NT Power Generation Pty Ltd v Power & Water Authority & Anor

[2003] HCATrans 489

[2003] HCATrans 489

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Darwin  No D13 of 2003

B e t w e e n -

NT POWER GENERATION PTY LIMITED

Appellant

and

POWER & WATER AUTHORITY

First Respondent

GASGO PTY LIMITED

Second Respondent

Summons for directions

GUMMOW J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 27 NOVEMBER 2003, AT 9.30 AM

Copyright in the High Court of Australia

MR A.J.L. BANNON, SC:   If your Honour pleases, I appear for the appellant with MR A.A. HENSKENS.  (instructed by Colin Biggers & Paisley) 

MR L.G. FOSTER, SC:   If your Honour pleases, I appear for the respondents, but I appear for the applicants on the summons.  (instructed by Noonans Lawyers) 

HIS HONOUR:   Yes, Mr Foster, I have your summons filed on 15 October. 

MR FOSTER:   Yes, your Honour.  It arises out of some remarks made on the special leave application, which I do not know whether your Honour has had an opportunity to look at ‑ ‑ ‑

HIS HONOUR:   Yes, I have looked at that. 

MR FOSTER:   Your Honour, our primary position, as your Honour will have gleaned from what was said then and the way things have occurred, is that the matters raised in our notice of contention which is now filed are all within the purview of Order 70 rule 6(5). 

HIS HONOUR:   Yes.  Now, just explain to me how the notice of contention points arise. 

MR FOSTER:   Your Honour, what happened was this.  My learned friend’s clients sued the first respondent under section 46, in substance, alleging that its refusal to allow access to its electricity infrastructure was a breach.  The second respondent was a company specifically incorporated by the Northern Territory Government to deal with the supply of gas ‑ ‑ ‑

HIS HONOUR:   That is Gasgo. 

MR FOSTER:   ‑ ‑ ‑ Gasgo – to deal with the supply of gas to the first respondent for the purpose of generating electricity.  In the Territory, at least as far as we are concerned, anyway, and in most cases, the generators are run by gas.  In defence of that claim, we raised a number of matters.  One was what has been called, generally speaking, Crown immunity, but it is really the specific defence under the statute, in section 2B.  We also raised a number of other matters, all arising out of section 46 itself. 

HIS HONOUR:   Before Justice Mansfield, there was a point, was there, about good faith in the licence?  Has that disappeared? 

MR FOSTER:   That has disappeared.  That was raised by the appellant.  That has now disappeared, I think it is fair to say, and the contractual claim, which was also before Justice Mansfield, has disappeared. 

HIS HONOUR:   Right. 

MR FOSTER:   We actively contended, both in an evidentiary sense and in submissions, that there was no breach of section 46, because we had not exercised market power, relevantly, and we had not had the proscribed purpose.  That raised a number of issues on the evidence ‑ ‑ ‑

HIS HONOUR:   So Justice Mansfield heard all of that. 

MR FOSTER:   Heard all of that, decided ‑ ‑ ‑

HIS HONOUR:   Even though he knocked the case out at an earlier stage, he nevertheless decided those 46 issues, as well. 

MR FOSTER:   He did, against us.  In fact, it is fair to say, I think, in substance, we won the case in front of Justice Mansfield only on the ground that my learned friend has obtained special leave on.  Similarly, in the Full Court, that ground was upheld, but there was some what one might call cursory consideration given by the majority to section 46, but not a complete consideration, not to the same extent as Justice Mansfield had done, because the majority had a firm view about the point that my learned friend now has leave on.  Justice Finkelstein in dissent did look at section 46 at some length. 

HIS HONOUR:   So he was dissenting on what issue? 

MR FOSTER:   On everything, your Honour.  Principally, on the business issue.  He held that my learned friend’s point ‑ ‑ ‑

HIS HONOUR:   Everyone was of the same view on the question of the Crown in the right of the Northern Territory, were they not? 

