Electricity Retail Corporation t/as Synergy v The State of Western Australia - [2008] WASC 19

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: ELECTRICITY RETAIL CORPORATION t/as SYNERGY -v- THE STATE OF WESTERN AUSTRALIA [2008] WASC 19

CORAM: MARTIN CJ

HEARD: 15 FEBRUARY 2008

DELIVERED : 15 FEBRUARY 2008

PUBLISHED : 22 FEBRUARY 2008

FILE NO/S: CIV 1056 of 2008

BETWEEN: ELECTRICITY RETAIL CORPORATION t/as SYNERGY (ABN 71 743 446 839)
Plaintiff
AND
THE STATE OF WESTERN AUSTRALIA
Defendant

Catchwords:

Practice and procedure - Declaration sought - Daylight saving - Deadline for tenders suffixed by 'Western Standard Time' - Whether tender was received before the specified deadline - Daylight Saving Act - Standard Time Act

Legislation:

Daylight Saving Act 2006 (WA), s 4, s 7
National Measurement Act 1960 (Cth), s 8AA
Standard Time Act 1895 (WA)
Standard Time Act 2005 (WA)

Result:

Plaintiff's claim for declaration granted

Category: B

Representation:

Counsel:

Plaintiff: Mr P D Evans
Defendant: Ms C J Thatcher

Solicitors:

Plaintiff: Freehills
Defendant: State Solicitor for Western Australia

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

Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337
Hughes Aircraft Systems International v Airservices Australia (1997) 76 FCR 151

MARTIN CJ:

Summary

These proceedings turn upon the question of whether a tender which was lodged in Perth at 11.34 am summer time on Wednesday, 19 December 2007, which was, of course, 10.34 am standard time, was lodged within the time specified in a Request for Tender, which required tenders to be lodged by '11.00 am Wednesday, 19 December 2007 (Western Standard Time)'. For the reasons which follow, I have concluded that the tender was lodged within time.

Introduction

These proceedings were commenced by a writ issued on 16 January 2008. By the writ, Electricity Retail Corporation, which trades under the name 'Synergy' (which I will use in these reasons) sought a declaration that the tender which it had lodged, had been lodged prior to the deadline for lodgement of tender submissions stipulated in a Request for Tender issued by the State of Western Australia (the State), and sought an order requiring the State to evaluate its tender submission in accordance with the terms of the Request for Tender. Synergy applied to enter the case into the Commercial and Managed Cases List, and for directions on 16 January 2008. The State entered a conditional appearance on 25 January 2008. The State applied for an order setting aside the writ on 31 January 2008.
Both applications came before me on 1 February 2008. It was clear from the affidavit materials that have been filed that it was essential that the issues arising between the parties be expeditiously resolved. Under the terms of the Request for Tender, tenderers were required to submit tenders that were open for acceptance for a period of three months. That period will expire on 19 March 2008. It was obviously necessary to determine whether Synergy's tender had been lodged within time, and if so, whether the State was obliged to evaluate Synergy's tender, in sufficient time for the State to undertake that process of evaluation by 19 March 2008, if the answer to both of those questions was in the affirmative.
I therefore directed that the case proceed without pleadings, but on the basis of a statement of issues, established a timetable for the exchange of evidence on affidavit and written submissions, and listed the matter for trial on 15 February 2008. At the conclusion of the trial, I announced that I had formed the firm view that Synergy was entitled to the declaratory relief which it sought. Because of the need for expedition, I granted declaratory relief for reasons to be published later. These are those reasons.

The stated issues

The parties agreed that the issues which arose for determination at trial were:
1.Do the provisions of clause 1.7 of Part C of the defendant's tender request … bar the plaintiff from bringing this action?
2.On the correct construction of the term 'Closing Time' in the defendant's tender request, was the closing time for the submission of tenders on 19 December 2007:
(a)11 am summer time (as defined in the Daylight Saving Act 2006) with the result that the plaintiff's tender submission … was lodged late; or
(b)12 noon summer time (as defined in the Daylight Saving Act 2006) with the result that the plaintiff's tender submission was not lodged late?
3.If the answer to 2(b) is 'yes', is the defendant obliged to open and consider the tender submission in accordance with the tender request?
In written submissions filed prior to the commencement of the trial, the State agreed that the answer to the third issue should be in the affirmative, if Synergy's tender submission was found to have been lodged within time. During the course of argument, after what would have to be conceded to be some prompting from me, the State abandoned the contention that cl 1.7 of Pt C of the Request for Tender precluded Synergy from bringing these proceedings. Accordingly, the only issue left for determination at trial was issue 2.

