NT Power Generation Pty Ltd v Power and Water Authority

[1999] FCA 1622

FEDERAL COURT OF AUSTRALIA

NT Power Generation Pty Ltd v Power & Water Authority [1999] FCA 1622

NT POWER GENERATION PTY LIMITED (ACN 061 314 921) v POWER AND WATER AUTHORITY and GASCO PTY LIMITED (ACN 009 627 801)

D5 OF 1999

MANSFIELD J

4 NOVEMBER 1999
DARWIN

IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY	D 5 OF 1999

BETWEEN:

NT POWER GENERATION PTY LTD
(ACN 061 314 921)
Applicant

AND:

POWER AND WATER AUTHORITY
First Respondent

GASCO PTY LTD
(ACN 009 627 801)
Second Respondent

GASCO PTY LTD
(ACN 009 627 801)
Cross Claimant

NT POWER GENERATION PTY LTD
Cross Respondent

JUDGE:	MANSFIELD J
DATE:	4 NOVEMBER 1999
PLACE:	DARWIN

REASONS FOR DECISION

1. I propose to announce a ruling in respect of the various objections to Mr Clarke’s statement of proposed evidence and not to give any detailed reasons, although I might say a sentence or two on the more significant matters.  If any party wishes me to give any more detailed reasons for the rulings I will invite you to ask me and I won’t feel offended.

2. In relation to Mr Clarke’s first statement, pars 12-17, whilst I understand the applicant’s objections and for present purposes accept the points which are made in pars 1 and 7 of the written note of the objections, I propose to receive those paragraphs.  I do not think they give evidence of the Cabinet or of the government decisions or policies.  I receive them for three reasons.  Firstly, because it may be that Mr Clarke’s own views on those matters as a matter of fact may contribute to the decision as to the relevant issue as to the reasonableness, (if that ever needs to be decided), of the action which has been taken by the respondents.  Secondly, because there has been a foreshadowed attack upon the rightness of what has been asserted in some material as to the reasons for the conduct of the respondents, and Mr Clarke has played a significant part in the process; he should be entitled to explain his conduct and his state of mind in relation to those matters.  Thirdly, because that material will explain certain of his exhibits which are to go into evidence, or certain of the other exhibits which are already in evidence such as the Merrill Lynch report.

3. In respect to par 17, as I did with a number of the applicant’s affidavits, I will receive his comment upon the contents of the letter KBC2 only as his understanding of that document.

4. I propose to reject the proposed exhibits KBC3, 4 and 5, and it also follows that I reject KBC27 in his second statement. I do so because I think s 16(3) of the Legislative Assembly Powers and Privileges Act 1992 (NT) directs that result. To the extent to which it is said that the fact of those Parliamentary statements having been made is a relevant fact, I accept that there may be evidence of that fact. Accordingly, I leave in from par 18 the first sentence but not the second sentence and similarly with par 19 and 20, and in the second statement I also leave in the first sentence of par 17.

5. In par 21 I leave in the second sentence which simply records the fact of decisions having been taken.  I delete par 20, the third sentence, which purports to identify the nature of those statements in circumstances where the underlying document upon which the comment is based is not produced and has been a subject of a claim for public interest immunity.  In par 35, for the same reasons I delete the words, “Decisions made by Cabinet at that meeting were the subject of”.  The balance of that paragraph has also been objected to.

6. I do not accept that KBC20 is a document which is provable by virtue of it having been adopted by the applicant.  I accept that it was used by the applicant as some evidence in support of an interlocutory application, but in my view, the adoption to which the authorities refer for the purposes of that then becoming part of evidence admissible against a party involves its adoption in the sense of it becoming adopted by a party as the real fact, that is, as the party’s own state of mind or state of knowledge.  I do not think the way in which it was presented on that interlocutory hearing reached that level.

7. However, I am prepared to receive exhibit KBC20 as a piece of information available to Mr Clarke and indeed to other members of the community upon which further action by him and others has been taken and to explain his subsequent conduct.  His conduct also dealt with it in other statements.  Whether ultimately it also tends to prove the truth, or it can properly be used to prove the truth, of what is in that statement is a matter for submission in the light of the whole of the evidence.

8. I propose to receive all of par 36.  I had some reservations about the expression “the Treasurer intends to make an application to the National Competition Council”, but I think that is a matter of semantics.  It is a matter that Mr Clarke has direct knowledge of, in the sense that the Treasury under his direction is progressing that work.  I propose also to leave pars 37 and 38 as they represent Mr Clarke’s direct knowledge of what he is doing as the Under Treasurer or what those acting under his instructions are doing and his understanding of the process of that work.

9. I found the objection to par 39 to be the most difficult and I do not profess to have a fully considered answer to the matter in the time available to me.  To the extent to which it seeks to prove the policy of the Northern Territory Government, I am not prepared to receive that material.  I do not know whether it is based on Cabinet resolutions or other sources.  I do not know whether it is based on documents in respect of which a claim for public interest immunity has been made and upheld.  Given that lack of knowledge, in my view, it is not appropriate to receive those subparagraphs of s 39 as evidence of the Northern Territory Government policy.

