Ogilvie v Evoenergy (Energy & Water)

The applicant, Mr Ogilvie, purchased a residential block in approximately 2017 and sought to install an in-ground swimming pool without first obtaining approval from Evoenergy, the electricity provider. The swimming pool installation required relocation and other design changes due to the proximity of a buried low voltage electricity cable, installed by a predecessor of Evoenergy outside the electricity supply easement in about 1974. The applicant sought orders for Evoenergy to relocate the cable within the easement and compensation for the additional costs incurred in constructing the swimming pool. Evoenergy, authorised by statute to keep the cable in its current location, argued that the applicant had multiple opportunities to formulate grounds of claim and was provided with a chance to do so under orders on 15 February 2022. The Australian Competition and Consumer Commission (ACCC) dismissed the application on the grounds that it lacks substance and that giving the applicant a further opportunity to formulate the grounds of claim would be inconsistent with the tribunal principles in section 7 of the ACAT Act.

The legal issues that the tribunal had to decide included whether the applicant had grounds to require Evoenergy to relocate the cable within the easement and whether the applicant was entitled to compensation for additional costs incurred in constructing the swimming pool. The tribunal also considered whether the applicant had been given sufficient opportunities to formulate grounds of claim and whether dismissing the application on the grounds that it lacks substance and providing further opportunity to formulate the grounds of claim would be inconsistent with the tribunal principles in section 7 of the ACAT Act. The tribunal concluded that the applicant’s application lacked substance and that giving the applicant a further opportunity to formulate the grounds of claim would be inconsistent with the tribunal principles in section 7 of the ACAT Act.

The tribunal found that the applicant’s application lacked substance as it did not identify a legal basis for requiring Evoenergy to relocate the cable within the easement. The tribunal also found that the applicant had been given multiple opportunities to formulate grounds of claim, including under orders made on 15 February 2022. The tribunal concluded that giving the applicant a further opportunity to formulate the grounds of claim would be inconsistent with the tribunal principles in section 7 of the ACAT Act. The tribunal refused leave to amend the application and dismissed the application otherwise.

The tribunal orders that leave to amend the application in accordance with the document titled ‘Submissions of the Applicant’ filed pursuant to orders made on 15 February 2022 is refused. The application is otherwise dismissed.