R.W. Miller & Co Pty Limited v The Shortland County Council

[1988] HCATrans 86

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney Nos S23 and S24 of 1988

B e t w e e n -

R.W. MILLER & CO PTY LIMITED

Appellant

and

THE SHORTLAND COUNTY COUNCIL

Respondent

MASON CJ
BRENNAN J
DEANE J
DAWSON J

Miller(2) 99

TOOHEY J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 6 MAY 1988, AT 10.23 AM

(Continued from 5/5/88)

Copyright in the High Court of Australia

C2Tl/l/HS	6/5/88
MASON CJ:	Mr Rayment, before you proceed with your reply,

I had better indicate, I think, one issue that has

arisen and may become the crucial issue because it

mav be that Mr Helv would wish to address further

argument to the Co~rt in relation to it, and it is

this. It may well be, when the Court comes to give

consideration to the resolution of the issues in

the case, that one of the crucial issues will be whether or not the Council has power to impose a capital charge by way of contribution and, having

regard to the coutse that the argument has taken thus

far, it is not at all clear to us that the matter has

been as comprehensively canvassed as the parties would

wish to canvass the issue, in the event that it does

transpire that it is a crucial issue.

After all, if the Court were to hold that

the Council did not have such power, then the

ramifications of that conclusion would travel well

beyond this particular case as between these parties.

We know, for example, that the charge has been made

and has been paid by other industrial consumers in the

area. Now, in the light of that, I should offer to

Mr Rely the opportunity of addressing the Court

further on that issue, if he wishes to do so.

MR RAYMENT:	May it please Your Honour.
MR H~LY:	Could I respond to Your Honour's invitation

in this way. I would submit, firstly, that that

point is a point which the appellant does not, or

should not be permitted to argue because it is - - -

MASON CJ:  Yes, I think you have managed to convey that message

to us already.

MR RELY:  Thank you, Your Honour. Having conveyed that

message with -

DEANE J:  Mr Rely, can you be more specific in showing that

that matter was dealt with as common ground, or a

concession, or something in the courts below,

because it is not apparent to me?

(Continued on page 101)

C2Tl/2/HS	100	6/5/88
Miller(2)

MR HELY:	I can point to the plaintiff's statement of
claim in which the matter is not mentioned.
The plaintiff's statement of claim proceeds
upon the basis of an express or implied
contract which had the effect of creating
immunity from the impost.

BRENNAN J: That is not quite saying that there was no

power anyhow to make the impost, is it?

MR HELY: Well, with respect,.one would expect if the

allegation were absence of power that it would
find some articulation in the pleading.

Page 286, paragraph 27 of the defence to

cross claim raises a question of power, but it is not a question which was ever pursued before Mr Justice Bryson.

DEANE J:  Except Mr Justice Mahoney in the Court of

Appeal the first time around seems to have

directed his attention to the question of

where could the power to impose the levy

come from.

MR HELY:	His Honour certainly directed his attention
to the possibility that such a question might
fall for consideration if the totality of the
issues between the parties were to be litigated. consideration and it was not something
Mr Justice Bryson was asked to consider.
DEANE J:	And you say that the case was conducted before
Mr Justice Bryson on the basis that that was
not a live issue?
MR HELY:	Yes, Your Honour.

BRENNAN J: What do you mean by "was not a live issue"?

Do you mean that it was conceded that there·

was power?

(Continued on page 102)

C2T2/l/JM	101	6/5/88
Miller(2)

MR RELY:	I want to be particularly careful.. I am going on recollection.
Can I just check on this, Your Honour. I invite
the Court to return to page 462, at the top.
The Court, I think, was taken to this yesterday.
It does not specifically address the question that
Mr Justice Brennan is putting to me but it certainly
indicates a perception on His Honour's part that there were no public law questions agitated by the appellant before him.

BRENNAN J: Yes. That rather ,goes back to your basic question,

does it not, and tnat is that if the argument was founded on the motion of private law, contract or no contract, what the terms of the contract are, and

on that account the analysis of the problem has been

defective, can this Court decide a case on a footing

which it sees to be inaccurate as a matter of law,
not turning on any question of fact?

MR RELY:  This Court could still dismiss the plaintiff's

claim because the plaintiff's claim was founded upon

a_premis whichJon the assumption one makes for the

purpose of this discussion,is not found to be made

out.

BRENNAN J:  It is a very unsatisfactory basis for an

ultimate Court of Appeal to determine the matter -

MR RELY:	Yes, I see the force of that, with respect.
BRENNAN J:	- - - on a matter of importance to the community.
MASON CJ:	I suppose your response is the Court should not

have granted special leave.

MR RELY:  I am not going to say that, Your Honour, my courage

deserted me.

(Continued on page 103)

C2T3/l/MB	102	6/5/88
Miller(2)

MR HELY (continuing): But, Your Honour, the difficulty

is, if I may put this with the utmost of respect,

that if I am to fight a public law issue

attended, as it were, by the bench, l do not

have the benefit of a pleading to indicate

with precision what that public law question

is. I would submit that that, with respect,

is unsatisfactory as the basis for an approach
to the resolution of the question.

DEANE J:	Of course, the matter seems to have emerged more in the course of argument than - - -
MR HELY:	In this Court.

DEANE J: Yes, than, for example, in the appellant's

submissions that have been handed up, which

do not seem to contain any mention of it.

MR HELY:  Yes, Your Honour. I should just simply content

myself with agreeing with what Your Honour

puts to me.

DEANE J:	You do not want to just agree, Mr Hely.	Somebody
might think ..... you of being a parrot.

MR HELY:	Would Your Honour forgive me if I make no response
to that observation. I have been given the
written submissions of the appellant in the
court below in which they list the questions
which they said arose at the hearing. The
first is:

Is there any general statutory power

or power derived from the ordinance to

terminate contracts for the supply of

electricity otherwise than in accordance

with their terms?

2. Is there under the contract itself

a power, exp~ess or implied, to terminate

the contract?

3. If so, is either such power limited

in any material respect as to the reasons

for which it may be exercised?

4. If there is a power to terminate,
is it exercisable without notice or upon

reasonable notice.

5. If upon "reasonable notice" what notice

is sufficient.

C2T4/l/SDL 103 6/5/88

Miller(2) (Continued on page 103A)

So then, those are the issues which the appellant tendered for Mr Justice Bryson's consideration

which does not include the public law question

which I think originated during the course

of discussion between the appellant and

Mr Justice Brennan.

MASON CJ:	At any rate, your response to the invitation
is to say it is not an issue rather than to
directly take up the invitation of the Court.

(Continued on page 104)

C2T4/2/SDL	103A	6/5/88
Miller(2)

MR HELY:  Subject to being apprised as to precisely -what the

public law question is, I cannot for the moment

think of anything I could put in addition to what

I put yesterday, if the Court thought it

appropriate to embark upon a consideration of that

question. The Court does - - -

BRENNAN J: Mr Hely, I am not sure I understand your concern

about the absence of particularity, as it were. The

proposition that was put for your coiiJIIlent, I thought,

was whether or not there was power in the Council

to impose a capital' charge?

