Ogilvie v Jemena Networks (ACT) Pty Ltd & Icon Distribution Investments Ltd T/A Evoenergy (Appeal)
[2023] ACAT 20
•27 March 2023
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
OGILVIE v JEMENA NETWORKS (ACT) PTY LTD & ICON DISTRIBUTION INVESTMENTS LTD T/A EVOENERGY (Appeal) [2023] ACAT 20
AA 10/2022 (EW 0223/2021)
Catchwords: APPEAL – energy and water – of original decision to refuse leave to amend and otherwise dismiss an Energy and Water claim – basis for amendment – whether claims were specific enough to enable fair determination – whether claims likely to be defeated by provisions in ACTEW/AGL Partnership Facilitation Act 2000 – whether these provisions apply to the appellant’s land – whether other ACT legislation impliedly amends or repeals the Act or requires it to be read down – whether alleged breach of range of ACT legislation provides a cause of action – whether breach of natural justice – whether general alleged unfairness is a ground for remedy – no error of facts or law by the Original Tribunal – appeal dismissed
Legislation cited: ACT Civil and Administrative Tribunal Act2008 ss 7, 15, 16, 17, 22, 32, 47, 82
ACTEW/AGL Partnership Facilitation Act 2000 ss 8, 9, 10, 11, 19, 20, 35
Australian Capital Territory (Planning and Land Management Act) 1988 (Cth) ss 27, 28, 29
Common Boundaries Act 1981
Land Acquisition Act 1981 ss 33, 35
Legislation Act 2001 ss 13, 144, Dictionary
National Energy Retail Law (ACT) Act 2012
Seat of Government (Administration) Act 1910 (Cth) s 9
Utilities Act 2000 ss 121, 172, 178
Subordinate
Legislation cited: ACAT Procedures Rules 2020 rr 32, 33, 34
Cases cited:Alamdo Holdings Pty Ltd v Australian Window Furnishings (NSW) Pty Ltd [2006] NSWSC 1073
AON Risk Services Australia Ltd v Australian National University [2009] HCA 27
Council of the Law Society of the Australian Capital Territory v LP 201920 [2021] ACAT 16
Goodwin v Phillips [1908] HCA 55
House v The King [1936] HCA 40
Norbis v Norbis [1986] HCA 17
Ogilvie v Evoenergy [2022] ACAT 45
Saraswati v The Queen [1991] HCA 21
List of
Texts/Papers cited: Dennis Pearce, Statutory Interpretation in Australia (Lexis Nexis, 9th ed, 2019)
Tribunal:Temporary Presidential Member R Orr KC
Date of Orders: 27 March 2023
Date of Reasons for Decision: 27 March 2023
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AA 10/2022
BETWEEN:
MATTHEW OGILVIE
Appellant
AND:
JEMENA NETWORKS (ACT) PTY LTD & ICON DISTRIBUTION INVESTMENTS LTD T/A EVOENERGY
Respondent
APPEAL TRIBUNAL: Temporary Presidential Member R Orr KC
DATE:27 March 2023
ORDER
The Tribunal orders that:
The appeal is dismissed.
The orders made by the Original Tribunal on 20 April 2022 are amended to provide as follows:
(a)Leave to amend the application in accordance with the documents titled ‘Submissions by applicant’ dated 22 November 2021; ‘Submissions by applicant’ dated 6 December 2021; and ‘Submissions by applicant’ filed pursuant to orders made on 15 February 2022 on about 7 April 2022, is refused.
(b)The application in the Energy and Water division of the tribunal by the applicant lodged on 1 June 2021 is dismissed.
………………………………..
Temporary Presidential Member R Orr KC
REASONS FOR DECISION
These proceedings concern an original Energy and Water complaint to the tribunal under the Utilities Act 2000 by Matthew Ogilvie (Mr Ogilvie, applicant and now appellant) against Evoenergy, which is the trading name of Jemena Networks (ACT) Pty Ltd & Icon Distribution Investments Ltd (Evoenergy or respondent). As it developed, this complaint in fact raised broader issues.
In brief summary, Mr Ogilvie bought his home in September 2017. There was an easement on the land for electricity services, of which he was aware before purchase. In due course, Mr Ogilvie wanted to build a swimming pool for his family, which he proceeded to do. He had dealings with the respondent in relation to this. It turned out that there was an underground electricity line in the ground of his property but outside the easement (electricity line or wires). He said he had no notice of this line, and it was only discovered by accident. When discovered and considered, this meant he could not build the pool in the place and form he wanted, though he has now built an alternative. He argued that there was significant unfairness in these events. But, as is sometimes the case, it was not easy to put that claim of unfairness into a form which gives rise to a legal liability which the tribunal can enforce.
In essence, Mr Ogilvie wants Evoenergy to move the electricity line onto the easement and to pay him damages. Evoenergy denies the claim.
These proceedings had a somewhat difficult passage through the tribunal as set out in the original decision of Senior Member Orlov entitled Ogilvie v Evoenergy[1] (original decision by Original Tribunal). In summary, that process involved the following major steps by the applicant:
(a)An Energy and Water complaint by the applicant lodged on 1 June 2021 (original claim).
(b)Submissions by applicant dated 22 November 2021 (November document), which seems to be a claim in negligence.
