ‑ that what appears in the statute is all that was ever intended? It is the extent of the duty that was comprehended?
MR DHARMANANDA: That is what – there are ‑ ‑ ‑
KIEFEL CJ: So it is not that – I am just trying to understand what you are saying about incompatibility.
MR DHARMANANDA: Yes.
KIEFEL CJ: It is not your argument that the Court of Appeal’s construction, or the duty it imposes, makes difficult, or renders difficult or impossible, the carrying out of any tasks under the system that is provided for. You just say that it goes further than and is not supported by the extent of the powers and duties provided for?
MR DHARMANANDA: That is how we put it. Your Honour, to answer the Chief Justice’s question, I think it is in paragraph 172, page 447 of the book, and I am going to come to this point, but that is where the court says what your Honour the Chief Justice recalls.
KIEFEL CJ: Well, it is also 168, is it not? “The feasibility of establishing an inspection regime” is drawn by analogy with what they are already doing.
MR DHARMANANDA: Yes. Coming back to section 25(1)(b), the definition of service apparatus refers, in essence, to apparatus used to convey electricity from distribution works to the position on a consumer’s premises where electricity is delivered, and includes any equipment or plant used in conjunction therewith, whether or not Western Power’s property.
The inclusion in the definition of property not belonging to Western Power used in conjunction to convey electricity up to the position of electricity delivery to the consumer does not change the effect of section 25(1)(a) or 25(1)(b). Section 25(1)(a) is clear on its terms. It requires maintenance of service apparatus belonging to Western Power. Section 25(1)(b) requires reasonable precautions to be taken to avoid fire risks when Western Power supplies electricity up to the position where the electricity passes beyond Western Power’s service apparatus.
The fact that another person’s property might be used before the position where the electricity passes does not extend Western Power’s obligation beyond that position. Neither section 25(1)(a) nor section 25(1)(b) specify that Western Power is obliged to inspect and warn consumers about the state of their property for which the consumers – not Western Power – are responsible. Western Power’s service cable can be connected not just to a consumer’s pole, but is often connected – as I have said – at the premises of the consumer, including a house or building. The obligation of maintenance in 25(1)(a) cannot be construed as an obligation of routine asset inspection that extends to such houses and buildings. Your Honours, does the Court propose to take a break?
KIEFEL CJ: Yes, the Court will be taking a break. Is that a convenient time?
MR DHARMANANDA: It is, your Honour.
KIEFEL CJ: Thank you. The Court will adjourn for 15 minutes.
AT 11.15 AM SHORT ADJOURNMENT
UPON RESUMING AT 11.29 AM:
KIEFEL CJ: Yes, Mr Dharmananda.
MR DHARMANANDA: Thank you, your Honour. May I stay with section 25 and go to section 25(1)(c) which, in effect, provides that Western Power must:
maintain such supply constantly without a change of polarity –
That obligation is to maintain constant supply without a change in the direction of current flow. In context, “maintain”, when used in section 25(1)(c) properly means “keep”. That is a very different context to the obligation to:
maintain all service apparatus belonging to –
Western Power, the subject of 25(1)(a). Section 25(1)(d), in effect, provides that if Western Power must provide pressure and frequency within the prescribed limits. Again, in context, “maintain” when used in 25(1)(d) may properly mean “keep”, but that does not inform the use of “maintain” in the different context as used in 25(1)(a). Section 25(2) provides that if Western Power:
fails to comply faithfully with any of the obligations imposed upon it by subsection (1), any person aggrieved . . . may make a complaint . . . and the Minister may refer such complaint to the Director.
Because a complaint may be made by any person aggrieved, in our submission, it is incorrect to suggest that section 25 is focused only on the relationship between Western Power and consumers. The obligation to take reasonable precautions to avoid fire risk cannot be so confined.
May I go now to Court of Appeal’s reading of section 25? The core appeal book at paragraphs 135 to 147 in page 437. As to 135 and 136, we submit that the view that section 25 is not an “exhaustive statement” turns the relevance of the scheme into an incorrect inquiry about whether there can be coexistence. The correct inquiry is about whether the common law duty of care can arise at all in the face of the statutory scheme, and the negative propositions or implications that come out of the scheme. I will come back to that point.
At 137, the Court of Appeal’s first point is that section 25(1) only deals with the relationship between network operator and consumers. We submit that is not correct for at least two reasons. First, section 25(1)(b) imposes an obligation to take reasonable precautions to avoid fire risks. Fire can cause loss, not just to consumers. Section 25(2), as I have said, gives a remedy that the persons aggrieved, and that can extend to people other than consumers. Paragraph 138. The Court of Appeal’s second point is that:
the statutory remedy for breach of the statutory duty is provided by s 25(2) –
indicating that it is an administrative remedy, so that 25(1) is not intended to deal exhaustively with Western Power’s common law duties. We submit that the point is not convincing, given that when section 25(2) was originally enacted, it expressly saved a claim for damages at common law for a breach of section 25(1). Can I take the Court to that? In the joint book of authorities, tab 9, at page 370 is where the Act, as originally enacted, can be found. May I draw the Court’s attention to pages 373 to 374? Your Honours will see in page 373 that section 25(2)(b)(ii) provided that the commission could assess damages, but that this assessment did not preclude a claim of law or in equity to recover damages suffered as a consequence of a default of section 25(1).
Then, in the same book, at tab 16, page 481, is the Electricity Amendment Act 1996. By section 19 of that Act, which appears at page 483, section 25(2)(b) was removed, deleting the limited right to damages assessable by the commission, and therefore also deleting the point that this limited damages right did not preclude a claim for damages by action.
Paragraph 139 of the Court of Appeal’s judgment – on page 438 – contains the Court’s third point, which we submit is equally unconvincing. In essence, the point is that as enacted, the Parliament preserved a right to damages so that the Parliament never intended section 25(1) to be exhaustive. We submit that there are difficulties with that point. Section 25(2)(b)(ii) – as I have already taken the Court to – expressly preserves a common law right to damages suffered, quote:
in consequence of the default committed by the supply authority –
That is referring to 25(1). 25(2)(a) makes it clear that the default referred to is a failure to comply with 25(1). That was not a recognition of separate duties otherwise, then as provided by section 25(1), but rather a recognition that any person aggrieved can claim damages for a breach of 25(1). Again, that indicates that 25 is not merely an administrative provision.
Then, paragraphs 140 to 144. The Court of Appeal’s fourth point involves two or three erroneous tips. The Court of Appeal inserted relevant parts of the definition of service apparatus into section 25. By doing that, the Court of Appeal treated the operative words belonging to the network operator as no more than describing the relevant service apparatus, but those operative words work with the operative word in section 25(1)(a), “maintain”, to make it plain that Western Power’s obligation is to maintain service apparatus that it owns.
A further error in construction arises at paragraph 142, where the Court of Appeal determined the proper construction of section 25(1)(a) construction by applying it to Western Power, and Mrs Campbell specifically, rather than first determining the proper construction of section 25(1)(a) from its text, context and purpose. By taking that specific approach, the requirement to maintain service apparatus belonging to the network operator is deprived of meaning and effect. A further construction is to draw a false distinction between “perform maintenance” – this is in paragraph 143 – in the ordinary sense of “keep”.
It is true that section 25(1)(a) does not impose an obligation only to perform maintenance. It is not true that, therefore, this means that the obligation is to keep safe, leading to an obligation to routinely inspect and maintain consumer property. The obligation is to, quote, “maintain”, rather than to, quote, “perform maintenance”, and that may require inspection and replacement of Western Power’s service apparatus. The concept of “maintain” is, in that sense, wider than “perform maintenance”, meaning only to fix, not replace, but there is no footing in 25(1)(a) to support the conclusion that “maintain”, when used in it, refers to “keep safe”. An obligation to maintain Western Power’s service apparatus so that it is safe for electricity supply cannot be converted into an obligation to inspect consumer property if what is unsafe is the consumer’s property, not Western Power’s service apparatus.
GAGELER J: Mr Dharmananda, as originally enacted, section 25(2)(b)(ii) contained an express acknowledgement of a private right of action for breach of section 25(1). Your submissions is notwithstanding the repeal of – or, despite the repeal of that express acknowledgement, an implied right of action exists.
MR DHARMANANDA: The submission we make, your Honour, is, when 25(2) was originally enacted, it had two things. One, a right to complain to the Commission and get a small monetary sum; because of that, it preserved expressly a common law right to claim damages. When the regime of seeking a small monetary sum was taken out, there was no need to keep the preservation of the common law right, but that did not entail a conclusion – and does not entail a conclusion – when one looks at it, that the common law right was taken away. It was a preservation, because of an express right of a limited kind, and then that was taken out, no need to keep the retention of the common law right. That is the submission. Justice Gordon?
GORDON J: I am at the other end. Can I just go back to this contention about “maintain” and “keep” 25(1)(a)?
MR DHARMANANDA: Yes, your Honour.
GORDON J: Can you not read 25(1)(a) as reading “maintain” means “keep”, consistent with your thesis?
MR DHARMANANDA: In our reply submissions, we do make that point as an alternative.
GORDON J: But is that not right? You accept, as I understand, that you have an obligation at all times – an absolute liability, as I understood, to keep all service apparatus belonging to you in a safe ‑ ‑ ‑
MR DHARMANANDA: Yes.
GORDON J: So, why are we having these fine lines drawn between one definition and another?
MR DHARMANANDA: In our submission, because of its absolute nature, it is more akin to maintain that thing, inspect it and replace it and fix it, rather than “keep”, which is broader and leads to the assertion that my learned friend, Mr Giles, will make later – that “keep” means keep aloft. If “keep aloft” – if something is dangerous, you have got an extra obligation, despite the belonging to.
GORDON J: I see.
GAGELER J: What does “belonging” mean?
MR DHARMANANDA: Own.
GAGELER J: Why, in light of the extended definition of “service apparatus”?
MR DHARMANANDA: Because of and in light of the extended definition. So, even though service apparatus is extended, it is not extended in the operative provision in 25(1)(a) where “belonging to”, with its original own meaning, remains.
GAGELER J: So, it cuts down the scope of the service apparatus that is being referred to.
MR DHARMANANDA: So it does. I do not need to remind the Court of what Justice McHugh said in Kelly v The Queen – it is the operative provision that matters, not the definition. To the extent that the definition can lead to a different conclusion, the operative provision needs – its purpose, context and effect needs to be given proper effect.
GORDON J: So, just so that I am clear about that; I had understood your earlier submission this morning to be that “belonging” meant owned by. You extend that beyond ownership?
MR DHARMANANDA: No, I say it is owned by. That is the submission I am making.
STEWARD J: Can I ask, if, on a hypothetical, the PA poles were owned by Western Power, would that pole be part of the service apparatus or would it be part of the distribution assets?
MR DHARMANANDA: It would be – it would be part of the service apparatus, not the distribution works, distribution system, as we apprehend the Parliament’s intention.
STEWARD J: So, distribution ends with the connection to the PA pole?
MR DHARMANANDA: Distribution ends, as regards supply and electricity – we say at the mains connection box, but it could be said it is at the meter box because fuses and measuring instruments ‑ ‑ ‑
GORDON J: Because that is the last point at which there is service apparatus ‑ ‑ ‑ ‑
MR DHARMANANDA: Yes.
GORDON J: ‑ ‑ ‑ belonging to your client.
MR DHARMANANDA: Yes. But that is that point that I submit – have made submissions about.
STEWARD J: I understand.
GAGELER J: Is there a requirement for a network operator to own any of the network or apparatus that it uses?
MR DHARMANANDA: It does ‑ ‑ ‑
GAGELER J: It cannot be in a corporate structure – just the owner ‑ ‑ ‑
MR DHARMANANDA: Yes, your Honour, but it does own it, and that is how the structure – when disaggregation occurred, that which was taken by Western Power was the distribution network, which it owns. Before disaggregation, the supply authority, as it was called, owned everything but up to the points that we are discussing.
Western Power’s service cable was maintained and was safe. It was Mrs Campbell’s PA pole – for which she was responsible – that was unsafe. The Court of Appeal’s fourth point involves an incorrect instruction of 25(1)(a) that gives rise to, first, an obligation to keep Western Power’s service apparatus fit and safe for electricity supply, that then gives rise to an obligation of Western Power to take steps – including regular asset inspection – of consumer property to ensure Western Power’s service apparatus is fit and safe. We submit that is a rather forced and stretched construction of 25(1)(a). It is also because of this forced construction that the Court of Appeal was able to conclude that the common law duty identified by it was apparently comparable and harmonious with the scheme.
We submit that the Court of Appeal misconstrued 25(1)(a), the Court of Appeal also did not have regard to the whole of the statutory scheme. The duty found by the Court of Appeal is incompatible with the scheme, and in particular 25(1). It is hard to see how an absolute obligation to maintain apparatus belonging to the network operator converts into a duty to take reasonable care and reasonable precautions as to consumer property.
Paragraph 145, the Court of Appeal’s fifth point – is that even if a consumer was intended by Parliament to be responsible for consumer property, that does not preclude Western Power owing a duty of periodic asset inspection of consumer property. That ignores the intended effect of 25(1) and the scheme, the implied negative propositions flowing from 25(1)(a) and 25(1)(b) make it plain that Western Power was intended to be responsible for service apparatus owned by it, and to take reasonable precautions in the actual supply of electricity up to the position of supply. Those carefully drawn demarcations of responsibility are undermined if there remains a common law duty of periodic asset inspection of consumer property. The idea that there is a duty of periodic inspection – but not maintenance – so that Western Power could inspect and then warn consumers to comply with their duty of care as to their own property – we submit – is unprincipled. It is incompatible with the scheme.
Paragraphs 146 and 147, the Court of Appeal’s sixth point was that the court was not assisted by other material to which we referred – and I will come back to those points when we refer to that other material.
Can I go to the Energy Coordination Act 1994, which is in tab 23 in the joint book of authorities, volume 2, page 567. The statutory scheme sets up an express regime for inspection of consumer property so that the consumer can be compelled to maintain their property if identified as unsafe. That regime is in the Energy Coordination Act. May I take the Court first to page 573 of the book, section 12(2):
The Director –
of Energy Safety:
may designate persons to be inspectors –
Section 13 requires an inspector to be certified, and as such by the Director. The duty found by the Court of Appeal imposes a super‑added inspection obligation on people other than certified inspectors. Section 14(a), in essence, gives an inspector the right to enter premises for the purposes of the Energy Coordination Act if they have reason to believe that electricity is being used there, which is slightly – it is a very wide concept, right of entry.