MR HELY:	Yes.
BRENNAN J:	Does that want particularity in some respect?
MR RELY:	In the sense of insisting upon the payment of that

charge as a precondition to increasing the

supply of electricity.

DAWSON J: It may be that it is a power to enter into an

agreement, rather than a power to impose, it may be

just a refinement?

MR RELY:  Yes, well as I think I conceded yesterday there

is no power of imposition, in the sense that one

can impose a tax irrespective of the attitude of the object of one's attentions. I put it on the

basis that one can simply say, prospectively,

if you want more, these are the terms and

conditions upon which you may have it. I do not

think I can take it beyond that, Your Honour.

Subject to correction I do not think I can take

it beyond that, might I just have the opportunity

for that correction. I cannot take it beyond that.

MASON CJ: Thank you. Yes, Mr Rayment?

MR RAYMENT:  May it please Your Honours.

(Continued on page 105)

C2T5/l/SR	104	6/5/88
Miller(2)

MR RAYMENT (continuing):  Your Honours, so far as the trial

is concerned, I can recall giving up a mala fides

point, and it is referred to at page 462. I cannot

recall making a concession of power to impose a

capital contribution. It certainly was not debated

before His Honour; that is, it was not pleaded on

either side, nor was it the subject of debate

before Mr Justice Bryson.

DEANE J:	What would be your reaction, Mr Rayment, to the
thought that if you·were to fail on your views, your
submissions as to the effect of the contract and
the matters Mr Justice Bryson did deal with, that the appropriate course would be simply to revoke leave rather than to deal with matters that were not
the subject of dispute in the court below and which
really were raised more in the course of argument
than as a basis of appeal or anything?
MR RAYMENT:	Well, Your Honour, could we put these things about

it?

DEANE J:  Can I just add to what I have said? Among the things

that are concerning me, for example, is, if we were to

look at the general question of exactly that capital

contribution as a condition of continued supply, one

would have to look at a whole matrix of legislative

provisions, such as the provisions providing for
rebates to pensioners and the provision providing
for the fixing of a general ceiling in electricity
prices and the like, which have never been involved in
this litigation, but which must be relevant to the
question whether a council can, for example, exact a

capital contribution as a condition of supply to a

domestic consumer who might be a pensioner.

MR RAYMENT:  In SUTTOR V GUNDOWDA there is a reference to a

case, I think, in the Privy Council, which looked at the

question whether a question of law raised for the first

time in an appellate court ought to be disposed of in
the course of the litigation and if no facts could alter

the result of the case the view taken there was that

the justice of the matter would require the court to - or
permit the court to deal with the matter and require the

court to take account of the submissions of the parties.

(Continued on page 106)

C2T6/l/VH	105	6/5/88
Miller(2)

MR RAYMENT (continuing):  Your Honours, we would respectfully

urge that reason on the Court not to revoke leave.

DEANE J:  The thought I put to you was not that the Court

would not deal with the other issues that have

been squarely raised in the case.

MR RAYMENT:  No, but if the Court comes to this issue, in

our respectful submission, and the matter cannot
be disposed of now because one does not have the
legislation before' the Court, in our submission
a course much preferable to the rescission of leave

would be to set the matter down for further

argument in the very near future so that the matter

can be properly debated, rather than rescinding

leave.

MASON CJ:  But SUTTOR V GUNDOWDA does not really

help you, does it? I mean, it is directed to the

respondent justifying a decision in its favour.

What we may be confronted with here is the question

whether the Court should embark on an issue which,

if it is to be determined, is an issue that would

be, in effect, attributed to your side, not to

the respondent's side.

MR RAYMENT:  Your Honour, we would respectfully submit that

if there be an issue arising in the appellant's

case, the rule in SUTTOR V GUNGOWDA is of equal

application to it. It does not matter. It is

based upon - if no evidence is required for the

point, it is based upon the doing of justice as

between the parties, rather than whether it is

raised by the appellant or the respondent, in our

submission.

MASON CJ:	But it has always been treated as a respondent's point, has not it, rather than an appellant's point,
and, in addition, there is the difficulty that
this Court, of course, exercise~ jurisdiction by
virtue of granting special leave to appeal, and
ordinarily we only grant special leave to appeal
in relation to questions of law which have been debated in the courts below, so that we have the benefit of
a mature consideration of a question by the courts
below.
MR RAYMENT:	Yes.

(Continued on page 107)

C2T7/l/HS	106	6/5/88
Miller(2)

MASON CJ:  But that is not the case in relation to this

point.

MR RAYMENT:  Your Honours, would there be a middle course,

could I inquire, Your Honours, of something like

this. Well, Your Honours, if Your Honours wish

the benefit of a judgment below in order to deal

with the matter, I suppose that is the end of the

matter. I really cannot ask Your Honours to send

it back to Mr Justice Bryson so the matter can be

argued again, or any other judge.

TOOHEY J:  Mr Rayment, is it implicit in what you have just

been saying that there is nothing in the outline

of appellant's submission that raises for the consideration

by this Court the question of the power of the Council

to exact a capital contribution.

MR RAYMENT:  Yes, I think so, Your Honour. We came here to

debate, again, the issues which were debated below

which were in contract. The statutory background

was only treated as being of relevance in so far as

it was a surrounding circumstances to the contract,

which is not to say that the statutory background

was not explored, although certainly a proposition

that there was no power in any council to exact

a capital contribution was not put. Your Honours,

certainly I cannot refer the Court to any provisions

about pensioners, on my feet.

DEANE J:  Mr Rayment, I was just speaking off the top of

my head, I was not suggesting that you deal specifically

with any particular legislation.

MR RAYMENT:  Your Honours, the course of permitting argument

in this Court on the matter rather than refusing

leave is, I think, the only course which remains

open to me to ask Your Honours to exercise. If

Your Honours were to take the view that leave would

otherwise be rescinded then we would respectfully

ask Your Honours to deal with that. (Continued on page 108)

C2T8/l/MB 107 6/5/88

Miller(2)
MR RAYMENT (continuing): This is a matter of some considerable

monetary importance to R.W. Miller. It certainly

has never been looked at in this Court and,

Your Honours, the statutory background, although

needing to be assembled,must not be of great

complexity to enable the Court to consider the

matter. In other words, the benefit that one

would get from a lower court determination of the

matter would perhaps be less in this case than in

a more complicated factual case.

Well, Your Honours, can I take up again the reply generally? Your Honours, at page 81 of

the transcript Mr Rely made it plain that his submission that the power to impose a capital

contribution stemming, as he said:

by implication from the Council's position

as a traditing corporation -

di not involve the proposition that the Council
was free from clause 10 in relation to it.

Your Honours, the candidates for power to

enter into this contract as at 1980 appear to
be these: section 516 of the LOCAL GOVERNMENT ACT

was a general power for councils to contract - it

was one of the proclaimed powers in the

proclamation my learned friend referred to yesterday -

both for the present respondent and for its

predecessor, the Hunter Valley County Council as

at 1957. So the powers of contract under section 516

devolved upon the County Council.