(c)Submissions by applicant dated 6 December 2021 (December document) which state that the claim is in relation to a consumer contract under section 178 of the Utilities Act, or alternatively is a civil dispute in contract, or perhaps in negligence or trespass, but this is not made clear.
(d)Submissions by applicant filed on about 7 April 2022 (April document). This states that the claim is a damages application, presumably a negligence claim, trespass claim and other civil dispute application, and also an application that Evoenergy comply and abide by the requirements of a range of ACT laws.
[1] [2022] ACAT 45
For reasons discussed below, I refer to the November document, December document, and April document as the proposed amended claims.
The respondent, on 24 November 2021, requested that the tribunal list the matter for directions to enable it to raise jurisdictional issues. After a directions hearing on 29 November 2021, the applicant filed the December document and the respondent a Points of defence dated 13 December 2021 with attachments (Points of defence), and a document entitled Formation of contracts under National Energy Retail Law dated 17 December 2021 (Formation of contracts document).
By orders dated 20 April 2022, the Original Tribunal refused leave to amend the application in accordance with the April document (and, as discussed below, it seems also the November and December documents), and the application was otherwise dismissed (as discussed below it seems it was the original claim which was dismissed), and reasons for this decision were provided. It appears that leave to amend was refused under sections 23 and 47 of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act). It is clear from the reasons that the application was dismissed under section 32(2) of the ACAT Act because it was lacking in substance.
Mr Ogilvie now appeals that decision. The respondent made an application for dismissal of the appeal under section 32 of the ACAT Act, and otherwise opposes the appeal.
Summary of the decision of this Appeal Tribunal
I do not think it is appropriate to dismiss this appeal under section 32 of the ACAT Act and, in my view, Mr Ogilvie raises a number of issues in his appeal which should be addressed.
However, the decision of the Original Tribunal to refuse leave to amend and dismiss the original claim did not contain an error. As the Original Tribunal noted, the tribunal can give significant leeway to complainants as to how they formulate their claims, but there needs to be sufficient formulation to enable the respondent to understand and respond to the claim, and the tribunal to understand and determine it. To simply say in the proposed amendments that this is a negligence claim, or a trespass claim, or that there has been non-compliance with a very wide range of ACT legislation, is not sufficient. On this basis the Original Tribunal refused leave to amend the original claim, and there was no error involved in this.
Further, the respondent argued and the Original Tribunal agreed that most of the claims which seem to be made in the November, December, and April documents are likely to be defeated by section 10(7) of the ACTEW/AGL Partnership Facilitation Act 2000 (Facilitation Act). Mr Ogilvie argues:
(a) that the provisions in that Act do not apply to his land;
(b) that his land is national land, and therefore comes within the exclusion of this in sections 8 and 10 of that Act; and
(c) that the Facilitation Act does not apply to land the subject of an easement, or electricity lines which are outside an existing easement.
There is no support for these arguments in the Facilitation Act.
Mr Ogilvie also argues that other ACT legislation is inconsistent with and in effect, therefore, impliedly amends or repeals the Facilitation Act, or that the Facilitation Act should be read down in light of that legislation. There was nothing put forward which impliedly amends or repeals the Facilitation Act or suggests it should be read down.
There was no error in the decision of the Original Tribunal that the proposed amended claims are likely to be defeated by the Facilitation Act.
Also, the terms of those Acts set out by Mr Ogilvie do not give rise to a right for him to require the electricity lines to be moved onto the easement, or for damages.
It is not completely clear what documents the order of the Original Tribunal that “leave to amend the application is refused” referred to; I clarify this as the three proposed amended claims in the orders I make. Also, it was not completely clear what the order that the application was otherwise dismissed referred to; I think that this was only the original claim, and I clarify this in the orders I make.
There is no error in the Original Tribunal’s decision that the original claim should be dismissed because it is lacking in substance.
Overall, this means that because there is only a refusal to allow the proposed amended claims, there is no restriction on Mr Ogilvie properly reformulating his proposed amended claims for negligence or trespass, or failure to comply with a statute, in further applications to the tribunal and other bodies. I also note section 35 of the Facilitation Act provides for a claim in relevant circumstances against the ACT Government, and Mr Ogilvie could consider making such a claim.
No ground of appeal was made out, so the appeal is dismissed. The orders of the Original Tribunal are clarified.
Original Tribunal’s decision
The original decision sets out in some detail the claims made and the process that took place in considering these. I do not repeat this. However, in brief summary, the Original Tribunal’s decision found that the proposed amended claims did not give rise to any liability on the part of Evoenergy. The claims left the respondent to speculate on a range of important matters.[2]
[2] Original decision at [37]-[39]
Further, as Evoenergy argued, the claim was likely to be defeated by section 10(7) of the Facilitation Act.[3]
[3] Original decision at [40]-[52]
The alleged failure of Evoenergy to comply with the requirements of certain Acts and regulations was not made out. Mr Ogilvie had failed to identify any discernible basis upon which it could be said that Evoenergy had failed to do something which is capable of giving rise to a liability in damages.[4] Further, he had not provided a basis for the contention that Evoenergy is liable in damages for the alleged negligent acts or omissions of its predecessors.[5]
Appeal documents
Grounds of appeal and appellant’s materials
[4] Original decision at [53]
[5] Original decision at [54]
In his application for appeal dated 17 May 2022 (Application for appeal), Mr Ogilvie stated that he had made a case where under many Acts, regulations, or codes Evoenergy had an obligation to put their infrastructure into the easement, and, in relation to his land, it is not. He said that none of the evidence he supplied was tested in the Original Tribunal hearing. He also said he had established that the installer in 1973 failed to install its asset in the easement and that Evoenergy took on the liability of the existing asset. He asked for an examination of why Evoenergy can have an asset in his property and not in the easement. He said he was not afforded natural justice and was not given an inexpensive option for resolution or justice. He also said he did show that Evoenergy had responsibility for what are now their assets.