Section 14(c), in essence, gives an inspector the power to inspect anything used in connection with the distribution, supply or use of electricity. Section 18 on page 576 provides that:
If an inspector is of the opinion that any thing –
they have inspected:
(b)is unsafe,
the inspector may –
prohibit its use or disconnect the electricity supply until satisfied that the thing is safe. The explicit statutory powers given to an inspector to check that consumer property at the premises is safe and to order disconnection if it is not safe, in our submission, is incongruent with the imposition of a separate more general common law duty on Western Power to effect periodic consumer property asset inspection to the same end.
An obligation to inspect for safety of consumer property is not explicit, not spelt out in section 25(1)(a). Such an obligation is not imposed in Western Power, it is a task and is trusted to a certified inspector. Can I please then go to ‑ ‑ ‑
STEWARD J: Just before you do, can I ask what was the mischief which caused this Part 3 of this Act to be enacted? What was missing from the regulatory regime, do we know?
MR DHARMANANDA: I am going to come to it directly, your Honour, but can I provide your Honour with a short answer. Throughout the period of this regime there was always an inspector with a right to inspect, so this was just a re-enactment of that, and I am going to come to that.
STEWARD J: Thank you.
MR DHARMANANDA: Can I go to the Electricity Regulations 1947, which is in tab 22, page 555. This is a further point about how this scheme deals with the inspection of consumer property. Section 12 – which I will not go back to – of the Energy Coordination Act provides that the Director of Energy Safety:
may designate persons to be inspectors for the purposes of –
(a)this Act
and, relevantly:
(b)the Electricity Act 1945
and the work of an inspector is picked up by these regulations – Electricity Regulations 1947 – and, as I said, it begins at page 555, tab 22. May I go please to regulation 253 on page 560. That provides that:
For the purpose of ensuring the safety of consumers’ electric installations and consumers’ apparatus . . . to which the supply relates, and of monitoring the work of electrical contractors . . . each network operator shall –
(a)establish and maintain an effective system of inspection . . . or
(b)ensure that any consumers’ electric installation is individually inspected in accordance with regulation 254.
Regulation 253(2)(a) provides that the system of inspection is to:
(a)relate to work on all types of consumers’ electric installations, whether new or by way of alteration –
Now, this is a right to have a system, and the obligation of inspection only arises when consumers install electrical installations or alter them. The remainder of regulation 253 refers to the obligation and powers of the certified inspector – and I do not need to go into the detail.
STEWARD J: Can I ask you, regulation 253(5), in particular (b):
If . . .
. . .
(b)the network operator, or the system of inspection established by the network operator, does not require that an inspection be carried out –
then:
in any particular case or in relation to any class of case, the inspector, the network operator and the Director shall not be liable, in civil or criminal proceedings, for any injury or damage occasioned by reason that the inspection was not carried out.
Is that something you rely upon?
MR DHARMANANDA: We do and we did below. Originally, the common law claim put against us included reliance on regulation 253 – that was abandoned when each of the plaintiffs and Mrs Campbell closed their case. It was abandoned because we relied the fact that the provision is entirely incompatible to support a common law duty of care – in that it permits a system – does not require individual inspection and, in any event – as your Honour has pointed out, regulation 253(5) ‑ ‑ ‑
STEWARD J: Do you say there is an inconsistency between the common law duty and the right to elect between 253 and 254?
MR DHARMANANDA: We say once there is a right to elect so that you can inspect by sample, the idea that there is a compatible common law periodic asset inspection duty – which is broader than that – generates an incompatibility.
GORDON J: It is not really an election by sample, is it? One is an election system under (a), and the other, (b), is individual inspection in accordance with installation.
MR DHARMANANDA: Yes, the system ‑ ‑ ‑
GORDON J: You say the system is the sample?
MR DHARMANANDA: Permits – does not require individual inspection, but rather permits ‑ ‑ ‑
GORDON J: I see ‑ ‑‑
MR DHARMANANDA: And can I explain the logic of that, your Honour?
GORDON J: No, I understand the logic, I think.
MR DHARMANANDA: Yes.
GORDON J: But can I ask this question, then? The engagement of Thiess to carry out the work under the manual, was that in compliance with 253? Was that tied to 253?
MR DHARMANANDA: No, your Honour, because 253 is directed to work done by an electrician for the consumer ‑ ‑ ‑
GORDON J: I see.
MR DHARMANANDA: That is the driver. The logic is, we have our system; consumers need to connect to the system. When they connect their apparatus, it needs to be safe. Originally, every time there was a connection, you would inspect to make sure it is safe. But, as the State grows, that becomes too costly, so the regulation permits a system to be developed and effectively entrusts licenced electricians – because they need to be licenced and they need to be competent – to do it properly. Then, to ensure they are doing it properly, you inspect sufficiently to know that someone is watching.
GORDON J: Is that why the pre‑work inspection duty was tied to – because it was not incoherent or incompatible with 25(1)(a)?
MR DHARMANANDA: Correct, your Honour. Because at the point of work involving consumer property – because of the obligation to guard for safety reasons and the obligation that is in 25(1)(b) – you would not connect your apparatus to something that you know is unsafe.
GORDON J: The only reason why I ask is because this idea of alteration, which is what in effect happened here on the facts – that it was altered by removing the cable, which altered the weight of the poles on either side – that is sort of the same idea that underpins regulation 253, in this sense; this idea that if you are going to alter something then you have got to inspect it.
MR DHARMANANDA: Yes, your Honour. The idea is the same, but we are talking about two different things.
GORDON J: I understand.
EDELMAN J: Mr Dharmananda, would regulation 253 and 254, do you accept, give rise to a private action for breach of statutory duty?
MR DHARMANANDA: We would submit, no, because of 253(5), but I am not clear about the point of your Honour’s question.
EDELMAN J: A breach by an inspector of duty under 253 and 254.
MR DHARMANANDA: We say no, because of 253(5).
GORDON J: Is that it because it also sits – not that this is relevant – but with also with 3 because it says it is discretionary as well? We would have this sort of cascading, you have got the choice, discretion, not liable if certain preconditions are met.
MR DHARMANANDA: Yes.
EDELMAN J: But 253(5) is just a carve‑out, subject to that carve‑out if, for example, the inspection did not fulfil one of the criteria in (a), (b) or (c). The premise is that there would be a private action, would there not?
MR DHARMANANDA: So, your Honour, we are dealing with a system of inspection as regards consumer electrical installations. So, trying to determine who would have a cause of action for the inspector’s breach – we would submitted would not be the consumer, but let us say someone else suffers loss by reason of a failure to inspect properly. I do not ‑ ‑ ‑
EDELMAN J: Why would it not be the consumer?
MR DHARMANANDA: Well, the consumer has to do it properly. This is an inspection regime to determine whether the consumer has done it properly. And there is a suggestion that – I did not do it properly, you checked badly, so I have a cause against you.
EDELMAN J: Auditors are commonly liable for failure to audit companies’ books, and they would be liable to the company.
MR DHARMANANDA: I understand the point your Honour is making. I do not think that the Parliamentary intention was to generate a breach of statutory duty cause of action by force of a contravention, 253 and or 254, and that is a submission that we would make.
EDELMAN J: What is (5) carving out for? What is (5) giving immunity from, subject to the preconditions?
MR DHARMANANDA: What it is, I think, carving out from, is you did not inspect my installation under your system; loss has flowed. Because it permits a system, the point at (5) includes, you cannot complain about what the inspector has done in good faith.
STEWARD J: Or, importantly, what the network operator in its system has decided does not require inspection.
MR DHARMANANDA: Yes.
GORDON J: Can I ask two more questions?
MR DHARMANANDA: Yes, your Honour.
GORDON J: Just on these regulations, I had not understood it this way. Where it says “each network operator”, that does not extend to WP? You read it down to only extend to?
MR DHARMANANDA: I am sorry, your Honour?
GORDON J: In regulation 253, it says:
each network operator shall –
Is that not WP?
MR DHARMANANDA: It is WP.
GORDON J: So, what system does WP have in place consistent with regulation 253?
MR DHARMANANDA: It has a system consistent with 253 approved by the Director, and that was before the court below ‑ ‑ ‑
GORDON J: But not in issue here?
MR DHARMANANDA: Not in issue here because the 253, 254 cases were about ‑ ‑ ‑
STEWARD J: The findings at paragraph 224 of the trial judge, I think:
Western Power had established and maintained a system of inspection as required –
by these regulations.
MR DHARMANANDA: Thank you, your Honour.
GORDON J: I have got another question, I just want to make sure I understood that it is completely excluded – because it may influence the way you look elsewhere – is “consumer’s electric installation” does not conclude “consumer’s infrastructure”? Is that right? You do not know? That is alright.
MR DHARMANANDA: No, I do know – the way one gets to the answer is it does, but you need to go to the requirements and also ‑ ‑ ‑
GORDON J: I thought it did?
MR DHARMANANDA: – the wiring rules, yes.
GORDON J: I see. Because I thought the finding at 222 was that it did not include it, but I got that wrong.
MR DHARMANANDA: At 222. We submitted before the trial judge that ‑ ‑ ‑
GORDON J: At core appeal book page 73 paragraph 222, the trial judge, I thought, said did not include a consumer’s infrastructure. It may not matter, Mr Dharmananda.
MR DHARMANANDA: I understand, your Honour, I was trying to understand your question with precision. The consumer installation as defined refers to – and one gets at once back to the wiring rules, and other things – we made the argument below that the pole is different from the wires needed, so that is what his Honour’s finding at 222 is reflecting.
GORDON J: I see.
MR DHARMANANDA: But, your Honours do not have that maze of definitions to – at 254, your Honours will see in subsection (2), cross‑refers to the inspector’s powers under section 18(2)(a). So, the statutory scheme contemplates the inspection of consumer property, which may be by sample under an approved system, rather than requiring inspection in every case where there is a new electrical installation, or a change to it.
The supposed common law duty identified by the Court of Appeal, we submit, is incompatible with this ability to inspect by using that system. It is also incompatible – as we have mentioned – with the formal inspection regime by certified inspectors created by the Energy Coordination Act.
STEWARD J: Is it not – I will ask it again – is it not inconsistent with the ability to choose? The common law duty is immutable and requires you to do one standard of reasonable care, whereas this is giving you a choice.
MR DHARMANANDA: That is so, and we make that submission.
GAGELER J: Mr Dharmananda, I am sorry to be slow, but inspectors appointed under the Energy Coordination Act can be inspectors appointed to inspect your property, can they not?
MR DHARMANANDA: Yes.
GAGELER J: So, there is nothing special about consumer property.
MR DHARMANANDA: No.
GAGELER J: Again, I just cannot see how this helps you.
MR DHARMANANDA: We say, if you have an obligation of routine consumer inspection, that is incompatible with a scheme that gives the inspection a peculiar inspection right for safety reasons with an express power of disconnection for safety reasons to an inspector. So, an overlay of a separate common law inspection obligation, we say, is incompatible with the scheme.
EDELMAN J: It may be – part of the difficulty, Mr Dharmananda, may be – it is not just directed to your argument, but that we are, in a way, starting at the wrong end, starting at the question of incompatibility, whereas, at least on one view, the starting point ought to be from what powers does the common law duty arise. Statutory body does not have any power to do anything unless it is given powers to do so by the Parliament. The common law duty can only operate upon the exercise of those powers. So, one needs to start with what the powers are that give rise to the duty before then determining whether there is something else in the legislation that gives rise to an inconsistency with a common law duty arising from a negligent exercise of those powers.
MR DHARMANANDA: Yes, your Honour. We make the submission that the powers given to us are directed to meeting our statutory obligations.
GORDON J: But that is just too broad. Sorry. I mean, it seems – you are not given powers to provide infrastructure.
MR DHARMANANDA: No.
GORDON J: You are given powers to provide infrastructure under what would arguably be seen to be, complicated, various Acts’ prescribed conditions and impositions.
MR DHARMANANDA: Yes.
GORDON J: Just take the powers of entry. Some of them are with consent, some of them are without consent, some of them for functions. I mean, that is a big question: what is it that is the principal functions and powers? What are the prescribed limits? You have taken us to some of them – SWIS, you can delegate, you have discretion how you do certain of them.
MR DHARMANANDA: Yes, I think I am in heated agreement with your Honour. The submission we make is pointing to power as if one can does not really generate a conclusion one must. One has to work out why is that power given and what is your job, and our submission is the powers are given to us for a particular job of transportation, not ensuring consumer property is safe.
EDELMAN J: So there is something of a gap in the reasons of the Court of Appeal. It may be a gap that can be filled by submissions, it may not, but at 156 the Court of Appeal identifies that there is a range of powers and functions that a statutory authority has that informs the existence and content of a duty of care, and then at 165 those powers and functions turn into a duty to establish a system to undertake periodic inspection.
GORDON J: I would add then 180 at the end seems to reclassify it as some sort of different kind of duty attached to a power. It seems to invert it.
MR DHARMANANDA: Yes, I am going to make submissions along the lines of what your Honours Justice Edelman and Gordon have put to me very shortly. But we embrace the point that if you start with a general statement of duty, as the Court of Appeal does, the process of reasoning by which you get to the reasonable precaution that is asserted is a process of reasoning, one says with great respect, that involves a degree of retrospectivity in that what happened here, a pole fell down, there must be a routine asset inspection as regards to poles, pick up a point that Justice Gordon raised with me earlier – well, what happens if the house fell down? Is there a routine house inspection duty? Each of those steps involve retrospectivity. I will come to that.
The next enlightening regulation is the Electricity Industry (Obligation to Connect) Regulations 2005, which is in tab 18. I do not need to go to it in any detail, your Honours have seen it.
One of the steps that the Court of Appeal took in reasoning that Western Power owed a duty of care is its assertion that Western Power chose to use Mrs Campbell’s pole to support its service cable to transport electricity, and that is 154 of their Honours’ judgment. We did not have any chance either at the time when the fire occurred, or when Mrs Campbell’s husband provided the PA pole to obtain electricity supply at the property.