The facts

All the evidence adduced at trial was on affidavit. No witnesses were required for cross‑examination. The findings of fact which I will set out are made from the uncontested affidavit evidence.
Synergy objected to the relevance of some of the evidence adduced by the State. However, Synergy did not press me to rule upon those objections in the course of the trial, but was content for me to deal with the issue of relevance in the course of my reasons for decision, and I will do so.
On 31 October 2007, the State, acting through its agent, the Office of Energy, issued a Request for Tenders for the supply of 26,000 megawatt hours of 'GreenPower' premium accredited through the national GreenPower programme for the 2007/08 financial year (the Request).
The front page of the Request specified:
Closing time:
11.00 am Thursday, 6 December 2007 (Western Standard Time)
The Request invited the submissions of offers pursuant to its terms. By cl 1.2 of the Request, prospective respondents were advised that they could submit an offer by hand or by post at the Department of Treasury and Finance, Dumas House Tenders Office, Level 6, 2 Havelock Street, West Perth, WA 6005.
Clause 1.3 of the Request had the effect that offers submitted in response were to remain open for a period of three months.
Clause 1.4 of the Request specified that a 'non mandatory briefing' would be provided for parties considering responding to the Request at:
Date: 9 November 2007
Time: 10.00 am
Location: ERIU Conference Room
Level 8, Governor Stirling Tower, 197 St George's Tce, Perth 6000.
The same clause specified that:
The respondent is requested to confirm its attendance by no later than 5.00 pm WST, Wednesday 7 November …
Remaining provisions of the Request specified that which was to be supplied, the contract that would be entered into if an offer was accepted by the State, and the selection process to be applied to the evaluation of tenders.
Part B of the Request specified the requirements of each offer to be submitted, including the information that was to be provided in any such offer.
Part C of the Request contains what are described as 'Request Conditions'. Clause 1.1(a) of those conditions provides that:
1.1
(a)Any Offer which:
(i)is not submitted before the Closing Time;
(ii)is incomplete at the Closing Time; or
(iii)is not submitted in accordance with the provisions of:
Aclause (a) of Section 1 in Part A; or
Bclause (b) of Section 1 in Part A and clause 1.1(c) of this Section 1;
will be excluded from consideration, unless the Respondent can provide conclusive evidence of mishandling of the Offer.
Clause 1.1(b) of Pt C defines what will constitute 'mishandling'. Clause 1.1(c) provides that if an Offer is submitted by facsimile, it must be received in full prior to the Closing Time.
Part 2 of Pt C of the Request defines the expression 'Closing Time' to mean 'the time and date specified on the front of this Request as the closing time'.
An attachment to the Request set out the general conditions of the contract for the supply of GreenPower that would be effected by the acceptance of an offer made pursuant to the Request.
The publication of the Request was advertised in The West Australian newspaper on 31 October 2007. The advertisement briefly described the Request, and specified:
Closing Date: Thurs. 6 December 2007 at 11 am.
The advertisement also disclosed to readers that documents relating to the Request could be obtained from the website maintained by the Department of Treasury and Finance. Prospective tenderers pursuing inquiries through this means would have seen that, on that website, the Closing Date and Time specified in respect of the Request was:
Thursday, 06 December 2007, 11 am (Western Australian standard time)
Publication of the Request was again advertised in The West Australian on 7 November 2007. After a brief description of the Request, the advertisement specified:
Closing Date: Thurs, 6 December at 11.00 am WDST
The officer within Synergy who was responsible for the preparation of Synergy's offer was Mr Martin Winship. He has deposed that he has no recollection of seeing either newspaper advertisement, and that he could not find any evidence of either newspaper advertisement on the file which he maintained at Synergy in respect of the preparation of the offer. He did, however, access the relevant information on the government website identified in those advertisements. He had become aware of the availability of that information as a result of a telephone call from an employee of the Office of Energy.
A briefing for prospective tenderers was provided on 9 November 2007, which Mr Winship attended. Prospective tenderers were given a powerpoint presentation by way of a series of slides. One of the slides, headed 'Tender Details' asserted in part:
Tender closes 11.00 am, 6 December 2007 - Don't be late!
The State issued an addendum to the Request on 13 November 2007. A hard copy of the slides comprising the powerpoint presentation, including the slide to which I have referred, was attached to that addendum.
On 16 November 2007, Mr Winship contacted another employee at the Office of Energy, to request that the closing date for the submission of offers in response to the Request be extended for a period of two weeks. As a result of that request, on 23 November 2007, addendum number 2 to the Request was issued by the State. That addendum advised that the closing date of the Request had been changed to:
11.00 am Wednesday, 19 December 2007 (Western Standard Time)
A further addendum to the Request (No 3) was issued on 13 December 2007. However, its terms are not material to the issues in these proceedings.
On 19 December 2007 at about 11.34 am (summer time), Mr Winship lodged Synergy's Offer at the address specified in West Perth.
On 27 December 2007, the State advised Synergy, by letter, that as its offer had been received at 11.34 am on 19 December 2007, it had been received after the closing time, which had been specified as '11 am Western Standard Time'. The letter advised Synergy that as a consequence, its offer would not be evaluated. The only issue remaining in these proceedings is whether, on the proper construction of the Request, that assertion was correct.