Secondly, Your Honours, there was whatever

may be found in clause 3 of ordinance 54, which

as at 1980 simply empowered the Council to require

any applicant for the supply of electricity to
sign a form of agreement reJating, subject to the

provisions of this ordinance, to the conditions of

such supply to the charges for and payments to be

made for the electricity. Your Honours, that power

devolved also on the respondent Council by virtue

of the proclamations of 1957.

It follows, Your Honours, that at any rate until the amendments made to clause 10, which

were handed up yesterday to the Court and took effect from 1984 the relevant source of power,

if there be one, was to be found in one of those two places. We would submit that it is not to be found by implication if it is there expressly,

and such power as the Council had to contract was

set forth in those places. Any proposition that

there was a power to impose, as distinct from contract,

for the payment of a capital contribution is abandoned

by my learned friend Mr Rely and I do not deal with it.

C2T9/l/JM	108	6/5/88
Miller(2)

Whatever the power was, it was not, in our

submission, a power unilaterally to amend contracts

to which the Council was a party.

Now, Your Honours, at page 72 of the transcript

my learned friend put that the contract, for which

we now contend,has been rejected by a number of

judges.	He put that it was rejected by
Mr Justice Helsham.	Mr Justice Helsham did not have

to come to the details of the contract made in the

present case because he needed to deal only with some defences raised by the respondent, that is,

was there an implied term in the contract

permitting it to impose a capital contribution;

was there something arising from special condition 14

and the like?

(Continued on page 110)

C2T9/2/JM	109	6/5/88
Miller(2)

MR RAYMENT (continuing):  He did not need to look at the

question, what was the extent of the obligation

to supply of the Council. Mr Justice Mahoney,

my learned friend also said rejected this contract,

but if Your Honours would look at page 176 in

volume I it can be seen that Mr Justice Mahoney

did not find it necessary to choose between the

two kinds of contracts that he had just described

on the previous page. So His Honour left the

question open of what were the terms of this

contract, we submit ... It is correct that

Mr Justice Priestley rejected the contract now

propounded, but for reasons which my learned friend

does not urge upon the Court. So really the only

judgment in his favour on the point is that of

Mr Justice Bryson.

On page 73 of the transcript, my learned

friend sought to raise illegality under section 419
to the contract propounded by R.W. Miller.

Your Honours, the facts necessary for any such

defence as that are simply not before the Court.

No one was shown to be receiving a corresponding

supply to R.W. Miller as at 1980 or any later date.

If no one was in similar circumstances then there

could have been no breach of the section.	Your Honours,
if one were to assume that someone, X, was

subsequently to, R.W. Miller's contract, supplied

with a corresponding quantity to that of R.W. Miller,
in similar circumstances but with a capital
contribution being paid by X under some capital

contribution policy, that would not mean, as

Mr Hely submitted at page 73, that the R.W. Miller

contract was illegal. At any rate, not as formed,

because the contract had come into existence in

1980.

The performance of both the R.W. Miller contract

and the contract with X, in my example, could be

said to involve supply contrary to section 419(2),

that is, both the advantage and disadvantaged

supply would be contrary to 419 in that the Council's
obligation would be to impose uniformity.	Now

if section 419 means that, then it means that the

Council must cease to supply both Miller and all
of the later persons who pay the capital contribution

moneys.

BRENNAN J:	Why?
MR RAYMENT:	Because each of them is receiving different terms

from the other. It is just as much a breach to

offer different terms to X as it is to offer different

terms to Miller.

BRENNAN J: But if 419(2) is construed as applying so as to avoid

preferences or divergences from the norm and the

C2Tl0/l/SR	110	6/5/88
Miller(2)

supply to others is taken to be the norm, as a matter

of fact why would it not simply be a case of the

contract or the performance of the contract with

R.W. Miller falling under the prohibition of 419(2)?

MR RAYMENT:  Presumably these contracts are entered into in a certain chronological sequence. One takes it

that the R.W. Miller contract is the first

contract because it was entered into in 1980 before

this capital contribution policy was promulgated.

(Continued on page 112)

C2Tl0/2/SR	111	6/5/88
Miller(2)

MR RAYMENT (continuing):  The second contract must be a contract

with, let me assume, somebody in similar circumstances
receiving a corresponding supply under the capital
contribution policy. At that point, if my learned

friend is right, it is wrong for the Council to be

treating X and R. W. Miller separately. But that

tells you - it really means that they can supply neither

of them because each of them has terms which are

different from the other. In other words, Your Honour,

what it invalidates, if it invalidates anything, is

performance under 'the later contract, not presumably

performance under the earlier contracts.

So if section 419 is about the making of contracts

as distinct from performance of contracts then in the

example given the contract which would be illegal would

be X's contract, not that of R. W. Miller. And, Your Honours, moreover, if a council were to cease

supply because it would be involved in a breach of

section 419 it would not follow that it would be

protected by clause 13 of ordinance 54 in any action for

damages. Clause 13 gives the Council a defence to

an action for damages:

In consequence of any failure to supply

electricity -

if the failure

is caused by ..... by causes not within the

Council's control.

Well, the Council would have been parties to the contracts causing them to be in breach of section 419

and therefore, we submit, would not able to rely on

clause 13. In other words, if the contract goes off

it goes off in circumstances making the Council liable

in damages. Your Honours, the circumstance that if you

had two regimes which the Council was administering,

differentiation between persons in similar

circumstances, receiving a corresponding supply, we

submit that it would not mean that the Council should either breach any contracts or seek to terminate them.

It could be, on that view, Your Honours, that section

419 is really directed to internal administration within

the Council, that is, prohibiting policies being

formulated which would differentiate between similar

consumers in similar circumstances. Now, Your Honours,

on the relevance of section 419 to the case, we submit

that it does not support any of the conclusions reached

by the trial judge. We submit that it does not suggest

that any contracts must be terminable. So it is

neutral, in our submission, with respect to the issues

determined by Mr Justice Bryson. He relied upon it and,

in our submission, he ought not to have sought any - any

reliance upon the section in resolving the case was

misplaced because the evidence simply was not there and

C2Tll/l/VH	112	6/5/88
Miller(2)

it leads to no presumption about the nature of

contracts entered into by the Council. Clause 10,

however, in our submissions, stands positively

against the conclusion of the trial judge, for the

reasons mentioned in paragraph 4 of our written submissions. Your Honours, in the light of the

discussions which occurred here yesterday, we put
paragraph 4 solely upon clause 10 and not upon

section 419, and we withdraw paragraph 3 of the

written submissions.

It seems plain' that section 419 is a matter of public law and not conferring private rights, but the point is nevertheless good, in our submission,

under clause 10. The effect of His Honour's judgment

is to undermine clause 10.

(Continued on page 114)

C2Tll/2/VH 113

Miller(2)
MR RAYMENT (continuing): If you say that Xis receiving more

advantageous terms than Y, therefore you should

terminate X to bring him into line with Y, you

deprive those in the community of the rights

conferred by clause 10.