The obligations, regulations, are at tab 18, page 496. I do not need to go to them. Can I then go what was the position when Mrs Campbell’s pole was originally installed? The relevant regulations were the Electricity Act Regulations 1947, which is in the book, volume 2, tab 14, page 403.
STEWARD J: Sorry, which tab was that?
MR DHARMANANDA: Tab 14, my learned junior tells me, page 403.
STEWARD J: Thank you.
MR DHARMANANDA: Now these were promulgated in 1968 and were applicable at the time when the pole was installed on the findings of the Court. May I take the Court to page 423? Your Honours will see regulation 183 on that page at about point 30. Can I just summarise the effect of these 1960s written material, which takes a little time to digest. Regulation 183 provides that:
No electrical installation shall be connected . . . unless carried out by a person licensed –
Regulation 184 provides that, and I am putting the effect of them, if there is non-compliance, the supply authority may notify the consumer to conform. Regulation 185 provides if there is a failure to conform, the installation may be disconnected. Regulation 186 provides that nothing prevents:
the Supply Authority from immediately disconnecting any installation –
if an inspector is of the opinion that it is:
dangerous or likely to become dangerous.
Implicit within these provisions is an obligation to connect if there is compliance by the consumer with their obligations. Regulation 188 on page 424 provides that the inspector is to:
inspect and test every new installation before –
connection. Regulations 189 to 198 deal with the inspections and how an inspector is regulated. Regulation 201 on page 425 requires:
Any obvious defect –
when alteration work is done to:
be reported by the electrical contractor or electrical worker . . . to the supply authority.
Regulation 202 provides that the connection – and this provision is important – provides that:
The connection of an installation to supply mains shall not relieve the owner or occupier of any premises from the obligation –
to make their installation compliant. Regulation 206 provides that:
The Supply Authority shall take its aerial service leads to the consumer’s point of attachment up to a distance of 60 feet from the street alignment boundary –
That is regulation 206.
At the trial, Mrs Campbell accepted that the PA pole was provided by Mrs Campbell’s husband. It was not required to be provided by Western Power’s predecessor. The PA pole was always owned by, and the responsibility of, Mrs Campbell.
Regulation 218, on page 427, provides that:
All poles shall be set at sufficient depths in the ground . . . to permit of the required strength . . . and no work shall proceed on any pole until the foundations are safe.
Regulation 219 provides that:
All poles carrying electric cables are to be maintained in good condition, and to be of sufficient strength to support the cables, and, with a view to preventing injury (as in the case of wooden poles by rot, white ants, etc.) are to be examined every twelve months, and any pole found to be unsound shall be made safe or replaced.
That obligation applied to the supply authority as to its own poles; the obligation applied to a consumer as to a consumer’s poles. The language in regulation 219 is passive because the obligation applies to persons relevantly responsible. That construction is consistent with regulation 202, that:
The connection of an installation to supply mains shall not relieve the owner or occupier –
of their obligations. The fact that a consumer is responsible for a consumer’s pole did not change when the 1968 version of the Electricity Act Regulations1947 were relevantly repealed. The point was retained in the WA electrical requirements that applied to consumers – and I am going to come to that in a moment.
If one steps back from the detail, Mrs Campbell and her husband provided the PA pole and were responsible for the electrical installation, which had to be safe. It is necessary to explain how and when Western Power or its predecessors at some point after the installation of the pole picked up a duty to inspect. If Western Power owed a duty of care, it is hard to explain how a consumer’s sole responsibility for the installation, including their pole, somehow shifts and becomes primarily the network operator’s responsibility. That shift in responsibility clashes with the scheme that has applied for more than 70 years.
EDELMAN J: That is because you interpret 219 as a conferral of sole responsibility.
MR DHARMANANDA: We do and we draw support from that because of 202. Can I go to the WA Electrical Requirements as applicable at the time of the fire? That is in the appellant’s book of further materials of 23 June 2022, and it starts at page 52, tab 3. May I go to the preface at page 53? The first paragraph, in effect, provides that EnergySafety issued these requirements. The fourth paragraph, at about line 18 states that:
The document provides an authoritative reference for the safe and efficient connection of consumer’s installations to electricity networks. Mandatory safety and technical requirements . . . are set out it in Sections 1 to 12.
KIEFEL CJ: What is its statutory basis?
MR DHARMANANDA: It is the 1991 regulations, to which I will come, your Honour. Then, the fifth paragraph, about line 25, it says that the requirements are:
a mandatory guideline under Regulation 49 of the Western Australian Electricity (Licensing) Regulations 1991.
And it says these requirements:
should be read with the Electricity Regulations 1947, Part VIII, and the Electricity (Licensing) Regulations 1991. Both sets of regulations take precedence.
Paragraph 7 at about 31:
The requirements within Sections 1 to 12 are mandatory unless the Director . . . grants a prior written exemption.
And it is said that:
Failure to comply . . . may result in prosecution –
Can I please go to page 57? The first paragraph:
While the [requirements] refers to responsibilities of consumers . . . in many instances these are carried out by a licensed electrical contractor or other authorised person . . . on behalf of the consumer.
Then if I may take the Court to page 58, the definition of “consumer pole”. It is defined as:
A pole supplied, installed and maintained by the consumer, on the consumer’s property –
There is also a definition of “consumer pole (point of attachment)”, which is defined as a compliant pole:
supplied, installed and maintained . . . on the consumer’s property, used to terminate the network operator’s overhead service cable on the consumer’s mains –
There is a reference to Figure 2.3 Figure 2.3 is at page 60. Your Honours will see the diagram which, at the foot of page 60, refers to the “consumer’s pole (Point of Attachment)” and states that it is owned and maintained by the consumer. Then, page 79, section 4.7 deals with the “Consumer and Point of Attachment Poles.” The last paragraph, at about line 30, says that:
A network operator may elect to install the consumer and/or point of attachment poles . . . but the consumer remains responsible for the continuing maintenance of such –
KIEFEL CJ: I am sorry, where are you reading from, Mr Dharmananda?
MR DHARMANANDA: Page 79, your Honour, at line 30.
KIEFEL CJ: Yes, thank you.
MR DHARMANANDA: So continuing maintenance is the consumer’s responsibility after the 1968 version of the regulations are repealed by the 1991 Act and these requirements come into play. In our submission, Mrs Campbell was required to maintain her PA pole. The supposed duty of care owed by Western Power requiring Western Power to take the precaution of routinely inspecting consumer point of attachment poles we submit is incompatible with Mrs Campbell’s sole obligation of maintenance of the pole.
Mrs Campbell’s obligation to inspect and maintain was in regulation 219, until regulation 219 was repealed in 1991 when the 1991 Electricity (Licensing) Regulations came into effect. When those regulations came into effect, the requirements required, as I have said, consumer point of attachment poles to be installed and maintained by the consumer. So, at all times, the supposed duty of care owed by Western Power requiring the proportion of routine inspection of consumer poles was incompatible, we submit, with the scheme.
At all times, a consumer had to provide any necessary pole to obtain connection to electricity at their property. Western Power, or its predecessors, had to connect when the customer complied with its obligations. Western Power could not disconnect unless of the opinion of potential danger. A common law consumer asset inspection obligation, we submit, is incompatible with this regime.
Can I go quickly to the Electricity (Licensing) Regulations 1991, which is in tab 20, volume 2, page 515, and go to page 522. Regulation 49 provides, in effect, that a person must do:
electrical work in accordance with the requirements –
That is (b). Now, can I take the Court back to page 520? Your Honours will see the definition of electrical work in regulation 4A(1). It is, in effect:
work –
. . .
(ii) on an electrical installation; or
(iii) on electrical . . . equipment –
If your Honours go back to regulation 3(1), “electrical installation” is defined as including any:
components . . . connected to or associated with the wiring . . . on premises to which electricity is . . . supplied through distribution works –
Then regulation 50, page 524, in effect only permits an authorised person to carry out electrical work and otherwise requires electrical work to be “effectively supervised”. Regulation 51(1), page 527, provides that:
Subject to subregulation (2), an electrical contractor who carries out any notifiable work –
must first give a notice to the “relevant network operator”. Regulation 51(2) provides that 51(1):
does not apply to notifiable work –
relevantly under regulation 51(2)(c):
carried out . . . if the work does not require –
(i)an alteration to service apparatus or distribution works; or
(ii)disconnection from . . . distribution works –
Then can I go back to regulation 3(1) and the definition of notifiable work? At page 518 it defines “notifiable work” as:
electrical installing work other than –
(a) maintenance work, unless that work requires the disconnection and reconnection of the supply of electricity –
The effect of regulation 51 is that it permits a licenced electrical contractor to do work, including work that involves the disconnection of electricity supply from Western Power’s network and the replacement, for example, of a defective pole.
It is incorrect to suggest that Western Power, and not Mrs Campbell, had control of the pole so that Mrs Campbell could not inspect and maintain it and, if necessary, replace it. Mrs Campbell could have engaged a licenced electrical contractor to do this so long as notice was first given to Western Power. The submission made by Mrs Campbell – I am sorry, I need to first go to – there is a finding to that effect by the Court of Appeal at page 294.
GORDON J: To what effect?
MR DHARMANANDA: Paragraph 294, page 481 of the core book. Your Honours will see a sentence about halfway through that paragraph 294, page 481:
As the owner of the PA pole, and the owner and occupier of the land on which it was situated, Mrs Campbell had control over the PA pole and the capacity to arrange for its inspection, reinforcement and, subject to requesting Western Power to disconnect the service cable, replacement of the PA pole.
The point made in Mrs Campbell’s reply submissions of 30 June 2022 at paragraph 13 is therefore incorrect. Mrs Campbell could have replaced the PA pole after giving notice to Western Power. It is incorrect to assert that work that involves disconnection and reconnection is not notifiable work. The definition of notifiable work – and regulation 3(1) appears to have been misread in that submission. Can I ‑ ‑ ‑
GAGELER J: Mr Dharmananda, just connecting the Electricity Licensing Regulations with the document you previously took us to – the electricity requirements – where is the empowering provision in the regulations to promulgate the requirements, and what coercive force are they given?
MR DHARMANANDA: Your Honour will see in page 519, the WA Electrical Requirements are defined as:
The Code known by that name, as issued by the Director –
and under the “Coordinator”– the Energy Coordination Act, the Director is given that power.
GAGELER J: Where do we find the provision that makes the requirements binding on someone?
MR DHARMANANDA: The point that 41 makes is that you must carry out the electrical work as defined in 49(1), page 522.
GAGELER J: That is any person?
MR DHARMANANDA: Yes.
GORDON J: I am going to ask one more question just about that. Do we have the regulation‑making provision which gives rise to the WA Electrical requirements in the material?
MR DHARMANANDA: I do not think you do, but I can – I do not think so. Can I go quickly to the Energy Operators (Powers) Act 1979, tab 25, page 581? May I draw the Court’s attention at page 586 to section 4(2), which, in effect, expressly provides that if:
an energy operator –
which is defined to include Western Power as an electricity corporation, is authorised to:
enter upon, occupy, carry out works in . . . premises –
either an employee or an independent contractor is authorised. Then, the last part of section 4(2) expressly provides at any reference to a liability of the energy operator is to be construed as a reference to the independent contractor authorised to do work. An energy operator is given powers of entry in section 28(3)(c), section 48, and 49. It is not necessary to go into the detail of those provisions.
We have two short points, mainly because Western Power has no power of entry. Even assuming it had a right to replace the PA pole, that, in our submission, is insufficient. The rights given by the Energy Operators (Powers) Act 1979 are given for the purposes of, and subject to the Act. That appears, for example, in the chapeau to section 49 at page 594. There is no clear power given to Western Power to inspect consumer property so as to be able to warn about defects in consumer property.
KIEFEL CJ: Mr Dharmananda, could I just take you back to the WA Electrical Requirements? Were there findings made by the primary judge in relation to this?
MR DHARMANANDA: I do not recall, your Honour. I do not think his Honour made findings.
GAGELER J: There are assumptions in that document about allocation ‑ ‑ ‑
MR DHARMANANDA: There are.
GAGELER J: ‑ ‑ ‑ of responsibility but the assumptions are not themselves binding. When somebody does work, they have to comply with ‑ ‑ ‑
MR DHARMANANDA: That is so, your Honour.
GAGELER J: ‑ ‑ ‑these provisions but otherwise I am just not sure conceptually what we get out of the document.
MR DHARMANANDA: The way we put it, your Honour, is, from the 1968 version that was applicable to Mrs Campbell, she had the obligations to which I have taken the Court. Her husband was responsible for, and did provide, the pole, and, there were inspection obligations. Then, when the 1968 regulations were repealed and replaced by this regime, the same conception continued.
Even if it is true, and your Honour is correct, with great respect, it is absolutely true that the installation obligation did not trigger on Mrs Campbell because it had already been installed, but the point we are making is there is a continuity of expectation of maintenance by the consumer. That is how we put our point.
EDELMAN J: A continuity of expectation of exclusive maintenance by the consumer.
MR DHARMANANDA: That is how we put our point.
GORDON J: Is another way of putting your argument that – and not that power particularly, but the other powers condition the exercise of the powers in terms of inspection and that is the limit of your client’s responsibility?
MR DHARMANANDA: True, it is. We put that way as well, your Honour. The way we put it is, if you bifurcate inspection and maintenance as one of the Court of Appeal’s reasons, to which I have taken the Court, would do, it becomes a very strange concept because there is a duty to inspect – or a precaution to inspect – to tell someone else about their duty. We say the “maintain” in 25(1)(a) required us to look at it to maintain it, and fix it or replace it, that which belonged to us. But the idea that that included an obligation to inspect something to tell someone else to fix it seems incoherent and not intended by the Parliament.
May we make the submission – your Honours will be glad to know that that is the legislation, I am hopeful, for my purposes today. May I make the submission, no case establishes that a network operator responsible for electricity transport owes a duty of care so that it must take reasonable precautions to avoid the risk posed by consumer property not part of the network.
The fifth respondent, Thiess, argues to the contrary and we submit the cases on which Thiess relies are not to the point. Can I go quickly to them? The first of them is Thompson v Bankstown Corporation (1953) 87 CLR 619. It is in the joint book at volume 7, tab 56, page 2641.