MR FOSTER:   No.  There was a split on the Full Court. 

HIS HONOUR:   On that, as well? 

MR FOSTER:   Yes. 

HIS HONOUR:   Not just the carrying on business point? 

MR FOSTER:   I am sorry, no.  I think they were all at one, were they not, on the Crown in right of the Northern Territory? 

MR BANNON:   Crown immunity – all against us. 

MR FOSTER:   Yes.  All against my learned friend, but on the business point split 2:1. 

HIS HONOUR:   Yes. 

MR FOSTER:   So, your Honour, what has happened is that, in effect, there have been three judgments our way on this business point, one against.  There have been at least three, or perhaps two, against us on section 46, and we are here, of course, on the point that my learned friend has raised and we wish to agitate the other points because, your Honour, we think we have a chance of winning them.  They arise ‑ ‑ ‑

HIS HONOUR:   I suppose – I am looking at Order 70, rule 6(5) – the ambiguity may be: 

if a respondent –

that is you –

contends that some matter of fact or law has been erroneously decided –

I am not sure whether they thought they were actually deciding these 46 points. 

MR FOSTER:   Justice Branson made some cursory remarks about it, and we could say that she thought she was, but it certainly was not a detailed consideration of the matter. 

HIS HONOUR:   That is not the deficiency, if there is one, of either party.  I understand that. 

MR FOSTER:   No, but Justice Finkelstein certainly did decide them at great length and with some care.  They were raised, your Honour, if I can put it this way, on a notice of contention in very similar terms to the one now filed.  It is really unfortunate, in one sense, that they were not considered at great length, but we would submit to your Honour that, really, certainly it was decided by Justice Mansfield in terms, by Justice Finkelstein in terms, arguably by Justice Branson, but probably not by Justice Lee, and that therefore we are within the rule. 

HIS HONOUR:   Yes, and the actual order of the Full Court simply dismissed the appeal, did it not? 

MR FOSTER:   Yes. 

HIS HONOUR:   So you do not seek any change in that order. 

MR FOSTER:   No. 

HIS HONOUR:   So you say Order 70 rule 6(5) applies. 

MR FOSTER:   Yes, and, your Honour, that is where we are at.  The reason we have taken the precaution of doing what we have done is that on the special leave application there was some suggestion from the Court that perhaps we needed leave and that someone should have a look at that before the appeal went ahead. 

HIS HONOUR:   That is supposed to be me. 

MR FOSTER:   I think so.  Your Honour is looking at it, but it is as well, your Honour, helpful to have the matter before the Court, because we could seek some directions relating to an advancing of the normal times for doing things.  The matter has received a date. 

HIS HONOUR:   Yes.  That is 9 and 10 March. 

MR FOSTER:   Yes. 

HIS HONOUR:   Now, Mr Bannon, what do you say about this notice of contention point? 

MR BANNON:   We see the force of what is said in relation to the rule.  There are two things which could be said against that.  One is this, the rule refers to “a part of the judgment” and then the definition says a “judgment” includes an order or decree, and one accepts that ordinarily one would look at the final order, but none of the points which my friend seeks to raise bore on the issue on which we appeal, namely, whether or not they were carrying on a business.  But, yes, there would be other reasons for defending the case.  So that one could have a nice argument as to whether the rule applies or not, and I think we would say it does not apply in the first instance, although one recognises there may be some difficulties with that. 

The second thing which could be said about it is it has this oddity, that if they are right on their approach to the notice of contention, all of those matters would automatically get considered by the High Court, although if we had won on the business ground in front of the Full Court, we would say perhaps a slight difference from what my learned friend says – we say Justice Branson did go on to decide the 46 cases in our

favour ‑ but if we had won on the business point, they would have had the job of persuading the Court that any one of those issues was worthy of special leave. 

HIS HONOUR:   Yes, I know. 