BRENNAN J:  Mr Rayment, if you look at clause 10 it refers

to a person on application being entitled to supply

and it also refers to additional quantity.

MR RAYMENT:	Yes, Your Honour.
BRENNAN J:	Now, I take it once an application is made and

supply is given it is your submission that then the

provisions of the statute take over and preclude

a termination of supply except in accordance with

the grounds that are therein specified.

MR RAYMENT: 

Yes.

BRENNAN J: 

But having regard to the second paragraph of

clause 10, may it not be that where there is a need
for additional supply of a significant kind that

clause 10, as it were, has a second operation?

MR RAYMENT: 

Yes.

BRENNAN J: 

So that in the case of your client, for example,

moving from stage one to stage two there would be

a need for a further application?

MR RAYMENT:  No, not in our submission. Your Honours, the

distinction between the first and second paragraphs,

in our submission, lies in line 2 of the first

paragraph. If it is within the power of the Council

to supply the additional quantity required, then

the first paragraph operates, and it applies on
the application so that if there are persons receiving
a corresponding supply there will be a right under

the first paragraph to have the same terms. It

is silent about the situation which arises if it is

within the power of the Council to supply and there	is nobody receiving a corresponding supply in similar
circumstances.
There are only two possibilities. Either the the intent of the first paragraph is that that person
will be entitled to supply on appropriate terms
or it is left to the Council to ,decide whether it
will supply such a person. He has not strictly got
a right - and if you look at the way the Court dealt
with this matter in BENNETT AND FISHER, it seems
to have been assumed that the right would arise
only if somebody was receiving supply in similar
circumstances. But nothing stops the Council from
giving supply in those circumstances and, no doubt, in the usual case it would.

C2Tl2/l/MB	114	6/5/88
Miller(2)

On the other hand if the supply applied for

is not within the power of the Council to be supplied

at the time, that is, their system is not large

enough, then the second paragraph applies and the

Council has a power, on the application, to impose

additional conditions upon which the supply will

be made available.

BRENNAN J:  Take the other possibility, that is, it

is within the powev·of the Council to supply, no

other person is receiving it on the same terms

and the Council says, "We will supply but on capital

terms", what is to preclude the Council from doing

that as a matter of contract and the approach

we are now dealing with.

MR RAYMENT:  One needs to look at clause 3 which deals then, 1n

the particular, with the power to impose charges.

BRENNAN J:  But that is merely a power in the Council to require

an agreement to be made?

(Continued on page 116)

C2Tl2/2/MB	115	6/5/88
Miller(Z)

MR RAYMENT: It is but when one looks at the subject-matter

of the agreement it relates to this very matter.

It is:

a form of agreement relating, subject

to the provisions of this Ordinance, to
the conditions of supply of electricity,

to the charges for and payments to be

made for the electricity.

BRENNAN J:  Was the power to·require signature?

MR RAYMENT: It is but when one looks at the signature of what, one finds that it is something that

will deal with the charges for and payments

to be made for the electricity. One of the
conditions in the .second paragraph of clause 10,
for example, could be the payment of a monetary
sum of some kind. In that event, the agreement
which would be caused to be signed under clause 3,

could extend to that.

BRENNAN J:  But you have to go further, do you not? You

have to say that the Council cannot, without

that signature, agree to provide on capital

terms.

MR RAYMENT:  Your Honour, what we submit happened here

was that the power in clause 3 was exercised.

We were required to sign something and that

the charges in question were specified and

they included nothing that would have empowered

this charge to be made.

Your Honours, if one looks at the standard

terms and conditions, they set out what must

be not unusual in New South Wales. They set

out at page 85, clause 4 - they say that:

Charges for the supply of electricity

shall be made in accordance with the tariff

schedule issued by the Council from time

to time.

And when one looks at the tariff schedule

provisions, they are only - clause 20, which

provides that:

Electricity is supplied by the Council

at different tariffs for different purposes.

One has, of course, usually a domestic rate

for households, and one would have a demand

rate and other industrial rates, night rates

and the like, for various industrial uses.

C2Tl3/l/SDL	116	6/5/88
Miller(2)

Details of the tariffs and of the

conditions applicable to them are published

in a separate document known as the "Tariff
Schedule". Tariffs may be varied by the

Council, from time to time without notice.

It is quite clear that no such document has

been issued in this case which would entitle

the imposition of a capital charge.

So, we submit the contract dealt with

the matter and exhausted the power to exact

a capital charge, whatever the power underlying

the Council's position may have been.

Your Honours, the case made before the

Court of Appeal in the notice of appeal, various
implied terms and so on, is now wholly abandoned.

There is no implied term urged by the respondent

here.

(Continued on page 118)

C2Tl3/2/SDL	117	6/5/88
Miller(2)

MR RAYMENT (continuing):  The respondent's claim to impose

a capital contribution now rests upon three matters;

the first, the case made for the first time vesterdav

that this was not a contract but a standing" offer ·

capable of being withdrawn without notice;	second,
the terminability question debated below;	and

third, a supposed right to refuse supply at more

than 2MVA.

Now, first of all, as to the case made yesterday,

Your Honours, we ~Dbmit that, if that case had

been made below it may have been met by reliance

upon an estoppel, including a conventional estoppel

which would have required evidence to be taken

which was not led below and we respectfully object

to it being taken here, for that reason. Your Honours,

clause 13 of ordinance 54, in any event, is positively

against a notion that there is an absolute right of

withdrawal of supply. It envisages that:

The Council -

will -

be liable for any loss suffered by any

person in consequence of any failure to supply
electricity or light, or of defect in such

supply, where such failure or defect is -

not -

caused by the breakdown of machinery or by

causes not within the Council's control.

Moreover, clause 4 of the special conditions, and

clause 20 of the special conditions envisage changes

to the tariff schedule from time to time. More

importantly, Your Honours, you need no power of

discontinuance if you have a power to withdraw

your standing offer. In clause 11 of ordinance 54,

for example, there is a limited remedy given of

discontinuance of:	the supply of electricity to the premises
until such time as such access is given
or the obstruction terminated.

You would not find that clause in a context, we

submit, where there was merely a standing offer.

Similarly, so far as this Council's Newcastle

jurisdiction is concerned, section 23 of the BOROUGH

OF NEWCASTLE ACT gave to the Council, if there be a:

neglect to pay any electric light rate or

any charge for electricity, or any other sum

due to the Council in respect of or incidental

to the supply of electricity to such person -

C2Tl4/l/HS	118	6/5/88
Miller(2)

a power to -

cut off his supply of electricity .....

and may, until such charge or other sum,

together with any expenses incurred by the

Council in cutting off such supply of

electricity as aforesaid is fully paid,
but no longer discontinue the supply of

electricity to such person.

Express reference· to "but no longer" does what is,

we submit, implicit in clause 11 of ordinance 54,

that is envisage or require, rather, continuance of

supply. As to the second case, my learned friend
puts in his written submission~ under ground 7,

a number of circumstances forward as suggesting

that this contract is terminable. In the first place

he - and I look at paragraph 4(iv) of my learned

friend's submissions.