As your Honours would recall, the duty of care found against the Bankstown council was a duty in relation to the Council’s decaying pole that had been erected by the Council on the public road. A 13-year-old boy was injured when climbing the decaying pole trying to reach a bird’s nest. The Court found the duty of care was owed because the Council had control of the network. The argument that the boy was a trespasser, to whom no duty was owed by an occupier was rejected because of the Council’s control over its network.
May I go to Chief Justice Dixon and Justice Williams’ judgment at page 623 of the Commonwealth Law Report version. Your Honours will see, at the beginning of their Honours’ judgment at about point 3 where the Chief Justice and Justice Williams say, at the end of the first paragraph:
The other category forms part of the general law of negligence and relates to the duty of exercising a high standard of care falling upon those controlling an extremely dangerous agency, such as electricity of a lethal voltage.
Then page 628 of the Common Law Reports, in the first new paragraph on the page at about point 3 on the page, the second sentence:
The law which, in our opinion, should be applied to such a case as this is that which imposes a duty of care upon those carrying on in the exercise of statutory powers an undertaking involving the employment of a highly dangerous agency.
The same point is made at page 629 in the new paragraph on that page at around point 3, which I will not read. Justice Kitto, in his Honour’s judgment at 641, at point 8, on the page says that the pole belonged to the council. Then at 644, at point 6 on the page, his Honour said:
The occupation of land which the respondent had was for the purpose only of the transmission of high‑voltage electricity, and it was sued as having been in control of an electric power system in a highway.
So, the case was about the argument that this case was an occupier liability case. The Court held no, it is not a lesser duty is owed to a trespasser, but rather there was a duty of care arising by reason of control of the network as regards poles that the network owned. Therefore, in our submission, Thompson does not support a duty of care that requires the precaution of conducting routine asset inspections of consumer property not controlled by the network operator.
Munnings v Hydro‑Electric Commission (1971) 125 CLR 1, which is in the joint book of material, volume 5, tab 43, Munnings was a case where the Hydro‑Electric Commission was found liable for the injuries of an 11‑year‑old boy who suffered by being electrocuted when he climbed a metal and concrete pole that had been constructed by the Commission. Again, the Commission’s duty related to its network and to a pole that it had constructed and owned. The case does not support a duty to take reasonable care to guard against a risk of fire arising from defects in consumer property, giving rise to a required precaution of routine asset inspection ‑ ‑ ‑
KIEFEL CJ: That is not to say much more than that it applies to a different set of facts.
MR DHARMANANDA: Yes.
KIEFEL CJ: But none of these cases come close to the set of facts we have here.
MR DHARMANANDA: No.
KIEFEL CJ: How useful are they?
MR DHARMANANDA: My learned friend Mr Gleeson says they establish a duty of care that my client owes, and, in our submission, they do not.
KIEFEL CJ: I see.
GORDON J: To be precise, as I understand what he says is this, at 26, drawing them together, where Western Power transmitted electricity to the pole, in circumstances where those in the vicinity of the transmission might reasonably suffer harm. That Western Power had a duty.
MR DHARMANANDA: Yes, in our submission, these cases are about duties owed by the network operator as regards their own property. When analysed, they do not extend to a general proposition that my learned friend Mr Gleeson puts.
GORDON J: As I understood your submissions – and maybe I got this wrong – is that I had thought you distinguished them on an additional basis and that was that the statutory framework was different.
MR DHARMANANDA: Yes, we do.
GORDON J: So, am I right about that?
MR DHARMANANDA: Your Honour is correct about that. No framework, no statutory regime requires inspection and warning as regards consumer property in our case, and these cases are not about any regime that assists the Court as regards to the alleged duty and precautions in this case.
KIEFEL CJ: That might be a convenient time, I think, Mr Dharmananda.
MR DHARMANANDA: May it please your Honour.
KIEFEL CJ: The Court will adjourn until 2.15.
AT 12.45 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.15 PM:
KIEFEL CJ: Mr Dharmananda, in the search for this elusive source of power for the Director to make the electrical requirements code or document, section 33AA of the Electricity Act, which, I think, has been there since 1988, provides that the Director may publish guidelines. That is not the source of this power?
MR DHARMANANDA: It is, your Honour. I was going to also take the Court – I shall do so now ‑ ‑ ‑
KIEFEL CJ: So, if section 33AA is the source of the power of the electrical requirements, I think there was then a change to regulation 49 by the addition of subregulation (2a) in 2008, just before the current requirements document was brought into being. Is that right? Which allows the Director to vary the requirements or specify – vary the requirements in the electrical requirements document ‑ ‑ ‑
MR DHARMANANDA: I am just turning up the licencing regulations. Yes, your Honour.
KIEFEL CJ: So, if section 33AA is the source of the power, although they are said to be guidelines under subsection (2), you would rely upon what is said there about specifying standards, practices and procedures to be followed as consistent with the wording of ‑ ‑ ‑
MR DHARMANANDA: Yes, your Honour.
KIEFEL CJ: ‑ ‑ ‑ the electrical requirements code.
MR DHARMANANDA: Yes, your Honours. And section 49(1), which requires its compliance.
KIEFEL CJ: Yes.
MR DHARMANANDA: I was going to say, and I should say, that under the Energy Coordination Act 1994, section 7(a)(i), states that the function of the Director of Energy Safety include:
those vested in the Director by or under –
(i)the Electricity Act –
And then the Electricity Act permits regulations under section 32 as regards 32(1)(f) of:
examination, qualifications and licencing of electrical workers –
and regulation 32(1)(p) as to:
the safety of persons employed in or about –
Relevantly:
electrical works.
GORDON J: Is this set out somewhere in a sort of useful ‑ ‑ ‑
MR DHARMANANDA: It is not, but we can prepare a note.
KIEFEL CJ: A table setting this out might be useful.
MR DHARMANANDA: We will do so, your Honour.
KIEFEL CJ: Yes.
MR DHARMANANDA: Thank you, your Honour. I was dealing with the three cases said to support the duty. May I just mention, without going to it, the third case relied on by Thiess, namely, Brocklands Pty Ltd v Tasmanian Networks Pty Ltd, which is not reported, but the media neutral citation is [2020] TASFC 4 and it is under tab 63 in the joint bundle, volume 8, at page 3052. That case is also not on point in that, in that case, there was an interruption of electricity supply to a nursery business because of defects in a pole or transformer or related failures in the pole and transformer that was owned by and had been installed by Tasmanian Networks’ predecessor, the Hydro‑Electric Commission.
The nursery business’ claim for damages succeeded. The case is not authority that supports a duty of care requiring the precaution of routine asset inspection of consumer property. All of the apparatus in that case was owned and controlled by the Tasmanian Networks.
KIEFEL CJ: Mr Dharmananda, I think that Thiess say that the duty of care found by the Court of Appeal at paragraph 158 is analogous to the duty of care in these cases, what do you say about that?
MR DHARMANANDA: We say the analogy is imperfect and does not arise for the reasons that we have developed, namely, there is a point of demarcation between the network operator and its control of its own network, which does not, by analogy, give rise to a duty of care that would require as a precaution taking the reasonable precaution of inspection of consumer property.
GAGELER J: Really, this whole case is about the margin of your admitted duty of care, is it not?
MR DHARMANANDA: In one respect, yes, but that margin is – where that margin is and where that interface lies depends on two things: scheme and control. I will be repeating myself, and your Honour is aware of the point we make about why we say because of the scheme, and because of no control, and no requirement to control, no duty arises.
GORDON J: Just so that I am clear, does that scheme analysis pick up both ways in which it has been put to you, i.e. that one would ordinarily need to find a common law duty that attached to a statutory authority’s function in terms of its manner of exercise, and then the opposite way of looking at it – not opposite, but another way of looking at it is to say that the broader duty of care is incompatible, incoherent or inconsistent? You may be looking at the same thing through a different lens. Is that how we are to understand your submissions?
MR DHARMANANDA: Yes. One can look at it both ways, and I am going to come to the very few authorities dealing with why power is, in the first way of putting it, a condition precedent of necessity required for a common law duty to arise in a statutory scheme.
GORDON J: Is that to say any more that you must identify within the statutory scheme the power to which the common law duty attaches?
MR DHARMANANDA: It is saying so much.
KIEFEL CJ: And it is your argument that the common law duty cannot extend the statutory obligation?
MR DHARMANANDA: Our argument is a common law duty cannot extend beyond what the Parliament intended if there is the negative propositions arising from the scheme.
KIEFEL CJ: I suppose the question is what – the starting point is the scheme.
MR DHARMANANDA: It is.
KIEFEL CJ: It is where you go from there.
MR DHARMANANDA: Yes. So, our proposition is, it cannot be true that no common law duty could ever be erected alongside a scheme, but it is always true that if a common law duty is incompatible or incoherent with a scheme, it could not arise.
EDELMAN J: It depends what you mean by “erected alongside the scheme”. It sits alongside the scheme only in the sense that the scheme is what gives the statutory corporation its powers to act.
MR DHARMANANDA: Yes, your Honour.
EDELMAN J: Does your conceded duty rise any higher than section 25?
MR DHARMANANDA: It does not. Can I say this about the authorities, and I ‑ ‑ ‑
GAGELER J: Let us go back to that answer. You do accept a common law duty to maintain your own network assets ‑ ‑ ‑
MR DHARMANANDA: Yes, we do.
GAGELER J: ‑ ‑ ‑in a way that minimises the risk of fire.
MR DHARMANANDA: Yes, we do.
GAGELER J: Thank you.
MR DHARMANANDA: The particular subject matter to which section 25 is directed is consumer premises. In Australia, as your Honours know, the basis on which the common law determines that a public authority is liable in negligence has developed over the last 20‑odd years. The Court has moved away from notions of general reliance and emphasised the importance of starting first with the relevant scheme. The Court has also emphasised that unless the public authority took actual control, or was required by statute to take control, or was made responsible by statute for the relevant risks, no duty will arise.
We referred to the cases, in our primary submissions, at paragraphs 30 to 45, and 67 to 69, and in our reply submissions at paragraphs 6, 7, 17, 18, 21 and 23. I do not propose to go to those cases save for – may I take the Court please to Stuart v Kirkland‑Veenstra (2009) 237 CLR 215 – it is in the joint book of authorities volume 6, page 2271.
EDELMAN J: Sorry, which tab was that?
MR DHARMANANDA: Tab 50. The Court held that the police officers owed no duty of care to apprehend Mr Veenstra. No duty arose even though it appeared as if Mr Veenstra might have attempted suicide, and even though the police were empowered to apprehend a person who appeared mentally ill if they had reasonable grounds to believe that the person may attempt suicide.
We go to the case because it synthesises many of the Court’s authorities as to the liability in negligence of public authorities. May I please first go to Chief Justice French’s judgment at paragraph 52, at page 239, of the common law reports. Chief Justice referred to Pyrenees Shire Council v Day (1988) 192 CLR 330 – the relevant passage at paragraph 125. There, Justice Gummow made the important point that the primary requirement is to analyse the legislation to determine whether a coherent common law duty can arise.
May I then please go to paragraph 75 of the joint judgment of Justices Gummow, Hayne and Heydon, where their Honours said that it was accepted that it is necessary to begin by considering the scheme. Then, may I please to paragraphs 112 to 114, and may I read:
There can be no duty to act in a particular way unless there is
authority to do so. Power is therefore a necessary condition of liability but it is not a sufficient condition. Statutory power to act in a particular way, coupled with the fact that, if action is not taken, it is reasonably foreseeable that harm will ensue, is not sufficient to establish a duty to take that action. Rather, as was pointed out in Graham Barclay Oysters Pty Ltd v Ryan, the existence or otherwise of a common law duty of care owed by a statutory authority (or in this case the holder of statutory power) “turns on a close examination of the terms, scope and purpose of the relevant statutory regime”. Does that regime erect or facilitate “a relationship between the authority [here the holder of statutory power] and a class of persons that, in all the circumstances, displays sufficient characteristics answering the criteria for intervention by the tort of negligence”?
Evaluation of the relationship between the holder of the power and the person or persons to whom it is said that a duty of care is owed will require examination of the degree and nature of control exercised over the risk of harm that has eventuated, the degree of vulnerability of those who depend on the proper exercise of the relevant power, and the consistency or otherwise of the asserted duty of care with the terms, scope and purpose of the relevant statute. Other considerations may be relevant.
In the present matter, as in a number of cases about the exercise of statutory power, it is the factor of control that is of critical significance.
EDELMAN J: Mr Dharmananda, does “control” there and in your submissions really mean anything more than the manner of exercise of a statutory power over some thing?
MR DHARMANANDA: The way we analyse “control”, it means either the actuality of taking control by the exercise of power which may be discretionary, or, it includes control in the sense that the statute requires control to be taken.
GORDON J: Both of those are sourced in the statute.
MR DHARMANANDA: Yes, your Honour.
GAGELER J: Mr Dharmananda, I just wonder whether this line of cases is slightly to one side of where we are here. You can call your client a public authority if you like, but I might call it a public utility, or even a service provider. It is set up under statute, as railways typically have been, port authorities – but they actually provide a service, and they interconnect – I am not using that in any technical way – with those to whom the service is provided. Are we talking about control in the same sense as in Stuart v Kirkland‑Veenstra and Graham Barclay Oysters, or is it a different notion of control that you are talking about?
MR DHARMANANDA: In our submission, it is the same notion of control we are talking about here, in that we have a statutory body, it provides services, it has powers, and there are demarcations as to its responsibility. If the statutory body, like in the Pyrenees case, decides to engage in the field and tries to stop the chimney from causing fire, but then fails to exercise that power with reasonable care, a duty may arise.
If, however, there is power but no exercise of it, and no requirement by the statute to exercise it, then there is no control, and it is that concept which we say is apposite in this circumstance, like in those other cases.
KIEFEL CJ: When you speak of control as involving the entry upon the exercise of a power, that seems to be the assumption upon which the Court of Appeal proceeded in this case, both in relation to the scope of the duty of care and breach, that Western Power had actually entered upon the exercise of the power.
MR DHARMANANDA: Yes, and we say no, for the reasons I have developed – that is to say – the exercise of our power is the exercise of our power as regards the distribution works. The exercise of our power does not extend to anything to do with the consumer’s pole, that is required by the consumer to obtain and supply with electricity. I will come back to the difference of viewpoint as to whether this is an exercise of power case, or an ability to exercise power case in a moment.