The appellant’s submissions which begin with “Dear ACAT” set out his proposed further amended claim, and the Original Tribunal decision with his arguments as to why it is wrong as annotations (Appellant’s submissions).
Respondent’s materials
The respondent provided a response to the appellant’s material dated 16 September 2022, a response to the list of errors dated 8 August 2022, an application for dismissal, and submissions in support of the application for dismissal dated 5 August 2022 (Respondent’s appeal dismissal submissions). There was also a response to the appellant’s material dated 16 September 2022 (Respondent’s response to appellant’s material). The respondent also provided a useful bundle of documents relevant to the proceedings (Respondent’s bundle of documents).[6]
Nature of appeal
[6] Transcript of proceedings, 4 October 2022, page 6, as to documents generally, see pages 6-10
The appeal was dealt with as a review under section 82(b) of the ACAT Act. On that basis, the appellant needs to establish an error of fact or law in the original decision in order to succeed.[7]
[7] ACAT Act, section 79(3)
Importantly, the two decisions made by the Original Tribunal were the exercise of a discretion. Section 23 of the ACAT Act provides that the tribunal may decide its own procedure, section 47 of the ACAT Act provides that the tribunal may order that a document be amended, or with the agreement of the parties – give leave to a party to amend a document of the party. Section 32(2) of the ACAT Act provides that if the tribunal considers an application is lacking in substance it may dismiss the application.
Because the decision of the Original Tribunal was an exercise of discretionary power, there is a presumption in favour of the correctness of the decision appealed from, and the decision should be affirmed unless the Appeal Tribunal is satisfied that the decision is clearly wrong. It is not enough that the Appeal Tribunal consider that they would have exercised the discretionary power differently if they had comprised the Original Tribunal, or that they would prefer a different result from that favoured by the Original Tribunal. The existence of an error of law or fact on the part of the Original Tribunal is a condition of a successful appeal. If the Appeal Tribunal is satisfied that there was an error, it may exercise its discretion in substitution for the decision of the Original Tribunal.[8]
Appeal dismissal application
[8] House v King [1936] HCA 40; Norbis v Norbis [1986] HCA 17; Council of the Law Society of the ACT v LP 2021 [2021] ACAT 16 at [62]-[66]
As noted, the respondent has sought to have the appeal dismissed under section 32 of the ACAT Act.
I do not think it is appropriate to do so, nor do I think I can do so. The original decision was to refuse leave to amend an application and dismiss the application. In an appeal, as noted, the appellant has to show an error of fact or law in the original decision; it is not a rehearing in this case. In these circumstances, I do not see any utility in considering dismissing the appeal. It seems more appropriate to do what the appellant seeks, to determine the appeal. Further, the appellant does raise a number of possible errors which he is entitled to have addressed. The Respondent’s appeal dismissal submissions are generally simply setting out why the appeal should fail, and I consider them on that basis.
Decision to refuse leave to amend
The first decision of the Original Tribunal was to refuse Mr Ogilvie leave to amend his original claim.
There is no right to amend a claim, nor a presumption that a party can amend a claim. This is clear from the terms of section 47 of the ACAT Act, and this is also the modern approach by courts and tribunals.[9] Rather there needs to be a basis for the amendment, and in the case of proceedings in ACAT the terms of section 7 of the ACAT Act provide assistance in determining this.
[9] Aon Risk Services Ltd v Australian National University [2009] 27 at [96]. See also generally rr 33-34 of ACT Civil and Administrative Tribunal Procedure Rules 2020 which provide for an obligation to amend in certain circumstances
As noted, the Original Tribunal found, first, that the proposed amended claims do not give rise to any liability on the part of Evoenergy and left the respondent to speculate on a range of important matters.[10] Second, the proposed amended claims are likely to be defeated by the Facilitation Act. I say likely because it seems this second finding was influenced by the first, that is the failure to specify aspects of the claims meant it was difficult to determine completely the operation of the Facilitation Act in relation to them.
[10] Original decision at [37]-[39]
These seem to me to be appropriate considerations.[11] The appellant does not seem to attack these as irrelevant considerations, but rather suggests that the proposed amended claims do in fact provide the basis of an appropriate claim of liability, which is not met by the Facilitation Act, and which should be determined in his favour.
[11] Alamdo Holdings Pty Ltd v Australian Window Furnishings (NSW) Pty Ltd [2006] NSWSC 1073.