(Continued on page 120)

C2Tl4/2/HS	119	6/5/88
Miller(2)

MR RAYMENT (continuing): In the first place he puts that

the position of the respondent "as a public

authority" is in favour of terminability. If

my learned friend means that being a public authority

it is liable to reorganized by statute, that

would be, in any event, a frustrating event and

not something needed to be provided for by the

law of terminability. And moreover legislation would be required for any reconstruction, which would no doubt deal with this kind of matter

expressly, there is. ~o need to imply anything into

the contract on that account. He refers in the

same paragraph to the obligations of the Council

to other users and that does not support terminability,

in our submission. Clause 13 is in this ordinance

if something should happen to the electricity

system generally so as to stop the Council from

being able to supply electricity temporarily.

The priorities, as it were, between different

users if supply be limited is a matter for the

Council to organize in its management of the system.

And clause 10 envisages that it would look at

that kind of question on receiving an application,

if the supply cannot be made available consistently

with the demands of other users from the system

as it stands. In the next place, my learned friend

says that:

the appellant's entitlement under the

general law -

militates against terminability. If this means

clause 10 under the ordinance, it is understood the

answer is, in our submission, that no one has been

shown on the evidence to be in similar circumstances

to R.W. Miller receiving a corresponding supply.

So that in this case is no factor, even if it would

be in other cases.	Now, then my learned friend
says:

the absence of any single consideration

paid at the inception of the contract.

That is contrary to the facts, in our submission, in that there was paid on 8 May the capital contribution

that has been referred to. In the next place

my learned friend refers to:

the absence of any obligation on the

appellant to take particular supply

within a specified time, and its

freedom at any time to cease to use

electricity.

That is also not so, in our submission, at least there

is an obligation arising from the giving of the

C2Tl5/l/SR	120	6/5/88
Miller(2)

firm commitment to use Miller's best endeavours if

the matter be not taken further than that.	And,
then my learned friend says:

the likelihood of capital expenditure being

necessary in order to supply mining

companies which is not appropriately

recovered by a general tariff.

Your Honours, there is, in our submission, ample power to recover. pursuant to the power to impose

a tariff in clause 20 and that is something the

contract specifically deals with. And, finally

my learned friend says:

the provisions of the contract as to
termination of supply in particular
circumstances do not affect the

subsistence of the contract, and are

irrelevant to the question of whether

the contract is terminable or

perpetual.

Neither the contract, nor the ordinance, makes

any reference to the termination of supply. What

it permits is the discontinuance of supply, only,

and that power is otiose if the contract is in

any event terminable.

Now, as to my learned friend's third case.

It was pleaded, in a very general way, in

paragraph 13(e) of the defence which was filed

before Mr Justice Bryson and it was also referred

to, if I can just go to 13(e) first, it is at

page 255.

(Continued on page 122)

C2T15/2/SR	121	6/5/88
Miller(2)

MR RAYMENT (continuing):  The respondent said:

that it was a term of the contract that
the defendant's obligation was only:

(i)     to supply the Plaintiff with electricity in amounts required for the connected load

and demand limit pursuant to Stage 1

("Operations - years 1-3") of the

Plaintiff's plans as described in its

letter o'f· 22 October 1979 or such amount

as it could supply within the then

existing system (whichever was the
lesser);

(ii)    if the Defendant's obligation included the supply of such electricity to the Plaintiff

as was referred to in the connected load

and demand limit in Stage 2 ..... it was

only if and on condition that additional

supply capacity was made available by

the Electricity Connnission of New South
Wales at no cost to the Defendant to

permit such additional supply (which, in
the events which happened, it was not);

And finally:

(iii)      to supply electricity on the same terms and conditions as applied to other large industrial users from time to time.

That has some connection with the case my learned

friend puts. Also l0(b) in the cross claim at

page 262 alleges that:

it was an implied term of the contract between

the parties that where in order to make increased

supply of electricity available the Cross-Claimant

found it necessary to increase the capacity of

it supply system the Cross Claimant could impose

conditions, including conditions requiring

contributions to the capital cost of the increase,

in respect of that increased capacity.

Now, each of those two pleadings resulted in

an adverse finding#, from Mr Justice Bryson.	His Honour
rejected 13(e) at 482, top of the page:

In my view the defendant's allegations are not

correct, although it is mt necessary to decide

this.

And clause l0(b) is rejected at page 484, line 6:

I rej.ect the implied term alleged in ACCl0(b).

C2Tl6/l/JM	122	(6/5/88)
Miller(2)

Your Honours, in our submission it really

depends upon - the submission really depends upon

a unilateral power of modification of the contract.

This setting a limit of 2MVA is someting that was

not consensual and it was an argumentative position

adopted by the Council in about 1983. So, we submit

that it is correctly - such a ease is correctly

rejected

BRENNAN J:  Mr Rayment, I th~nk I understand the answer you

will give to this ~uestion, but was the connection of

the drag-line to the supply a connection which would

fall within clause 8 of ordinance 54, that is,

a connection of an installation without consent

of the Council?

MR RAYMENT:  I think it is abandoned and we submit, not, absolutely not. They built the reticulation system

that enabled the drag-line to be connected up.

The drag-line had to be connected by a 66kV line.

BRENNAN J: Yes, I appreciate that but I was wondering

whether the consent that was indicated by that

construction was a consent given at a time when

the condition of the consent was the capital cost -

was the meeting of the capital imposition?

(Continued on page 124)

C2Tl6/2/JM 123 (6/5/88)

Miller(2)

MR RAYMENT:  I think a case very similar to that was sought

to be made below and has been abandoned. It

is actually mentioned in the cross claim as being

abandoned, Your Honour.

BRENNAN J:	I shall not delay you.
MR RAYMENT:	Grounds 3 and 4 are expressly abandoned in

paragraph 1 of my learned friend's submissions.

DEANE J:  Mr Rayment, while'you are being interrupted can

I take you back to page 262(b). Perhaps I should

be asking Mr Hely this but I do not follow the

relevance of that. Was it suggested that this

capital contribution arose from the need to make

increased supply? I thought it arose from the fact

that the Council was buying equipment that was there

anyway.

MR RAYMENT: Yes. Well, it may have arisen from both actually,

in the sense that there was work done after 1981

on the system, I think. I think that is the effect

of Mr Knott's, Your Honour.

DEANE J:	So the suggestion being that if the occasion arose for requiring a contribution you do not have to restrict the contribution by reference to what was necessary for increased supply, that you can - - -
MR RAYMENT:	Yes, no doubt that is the case.
DEANE J:	- - - exact a contribution to buy everything?

MR RAYMENT:  Yes. Your Honours, there are so many terms in

this contract, in our submission, about charges.

It is expressly dealt with in clause 4 and clause 20

and implied terms about charges, in our submission,

would go in those circumstances. Clause 4 and

clause 20 cover the field, in our submission. It

is certainly not necessary to give business efficiency

to the contract either, to import a term such as

that, in our submission.