KIEFEL CJ: Obligation to exercise power case.
MR DHARMANANDA: Obligation – and we say no obligation, because of the scheme.
EDELMAN J: The simple point is that if all a statute does is confer a power and expressly not impose a duty, then the failure to exercise that power cannot be converted by the common law into a duty because that would contradict the very choice that the Parliament has made.
MR DHARMANANDA: That is our point, your Honour.
EDELMAN J: But where the statute confers a power and the body engages upon, or begins to exercise that power, then one gets into the field of whether one uses the labels like “control” or so on, it is a condition upon the exercise of the power that it usually – that it be exercised in a reasonable way.
MR DHARMANANDA: Yes, your Honour.
GAGELER J: So, is this an argument about misfeasance as opposed to non‑feasance? Are we going back to that distinction?
MR DHARMANANDA: We are not using that distinction with that purpose, but it is a distinction that is alive in the point we are discussing, your Honour.
EDELMAN J: But the Court of Appeal has expressly found that this was not a case of non‑feasance. There was an express finding that this was a case of entry into the exercise of a power.
MR DHARMANANDA: We cavil with that characterisation, for the reasons I have developed, and will develop in a moment. Staying with Kirkland‑Veenstra, may we just note paragraph 115, without reading it where Crimmins is explained as a case where there was control. May I also ask the Court to note 116 and 117, without reading it, where Pyrenees is explained in 117. May I then please go to 118, page 256. Their Honours said:
In the present matter, the complaint is not about the care with which a statutory power was exercised; it is a complaint that the power was not exercised.
We say that is our case. And then the question arises as to why it needs to be exercised and whether there is a duty to exercise it. Then, may I please refer to Justice Crennan’s and Justice Kiefel’s, as the Chief Justice then was, judgment at paragraphs 129 to 130. Their Honours held that a public authority with statutory powers does not owe a duty by force of that power alone. May I read the last sentence of paragraph 129:
The relevant concern of the common law is whether a public authority might nevertheless be considered to be under a duty of care which obliges it to exercise its powers in a particular way.
Then in paragraphs 131 to 139, their Honours considered a number of relevant factors going to duty. Paragraph 133, “vulnerability”:
has not been universally accepted as a useful –
Paragraph 136 to 137:
The measure of control –
given to or used by the authority may be:
the touchstone of its liability –
Paragraph 138, the questions of control are determined by:
Reference to the statute –
only:
Where a statute provides significant and special measures . . . towards the risk of harm to a class –
Can it be said that the authority has a duty. That is, a duty might arise where statutory power is conferred for the very purpose of exercising reasonable care to prevent a particular risk of harm. Paragraph 139 ‑ ‑ ‑
EDELMAN J: That category is the way their Honours explain Brodie.
MR DHARMANANDA: I did not hear you.
EDELMAN J: That is the way that their Honours explained the decision in Brodie v Singleton Shire Council ‑ ‑ ‑
MR DHARMANANDA: Yes, your Honour.
EDELMAN J: ‑ ‑ ‑ as on a proper statute, on its proper construction, the power is really a duty.
MR DHARMANANDA: Correct, yes, your Honour. Paragraph 139, their Honours then went to the cases and explained how the purpose of the provision in those cases were determinative of whether a duty arose. Paragraph 148, their Honours emphasised that a common law duty has to be identified first before giving it content and determining whether it was breached. I will not go to Graham Barclay Oysters v Ryan (2002) 211 CLR 540. It is in the book in volume 4, page 1121, but can I ask your Honours to note Justice McHugh’s analysis, when your Honours go to it, at paragraph 83 where his Honour quoted from Brodie where the factor of control was described as:
of fundamental importance.
At 84, Justice McHugh referred to Crimmins and the second consideration was whether the authority was in:
a position of control –
And importantly for our purposes, whether it had exercised that control. Actuality of control informs duty, not the mere power to enter the field. Can I now please refer to the Court of Appeal’s judgment at 152, which is in the core book, volume 1, page 441. We accepted that in supplying electricity using its own distribution system, we owed:
a duty to exercise reasonable care to deal with the risk of fire –
We also accepted that at the time when Western Power’s service cable is attached to a point of attachment pole, we have a duty to take reasonable care to see that the pole is safe for use.
The acceptance of both of these duties is compatible with the scheme. Western Power is required to transport electricity safely using its distribution system. That does not mean that Western Power is required to conduct routine asset inspections of property that is not part of the distribution system. Such an obligation would be incompatible, we submit, with the implied negative proposition that arises from section 25(1)(a), and the asset management system that Western Power is required to have under the Electricity Industry Act and its licence.
The obligation is also incompatible with the requirement to have a system for inspection of consumers’ installations under regulation 253 of the Electricity Regulations 1947, which permits inspection by sample. The obligation is not coherent with separate powers given to licenced inspectors to inspect and to require consumers to address any danger in their apparatus.
The pre‑work inspection duty, and the duty to take reasonable care to see that a pole is safe for connection of a service cable is compatible with – and indeed, we submit, required by section 25(1)(b). Western Power is obliged to take reasonable precautions to avoid the risk of fire in the actual supply of electricity up to the point at which supply is made to the consumer.
EDELMAN J: Where does that obligation come from? Your concession that Western Power owes a duty to exercise reasonable care to deal with the risk of fire from that system?
MR DHARMANANDA: We say in the actual supply of electricity we have to take reasonable precautions. So, if we connect our service cable to something, we need to check that it is safe to so connect.
EDELMAN J: So, is it only section 25 of the Electricity Act, or are there other sources of the power from which the duty arises?
MR DHARMANANDA: There is an obligation of reasonable care in 25(1)(b). The power in terms of powers under the (Powers) Act – using that shorthand – includes power to enter for the purposes of our functions. So, the source of the ability comes from those powers; the obligation comes from 25(1)(b).
EDELMAN J: So, the constraint, then, upon the duty that you can see is it comes back to the constraint upon the functions?
MR DHARMANANDA: Yes.
GAGELER J: So, just to understand your concessions, in paragraph 152, the first sentence is referrable to a common law duty of care and the second sentence is referrable to the duty under Section 25(1)(b) of the Electricity Act. Is that correct?
MR DHARMANANDA: The first sentence is as regards an obligation we have with respect to a network, and that would be a compatible common law of duty to take the care described. As to the second, the submission I am making is it – the obligation is within 25(1)(b) and if it arises under the common law, it is compatible with 25(1)(b) and hence it can arise. I think your Honour’s question is: is it only because of 25(1)(b) ‑ ‑ ‑
GAGELER J: That is right. You sometimes refer to section 25(1)(a) and (b) as carrying some sort of negative implication.
MR DHARMANANDA: Yes.
GAGELER J: If it does carry some notion of exclusivity, then presumably it excludes an overlapping or corresponding – even precisely corresponding – common law duty of care.
MR DHARMANANDA: I am not so sure that is correct, in this sense that if the implied negative proposition and a common law duty can be coherent. I do not think we are submitting that that coherent matter is negatively taken out.
GORDON J: I misunderstood it, then. I had thought that your tying of the pre‑work inspection duty to 25(1)(b) was directed at precisely the language that was put in 25(1)(b). In other words, I had understood it – and if I have got this wrong, then I would like to know ‑ ‑ ‑
MR DHARMANANDA: Yes.
GORDON J: That it was because it was to the point at which your service apparatus, in effect ended; and because that was the point, that was why there was this pre‑work inspection duty.
MR DHARMANANDA: Yes. I am making – there are two aspects to 25(1)(b). One aspect is in the actual supply of electricity, which – in that actual supply, you must take reasonable precaution to avoid fire. The second aspect, which your Honour is raising with me, is there is also another limit, up to a particular position.
GORDON J: This is why I am asking you the question, because if you are looking at express limits, then 25(1)(b) has, arguably, an express limit within it.
MR DHARMANANDA: Yes.
GORDON J: Does that not infect your answer to Justice Gageler?
MR DHARMANANDA: I am not sure that it does, in that the submission we are making is there are express limits – at least two in 25(1)(b), actual supply and up to a point – and there are negative propositions that also, we say, spring up from the words used in 25(1)(a) and (b). The question his Honour asked, I think was directed to whether our submission about the pre‑work inspection duty is that it must arise under 25(1)(b), and the answer, I think, I gave was it does not need to arise under 25(1)(b), so long as it is coherent with it.
GORDON J: I see.
STEWARD J: Can I ask a question now? I am sorry. In relation to the concessions of 152, with your own distribution network, is the basis of your common law duty that which arises out of section 18(1)(b) and (c) of the Electricity Act? Which gives you the power to:
install transmission and distribution works –
then the power to:
repair, alter or remove any such works.
That might explain your duty to look after your own transmission or distribution network, maybe.
MR DHARMANANDA: The answer, unfortunately, your Honour, is no. The reason for that is: section 18 is directed to a supply authority ‑ ‑ ‑
STEWARD J: I see.
MR DHARMANANDA: ‑ ‑ ‑ and we are a network operator. We did spend a little bit of time before the Court of Appeal explaining ‑ ‑ ‑
STEWARD J: That is all right. That is enough. That is all, then. Can I ask you this question: in relation to the pre‑work inspection, is the answer a combination of section 32(c), the regulation power, and in particular for making regulations:
securing the safety of the public from personal injury . . . by fire –
in combination with regulations 253 and 254?
MR DHARMANANDA: I did not capture your Honour’s question because I was distracted.
STEWARD J: I am sorry. In relation to the pre‑work inspection duty, the statutory power to do that, does that arise from the regulation‑making power in 32(1)(c) and then regulations 253 and 254?
MR DHARMANANDA: The source of power includes the 1979 Powers Act. So that is the source of power.
STEWARD J: Originally. I see. Historically.
MR DHARMANANDA: Correct. And 253 and 254 are directed to a slightly different subject matter in that their imposed requirements as regard consumer electrical installations, when installed or altered, here the pre‑work inspection duty is directed to us entering upon Mrs Campbell’s or consumer’s land and making sure our network is safe by changing termination poles and whatever. When that power is exercised, we accept we need to connect to something that is safe.
EDELMAN J: Mr Dharmananda, can I just take you back a moment to your point about coherence because I think this probably goes to the heart of your argument. I do not quite understand how the section 25(1)(a) or (1)(b) duty could be incoherent with a duty that arises by virtue of section 59 and 41 of the Corporations Act, unless you say that there is an implicit negative proposition in section 25 that excludes any other type of duty arising, because if there is not and if 25 is not an exclusive regime, then what incoherence would there be from a duty arising from the exercise of powers under section 59 and 41 of the Corporations Act to expand, enhance, improve, reinforce, manage electricity transmission and distribution systems?
MR DHARMANANDA: So we say two things. One, it is true that the implied negative propositions condition why we say there is incompatibility, save for one extra point we would make, namely, when one looks at the remainder of the scheme to which I have referred it augments the proposition that the Parliament did not require asset inspection of a routine kind of consumer property. By way of example, the inspector being created and certified in order to do that very thing would suggest, we submit, it is incoherent for the common law to step in and say the network operator has to do that thing routinely.
EDELMAN J: Let me put it a different way, then. Parliament also did not require a duty to exercise reasonable care to deal with the risk of fire from a system. They had a much more particular duty in section 25(1)(a) and (1)(b). If the more general duty concerning exercising reasonable care to deal with risks of fire comes from section 41 and 59(2), then why cannot one just expand that more general duty a little further and say, well, it extends to exercising reasonable care for anything in the system more broadly understood, including things connected to the system?
MR DHARMANANDA: We submit, because that would clash with the specific requirements and the implied negative propositions that arise from 25(1)(a) and (b).
GAGELER J: Why should we read them as having these implied or exclusive elements? I do not think you have actually developed that point, which seems to be at the core of your submission.
MR DHARMANANDA: We say when one – taking (a) first, when one imposes an obligation which is absolute to maintain that which belongs to you, implicit within that is you do not have to worry about the consumers’ material because they are responsible for it. That is why we say as to (a). As to (b), because it is very clipped language which requires precautions to be taken, only when actually supplying electricity – and I have made submissions around that – and only up to a particular position, again, implicit within that, is beyond that, or as regards things to which that are owned by a consumer or required to be provided by the consumer for the purpose of obtaining a supply, you do not need to take precautions as regards that, because they need to be taken by the consumer.
EDELMAN J: So if there were another subsection 25(1)(aa), appearing immediately appearing after 25(1)(a) that provided for the network owner at all times to maintain all consumer‑owned apparatus closely connected to the service apparatus, that would be incoherent and inconsistent with (a)?
MR DHARMANANDA: Well, if it was there, then you would have to read all three provisions together and discern what meaning is to be attributed to each of them together and separately.
EDELMAN J: But would it be incoherent to have a provision like that sitting alongside ‑ ‑ ‑
MR DHARMANANDA: Well, we would submit, yes.
GORDON J: Can I ask one last question?
MR DHARMANANDA: Of course, your Honour.
GORDON J: It may be that this is part of the . . . . . that you are going to do. I do not know. In relation to the first sentence in 152, am I clear – just explain to me again, what are the things that you rely upon for that in making that concession? By reference to the statutory scheme.
MR DHARMANANDA: I have taken your Honour to the Electricity Industry Act, and I have taken your Honour to the asset management system we need to have, which is approved by the Director in the public interest – Sorry, the EIA. And so, within that asset management system that is approved, we have to look after our network. So that is a source of a common law duty to ensure that our network is safe from the risk of fire. Indeed ‑ ‑ ‑
GORDON J: Are they the only two things?
MR DHARMANANDA: Well, that is a sufficient source, your Honour. And, indeed, during the trial, in the first few days, a great deal of material was read and put forward before Justice Le Miere as regards how we had not been doing very well in looking after our own network, and we had been disciplined by the authorities and then we had fixed it. The source of our obligations emanated from the scheme to ensure that it was safe.
GORDON J: So, section 14 of the Electricity Industry Act has this asset management system; is that the principal provision upon which you rely?
MR DHARMANANDA: Yes, your Honour. It requires us to do it, and we regulate it.
GORDON J: You say that is sufficient. Is there anything else?
GAGELER J: Well, I suppose you would go to section 41(a) of the Electricity Corporations Act, would you not? You have got a function of managing the distribution system.