The Original Tribunal, and indeed the respondent, seemed to accept the basic facts in relation to Mr Ogilvie’s position, namely that he bought his home in September 2017.There was an easement on the land for electricity services, of which he was aware before purchase. He wanted to build a swimming pool for his family, but it turned out that there was also an electricity line in the ground of his property and outside the easement. This meant that he could not build the pool in the place and the form he wanted, though he has now built a pool to an alternative plan.[12] The respondent stated that Mr Ogilvie could have found out about the electricity line, but provided no detail of how that could have been done.[13] I accept that Mr Ogilvie made inquiries before his purchase which did not disclose the existence of the electricity line. The respondent’s position was that the existing network installation predates the year 2000;[14] this did not seem to be contested by the appellant. The appellant put the date in 1973, but without providing evidence of this.[15]
[12] Statement of Mr Ogilvie dated 1 November 2021
[13] Transcript of proceedings, 4 October 2022, pages 59 and 60
[14] Respondent’s response dated 1 June 2021
[15] Application for appeal
Mr Ogilvie clearly regards this as an unfair situation, which had a real impact on him in relation to his swimming pool, but general alleged unfairness is not a ground for bringing a successful claim in the tribunal which requires establishment of a legal basis for the claim in relation to which the tribunal has jurisdiction to hear and grant remedies. Unfortunately, there is sometimes general alleged unfairness for which there is no legal remedy, or for which setting out the basis for a possible remedy is difficult, and this seems to be the case here.
I consider first the bases of the proposed amended claims.
Utilities Act
The original claim in these proceedings was brought under the Utilities Act. This is the claim which was dismissed and is discussed below in that context. The decision in relation to amendments does not apply to this application, which as noted was rather dismissed.
Negligence
Mr Ogilvie sought to amend this claim to one in relation to torts, the most relevant of which appear to be negligence or trespass.
As to negligence, the appellant stated that the original positioning of the wires outside the easement by the predecessors of the respondent was done negligently.[16] He later asserted that the respondents assumed the rights and obligations of their predecessors.[17]
[16] November document
[17] December document; see original decision at [22(a)], [40]-[43] and [54] on this issue
The elements of negligence involve: the existence of a duty of care by the respondent to the applicant; a breach of that duty in particular actions or inactions on particular dates and at particular places; and reasonably foreseeable damage caused by the breach of duty.[18] The current position of Mr Ogilvie[19] does not by itself provide a basis for a claim or finding negligence and does not address these key issues. More is needed. In particular, the current position gives rise to particular issues.[20]
[18] Lexis Nexis, Concise Australian Legal Dictionary (2021), definition of negligence
[19] As summarised in paragraph [35] above
[20] See original decision at [22]
It is true that the tribunal is required under section 7 of the ACAT Act to seek to ensure its procedures are as simple, quick, inexpensive and informal as is consistent with achieving justice. Formal pleadings are not required. Informal applications are often made and considered. As the Original Tribunal noted, the tribunal can give significant leeway to complainants as to how they formulate their claims.
However, there is a basic level of information which does need to be provided. A claim for negligence does need to show how the basic requirements of liability on this basis are met. This arises for a range of reasons. It includes fairness to the respondent. Section 7 of the ACAT Act refers to this when it limits the informality to that as is consistent with achieving justice and further requires the tribunal observe natural justice and procedural fairness. This also includes that the informality should not require the tribunal itself to make out the claim. Again, the tribunal can and often does assist a claimant to formulate their claim, but the principal function of the tribunal is to determine the claim, not to formulate it.
There are significant matters of judgment and discretion involved in deciding whether a claim can be fairly considered. The Original Tribunal took the view that with regard to negligence the proposed amended claims did not meet that standard. Mr Ogilvie has not shown an error in that finding, and I do not see any error in that finding.
Trespass
The other most likely tort claim arising from the current position of Mr Ogilvie is in trespass to land. The requirements for such a claim have been summarised as the intentional or negligent specified act of an individual which directly interferes with another individual’s exclusive possession of land without lawful justification.[21] Again, the current position of Mr Ogilvie[22] does not by itself provide a basis for a claim or finding of trespass and does not address these key issues. More is needed.
Other bases
[21] Lexis Nexis, Concise Australian Legal Dictionary (2021), definition of trespass to land
[22] As summarised in paragraph [35] above
The April document also refers to “a nuisance application”. This is in the same position as the negligence and trespass claim. It refers to “an application stated to be a civil dispute application in an authorising law”, but no authorising law is specified, so it is an even more unclear position than the negligence and trespass claims. It then says, “a common boundaries determination”, but no further details are given as to how it could be this, so it is also in an even more unclear position that the negligence and trespass claims. It also refers to a “debt application – invoices to be issued”; again, no details are provided. The respondent in the appeal said an invoice was issued in June 2022[23] which was after the original decision and so was not dealt with in it. It was referred to by Mr Ogilvie.[24] This claim is also in an even more unclear position than the negligence and trespass claims.