The process contract

The State accepts that if Synergy has lodged its offer within the time specified by the Request, a process contract arose of the kind often associated with the decision in Hughes Aircraft Systems International v Airservices Australia (1997) 76 FCR 151. In general terms, the process contract conceded by the State, would be a contract between Synergy and the State to the effect that, in consideration of Synergy preparing and submitting an offer, the State would evaluate and assess that offer in good faith and in accordance with the provisions of the Request. So, the provisions of the Request, as amended from time to time, form the basis of the process contract which the State accepted would have been brought into existence if Synergy had in fact lodged an offer within the time specified by the Request. The terms of the Request, as amended from time to time, also provide the terms of the offer to enter into such a process contract, and therefore the means of assessing whether Synergy accepted that offer by lodging its offer within time.

The objections to relevance

Synergy objected to the relevance of the evidence relating to the newspaper advertisements and the material contained on the government website. The State accepted that nothing in the newspaper advertisements or within the material contained on the government website formed, or could form, part of the process contract. Rather, it submitted that the material was admissible as evidence of extrinsic circumstances available to assist in the resolution of contractual ambiguity pursuant to the principles enunciated in Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337 at 352.
There are a number of reasons why, in my opinion, the State's submissions on this subject must be rejected. It is well established that, for the purposes of the application of the principles enunciated in Codelfa, there is a significant distinction to be drawn between objective facts, and evidence of negotiations between the parties. With one exception, the latter can only be admissible if and to the extent that they provide evidence of the parties' state of knowledge of objective facts which are admissible as an aid to construction. That is because, in order to be admissible as an aid to the construction of a contract, the objective facts must be known to both parties to the contract. The one exception to that general rule is the circumstance in which, in the course of negotiations, the parties have expressly refused to include a contractual term of the kind which one of them would ask the Court to imply (see Codelfa at 352).
The terms of the newspaper advertisements and the assertions made on the government website are not objective facts of the kind that can be admitted as an aid to construction. At their highest, those materials might have formed a part of the process of negotiation between the parties. However, at least in the case of the newspaper advertisements, on the evidence, they were not known to Synergy. That is another reason why they cannot be admissible.
But in any event, for reasons which I will endeavour to explain, I do not apprehend any ambiguity in the terms of the Request which this evidence would assist in resolving. Nor, even if I were persuaded that there was such an ambiguity, would the materials shed any light on the resolution of that ambiguity, because they are either equivocal (as in the case of the first newspaper advertisement), or, in the case of the second newspaper advertisement, inconsistent with the material on the website, which Mr Winship did see.
For these various reasons, in my opinion, that evidence is not relevant, and therefore not admissible in the resolution of the issue concerning the proper construction and effect of the Request.