MR DHARMANANDA: Yes.
GORDON J: This is why I asked, because one can, in effect, take this very complicated scheme and identify, if one starts as we are told to, with the scheme ‑ ‑ ‑
MR DHARMANANDA: Yes, your Honour.
GORDON J: You must have had things in mind when you made the concession, and it seems to me to extend beyond just the asset management scheme in section 14 of the Industry Act. In addition to what was identified by Justice Gageler in 41, I think it also possibly extends to what is set out in 59. Sorry, wrong section.
EDELMAN J: Section 59(2).
GORDON J: Section 59(2), thank you. It is 59(2).
MR DHARMANANDA: Yes, your Honour. I agree that those powers exist as regards our distribution system. That is the point of demarcation that we keep making.
Now, as regards the pre‑work inspection duty, the fact of the matter is we never had occasion to take any reasonable precautions in that Western Power required Thiess to take reasonable precautions when the work in July 2013 was done. The reasonable precautions required in the actual supply of electricity up to the position at which the consumer obtains supply carries with it the negative proposition that there is no routine consumer property asset management requirement.
There is also a negative proposition that the obligation to take reasonable precautions does not extend beyond the point in time when Western Power service cable is connected. The consumer is always responsible for the ongoing inspection and maintenance of their property. Western Power’s responsibility is not to connect if, on inspection, the consumer property appears unsafe for connection. Otherwise, the reasonable precautions required would extend beyond the limits expressed in 25(1)(b). The reasonable precautions are not required beyond the position of supply.
In our submission, it cannot be said logically that Western Power’s acceptance of duty as to its own distribution systems means of necessity that Western Power owes a generally‑expressed duty, the scope of which includes an obligation of routine consumer property asset inspection. The process of reasoning, by which the scope of the generally‑expressed duty relating to Western Power’s own distribution system extends to include matters relating to consumer property, needs to be made transparent and is not, in our submission, in the Court of Appeal’s reasoning.
GAGELER J: Mr Dharmananda, I am sorry to keep asking you so many questions, but when your client runs power through to the meter box on the property, is it engaged in the actual supply of electricity within the meaning of section 25(1)(b)?
MR DHARMANANDA: When Western Power transports electricity to the consumer, it is engaged in the actual supply of electricity. Your Honour, I have already addressed the issue as regards the consumer mains connection box at the top of the pole and the meter. There is a question as to whether, between those two points, the movement of electrons is supply or receipt – if I can put it that way – of electricity.
GORDON J: Your argument is that once it leaves the mains connection box at the top, it is no longer WP providing the supply of electricity because it has gone into the mains owned by the consumer.
MR DHARMANANDA: Correct.
GORDON J: But it still meets service apparatus provided by Western Power in the form of the fuses and the meter.
MR DHARMANANDA: Correct.
STEWARD J: Does the retail company ever get title to the power?
MR DHARMANANDA: I do not know the answer to that question as to who – as to whether it is a ‑ ‑ ‑
STEWARD J: I mean, do you ever have title to the power? You just own the infrastructure, do you not?
MR DHARMANANDA: Yes, correct, but I am trying to work out what is the basis of the idea of owning the power, if I can put it that way, so I am – I do not know whether Synergy owns the power.
STEWARD J: The reason I ask that is when it was originally enacted in 1945 section 25 applied to a supply authority.
MR DHARMANANDA: Yes.
STEWARD J: So it would seem to be indicating it is the person who is actually doing the supply to the consumer.
MR DHARMANANDA: Yes, the supply authority – the generator, the retailer, and the transporter were the same at that time.
STEWARD J: Yes.
MR DHARMANANDA: Which is why supply authority was used, which is why in different legislations thereafter supply ‑ ‑ ‑
STEWARD J: Well, it made sense in 1945 ‑ ‑ ‑
MR DHARMANANDA: Yes.
STEWARD J: ‑ ‑ ‑ but does it make sense in the context of your client’s business to talk about it as a supplier of electricity?
MR DHARMANANDA: I understand your Honour’s question. My client is the transporter of electricity, but the word “supply” can be used both as regards transport and as regards seller, yes. That is why there is – but the language used in the statutes uses either/or the other concept seeing the different meaning in context.
STEWARD J: Well, it is all there to make it easy for us, in any event.
MR DHARMANANDA: It most definitely makes it easier, your Honour. Can I take the Court, please, to paragraph 153 and 154 of the Court of Appeal’s judgment at pages 441 to 442 of the core book. May I make these submissions about those paragraphs. It is true that Western Power had statutory functions as to its distribution system and power to maintain its system. It is also true that Western Power controls its distribution system and its service cable. It is also true that Western Power has powers of entry onto consumer property.
It does not follow that Western Power chose to use the PA pole. That characterisation is inconsistent with the facts. The PA pole had to be – and was provided by Mrs Campbell’s husband to obtain electricity supply. In truth, the consumer chose to use the PA pole as the means by which they obtained electricity supply. May I go to paragraph 297 and ‑ ‑ ‑
GORDON J: Before you leave that, do you challenge the last sentence in 154, as distinct from the two sentences which precede it?
MR DHARMANANDA: To the extent that the words:
including where the service cable was placed –
as if it included choice, we challenge that. That is, we connected it in 19 – whatever year it was – to the pole, and it is not a choice of where our supply terminates, but rather the consumer provides, and we then connect – or our predecessor then connects.
EDELMAN J: If the pole had collapsed without any immediate danger, would your client have the power to repair the pole so that the cable remained attached to the pole?
MR DHARMANANDA: There is a question about that which goes to whether the power in the Powers Act extends to consumer property. The submission we made below, and we make here, is what would happen in that event is the power would either be lost, or we would be able to cut power because there is danger, and then the consumer would be required to replace the pole or whatever was defective.
EDELMAN J: But you would not have the power to do anything to the pole to be able to reattach the cable?
MR DHARMANANDA: We are not required to, and we would say we do not have that power specifically under, for example, section 49 of the Powers Act.
EDELMAN J: What about section 41 of the Corporations Act?
MR DHARMANANDA: That is back to the function. That turns on whether that pole is part of our distribution system, and we say no.
EDELMAN J: Even if it is not part of the distribution system within the definition, why would it not be part of managing the distribution system to re‑erect the pole, given that the pole was supporting part of the distribution system?
MR DHARMANANDA: We say that that is not how one would read 41(a). Section 41(a) is directed to the management of the systems – transmission and distribution – not the management of apparatus or equipment needed by the consumer to obtain the supply of electricity. May I go to the Court of Appeal’s judgment at paragraph 297, page 482 of their Honours’ judgment, and invite the Court to consider the second sentence, where their Honours said:
Nevertheless, the PA pole was holding up an electrified service cable, which a reasonable person in Mrs Campbell’s position would appreciate was very likely to start a fire in a high fire‑risk area if the PA pole failed.
Then 299, about a third of the way in that paragraph:
Given the high magnitude of the risk if the pole failed, a reasonable person in Mrs Campbell’s position would have arranged to be inspected to confirm that it remained capable of supporting the service cable at least when the pole had been in the ground for more than 25 years.
The submission we make is Mrs Campbell held the service cable aloft using her PA pole. The Court of Appeal recognised she was duty‑bound to inspect and maintain it.
Can I go back to 155 of their Honours’ judgment? In our submission, it is incorrect to characterise the case as the negligent exercise of statutory power. Come 157, the parliament intended that Western Power would operate its distribution system with care, not carelessly. That says nothing about whether a duty that extends to inspection of consumer property is compatible with the scheme. Western Power did not exercise any power as to the pole.
Paragraph 158, a formulation of the alleged duty, is a formulation of the duty to do something by the exercise of power. That idea is different from the assertion in 155 that the case is about the negligent exercise of power already been exercised.
In paragraph 162 to 180, the Court of Appeal addressed whether the supposed duty was breached. At 162, the Court of Appeal quoted from section 5B(2) in the Civil Liability Act. In essence, there is a breach of duty only if in the circumstances a reasonable person would have taken particular precautions. 165, the identified precaution is:
establishing a system for undertaking the periodic inspection of wooden power poles used to support its live electrical apparatus (including wooden power poles which are owned by third parties).
The process of reasoning by which this is triggered as a reasonable precaution, in our submission, is not explained. Instead, the Court of Appeal asserts that a system of periodic inspection is an appropriate precaution and then explains why arguments against it being a reasonable precaution are incorrect.
Those arguments included the cost of an inspection regime – 169 – and the fact that Western Power did not have information about the location over the poles – 171. The incorrect characterisation that Western Power chose to use the poles repeated in 174. There is a further difficulty with the Court of Appeal’s imposition of a reasonable precaution being a system of periodic inspection. That is, section 25(1)(b) deals precisely with reasonable precautions required to avoid the risk of fire.
The reasonable precautions required to be taken by Western Power are limited by the fact that they are confined to precautions when actually supplying electricity and are confined so that the precautions are not required beyond a particular position. It is incompatible with those limits for reasonable precautions to include a system of periodic inspection of consumer property.
There is a further point. Even assuming a broad duty of care, it is not clear why a reasonable precaution for Western Power to have taken is to have a system of periodic inspection of consumer property. Individual consumers are each responsible for the inspection and maintenance of their own property. In that context, the precaution identified by the Court of Appeal does not appear to follow from the broad duty found by the Court of Appeal. It is not explained how it can be reasonable to require a public authority to simply repeat at substantial cost that which the consumer is already required to do. That highlights, in our submission, the error in the Court of Appeal’s analysis.
Once it is accepted that a consumer is responsible for a consumer’s apparatus needed to obtain supply, the duty and precaution identified by the Court of Appeal involves imposing a precaution on the assumption that the consumer will not meet their obligation. That approach assumes a breach of duty by the consumer and erects a duty and a required precaution to fill a void that does not exist.
The process of reasoning adopted by the Court of Appeal involved, we submit, retrospective reasoning, starting with the fact that the pole fell, allocating responsibility to Western Power for it, and then identifying a precaution that would have prevented that event. Even though the Court of Appeal was mindful to avoid retrospective reasoning by casting the duty at a higher level than pleaded by the plaintiffs and Mrs Campbell, the connection between the duty so cast and the required precaution in our submission is not apparent.
KIEFEL CJ: Mr Dharmananda, at paragraph 158, is the principal difficulty with the Court of Appeal’s statement of duty their use of the words “in connection with”?
MR DHARMANANDA: It is, your Honour, because ‑ ‑ ‑
KIEFEL CJ: That widens it to anything ‑ ‑ ‑
MR DHARMANANDA: That widens it to anything ‑ ‑ ‑
KIEFEL CJ: ‑ ‑ ‑ having any connection at all with the actual supply of electricity.
MR DHARMANANDA: That is so, your Honour. When the precaution was identified, the reasoning, we submit, appears to be driven by hindsight. If the issue is considered prospectively, not retrospectively, a conclusion that both the consumer and Western Power owed the same duty requiring the same precaution, we submit, would not be reached.
Paragraph 170, the reasoning that Western Power did not have a concern itself with consumer poles adjacent to PA poles is difficult. Viewed without the benefit of hindsight, knowing that old wooden poles can decay, the line between a PA pole and other consumer poles is not apparent. Suggesting that there was no evidence about the defects in other consumer poles appears to focus, we submit, too much on what occurred with the PA pole when formulating what is said to be a reasonable precaution.
Our challenge to the Court of Appeal’s analysis cannot be discarded, we submit, on the assertion that there was a conceded duty of care to take reasonable care to avoid fire risks and we are only cavilling about whether the duty was breached when Western Power failed to have a system of periodic pole inspection. The appeal to this Court is not confined only to an appeal on a pure question of law. The Court of Appeal erred by asserting a particular duty and then formulating what was said to be a reasonable precaution.
The Court of Appeal reached its conclusion about what was a reasonable precaution not by making an intensely fact‑specific analysis but by concluding what it thought was a required precaution. The trial judge had considered the facts and held that if Western Power did owe a duty, it would have been in breach in failing to have a consumer pole asset inspection system. That is in the trial judge’s judgment at paragraph 296 at page 91.
The trial judge determined that there would have been a breach of a duty that was pleaded narrowly if he had found that such a duty was owed. The trial judge found that no duty was owed, but also found that if it was owed, it had been breached. There is no contest about the underlying facts and no fact‑specific issues are raised by the appeals. The Court of Appeal has said that the content of the duty included an obligation of periodic consumer pole inspection, not by a process of fact‑finding but a process of reasoning that we contest.
Our appeal raises the question about whether any duty owed by Western Power extends to consumer property in its scope and content. Our appeal also raises the question about whether absent control and because of incoherence, the precaution of routine consumer property inspection could ever be part of the content of the duty.
GORDON J: Can I ask whether or not the Court of Appeal broader duty in effect is that duty but reworded? That is, what was rejected by the trial judge in relation to the case put by the plaintiffs, which was, as I understand it, a duty to take reasonable care to make regular inspections and maintenance.
MR DHARMANANDA: Well, subject to the dichotomy that is between duty and breach and reasonable precautions, the Court of Appeal got to that by asserting it is a reasonable precaution, but by saying that the judge was far too retrospective and the plaintiffs were far too retrospective in asserting such a narrow ‑ ‑ ‑
GORDON J: All they did was split it, though, did they not?
MR DHARMANANDA: That is all they did. That is all they did. Relevant to that, your Honour, there is no bright line between questions about duty, scope and content, and breach. The purpose of drawing those lines, for analytical reasons, is to avoid working backwards to identify a duty by reference to the injury that eventuated. Our attack on the Court of Appeal’s analysis does not involve working backwards; rather, our attack involves arguments based on principle as to when a duty of care that entails a precaution identified by the Court of Appeal could possibly arise.
Can I say something about coherence and incompatibility quickly? I realise the time. We have referred to the relevant authorities and principles in our submissions at 67 to 69 and reply at 31(c) and 33. It is not necessary to go to those cases. Our argument is that a scheme may cover the relevant field or there may be implied or negative propositions apparent from the scheme. In that event, a common law duty that would be incoherent with the scheme or its implied negative propositions cannot be superimposed. The issue is not tested by whether the common law duty and the statutory scheme may coexist; the issue is tested by determining whether the duty can ever arise if it is incoherent with the scheme.