Contract
[23] Transcript of proceedings, 4 October 2022, pages 48-49
[24] Appellant’s submissions, last page, is an invoice to Evoenergy from Mr Ogilvie claiming $25,000 in land rental
The December document states that as an alternative the claim is that the “respondent’s pay the applicant an amount … for damages for breach of contract”. The grounds state that dealings between the appellant and the respondent in relation to the proposed swimming pool constituted a consumer contract under the Utilities Act, and that section 178 gives ACAT jurisdiction. There is no attempt to identify the nature or terms of that contract or what constituted the breach. Alternatively, it is said to be a contract within the general law and therefore a civil dispute under section 22 of the ACAT Act. Again, there is no attempt to identify the nature or terms of that contract or what constituted the breach.[25]
[25] Respondent’s points of defence
The respondent to its credit agreed that there was a contract and set out in detail how that arose and its terms. It was said it was regulated by the National Energy Retail Law (ACT) Act 2012 (National Energy Retail Law). The respondent argued that there had been no breach. The applicant made no attempt to address these details. It remains the case therefore that there has been no attempt by him to set out the nature or terms of that contract or what constituted the breach.
Breach of statute
The appellant has also attempted to amend his claim to one of “breach of statute”. In the April document, Mr Ogilvie set out in his proposed amendment a wide range of legislation.[26] The Appellant’s submissions set out these statutes again.[27]
[26] April document, pages 2-34
[27] Appellant’s submissions, pages 2-3, 10-11, and 26
Two issues seem to arise here. First in relation to the negligence and trespass claims, and perhaps the other claims noted above, the respondent raised issues under the Facilitation Act. The appellant seems to respond by saying that the Facilitation Act provisions do not apply to his land, and are inconsistent with, or overridden by, other legislation, perhaps, as I discuss below, put as an argument that the Facilitation Act has been repealed by this range of legislation. I deal with this issue first at paragraphs [52]-[78] below.
Second, it also seems to be argued that the other legislation itself gives a cause of action, or that breach of this legislation can be the basis of proceedings in the tribunal. I deal with this issue second at paragraphs [77]-[78] below.
Facilitation Act
As noted, the respondent has raised the Facilitation Act as in effect a defence to the claims, in particular in negligence and trespass.
The key provision is section 10 of the Facilitation Act, which states in section 10(1) that the Minister may declare that the section applies to network facilities. The term ‘network facility’ is defined in section 8 in summary as something attached to non-ACTEW or non-AGL land and used, or formerly used, by ACTEW, AGL or a subsidiary of either of them in the course of operating a network. ‘Non-ACTEW land’ means any land in the ACT not owned by ACTEW or a subsidiary of ACTEW, other than national land (emphasis added). ‘Non‑AGL land’ means any land in the ACT not owned by AGL or a subsidiary of AGL, other than national land (emphasis added).
National land?
The Original Tribunal held in effect that a relevant declaration applied to Mr Ogilvie’s land.[28] In this appeal, Mr Ogilvie argued that his land was national land and that as such a declaration could not apply to it.[29]
[28] Original decision at [48]-[51]
[29] Transcript of proceedings, 4 October 2022, pages 41-42, 45-46; 53-56 (respondent’s oral submissions)
This is not an easy issue to work out. National land is not defined in the Facilitation Act. It is defined in the dictionary, part 1, to the Legislation Act 2001 to mean “National Land under the Australian Capital Territory (Planning and Land Management) Act 1988 (Cth)” (Commonwealth ACT Planning Act). A note states that if an area of land in the ACT is, or is intended to be, used by or on behalf of the Commonwealth, it may be declared National Land under the Commonwealth ACT Planning Act, section 27. Section 144 of the Legislation Act states that a definition in the dictionary, part 1, applies to all Acts and statutory instruments. This includes the Facilitation Act.
‘Statutory instruments’ is also defined in section 13 of the Legislation Act and includes an instrument (whether or not legislative in nature) made under an Act. A declaration under section 10 of the Facilitation Act is therefore a statutory instrument.
The Commonwealth ACT Planning Act provides that the Commonwealth Minister may declare specified areas of land in the Territory to be National Land (section 27(1)) but the Minister shall not declare an area to be National Land unless the land is, or is intended to be, used by or on behalf of the Commonwealth (section 27(2)). The appellant provided no such declaration in relation to his land, and it is clear no such declaration could have been made.
Section 28 provides that at any time when any land in the Territory is not National Land, that land is Territory Land for the purposes of that Act. The ACT executive, on behalf of the Commonwealth, has responsibility for the management of Territory Land; and, subject to section 9 of the Seat of Government (Administration) Act 1910 (Cth), which is not relevant, may grant, dispose of, acquire, hold and administer estates in Territory Land (section 29(1)). The Territory Assembly can make laws about Territory land.[30] The Facilitation Act is such a law.
[30] Sections 22 and 23 of the Australian Capital Territory (Self-Government) Act 1988 (Cth)
This means that for the purposes of section 10 of the Facilitation Act, Mr Ogilvie’s land is not national land, but is Territory land.
Only applies to wires on an easement?