10. However, it seems to me that I should receive the material, subject to Mr Clarke saying that it is the case, as his understanding of the Northern Territory Government policy.  I do not know whether his understanding has a particular relevance, but it seems to me that it is part of the background against which the actions of him and those acting under him will be judged as part of the conduct which, at least on one version of the issues in the case, requires a measure as to whether the first respondent has acted reasonably and with sufficient haste in determining an access regime or a set of conditions for an access regime, and particularly having regard to the applicant’s claim that all of that sort of work could have been done at a much earlier time.

11. I therefore  propose to receive it, subject to Mr Clarke saying that pars 39(a)-(g) are his understanding, on that basis.  There are two additional qualifications.  The first is that I do not propose to receive par (g) in any event, because it seems to me that that is a prospective expression of the policy of the government and is not required for the purposes of understanding Mr Clarke’s or Treasury’s actions, nor for making a judgment (if necessary) as to their efficiency and reasonableness.  The other aspect is that I propose to receive subpar (d) subject to certain deletions, simply because that is part of Mr Clarke’s own knowledge.  That is because it describes the work which Treasury is undertaking.  I delete from par (d) for that purpose, but not as part of his general understanding, the introductory words to each of the first two sentences, that is the words, “As part of the same option,” and the words, “And as part of the same package of legislative and regulatory reforms,” and those words in the last sentence, that is the sentence, “The access regime thereby created, should qualify as an effective access regime.”

12. In respect of Mr Clarke’s second statement, I have considered the various objections.  I propose to receive pars 4, 5 and 6 as evidence of the facts which they contain.  They alternately may transpire to be irrelevant, but they may have some significance to the quality of the action taken by Mr Clarke.  That is, I hope, consistent with my ruling about pars 12-17 of his first statement.

13. I had some additional reservations about par 6 as to his ability to positively assert that matter, but it seems to me to be fairly unimportant.  If it is challenged in cross-examination, I will invite Mr Barker to apply to revisit the ruling rather than to have it done separately in a voir dire.

14. In respect of the document KBC22, referred to in par 8, I propose to receive that document.  In my view it is a business record.  It is signed by the Deputy Under-Treasurer, and I am prepared to infer that the work which has been done has been done under the general direction of Mr Clarke.  To the extent to which a witness should be presented in support of such material, in my view Mr Clarke is an appropriate witness.

15. I make the same ruling with respect to exhibits KBC23 and 24.  They have the additional complication that Mr Clarke was not a party to the meeting, but they are business records and I infer that the occasion occurred under his general supervision and direction.  I refer particularly to the attachment to KBC23 about which Mr Barker QC made submissions.  I think that is a business record of what is perceived to be the differences between the national electricity market and the then proposal of the first respondent.  In that respect too, in my view, Mr Clarke is an appropriate witness who may be tested with respect to it.

16. Paragraphs 12 and 13 are matters upon which, in my view, Mr Clarke is able to give direct evidence and the objection to KBC26 has been withdrawn.  I have dealt with the objection KBC27.  I have deleted it.  I rule that I will not receive it, but will receive sentence 1 of par 17.  The objection to KBC28 and 29 is no longer pressed.

17. In respect of par 19, I propose to leave the first sentence as it seems to me to do no more than identify the occasion and the topic of that statement. It does not purport to say anything about its contents in a way which s 16(3) would prohibit. It seems to me the balance of par 19 must be disallowed, being a precis of what was said in the House of Assembly at the time.

18. I propose to leave pars 20 and 21, consistent with my ruling about pars 37 and 38.  I do not regard those paragraphs as containing hearsay evidence, but direct evidence of Mr Clarke as to what he saw and heard and did.

19. Accordingly, I will receive all of the two statements of Mr Clarke and the annexures, subject to the rulings I have made.  Because of the issue that has arisen about par 39, I will defer formally receiving all of par 39 until counsel for the respondent has had an opportunity to consider the implications of Mr Barker’s submission that its receipt may give rise to the need to produce for inspection privileged documents, and exchange which has taken place.  If it is desired to read all of par 39, other than (g) which I have excluded anyway, for the limited purpose of Mr Clarke’s understanding, then I will entertain the request to direct that previously privileged documents, in some respects, be released.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Decision herein of the Honourable Justice Mansfield.

Associate:

Dated:               22 November 1999

Counsel for the Applicant:	Mr A Bannon SC and Mr A Henskens
Solicitors for the Applicant:	Colin Biggers & Paisley
Counsel for the Respondents:	Mr L Foster SC; Mr J V Nicholas and Mr A I Tonking
Solicitors for the Respondents:	James Noonan
Dates of Hearing:	4 November 1999
Date of Decision:	4 November 1999