Can I refer, without going to it because of the time, the Court’s decision in CAL No 14 v Motor Accidents Insurance (2009) 239 CLR 390. The Commonwealth Law Report version appears in the second
supplementary book C & D at page 7. In that case, as your Honours know, the Court held that no duty was owed by the hotel licensee in effect to procure Mr Scott’s safe return to his home because he had been drinking far too much. Without going to it, may I please draw the Court’s attention to paragraphs 31, 41, 42, the conclusions at 41 and 42.
In short, the reason we go to that case in particular is that when one is looking at coherence, one need not find direct clash but to say if there are duties owed by police officers to make sure that people do not drive drunk and kill themselves, then the idea that a hotel licensee would have a similar kind of duty was considered by the Court to be incompatible, which is where we say the inspector obligation created under the scheme makes it incompatible because it does not sit well with a duty to inspect routinely consumer property.
May it please the Court.
KIEFEL CJ: Yes, thank you. Yes, Mr Gleeson.
MR GLEESON: May it please the Court. Thiess is the negligent contractor who does not challenge its liability. It seeks to uphold the liability of Western Power and Mrs Campbell, in which event the apportionment orders are not under challenge in this Court. If any parties have success on the appeal or cross‑appeals there will be complex issues of reapportionment that would need to be remitted.Your Honours, can I go straight to the ultimate argument about Western Power’s duty, which we ‑ ‑ ‑
GORDON J: Sorry, just before you go on – I am sorry to interrupt. Did you say remitter for apportionment?
MR GLEESON: I used apportionment loosely. “Remitter” because there were all sorts of issues that have not been dealt with below.
GORDON J: These are the contractual ones?
MR GLEESON: Both the contractual and the question, for example, of apportionment if Western Power remains liable. The primary judge did not find an apportionment between Western Power and Thiess, but did between Thiess and Mrs Campbell – and there are other possibilities that might not be reached.
Your Honours, at the risk of overpromising, we submit this case as more simple than the appellants have suggested today. We submit it comes down to five questions. The first is: what are the functions of Western Power under the relevant statutes? That is a short question, but it is important starting point. The second is: what other powers of Western Power that it either did exercise – that is, enter upon the exercise of – or which it could have exercised? Those being the powers to which the common law duty could attach.
EDELMAN J: There are very different considerations, of course, that apply to the former and the latter.
MR GLEESON: Yes. It is 2(a) and 2(b). To 2(a), we say they did exercise powers. They stepped into the arena. They did things with the pole. In short, what the appellants have largely shied away from this morning is the basic reality that Western Power performed its function of distributing electricity to Mrs Campbell through exercise of power which involved treating her PA pole as part of its system. It incorporated her pole in a functional sense into its system, and without her pole it could not deliver her the electricity as it did. That was the essential entry upon exercise of power I will come to. Then there is the question of: what were all the powers they could have exercised to prevent the damage occurring?
The third question which follows quickly from the second is within the common law prism of duty of care: who had relevant control in the sense of the power to protect the class of persons from harm? Was it Western Power? Was it Mrs Campbell? Or was it both of them? We say it is both.
KIEFEL CJ: Are you saying power to protect from a risk of harm, the power is sufficient?
MR GLEESON: No, I am saying as one of the elements in the duty – not the only one – who had the power to protect the class from the risk of harm, we say it will be both.
GAGELER J: When you say “power”, you mean just capacity liability?
MR GLEESON: Yes. The fourth question is ‑ ‑ ‑
EDELMAN J: Is question 3 not the same as 2(b)?
MR GLEESON: I said it follows closely from 2(b), yes.
EDELMAN J: I see.
MR GLEESON: But what it will require in addition to 2(b) is looking through the scheme at the powers which Western Power could have exercised and the powers Mrs Campbell could have exercised, because what has been lost sight of this morning is that each of them had ample power to protect against the risk of harm, but neither of them had complete or unfettered power. Each was, to an extent, subject to the other. Mrs Campbell might have owned the pole, but she could not simply chop the pole down. She was constrained by a whole series of provisions that would require her to act reasonably and seek the consent of Western Power.
GORDON J: And vice versa.
MR GLEESON: And vice versa. Western Power had a raft of powers I will come to, to avoid this disaster, but it did not have unfettered power, it had to ‑ ‑ ‑
GORDON J: Unfettered is not the right word, though, is it?
MR GLEESON: All I am trying to get to, your Honours, is there was shared responsibility, shared power, and that is what ‑ ‑ ‑
GORDON J: I think Mr Dharmananda accepted that this morning. I think he was identifying that was the point of it.
MR GLEESON: Can I come to that under that topic?
GORDON J: Okay.
MR GLEESON: The fourth question is: on the matters I have been to, would the common law recognise a duty of care, either by analogy with the cases we rely upon, or on a salient features analysis? We say yes.
The fifth question is whether any negative implication of exclusivity can be discerned from the best candidate – which is section 25 – or any of the shopping list of other candidates. Your Honours, as to the functions, which is the starting point, the Court of Appeal – with respect – correctly identified the functions of Western Power at paragraph 107. Could I ask your Honours just go to back to it since it is so central. It will be volume 1 in the Corporations Act at section 4 on page 161. Western Power is established under section 4(1)(b), and then its functions under section 41, on page 182, are expressed in the broadest of terms to deal with this task of electricity transmission, and we would emphasise under section 41(a) the function of managing, enhancing, improving, and reinforcing electricity transmission and distribution systems, and to provide and improve transmission and distribution services.
Now, pausing there, when Western Power comes into existence in about 2005 and is vested with the assets of the previous body, which I will come to, one of its functions allowed it to look at any and every aspect of the existing system and decide whether to improve it or enhance it. That included, to the extent PA poles were part of the system – whether owned by Western Power or owned by consumers – it had the function of improving, reinforcing and managing them.
EDELMAN J: Do you accept, though, that distribution systems, as Mr Dharmananda submitted, does not include the PA pole?
MR GLEESON: I do not, your Honour. I want to come to that next, because there is no sharp line between distribution systems and service apparatus. In fact, they are a moving spectrum, which I will come to. As part of a distribution system, we would submit, there was an ability to look at any and every pole and decide was it appropriate and, indeed, safe. So that is 41(a). Then your Honours will notice 41(d), a function of providing:
services that improve efficiency of electricity supply and the management of demand –
speaks for itself. And 41(i), in the broadest of terms:
to undertake, maintain and operate any works, system, facilities, apparatus or equipment required for any purpose mentioned in this section.
So, in answer to the question from the Court: if the pole fell down but had not caused the fire, was it part of the functions of Western Power to immediately do something to get the pole or a successor in a proper condition to continue to distribute power? The answer is yes.
EDELMAN J: Even without consent of the owner?
MR GLEESON: Whether consent was needed, we will have to trace through the power’s provisions. As a function, is that something within my statute to do, which is get the pole back in the air carrying the cable. That is part of the function.
GORDON J: How does 56 sit with that? If you want to come to it later, that is fine, Mr Gleeson.
MR GLEESON: Yes. So we start with 41, your Honour, and 42, which is the breadth of the functions you would expect for such a body, which as your Honour Justice Gageler put, is basically a public utility, indeed, one operating for profit by reason of section 61 of this Act. It is a commercial body acting on prudent commercial principles trying to make profit. So it has the very broad functions.
Then, what section 56 does is, as you would expect, to say merely giving a function does not convey a mandatory duty to exercise any or all functions, there will be discretion as to how and when it performs the function. Now, in the present case, part of the critical exercise of discretion at all times between 2010 and 2014 was to say that the function, vis-à-vis Mrs Campbell, would be performed by incorporating her pole into the system of Western Power.
Now, your Honours this morning – it seems like many hours ago – asked some factual questions about those maps at the beginning of the primary judge’s judgment, and I believe those questions clarified through the answers what actually happened. In the primary judge’s judgment, between pages 28 to 32, it is important to note that an essential part of Western Power’s performance of its functions was to safely and securely transfer the electricity from its control to Mrs Campbell’s control, and everything that was happening on that pole – at least down to the meter box on page 29 – was a site of shared responsibility because it is the point of interface at which, if the power has successfully travelled through the meter box, including the fuses, and has been appropriately metered, it would in due course leave the pole and travel to her house.
Now, we submit under section 56, in terms of the exercise of discretion, the critical exercise of discretion on a continuing basis over the four‑year period was that that pole configured in that manner would be used as part of our system – Western Power – at the same time as it is used as part of Mrs Campbell’s system. Your Honours, just completing the ‑ ‑ ‑
EDELMAN J: Is that to accept then that if you succeed that case would succeed on a 2(a)‑type basis but not necessarily 2(b)? So that by itself merely a power to do something with a discretion as to whether or not to do it would not impose a duty.
MR GLEESON: No, but we are in a territory where the discretion and the power has been exercised.
EDELMAN J: That is 2(a).
MR GLEESON: Yes, 2(a). It has brought that into existence. What 2(b) will be adding is, having made the choice under 2(a), what are all the other things you can then do, given the pole is part of your system – Western Power – which will prevent risks of harm to people?
Your Honours, just completing the topic of function, before I come to power more specifically ‑ ‑ ‑
GORDON J: Can I ask you, when you have finished that, some questions about the restrictions on that functions?
MR GLEESON: Yes, your Honour. I was just going to page 98, to the Electricity Act, which gives us that definition of distribution works. We have not found an expressed provision in the Corporations Act that picks up this definition, although they appear to be attempting to work as some sort of harmonious scheme. So distribution works is perhaps close to distribution systems, but what your Honours will see under “distribution works” when one compares it with “service apparatus” is no narrow or clear divide can be drawn between the two, because the:
distribution works means any works, including lines, poles, switches, and transformers and all apparatus and other equipment or plant used in conjunction therewith –
Then it goes on with a purpose requirement:
distributing electricity to consumers either direct from any generating station of from any transmission works –
“Apparatus”, there, your Honours – defined at the bottom of the previous page – itself has a very broad definition which can include meters and fittings. Then, when you compare that with service apparatus, the concepts seem to be overlapping, albeit the service apparatus is meant to be used:
for the purpose of conveying, measuring, or controlling electricity supplied from any distribution works to the position on any premises –
STEWARD J: Do not those words “from any distribution works” suggest, as difficult as it may be, we have to draw a line?
MR GLEESON: They do, and perhaps what they reflect are some of your Honours’ questions about where did these things come from in a world where one was talking about a supply authority in the strict sense. Ordinarily, we would seek to draw a line to reflect that distinction in the language, but it may be this is one of the cases where, as this has built up over history, there is unavoidable overlap in concepts that the Parliament has not fully rationalised.
STEWARD J: That is because these definitions were originally in an Act which had one entity doing everything.
MR GLEESON: Yes, where one could perhaps have identified it.
STEWARD J: It would not have mattered about drawing a line.
MR GLEESON: It would not have mattered. But, as the appellants have traced, this definition has expanded over time and it has added at the end of it over the page words of amplitude. It includes:
any other equipment or plant used in conjunction therewith, whether or not the property of a supply authority or network operator.
So the intent seems to be that service apparatus in one sense has the narrowing of history, but in another sense has the broadening of successive amendment. Our submission would be, in short, a perfect dividing line between the end of the distribution system and the beginning of the next stage is not consistent with the statute. Your Honour Justice Gordon, that is what I wanted to add on that topic.
GORDON J: Sorry, just to finish that submission, when you say not consistent with the statute does that mean that the line you seek to draw is not consistent with the statute?
MR GLEESON: The line the appellant seeks to draw – that somehow you can say there is a neat termination point for its distribution systems or its distribution works and that somehow informs what the common law is permitted to do by way of duty of care – that is what we deny.
GAGELER J: Well, would you say that when a network operator performs a duty under section 25(1) of the Electricity Act the network operator is – or this network operator is acting in pursuance, or in the performance, of the function under section 41(1)(a) of the Electricity Corporations Act?
MR GLEESON: Yes.
GAGELER J: It cannot be doing anything else, can it?
MR GLEESON: No. That is a duty within the broader area of function, where otherwise there would be discretion. In section 25 – we will come to it in terms of inconsistency – it is imposing a tolerably narrow duty in respect to part of the area of the function, which is concerned with what is happening on the premises of the consumer in paragraph (a) in respect to things that fall within the description of belonging to the network operator, which does not mean ownership but it means belonging to in some broader sense. It deals with that narrow topic (b):
in the actual supply . . . to the premises of a consumer take all reasonable precautions . . . to avoid the risk of fire or of other damage on the said premises –
So, it is again about protective of things happening on the premises, and within that topic it does draw a line – coming back to your Honour Justice Steward’s question – there is a line here. We must accept that in that particular statutory obligation it is up to the position on the premises where the electricity passes from the service apparatus of the network operator.
So, there are two submissions about that. One is – on the present case, of course – the electricity did not pass beyond the service apparatus of Western Power until it left the meter box which had the fuses and the meters in it, and the fuses are there for the purpose that was indicated to you this morning, as their name indicates, that they are a safety protection device to prevent shocks. So they are an essential part of Western Power ensuring that it has successfully and safely handed over electricity. So the duty in 25(1)(b) would apply up to at least that point.
GAGELER J: Perhaps this is just spelling out what you have already said, but the statutory expression “distribution system” in the Electricity Corporations Act you would say comfortably encompasses distribution works and service apparatus within the meaning of the Electricity Act and that both of those categories of assets are used for the transmission of – well, in electricity transmission and distribution services within the meaning of the Electricity Corporations Act?
MR GLEESON: Yes, your Honour. The broadest term is distribution systems, and then if one moves down a step, one has distribution works and service apparatus, which may or may not have a perfectly clear divide. Then within service apparatus that can include, we are told, property of other people. So Mrs Campbell’s pole which she owns as a matter of common law, by the choice of Western Power has formed part of Western Power’s distribution system, within section 41, and within section 25(1)(b) of the Electricity Act there is an express duty against a particular risk up to the point that the electricity passes the meter box. What that tells you is the Court of Appeal, with respect, must be right, that the integrity of the pole as a support for service apparatus of Western Power must be an essential part of its system and therefore can readily attract the common law duty of care.
KIEFEL CJ: That really comes within the concession anyway, does it not? The concession about pre‑work inspection.
MR GLEESON: It is within that, but it travels further. The pre‑work inspection concession is tailored to the facts. That says if we happen to ‑ ‑ ‑
KIEFEL CJ: If it is us and not Thiess.