Mr Ogilvie also argues that the Facilitation Act only operates where the wires are on an easement, at least in circumstances like his property where there is an easement.[31] No basis was given for this in the text, context of purpose of the Facilitation Act. I can see no basis for reading the Facilitation Act in this way. Quite the opposite, if wires are on an easement, there is little need for the Act. The Act’s principal purpose seems to be in relation to wires where the operator has no rights to the land, that is there is no easement, or the wires are outside any easement, such as in this case.[32]
General operation of Facilitation Act
[31] Transcript of proceedings, 4 October 2022, pages 39, 46-47, 57-58 (respondent’s oral submissions)
[32] See section 9 of the Facilitation Act
Section 10 of the Facilitation Act goes on to provide:
(5) When a declaration takes effect in relation to a network facility, the facility, by force of this section—
(a)is severed from the land and remains severed; and
(b)vests in the corporation in which the declaration states that the facility vests, without any conveyance, transfer or assignment.
…
(7) A corporation in which a facility has vested has, by force of this section, the following rights in relation to a network facility to which this section applies:
(a)to have the facility (including any lines, pipes, equipment and any other thing ancillary to any other part of the facility) remain on, under or over the land for the provision of utility services;
(b)for that purpose, to use, or continue to use, the facility;
(c)to enter and occupy land on, above or under which the facility is located, and to undertake work on that land, to maintain the facility.
The original decision refers to a declaration made under section 10(1) of the Facilitation Act.[33] No issue was raised in relation to this in the appeal.
[33] Original decision at [48]
Section 11 of the Facilitation Act provides for declarations vesting assets, rights and liabilities in one or more joint venture entities. The original decision also refers to section 11 and relevant declarations under it,[34] and no issue was raised in relation to this in the appeal. As to a section 11 vesting, section 19 provides that no operation of the relevant part 3 places a person in contravention of a Territory law, in breach of an agreement, or guilty of a civil wrong. It is unclear if section 19 is relevant; the respondent did not appear to rely on it in this case.
[34] Original decision at [50]
On the basis of section 10, the respondent argues that the network facility on Mr Ogilvie’s land vested in the relevant corporation, and the respondent now has the right to have the facility remain under Mr Ogilvie’s land for the provision of utility services; and continue to use, the facility; and to enter and occupy land on, above or under which the facility is located, and to undertake work on that land, to maintain the facility.
Is the Facilitation Act inconsistent with or been overridden by other ACT legislation?
In his April document and in this appeal, Mr Ogilvie argues that this position is contrary to a wide range of ACT legislation.[35] This issue as then formulated was addressed in the original decision.[36]
[35] This other legislation is set out in the April document at [7]; and original decision at [2]
[36] Original decision at [53]
The issue in the appeal was in part more to the effect of these other laws on the Facilitation Act. Mr Ogilvie stated that there was a “requirement for the infrastructure to go in” the easement;[37] and that in “each one of those Acts or Regulations [which he referred to] there is a section that states something of relevance … where it requires the authorising electricity company … to have their infrastructure in an easement”;[38] and that “when you have one Act or regulation for the lay person telling you that my electricity supplier must do something, and then a later piece of legislation … [saying] they can do whatever they damn well please”[39] – in effect the provisions requiring use of the easement override the Facilitation Act’s allowing whatever the supplier wants.
[37] Transcript of proceedings, 4 October 2022, page 39, lines 8-9
[38] Transcript of proceedings, 4 October 2022, page 39, lines 32-36
[39] Transcript of proceedings, 4 October 2022, page 40, lines 5-19
The argument that the Facilitation Act provisions could not operate because of these other legislative provisions needs to be put in a legal form, and I attempt to do this and make several points. First, the basis for an argument that the Facilitation Act no longer operates is that it has been repealed. There has been no formal repeal. But, second, it is possible to argue that its terms have been impliedly repealed by the legislation specified. The principle in relation to implied repeal is summarised as that where the provisions of a particular Act dealing with a particular subject matter are wholly inconsistent with the provisions of an earlier Act dealing with the same subject matter, then the earlier Act is repealed by implication.[40] It has been suggested that the concept of ‘implied repeal’ includes where one Act stands in place of the other so that they both cannot have effect at the same time. It has also been argued that contradiction is a preferable term to inconsistency, and that it is better to say that the later Act displaces or supersedes the earlier, rather than repeals it.[41] However, courts and tribunals do not readily accept that such a repeal has occurred, especially where the Acts come from the same source, that is the same legislature, as they do here. In the absence of express words, an earlier provision is not repealed. Rather, and third, there is a presumption that both should operate, and that to the extent that they would otherwise overlap, one should be read as subject to the other. Often provisions in Acts which appear to be in conflict are simply intended to operate in parallel.[42]
[40] Goodwin v Phillips [1908] HCA 55, Griffith CJ, discussed in D Pearce, Statutory Interpretation in Australia (LexisNexis Butterworth, 9th ed., 2019) (Pearce) at [7.9]
[41] Pearce at [7.9] and [7.10]
[42] Saraswati v The King [1991] HCA 21, Gaudron J at [4]; Pearce at [7.11], [7.12]
Fourth, modern legislation can be complex and sits within a complex legislative environment. Legislation has a wide range of policy objectives. Inconsistency in policy objectives has no legal effect. It is simply the result of a complex world where there are diverse policy objectives.