Your Honours, the effect of other electricity

legislation upon this matter is minimal. The

ELECTRICITY DEVELOPMENT ACT gave various energy

authorities power to direct, by notice in writing,

the Shortland County Council to charge in accordance

with whatever it specified in the direction and

no evidence was given in the case of any such direction.
For example, clause 13A of the ELECTRICITY DEVELOPMENT

ACT 1945 empowered the energy authority to:

give a direction to an electricity supply

authority -

(a) to charge for electricity on a specified

form and basis;

C2Tl7/l/MB	124	6/5/88
Miller(2)

(b) to adopt a specified method in fixing

the charges for electricity supplied by it; or

(c) to supply electricity on such terms and

conditions as may be specified,
or to do any combination of those things.

Your Honours, for that purpose an 'energy supply authoriti'was defined in such a way it would include

this Council. It meant:

any person en~~gedinthe supply of electricity

to the public or in the generation of
electricity for supply, directly or indirectly,

to the public, whether by virtue of any statute -

et cetera.

MASON CJ:  What does the supply of electricity in bulk or

by way of interchange mean?

MR RAYMENT:  Your Honour, I am not quite sure. As a matter

of fact it is a question which I directed to those

instructing me and we were not able to find out.

I think, possibly, my learned friend, Mr Hely, may be able to give Your Honour a more precise

answer from those instructing him.

(Continued on page 126)

C2Tl7/2/MB	125	6/5/88
Miller(2)

MR HELY:  If Your Honour looks at section 11(1) (b) (ii),

that indicates that:

interchange -

is a swapping -

of electricity between interconnected

power stations.

ll(l)(b)(iv) indicates that bulk supply is a supply

between county councils.

MASON CJ:	Yes.
MR RAYMENT:	Your Honours, as I say, there is no evidence of

any direction given. It is one that can either be

published in the Gazette or given to the electricity

supply authorit by a notice under

13A(3)(a) or (b). And if it were given it would

prevail over a local government ordinance, as

subsection ( l:.) provides.

BRENNAN J: Well, what is the significance of this provision?

MR RAYMENT:  I draw it to your attention as being in a

statutory background but put it to one side because

there was no evidence about this matter. There was

It occurs to me as, finally, with respect to the

appeal and before I go to the cross appeal, that

one other matter may commend itself to Your Honours, and that is to permit written submission to be filed

on both sides within a limited period of time upon the

issue of power. I do not - it is obviously a matter

for Your Honours, but I would urge Your Honours to

permit that to be done.

MASON CJ:	Yes, well, we will consider that.
MR RAYMENT:	If it please Your Honour.
MR RAYMENT:	Your Honours, then, can I go to the cross appeal?

That is within a small compass. This litigation was

pending at all times relevant - this litigation was
pending from 1983, I think - 1982, was it - a very

early date, anyway, after the formulation of the

capital contribution policy, the dispute was pending.

The casewhich my learned friends would seek to make

here - yes, the case was started in 1982 in the

supreme court, and in that litigation we, at all

times, denied the right of R. W. Miller to impose a

capital contribution.

We submit that you cannot imply an agreement by

R W. Miller to pay anything in those circumstances.

Their right to demand it was in issue and it was

well known that you - my learned friend is saying

their stance was being made clear at the time, and

it was, but so was R. W. Miller's stance being made

C2T18/1/VH	126	6/5/88
Miller(2)

clear at the time.	Your Honours, my learned friend's
~round 2 is to the same effect. He refers to	0
paragraphs 34 and 35 of the amended cross claim to
the effect that the conrrnunication to the appellant
of the terms of the respondent's 1981 and 1983
contribution policies amounted to notice of termination of any antecedent contract which was inconsistent with or which prevented the implementation of its policy.

Your Honours, g~ound 2, in our submission, if

one looks at paragraphs 34 and 35, calls for an

application to be made if there was power to impose

this capital contribution policy. It would only

becane relevant on the making of an application, and

it is common ground that no application was made.

Mr Justice Bryson declined to deal with the matter.

If one looks at page 484 His Honour notes there that

he makes no finding about the allegation of facts

made in paragraph 23 of the amended cross claim to

the effect that the capital contribution of R. W. Miller

was some $2.8 million, and His Honour notes:

(Continued on page 128)

C2Tl8/2/VH	127	6/5/88
Miller(2)
MR RAYMENT (continuing):

I have not come to a conclusion on how much it will be.

Now, paragraph 23 made an allegation at the

trial that the amount of money due under the

capital contribution policy was then, as at

1 March 1983, $2.8 million. We submit that

what His Honour intended to do, by dealing

with the matter this way, was to have the

matter brought back if the quantum were in

issue between the parties.

Your Honours, in any event, the legislation is changing so rapidly in this area that if

Your Honours dismiss the appeal we would ask
Your Honous to set aside, in any event, that

declaration made by Mr Justice Bryson so that

the matter can be· looked at at first instance

in the light of the then statutory framework.

Only a month before His Honour gave judgment

there was a new Act passed to which His Honour

P1akes no reference and of which he was, no doubt, unaware

being the ELECTRICITY DEVELOPMENT (AMENDMENT) ACT

1977, wfiich was: only assented to on 12 June,

about a month before His Honour gave judgment.

That gave the electricity corporation newly

formed powers to tell bodies including Shortland

County Council what charges it should levy.

DEANE J:	But would it not be more appropriate if what you say is accepted to confine the declaration
by reference to the statutory provisions operative
at the relevant time rather than to set it
aside?
MR RAYMENT:	Yes.

DEANE J: That must be something that you and Mr Hely

would agree on, I would have thought, and that

the declaration obviously is confined, at

least at the time at which it is made, so

far as statutory amendments are concerned,

or if it would be some earlier time. It must

be just a matter of investigating it.

MR RAYMENT:  We would submit that the question will

arise when and if R.W. Miller apply for

electricity because, let me assume that this

Court holds that .the contract was terminable
and that it was determined back on 1 January 1986.

If that be this Court's view then we would need

immediately to make application for electricity.

C2Tl9/l/SDL	128	6/5/88
Miller(2)

The terms upon which we would then be able to be obliged to pay for it would depend upon

the circumstances at the time and the legislation

at the time. Clause 10 of ordinance 54 may

be the relevant matter to be looked at; it

might depend on when this Court gives judgment

in the case.

DEANE J:  I suppose you would also say, would you, that if the

worst outcome emerged, from your point of

view, and that ig that you lost in terms

of the contract - no, not the worst, but one
or other of them - and the Court did not embark
on the question of power, that we should not
get involved in the cross appeal anyway because
the cross appeal is based on an assumption

of power.

MR RAYMENT:  Yes, I do not know that either party might

necessarily be very pleased with the terms

of the declaration which were made here.

They tie one back to the 1983 contract.

BRENNAN J: I was not excluding what you say about the

declaration.	I mean, that is a criticism
of yours.	What I was raising with you was

whether you take the approach that if, contrary

to your submissions, that was the final outcome,

that we should not get involved with the cross
appeal which las a foundation - the question

of power - if we were not going to deal with

that question, on your instigation?