MR GLEESON: If it is us and not Thiess – if poor Thiess who got paid $300 – I will not give that speech; that is coming from Mrs Campbell. The pre‑work concession – the very narrow concession is, if we happen to do something which may interact with Mrs Campbell’s pole, about which we have no duty to consider even whether to do it, then, on that particular occasion, we must do our work carefully. What the pre‑work concession does not address is if I, Western Power, have chosen that Mrs Campbell’s pole will become a part of my distribution system and play the role it plays of handing over power to her, can I then shut my eyes and say only she has a duty? Or, according to Mr Giles, perhaps no‑one has a relevant duty. Of course, the rub in this case between Western Power and Mrs Campbell is if each were ultimately correct, neither of them have an effective duty in the present circumstances which would leave the entirety of the vulnerable public protected. So, it gives one pause for thought.
GORDON J: That is not quite right, because you would have Theiss – I mean, absent Theiss, you would still have liability.
MR GLEESON: You would only have Theiss on each of their cases ‑ ‑ ‑
GORDON J: I have said that, but to say there is no‑one is not quite right.
MR GLEESON: I meant no‑one in the sense of no‑one except fortuitously that someone did a job near the pole. So you would have no one who would have ‑ ‑ ‑
GORDON J: I think that the point the Chief Justice is making is that Western Power accept that duty, the pre‑inspection duty.
MR GLEESON: It is a self‑levitating pre‑inspection duty, a duty if I choose to do some work near a pole, but otherwise no duty.
STEWARD J: Mr Gleeson, before you move on, can I ask you to do perhaps something overnight?
MR GLEESON: Yes, your Honour.
STEWARD J: Part of the difficulty I personally have in construing section 25 is that we are construing it in a statutory context which is radically different now to what it was in 1945. In particular, what I would like to know is where in 1945 would one find the equivalent to section 41 of the Electricity Corporations Act, and, in particular, sub‑paragraph (i)?
MR GLEESON: Yes.
STEWARD J: If one of your team can have a look at that overnight?
MR GLEESON: Yes. We have provided your Honours this afternoon what was missing, which was the full text of the 1937 Act. Your Honours now have that in a loose copy.
STEWARD J: Do not go to this now, but perhaps when you get to it.
MR GLEESON: We will come back to that, but your Honours will observe that section 24 is the ‑ ‑ ‑
GORDON J: Where are we now, sorry, Mr Gleeson?
MR GLEESON: I am asking your Honours to look at the loose copy of the 1937 Electricity Act. Section 24 is the forerunner of section 25. The obligation, in those terms, was on the supply authority from 1937, including in subsection 2, the provision for the damages, that we will come to tomorrow. I will otherwise look at your Honour’s question. Thank you.
Next, if your Honours have volume 2 of the authorities – this completes the functions – at page 486 in the Electricity Industry Act ‑ ‑ ‑
GORDON J: What section is that, Mr Gleeson?
MR GLEESON: That is tab 17 at page 486. Within that Act, there is a definition in section 3 of “distribution system”. It is a definition of, again, some amplitude:
any apparatus, equipment, plant or building used, or to be used, for, or in connection with, the transportation of electricity –
and so on. Then, finally, in the Energy Operator’s (Powers) Act ‑ ‑ ‑
GORDON J: So, I understood that you said that the sort of cascading was
distribution systems, distributions works ‑ ‑ ‑
MR GLEESON: Yes.
GORDON J: Is that right given that the distribution system is subordinate to transportation?
MR GLEESON: I think it is using transportation as a generic word to capture what otherwise might be expressed as distribution; but, because it says:
used, or to be used, for, or in connection with –
it is not taking a narrow view of do you own it. It is a functional view of it; is it something that you have deployed for that purpose.
The final reference in tab 25, the Energy Operator’s (Powers) Act, at
Page 616 to 617, section 43. This is what gives life to the functions because this appears to be the provision by which Western Power took over the assets of the predecessor in title and was given under section 43(1) the right of access to the assets for the:
performance of its functions –
and given further powers under section 43(1aa), then under subsection (2) was given the power to remove any of those assets. So, you heard this morning a historical submission by which the pole might originally have been built, put on the land by Mr Campbell and incorporated by the predecessor to Western Power into its system. These are the provisions which brought them into Western Power’s system and therefore into its functions.
GORDON J: Mr Gleeson, I thought this was, when I read this, this is things placed on land by an energy operator or predecessor in title. This is not dealing with the pole by Mrs C, was it?
MR GLEESON: I am referring to the extent to which the cable is connected to the pole, and the extent to which the meters and the fuses are in the meter box on the pole, all of that being attachment in, over, or under the land, that is how the service apparatus belonging to the predecessor gets into the control of Western Power, we would submit. It is the bridge for the transfer of the assets and to enable the functions to occur.
So, your Honour that is our answer to the first question. The second question is what are the powers, first, that have been entered upon the exercise of and, second, available for further exercise? We would start with section 59 of the Electricity Corporations Act, tab 6, at page 191.
And at section 59(2), as it has been raised this morning, the broadest conferral of all the powers it needs to perform all of its functions under the Act or under any written law, and in subsection (3), we would refer to, in particular paragraphs (a), (b), your Honour Justice Gordon raised (f) and (h):
carry out any investigation, survey, exploration or boring –
So, there is the power to do ‑ ‑ ‑
GAGELER J: None of that involves interference with private rights.
MR GLEESON: Not at that point, no. So that is, I have started there because that is the broadest set of powers you would expect in the light of functions, and then you move to the more specific ones. So, the first step down from there is a provision I do not think you have been taken to this morning. It is in the written submission, it is in volume 2, at page 496. It is the Energy Industry (Obligation to Connect) Regulations, and that is found at tab 18.
In the definitions on page 498, the relevant definitions are “attach”, “energise” and “premises”, and the substantive regulation, the regulation 4 for the new premises and regulation 7 for existing premises.
So, what is occurring here? We have got the general powers in section 59 to perform the functions, and here we have a specific duty imposed over those powers to ensure the attachment of the system to the premises and the energising of the premises. What we submit follows from that duty is that there is a power to choose the most appropriate point of attachment. There was a slight suggestion this afternoon ‑ ‑ ‑
GORDON J: Could you just take me to where I find that, please?
MR GLEESON: That is a construction submission, based on the duty to attach and energise, which is imposed on top of the more general powers and functions. To be effective must include an ability to make an appropriate decision as to what is a safe and effective point of attachment.
If it did not, the duty would be inapposite to impose upon the powers. There was a slight submission – I think this afternoon – put very, very gently that if a customer says, here is my pole, Western Power must blindly attach to the pole and then hope for the best. If that is the submission, we submit that it cannot sit with these provisions. Its duty and its power is to determine ‑ ‑ ‑
KIEFEL CJ: It has a duty to take reasonable care in the context of safety.
MR GLEESON: In the context of safety to ensure its proper attachment. What that means is that any point in the life of this pole, particularly 2010 to 2014, the duty is, I have got that cable attached through that hook, it is supported by that pole, and my fuses and my meters are in that box. My duty is to take reasonable care to ensure that that form of attachment does not cause foreseeable risks of harm to person or nearby property.
EDELMAN J: On that submission, the power to attach and the duty to choose the safest point of attachment would not just be limited to a pole, it could be to any aspect of the private premises.
MR GLEESON: Yes. Another submission that was put – perhaps slightly less gently – was there is a problem with the Court of Appeal’s duty because it will see Western Power having to monitor the whole premises of the consumer. That is not right because, first of all, at the breach stage, one will do the more minute factual inquiry, but at the duty stage it is about a suitable and safe point of attachment.
Now, if the attachment is via a hook to the person’s fascia board on the outside of the house, Western Power, common law duty of care, makes sure it is done safely and effectively. If that requires a system of inspection of that part of the house, that will be looked at under the breach analysis, but it will not affect the duty, we would submit. That is a critical bridge – we would submit, your Honours – where what I have referred to as the choice of Western Power to incorporate the pole into its system is done pursuant to these statutory powers and duties.
The next step of the powers – you were taken to this in part – are the powers to – I just want to clarify something. I think, unless I correct myself, that is the material on topic 2(a). They are the powers which have actually been exercised, which have generated what we say is the common law duty. I am now coming to the series ‑ ‑ ‑
GORDON J: So, just so that I am clear, that is 59 read with (2) – in effect, (2) and (3), and then read with this regulation that you have just taken us to?
MR GLEESON: Yes. What I am now coming to are what we would call the correlative series of powers which ‑ ‑ ‑
GORDON J: Sorry, I know I am being really slow, Mr Gleeson, but that really means in relation to this regulation with a common law duty attached to it, itself ‑ ‑ ‑
MR GLEESON: It is a common law duty. We are not pointing to a statutory duty. It is a common law duty, but this regulation - your Honour is correct, on our submission this regulation is a foundation – one of the foundations of the common law duty. It sits with section 59, the more general powers, but it gives us the more specific foundation.
STEWARD J: Do we need to know what the equivalent to this was back in 1970, or whenever it was?
MR GLEESON: I have looked for that as well, your Honour, unsuccessfully, but we will look again overnight and hopefully we will find it. How we would use it though, consistent with what I put to your Honour about the timing, which is why I referred to the vesting of the assets, is that this obligation came in in 2005, so it is there immediately before the vesting. So, it is binding the immediate predecessor at that point in time on, as it were, an ongoing basis, this is what you must do. So when Western Power comes in in 2006, we would submit ‑ ‑ ‑
STEWARD J: Do we have a transitional provision that transfers all dormant liabilities and future liabilities across to Western Power?
MR GLEESON: So far, the one I found was the property transfer provision I took you to, not what would be a usual liability provision, but we can look for that as well.
STEWARD J: Thank you.
MR GLEESON: In terms of the system, what this is doing, of course, is saying it is not simply a choice of Western Power whether to give people in the SWIS power; it is part of its duty to carry out this attachment. Your Honours, I was then going to move to what I tried to group under 2(b), which is what is the suite of further powers which over time allow Western Power to ensure that if there is something that may be unsafe about the attachment, it can step in, including without the consent of the property owner, to take up your Honour Justice Gageler’s question. The first set of those powers can be grouped under the topic of powers to interrupt, suspend or restrict the supply of electricity if the consumer‑owned pole presents a danger of collapse.
I am going to ask your Honours to go to section 31 of the Electricity Industry Act, which is in volume 2, at page 494, tab 17, which you were taken to this morning. Your Honour the Chief Justice asked a question around whether this is the only power to turn off electricity, because you must have some more general power to be able to go and do maintenance and turn it off. Our submission is that this is an aspect of the power to restrict supply, but it does not limit the much more general ability to interrupt, suspend or restrict supply in a range of circumstances.
Looking at section 31(1), this particular power is conditioned upon an opinion that it is necessary to do so because of, for example, potential danger. We would submit it is implicit in that power that it carries the power to make such inquiries as are necessary to form the opinion or not. There was a suggestion this morning that the power only arises once the opinion has been formed, but the power must carry with it the ability to intelligently turn one’s mind to the question whether there is a potential danger.
Then your Honours have observed subsection (4) which, in the broadest possible terms, says that this section is in addition to a range of other powers relating to:
interruption, suspension or restriction of the supply –
So, the submission made earlier this morning that section 31 covers this mini field, that should be rejected. If your Honours look at subsection (4), what are some of those other powers? The powers under the Electricity Act 1945 include section 25(1)(b), and the powers under the Electricity Corporations Act would include all of the powers in section 59, all the powers necessary to perform its functions.
EDELMAN J: I thought you accepted that that did not include the power to engage with private property.
MR GLEESON: Yes. So, we have those, and then on top of that but in the same species the Court has regulation 242 of the Electricity Regulations ‑ ‑ ‑
GORDON J: Before you go there, can I just ask you a question about your submission on (4)(b)? I had read the powers the licensee has under the Electricity Act and the Electricity Corporations Act being limited to those in relation to the “interruption, suspension or restriction”, which would mean, in relation to the latter Act, section 63, do we not read it like that?
MR GLEESON: That may be correct, your Honour. That may be a better reading. But the small gap is then filled by regulation 242 of the Electricity Regulations, which is just a few pages earlier in this booklet. It is page 478. The Electricity Regulations are tab 15, and under regulation 242 (1), there is a further constraint imposed upon the network operator:
A network operator must not supply electricity to any premises unless –
Two things. You must ensure that all of your:
network operator’s service apparatus that will be used for supplying electricity to the premises is installed and maintained and… safe –
Then, more broadly:
the connection of the supply of electricity to the premises does not cause, or is unlikely to cause, any consumers’ electric installations to become unsafe –
So, at that point, there may not only be a power but an affirmative duty to turn off the supply if any of those conditions are met, and that duty must carry with it the power to intelligently inform oneself whether the conditions are met. The examination of that question may, at the stage of breach, require you to look at, for example, the consumer pole that you have incorporated into your system. Similarly, your Honours will see regulation 265 – this time it is a power, not a duty – if you form the opinion that the consumer is operating electrical equipment in a manner which may:
interfere with the supply to other consumers –
you may require them to:
make such necessary adjustments –
So, again, in this case Western Power has the power to turn its mind to and form a considered reasonable opinion as to whether something is happening at the consumer end which could in fact cause damage to the whole system. So, as the stage of breach that may require you to have a system of inspection, or not, depending on the facts. So, those two regulations at 242 and 265 ‑ ‑ ‑
GORDON J: Can I ask you about 242(1)(c), the notice of completion d precondition to this duty that you have identified? I understand (a) and (b); what does (c) do?
MR GLEESON: We will have to look at that, your Honour. They seem to be ‑ ‑ ‑
GORDON J: Seems to be no duty until they have been notified, or something. Is that how I am supposed to read it?
MR GLEESON: You must not supply unless (a), (b), and (c) are all met. So, if any of (a), (b), or (c) are not met, you cannot supply. It adds an extra hurdle before you can supply, but we will try to track that down. Your Honours, in terms of where we have reached, I think we are still working through those questions that I have identified. If it pleases the Court.
KIEFEL CJ: Thank you. The Court will adjourn until 10.00 am tomorrow.
AT 4.15 PM THE MATTER WAS ADJOURNED
UNTIL WEDNESDAY, 7 SEPTEMBER 2022
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