Fifth, as noted, at the hearing Mr Ogilvie stated that in the range of legislation he points to there is a “section that states something of relevance”, in particular “where it requires the authorising electricity company … to have their infrastructure in an easement”.[43] It is not enough that the other legislation say “something of relevance”. In order to affect the Facilitation Act, what it says needs to fall within the legal principles of repeal, displace or supersede. If other later legislation said that the Facilitation Act only operates where there is an easement, or if it said that an energy operator must now, notwithstanding the Facilitation Act, move its lines onto any easement, this would be likely to affect the Facilitation Act. However, if the other legislation simply has a different policy focus, this will have no effect on the Facilitation Act.
[43] Transcript of proceedings, 4 October 2022, pages 39-40
I have read the summary of the legislation provided by the appellant in his April document, Application for appeal, and Appellant’s submissions. I do not see any basis in this material for an argument that there has been an implied repeal of the Facilitation Act, or that the Facilitation Act should be read down in light of the provisions. I note just a few of the many provisions.[44]
[44] The Original Tribunal took a similar approach; see original decision at [53]
First, the definition of occupier in the Common Boundaries Act 1981 is just a definition for the purposes of that Act.[45] That definition itself does not have any impact on the Facilitation Act, and the definition does not support an argument that the appellant’s land is national land for the purposes of the Facilitation Act.[46]
[45] April document at page 3; Application for appeal at page number 3; Appellant’s submissions at pages numbered 2, second 2, 10, and 26
[46] See above [55]-[60]
Second, section 33 of the Land Acquisition Act 1981 (Land Acquisition Act) is part of a scheme by which an “acquiring authority” can compulsorily acquire land in the ACT. There is nothing in section 33 which the appellant quotes which provides that other legislation cannot also acquire land. The Facilitation Act may well have acquired land, and section 35 of that Act specifically provides for compensation for such an acquisition.
It is true that the Lands Acquisition Act and the Facilitation Act take different approaches to acquisition of land and reflect different policies, but section 33 of the Lands Acquisition Act does not have any impact on the Facilitation Act. Further, section 20 of the Facilitation Act specifically states that the Lands Acquisition Act does not apply to anything done under the Facilitation Act. In any case, both these Acts were made before the Facilitation Act, so if there were to be any argument for implied repeal or reading down it would be more likely of the earlier Acts by the later Facilitation Act. Similar comments can be made in relation to other sections quoted by the appellant.
Third, I note in particular the reference to the Utilities Act, since I come back to this below.[47] The provisions referred to concern definitions used in that Act, that other laws are not affected, conditions on licences, industry codes, general powers, performance of network operations, clarifying ownership of network facilities[48], ACAT jurisdiction, and compensation. Mr Ogilvie provides no guidance as to which of these is contrary to the Facilitation Act, and if so how. I cannot see any contradiction.
[47] Transcript of proceedings, 4 October 2022, page 37
[48] Section 121 of the Utilities Act is similar to the Facilitation Act
None of the provisions noted state or imply that that the Facilitation Act only operates where there is an easement, or that an energy operator must now, notwithstanding the Facilitation Act, move its lines onto any easement.[49]
[49] See [61] above
I also note that section 9 of the Facilitation Act provides that the purpose of part 3 is “to remove uncertainty about the ownership of certain network facilities”. This purpose suggests that its terms should not be undercut by other Territory legislation without clear words which do so.[50]
[50] Legislation Act, section 139
I have not gone further and undertaken my own investigation of the legislation. This would be a major and onerous task. In my view, it is up to the appellant to specify which provisions he says have impliedly repealed the Facilitation Act and the basis on which they do so.
It is true that there does seem to be some difference between the policy of some of this legislation and the policy in the Facilitation Act, and that this legislation does not acknowledge the Facilitation Act, and perhaps even assumes that there is no Facilitation Act. In an era of complex legislation across many subject areas, this is not surprising, but this is not enough to repeal or require reading down of the terms of the Facilitation Act.
Does the other legislation give a cause of action?
Similar issues arise in relation to the argument that the other legislation itself gives a cause of action, or that breach of this legislation can be the basis of proceedings in the tribunal. First, it is necessary to show that the relevant legislation imposes an obligation on the respondent to take, or not to take, the specific relevant action. The appellant does not show this, and my consideration of the legislation identified does not show this. Mr Ogilvie stated that there was a “requirement for the infrastructure to go in” the easement;[51] but the provisions he specifies do not do say this. It is not enough that the Acts or regulations state “something of relevance” to the issues of land and infrastructure.[52]
[51] Transcript of proceedings, 4 October 2022, page 39, lines 8-9
[52] Transcript of proceedings, 4 October 2022, page 39, lines 32-36
Second, even if there were such a provision, it is necessary to show that the tribunal is able to consider a claim to enforce that obligation. Generally that is not the case. It is true that the tribunal has jurisdiction under the Utilities Act, and this was the basis of Mr Ogilvie’s original claim, which I return to below. It is also true that there is a general cause of action for breach of statutory duty, which can arise where a statute imposes an obligation for the protection of a particular class of persons, is intended to provide a ground of liability, and there is a breach of the obligation, which causes injury or damage of a kind which the statute was designed to afford protection. The most common example is workplace injury legislation.[53] The tribunal may have jurisdiction in relation to such a claim under section 17 of the ACAT Act, as it does for claims of negligence and trespass. But as with the claims of negligence and trespass, the appellant has not set out the basis for such a claim.