(Continued on page 130)

C2Tl9/2/SDL	129	6/5/88
Miller(2)

MR RAYMENT: That is right, Your Honours, it may be perhaps

something that I could have added to what I put

before about the possibility of this Court

receiving writcen submissions, if in_ any event it

would arise on my learned friend's cross appeal.

May it please Your Honours, those are my

submissions.

MASON CJ:  Yes, Mr Rayment. At this stage the Court is not

minded to give the parties liberty to file further

written submissions. and the Court will reserve its

judgment in the matter. Yes, Mr Hely?

MR HELY:  Could I respond to the submissions that were last

put with respect to the cross appeal and to its

fate. I would submit that if the Court does not

determine that question, in effect, it determines
only half of the case. Both parties have notices
of appeal in with the Court of Appeal and one has

the horrible prospect, if I could say that without

wishing to be disrespectful to anybody, of perhaps

commencing at the ladder or in the middle of the
ladder once again. Second, the cross appeal,
in part, depending upon the approach of the Court
to it, does raise a question of power, but a view

to which the Court might come is that the appellant

by taking electricity and consuming it has

applied for it and therefore has accepted the

conditions upon which supply was proferred.

(Continued on page 131)

C2T20/l/SR	130	6/5/88
Miller(2)

MR HELY (continuing):  If the Court came to that conclusion,

the only question of power would be power to enter

into a contract which, I would submit, cannot seriously

be in question.

BRENNAN J:  And that would give rise to a debt, would it not?

MR HELY:  A debt, yes.

BRENNAN J:  And a debt fixed by reference to the amount

first demanded?

MR BELY:  Except to the extent that the 1983 policy was a

policy applicable to persons who had not complied

with the 1981 policy.

BRENNAN J:  But how can that be? If the contract is - - -

MR BELY:  I am so sorry, because they did not take in excess

of 2MVA until -

BRENNAN J:	I see, until 1984.
MR HELY:	1983, I think.
BRENNAN J:	I think it was 1984 they took 2MVA.
MR BELY:	Yes, February 1983. That appears from volume II

at page 301.

DEANE J:  But how could we decide that the Council was entitled

to payment, without assuming in your favour that

the Council was entitled to exact a capital

contribution as a condition of future supply?

MR HELY:  In the integrity of that capital contribution,

in the sense of whether it could reflect acquisition

costs, as well as development costs, has just never

been the subject of contention. In our cross claim

we sought judgment for a debt upon the basis of

the cross claim. That claim was never sought to be

resisted upon any contention that the integrity of

the contribution was in issue. The simple question

which the cross claim tenders is, in the circumstances,

did the appellant accept a liability to pay yet,

if its contractural case was misplaced~

DEANE J:  But I am being obscure, I think, Mr Bely.

It seems to me that different considerations may

arise as to whether Mr Rayment is entitled to

raise the question of power to challenge the finding
of the court below and as to whether he is entitled

to rely on the question of power to resist your

attack on what happened in the court below. Now,

if he is precluded from raising the question of power in support of his appeal by reason of your submission that he should not be allowed to raise

C2T2 l /1 /HS 131 6/5/88

Miller(2) (Continued on page 131A)

it, it may well be that the appropriate course to, say, take in relation to your cross appeal

is that you have resisted the question of power

being raised in relation to the appeal and, having

adopted that course, we should not deal with your

cross appeal to attack what was decided below on

an assumption about power which Mr Rayment would

wish to dispute.

(Continued on page 132) ' '

C2T21/2/HS	131A	6/5/88
Miller(2)

MR HELY:	It is an assumption which he did no4 by his defence, seek to dispute, and it is an assumption which he
did no4 in the conduct of the case,seek to dispute.
And I do submit that, one, there has to be an end
to this litigation at some time, hopefully, and
that a person who is sued for a debt should not
be able to resist payment upon a basis which has
never been specified, never been put and never been
pleaded.  I would submit that the same principle
that operates with respect to the appeal would operate
with respect to tha cross claim.
Perhaps it does not matter, but could I go to page 484 that was referred to? Mr Justice Bryson
accepts the substance of what was alleged with
respect to the 1983 cross claim.  He says that:

it does not follow that the plaintiff's

capital contribution when made will be - a particular sum. That did not indicate any

reservation of that question for further consideration.

We submit it flows from the fact that the capital contribution policy had an index factor such that

the amount payable was determinable by reference to

index at the day of payment compared to the 1983

index. So that even if the capital contribution

at 1983 was 2.7, if the payment was in fact made

in 1988 because of changes in the index, it could

be twice that sum. We submit that that is what

His Honour was referring to. Those are our submissions

in reply.

MASON CJ:  Thank you, Mr Hely. Mr Rayment, may I raise

with you the matte½ of which the Registrar has given me information, that you intend to apply

for some interlocutory injunction?

MR RAYMENT:  Yes, Your Honour. We will not be in a position

to for several hours, but we would need to seek

interlocutory relief.	We have had a threat to
cut off the power unless a conditional agreement

is signed, which R.W. Miller is not prepared to

agree to.

MASON CJ: It seems extraordinary that this would arise

at the conclusion of the hearing in this Court.

Is it not possible for the parties to come to

some accommodation in relation to this matter

pending delivery of judgment?

(Continued on page 133)

C2T22/l/JM	132	6/5/88
Miller(2)

MR RAYMENT:	Your Honours, so far as we are concerned, of course, R.W. Miller is perfectly happy to give
an undertaking as to damages and we would submit
that would be an appropriate - - -

DEANE J: What you said is ambiguous? You said, a

conditional agreement. Do you imply in that an

agreement under which you agree to pay the very

amount which is in dispute in this litigation?

MR RAYMENT:	Yes, if the appeal is dismissed.
DEANE J:	You agree to pay it -
MR RAYMENT:	That is what my learned friend propounds

and we do not accept it.

DEANE J: But you agree to pay it if the appeal is dismissed?

MR RAYMENT:	Yes.
DEANE J:	Why would this Court be the place to apply to

for an injunction?

MR RAYMENT:  It would be pending the giving of the judgment

in this Court, Your Honour. It would be an

injunction which would arise in connection with
the appeal, in our submission. If the appeal

succeeds then the injunction would preserve the

position so as to enable the benefit of the

successful appeal to be given to R.W. Miller.

DEANE J: So,what it means is if the appeal is dismissed

on grounds that leave open some further room for

dispute on your part, you would agree to pay

the amount in any event?

MR RAYMENT:  Yes.

TOOHEY J: But are those areas of dispute likely to be

confined with a calculation of the amount,

Mr Rayment, or to something else? (Continued on page 134)

2T23/l/SR	133	6/5/88
Miller(2)

MR RAYMENT:	They are now likely to include the question of power, if ever we get to the matter, certainly,
Your Honour, and computation and the circumstances
of the case, of course.  I would need to look
at the matter under ordinance 54 clause 10 at the relevant time.
MASON CJ:	Well, it does seem strange, to say the least of it,

that there should be an attempt to impose this

condition at this stage of the litigation in this

Court.