MR BANNON:   An approach – and I am not suggesting, your Honour, it would be necessary to resolve it today, but perhaps it is for consideration on the appeal, an available approach may be for this Court to say, if we win on the business – if it were in our favour on the business, is the matter, albeit rather formally, can go back to the Full Court to make the orders which would follow, in accordance with their reasons, but as, perhaps, a condition of avoiding that result – sorry, in which event, then they could seek to persuade the Court again on a later occasion for special leave on one of those grounds – but as a condition of avoiding that result, it could be imposed on the respondent that they satisfy the Court that the matters they seek to raise by way of notice of contention are worthy of special leave.  It is a slightly cumbersome procedure ‑ ‑ ‑

HIS HONOUR:   Yes, it is. 

MR BANNON:   ‑ ‑ ‑ but it may be a practical solution to avoid having to consider each and every one of the several points they seek to raise. 

HIS HONOUR:   Yes.  Well, at the moment, it seems to me the notice of contention is soundly based. 

MR BANNON:   Perhaps I should just add – and I do not want to address this now – there is the potential that two of the points sought to be raised may involve points which were not put precisely that way below.  I would have to look at that a bit more closely before we put that argument. 

HIS HONOUR:   You would have your rights in respect of that. 

MR BANNON:   Yes.  On one view of it, some of the grounds sought to be raised invite a reconsideration of Queensland Wire.  On one view, one of the points sought to be raised is to say that – it may depend on the way they put it in submissions, but, on the face of it, it may raise the issue as to whether or not section 46 does require a predatory intent over and above the purpose. 

HIS HONOUR:   Are you proposing to have Queensland Wire reopened? 

MR FOSTER:   Not formally, your Honour, no. 

MR BANNON:   The second potential Queensland Wire issue is whether or not you need a transaction before you have a market.  That seems to be raised on their contentions, which, again, we would suggest, at the appropriate time ‑ ‑ ‑

HIS HONOUR:   Is that going to be in play?  At the point at which you actually start looking at it, you have to have a transaction first. 

MR FOSTER:   Well, put as starkly as that, no, but it is relevant.  There was a finding here and it was the fact that we had never made available our infrastructure in the way ‑ ‑ ‑

HIS HONOUR:   Yes.  There was a refusal to deal. 

MR FOSTER:   Yes. 

HIS HONOUR:   As in Queensland Wire. 

MR FOSTER:   Yes. 

HIS HONOUR:   All right.  Now, these 46 issues as to market, for example, is that going to be in ‑ ‑ ‑

MR FOSTER:   As to what the market was? 

HIS HONOUR:   Yes. 

MR FOSTER:   I do not think there is any real issue about that anymore. 

MR BANNON:   I do not think we took the view and I do not think they took the view that the alternatives made a difference. 

HIS HONOUR:   No.  What is the factual debate in the 46 field? 

MR FOSTER:   The factual debate essentially centres around purpose, your Honour.  In terms of debate, we would say it is a limited one, because of the way the evidence came out and the way the findings by the trial judge were ‑ ‑ ‑

HIS HONOUR:   There were findings about purpose, I think, by Justice Mansfield. 

MR FOSTER:   Yes, very detailed.  Essentially, it is around purpose and, connectedly, I suppose, the use of market power. 

HIS HONOUR:   Yes.  So there would be involved a challenge to the findings on purpose by the primary judge? 

MR FOSTER:   Not by us.  What actually happened was that, in terms of the way we put the case, in an evidentiary sense, we obtained findings which were favourable to us.  In substance, what then occurred was, his Honour reasoned from there that nonetheless, contrary to our legal argument, we were in breach.  My learned friend’s point really was that we were attempting to put some gloss on the section which was not available to us. 

HIS HONOUR:   Yes.  Now, how voluminous was the record? 