Summary in relation to refusal of amendment
[53] Lexis Nexis, Concise Australian Legal Dictionary (2021), definition of breach of statutory duty
Therefore, I do not think that the appellant has demonstrated an error of fact or law in relation to the decision of the Original Tribunal to refuse to allow the amendments.
What amendments are subject to the refusal of amendment?
It is not completely clear what the order by the Original Tribunal in relation to refusal of amendment applied to, that is whether it concerned just the April document, or also the November and December documents. The respondent submitted that it was all three, and the appellant did not dispute this.[54]
[54] Transcript of proceedings, 4 October 2022, pages 11-20, 31-32, and 61-62
I think this is appropriate. I have clarified this in the orders made. It has the result that no decision has been made by the tribunal in relation to the claims specified in the three documents. No principle of estoppel, or similar concept, applies to these claims. If he wants to, Mr Ogilvie can seek again to reformulate these claims appropriately and bring proceedings in the tribunal or elsewhere.
Original claim dismissal
The appellant filed the original claim on 1 June 2021. This was an Energy and Water complaint, made under section 172 of the Utilities Act, which provides that a complaint may be made in relation to matters in column 3 of the table set out there. The appellant did not set out a clear basis on which a claim was made under section 172.
In the December document, reference is made to the Utilities Act and a consumer contract under that Act. The appellant there sets out that he sought approval to relocate the house wires, the respondent granted this approval, and the appellant paid a sum of $2,020.93. The appellant alleges a breach of this agreement and that this gives the tribunal a power to make directions.[55] I note that item 1 in section 172 does refer to a contravention of customer contract, or customer retail contract or customer connection contract made under the National Energy Retail Law, by a utility. Therefore, the tribunal does have jurisdiction in relation to such a matter.
[55] December statement at [11]-[13] and [18(a)]
The respondent has addressed this argument in their Points of defence dated 13 December 2021 and Formation of contract document dated 17 December 2021. The respondent admits that there was a customer connection contract on the terms of the respondent’s model standing offer for basic connection services. As required by this contract, the respondent placed the underground service cable in a place chosen by the appellant; the respondent discharged its obligations under that contract; and importantly there is no requirement in the contract or any law that service cables be relocated to the easement. The appellant provides no contrary details as to this position either in his original complaint, or the November, December or April documents.
Section 176(1) of the Utilities Act provides that ACAT may dismiss a complaint about a utility if satisfied that the relevant part of the Act does not apply to the matter complained of, a remedy more appropriate that action under the part is readily available, or it is otherwise appropriate to do so. A note under this section also refers to section 32 of the ACAT Act. A note is not part of an Act,[56] but it is material which can be considered in working out the meaning of an Act.[57] The note here suggests that section 32 is still available to the tribunal in addition to the powers in section 176 of the Utilities Act.
[56] Legislation Act, section 127(1)
[57] Legislation Act, section 142(1) and Table 142, item 1
It is true that section 178(2)(b)(i) of the Utilities Act provides that the tribunal can give written directions to the respondent that it considers necessary requiring the respondent to remedy particular matters. Those matters include that the respondent has contravened a customer contract and other matters, but to make such an order, the appellant has to establish a relevant term of a contract, breach of that term, and that such an order would be an appropriate remedy for that breach. The original complaint does not do that. Even when read with the proposed amended claims, the appellant does not do that.
Although not completely clear, the respondent seems to limit its argument in relation to the dismissal to the April document.[58] However as discussed above, it seems that it is the original claim made in June 2021 that the Original Tribunal dismisses.[59] Also, it seems that the respondent argues that the appellant does not identify any basis on which the tribunal might entertain his claims. If “basis to entertain” here means jurisdiction to consider, I do not think this is correct. The tribunal could and did consider Mr Ogilvie’s claims under section 172(1) of the Utilities Act, and sections 15, 16 and 17 of the ACAT Act. It did not allow amendments to be made within this jurisdiction and dismissed the original claim within this jurisdiction.
[58] Respondent’s appeal dismissal submissions at [54]
[59] By extension of the reasoning at [82]-[83]
I do not think there is any error in that dismissal. The original claim was lacking in substance. No basis for thinking this was wrong was advanced by the appellant in his notice of appeal, or appellant’s submissions, which were focussed on other bases.
Natural justice
Mr Ogilvie also apparently made a claim of lack of “natural justice” in relation to the original hearing.[60] These terms seem to be used in a colloquial way, to refer to the basic unfairness of his position which the tribunal did not remedy. The reasons above address this concept of unfairness. If it is used in a more technically legal way of a failure to hear Mr Ogilvie’s claim, Mr Ogilvie did not provide any details of an unfair aspect of the original hearing, and I do not think there was any.
Conclusion of the appeal
[60] Email of 25 August 2022 from Mr Ogilvie; transcript of proceedings, 4 October 2022, page 5
The appellant has not shown any error in relation to the Original Tribunal’s decision to refuse leave to amend and dismiss the original claim. The appeal is therefore dismissed, with clarification of the original orders.
………………………………..
Temporary Presidential Member R Orr
| Date(s) of hearing: | 4 October 2022 |
| Appellant: | In person |
| Respondent: | Mr W Sharpe, HWL Ebsworth |
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