MR RAYMENT:	If Your Honours please.
MR REYDON:	Might I be given leave to say something?
MASON CJ:	Yes.
MR REYDON:	The first thing I would like to say is that we

are prepared to consent, or not oppose an injunction

which is in very similar terms to an inter partes

undertaking that has been in force since about propose that the appellant should proffer as the

the price of that an undertaking in terms I have

here. The reason why the matter is raised at this

stage is that the parties,for a larger number of

months,have been attempting to reach the agreement

to which reference has been made. It was not

understood by us that there was any problem about

an agreement as such but on Monday we were told that no agreement would be entered into, of any

kind. It is regrettable that the Court has to

be troubled with this sort of thing but it was

seen as necessary on our side. Could I hand up

seven copies of the injunction that I was speaking

of.

MASON CJ: Yes, you may hand them in, Mr Reydon. It may not

be possible for us to deal with it at this stage,

it may have to go before a single Justice.

MR REYDON:	I appreciate that, Your Honour.
MASON CJ:	We will b.ave to see what the picture is at this stage.
MR REYDON:	Could I hand up the undertaking also?
MASON CJ:	Yes.
MR REYDON:	In view of the fact that ,we do not require,

as far as we are concerned, any evidence, and we

consent to the undertaking, it occurred to us that

it probably could be dealt with.

C2T24/1/MB 134 6/5/88

Miller(2)
MR HEYDON (continuing): Might I draw attention to the last

five words of the undertaking and suggest that they

are a protection to the appellant in the event

that any unforeseen difficulties present themselves.

BRENNAN J: But, it is all to be done within 28 days of

the determination of these proceedings?

MR HEYDON: 

Yes, Your Honour, which is a sufficient time to

propose what difficulties there are to the
respondent and if they cannot be resolved raise
the matter before a court, perhaps not this Court,

appropriately.

BRENNAN J: That is why I thought 28 days seemed rather

optimistic?

MR HEYDON: If the time is the problem, I am sure we will

have no difficulty in an appropriate expansion of

it.

DEANE J:  Of course, the last three lines invites the

Court to consider the very question that Mr Hely is saying we should not consider?

MR HEYDON:	Yes, the last three lines were drafted before the precise problem that arose this morning did
arise. I should perhaps just say this. Ordinarily
an undertaking as to damages, of course, would be all we would seek. There is extraordinarily
great difficulty in working out precisely what
that would lead to in this case because of the
amendment to ordinance 54 clause 10 which may
impose a kind, I am not saying it does, but it
may impose a kind of rolling four year destruction
period, such that our right to get compensation
for works done, for example, before 6 May 1984
dies as each second passes.  The Maison Dieu
substation, for example, which was some millions of dollars of purchase, was before that time, It
was all in 1983.

(Continued on page 136)

C2T25/l/SR	135	6/5/88
Miller(2)

MR REYDON (continuing):  So that there may be some contention

in resistance to a full payment on the undertaking
as to damages based on ordinance 54, clause 10.

That is why we tried to come up with this more

precise undertaking.

BRENNAN J:  But why is it that your cross claim does not give

you whatever protection you need?

MR REYDON: Well, the real d~fficulty with the undertaking

as to damages arises in circumstances where we

win the appeal, but lose the cross appeal. The

position then would be that Mr Rayment's client

would say, "My agreement came to an end on
31 December '85, I must make a fresh application",

and then there would be a demand for a capital

contribution presumably, and then in effect a

whole new wave of litigation begins again, and

I would merely make reference again to what

Mr Rely said, at the end of his submissions

in reply,about the need for some sort of finality.

MASON CJ:  Mr Reydon, would it be profitable for the

parties to discuss this matter?

MR REYDON:  I am not sure. Mr Rayment says he has no

problem with the .injunction in its form.

MASON CJ:  No, it is the undertaking that is the problem.

MR REYDON: Well, I suppose whether profitable or not,

but refer the matter to a single Justice, which

it is a chance that should be explored. If the

I gather is in the Court's contemplation, might

we propose only a short adjournment? I do think

that very much time would be taken before the

single Justice in view of the shape that things

have taken.

(Continued on page 137)

C2T26/l/JM	136	6/5/88
Miller(2)

MASON CJ: How long an adjournment? What, 20 minutes,

half an hour, something of that order?

MR REYDON:  Ten was the figure I had in mind, but I will

say 15 minutes; whatever is convenient to the single

Justice.

MASON CJ:  Yes, well, we will adjourn shortly and you have

it mind that we would resume as a Full Court to

continue this discussion?

MR REYDON:  No, Your Honour. I had in mind to do whatever

the Court wanted to do; either that a single Justice

would consider the matter and grant the injunction

and exact whatever undertaking he thought proper or,

alternatively, if the Full Court wanted to do it, we

have no preference.

MASON CJ:  Yes, very well. Well, Mr Reydon, we think the

best course is for the Court now to adjourn. We

will give some consideration to what has transpired

and, in a short period of time this matter can come

either before the Full Court or before one of our

number, as we think appropriate once we discuss the

matter.

MR REYDON:	If the Court pleases.
MASON CJ:	So that, at this stage, the Court will reserve

its judgment in the appeal and cross appeal and

will adjourn.

AT 12.00 PM SHORT ADJOURNMENT

C2T27/l/VH	137	6/5/88
Miller(2)

UPON RESUMING AT 12.15 PM:

MASON CJ:	What news?
MR REYDON:	Mr Rayment proposed a form of words different from

the undertaking which is on the typed sheet of paper.

His solicitor is getting instructions on that at the

moment. What Mr Rayment proposed, and it seems

satisfactory to us·at least, was that there would

be the usual undertaking as to damages and the

injunction, and that it be noted that if the

undertaking were called up, that the respondent

would be entitled to be put in the same position

as if an application for supply of electricity were

made and accepted today, 6 May 1988, for supply up

to a demand limit of 17,588 MVA, interest to run

on any resulting capital contribution figure

at applicable New South Wales Supreme Court rates.

pursuant to section 94 of the SUPREME COURT ACT 1970.

MASON CJ:  Yes, well, on the face of it, that seems as if

it is getting close to meeting your problems.

MR REYDON:  Yes. We see it as being a reasonable resolution

of the problem from our point of view.

MASON CJ:	In view of that, would the best thing be for us now to adjourn, and for the matter to come before a
single Justice at a convenient time?
MR REYDON:	I think it probably would, Your Honour.
MASON CJ:	You may be able to get the instructions before

a quarter to one.

MR REYDON:  Yes. Might we have liberty, when we are in

a position to proceed, to approach, perhaps,

~the Registrar, with a view to approaching the single

"'Just ice?

MASON CJ:  Certainly. The Court will now adjourn.

AT 12.17 PM THE MATTER WAS ADJOURNED SINE DIE

C2T28/l/HS	138	6/5/88
Miller(2)