The relevant legislation

Until quite recently, the legal regime for the specification of time in Western Australia was governed by the Standard Time Act 1895 (WA). That Act was repealed by the Standard Time Act 2005 (WA). Under that Act, time in Western Australia is determined by reference to 'Co-ordinated Universal Time' as determined by the International Bureau of Weights and Measures and maintained under s 8AA of the National Measurement Act 1960 (Cth). Co‑ordinated Universal Time is, generally speaking, the equivalent of Greenwich Mean Time, which it replaced as the basic world standard reference time on 1 January 1972.
Sections 4 and 5 of the Standard Time Act are as follows:
4. Standard time throughout Western Australia
Standard time throughout Western Australia is 8 hours in advance of Co‑ordinated Universal Time.
5. Construction of references to time in legal instruments
(1)A reference (express or implied) in any legal instrument to any time or period of time is to be construed as a reference to -
(a)standard time throughout Western Australia as declared by this Act; or
(b)that period as determined by reference to standard time throughout Western Australia as declared by this Act.
(2)Subsection (1) does not apply to a reference to any time or period of time that is expressly required by a legal instrument to be construed in some other way.
(3)This section applies to a legal instrument even though it was made before the commencement of this Act.
Pursuant to s 3 of the Standard Time Act, 'legal instrument' is defined to include 'a contract or agreement' or 'any deed or other instrument having legal effect'.
The Standard Time Act provides the legislative context for the Daylight Saving Act 2006 (WA). The Daylight Saving Act introduced the notion of 'summer time', which is defined by s 3 of the Daylight Saving Act, to mean the time to be observed throughout the State as provided in s 4 and s 6 of that Act. However, s 6 of that Act has not yet come into operation. Section 3 of the Daylight Saving Act also defines the expression 'standard time' for the purposes of that Act, to mean the 'time declared by the Standard Time Act 2005 to be standard time throughout the State'.
Sections 4 and 7 of the Daylight Saving Act are as follows:
4. Trial period of daylight saving
Despite the Standard Time Act 2005, from -
(a)the hour of 2 a.m. on 3 December 2006 until the hour of 2 a.m. on 25 March 2007; and
(b)the hour of 2 a.m. on 28 October 2007 until the hour of 2 a.m. on 30 March 2008; and
(c)the hour of 2 a.m. on 26 October 2008 until the hour of 2 a.m. on 29 March 2009,
summer time shall, throughout the State, be one hour in advance of standard time and shall be observed accordingly.
…
7. Construction of expression of time in enactments, etc.
Despite anything contained in -
(a)any enactment; or
(b)any contract or agreement, whether made orally or in writing; or
(c)any deed or other instrument of any kind,
in which any time or period of time is prescribed, specified, or stipulated as the time at which, or the period of time for which or during which, or any part of which the doing of any act, matter, or thing is required, permitted or forbidden, that time, period of time, or part of a period of time, as the case may be, shall, with respect to any period during which summer time is declared by this Act to be in advance of standard time, be held to be, and shall be determined by reference to, summer time unless the contrary is expressed, provided, or stipulated in that enactment, contract, agreement, deed or instrument.
The general effect of the Daylight Saving Act was to provide that, over the three summer periods defined in s 4 of that Act, there is to be a time known as 'summer time', which is to be one hour in advance of standard time. In very general terms, s 7 of the Daylight Saving Act provides that during the period summer time is in operation, a time specified in any act, contract, agreement, deed or other instrument, is to be taken to be a reference to summer time 'unless the contrary is expressed'. Both Synergy and the State accept that the Request, and the process contract which would incorporate the terms of the Request if such a contract came into existence, fall within the scope of a contract, agreement or other instrument for the purposes of s 7. So the critical question is whether, for the purposes of that section, a time other than summer time has been expressed.

Section 7 of the Daylight Saving Act

The proper construction and effect of s 7 of the Daylight Saving Act was at the heart of the differences between the parties. Read literally, it is capable of being construed in a way which is almost entirely circular. That is because of its basic structure. It commences by providing that 'despite anything contained in' the relevant document, a time specified in the document is to be taken to be summer time 'unless the contrary is expressed'. On the face of it, the primacy given to a contrary expression by the concluding words of the section is inconsistent with its introductory words, which apply summer time 'despite anything contained in' the document.