MR FOSTER:   I am told that in the Full Court there were eight lever‑arch folders.  I looked at the index before I came up, your Honour, and I think it was 4,000‑odd pages, 4,900 pages.  I have had a very brief word to my learned friend about whether all of that needs to go in ‑ ‑ ‑

HIS HONOUR:   Some of that had better be culled. 

MR FOSTER:   I think we can do that, your Honour.  I do not think ‑ ‑ ‑

MR BANNON:   A lot of it was damages, which is not there, and there were a number of agreements which I think were part of the appeal book, and we can agree on certain pages of that going in.  I would have thought we could cull it significantly. 

HIS HONOUR:   Yes.  It is to the advantage of both sides to have a Bench that does not feel oppressed by what has been produced by way of volume of material. 

MR BANNON:   I think Justice Mansfield dealt with the factual issues in such detail that it would rarely be necessary, I think – and I think both parties will be, in effect, relying on his Honour’s findings in that regard – it would rarely be necessary to go to primary evidence, but against the possibility that some finding needs to be explained then that is the approach we will take. 

HIS HONOUR:   Yes.  That requires some work to cull it out at this stage. 

MR BANNON:   Yes. 

MR FOSTER:   We had in mind, your Honour, that we could put forward a timetable which involved an early settling of indexes and so on, and if there was a difficulty we would have liberty to apply. 

HIS HONOUR:   Yes, that is right.  Has anyone got a draft? 

MR FOSTER:   I have not written it out, your Honour, but I can read it onto the transcript, if that is acceptable to your Honour. 

MR BANNON:   And we are agreed about that. 

HIS HONOUR:   Is it agreed? 

MR BANNON:   We have agreed. 

HIS HONOUR:   Yes.  Could you just tell me. 

MR FOSTER:   The first one is that the appellant circulate a draft index by 4 December 2003; that the respondents respond to that by way of additional deletion by 9 December 2003; that it be settled by 16 December 2003; that appeal books be prepared, filed and served by 23 January 2004; that the written submissions, chronology and accompanying material of the appellant in the appeal and of the respondents in relation to the notice of contention be filed and served by 24 February 2004. 

HIS HONOUR:   What about responses? 

MR FOSTER:   3 March 2004.  We could bring that forward, of course, if your Honour required it, to the 2^nd.  I think the practice note requires seven clear days.  And then liberty to apply, your Honour. 

HIS HONOUR:   On two days notice, I think. 

MR FOSTER:   Your Honour, I did make some inquiries about how long these appeal books take and we are comfortable ‑ ‑ ‑

HIS HONOUR:   Two days ‑ ‑ ‑

MR FOSTER:   If we can do them sooner, we will, your Honour. 

HIS HONOUR:   Liberty to apply on two days notice.  If you are going to utilise the liberty, it is going to be in relation to the index, I would imagine. 

MR FOSTER:   Yes, your Honour. 

HIS HONOUR:   So just give me a minute.  Yes, I will be in Sydney on the week of 15 December if any trouble arises, so if you could bear that in mind.  Subject to those points made about some of the notice of contention issues perhaps not having been argued that way in the Full Court – that is a matter of debate, I suppose – in principle it seems to me the notice of contention is the right way because it falls within the terms of the rule. 

Now, the only other thing that I need do is make orders on the summons in accordance with those seven steps indicated by Mr Foster, the last step being liberty to apply on two days notice to me or another Justice and costs of today will be costs of the appeal.

Is there anything else?

MR FOSTER:   No, your Honour.  I hesitate to ask, but I am told in this Court one has to have certification for counsel.

HIS HONOUR:   Yes, that is quite right.  Costs of today be costs in the appeal and – because you are notionally in chambers you see ‑ ‑ ‑

MR FOSTER:   Yes, your Honour.

HIS HONOUR:   ‑ ‑ ‑ and I certify for counsel.

MR FOSTER:   If your Honour pleases.

HIS HONOUR:   Yes, I was just about to forget that.  All right, we will now adjourn.

AT 9.49 AM THE MATTER WAS CONCLUDED