However, it seems to me that the resolution of this apparent conundrum is relatively clear, if one has regard to the context and subject matter of the provision. The section recognises that but for its terms, a time specified for the doing of any act or thing in Western Australia, or by reference to which the doing of something in Western Australia is prohibited, would, pursuant to the Standard Time Act, be taken to be a reference to a time which is eight hours ahead of co‑ordinated universal time. However, because the effect of s 4 of the Daylight Saving Act is to create a different time regime over the three summer periods specified in that section, s 7 has the effect of applying that different time regime over those periods to any document that falls within its terms. However, by the concluding words of s 7, the Parliament has preserved a capacity to adopt a different time regime other than summer time, if that is 'expressed, provided, or stipulated' in the relevant document.
Viewed in this way, it does not appear to me to be necessary to go to dictionary definitions of the word 'contrary' to identify the meaning which is conveyed by the use of that word in s 7. What is required, pursuant to the regime I have described, is words in the relevant document, which, on their proper construction, reveal an intention to adopt a different time regime other than summer time. That intention must appear from the words used in the relevant document or instrument, in order to be 'expressed, provided, or stipulated' in the document.

The closing time for offers

The Request was amended prior to closing time on 19 December 2007. By reason of those amendments, the closing time specified on the front page at the time the Request was published, of 6 December 2007, and the reference to that time on the powerpoint slide which became part of the Request through addendum number 1, was no longer of any operative effect. Accordingly, the Request, and process contract arising from the Request, should be construed as if those references to time no longer formed any part of it.
The critical reference to time is that provided by addendum number 2 which specifies that the closing time is to be '11.00 am Wednesday, 19 December 2007 (Western Standard Time)'.
The State contends that this should be taken to be a reference to the time which was in force in Western Australia on 19 December 2007, which was summer time. The State supports that submission by pointing to cl 1.4 of Pt A of the Request which provides that a briefing was to be held at 10 am on 9 November 2007. The State argues that as the briefing would no doubt have been held at the time which applied throughout the State on 9 November 2007, being summer time, the Request as a whole should be construed as referring to summer time. The State also submits that the time for notification of attendance at the briefing session, being '5 pm WST' must also be taken to be a reference to summer time.
However, it seems to me that these submissions overlook the plain and obvious effect of the use of the words 'western standard time' in the specification of 'closing time'. Following the passage of the Daylight Saving Act, two different time regimes are created for Western Australia. The first, known as standard time, is the time which is eight hours ahead of co‑ordinated universal time. The second, which is summer time, applies only during the periods specified in s 4 of the Daylight Saving Act, and is one hour ahead of standard time. The Request was issued after the passage and commencement of the Daylight Saving Act. I can see no reason why it should not be construed as using terminology which is consistent with that used in the legislative regime created by the Standard Time Act and the Daylight Saving Act. The terminology reflects the legislative regime under which there are two different time standards - standard time and summer time.
By stipulating that closing time is to be 'western standard time', the Request clearly and unequivocally adopted standard time as the time regime by which the closing time for the submission of offers pursuant to the Request is to be assessed and determined. The fact that the Request appears to refer to summer time for other purposes, such as the time for the briefing, does not sustain the conclusion that the clear and unequivocal reference to standard time for the purposes of determining closing time for submission of offers, should be construed as being a reference to summer time. If the authors of the Request had meant to refer to summer time when they specified the closing time, they need not have said anything about the time regime to be adopted. By virtue of s 7 of the Daylight Saving Act, a reference to '11.00 am Wednesday, 19 December 2007' would have been construed as a reference to 11 am summer time. However, by adding the words 'western standard time', it seems to me that the authors have clearly and unequivocally adopted a different time regime, being the regime created by the Standard Time Act. Under that regime, Synergy lodged its Offer at the specified place at 10.34 am standard time on 19 December 2007, which was prior to the stipulated closing time.
It was for those reasons that, at the conclusion of the trial, I granted Synergy a declaration that its Offer had been lodged before the closing time deadline for the lodgement of tender submissions stipulated in the Request.